CYIL Vol. 4, 2013

MUTUAL RESPECT AND RESIDUAL TENSIONS BETWEEN THE SYSTEMS OF PROTECTION… as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, continue to exist in the Union legal order as unwritten general principles of Union law. A legally binding framework for a harmonious application of the EU, ECHR and national systems being created, it is now for the courts of these systems to ensure it in practice. This study will focus, accordingly, on how the approach of these courts has recently changed in the relationship between the EU system and the national systems of fundamental rights (II) and in the relationship between the former and the ECHR system (III). II. EU system and the national systems of protection of fundamental rights Four major developments have recently marked the relationship between the EU system and the national systems of protection of fundamental rights. First of all, the Court of Justice of the European Union 4 seems to create a certain tension between these systems by defining the scope of application of the Charter widely (1). Conversely, it demonstrated respect towards these systems by a formal recognition of a subsidiary approach in the field of fundamental rights (2). Moreover, it continued to take account of the constitutional traditions common to the Member States (3). As for the national courts, they have respected, in principle, the primacy of the EU system of protection of fundamental rights. Nevertheless, some constitutional courts continued to maintain a certain tension with this system as they have kept the right to review, in extreme cases, the respect of the national standard of fundamental rights by EU law (4). 1. Wide scope of application of the Charter The scope of application of EU fundamental rights has always been a sensitive issue. Hence, it is not astonishing that the interpretation of Article 51(1) of the Charter can lead to tensions between the EU system and the national systems. Pursuant to this article, the Charter applies without restriction to the Union institutions, but the provisions thereof are addressed to the Member States “only when they are implementing European Union law”. In the light of this wording, the scope of the Charter is clear in two situations. First of all, there is no doubt that it is applicable to national measures that specifically implement a Union act into the national legal order, in particular a Directive. Furthermore, the Court of Justice has made clear that the Charter does not apply when the situation in question has no link to EU law. Accordingly, it declares as inadmissible references for a preliminary ruling that seek the interpretation of EU fundamental rights in such circumstances. 5 The issue is less clear when a national measure is in the scope of application of EU law but it does not implement a specific provision of EU secondary law. 4 “Court of Justice” or “ECJ”. 5 See, for instance, Order of 23 May 2011 in the Joint Cases C-267/10 and C-268/10 Rossius and Collard and Order of 22 September 2011 in Case C-314/10 Pagnoul .