CYIL vol. 8 (2017)

ONDREJ HAMUĽÁK – JÁN MAZÁK CYIL 8 ȍ2017Ȏ situation. It’s hard to find clear guidelines in the subsequent case law of the CJEU. The theoretical “Siragusa” test is not being used in a systemic way. The opposite is true. Actually the Court of Justice uses only some of the features or gives more emphasis and accent to some of them. 40 In fact, even quotations of the Siragusa case are very rare and incidental. 41 For the purposes of the correct interpretation and application of Article 51(1) of the Charter, it is possible to deduce some generalizations from the hundreds of judgments and orders of the Court of Justice in the post-Lisbon period. 42 The conclusions suggested are not, and cannot be, fixed criteria in considering whether the Charter applies in particular cases on the grounds of a Member State implementing EU law. However, these generalizations stem from relatively well-established case law and, therefore, could also be helpful for national courts. At the same time, such a generalization highlights some of the difficulties involved in accepting such criteria, an issue which will be explained further. In the first place, the phrase “when they are implementing Union law” should in any case be considered as equivalent of what is expressed in the Explanations as “when they act in the scope of Union law.” Both phrases have the same meaning. They are closely connected with EU law; the implementation of EU law and the scope of EU law are two sides of the same coin. This is the interpretative outcome reached in the judgment in Fransson. The basic objection against this interpretation is that it remains incomplete and repeats only what can already be found in, for example, the judgment in Karlsson, 43 the addition of action in the scope of EU law being only a partial explanation of the phrase “when they are implementing Union law”. In this context, it should be remembered that the case law of the Court of Justice, especially negative case law, also uses the phrase “where a legal situation does not fall within the scope of Union law.” However, this is only a variation of the phrase “when they act in the scope of Union law.” 44 Secondly, articles of the Charter are not capable of being applied on their own. 45 They can only apply to a specific case if at least one legal rule of EU law applies as a minimum sine qua non . It is irrelevant whether this other rule derives from primary or secondary law, or whether it was or was not properly implemented in a timely manner in the national law 40 It was pointed out that the CJEU is giving more emphasis to the “objectives“ notion and is open to cover the acts of Member States by the scope of the Charter, especially in situations when important interests of the EU are at stake, like in the Taricco case (C-105/14, EU:C:2015:555). See 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. 22. 41 Until May 2017 there were only 11 cases referring to the Siragusa case (see e.g. Milkova, C-405/16, EU:C:2017:198). 42 Which either interpret the phrase “when they are implementing Union law” in a dogmatic sense or, on the other hand, just technically test whether national legal situation in this particular case falls within the scope of EU law. 43 See judgment Kjell Karlsson and Others (C-292/97, EU:C:2000:202, para 37) which states that: “[i]n addition, it should be remembered that the requirements flowing from the protection of fundamental rights in the Community legal order are also binding on Member States when they implement Community rules . Consequently, Member States must, as far as possible, apply those rules in accordance with those requirements.” (Emphasis added.) 44 See orders in Sociedade Agrícola e Imobiliária da Quinta de S. Paio (C- 258/13, EU:C:2013:810, para 20); Dutka and Sajtos (C-614/12 and C-10/13, EU:C:2014:30, para 15); Weigl (C-332/13, EU:2014:31, para 14); and judgment in Torralbo Marcos (C- 265/13, EU:C:2014:187, para 30). 45 See orders in Semeraro (C-484/16, EU:C:2016:952, para 44); Pondiche (C-608/14, EU:C:2015:313, para 21); Aiudapds (C-520/15, EU:C:2016:124, para 20) etc.

170