Justiciability of EU Law
A legal matter is justiciable when it can be the basis for a claim or a complaint before a court. Not all legal issues are justiciable. For example, there was considerable debate over whether ‘subsidiarity’ was justiciable. It was not clear whether courts, including the European Court of Justice, could adjudicate on complaints that laws adopted by the EU institutions violated subsidiarity. It appears to be generally agreed that the subsidiarity principle is not justiciable.
Justiciability is one aspect of enforcement of EU law, focusing on the judicial system. For example, the doctrine of vertical direct effect means that provisions of directives, which contain most of the rules in the field of EU employment and industrial relations, may be justiciable against the State. Most directives in the field of employment and industrial relations include a provision on justiciability. For example, Council Directive 75/129 of 17 February 1975 on the approximation of the laws of the Member States relating to collective dismissals (as amended by Directive 92/56 of 24 June 1992; consolidated in Council Directive 98/59/EC of 20 July 1998) provides in Article 6:
Member States shall ensure that judicial and/or administrative procedures for the enforcement of obligations under this directive are available to the worker representatives and/or workers.
Other EU legal measures, such as recommendations, do not provide for justiciability. Soft law measures, such as the open method of coordination used in the European Employment Strategy in the employment title of the EC Treaty, are also not justiciable.
A major question of justiciability arises concerning certain provisions in the Charter of Fundamental Rights of the European Union. As a political declaration, its present legal status is that it is not justiciable. If incorporated into the EC Treaty, however, it is possible that the European Court of Justice could attribute to its provisions binding ‘direct effect’ (both vertical and horizontal), enabling individuals to bring claims before national courts based on Charter provisions. This could have important consequences for the many employment and industrial relations provisions in the Charter.