CYIL vol. 10 (2019)

ONDREJ HAMUĽÁK – MÁRTON SULYOK – LILLA NÓRA KISS CYIL 10 ȍ2019Ȏ • Firstly, it’s the doorway for EU supervisory capacity over conformity of the Member State’s action with the EU Charter requirements. It’s quite clear from the wording that the potential application of the EU Charter within an infringement procedure (under Articles 258-260 TFEU) 57 could only cover such actions of the Member State which appear within the scope of EU law. 58 On the other hand, a broad understanding of this scope, described above, gives the EU (i.e. the Commission) wide potential in using the EU Charter to supervise the states. 59 • Secondly, Article 51(1) introduces the EU Charter into the national practice of fundamental rights protection. From a substantive point of view, as a new source of fundamental rights review at the national level. The scope, limits, and interpretation of the particular EU Charter rights must follow the unified rules and national authorities must take due account of the authority of the CJEU. Some argue that “the reason why the EU has a human rights problem is neither local attitudes nor the fact that it lacks the power to protect fundamental freedoms […] effectively. The reason is that there is a significant tension between the federal values and certain local attitudes.” 60 Put more simply; the problem is that the Charter “has, in principle, no diagonal application: it is, in principle, addressed to EU institutions; [but also] it applies to the Member States only when they act as the EU’s agents (i.e., when they implement EU law).” 61 The fact, that the Charter is not applicable under all circumstances to the Member States, leads Csongor I. Nagy to claim that in reality it has no federal aspect, as such was never intended to be given to it. 62 We see this straightforward statement as very imperative, and not in the line with the fact that, even from the outset, the Charter had (at least) limited federal impetus in its DNA. Albeit relatively, the supranational catalogue of fundamental rights does reach the Member States as they are included in the list of ‘negative’ addressees, thus standing as those entities obliged to respect the Charter in implementing Union law. The Charter, as the catalogue of the ‘centre’, binds several parts of the Union (states) and attributes (in the spheres covered by its scope) one applicable set of human rights standards over the entire community. 63 Enforcement of EU Charter of Fundamental Rights vis-à-vis Union Institutions and Bodies. European Studies – the Review of European Law, Economics and Politics , 2018, vol. 5. 57 See further DE SCHUTTER, O. Infringement Proceedings as a Tool for the Enforcement of Fundamental Rights in the European Union . Open Society European Policy Institute, 2017. 58 See Opinion of AG Tanchev in C-619/18 Commission v Poland , ECLI:EU:C:2019:325. 59 See C-286/12, Commission v Hungary, ECLI:EU:C:2012:687; or Case C-619/18 Commission v Republic of Poland , ECLI:EU:C:2019:531. See ŠIŠKOVÁ, N. European Union Legal Instruments to Strengthen the Rule of Law, their Actual Reflections and Future Prospects. In ŠIŠKOVÁ, N. The European Union –What is Next? a Legal Analysis and the Political Visions on the Future of the Union . Koln: Wolters Kluwer Deutschland, 2018, pp. 136-162 or CIRCOLO, A. Il Rispetto Dei Valori Fondanti Dell Unione e l’Attivazione Della Procedura Di Controllo Alla Luce Delle Recenti Vicende Di Polonia e Ungheria. DPCE Online , 2019, vol. 38, no. 1, pp. 19-39. 60 NAGY, C. I. The EU Bill of Rights’ Diagonal Application to Member States. Comparative Perspectives of Europe’s Human Rights Deficit. In NAGY . C. I. (ed.) The EU Bill of Rights’ Diagonal Application to Member States . The Hague: Eleven, 2018, p. 7. 61 NAGY (2018), op. cit., p. 8. 62 The Charter mentions some rights that the EU has no competence to legislate on, e.g. the rights to marriage, to conscientious objection, to education, to conduct a business; workers’ rights, and rights concerning social welfare. See KNOOK, A. The Court, the Charter, and the vertical division of powers in the European Union. Common Market Law Review , 2005, vol. 42, no. 2, pp. 367-398. 63 HAMUĽÁK, O., MAZÁK J. The Charter of Fundamental Rights of the European Union vis-à-vis the Member States. Czech Yearbook of Public & Private International Law , 2017, vol. 8, pp.163, 164. See also EECKHOUT, P.

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