The Novel Approach of the CJEU on the Horizontal Direct Effect of the EU Principle of Non-Discrimination: (Unbridled) Expansionism of EU Law?

Abstract

The application of the EU principle of non-discrimination in private disputes is a sensitive issue. Recent case-law of the CJEU (cases Mangold and Kücükdeveci) conveys a novel approach that disturbs the pattern of the previous case law. The result of the novel approach is the possibility of horizontal direct effect in a much broader range of situations than before. It for instance leads to the de facto horizontal direct effect of anti-discrimination directives. The approach seems to go beyond the mere circumvention of the lack of horizontal direct effect of anti-discrimination directives. It seems that the horizontal direct effect of the principle applies in all cases falling within the scope of EU law. This raises an important question: when should private legal relationships be considered as falling within the scope of EU law? This question is a challenge for future case law. A prudent approach is recommended.