Abstract
AbstractThis contribution will tackle a central question for the architecture of fundamental rights protection in the EU: can we envision a Charter that fully applies to the Member States, even beyond the limits of its scope of application? To improve our understanding of the boundaries of the Charter and the potential for further expansion, I will examine the legal avenues through which the CJEU has extended the scope of application of EU fundamental rights in fields of state powers. While the latent pull of citizenship towards a more expansive application of the Charter has not been fully realized, the principle of effective judicial protection (Article 19(1) TEU) has recently shown potential for protection under EU law beyond the boundaries of the Charter. As will be argued, effective judicial protection may well become a doorway for full application of the Charter to the Member States. While such an outcome might currently seem politically unsound, I contend that a progressive case-by-case expansion of the applicability of the Charter to the Member States would be welcome from the standpoint of a robust notion of the rule of law in the EU.
Highlights
A little over ten years ago, the Treaty of Lisbon rendered the Charter of Fundamental Rights of the European Union (‘Charter’) legally binding as a source of primary EU law
This contribution will tackle a central question for the architecture of fundamental rights protection in the EU: can we envision a Charter that fully applies to the Member States, even beyond the limits of its scope of application? To improve our understanding of the boundaries of the Charter and the potential for further expansion, I will examine the legal avenues through which the Court of Justice of the European Union (CJEU) has extended the scope of application of EU fundamental rights in fields of state powers
The Explanations to the Charter,[8] which must be considered in its interpretation,[9] referred to the prior case law of the CJEU, according to which the Member States are bound by the Charter when they act within the field of application of EU law
Summary
A little over ten years ago, the Treaty of Lisbon rendered the Charter of Fundamental Rights of the European Union (‘Charter’) legally binding as a source of primary EU law. Article 51(1) of the Charter laid down that Member States shall be bound by the Charter ‘only when they are implementing Union law’ This Article was the source of profound debate during the drafting process.[4] the definition of the boundaries of the Charter vis-à-vis the Member States is crucial for the federal architecture of the system of rights protection, and correspondingly for the extent of the power of the Court of Justice of the European Union (‘CJEU’) to scrutinise state action under fundamental rights. As will be shown, the scope of application of the Charter and the corresponding power of the CJEU to adjudicate fundamental rights go well beyond the field of EU conferred powers This contribution will tackle a central question for the architecture of fundamental rights protection in the EU: can we envision a Charter that fully applies to the Member States, even beyond the limits of Article 51(1)? While such an outcome might currently seem politically unsound, given the moment of growing Euroscepticism and rising authoritarianism in the EU, I contend that it would be welcome from the standpoint of a robust notion of the rule of law
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