Reasons to check whether the Charter applies

• Pages: 25-37

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.

47

Therefore,

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

compromised”.

48

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.

49

3 Reasons to check whether the Charter

applies

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,

Art.53.

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).