Scope of Charter

Table of Contents

Overview

Article 51 sets out the scope of the Charter of Fundamental Rights of the European Union. It is addressed to EU institutions, bodies and officers when they are implementing EU law. With due regard to the principle of subsidiarity, it applies to EU member states only when they are implementing EU law.The Charter does not apply to areas which are expressly outside the scope of EU law.

EU institutions and member states implementing EU law must, therefore, respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limited powers of the EU as conferred on it by Treaties. The Charter does not extend the field of application of EU law, widen the powers of the EU or establish any new power or task for the EU or modify powers and tasks as defined under the Treaties.

EU legislation must be interpreted in accordance with the Charter. This includes national law which implements the legislation. National rules that are inconsistent with the Charter must be dis-applied. Certain rights by their terms prospectively apply between private persons. This includes those in particular, those in the Titles on solidarity and equality.

Article 51 is of key importance as it defines the scope of application of the Charter. In contrast to the European Convention on Human Rights, it applies only to member states when they are acting within the scope of European Union law. This is the case when states are implementing EU law such as by applying regulations or legislation giving effect to directives within their jurisdiction.

A number of the rights and principles in the Charter are also found in the EU Treaties.

Within Scope of EU Law

The principle behind the Article 51 limitation is that the member states are agents of the EU in implementing and giving effect to European Union law. It does not matter if a national rule predates the European Union rule if subsequent EU regulation in the area means that its function and effect and implement the European Union law.

A member state acts within the scope of EU law even if the EU legislation leaves residual discretion to the state. There will often be flexibility as per the terms on which the EU directives are given effect. There will often be flexibility in the day-to-day implementation and enforcement of the legislation.

Implementation of EU law implies a certain degree of connection above and beyond the matters covered being closely related or one of those matters having an indirect impact upon the other. It is not enough that the EU has competence in the broad area concerned. The position must go further.

The nature of the legislation at issue is whether it pursues objectives other than those covered by EU law even if it is capable of indirectly affecting EU law and also whether there are specific rules of EU law on the matter or rules which are capable of affecting it.

General Principles of EU Law

Pre-Charter case law of the Court of Justice supports the position that general principles of EU law apply when states are implementing or derogating from EU Treaty fundamental freedoms. Read literally, the wording of Article 51 is narrower than the field of application general principles of EU law evolved by the courts prior to the Charter. However, here has been some case law which supports the principle that the Charter may be invoked to disapply national legislation which runs contrary to fundamental EU freedoms guaranteed by the Treaty.

Horizontal Effects

The Charter binds EU institutions and state institutions implementing and acting within the scope of EU law. Some provisions require a member state to achieve a particular outcome. Positive obligations on the state may have the effect of creating rights as between nonstate persons.

The Charter may create rights between private persons. This is referred to as horizontal effect.

The Charter may have indirect horizontal effects in disputes between private parties. Several European Convention on Human Rights provisions have been interpreted to create positive obligations in certain contexts, thereby having an indirect horizontal effect.

The Charter is binding on states and all the organs or institutions of the state. This includes the courts. They must respect the rights, observe the principles and promote the application of the Charter. The Charter’s procedural rights may also be applicable in a dispute between nonstate actors.

There are many sectors where EU law governs important private-law relationships. This includes in particular health and safety employment free movement data protection equality. For example, the state obligations may require it to legislate in relation to matters such as discrimination to secure the effective enjoyment of the rights.

This may have the effect that the Charter applies to define the required rules that apply to a private dispute, for example between an employer and an employee. There is support in the European Court of Justice case law but some of the provisions may be relied upon directly by an employer for example by an employee against the employer.

The Charter is less likely to provide direct rights which can be relied on in private relations. The wording is addressed to the EU and the states. It may be in the future that some of the provisions of the Charter may be relied on in this way.

Basic Principles

Article 52 contains a list of principles which are to apply in interpreting the Charter. Some limit its effect. The provisions of Article 52 apply to most provisions of the Charter except those which provide for absolute rights.

The Charter applies when the right concerned falls within its scope and there is an interference with it. The interference may be capable of being justified. The justification

must be provided for by law
respect the essence of the right and
be proportionate.

It must be further a legitimate aim and be proportionate to it. On one formulation, it must be the least restrictive measure available.

The requirement that limitation of the right and that attracts the Charter right must be provided by law is equivalent to the provisions of the European Charter of Human Rights. It reflects the principle of legality and the rule of law. The relevant law may be EU law or national law. It may be unwritten law such as common law.

The law must be in existence in force and be accessible. It should be insufficiently precise terms so that the citizen can understand his obligations albeit with legal advice. In this sense it should be foreseeable.

A limitation of a protected right must preserve the essence of the right concerned. The essence of the right is its essential core nature. This may be difficult to define. It has been suggested that this is the expression of the right in a manner that no countervailing right can take priority over it.

Proportional Restrictions

The limitation on the Charter right must be proportional. Proportionality is a long-established general principle of EU law derived from civilian law systems. Article 54 of the Treaty on European Union reflects the principle of proportionality.

Proportionality implies a balancing of interests with a view to reconciling the requirement of the protection of those different rights and freedoms and achieving a fair balance between them. It is said to be more than a mere arithmetic exercise. All the relevant considerations must be taken into account.

The criticism has been made that the exercise comes close to policymaking by the courts. The EU court or national court applying EU law must set out its reasoning in considering the competing interests involved. The final determination must take account of the interests and seek to reconcile them, recognising that one may limit the other.

Under the European Convention on Human Rights, states are allowed a significant margin of appreciation, particularly in certain types of certain areas. These are classically areas involving complex economic social and political choices. In n these cases, the court will generally defer to the state.

However, where the matter concerns fundamental rights traditionally the subject of constitutional and judicial protection the margin of appreciation may be less. In some cases, the member states have a significant margin of appreciation in relation to the manner in which they implement EU law. In other cases, EU law is prescriptive.

There may be a margin of appreciation in relation to the manner in which the laws are enforced as well. as in relation to their terms. The circumstances may point to the margin of appreciation which may be afforded. For example, when enforcing EU law directly, there is less likely to be any margin of appreciation.

Limits per ECHR & Other Rights

The Charter is not intended to alter the system of rights conferred by the Treaty. It is not intended to introduce conflicting standards. Article 52 provides that the Treaty provisions take effect if there is a discrepancy.

Accordingly, the Charter should be interpreted to give effect to the EU right. This should not be a conflict between the Charter and the equivalent EU right.

Article 52(3) recognises that many of the rights are based verbatim on the wording equivalent to rights in the European Convention on Human Rights and the EU treaties. All EU states are members of the Council of Europe and are party to the European Convention on Human Rights although not all are party to each protocol.

The European Convention is a minimum standard of rights. The numerous judgements of the court (c67,000 as of 2023) provide guidance on the meaning and scope of the equivalent Charter provisions. The respective limitations and restrictions on the equivalent guarantee in the European Convention on Human Rights are to be interpreted into the Charter.

This applies both in respect of the limitations in the ECHR itself and as interpreted by the case law of the European Court of Human Rights. It does not follow, however, that the ECHR case law is binding. It would be very persuasive and will generally be followed. However, on occasion, the Court of Justice of the European Union has taken a different approach on the same subject matter.

Article 52(4) recognises that the ECHR and the Charter are based on constitutional rights common to many member states. It is recognised that they may provide some guidance on the interpretation of the Charter right. The Charter should be interpreted in harmony with those constitutional traditions.

Principles

Article 51 provides that rights must be respected, and principles must be observed. It is a matter of interpretation by the Court of Justice as to which provisions of the Charter embody rights and which reflect principles. Principles are anterior to rights. Rights imply a corresponding obligation of another party typically a public authority in the context of EU law.

Principles are more general norms and standards. They may be implemented and given effect as rights. However, they do not by themselves give rise to a right of action/claim. However, interference with a principle may constitute a breach of EU law without creating a corresponding right.

The European Court of Justice has indicated that principles do not generally affect the legality of an EU act as they are insufficiently specific by itself. The legislation which implements the principle may be reviewed and invalidated. It may be that a principle may be used to limit and reinterpret an implementing act. It may be possible that it goes so far as invalidating it or requiring it to be radically reinterpreted.

It may be debatable as to whether a particular principle is reflected in legislation and if so whether it has been contravened. Complex questions may arise as to what extent legislation is giving effect to a principle. Ultimately, this is a matter of judgement by the court.

Article 52(6) requires that account be taken out of national laws and practices in the interpretation of the Charter. This reflects the principle of subsidiarity. This is also reflected in the margin of appreciation or discretion that states may enjoy in the implementation and administration of EU legislation.

Not Limit other Freedoms

Article 52 confirms that the Charter reaffirms fundamental rights which already exist and should be interpreted accordingly. The Charter reflects the principles of the European Convention on Human Rights the EU treaties and the constitutions of EU states.

Article 53 provides that nothing of the Charter is to be interpreted as restricting or adversely affecting human rights and fundamental freedoms recognised by EU law international law by international agreements to which EU member states are party including the European Convention on Human Rights.

The Court of Justice has held that the Charter allows for a higher level of protection and those in international standards, provided that the primacy unity and effectiveness of EU law are not thereby compromised.

In contrast to the European Convention which provides a minimum level of standards in some contexts, the European Union Treaties sometimes provide for a maximum level of protection in the interests of harmonisation.

There may be higher standards of protected right under domestic constitutional law or international instruments. Some states have applied the Charter in tandem with the human right provisions of their constitution. Some states have incorporated the Charter into their domestic law.

No Abuse of Rights

Article 54 provides prohibits an abuse of rights. The Charter is not interpreted as implying any right to engage in an activity or perform any act aimed at the destruction of any of the rights and freedoms recognised in the Charter or their limitation to a greater extent than is provided therein. This reflects the general principles of EU law.

The Article applies to rights which may involve a direct conflict of mutual competing rights such as freedom of expression and protection of privacy. The European Court of human rights has prohibited the assertion of ECHR rights to weaken or undermine democratic society or to promote ideas wholly contrary to the spirit of democracy and the ECHR.