CYIL vol. 8 (2017)

ONDREJ HAMUĽÁK – JÁN MAZÁK CYIL 8 ȍ2017Ȏ Each generalization is accompanied by some degree of simplification. This is also true for the conclusions mentioned above. With regard to the complex content of the concept of EU law and to the complicated relationships which arise in its interpretation and application, we cannot exclude the possibility that some questions relating to the application of the phrase “when they are implementing Union law” are yet to arise; we can also hope that these questions will be answered in such a way that the scope of the said principles will be extended. However, as regards the conclusions stated above, we do not expect to see any significant shift in case law in the foreseeable future. 50 However, the correct interpretation of Article 51(1) of the Charter and clarification of its meaning is of crucial importance in proceedings before national courts. As is clear from the case law of the Court of Justice, incorrect interpretations can deprive individuals of the protection of fundamental rights to which they are entitled according to the Charter, or can lead courts to apply other human rights agreements mistakenly, even though the protection afforded by the Charter should apply. We cannot exclude the possibility that an incorrect interpretation of Article 51(1) of the Charter by a national court could result in the failure to examine the constitutionality of the national legal rule or another measure in the light of the Charter in national proceedings, even if such a rule or measure were covered by the phrase “when they are implementing Union law”. In a contrary situation, it is also conceivable that a national court could misapply a national legal rule and apply EU law on the basis of the Simmenthal doctrine even if the national legislation did not fall within the scope of EU law; similarly, a national court could also refer a question to the Court of Justice for a preliminary ruling but not explain why the national law or measure represents the implementation of EU law and therefore can and also must be examined in the light of the Charter. Indeed, there is no shortage of examples of the latter situation. However, without an explanation of why the Charter applies to particular measures of Member States, the Court of Justice declared that it lacked the competence to provide the requested interpretation of the Charter. 51 To sum up, the notion of ‘implementation of EU law’ covers a wide range of situations, i.e. the direct application of EU rules and the application and interpretation of national rules that serves as transposition of EU sources; moreover, it regulates the application of national rules which could lead to derogation of EU-based entitlements (most in the internal market) and, finally, it covers the application/interpretation of national rules that relate to specific areas of Union competence settled by concrete EU law provisions in national situations which are in close relation (exact proximity) with the EU rules. (C-390/12, EU:C:2014:281, para 33); Torralbo Marcos (C-265/13, EU:C:2014:187, para 29); Delvigne (C- 650/13, EU:C:2015:648, para 26); and Texdata Software (C-418/11, EU:C:2013:588, para 71-73). 50 See also MAZÁK, J., JÁNOŠIKOVÁ, M., DOBROVIČOVÁ, G., OROSZ, L., ANGELOVIČOVÁ, A., The Charter of Fundamental Rights of the European Union in Proceedings Before Courts of the Slovak Republic (December 1, 2016). Pavol Jozef Šafárik University in Košice, 2016, p. 38. 51 See, inter alia, orders in Cozman (C-462/11, EU:C:2011:831); Corpul Naţional al Poliţiştilor (C-434/11, EU:C:2011:830); Sindicato dos Bancários do Norte and Others (C-128/12, EU:C:2013:149); Sindicato Nacional dos Profissionais de Seguros e Afins (C-264/12, EU:C:2014:2036); and Sindicato Nacional dos Profissionais de Seguros e Afins (C-665/13, EU:C:2014:2327).

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