(Judgment of the Court in Case С-617/10 Akerberg Fransson)
The case С-617/10 Akerberg Fransson of ECJ raises important substantive legal issues associated with both the interpretation of the principle ne bis in idem, and the interpretation of the general provisions of the Charter of Fundamental Rights of the European Union concerning its scope of application in the Member States (Article 51 of the Charter).
Article 51 of the Charter is an important legal mechanism for interpretation and application of this European Bill of Rights by the European institutions and the Member States. It contains a balancing mechanism for basic human rights and freedoms which on the one hand are recognized by the EU and on the other hand are an integral part of the constitutional traditions and international obligations of the Member States.
The linguisticand the legaldefinitionof the expression “implementing Union law” is a sticking point which affects not onlythe political debate in Europe but also the case-by-case approach of the Court of Justice of the European Union. This article examines the main questions about the scope of applicability of the Charter of Fundamental Rights of the European Union at the national level,on the one hand,account being taken of landmark cases, such as Wachauf and ERT, and,on the other hand, of the recent judgments of the Court and the innovative opinions of its Advocates General.This question is also important in view of the principle of effective protection in the present sophisticated European multilevel system for the protection of fundamental rights.
In the caseС-617/10 Akerberg the Court gives a broad interpretation of the notion of „implementing“. The Court includes in this notion national measuressituated on the extreme boundary of application of EU law.A broad interpretation of the general provisions of the Charter could create uncertainty in the implementation of European law by Member States but also could confirm their fears that the Charter is a new „Trojan horse“ because it extends the competences of the Union, given thatArticle 4 of the TEU is included into the legal mechanism which determine the interpretation of the scope of the Charter. This way the Court provides an almost unlimited opportunity to check the compatibility of national measures withthe EU Charter.
The judgment also addresses the interpretation of Article 53 of the Charter. The combined reading of the judgments Melloni and Akerberg leads to the conclusion that the important element for the application of the balancing mechanism, set out in Article 53 of the Charter, is the degree of connection with the European legal order. For example,in Melloni, the national measure implements the EU law and for this reason only the Charter is applicable. While in Akerberg the national measure falls within the scope of EU law and the national standard of protection of fundamental rights is applicable, if it grants higher level of protection. But in both cases Member States must respect the basic principles of the European legal order.
Even though much time has elapsed since Costa v ENEL and van Gend & Loos, the current case-law on the application of the Charter produces no lesser legal challenges for the application of the fundamental principles of EU law and provides effective protection in the framework of the multilevel system of fundamental rights in Europe. In this context, after the adoption of the Lisbon Treaty and the Charter no one should doubt any more that the fundamental rights should be taken seriously.
Линк към статията на български език: ПРИЛОЖНОТО ПОЛЕ НА ХАРТАТА НА ОСНОВНИТЕ ПРАВА НА ЕВРОПЕЙСКИЯ СЪЮЗ СПРЯМО ДЪРЖАВИТЕ ЧЛЕНКИ
Master of laws from the University of Veliko Tarnovo and LL.M. of EU law from the University of Luxembourg.