Applicability of the EU Fundamental Rights Charter to Member States’ action

1. Applicability of the EU Fundamental Rights Charter to Member States’ action • John Morijn (University of Groningen; Dutch Ministry of the Interior and Kingdom Relations)

2. Outline • The CFR: limited/problematic application at MS level • Art. 51(1) wording & previous case-law: confusing instructions • ECJ in Akerberg: clarification? • (Further) demarcation of CFR MS application: options • Outlook: promoting CFR-application at (MS) policy level (while awaiting (further) judicial clarification)

3. I. The CFR at MS level: how to kiss awake a sleeping beauty?

4. I. CFR application at MS level • Considerable confusion in practice: the Commission’s figures • Limited & sometimes problematic practice at MS level • Reasons • Unclear when CFR applies ex art. 51(1) CFR? [see below] • Lack of awareness about substantive added value • Difficultly to apply instruction to keep ECHR as minimum • Difficulty to apply rights/principles distinction • Default position: sticking to ECHR compliance testing • Crucial necessity of clarifying precisely when the CFR applies to MS actions (51 CFR)

5. II. Art. 51(1) wording & previous case-law: confusing instructions

6. II. Instructions v. case law (1/3) • Article 6 TEU: sources of fundamental rights in Union law: • CFR: ‘same legal value as’ Treaties; to be interpreted with help of ‘explanations’ • General principles • Article 51 CFR: The provisions of this Charter are addressed to [EU institutions, agencies and bodies] and to the Member States only when they are implementing Union law. • Explanations: different lines of case law mentioned..

7. II. Instructions v. case law (2/3) • Prior ECJ case-law: FR part of general principles of Union law; CFR transformation from (unwritten) general principles case law to primary Union-level written law: codification • Case law mentioned in Explanations • Wachauf: “implementing” Union law (applying regulations, transposing directives, applying EU institutions’ decisions): agency situation • ERT: EU fr applicable when MS act otherwise within scope of Union law, including when they derogate from fundamental freedoms (also critics of this approach; Jacobs, Weiler) • Annibaldi / Karlsson: no EU level fr protection when there’s no specific link with Union law • (New scenario of EU citizenship: Ruiz Zambrano..)

8. II. Instructions v. case law (3/3) • In this light: How to read article 51(1) CFR? • Option 1: Intentional narrowing down of case-law • Why: use of “only when implementing” (and not “when acting within scope”) deliberate choice; Union legislator’s instruction to narrow down previous case law, follow only Wachauf • Complication: no parallel instruction regarding general principles • Option 2: Continuation of previous case-law • E.g. AG Bot in Scattolon (C-108/10), par. 116-119. • Why: Explanations refer to both lines of case-law, rationale of extending fr protection to all MS level action within scope of Union law is intact; some language-versions of CFR make no distinction between implementation/acting within scope • Complication: there is a need to reword approach; requirement of fr law itself for a text to be clear and have foreseeable consequences

9. III. The Court in Akerberg: a clarification?

10. III. ECJ in Akerberg: clarification? (1/3) • Facts • Fisherman, tax fraud (including Value Added Tax) • Question about ne bis in idem, art. 50 CFR • AG opinion: CFR not applicable • MS (and Commission!) intervention • [Rationale for MS interventions] • [Rationale of Commission intervention] • Ruling: CFR applicable [see handout]

11. III. ECJ in Akerberg: clarification? (2/3) • Critiquing Akerberg • In light of policy-relevance: problematic circular, convoluted reasoning; circumscription, not prescription; much of the uncertainty remains • Even potential widening: “in part..” = introducing additional element of uncertainty (is that really that different from Annibaldi..?) • But, see Case C-128/12 Sindicato dos Bancarios do Norte

12. III. ECJ in Akerberg: clarification? (3/3) • Because of reasoning, 2 (reasonable) ways of reading Akerberg • Expansive • “Only when implementing” = acting within scope of Union law = continuation of full line of previous case-law = considerable self-empowerment of ECJ (which is only institution to decide what Union law covers) • Restrictive • Ruling no more than complicated and oddly structured argumentation to show that this was a simple MS agency-situation with regard to implementing clear Union interest = other situations (ERT, etc) are still open for discussion and judicial decision

13. IV. (Further) demarcation of CFR MS applicability: options

14. IV. Options for (further) demarcation (1/3) • AG Cruz Villalon in Akerberg, par. 22-65. • “Presence of Union law” as criterion (par. 27); “specific interest on the part of the Union” necessary (par. 40) • Workable? • AG Maduro in Centro Europa (C-380/05), par. 21 • Any systematic/serious and persistent shortcoming in MS level fr protection would qualify as restriction on rules of free movement (and therefore come (indirectly) within ECJ’s jurisdiction) • Qualified federalisation of Union law fr protection?

15. IV. Options for (further) demarcation (2/3) • AG Sharpston in Ruiz Zambrano (C-34/09), par. 151-177 (particularly 163): • “Transparency and clarity require that one be able to identify with certainty what ‘the scope of Union law’ means for the purposes of EU fr protection. [T]he clearest rule would be one that made the availability of EU fr protection dependent neither on whether a Treaty provision was directly applicable nor on whether secondary legislation has been enacted, but rather on the existence and scope of a material EU competence. [T]he rule would be that, provided that the EU had competence (whether exclusive or shared) in a particular area of law, EU fundamental rights should protect the citizen of the EU even if such competence has not yet been exercised.” • Full federalisation of EU fr protection • Par. 173: would require unequivocal political statement

16. IV. Options for (further) demarcation (3/3) • Judge Rosas in publication • Caution against too wide readings; ECJ not equipped to be general fr court • Use “implementation”-terminology of 51(1) CFR itself (rather “scope”/”governed”/”covered”) • Options not mentioned • ECJ could turn from circumscription to prescription: simply factually describe in some details when CFR applies precisely to MS level (and then stick to it) • ECJ could read Akerberg narrowly & exclude ERT and other lines: would be (equally respectable) teleological interpretation

17. V. Promoting CFR-application at (MS) level (while awaiting judicial clarification)

18. V. MS level CFR promotion • Adapt law-making manuals to include CFR • Promote CFR content on basis of ECHR comparison (rather than its own structure); 4 categories of CFR-rights: • CFR-rights with same meaning and scope as corresponding ECHR-rights (2, 4, 5(1-2), 6, 7, 10(1), 11, 17, 19, 20, 47(1), 48, 49(1-2)) • CFR-rights with same meaning but wider scope than corresponding ECHR-rights (8, 9, 12(1), 14(1&3),21, 23, 47(2-3), 50) • CFR-rights with no corresponding ECHR-right (but often corresponding (R)ESC-right) (1, 3, 5(3), 10(2), 13, 14(2), 15, 16, 18, 24-38, 49(1&3) • CFR-rights that are EU-context specific (12(2), 39-46).

19. Thank you for your attentionj.morijn@rug.nl