CYIL vol. 8 (2017)

ONDREJ HAMUĽÁK – JÁN MAZÁK CYIL 8 ȍ2017Ȏ Member States as supported by CJEU case law before the adoption of the Treaty of Lisbon. By resolving this problem we will answer the question of the intensity of the federal impact of the Charter itself. This important query is covered by the next sections of this paper. It is worth mentioning here, that the wording of article 51(1) seemed to be stricter and narrowing the pre-Lisbon approach 12 to the applicability of EU fundamental rights standards on the acts of the Member States when speaking only about the “implementation”. 13 However, (not) surprisingly the Court of Justice has not followed the narrowing scenario and conversely offered the broader view that will be presented in this paper. 2. A Complex Picture of Applicability of EU Fundamental Rights Standards on the Actions of the Member States 2.1 Pre-Charter Situation The widening of the effects of EU fundamental rights standards to the conduct of the Member States is not a novelty or systemic revolution in EU law. Even before the adoption of the Charter, the Court of Justice recognized the applicability of EU fundamental rights standards (as unwritten general principles of law) to the selected activities of the Member States and recognised that national courts, administrative bodies and other bodies applying law must follow these principles in their decisions. EU law recognised certain situations where the Member States held the duty to respect supranational standards of fundamental rights protection: A. The basic form, i.e. the explicit situations where some EU legislation directly introduces a specific obligation to protect the fundamental right (typically in the area of anti- discrimination law or the general duty to ensure judicial remedies to protect individual rights stemming from EU law, e.g. the Johnston 14 or Defrenne 15 cases). B. The “agent” situations, i.e. those situations where Member States were implementing or applying a Union law. This so-called Wachauf situation 16 is interconnected with the phenomenon of decentralized governance when state authorities act essentially as an extended arm of the European Union. Weiler points out that in the background of this argument there is a need to use a single standard of European Union law in all states. 17 C. And a (most controversial) derogation model, i.e. the cases where the Member States (within their scope of discretion) derogate from the Internal Market rules (use permitted exemptions from the prohibition of restrictions on freedom of movement). This so-called ERT situation 18 differs from both former types. Here Member States apply their own law and do not behave as implementers of EU law acts. Still even 12 See section 2.1 of this paper. 13 See e.g. MCCRUDDEN, Ch., The Future of the EU Charter of Fundamental Rights. Jean Monnet Working Paper 10/01. Available at: http://www.jeanmonnetprogram.org/archive/papers/01/013001.html. Accessed 10 May 2017. 14 Johnston vs. Chief Constable of the Royal Ulster Constabulary (222/84, EU:C:1986:206). 15 Defrenne vs. SABENA (43/75, EU:C:1976:56). 16 Wachauf (5/88, EU:C:1989:321). See also Bosphorus vs. Minister for Transport, Energy and Communications and Others (C-84/95, EU:C:1996:312). 17 WEILER, J. H. H., The constitution of Europe. ‘Do the new clothes have an Emperor?’ and other essays on European integration . Cambridge University Press, 1999. 18 ERT (C-260/89, EU:C:1991:254). See also Familia press (C-368/95, EU:C:1997:325).

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