CYIL vol. 12 (2021)
CYIL 12 (2021) THE ROLE OF COURT OF JUSTICE OF THE EU in inter se agreements … organisations-of the Union are bound to comply with the CFREU only when they act in the exercise of powers established by the Treaties or even when they exercise powers conferred by international agreements between Member States. If the wording of the provision is ambiguous and does not offer decisive elements for resolving the question, the first hypothesis would seem to be supported by the explanations accompanying the text of the CFREU. The explanation concerning art. 51, moving from the principle reiterated by both paragraphs of the provision in question-for which the CFREU does not introduce new powers or tasks for the Union, states that “(…) the fundamental rights guaranteed in the Union produce effects only in the scope of the competences determined by the Treaties” 149 . Therefore, the institutions are obliged to” promote the principles enshrined in the CFREU only within the limits of these competences (…)” 150 . C-484/11, Boncea and others of 14 December 2011, ECLI:EU:C:2011:832, I-00198, par. 29, where according to the CJEU: “(…) a legal situation does not fall within the scope of Union law, the Court has no jurisdiction in this regard and the provisions of the Charter referred to above can not, by definition, justify competence (…) as was also noted by the sentence C-466/11, Currà and others v. Bundersrepublik Deutschalnd of 12 July 2012, ECLI:EU:C:2012:465, published in electronic Reports of cases, continuing with the sentence: C-73/13, T. (request for a preliminary ruling) of 8 May 2013, ECLI:EU:C:2013:299, published in electronic Reports of cases, where it has been stated that: “(…) Article 51 (1) of the Charter states that the provisions of the Charter shall apply to the Member States exclusively in the implementation of Union law (…)”. Order of the case: C-457/09, C. Chartry v. Belgian State of 1 st March 2011, ECLI:EU:C:2011:101, I-00819, noted that: “(…) limit has not been modified as a result of the entry into force on 1 December 2009 of the Lisbon Treaty, from which, pursuant to Article 6 (1) of the TEU, the Charter has the same legal value as the Treaties, which states that the provisions of the Charter do not in any way extend the competences of the Union defined in the Treaties (…)”. See in argument: HANCOX, E. The meaning of “implementing” EU law under Article 51(1) of the Charter: Åkerberg Fransson, in Common Market Law Review , 50 (5), 2013, pp. 1426ss. SÁNCHEZ, S. I. The Court and the Charter: The impact of the entry into force of the Lisbon Treaty on the ECJ‘s approach to fundamental Right, in Common Market Law Review , 49 (5), 2012, pp. 1566ss. BASNER, N. Investment protection in the European Union: Considering EU law in investment arbitrations arishing from intra-EU and extra-EU bilateral investment agreements , ed. Nomos & Dike, Baden-Baden, 2017, pp. 442ss. CRAIG, P. UK, EU and global administrative law: Foundations and challenges. Hamlyn Lectures , Cambridge University Press, Cambridge, 2015, pp. 498ss. BROBERG, M. P., FENGER, N. Preliminary references to the European Court of Justice , Oxford University Press, Oxford, 2014, pp. 192ss. GOUDAPPEL, F. A.N. J., HIRSCH BALLIN, E.M.H. Democracy and rule of law in the European Union: Essays in honour of JaapW. De Zwaan, ed. Springer, Berlin, 2015, pp. 36ss. NAKANISHI, Y. Contemporary issues in human rights law: Europe and Asia , ed. Springer, Berlin, 2017, pp. 42ss. TRIDIMAS, T. Fundamental rights, general principles of EU law and the Charter , in Cambridge Yearbook of European Legal Studies, 16 (3), 2014, pp. 364ss. DE VRIES, S., BERNITZ, U., WEATHERILL, S. The European Union Charter of Fundamental Rights as a binding instrument. Five years old and growing, Hart Publishing, Oxford & Oregon, Portland, 2015. CRAIG, P. European Union administrative law, op. cit., 149 CARDONNEL, P., ROSAS, A., WAHL, N. Media of constitutionalising the EU judicial system. Essays in honour of Pernilla Lindh , Oxford University Press, Oxford, 2012, pp. 292ss. PEERS, S., HERVEY, T., KENNER, J., WARD, A. The EUCharter of Fundamental rights: A commentary, Oxford University Press, Oxford, 2014, pp. 1414ss. VON DER GROEBEN, H., SCHWARZE, J., HATJE, A. Europäisches Unionsrecht, ed. Nomos, Baden- Baden, 2015, pp. 820ss. STERN, K., SACHS, M. Europäische Grundrecht Charta , ed. C.H. Beck, München, 2016, pp. 756ss. 150 Position taken by Advocate General Kokott on 26 October 2012 in case Pringle, op. cit., par. 176 and 191. According to the Advocate General, the provisions of the ESMwould not have harmed either the right to effective judicial protection ensured by Article 47 of the Charter, nor the principle of legal certainty, as complained by the appellant in the main proceedings.
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