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The Interpretation of Art.51 Charter: Stricter or Broader Application of the Charter to National Measures?

This study critically assesses the extent of application of the Charter of Fundamental Rights (CFR) to national measures. It examines pre- and post-Charter case law, current case law, and petitions received by PETI. The study argues for a more courageous approach by the EU and CJ in applying the CFR.

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The Interpretation of Art.51 Charter: Stricter or Broader Application of the Charter to National Measures?

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  1. The interpretation of Art 51 Charter: stricter or broader application of the Charter to national measures?

  2. The aim of the study To assess critically the extent of application of CFR to national measures • Examines case law pre- and post-Charter • Examines current case law • Considers some of the petitions received by PETI • Argues for more courageous approach by EU and CJ

  3. Art 51 CFR  FRs apply to national measures when MSs ‘implement’ EU law; some MSs (e.g. UK) fear FRs might be gateway to impinge on MSs competences  Art 51 modified / Lisbon Treaty  stress on ‘respecting limits of powers of EU’ and Charter does not ‘extend’ application of EU law beyond EU powers  Recent case law more cautious

  4. Case law on application of Charter: Variable interpretation Expansive interpretation  strong EU interest/ internal market (e.g. VAT) Limited application to executing authorities  effectiveness of EU co- ordination (e.g. Asylum, EAW) Charter does not apply: • Siragusa test  FRs as instrumental to EU aims • Narrow interpretation citizenship

  5. Main problems with FRs in EU Weak protection in FRs sensitive areas (Asylum, EAW)  mutual trust presumes a certain level of FRs protection; no effective EU mechanism for FRs protection Citizens have an expectation that (at least when moving) they enjoy FRs protection as a matter of EU law ( petitions)

  6. Petitions raising FRs concerns 3 main groups of petitions: • no discernible link with EU law • potential connnection to EU law • relating to infringements of foundational principles (Art 2 TEU) COM approach is based on CJ EU jurisprudence  overall justifiable (with some exceptions)

  7. A more courageous approach? Generally FRs should be considered as aim in themselves  also enabling correct functioning of internal market Co-ordination cases  more careful scrutiny might lead EU / MSs to push for FRs protection (Art 51(2) CFR no bar) Citizenship cases  return to principled and constitutional interpretation

  8. Presentation by Professor Eleanor SPAVENTA Law School, Durham University (Logo) Policy Department Citizens’ Rights and Constitutional Affairs Responsible Administrators: Martina SCHONARD, Ottavio MARZOCCHI poldep-citizens@europarl.europa.eu

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