The European Court of Justice,the EU Charter and the interpretation of fundamental social rights: Judicial law-making in disguise?

Abstract

The early judgments on the horizontal effects of the right of equal treatment on the grounds of age fuelled concerns about the excessive judicialization of EU fundamental social rights. In this context, this contribution adds to the existing literature on the topical issue of the normative significance, or added value, of the EU Charter. It shows that one of the aims underlying the adoption of the Charter was to place limits on the interpretative mandate of the Court. Based upon an analysis of case law, it seeks to ascertain the manner in which the new ‘parameters of interpretation’ introduced by the Charter have been employed in the jurisprudence dealing with the interpretation of fundamental social rights. This analysis demonstrates that the entry into force of the Charter seems to have generated a renewed emphasis on literalism with respect to the interpretation of fundamental social rights. At the same time, this contribution concludes that recent judgments do not fundamentally depart from the teleological mode of reasoning traditionally employed by the Court. The Court's recent juridprudence suggests that fundamental social rights have come to play a positive role as a source of self-standing subjective rights and obligations for the sake of individuals.