The Fundamental Rights Direct Effect Problem

Many fundamental rights in the EU Charter may not be enforceable by individuals against private parties (like employers or banks deploying AI systems) due to unclear “direct effect” status.

For a EU legal provision to have direct effect, creating rights individuals can enforce, it must be clear, precise, and unconditional without requiring further implementing measures. The Court of Justice has only confirmed direct effect for four Charter provisions: non-discrimination (Art. 21), working time limits (Art. 31(2)), and effective remedy (Art. 47). Worker’s right to information and consultation (Art. 27) was explicitly denied direct effect.

The EU AI Act references 17 fundamental rights. For those without direct effect, private deployers of AI systems may not be directly bound by the Charter, creating an enforcement gap between the Act’s aspirations and practical remedies available to affected individuals.

Related: 05-atom—horizontal-vertical-regulation-tension, 05-molecule—regulation-as-learning-framework