Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
Establishment of a set of criteria for what 'implementation of EU law' in the context of applicability of the Charter can mean.
Implementation of the law of the Union by national provision, when
Charter rights are not applicable, if union law does not impose any obligation on Member States with regard to the situation at issue in the main proceedings
The case concerned the compatibility of an Italian decree with the right to property enshrined in Article 17 of the Charter and proportionality as a general principle of EU law. The decree required a property owner to restore a site to its former state, because some works that had been undertaken were incompatible with the national landscape conservation rules applicable to the whole area. The national court had suggested that EU law was applicable to the case because landscape protection could not be seen to “stand alone as a concept separate from the protection of the environment”, as a number of EU rules based on the environmental competence of the Union would show.
The question refferred to the CJEU by the national court was whether Article 17 of the Charter and the principle of proportionality must be construed as precluding a provision of national legislation such as Article 167(4)(a) of Legislative Decree No 42/04, obliging the owner of a property which is protected by law not destroy or alter it in such a way as to impair the features of the landscape which are under protection, and to apply for landscape compatibility clearance before carrying out any alterations.
The Court however as a preliminary question had to decide, whether it had the jurisdiction to answer the question referred as there is not a sufficient connection between the national legislation at issue and EU law. And this became the decisive question in this case.
The Court reiterated that the concept of ‘implementing Union law’ requires a certain degree of connection above and beyond the matters covered being closely related or one of those matters having an indirect impact on the other. It enumerated a number of non-exhaustive criteria that should be examined:
'25. In order to determine whether national legislation involves the implementation of EU law for the purposes of Article 51 of the Charter, some of the points to be determined are
1. whether that legislation is intended to implement a provision of EU law;
2. the nature of that legislation and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; and also
3. whether there are specific rules of EU law on the matter or capable of affecting it (see Case C‑309/96 Annibaldi [1997] ECR I‑7493, paragraphs 21 to 23; Case C‑40/11 Iida [2012] ECR, paragraph 79; and Case C‑87/12 Ymeraga and Others [2013] ECR, paragraph 41).
26. In particular, the Court has found that fundamental EU rights could not be applied in relation to national legislation because the provisions of EU law in the subject area concerned did not impose any obligation on Member States with regard to the situation at issue in the main proceedings (see Case C‑144/95 Maurin [1996] ECR I‑2909, paragraphs 11 and 12).”
Case Study - Protection of Landscape and height of buildings
Applicability – Yes or no? Violation of right to property