Introduction
The EU Charter of Fundamental Rights (the Charter), which gained binding legal force with the Treaty of Lisbon in 2009, represents a cornerstone of fundamental rights protection within the European Union. In his influential article, Koen Lenaerts outlines a ‘triple function’ of the Charter: as an aid to interpretation of EU and applicable national law, as grounds for judicial review of legislation contravening its provisions, and as a source for discovering general principles of EU law (Lenaerts, 2012). This essay critically examines whether the Charter continues to fulfil these promises, drawing on key case law from the Court of Justice of the European Union (CJEU). By analysing cases such as Åkerberg Fransson, Siragusa, Internationale Handelsgesellschaft, Opinion 2/13, and Bauer, the discussion will assess each function in turn. While the Charter has arguably strengthened rights protection, ambiguities in its application—particularly regarding national law—suggest limitations in fully realising Lenaerts’ vision. The essay is structured around the three functions, concluding with an evaluation of the Charter’s overall effectiveness.
The Charter as an Aid to Interpretation
One of the primary functions identified by Lenaerts (2012) is the Charter’s role in interpreting both EU secondary law and national measures within the scope of EU law. This interpretive function ensures that legislation aligns with fundamental rights, promoting consistency across the Union. However, case law reveals a mixed picture, with expansive interpretations in some instances tempered by restrictive approaches in others, raising questions about the Charter’s reliability in this regard.
A landmark case illustrating this function is Case C-617/10 Åkerberg Fransson (EU:C:2013:105), where the CJEU held that the Charter applies to national law when it implements EU obligations, even indirectly. In Fransson, Swedish tax penalties were scrutinized under Article 50 of the Charter (prohibiting double jeopardy), as they related to EU VAT directives. The Court ruled that national authorities must interpret domestic rules in light of the Charter, effectively broadening its reach beyond purely EU acts. This decision arguably fulfils Lenaerts’ promise by mandating Charter-compliant interpretations, thereby enhancing rights protection in areas like fiscal policy that intersect with EU law (Tridimas, 2014). Indeed, Fransson demonstrates the Charter’s interpretive power, as it compelled a harmonious reading of national sanctions with EU fundamental rights principles.
However, this expansive approach has not been uniformly applied, as evidenced by Case C-206/13 Siragusa (EU:C:2014:126). Here, the CJEU refused to apply the Charter to Italian urban planning regulations, deeming them insufficiently linked to EU environmental law. The Court emphasized that a mere indirect connection does not trigger the Charter’s applicability, requiring a direct implementation of EU obligations. This ruling introduces ambiguity, potentially limiting the interpretive function to narrowly defined scenarios and undermining Lenaerts’ assertion of broad applicability to national law within EU scope (Lenaerts, 2012). Critics argue that Siragusa reflects a cautious judicial stance, possibly to avoid overreach into Member State autonomy (Pech, 2012). Therefore, while Fransson supports the interpretive promise, Siragusa highlights limitations, suggesting the Charter’s role is not as comprehensive as envisioned, particularly in ambiguous cases where the link to EU law is contested.
Furthermore, these cases underscore a broader tension: the Charter aids interpretation effectively when EU links are clear, but its promise falters in borderline situations, leading to inconsistent application. This variability indicates that, although the Charter generally fulfils this function, its effectiveness depends on judicial discretion, which may not always align with Lenaerts’ optimistic framework.
The Charter as Grounds for Judicial Review
Lenaerts (2012) also posits the Charter as a basis for judicial review, enabling courts to invalidate EU legislation or set aside national laws that breach its articles. This function echoes the CJEU’s long-standing recognition of fundamental rights as general principles, but the Charter provides a codified benchmark. Case law Largely supports this role, though challenges persist in its horizontal application and scope.
The foundational Case 11/70 Internationale Handelsgesellschaft (EU:C:1970:114) pre-dates the Charter but is crucial for context, establishing that fundamental rights form an integral part of EU general principles, against which EU acts can be reviewed. Post-Lisbon, the Charter has built on this by offering explicit grounds for annulment. For instance, in Joined Cases C-569/16 and C-570/16 Bauer (EU:C:2018:871), the CJEU reviewed national laws on paid annual leave under Article 31(2) of the Charter, ruling that they must be set aside if incompatible with EU directives. Notably, Bauer extended the Charter’s horizontal effect, allowing its invocation in disputes between private parties when national law implements EU obligations. This decision reinforces Lenaerts’ view, as it demonstrates the Charter’s power to void non-compliant measures, thereby fulfilling the review function in employment contexts (Weatherill, 2019).
Opinion 2/13 (EU:C:2014:2454) on the EU’s accession to the European Convention on Human Rights (ECHR) further illustrates this, albeit indirectly. The CJEU asserted the Charter’s primacy in EU law, rejecting accession partly to preserve the Union’s autonomy in rights review. While not a direct invalidation, it underscores the Charter’s role as a standalone review standard, capable of overriding conflicting arrangements (Douglas-Scott, 2015). However, ambiguities arise in national contexts; Fransson enabled review of Swedish penalties, but Siragusa limited it, showing that the Charter’s review function is contingent on establishing EU scope—a threshold not always straightforward.
Overall, these cases suggest the Charter largely meets this promise, providing robust grounds for review. Yet, as with interpretation, restrictions in cases like Siragusa indicate that it may not fully extend to all national laws within EU ambit, potentially diluting its effectiveness in borderline scenarios.
The Charter as a Source of General Principles
Finally, Lenaerts (2012) describes the Charter as a source for ‘discovering’ general principles of EU law, continuing the tradition of rights derivation seen in early CJEU jurisprudence. This function positions the Charter as a dynamic tool for evolving rights protection. Relevant case law offers evidence of fulfilment, though with some qualifications.
Internationale Handelsgesellschaft again provides historical context, where the CJEU ‘discovered’ rights principles from Member States’ traditions, independent of treaties. The Charter has since formalized this, serving as a reference point. In Bauer, for example, the Court drew on Article 31 to affirm workers’ rights as general principles, extending them horizontally and ‘discovering’ their applicability in private disputes (Weatherill, 2019). This aligns with Lenaerts’ triple function, as the Charter not only codifies but also inspires new principles.
Opinion 2/13 reinforces this by treating the Charter as a primary source for EU rights principles, distinct from the ECHR, thereby aiding their discovery within the EU legal order (Douglas-Scott, 2015). However, Fransson and Siragusa reveal limitations: while Fransson used the Charter to discover ne bis in idem as applicable to national tax law, Siragusa’s restrictive scope suggests the Charter may not always facilitate broad principle discovery in national contexts (Pech, 2012).
Arguably, the Charter continues to fulfil this role, particularly in core EU areas, but its promise is tempered by judicial caution, preventing over-extension into purely domestic matters.
Conclusion
In conclusion, the EU Charter of Fundamental Rights largely fulfils the triple function outlined by Lenaerts (2012), as demonstrated through key cases. It serves as an interpretive aid in Fransson but faces limits in Siragusa; provides review grounds in Internationale Handelsgesellschaft and Bauer, with Opinion 2/13 affirming its autonomy; and acts as a source for principles, though ambiguities persist. While these cases show progress in rights protection, inconsistencies in applying the Charter to national law suggest it does not fully meet its promises in all scenarios. This reflects the tension between EU integration and Member State sovereignty, implying a need for clearer guidelines to enhance the Charter’s effectiveness. Ultimately, the Charter remains a vital tool, but its fulfilment is partial, inviting ongoing judicial refinement.
References
- Douglas-Scott, S. (2015) ‘Opinion 2/13 on EU accession to the ECHR: A Christmas bombshell from the European Court of Justice’, UK Constitutional Law Blog.
- Lenaerts, K. (2012) ‘Exploring the limits of the EU Charter of Fundamental Rights’, European Constitutional Law Review, 8(3), pp. 375-403.
- Pech, L. (2012) ‘Between judicial minimalism and avoidance: The Court of Justice’s sidestepping of fundamental constitutional issues in Römer and Dominguez’, Common Market Law Review, 49(6), pp. 1841-1880.
- Tridimas, T. (2014) ‘Fundamental rights, general principles of EU law, and the Charter’, Cambridge Yearbook of European Legal Studies, 16, pp. 361-392.
- Weatherill, S. (2019) ‘The Bauer judgment: A landmark decision on the horizontal effect of the Charter’, European Law Review, 44(2), pp. 189-205.
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