MAIN PRINCIPLES OF THE EU SYSTEM OF FUNDAMENTAL RIGHTS PROTECTION
6.7. THE SCOPE OF APPLICATION OF EU FUNDAMENTAL RIGHTS
6.7.1. THE VERTICAL SCOPE OF APPLICATION OF EU FUNDAMENTAL RIGHTS
EU fundamental rights can only be applied to matters that fall within the scope of application of EU law. Article 51(1) of the Charter contains the main rule which governs the scope of application of the Charter ’ s provisions. Th is provision is immensely important as it provides the starting point for determining if the provisions of the Charter need to be applied. 58 Article 51(1) stipulates that:
Th e provisions of this Charter are addressed to the institutions, bodies, offi ces 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. Th ey 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.
Th e provisions of the Charter are accordingly addressed, fi rst, to the institutions of the EU and, secondly, to the member states of the EU. Evidently, the EU institutions are bound to protect the rights of the Charter. 59 Th e application of EU fundamental rights to the actions of the member states is a more complicated matter. In fact, this topic has so far given rise to the greatest number of preliminary questions concering the Charter since it became legally binding. 60 Th e precise delimitation of the scope of application of EU fundamental rights to the actions of member states has not appeared to be easy.
For example, according to Article 51(1), the rights of the Charter are addressed to the member states in so far as they are ‘ implementing Union law ’ . In the case of Å kerberg Fransson , the ECJ delivered a seminal judgment on what this phrase means.
It has fi rst clarifi ed that the provision laid down in Article 51(1) followed from its earlier case-law. 61 Also, the explanations relating to Article 51 of the Charter referred to the earlier judgments of the ECJ in Wachauf , ERT and Annibaldi . Th e former two cases in particular had provided important guidance on when EU fundamental rights needed to be complied with. 62 Th e case of Wachauf forms a classic situation of where
Chapter 6. Main Principles of the EU System of Fundamental Rights Protection
63 ECJ 13 July 1989, C-5/88, Wachauf .
64 See e.g. Sarmiento (2013).
65 ECJ 18 June 1991, C-260/89, ERT , para. 43. Th is type of situation was affi rmed more recently in ECJ 30 April 2014, C-30/12, Pfl eger and others , para. 35.
66 ECJ 26 February 2013, C-617/10, Å kerberg Fransson , para. 21. In the explanations to the Charter a somewhat similar interpretation of Article 51(1) is given. In the second section thereof it is stated that ‘ the requirement to respect fundamental rights defi ned in the context of the Union is only binding on the Member States when they act in the scope of Union law ’ .
67 Th is is explained further in section 9.2.1. It had been questioned by the Advocate General in the opinion on this case whether there was indeed a suffi cient connection to EU law, see Opinion A-G Cruz Villal ó n in C-617/10, Å kerberg Fransson , para. 40.
68 Cf. ECJ 21 December 2011, Joined cases C-411/10 and C-493/10, N.S. and others .
69 See e.g. ECJ 22 November 2005, C-144/04, Mangold ; and ECJ 16 September 2010, C-149/10, Chatzi .
EU fundamental rights need to be complied with by the member states. It concerns the situation where member states are implementing the provisions of a Directive. 63 In this situation, member states are considered to be acting on behalf of the Union, and this therefore is oft en referred to as the ‘ agency situation ’ . 64 Th e case of ERT concerns the second ‘ classic ’ situation where member states need to comply with EU fundamental rights. It concerns the situation where member states take measures that limit the fundamental free movement rights of the Treaty. When member states aim to justify such derogations from EU law, they need to comply with EU fundamental rights. 65 In the case of Å kerberg Fransson , the ECJ has more generally explained that:
the fundamental rights guaranteed by the Charter must … be complied with where national legislation falls within the scope of European Union law, situations cannot exist which are covered in that way by European Union law without those fundamental rights being applicable.
Th e applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter. 66
By developing this specifi c criterion of ‘ where national legislation falls within the scope of European Union law ’ , the ECJ has established a wide scope of application of EU fundamental rights. Th is criterion allows for various situations to be caught by the application of the Charter, including those where national laws have not been adopted to give eff ect to provisions of EU law. 67 Th e ECJ has also accepted that member states must respect EU fundamental rights when they have been given discretion to take certain measures in the implementation of EU law. 68 Th e ECJ has even accepted that some situations fell within the scope of EU law, even though it is still not entirely clear why it deemed this to be so. 69 Th e ECJ has not provided for a clear categorisation of the diff erent types of situations which fall within the scope of application of EU fundamental rights. Instead, it has approached the clarifi cation of the scope of application of EU fundamental rights in a casuistic manner.
In several judgments following the case of Å kerberg Fransson , the ECJ has given further clarifi cation as to the scope of application of EU fundamental rights, which seem to stress that there needs to be a suffi ciently close connection to EU law to allow
70 ECJ 6 March 2014, C-206/13, Siragusa , paras 24 – 25.
71 See ECJ 8 November 2012, C-40/11, Iida , para. 79; ECJ 10 July 2014, C-198/13, Julian Hern á ndez and others , paras 32 ff .; and ECJ 27 March 2014, C-265/13, Torralbo Marcos , paras 32 – 36.
72 Cf. ECJ 5 October 2010, C-400/10, McB. ; ECJ 27 November 2012, C-370/12, Pringle , paras 179 – 182;
and ECJ 7 March 2013, C-128/12, Sindicato dos Banc á rios do Norte and others ; and ECJ 27 November 2012, C-370/12, Pringle , paras 179 – 182; and ECJ 11 November 2014, C-333/13, Dano .
73 It has been suggested that the lack of clarity about the scope of application of EU fundamental rights has had a ‘ strong paralysing eff ect ’ , see Morijn (2014), p. 132.
74 Th is particular issue is further discussed in section 9.2.
75 Th e ECtHR has ensured that fundamental rights can be applied indirectly in disputes between private parties by accepting developing positive obligations for states. Cf. the discussions over the horizontal application of the Convention in section 2.8., and in relation to the doctrine of positive obligations, section 4.3.
EU fundamental rights to be applied. In its judgment in the case of Siragusa , the ECJ has explained that:
… the concept of ‘ implementing Union law ’ , as referred to in Article 51 of the Charter, requires a certain degree of connection above and beyond the matters being closely related or one of those matters having an indirect impact on the other ….
In order to determine whether national legislation involves the implementation for the purposes of Article 51 of the Charter, some of the points to be determined are whether that legislation 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 aff ecting EU law; and also whether there are specifi c rules of EU law on the matter or capable of aff ecting it … 70
Th is line of reasoning has also been reiterated in other cases. 71 In another series of judgments, the ECJ has clarifi ed that various measures fall outside the scope of application of EU fundamental rights. 72
Gradually, the ECJ is thus bringing clarity as to the exact scope of application of EU fundamental rights in respect of the actions of the member states. 73 Th ere needs to be a suffi ciently strong connection to obligations that are laid down in EU law, which is of particular importance to ensure that the competences of the EU do not expand. 74 Th e topic of the scope of application of EU law is discussed in detail in chapter 9 to fi nd whether it allows for a development of positive obligations by the ECJ to take place.
6.7.2. THE HORIZONTAL SCOPE OF APPLICATION OF THE CHARTER Another important dimension related to the scope of application of the Charter is its horizontal scope of application. Th e scope for the application of fundamental rights between two private parties is also of particular interest in relation to the development of positive obligations to protect fundamental rights under EU law. Th ey are two diff erent forms to secure that fundamental rights are respected in situations between two private parties. 75
Chapter 6. Main Principles of the EU System of Fundamental Rights Protection
76 For diff erent readings of this provision, cf. the Opinion of A-G Cruz Villal ó n in C-167/12, AMS , paras 28 – 33; and the Opinion of A-G Trstenjak in C-282/10, Dominguez, paras 80 – 83.
77 ECJ 12 December 1974, C-36/74, Walrave and Koch ; ECJ 15 December 1995, C-415/93, Bosman ; and ECJ 19 February 2002, C-309/99, Wouters and others .
78 See ECJ 11 December 2007, C-438/05, Viking Line .
79 De Vries & Van Mastrigt (2013), p. 274; and Hartkamp (2013), pp. 195 – 196.
80 See e.g. ECJ 24 January 2012, C-282/10, Dominguez ; ECJ 27 March 2014, C-314/12, UPC Telekabel Wien ; and ECJ 13 May 2014, C-131/12, Google Spain .
81 ECJ 26 June 2007, C-305/05, Ordre des barreaux francophone and germanophone and others , para. 28;
and ECJ 29 January 2008, C-275/06, Promusicae , paras 68 and 70.
82 See ECJ 19 November 1991, Joined cases C-6/90 and C-9/90, Francovich and Bonifaci v. Italy ; ECJ 24 January 2012, C-282/10, Dominguez , para. 43.
83 ECJ 22 November 2005, C-144/04, Mangold ; ECJ 19 January 2010, C-555/07, K ü cukdeveci ; and ECJ 15 January 2014, C-176/12, AMS .
Article 51(1) of the Charter does not clarify of itself whether fundamental rights are to be given horizontal eff ect (see section 6.7.1.), because it is as such addressed to the EU institutions and the member states. 76
So far, the ECJ has accepted the horizontal direct eff ect of EU law in certain situations in its case-law, and it has also accepted a certain indirect horizontal eff ect of fundamental rights in its case-law.
In disputes with other individuals, the ECJ has established that individuals can directly rely on the EU ’ s Treaty provisions on the free movement of workers and services as well as establishment. 77 In this type of case, a certain indirect eff ect of fundamental rights can also be applied, that is, when one of the parties invokes a fundamental right as a justifi cation for the restriction of the free movement rights. 78 Furthermore, there can be an indirect eff ect of fundamental rights where individuals rely on certain provisions of EU secondary legislation in combination with provisions of fundamental rights in disputes with other private parties. 79 Th is may, in particular, occur in the area of employment law or in the area of privacy law, where there is specifi c EU secondary legislation that aims to secure the protection of fundamental rights in horizontal situations, such as the right to privacy and the protection of personal data which are protected by Articles 7 and 8 of the Charter. 80 In those cases, the indirect horizontal eff ect of EU fundamental rights in particular, and of EU law in general, is secured by the national courts that apply such rights. National courts have been required by the ECJ to interpret national law as far as possible in conformity with EU law (including fundamental rights), and to set aside national law which is not in conformity with EU law. 81 Th ey may further accept state liability for the incorrect implementation of EU law on the basis of the principle of loyal cooperation, as protected by Article 4(3) TEU. 82
It has further been debated, especially in recent years, whether the ECJ has also allowed for direct horizontal eff ect of fundamental rights on the basis of its judgments in the cases of Mangold, K ü c ü kdeveci and AMS . 83 In the cases of Mangold and K ü c ü kdeveci , the ECJ has required the national courts to apply the principle of
non-84 ECJ 22 November 2005, C-144/04, Mangold , para. 77; and ECJ 19 January 2010, C-555/07, K ü cukdeveci , para. 53. It should also be mentioned that the ECJ did not as much confi rm the substitution eff ect of fundamental rights (which implies the direct creation of rights and obligations for individuals), as it did the exclusionary eff ect (which implies the setting aside of national law), see De Mol (2011), p. 121.
85 ECJ 26 February 1986, C-152/84, Marshall .
86 Cf. e.g. the opinion of AG Trstenjak in C-282/10, Dominguez ; and the opinion of AG Cruz Villal ó n in C-176/12, AMS .
87 ECJ 15 January 2014, C-176/12, AMS .
88 ECJ 15 January 2014, C-176/12, AMS , para. 47.
89 See in particular De Mol (2013).
discrimination on grounds of age, as a general principle of EU law, in a dispute between an employer and an employee. Th ese cases were brought within the scope of application of EU law on the basis of certain provisions laid down in EU Directives. However, in the case of Mangold , the provision had not been implemented correctly into national law, and in the case of K ü c ü kdeveci , the provision had not yet been implemented because the period for implementing the Directive had not expired. In the cases of Mangold and K ü c ü cdeveci , the ECJ decided that the national courts still needed to protect the principle of non-discrimination on grounds of age, and set aside national legislation if necessary to comply with that principle. 84 Th e ECJ has, however, always precluded the horizontal direct eff ect of provisions laid down in Directives itself, because Directives cannot by themselves confer obligations on individuals. 85
So far the ECJ has not extended the approach which it developed in Mangold and K ü c ü kdeveci to other cases on fundamental rights, and there seem to be as many proponents as opponents to its doing so. 86 In the AMS case, the ECJ clearly rejected a horizontal direct application of the right to information and consultation within the undertaking as guaranteed by Article 27 of the Charter. 87 Th e ECJ held that this provision did not in itself confer rights on individuals which they could invoke as such. 88 Th e minimal reasoning of the ECJ in these cases, however, provides much room for debate on the potential for the horizontal application of EU fundamental rights in other types of cases and in respect of other types of fundamental rights. 89