The Charter in the jurisprudence of the Court of Justice

Of the European Union


Michel Puéchavy

Avocat honoraire du Barreau de Paris

Membre de l’Institut des droits de l’homme du Barreau de Paris

The Charter of Fundamental Rights of the European Union (hereinafter the Charter) was adopted in Nice on 7 December 2000. The Lisbon Treaty has incorporated the Charter to give binding force except for three countries: Poland, the United Kingdom and the Czech Republic ([1]). Two periods must be distinguished, that prior to the entry into force of the Treaty of Lisbon on 1 December 2009 and the one that follows.

According to Article 51, the provisions of this Charter are addressed to the Member States only when they are implementing Union law and they do not extend in any way the competences of the Union. Given this fundamental limitation, many decisions as preliminary rulings find the jurisdiction of the Court of Justice of the European Union (hereinafter the Court) is not established since the implementation of EU law is absent ([2]).

Moreover, the Court may refuse to rule if it is quite obvious that the interpretation sought of EU law bears no relation to the actual facts of the main action, where the problem is hypothetical or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ([3]).

I. The situation before the entry into force of the Lisbon Treaty

If the jurisprudence of the European Court of Human Rights has consistently influenced the Court in Luxembourg ([4]), however, the Charter appeared timidly and gradually in the latter court.

At that time and according a settled case law, “fundamental rights form an integral part of the general principles of law which the Court ensures” ([5]). This concept is based on the Treaty on the European Union, which states that: “the Union shall respect fundamental rights as general principles of Community law” ([6]).

Many judgments recall this requirement ([7]). However, it appears in this jurisprudence that the judge abandons the technique based on the general principles of Community law to make a direct application of the law of the European Convention on Human Rights ([8]) but does not consider it is necessary to refer to the Charter ([9]) that simply reaffirms the existence of rights already guaranteed by the Community legal order and which is based on the rights guaranteed by the European Convention as interpreted by the Strasbourg Court. It was acquired for a long time that the European Convention on Human Rights was of “special significance” but several rulings issued in 2003 and 2004 showed that it was applied immediately and that this tended to accentuate ([10]).

In 2004, in a case concerning an agreement between undertakings, the Court of First Instance of the European Union made its judgment on actual community sources to reply to the applicants’ arguments alleging that the Commission had failed in its obligation to act within a reasonable time. It has invoked Article 41 § 1 of the Charter, however, with a motivation that has been criticized ([11]). This slight appearance of the Charter in the Community case-law was confirmed the following year, but indirectly, by the Court in a case concerning the right to property. In a dispute between the Italian autonomous region Friuli-Venezia Giulia and the Ministry of Agricultural Policy about the implementation of an agreement between Hungary and the European Union, the Italian court asked the Court, as a question referred for a preliminary ruling, if the agreement fell within the scope of property rights as guaranteed by the European Convention on Human Rights, and if its implementation complied with the provisions of the latter and of the Charter of Fundamental Rights. The Court took up the question, citing the Charter, and found that the lack of compensation did not necessarily entail an infringement of the right to property contrary to the requirements of the European Convention but it did not quote the Charter in its argument in response ([12]).

It was not until 2006 that the Charter enters through the front door in the case European Parliament v. Council of the European Union regarding the Directive 2003/86/EC of 22 September 2003 on the right to family reunification. The Charter was invoked by both parties and the Court said: “While the Charter is not a legally binding instrument, the Community legislature did, however, acknowledge its importance by stating, in the second recital in the preamble, that the Directive observes the principles which are recognized not only by Article 8 of the ECHR, but also in the Charter. Furthermore, the principal aim of the Charter, as is apparent from its preamble, is to reaffirm “rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the ECHR, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court… and of the European Court of Human Rights”. However, this statement must be moderated as much of the reasoning of the Court is based on the jurisprudence of the European Court ([13]).

The consecration finally came in 2007 with the Unibet case. A British company of bets online had brought several actions before Swedish courts as a result of criminal and administrative measures taken against the media which had agreed to provide advertising space to promote its services in Sweden. These measures were taken under the National Lottery Act.

The Court made ​​a spontaneous reference to the Charter (although after... that of the European Convention) saying: “it is to be noted at the outset that, according to settled case-law, the principle of effective judicial protection is a general principle of Community law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention ... and which has also been reaffirmed by Article 47 of the Charter of Fundamental Rights of the European Union, proclaimed on 7 December 2000 in Nice (O.J., C 364, p. 1)” ([14]). As one author notes “the statement is independent of any legislative reference and seems all the more significant because it was not necessary, as the provisions of the Charter are not part of primary law and do not lend themselves to specific developments” ([15]).

The Masdar case, in 2008, was an opportunity for the Grand Chamber of the Court to invoke the Charter without any mention of the European Convention on Human Rights. It was a case about remedies available to a subcontractor of a contractor of the Commission in the event of payment default in the framework of the implementation of Community assistance programmes ([16]).

A preliminary ruling concerned the interpretation of Council Directive, 2004/83/EC of 29 April 2004, on minimum standards for the conditions to be met by third-country nationals or stateless persons to the status of refugee. The Grand Chamber of the Court followed the Advocate General who proposed an autonomous interpretation by reference to Article 52 § 3 in fine of the Charter which provides: “In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection”. The Elgafaji judgment (Iraqi refugees in the Netherlands), with an autonomous interpretation of the EU Directive by the Court, provides a more protective status to vulnerable refugees in a Member State and who are placed in situations of threats to their fundamental rights other than those provided by the Strasbourg Court ([17]).

II. The situation after the entry into force of the Lisbon Treaty

If the proclamation of the Charter in 2000 had ultimately little influence in the jurisprudence of the Court, however, the entry into force of the Lisbon Treaty marks a turning point. Several cases, in 2010, already place the Charter as the main source of human rights but most of the time, by aligning on the standard of the European Convention on Human Rights. Moreover, in case of conflict between the provisions of national law of a Member State and the rights guaranteed by the Charter, it is settled law, that the national court must apply, within its jurisdiction, the provisions of Union law. It also has an obligation to ensure the full effect of these rights by ruling out, if necessary on its own authority, any contrary provision of national law, even if adopted subsequently, without having to request or await the prior setting aside of such provision by legislative or other constitutional means ([18]).

2.1. Asylum and immigration law

Two judgments, Abdulla and others, 2nd March 2010, and Bolbol, 17 June 2010, were relating to the interpretation of the Directive 2004/83/EC. But unlike the Elgafavi judgment, the Court refers directly, as a primary source, to the Charter and Article 18 recognizing the right of asylum (paragraph 7, first case) and states that “the provisions of the Directive must for that reason be interpreted ​​in the light of its general scheme and purpose, while respecting the Geneva Convention ... Those provisions must also ... be interpreted in a manner which respects the fundamental rights and the principles recognised in particular by the Charter of Fundamental Rights of the European Union” (paragraph 38, second case) ([19]).

The NS and ME judgment joins and extends the judgment of the European Court of 21 January 2011, M.S.S. v. Greece and Belgium ([20]). This judgment was related to asylum seekers to be returned to Greece. The Court of Luxembourg dismissed the accelerated procedure to allow the Court of Strasbourg to judge in first the question of the application of the Regulation No. 343/2003/EC on the determination of the Member State responsible for examining an asylum application lodged within the Union by a third-country national. The Court held that “Article 4 of the Charter must be interpreted as meaning that the Member State, including the national courts, may not transfer an asylum seeker to the “Member State responsible” within the meaning of Regulation No. 343/2003, where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision” ([21]).

The Court also held that the Directive 2003/09/EC of the Council of 27 January 2003 laying down minimum standards for the reception of asylum seekers in the Member States should be applied to all asylum seekers including those whose applications do not seem to meet their responsibility under Regulation “Dublin II”.

The Judgment is grounded in particular on Article 1 of the Charter, enshrining human dignity ([22]).

As part of the procedure for examining an asylum application, it is for national courts to ensure respect for the fundamental rights of the applicant and, in particular, to be heard. The Court cites only Articles 41 and 47 of the Charter and the Geneva Convention of 1951 without relying on the relevant provisions of the European Convention on Human Rights ([23]). Where the extension of a detention measure against an illegally staying third-country national has been decided in an administrative procedure in breach of the right to be heard, the national court responsible for assessing the lawfulness of that extension decision may order the lifting of the detention measure only if it considers that the infringement at issue actually deprived the party relying thereon of the possibility of arguing his defence better, to the extent that the outcome of that procedure could have been different ([24]).

In accordance with Articles 18, 41, 47 and 53 of the Charter, each Member State may examine an application for asylum submitted to it by a national of a third-party State even if such examination is not its responsibility under the criteria laid down by Regulation No 343/2003/EC ([25]).

Taking into primary consideration the best interests of the child in accordance with Article 24 § 2 in conjunction with Article 51 § 1 of the Charter, if an unaccompanied minor, with no family member legally staying on the territory of a Member State, has applied for asylum in several Member States, the Member State responsible is the one in which the minor is ([26]).

2.2. Right to respect for private and family life

The Court recalled that the family reunification policies of the Member States should not undermine the essential requirements of the Directive 2003/86/EC. Article 4(1) of the Directive imposes “precise positive obligations” to ensure the effectiveness of the right to respect for family life under the European Convention on Human Rights and the Charter of Fundamental Rights ([27]).

A dispute between a Colombian national, Mr. Ruiz Zambrano, and the National Employment Office in Belgium which refused to grant him the benefit of unemployment, allowed the Court based on Articles 21, 24 and 34 of the Charter, to declare that “Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen” ([28]).

Faced with an unlawful removal of a child, the Court considers that “one of the fundamental rights of the child is the right, set out in Article 24 § 3 of the Charter of Fundamental Rights ... to maintain on a regular basis a personal relationship and direct contact with both parents, respect for that right undeniably merging into the best interests of any child” ([29]).

The case J. McB. shows the relationship between the Charter and the European Convention on Human Rights when are at stake identical provisions in the two texts. It was the interpretation of Regulation (EC) No. 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility ([30]). Based on Article 52 § 3 of the Charter, the judgment held the meaning and scope guaranteed by the European Convention. The solution adopted by the Court has been the subject of criticism: “mechanical transposition of the Strasbourg jurisprudence, rendering inoperative any dynamic interpretation ... but it's about respect for the best interests of the child that mimesis is the most objectionable. Indeed, the European Convention does not guaranteed this right. The Court would have been able to find the use of its freedom in the interpretation of Article 24 of the Charter” ([31]).

Finally, regarding the right to respect for private life, the Court had to rule on the validity of Community regulations which, to ensure transparency in the use of funds of the common agricultural policy, require the publication of personal data. This case also shows the dominance of the Charter by aligning the standards of the European Convention on Human Rights. While the referring court relied on Article 8 of the Convention, the Court of Justice relied on the Charter: “the European Union recognizes the rights, freedoms and principles set out in the Charter … ‘which shall have the same value as the Treaties’ in ... those circumstances, the validity of …Regulation ... No. 1290/2005 and of Regulation No. 259/2008 must be assessed in the light of the provisions of the Charter”. For the Court, the right to protection of personal data “is closely connected with the right to respect of private life expressed in Article 7 of the Charter”. Then, the Court said: “according to Article 52 § 3 of the Charter, in so far as it contains rights which correspond to rights guaranteed by the Convention, the meaning and scope of those rights are to be the same as those laid down by the Convention. Article 53 of the Charter further states that nothing in the Charter is to be interpreted as restricting or adversely affecting the rights recognised inter alia by the Convention”. The Court invokes the jurisprudence of the Strasbourg Court to justify its own motivation ([32]).

The Court “considers, first, that respect of the right to privacy with respect to personal data, recognized by Articles 7 and 8 of the Charter, refers, according to the jurisprudence of the European Court of Human Rights, to “any information relating to an identified or identifiable natural person”, and, secondly, that the limitations which may legitimately be the object “correspond to those allowed under Article 8” of the European Convention on Human Rights” ([33]).

This approach by the Court is confirmed in a case where Spanish law had added a condition that does not exist in the Directive 95/46, that is to say that the personal data are contained in sources available to the public without the consent of the person concerned. Relying on Articles 7 and 8 of the Charter, the Court stated that Article 7 f) of the Directive is sufficiently precise and unconditional, and have a direct effect, so it can be invoked before the domestic courts to oppose the national law ([34]).

A fair balance between the protection of personal data and the intellectual property of the copyright holders was at issue in the case Scarlet Extended SA v. Société belge des auteurs, compositeurs et éditeurs (SABAM). The latter asked an Internet access provider to set up a system for filtering electronic communications in order to prevent file sharing, which infringes intellectual property. Although it is protected by Article 17 § 2 of the Charter, there is no indication whatsoever of that provision or case law of the Court that such a right is intangible and its protection should be assured in an absolute way. But the filtering system is likely to infringe the fundamental rights of users of this Internet service provider, namely their right to protection of personal data and their freedom to receive and impart information these rights being protected by Articles 8 and 11 of the Charter ([35]).