Recent developments in the application of the Charter of Fundamental Rights of the European Union

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Honourable Thomas von Danwitz, Judge in the Court of Justice of the European Union, held a lecture about the application of Charter of Fundamental Rights. In a nutshell, Mr. von Danwitz discussed the following.

The function of the Charter is not to bring about harmonization of the systems of protection of fundamental rights of the Member States. This is a fundamental difference between the Charter and the Convention. The Charter is the exclusive tool of EU law ensuring the conformity of primary and secondary EU law and its application with fundamental rights.

As far as the applicability ratione temporis is concerned, the Court has examined the validity of those legislative acts in light of the Charter, that entered into force before December 1st, 2009 and are still in effect after that date, thereby implicitly assuming the applicability of the Charter to such acts. This rationale also should apply to administrative acts that have permanent effect, even if they have been issued prior to that date. To the contrary, in principle, the applicability of the Charter should be denied in situations that have become definitive in law before the Charter’s entry into force.

When it comes to a detailed interpretation of Article 51 (1) as such, it seems that, in light of Article 52 (7) of the Charter, the most conclusive support for the interpretation of Article 51 can and should be drawn from the explanatory notes on that provision.

Its substantive meaning results from the interplay of the three lines of jurisprudence cited therein, namely Wachauf, ERT and Annibaldi.

Concerning the distinction between "rights" and "principles" which are explicitly introduced by the preamble and the second sentence of Article 51 (1) of the Charter, the wording of the Charter does not characterize individual articles as being constitutive of rights, principles or both. It seems clear that they do not confer a subjective right that can be invoked by individuals. The fact that the provisions mentioned above do not confer subjective rights which can be invoked by individuals implies that they only have limited justiciability.

In his final conclusions Mr. von Danwitz highlighted the role of the European Court of Justice in laying the conceptual foundations for a uniform application of fundamental rights in the European Union.