The Increasing Application of the Legally Binding Charter after Lisbon 24

With the entry into force of the Treaty of Lisbon on 1 December 2009, the Charter eventually gained full legal effect. Article 6(1) of the TEU establishes that the Union recognises the rights, freedoms and principles set out in the Charter, which shall have the same legal value as the Treaties. In other words, the Charter has gained the status of primary law, which in turn has opened up for new possibilities of fundamental rights adjudication within the legal order of the Union.

Initially the legal recognition of the Charter was envisaged through incorporation into the Treaties. However, when the enactment of the Constitution for Europe failed, it was suggested the Charter instead become legally binding by cross-reference. For this purpose the numbering and provisions on the interpretation and application of the Charter were slightly revised and its explanatory memorandum was updated. It is thus the amended Charter, as reproclaimed by the Council, the Commission and the Parliament on 12 December 2007, that has been given full legal effect by the Treaty of Lisbon.144

The original intention had been to draft a Charter with the potential of eventually gaining binding legal status. Interestingly, however, the explanatory memorandum was never drafted with the intention of having legal significance. Still, it seems to have acquired a ‘hybrid status’.145 Article 52(7) CFR presently states that the Explanations, drawn up as a way of providing guidance in interpretation, shall be given due regard by the EU Courts and the courts in the Member States. This is further emphasised in Article 6(1) TEU, providing that the rights, freedoms and principles in the Charter shall be interpreted with due regard to these Explanations. Although the Explanations ‘do not as such have the status of law’ the explanatory memorandum describes itself as ‘a valuable tool of interpretation intended to clarify the provisions of the Charter’. For instance, in DEB,

Åkerberg Fransson and Alemo, the CJEU has relied on the Explanations for the

interpretation of the Charter, which confirms their strengthened position post-Lisbon. Guiding its interpretation, the explanatory memorandum is susceptible of furthering a harmonised application of the Charter within the Union.146

Even though the Charter had existed for almost a decade, the transition towards a

144 _{Charter of Fundamental Rights of the European Union, OJ C83/389, 30.3.2010.}

145 _{CRAIG P. – DE BÚRCA G. (2011): p. 398; DASHWOOD A. (et.al.) (2011): p. 385; SCMAUCH M. (2012): p. 474.}

146 _{Cases C-279/09 DEB, para. 32; C-617/10 Åkerberg Fransson, para. 20; C-426/11 Alemo, para. 32. See ROSAS A. – KAILA H. (2011):} p. 13; KAILA H. (2012): p. 300-301.

25 legally binding document was not without political compromise.147 In order to reach consensus regarding the general provisions in Articles 51 to 54 and the applicability of the Charter, Poland and the UK were eventually accorded special guarantees assuring its restrictive interpretation, as agreed in Protocol No. 30 attached to the Lisbon Treaty.148 Aimed at ‘clarifying’ the application of the Charter, Article 1 of the Protocol states that the ‘Charter does not extend the ability of the Court […] to find that [national measures] are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.’

Today the Charter enjoys the same legal status as the TEU and the TFEU.149 The Lisbon Treaty has thus been crucial when it comes to the reinforcing of the legal effects of the Charter.150 As early as two months after its entry into force, the CJEU in Kücükdeveci made a first reference to the legally binding Charter and thus implied its potential as an influential source of Union law.151 Concerning the prohibition of discrimination based on age in Article 21 CFR, the Court held that ‘it is to have the same legal value as the Treaties.’152 Less than a year later, in Schecke the Court declared an act of secondary Union legislation void because of its incompliance with the fundamental rights standards under the Charter.153 In the pre-Lisbon era, the CJEU had never invalidated a piece of secondary legislation in a similar way, which makes the strengthened status of the Charter after Lisbon even more evident.154

Through the consolidation of fundamental rights, the post-Lisbon Union has equipped itself with a legally binding ‘Bill of Rights’. By making the rights guaranteed more apparent to all, the Charter aspires to lower the threshold for individuals to invoke fundamental rights-based arguments in adjudication.155 The broad scope of rights contained in the Charter also contributes to an increased number of right-based claims.156 Moreover, the ‘depillarisation’ that came with the Lisbon Treaty might further expand the application of the Charter, as the area of freedom, security and justice was included in the structure of the general legal order of the EU. As of 1 December 2014, the CJEU has

147 _{In fact, national concerns over a too broad scope of application had been present already during the drafting process, which resulted in} the compromise of the general provisions in Articles 51 to 54 of the Charter, guiding its application. DE BÚRCA G. (2001): p. 136; CAROZZA P.G. (2004): p. 44; LENAERTS K. – GUTIERREZ-FONS J.A. (2010): p. 1656; WALKILA S. (2012): p.620; WARD A. (2014): p. 1413; WALKILA S. (2015): p. 159-161.

148 _{Protocol No. 30 on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom,} annexed to the Treaty of Lisbon. See ANDERSON D. – MURPHY C.C. (2011): p. 2, 10; KAILA H. (2012): p. 293.

149 _{CRAIG P. – DE BÚRCA G. (2011): p. 394; DASHWOOD A. (et.al.) (2011): p. 361.} 150 _{WALKILA S. (2015): p. 141.}

151 _{ANDERSON D. – MURPHY C.C. (2011): p. 16; WALKILA S. (2011): p. 817; WALKILA S. (2015): p. 142.} 152 _{Case C-555/07 Kücükdeveci, para. 22.}

153 _{Cases C-92/09 & 93/09 Schecke, paras. 87-89}

154 _{ROSAS A. – ARMATI L. (2012): p. 172; MIETTINEN S. (2015): p. 20; WALKILA S. (2015): p. 142-143.}

155 _{Commission Communication on the Charter of fundamental rights of the European Union, COM/2000/0559 final, 13.9.2000, points 7} and 8. See also Opinion of AG BOT in Case C-555/07 Kücükdeveci, para. 90.

26 jurisdiction in these areas, which is likely to step up the rate of claims regarding violations of fundamental rights.157

The strengthened access to legal protection can be seen in the development of the case law of the Court. As a consequence of the solemn proclamation of the Charter in 2000, the fundamental rights-related caseload before the Court grew, only to further expand after the recognition of the Charter as primary law in December 2009.158 Throughout almost a decade of soft law status, the CJEU referred to the Charter in 142 of its judgements.159 This can be compared to the five time increase of references within the Charter’s first five years of legally binding effect, a period during which the CJEU cited the Charter in 422 judgements.160 Today, the legally binding Charter is one of the most prominent sources of fundamental rights adjudication within the EU.161