Abstract
The Charter of Fundamental Rights codifies and reaffirms the rights and principles recognised in European Union law. These rights and principles result from the constitutional traditions common to the Member States, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the case law of the Court of Justice of the European Union and that of the European Court of Human Rights. The Charter was meant to strengthen the protection of fundamental rights and principles by making them more visible. This study explores the restrictions on the applicability of the rights and principles enshrined in the Charter. Given that the most problematic questions are those regarding the application of the Charter’s rights and principles by the Member States, it focuses on these questions and points out, when necessary, some other problems such as the distinction between rights and principles and their application in horizontal relations. The study also analyses the different modes and constraints of application of the Charter and interpretation of it by Member State courts. Finally, it examines whether the Charter, despite its limited scope of application, can provide national courts with new competences to apply the fundamental rights.
Highlights
Charter of Fundamental Rights, judicial interactions, rights and principles, scope of application of the Charter, notion of implementation of EU law, competences of national courts, national constitutional standards, relations between EU and national law
National courts examine the compliance of national law with the fundamental rights recognised in the EU system. This competence was confirmed in the Åkerberg Fransson judgment, in which the CJEU precluded application of national procedural rules on reviewing the compliance of domestic law with fundamental rights. It held that Swedish law could not make application of the Charter conditional on whether incompatibility with fundamental rights was manifest, “since it withholds from the national court the power to assess fully, with, as the case may be, the cooperation of the Court of Justice of the European Union, whether that provision is compatible with the Charter.”[75]. That was directly confirmed in the A v B judgment concerning the Austrian legal system, in which the CJEU stated that the ordinary courts might not be under a duty to apply to the constitutional court for statutes to be annulled with erga omnes effect if that obligation prevented the courts from exercising their right to make a reference to the CJEU
National courts can indirectly derive from the Charter certain extended or even new competences of constitutional review, which can be enforced without the intervention of constitutional or higher courts and which may lead to substantial changes in the interpretation and application of national standards of fundamental rights protection
Summary
The Charter is about people and their rights. As is stated in its preamble, the EU places the individual at the heart of its activities and contributes to the preservation and development of common values. More than 10 years after its entry into force as a binding legal act the Charter has proved to be a milestone in the development of the legal systems of the EU and its Member States It has become an important part of EU and national jurisprudence – does the CJEU invoke its provisions and use them as a legal basis for its decisions but the same is true of national courts. It has not been possible to avoid interactions between the national constitutional orders and the Charter These interactions may be positive in the sense of the cross-fertilisation or cross influence, resulting in establishing the common standard of protection of the fundamental rights. The Charter, which was initially seen as a legal instrument serving the EU and making the EU fundamental rights more visible, more than ever can protect and support the constitutional values of the Member States
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