The scope of application of EU fundamental rights on member states’ action: in search of certainty in EU adjudication

While one may understand that respect for EU fundamental rights is a condition of the legality of EU acts, the (legal) situation is not as straightforward regarding acts adopted by national authorities. Most EU lawyers would agree with the contention that it is not always clear when and whether national authorities are acting within the scope of application of EU law and many, probably, still wonder about the sense of this ambiguous concept elaborated by the Court of Justice of the European Union (CJEU). The aim of this essay is to clarify the situations where EU fundamental rights bind national authorities following the entry into force of the Treaty of Lisbon and the legally binding status acquired by the Charter. The potential federal effect of the Charter will be assessed as it is sometimes alleged that the new legally binding status of the Charter may eventually convince the CJEU to enforce common standards applicable right across the EU regardless of whether national measures fall within or outside the scope of application of EU law. Another important issue is the potential effect of the Charter on the application of EU fundamental rights in the context of legal proceedings between private parties. Accordingly, this article will also explore the potentiality for an increased “horizontal effect” of the EU fundamental rights set out in the Charter, that is, whether they may be more easily relied upon by a private party against another private party. Finally, a classification or mapping of the various situations in which private parties may rely upon EU fundamental rights to challenge the legality of national measures will be offered. This framework for analysis of the CJEU case law is based on a broad reading of the ‘Wachauf’ and ‘ERT’ lines of cases. Such a novel classification appears in our view necessary in light of the latest judicial developments and the need to bring more certainty as to the scope of application of EU fundamental rights to Member States’ actions.

Eric Stein Working Paper no. 1/2011