Article

Implementing EU Law after the Charter of Fundamental Rights

Emily Hancox

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 [1989] ECR 2609 at para 19

[ii] C-368/95 Vereinigte Familiapress Zeitungsverlags-und Vertriebs GmbH v Heinrich Bauer Verlag [1997] ECR I-3689 C-260/89 Elliniki Radiophonia Tileorassi [1993] ECR I-2925

[iii] C-309/96 Annibaldi [1997] ECR I-7493

[iv] Article 6(1) TEU 1992

[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 [1986] ECR 3477 C-384/05 Piek [2007] ECR I-289 Wachauf

[viii] Joined Cases C-20/00 and C-46/00 Booker Aquaculture [2003] ECR I-7411

[ix] Case C-28/05 Dokter [2006] 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 [2011] ECR I-00000

[xiii] See Francis G. Jacobs, ‘Human rights in the European Union: the role of the Court of Justice’ [2001] European Law Review 331

[xiv] Ibid para 69

[xv] Ibid at para 65

[xvi] Ibid at para 67

[xvii] Ibid at para 68

[xviii] C-578/08 Rhimou Chakroun v Minister van Buitenlandse Zaken [2010] 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

[xx] Ibid para 43

[xxi] Ibid paras 43-44

 

 

Article

Developments in the case law of the CJEU (2010-2011): Human Rights and the Scope of EU Law

Eleni Frantziou, LLM 

LLM, College of Europe; LLB, King’s College London

Stagiaire, Chambers of Judge Schiemann, Court of Justice of the European Union

 

Introduction

The solemn proclamation of the Charter of Fundamental Rights a decade ago sparked an interesting debate on whether the European Union was or could be an organisation that respected and protected fundamental rights in its own right[i]. In that regard, von Bogdandy had influentially argued that

“the human rights jurisprudence is the least “autonomous” part of the supranational legal order. […] Major changes in Union law must occur if it is to change into a legal order that places human rights or the citizen at its center.”[ii].

The two years following the entry into force of the Lisbon Treaty witnessed a number of judicial developments in EU law. It will be argued that the seeds have now been sown for the Union to move away from its ‘market values’ construction towards a more complete constitutional system, where fundamental rights play an active role.

By drawing on three main themes, starting from equality in section II and moving to citizenship and the right to family life (section III) and immigration (section IV), this paper seeks to demonstrate how the Court’s case law in 2010-2011 has extended the scope of EU law to encompass the autonomous protection of fundamental rights. In other words, it will attempt to evaluate to what extent fundamental rights have become part of the Union’s own “constitutional charter”[iii] in the post-Lisbon era.

Equality

The principle of equality – the ‘holy grail’ of EU fundamental rights case law – was given an interesting twist in one of the first eye-catching cases of 2010, Kücükdeveci v Swedex[iv].  The case concerned discrimination on grounds of age. Ms. Kücükdeveci had been dismissed by Swedex, a private company, on a month’s notice after ten years of service. Although the German Civil Code (GCC) would normally have provided for four months’ notice before dismissal, periods of employment before the age of 25 were excluded from this calculation (622(2)GCC). Ms. Kücükdeveci claimed discrimination on grounds of age, contrary to Article 1 of the Framework Equality Directive[v].  It is elementary EU law that directives do not enjoy horizontal direct effect[vi]. Nevertheless, in sweeping constitutional terms, the CJEU proclaimed:

“it is the general principle of European Union law prohibiting all discrimination on grounds of age, as given expression in Directive 2000/78, which must be the basis of the examination of whether European Union law precludes national legislation such as that at issue in the main proceedings.”[vii]

As  Advocate General Bot remarked, the Court was faced with the question of “whether the designation of rights guaranteed by directives as fundamental rights does or does not strengthen the right to rely on them in proceedings between private parties.”[viii] The case suggests that the Court is eager to assume a wider jurisdiction where the Union’s constitutional commitments as regards the protection of fundamental rights are concerned, even in situations which would have otherwise fallen outside the scope of EU law[ix]. Thus, Kücükdeveci extends the scope of application of EU law at least to secondary legislation which is rooted in the general principles jurisprudence and reaffirms the primacy of the ‘Union standard’ in the field of fundamental rights[x]. The implications are striking.  As Peers persuasively puts it:

“it would be absurd to privilege one particular aspect of the right to non-discrimination over other aspects of that right, other social rights, or other human rights, and so the principle should logically apply whenever any general principle of EU law, as regards human rights protection, is sufficiently connected to the application of an EU Directive. The rationale for privileging human rights as a whole over other rules and principles as regards their legal effect is simply that […] human rights have primacy in the hierarchy of the primary law of the European Union.”[xi]

Indeed, the ‘Kücükdeveci effect’, as one commentator called it[xii], has not (yet) come to an end. The Court has reaffirmed its validity in a recent case decided by the Grand Chamber[xiii]. Finally, its Advocates General have made a strong case for the constitutionalisation of the ruling insofar as it calls for the effective use of new Treaty provisions and the Charter[xiv].

Citizenship and the right to family life

In March 2011, the Court rendered one of the most controversial judgments in its recent history, Zambrano[xv]. The Court was faced with the situation of a Colombian asylum seeker who had been refused refugee status as well as a permanent work permit in Belgium. Two of his children were Belgian nationals, therefore enjoying Union citizenship. Mr Zambrano argued that the refusal of his work permit would force him to emigrate, which, in turn, would deprive his children of effective use of their EU citizenship and violate their fundamental rights, contrary to Articles 18, 20 and 21 TFEU[xvi] and Articles 7, 21 and 24 of the Charter[xvii].  The Court agreed:

“article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union (see, to that effect, Rottmann, paragraph 42[xviii]). A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect”[xix].

Thus, the Court reaffirmed that “citizenship of the Union is intended to be the fundamental status of nationals of the Member States”[xx]. In addition, the citizenship rights of Mr. Zambrano’s children were found to be potent enough to keep their parents in the Union even though the citizens themselves had never exercised their free movement rights. Thus, the Court essentially decided that citizenship of the Union is capable, in and of itself, under certain circumstances, of founding (and winning) a claim before the Court.

Zambrano can be seen as representing ‘a permanent move beyond the confines of “market citizenship”’[xxi] and towards the concept of ‘EU citizenship as such’ as a trigger for the application of EU law[xxii]. As AG Sharpston put it:

“from the moment that the Member States decided to add, to existing concepts of nationality, a new and complementary status of ‘citizen of the Union’, it became impossible to regard such individuals as mere economic factors of production. Citizens are not ‘resources’ employed to produce goods and services, but individuals bound to a political community and protected by fundamental rights” [xxiii].

Nonetheless, the Court, perhaps alarmed by the degree of disapproval following its ruling, was sceptical about applying it in the follow-up cases of McCarthy[xxiv] and Dereci[xxv], holding that the mere fact that a citizen may prefer that his family members should stay in the Union cannot constitute sufficient proof, if their stay is refused, of an effective deprivation of citizenship or of a violation of fundamental rights[xxvi]. It therefore seems that, for the time being, Zambrano has been restricted from a factual perspective. However, the decision that lack of an inter-state element can no longer ipso facto disqualify citizenship cases from falling within the scope of the Treaty, remains good law.

Asylum and immigration – N.S.: the Court’s swan song for 2011

In December 2011, the Court of Justice rendered its ruling in the long-awaited case of N.S.[xxvii] The case concerned a number of illegal immigrants who had applied for asylum in the UK. When the authorities attempted to send them back to the country of first entry, Greece, in order for their applications to be processed in accordance with the Dublin II Regulation[xxviii], the applicants claimed that, if returned, they would likely be subjected to inhuman and degrading treatment as well as a series of other human rights violations. The CJEU was asked, inter alia, to determine whether the general principles of European law and the rights enshrined in Articles 1, 4, 18 and 47 of the Charter of Fundamental Rights[xxix] offer a protection wider than that afforded by Article 3 ECHR[xxx]. The case differs from Kücükdeveci and Zambrano in that the applicability of EU law was not challenged. However, it is important as regards the lens through which the Court looks at human rights claims and their place in the Union’s constitutional hierarchy.

The Court decided that the interpretation of the rights in question under the Charter would not be different than that of the ECHR in the case at issue[xxxi]. However, and quite strikingly, it employed its own standard of protection[xxxii]. The Advocate General, who was followed by the Court, argued in clear terms that the Court is free, under the Charter, to provide more extensive protection than the ECHR[xxxiii]. Although she stressed the importance of the Convention in the interpretation of Union rights under the Charter, she went on to argue that this cannot undermine the intellectual autonomy of the CJEU regarding the reach of Union rights, particularly in view of the fact that ECtHR judgments:

“essentially constitute case-specific judicial decisions and not the rules of the ECHR themselves, and it would therefore be wrong to regard the case-law of the European Court of Human Rights as a source of interpretation with full validity in connection with the Charter[xxxiv].”

As to the substance, the Court held that an individual assessment of potential human rights violations is required by primary Union law, even if that would essentially contravene the mutual recognition rules agreed by the Member States under Dublin II[xxxv]. Thus, the N.S. case is a clear indication to the effect that a) the standard of protection of fundamental rights under the Union’s Charter is changing into a non-negotiable obligation for the Member States, even in the most sensitive areas of EU law, and b) the CJEU will only accept unchanged the standards set by the ECtHR as long as it considers them acceptable for the Union legal order, rather than the other way around. Although the judgment still awaits further development through the case law, it is in harmony with the trend of placing increasing protection on fundamental rights and is heavily reminiscent of the Kadi saga[xxxvi], where the Court emphasised that:

“the Community judicature must […] ensure the review, in principle the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law”[xxxvii].

It remains to be seen whether the Court will eventually proclaim the independence of the Union’s fundamental rights system, thus answering the “federal question” in the affirmative[xxxviii]. To that end, it is worth noting that the CJEU recently ruled against the direct application of ECHR provisions in the EU[xxxix], suggesting that the only human rights list enjoying Treaty status and, consequently, direct effect in the Member States is the Charter of Fundamental Rights[xl].

Concluding remarks: Two years of reform?

The three cases cited in this paper have illustrated the willingness with which the CJEU has assumed a wider scope for adjudicating in the vast spectrum of human rights claims. Fundamental rights have gradually become part and parcel of European Union law, initially respected, then protected and nowadays even asserted, qua general principles and through the Charter, against market values. As some commentators have argued, in a time of crisis for the Union’s ‘old ideals’, strong liberal democratic principles and an express commitment to the protection of human rights now form an integral part of the EU’s normative foundations[xli].

The care that the Court has taken in the last two years to ensure the uniform and autonomous application of fundamental rights throughout the Union, irrespective of the existence of a traditional EU law setting, signals a ‘constitutionalisation’ of rights which is single-handedly carrying through the polity-building process initiated by the Lisbon Treaty[xlii]. The Union has come a long way from the debate this paper started with. Time will show whether the edifice will ever be completed.

 


[i] See for example J. Enninger, “Menschenrechte und Staatsaufgaben – ein europäisches Thema” (1996) JZ, 585; I. Pernice, “Eine Grundrechts-Charta für die Europäische Union” (2000) DVBl. 847; P. Eeckhout, “The EU Charter of Fundamental Rights and the Federal Question” (2002) 39 CMLRev.,945.

[ii]A. von Bogdandy, “The European Union as a human rights organization? Human rights and the core of the European Union” (2000) 37 CML Rev., 1307, 1333.

[iii] Case 294/83 Les Verts v Parliament  [1986] ECR 1339, paragraph 23

[iv] Case C-555/07 Kücükdeveci v Swedex GmbH [2010] ECR I-00365.

[v] Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L 303/16.

[vi] Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraph 20.

[vii] Kücükdeveci, supra n. 4, paragraph 27 (emphasis added).

[viii] Opinion of Advocate General Bot, delivered on 7 July 2009, in Kücükdeveci, supra n. 4paragraph 90.

[ix] Editorial Comment,  “The Scope of Application of EU law. An Even Expanding Union?” (2010) 47 CMLRev.,1589, 1593.

[x] M. Dougan, “When Worlds Collide! Competing visions of the Relationship between direct effect and supremacy” (2007) 44 CMLRev 931.

[xi] S. Peers “Supremacy, Equality and Human Rights: Comment on Kücükdeveci (C-555/07)” (2010) E.L.Rev., 849, pp.855-6 (emphasis added).

[xii] E.Muir, “Of Ages In – And Edges Of- EU law” (2011) 48 CMLRev 39, 60.

[xiii] Case C-447/09 Prigge and Others v Deutsche Lufthansa, judgment of 13 September 2011, nyr, paragraph 38; Joined cases C-297/10 and C-298/10 Hennigs v Eisenbahn-Bundesamt, Land Berlin v Mai, judgment of 8 September 2011, nyr, paragraph 47.

[xiv] Opinion of AG Cruz Villalòn in Prigge, ibid., delivered on 19 May 2011, paragraph 26; See also: Opinion of Advocate General Cruz Villalòn, delivered on 5 may 2010 in Case C-515/08 Santos Palhota, judgment of 10 October 2010, nyr, paragraph 53; Opinion of Advocate General Kokott, delivered on 30 September 2010, in Case 236/09 Association Belge des Consommateurs Test-Achats and Others, paragraphs 26-28.

[xv] Case C-34/09 Zambrano v Office national de l’emploi, judgment of 8 March 2011, nyr.

[xvi] No discrimination on grounds of nationality, Union citizenship and citizens’ right to move and reside freely in the Union, respectively.

[xvii] Respect for private and family life, non-discrimination and the protection of children, respectively.

[xviii] Case C-135/08 Janko Rottmann v. Freistaat Bayern, judgment of 2 March 2010, nyr.

[xix] Zambrano, supra n. 15, paragraphs 42-43 (emphasis added).

[xx] Zambrano, supra n. 15, paragraph 41; Case C-184/99 Grzelczyk [2001] ECR I‑6193, paragraph 31; Case C-413/99 Baumbast and R [2002] ECR I-7091, paragraph 82; Garcia Avello, ibid., paragraph 22; Cf. Case C-200/02 Zhu and Chen [2004] ECR I‑9925.

[xxi] K. Hailbronner and D. Thym, “Annotation of Case C-34/09” (2011) 48 CMLRev 1253., 1269

[xxii] Ibid., at 1263

[xxiii] Opinion of AG Sharpston, delivered on 30 September 2010, in Zambrano, supra n. 18, paragraph 128.

[xxiv] Case C-434/09 McCarthy v Secretary of State for the Home Department, judgment of 5 May 2011, nyr.

[xxv] Case C-256/11 Dereci and others v Bundesministerium für Inneres, judgment of 15 November 2011, nyr.

[xxvi] Ibid., paragraphs 66-68.

[xxvii] Joined Cases C-411/10 and C-493/10 N.S. and others, judgment of 21 December 2011, nyr. (The case is  also commonly referred to as “Saeedi” in the UK).

[xxviii] Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national.

[xxix] Right to dignity, right not to be subjected to torture and inhuman or degrading treatment or punishment, right to asylum and right to a fair hearing, respectively.

[xxx] Right not to be subjected to torture and inhuman or degrading treatment or punishment.

[xxxi] N.S., supra n. 29, paragraph 115.

[xxxii] Ibid., paragraphs 111- 113. The ECtHR had reached a very similar decision earlier in 2011 in M.S.S v Belgium and Greece (Application no. 30696/09), where, under similar circumstances, Belgium had returned an asylum seeker to Greece. Contrary to previous rulings in that regard, the ECtHR held that Article 3 ECHR had been violated.

[xxxiii] Opinion of AG Trstenjak, delivered on 22 September 2011, in N.S., supra n. 29, paragraphs 142-148.

[xxxiv] Ibid., paragraph 146. See also: Opinion of Advocate General Maduro, delivered on 9 September 2008 in Case C-465/07 Elgafaji [2009] ECR I-921, paragraph 23.

[xxxv] N.S., supra n. 29, paragraph 94. It is worth noting that the Court also emphasised the constitutional nature of human rights in the EU and affirmed that the Charter is applicable in the UK.

[xxxvi] Joined Cases C-402/05 P & C-415/05 P Kadi and  Al
Barakaat International Foundation v Council and Commission
[2008] ECR I-6351.

[xxxvii] Ibid., paragraph 326.

[xxxviii] Eeckhout, supra n. 1.

[xxxix] Case C-571/10 Kamberaj, judgment of 24 April 2012, nyr, paragraph 63.

[xl]  L. Ankersmit, “Case C-571/10 Kamberaj: the Charter and not the ECHR has effect in Member States’ legal orders”, European Law Blog, 26 Aprill 2012, available at: http://europeanlawblog.eu/?tag=c-57110-kamberaj (accessed on 26 April 2012). Of course, the Convention will be applied to the extent that the Charter adopts and extends the rights enshrined therein (Article 52(3) Charter).

[xli] T. Chopin and C. Lequesne, « 20 ans après la chute du mur de Berlin, la liberté, nouveau récit commun de l’Europe?», in M. Foucher and T. Chopin (eds), Rapport Schuman sur l’Europe: L’Etat de l’Union européenne 2010, Paris: Lignes de Repères, 2010, 43, pp.47-50; Opinion of Advocate General Sharpston delivered on 30 September 2010 in Zambrano, supra n. 15, paragraph 165.

[xlii] P.Maduro, ‘The Double Constitutional Life of the Charter of Fundamental Rights of the European Union’, in T.K. Hervey and J. Kenner (eds.), Economic and Social Rights under the EU Charter of Fundamental Rights, Hart Publishing: Oxford, 2003, 269.