CYIL vol. 8 (2017)

ONDREJ HAMUĽÁK – JÁN MAZÁK

CYIL 8 ȍ2017Ȏ

1. Introduction Granting legally binding force to the Charter of Fundamental Rights of the European Union (the Charter) via adoption of the Treaty of Lisbon (by reference included in the 1 st paragraph of article 6 TEU) in 2009 brought significant changes (and challenges) within the EU legal system as a whole. 1 Owing to the Charter, the project of European integration entered a new stage and got a new image. 2 It is a tool for making fundamental rights more visible and therefore strengthening the legal certainty of addressees. 3 It is also the instrument for universalisation of fundamental rights since it formally associates all traditional generations of fundamental rights into the one legal source. 4 Further, it brought clear material constitutional rules defining the relationship between the individual and public authorities into the supranational constitutional system. 5 The Charter itself legitimises the EU public power in “black letter” understanding. Its active use as the source of legality review by the Court of Justice deepens this impact in the real world. 6 Moreover, from the perspective of constitutional symbolism, the Charter strengthens the so-called output democracy of the EU, which complements the increased role of principle 1 See in particular MAZÁK, J., JÁNOŠÍKOVÁ, M. et al., The Charter of Fundamental Rights of the European Union in Proceedings before Courts of the Slovak Republic . Pavol Jozef Šafárik University in Košice, 2016. Available at SSRN: https://ssrn.com/abstract=2961156. 2 KERIKMÄE,T. et al., Protecting Human Rights in the EU. Controversies and Challenges of the Charter of Fundamental. Rights . Springer, 2014. However, claiming that we do not take into consideration the latest development related to the Brexit issue. 3 The Charter fulfilled the requirement of improvement of legal certainty of the holders of fundamental rights by making these rights visible and manifest. It confirmed the attitude of the Court of Justice towards the fundamental rights from the previous decades. Nevertheless, it is true that a great deal made by the Court of Justice by introduction of the fundamental rights as general principles was always connected with the risk of uncertainty and unpredictability, which flow from the fact of the non-existence of a written source. The Charter is the tool for minimizing that uncertainty and this seems to be its crucial benefit. 4 The Charter, by its wide content, revolutionizes the classic approach to human rights, which used to be recognized by the separate documents in line with the theory of several human rights generations. The Charter abandons this traditional approach at least formally and recognizes civil and political rights as well as economic, social and cultural rights as part of one general human rights record. See KERIKMÄE, T., HAMUĽÁK, O., CHOCHIA, A., A Historical Study of Contemporary Human Rights: Deviation or Extinction? Acta Baltica Historiae et Philosophiae Scientiarum , 2016, vol. 4, pp. 98-115. 5 Contours of material constitutionality of the European Union are defined primarily by the system of protection of fundamental rights. The question of the role and place of fundamental rights within the European Communities and the European Union has undergone major developments during the history of integration, see ŠIŠKOVÁ, N., The process of constitutionalisation of the EU and related issues . Europa Law Publishing 2008. But it is non-disputable that only by adoption of the binding catalogue it reached the level of complexity and clarity. 6 DE BÚRCA, G., After the EU Charter of Fundamental Rights: The Court of Justice as a human rights adjudicator? Maastricht Journal of European and Comparative Law , 2013, vol. 20, pp. 168-184. As a very visible example of the real impact of the Charter one may recall the crucial decision of the Court of Justice in the case of Digital Rights Ireland (C-293/12, EU:C:2014:238), where the Court used the Charter as the main argument for the (surprising) invalidation of the so-called Data Retention Directive (2002/58/EC) as a whole. Another strong example is the Opinion on the Agreement on Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, (2/13, EU:C:2014:2454), where the Court of Justice found the incompatibility between the proposed agreement and EU law including the Charter (stating the doubts about sufficient protection of autonomy of Charter, see points 186-190).

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