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Fundamental Rights - The Charter of Fundamental Rights (Continued) -…

- - - - However, difficult to predict which situations will be deemed outside and inside
        
        Court deemed a number of pre Charter cases to be outside CJEU law and not caught by general principles of law.
        
        CJEU held that many cases fall outside the scope of EU law and therefore outside its jurisdiction to review state action for compatibility with the charter
        
        Such as national legislation adopted in the exercise of an exclusive national competence, which grants workers in certain circumstances more extensive protection than that provided under related EU employment law; - Case C–198/13 Julian Hernández [45].
        
        A Member State’s refusal to grant a residence permit to a family member of an EU national who does not satisfy the conditions of residence set by EU legislation - Case C–40/11 Iida [78]–[82].
        
        A state’s refusal of legal aid to an individual under provisions of national law even where the main proceedings for which legal aid was sought concerned EU law - Case C–265–13 Torralbo Marcos v Korota SA
        
        A Member State’s definition of what constitutes a ‘special non-contributory cash benefit’ for the purposes of EU rules on coordination of social security, since the EU rules do not purport to define the national scope of such benefits. - Case C–333/13 Dano
- - - - In Wachauf, a case concerning the regulation of milk production, the ECJ ruled that Member States are bound, when implementing EU law, by all the general principles and fundamental rights that bind the EU in its action. This application of fundamental rights can be explained by viewing Member States as agents of the EU when they implement or enforce EU measures, and thus are bound by the rights protected as part of EU law. This is a kind of judicial ‘human rights mainstreaming’ technique, in accordance with which EU legislation is strengthened by the imposition on Member States of an obligation to protect all the rights guaranteed by the Charter, and the general principles of EU law, when implementing such measures. - Case 5/88 Wachauf v Germany [1989] ECR 2609, [17]–[19]
      - The post-Charter case law has remained unaltered in this respect, and Member States must comply with Charter rights when implementing EU law.
        
        Anti-discrimination law - Case C–104/10 Kelly v NUI EU:C:2011:506; Case C–396/17 Leitner v Landespolizeidirektion Tirol EU:C:2019:375.
        
        Recognition and enforcement of judgments - Case C–112/13 A v B EU:C:2014:2195.
        
        The rights of long-term residence third-country nationals - Case C–571/10 Servet Kamberaj v IPES EU:C:2012:233, [79]–[80].
        
        Economic sanctions - Case C–314/13 Užsienio reikalų ministerija v Pevtiev EU:C:2014:1645, [24]–[26].
        
        child custody - Case C–400/10 PPU JMcB
        
        Free movement measures - Case C–300/11 ZZ v Secretary of State for the Home Department EU:C:2013:363.
        
        EU intellectual property law - Case C–277/10 Martin Luksan v Petrus van der Let EU:C:2012:65; Case C–469/17 Funke Medien NRW GmbH v Bundesrepublik Deutschland EU:C:2019:623.
        
        The Data Protection Directive - Case C–131/12 Google Spain
        
        Case law concerning implementation of the EU Arrest Warrant - Case C–396/11 Radu EU:C:2013:39; Case C–168/13 PPU Jeremy F EU:C:2013:358; Case C–399/11 Melloni (n 111); Case C–220/18 PPU ML EU:C:2018:589.
      - C & B have a list of pre charter case law and rights embodied in them on page 459
- - - - This ruling extended the Court’s jurisdiction to review Member State compliance with EU fundamental rights, in situations in which they arguably seek to escape the remit of EU law.
        
        This has been confirmed many times - See, eg, Case C–368/95 Vereinigte Familiapress Zeitungsverlags- und Vertriebs GmbH v Heinrich Bauer Verlag [1997] ECR I–3689; Case C–370/05 Festersen [2007] ECR I–1129; Case C–470/03 AGM-COS.MET Srl v Suomen valtio and Tarmo Lehtinen [2007] ECR I–2749, [72]–[73]; Case C–201/15 AGET Iraklis v Ypourgos Ergasias, Koinonikis Asfalisis kai Koinonikis Allilengyis EU:C:2016:972, [63].
        
        Application of ERT is exemplified by case law in the field of immigration, where there have been many rulings concerning the right to family life or due process where states have relied on public policy, or public interest, derogation to expel a migrant covered by EU law, or to refuse some other family benefit.
        
        The Court has emphasized the requirement on states to take adequate account of the impact of their proposed actions on the right to family life as well as other Charter rights. - See, eg, Cases C–482 and 493/01 Orfanopoulos and Oliveri v Land Baden-Württemberg [2004] ECR I–5257, [97]–[100]; Case C–459/99 MRAX v Belgium [2002] ECR I–6591, [53], [61], [62]; Case C–413/99 Baumbast and R v Home Secretary [2002] ECR I–7091, [72]–[73]; Case C–60/00 Carpenter v Home Secretary [2002] ECR I–6279; Case C–145/09 Land Baden-Württemberg v Tsakouridis [2010] ECR I–11979; Case C–300/11 ZZ v Secretary of State for the Home Department EU:C:2013:363.
        
        It is moreover clear from Schmidberger that the protection of human rights in itself constitutes a legitimate interest that will justify a restriction on EU free movement rules.
      - The case concerned the compatibility with EU law of exclusive rights granted by Greek legislation to ERT, which had the effect of restricting the free movement of services and establishment. The defendant argued that the effect of the legislation on its freedom of expression should also be taken into account by the Court.
- - - - ECJ chose not to read this provision of the Charter narrowly, but instead so as to confirm its prior approach. In Fransson the court drew support for this from Explanations to the Charter, which were given interpretive effect by Article 6(1) TEU and Article 52(7) of the Charter, and which use the wider term ‘binding on the Member States when they act within the scope of EU law’.
        
        The Member State action in Fransson amounted neither to an ‘implementation of EU law’ nor to a ‘derogation’ from EU law, which raised the issue as to whether it could still be covered by the Charter.
        
        Court insists that the Charter does not extend the scope of application of EU law but rather follows its scope of application
        
        Key sentence in judgement is that ‘the applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter’. The Court states that if EU law is genuinely applicable to the case, then the Charter will also be applicable, and the CJEU will review compliance with its provisions, but that still leaves questions about when exactly EU law is genuinely applicable to the facts of the case.
        
        In subsequent rulings CJEU in Cruciano Siragusa and Julian Hernández cases declared that the reason for requiring FR review of MS action falling within scope of EU law is the same as the original reason for requiring FR review of EU action in Handelsgesellschaft case: namely to ensure the supremacy of EU law.
        
        In the Court’s words, the scope of Article 51 is intended ‘to avoid a situation in which the level of protection of fundamental rights varies according to the national law involved in such a way as to undermine the unity, primacy and effectiveness of EU law. - Case C–206/13 Cruciano Siragusa v Regione Sicilia EU:C:2014:126, [32]; Case C–198/13 Julian Hernández EU:C:2014:2055, [47].
        
        In subsequent rulings as to whether national action constitutes ‘implementation’ within the meaning of Article 51 of the Charter the Court has stated that relevant factors include ‘whether that legislation is intended to implement a provision of EU law; the nature of that legislation and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; and also whether there are specific rules of EU law on the matter or capable of affecting it' - Cases C–206/13 Cruciano Siragusa (n 202) [25]; Case C–40/11 Iida EU:C:2012:691, [79]; Case C–87/12 Ymeraga EU:C:2013:291, [41].
        
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  - - - In the case of Siragusa he Court however found that the concept of ‘implementation’ in Article 51(1) Charter required a certain ‘degree of connection above and beyond the matters covered being closely related or one of those matters having an indirect impact on the other’. (at para 24)
        
        The court then outlined the factors to be taken into consideration to determine whether that connection was sufficient to trigger the application of the Charter
        
        In order to determine whether national legislation involves the implementation of EU law for the purposes of Article 51 of the Charter, some of the points to be determined are whether that legislation is intended to implement a provision of EU law; the nature of that legislation and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; and also whether there are specific rules of EU law on the matter or capable of affecting it.
        
        In particular, the Court has found that fundamental EU rights could not be applied in relation to national legislation because the provisions of EU law in the subject area concerned did not impose any obligation on Member States with regard to the situation at issue in the main proceedings.
        
        In subsequent case law the Court reaffirmed the Siragusa test: for instance in Hernández the Court excluded the relevance of the Charter in relation to a situation which partially fell within the scope of Union law. And, in Torralbo Marcos, the Court found that the Charter could not be applied to rules regulating access to justice, even when the claimant was trying to enforce a Directive.
        
        Case C-198/13 Hernández and others, EU:C:2014:2055; here the Court gave great weight to the fact that the legislation at issue was pursuing an aim other than that pursued by the relevant directive (see esp para 41).
        
        Case C-265/13 Torralbo Marcos, EU:C:2014:187; on the lack of applicability of the Charter see also Case C-638/16 PPU X and X, EU:C:2017:173.