CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ DISTANCE BETWEEN EU LAW … and understanding of the term ‘implementing Union law’ plays a key role in exploring the Charters penetration into national processes of fundamental rights protection. The main problem related to the provision of Article 51(1) is the notion of ‘implementation’ and variations of its narrow or broad interpretation. As first distinguished by AG Sharpston in the Bartsch case, the protection of fundamental rights as a general principle of EU law has not operated in the abstract. 50 In her categorization, for EU law to govern, provisions of national (Member State) law must either be such provisions that implement EU law, or they should either permit derogation from EU law or otherwise fall within its scope. Using the term ‘implementation’ as the determinant of the applicability of the EU Charter in relation to Member States’ activities has opened the debate on whether the scope of the EU Charter differs to general scope of EU law. 51 In relation to the Member States, the Charter (unlike, for example, the European Convention for the Protection of Human Rights and Fundamental Freedoms, ECHR) is not universally applicable. Its applicability occurs, roughly speaking, where the conduct of a Member State has some EU dimension. The question of the boundaries of the Charter’s applicability vis- à -vis the Member States was among the most discussed issues in relation to the negotiation of the Charter, 52 and amounted to a significant CJEU in recent years related to the content of the term ‘implementation’ and determining the ‘scope of the application’ of the Charter in relation to Member States’ conduct. 53 To sum up, the notion of ‘implementing Union law’ covers: • a wide range of situations, i.e. the direct application of EU rules and the application and interpretation of national rules that transpose EU legal acts; moreover, • the application of national rules which could lead to derogation of EU-based entitlements (mostly in the internal market); and, finally, • the application/interpretation of national rules that relate to specific areas of Union competence settled by concrete EU law provisions in national situations which are in exact proximity 54 (closely related) to the EU rules. 55 As a gateway for EU law in the field of fundamental rights, Article 51(1) represents a double entendre in relation to Member States’ conduct. 56 50 AG opinion (Sharpston), C-427/06 Bartsch , ECLI:EU:C:2008:297, point 69. 51 See JENEY, P. The Scope of the EU Charter and its Application by the Hungarian Courts. Hungarian Journal of Legal Studies , 2016, vol. 57, no. 1. p. 61. 52 SCHÖNLAU, J. Drafting the EU Charter-Rights, legitimacy and process . London: Palgrave Macmillan, 2005. 53 See HAMUĽÁK, O.; MAZÁK, J. The Charter of Fundamental Rights of the European Union vis-à-vis the Member States – Scope of its Application in the View of the CJEU. Czech Yearbook of Public & Private International Law , 2017, vol. 8, pp. 161-172 or FONTANELLI, F. The Implementation of European Union Law by Member States Under Article 51(1) of the Charter of Fundamental Rights. Columbia Journal of European Law , 2014, vol. 20, pp. 194-247. 54 SPAVENTA, E. The interpretation of Article 51 of the EU Charter of Fundamental Rights: the dilemma of stricter or broader application of the Charter to national measures . European Parliament, 2016, p. 21. 55 Interestingly AG Sharpston attempted to bring forward a new approach, which she then, however, says the CJEU itself cannot take either. She posits that regarding the implementation of the Charter protection “in the long run, the clearest rule would be one that made the availability of EU fundamental rights protection dependent neither on whether a Treaty provision was directly applicable nor on whether secondary legislation had been enacted, but rather on the existence and scope of a material EU competence.” (see: AG opinion (Sharpston) C-34/09 Gerardo Ruiz Zambrano v Office national de l’emploi (ONEM), ECLI:EU:C:2010:560, point 163). 56 This section is based on our previous research. In details see: HAMUĽÁK, O. The Variations of Judicial MEASURING THE ‘EU’CLIDEAN

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