CYIL vol. 10 (2019)

ONDREJ HAMUĽÁK – MÁRTON SULYOK – LILLA NÓRA KISS

CYIL 10 ȍ2019Ȏ

3.1 Who and When? The Charter and the ‘Implementation Dilemma’ By this time, it is overall knowledge that the EU provides a general framework 44 for the protection of (fundamental) human rights that the CJEU uses for interpretation. 45 Within this framework, the Charter 46 is an ex tunc applicable 47 binding source of primary law through its direct effect. However, the Charter does not create fundamental rights that are of general application towards and within the Member State in all cases. Neither does it extend the application of EU law 48 and, as the CJEU repeatedly stated, 49 it alone is not capable of establishing its own applicability. The scope of application of the Charter is defined in its Article 51, setting forth that [t]he provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law . They shall therefore respect the rights, observe the principles, and promote the application thereof in accordance with their respective powers. (emphasis added). In addition Article 51(2) – in reference to the TFEU – fixes the Charter in the EU legal order by mentioning that it “ does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.” Two essential questions arise from this set of rules for further progress in our analysis. First – in relation to Member States – the Charter is not universally applicable, but conversely its applicability is relativized by using the limiting phrase “ only when ”. Second, the definition conceptualize the values of European constitutionalism in a judicially enforceable manner.” See JAKAB, A. Application of the EU Charter in National Courts in Purely Domestic Cases. In JAKAB, A.; KOCHENOV, D. (eds.) The Enforcement of EU Law and Values . Oxford: OUP, 2017, pp. 252, 255-259. 44 The protection of human rights is a general principle of EU law . See: 29/69 Stauder , ECLI:EU:C:1969:57. In details see HAMUĽÁK, O., STEHLÍK, V. European Union Constitutional Law: Revealing the Complex Constitutional System of the European Union . Olomouc: Palacký University, 2013, pp. 139-146. 45 See: C-11/70 Internationale Handelsgesellschaft , ECLI:EU:C:1970:114, para 4; C-44/79 Hauer , ECLI:EU:C: 1979:290, para 15; C-4/73 Nold , ECLI:EU:C:1974:51, para 13; C-36/75., Rutili , ECLI:EU:C:1975:137, para 32. 46 The EU formed its own Charter of Fundamental Rights in July 2000. It was formally considered by heads of state in Biarritz summit (October 2000), and formally adopted by the European Council at the Nice summit in December 2000. It is legally binding since 2009, after the ratification of the Treaty of Lisbon. The rights identified in the Charter mainly overlap with the ECtHR. However, despite many examples of the CJEU referring to the ECtHR – and that all Member States are signatories of the Convention – there is no formal link between the EU and the Convention framework. (Cf. advisory opinions given by the ECJ and the CJEU on two separate occasions: 2/94, 2/13). 47 See: C-555/07 Kücükdeveci , ECLI:EU:C:2010:21. The facts underlying the dispute occurred before the entry into force of the Treaty of Lisbon, but the CJEU declared that Article 6(1) TEU provides that the Charter of Fundamental Rights of the European Union is to have the same legal value as the Treaties. The CJEU made no distinction that the dispute had occurred in 2006 which – according to Zsófia Varga (see VARGA Z. Az EU-jog alkalmazása, Kézikönyv gyakorló jogászoknak. Budapest: Wolters Kluwer Kft., 2017, p. 247.) means that the scope of the Charter is ex tunc . (See elsewhere: C-16/12 Hermes Hitel and Faktor , ECLI:EU:C:2012:426, point 15; C-5/12 Montull , ECLI:EU:C:2013:571, point 70; C-457/09 Chatry , ECLI:EU:C:2011:101, point 22. 48 Cf. e.g. the Explanations to the Charter. 49 C-265/13 TorralboMarcos , ECLI:EU:C:2014:187, point 30; C-258/13, Sociedade Agrícola e Imobiliária daQuinta de S. Paio, ECLI:EU:C:2013:810, point 20; C614/12 and C10/13 Dutka and Sajtos , ECLI:EU:C:2014:30, point 15; C332/13 Weigl, ECLI:EU:C:2014:31, point 14; C14/13 Cholakova , ECLI:EU:C:2013:374, point 30; C488/12 Nagy and Others , ECLI:EU:C:2013:703, point 17.

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