The horizontal application of fundamental rights as general principles of Union Law

The peculiarity of the constitutional order of States is fully reflected in the difficulties inherent in delimiting the exact scope of Union law. This is true both in relation to fleshing out the Treaty provisions (especially those declared to grant rights to individuals); and in relation to the effect of the general principles of Union law, and particularly fundamental rights, on the domestic constitutional systems. In this respect, the interaction between the ever expanding scope of the Treaty rights-granting provisions (mainly of the Union citizenship and the free movement provisions), and the general principles has created a complex web of intersecting jurisdictions where domestic, Union and European Convention rights concur, as well as sometimes compete, with one another. As a result, the determination of the ‘proper’ scope of application of Union fundamental rights is of paramount constitutional importance – the broader the scope of the former, the deeper the impact on both national regulatory sovereignty and national conceptions of fundamental rights. Here, it should be noted that this is not a zero sum game, where gain and losses can be exactly determined so that a ‘gain’ at EU level exactly corresponds to a ‘loss’ at national level (or vice versa): first of all, a loss in national sovereignty might well be compensated by the gain in individual rights; secondly, fundamental rights, and especially the balance between competing interests, reflect cultural and social values and anxieties so that a loss in national sovereignty might also determine a loss in societal compromises, in the collective dimension, in favour of an individualistic (and possibly selfish) view of mutual rights and responsibilities; thirdly, an individual’s gain might translate in another individual’s loss, regardless of whether there has been a gain to the national or Union dimension; fourthly, a ‘gain’ in the Union’s jurisdiction is also a gain for a certain vision of the European Union (more supranational, more constitutionally independent from its Member States). This contribution does not seek to explore all of these issues, although it touches upon them; rather it focuses on exploring the extent to which fundamental rights as general principles of Union law can (or/and should) be invoked against other individuals. More generally, an investigation into those issues might help in answering one of the main questions Alan has been interested in: if the Union can correctly be described as a constitutional order of States, which ‘constitutional’ order is this? I will first look at the scope of application of fundamental rights as general principles of Union law to then concentrate on those situations in which fundamental rights apply to acts of the Member States. I will then analyse the extent to which general principles, and fundamental rights in particular, are horizontally applicable and look at some reasons why these developments might not be altogether wise.