Charter compatibility as interpretative aid and/or a condition of legal validity?

Aidan O’Neill QC

As I have noted in previous posts, since the coming into force of the Lisbon Treaty provisions according the Charter of Fundamental Rights of the European Union (“CFR”)  with “the same legal value as the Treaties” (Article 6 TEU), the CJEU now, as a matter of course, refers to provisions of the Charter in its judgments. There have already been over 300 references to the Charter in the decisions of the CJEU (including those of General Court and the Civil Service Tribunal).

One developing issue in the court’s more recent Charter jurisprudence is the manner in which the Charter is being used as an interpretative aid to other provisions of EU law.

In Case C‑1/11 Interseroh Scrap and Metals Trading GmbH v Sonderabfall-Management-Gesellschaft Rheinland-Pfalz mbH (SAM) 29 March [2012] at para 46 the CJEU confirmed – under reference to Articles 15(1), 16 and 17 CFR which, provide, respectively, for the right to engage in work and to pursue a freely chosen or accepted occupation, the freedom to conduct a business and the right to property – that the protection of business secrets is a general principle of EU law (See Case C‑450/06 Varec [2008] , paragraph 49 and the case-law cited).  But the Court observed that even if a particular requirement under a secondary provision of EU law might be said to constitute a breach of the protection of the business secrets of dealers, that could not have the consequence of restricting the scope of a provision of secondary law that is clear and unconditional. It would appear that the Court considered that provisions of or derived from the Charter could not be relied upon indirectly to affect the interpretation of EU law provisions holding instead that

“any unjustified breach of the protection of business secrets, assuming it were established, would not be such as to limit the scope of Article 18 of Regulation No 1013/2006, but rather to call into question the validity of that provision. The national court has not, however, asked the Court of Justice to rule on the validity of Article 18 of Regulation No 1013/2006, or even expressed any doubt in that regard, and the Court does not have sufficient facts before it to enable it to assess the validity of that provision.”

On the other hand in Case C-510/10 DR, TV2 Danmark A/S v NCB ‑ Nordisk Copyright Bureau 26 April [2012] at para 57 which concerned the interpretation of the phrase contained in Article 5(2)(d) of the Copyright Directive 2001/29/EC “regulations for ephemeral recordings made by a broadcasting organisation by means of its own facilities and used for its own broadcasts”, the Court used the terms of the Charter as an interpretative aid, observing as follows:

“[I]n the assessment of the choices of interpretation available to the Court, that approach finds support in the fact that it ensures that broadcasting organisations have a greater enjoyment of the freedom to conduct a business, set out in Article 16 of the Charter of Fundamental Rights of the European Union, while at the same time not adversely affecting the substance of copyright.”

And in Case C‑92/12 PPU Health Service Executive v S.C. and another 26 April [2012] concerning the proper interpretation of the Brussels II Regulation on jurisdiction, recognition and enforcement of judgments in matrimonial matters and in the matters of parental responsibility the Court observed that

“For the purposes of the interpretation and application of the Regulation, decisions should be made that respect the criterion of the best interests of the child, in the light of Article 24 of the Charter.”

While in Joined Cases C‑411/10 and C‑493/10 N. S. v Secretary of State for the Home Department 21 December [2011]  at para 77 the Grand Chamber CJEU confirmed that the Charter compatible interpretative obligation applies to national courts and other national authorities, as well as to national law within the ambit of EU law:

“[T]he Member States must not only interpret their national law in a manner consistent with European Union law but also make sure they do not rely on an interpretation of an instrument of secondary legislation which would be in conflict with the fundamental rights protected by the European Union legal order or with the other general principles of European Union law (see, to that effect, Case C‑101/01 Lindqvist [2003] ECR I‑12971, paragraph 87, and Case C‑305/05 Ordre des barreaux francophones et germanophone and Others [2007] ECR I‑5305, paragraph 28).”

Against that background the decision of the Grand Chamber in Case C‑571/10 Servet Kamberaj v Istituto per l’Edilizia sociale della Provincia autonoma di Bolzano (IPES) 24 April [2012]  is of particular significance.  In this decision the Grand Chamber referred to and relied upon general principles relating to the elimination of social exclusion and poverty (which it saw as implicit within the specific provisions of Article 34 CFR right to social security and social assistance) to the question of the proper interpretation and application of Italian laws concerning the entitlement of third-country nationals, who were lawfully long-term residents in Italy, to housing benefit for low income tenants.   The issue was whether or not such individuals were able to rely upon this Charter provision in their claim to claim equal treatment with other EU nationals with regard to these payments.  The Grand Chamber stated:

“when determining the social security, social assistance and social protection measures defined by their national law and subject to the principle of equal treatment enshrined in Article 11(1)(d) of Directive 2003/109, the Member States must comply with the rights and observe the principles provided for under the Charter, including those laid down in Article 34 thereof. Under Article 34(3) of the Charter, in order to combat social exclusion and poverty, the Union (and thus the Member States when they are implementing European Union law):

‘recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by European Union law and national laws and practices’.….

[A]ccording to Article 34 of the Charter, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources. It follows that, in so far as the benefit in question in the main proceedings fulfils the purpose set out in that article of the Charter, it cannot be considered, under European Union law, as not being part of core benefits within the meaning of Article 11(4) of Directive 2003/109.”

This decision is of particular interest within the UK because Article 34 CFR falls within Title IV of the Charter concerning on “Solidarity”. But Article 1(2) of Protocol 30 to the Lisbon Treaty provides that

 “2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.”

Does Article 1(2) of Protocol 30 mean therefore that the UK courts can simply ignore decisions such as Servet which make reference to Title IV rights ?   That seems unlikely.   The terms of Protocol 30 were briefly considered by the Grand Chamber in the previously noted Joined Cases C‑411/10 and C‑493/10 N. S. v Secretary of State for the Home Department 21 December at para 77 where it observed:

“119.    Protocol (No 30) does not call into question the applicability of the Charter in the United Kingdom or in Poland, a position which is confirmed by the recitals in the preamble to that protocol. Thus, according to the third recital in the preamble to Protocol (No 30), Article 6 TEU requires the Charter to be applied and interpreted by the courts of Poland and of the United Kingdom strictly in accordance with the explanations referred to in that article. In addition, according to the sixth recital in the preamble to that protocol, the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles.

120    In those circumstances, Article 1(1) of Protocol (No 30) explains Article 51 of the Charter with regard to the scope thereof and does not intend to exempt the Republic of Poland or the United Kingdom from the obligation to comply with the provisions of the Charter or to prevent a court of one of those Member States from ensuring compliance with those provisions.

121    Since the rights referred to in the cases in the main proceedings do not form part of Title IV of the Charter, there is no need to rule on the interpretation of Article 1(2) of Protocol (No 30).”

The tenor of this judgment suggests that it would be unlikely, should the issue ever come directly before it again, for the CJEU to attribute any greater legal weight to Article 1(2) (or any other provisions) of Protocol 30.  Protocol 30 may now perhaps best be seen as a time-specific political face-saving measure, rather than any form of binding legal opt-out for the UK or Poland from any substantive Charter provision, even those concerning Solidarity.

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