CYIL Vol. 4, 2013

DAVID PETRLÍK CYIL 4 ȍ2013Ȏ The Court of Justice defined the scope of application of the Charter more clearly in the ruling of 26 February 2013 Åkerberg Fransson , in which it held that “the fundamental rights guaranteed by the Charter must … be complied with where national legislation falls within the scope of European Union law…The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter.” 6 The ECJ chose such an interpretation in regard of the Explanations relating to the Charter that referred to the ERT case-law 7 and stated that “the requirement to respect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of Union law”. 8 Reading only the cited statement of Åkerberg Fransson , it could be argued that the Court of Justice understood the concept of “implementing” in such a broad sense that it ignores this concept and it interprets the scope of application of the Charter beyond the wording of Article 51(1) of the Charter. However, the statement must be read in conjunction with the rest of the ruling, in which the ECJ analyses, in reality, whether the national authorities fulfilled an obligation imposed by EU law. 9 It follows that a national measure falls within the scope of application of EU law in the sense of Åkerberg Fransson , and therefore of the Charter, when the national authorities are fulfilling an obligation imposed by EU law by adopting this measure. Such an approach is not really different from the concept of “implementing” mentioned in Article 51(1) of the Charter. That said, it must be stressed that it is sufficient that the national authorities are bound to fulfil the said obligation. Hence, it is not necessary that the EU law has specified the ways in which Member States are to carry out such an obligation. 10 These principles must be moreover regarded in light of other ECJ’s rulings which make clear that a national measure can fall within the scope of the Charter when the Member State exercises discretionary power conferred on it by Union law 11 or when a national court decides, for instance, on claim damages for violation of EU law. 12 Also, it follows from Åkerberg Fransson that the Charter is applicable to a national legislation which is designed to penalise an infringement of EU rules. Reaction of national constitutional courts to this approach has not been favourable for the moment. On the contrary, in a ruling delivered only two months after Åkerberg Fransson , the German constitutional court felt the need to indicate, in a sort of obiter dictum , that it disapproved its principles. It even hinted that it could

6 Case C-617/10 Åkerberg Fransson [2013] ECR I-0000, paragraph 21. 7 Case C-260/89 ERT [1991] I-2925. 8 Explanations, cited above note 3.

9 See also Lenaerts K. and Gutiérrez-Fons J. A., “The place of the Charter in the EU constitutional edifice” in Peers S., Hervey T., Kenner J. and Ward A. (eds.), “The EU Charter of Fundamental Rights: A Commentary”, Oxford, Hart Publishing, forthcoming in autumn 2013, part I.A. 10 ibid. 11 Joint Cases C-411/10 and C-493/10 N.S. and M. E. [2011] ECR I-0000, paragraph 68. 12 Case C-279/09 DEB [2010] ECR I-13849.