THE APPLICABILITY OF THE EU CHARTER OF FUNDAMENTAL RIGHTS: NATIONAL MEASURES

After the entry into force of the Lisbon Treaty on 1 December 2009, the European Union’s Charter of Fundamental Rights (‘the Charter’) has found a place among the formal sources of EU law, and has become a standard of review for the validity of EU acts. It became legally binding for EU institutions, bodies, offices and agencies of the Union, but also to the Member States. Even after the entry into force of the Charter’, some doubts regarding its legal effects are still looming large. Among them is whether, and to what extent, the Charter applies to national measures that are connected to EU law but are not intended to implement it directly. This legal uncertainty affects the position of individuals seeking to assert their fundamental rights before a national judge. In particular, whereas the application of the Charter warrants disapplication of the conflicting national measures, the same remedy is often not available when plaintiffs rely only on other fundamental rights instruments (like the European Convention on Human Rights or national constitutions). There is no doubt that the borderline between EU law and national law is not always easy to establish in a concrete case. This article discusses theoretical and practical problems arising out of the application and interpretation of Article 51(1) of the Charter, according to which the Charter is addressed to the Member States ‘only when they are implementing Union law’