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Spaventa, E. (2016) '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.', Project Report. European Parliament,
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DIRECTORATE GENERAL FOR INTERNAL POLICIES
POLICY DEPARTMENT C: CITIZENS' RIGHTS AND
CONSTITUTIONAL AFFAIRS
PETITIONS
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
STUDY
Abstract
This study, commissioned by the European Parliament’s Policy Department for
Citizens’ Rights and Constitutional Affairs at the request of the Committee on
Petitions, considers the dilemma of a broad or narrow application of the Charter
of Fundamental Rights (CFR) to national measures. It considers the way the
Court of Justice of the EU (CJ EU) has been interpreting fundamental rights in
relation to such measures before and after the Lisbon Treaty and the
constitutionalisation of the Charter: currently the CJ EU applies a varied
interpretation of the CFR, on the basis of a narrow approach to its applicability
to Member States' measures implementing EU law. As a consequence, the
Commission’s strict approach in relation to a selection of petitions received by
the Committee on Petitions raising issues of alleged CFR violations seems
justified in the light of the existing law and CJ EU jurisprudence. The analysis,
after examining the considerations that militate in favour and against a narrow
interpretation of the Charter and of its Article 51, concludes that a more
courageous approach should be taken at EU level when examining national
implementing measures of EU law raising fundamental rights issues, notably
until these are not evenly and properly guaranteed across the EU.
PE 556.930 EN
This study was commissioned by the Policy Department for Citizen's Rights and
Constitutional Affairs at the request of the PETI Committee
AUTHOR
Professor Eleanor SPAVENTA
Eleanor.spaventa@durham.ac.uk
Durham Law School
Durham University, UK
RESPONSIBLE ADMINISTRATOR
Martina SCHONARD, Ottavio MARZOCCHI
Policy Department C: Citizens' Rights and Constitutional Affairs
European Parliament
B-1047 Brussels
E-mail: poldep-citizens@europarl.europa.eu
LINGUISTIC VERSIONS
Original: EN
ABOUT THE EDITOR
Policy Departments provide in-house and external expertise to support EP committees and
other parliamentary bodies in shaping legislation and exercising democratic scrutiny.
To contact the Policy Department or to subscribe to its monthly newsletter please write to:
poldep-citizens@europarl.europa.eu
European Parliament, manuscript completed in February 2016.
© European Union, 2016.
This document is available on the Internet at:
http://www.europarl.europa.eu/supporting-analyses
DISCLAIMER
The opinions expressed in this document are the sole responsibility of the author and do
not necessarily represent the official position of the European Parliament.
Reproduction and translation for non-commercial purposes are authorised, provided the
source is acknowledged and the publisher is given prior notice and sent a copy.
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
____________________________________________________________________________________________
3
CONTENTS
LIST OF ABBREVIATIONS 4
EXECUTIVE SUMMARY 5
INTRODUCTION 7
1. THE SCOPE OF APPLICATION OF EU FUNDAMENTAL RIGHTS BEFORE
THE CHARTER OF FUNDAMENTAL RIGHTS 9
1.2. The Scope of Application of EU Fundamental Rights before the Charter 11
1.3. Fundamental Rights and National Sovereignty 12
1.4. The Commission’s powers to pursue fundamental rights claims: the hiatus
in the enforcement of Union law. 13
2. ARTICLE 51 CHARTER: ITS SIGNIFICANCE AND ITS INTERPRETATION
14
2.1. Article 51 of the Charter of Fundamental Rights 14
2.2. The extensive interpretation of EU law: Åkerberg Fransson 16
2.3. The application of the Charter to executing national authorities: McB and
N.S. 17
2.4. Cases where the Court found that the Charter did not apply 20
2.4.1 Lack of Connection with EU Law 20
2.4.2. Narrowing the interpretation of the Treaty: the new wave of EU citizenship
cases 23
2.5. Preliminary conclusions: EU fundamental rights and European integration
24
3. THE PETITIONS TO THE EUROPEAN PARLIAMENT AND THE
COMMISSION’S POSITION 26
3.1 Introduction 26
3.2. Petitions where there is no discernible link with EU Law 27
3.3. Petitions with a potential connection to EU law 28
3.3.1. Registration of child 28
3.3.2. Right to collective bargaining in Greece 29
3.4. Petitions relating to the infringement of foundational principles 29
4. THE DILEMMA OF A BROAD OR STRICT APPLICATION OF THE CHARTER
32
5. CONCLUSIONS 35
ANNEX I - TABLE OF PETITIONS EXAMINED IN THE STUDY 36
Policy Department C: Citizens' Rights and Constitutional Affairs
____________________________________________________________________________________________
4
LIST OF ABBREVIATIONS
CFR
CMLRev
CJ EU
ECHR
ELRev
EP
EurConstLawRev
PETI / PETI
Committee
Charter of Fundamental Rights of the EU (also referred to as
Charter)
Common Market Law Review
Court of Justice of the EU (also referred to as Court)
European Convention on Human Rights
European Law Review
European Parliament
European Constitutional Law Review
Committee on Petitions of the European Parliament
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
____________________________________________________________________________________________
5
EXECUTIVE SUMMARY
This analysis looks into the applicability of fundamental rights as enshrined in the EU
Charter of Fundamental Rights (CFR) in the European Union legal order. It focuses on the
limits imposed to the rights and freedoms declared by the CFR by its Article 51,
which states that the Charter only applies to European Union Institutions and bodies and to
the Member States only when they are implementing Union law.
The scope of application of fundamental rights before the adoption of the Charter
was progressively established and developed by the European Court of Justice through its
evolving jurisprudence. Fundamental rights were declared as general principles of
Community law protected by the Court (Stauder), as common constitutional traditions
among the Member States (Internationale Handelsgesellshaft) and enshrined in
international treaties, such as the European Convention on Human Rights (ECHR) (Nold)
and the ECtHR jurisprudence. The scope of application covered the acts of EC/EU
institutions, the implementation of EU law by Member States (Wachauf), including when
they act within the field of EU law by limiting free movement rights (ERT, Carpenter). This
jurisprudence has been particularly courageous in expanding the protection
provided to EU citizens in relation to fundamental rights.
The Charter was elaborated and adopted with the aim of codifying the Court jurisprudence
and making the EU fundamental rights obligations more visible. At the same time, some
Member States did not want the Charter to have effects that could potentially limit their
competences by expanding in substance the field of application of EU law beyond EU
powers. For this reason, a series of limits to the applicability of the Charter were
inserted in the Charter itself, among which Article 51 CFR. The CJ EU jurisprudence
shows that the Court has been receptive to this approach, adopting a narrow
interpretation of the applicability of the CFR to national measures, on the basis of
its Article 51.
The analysis of the CJ EU case law shows that there is a varied application of EU
fundamental rights to measures adopted by Member States: when a stronger interest of
the EU is at stake (internal market; EU integration), the CFR is more likely to be applied
also to national measures; when the Member State acts on the basis of EU co-ordination
measures, the CFR applies (if at all) only in extreme cases; in all other cases, the CFR will
most likely not apply.
The examination of the petitions tabled by citizens to the EP shows that citizens have high
expectations in relation to the CFR and its application to measures adopted by the States
allegedly infringing their fundamental rights. Having said that, the application of the CJ EU
jurisprudence, as reflected in the Commission opinions on the selection of petitions
analysed in this study, does not leave much margin of manoeuvre. The Committee on
Petitions seems to have mostly followed the Commission approach with a number of
exceptions, notably on children rights, Greece austerity measures and some more recent
petitions. The overall approach taken by the Commission on the petitions at stake
seems justifiable to the author of this paper, with the exception of the petitions on the
right to collective bargaining in Greece.
When looking into the interpretation of the CFR, the author believes that the approach
taken by the CJ EU is dangerously restrictive and not warranted by Article 51, for
Policy Department C: Citizens' Rights and Constitutional Affairs
____________________________________________________________________________________________
6
instance in relation to Union citizenship, the European Arrest Warrant or asylum
cases. The underlying notion that Member States guarantee an equivalent level of
protection of fundamental rights is fallacious, especially given that there is very little that
can be done at EU level to ensure that fundamental rights are guaranteed across the
Member States. A more courageous use of the CFR should be made for national
measures falling within the scope of EU law, so to ensure that those instruments
cannot be used to undermine fundamental rights guarantees. Furthermore, EU
fundamental rights should never be seen as instrumental to the achieving of the
effectiveness and supremacy of EU law; rather they should be seen as a tool without which
integration in certain areas might become impossible and/or undesirable. Hence, the Court
should not refrain from its duties and clarify that EU rules that are premised on a certain
degree of mutual trust amongst Member States as to compliance with fundamental rights
at national level might become inapplicable (or invalid) if this alleged common standard of
fundamental rights protection does not exist in practice. This approach would be a powerful
incentive for Member States to achieve a satisfactory level of fundamental rights protection
and to take fundamental rights obligations more seriously. It might also encourage the EU
institutions to be more vociferous in their critique of fundamental rights failures at national
level. And it would also serve the primary objective of protecting individuals from
fundamental rights violations committed by authorities at EU or national level.
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
____________________________________________________________________________________________
7
INTRODUCTION
The PETI committee requested the EP Policy Department for Citizens’ Rights and
Constitutional Affairs to acquire an expert opinion on Article 51 of the EU CFR, with a
particular view to assess the applicability of the CFR to acts of national authorities
in relation to petitions received by the Committee. To achieve this aim, this research
analyses the way the Court of Justice of the EU has interpreted Article 51 CFR in relation to
national rules to then turn to an analysis of the petitions; it concludes by recalling
arguments in favour and against a broad application of the Charter; it advocates a more
courageous use of the Charter in those situations that are firmly within the scope of Union
law, and in particular cases of co-ordination of national rules; and Union citizenship cases.
The report is structured as follows.
Section 1, The scope of application of EU fundamental rights before the Charter,
provides a brief historical introduction on the situation before the adoption of the Charter.
This is important since Article 51 CFR, and the Charter more generally, sought to codify the
existing state of the law. This section also briefly recalls the debate surrounding EU
fundamental rights and in particular the fear that the application of the latter might have a
significant impact on national sovereignty and regulatory autonomy.
Section 2, Article 51 Charter: its significance and its interpretation by the Court of
Justice, examines the way Article 51 CFR has been interpreted in relation to acts of
national authorities. It should be recalled that Article 51 CFR applies to Member States only
when they implement Union Law. In particular it focuses on three lines of case law:
Åkerberg Fransson, where a remote link with EU law was sufficient to trigger the Charter;
McB, and N.S., where national acts giving effect to EU co-ordinating rules are subject to a
lighter touch review (or no review); and cases in which the Charter did not apply, either for
lack of a connection with EU law, or because of a restrictive interpretation of the Union
citizenship provisions.
The report concludes that there is a varied application of the Charter which depends on
the area considered (stronger in internal market, weaker in other cases). Furthermore, the
interest in integration is taken into account; and so is the need to ensure the effectiveness
and supremacy of Union law. In cases of co-ordination of national rules the presumption of
uniform compliance with a minimum standard of fundamental rights protection by all
Member States is paramount; and in Treaty cases the Court has retreated from a generous
interpretation of fundamental rights, leaving the Union citizen (especially, but not only, if
non economically active) particularly vulnerable.
Section 3, The petitions to the EP and the Commission’s position, analyses a selection
of petitions received by the PETI Committee where petitioners raised concerns in relation to
alleged violations of the CFR, to assess the extent to which the Charter would have been
applicable in the cases at issue. It divides the petitions in three categories: those where
there is no discernible link with Union law; those where there might have been a potential
link; and those which raise issues in relation to the foundational principles of the EU.
Section 4, The dilemma of a broad or strict application of the Charter, highlights the
policy and legal reasons in favour and against a broad interpretation of the Charter. It
concludes advocating a more consistent, and courageous, use of the Charter in cases of co-
Policy Department C: Citizens' Rights and Constitutional Affairs
____________________________________________________________________________________________
8
ordination of national rules (Asylum, EAW) and in citizenship cases also as a means to raise
the level of protection of fundamental rights in the territory of the EU.
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
____________________________________________________________________________________________
9
1. THE SCOPE OF APPLICATION OF EU FUNDAMENTAL
RIGHTS BEFORE THE CHARTER OF FUNDAMENTAL RIGHTS
KEY FINDINGS
 This section recalls the evolution of the case law of the Court in relation to the
scope of EU fundamental rights. In this respect, before the Charter, the case law
had established that the EU institutions were bound by fundamental rights as
general principles of Union law. More controversially, the Court also established that
national authorities would be bound by EU fundamental rights when
implementing/giving effect to a Regulation, Decision or Directive; and when limiting
one of the Treaty free movement rights.
 The application of EU fundamental rights to the implementing acts of
national authorities is not uncontested since national authorities are already
bound by domestic fundamental rights, which should afford a satisfactory level of
protection. However there might be substantive (higher protection) and procedural
(supremacy) advantages for claimants to rely on EU rather than domestic
fundamental rights.
 The application of EU fundamental rights to national law, especially in fields
where the Union does not have harmonising competence, is seen as constitutionally
problematic in that it might result in competence ‘creep’ where areas reserved to
Member States are reviewed according to EU fundamental rights standards through
a broad interpretation of EU law.
1.1. The Evolution of EU Fundamental Rights: Fundamental Rights as
General Principles of EU Law
In order to understand the discussion about the scope of application of the Charter, as
provided for in Article 51 therein, it is necessary to briefly recall the evolution of EU
fundamental rights as general principles of Union law since the Charter itself sought to
codify the existing fundamental rights framework. A short historical introduction then
allows us to put Article 51 Charter in its historical context.
It is well known that, because of historical circumstances, the original Treaties did not
make any reference to fundamental rights: this omission potentially left a serious gap
in the protection afforded to individuals and companies in the European territory,1
since the
Union institutions had regulatory powers which might have immediate and not mediated
effects on the legal situation of individuals across the Member States.2
National courts,
and especially the German and Italian Constitutional Courts,3
became
understandably concerned that the Union institutions could escape any
fundamental rights scrutiny: the principles of supremacy and direct effect might, if
1
For sake of convenience we will thereinafter only refer to individuals (to mean also corporate entities) unless
otherwise necessary.
2
We will refer to EU/Union throughout even when talking about the former Communities unless it is necessary to
distinguish.
3
Internationale Handelsgesellschaft [1974] 2 CMLR 540 (Solange I); see also Steinike und Weinling … [1980] 2
CMLR 531; and cf also the Italian Constitutional Court rulings Sentenza 7/3/64, n.14 (in F. Sorrentino, Profili
Costituzionali dell’Integrazione Comunitaria, 2nd ed, Giappichelli Editore 1996, p. 61 and ss) and Societá Acciaierie
San Michele v. High Authority (27/12/65, n. 98), [1967] CMLR 160.
Policy Department C: Citizens' Rights and Constitutional Affairs
____________________________________________________________________________________________
10
respected to the full,4
render national constitutional guarantees inapplicable to Union rules;
and, as the European Communities were not signatories to the European Convention of
Human Rights, the residual protection provided for therein would also be inapplicable.
Given the post-was historical context, it is then not surprising that those constitutional
courts entered into a constructive dialogue with the European Court of Justice so as
to ensure that fundamental rights would also be respected by the Community Institutions.
As a result of this dialogue, the Court of Justice held, in the case of Stauder, that
fundamental human rights were ‘enshrined in the general principles of
Community law and protected by the Court’.5
Fundamental rights were then
considered unwritten general principles of (Union) law, binding all of the European
institutions: whilst it was not until the Charter was drafted that the Union equipped itself
with its own catalogue of fundamental rights, the political institutions welcomed the case
law of the Court of Justice,6
and indeed Treaty revisions gradually strengthened
fundamental rights protection in the EU.7
As far as the identification of fundamental rights was concerned, the Court of Justice relied
on a plurality of sources (which also informed the drafting of the Charter): in particular
great weight was given to the common constitutional traditions of the Member States8
and to international treaties for the protection of fundamental rights to which Member
States were signatories or participants.9
Not surprisingly, the most important Treaty in this
respect was the European Convention of Human Rights,10
and broadly speaking the
Court of Justice has been willing to respect not only the Convention but also the guidance
provided by the European Court of Human Rights.11
4
It should be noted though that the views of national constitutional courts as to their obligations and powers in
relation to fundamental rights is not at one with the views of the CJ EU, see recently the order of the
Bundesverfassungsgericht of 15 December 2015, 2 BvR 2735/14,
http://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2016/bvg16-
004.html;jsessionid=17CDEFAB320A8170E548EA4DC69DCDD8.2_cid393. This order is particularly interesting if
seen in the context of the exceptionalism doctrine espoused by the CJ EU in relation to certain matters of EU law
which are based on mutual trust between Member States in Opinion 2/13, EU:C:2014:2454. The latter ruling ha
attracted a great deal of criticism among scholars, see e.g. B De Witte and S Imamović ‘Opinion 2/13 on Accession
to the ECHR: Defending the EU Legal Order Against a Foreign Human Rights Court’ (2015) ELRev 683; E Spaventa
‘A Very Fearful Court: The Protection of Fundamental Rights in the European Union after Opinion 2/13’ (2015)
Maastricht J 35; T Lock ‘The Future of the European Union’s Accession to the European Convention on Human
Rights after Opinion 2/13: is it still possible and is it still desirable? (2015) Eur Const Law Rev 239.
5
Case 29/69 Stauder EU:C:1969:57, para 7 emphasis added.
6
See Joint Declaration of the European Parliament, the Council and the Commission Concerning the Protection of
Fundamental Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms,
[1977] OJ C 103/1.
7
See e.g. the commitment to fundamental rights protection in what was then Art F(2) Maastricht Treaty; the
introduction of a procedure to sanction serious and persistent breaches of fundamental rights by the Member
States in the Amsterdam Treaty (then Art 7 TEU, then modified by the Nice Treaty); the introduction by the
Amsterdam Treaty of Union competence to fight discrimination on grounds other than nationality; the Charter of
Fundamental Right proclaimed in 2000; and the Lisbon Treaty which gave the Charter the same value as the
Treaties, imposed a duty on the Union to accede to the ECHR, as well as introducing other significant changes
from a fundamental rights protection perspective.
8
Case 11/70 Internationale Handelsgesellschaft, EU:C:1970:114, para. 4.
9
Case 4/73 Nold, EU:C:1974:51, para. 13.
10
E.g. Case 222/84 Johnston v Royal Ulster Constabulary, EU:C:1986:206; Case C-260/89 Elliniki Radiophonia
Tiléorassi AE (ERT) v Dimotiki Etairia Pliroforissis and others, EU:C:1991:254.
11
See for instance Case C-94/00 Roquette Frères Sa v Directeur général de la concurrence, de la consomation et
de la répression des fraudes [2002] ECR I-9011 which brought the CJ EU case law in line with the ECtHR ruling in
Niemietz v Germany (1993) Series A Vol 251, 16 EHRR 97. This said the relationship between CJ EU and ECtHR
has become more strained following the CJ EU ruling in Opinion 2/13.
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
____________________________________________________________________________________________
11
1.2. The Scope of Application of EU Fundamental Rights before the
Charter
As mentioned above, the development of EU fundamental rights can be traced to the need
to impose similar limits upon the Union institutions to those applicable to national
authorities. As a result, to start with, EU fundamental rights were invoked mainly in relation
to acts of the Union institutions,12
including as a tool to guide the Court’s interpretation
of the Treaty and secondary legislation.13
However, with time it became clear that EU
fundamental rights might have a role to play also in relation to acts of national
authorities. This development was (and still is) not without its problems since Member
States are equipped with their own constitutional guarantees of fundamental rights
protection;14
furthermore all Member States are parties to the European Convention on
Human Rights. The application of EU fundamental rights might then have the effect of
displacing the national constitutional guarantees also in those cases that have only a slight
connection with Union law; furthermore, it is not always the case that EU standards of
fundamental rights protection are higher or equivalent to the national ones.15
Article 51
Charter must therefore be understood in its constitutional context: if the Union is a system
of conferred powers, with limited – if ever increasing – competences, there is a real fear
amongst at least some of the Member States that fundamental rights might be used to
significantly extend the reach of EU law and subject to EU law matters reserved to the
competences of the Member States.
In order to understand this debate we will then first look at the scope of application of
EU fundamental rights to the acts of Member States. Before the Charter, the Court
distinguished two situations in which EU Fundamental Rights would apply to national
authorities (including national legislatures): when the Member State was implementing
EU law, for instance by implementing a Directive, or giving effect to a Decision or
Regulation;16
and when the Member State was ‘acting within the field’ of Union law
by limiting one of the EU free movement rights.17
The justification for imposing EU
fundamental rights standards in those cases is slightly different: in the case in which the
Member State is implementing or giving effect to secondary legislation, the fundamental
rights limit arises from the very existence of this secondary legislation. A Regulation,
Directive or Decision cannot be interpreted in a way which violates EU fundamental rights;
thus should the Member State exercise its discretion in a way inimical to those very rights it
would indirectly violate that piece of secondary Union law.18
In subsequent, and contested,
case law the CJ EU went a step further by allowing for the possibility to invoke EU
fundamental rights against a private party even when the matter had been attracted within
the scope of Union law by virtue of a Directive, which in itself cannot be invoked against a
private party.19
12
E.g. Case 4/73 Nold v Commission, EU:C:1974:51; but already in Case 36/75 Rutili v Minister for the Interior,
EU:C:1975:137 the Court makes a link between national rules and fundamental rights.
13
E.g. Case 149/77 Defrenne v Sabena (Defrenne III), EU:C:1978:130.
14
Including the UK, even though it has a unique constitutional arrangement also in relation to fundamental rights.
see Human Rights Act 1998.
15
E.g. Case C-377/98 Netherlands v Council (biotechnology directive), EU:C:2001:523; Case C-399/11 Melloni v
Ministerio Fiscal, EU:C:2013:107.
16
E.g. Case 5/88 Wachauf, EU:C:1989:321; Case C-292/97 Karlsson and others, EU:C:2000:202; Joined Cases C-
20/00 and C-64/00 Booker Aquaculture Ltd at al V Scottish Ministers, EU:C:2003:397; there are many
interpretative conundrums in relation to the application of fundamental rights to Directives, for instance on the
relationship between minimum harmonisation and fundamental rights obligations; see F De Cecco ‘Rome to
Move? Minimum harmonization and fundamental rights’ (2006) CMLRev 9; M Bartl and C Leone ‘Minimum
harmonisation after Alemo-Herron: the Janus face of EU fundamental rights review’ (2015) Eur Const Law Rev
140.
17
E.g. Case C-260/89 Elliniki Radiophonia Tiléorassi AE and Panellinia Omospondia Syllogon Prossopikou v
Dimotiki Etairia Pliroforissis and Sotirios Kouvelas and Nicolaos Avdellas and others (ERT), EU:C:1991:254.
18
AG Jacobs in Case 5/88 Wachauf, EU:C:1989:321 argued that the Member State would be bound by EU
fundamental rights in those cases since it acts as a ‘delegated’ power of the EU; however the theory of delegation
only works for those fields where the Union has harmonising competence, and it is not convincing in other cases.
19
Case C-144/04 Mangold [2005] ECR I-9981; Case C-555/07 Kücüdeveci v Swedex [2010] ECR I-365; see
generally E Spaventa ‘The Horizontal Application of Fundamental Rights as General Principles of EU law’ and M
Policy Department C: Citizens' Rights and Constitutional Affairs
____________________________________________________________________________________________
12
In relation to the Treaty free movement provisions, the rationale for imposing Union
fundamental rights is that when an individual has brought her/himself within the scope of
the Treaty by exercising or seeking to exercise her/his Treaty free movement rights the
Member State can limit those rights only to the extent to which this is permissible under
Union law. Hence, the limitation must pursue a legitimate interest and be proportionate.
However, the limitation imposed by the Member State, in order to be tolerated, must also
be consistent with the EU own constitutional values. Thus, for instance, if a Member State
seeks to limit (lacking any secondary legislation) the right of a service provider to provide
information, then it must not only pursue a public policy aim compatible with the Treaty,20
but must also ensure that in doing so it does not infringe EU fundamental rights as
constitutional principles of EU law.
1.3. Fundamental Rights and National Sovereignty
The application of EU fundamental rights upon national authorities' acts or measures has
not been universally welcomed by the Member States. In very simple terms, the issue is
one of sovereignty: why, when Member States have not transferred general fundamental
rights jurisdiction to the EU, should their acts be reviewed also having regard to EU
fundamental rights? It could be argued (and it has been argued) that given that all Member
States have their own fundamental rights guarantees it is those that should be applicable to
the acts of domestic institution. Furthermore, the application of EU fundamental rights
through EU law determines a constitutional anomaly: different legal systems ensure
legislative compliance with fundamental rights in different ways so as to balance different
considerations: for instance legal certainty might militate in favour of a centralised scrutiny
by a specialised court; or a given view of the separation of powers might curtail the extent
to which rules passed through representative democracy can be annulled by the judiciary.
However, once a matter is attracted within the field of Union law, then the principle of
supremacy applies: this means that if a national rule is found to fall within EU law and to
violate fundamental rights, it will not be applicable in the case at issue (but might be
applicable to a purely domestic situation). This determines a considerable procedural
advantage for claimants, and an incentive to claim EU fundamental rights. Take for
instance the case of Carpenter.21
There, the claimant was a British citizen living in the UK
and married to a third country national. Mrs Carpenter’s residence permit was however not
renewed as she had overstayed her residence permit; she was therefore supposed to go
back to her home country and reapply for a residence permit from there. The UK argued
that the case was purely internal, and therefore should be decided pursuant to British law.
The claimants on the other hand argued that since Mr Carpenter was providing services
also in other EU countries, he fell within the scope of EU law; deportation of his wife would,
it was argued, affect his business. Even should the UK rules be justified on public policy
grounds (i.e. to deter irregular migration), the application of such rules to Mr and Mrs
Carpenter should respect the right to family life as (then) a general principle of Union law
and should be proportionate. The Court agreed with the claimants and found that the
application of the rules to Mr and Mrs Carpenter would be an undue interference with their
Dougan ‘In defence of Mangold?’ both in A Arnull, C Barnard, M Dougan, and E Spaventa A Constitutional Order of
States? Essays in EU Law in honour of Alan Dashwood (Oxford, Hart Publishing 2011), Ch 11 and 12 respectively.
The impact of the ruling in Kücüdeveci might be limited to the principle of non-discrimination; in any event, the
Court in Case C-176/12 Association de Médiation Sociale (AMS), EU:C:2014:2, held that Article 27 Charter in
order to be effective must be given more specific expression in European or national law, and therefore could not
be invoked between private parties in a situation that fell within the scope of a Directive.
20
Note however that a link with Union law is always required; whilst in some cases (such as Carpenter) this was
easily stablished, in other it has been refused, e.g. Case C-159/90 Society for the Protection of Unborn Children v
Grogan, EU:C:1991:378; Case C-299/95 Kremzow, EU:C:1997:254; Case C-309/96 Annibaldi, EU:C:1997:631;
Case C-5/12 Betriu Montull, EU:C:2013:571.
21
Case C-60/00 Carpenter, EU:C:2002:434; the effects of the ruling in Carpenter have been significantly curtailed
in Case C-457/12 S and G, EU:C:2014:136 to the extent to which the right to reside of a family member of a own
national worker depends on child rearing responsibilities (sic!) and on whether the family member is the parent or
otherwise of the child to be taken care of.
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
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13
right to family life. Hence, the application of EU free movement rules triggered the
application of EU fundamental rights so that a rule which would have otherwise fallen within
the competence of the UK (visas for spouses of own citizens) became a matter to be
adjudicated by the Court of Justice, with all the procedural and substantive advantages that
that might entail for the claimants.
From a national sovereignty perspective then, the wide application of EU
fundamental rights raises the spectre of competence creep, so that potentially no
area of domestic law can be sheltered from EU scrutiny.
1.4. The Commission’s powers to pursue fundamental rights claims:
the hiatus in the enforcement of Union law.
The application of EU fundamental rights to national rules produces another constitutional
anomaly in that the Commission might not be able to bring infringement
proceedings in relation to a rule of a Member State even when that same rule
might be found, in a concrete case, to be inconsistent with EU law (including
fundamental rights). Thus, for instance, in the Carpenter case recalled above, the
Commission would have no powers under the existing Treaties to bring proceedings against
the UK in relation to British family reunification rules. Yet, the same rules were found to be
inconsistent with Union law, and more precisely with the right to family life as interpreted
by the Court of Justice, when applied to a concrete situation involving a trans-border issue.
It is very important to appreciate the existence of this constitutional hiatus between the
Commission’s powers and the application of EU law in national courts; in relation to the
petitions analysed below, it is not clear that even should a EU trans-border element be
established, the Commission have the power to bring infringement proceedings against the
Member State.
Policy Department C: Citizens' Rights and Constitutional Affairs
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14
2. ARTICLE 51 CHARTER: ITS SIGNIFICANCE AND ITS
INTERPRETATION
KEY FINDINGS
 Article 51 determines the scope of application of the Charter; it provides that
the Charter applies to the acts of the EU institutions; and to the Member States
only when they are implementing EU law. Article 51(2) provides that the
Charter does not extend the field of application of Union law beyond the powers of
the Union and does not give any new powers to the Union. The Court of Justice
has been receptive to the second paragraph and it seems that the scope of
application of EU fundamental rights has become more defined (if not more
narrow) following the Treaty of Lisbon.
 The report divides the case law in three different groups: first we examine
the ruling in Fransson, where the Court accepted that a remote connection
with EU law was enough to trigger the Charter; then we turn to the case law
concerning EU law that co-ordinates rather than harmonises national rules; and
then we analyse the cases where the Charter was found not to apply. The
latter are further divided in those cases where the Court found the connection
with EU law to be insufficient to justify the application of EU law; and the
citizenship cases where the Court by redefining the personal scope of EU law has
impacted on the extent to which the Charter is applicable.
 The report argues that there is a varied application of EU fundamental rights to
national rules: in cases with a stronger EU interest at stake the Charter is
more likely to apply to national rules; in cases concerning co-ordination of
rules, the Charter applies (if at all) only in extreme cases to national
executing authorities; for the rest, the Court has adopted a narrow
interpretation of the scope of application of the Charter by applying a
narrow and utilitarian test, and by redefining the personal scope of the
Treaty.
2.1. Article 51 of the Charter of Fundamental Rights
Article 51(1) defines the scope of application of the Charter; whilst Article 51(2)
clarifies that the Charter does not, in any way, modify the competences and
powers of the Union. Thus, whilst Article 51(1), virtually unchanged between Nice and
Lisbon, codifies the existing case law on the scope of application of fundamental rights as
general principles of Union law,22
the second paragraph of the same provision was intended
to assuage the fears of ‘competence creep’ through the Charter, i.e. the idea that the
Charter could be used to expand the competences of the EU. Article 51(2) was later
amended, mainly at the request of the UK Government.23
The current version of Article 51
reads as follows (changes from original Nice version in italics):
22
Small confusion as to whether cases ‘within’ the scope of Union law were covered by the Charter.
23
See Lord Godsmith’s evidence to the House Of Commons European Union scrutiny Committee The Application of
the EU Charter of Fundamental Rights in the UK: a state of confusion, 43rd Report Session 2013-14,
http://www.publications.parliament.uk/pa/cm201314/cmselect/cmeuleg/979/979.pdf
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
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15
Article 51
Field of application
1. The provisions of this Charter 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. They shall therefore
respect the rights, observe the principles and promote the application thereof in
accordance with their respective powers and respecting the limits of the powers of
the Union as conferred on it in the Treaties.
2. 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.
The preoccupation with competence creep is mirrored in Article 6(1) TEU. There, again, it
is stated that the Charter does not ‘extend in any way the competences of the Union’,24
a
provision clearly intended at ensuring that the Charter would not be used as a gateway to
general fundamental rights competence. This is also confirmed in the explanations to the
Charter25
in relation to the new sentence in Article 51(2). Thus, it is stated that ‘the
reference to the Charter in Article 6 of the Treaty on European Union cannot be understood
as extending by itself the range of Member State action considered to be ‘implementation
of Union law’.
On the other hand, the limited applicability of the Charter to national measures has
also been the subject of criticism: in particular, and give the fact that there is no
effective means to enforce fundamental rights against recalcitrant Member
States, the European Parliament has criticised the interpretation given to Article
51 CFR to the extent to which this frustrates the citizens’ expectation of being protected by
the EU also against acts of their own Member States.26
This said, scholars generally believed that Article 51 CFR just reaffirmed the
existing scope of application of Union fundamental rights:27
hence, the Charter
would be applicable always to the acts of the EU institutions (which are after all the primary
target of its provisions) and to the acts of the Member States only in those cases in which
there was a connection with EU law, either because the Member State is implementing EU
legislation or because it is obliged to respect the constitutional principles of the EU when
limiting one of the EU’s free movement rights.28
However, it should be recalled that the
extent to which fundamental rights applied to national rules was not well defined even
before the amendments to the Charter: for instance, in the Wachauf case the Court
appeared to be limiting the national court’s obligation to apply EU fundamental rights to
24
Article 6(2) also clarifies that accession to the ECHR does not affect the Union’s competences; accession has
been put on hold following the CJ EU ruling in Opinion 2/13, EU:C:2014:2454.
25
(2007) OJ C 303/17; the explanations to the Nice Charter are contained in document Charte 4473/00, Convent
49.
26
See European Parliament resolution of 21 January 2016 on the activities of the Committee on Petitions 2014
(2014/2218(INI)); see also European Parliament resolution of 27 February 2014 on the situation of fundamental
rights in the European Union (2012) (2013/2078(INI)).
27
To start with there was some discussion as to whether the Charter was in fact narrower in its scope than the
general principles because of the fact that the Charter does not refer to Member States acting within the scope of
EU Law (i.e. free movement cases); however, the explanations referred to both situations and the Court soon
indicated as much; see e.g. Case C-256/11 Dereci, EU:C:2011:734.
28
It falls beyond the scope of this report to investigate the further complication arising from Article 52(5) Charter
in relation to the distinction between rights and principles; for an account of recent case law see J Krommendijk
Policy Department C: Citizens' Rights and Constitutional Affairs
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16
national rules to an interpretative obligation, which only stretched ‘so far as possible’.29
Similarly, the case law on the relationship between national rules limiting fundamental
rights and free movement rights was not copious and, in most cases,30
also fostering
internal market effectiveness.
Be as it may, following the constitutionalisation of the Charter it became clear that the
Court was receptive to the amended text of Article 51(2) CFR, even though the
actual text of the Charter or its explanations gave little indication as to the boundaries of its
application to national law: it is fair to state that the Court has proceeded with extreme
caution in demanding Charter compliance by national authorities.31
As this report is concerned with the possibility of invoking the Charter in relation to
Petitions received by the PETI Committee, we will focus on those cases that that are
particularly relevant for those purposes; and we will focus our analysis to the extent to
which the Charter applies to national authorities. In particular, we will recall the case of
Åkerberg Fransson, where the Court gave a very broad interpretation of the connection
required between EU and national law for the purposes of applying the Charter to act of
national authorities (2.2.). We will then examine those cases in which the Court qualified
existing case law, by requiring no, or a ‘light touch’, review in those cases covered by
Regulations aimed at co-ordinating rather than harmonizing national rules (2.3.), to then
turn to those cases in which the Court excluded the relevance of the Charter altogether
(2.4.)
2.2. The extensive interpretation of EU law: Åkerberg Fransson
In Åkerberg Fransson32
the national proceedings at issue concerned tax fraud, which
happened to include a VAT fraud element. Mr Åkberger Fransson was seeking the
unmediated application of the Charter, in particular Article 50 of the Charter
which guarantees ne bis in idem; he was not relying on a specific provision of EU
law. Despite the Member States’ protestations, the Court found that the Charter
applied, since a loss of revenue arising from the failed collection of VAT also entailed a
loss of revenue for the EU budget. For this reason, the claimant could rely directly on
the Charter to invoke the ne bis in idem principle. It would be fair to say that the Åkberger
Fransson ruling was received with a certain perplexity by the scholars (and with hostility by
the Member States) since it was considered that the link between EU law and the case at
issue was too tenuous to trigger the application of the Charter.
‘Principled silence or mere silence on principles? The role of the EU Charter's principles in the case law of the Court
of Justice’ (2015) Eur Const Law Rev 321.
29
Case C-5/88 Wachauf, EU:C:1989:321, para 19.
30
Cases of conflict between the exercise of free movement rights and fundamental rights are few: e.g. Case C-
368/95 Familiapress, where the Court left the assessment to the national court; Case C-36/02 Omega,
EU:C:2004:614; more problematic the situation when the application of the Treaty free movement provisions
determines a ‘centralised’ approach capable of displacing (potentially or in fact) national fundamental rights: e.g.
Case C-112/00 Schmidberger, EU:C:2003:333; Case C-438/05 International Transport Workers’ Federation and
The Finnish Seamen’s Union v Viking Line et al, EU:C:2007:772; see also Case C-341/05 Laval un Partneri,
EU:C:2007:809. On these issues see E Spaventa ‘Federalisation versus Centralisation: tensions in fundamental
rights discourse in the EU’ in S Currie M Dougan 50 years of the European Treaties: Looking backwards Thinking
Forward, Hart publishing 2009, 343.
31
For a general overview of EU fundamental rights protection (but pre-Fransson and Melloni) see S de Vries, U
Bernitz and S Weatherill (eds) The Protection of EU Fundamental Rights after Lisbon (Hart Publishing 2013); on
the scope of the Charter see generally M Dougan ‘Judicial review of Member State action under the general
principles and the Charter: defining the ‘scope of Union law’ (2015) CMLRev 1201.
32
Case C-617/10 Åkerberg Fransson, EU:C:2013:105; and see F Fontanelli ‘Implementation of EU law through
domestic measures after Fransson: the Court of Justice buys time and ‘non-preclusion’ troubles loom large’ (2014)
ELRev 682.
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
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17
Yet, it is possible that Åkberger Fransson is more limited in its effects than it had been
initially thought: this is not only since the Court later provided a more restrictive
interpretation of the connection with EU law needed to invoke the Charter,33
but also
because it might be that the expansive interpretation in Fransson is due to two
considerations: first of all, VAT having been the subject of harmonisation is a matter falling
within the scope of EU law; and penalties for infringement of VAT are closely related to VAT
collection. Secondly, the strategic importance of VAT collection for the EU budget might
justify, at least in the eyes of the Court, a more intrusive stance: thus for instance in
Taricco,34
the Court greatly impinged on national procedural autonomy35
when it found
that Italian rules on limitation periods in relation to criminal offences relating to VAT fraud
fell within the scope of EU law, so much so that they might have to be disregarded to
avoid a situation in which actions for VAT fraud would routinely be abandoned because of
the combined effect of the complexities of the proceedings and the limitation period.
2.3. The application of the Charter to executing national authorities:
McB and N.S.
Possibly the most significant effect of the Charter, in relation to Member States, was to
alert national courts to the potential of EU fundamental rights. In this regard, it is striking
that in the forty year or so preceding the Charter, national courts made very few
preliminary references to enquire as to the exact obligations imposed upon Member States
when implementing Union law. If one of the main aims of the Charter was to make EU
fundamental rights ‘more visible’, it certainly succeeded and after the Charter we see a
dramatic increase in requests for a preliminary reference on the extent to which
EU fundamental rights are applicable to acts of the Member States. And yet, it also
became clear that the intersection between EU fundamental rights and national law
is incredibly complex: in particular, in a system of conferred competences, where the EU
can only act when it has been equipped to do so by the Member States, there is a risk that
either fundamental rights impact on areas which the State had wanted to reserve for
themselves36
, or that fundamental rights of individuals are left unprotected when Member
States act on the basis of EU law.
In the case of McB,37
the first preliminary reference on the interpretation of Article 51(2) of
the Charter, the potential for complexity became apparent. Here, the case related to
Regulation 2201/2003 (the Brussels II Regulation) which, amongst other things,
determines jurisdiction when a child has been wrongfully removed from one Member State
to another. In the case at issue, Mr McB was an Irish national who had three children with a
British national. Eventually the mother decided to flee Ireland taking the children with her.
The father initiated proceedings for custody in the Irish courts and then proceedings in the
UK courts to obtain an order that the children be returned to Ireland pursuant to the
Brussels II Regulation. The British courts requested Mr McB to obtain a certificate declaring
33
Case C-206/13 Siragusa, EU:C:2014:126, examined further below.
34
Case C-105/14 Taricco, EU:C:2015:555; see also Joined Cases C-286/94, C-340/95, C-401/95 and C-47/96
Garage Molenheide, EU:C:1997:623.
35
The principle of national procedural autonomy entails that rules of procedure, including time limits, are in
principle reserved to the Member States, subject to the principles of equivalence (equal treatment with
comparable non EU claims) and effectiveness (exercised of EU law derived rights is not rendered excessively
difficult).
36
This was evident also before the adoption of the Charter: take for instance Case C-60/00 Carpenter,
EU:C:2002:434, in which the effect of the case law of the fundamental rights jurisprudence of the Court was to
assess the proportionality of the denial of a residence permit to the third country national spouse of a British
citizen living in the UK. Or the case of Metock (C-127/08, EU:C:2008:449), in relation to the fact that a third
country national unlawfully present in the EU would be able to rectify her irregular migration status through
marriage to a Union migrant.
37
Case C-400/10 PPU McB, EU:C:2010:582.
Policy Department C: Citizens' Rights and Constitutional Affairs
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18
that the removal of the children from the Irish jurisdiction had been wrongful, since the
relevant provisions of the Brussels II Regulation only apply in that circumstance. The Irish
Court held that the removal was not wrongful pursuant to the Brussels II Regulation since,
at the time when the children had left the Irish territory, Mr McB did not have custody
rights of his children. Pursuant to Irish law, when the parents are not married the natural
father gains custody rights only following a court order (or in agreement with the mother).
The issue for consideration by the Court of Justice was then whether the Irish rules on
custody were incompatible with Union law interpreted in the light of Article 7 of
the Charter (right to private and family life). One of Mr McB’s arguments was in fact that
since the Irish Court would be applying the Brussels II Regulation, then the matter fell
within the scope of the Charter pursuant to Article 51. In that case, on a preliminary
reference, it would be for the Court of Justice to assess (indirectly) the compatibility of the
Irish rules on the determination of paternity with EU fundamental rights. However, the EU
does not have harmonising competence in relation to family law. The preliminary ruling
request then uncovered a potential area of tension when the situation is attracted within
the scope of EU law by a co-ordinating piece of legislation, i.e. by rules aimed at coordinating
the exercise of Member States competences rather than at harmonising
them, since the application of EU fundamental rights in that case might have the effect of
imposing a European standard on a matter otherwise reserved to the competence of the
Member States. Yet, pursuant to the orthodox understanding of the case law, EU
fundamental rights would apply to acts of Member States (including their national courts)
when those are implementing EU law by applying the provisions of a Regulation.
The Court relied on Article 51(2) to ensure that the effect of the Charter did not impinge on
the repartition of competences between the EU and its Member States. It held:
51. First, according to Article 51(1) of the Charter, its provisions are addressed to the
Member States only when they are implementing European Union law. Under Article
51(2), the Charter does not extend the field of application of European Union law
beyond the powers of the Union, and it does not ‘establish any new power or task for
the Union, or modify powers and tasks as defined in the Treaties’. Accordingly, the
Court is called upon to interpret, in the light of the Charter, the law of the European
Union within the limits of the powers conferred on it.
52. It follows that, in the context of this case, the Charter should be taken into
consideration solely for the purposes of interpreting Regulation
No 2201/2003, and there should be no assessment of national law as such.
More specifically, the question is whether the provisions of the Charter preclude the
interpretation of that regulation set out in paragraph 44 of this judgment, taking into
account, in particular, the reference to national law which that interpretation
involves.38
In McB the Court then clarifies that, at least in certain cases where the Member State is
applying EU Law, national rules remain outside the scope of the Charter. However, in the
case at issue, this does not mean that the individual is hence deprived of the protection
afforded by the Charter; rather this protection is mediated, in that it is the piece of EU law
which refers to the substantive provisions of national law that is assessed vis-à-vis Charter
rights. The end result then is similar (the Court did consider after all whether the rules
denying automatic custody rights to unmarried natural fathers were compatible with EU
fundamental rights), but the distinction is constitutionally very important: in McB the
38
Case C-400/10 PPU McB, EU:C:2010:582, emphasis added.
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
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19
Court attempts to ensure that the Charter might not be used as a tool to broaden
the impact of EU law on national law. Furthermore, this is important also in relation to
the role played by the Commission in these cases since, following McB although arguably
even before, it is clear that it would not be possible for the Commission to bring
infringement proceedings against a Member State in those instances: if anything, there
would be a question of the compatibility of EU law (as interpreted by the Court) with the
Charter.
In N.S.,39
the Court further limited the extent to which national courts are able to
directly apply the Charter (or their own fundamental rights standards) in cases in
which a Regulation is designed to determine the jurisdiction over given claims.
The case related to the Dublin II Regulation which allocated jurisdiction for asylum
claims:40
lacking any other connecting factor, the first port of entry is responsible to
process asylum claims so that the asylum seeker claiming asylum in another Member State
can be returned to the first port of entry to have her claim processed there. The Dublin II
Regulation also included a reserve of sovereignty for Member States so that the
competent national authority could always decide to process the asylum claim even when it
was not the first port of entry. In N.S. asylum seekers who had entered the territory of the
EU through Greece and had then arrived in the UK faced being returned to Greece, as that
was the first port of entry. They argued, however, that given the situation in Greece, where
there were serious and documented problems both with the treatment of asylum seekers
and with the way claims were processed, the UK could not return them there as that would
put the claimants at risk of being subjected to degrading and inhuman treatment in breach
of Article 4 of the Charter and 3 of the ECHR. Thus, in the claimants’ opinion, the UK was
under a duty to exercise its discretion and process the asylum claims.41
The first issue for
consideration was then whether a Member State is ‘implementing’ the Charter when it is
conferred discretion whether or not to act by a Union law instrument. It was only if the
Court found this to be the case that the Charter would be applicable and the asylum
seekers’ rights might be protected by the Union.
The Court found that when deciding whether to exercise discretion, i.e. whether
to process the asylum claim, the UK was still ‘implementing’ EU law, so that the
Charter would be applicable; however, the Court also gave considerable weight to
the need to ensure the functioning of the Dublin system so that it was only in
extreme circumstances that the Charter would be relevant in these cases. 42
39
Joined Cases C-411/10 and C-483/10 N.S. and others, EU:C:2011:865.
40
Council Regulation 343/2003 establishing the criteria and mechanisms for determining the Member State
responsible for examining an asylum application lodged in one of the Member States [2003] OJ L 50/1; Regulation
343/2013 has now (and after the N.S. case) been repealed and substituted with Regulation 604/2013 establishing
the criteria and mechanisms for determining the Member State responsible for examining an application for
international protection lodged in one of the Member States by a third-country national or a stateless person
[2013] OJ 180/31; following the migration crisis the Commission is looking into a comprehensive reform of the
system, see D Robinson How the EU plans to overhaul ‘Dublin Regulation’ on asylum claims, FT 20 January 2016,
http://www.ft.com/cms/s/2/d08dc262-bed1-11e5-9fdb-87b8d15baec2.html#axzz3yv5xcQLG.
41
In M.S.S. v Belgium and Greece (Appl. No. 30696/09), ECtHR Grand Chamber ruling, the European Court of
Human Rights found that Member States had a duty to exercise jurisdiction, even under the Dublin system, when
returning the asylum seeker to the first port of entry would entail a breach (or a risk thereof) of Article 3 ECHR;
see also Tarakhel v Switzerland(Appl. No. 29217/12) on the Swiss authorities’ obligation to seek guarantees as to
the existence of adequate housing in Italy before being able to transfer the asylum seeker there.
42
The Court held that a duty to process a claim exercising the reserve of sovereignty arose only ‘where they
[national authorities] cannot be unaware that systemic deficiencies in the asylum procedure and in the reception
conditions of asylum seekers in that Member State [the Member State otherwise competent to process the claim,
in this case Greece] amount to substantial grounds for believing that the asylum seeker would face a real risk of
being subjected to inhuman or degrading treatment within the meaning of that provision.’ (Joined Cases C-411/10
and C-4983/10 N.S. and others, EU:C:2011:865, operative part of the ruling).
Policy Department C: Citizens' Rights and Constitutional Affairs
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The rulings in McB and N.S. therefore somehow limit the impact of the Charter even in
those cases in which the national authorities are giving effect to Union law. In fact, and
with the benefit of hindsight following Opinion 2/13 on the accession of the EU to the
ECHR,43
both cases might be seen as an example of ‘exceptionalism’, where the
application of the Charter to national rules is limited to ensure the full
effectiveness of EU rules. Underlying this case law is the idea, dear to the Court, that
further integration in fundamental rights sensitive matters (asylum, but also the functioning
of the European Arrest Warrant) is premised on mutual trust between the Member
States. Co-ordinating legislation is only effective if all the States (and crucially the
European legislature) start from the premise of adequate fundamental rights
protection across the territory of the EU. It is therefore not for the executing authority
to syndicate or scrutinise whether the premise of ‘adequate fundamental rights’ protection
is based on sound foundations since if national courts were given the power to scrutinise
fundamental rights compliance in other Member States, then the effectiveness of these
Regulations would be impaired. It should however be noted that national constitutional
courts might be unwilling to provide the EU with such a blank cheque, and the German
Constitutional Court has recently delivered a ruling reasserting its jurisdiction in
ensuring that the principle of mutual trust that underlines the European Arrest
Warrant does not infringe crucial constitutional guarantees (and in particular the
identity clause) contained in the German Basic Law.44
2.4. Cases where the Court found that the Charter did not apply
Finally, we should consider those cases where the Court found that the Charter of
Fundamental Rights was not relevant to the situation at issue; this it did either
because of a lack of connection with EU law (2.4.1.); or because, even though there was a
connection to EU law, the applicant somehow did not fall within the personal scope of EU
law (2.4.2.). The two situations will be looked at separately.
2.4.1 Lack of Connection with EU Law
As said above the Charter applies to Member States only when they are implementing EU
law, which is to say when they either give effect to an EU Regulation or Decision; when
they implement a Directive; or when they limit a Treaty free movement right.45
In this first
group of cases here analysed, the Court found that there was no connection with EU law
and that therefore the Charter could not be applied.
In Siragusa, Mr Siragusa having failed to comply with Italian landscape conservation rules
and having being ordered to restore the site to its former state argued that the Italian rules
at issue were inconsistent with the right to property as guaranteed by the Charter, and with
the general principle of proportionality as guaranteed by EU law.46
The national court found
that there might be a link with EU environmental law. The Court provided us with a test on
how to determine whether national rules are ‘implementing EU law’ for the
purposes of Article 51 Charter, when those rules are not themselves giving effect to a
piece of EU law, but happen to be in a field which is related to one occupied by EU
43
Opinion2/13, EU:C:2014:2454.
44
2 BvR 2535, 14.
45
For cases declared inadmissible for lack of a connection with EU law, before the ruling in Case C-206/13
Siragusa, EU:C:2014:126, see e.g. Case C-2711/ Vikov, EU:C:2012:326; Case C-5/12 Betriu Montull,
EU:C:2013:571.
46
The factual circumstances are not so dissimilar to those examined in Case C-309/96 Annibaldi, EU:C:1997:631,
which following the mention in the explanations to the Charter and the ruling in Siragusa, has acquired a new
lease of life.
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
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21
Law (such as it is undoubtedly the case in relation to national conservation rules vis-à-vis
EU environmental protection rules). It therefore identified the following as relevant
criteria:47
(i) whether the national rule is intended to implement EU law;
(ii) the nature of the rule and whether it pursues objectives other than those
covered by EU law, even if it is capable of indirectly affecting EU law;48
(iii) whether there are specific EU law rule on the matter or whether there are EU
law rules that are capable of having an effect on the matter.49
Furthermore, the Court held that the Charter would not be applicable in those situations in
which 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’.50
More worryingly, the Court also gave a very narrow, and possibly rather parochial,
view of the purpose of EU fundamental rights, at least in relation to the extent to
which such rights apply to national rules by linking fundamental rights protection
to the need to preserve the unity, primacy and effectiveness of EU law.51
In this
way, fundamental rights protection is seen as instrumental to the achievement of
the EU own constitutional goals rather than aimed primarily at ensuring that a
minimum standard of fundamental rights protection is always guaranteed when
the Member State is acting within the EU constitutional system.
The ruling in Siragusa has been reaffirmed in subsequent case law; specifically, in
Hernández,52
the Court applied the same test to exclude the relevance of the Charter
in a situation which had a stronger connection with Union law. Here, employees
were dismissed; such dismissals were then found to be invalid; however, the relevant
companies had in the meantime ceased their activities with the result that employment was
terminated. The companies were instructed by the national court to pay the relevant
wages, and Fogasa (the Wages Guarantee Fund) was ordered to guarantee such payment
within the statutory limits. However, because the dismissals had been held by the national
court to be invalid rather than unfair, the employees received a lesser compensation that
they would have been entitled to had the companies not ceased their activities, or had their
dismissal been qualified as unfair. The national court therefore referred a question as to the
compatibility of the national rules treating unfair and invalid dismissal in a different way
with Article 20 of the Charter which guarantees the principle of equality before the law.
47
Case C-206/13 Siragusa, EU:C:2014:126, para 25 ‘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 affecting EU
Law; and also whether there are specific rules of EU law on the matter or capable of affecting it.’ The list appears
to be non-exhaustive (some of the points to be determined) and possibly cumulative in that more than one of
these criteria might be relevant. At the end of the day, though, the matter is really one of proximity between
national rule and EU law, however that proximity might be demonstrated. It is not clear whether Case C-617/10
Åkerberg Fransson, EU:C:2013:105, examined above, would have passed the Siragusa test.
48
See for an example Case C-198/13 Hernández and others, EU:C:2014:2055, discussed below, where the Court
gave great weight to the fact that the legislation at issue was pursuing an aim other than that pursued by the
relevant directive (see esp para 41); see also Case C-265/13 Torralbo Marcos, EU:C:2014:187, also discussed
below.
49
The English version of the ruling is not all that clear, the Italian version appears to be clearer but see also the
French version.
50
Case C-206/13 Siragusa, EU:C:2014:126, para 26.
51
Case C-206/13 Siragusa, EU:C:2014:126, para 32; see also Case C-198/13 Hernández and others,
EU:C:2014:2055, para 41. For a more optimistic view of the link between fundamental rights and effectiveness
and supremacy see M Dougan ‘Judicial review of Member State action under the general principles and the
Charter: defining the ‘scope of Union law’ (2015) CMLRev 1201.
52
Case C-198/13 Hernández and others, EU:C:2014:2055.
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In this case, the field was partially ‘occupied’ by Union law, in that Fogasa had been
established pursuant to Directive 2008/94 as the guarantee institution for remuneration
owed to employees in the event of the insolvency of the employer.53
The Court found that
Fogasa had discharged its duty under the directive; the claim for additional payment was
based on national law intended to remedy (for the employer but by subrogation in
insolvency cases payable to the employee) the delays in the administration of justice, and
was therefore not connected with the aims of Directive 2008/94, rather being the result of
the exercise of the State’s exclusive competence. The Court then reaffirmed that the
‘reason for pursuing the objective of protecting fundamental rights in EU law, as regards
both action at EU level and the implementation of EU law by the Member States, 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’.54
As there was no such risk in the case at issue, there was no
reason for an application of the Charter.
In Torralbo Marcos,55
the situation related again to a claim for payment of wages in
relation to insolvency of the employer. In this case, however, the Charter was invoked to
challenge the request for payment of court fees which, it was argued, were contrary to the
right to an effective remedy guaranteed by Article 47 Charter. The fees were to be paid in
relation to an appeal to obtain a legal declaration of the insolvency of the employer in order
to access the competent guarantee institution (Fogasa), in accordance with Directive
2008/94. The connection with Union law in this case could then be said to be strong as the
declaration was a condition to access guarantees provided by Union law. The Court found
that the rules at issue concerned the administration of justice and that there were no
specific EU rules regulating the matter. Whilst it was true that Mr Torralbo Marcos was
seeking a declaration of insolvency so as to trigger the protection guaranteed by Directive
2008/94, the latter Directive had not yet been engaged since there was no declaration of
insolvency, which was a matter for national law. As a result the situation did not (yet) fall
within the scope of Union law, and the Charter could not be applied. The ruling in Torralbo
Marcos is particularly interesting because it places the claimant in a catch 22
situation: in order to access the guarantees provided by Union law, the claimant needs a
declaration of insolvency, yet he might be unable to get such a declaration if the fees
applicable are too high. In this respect, the interpretation of Article 51 CFR is here
extremely narrow, and possibly inimical to the aim to ensure the effectiveness of
EU law. In this respect, it might be interesting to recall the above mentioned case of
Taricco, where the Court had no problem in curtailing the principle of national procedural
autonomy in a case in which national rules might have the effect of undermining the Union
interest in recovering unpaid VAT.
In any event, it is clear that the Court of Justice has interpreted Article 51 of the
Charter to ensure only a very limited and subsidiary protection in relation to
national rules; in so doing it has placed the fundamental rights ball back in the
national courts’ courtyard, potentially at the expenses of the protection of
citizens' fundamental rights. 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.56
It remains to be seen though whether the Siragusa
test also extends to those situations which are covered by the Treaty free movement
provisions. If that were the case, the scope of the Charter would be reduced even further.
53
Directive 2008/94 on the protection of employees in the event of the insolvency of their employer (2008) OJ L
283/36.
54
Case C-198/13 Hernández and others, EU:C:2014:2055, para 47, emphasis added.
55
Case C-265/13 Torralbo Marcos, EU:C:2014:187..
56
However, and to be clear, when there is a direct connection between national rule and EU law, the Charter does
apply, see e.g. Case C-56/13 Érsekcsanádi Mezőgazdasági Zrt v Bács-Kiskun Megyei Kormányhivatal,
EU:C:2014:352.
The interpretation of Article 51 of the EU Charter of Fundamental Rights: the dilemma of stricter or broader
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2.4.2. Narrowing the interpretation of the Treaty: the new wave of EU citizenship cases
As mentioned above, EU fundamental rights, and the Charter, apply not only when
the Member State is giving effect to EU law by implementing it but also when the
Member State is seeking to derogate or limit one of the free movement provisions.
In those instances, the Member State is acting within the scope of EU law since it can only
limit or derogate from a Treaty right to the extent to which that is consistent with the
Treaty, as interpreted by the Court of Justice. Since limits and derogations must be
consistent with the Treaty, they also have to be consistent with its constitutional principles,
including EU fundamental rights.
As explained above, at a certain point in time, this interpretation entailed a
pervasive reach of EU fundamental rights; moreover, in some cases the standard of
protection provided for by EU law would be higher than that provided by national law,
either because of a more generous interpretation of a given fundamental right,57
or
because of procedural advantages linked to invoking EU law through the principle of
supremacy and direct effect.58
The introduction of Union citizenship, which weakened the link between economic
activity and migration in order to fall within the scope of the Treaty, further broadened
the potential impact of EU fundamental rights: if more rules could be construed as a
limitation to Treaty rights, then more rules could potentially be assessed in relation to their
fundamental rights compliance, including for instance rules on surnames,59
and rules on
the residency rights of third country national family members.60
In the past five year or
so however, the Court has considerably narrowed its interpretation of the EU
citizenship provisions: for instance in Alokpa,61
the case concerned the third country
national mother of two French children residing in Luxembourg; Ms Alokpa attempted to
rely on her children’s Union citizenship right to reside anywhere in the EU to obtain a work
permit. Without a job she was not able to support the children, who would then fail the
self-sufficiency test under the Free Movement Directive 2004/38. However, had she been
allowed to work, her children would have been able to establish a residence right in
Luxembourg and therefore take full advantage of their EU free movement right. A
purposive interpretation of the Treaty therefore clearly militated in favour of granting Ms
Alokpa the right to work. Yet the Court found that since her children, as matters stood,
were not self-sufficient they did not have a right to reside in Luxembourg, and therefore
their mother could not invoke a derivative right to work and reside there. Furthermore, in a
situation which arguably fell squarely within the Treaty free movement
provisions, since Article 21 TFEU has been triggered, the Court failed to assess
whether the national rules at issue were compatible with the Charter.
In Dano62
the CJ EU indicated that the economically inactive Union citizen falls within
the scope of EU law only insofar as she meets the black letter requirements of
economic self-sufficiency and comprehensive health insurance contained in the
57
As it was the case in Case C-60/00 Carpenter, EU:C:2002:434.
58
This said, in some instances the Court’s interpretation has been to the detriment of non-economic fundamental
rights, most notably in the Viking and Laval cases (Case C-438/05, EU:C:2007:772; and Case C-341/05
EU:C:2007:809).
59
Case C-148/02 Garcia Avello EU:C:2003:539, Case C-208/09 Ilonka Sayn-Wittgenstein, EU:C:2010:806; Case
C-256/11 Dereci, EU:C:2011:734.
60
E.g. Case C-356/11 O and S, :EU:C:2012:776; Case C-256/11 Dereci, EU:C:2011:734.
61
Case C-86/12 Alokpa v Ministre du Travail, de l’Emploi et de l’Immigration EU:C:2013:645; see also Case C-
40/11 Iida, EU:C:2012:691.
62
Case C-333/13, Dano, EU:C:2014:2358. The restrictive approach to citizen’s rights is also visible in a line of
case law concerning the enhanced protection from expulsion measures which arises, pursuant to Directive
2004/38, after 5 and ten years of residence in the host state – also in those cases which fell within the scope of
EU law, the Court failed to remind the national court of their EU fundamental rights obligations; see e.g. Case C-
348/09, PI, EU:C:2012:300.
Policy Department C: Citizens' Rights and Constitutional Affairs
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Free Movement Directive 2004/38.63
This has far reaching repercussions since if before
the migrant citizen could always rely on a minimum of EU fundamental rights protection –
at least in relation to those rules that affected her migration rights – this is no longer
possible. It is only when the migrant has sufficient resources and comprehensive health
insurance that she might be able to also claim the protection of EU fundamental rights visà-vis
national rules affecting her migration rights.
In any event, and more generally, the stress on the Member States’ duty to respect
EU fundamental rights when limiting Union national migration rights, if existing at
all, is much less prominent than it was before the Charter acquired its full legal
status.
2.5. Preliminary conclusions: EU fundamental rights and European
integration
The case law analysed above shows the level of complexity inherent in assessing the
scope of application of the Charter to national measures. To summarise:
 There is a varied approach to the Charter, according to type of interest and area
considered. In the case of co-ordinating pieces of legislation, the obligations of
national executing courts to apply the Charter is reduced.
 EU fundamental rights are seen (also?) as a means to an end: to ensure
supremacy and effectiveness of EU law.
 The interest in integration is a relevant consideration so that some areas, and in
particular those where there is a strong EU interest, fall more easily within the scope
of EU law.
 On the other hand when the application of EU fundamental rights (e.g. asylum;
European arrest warrant) would undermine the effectiveness of EU legislation, then
the presumption of compliance with fundamental rights by all Member States
takes precedence over the potential breach of fundamental rights of a given
claimant.
 Similarly, in Treaty based cases the Court has retreated from a generous
application of fundamental rights thus assuaging fears about competence creep
and undue interference with the sovereignty of Member States (especially in the field
of migration of third country nationals, either through the Dublin system or as a
consequence of the derived rights of family members of EU citizens movers).
 In certain areas there appears to be a hiatus between the operation of primary or
even secondary EU law at national level (as interpreted by the CJ EU in preliminary
references) and the powers of the Commission to bring proceedings for infringement
of EU law.
In this respect it should be considered whether the Court’s approach to the application
of the Charter is not unduly restrictive and whether it does not end up frustrating the
expectations of citizens to a meaningful protection of their fundamental rights.
Furthermore, in some cases it is the very operation of Union law (asylum, EAW) that
might have the effect of weakening the protection of fundamental rights for
individuals. It is open to debate whether such results are required by the Charter: indeed
63
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of
the Union and their family members to move and reside freely within the territory of the Member States, O.J.
2004, L 158/77.
The interpretation of Article 51 of the EU Charter of Fundamental Rights: the dilemma of stricter or broader
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25
the more recent case law on Union citizenship, pursuant to which Union citizens are
only protected to the extent to which they bring themselves within the scope of Directive
2004/38 on free movement - hence negating any scope for the residual protection
previously offered through the direct application of the Treaty citizenship provisions - is a
choice of interpretation, and a debatable one at that.
Moreover, even without applying the Charter to national measures, in cases which relate to
the operation of the Dublin system or the European Arrest Warrant, the EU interest in coordination
of national rules should be subsidiary to the EU duty to respect fundamental
rights. If the operation of these instruments has the effect of weakening (at times
considerably) the protection of individuals then either such instruments should be
found altogether incompatible with the Charter; or their operation should be
made conditional to the existence of adequate fundamental rights guarantees in
both the executing Member State and the Member State to take responsibility for
the individual.
Lacking an effective mechanism for the EU to enforce the fundamental rights
obligations of its Member States, there should be little space for an abstract
presumption of minimum compliance across the territory of the EU.
Policy Department C: Citizens' Rights and Constitutional Affairs
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3. THE PETITIONS TO THE EUROPEAN PARLIAMENT AND
THE COMMISSION’S POSITION
KEY FINDINGS
 This section analyses a selection of petitions received by the PETI committee
where citizens alleged a potential infringement of the Charter, which were
dismissed by the Commission, except in one case.
 It divides the petitions in three groups: those were there was no discernible
connection with EU law; those where a connection might have been found; and
petitions relating to the infringement of foundational principles of the EU.
 It overall finds the Commission’s approach justifiable in the view of the CJ EU
jurisprudence, with the notable exception of the petitions on the right to collective
bargaining in Greece.
3.1 Introduction
The brief outline provided for above is aimed at highlighting both the current state of the
law and the legal and policy problems inherent in the debate about fundamental rights in
the European Union. In particular it is important to recall the following:
 At least some Member States are sceptical about the application of EU fundamental
rights to national laws since they consider that approach an unjustified interference
with their sovereignty; and/or they believe that their national constitutional
instruments are more than sufficient to guarantee fundamental rights protection in
their territory;
 At least some national courts are equally sceptical believing that the Court of Justice
might not necessarily guarantee the same level of protection and/or might privilege
integration / economic rights to the detriment of other rights (as proven by the dicta
in Siragusa but also by the failure of the CJ EU to engage with the national courts’
perplexities in relation to the compatibility of the operation of the EAW with
fundamental rights).
 Following the Treaty of Lisbon and the constitutionalisation of the Charter the CJ EU
has become more careful in delimiting the scope of application of the Charter, to the
point of significantly reducing its impact on national rules.
However, and the above notwithstanding, the situation from the viewpoint of the
citizen might be not particularly satisfactory. The plurality of sources of
fundamental rights protection (national, EU and international) and the complexity of their
interaction might prove to be not only confusing but also have the effect to weaken rather
than strengthen fundamental rights protection. In this respect, it should be noted how
most of the petitions included in the selection for this study and received by the
European Parliament’s Committee on Petitions to demand the protection of
fundamental rights would not fall within the scope of the Charter having regard to
the case law of the Court. In some cases however, there might have been space
for a more proactive interpretation. I will divide the petitions according to the following
categories:
The interpretation of Article 51 of the EU Charter of Fundamental Rights: the dilemma of stricter or broader
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27
(i) petitions where there is no discernible link with EU law;
(ii) petitions where the Commission’s assessment might seem unduly
restrictive;
(iii) petitions that raise macro-constitutional concerns in relation to
foundational principles.
It should be noted that twenty petitions were forwarded for the purposes of this report: of
these, only one was found by the Commission to fall within the scope of EU law.64
3.2. Petitions where there is no discernible link with EU Law
A number of petitions contained no discernible link with EU law, even should the
latter be given a very broad interpretation (i.e. even regardless of the Siragusa test
mentioned above). In this category, the highest proportion related to cases concerning
custody rights in relation to children.65
It should be remembered that custody cases
might fall within the scope of EU law only to the extent to which there (i) is a cross-border
dimension; and either (ii) the Brussels II Regulation is engaged;66
or (iii) the action of the
authority limits the right to move of one of the claimants. Of the petitions examined, only
in two cases there might have been an EU cross-border issue in the form of a limitation on
the right to travel of the complainant;67
however, even though such a limitation falls
squarely within the scope of the free movement provisions, it would be easily justified on
public policy grounds (need to protect vulnerable minors would be of paramount
importance and so would the best interest of the child) and therefore any action from the
Commission would be unlikely to succeed. In any event, the fundamental rights scrutiny
would be confined to the rule that limits the free movement rights (the travel ban) and
would not extend to the procedural and substantial issues concerning custody rights.
Other petitions grouped in this category include objections to rules on the changes in
disability pension,68
where there was no cross-border link and where no provision of EU
law had been engaged; rules providing a different age of consent for same sex
intercourse vis-à-vis hetero-sexual intercourse, a matter that has already been found
to infringe the ECHR but which does not fall per se within the scope of EU law;69
legislative
changes to employment law justified by the austerity program absent any crossborder
issue and given that there is no provision of EU law secondary legislation regulating
the contracts at issue;70
the refusal to provide access to the geological assessment
carried out in relation to the construction of a school;71
discrimination of a disabled man
by the judiciary and the police;72
and a request that war crimes perpetrated during the
Spanish Civil War and Franco dictatorship be investigated.73
64
Petitions no 689/ 1998, 508/2007, 1152/2011 and 2788/2013, on language assistants in Italy (Article 45(1)).
65
Petition 59/2013 removal from parental care; Petition 542/2013 custody rights; Petition 1234/2013 breach of
children’s rights; Petition 2543/2013 removal of child from parental care; Petition 344/2014 violation of custody
rights.
66
But please note that pursuant to the ruling in Case C-400/10 PPU McB, EU:C:2010:582, discussed above section
2.2, in those cases in which the Brussels II Regulation is engaged the Charter applies only to the interpretation of
the Regulation and not to national law itself.
67
Petition 2543/2013) removal of child from parental care; Petition 344/2014 violation of custody rights.
68
Petition 279/2012, disability pension.
69
Petition 1395/2012 discrimination of homosexuals.
70
Petitions 1367/2012 1929/2012 right to employment and austerity; it is not clear whether the measures
complained about where part of policies demanded by the ESM. If that were the case the same considerations
discussed in section 3.3.2 apply.
71
Petition 1448/2013 on right of access to public information.
72
Petition 2082/2013 discrimination of the disabled by Slovenian police and judiciary.
73
Petition 0572/2014, war crimes; Petition 1343/2013 on the functioning of the Hungarian judicial system
might be included in those where there is no link to EU law; given the situation concerning legislative reforms
affecting the independence of the judiciary in Hungary, this might be also seen as a case which brings to the
Policy Department C: Citizens' Rights and Constitutional Affairs
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3.3. Petitions with a potential connection to EU law
Only two of the petitions examined had a connection with EU law: this first one, did
have trans-border credentials, albeit following more recent case law the Court might
consider those not sufficient to bring the situation within the scope of Union law for the
purposes of the Charter. The second one concerns the fundamental question of the
obligations of the EU institutions in relation to bailouts agreements.
3.3.1. Registration of child
Petition 1430/2013 raises issues which, in the writer’s opinion, fall within the scope of
EU law, even though it is not obvious that the Commission would be able to bring
successful infringement proceedings, given what said in section 1.5. above in relation to the
constitutional hiatus between what can be achieved through a case in a national court and
what can be pursued as an infringement of Union law.74
In the case at issue the claimant
was a woman (Mrs X) who renounced her Romanian nationality in favour of German
nationality upon moving to Germany and marrying a German citizen. She subsequently
divorced, returned to Romania and had a child through artificial insemination. When Mrs X
declared the birth of her child she was informed that the child would be registered as being
the daughter of her ex-husband; Mrs X then was unable to receive benefits as her daughter
did not have a registration number, which in turn was conditional upon the production of a
passport which she could not obtain as her daughter did not have a birth certificate. The
Romanian office also required an order by the Romanian courts recognising the denial of
paternity ruling delivered by the German courts. As a result of the application of these rules
Mrs X was denied access to parental leave entitlements and monthly child allowances.
The Commission found the situation to fall outside the scope of EU law and yet,
from the information received, it seems that there were several factors which
could have connected the situation to EU law. Thus, the Commission held that ‘the
registration of children in a Member State, including the condition under which such
registration could be made’ is a matter reserved to the Member States. Whilst it is true that
there are no EU rules regulating this matter (and that it would fall outside the competence
of the EU to attempt to do so) in Garcia Avello the Court found that rules concerning
names under which children could be registered could fall within the scope of the
Union citizenship provisions if a connection with an intra-EU dimension could be
established.75
In that case such a connection was found to exist because of the dual
nationality of the children and the potential barrier to migration the children would have
encountered if they were to be registered under different names in different documents. It
is clear that at least some of the inconveniences faced by Mrs X were the result of the fact
that she had married and divorced outside of Romania. Furthermore, it is not clear whether
she was requesting the registration documents as a Romanian or German citizen; in the
latter case her intra-EU credentials would have been even stronger. But more
fundamentally, the issue also raises questions about the applicability of the Ruiz
Zambrano case law,76
pursuant to which Member States might not take decisions that
would deprive Union citizens of the genuine enjoyment of the substance of the
rights attaching to the status of Union citizenship.77
Thus, the refusal of the
authorities to register the child as not being the daughter of Mrs X’s ex-husband indirectly
deprived the child of her EU passport and therefore of the possibility to enjoy her right (and
attention of the EP violation of basic democratic principles listed in Art 2 TEU and analysed further below in section
3.3. However, the text provided does not contain sufficient details to characterise the situation as under either of
the headings.
74
Petition 1430/2013 civil status.
75
Case C-148/02 Garcia Avello EU:C:2003:539.
76
Case C-34/09 Ruiz Zambrano, EU:C:2011:124.
77
This said it should be noted that Ruiz Zambrano might be a one off; see for instance the artificially narrow
interpretation in Case C-256/11 Dereci, EU:C:2011:734.
The interpretation of Article 51 of the EU Charter of Fundamental Rights: the dilemma of stricter or broader
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29
her mother’s right) to move within the EU.78
Thus, it could be argued that it would
have been possible to establish (or at least try to establish) an EU link; however,
and as mentioned above, this does not mean that it would have been possible for
the Commission to bring proceedings for an infringement of EU law.
3.3.2. Right to collective bargaining in Greece
More serious concerns are raised by the Commission’s analysis of Petitions 1698/2012,
1699/2012, 1700/2012, 1702/2012 in relation to the right to collective bargaining in
Greece post-bailout measures. The complainants asked:
‘Parliament to investigate whether it is lawful [in relation to the Charter of Fundamental
Rights] to undermine in this way [replacing collective bargaining with considerably
weaker measures] the right provided by Article 28’ of the Charter, i.e. the right to
collective bargaining and collective action.
The Commission held that since the Memorandum of Understanding on Specific Economic
Policy Conditionality and the Memorandum of Economic and Financial Policy were adopted
between Greece and the European Financial Stability Facility, then the matter fell outside
the scope of EU law. Thus, when giving effect or implementing these memoranda
Greece was not ‘implementing’ EU law for the purposes of Article 51 of the
Charter, and therefore the Charter did not apply.
It falls beyond the scope of this report to enter into a detailed analysis of whether the
framework underpinning the bailouts agreements can really be qualified as falling
altogether outside the scope of EU law.79
However and besides questions relating to the
clear conflict of interest of the Commission and the degree of discretion realistically enjoyed
by the Greek legislature, the present writer agrees with the position expressed by
the European Parliament Committee on Economic and Monetary Affairs in its report on
the role and operations of the Troika,80
that Commission, Council and the ECB, as EU
institutions, continue to be bound by the Charter also when acting (allegedly)
outside the scope of EU Law; and when acting through Memoranda of
Understanding rather than through acts listed in the Treaty. Given that Article 51
CFR is addressed also and primarily to the EU institutions, and that it contains no
qualification similar to that contained in relation to Member States, it is difficult to
conceive reasons why the EU institutions would ever be exempt from the
obligations imposed upon them by the Charter.81
3.4. Petitions relating to the infringement of foundational principles
Some of the petitions relate to alleged breaches of the very principles that are
proclaimed in Article 2 TEU to be the foundation of the EU. It might be recalled that
Article 2 TEU reads:
78
The European Court of Human Rights found that the fact that such presumptions could not be rebutted (or not
easily rebutted) might constitute a breach of Article 8 ECHR; however in both cases the natural father was
involved; see Appl. 18535/91 Kroon v Netherlands, and Appl No 77785/01 Znamenskaya v Russia.
79
For an excellent and comprehensive analysis see C Kilpatrick ‘Are the bailouts immune to EU social challenge
because they are not EU law’ (2014) Eur Const Law Rev 393.
80
Report on the enquiry on the role and operations of the Troika (ECB, Commission and IMF) with regard to the
euro area programme countries http://www.europarl.europa.eu/sides/getDoc.do?pubRef=//EP//TEXT+REPORT+A7-2014-0149+0+DOC+XML+V0//EN,
at point 11. The Court has not (yet) addressed the
questions and has denied jurisdiction in Case C-128/12, Sindicato dos Bancários do Norte et al. v. BPN – Banco
Português de Negócios SA, EU:C:2013:149; and Case 264/12 Sindicato Nacional dos Profissionais de Seguros e
Afins, EU:C:2014:2036, in relation to the Portuguese bailout agreement.
81
On these issues see generally De Witte and K Kilpatrick (eds) Social Rights in Crisis in the Eurozone: The Role of
Fundamental Rights Challenges, EUI WP 2014/5.
Policy Department C: Citizens' Rights and Constitutional Affairs
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‘The Union is founded on the values of respect for human dignity, freedom,
democracy, equality, the rule of law and respect for human rights, including the
rights of persons belonging to minorities. These values are common to the Member
States in a society in which pluralism, non-discrimination, tolerance, justice,
solidarity and equality between women and men prevail.’
Despite the resonant language, the EU has not equipped itself with an effective
mechanism to enforce those values in case of breaches by its Member States. The
mechanism provided in Article 7 TEU has proved an eminently ineffective tool and it has
never been used despite some Member States introducing changes to their internal
legislation which are capable of undermining, if not altogether threatening, the principles
listed in Article 2 TEU. The arguments has been made that the foundational principles in
Article 2 TEU are enforceable in that it would be open to the Commission to bring
infringement proceedings for breach of the values contained in that provision:82
and yet, and to simplify somewhat, it is not obvious that this would be the case: first
of all, Article 2 TEU does not say that these values bind the Member States, but it merely
states that the Union is founded on those values and that those values are common to the
Member States. Secondly, Article 51 Charter (which has the same value as the Treaty and
might be construed as lex specialis) limits the EU fundamental rights obligations of the
Member States to cases of implementation of EU law; however, if Article 2 TEU were to be
enforceable it would be difficult to reconcile it with Article 51 Charter. Nor is there any
reason why if Article 2 TEU were to be enforceable, its enforceability would be limited to
systemic breaches. It is open to debate whether a Union supervisory power over any
breach of the values contained in Article 2 TEU would even be desirable without appropriate
and preliminary discussion and agreement on what these values exactly imply (definitions,
indicators, etc), so to avoid actions based on political judgments and bias. Thirdly, and
perhaps most importantly, it is Article 7 TEU that provides the path (as ineffective as this
might have proved to be) for reacting to breaches of the values contained in Article 2 TEU.
In any event, it appears likely, given the fact that an action has not so far been brought
(nor Art 7 TEU triggered), that the Commission is of the view that such route is either not
plausible or not desirable.83
This said, some of the situations brought to the attention of the European
Parliament might have been found to have a link with Union law. For instance,
Petition 1040/2011 concerned draft legislation under discussion in the Italian Parliament
introducing heavy penalties for journalists publishing the content of wiretapping.84
Here,
the Commission did not exclude that there might be an intra-EU dimension (not least in
relation to the free movement of services and the ERT jurisprudence)85
but was limited by
the fact that the legislation at issue was in draft form.
Petitions 2596/2013 and 2814/2013 bring to the attention of the EP the restrictive
rules introduced by the Spanish legislature to curtail the right to freedom of assembly,
association and expression. These petitions, possibly more than others, highlight one of the
constitutional anomalies relating to fundamental rights in the EU in that whilst, on a
preliminary reference there might be the possibility to activate the Treaty and with it the
protection provided by EU fundamental rights, for instance in a case in which a
82
See Editorial comments Safeguarding EU values in the Member States – Is something finally
happening?(2015) CMLRev 619 advocating for the possibility to enforce Article 2; see also Editorial Comments,
‘Union membership in times of crisis’, (2014) CML Rev.1.
83
Hence the Communication from the Commission to the Council and the European Parliament, A new EU
framework to strengthen the Rule of Law (COM(2014)158 final); this was recently used in relation to Poland; and
the fact that the Commission has brought infringement proceedings against Hungary by relying on specific EU law
provisions rather than Article 2 TEU; see Case C-288/12 Commission v Hungary, EU:C:2014:237; Case C-286/12
Commission v Hungary, EU:C:2012:687.
84
Petition 1040/2011 freedom of expression and freedom of assembly.
85
Case C-260/89 ERT v DEP, EU:C:1991:254.
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
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31
transnational element might be (even artificially) introduced, it is not possible for the
Commission to bring proceedings in those instances.
Petitions 714/2013 and 217/2014 on the treatment of minorities in Latvia and
Lithuania respectively bring to the fore the problem of the dissonance between the
Copenhagen criteria imposed on acceding Member States86
and the lack of instruments
available if and when the fundamental rights assessment performed in view of the
negotiations has overlooked (for political or other considerations) significant fundamental
rights protection issues in the countries about to join.87
In this respect the treatment of
Russian speaking minorities has raised several concerns in other fora;88
this said, short of
attempting an action based on Art 2 TEU, there seems to be little space for an intervention
by the Commission.
Overall, then there is only one case (bailout) where the Commission’s response
appears unsatisfactory. In the other petitions, on the basis of the current CJ EU
jurisprudence, the link with Union law would have not been sufficiently strong to
trigger infringement proceedings.
86
‘Membership requires that the candidate country has achieved stability of institutions guaranteeing democracy,
the rule of law, human rights and respect for and protection of minorities, the existence of a functioning market
economy as well as the capacity to cope with competitive pressure and market forces within the Union.’ (emphasis
added), Presidency Conclusions, Copenhagen European Council, 21 and 22 June 1993.
87
Although some fundamental rights related areas might fall under the co-operation and verification mechanism;
see for instance the latest Report from the Commission on the progress in Bulgaria under the Co-operation and
Verification Mechanism, COM(2016) 40 final.
88
On these issues see generally P Van Elsuwege ‘Russian-Speaking minorities in Estonia and Latvia: Problems of
Integration at the threshold of the European Union’ ECMI Working Paper no. 20, 2004.
Policy Department C: Citizens' Rights and Constitutional Affairs
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32
4. THE DILEMMA OF A BROAD OR STRICT APPLICATION
OF THE CHARTER
KEY FINDINGS
 This section recalls the constitutional issues which might militate in favour or
against a narrow interpretation of the Charter.
 It laments the lack of effective means to enforce fundamental rights
compliance by Member States.
 It argues for a more courageous use of the Charter in citizenship cases and
in co-ordination situations, also as a means to encourage better compliance at
domestic level.
As mentioned above, and perhaps counterintuitively, the Charter has had a chilling
effect on the application of EU fundamental rights to national measures. It is
therefore not surprising that the Commission adopts a cautious, and overall realistic,
approach to the petitions under consideration. It should now be considered whether
a broader application of the Charter to national measures would be desirable. As
shown above, the Court has so far adopted a varied approach to the application of the
Charter to national rules: when the internal market connection is stronger, then it is willing
to assert its jurisdiction and apply Charter fundamental rights to national rules, also (but
not only) as a tool to strengthen internal market rights. However, when the internal market
connection is weaker, and even when there is a clear connection to EU law such as it is the
case in Union citizenship cases, the Court has become more reluctant to impose EU
fundamental rights standards on national rules. Furthermore, both the case law on coordinating
legislation (Dublin II/III and European Arrest Warrant) and the case law on
Article 51 CFR seem to suggest a subservience of EU fundamental rights to the interest of
EU integration, at least in relation to the application of the Charter to national rules.89
This
said, it should be considered whether a broader application of the Charter is possible and
desirable. In this respect the following considerations seem relevant.
 The primary aim of the Charter was to make rights more visible to the Union
citizens: this was particularly important in relation to acts of the Union institutions,
the application of the Charter to the acts of the Member States being a mere
codification of existing case law.
 National authorities when exercising discretion in a field occupied by EU law are in
any event bound by their own national guarantees. All being well, then, domestic
fundamental rights should be the main source of protection for Union citizens against
acts of the Member States; and the Charter should be the standard imposed on EU
institutions whilst also acting as a safety net to ensure that national authorities
respect fundamental rights when they implement EU law.
89
Although also beyond that, see e.g the refusal of the CJ EU to take stock of the national courts’ perplexities in
relation to the EAW, recently see Case C-399/11 Melloni v Ministerio Fiscal, judgment of 26 February 2013, noted
N De Boer (2013) 50 CMLRev 1083; see also Opinion 2/13, EU:C:2014:2454.
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
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33
 A broad application of the Charter to national measures might entail a significant loss
of national autonomy and sovereignty, in ways that might be difficult to justify in
the context of the current Treaties, especially having regard to the principle of
conferral.
 A broad application of the Charter might entail the loss of the constitutional
diversity which is part of the national identity that the Union must respect pursuant
to Article 4(1) TEU. A narrower interpretation of the Charter thus allows for some
variation hence ensuring respect for the way conflicting values might be balanced at
domestic level.90
 The Court of Justice is not always receptive to fundamental rights discourse
and also pursues the EU interest in integration/effectiveness. Thus for instance in the
case of Viking,91
which concerned transnational industrial action, the combined effect
of the application of the Treaty free movement rights and the substitution of the EU
standard of fundamental rights for the domestic one, had the effect to weaken rather
than strengthen the protection of non-economic rights in the national context.92
 National courts might be better apt at protecting fundamental rights, and more apt
at solving instances of conflict of rights.
This said, there are two major considerations to be taken into account when considering a
broader application of the Charter to national measures:
 First of all, it should be considered whether Union citizens do not have the legitimate
expectation to gain from the European Union not only economic and free movement
rights, but also a common standard of protection throughout the EU.93
 Secondly, the Charter might be seen as a much needed constitutional glue for a
system that can no longer be understood as based on some sort of functionalist idea
of integration; and which should not be understood in that way as otherwise it might
be used as a proxy to weaken rather than strengthen the protection of the
individuals.
In any event, the approach currently espoused by the Court of Justice is
dangerously restrictive and not warranted by the text of Article 51 Charter,
especially if the latter was aimed at codifying the existing state of the law.
In this respect, the narrow interpretation in the Union citizenship cases (which
deprive EU citizens exercising free movement within the EU of any form of protection
unless they are able to demonstrate self-sufficiency) and the doctrine of EU
exceptionalism in relation to Asylum and European Arrest Warrant are very
difficult to justify. In relation to the latter, consider that if national authorities are always
bound by the Charter when implementing Union law, then the executing authorities in
cases concerning asylum seekers and individuals subject to a European Arrest Warrant
should be under a duty, imposed by Article 51 CFR, to ensure that the EU
fundamental rights of the individual concerned are not violated by the receiving
90
In this respect, see also Art 52(4) and Article 53 Charter. The significance of the latter might well be called into
doubt following the ruling in Case C-399/11 Melloni v Ministerio Fiscal, EU:C:2013:107.
91
Case C-438/05 International Transport Workers’ Federation and The Finnish Seamen’s Union v Viking Line et al,
EU:C:2007:772; see also Case C-341/05 Laval un Partneri, EU:C:2007:809 and Case C-112/00 Schmidberger,
EU:C:2003:333.
92
Arguably this was the case also in Case C-426/11 Mark Alemo-Herron and Others, EU:C:2013:521; on these
issues see M Bartl and C Leone ‘Minimum harmonisation after Alemo-Herron: the Janus face of EU fundamental
rights review’ (2015) Eur Const Law Rev 140.
93
See AG Jacobs in Case C-168/91 Konstantinidis, EU:C:1992:504; although Mr Jacobs later changes his mind,
see ‘Human Rights in the European Union: the Role of the European Court of Justice’ (2001) ELRev 331.
Policy Department C: Citizens' Rights and Constitutional Affairs
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34
authority, at least insofar as there is a discretion conferred by EU law. However, this would
render the quasi automatic allocation of jurisdiction provided for in these instruments
almost meaningless.
The idea underlying the case law of the Court of Justice, as well as those instruments
themselves, is that there is an equivalence of protection throughout the EU. Yet, and
here lies the major problem with this mechanism, there is no possibility for the EU
institutions to enforce this alleged common (minimum) standard of protection:
short of triggering the Article 7 TEU procedure, which has so far proved to be
cosmetic,94
there is very little that can be done at EU level to ensure that
fundamental rights are guaranteed across its territory.
It is in this light then that a more courageous use of the Charter by the Court (and
when possible by the Commission) should be considered: if, for instance, the Court
accepted that the operation of EU law is not an aim in itself but rests on the effectiveness
of fundamental rights protection in all of the Member States, then its case law might act as
a powerful tool to push for fundamental rights guarantees to be achieved, even when
national courts might not be able to protect fundamental rights effectively by means of
national law. After all, legislation that rests on the assumption of a minimum level of
fundamental rights protection in the EU should not be enforceable when such
assumption proves to be erroneous.
Fundamental rights might be a means to an end, but not in the way perceived by
the Court: they are the means to achieve an effective European Union where the
rights of individuals are guaranteed, with all that that entails in terms of benefits for
the achievement of all the aims of the EU, including the effective functioning of the internal
market.
94
See generally D Kochenov and L Pech ‘Monitoring and Enforcement of the Rule of Law in the EU: Rhetoric and
Reality’ (2015) Eur Const Law Review 512.
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
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35
5. CONCLUSIONS
This report has considered the current state of the law in relation to the application of the
Charter of Fundamental Rights to national rules. It has found that the Court of Justice of
the European Union has adopted a varied interpretation of Article 51 CFR; and that it
considers fundamental rights also as a tool to ensure the supremacy and
effectiveness of EU law. In this respect, the Court is much more likely to be receptive to
fundamental rights claims when it is on firmer internal market grounds; or when to do so
might foster the EU interest in integration.
In the light of the case law then the Commission’s response to the petitions analysed
seems all in all justifiable but for the notable exception of its summary and superficial
response in relation to the complaints about the impact of the Greece bailout agreements
on the right to collective action.
In considering whether the current interpretation of Article 51 CFR is desirable several
considerations should be taken into account: thus, the system of conferral and reserve of
national sovereignty militate against a broad application of the Charter to national law,
and so does the need to preserve constitutional diversity in the EU; furthermore,
national courts (and domestic fundamental rights) might be as well, if not better,
positioned to assess conflict of values, not least since the Court of Justice has not always
been receptive to fundamental rights discourse.
This said, there is also the need for a more courageous use of the Charter in those
situations that fall in any event within the scope of EU law, such as citizenship
cases, and those that demand thorough fundamental rights scrutiny (especially in
the case of asylum and in relation to the use of the European Arrest Warrant): here, the
Court of Justice seems to have weakened the protection afforded by the Charter so as not
to undermine the effectiveness of these instruments. However, the approach should be
exactly the opposite: until when Member States cannot guarantee a satisfactory
level of fundamental rights protection then those instruments might not be relied
upon to undermine fundamental rights guarantees. Lacking real powers for the
enforcement of fundamental rights in the EU, this approach might be a powerful incentive
for Member States and Union institutions alike to take their fundamental rights obligations
more seriously.
Policy Department C: Citizens' Rights and Constitutional Affairs
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36
ANNEX I - TABLE OF PETITIONS EXAMINED IN THE
STUDY95
Petition
number
Title / issue Petitioner
mentions CFR
Articles
Commission
view (CFR
applies?)
PETI decision
(open / closed)
689/1998,
0508/2007,
1152/2011 and
2788/2013
Language
teachers in Italy
Yes
(assessment on-
going)
All Open
1040/2011 Freedom of
expression and
freedom of
assembly in Italy
No
(but COM will
follow the
progress and
assess
compatibility
with EU law)
Closed
279/2012 Disability
pensions in
Hungary
No
(no EU legislation
or competence
on the matter)
Closed
1395/2012 Discrimination of
homosexuals in
Greece
No
(no EU legislation
on the matter)
Closed
1698/2012,
1699/2012,
1700/2012,
1702/2012
Right to
collective
bargaining in
times of
austerity and
fiscal
consolidation in
Greece violation
of the
CFR
Art 28 CFR
Articles 26, 34,
35 CFR
No
(falls outside of
the
implementation
of EU law)
All Open
1367/2012,
1929/2012
Right to
employment and
austerity
measures
imposed on civil
servants in Spain
Articles 20, 21,
27 and 28
No
(EU law does not
seem to have
been violated)
Both Closed
0059/2013 Removal from
parental care in
Germany
(Jugendamt)
No
(falls outside of
Commission
competences)
Open
0542/2013 Infringement of No Open
95
Selection of petitions raising fundamental rights issues, elaborated on the basis of the information provided by
the PETI Secretariat.
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
____________________________________________________________________________________________
37
art. 8 ECHR in
the Netherlands
(no EU legislation
applicable or
infringed)
0714/2013 Personal problem
(protection of
minorities in
Latvia)
No
(no EU
competence on
acquisition of
nationality)
Closed
1234/2013 Alleged breach of
human rights,
including
children’s rights,
in Denmark
No
(no EU law
applicable, falls
outside the
Commission
competences)
Open
1343/2013 on the judicial
system in
Hungary
No
(unrelated to the
application of EU
law)
Closed
1430/2013 Birth certificate
for the daughter
(of a German
citizen), who was
born in Romania
No
(unrelated to EU
law)
Closed
1448/2013 Fundamental
right of access to
public
information
Articles 41, 42 No
(unrelated to EU
law)
Closed
2082/2013 Justice system in
Slovenia
(Discrimination
of the disabled
by Slovenian
police and
judiciary)
No
(no violation of
EU law,
unrelated to EU
law)
Closed
2543/2013 Return of her
child, who has
been taken into
care by the
British
authorities
(Removal of child
from parental
care in the UK)
No
(no EU
competence)
Open
2596/2013 Announced
reform of the
Spanish criminal
code (freedom of
assembly in
Spain)
Article 12 No
(no EU
competence)
Closed
2814/2013 on banning
demonstrations
No Open
Policy Department C: Citizens' Rights and Constitutional Affairs
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38
in Spain
(freedom of
expression and
freedom of
assembly in
Spain)
(no EU
competence)
0217/2014 on behalf of the
Electoral Action
of Poles in
Lithuania on the
persistent
violation of the
rights of the
ethnic minorities
by the Lithuanian
government
(protection of
minorities in
Lithuania)
No
(unrelated to the
implementation
of EU law, no
authority to
intervene)
Open
0344/2014 Supposed
violation by the
British
authorities of the
fundamental
rights of a
Bulgarian family
relating to the
custody rights
over a minor
Various articles No
(unrelated to EU
law, the
Commission is
not in a position
to take action)
Open
0572/2014 on compensation
for victims of the
Spanish Civil War
1936-1939 (War
crimes in Spain)
No
(absence of EU
competence)
Open