The scope and limited application of the Charter

The application of the Charter is limited, as determined by the general provisions regarding the scope and interpretation of the Charter (Articles 51 and 52).

Article 51(1) states that the provisions of the Charter ‘are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law’. This means that the Charter is primarily applicable to EU institutions (e.g. the Commission or the Parliament) and bodies (i.e. authorities established by the Treaties or by secondary legislation), which are bound to ‘respect the rights, observe the principles and promote the application thereof’.[1] As to the Member States, the Charter is only binding on them when they take actions within the scope of EU law. [2] This means in particular that Member States’ legislators have to respect fundamental rights when implementing EU measures in national law. The national courts also have to respect these rights when interpreting EU secondary law.[3]

Article 51(2) then stipulates that 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’. Thus, the Charter can be regarded as a means ‘to consolidate and render visible’ the existing fundamental rights in the EU, without however establishing new competences.[4]

According to a number of fundamental rights experts, Article 51(2) of the Charter is too restrictive.[5] Fundamental rights are general principles of EU law, which have been recognized by the ECJ. In their opinion, the fact that the Charter does not transfer new competences to the EU conflicts with the requirement of effective protection of these rights. Still, although the Charter cannot, on its own, change the distribution of competences concerning fundamental rights, it may influence the exercise of these powers in an indirect way.[6]

Finally, Article 52 provides information on the scope and interpretation of rights and principles of the Charter. In particular, paragraph 1 states that any ‘limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law’. Furthermore, according to the same paragraph, ‘Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’. Paragraph 3 then stipulates that if the Charter covers rights which correspond to rights guaranteed by the ECHR, ‘the meaning and scope of those rights shall be the same as those laid down by the said Convention’. This should not, however, prevent Union law from providing more extensive protection. The aim of this provision is to ensure consistency between the ECHR and Charter rights, without the EU losing the possibility of setting broader standards.

Articles 51 and 52 also deal with the difference between rights and principles, which is of particular importance for consumer protection, and which is explained in the next subsection.

  • [1] Note from the Praesidium of the Convent, Charte 4473/00 (Brussels, 11 October 2008);regarding an indirect horizontal effect of the Charter, see P. Craig, The Lisbon Treaty, Law, Politics,and Treaty Reform (Oxford: OUP, 2010), pp. 209 et seq.
  • [2] Poland and the UK have opted out of the Charter; see the opt-out Protocol on the application of the Charter of Fundamental Rights of the EU to Poland and to the UK, OJ C 115/313-14,9.5.2008.
  • [3] See Case C-2 7 5/06, Productores de Mzeica de (Promusicae) v Telefonica deSAU (2008) ECR I-00271. See more in C. Busch, ‘Fundamental Rights and Private Law in theEU Member States’ , in C. Busch and H. Schulte-Nolke, Fundamental Rights and Private Law(Munich: Sellier, 2011), pp. 4-5.
  • [4] P. Craig and G. de Burca, EU Law: Text, Cases and Materials, 4th edn (Oxford: OUP, 2008), pp.413-14. Regarding the question of competence, see also the EU Network of Independent Expertson Fundamental Rights, Report on the Situation of Fundamental Rights in the European Union in 2004,January 2005, pp. 15 et seq.
  • [5] EU Network of Independent Experts on Fundamental Rights, 20 June 2006: , pp. 389-92.
  • [6] O. de Schutter, ‘Les droits et principes sociaux dans la Charte des droits fondamentaux del’Union europeenne’, in J.-Y. Carlier & O. de Schutter (eds), La Charte des droits fondamentaux deVUnion europeenne (Brussels: Bruylant, 2002), pp. 117-48.
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