Areas of Application of the Charter of Fundamental Rights of the European Union: Fields of conflict?

Abstract

Although the Charter of Fundamental Rights of the European Union has already became a fully binding act of primary EU law, the controversies concerning the area of Charter's application do not seem to cease. Nevertheless, this phenomenon should not surprise since the core of this discussion rests upon the fundamental rules of the functioning of the European Union. While the uniform stand concerning the scope of application of the Charter vis-à-vis national legislation has not yet been elaborated upon, an analysis of the trends emerging in the ECJ case-law seems to be useful. The discussion is still open and two approaches - strict (formal) and flexible (liberal) - compete. Recent case-law of the ECJ proves the existence of specific "gear mechanisms" or "legal connectors" which serve the purpose of determination of the field of the Charter's application on the areas traditionally not covered by the EU law. The case-law at hand also determines the framework in which the existing jurisprudence concerning the general principles of EU law can be applied for delineating the field of the Charter's application. The questions mentioned above are being explored in light of the prospective ratification of the European Convention of Human Rights by the European Union and discussion about the degree of influence of a Member State's constitutional traditions on interpretation and application of the Charter.