Between judicial minimalism and avoidance: The Court of Justice’s sidestepping of fundamental constitutional issues in Römer and Dominguez

Abstract

This article concentrates on the issues left unaddressed by the Court of Justice in the cases of Römer and Dominguez. After clarifying the nature of the "constitutional" issues raised by these two cases and describing how the Court sidestepped them, this article examines how the principle of non-discrimination on grounds of sexual orientation and entitlement to paid annual leave should be categorized within the hierarchy of norms of the EU legal order, before considering their scope of application and justiciable nature in the context of national litigation relating to the alleged failure of a public employer and a private employer to comply with Directive 2000/78 in the case of Römer, and Directive 20003/78 in the case of Dominguez. Three main points are defended: firstly, it is submitted that the Court must systematically refer to the Charter when adjudicating fundamental rights issues and avoid using ambiguous phrasing when referring to fundamental rights or principles that are undoubtedly enshrined in it; Secondly, it is argued that the Court must work on the presumption that in the post-Lisbon EU, the fundamental rights set out in the Charter must also be regarded as general principles of the Union's law; Thirdly, this article defends the view that Article 51(1) of the Charter does not offer clear authority for the proposition that Charter rights lack horizontal direct effect and that in any event, the Court should not rule out the analogous application of the reasoning it developed in Kücükdeveci.