Abstract
The personal scope of the Charter of Fundamental Rights of the European Union (the Charter) is an area that still needs to be defined by the Court of Justice of the European Union (CJEU). The issue surrounding the personal scope entails the question of who can claim the protection of fundamental rights. A particularly controversial matter has proved to be the question whether, and if so under what circumstances, private legal entities and public authorities can invoke fundamental rights. This article aims to provide a detailed examination of the ‘landscape’ the CJEU must take into account when dealing with the personal scope of the Charter in the future. Firstly, this landscape is made up of the background and objectives of the EU and the European Convention on Human Rights (ECHR) legal systems. Secondly, it is shaped by the personal scope application of the Charter as interpreted by the CJEU so far, and the personal scope application of the ECHR as interpreted by the European Court of Human Rights (ECtHR). Finally, the application by Member State courts of fundamental rights, via the Charter, ECHR and constitutional rights, forms an element in this landscape. An examination of these aspects will provide answers to the question of how the three main players on the European fundamental rights stage – the CJEU, the ECtHR and the national courts – have applied the personal scope of their fundamental rights up to now. This also encompasses answers to the question of how these applications relate to the different background and objectives of the ECHR and the EU legal systems. These answers will provide the CJEU with tools to deliver well-informed rulings on the personal scope of Charter provisions in the future.
Highlights
Both the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) play an important role in the protection of fundamental rights in Europe
One of the reasons for this is the coming into force of the EU’s own fundamental rights document: the Charter of Fundamental Rights of the European Union, which became binding for EU Member States in 2009.2 the CJEU is increasingly dealing with fundamental rights cases, and appeals and referrals to the Charter are piling up,[3] there is still unclarity concerning the application of the Charter.[4]
Since the national application of the Charter is less crystallised than the national application of the European Convention on Human Rights (ECHR) and constitutional rights, information about the national application of the Charter has not been collected in the same way, but has been obtained through a systematic review of national case law in which the term ‘Charter of Fundamental Rights of the EU’ is mentioned
Summary
Information on the national application of constitutional rights, ECHR rights and Charter rights by the courts of the Netherlands, Portugal, Spain and Poland has been gained from country rapporteurs.[104]. Only rulings within the time frame 1 January 2015 until 31 December 2017 were analysed.[106]
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