CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION … of a Member State. Reflections on the autonomous application of the Charter, which would apply on its own without any connection with other legal rules of EU law, remain to date in the realm of theory 46 and are not supported by the case law of the Court of Justice. The clear refusal of the option that the provisions of the Charter could on their own serve as the basis for the jurisdiction of the CJEU is closely connected with Article 51(2) of the Charter and Article 6(1) TEU, both clearly stating that the Charter does not in any way extend the scope of EU law beyond the competences of the Union as defined in the Treaties. 47 Thirdly, this other legal rule of EU law must not only be interpreted in the case, but instead it must truly apply to the case. Unless this legal rule applies, it is not possible to apply articles of the Charter, because we cannot speak about the implementation of EU law in such a situation. Fourthly, the applicability of a legal rule of EU law other than the Charter must have a tangible and objectively ascertainable connection with the merits of the case (the dispute). In other words, such a legal rule should be of a fundamental relevance for the decision of the court and must create or at least co-create the legal basis for the decision of the court in the particular case. This criterion raises the greatest number of questions and confirms that the wording of Article 51(1) of the Charter has caused and will continue to bring about serious difficulties in interpretation. Conclusions From the case-law (before and after the Lisbon reform) follows a fairly wide range of understanding of the concept of ‘implementing’ of EU law by Member States, which creates the potential for wide impact of the Charter on the national practice. But the important finding is that the Charter cannot be used as the vehicle to widen the EU competences alone without any further relation to the existing scope of EU law. As the Court of Justice stated repeatedly, 48 the Charter (its provisions) alone is not capable of forming the basis for the jurisdiction of the CJEU and therefore is not capable of establishing its own applicability. Since the Charter entered into force, the Court of Justice has observed on a number of occasions that: “[t]he Court’s settled case-law indeed states, in essence, that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations. In this respect, the Court has already observed that it has no power to examine the compatibility with the Charter of national legislation lying outside the scope of EU law. On the other hand, if such legislation falls within the scope of EU law, the Court, when requested to give a preliminary ruling, must provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation is compatible with the fundamental rights the observance of which the Court ensures.” 49 46 DOUGAN, M., Judicial review of Member State action under the general principles and the Charter: Defining the “scope of Union law”. Common Market Law Review , 2015, vol. 52, pp. 1202-1243. 47 See orders Pardue (C-321/16, EU:C:2016:871, para 18); Balázs and Papp (C-45/14, EU:C:2014:2021, para 20) or Burzio (C-497/14, EU:C:2015:251, para 27). 48 Torralbo Marcos (C-265/13, EU:C:2014:187, para 30); 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:C:2014:31, para 14); Cholakova (C-14/13, EU:C:2013:374, para 30); Nagy and Others (C-488/12, EU:C:2013:703, para 17). 49 See judgments in Åkerberg Fransson (C-617/10, EU:C:2013:105, paras 19, 20 and 22); Pfleger and Others 3.

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