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Fundamental Rights Review of National Measures: Nothing New under the Charter?

Jukka Snell

European Public Law, Volume: 21, Issue: 2, Pages: 285 - 308

Swansea University Author: Jukka Snell

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Abstract

The case law under the Charter on the use of EU fundamental rights to scrutinize national measures represents a continuation of the earlier jurisprudence. The wording of Article 51(1) Charter of Fundamental Rights has not resulted in a general rollback of EU fundamental rights. However, the Charter...

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Published in: European Public Law
ISSN: 1354-3725
Published: 2015
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URI: https://cronfa.swan.ac.uk/Record/cronfa20783
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first_indexed 2015-04-21T02:07:30Z
last_indexed 2018-02-09T04:57:40Z
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spelling 2017-12-22T10:32:32.3032657 v2 20783 2015-04-20 Fundamental Rights Review of National Measures: Nothing New under the Charter? 888cbfaec56853b3709dec388b0948f1 Jukka Snell Jukka Snell true false 2015-04-20 LAWD The case law under the Charter on the use of EU fundamental rights to scrutinize national measures represents a continuation of the earlier jurisprudence. The wording of Article 51(1) Charter of Fundamental Rights has not resulted in a general rollback of EU fundamental rights. However, the Charter has focused attention on the issue, has resulted in important new guidance and some streamlining of the case law, and will make it hard for the Court to push the jurisprudence further. The normative justification for the Wachauf type cases can be readily found and has been convincingly articulated by the Court. This does not mean that it will be easy to decide whether the connection between the EU rules and the national measure is sufficient to count as implementation, but the Court has helpfully distilled factors to be taken into account. By contrast, the normative justification for ERT type cases is more difficult to establish. This case law represents a far-going interference with national legal systems. The standard explanation, that since derogations are creatures of Union law, EU fundamental rights must apply, fails to convince. The Court is expressing its distrust of national systems of fundamental rights protection. Unfortunately the distrust may be warranted, and the political system of the EU may not be well equipped to correct matters. The case law can be defended as a judicial remedy for the failure of the political, but needs to be applied with care. Journal Article European Public Law 21 2 285 308 1354-3725 20 4 2015 2015-04-20 https://www.kluwerlawonline.com/abstract.php?area=Journals&amp;id=EURO2015015 COLLEGE NANME Law COLLEGE CODE LAWD Swansea University 2017-12-22T10:32:32.3032657 2015-04-20T10:58:13.7938077 Faculty of Humanities and Social Sciences Hilary Rodham Clinton School of Law Jukka Snell 1 0020783-22122017103113.pdf 20783.pdf 2017-12-22T10:31:13.3370000 Output 594957 application/pdf Accepted Manuscript true 2016-04-04T00:00:00.0000000 true eng
title Fundamental Rights Review of National Measures: Nothing New under the Charter?
spellingShingle Fundamental Rights Review of National Measures: Nothing New under the Charter?
Jukka Snell
title_short Fundamental Rights Review of National Measures: Nothing New under the Charter?
title_full Fundamental Rights Review of National Measures: Nothing New under the Charter?
title_fullStr Fundamental Rights Review of National Measures: Nothing New under the Charter?
title_full_unstemmed Fundamental Rights Review of National Measures: Nothing New under the Charter?
title_sort Fundamental Rights Review of National Measures: Nothing New under the Charter?
author_id_str_mv 888cbfaec56853b3709dec388b0948f1
author_id_fullname_str_mv 888cbfaec56853b3709dec388b0948f1_***_Jukka Snell
author Jukka Snell
author2 Jukka Snell
format Journal article
container_title European Public Law
container_volume 21
container_issue 2
container_start_page 285
publishDate 2015
institution Swansea University
issn 1354-3725
college_str Faculty of Humanities and Social Sciences
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hierarchy_top_id facultyofhumanitiesandsocialsciences
hierarchy_top_title Faculty of Humanities and Social Sciences
hierarchy_parent_id facultyofhumanitiesandsocialsciences
hierarchy_parent_title Faculty of Humanities and Social Sciences
department_str Hilary Rodham Clinton School of Law{{{_:::_}}}Faculty of Humanities and Social Sciences{{{_:::_}}}Hilary Rodham Clinton School of Law
url https://www.kluwerlawonline.com/abstract.php?area=Journals&amp;id=EURO2015015
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description The case law under the Charter on the use of EU fundamental rights to scrutinize national measures represents a continuation of the earlier jurisprudence. The wording of Article 51(1) Charter of Fundamental Rights has not resulted in a general rollback of EU fundamental rights. However, the Charter has focused attention on the issue, has resulted in important new guidance and some streamlining of the case law, and will make it hard for the Court to push the jurisprudence further. The normative justification for the Wachauf type cases can be readily found and has been convincingly articulated by the Court. This does not mean that it will be easy to decide whether the connection between the EU rules and the national measure is sufficient to count as implementation, but the Court has helpfully distilled factors to be taken into account. By contrast, the normative justification for ERT type cases is more difficult to establish. This case law represents a far-going interference with national legal systems. The standard explanation, that since derogations are creatures of Union law, EU fundamental rights must apply, fails to convince. The Court is expressing its distrust of national systems of fundamental rights protection. Unfortunately the distrust may be warranted, and the political system of the EU may not be well equipped to correct matters. The case law can be defended as a judicial remedy for the failure of the political, but needs to be applied with care.
published_date 2015-04-20T03:24:36Z
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