The difference between rights and principles
Article 51(1) of the Charter imposes a distinction between subjective rights and mere principles, by stating that rights should be ‘respected’ whereas principles should be ‘observed’. The difference between these two categories is that principles only have limited justiciability, whereas subjective rights can be claimed directly in the courts.
Article 52(5) of the Charter further clarifies this distinction: ‘principles may be implemented by legislative and executive acts’ taken by the Union, and by acts of Member States when they are implementing Union law. ‘They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality’. This implies that for the courts they are important only when these acts are analyzed or their validity is reviewed; however, they do not provide the basis for direct claims for positive measures.
Article 38 of the Charter, on consumer protection, refers to the policy level, rather than to rights. This broad formulation reflects the drafter’s aim for consumer protection to be intended as a legal principle, and not as a subjective right.
The ‘principle’ status of consumer protection has stirred criticism with regard to the value of such provisions, as the amended Charter postulates a sort of inferiority of certain social provisions compared to civil and political rights. For instance, some scholars claim that Article 38 is not sufficiently detailed to guarantee consumer protection, because it only repeats the existing Treaty provisions without providing specific rights. Nevertheless, several scholars argue that legal principles could evolve and become a subjective right through the development of the case law. As they point out, experience has shown that it is common for the full implications of fundamental rights to develop in a progressive way: fundamental provisions are often abstract, but they can become more specific in time, and may develop into rights by favourable court ruling.
Consequently, although there is no doubt that consumer protection has a ‘principle’ status in the Charter, this provision could evolve in the future. In particular, it may become more concrete ifit is applied in combination with other rights of the Charter, Treaties, or constitutional provisions. Article 38 of the Charter could, for instance, be applied in a cumulative manner with Article 3 of the Charter on physical integrity, with Article 12 on freedom of assembly, or with Article 8 on the right to data protection. In fact, in some national cases a cumulative application of basic provisions has resulted in successful claims for individuals.
Thus, it can be argued that the key distinction between the Charter’s principles and subjective rights lies more in the manner of their justiciability, than in the possibility itself of invoking the provision before the courts. The real implications of fundamental consumer protection will remain in the hands of both the European Court of Justice and the courts of the Member States.
-  On the differences between principles and rights, see de Schutter, ‘Les droits et principes sociaux dans la Charte des droits fondamentaux de l’Union europeenne’ (n 83) and R. Alexy,‘Rights, Legal Reasoning, Legal Dicourse’, (1992) 5(2) Ratio , p. 145.
-  See OJ 2007, C 303/17 on the Charter explanations provided under the Praesidium of the Convention which drafted the EU Charter (referring to e.g. the CFI case T-13/99, Pfizer v , 11 September 2002).
-  D. McGoldrick, ‘The Charter and UN Human Rights Treaties’, in S. Peers & A. Ward (eds),The European Union Charter of Fundamental Rights (Oxford/Portland: Hart Publishing , 2004),p. 97.
-  See also in general T. Goldsmith, ‘A Charter of Rights, Freedoms and Principles’, (2001) 38 CML Rev., pp. 1201 etseq.
-  Weatherill (n.77) p. 31. G. de Burca, ‘Beyond the Charter: How Enlargement has enlarged the Human Rights Policy for the EU’, (2004) 27 Fordham IntiL. J., pp. 679-714.
-  C. Callies, ‘Die Europaische Grundrechts-Charta’, in D. Ehlers (ed.), Grundrechte undGrundfreiheiten (Berlin-New York: De Gruyter, 2003), p. 23.
-  CFR-CDF, Rapport sur la situation des droits dans VUmon et ses Etats membres en 2003, p. 121; de Schutter (n 83).
-  Riedel (n 66), p. 430.
-  de Schutter (n 83).
-  Riedel, (n 66) fnn. 9-10.