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EU Charter of Fundamental Rights and its use by Member States

At the end of 2014, the Charter of Fundamental Rights of the European Union celebrated its fifth anniversary. It entered into force as a legally binding document in December 2009. The Charter applies to the European Union (EU) itself and to its Member States when they act in the scope of EU law. Five years on, it is a well-recognised bill of rights that EU institutions draw upon extensively.

The Charter has a limited scope of application in national contexts, so it is less used at national level. Still, Member States occasionally refer to it in the legislative process and it is sometimes also referred to in parliamentary debates. Its most prominent use is at the Court of Justice of the European Union, with ever more court decisions relying on the Charter. National courts also make references to the Charter but not always with much relevance for the outcome. Awareness of the Charter remains, nonetheless, limited. Member States’ relevant policies hardly focus on increasing knowledge about it amongst practitioners or the general population.

FRA conclusions

At the end of 2014, the Charter had been in force for over five years, with the strong upward trend of references to the Charter in the Court of Justice of the European Union (CJEU) continuing.

  • In some cases, Member States’ high courts also turn to the Charter for guidance and inspiration, sometimes also in cases falling outside the scope of EU law and sometimes not using the full potential of the Charter. Court decisions handed down in 2014 confirm that the Charter plays a role in the cooperation between the CJEU and the national courts. In over a tenth of the cases where national courts ask the CJEU for advice, the Charter is explicitly used.
  • Given this situation, EU Member States should assess and address training needs among practising lawyers and in the judiciary. It is worth considering positive incentives for practitioners to participate in such training so that the relevant key actors are made aware of both the potential and the limitations of the Charter.

National courts frequently use the Charter in combination with other prominent human rights sources, such as national constitutional law or international law.

  • In half of the 2014 national court decisions that FRA collected and analysed, the Charter was used in combination with the European Convention on Human Rights (ECHR).
  • Based on this evidence, EU Member States should make sure that training on the Charter is not offered in isolation but embedded in the wider fundamental rights framework, including the ECHR and the case law of the European Court of Human Rights (ECtHR).

In only a very small proportion of the total decisions by national courts referring to the Charter is the CJEU asked for a preliminary ruling.

  • National judges are regularly left to their own devices when using the Charter, without having readily available means to easily access the experiences of judges from other EU Member States in this regard.
  • To foster a shared understanding and interpretation of the Charter, the EU and its Member States could pool forces to allow for increased levels of exchange between and among national judiciaries. Relevant instruments for this would be the extension of existing databases, such as Charterpedia, the extended use of the European Case Law Identifier (ECLI) and the establishing of regular transnational exchanges on the application of the Charter among judges, thereby also enhancing mutual trust.

The role of the Charter in the national legislative process depends on the respective procedural rules in place.

  • There is a diversity of existing procedures, practices and approaches on how to assess upcoming national legislation’s (de jure) compliance with and (de facto) impacts on fundamental rights. Evidence collected in 2014 shows that these rules not only differ between EU Member States, but may also differ depending on whether governments submitted or parliaments prepared draft legislation. Moreover, assessments of impact and legal scrutiny can be limited to the initial policy options and bills proposed, whereas later changes to those bills might not be subject to such checks.
  • Based on this variety of experiences, the EU and its Member States should use untapped potential for the exchange of promising practices and mutual learning with regard to Charter checks and Charter impact assessments. Building on earlier discussions in the Council Working Group dealing with fundamental rights (FREMP), FREMP could provide a forum for Member States and EU institutions to exchange experiences of the Charter, allow mutual learning and thereby contribute to making national and EU legislation more fundamental rights friendly.

The Charter was referred to in various 2014 fundamental rights policy documents at national level, but there appear to be hardly any Charter-specific policies aiming to strengthen knowledge and awareness of the Charter.

  • EU Member States could consider developing national policies for the implementation of the Charter, including awareness-raising campaigns, training of professionals and enhanced use of the Charter (and the corresponding CJEU case law) in legality checks and impact assessments in government services.

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