The charter of fundamental rights of the European Union vis-á-vis the member states – Scope of its application in the view of the CJEU

Abstract

Th is article deals with one of the most debated and fundamental issues that are associated with the adoption of the Charter of Fundamental Rights of the European Union. Th e Charter builds on pre-Lisbon jurisprudence, and among the addressees of the obligation to respect fundamental rights includes also the Member States. Th is introduces a further federative element into EU law and could serve as a unifying factor for the protection of fundamental rights in the EU. However, the key clause of Article 51 (1) introduces only the relative binding nature of the Charter for Member States when it stipulates that Member States are obliged to respect the Charter "only when they implement" EU law. Th is provision is linked to a number of questions and interpretative problems. Th e authors of the text draw a closer look and analyse the CJEU key case-law from recent years, which is devoted to understanding of that limiting clause.

Full text

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CYIL 8 2017 THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION …
THE CHARTER OF FUNDAMENTAL RIGHTS
OF THE EUROPEAN UNION VISÀVIS THE MEMBER
STATES – SCOPE OF ITS APPLICATION IN THE VIEW
OF THE CJEU
Ondrej Hamuľák and Ján Mazák
Abstract:  is article deals with one of the most debated and fundamental issues that are
associated with the adoption of the Charter of Fundamental Rights of the European Union.
 e Charter builds on pre-Lisbon jurisprudence, and among the addressees of the obligation
to respect fundamental rights includes also the Member States.  is introduces a further
federative element into EU law and could serve as a unifying factor for the protection of
fundamental rights in the EU. However, the key clause of Article 51 (1) introduces only the
relative binding nature of the Charter for Member States when it stipulates that Member
States are obliged to respect the Charter “only when they implement” EU law.  is provision
is linked to a number of questions and interpretative problems.  e authors of the text draw
a closer look and analyse the CJEU key case-law from recent years, which is devoted to
understanding of that limiting clause.
Resumé: Tento článek se věnuje jedné znejdiskutovanějších anejpodstatnějších otázek,
které jsou spojovány spřijetím Listiny základních práv EU. Charta navazuje napřed-lisa-
bonskou judikaturu amezi adresáty povinnosti respektovat základní práva řadí ičlenské
státy. To zavádí doevropského práva další federativní prvek amůže sloužit jako sjednoco-
vatel standardů ochrany základních práv. Klíčové ustanovené článku 51(1) ale zavádí pouze
relativní závaznost Listiny pro členské státy, když stanoví, že státy jsou povinny respektovat
Listinu “pouze pokud uplatňují” právo EU. Toto ustanovení je spojeno smnožstvím otázek
avýkladových problémů. Autoři textu přibližují aanalyzují klíčovou judikaturu Soudního
dvora zposledních let, která je věnována pochopení uvedeného limitujícího ustanovení.
Key words:  e Charter of Fundamental Rights of the European Union, Member States,
article 51(1), scope of the Charter, implementing of EU law, Court of Justice, case-law.
On the Authors:
Ondrej Hamuľák is a senior lecturer and member of the Jean Monnet Chair in EU law
at the Faculty of Law, Palacký University Olomouc (Czech Republic), visiting professor at
Tallinn Law School of Tallinn University of Technology (Estonia) and researcher at the
Fa cu lt y of La w, C ome nius Univ ersit y i n Br at islav a (S lov ak ia ). He pa rt ic ipa ted in th e wo rk on
this paper on behalf of project no. 17-22322S “ e In uence of the Charter of Fundamental
Rights of the EU on the Constitutional Law of the Visegrad Group Countries” funded by
the Czech Science Foundations (GAČR). Email: ondrej.hamulak@upol.cz.
Ján Mazák is a professor of European and Civil law at the Faculty of Law, Pavol Jozef
Safarik University, Košice, Slovak Republic; former President of the Constitutional Court
of the Slovak Republic and former Advocate General at the Court of Justice of the European
Union. Email: jan.mazak@upjs.sk.

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ONDREJ HAMUĽÁK – JÁN MAZÁK CYIL 8 2017
1. Introduction
Granting legally binding force to the Charter of Fundamental Rights of the European
Union (the Charter) via adoption of the Treaty of Lisbon (by reference included in the 1st
paragraph of article 6 TEU) in 2009 brought signi cant changes (and challenges) within
the EU legal system as a whole.1 Owing to the Charter, the project of European integration
entered a new stage and got a new image.2
It is a tool for making fundamental rights more visible and therefore strengthening the
legal certainty of addressees.3 It is also the instrument for universalisation of fundamental
rights since it formally associates all traditional generations of fundamental rights into the one
legal source.4 Further, it brought clear material constitutional rules de ning the relationship
between the individual and public authorities into the supranational constitutional system.5
 e Charter itself legitimises the EU public power in “black letter” understanding. Its active
use as the source of legality review by the Court of Justice deepens this impact in the real
world.6 Moreover, from the perspective of constitutional symbolism, the Charter strengthens
the so-called output democracy of the EU, which complements the increased role of principle
1 See in particular MAZÁK, J., JÁNOŠÍKOVÁ, M. et al.,  e Charter of Fundamental Rights of the European
Union in Proceedings before Courts of the Slovak Republic. Pavol Jozef Šafárik University in Košice, 2016. Available
at SSRN: https://ssrn.com/abstract=2961156.
2 KERIKMÄE, T. et al., Protecting Human Rights in the EU. Controversies and Challenges of the Charter of Fundamental.
Rights. Springer, 2014. However, claiming that we do not take into consideration the latest development related
to the Brexit issue.
3  e Charter ful lled the requirement of improvement of legal certainty of the holders of fundamental rights
by making these rights visible and manifest. It con rmed the attitude of the Court of Justice towards the
fundamental rights from the previous decades. Nevertheless, it is true that a great deal made by the Court of
Justice by introduction of the fundamental rights as general principles was always connected with the risk of
uncertainty and unpredictability, which  ow from the fact of the non-existence of a written source.  e Charter
is the tool for minimizing that uncertainty and this seems to be its crucial bene t.
4  e Charter, by its wide content, revolutionizes the classic approach to human rights, which used to be recognized
by the separate documents in line with the theory of several human rights generations.  e Charter abandons
this traditional approach at least formally and recognizes civil and political rights as well as economic, social
and cultural rights as part of one general human rights record. See KERIKMÄE, T., HAMUĽÁK,O.,
CHOCHIA, A., A Historical Study of Contemporary Human Rights: Deviation or Extinction? Acta
Baltica Historiae et Philosophiae Scientiarum, 2016, vol. 4, pp. 98-115.
5 Contours of material constitutionality of the European Union are de ned primarily by the system of protection
of fundamental rights.  e question of the role and place of fundamental rights within the European
Communities and the European Union has undergone major developments during the history of integration,
see ŠIŠKOVÁ,N.,  e process of constitutionalisation of the EU and related issues. Europa Law Publishing 2008.
But it is non-disputable that only by adoption of the binding catalogue it reached the level of complexity and
clarity.
6 DE BÚRCA, G., After the EU Charter of Fundamental Rights:  e Court of Justice as a human rights
adjudicator? Maastricht Journal of European and Comparative Law, 2013, vol. 20, pp. 168-184. As a very visible
example of the real impact of the Charter one may recall the crucial decision of the Court of Justice in the case of
Digital Rights Ireland (C-293/12, EU:C:2014:238), where the Court used the Charter as the main argument for
the (surprising) invalidation of the so-called Data Retention Directive (2002/58/EC) as a whole. Another strong
example is the Opinion on the Agreement on Accession of the European Union to the European Convention
for the Protection of Human Rights and Fundamental Freedoms, (2/13, EU:C:2014:2454), where the Court of
Justice found the incompatibility between the proposed agreement and EU law including the Charter (stating
the doubts about su cient protection of autonomy of Charter, see points 186-190).

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of representation and parliamentarism (input democracy), and helps to legitimize activities
of the Union.7
Finally, yet importantly, the Charter brought (or, better said, codi ed) the kind of new
federal impetus
8 into the EU system and opened the discussions about more ‘bounding’
tendencies within the integration project.9  e supranational catalogue of fundamental
rights reaches the spheres of the Member States as they are included in the list of “negative”
addressees, thus standing as those entities obliged to respect the Charter.  e Charter, as
the catalogue of the “centre”, binds the several parts of the Union (states) and attributes one
standard over the entire community. A very important provision which has to be mentioned
in connection with these federal impacts is Article 51(1) of the Charter. It de nes the
addressees of obligation to respect the rights included in the Charter.  ere are two categories
of addressees which have an obligation to respect the Charter.
Firstly and in general it is about the institutions, bodies, o ces and agencies of the Union.
Here the Charter serves as the tool for strengthening the rule of law and the democratic
legitimacy of supranational governance. It is the goal of a long path on which the Communities
and Union were seeking the ideal tool for the protection of fundamental rights. Institutions
of the EU are responsible for respecting rights protected by the Charter generally in all
activities that could touch upon individuals’ rights.
 e second category of addressees is represented by the Member States. Here the Charter
again brings the federalisation question onto the scene.  e question of the existence of
a common (central) standard of fundamental rights protection binding upon all Member
States (peripheries) is clearly interconnected with the emancipation and dominance of EU
law.10 And it deepens the scope of protection of individuals within the whole system of
application of EU law. But it is worth mentioning here that not all Member States’ conduct
falls under the Charter conformity test. It is clear from the wording of article 51(1) that
the Charter is applicable vis-à-vis Member States ‘only when they are implementing Union
law’.  e Charter (unlike for example the European Convention for the Protection of
Human Rights and Fundamental Freedoms) is not universally applicable. Its applicability
occurs, roughly speaking, where the conduct of a Member State has some EU dimension.
 e question is not whether the Member States must ful l the Charter but to what extent
they must do that.  e abovementioned limitation is the clear outcome of the cautious
and doubting approach of some Member States (especially the United Kingdom)11 to the
gradual widening of applicability of Union fundamental rights standards to the actions of
7 LENAERTS, K., CAMBIEN, N.,  e democratic legitimacy of the EU after the Treaty of Lisbon. In Wouters,
J. (Ed.), European constitutionalism beyond Lisbon, Intersentia, 2008, pp. 185-207.
8 Not immune from the critics. See DI FABIO, U., A European Charter: Towards a Constitution for the Union.
Columbia Journal of European Law, 2001, vol. 7, pp. 159-172.
9 EECKHOUT, P.,  e EU Charter of Fundamental Rights and the Federal Question. Common Market
Law Review, 2002, vol. 39, pp. 945-994; KNOOK, A.,  e Court, the Charter, and the vertical division of
powers in the European Union. Common Market Law Review, 2005, vol. 41, pp. 367-398; HAMUĽÁK, O.,
National Sovereignty in the European Union -View from the Czech Perspective, Springer, 2016; SPAVENTA, E.,
Federalisation versus Centralisation: tensions in fundamental rights discourse in the EU. In Currie, S.; Dougan,
M., 50 years of the European Treaties: Looking backwards  inking Forward, Hart publishing, 2009, p. 343.
10 HAMUĽÁK, O., National Sovereignty in the European Union -View from the Czech Perspective, Springer, 2016.
11 BELLING, V., Supranational Fundamental Rights or Primacy of Sovereignty? Legal E ects of the So-Called
Opt-Out from the EU Charter of Fundamental Rights. European Law Journal, 2012, vol. 18, pp. 251-268.

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ONDREJ HAMUĽÁK – JÁN MAZÁK CYIL 8 2017
Member States as supported by CJEU case law before the adoption of the Treaty of Lisbon.
By resolving this problem we will answer the question of the intensity of the federal impact
of the Charter itself.  is important query is covered by the next sections of this paper. It is
worth mentioning here, that the wording of article 51(1) seemed to be stricter and narrowing
the pre-Lisbon approach
12 to the applicability of EU fundamental rights standards on the
acts of the Member States when speaking only about the “implementation”.13 However, (not)
surprisingly the Court of Justice has not followed the narrowing scenario and conversely
o ered the broader view that will be presented in this paper.
2. A Complex Picture of Applicability of EU Fundamental Rights Standards
on the Actions of the Member States
2.1 Pre-Charter Situation
 e widening of the e ects of EU fundamental rights standards to the conduct of the
Member States is not a novelty or systemic revolution in EU law. Even before the adoption
of the Charter, the Court of Justice recognized the applicability of EU fundamental rights
standards (as unwritten general principles of law) to the selected activities of the Member
States and recognised that national courts, administrative bodies and other bodies applying
law must follow these principles in their decisions. EU law recognised certain situations
where the Member States held the duty to respect supranational standards of fundamental
rights protection:
A.  e basic form, i.e. the explicit situations where some EU legislation directly introduces
a speci c obligation to protect the fundamental right (typically in the area of anti-
discrimination law or the general duty to ensure judicial remedies to protect individual
rights stemming from EU law, e.g. the Johnston
14 or Defrenne
15 cases).
B.  e “agent” situations, i.e. those situations where Member States were implementing
or applying a Union law.  is so-called Wachauf situation
16 is interconnected with the
phenomenon of decentralized governance when state authorities act essentially as an
extended arm of the European Union. Weiler points out that in the background of this
argument there is a need to use a single standard of European Union law in all states.17
C. And a (most controversial) derogation model, i.e. the cases where the Member
States (within their scope of discretion) derogate from the Internal Market rules (use
permitted exemptions from the prohibition of restrictions on freedom of movement).
 is so-called ERT situation
18 di ers from both former types. Here Member States
apply their own law and do not behave as implementers of EU law acts. Still even
12 See section 2.1 of this paper.
13 See e.g. MCCRUDDEN, Ch.,  e Future of the EU Charter of Fundamental Rights. Jean Monnet Working
Paper 10/01. Available at: http://www.jeanmonnetprogram.org/archive/papers/01/013001.html. Accessed 10
May 2017.
14 Johnston vs. Chief Constable of the Royal Ulster Constabulary (222/84, EU:C:1986:206).
15 Defrenne vs. SABENA (43/75, EU:C:1976:56).
16 Wachauf (5/88, EU:C:1989:321). See also Bosphorus vs. Minister for Transport, Energy and Communications
and Others (C-84/95, EU:C:1996:312).
17 WEILER, J. H. H.,  e constitution of Europe. ‘Do the new clothes have an Emperor?’ and other essays on European
integration. Cambridge University Press, 1999.
18 ERT (C-260/89, EU:C:1991:254). See also Familia press (C-368/95, EU:C:1997:325).

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when applying their national law, they do so under the permission of the EU rules
and for the purpose of deviating from them.  erefore, they appear in the area
outlined by EU law.19  e arguments here, similar to previous situations, are based on
the general need for a uniform standard of the application of EU law in all Member
States.
It is thus clear that the application of the EU fundamental rights standards vis-á-vis
Member States was limited only to a certain segment of their activities somehow connected
with the e ects of EU law.  e question has been (and still is) what are the activities covered
by this segment, which actions of the Member States fall under the umbrella of the Charter
(and therefore under the control and interpretative jurisdiction of the Court of Justice)?
2.2 State of the Art after the Treaty of Lisbon
 e question of boundaries of Charter applicability vis-á-vis the Member States was
among the most discussed issues in relation to the negotiation of the Charter 20 and brought
signi cant case law to the Court of Justice in recent years.
When interpreting and applying legal norms (including EU law), a general standard
applies according to which, if the object of the interpretation is unambiguous, it is to be
accepted and applied. However, if the legal rule to be interpreted is not clear, it is necessary to
admit this and to proceed accordingly when seeking its true meaning and correct application.
In this sense, Article 51(1) of the Charter would, to the extent to which it relates to the
Member States, fall within the second case.
Pursuant to Article 51(1) of the Charter are its provisions addressed to the institutions,
bodies, o ces and agencies of the Union with due regard for the principle of subsidiarity and
to the Member States only when they are implementing EU law.
 is article has become the focus of interest both in case law and in academic literature to
an unprecedented extent in connection with the applicability of the Charter to the Member
States.  e reason lies in the precise meaning of the phrase “…when they are implementing
Union law”. When interpreting and applying this phrase it is necessary to take into account
the Explanations to the Charter,21 the case law of the Court of Justice on the general
principles of law including the protection of the fundamental rights in the pre-Lisbon period,
the post-Lisbon case law of the Court of Justice, and also, to some extent, the di erent
language versions of Article 51(1) of the Charter. Also, any attempts in legal doctrine to
clarify the material scope and content of this phrase should not be neglected and ought to
be considered.22
19 WEILER, J. H. H.,  e constitution of Europe. ‘Do the new clothes have an Emperor?’ and other essays on European
integration. Cambridge University Press, 1999.
20 SCHÖNLAU, J., Drafting the EU Charter-Rights, legitimacy and process. Palgrave Macmillan, 2005.
21 To the authority of Explanations, see LENAERTS, K., Exploring the Limits of the EU Charter of Fundamental
Rights. European Constitutional Law Review, 2012, vol. 8, p. 377. See also DOBROVIČOVÁ, G., JÁNOŠÍ-
KOVÁ,M., Právna povaha Vysvetliviek kCharte základných práv Európskej únie: Možnosť alebo povinnosť ich
využitia vrozhodovacej činnosti súdov? In: Ochrana ľudských práv azákladných slobôd ústavnými súdmi amedzi-
národnými súdnymi orgánmi: III. ústavné dni. Univerzita Pavla Jozefa Šafárika vKošiciach, 2014, pp. 57-68.
22 See BESSELINK, L.,  e Member States, the National Constitutions and the Scope of the Charter. Maastricht
Journal of European and Comparative Law, 2001, vol. 8. pp. 68-80; BOBEK, M. Kam až sahá právo EU?
Kvěcnému aplikačnímu rámci unijního práva včlenských státech. Právní rozhledy, 2013, vol. 21, pp. 611-
618; See also MAZÁK, J., JÁNOŠÍKOVÁ, M. et al.,  e Charter of Fundamental Rights of the European Union

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ONDREJ HAMUĽÁK – JÁN MAZÁK CYIL 8 2017
Regarding the  eld of application of the Charter to the Member States, the Explanations
state that: “…it follows unambiguously from the case-law of the Court of Justice that the
requirement to respect fundamental rights de ned in the context of the Union is only
binding on the Member States when they act in the scope of Union law. … Of course, this
rule, as enshrined in this Charter, applies to the central authorities as well as to regional
or local bodies, and to public organisations, when they are implementing Union law.”  e
Explanation to the Article 51 directly recalls the pre-Lisbon case law of the Court of Justice,
in particular the Wachauf and ERT cases and therefore clearly con rms the up-to-date
developments. However, when speaking about the Member States’ actions “in the scope of
Union law”, it opens the door for further (potentially) deepening interpretation. In the text
below we deal with the main developments in this regard and o er the view of the main case
law of the CJEU.
2.3 Guidelines and Explanations Presented by the CJEU
First, it must be mentioned that existing post-Lisbon case law on the extent of the
Charter’s applicability to the acts of the Member States clearly con rms the continuity
and previous developments.  e Court of Justice approved the applicability in the EU
catalogue to the Wachauf as well as ERT situations. In connection with the  rst mentioned,
the CJEU unambiguously upheld the Charter’s authority and emphasized that Member
States have a duty to respect the Charter whenever they follow EU rules in their decision-
making.  us in the case N.S. and Others
23 the CJEU clearly prescribed the duty to follow
Charter requirements when implementing EU law even when a Member State exercises its
discretionary power. Recent case law also con rmed the ‘validity’ of a later (ERT) situation
according to which Member States must respect the Charter rules even when they are
derogating or restricting the individual rights stemming from EU law.24 Here the CJEU
somehow overcomes the restrictive notion which appeared during the work on the Charter’s
text and invoking exclusion of the “derogative” situations.25
Even though the wording of Article 51(1) of the Charter and the Explanations are to
some extent a reaction to the case law of the Court of Justice from the pre-Lisbon period, the
post-Lisbon case law of the Court of Justice does not completely follow these propositions
and is not entirely in line with past developments. It imposes an obligation on the Member
States to respect the fundamental rights not only when they are implementing EU law but
also to a broader extent.
One of the key examples where the Court of Justice upheld a broad interpretation of
Article 51(1) is its judgment in the Fransson case.26 In this case the Court of Justice answered
in Proceedings before Courts of the Slovak Republic. Pavol Jozef Šafárik University in Košice, 2016, pp. 32-86.
Available at SSRN: https://ssrn.com/abstract=2961156.
23 NS and Others (C-411/10, EU:C:2011:865, para 68). See also judgement C. K. and Others (C-578/16 PPU,
EU:C:2017:127).
24 DEB (C-279/09, EU:C:2010:811).
25 KNOOK, A.,  e Court, the Charter, and the vertical division of powers in the European Union. Common
Market Law Review, 2005, vol. 4l, p. 372; SARMIENTO, D. Who’s afraid of the Charter?  e Court of Justice,
National Courts and the New Framework of Fundamental Rights Protection in Europe. Common Market Law
Review, 2013, vol. 50, pp. 1267-1304.
26 Åkerberg Fransson (C-617/10, EU:C:2013:105).  is judgment is a very strong message to national courts of
the EU. See MAZÁK, J., DOBROVIČOVÁ, G., OROSZ, L., JÁNOŠÍKOVÁ, M., Odkaz Súdneho dvoraEÚ

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a preliminary question from the Swedish court which concerned criminal proceedings
against H.Å.Fransson for serious tax evasion. H. Å. Fransson was charged for stating false
information in tax returns and for failing to declare employers’ contributions for certain
accounting periods.  e problem was that two years before Swedish tax authorities had
ordered him to pay a tax surcharge for the same tax misconduct.  e national court therefore
faced the problem of whether the previous administrative sanction and new criminal
prosecution fall under the prohibition of double jeopardy. And, since the Charter con rms
the principle of ne bis in idem in Article 50, it was confronted with the potential con ict of
national rules with the EU human rights catalogue.  erefore, it decided to stay the proceedings
and turned to the Court of Justice with the preliminary question.  e circumstances of the case
opened the initial question whether tax penalties and related criminal proceedings represent
the implementation of EU law within the meaning of Article 51(1) of the Charter. Some of
the Member States,27 the European Commission and the Advocate General (Cruz Villalón)
re ected on this question negatively and rejected the applicability of the Charter and therefore
the Court’s jurisdiction to decide the case.
However, the Court of Justice took the opposite view and recognized the applicability of the
Charter despite the fact that it was neither a classic case of the implementation of EU law (the
Wachauf situation), nor a case of derogation from EU rules (the ERT situation). It extended
the scope of application of the Charter vis-á-vis the Member States also to other (much broader)
situations. According to the Court: ‘Since the fundamental rights guaranteed by the Charter
must therefore 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.  e applicability of European Union law
entails applicability of the fundamental rights guaranteed by the Charter.’28
 e wide understanding of the Court of Justice lies in the fact that the term ‘applicability’
in its view does not mean a concrete situation of application of EU rules in a speci c case
but basically just a sort of their factual abstract existence. It is not important whether EU
law was used (directly or indirectly) in a speci c case.  e key feature for applicability of the
Charter is that circumstances of the case fall within the scope of EU law. To meet this test
even a partial or indirect connection to Union law is su cient.29  is requirement was met
in the case of H. Å. Fransson. His tax o enses were partly related to the area of value added
tax, which forms an area harmonized by EU law. Moreover, part of the revenue from VAT
constitutes one of the resources of the Union budget. According to the Court of Justice, these
facts were satisfactory enough to build a bridge between prosecution at the national level and
vnútroštátnym súdom o aplikovateľnosti apôsobnosti Charty základných práv EÚ: Rozsudky vo veciach
Aklagaren Fransson aMelloni | AMessage of the Court of Justice of the EU to National Courts on the Scope
of Application of the Charter of Fundamental Rights of the EU: Aklagaren Fransson and Melloni Judgments.
Právny obzor: teoretický časopis pre otázky štátu apráva, 2014, vol. 97, pp. 115-130.
27 Sweden, Czech Republic, Denmark, Ireland and Netherlands.
28 Åkerberg Fransson (C-617/10, EU:C:2013:105, para 21).
29 HANCOX, E.,  e meaning of “implementing” EU law under Article 51(1) of the charter: Åkerberg Fransson.
Common Market Law Review, 2013, vol. 50, pp. 1411–1431 or MAZÁK, J., DOBROVIČOVÁ, G., OROSZ,L.,
JÁNOŠÍKOVÁ, M., Odkaz Súdneho dvora EÚ vnútroštátnym súdom oaplikovateľnosti apôsobnosti Charty
základných práv EÚ: Rozsudky vo veciach Aklagaren Fransson aMelloni | AMessage of the Court of Justice
of the EU to National Courts on the Scope of Application of the Charter of Fundamental Rights of the EU:
Aklagaren Fransson and Melloni Judgments. Právny obzor, 2014, vol.97, pp. 115-130.

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ONDREJ HAMUĽÁK – JÁN MAZÁK CYIL 8 2017
EU law.  e matter therefore fell within the scope of application of Union law and criminal
prosecution of tax evasion here was considered as the implementation of EU law within the
meaning of Article 51(1) of the Charter.
It follows from this in particular that the Court of Justice adheres to the extensive
interpretation of the phrase “when they are implementing Union law.”  is is essentially
the same approach as is known from the case law of the Court of Justice applying general
principles of law; this approach was based on the scope of the law of the Community/Union,
i.e. on the examination of whether the legal situation under consideration fell within the
scope of the law of the Community/EU.  is understanding of the scope of applicability of
the Charter to the Member States is also favoured by most doctrinal publications.30
 e judgment in the Fransson case brought a wide interpretation of the Charters’ impact
on the conduct of the Member States.  e Charter became a shadow of European Union
law
31 and its applicability became somewhat unpredictable. It’s not surprising that the
interpretation o ered by the Court of Justice opened discussion about the very sensitive
questions related to the problem of whether there is any autonomous space for Member
States’ conduct which should be free of ‘testing by the Charter’ and what the de nitive
frontiers of the scope of the Charter are.32 Spaventa points to a couple of risks connected
with the broad application of the Charter to national measures, in particular the signi cant
loss of national autonomy and sovereignty,33 shortcomings to the notion of constitutional
diversity, which forms part of national identity recognised by Article 4 (1) TEU and,  nally,
it may limit the e ciency of national tools of fundamental rights protection and minimize
the role of national courts.34
 e di culties result from the fact that within the national legal context everything
is in some form a ected by EU law: either through its in uence, its requirements, and
also through its e ects. However, this would mean that the Charter should almost always
apply.  e case law of the Court of Justice is not in favour of this approach, although it does
not provide de nitive answers which would allow us to establish the  xed interpretation of
Article51(1) of the Charter.
30 For example, BENOIT-ROHMER, F., La charte des droits fondamentaux de l’Union européenne, Rec. Dalloz,
2001; ROSAS, A., KAILA, H., L’application de la Charte des droits fondamentaux de l’Union européenne
par la Cour de justice: un premier bilan. Il Diritto dell’Unione Europea, 2001, vol. 16, pp. 1-9; KOKOTT,J.,
SOBOTTA, CH., Die Charta der Grundrechte der Europäischen Union nach Inkrafttreten des Vertrags
von Lissabon. Europäische Grundrechte-Zeitschrift, 2010, vol. 37, pp. 265-271; FONTANELLI, F.,  e
Implementation of European Union Law by Member States Under Article 51(1) of the Charter of Fundamental
Rights. Columbia Journal of European Law, 2014, vol. 20, pp. 194-247; VAJDA, CH.,  e Application of
the EU Charter of Fundamental Rights: Neither Reckless nor Timid? Edinburgh School of Law Research Paper
No2014/47.
31 LENAERTS, K., GUTIÉRREZ-FONS, J. A.,  e place of the charter in the EU constitutional edi ce. In
Peers,S., Hervey, T. (eds.),  e EU Charter of Fundamental Rights. A Commentary, Hart Publishing, 2014,
pp.1600-1637.
32 FONTANELLI, F., Implementation of EU Law through domestic measures after Fransson:  e Court of Justice
Buys Time and “non-preclusion” Troubles Loom Large. European Law Review, 2014, vol. 39, pp. 782-800.
33 HAMUĽÁK, O., Lessons from the “Constitutional Mythology” or How to Reconcile the Concept of State
Sovereignty with European Integration. Danube : Law and Economics Review, 2015, vol. 6, pp. 75-90.
34 SPAVENTA, E.,  e 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, 2016, p. 33.

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 e subsequent case law of the Court of Justice partially corrected the excessive abstractness
of the Fransson ruling and con rmed that there are still some autonomous domains of the
Member States where EU standards need not be accepted.  e Court of Justice brought some
light to the unclear Fransson  ndings and o ered (a bit complicated but still applicable)
criteria of testing whether there is some connection between national law applied in the case
and EU law.35
In the case Siragusa, the Court of Justice stated that: ‘In order to determine whether
national legislation involves the implementation of EU law for the purposes of Article 51
of the Charter, some of the points to be determined are whether 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 a ecting
EU law; and also whether there are speci c rules of EU law on the matter or capable of
a ecting it […]’36  is point brought a certain explanation to the concept ‘acting within
the scope EU law’ given by the Fransson judgment.  e applicability of the Charter still
requires that certain matter falls within the ‘speci c’ scope of EU law. But to make this
conclusion, one needs to  nd a speci c interconnection between national law (decision)
and speci c provisions of EU law. Spaventa speaks about the necessity to  nd out some
‘demonstrated proximity’ between national conduct and EU law.37  e Court concluded that
applicability of the Charter to the acts of Member States necessarily presupposes the existence
of a certain degree of connection between the EU law and relevant national law measures
that goes beyond the mere similarity of areas concerned or indirect impact of one area to
another.38 In paragraph 24 of the Siragusa judgment, the required connection with EU law is
de ned in both positive and negative terms.  e positive de nition implies the requirement
of a certain degree of connection between the national legal rule and EU law.  e negative
de nition re nes this connection which must go beyond a simple resemblance of the  elds of
the legislation and beyond any indirect in uence (everything is connected with everything)
existing between national law and EU law.39
 e question remains, whether the abovementioned “Siragusa” criteria needs to be ful lled
in a cumulative manner, or it is enough that some of these features will be met in a speci c
35 PIRKER, B. (2014). Case C-206/13 Siragusa: A Further Piece for the Åkerberg Fransson Jigsaw Puzzle. European
law blog. Available at http://europeanlawblog.eu/?p=2253. Accessed 28 April 2016.
36 Siragusa (C-206/13, EU:C:2014:126, para 25, emphasis added).
37 SPAVENTA, E.,  e 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, 2016, p. 21.
38 As the Court stated later on in the Hernández case: ‘the mere fact that a national measure comes within an area
in which the European Union has powers cannot bring it within the scope of EU law, and, therefore, cannot
render the Charter applicable […]’, Julian Hernández and Others (C-198/13, EU:C:2014:2055, para 36).
39 In this context, it is possible to refer to the judgment in Iida (Iida, C-40/11, EU:C:2012:691, para 78-82), in
which the Court of Justice refused to examine the compatibility of the national measure with the Charter on
the basis that the objective of the national legislation concerned had no connection with the objectives of EU
law. However, this approach in the case law of the Court of Justice indicates that the interpretation of Article
51(1) of the Charter does not have  xed limits even in relative terms. It is not clear whether the criterion of the
objective of national legislation confronted with the objectives of EU law will apply in every single case in order
to reach the conclusion that there is a connection with the implementation of EU law; nor is it clear whether
the implications of a national law or measure on EU law will be examined in every case. And how should we
consider a situation in which a Member State does not implement EU law, but its law or a measure nonetheless
follows the ful lment of EU objectives?

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ONDREJ HAMUĽÁK – JÁN MAZÁK CYIL 8 2017
situation. It’s hard to  nd clear guidelines in the subsequent case law of the CJEU.  e
theoretical “Siragusa” test is not being used in a systemic way.  e opposite is true. Actually
the Court of Justice uses only some of the features or gives more emphasis and accent to some
of them.40 In fact, even quotations of the Siragusa case are very rare and incidental.41
For the purposes of the correct interpretation and application of Article 51(1) of the
Charter, it is possible to deduce some generalizations from the hundreds of judgments and
orders of the Court of Justice in the post-Lisbon period.42  e conclusions suggested are not,
and cannot be,  xed criteria in considering whether the Charter applies in particular cases on
the grounds of a Member State implementing EU law. However, these generalizations stem
from relatively well-established case law and, therefore, could also be helpful for national
courts. At the same time, such a generalization highlights some of the di culties involved in
accepting such criteria, an issue which will be explained further.
In the  rst place, the phrase “when they are implementing Union law” should in any case
be considered as equivalent of what is expressed in the Explanations as “when they act in the
scope of Union law.” Both phrases have the same meaning.  ey are closely connected with EU
law; the implementation of EU law and the scope of EU law are two sides of the same coin.
 is is the interpretative outcome reached in the judgment in Fransson.  e basic
objection against this interpretation is that it remains incomplete and repeats only what can
already be found in, for example, the judgment in Karlsson,43 the addition of action in the
scope of EU law being only a partial explanation of the phrase “when they are implementing
Union law”. In this context, it should be remembered that the case law of the Court of
Justice, especially negative case law, also uses the phrase “where a legal situation does not fall
within the scope of Union law.” However, this is only a variation of the phrase “when they
act in the scope of Union law.”44
Secondly, articles of the Charter are not capable of being applied on their own.45  ey
can only apply to a speci c case if at least one legal rule of EU law applies as a minimum
sine qua non. It is irrelevant whether this other rule derives from primary or secondary law,
or whether it was or was not properly implemented in a timely manner in the national law
40 It was pointed out that the CJEU is giving more emphasis to the “objectives“ notion and is open to cover the acts
of Member States by the scope of the Charter, especially in situations when important interests of the EU are at
stake, like in the Taricco case (C-105/14, EU:C:2015:555). See SPAVENTA, E.,  e 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, 2016, p. 22.
41 Until May 2017 there were only 11 cases referring to the Siragusa case (see e.g. Milkova, C-405/16,
EU:C:2017:198).
42 Which either interpret the phrase “when they are implementing Union law” in a dogmatic sense or, on the other
hand, just technically test whether national legal situation in this particular case falls within the scope of EU law.
43 See judgment Kjell Karlsson and Others (C-292/97, EU:C:2000:202, para 37) which states that: “[i]n
addition, it should be remembered that the requirements  owing from the protection of fundamental rights
in the Community legal order are also binding on Member States when they implement Community rules.
Consequently, Member States must, as far as possible, apply those rules in accordance with those requirements.”
(Emphasis added.)
44 See orders in Sociedade Agrícola e Imobiliária da Quinta de S. Paio (C- 258/13, EU:C:2013:810, para 20);
Dutka and Sajtos (C-614/12 and C-10/13, EU:C:2014:30, para 15); Weigl (C-332/13, EU:2014:31, para 14);
and judgment in Torralbo Marcos (C- 265/13, EU:C:2014:187, para 30).
45 See orders in Semeraro (C-484/16, EU:C:2016:952, para 44); Pondiche (C-608/14, EU:C:2015:313, para 21);
Aiudapds (C-520/15, EU:C:2016:124, para 20) etc.

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of a Member State. Re ections on the autonomous application of the Charter, which would
apply on its own without any connection with other legal rules of EU law, remain to date in
the realm of theory
46 and are not supported by the case law of the Court of Justice.  e clear
refusal of the option that the provisions of the Charter could on their own serve as the basis
for the jurisdiction of the CJEU is closely connected with Article 51(2) of the Charter and
Article6(1) TEU, both clearly stating that the Charter does not in any way extend the scope
of EU law beyond the competences of the Union as de ned in the Treaties.47
 irdly, this other legal rule of EU law must not only be interpreted in the case, but instead
it must truly apply to the case. Unless this legal rule applies, it is not possible to apply articles of
the Charter, because we cannot speak about the implementation of EU law in such a situation.
Fourthly, the applicability of a legal rule of EU law other than the Charter must have a
tangible and objectively ascertainable connection with the merits of the case (the dispute).
In other words, such a legal rule should be of a fundamental relevance for the decision of the
court and must create or at least co-create the legal basis for the decision of the court in the
particular case.  is criterion raises the greatest number of questions and con rms that the
wording of Article 51(1) of the Charter has caused and will continue to bring about serious
di culties in interpretation.
3. Conclusions
From the case-law (before and after the Lisbon reform) follows a fairly wide range of
understanding of the concept of ‘implementing’ of EU law by Member States, which creates
the potential for wide impact of the Charter on the national practice. But the important
 nding is that the Charter cannot be used as the vehicle to widen the EU competences alone
without any further relation to the existing scope of EU law. As the Court of Justice stated
repeatedly,48 the Charter (its provisions) alone is not capable of forming the basis for the
jurisdiction of the CJEU and therefore is not capable of establishing its own applicability.
Since the Charter entered into force, the Court of Justice has observed on a number of
occasions that: “[t]he Court’s settled case-law indeed states, in essence, that the fundamental
rights guaranteed in the legal order of the European Union are applicable in all situations
governed by EU law, but not outside such situations. In this respect, the Court has already
observed that it has no power to examine the compatibility with the Charter of national
legislation lying outside the scope of EU law. On the other hand, if such legislation falls
within the scope of EU law, the Court, when requested to give a preliminary ruling, must
provide all the guidance as to interpretation needed in order for the national court to
determine whether that legislation is compatible with the fundamental rights the observance
of which the Court ensures.”49
46 DOUGAN, M., Judicial review of Member State action under the general principles and the Charter: De ning
the “scope of Union law”. Common Market Law Review, 2015, vol. 52, pp. 1202-1243.
47 See orders Pardue (C-321/16, EU:C:2016:871, para 18); Balázs and Papp (C-45/14, EU:C:2014:2021, para 20)
or Burzio (C-497/14, EU:C:2015:251, para 27).
48 Torralbo Marcos (C-265/13, EU:C:2014:187, para 30); Sociedade Agrícola e Imobiliária da Quinta de S. Paio
(C-258/13, EU:C:2013:810, para 20); Dutka and Sajtos (C-614/12 and C-10/13, EU:C:2014:30, para 15);
Weigl,(C-332/13, EU:C:2014:31, para 14); Cholakova (C-14/13, EU:C:2013:374, para 30); Nagy and Others
(C-488/12, EU:C:2013:703, para 17).
49 See judgments in Åkerberg Fransson (C-617/10, EU:C:2013:105, paras 19, 20 and 22); P eger and Others

172
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Each generalization is accompanied by some degree of simpli cation.  is 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 signi cant shift
in case law in the foreseeable future.50
However, the correct interpretation of Article 51(1) of the Charter and clari cation 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
a orded 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,  nally, it covers the application/interpretation of national rules that relate to speci c 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.,  e
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 Pro ssionais de Seguros e A ns (C-264/12, EU:C:2014:2036); and Sindicato Nacional dos
Pro ssionais de Seguros e A ns (C-665/13, EU:C:2014:2327).