The Charter of Fundamental Rights — General Introduction

The Charter of Fundamental Rights of the European Union has entered into force on December 1^st 2009 and became legally binding with equal legal value as the Treaties. Since then it is a decisive point of reference, when it comes to drafting new legislation as well as for the interpretation of existing laws both for European institutions and for Member States enforcing EU Law.

Article 6 of the Treaty on the European Union (TEU), in addition to giving the Charter equal legal value, refers to the European Convention on Human Rights (ECHR) as well as to other fundamental rights stemming from the constitutional traditions common to the Member States, both recognized as general principles of EU law.

It must also be underlined that Article 6 of the TEU affirms that the provisions of the Charter shall not extend in any way the competences of the Union as defined in the "Treaties" and similarly, Article 51 of the Charter states that the Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties. The power of EU institutions to promote and protect fundamental rights is therefore limited to the scope of power of these institutions established by the treaties. This has also to be taken into account, when reasoning about the applicability of Charter rights in a concrete case at the national level.

Many of the rights guaranteed by the Charter have their equivalents in the ECHR. Article 52.3. of the Charter governs the relationship betweenthe two sources of rights stating that in case of rights, which correspond to rights guaranteed by the [ECHR], the meaning and scope of those rights shall be the same as those laid down by the said Convention. The Convention is therefore treated as a minimal standard of protection — the EU can offer more in the area of fundamental rights protection, but never less.

The CJEU had referred to the ECHR already before the entry into force of the Charter as a source of common legal standards in relation to fundamental rights. The Court however does not limit the need for consistency to the written provisions but also takes into account the jurisprudence of the ECtHR when reasoning on the meaning of rights (see for example in J. McB. v. L.E., C-400/10 PPU). In some cases the Luxembourg court widened the scope of the protection in comparison to the Strasbourg one. For instance, in DEB, C-279/09 — after having engaged in a thorough analysis of the ECtHR’s case law — the CJEU mainly relied on Article 47 of the Charter to expand the right to legal aid also to legal persons and not only to natural persons, thus reaching an outcome that was wider than the ECtHR’s jurisprudence. In Volker (joined cases Volker und Markus Schecke GbR, C-92/09, Hartmut Eifert, C-93/09), where obligations to publish data were contested with a reference to data protection, the CJEU quoted several cases of the ECtHR to support a broad interpretation of Articles 7 and 8 of the Charter.

On the other hand also the ECtHR is bound by an equivalent clause in Article 53 of the ECHR and takes into account Charter rights and their interpretation by the Luxembourg Court. In Goodwin (Christine Goodwin v. The United Kingdom, appl. 28957/95) the Court referred to Article 9 of the Charter for a dynamic interpretation of Article 12 of the ECHR widening the concept of a married couple beyond that of a man and a woman.

Human Rights Protection at the National Level and the Charter

It is the obligation of states and their national legal systems to guarantee for the protection of fundamental rights. All EU Member States are parties to the ECHR and have fundamental rights protection guarantees enshrined in their constitutions. Charter rights and principles shall serve as an additional source of guidance and interpretation for Member States when implementing Union law (Article 51.1 of the Charter). When this exactly is the case, has been at the core of a range of preliminary questions referred by national courts to the CJEU in the course of the last ten years.

In principle, the Charter applies:

• when a Member State’s legislative activity and judicial and administrative practices fulfil obligations under EU law ("implementing EU law") [1]
• when a Member State authority exercises a discretion that is the outcome of EU law [2]
• when national actions dealing with the disbursement of EU funds may constitute an implementation of EU law. [3]

It is mostly the first situation that in practise causes difficulties. What does implementing EU law, within the scope of Article 51 mean? In a much disputed judgment delivered in 2013 the Court seemed to opt for a rather broad interpretation. In Åkerberg Fransson, C-617/10, a national regulation, which had not been enacted in order to implement EU law was challenged. The application of the regulation (Swedish income tax law), however, affected law in an area regulated by EU law (law on VAT). This, together with the obligation of Member States to counter fraud affecting the interests of the European Union (Article 325 TFEU), led the Court to the decision that where national legislation falls within the scope of European Union law, situations cannot exist, which are covered in that way by European Union law without those fundamental rights being applicable.

The Court however, narrowed this approach in subsequent case law. In Siragusa, C-206/13, it developed a standard on what implementing Union law by a national legislation means in concrete:

• National legislation relevant for the case aims at implementing EU law,
• the objectives pursued by national law have to overlap to a high extent with those covered by EU law — it is not sufficient, when national legislation merely indirectly affects EU law,
• "specific" rules of EU law on the matter do exist, which includes EU rules "capable of affecting" the situation at stake.
• Charter rights are not applicable, if Union law does not create any obligations for Member States relevant for the concrete case.

The "Siragusa Formula" has been confirmed in further case law, like Hernandez, C-198/13, and Torralbo Marcos, C-265/13. Still, it lacks sufficient clarity in order to be a real guidance for judges, who decide on the national level.