Assoc. Prof. Alexander Kornezov[1]
Ten years after the entry into force of the Charter, the article critically examines and systemises the entire case law of Bulgarian courts which contain references to the Charter of Fundamental Rights of the European Union and which is publicly accessible.
From a quantitative perspective, it is to be noted that the pre-Lisbon case law of Bulgarian courts contained only sporadic references to the protection of fundamental rights under EU law. This was due, on the one hand, to the difficulty to identify the exact EU source of such rights and, on the other hand, by the well-established practice to refer to other international instruments, such as the ECHR. A pre- and post- Lisbon comparison of the case law of Bulgarian courts thus shows a very significant increase in the number of citations concerning fundamental rights protection under EU law. Post-Lisbon, litigants have started to refer often to the Charter and the national jurisdictions have made number of references to the Courts of Justice of the EU on the interpretation of the Charter. The apparent change in the case law can be explained by the increased visibility of EU fundamental rights as a result of the entry into force of the Lisbon Treaty.
From a qualitative perspective, the article examines the case-law of Bulgarian courts through differents angles, namely (1) the role of the Charter in the case-law of the Constitutional Court, of the Supreme Court of Cassation, of the Supreme Administrative Court and of the lower courts, (2) the case-law on the scope of application of the Charter, as well as (3) the fundamental rights most frequently relied upon in the case law. The article also looks at whether the caise-law of Bulgarian courts has taken due consideration of the distinction between “rights” and “principles”, of the “horizontal direct effect” of the Charter as well as of its level of protection, laid down in Art 53 thereof.
As a conclusion the author acknowledges that while in quantitative terms, references to the Charter appear ever more frequently in the case-law, these are often formal, declaratory and an adjunct to other human rights instruments, rather than a free standing legal consideration. The complexity surrounding its scope of application and the judges’ longer experience and better acquaintance with the ECHR seem to make the latter more present in the case law. Nevertheless, some important structural changes with lasting effect have been achieved through the case-law relying, in particular, on the Charter. Sensitive cases with high social resonance have been also addressed, and some solved, on the basis of the Charter.
[1] Judge at the General Court of the European Union. The views expressed are personal. The article is based on a report related to the application of the Charter in the Members States over the 10 years after the entry into force of the Treaty of Lisbon, presented at a conference on 22-23 of March 2018 at Oxford University.