LLM Researcher, European University Institute
It was established in the 1980s, in the landmark case of Wachauf, that Member States when implementing EU law are bound to respect EU fundamental rights.[i] The Court of Justice of the European Union (‘the Court’) did not stop here and later held that Member States were also to respect EU fundamental rights when derogating from EU law[ii] and potentially when acting ‘within the scope of EU law.’[iii] The aim of this post is to consider what it means to ‘implement’ EU law and whether this has changed since the EU Charter of Fundamental Rights (‘the Charter’) became legally binding.[iv] The focus, in particular, will be on the case of N.S[v]. and the exercise by Member States of optional clauses in EU secondary legislation. To begin with this post will consider the meaning of implementing EU law and the problems with this concept after the Charter entered into force. It shall then discuss the case of N.S. and its implications for the meaning of implementing EU law.
Prior to the Charter, implementing EU law referred to an ‘agency situation’: the EU confers a power onto a Member State to introduce EU secondary legislation into national law. Implementing was the giving of ‘hands and feet’ to EU law in order for it to become effective.[vi] This included the application or execution of a regulation,[vii] the transposition of a directive,[viii] and the application of a directive through an executive act.[ix] The existence of Member State discretion was also not considered fatal to the ‘agency’ relationship. This is evident in Wachauf where the Member State had the option under Regulation 1371/84 whether or not to grant compensation to the individual. This notion of implementing, as an agency situation, shall be used throughout this post as a benchmark against which to measure changes in the concept.
The Charter has called into question this established meaning of implementing EU law. This is due to the complex interplay between the Charter and the Explanations relating to the Charter[x] which are to be given ‘due regard.’[xi] Article 51(1) of the Charter states that fundamental rights are binding on Member States “only when they are implementing Union law.” This would place a clear limit on the scope of EU fundamental rights, if it was not for the Explanations. These state that “it follows unambiguously from the case-law of the Court of Justice” that Member States are bound by fundamental rights “when they act within the scope of EU law.” This introduces a difficult conflict between two alternatives. The first option is to ignore the explicit wording of the Charter and follow the Explanations, attributing to implementing EU law the meaning of ‘within the scope of EU law.’[xii] This would dramatically alter the meaning of the concept. The second option is to rely on the express wording of the Charter and take this as a limit to the scope of fundamental rights.[xiii]
N.S. is one of the first cases to discuss what is meant by implementing EU law after the Charter. In N.S., the appellant was Afghan national who claimed asylum in the United Kingdom, but had been arrested in Greece whilst traveling there. The United Kingdom had successfully requested that Greece take responsibility for the applicant’s claim under the Common European Asylum System. Upon hearing of his transfer the appellant appealed and requested that the Secretary of State exercise her option to accept responsibility for his claim on the basis that transfer to Greece would violate his fundamental rights under European Union law amongst other provisions. The option concerned was contained in Article 3 of Regulation No 343/2003 which provides:
“1. Member States shall examine the application of any third-country national who applies at the border or in their territory to any one of them for asylum. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible.
“2. By way of derogation from paragraph 1, each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in this Regulation. In such an event, that Member State shall become the Member State responsible within the meaning of this Regulation and shall assume the obligations associated with that responsibility…”
The question referred asked whether the exercise of this discretion was ‘implementing’ EU law under Article 51(1) of the Charter. The Court confirmed that it was.[xiv] Several Member States had tried to argue that the option in Article 3(2) was a ‘sovereignty clause’ and thus outside the scope of EU law. The Court rejected this reasoning, holding that the option is “an integral part of the Common European Asylum System”[xv] and that its exercise “gives rise to specific consequences provided for by that regulation.”[xvi] The provision thus “forms part of the mechanisms for determining the Member State responsible for an asylum application provided for under that regulation and, therefore merely an element of the Common European Asylum System.”[xvii] There are several implications which flow from this judgment.
The first point to note is that ‘implementing’ is not equated with ‘within the scope of EU law’ in this case. A dramatic shift in meaning cannot thus be identified yet. This development cannot be categorically ruled out in the future but a better test case, where a Member States seeks to restrict a fundamental freedom, would be necessary. There is, however, a clear attempt by the Court and the Advocate General to fit the case within an ‘agency situation’. Advocate General Trestenjak clearly aligns the meaning of ‘implementing’ with its pre-Charter meaning when stating that “in the light of the Wachauf case-law,” it is “a national implementing measure.” Similarly, the Court stressed that the decision is an element of the Common Asylum System, giving rise to the specific rights and duties of this system. Emphasising the extent of integration with the system is arguably a method of demonstrating that the Member State is applying a provision of EU law. If the meaning of ‘implementing’ EU law was much broader than before then there would be no such need to stress the relationship between this situation and the existing case law.
A second point relates to whether the exercise of all options in secondary legislation will come within implementing EU law as defined by the Court in N.S. The Court in N.S. seems to rely on several specific factors related to the option that brings it within the meaning of implementing. To demonstrate the potential effect of this a contrast may be drawn with Chakroun[xviii] which commentators have referred to as an instance of derogating from EU law.[xix] Chakroun concerned the implementation into national law of a provision in Directive 2003/86 which governed the conditions for the exercise of the right to family reunification for third-country nationals who are lawfully resident in the territory of a Member State. Under the Directive authorisation of family reunification was the general rule,[xx] however, there was also the option for the Member State to require evidence of the sponsor’s resources. The Court held that the exercise of this option must be interpreted strictly and should be interpreted in the light of fundamental rights.[xxi] The situation in Chakroun differs slightly from that of N.S. in that the option is to limit an individual right to family reunification granted by Directive 2003/86. It may be on this basis that Chakroun has been considered a derogating situation since in cases such as N.S. and Wachauf the options are to allocate responsibility and increase protection through the grant of compensation. It was never made explicit whether the situation Chakroun was considered implementing under Article 51(1) of the Charter. The facts arose before the Charter came into force and so it is possible that the Charter was not determinative in this case. If so, then it is possible that after N.S. an optional provision which does not give rise to specific consequences and is not an ‘integral part’ of the field it operates in but instead limits an EU right may not be considered ‘implementing’ under Article 51(1).
This post has tried to summarise the uncertainties surrounding the meaning of implementing EU after the Charter entered into force and whether it still refers to an agency situation. It then considered the case of N.S. which explicitly considers the meaning of implementing EU law. It may be concluded that N.S. does not suggest a radical change in the meaning of ‘implementing’ EU law. A test case where the Member State attempts to derogate from the fundamental freedoms would be necessary in order to fully assess this, but the Court clearly tries to fit the situation in the Wachauf-line of case law. It remains to be seen however whether the decision in N.S. now introduces a distinction between the exercise of optional clauses to limit individual rights and other optional clauses. The case of Chakroun was not clearly decided under the Charter and so there is the need for another similar case to arise in order to test this proposition.
[i] 5/88 Wachauf  ECR 2609 at para 19
[ii] C-368/95 Vereinigte Familiapress Zeitungsverlags-und Vertriebs GmbH v Heinrich Bauer Verlag  ECR I-3689 C-260/89 Elliniki Radiophonia Tileorassi  ECR I-2925
[iii] C-309/96 Annibaldi  ECR I-7493
[iv] Article 6(1) TEU
[v] Joined cases C-411/10 and C-493/10 NS and others Judgment of the Court (Grand Chamber) of 21 December 2011 nyr
[vi] L.F.M. Besselink, ‘The member States, the national Constitutions and the scope of the Charter’ 1 8 Maastricht Journal 68
[vii] Joined Cases 201/85 and 202/85 Klensch and Others  ECR 3477 C-384/05 Piek  ECR I-289 Wachauf
[viii] Joined Cases C-20/00 and C-46/00 Booker Aquaculture  ECR I-7411
[ix] Case C-28/05 Dokter  ECR I-5431
[x] C 303/17 Explanations Relating to the Charter of Fundamental Rights OJ (2007/C 303/02)
[xi] Article 52(7) Charter of Fundamental Rights
[xii]See the Opinion of Advocate General Bot in Case C-108/10 Ivana Scattolon v Ministero dell’Istruzione, dell’Università e della Ricerca  ECR I-00000
[xiii] See Francis G. Jacobs, ‘Human rights in the European Union: the role of the Court of Justice’  European Law Review 331
[xviii] C-578/08 Rhimou Chakroun v Minister van Buitenlandse Zaken  ECR I-01839
[xix] Filippo Fontanelli, ‘The European Union s Charter of Fundamental Rights Two Years Later’ (2012) Perspectives on Federalism, Vol 3, No 3, 2011 Catherine Barnard, ‘The EU Charter of Fundamental Rights: Happy 10th Birthday?’ 24 EUSA Review 5