Article 36 of the Charter and access to public services: scope, extent and limits of a sui generis provision

Abstract

Article 36 of the Charter raises important legal questions of an institutional/constitutional and substantive nature. I will first discuss the issues of substantive EU law raised by Article 36, which relate to the place of public services in Europe’s economic and social constitution. I will then analyse the issues of EU institutional/constitutional law raised by the Article, an analysis which requires an investigation on the nature of the Charter’s provisions on fundamental social rights. My main argument is that Article 36 can be ‘put into action’ by individuals before judges as it may create direct effect. Direct effect, indeed, has also an objective – rather than subjective – dimension as it can be described as the capacity of a provision of EU law to serve as a parameter of legality for national law, with exclusionary rather than substitution effects.