Transnational Judicial Control in EU Law: The Practice of National Courts

1 Legislative Powers and Normative Instruments I. INTRODUCTION II. LEGISLATIVE POWERS AND NORMATIVE INSTRUMENTS UNDER THE CURRENT TREATIES III. SIMPLIFICATION OF THE UNION'S NORMATIVE INSTRUMENTS AND THE TRANSFORMATION OF EUROPEAN ADMINISTRATIVE LAW IV. NEW NORMATIVE INSTRUMENTS UNDER THE CONSTITUTIONAL TREATY 1. Legislative Level: European Law and Framework Law 2. Delegated European Regulations (a) On Requirements and Limits (b) Mechanisms of Control 3. Implementing Acts (a) Areas where Implementing Acts might be Used (b) The Form and Mechanism for the Control of Implementing Acts V. A THIRD TYPE OF EUROPEAN REGULATION 1. Competition Policy 2. State Aids 3. Economic and Monetary Policy 4. Area of Freedom, Security and Justice VI. THE CHOICE BETWEEN PRIMARY LAW AND SECONDARY LAW: CONSEQUENCES 2 Implications of a Binding European Charter of Fundamental Rights for the Individual Decisions Made by the European Public Administration I. INTRODUCTION II. THE RIGHT TO GOOD ADMINISTRATION 1. Origin of the Right to Good Administration in Community Law 2. Content of the Right to Good Administration 3. Implications of a Binding Right to Good Administration for the Community Administration III. THE RIGHT OF ACCESS TO DOCUMENTS 1. Origin of the Right of Access to Documents 2. The Current Meaning of the Right of Access to Documents (a) Which Bodies are under an Obligation to Provide Access to their Documents? (b) Who Can Access Institutions' and Bodies'Documents? (c) Judicial Protection of the Right of Access to Documents 3. Implications of a Binding European Charter of Fundamental Rights for the Right of Access to Documents IV. THE RIGHT TO PROTECTION OF PERSONAL DATA 1. Its Origins in EU Law 2. Scope of the Right to Protection of Personal Data (a) The Rundfunk Case (b) The Lundqvist Case (c) The PNR Case 3. Personal Data Protection in the Charter and in the Constitutional Treaty (a) Introduction (b) Implications 3 The Impact of the Charter of Fundamental Rights on Decisions Adopted by Member States I. FUNDAMENTAL RIGHTS OF THE UNION AND MEMBER STATES: WHAT DOES 'IMPLEMENT'MEAN? 1. General Considerations: The Relevance of the Topic 2. Subjecting National Administration to the Fundamental Rights of the Union (a) Case Law on the Application of Fundamental Rights of the Union to Member States (b) The Formula in Article 51 (1) of the Charter: Subjecting Member States to Community Fundamental Rights 'only when they are implementing Union law' 3. A Theory of the Concept of Implementing EU Law from the Perspective of the Protection of Fundamental Rights against the Acts of Member States II. THE RIGHTS TO GOOD ADMINISTRATION,ACCESS TO DOCUMENTS AND PROTECTION OF PERSONAL DATA: EFFECTS OF RECOGNITION IN NATIONAL LEGAL SYSTEMS 1. A Preliminary Question 2. The Field of Application of the Right to Protection of Personal Data, Access to Documents and Good Administration (a) The Right to Good Administration (b) The Right of Access to Documents (c) The Right to Protection of Personal Data III. FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION AND MEMBER STATES: THE CASE OF STRUCTURAL FUNDS IV. CONCLUSION 4 Towards a Law on Administrative Procedure I. AN OLD ISSUE REVISITED:WHY NOW A EUROPEAN LAW ON A COMMON ADMINISTRATIVE PROCEDURE? 1. General Considerations 2. A Public Administration without a Law of Administrative Procedure (a) Separated Procedural Norms in Primary and Secondary Law (b) Shaping of the General Principles of Administrative Procedure by the Court of Justice 3. New Arguments for the Creation of a Law on Administrative Procedure II. CODIFYING EUROPEAN ADMINISTRATIVE PROCEDURE 1. Legal Foundation (a) Formal Basis: Article III-398 of the Treaty establishing a Constitution for Europe (b) Substantive Basis: The Right to Good Administration as a Binding Fundamental Right and the Principles of Democracy and Legality 2. Content: Putting the Individual at the Centre of Procedure (a) Prior Considerations: A Law of General Principles or a Law of Particulars? A Law on European Administrative Procedure or a Law of European Administrative Procedures? (b) General Considerations regarding the Content of the Law on European Administrative Procedure (c) The Development and Guarantee of the Rights of the Parties in Procedure (d) The Rise of Transparency, Impartiality, Equality and Legal Certainty (e) The Strengthening of Participation Rights: Towards a More Democratic and Open European Administration III. CONCLUSION 5 Judicial Protection I. INTRODUCTION II. THE RULE OF STANDING AND THE RIGHT TO EFFECTIVE JUDICIAL PROTECTION 1. Brief Description of the Current Rule of Standing found in Article 230(4) of the EC 2. UPA and Jego-Quere Cases and the Gaps in Judicial Protection in the Union 3. Modifications to the Rule of Standing of Private Parties Introduced by the Constitutional Treaty 4. Modificatio

The Court of Justice of the European Union faces a wide variety of human rights decisions. In common with national courts, it has to ensure that the actions of the European Union administration and legislature comply with human rights. These human rights are found in the general principles of Community law, including, inter alia, those of the European Convention of Human Rights, in addition to the EU Charter of Fundamental Rights and Freedoms. When doing so, the CJEU may find that it is judging not only the actions of the institutions of the European Union, but also actions of the administration and legislature of the Member States as they implement provisions of EU law, or act as agents of the EU administering EU law. In addition, the CJEU will adjudicate on actions of the Member States when they are acting within the sphere of European Union law. This can occur when Member States derogate from other provisions of EU law on the grounds of protecting human rights, or where Member States fail to implement European Union law provisions that either directly or indirectly protect human rights. This diverse nature of the human rights jurisdiction of the CJEU poses unique problems for human rights adjudication in the EU. The Court is at one and the same time protecting human rights from abuse by its own measures and policing the activities of its Member States. Moreover, the lines between these roles are blurred. For the CJEU to provide a human-rights compatible interpretation of the provisions of a Directive, for example, not only restricts the actions of the EU legislature, but also limits the actions of Member States. In addition, when the CJEU takes on the role of policing the actions of Member States, it does so within the context of the ECHR, given that all Member States, and potentially soon the EU itself, are signatories to the ECHR and the provisions of the ECHR are sources of general principles of Community law as well as being mirrored in the first Chapter of the Charter. Yet for the CJEU to perform the same function as the European Court of Human Rights would lead to replication of roles, as well as cause problems for the CJEU’s assertion of the supremacy of directly effective EU law over national law which would appear to run contrary to the margin of appreciation granted by the ECtHR to its signatory States. This chapter aims to provide the groundwork for developing a theory of human rights adjudication for the CJEU, looking specifically at the complexities that arise when deciding cases that require control over actions of Member States. It builds on consensus found in the literature calling for the need for the CJEU to be sensitive to competing requirements of consensus and divergence in the protection of human rights, drawing on the constitutional pluralism underpinning the EU. It will first explain the need for both uniformity and diversity in human rights protections in the EU. It will then explain how these needs can best be met through a dialogue theory of human rights adjudication, with Article 267 facilitating the provision of varying degrees of authority to determine rights-issues to either the CJEU or the national courts. The final section discusses the factors that should influence whether a rights-issue is more suited for resolution by the CJEU or national authorities, building on Weiler’s theory and explaining its precise application through a series of examples drawn from recent case law.

1. IntroductionOne of the most str iking aspects of procedural la is the role of Member State courts a nd nat ional procedural and r emedia l rules. A vast amount of EU law1 exists EU in Member Here, the focus is on the interaction of EU with national remedial and procedural law, and on the EU r equir ements for decisions by nationa l courts. The t heme of judicial protection with a view to national remedies and procedures is of broad practical relevance, even though part of the discussion in this contribution focuses especially on the context of damages claims relating to differ ent fields of EU (such as competition, free movement and employment). The issues of remedies and procedure are intertwined and may actualize in horizontal relationships between individuals as well as in vertical relationships between individuals and Member States. Both public and private law matters with an EU aspect may be instances where EU requirements for national enforcement systems are of relevance.The so-called procedural autonomy case and loyal or sincere cooperation-based principles of effectiveness and equivalence are often among the first ment ioned when the discussion concer ns relying on EU la w or r ea cting to infr ingements of EU la w in na t iona l c ourts. In addition to containing substantive and concrete rules, EU law, which needs to rely on national systems for enforcement, sets limits of acceptability for national that intertwines with EU law. Case by the Court of Justice of the EU (CJEU) on the express limits of acceptability, the twin principles of effectiveness and equivalence, has since the starting point in Rewe2 developed into a ma ssive bulk which bot h int er pr ets t he principles and, to some extent, encourages balancing them against other factors and legal concerns.Other on EU infringements before national courts includes the general principle of effective judicial protection3 and the right to an effective remedy and to a fair trial in Article 47 of the Charter of Fundamental Rights of the European Union (CFR). The relationship between the twin principles (eff ectiveness a nd equivalence) and the r ight a nd pr inciple of eff ective judicial protection may be described as blurry. A further aspect of the theme is the duty of Member States to offer sufficient judicial remedies (Article 19(1) Treaty on European Union, TEU).4 As regards the various legal bases relating to judicial protection, a rough description could be that they are all aspects of a whole which requires that appropriate judicial protection may be obtained and which requires national systems to ensure that relying on EU may be effectively achieved in national courts so that sufficiently powerful reactions to EU infringements are possible. Following this line of thought, details of the whole are also expressed by the requirements on sanctions for EU infringements, the full effectiveness of EU being an under - pinning goal.5The principle of effective judicial protection - and, post-Lisbon, increasingly also the corresponding right - seems to occupy an overarching role and to precede EU procedural autonomy law. However, the situation is anything but clear.6 Works by EU scholars have discussed the relationship between the (Rewe) principle of effectiveness and the principle of effective judicial protection, or the corresponding right.7 Here, not all issues pertaining to the legal and theoretical structure of effective judicial protection in national courts may be examined at length. However, as a background to this research it should b e not ed t ha t t he principle of (and r ight to) eff ective judic ia l protection may be described as truly interested in judicial protection in a Rechtsstaat way, whereas the principles of effectiveness and equivalence appear to be mainly motivated by effective application of EU law.8In this article, the aim is a closer look at the nuances and effects of procedural autonomy reasoning. …

The constitutional principle of the right to effective judicial protection within the European Union legal order is investigated, having gained fundamental significance through the case law of the Court of Justice of the European Union (CJEU) and codified in Article 47 of the Charter of Fundamental Rights of the EU as the essential procedural guarantee. The article analyzes the multilevel model of judicial protection, comprising national court systems functioning as «Union courts» and the centralized CJEU system. It is determined that the preliminary ruling procedure (Art. 267 TFEU) is the cornerstone for ensuring the uniform interpretation and application of EU law, serving as the primary means for citizens to indirectly bring cases concerning their rights to the highest jurisdictional level. Specific attention is paid to the mandatory principles governing national courts: the principle of supremacy, requiring the non-application of national rules conflicting with EU law; the principle of effectiveness, prohibiting national procedural rules from making the exercise of EU rights practically impossible; and the principle of equivalence, demanding the equal application of procedural rules to disputes based on national and EU law. Significant limitations on direct access for individual applicants to the CJEU through the action for annulment (Art. 263 TFEU) and the application of the «direct and individual concern» doctrine (Plaumann formula) are analyzed as a substantial barrier. Additionally, the doctrinal concept of estoppel in public international law and its potential as an auxiliary tool for ensuring procedural good faith (bona fides) in relations between Member States and in disputes concerning citizens’ rights are explored. It is concluded that the right to judicial protection for EU citizens is secured by a robust yet procedurally complex and distributed mechanism of judicial cooperation, whose effectiveness hinges entirely on the active role of national courts and their readiness to fully implement the obligations derived from Union law.

This new book aims to provide some insights on recent trends and patters in judicial dialogue between the Court of Justice of the European Union (hereinafter “CJEU”) and national courts (Constitutional Courts included).The book features seven contributions. Their order is not accidental: specific issues come after more general topics, these latter being dealt with within the first three chapters.The first article included in this book and written by Giuseppe Martinico serves as a relevant introduction to the subject-matter of this book. It aims at exploring the interesting issue of judicial application of the ECHR and EU law, in order to elucidate the vertical relationship between national judges (constitutional and common law alike) and these external legal sources.The second contribution is somehow related to the first one: Ioana Răducu discusses the dialogue between courts, and more precisely the way the former accept the decisions rendered by supranational courts and also the role played by the judicial dialogue in reducing the risk of conflicts between courts. Yet the emphasis placed by the author on this judicial dialogue is that of deference. The value of (judicial) dialogue in the EU, as discussed by the author, comes along with pragmatic advantages for both EU and domestic legal orders.The third chapter, authored by Juan A. Mayoral, approaches the issue of the use of preliminary ruling procedure and tries to establish determinants liable to explain differences in its use between new and old Member States. The value of this contribution lies especially in presenting original and comprehensive data on the use of preliminary references (1961-2011) in all 27 Member States and also in identifying differences in institutional dynamics at the national level.Giuseppe Bianco and Tatum Ragues present the interesting topic of balance between one fundamental freedom of the European Union (free movement of services) and fundamental rights, as it comes out from the approaches followed by the Court of Justice of the European Union in its rich case law. The authors emphasize the constitutional dimension of the principle of proportionality in the approach taken by the Court of Justice.Within the same preliminary ruling procedure, Ricardo Garcia Anton approaches in the fifth chapter of this book the role played by the Court of Justice in the field of indirect taxation. Two fundamental questions are explained here: the judicial dialogue between the European court and national courts and the role adopted by the Court of Justice. According to the author, within this field, the Court adopts a more hierarchical role, rather than the traditional cooperative one: “the traditional functions of the CJEU within the preliminary reference system are being replaced by those which belong to a national Supreme Court” (p 116). This paradigm shift is explored at length.The sixth contribution, written by Mihaela Vrabie, approaches the status of the Charter of Fundamental Rights of the European Union in the framework of the preliminary reference procedure, also concerning the much debated issue of the field of application of the Charter with regard to Member States.The final chapter introduces the parallel application of the Charter of Fundamental Rights and the European Convention on Human Rights by Romanian courts, as pointed out by certain preliminary references to the Court of Justice made by the former, but also in certain decisions by which courts rejected requests of the parties to make references to the Court of Justice. Certain patterns in that regard are approached.

This article aims to determine when the national authorities have the obligation to comply with EU fundamental rights, in the framework of administrative procedures carried out in the EU Member States. It also aims to determine the legal remedies available at national level in the context of judicial review in case of violation, by the national authorities, of EU fundamental rights guaranteed by the Charter of Fundamental Rights of the EU or as general principles of EU law. To this end, this study explains the impact of the legally binding EU Charter on public administration of the Member States and the field of application of the EU Charter at national level. The article also deals with the distinction between EU fundamental rights as primary EU law guaranteed by the EU Charter and EU fundamental rights as general principles of EU law. With reference to the judicial remedies available to national courts, the study outlines the effects of EU law (primacy of EU law, direct effect, direct application) in relation to the EU fundamental rights and the measures that can be adopted by the national courts when the action of the national administrative authorities is not compatible with EU fundamental rights. Finally, the article presents the most important findings concerning judicial protection of EU fundamental rights at the national level, especially from the perspective of the right to an effective remedy and to a fair trial stipulated by Article 47 of the EU Charter.

The main aim of the European Small Claims Procedure (ESCP) is to simplify citizens’ access to justice by accelerating adjudication in small value disputes in cross-border cases, decreasing the costs of the proceedings and simplifying the recognition and enforcement of ESCP judgements rendered in another Member State. Therefore, the ESCP is organised as a summary and formal procedure. In ESCP, national courts are bound to respect and promote fundamental rights and principles recognised by the Charter of Fundamental Rights of the European Union, including the right to a fair trial and the principle of an adversarial process. At the same time, it is particularly important that in the ESCP, the principle of effectiveness and effective judicial protection is respected. In their numerous judgments, the European Court of Justice, emphasises these very principles as being crucial for effective EU law enforcement, particularly in the context of consumer legal disputes where substantive and/or procedural law of the Union is applicable. The ECJ’s interpretation has often been that, because of effective protection of consumers, national courts must, under particular preconditions, ex officio apply the consumer law of the EU. The ECJ has defined a whole series of procedural rules to be complied with when applying EU consumer law ex officio. However, a question arises whether, due to specific procedural rules governing the ESCP, it is possible that national courts, when enforcing ESCP judgments, ex officio apply the EU consumer law. In the article various aspects of ex officio application of EU consumer law in the ESCP are considered, particularly in the context of the recent ECJ case law on ex officio application of EU consumer law in enforcement procedures. The main aim of the article is to analyse specific measures by which the European standards of effective court protection of EU consumer rights in the ESCP enforcement procedures can be ensured.

No cooperative scheme in EU law has displayed bigger tensions between mutual trust and fundamental rights protection than the EAW system. Despite the requirement developed by the CJEU for national courts to trust each other and recognise each other’s arrest warrants, the reality on the ground has shown high levels of distrust between national courts regarding Member States’ alignment with core EU values. In this contribution, we analyze how the CJEU has managed such tensions in the EAW system. To that effect, we first put the Court’s EAW case law into context by examining the broader language of mutual trust used by the Court in other fields of EU law. In doing so, we point out how the Court has espoused different levels of lawful distrust to be exercised in different circumstances under the scope of application of mutual trust. Given that broader context, it is contradictory for the Court to mainly view mutual trust as a requirement rather than a reality in need of permanent and continuing justification between national authorities. The latter conception of mutual trust is more apt to be the basis of EU horizontal cooperation, which must be value-based and sincere according to the Treaties. Therefore, we propose a bidimensional account of mutual trust as a legal principle, one that accommodates both trust and distrust as tools for managing the uncertainty and dynamic nature of trust-based cooperation. Finally, we explore how such account of mutual (dis)trust can be concretised by the Court and other political institutions.

The article examines the concretisation of criminal defence rights under EU law through a set of Directives designed to strengthen procedural safeguards. The article reviews the origins of the new measures, designed to provide a stronger basis for judicial cooperation based on mutual trust. It examines the shortcomings of the existing system of protection of fair trial rights under the European Convention on Human Rights and considers whether, and how, EU law can improve the situation. The article recognises that the new measures, monitored and enforced by the European Commission, provide new possibilities for civil society organisations. However, it argues that the main opportunity is for enhanced protection of defence rights in the national courts. The measures themselves, the Charter of Fundamental Rights and the possibility to seek timely guidance from the Court of Justice of the EU constitute new tools which, if national courts can be persuaded to use them, could appreciably advance fair trial rights protection in the EU. The experiment will reveal the usefulness of EU law as a driver of fundamental rights compliance in the post-Lisbon era.

After six decades of development of EU law, the concept of an ‘individual right’ under EU law is still evolving and diverging concepts of the notion of an individual right are in use. This is problematic since the notion of an individual right is central to the entire legal system. Under the principle of Ubi Ius Ibi Remedium the identification of the individual right grants the access to judicial protection before national courts and the Court of Justice of the EU (CJEU) including in the context of claims to damages for violations of EU law. The concept of an individual right defines and delimits of the scope of the possible direct effect of EU law in its Member States’ legal systems and is the distinctive characteristic distinguishing rights from principles under the EU Charter of Fundamental Rights. The concept of an ‘individual right’ under EU law is thus a central matter for EU constitutional law as well as EU administrative law. This article discusses various approaches to the concept and presents a model allowing for consistent interpretation and application of EU legal acts by Union bodies as well as by Member States legislatures, administrations and courts.

PRIMARY LAW AS A BASIS FOR INTERVENTION IN CONTRACTS AND CONTRACT LAW The theme which binds together the material traversed in this chapter is that EU internal market law acts as a restraint on contractual autonomy and on national contract law. It is primary EU law – the provisions of the Treaty and those of the Charter of Fundamental Rights – that is the subject of inquiry. There are measures of secondary legislation, mostly Directives, which are relevant to choice of a contracting partner and to contractual enforceability, such as those concerning equality and those concerning protection of weaker parties such as consumers and workers, and these will be mentioned in this chapter and examined more fully in those that follow. But Directives can be amended or withdrawn. They represent a political consensus assembled through the EU legislative process at a particular time that may not endure. As a matter of constitutional hierarchy, primary law – the Treaty and the Charter – is different. It may not be altered save in the exceptional circumstances which apply at times of Treaty revision, requiring unanimous support of the Member States and performed according to the procedures laid down by the Treaties and mandated by national constitutional law. Change of this type happens relatively irregularly and when it does happen, it is almost unknown for protection granted by EU law to be withdrawn. So the relevant rules of primary law are entrenched to a high degree. Moreover, Directives are limited in their impact on domestic legal proceedings. Where a Member State fails correctly to implement a Directive, the Directive is denied horizontal direct effect in legal proceedings before a national court – it may not be relied on as source of protective rights by a private party, including a contracting party, against another private party. No such principled constraint attaches to primary law, and indeed key Treaty provisions associated with free movement, competition and equal pay are capable of horizontal direct effect, as will be explained in this chapter. Therefore primary law – the Treaty and the Charter – constitutes the foundation of the EU legal order, and the concern of this chapter is to show how the relevant provisions surround and constrain contractual autonomy and contract law.

Focusing on the case law developed by the Court of Justice of the European Union since Van Gend en Loos, this article contends that three important shifts occurred concerning the effects of EU law in national courts since that case was decided. First, the existence of a particular category of effect) EU norms, which implies a process of selection among EU law provisions, is no longer as problematic as the method of comparison and combination of norms in judicial reasoning that has become a vehicle for the penetration of EU law in courts. Second, the possibility for individuals to claim (subjective) rights on the basis of the Treaty is overshadowed by questions concerning obligations imposed by the Treaty on individuals, and more generally, on the methods through which this horizontal effect occurs. Third, the duty for national courts to apply EU law provisions directly (direct enforcement) is now coupled with one prior question that these courts have to address, and which has become much more sensitive than before in view of the growing centrality of fundamental rights' protection in the EU system: the question of the applicability of EU and national (constitutional) law. Having examined these three shifts, the article concludes that it has become urgent to reconsider the effects of EU law in member states in order to avoid a decline of individual rights and freedoms resulting from EU law enforcement. Thus, Revisiting Van Gend en Loos leads to a reflection on the hypothesis, in which EU law should yield and national courts should be granted more discretion, when confronted with the resisting substance of national law (especially fundamental rights or freedoms protected by national constitutions).

Focusing on the case law developed by the Court of Justice of the European Union since Van Gend en Loos, this article contends that three important shifts occurred concerning the effects of EU law in national courts since that case was decided. First, the existence of a particular category of effect) EU norms, which implies a process of selection among EU law provisions, is no longer as problematic as the method of comparison and combination of norms in judicial reasoning that has become a vehicle for the penetration of EU law in courts. Second, the possibility for individuals to claim (subjective) rights on the basis of the Treaty is overshadowed by questions concerning obligations imposed by the Treaty on individuals, and more generally, on the methods through which this horizontal effect occurs. Third, the duty for national courts to apply EU law provisions directly (direct enforcement) is now coupled with one prior question that these courts have to address, and which has become much more sensitive than before in view of the growing centrality of fundamental rights' protection in the EU system: the question of the applicability of EU and national (constitutional) law. Having examined these three shifts, the article concludes that it has become urgent to reconsider the effects of EU law in member states in order to avoid a decline of individual rights and freedoms resulting from EU law enforcement. Thus, Revisiting Van Gend en Loos leads to a reflection on the hypothesis, in which EU law should yield and national courts should be granted more discretion, when confronted with the resisting substance of national law (especially fundamental rights or freedoms protected by national constitutions).

The respect of fundamental rights is one of the cornerstones of the European Union. It is a precondition of membership and it is listed among the core values of the Union. Still, as the recent controversies between the European Commission and some Member States revealed, EU law contains no effective mechanism to compel Member States to respect fundamental rights and freedoms in general. This paper presents and examines the EU architecture of fundamental rights protection. First, it demonstrates that the EU Charter of Fundamental Rights (the “EU bill of rights”) applies predominantly to EU institutions (that is, “federal” institutions); it applies to Member States only when they act as the EU’s “agents” (when they implement EU law). Although this approach may appear to be illogical, it does have its clear and legitimate reasons and it is far from unprecedented. In fact, it very much resembles the first century of the United States constitutional architecture. It is to be noted that though the EU does have the means to call Member States to account in case they violate fundamental rights, this action is a “nuclear bomb” and is hardly apt for handling human rights problems; not to mention that the application of this is almost politically unattainable. Second, it demonstrates how, in certain cases at least, the Commission “cooked from what it had” in that it used unconnected (that is, non-human-rights-related) provisions of EU law to shelter fundamental rights (e.g., the free movement principles of the internal market to protect minority rights or the prohibition of discrimination based on age to protect the independence of the judiciary). The use of the “supportive by-effects” of these economic rights is novel but not fully unprecedented. In fact, it resembles how the U.S. Congress used its commerce power to protect civil rights. Third, it argues that although the present architecture is certainly not the best of all possible worlds and the full federalization of human rights is a tempting option, the bifurcation of the “federal bill of rights” (the EU Charter of Fundamental Rights) has a solid basis and federalization is compelling only regarding those fundamental values and rights the violation of which qualifies as a “ground of divorce.” Accordingly, while the current system obviously calls for a reform, in terms of approach, this constitutional architecture has its merits in the context of what the multicolored European federation needs. On the one hand, the core of human rights protection cannot be subject to territorial variations and the violation of the nucleus of these rights cannot be justified with reference to constitutional identity. On the other hand, outside this sphere, to use the terminology of the European Court of Human Rights, European federalism demands respect for the Member States’ margin of appreciation.

Do Member States have to respect EU law, especially the Charter of Fundamental Rights (CFR) when they transpose EU directives into national law and thereby go beyond the minimum standard the directives require? Or do they act beyond the scope of EU law and are free to legislate within their national legal framework? The fact that directives’ objectives are binding only to a limited extent on the one hand and the limited competences of the EU on the other hand do not allow an unequivocal answer. We try to develop a system based on general principles of primary EU law and the widely accepted baselines of the interpretation of Article 51(1)(1) CFR, which also corresponds to the partially contradictory case law of the European Court of Justice (ECJ). We show that, in some cases, Member States must fully respect EU fundamental rights when transposing directives superobligatorily; in others they are entirely unbound, and in others only bound by the fundamental right specified by the implemented directive. To do this, we will first introduce the undisputed cases in which the Charter applies to national law before we outline various opinions on the CFR review of superobligatory transposition. In doing so, we will substantiate which of the suggested criteria are useful and propose a test to determine whether a specific CFR fundamental right applies to superobligatory transposition. We hereby also seek to explain the system behind the findings of the ECJ.