CYIL vol. 8 (2017)

ONDREJ HAMUĽÁK – JÁN MAZÁK CYIL 8 ȍ2017Ȏ Regarding the field of application of the Charter to the Member States, the Explanations state that: “…it follows unambiguously from the case-law of the Court of Justice that the requirement to respect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of Union law. … Of course, this rule, as enshrined in this Charter, applies to the central authorities as well as to regional or local bodies, and to public organisations, when they are implementing Union law.” The Explanation to the Article 51 directly recalls the pre-Lisbon case law of the Court of Justice, in particular the Wachauf and ERT cases and therefore clearly confirms the up-to-date developments. However, when speaking about the Member States’ actions “in the scope of Union law”, it opens the door for further (potentially) deepening interpretation. In the text below we deal with the main developments in this regard and offer the view of the main case law of the CJEU. 2.3 Guidelines and Explanations Presented by the CJEU First, it must be mentioned that existing post-Lisbon case law on the extent of the Charter’s applicability to the acts of the Member States clearly confirms the continuity and previous developments. The Court of Justice approved the applicability in the EU catalogue to the Wachauf as well as ERT situations. In connection with the first mentioned, the CJEU unambiguously upheld the Charter’s authority and emphasized that Member States have a duty to respect the Charter whenever they follow EU rules in their decision- making. Thus in the case N.S. and Others 23 the CJEU clearly prescribed the duty to follow Charter requirements when implementing EU law even when a Member State exercises its discretionary power. Recent case law also confirmed the ‘validity’ of a later (ERT) situation according to which Member States must respect the Charter rules even when they are derogating or restricting the individual rights stemming from EU law. 24 Here the CJEU somehow overcomes the restrictive notion which appeared during the work on the Charter’s text and invoking exclusion of the “derogative” situations. 25 Even though the wording of Article 51(1) of the Charter and the Explanations are to some extent a reaction to the case law of the Court of Justice from the pre-Lisbon period, the post-Lisbon case law of the Court of Justice does not completely follow these propositions and is not entirely in line with past developments. It imposes an obligation on the Member States to respect the fundamental rights not only when they are implementing EU law but also to a broader extent. One of the key examples where the Court of Justice upheld a broad interpretation of Article 51(1) is its judgment in the Fransson case. 26 In this case the Court of Justice answered in Proceedings before Courts of the Slovak Republic . Pavol Jozef Šafárik University in Košice, 2016, pp. 32-86. Available at SSRN: https://ssrn.com/abstract=2961156. 23 NS and Others (C-411/10, EU:C:2011:865, para 68). See also judgement C. K. and Others (C-578/16 PPU, EU:C:2017:127). 24 DEB (C-279/09, EU:C:2010:811). 25 KNOOK, A., The Court, the Charter, and the vertical division of powers in the European Union. Common Market Law Review , 2005, vol. 4l, p. 372; SARMIENTO, D. Who’s afraid of the Charter? The Court of Justice, National Courts and the New Framework of Fundamental Rights Protection in Europe. Common Market Law Review , 2013, vol. 50, pp. 1267-1304. 26 Åkerberg Fransson (C-617/10, EU:C:2013:105). This judgment is a very strong message to national courts of the EU. See MAZÁK, J., DOBROVIČOVÁ, G., OROSZ, L., JÁNOŠÍKOVÁ, M., Odkaz Súdneho dvora EÚ

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