Checklist on the applicability of the Charter

• Pages: 47-67

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Part II:

Practical tools

 Checklist on the applicability of the

Charter

•This checklist is a tool for assessing whether or not, and to what extent, EU

fundamental rights apply in national legislative and policy processes. It is based on

pre- and post-Charter case law of the CJEU.

104

•The key question in su ch an Article 51 s creening is whethe r or not the (draft)

national act at iss ue qualif‌ies as “im plementation of U nion law” in the se nse

of Article 5 1(1) of the Charter (hereinafte r “implementati on of Union law” or

“implementing Union law”). For an introductory explanation, see Chapter 1,

Chapter 4 and Cha pter 5.

Choose the route that ref‌lects your starting point

•This checklist b uilds on two dif ferent “routes” dependin g on whether or not th e

national legisl ative or policy proces s is reacting to a specif‌i c EU act (e.g. a reg-

ulation, a direc tive, an external ag reement or a specif‌i c Treaty provision). Your

situation (see Chapter5) will be of a di fferent nature depe nding on what your

point of depart ure is.

104 This che cklist is largely bas ed on de Mol, M.(2016), ‘Articl e51 of the EU Charter in the

legislative processes of the Member States’, Maastricht Journal of Europea n and Comparative

Law (MJ) , 23(4), pp.640–666.

Applying the Charter of Fundamental Rights of the European Union in law

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•Use RouteA if the aim of the natio nal legislative or policy process i s the transpo-

sition, applica tion or execution of an EU act into the nati onal legal system.

•Use RouteB if the a im of the national le gislative or polic y process is not an EU

legal act.

Route A: Cause of national legislative action is an

EU act

•The most obvious e xample of “implementing Unio n law” is a scenario in which a

Member State act s to transpose or implement a Un ion legal act. In this sc enario ,

Member States are ac ting as “agents” or “representa tives” of the EU (the

“agent situation”, see Cha pter 4). In such a scenario, it is clear that in princi-

ples EU fundame ntal rights ap ply.

Figure 7: Situations of Ch arter application in respon se to a Union legal act

EU Member

States

Union

legal act

a new national measure is

introduced to transpose

specif‌ic requirements laid

down in a Union legal act.

the current national law

already fulf‌ils (parts of)

the EU legal act at issue.

existing or newly introduced

national legislation uses

discretion granted by

an EU legal act.

existing national remedies or

sanctions are used to enforce

EU law or such mechanisms

are newly created.

national legal concepts are

used by the EU legislature.

A.1

A.2

A.3

A.4

A.5

transposing

Source: FRA, 2018