How to check whether the Charter applies?

• Pages: 37-40

Part I: General orientation

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under the Treaties” it can lau nch an infringem ent procedure (lette r of formal

notice, reasoned opinio n, and referral to Court).

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•The Charter is pa rt of EU primary l aw and the European Comm ission can initiate

an infringeme nt procedure against a b reach of the Charter by a Memb er State,

provided the Char ter applies (i.e. the a lleged human ri ghts violation o ccurred

within the scope of ap plication of EU law; see Chapter4).

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Example: the C harter and infringement p rocedures

Current examples of su ch an intervention by the Commissi on include an infringe-

ment procedure again st a national asylum law in wh ich the Commission considered

that the latter did not co mply with EU legislation (Direc tive2013/32/EU on Asylum

Procedures, Direct ive2008/115/EC on Return, Directive2013/33/EU o n Reception

Conditions) and several provisi ons of the Charter.

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Another examp le (also still

pending at the tim e of writing) concerns a law reform ing the judiciar y with the

effect that a sign if‌icant part of a Sup reme Court would be fo rced to retire. The

Commission is of the opi nion that aspects of the refor m undermine the princi ple of

judicial independence, including the irremovability of judges, and thus runs counter

obligations un der Article 19(1) of the Treaty on European Union read i n connection

with Article 47 of th e Charter of Fundamental Rights of t he European Union.

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4 How to check whether the Charter applies

Where should you start your assessment?

•Article 51 is the poi nt of departure for a ny assessment of whethe r or not the

Charter appli es. It codif‌ies the cas e law of the CJEU regarding th e application of

general princ iples of EU law.

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See Chapter1, Section s on Fields of application and

What is the rational e of Article51 of the Charter?

68 European Comm unities (2012), Consoli dated version of the Treaty on th e Functioning of th e

European Uni on (TFEU), OJC326, 26Oct ober2012, Art.258 .

69 On the infri ngement procedure an d ways to optimise its use i n the context of fundam ental

rights, see d e Schutter, O. (2017), Infringe ment proceedings as a tool fo r the enforcement of

fundamenta l rights in the European U nion, Open Society I nstitute, Octobe r2017.

70 Infringement No.2015 2201.

71 Infringement

No.2017212 1.

72 See t he Explanations o n Art.51(1) of the Charter, OJC303 , 14December2007, pp.17–37. See

also Opinio n of Advocate General Cr uz Villalón of 12Jun e2012, para. 25 in CJEU, C-617/10,

Åklagaren v. Hans Åke rberg Fransson [GC] , 26Februa ry2013. Regardin g general princip les of

law and Art.5 1 of the Charter, see note8.