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
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.