National Measures and the Application of the EU Charter of Fundamental Rights - Does curia.eu Know iura.eu?

Abstract

Even after the entry into force of the European Union Charter of Fundamental Rights (‘the Charter’), some doubts regarding its legal effects are still looming large. Among them is whether, and to what extent, the Charter applies to national measures that are connected to European Union (EU) law but are not intended to implement it directly. This legal uncertainty affects the position of individuals seeking to assert their fundamental rights before a national judge. In particular, whereas the application of the Charter warrants disapplication of the conflicting national measures, the same remedy is often not available when plaintiffs rely only on other fundamental rights instruments (like the European Convention on Human Rights or national constitutions). This article offers a bottom-up account of how this hermeneutic cul de sac, often discussed at the theoretical level, influences adjudication in ordinary courts. It also appraises the outcome of two recent disputes that hinged precisely upon the application of the Charter and its relationship with other fundamental rights instruments (Kamberaj, Fransson). The aim is to ascertain whether national judges can derive some interpretive guidance from these precedents. It is submitted that the Kamberaj judgment fails to provide guidance on Article 51(1) of the Charter, and that the Advocate General’s laudable attempt at conceptualisation in Fransson is ultimately impracticable, at least in the short term. The decision in Fransson is maybe showing some goodwill on the part of the Court of Justice of the European Union (CJEU), but is insufficient. In the absence of a reliable test, it is argued that the CJEU should be pressed to clarify the scope of application of the Charter on a case-by-case basis through its preliminary reference jurisdiction. The recent case-law suggests instead that the CJEU prefers to maintain a hands-off approach. This is undermining the advent of the Charter as a discrete legal instrument (as opposed to an interpretative supplement) and is contrary to the CJEU’s mandate to help national judges in the interpretation of EU law. Besides, the VC The Author [2014]. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com 231 Human Rights Law Review, 2014, 14, 231–265 doi: 10.1093/hrlr/ngu009 Advance Access Publication Date: 13 May 2014 Article at 0788000 on Jne 8, 2014 http://hrlrdjournals.org/ D ow nladed from Bundesverfassungsgericht’s reaction to Fransson shows that the lack of a clear test can encourage member states to attempt a counter-colonisation of areas falling within the scope of EU law, as far as human rights protection is concerned.