Article 27 of the Charter of Fundamental Rights of the European Union, by itself or in conjunction with the provisions of Parliament and Council Directive 2002/14/EC, could not be invoked in a dispute between individuals in order to disapply national provision.

The claimant association participated in the implementation of social mediation measures and measures for the prevention of crime in Marseille, France. The first defendant appointed the second defendant as representative of the trade union section created within the claimant. The claimant challenged that appointment on the basis that it had staff numbers of fewer than 11 and, a fortiori, fewer than 50 employees and that, as a result, it was not required, under the relevant national legislation, to take measures for the representation of employees, such as the election of a staff representative. In order to determine whether those thresholds of 11 or 50 employees were met within the association, the claimant considered that it was necessary to exclude apprentices, employees with an employment-initiative contract or accompanied employment contract and employees with a professional training contract from the calculation of its staff numbers, in accordance with domestic law. The Marseille District Court, hearing an application brought by the claimant for the annulment of the appointment of the trade union representative and a counterclaim by the trade union for an order that the claimant organise elections for the purposes of setting up within it bodies representing staff, referred a priority question on constitutionality to the Court of Cassation, which referred that question to the Constitutional Council, which declared that domestic law was not unconstitutional. On appeal by the claimant, the Court of Cassation stayed the proceedings and referred the following question, inter alia, to the Court of Justice of the European Union for a preliminary ruling.

Whether Article 27 of the Charter, by itself or in conjunction with the provisions of Directive 2002/14, could be invoked in a dispute between individuals in order to disapply national provisions.

It was not possible to infer from the wording of article 27 of the Charter or from the explanatory notes to that article that article 3(1) of Directive 2002/14, as a directly applicable rule of law, laid down and addressed to the member states a prohibition on excluding from the calculation of the staff numbers in an undertaking a specific category of employees initially included in the group of persons to be taken into account in that calculation.