CYIL vol. 8 (2017)

ONDREJ HAMUĽÁK – JÁN MAZÁK CYIL 8 ȍ2017Ȏ EU law. The matter therefore fell within the scope of application of Union law and criminal prosecution of tax evasion here was considered as the implementation of EU law within the meaning of Article 51(1) of the Charter. It follows from this in particular that the Court of Justice adheres to the extensive interpretation of the phrase “when they are implementing Union law.” This is essentially the same approach as is known from the case law of the Court of Justice applying general principles of law; this approach was based on the scope of the law of the Community/Union, i.e. on the examination of whether the legal situation under consideration fell within the scope of the law of the Community/EU. This understanding of the scope of applicability of the Charter to the Member States is also favoured by most doctrinal publications. 30 The judgment in the Fransson case brought a wide interpretation of the Charters’ impact on the conduct of the Member States. The Charter became a shadow of European Union law 31 and its applicability became somewhat unpredictable. It’s not surprising that the interpretation offered by the Court of Justice opened discussion about the very sensitive questions related to the problem of whether there is any autonomous space for Member States’ conduct which should be free of ‘testing by the Charter’ and what the definitive frontiers of the scope of the Charter are. 32 Spaventa points to a couple of risks connected with the broad application of the Charter to national measures, in particular the significant loss of national autonomy and sovereignty, 33 shortcomings to the notion of constitutional diversity, which forms part of national identity recognised by Article 4 (1) TEU and, finally, it may limit the efficiency of national tools of fundamental rights protection and minimize the role of national courts. 34 The difficulties result from the fact that within the national legal context everything is in some form affected by EU law: either through its influence, its requirements, and also through its effects. However, this would mean that the Charter should almost always apply. The case law of the Court of Justice is not in favour of this approach, although it does not provide definitive answers which would allow us to establish the fixed interpretation of Article 51(1) of the Charter. 30 For example, BENOIT-ROHMER, F., La charte des droits fondamentaux de l’Union européenne, Rec. Dalloz , 2001; ROSAS, A., KAILA, H., L’application de la Charte des droits fondamentaux de l’Union européenne par la Cour de justice: un premier bilan. Il Diritto dell’Unione Europea , 2001, vol. 16, pp. 1-9; KOKOTT, J., SOBOTTA, CH., Die Charta der Grundrechte der Europäischen Union nach Inkrafttreten des Vertrags von Lissabon. Europäische Grundrechte-Zeitschrift , 2010, vol. 37, pp. 265-271; FONTANELLI, F., The Implementation of European Union Law by Member States Under Article 51(1) of the Charter of Fundamental Rights. Columbia Journal of European Law , 2014, vol. 20, pp. 194-247; VAJDA, CH., The Application of the EU Charter of Fundamental Rights: Neither Reckless nor Timid? Edinburgh School of Law Research Paper No 2014/47. 31 LENAERTS, K., GUTIÉRREZ-FONS, J. A., The place of the charter in the EU constitutional edifice. In Peers, S., Hervey, T. (eds.), The EU Charter of Fundamental Rights. A Commentary , Hart Publishing, 2014, pp. 1600-1637. 32 FONTANELLI, F., Implementation of EU Law through domestic measures after Fransson: The Court of Justice Buys Time and “non-preclusion” Troubles Loom Large. European Law Review , 2014, vol. 39, pp. 782-800. 33 HAMUĽÁK, O., Lessons from the “Constitutional Mythology” or How to Reconcile the Concept of State Sovereignty with European Integration. Danube : Law and Economics Review , 2015, vol. 6, pp. 75-90. 34 SPAVENTA, E., The interpretation of Article 51 of the EU Charter of Fundamental Rights: the dilemma of stricter or broader application of the Charter to national measures . European Parliament, 2016, p. 33.

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