CYIL 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. 13 It 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 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…” 14 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. 15 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 13 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.” 14 Paragraph 29. 15 ibid . are fulfilling an obligation imposed by EU law. 2. Subsidiary application of EU rules