Czech Yearbook Vol. 4 2013

MUTUAL RESPECT AND RESIDUAL TENSIONS BETWEEN THE SYSTEMS OF PROTECTION…

consider the latter as an

ultra vires

act if the Court of Justice confirmed them.

probably deemed that the ECJ disregarded the clear wording of Article 51(1) of the

Charter and that it exceeded its powers. Nevertheless, it is not excluded that the court

focused only on the general statement according to which the applicability of EU law

entails applicability of the Charter. Accordingly, it may not have taken account of the

fact that this condition is further limited by the requirement that the national bodies

are fulfilling an obligation imposed by EU law.

2. Subsidiary application of EU rules

It has been widely assumed that, in the scope of application of EU law, national

courts apply, in principle, the EU standard of protection of fundamental rights.

However, in

Åkerberg Fransson

, the Court of Justice held that “where a court of

a Member State is called upon to review whether fundamental rights are complied

with by a national provision or measure which, in a situation where action of the

Member States is not entirely determined by European Union law, implements the

latter for the purposes of Article 51(1) of the Charter, national authorities and courts

remain free to apply national standards of protection of fundamental rights…”

There are two main reasons for this approach, which are interconnected. Firstly,

even though national courts, in principle, faithfully apply the ECJ’s case-law, some

constitutional courts, and in particular the German, Polish and Czech ones, have

shown a certain mistrust towards it (see

infra

). The purpose of the above-mentioned

principle is to reassure these courts that the Court of Justice is aware of their role

in the field of fundamental rights and of the division of tasks and powers between

the EU and national courts. Secondly, the principle aims at counterbalancing the

above-mentioned principle of

Åkerberg Fransson

, according to which the scope of

application of the Charter coincides with the scope of application of Union law.

The application of the national standard of fundamental rights is subject to three

conditions.

First of all, the reviewed provision or measure of national law must be

applied in a situation where action of the Member State is not entirely determined

by EU law. Furthermore, the national standard must not compromise the level

of protection provided for by the Charter, as interpreted by the Court of Justice.

Accordingly, the national courts have to ensure at least the minimum standard

guaranteed by the Charter and the ECJ’s case-law. Finally, the primacy, unity and

effectiveness of EU law must not be thereby compromised. This last condition was

Judgement of 24 April 2013, 1 BvR 1215/07. In this judgement the German constitutional court

held: “As part of a cooperative relationship, [the decision in the case

Åkerberg Fransson

] must not be

read in a way that would view it as an apparent

ultra vires

act or as if it endangered the protection and

enforcement of the fundamental rights in the Member States in a way that questioned the identity of

the Basic Law’s constitutional order. The Senate acts on the assumption that the statements in the Court

of justice’s decision are based on the distinctive features of the law on value-added tax, and express no

general view.”

Paragraph 29.

ibid