Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
Are the Charter’s provisions of Art. 25: The Union recognises and respects the rights of the elderly, and Art. 26: The Union recognises and respects the rights of persons with disabilities, ‘individually enforceable rights’ or rather ‘principles’ - policy optimization commands that need implementation?
Principles provide a different level of protection and have a different meaning than rights; they are rather understood as policy optimization commands and need implementation.
The CJEU established criteria for a direct effect (test).
Provision must be:
- intended to confer rights to individuals,
- clear and precise,
- unconditional.
The test must be carried out on a case by case approach.
The provisions of Art. 25 and 26 do not have such a character.
These provisions need implementation by other legislative and executive acts of the EU organs or Member States, when they are implementing Union law. In case of doubts as to the legal effect of principles the solution might be found in submitting a reference for a preliminary ruling to the Court of Justice of the EU (see Glatzel case 356/12).
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