Reasons to check whether the Charter applies

Part I: General orientation
National autho rities and courts remain fre e to apply national standards of p rotec-
tion of fundament al rights. The level of protection of the Cha rter always applies
as a minimum sta ndard for national measures implem enting EU law.
where an EU legal act calls for national implementing measures, national author-
ities and court s remain free to apply hi gher national st andards of protection of
fundamental rights.
However, according to the case law of the CJEU, thi s applies only under the prem -
ise that “the level of protect ion provided for by the Cha rter, as interpreted by
the Court, and th e primacy, unity an d effectiveness of EU l aw are not thereby
The CJEU conclude s this from the principle of prim acy, according
to which rules of natio nal law – even of a constitutional order – ca nnot be allowed
to undermine the e ffectiveness of EU law on the territor y of that state.
National funda mental rights can also help in i nterpreting Charter rights: as far a s
the Charter recogn ises fundament al rights as resulti ng from the constitutio nal
traditions comm on to the Member States, th ose rights are to be inter preted in
harmony with those traditions.
3 Reasons to check whether the Charter
Duty to respect, observe and promote the Charter
According to Article 51(1) of the Charter, Member States have a du ty to respect
the rights, obse rve the principles and promote th e application of the Charter.
Therefore, when impl ementing EU law, Member States have to respect the Ch ar-
ter and promote its ap plication. This d uty rests on all o rgans of the Member
States, including national lawmakers, administrations, judges, etc.
Using the Charter i n the legislative proces s is not only a means of maki ng sure
that national leg islation is “Charter p roof”; it also contributes to the Cha rter’s
promotion. For fu rther explanation, see Chapte r4.
47 EU (2012), Charte r of Fundamental Rig hts of the European Unio n, OJC326, 26October 20 12,
48 CJEU, C-399/11, Stefano Melloni v. Minister io Fiscal [GC] , 26February2 013, para.60.
49 EU (2012), Charter of Fu ndamental Right s of the European Union, O JC 326, 26October 2012 ,
Art.52 (4).

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