Even if the encouragement of recruitment constitutes, admittedly, a legitimate aim of social policy and even if the Member States have, in choosing the measures capable of achieving the aims of their social policy, a broad margin of discretion, that margin of discretion nevertheless cannot have the effect of frustrating the implementation of a fundamental principle of EU law or of a provision of that law.

Article 3(1) of Directive 2002/14 establishing a general framework for informing and consulting employees in the European Community must be interpreted as precluding a national provision under which workers with assisted contracts are excluded from the calculation of staff numbers in the undertaking when determining the legal thresholds for setting up bodies representing staff.

Article 3(1) of Directive 2002/14 establishing a general framework for informing and consulting employees in the European Community fulfils all of the conditions necessary to have direct effect. Although that directive grants the Member States a certain degree of discretion, in so far as it does not prescribe the manner in which the Member States are to take account of employees falling within its scope when calculating the thresholds of workers employed, that does not alter the precise and unconditional nature of the obligation in that article not to exclude from that calculation a specific category of persons initially included in the group to be taken into consideration.

Article 27 of the Charter of Fundamental Rights of the European Union, by itself or in conjunction with the provisions of Directive 2002/14, establishing a general framework for informing and consulting employees in the European Community must be interpreted to the effect that, where a national provision implementing that directive is incompatible with EU law, that article of the Charter cannot be invoked in a dispute between individuals in order to disapply that national provision contrary to EU law.

It is clear from the wording of Article 27 of the Charter that, for this article to be fully effective, it must be given more specific expression in EU or national law. In that regard, it is 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, lays down and addresses 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. Accordingly, Article 27 of the Charter cannot, as such, be invoked in a dispute between individuals in order to conclude that the national provision which is not in conformity with Directive 2002/14 should not be applied. That finding cannot be called into question by considering Article 27 of the Charter in conjunction with the provisions of Directive 2002/14, given that, since that article by itself does not suffice to confer on individuals a right which they may invoke as such, it could not be otherwise if it is considered in conjunction with that directive.

However, a party injured as a result of national law not being in conformity with EU law can rely on the judgment of 19 November 1991 in Joined Cases C‑6/90 and C‑9/90 Francovich and Others in order to obtain, if appropriate, compensation for the loss sustained.

(see paras 45, 46, 48-50, operative part)