Judging the Charter

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

Introduction to the Manual

Nine years after the Charter of Fundamental Rights of the European Union has entered into force it is still not applied widely by legal practitioners at the national level. This is, on the one hand, due to the fact that the Charter does not entail almost anything completely new. The text in its preamble makes it clear that the Charter reaffirms, with due regard for the powers and tasks of the Community and the Union and the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice of the European Communities and of the European Court of Human Rights. The provisions of the Charter also, in no way, can extend the competencies of the EU.

National laws, when implementing national constitutions, the European Convention on Human Rights, the case law of the European Court of Human Rights and EU law should therefor, in principle, be in line with what the Charter guarantees for. Still, the Charter is more than just describing what is there insofar, as it has to serve as a point of reference for the interpretation of the very content of EU Directives and their legislative effects in Member States.

Having said that, other very important factors for not applying Charter provisions, are pertaining uncertainties in regard to when they should be applied, and when not. The case law of the Court of Justice of the European Union is not clear enough on this question, to make it an easy task to decide on.

In the course of the project "Judging the Charter" we had the opportunity to obtain the views of judges and other legal practitioners on why they apply the Charter and why they do not. Apart from the reasons mentioned above (the impression that national laws are in line with fundamental rights and insecurities in relation to Charter applicability) they underlined the following aspect: what lawyers need in order to be motivated to make use of the Charter, is to see that the Charter brings additional elements that would change legal evaluation of a particular case. In fact, one area of law, where the Charter has already made some changes in legal practise is the field of asylum and migration, and, specifically, questions in relation to asylum procedures.

This Manual aims to present and discuss the core aspects of the European asylum law and its interrelation with Charter rights, and to provide guidance for judges and other legal practitioners as well as for trainers of these target groups, on how to apply Charter rights and principles.

The Manual is composed of two parts. Part one provides for an overview of the legal system, whilst part two focuses on training materials and entails a range of case scenarios based on the jurisprudence of the CJEU. Those case studies can be used in training sessions as well as for self-learning. Further guidance and information also on other thematic areas can be found on the project website

We hope that this Manual will contribute to enhancing the knowledge about Charter rights and principles and to application of them in legal practise in the field of asylum and migration. And this will hopefully lead to raising the practical relevance of the Charter in the years to come — stressing the need to set fundamental rights at the core of any legal reasoning, including the sensitive field of asylum and migration.

Łukasz Bojarski and Katrin Wladasch