Mahnoor Tariq 2021 - A
3. ‘The Charter of Fundamental Rights is a too powerful instrument in the hands of the
European Court of Justice, as it enables it to make substantive policy choices which should
be only for the EU institutions or the Member States to decide.’ Discuss.
The question pertains a discussion of the application and impact of the Charter of
Fundamental Rights (CFR). The question statement is asserting that CFR is a powerful
instrument for ECJ, enabling them to make important policy decisions regarding national
laws, a power that only EU institutions or the member states (MS) should possess. We will
now discuss the scope of this statement using relevant case law to assess its validity.
In Fransson, the court clarified that since the rights guaranteed by CFR must be complied
with where national legislation falls within the scope of EU law, situations covered by EU law
without those rights being applicable cannot exist. This makes CFR a benchmark for the
legality of both EU and national law within EU’s jurisdiction. A national measure will be
considered as implementing EU law where a certain degree of connection is established
beyond the matters where being closely related or one of those matters having an indirect
impact on the other (Siragusa). Moreover, in Mellioni, CJEU ruled that although the national
authorities and courts remain free to apply national standards of protection of fundamental
rights (FR) per Art.53 CFR, the level of protection provided by CFR, the primacy, unity, and
effectiveness of EU law cannot be compromised. Casting doubt on the uniformity of this
standard of protection would undermine the principles of mutual trust and recognition
which this decision purports to uphold for its efficacy.
These decisions show that a national legislation must be interpreted in light of CFR, and
where a national measure is considered as implementing EU law, national authorities are
free to apply national standards of protection for FR. However, the primacy and
effectiveness of EU law in enforcing CFR in cases of breach, cannot be compromised. Does
EU supremacy in protecting FR of EU nationals mean that CJEU is using CFR as a tool to make
substantive policy choices in national laws? Per ERT, CJEU must provide the national court
with all the elements of interpretation necessary to assess the compatibility of its legislation
with FR. When MS invokes a treaty provision to justify a rule which restricts a community
freedom, the restriction should be interpreted per CFR. It is for the national court and if
necessary, for CJEU to assess the application of the provisions where the limitations imposed
on the power of MS to apply these provisions must be judged per ECHR.
This shows CJEU’s intention to ensure MS’s compliance with CFR when applying derogations,
whereby the court has extended its jurisdiction to include national law rules in link with EU
law as they are a derogation from EU law, and where such derogation varies from MS to MS,
CJEU will define the scope of protection for the freedoms and rights involved. If this is what
the question statement is alleging as a powerful instrument, then perhaps people do not
understand the basics of EU supremacy and what it entails (not in the scope of this
question).
Test Aschat concerned a directive on sex discrimination where there was no limit on how
long MS could derogate from EU law. CJEU held that such a derogation without limitation
was incompatible with Articles 20 and 23 CFR (discrimination of gender and age). Therefore,
an EU legislator must act in a manner that is consistent with its objectives as EU institutions
, Mahnoor Tariq 2021 - A
are also bound by CFR. This shows that ECJ does not hold back from correcting a wrong in EU
law, nor does it unfairly make it directly effective for the sake of its supremacy.
In Commission v Poland, provisions of Polis law contrary to the independence of the
judiciary and rule of law (ROL) were challenged. This violation of ROL by Polish legislation led
EU to withhold billions of euros from Poland for recovery after the pandemic, and yet the
Polish government is pushing back against the decision of CJEU, claiming that it is going
beyond the powers conferred on it. That is a bold claim. However, with the war in Ukraine,
the commission gave assent to Poland’s recovery and resilience plan under which the
conditionality regulation empowers the commission to take budgetary measures which EU is
reluctant to take because of the unrest it would cause in the Union as a whole. When this
conditionality regulation was triggered by the commission in Hungary, EP declared that
Hungary can no longer be a considered a full democracy in Commission v Hungary. This
happened due to the lack of EU’s decisive actions which contributed to the emergence of a
hybrid regime of electoral autocracy i.e., a constitutional system in which elections occur,
but respect for democratic norms and standards are absent (MEPs). In this regard, perhaps
CJEU should widen its controls over national laws as far as the national government loses its
capacity to enforce ROL.
Now we will assess the success of CJEU in protecting FR of EU nationals. Google Spain
concerned the balancing of Art.7 (right to private life) and Art.8 (right to protection of
personal data) of CFR. CJEU concluded that the rights of an individual outweigh the rights of
the general public. To allow access to private information of an individual would undermine
his ability to have a private life (Maximillan Schrems). Similarly, in Tele2 Sverige, CJEU held
that MS may not impose an obligation to retain data on providers of telecommunication
services as EU law precludes national legislation that imposes a general and indiscriminate
retention of traffic and location data, and only the objective of fighting serious crime is
capable of justifying such measures, meaning MS has the power to adopt this as a
preventative measure for fighting serious crimes only. Here, CJEU only drew a line for the
implementation of such measures. It has not stopped MS from exercising their control.
In joined cases IX and MJ, both IX and MJ were employed at companies that were governed
by German law; both wore headscarves to work and were asked to remove them as it
contravened the company’s policy of political and religious neutrality. CJEU held that this is
justified if the policy is pursued in a general and non-discriminatory way, based on the
employer’s genuine need to present a neutral image towards customers. A court will
reconcile the rights and interests at issue in each case for the specific context of MS and any
national measures on the protection of religious freedom when assessing this genuine need.
Bosphorus Airlines v Ireland concluded that EU MS are absolved from responsibility under
ECHR when they act in compliance to EU law. Hence, the accession of EU and ECHR might be
the only way to exempt EU MS from liability under ECHR. However, the draft agreement on
accession – Opining 2/13 which assessed this for the protection of human rights and
fundamental freedoms that were compatible with the treaties, was incompatible with EU
law because it did not recognise the sui generis nature of EU or its supremacy; it violated
Art.344 TFEU which allows CJEU to settle inter-state disputes between MS; and the
correspondent system envisaged required both EU and MS to be parties to ECHR, giving
