Judging the Charter

The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers

Field of Applicability

Applicability of Charter rights at the national level
Implementation of EU Law - Article 51/1

The provisions of the Charter are addressed to …
… the Member States only when they are implementing Union law.

  • respect rights
  • observe principles
  • promote the application thereof in accordance with respective powers
  • respect the limits of these powers (principle of subsidiarity)

Scope of EU law - Akerberg Fransson, C-617/10

National regulation, which had NOT been enacted in order to implement EU law was challenged

  • BUT applying the regulation (Swedish income tax law) also affected law in an area regulated by EU law (VAT law) and
  • AND obligation of MS to counter fraud affecting the interests of the European Union (Art 325 TFEU)

situations cannot exist where national legislation falls within the scope of European Union law without those fundamental rights being applicable


Siragusa Formula - Siragusa, C-206/13

Implementation of the law of the Union by national provision, when

  • it intends to implement EU law
  • the objectives pursued by national law are covered by EU law
  • national legislation not only indirectly effects EU law
  • there exist specific rules of EU law on the matter or are capable of affecting it

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


EU Coordination Mechanisms

Applicability, if necessary for guaranteeing effectiveness of EU provisions - Ideas behind:

  • Coordination mechanisms dependant on mutual trust between MS
  • Only effective, if all MS act based on the same understanding of adequate fundamental rights protection

Melloni, C-399/11

Once a fundamental rights dispute is exclusively governed by EU law - like the European arrest warrant

Article 53 does not in any case guarantee a supremacy of rights and freedoms protected under national constitutions, which establish a higher level of protection than the Charter

But compare Art 53 GRC: Charter must not be interpreted as restricting human rights and fundamental freedoms guaranteed by international treaties and/or MS‘ constitutions


Limitations of EU Fundamental Freedoms

Charter rights are applicable also

  • in cases of national derogations from free movement rules
  • In case a MS makes use of exceptions provided by Union law in order to limit one of the fundamental freedoms of the EU = implementing Union law in the meaning of Article 51/1
Charter Articles
Case Law