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Charter of Fundamental Rights of the European Union

Table of Contents

Introduction to the Charter of Fundamental Rights of the European Union

Although a young instrument, the Charter of Fundamental Rights of the European Union („the Charter “) forms a segment of a lasting system of protection of fundamental rights in the European legal order. Its adoption reflects a decisive moment where the EU took on a formal responsibility before its citizens: turning from an economic community into a Union based on rule of law and human rights.

Legal Status of the Charter

The Charter became legally binding in December 2009 with the entry into force of the Lisbon Treaty. Albeit Article 6 of the Treaty on European Union stipulates that the Charter has the same legal value as the Treaties, which makes it a part of primary EU law, the Charter does not broaden the scope of EU legislation beyond its powers or establish any new powers or tasks for the Union (Article 51(2) of the Charter).

The Charter's Role as the EU’s Bill of Human Rights

In general, the Charter is the EU’s bill of human rights and its scope of application reflects the scope of EU law itself. As Koen Lenaerts, President of the Court of Justice of the European Union (CJEU), emphasized in his keynote speech at the conference ‘Making the Charter of Fundamental Rights a reality for all´ on 12 November 2019: “the Charter is the ‘shadow’ of EU law. This means, in essence, that there can be no situation that is governed by EU law in which the Charter does not apply”.

The three towers of the CJEU in Luxembourg

Comprehensive Coverage of Rights in the EU Charter

Fifty fundamental rights and principles are enumerated in the Charter. This modern bill contains principles and rights regarding dignity, freedoms, equality, solidarity, citizens’ rights and justice. This modern bill protects classical first-generation rights related to civil and political liberties; many second-generation social, economic, and cultural rights; together with some third-generation rights (also called solidarity rights) such as the right to peace, sustainable development, humanitarian assistance, communication, or a healthy environment. The most recent fourth generation of rights aims to support human dignity against new biological and digital technologies. The framework of this generation of human rights has not yet been precisely defined; therefore, no contemporary fourth-generation rights have been included in the Charter yet.

Application to Natural and Legal Persons

The Charter protects the rights of natural persons (both EU citizens and residents) and, contingent upon the particular circumstances and rights involved, corporate legal persons as well. A broad range of subject areas are covered under the Charter, for instance, obligation to issue fingerprints for a passport (Articles 7 and 8 of the Charter, Case C-291/12), legal aid to legal persons (Article 47 of the Charter, Case C-279/09) or operation of gaming machines (Articles 15-17 and 50 of the Charter, C-390/12).

Distinguishing Rights from Principles in the Charter

It is important to point out that there are two types of provisions in the Charter – provisions containing ´rights´ and those reflecting ´principles´. The provisions are binding in both cases, however, according to Article 51(1) of the Charter, rights shall be ´respected´, while principles shall be ´observed´. Besides that, provisions that are principles can only be invoked before a court if implemented by legislative or executive acts (Article 52(5) of the Charter), while rights can be invoked by beneficiaries of the Charter directly before national courts.

Certain provisions of the Charter are specifically characterized as principles in The Explanations to the Charter.[1] In regards of other provisions, it remains unclear whether they fall as rights or as principles under Article 52(2) of the Charter. According to The Explanations (p. 35), Articles 25, 26, and 37 are examples of principles recognized in the Charter, whereas Articles 23, 33, and 34 combine aspects of a right and a principle. Additional case law of the CJEU will provide more clarification in this area.

[1] Explanations relating to the Charter of Fundamental Rights, OJ C 303, (2007/C 303/02), 14.12.2007, p. 17–35

The Concept of Direct Effect in EU Law

Derived from EU law, primacy and direct effect are the foundational elements that underpin the Charter’s influence in national law. Direct effect allows individuals to directly invoke provisions of EU law before national or European courts. The notion of direct effect was established by the CJEU in the case Van Gend en Loos (C-26/62). The Court did, however, impose the condition that the obligations must be clear, precise, and unconditional and that they must not require additional national or European measures. Hence, where the Charter provisions are sufficiently precise and unconditional, they can have a direct effect at the national level. As previously indicated, Charter provisions containing ‘principles’ can only be invoked before a court enacted by legislation or executive acts.

Minimum Standards of Rights Protection Under the Charter

When national measures fall within the scope of EU law, national courts have an obligation to interpret them in conformity with the Charter. It is settled case-law of the CJEU that the fundamental rights guaranteed by the Charter are applicable in all situations governed by EU law and that they must, therefore, in particular be complied with where national legislation falls within the scope of EU law (Case C-230/18, PI v Landespolizeidirektion Tirol, paragraph 63; Case C-201/15, AGET Iraklis, paragraph 62; Case C-617/10, Åkerberg Fransson, paragraphs 19 – 21).

As reflected in Article 53 of the Charter and stated by the CJEU, the level of protection of fundamental rights established by the Charter is always considered a minimum standard for national actions implementing EU law (Case C-617/10, Åkerberg Fransson, paragraph 29). Koen Lenaerts, the President of the CJEU, proposes that Article 53 of the Charter should be interpreted as a ‘stand-still’ clause, according to which the Charter does not allow a reduction of the level of fundamental right protection currently attained by EU law. [1]

In the most important case regarding specifically the meaning of Article 53 of the Charter Melloni v Ministerio Fiscal the CJEU held that where an EU legal act calls for national implementing measures, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised (Case C-399/11 Stefano Melloni v Ministerio Fiscal, paragraph 60). The CJEU clarified that there are two cumulative conditions under which the national standard may be applied: firstly, if a higher level of protection is provided by the Member State; and secondly, if the application of the national standard does not undermine the primacy, unity, or effectiveness of EU law. It should be noted that, when a scenario falls outside the scope of application of EU law, the Charter standard loses relevance and a lower national standard of protection may apply.

[1] Koen Lenaerts (2012). Exploring the Limits of the EU Charter of Fundamental Rights; European Constitutional Law Review, 8, pp 375­-403 doi:10.1017/S1574019612000260, p. 402

In the recent Case C-107/23 the CJEU stated that when applying EU law, an integral part of the role of an EU Member State court is the power to do everything necessary, to disregard national rules or a national practice, which might impede EU rules from having full force and effect. This authority belongs to the national court that is responsible for applying the EU law (C-107/23 PPU [Lin], Judgment 24/07/2023, paragraph 134).

As already indicated, the protection of fundamental rights is guaranteed both at national level by constitutional systems of the Member States and at EU level by the Charter. In view of the fact that Article 6(1) of the Treaty on European Union grants the Charter the same legal force as the Treaties on which the Union is based (Treaty on European Union and on the Treaty on the Functioning of the European Union), the Charter shall be granted the same status in the Slovak legal system as international treaties referred to in Article 7(5) of the Constitution of the Slovak republic.

The Slovak Constitutional Court defined its position on the EU Charter in its ruling Nr. PL. ÚS 10/2014 and held that if contested national legislation falls within the scope of EU law, fundamental rights and freedoms under the Constitution shall be interpreted and applied in the light of the essence and spirit of the Charter and the relevant case-law of the Court of Justice. Furthermore, according to the Constitutional Court, if a domestic general court considers that the national law provisions conflict with the Charter, then, as an EU Member State court with authority to apply EU law, it is obliged to ensure the full effect of the requirements arising from the provisions of EU law (PL. ÚS 15/2020-63, 15. March 2023, paragraph 22).

Importance of making the Charter more visible

Considering all this, promoting EU values and fundamental rights is an important part of the EU’s work on the global scene. The Charter can only be effective if the public is well informed of fundamental rights and benefits from knowing what to do when those rights are violated. If only a minority of the public is aware of this bill, the lack of familiarity and knowledge may be a cause for the lack of impact of the Charter. The role of the state authorities, together with organizations acting as fundamental rights defenders, remains essential in enhancing the visibility of the EU Charter.

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JUDr. Zora Saskia Klučka, LL.M.

JUDr. Zora Saskia Klučka, LL.M.