The landmark case that went missing: Collective redundancies,unjustified dismissal and the denied horizontality of the EU Charter of Fundamental Rights in C-196/23 Plamaro

Abstract

The interplay of EU law and fundamental social rights has been shaped by a series of landmark cases, such as the Viking-Laval saga, AGET Iraklis, and AMS. These cases, decided in the EU Court of Justice's Grand Chamber, have drawn criticism for privileging market freedoms over social rights. Similarly, another series of landmark cases has framed the horizontal effect of the fundamental rights in the EU Charter of Fundamental Rights, i.e., whether they can be invoked in private disputes. However, a 2024 decision went missing from both groups of landmark cases: C-196/23 Plamaro. This decision by the CJEU's Second Chamber offers critical insights into the Charter's evolving effectiveness and the unresolved tension between market and social imperatives in the EU legal order. Though ostensibly a technical interpretation of the Collective Redundancies Directive 98/59/EC, the Second Chamber considered the Charter's rights to information and consultation within the undertaking and to protection against unjustified dismissal to lack substance, and therefore justiciability. This extends a third category of ‘ineffective Charter provisions’ beyond the textually mandated dichotomy between Charter rights and principles, and their different justiciabilities rooted in the Charter's general provisions. By so far including only social – and more specifically labour – rights, this category entrenches a hierarchy of rights that undermines the Charter's effectiveness and its very constitutional promise of indivisibility giving equal value to all types of fundamental rights. Moreover, Plamaro disrupts the scholarship developed after Bauer which had posited a trend toward horizontality for ‘most’ CFR rights, stronger EU social and labour rights, and the capacity of EU legislative instruments to inform Charter obligations. Based on the Charter's indivisibility, its effectiveness and the rich yet ignored substantive foundations of the Charter rights concerned, this article argues that a third category of ineffective Charter provisions should neither exist, nor be extended. Instead, the article provides pathways for a reimagination of the Charter's effectiveness in light of the principle of indivisibility.