Checklist on the applicability of the Charter

Part II:
Practical tools
Checklist on the applicability of the
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.
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
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
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.
Source: FRA, 2018

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