CHARTER OF FUNDAMENTAL RIGHTS General overview, history and evolution

The Charter of Fundamental Rights Why a Charter of Fundamental Rights of the European Union. The Koln European Council and the Simitis Report (1999). The 3 goals of the codification: a)Certainty and visibility of fundamental rights b)Legitimation of the Court of Justice. The unclear nature of the reference to “common constitutional traditions and to the ECHR" c)Equalisation of first- and second-generation rights and of socio-economic rights and “second-generation rights“ Art. 6 of the Treaty: the rights of the Charter have the same value as the Treaties (EU primary legislation)

Nature of the Charter Non-universal tool for the protection of fundamental rights: it does not extend the Union’s competences or objectives. The sources of the Charter (usually listed in the official Explanations). For socio-economic rights: the ILO Conventions if undersigned by all member States, the two European Social Charters, the case-law of the Court of Justice, the rules of the Treaties. A tool for individual and collective protection, as well as to direct the Union’s policies (monitoring of the enforcement of the Charter, ‘impact’ evaluation, reference to the Charter in the Introductions to the Union’s binding legal instruments (e.g. directive no. 14/2002) Parameter for the ‘constitutional’ legitimation of the Union’s acts. Judgments of the Court of Justice: Association belge des Consummateurs (C-236/09); Scarlet Extended S.A. (C- 70/2010). Annulment or interpretation (in conformity with the Charter of Directives).

The tools for the enforcement of the Charter Art. 7 of the Treaty. Agency for Fundamental Rights. Proceedings for annulment. The reference for a preliminary ruling. Infringement proceeding. Compensation for damages. Interpretation in conformity by the ordinary court; disapplication of the national rule. ‘Free’ reference to the Charter’s rules in national decisions. Reference to the Charter of the national Constitutional Courts and of the Court of Strasbourg. Judgment of the European Court of Strasbourg in case Demir and Baykara vs. Turkey, (no /2007)

Field of Application of the Charter Art. 51: para. 1 European Union Law and its implementation in national law. Explanations. Commission’s strategy. Communication of lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0573:FIN:EN:PDFhttp://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0573:FIN:EN:PDF A link is sufficient between Europan law and the facts before the Court. Orientation of the Court of Justice. Fransson judgment (Grand Chamber) of (C-617/2010); Siragusa judgment of (C-206/2013) Questionability, in the light of the Charter, of the recovery measures adopted in the countries receiving European funds. Pringle judgment (Grand Chamber) of 27 November 2012 (C-370/2012), Sindicato dos bancarios do Norte order of (C-128/2012); Court of Strasbourg, 8 October 2013, Da Conceiçao Mateus e Santos Januario

The relationship between the EU Charter of Rights and the other tools for the protection of fundamental rights Articles 52 and 53 of the Charter (horizontal clauses) Interpretative link between the Charter and the case-law of the Court of Strasbourg: art. 52 para. 3. Civil and criminal law scope. The ECHR has not been ‘communitised’. Autonomy of the EU law. Art. 53. principle of more favourable treatment. Meaning in the social context. Judgment of the Court of Justice (Grand Chamber) in Kamberay, (C-571/2010); effectiveness of the CEHR in national legislations; the issue of national law. Scattolon judgment of (Grand Chamber), C-108/2010. There is no precedent on the prohibition against retroactivity of civil law. Compliance with national Constitutions. Melloni judgment of (Grand Chamber) (C-361/2013)

Effects of the Charter Full applicability (in principle) on bodies and agencies of the EU and of Member States (for the latter, under art. 51). Problem of the self-executing nature of the rules. It has never been raised for bodies of the Union or States. It is the Court of Justice’s responsibility to set the boundaries of fundamental rights. Art. 52, para. 1. The essential content of the rights. Applicability in relations between private subjects. Open issue. Judgment of the Court of Justice (Grand Chamber) in Association de médiation sociale, Clear, precise and unconditioned provisions for the direct application of the Charter to be invoked in relations between private subjects. Integration of law with the provisions of directives only if the latter can be inferred from the Charter’s provision. Possibility of damage compensation. The distinction between rights and principles has never been tackled (Art. 52, para. 5) The prohibition of discrimination is directly applicable in the relationships between private subjects. Judgment of the Court (Grand Chamber) in Kükukdevici, 19 January 2010 (case C-555/07)

Directions for expanding the Charter’s effectiveness Non-discrimination. Wide-scoping directives, ‘quasi-general’ competence of the Union. Court of Justice, Kükukdevici, 19 January 2010, case C-555/07, etc. Judgment of the EU Court of Justice in case Hay vs. Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres, (C-227/12), 12 December 2013 Art. 47 of the Charter (right to a fair trial). Judgment of the Court of Justice in Fuß of 12 October 2010, case C-243/09 and Gavieiro Gavieiro of 22 December 2010, cases C-444/09 and C-456/09 Judicial cooperation in civil law matters Judgment of the Court of Justice in JMcB, 5 October 2010, case C- 400/10 PPU