Key facts of the case:
Reference for a preliminary ruling — Charter of Fundamental Rights of the European Union — General principles of European Union law — Implementation of European Union law — Scope of European Union law — A sufficient connection — Lack of such a connection — Lack of jurisdiction of the Court.
Outcome of the case:
On those grounds, the Court (Tenth Chamber) hereby rules:
The Court of Justice of the European Union has no jurisdiction to answer the question referred by the Tribunale amministrativo regionale per la Sicilia (Italy).
1) This request for a preliminary ruling concerns the interpretation of Article 17 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and of the principle of proportionality.
14) Accordingly, the referring court is uncertain whether Article 167 of Legislative Decree No 42/04 – in so far as it excludes, on the basis of a presumption, a category of work from being assessed in terms of its compatibility with protection of the landscape and imposes in that regard the penalty of demolition – constitutes an unjustified and disproportionate infringement of the right to property guaranteed under Article 17 of the Charter, if the Charter were to be construed as meaning that property rights may not be restricted unless the actual – rather than merely hypothetical – existence of an opposing interest has been identified. The referring court also makes reference to the principle of proportionality as a general principle of EU law.
15) In those circumstances, the Tribunale amministrativo regionale per la Sicilia decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Do Article 17 of the Charter … and the principle of proportionality, as a general principle of [EU] law, preclude the application of a provision of national law such as Article 167(4)(a) of Legislative Decree No [42/04], under which a landscape compatibility clearance (autorizzazione paesaggistica) may not be issued by way of retrospective regularisation in any cases where human activity has resulted in an increase in floor area and volume, regardless of whether a specific appraisal has been undertaken as to whether the activity in question is compatible with the features of the landscape of the particular site which merit protection?’
16) By its question, the referring court asks, in essence, whether Article 17 of the Charter and the principle of proportionality must be construed as precluding a provision of national legislation such as Article 167(4)(a) of Legislative Decree No 42/04.
20) Under Article 51(1) thereof, the provisions of the Charter are addressed to the Member States only when they are implementing EU law. Article 6(1) TEU and Article 51(2) of the Charter specify that the provisions of the Charter are not to extend in any way the competences of the Union as defined in the Treaties. Accordingly, the Court is called upon to interpret, in the light of the Charter, the law of the European Union within the limits of the powers conferred on it (see Case C-256/11 Dereci and Others  ECR I-11315, paragraph 71 and the case-law cited).
21) The Court has already observed that it has no jurisdiction to examine the compatibility with the Charter of national legislation falling outside the scope of EU law. On the other hand, if such legislation falls within the scope of EU law, the Court, when requested to give a preliminary ruling, must provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation is compatible with the fundamental rights the observance of which the Court ensures (see Case C‑617/10 Åkerberg Fransson  ECR, paragraph 19 and the case-law cited).
22) That definition of the scope of the fundamental rights of the European Union is borne out by the explanations relating to Article 51 of the Charter, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the purposes of interpreting the Charter (see, to that effect, Case C-279/09 DEB  ECR I-13849, paragraph 32). According to those explanations, the obligation to respect fundamental rights defined in the context of the European Union is binding upon the Member States only in respect of matters covered by EU law.
24) However, it should be borne in mind that the concept of ‘implementing Union law’, as referred to in Article 51 of the Charter, requires a certain degree of connection above and beyond the matters covered being closely related or one of those matters having an indirect impact on the other (see, to that effect, Case C-299/95 Kremzow  ECR I-2629, paragraph 16).
25) In order to determine whether national legislation involves the implementation of EU law for the purposes of Article 51 of the Charter, some of the points to be determined are whether that legislation is intended to implement a provision of EU law; the nature of that legislation and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; and also whether there are specific rules of EU law on the matter or capable of affecting it (see Case C-309/96 Annibaldi  ECR I-7493, paragraphs 21 to 23; Case C‑40/11 Iida  ECR, paragraph 79; and Case C‑87/12 Ymeraga and Others  ECR, paragraph 41).
29) In Annibaldi, cited in the explanations relating to Article 51 of the Charter, the Court held that the fact that national legislation is capable of indirectly affecting the operation of a common organisation of the agricultural markets cannot in itself constitute a sufficient connection between that legislation and EU law (Annibaldi, paragraph 22; see also Kremzow, paragraph 16).
33) It follows from all the foregoing that it has not been established that the Court has jurisdiction to interpret Article 17 of the Charter (see, to that effect, Case C-245/09 Omalet  ECR I-13771, paragraph 18; see also the orders in Case C-457/09 Chartry  ECR I-819, paragraphs 25 and 26; Case C‑134/12 Corpul Naţional al Poliţiştilor  ECR, paragraph 15; Case C‑498/12 Pedone  ECR, paragraph 15; and Case C‑371/13 SC Schuster & Co Ecologic  ECR, paragraph 18).