Updated: Jan 8, 2022
Article 51: Scope
1. The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers.
2. This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties
TABLE OF CONTENTS
Over a decade the EU Charter of Fundamental Rights evolved from a mere political declaration into a powerful instrument of primary law. With the glorification of its new legal status followed severe critique. In this paper we will try to legally analyze one of the Charter’s politically contested and academically debated subjects: the scope of its application regarding the acts of Member States.
There seems to be a consensus between scholars that art. 51 CFR not only applies to Member States while implementing EU law but also when acting within the scope of EU law. Less agreement can be found regarding the question “Should the CFR apply to all actions by Member States?”.
This paper is based on a source research consulting legal doctrine, legislation and case law. The paper tries to outline the main arguments pro and contra a creative reinterpretation or extension of art. 51 CFR’s scope, but leaves the research question open, hoping to let the arguments speak for themselves shaping the reader’s own critical opinion on the subject. In order to understand the problematic concerning the Charter’s scope it is necessary to look at its historical context (I). Followed by a short exposé on the scope of EU Fundamental Rights before the existence of the Charter (II). 
On a further note we will situate the true problematic regarding the interpretation of art. 51 CFR (III) taking a deep interest in the CJEU’s hesitant case law regarding the matter. We will start by examining a strict interpretation of art. 51 CFR (III.1), followed by the extensive interpretation (III.2), a liberal one (III.3) finishing with a creative interpretation that suggests an unlimited scope for the article (III.4).
We will proceed by exploring the main contra- (IV) and pro-arguments (V) regarding the possible extension of the Charter’s scope. In order to have a realistic view on the subject we will conclude with an analysis of the possibility of this extension or a new form of interpretation for art. 51 CFR (VI).
I SHORT HISTORY OF FUNDAMENTAL RIGHTS IN THE EU
The original Treaties made no reference to FR leading to a serious gap in the protection of individuals. Member State’s Courts feared that national constitutional guarantees might become inapplicable to Union rules in light of the principles of supremacy and direct effect. As a response the CJEU gradually developed European FR. Increasingly expanding the protection of these rights by declaring them general principles of Community law, common constitutional traditions among Member States, as well as enshrined in International treaties like the ECHR including the ECtHR jurisprudence.
The CFR saw the light after a failed accession of the Union to the ECHR combined with the objective to render EU FR more visible. This “EU Bill of Rights” took the form of a political statement: “Solemn proclaimed” by the institutions. Finally gaining binding force in 2009 with a cross-reference in art. 6(1) TEU.
II SCOPE OF APPLICATION OF EU FUNDAMENTAL RIGHTS BEFORE THE CHARTER
Inspired by the need to impose similar limits upon the EU institutions as those applicable to national authorities, EU fundamental rights were primarily applied to the acts of these institutions. Gradually the CJEU took an interest in the acts by Member States distinguishing two situations in which EU FR would apply to national authorities:
First of all, when a Member State was implementing EU law. Claiming that the mere existence of this secondary legislation entails that it couldn’t be interpreted in a way that would violate EU FR. (Sometimes) Leading to complex legal situations where the CJEU recognized the possibility to invoke EU FR against a private party in light of the implementation of a directive, while paradoxically the directive itself could not be invoked against a private party.
Secondly, when a Member State was acting within the field of EU law by limiting one of the free movement rights. The CJEU stated that if an individual brings himself within the scope of the Treaties by exercising his free movement rights, then the Member State can only limit those rights to the extent authorized under Union law in consistency with EU FR. However, some Member States emphasize that this situation could be seen as problematic in case of a wide application of EU FR, potentially bringing any area of domestic law under EU scrutiny potentially causing a competence creep (cf. infra IV).
III THE INTERPRETATION OF ART. 51 CFR
Drafted in light of the Union’s obligation to respect Fundamental Rights, Article 51 CFR determines the scope of the Charter. The first lid provides that, in compliance with the principle of subsidiarity, the Charter applies primarily to the acts of the institutions and bodies of the Union. Regarding acts of Member States the article states that the CFR applies only to acts of Members States when they are implementing EU law. Furthermore, art. 51(2) CFR stipulates that the Charter doesn’t modify the powers and competences of the Union. In combination with art. 6(1) TEU, this seem to be an illustration of the liberal constitutional concept that states that FR norms don’t attribute powers but just limit their exercise.
A literal reading of the article would entail that only cases in which FR arise when Member States give effect to the requirements of EU rules in national law, would fall under the scope of the Charter. This literal interpretation has been the subject of criticism given that it would deprive citizens of all effective means to enforce FR against insubordinate Member States.  Failing EU-citizens’ expectations of being protected by the EU, also against acts of their own State. Therefore, it is generally accepted that art. 51 CFR simply reaffirmed the already existing scope of EU FR, meaning that the Charter applies to all acts of Member States within the scope of EU law. Possibly including national measures derogating from Union rules.
However, uncertainty continues to exist regarding the scope’s correct interpretation with regard to national measures. To give a clear overview of this debate we will analyze the different interpretation techniques starting with the literal interpretation of art. 51 CFR (III.1) followed by an extensive interpretation applied in the Fransson case (III.2), moving on to the proposition of some scholars to apply a more liberal interpretation to art. 51 CFR (III.3) or finally even an unlimited scope (III.4).
I.1 RESTRICTIVE INTERPRETATION OF ART. 51 CFFR
A literal reading of art. 51 CFR limits the Charter’s scope with regard to acts of Member States to national measures “implementing Union law”. In this sense the scope only covers the cases where Member States transpose directives, implement regulations or implement Union law trough sanctions The preparation of the Charter confirms the reluctance towards a wide scope of application. Nonetheless, it might be seen as paradoxical to have a general Fundamental Rights Charter with such a limited scope possibly contradicting the true philosophy of the Charter. Even more art. 53 CFR stipulates that the Charter can’t lead to a diminished level of Fundamental Rights protection.
This interpretation requires actual EU law to exist in an area in order for the Charter to be applicable. Accepting this interpretation entails that the level of FR protection would be lower than it was before the existence of the Charter since this approach seems more restrictive than the former case law regarding EU FR as general principles.
I.2 EXTENSIVE INTERPRETATION OF ART. 51 CFR: FRANSSON CASE
It seems that the former literal interpretation no longer reflects the actual legal situation since the Akerberg Fransson case, where the CJEU applied an extensive interpretation basically stating that the Charter’s FR must be complied with where national law falls within the scope of Union law. The view that any material link or potential law can trigger the application of the Charter was also shared by most legal scholars. This view entails that if the EU has competence in an area of law, then EU FR should apply, even if this competence has not yet been exercised.
The national proceedings at issue concerned tax fraud, including a VAT fraud element. The link between FR and tax law followed from the Charters ne bis in idem provision which also covers domestic bans on this principle. Mr. Fransson was facing a double jeopardy problem since he risked different (types of) proceedings for the same crime, VAT-fraud. However, article 50 CFR only covers criminal proceedings.
The CJEU confirms that without a link to the scope of a material EU competence, the CFR can’t apply. However, it remarkably acknowledged in this case that the required connection was met, despite the very weak link: arguing that a loss of revenue arising from the failed collection of VAT also entailed a loss of revenue for the EU budget. However, it is necessary to underline that this expansive interpretation could be due to the fact that the infringement of VAT is closely related to the collection of VAT, which falls under the scope of EU law. Furthermore VAT collection is of a very strategic importance for the EU budget which could have influenced the CJEU’s approach.
On the other hand, it is important to underline that since then the Court seems to apply a more restrictive interpretation although the case law isn’t very consistent. This divergent approach seems to be confirmed in a recent case IN and IM/Belgium concerning provisions on income tax in the context of VAT.
In conclusion it seems that the application of the CFR is still viewed as collateral and its rights as not free-standing rights. This approach seems to reflect the CJEU’s current case law and the dominant opinion in literature, although some argue for the necessity on further clarification of the scope to ease the Charters application by national judges.
I.2.1 WITHIN THE SCOPE OF EU LAW
National measures falling within the scope of EU law can consist of measures of implementation, measures relying on a Union law justification ground or other measures within the scope of EU law.
Measures of implementation can be provisions that implement primary law, regulations, directives or Union law through sanctions. Unlike more far-reaching national measures in the case of minimum Union harmonization the CJEU has ruled in the N.S. case that although Member States’ possible discretion, national measures that implement EU law fall under the scope of the Charter.
Measures relying on a justification ground of EU law can also be national measures where a derogation from Union law is permitted by EU law. However, this category of measures has only been applied regarding provisions on free movement as the ERT-case demonstrates.
Measures within the scope of EU law contain the residual cases like the Kücükdeveci case. The plaintiff was able to rely on the Charter as a general principle of Union law since the CJEU rules that even an unimplemented directive has the effect of bringing national measures covering the same matters, from its deadline of transposition, under the scope of Union law.
Whether a national measure falls within the scope of Union law depends on the discretion of the CJEU, possibly leading to an increasing level of legal uncertainty for EU-citizens. The Court has adopted various approaches seeming to be more willingly to apply the Charter in cases where the connection with the internal market (or another strong EU-interest) is stronger and being more reluctant when that connection is weaker, even if there exists a clear link with Union law. The inconsistent case law demonstrates the aim of the CJEU to find a balance between National sovereignty and safeguarding the Charter’s rights in the Member States.
I.3 LIBERAL INTERPRETATION OF ART. 51 CFR?
A number of scholars suggest the need for a more liberal interpretation, recommending that the CFR should also apply outside the scope of EU law. Legally justifying the need for this interpretation by arguing that EU-citizenship should include a minimum guarantee of FR in the cases of a systemic failure of FR protection by a Member State. Recent events in Hungary and Poland could support this “reverse Solange” approach. The doctrine applies in the sense that beyond the scope of art. 51(1) CFR any Member State remains autonomous in its FR protection, but only as long as it respects the essence of FR enshrined in art. 2 TEU. All national courts are competent to apply this presumption. This doctrine presupposes the judicial applicability of art. 2 TEU’s values. Furthermore, it seems uncontested that the values of art. 2 TEU apply to any act by any Member State, irrespective of any link to EU law. On the other hand, this suggestion is still heavily critiqued for possibly violating the principle of mutual respect rather than focusing on the fundamental rights protection itself, since it would still be subject to the mercy of politicians regarding the fact that under current procedures the identification of a systemic failure depends on the decision of a political body.
I.4 CREATIVE REINTERPRETATION: UNLIMITED SCOPE FOR ART. 51 CFR?
Others argue that even in the absence of a systemic failure of fundamental rights protection at the domestic level, the CFR should be fully applicable in domestic cases before domestic courts, benefiting all EU-citizens equally while turning the EU into a fully-fledged value community. This could be accomplished through a semi-centralized judicial review: founded on the supremacy of the CFR guaranteeing its unified application through the preliminary reference procedure, while decentralizing it in the sense that local courts court also exercise it. On the other hand, it may generate a conflict between the Member State’s government and its national courts since the CJEU will only be involved indirectly through the preliminary reference procedure, making it a bit different from most propositions concerning fundamental rights problems in Member States.
Two major doctrinal arguments can be invoked to justify this creative interpretation: the first one is based on the concept of Union citizenship and the second one on the use of articles 2 and 7 TEU as triggers for FR. We will address these justifications in detail under Chapter IV.2.
IV TO EXTEND OR NOT TO EXTEND?
IV. 1 IT’S A NO FOR ME: MAIN CONTRA-EXTENSION ARGUMENTS
As mentioned, there is no consensus surrounding a possible extension of the scope of art. 51 CFR. This Chapter aims to illuminate the main arguments countered against this extension, whether it would be through a creative reinterpretation or through a full amendment of the Charter itself.
A. COMPETENCE CREEP
An obvious but important objection against an extension of the scope is the problem of competence creep. The phenomenon of competence creep is used to describe a situation where somehow the EU manages to legislate and/or act in areas where it has not been conferred a specific competence. According to articles 6 TEU and 51(2) CFR, the Charter can’t expand the competences of the EU.The application of EU FR to national law could be seen as constitutionally problematic, especially in the fields where the Union is without harmonizing competence, considering that Member State’s reserved competences could be reviewed in light of these EU FR rights if a broad interpretation of the Charter’s is acknowledged.
This concern is certainly not hypothetical since certain judgments of the CJEU have already placed a remarkable range of national activity under the scope of EU law. For example it follows from the Carpenter case that the deportation of a third country national has to comply with FR because of its incidental effect on occasional cross-frontier service provisions by the husband of the deportee. Or the Derwin case where a ban on fox-hunting in England (which looks like a purely domestic matter) was reviewed in light of the general principles of EU law because of its possible impact on the import of hunting horses from Ireland and on the ambitions of Belgians to hunt in England. Yet, this concern could possibly be countered (cf. infra).
B. NATIONAL SOVEREIGNTY
The objection in name of national sovereignty is closely related to the former problematic, Member States could perceive an extension of the CFR as a threat for their national constitutional identity claiming it would cause a huge loss of national autonomy and sovereignty, insisting on the fact that this extension could potentially marginalize national fundamental rights protection and perhaps even national constitutions.
It could be argued that in purely domestic cases national authorities are best placed to determine the accurate FR protection. Meaning that Member States themselves should, in the context of their own constitutional order and the international obligations which they have entered into, review acts of their public authorities. Moreover, arguments are made that the level of protection to be afforded to FR should reflect the choices of society which has taken into account a proper balance between the interests of individuals and those of the community to which they belong, claiming that universal EU FR could risk sacrificing national and historical and cultural traditions that characterize the pluralistic nature of Europe.
At present it is argued that individuals can also remedy cases where they fall outside the scope of the CFR by relying on these national constitutional safeguards. Nonetheless it should be said that these national measures don’t always guarantee the same rights (or protection) as provided in the Charter possibly refuting it as a fully-fledged alternative.
The creative interpretation could face an objection regarding its efficiency. Firstly, this interpretation would leave the FR protection to Member States courts. It can be argued that these local courts might lack the necessary practice, or even be corrupt. The current situation in Poland possibly underlines the importance of this criticism. Secondly, legitimate concerns are expressed regarding the capability of the CJEU to manage the increased caseload that is most likely to follow from an extension of the CFR’s scope.
IV.2 YES, WE CAN! MAIN PRO-EXTENSION ARGUMENTS
This Chapter aims to bring a clear overview of the most important pro-extension arguments combined with possible counterarguments regarding the competence creep and efficiency problematic. However, it leaves the determination of the weight of the arguments up to the reader.
A. COMPETENCE CREEP COUNTERED?
Regarding the objection of competence creep: A combined interpretation of articles 6 and 51(2) CFR in light of article 2 TEU could counter this criticism, since it would imply that the restriction regarding the expansion of EU competences can’t limit the enforcement of the CFR by the national courts. In addition, the principle of subsidiarity doesn’t apply to judicial authority but only to the legislative competence. Therefore, there would be no problem for national courts to apply the CFR in purely domestic matters.
B. EFFICIENCY CONCERNS COUNTERED?
The efficiency critique seems legitimate concerning the fear of corrupted or incapable local courts. However, this critique comes back to the preliminary reference procedure, generally considered as one of the key success of the CJEU. Nevertheless, it is necessary to acknowledge the possible flaws of this procedure, especially when Member States might discourage local courts to use it. On the other hand, the second concern seems highly questionable: rejecting a broader fundamental right protection for motives of caseload for the CJEU seems at least legally irrelevant.
C. EU AS A COMMUNITY OF FUNDAMENTAL RIGHTS
Some argue that the extension of the scope of art. 51 CFR is necessary for the Union to become a community of fundamental rights where nobody would be left behind.It could be argued that the Charter will not be able to fulfill its task completely unless it fully contributes to and serves as a basis for the harmonization of common European standards of fundamental rights protection.Arguing that the liberal interpretation, including the idea of exclusion of a Member State because of fundamental rights violation is incompatible with the idea of a European moral community since the EU would sort of save itself while leaving behind the citizens of this excluded country to suffer. This would truly be the case in countries where constitutional courts are tainted with party apparatchiks or where even ordinary courts suffer the influence of party political lines becoming unable to find rescue in the preliminary reference procedure, which is not an unthinkable risk given the recent situation in some Member States. An extension of the CFR’s scope would transform it into a real Charter for all European citizens which would guarantee their freedoms even when domestic forums fail.
D. POLITICAL SANCTIONS: PANDORA’S BOX?
A liberal interpretation of the Charter’s scope would allow to better remedy situations in which a systematic failure of FR protections in a Member State is established, yet formal political sanctions against a State in order to force it to change its domestic human rights policies are generally inefficient. Several EU governments have for example infringed their obligation to respect the rule of law, yet the EU has taken little action to sanction those violation. This could be explained in light of the combination of three of the EU’s institutional logics: Firstly, the partisanship logic that informs the European Parliament which protects errant States. Secondly, the Commission prefers to challenge its sanctioning activities via softer instruments like infringement procedures and finally, the presence of a distaste for increasing Union competence and fears of spillovers from sanctioning activity inform the actions within the Council. Unfortunately this paper doesn’t allow to fully elaborate the weakness of these political sanctions, especially art. 7 TEU. Yet it seems clear that the provided political sanctions are unfit as solid guarantees for FR protection in the Member States.
E. USURPING THE ROLE OF THE ECtHR?
Some Scholars argue that an extension of the Charters scope would imply that the CJEU would usurp the ECtHR’s role. However, that doesn’t seem the case. First of all, their domestic jurisdictions differ inherently since direct applicability and supremacy generally aren’t recognized for the ECtHR. Moreover, FR could benefit from the collaboration of the two courts. If the CJEU would fully rely on the ECtHR case law wherever possible, FR protection would be higher since the EU’s stronger enforcement mechanisms would increase the enforcement of the ECtHR judgements. Even more the EU law principle of non-application of national law through Member State courts ensures that national measures would be stopped from violating FR instead of just “paid off” as is the case under the ECHR.
F. SPECIFIC JUSTIFICATION GROUNDS FOR THE CREATIVE INTERPRETATION
Firstly, EU-citizenship can be seen as an autonomous legal status generally conceived as a bundle of rights. EU-citizens should have a legitimate expectation to gain a common standard of FR protection from the Union. This reasoning seems to trigger the application of EU law even in cases where there is no cross-border element protecting citizens against their own Member States. Therefore, we might argue that (even though this goes against the CFR’s traditional ratione materiae and ratione personae) Union citizenship itself triggers the application of the CFR.
2. FRANSSON FORMULA COMBINED WITH ART. 2 AND 7 TEU
On a second note it is possible to retain the ratione materiae requirement by justifying a wider application for the CFR through art. 7 TEU. As mentioned, art. 7 provides a special procedure that can be triggered in case of a clear risk or serious breach of the values (including the respect for fundamental rights) enshrined in art. 2 TEU. Therefore the use of the Fransson case formula (requirement of capability of indirectly affecting EU law) combined with the reference to articles 2 and 7 TEU read together could entail that basically any human rights violation can fall under the scope of art. 51 CFR.
V. CREATIVE INTERPRETATION OR EXTENSION OF THE SCOPE OF ART. 51 CFR, UTOPIA?
It can be argued that the use of a creative interpretation of art. 51 CFR would be contra legem and thus unacceptable, therefore requiring a formal modification of the CFR.
However, it is important to underline that an amendment of the Charter is not foreseen by any law nor would it have the same legal value without an amendment of the Treaties themselves, especially art. 6 TEU which refers to the CFR “as adopted at Strasbourg on 12 December 2007”.  The chance of this happening might seem utopic since treaty revisions are generally hard and slow processes, requiring unanimity. Success only decreases when it means that politicians would lose some of their discretionary powers, which seems to be the case.
On the other hand, some scholars argue that a reinterpretation should be applied since it is a more realistic “solution”. It might go against the literal interpretation of art. 51 CFR but this wouldn’t necessarily mean that it’s illegal, since the same was argued regarding the direct effect of directives before it was recognized as a permanent feature of CJEU case law. Moreover, it seems clear that the literal interpretation of the CFR’s scope doesn’t reflect the CJEU’s current case law. In the same way the Court is often obliged to essay the general principles of EU law instead of the provisions foreseen by the Charter when this restrictive interpretation is applied while this doesn’t seem to meet the legal certainty objective set out in the Charter.
A. LEGAL (UN)CERTAINTY
The current case law of the CJEU is quite inconsistent or at the very least unclear with regard to the determination of a “link with EU law”.  Even more regarding the Charter’s true scope and despite their differing opinions academics seem to agree that this uncertainty can form an additional difficulty for national courts to apply it but even more for EU-citizens. Therefore, whatever the choice, it is in the best interest of all to clearly determine the correct interpretation of the CFR’s scope in order to ensure uniform case law and more predictability for individuals.
The Charter of Fundamental Rights of the European Union has evolved from a mere political declaration into an important aspect of European law, yet this highly praised instrument remains subject to controversy. This research paper has tried to set out a multitude of arguments both in favor and against a possible extension of article 51 CFR leaving the weight of these arguments for the reader to determine. The academic debate is far from over as some see the scope’s controversy as an opportunity for the European Union to evolve into a fully-fledged community of values while others emphasize their concerns in light of the problematic of competence creep. From a realistic point of view, it is also necessary to critically look at the possibility of the scope’s extension given that logic dictates that not only the Charter itself would need to be amended but the Treaties as well. Given this unlikeliness a broader interpretation could be a better option however, others argue that this would be contra legem. Either way, it seems necessary to unambiguously define the Charter’s scope or the correct interpretation in order to help national courts to ensure uniform case law and more legal certainty for Union-citizens.
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