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 rights”5, 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.