The scope of application of fundamental rights guaranteed by European Union law on member states' action. Some jurisprudential landmarks

Author:Constanta Matusescu
Pages:22-38
SUMMARY

In the European Union legal order, there exists a long standing problem to define in which circumstances the fundamental rights of the European Union have a binding effect on member states. The Court of Justice of the European Union has through its case-law tried to resolve this issue, establishing that fundamental rights guaranteed by the Union are intended to be applied in all situations governed by Union law. However, it is not always clear when and whether national authorities are acting within the scope of Union law. The jurisprudence, including the most recent case, maintains a number of ambiguities, particularly with regard to the applicability of EU fundamental rights to national measures which target a field also covered by the Union law, even if they do not intend to implement EU law. Making a brief overview of this jurisprudence, the paper focuses on identifying the major line of cases and the conditions under which a national measure is considered to fall within the scope of Union law by attracting the application of the Union’s standards of protection.

 
CONTENT
22 CONSTANȚA MĂTUȘESCU
THE SCOPE OF APPLICATION OF FUNDAMENTAL RIGHTS
GUARANTEED BY EUROPEAN UNION LAW ON MEMBER
STATES' ACTION. SOME JURISPRUDENTIAL LANDMARKS
Constana MTUŞESCU1
ABSTRACT
In the European Union legal order, there exists a long standing problem to define in which
circumstances the fundamental rights of the European Union have a binding effect on member states. The
Court of Justice of the European Union has through its case-law tried to resolve this issue, establishing
that fundamental rights guaranteed by the Union are intended to be applied in all situations governed by
Union law. However, it is not always clear when and whether national authorities are acting within the
scope of Union law. The jurisprudence, including the most recent case, maintains a number of
ambiguities, particularly with regard to the applicability of EU fundamental rights to national measures
which target a field also covered by the Union law, even if they do not intend to implement EU la w.
Making a brief overview of this jurisprudence, the paper focuses on identifying the major line of
cases and the conditions under which a national measure is considered to fall within the scope of
Union law by attracting the application of the Union’s standards of protection.
Keywords: Public Law, European Union Law, Fundamental Rights, General Principles of
Law, Charter of Fundamental Rights of the European Union, National Measures, Court of Justice of
the European Union
1. Introduction
In democratic systems governed by the rule of law, the exercise of all public
powers must be with respect for fundamental rights. Fundamental rights are thus
an essential element in the process of creating and implementing law rules.
Provided and guaranteed mainly by national constitutional provisions, the
protection of fundamental rights is now also the subject of mechanisms developed
at international and supranational level.
The respect of fundamental rights is one of the cornerstones of the European
Union (EU), becoming today a „finalité” for it2, which needs to be taken into account
1 Associate Professor, Ph.D., „Valahia” University of Târgoviste, Faculty of Law and Administrative
Sciences, Târgoviste, Romania, E-mail: constanta_matusescu@yahoo.com
2 H. Oberdorff, La reconnaissance des droits fondamentaux par l’Union européenne, in J. Ferrand &
H. Petit (eds.), L'odyssée des droits de l'homme: Fondations et naissances des droits de l'homme, L'Harmattan,
Paris, 2003, p. 368 and the following.
Law Review vol. III, Special issue 2017, pp. 22-38
The scope of application of fundamental rights... 23
at the level of law making and its application. It is included among the core values of
the Union, according to article 2 of the Treaty on the European Union (TEU),
representing a precondition of membership, according to article 49 TEU.
The European Union has progressively built its own standard of protection of
fundamental rights, first developed in the praetorian way (in the absence of express
provisions in the original Treaties), taking inspiration from international treaties
(in particular, the European Convention for the Protection of Human Rights and
Fundamental Freedoms signed in Rome on 4 November 1950 – ECHR) and national
constitutions, then to be concretized in a custom catalogue of rights contained in the
Charter of Fundamental Rights of the EU (CFR or Charter). Thus, it is well known
that starting with the judgments Stauder3 and Internationale Handelsgesellschaft4,
handed down in 1969 and 1974 respectively, the Court recognized fundamental
rights as part of the general principles of EU law. This held that fundamental rights
“inspired by the constitutional traditions common to the Member States” must be
ensured within the structures and objectives of the Community, and their observance
is guaranteed by the Court itself. Concerned about the emphasis on the autonomous
nature of the protection of the fundamental rights of the EU, the Court has
recognized in its subsequent jurisprudence many fundamental rights as principles
of EU law or, as expressed in doctrine as „a kind of unwritten bill of rights5, or
unwritten rules „all-pervasive in EU law”6.
The Court subsequently found that the obligation to protect fundamental rights
recognized at EU level rests not only with the Union’s institutions, but also with the
Member States „whenever they act within the scope of EU law”. In the case-law of
the Court this includes at least two situations7: when Member States implement or
apply provisions of EU law8 or when seeking to derogate from EU law on public
policy or other grounds as provided for by EU law itself (ERT line of cases9).
In the case Grant10, the Court explained the limits of the power of the Union to
act in the field of fundamental rights and deriving from its powers under the
Treaties, so that in Annibaldi11 it set a limit on ERT line of cases, in the sense that the
general principles of EU law do not apply to national measures which only indirectly
affect matters falling within the scope of EU law and which do not have the role of
implementing Union law. Therefore, in order to trigger the application of EU
3 Judgment of 12 November 1969, Stauder, Case 29/69, EU:C:1969:57.
4 Judgment of 17 December 1970, Internationale Handelsgesellschaft, C-11/70, EU:C:1970:114.
5 P. Craig, G. De Búrca, EU law: text, cases, and materials, Oxford University Press, Oxford, 2011.
6 K. Lenaerts, J.A. Gutiérrez-Fons, The constitutional allocation of powers and general principles of EU
law, 47 Common Market Law Review, Issue 6, 2010, pp. 1629–1669, spec. p. 1659.
7 X. Groussot, L, Pech, G. T. Petursson, The Scope of Application of EU Fundamental Rights on
Member States’ Action: In Search of Certainty in EU Adjudication, Eric Stein Working Paper 1/2011.
8 Judgment of 13 July 1989, Wachauf, Case 5/88, EU:C:1989:321.
9 Judgment of 18 June 1991, ERT, C-260/89, EU:C:1991:254.
10 Judgment of 17 February 1998, Grant, C-249/96, EU:C:1998:63.
11 Judgment of 18 December 1997, Annibaldi, C-309/96, EU:C:1997:631.
24 CONSTANȚA MĂTUȘESCU
fundamental rights, there must be a certain degree of connection/proximity between
the national measure in question and EU law.
After that the Maastricht Treaty (Art. F(2), after the Amsterdam revision Art. 6(2)
TEU) confirms the Court’s praetorian work, enshrining in primary law the general
principles of law as instruments for the protection of fundamental rights in the
European Union, the formal protection of fundamental rights in the EU advanced
in December 2000 by the proclamation of the Charter of Fundamental Rights of the
EU. With the coming into force of the Lisbon Treaty the Charter of Fundamental
Rights has also become formally binding on the EU (Art. 6(1) TUE), which implies
the existence of a binding catalogue of rights at the EU level12.
After Lisbon, the EU Treaty gives the Charter the first place among the sources
of fundamental rights protection, this place being already confirmed in the case
law of the CJEU and of the national courts. However, Article 6(3) TEU refers to the
fundamental rights, as guaranteed by the Convention for the Protection of Human
Rights and Fundamental Freedoms and as they result from the constitutional
traditions common to the Member States, as general principles of the Union law.
This suggests that the Charter must not be viewed in isolation but in the context of
the other sources of fundamental rights protection. While there is a consensus in
the doctrine that, although much of them have been codified in the Charter, general
principles of law still play a role as a source of EU fundamental rights13, some
authors argue that they should gradually becomes a subsidiary and complementary
source of fundamental rights, which should be used when it is necessary to
remedy the possible gaps/ limits of the Charter (which should be considered as the
„primary source”)14, while others argue that „the sources of fundamental rights
listed in Article 6 TEU should be understood as being in a non-hierarchical,
complimentary relationship”15.
Determining the relationship between the Charter and the general principles of
law is relevant, as will be emphasized below in relation to the jurisprudence of the
European Court of Justice, particularly as regards the determination for the scope
of the fundamental rights of the Union. This jurisprudence demonstrates that the
express provisions of the Charter are not considered as limiting the Court of
12 J.P. Jacqué, La protection des droits fondamentaux dans l’Union européenne après Lisbo nne, L’Europe
des Libertés, Revue d’actualité juridique, n°26, 2008, pp. 2-12.
13 E. Gualco, General principles of EU law as a passe-partout key within the constitutional edifice of the
European Union: are the benefit worth the side effects? Institute of European Law Working Papers,
University of Birmingham, 5/2016.
14 X. Groussot, L. Pech, Fundamental Rights Protection in the EU post Lisbon Treaty, The Robert
Schuman Foundation Policy Paper, European Issue n°173, 14th june 2010 (https://www.robert-
schuman.eu/en/doc/questions-d-europe/qe-173-en.pdf); M. Dougan, Judicial review of Member State
action under the general principles and the Charter: defining the „scope of Union”, 52 Common Market Law
Review, Issue 5, 2015, pp. 1201-1245.
15 H. Hofmann, C. Mihaescu, The relation between the Charter’s Fundamental Rights and the
unwritten general principles of EU law: Good administration as the test case, European Constitutional Law
Review, vol. 9, 2013, pp. 73-101.
The scope of application of fundamental rights... 25
Justice, which still calls on the general principles of law to extend the material
scope of the Charter, which gives it a significant margin of manoeuvre not only to
protect pre-existing rights but also to establish new rights16.
The system of protection of fundamental rights at EU level has been the subject
of numerous analyzes in the literature. If most of the works highlight the complexity
of this system, some authors focus on highlighting its composite character and the
relationships that are established between its various sources, within a „multi-level
constitutionality” under construction17, while others highlight rather the potential
federal effect of this system on the relationship between the Union and the Member
States18.
The most controversial and still unclear aspect is related to the precise scope of
application of the Union fundamental rights standards measures taken internally
by the Member States19. The recent jurisprudence of the Court, including that
relating to Romania, brings a number of clarifications in this respect. But they are
enough to give real guidance to national judges and to ensure the consistent
application of fundamental rights across the Union and its Member States? This
case-law raises at the same time a number of other questions on which we will turn
to less in what follows. Thus, it seems to suggest the Court's intention to move to a
functional approach to determination the scope of fundamental rights, which
derives from the need not to affect the effectiveness of EU law. According to the
Court, the objective of protecting fundamental rights in EU law is „to ensure that
those rights are not infringed in areas of EU activity, whether through action at EU
level or through the implementation of EU law by the Member States” and reason
for pursuing that objective is ”the need to avoid a situation in which the level of
protection of fundamental rights varies according to the national law involved in
such a way as to undermine the unity, primacy and effectiveness of EU law”20.
According to this approach, it is created a functional relationship or a link of
complementarity between the EU law and domestic measures, determining the
imposition of Union standards for the protection of fundamental rights on national
16 J.P. Jaque, op. cit., pp. 7-8.
17 G. Martinico, O. Pollicino, The interaction between Europe’s legal systems, Edward Elgar Publishing,
2012, p. 7; G. de Búrca, After the Eu Charter of fundamental rights: The Court of Justice as a human rights
adjudicator? Maastricht Journal of European and Comparative Law 20 (2), 2013, pp. 168-184.
18 P. Eeckhout, The EU Charter of Fundamental Rights and the federal question, Common Market Law
Review, vol. 39, 2002, pp. 945-994; C.I. Nagy, Do European Union Member States Have to Respect Human
Rights? The Application of the European Union's 'Federal Bill of Rights' to Member States, Indiana
International & Comparative Law Review, Vol. 27, No. 1, 2017; M. Dawson, The Governance of EU
Fundamental Rights, Cambridge University Press, 2017.
19 F. Fontanelli, The Implementation of European Union Law by Member States Under Article 51(1) of
the Charter of Fundamental Rights, Columbia Journal of European Law, Vol. 20, No. 2, 2014, pp. 194-247;
A. Rosas, Implementing EU law in the Member States: some observations on the applicability of the Charter of
Fundamental Rights, în L. Weitzel (coord.), Melanges en hommage a Albert Weitzel. L'Europe des droits
fondamentaux, Paris, Pedone, 2013, pp. 185-200.
20 Judgment of 6 March 2014, Siragusa, C-206/13, EU:C:2014:126, para. 31-32.
26 CONSTANȚA MĂTUȘESCU
measures wherever the application of national fundamental rights may affect the
effectiveness of EU law. On the way of this reasoning, the scope of EU fundamental
rights could be extended even beyond the scope of EU law itself, and covers also
areas pertaining to the exclusive competence of the Member States, leading in fact
to a harmonization of fundamental rights. This new approach by the Court can be
considered problematic both from a perspective of the fundamental principles
governing the relations between the Union and the Member States, but also from
the point of view of the possibility to ensure the highest standard of protection for
a given fundamental right.
2. The scope of application of EU fundamental rights - regulatory framework
and general jurisprudence
The control of compliance for the national public authorities acts with the
fundamental rights is in principle a matter for the Member States, in the context of
their own constitutional order and their international obligations (in particular those
deriving from the ECHR). However, given „the symbiotic relationship”21 between
the EU and national members’ legal orders, the fact that EU law is implemented in a
decentralised system by the member states makes the acts of the national public
authorities through which it ensures the domestic implementation of Union law (the
respective authorities acting on behalf of the Union, as its agents) should be subject
to the same rigor or control from the same source, namely the fundamental rights
guaranteed by the EU. The original responsibility of the Member States to ensure
respect for fundamental rights is thus transferred to the Union.
Since Wachauf decision of 198922 European Court of Justice has confirmed that
EU general principles apply to Member States when they „implement Community
rules”, Member States having to act so as to ensure „so far as possible” the protection
of fundamental rights.
Subsequently, the Court extended the scope of the Member States’ obligation
to comply with the fundamental rights of the EU, stating in its ERT decision of
199123 that Member States measures that do fall „within the scope of the treaties”
are bound to respect fundamental rights when restricting the four freedoms of the
Community law. Thus, the Member States autonomous actions are subject to the
obligation of respect for the fundamental rights of the Union (acts of national
authorities acting strictly on the basis of national law), which restricts the exercise
of an economic Treaty freedom and hence comes within the scope of EU law. It is
noted in the doctrine that, as opposed to the „implementation” used previously,
the term „scope of application” implies a major change: „the focus is not on the
21 F. Fontanelli, op. cit., p. 198.
22 Judgment of 13 July 1989, Wachauf, Case 5/88, EU:C:1989:321, para. 19.
23 Judgment of 18 June 1991, ERT, C-260/89, EU:C:1991:254, paras. 42-43.
The scope of application of fundamental rights... 27
aim or effect of the national measure (whether it implements EU law) but on the
objective overlap of regulatory regimes (whether the national measure operates
within the area affected by EU law)24”.
In the subsequent jurisprudence of the Court, until the entry into force of the
Charter, this hesitated between a narrower conception of the scope of fundamental
rights (based on Wachauf decision)25 and its broader conception (based on ERT
decision)26, the latter being still the majority.
The scope of the fundamental rights of the Union is today governed by the
provisions of Article 51(1) of the Charter of Fundamental Rights, which states that
its provisions „are addressed to the institutions, bodies, offices and agencies of the
Union with due regard for the principle of subsidiarity and to the Member States
only when they are implementing Union law”. At the same time, Article 51 (2) states
that „The Charter does not extend the field of application of Union law beyond the
powers of the Union or establish any new power or task for the Union, or modify
powers and tasks as defined in the Treaties”. This assertion, also found in Article 6
TEU, ultimately implies that the provisions of the Charter (or a certain fundamental
right) can not in themselves be invoked as the basis for the application of the
standard of protection of the fundamental rights of the Union. In order for it to
enable the possibility of human rights review on the basis of this, there must be
another rule of EU law engaged by acts of national authorities27.
The expression „only when they are implementing Union law” of Article 51(1)
normally refers to the narrower definition of the scope of the fundamental rights of
the Union stemming from the Wachauf decision, not from the broader category of
„the scope of EU law”, which has led to numerous doctrinal questions about the
possible modification (narrowing) of the scope of the Charter as compared to the
praetorian definition of the scope of the general principles of EU law. Confusion is
also being maintained by the explanations attached by the Praesidium to the
Charter28, in which, with reference to Article 51, it is stated 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
24 F. Fontanelli, op. cit., p. 202.
25 Judgment of 13 April 2000, Karlsson, C-292/97, EU:C:2000:202; Judgment of 14 July 2004, Graff,
C-351/92, EU:C:1994:293.
26 See, inter alia, Judgment of 29 Mai 1997, Kremzow, C-299/95, EU:C:1997:254; Judgment of 22
October 2002, Roquette Frère, C-94/00, EU:C:2002:603; Judgment of 12 December 2002, Rodríguez
Caballero, C-442/00, EU:C:2002:752.
27 C. Ladenburger, European Union Institutional Report, in REPORTS OF THE XXV FIDE
CONGRESS, 2012 (http://www.fide2012.eu/index.php?doc_id=88).
28 Explanations Relating to the Charter of Fundamental Rights, O.J. (C 303) 02, 2007. See also K.
Lenaers, The EU Charter of Fundamental Rights: Scope of Application and Methods of Interpretation, in
V. Kronenberger, M. T. D’Alessio, V. Placco (eds.), De Rome à Lisbonne: les juridictions de l'Union
européenne à la croisée des chemins. Mélanges en l'honneur de Paolo Mengozzi, Bruxelles, Bruylant, 2013,
pp. 107-143.
28 CONSTANȚA MĂTUȘESCU
the Member States when they act in the scope of Union law”, reference being made
to the Court’s jurisprudence on the various situations of linking the national law
with the EU law, including the ERT decision.
The Advocate General in case Scattolon29 sums up this dilemma very well, while
pointing out that „as yet the case-law of the Court provides no clear answer”: “While
those who favour a restrictive interpretation of the concept of implementation of EU
law submit that that concept refers only to a situation in which a Member State acts as
a servant of the Union, those who favour a broader view consider that that concept
refers more widely to a situation in which national legislation falls within the scope of
EU law”. Based mainly on the explanations of the Charter, as well as the effect of
weakening the level of protection of fundamental rights that would result from the
existence of two separate systems of protection of fundamental rights within the
Union, according to whether they stem from the Charter or from general principles of
law, it proposes an extended interpretation of Article 51(1) in the sense that the
provisions of the Charter apply to the Member States where they act within the scope
of EU law.
That interpretation was to some extent confirmed in the jurisprudence of the
Court in case N.S.30, this appreciated that a Member State when it is conferred
discretion whether or not to act by a Union law instrument and deciding whether
to exercise discretion „implements the Union law within the meaning of Article 6 TEU
and/or Article 51 of the Charter”. So, the scope of application of the Charter and
general principles seem to be considered as a unitary concept. At the same time, the
doctrine notes that with this decision a new category of national measures can be
identified, which could not be reduced to the typical implementation/derogation
model – those adopted in the exercise of a discretionary power expressly allowed
by a EU instrument “defining express boundaries in which the national lawmaker,
although outside the framework of transposition, establishes its own regulation”31.
The fact that Article 51(1) of the Charter also covers the scenario of the
derogation from the freedoms laid down in the Treaty, within the meaning of the
ERT jurisprudence, is confirmed in Pfleger, where the Court holds that “[t]he use
by a Member State of exceptions provided for by EU law in order to justify an
obstruction of a fundamental freedom guaranteed by the Treaty must [...] be
regarded [...] as ‘implementing Union law’ within the meaning of Article 51(1) of
the Charter”32.
29 Opinion of Advocate General Yves Bot delivered on 5 April 2011 in Case Scattolon, C-108/10,
EU:C:2011:211, para. 117.
30 Judgment of 21 December 2011, N.S. and Others, Joined cases C-411/10 and C-493/10,
EU:C:2011:865, paras. 68-69.
31 M. Safjan, Areas of Application of the Charter of Fundamental Rights of the E uropean Union: Fields of
Conflict? EUI Working Paper No. 22, 2012, p. 13.
32 Judgment of 30 April 2014, Pfleger and Others, C-390/12, EU:C:2014:281, para. 36.
The scope of application of fundamental rights... 29
3. Hesitant/sinuous jurisprudence of the Court regarding the condition
of a sufficient connection with the Union law
Notwithstanding the above, the exact limit between what enters into and what
does not fall within the scope of European Union law is far from clear cut by the
Court. Its jurisprudence, including the most recent case, maintains a number of
ambiguities, particularly with regard to the applicability of EU fundamental rights
to national measures which target a field also covered by the Union law, even if
they do not intend to implement EU law. There is no a clear line, a comprehensive
criterion for assessing situations which can be considered as relating to the Union
law, thus falling within the scope of EU law, the Court adopting a case-by-case
approach, using various (sometimes contested) grounds to determine whether or
not the Union’s fundamental rights are applicable33.
In the case Iida34 (which at the same time makes reference to the Annibaldi
judgment35), the Court has proposed a number of elements which may be used to
determine whether a national measure falls within the scope of the fundamental
rights guaranteed by the Union: „whether the national legislation at issue is
intended to implement a provision of European Union law, what the character of
that legislation is, and whether it pursues objectives other than those covered by
European Union law, even if it is capable of indirectly affecting that law, and also
whether there are specific rules of European Union law on the matter or capable of
affecting it”. It draws attention the reference to the objectives pursued by the
national legislation, the Court suggesting that if they are not the same as those
covered by European Union law, even if Union law is indirectly affected by the
national measure, the Charter does not apply36.
Moving away from the Annibaldi-Iida line of cases, in the case Åkerberg Fransson37
the Court offered a very broad interpretation of the connection which must exist
between a national measure and EU law to determine the applicability of the
fundamental rights of the Union. It sets out, as a starting point, the overlap between
the scope of EU law in general and the fundamental rights of the Union: “Since the
fundamental rights guaranteed by the Charter must [...] be complied with where
national legislation falls within the scope of European Union law, situations cannot
exist which are covered in that way by European Union law without those
fundamental rights being applicable. The applicability of European Union law entails
applicability of the fundamental rights guaranteed by the Charter”38.
33 D. Sarmiento, 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, vol. 50, 2013,
pp. 1267-1304.
34 Judgment of 8 November 2012, Iida, C-40/11, EU:C:2012:691, para 79.
35 Judgment of 18 December 1997, Annibaldi, C-309/96, EU:C:1997:631.
36 F. Fontanelli, op. cit., p. 204.
37 Judgment of 26 February 2013, Åkerberg Fransson, C-617/10, EU:C:2013:105.
38 Judgment Fransson, para. 21.
30 CONSTANȚA MĂTUȘESCU
It is quite clear from this context that the equivalence between the scope of the
Charter and that of the fundamental principles and the fact that the Court does not
feel limited by the expression „implementation” used in Article 51(1) of the Charter to
verify compliance with the provisions of the Charter of a national measure which
does not constitute a strict implementation of the Union law.
Although the Advocate General has suggested that there is too little link
between EU law and the national measure concerned in the present case in
determining the incidence of the EU standard of protection of fundamental rights
(namely Article 50 of the Charter, which refers to the ne bis in idem principle39), the
Court considered that the measure at issue constituted an implementation of
Union law (the VAT Directive) within the meaning of Article 51(1) of the Charter.
According to the Court, the fact that the national provisions (relating to “the
application of fiscal sanctions and prosecution for tax fraud”) were not adopted to
transpose the Directive is irrelevant, since „its application is designed to penalise
an infringement of that directive and is therefore intended to implement the
obligation imposed on the Member States by the Treaty to impose effective penalties
for conduct prejudicial to the financial interests of the European Union”40.
Besides the various contradictions and doubtfulness of Fransson decision,
which is broadly outlined in the doctrine41, we can see that it does not bring much
additional clarification compared to case law based on general principles of law.
By suggesting that the existence of an obligation imposed by the Union law on the
Member States is sufficient for the application of the Charter, it does not provide a
decisive criterion for assessing the link which must exist between those obligations
and national measures. Affirming the objective criterion of overlapping between
the scope of the Union law and that of the Charter, the Court also refers, in quite
vague terms, to the subjective criteria linked, first, to the interest of the Union or
the objectives pursued by it (VAT collection and need not to affect the effectiveness
of EU law) and on the other hand, the subjective intention of the national
legislature to use certain measures to implement EU law.
Notwithstanding the questionable nature of the factors which, in the Court’s
view, justify the link between the national rule and the law of the European Union,
Court itself effort to identify such factors show that it did not envisage an approach
involving the applicability unconditionally of the fundamental rights of the Union
of any national measure intervening in a normative space regulated by EU law.
Such an approach, which would bring purely internal issues within the scope of
the Union law and under the Charter, would be in contradiction with the system of
39 See Opinion of Advocate General Cruz Villalón delivered on 12 June 2012, EU:C:2012:340,
point 57.
40 Judgment Fransson, para. 28.
41 F. Fontanelli, op. cit., pp. 216-218; B. van Bockel, P. Wattel, New Wine into Old Wineskins: The
Scope of the Charter of Fundamental Rights of the EU After Åkerberg Fransson, European Law Review 38
(6), 2013, pp.866-883 (at 866-868).
The scope of application of fundamental rights... 31
competence allocation in the EU and would contradict Article 51(2) of the Charter,
which states that it can not extend the powers of the Union42.
The post-Fransson case law on the scope of the fundamental rights of the Union
is at least sinuous43. If in a number of cases it confirmed the extensive approach
experienced in the Fransson44, in others the Court returned to its previous
jurisprudence to impose a more restrictive interpretation of the condition relating
to the link between national measures and European Union law. An exemplary
case for this group of cases is Siragusa45, where it considered that although there is
a certain link between the national rule in question (national conservation rules)
and EU law (environmental protection rules), this link is not enough to trigger the
application of the Charter. According to the Court, „[. . .] the concept of ‘implementing
Union law’, as referred to in Article 51 of the Charter, requires a certain degree of
connection above and beyond the matters covered being closely related or one of
those matters having an indirect impact on the other”46. Pursuant to Annibaldi-Iida
line of cases, it proposes the same list of elements that can be taken into account
„[i]n order to determine whether national legislation involves the implementation
of EU law for the purposes of Article 51 of the Charter”: „[w]hether that legislation
is intended to implement a provision of EU law; the nature of that legislation and
whether it pursues objectives other than those covered by EU law, even if it is
capable of indirectly affecting EU law; and also whether there are specific rules of
EU law on the matter or capable of affecting it” 47.
Another argument retained by the Court to justify the non-application of the
Charter is that EU law in the subject area „did not impose any obligation on the
Member States with regard to the situation in issue in the main proceedings”48.
Last but not least, the Court has held that the application of EU fundamental
rights to national measures pursues the objective of ensuring the “unity, primacy
and effectiveness” of EU law. Consequently, when „nothing in the order for
reference to suggest that any such risk is involved”, is no need for the Charter to
apply49.
42 A. Rosas, The applicability of the EU Charter of Fundamental Rights and the National Level, European
Yearbook on Human Rights, 2013, pp. 97-112.
43 S. Platon, Applicabilité et inapplicabilité de la Charte des droits fondamentaux aux Etats: la ligne
jurisprudentielle sinueuse de la Cour, Journal d'actualité des droits européens, 7 mai 2014 (http://revue-
jade.eu/article/view/596).
44 See, inter alia, Judgment of 26 September 2013, Texdata Software, C-418/11, EU:C:2013:588;
Judgment of 17 December 2015, WebMindLicenses, C-419/14, EU:C:2015:832; Judgment of 16 May
2017, Berlioz Investment Fund, C-682/15, EU:C:2017:373.
45 Jugment of 6 March 2014, Siragusa, C-206/13, EU:C:2014:126.
46 Judgment Siragusa, para. 24.
47 Judgment Siragusa, para. 25.
48 Judgment Siragusa, para. 26, with reference to Judgment of 13 June 1996, Maurin, C144/95,
EU:C:1996:235, paras. 11-12.
49 Judgment Siragusa, paras. 31-32.
32 CONSTANȚA MĂTUȘESCU
In the context of the abundance of arguments used by the Court to justify the
non-application of the Charter, while some authors consider that it impossible to
discern a clear test, or even to determine which among them would be sufficient,
taken separately50, others still identify as the first criterion the intensity of the link
between the national rule and the EU law, considering that only if that link is too
weak, the argument relating to the risk of affecting the effectiveness of EU law
should be used to determine the applicability of the Charter51. However, with
regard to the Fransson judgment, the arguments used in Siragusa make it possible
to identify more consistent criteria in relation to which the scope of the
fundamental rights of the Union can be determined than by simply referring to an
approximate general rule.
There is a consensus on the fact that, proving the Court's „pragmatism”52, the
formula used in Siragusa to justify the non-application of the Charter is a reaction
to the fears expressed by some national courts following the adoption of the
Fransson judgment53, transmitting a clear signal that the fundamental rights
protection in those situations which are not (very) directly connected with EU law
remains the primary responsibility of the domestic legal system and its courts,
”potentially at the expenses of the protection of citizens' fundamental rights”54.
However, the subsequent application of the test proposed in Siragusa to
determine the link between the national rule and the EU law has proved to be
extremely flexible. It seemed obvious that they are only indicative, not exhaustive
or cumulative criteria, to be applied according to the context of the case in
question. For example, if we refer only to the case related to Romania, the criterion
of the correspondence between the objectives pursued by the national regulation
and those of the specific provisions of the EU law seem to be of relative importance.
In case Florescu55, the fact that the national measure at issue (the prohibition on
cumulating of the pension with salary in the public sector under Law no. 329/2009)
pursues the same objectives as those of the Union law (Council Decision 2009/
458/EC of 6 May 2009 granting mutual assistance to Romania and the Memorandum
of Understanding) is the decisive criterion for determining the applicability of the
Charter (Article 17 on property rights), even if the Union law documents in question
leave Romania room for manoeuvre to decide on the measures which are most
50 F. Fontanelli, op. cit., p. 242.
51 S. Platon, loc. cit.
52 F. Fontanelli, op. cit., p. 246.
53 See Judgment of 24 April 2013 of the German Federal Constitutional Court (the
Bundesverfassungsgericht/BverfG), docket number 1 BvR 1215/07, available at http://www.jusline.de/
index.php?cpid=8d9dec3ece36c05c3417 a89eec877615&feed=153512.
54 E. Spaventa, 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 Study, PE 556.930,
Publications Office of the EU, 2016, p. 22.
55 Judgment of 13 June 2017, Florescu and others, C-258/14, EU:C:2017:448, paras. 47-48.
The scope of application of fundamental rights... 33
appropriate to ensure compliance with those commitments. In Cldraru56,
concerning the implementation of Framework-Decision 2002/584 on the European
arrest warrant, the correspondence between the objectives pursued by the national
measure and those of the Union legislation is not required. So, even though the
European arrest warrant does not in any way engage with the determination of
standards for the execution of imprisonment penalties or detention conditions,
Member States must take care that detention conditions are not contrary to the
prohibition of inhuman and degrading treatment in Article 4 of the Charter.
4. The applicability of the fundamental rights enshrined as general
principles of the Union law. Case Ispas (C-298/16)
The case Ispas57, having the subject a request for a preliminary ruling formulated
by the Cluj Court of Appeal concerning the application of the national rules of the
Fiscal Procedure Code on the individual right to defence in a procedure for
determining and collecting VAT, appeared to be the perfect occasion for the Court
to clarify some relatively ambiguous issues in its jurisprudence: the relationship
between the rights enshrined in the Charter and the general principles of law
(namely, the right of access to the file, guaranteed by Article 41 (2) (b) of The
Charter and the general principle of EU law of respect for the rights of the
defence), on the one hand, and the intensity of the link to be established between
the national rule relied on and the EU law in order to bring the Union standard of
protection of fundamental rights, on the other hand.
At least in relation to the second of these issues, the judgment of the Court of 9
November 201758 not only fails to meet expectations, but, through the minimalist
explanation, it induces a certain degree of perplexity, proving that, at least in the
certain fields (such as VAT, which is subject to harmonization), the Fransson
generalist approach to the scope of the fundamental rights of the Union (with all its
ambiguities), which I thought could have occurred after the Siragusa jurisprudence,
remains viable. Although it follows the conclusions of its Advocate General, this
Court’s minimalism contrasts with its position, which, underlining the existing
uncertainties about the two above-mentioned issues has, nevertheless, engaged in
a wide-ranging analytical exercise59.
Thus, although the question raised by the national court concerned the extent
to which a person may request access to the file/documentation in the national tax
procedure, without identifying any explicit EU law provision that would specifically
provide for any such obligation on the part of the Member States, the Court has
56 Judgment of 5 April 2016, Aranyosi and Cldraru, C-404/15 and C-659/15 PPU, EU:C:2016:198,
paras. 84 and 88.
57 Case C-298/16, Teodor Ispas, Andua Ispas v Direcia General a Finanelor Publice Cluj.
58 Judgment of 9 November 2017, Ispas, C-298/16, EU:C:2017:843.
59 See Opinion of Advocate General Michal Bobek delivered on 7 September 2017, EU:C:2017:650.
34 CONSTANȚA MĂTUȘESCU
held that this situation is subject to EU law, attracting the application of
fundamental rights guaranteed by the Union. To conclude this, the Court does not
retain any specific provision in the Union law, but refers generally to the VAT
Directive60, stating that „the general obligations ensuing from that directive are
easily identifiable”61. Referring to Åkerberg Fransson’s judgment, it states that the
situation in question must be examined in the light of the general principle of EU
law of respect for the rights of the defence, which „applies in circumstances such as
those at issue in the main proceedings in which a Member State, in order to comply
with the obligation arising from the application of EU law to take all legislative and
administrative measures appropriate for ensuring collection of all the VAT due on
its territory and for preventing fraud (...), submits taxpayers to a tax inspection
procedure”62.
Unlike Fransson’s decision, in which he sought to identify provisions of the
VAT Directive which could substantiate the obligation incumbent on the Member
States, and in doing so also referred to the principle of loyal cooperation enshrined
in Article 4 (3) TEU63, in Ispas the Court does not do it, not even in the sense
proposed by Advocate General, which suggested that the procedural element in
question, namely the access to the administrative file or the documents contained
therein in the context of a VAT procedure conducted at national level, may be
covered by the concept of „correct collection of VAT” under Article 273 of the VAT
Directive64.
Similar to those retained in Fransson with regard to the applicability of the
Charter, the identification of obligations, even of a general nature, imposed on
Member States by Union law appears to be a sufficient condition for determining
the applicability of fundamental rights enshrined as general principles. The lack of
indications as to the intensity of the link to be established between those
obligations and the national measures in question, that is to say, the degree to
which they determine the actions of the Member States, can be interpreted as
bringing any national rule relating to that matter, even if not specifically adopted
for that purpose, within the scope of European Union law. By pointing out that
such an interpretation could lead to even absurd situations where purely internal
situations, including the institutional structure, would be included in the scope of
60 Council Directive 2006/112/EC of 28 November 2006 on the common system of value added
tax (OJ 2006 L 347, p. 1)
61 Judgment Ispas, para. 23.
62 Judgment Ispas, paras. 27-28.
63 Judgment Åkerberg Fransson (C-617/10, EU:C:2013:105), para. 25.
64 Opinion of Advocate General Bobek, point 39. According to him (point 68 of the Opinion),
„[a]s a matter of fact, a tax inspection aimed at verifying whether or not a person became subject to
VAT and whether its commercial transactions are duly documented is, on a purely textual basis, no
more remote from the wording of Article 213(1) and Article 242 of the VAT Directive than ‘tax
penalties and criminal proceedings for tax evasion’ are from the wording of Article 2, Article 250(1)
and Article 273 of the VAT Directive”.
The scope of application of fundamental rights... 35
the EU law, Advocate General Bobek suggests that there is a limit to this broad
approach to the definition the scope of the Union law, in the form of the regulation
„reasonable functional necessity”, according to which a national rule whose adoption
and operation „is not reasonably necessary in order to enforce the relevant EU
law” do not fall within the scope of the Union law 65. And this time the Court
prefers not to engage in such a theoretical exercise, which perpetuates the state of
uncertainty and leaves the national courts without too much guidance on how to
address the situations in which the internal measures concerned, although
intervening in a domain regulated by EU law, have a poor connection with it.
The Court has held that the obligation to observe the rights of the defence, in
the sense that the addressees of the decisions which have a significant effect on
their interest in making their point of view of the matters which the administration
intends to base its decision, it is for the Member States’ administrations when they
take decisions which come within the scope of EU law, even if the EU legislation
applicable does not expressly provide for such a procedural requirement66.
As regards the challenge raised by the Ispas cause as regards the relationship
between the right of access to the file, expressly included in Article 41(2) (b) of the
Charter, as a component of the right to good administration, and the principle of
respect for the rights of the defence, and here the Court is rather stingy in
explanations. Without making any reference to Article 41 of the Charter (the scope
of which, according to the settled jurisprudence, is limited to the action of the
Union institutions/bodies and is not regarded as opposing the Member States), it
is necessary to examine the situation in question in the main proceedings the light
of the principle of the rights of the defence, in close connection with the principle
of the procedural autonomy of the Member States and of its limits stemming from
the principles of equivalence and effectiveness.
However, it is indirectly analyzed the content of this principle by comparison
with the guarantees contained in Article 41 of the Charter, clearly demonstrating that
the standard of protection contained in the general principle of respect for the rights
of the defence is lower than that applicable to the direct administration of the Union
under Article 41 of the Charter. While the effective observance of that right requires
that there is a real possibility of access to the information and documents which form
the basis of the administrative decision which the administration is planning to
adopt, the national tax authorities are not subject to a general obligation to provide
full access to the file nor to communicate ex officio the documents and information
underlying the envisaged decision. In addition, reasons of general interest may
justify restricting access to those documents and information67. The assessment of
the fulfilment of the requirement for the effectiveness of the defence rights must be
65 Opinion of Advocate General Bobek, points 56-57.
66 Judgment Ispas, para. 26.
67 Judgment Ispas, paras. 31-36.
36 CONSTANȚA MĂTUȘESCU
achieved not only by reference to the content of the relevant national procedural
rules but also to the stage of their practical implementation (in the context of
administrative practices), which is the task of the referring court.
5. Concluding remarks
Despite the inherent complexity of such an approach, determining the precise
scope of the Union’s fundamental rights is of crucial importance not to frustrate
the expectations of citizens to a meaningful protection of their fundamental rights.
In the context of the rather ambiguous formulation of Article 51(1) of the Charter,
pressure from this point of view falls on the Court of Justice, which has to make a
difficult balance between the imperative of respecting the constitutional allocation
of competences and to ensure effective protection of fundamental rights in all
situations subject to European Union law.
The analysis of the Court’s jurisprudence reveals that the inclusion in the scope
of Union law and the imposition of Union standards for the protection of
fundamental rights on national measures that do not implement stricto sensu EU
law do not currently have a generally applicable rule. Such a rule is rather difficult
to identify given the extreme diversity of the nature and scope of the legal acts of
the Union (in relation to the different legal areas currently covered by the Union
law), the variability in time of these acts, but also the limits to the Court on the
specificity of the reference for a preliminary ruling (the causal context of the
interpretation of EU law, the answer being dependent on the questions put by the
referring court in the normative and factual context which it defines).
The Court’s approaches seem to vary depending on the area of the case (in the
areas subject to harmonization, the Court is more intrusive in requiring the
application of the Union standards than in those in which the Union’s legal acts
have only a coordination role), but also in relation to the existing interests (mainly
the interests of the Union, whether linked to the enlargement of integration, or to
ensure supremacy and effectiveness of EU law).
If, in most cases, the Court has proved cautious in imposing a Union standard
for the protection of fundamental rights on internal measures which have no
clear/direct link with EU law, in cases where it has adopted a more intrusive
position, it has often left the national courts to carry out the relevant assessments to
determine the outcome of the case68.
This fragmentation of the Court’s jurisprudence through the alternation
between the different approaches, the lack of a clear line on what is and does not
fall within the field of EU law, and consequently the application of the Union’s
standards of protection not only does not simplify the task of national judges but
can even lead to the impact of what the Court is so persistently pursuing - the
uniform and integral application of Union law.
68 E. Spaventa, op. cit., p. 22.
The scope of application of fundamental rights... 37
The appeal by numerous Advocates Generals of the Court, including in very
recent cases, such as Ispas, for a stronger motivation of situations in which there
must be a shift of function and responsibility for guaranteeing fundamental rights
from states to the Union by identifying a general criterion (or a limit), proves that
the problem is far from being cut. A first step in this direction may be an element
which transpires both from the Fransson-Ispas jurisprudence and from the Siragusa
jurisprudence - the existence of EU law obligations on the Member States in the
specific situation. Of course, giving a possible central role to this element remains
to be confirmed and refined in the subsequent jurisprudence of the Court.
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