The Implementation of European Union Law by Member States Under Article 51(1) of the Charter of Fundamental Rights

TLDR: In this paper, it is argued that this minimalist approach simply begs the question of whether or not EU law applies in any specific case, a gateway question that the Court of Justice has been historically ill-equipped to answer.

Abstract: The precise scope of application of the Charter of Fundamental Rights of the European Union is, in many respects, still uncharted. In particular, it remains largely unclear to which national measures the Charter applies. The relevant instruction contained in art. 51(1), referring to the elusive concept of the “implementation of EU law,” has so far resisted all hermeneutic efforts. As a result, it is difficult to predict whether or not a domestic measure that has legal effects touching upon the sphere of matters regulated by EU law, but that was not adopted to implement EU law directly, will be bound by the Charter. This article traces this state of legal uncertainty to the ambiguous case law of the Court of Justice, which has hesitantly confirmed case law on the application of fundamental rights to national measures as general principles of EU law, and, lately, has sought refuge in the equivalence between the application of the Charter and the application of EU law at large (Fransson, Texdata). It is argued that this minimalist approach simply begs the question of whether or not EU law applies in any specific case, a gateway question that the Court of Justice has been historically ill-equipped to answer. This congenital difficulty has carried over in the interpretation of art. 51(1) of the Charter, and has, so far, left national judges without guidance, an undesirable result for the consistent application of fundamental rights across the Union and its Member States. The analysis is updated as of the Siragusa order of March 2014, which seems to call into question the Fransson precedent, and proposes a new composite test, inspired by several cases of the 1990s.