I. THE CHARTER AND THE PRINCIPLE OF ATTRIBUTION.

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1 THE NATIONAL APPLICATION OF THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EU: A SIMPLE TOOL FOR INTERPRETATION OF THE EFFECTIVENESS OF THE DIRECTIVES Augusto AGUILAR CALAHORRO 1 ABSTRACT: This paper seeks to analyse the essential problems in the application of the Charter of Fundamental Rights of the European Union since its entry into force in 2009, and like any analysis of rights it points to the question of its true effectiveness. The work focuses on the difficulties encountered by national judges in their internal application, difficulties derived from the interpretation of Article 51.1 of the Charter. For this purpose, it will examine whether the national ordinary judges are consistent with the criteria in the application of the Charter as established in the jurisprudence of the Court of Justice of the European Union ( the cases of Melloni, Åkerberg Fransson, Julián Hernández, Torralbo Marcos etc.). This will lead to two conclusions: first, the Charter is being used by the ordinary courts as a hermeneutical parameter for the distribution of normative competences between the States and the Union; secondly, the Charter has become an auxiliary mechanism in the hands of the judge in the application of the European Directives and the determination of their direct effectiveness. KEY WORDS: Charter of Fundamental Rights, application of European Law, principle of attribution of competence, direct effectiveness, directive, European judge. SUMMARY: I. THE CHARTER AND THE PRINCIPLE OF ATTRIBUTION. II. THE Charter OF FUNDAMENTAL RIGHTS IN THE INTERNAL ORDER. III. THE DEVELOPMENT OF THE DOCTRINE OF THE COURT OF JUSTICE ON THE WHEN TO APPLY UNION LAW OF ARTICLE 51.1 CFREU: THE APPLICABILITY TEST. 1. The invocation of the Charter. 2. The judge must not conduct an initial competency analysis. 3. The national act of enforcement or application must emanate directly from a European obligation. A. There must be a "connecting link" between an act of Union law and the national measure in question. B. There must be identity in the purpose pursued by the national act and the European norm. 4. The provision of the specific Directive should not allow the State a margin of appreciation. 5. Although the directive allows for a certain margin of discretion, the national act cannot undermine the primacy, effectiveness or unity of European law. IV. THE CORRECT APPLICATION OF THE TEST BY THE SPANISH ORDINARY JURISDICTION. V. CONCLUSIONS. I. THE CHARTER AND THE PRINCIPLE OF ATTRIBUTION. The Charter of Fundamental Rights of the European Union (CFREU) came into force on 1 December 2009 based on Article 6 of the Treaty of European Union (TEU). During its drafting process, the wide-ranging debate on its constitutional substance raised in the conventions gave rise to great hopes about its meaning for the nature of the European integration process. 2 Its proclamation in Nice was a major step forward in the material 1 Doctor and Assistant Professor of Constitutional Law, University of Granada. 2 CONV 607/03, CONTRIB 274, Annex I, Brussels, 11 March 2003: In the case of a document of such a fundamental nature, not only its legally binding nature but also its political presentation is essential: the reader of the Constitution expects to find at the beginning of the text, the fundamental rights and freedoms. Concealing the Charter of Fundamental Rights in a protocol would be contrary to the importance of such a document and the respect it deserves.

2 constitutionalization of the Union, 3 in the structure of the community of supranational law, now limited by a body of positivized rights and fundamental freedoms (Weiler: 2 000: 95), (Alonso García: 2002 : 105). 4 But its definitive inclusion in the constitutional Treaty was first never ocurred, then the entry into force of thetreaty of Lisbon was a setback then and now for the most optimistic doctrine, which came to label the Charter as the guest of stone 5 of the Treaties (Cruz Villalón: 2005: 185). The main object of criticism, which continues to this day, focuses on the so-called horizontal clauses established in the general provisions of Title VII of the Charter. These clauses deactivated, if not their substantial value, their formal force to bind both European and state public powers. The main obstacles to the effectiveness of the Charter, derived from the general provisions that govern its interpretation and application, are as follows: a) The incisive distinction between principles and rights. Fundamental rights as limits to the exercise of supranational public power are undermined by the difference between principles and rights set out in Article 52.5 CFREU. This difference was the result of the insistence of States such as the United Kingdom, Denmark or the Netherlands, opposed to the inclusion of social rights as provisions with real effectiveness that could be directly invoked before the courts. The opposition was based, as is usual in the debate on the rights of economic and social content, on the economic damage derived from its possible direct effectiveness; but essentially, it came from the problems resulting from the democratic constitutional deficiencies that have hovered over the 3 In reference to the materially constitutional dimension of the Treaties and the transformation of the Rule of Law at a supranational level, the reference to the Judgment of the Court of Justice of April 23, 1986, Parti écologiste, C-294/83, ECLI: EU C: 1986: 166 is classic. In this the Court of Justice of the Union (CJEU) made explicit its idea of the constitutionalization of the European order through the interpretation of the Treaties, declaring: The European Economic Community is a Community of Law, insofar as that neither its Member States nor its Institutions can escape control of the conformity of their acts with the fundamental constitutional charter that is the Treaty. And definitively in the Opinion of the Court of Justice of 14 December 1991, 1/91, ECLI: EU: C: 1991: 490: The EEC Treaty, even if it has been concluded in the form of an international agreement, does not cease to be the constitutional charter of a Community of Law. As Diez-Picazo (2002: 202) points out, the consideration of the European Union as a Community of Law involved equating the force of the founding treaties with the highest manifestation of the rule of law at the national level, that is, not only as a principle of legality but also as a principle of constitutionality. For all this I refer to De Witte (1999: 208). On the implications of the Charter for the construction of the supranational law community see Balaguer Callejón (2004a: 25-46), Rolla (2001: 113) and Cámara Villar (2005: 57). 4 Carrillo Salcedo (2001: 20) argues that this document facilitates the setting of criteria to assess the legitimacy of the actions of public authorities in the Union. Balaguer Callejón (2004b: 313) points out the importance of the Charter for the construction of a European legal language on the basis of a constitutional organization for the resolution of conflicts through legal techniques. 5 Cruz Villalón (2005: 185) criticized at that time that the introduction of the Charter into the European constitution was a process of juridification and constitutionalization much more apparent than real. Although this does not prevent the author from granting all the notoriety that the existence of a Charter of Fundamental Rights of the Union has: [i]n short, the European constitutional communion today finds a basic piece of its complex structure in a no less complex document presided over by a slightly equivocal title: 'Charter of Fundamental Rights of the European Union'. A legal norm endowed with the highest rank in the legal system of the Union. Cruz Villalón (2017: 85).

3 Union since its inception. 6 For advocates of the distinction between principles and rights, the social nature of certain provisions of the Charter entailed a necessary development on the part of the democratic state legislator (Lord Goldsmith: 2001: 1206). The essential difference, according to the Charter, is that principles must be observed, instead of respected (as applies to rights); they must be implemented through legislative or executive acts, so their effectiveness is mediated. The effectiveness of principles is limited for the courts only when it comes to the interpretation or revision of the acts of the Union that develop them without being able to operate as "immediate rights", but as an incentive for the development of positive actions of the institutions of the Union or of the authorities of the Member States. 7 It cannot be denied that this initial distinction between rights and principles is in accordance with the common constitutional traditions of the states (see, for example, Article 53.3 of the Spanish Constitution), 8 but it has an added problem. It is not clearly specified in the text or in the explanations that accompany the Charter which specific provisions are principles and which are rights. Only some examples are shown for illustrative purposes, noting further that in some provisions rights and principles can be found at the same time and, to a greater extent, that some provisions called principles may in fact be rights and vice versa. 9 The uncertainty about the principles, as the 6 For a summary of the shortcomings and progress in the process of integration of the European Union around the implementation of the democratic principle, I refer to Ridola (2005: 21) and Cassese (2002: 9). Advances in democracy should, however, be related to the debate on the concepts of sovereignty and legitimacy in Europe (Walker: 2008: 347), (Whal: 2006: 105), (Denninguer and Grimm: 2007: 20 ), (Kirchoff: 1999: 225), (MacCormick: 1999), issues settled (momentarily) by the German Federal Constitutional Court, (BVerfG, 2 BvE 2/08 of ) in the Lisbon Judgment: As long as the European competency order persists, organized according to the principle of singular and restricted attribution of competences in cooperative decision-making procedures, without prejudice to the state s responsibility for integration, and as long as a balance is maintained between the competences of the Union and state competences, European democracy cannot and does not require conformity in a way analogous to that of a State. On the contrary, the European Union has the possibility of seeking its own channels of democratic complement through new and additional formulas of transparent or participatory political decision-making procedures. See Kirchoff (1999: 225). On the democratic implications regarding the protection of fundamental rights that is taken for granted here, see Pérez Luño (2007: 495). And especially Pernice (2015: 546) who summarizes the question of the nature of the Union as a composed constitutional system founded on the will of the citizens, understanding that this will is built from the bottom up-, because citizens, through the possibility of invoking norms of European law directly before the ordinary jurisdiction in defence of subjective claims, become the guardians of the Treaties and European obligations, democratizing the Union from the procedure of guarantee of rights of the citizens. It is, as Leanerts states (2012: 376) from the fear that the States would make of the Charter a federalising device. 7 See the explanations about Article 52.5 of the Charter. 8 A clarifying analysis of the dogmatic and comparative evolution of social rights as guiding principles in Prado Fernandez de Sanmanmed (2001; 269). 9 See the explanations that accompany the Charter, specifically, the explanation on Article 52.5 whose last paragraph states: [an] illustrative title, examples of principles recognized by the Charter include, among others, Articles 25, 26 and 37. In certain cases, an Article of the Charter may include elements that derive from a right and from a principle, for example, Articles 23, 33 and 34. Hofmann and Mihaescu (2013: 73) express the complexity surrounding the right to good administration where a third element appears in dispute: the general principles of Union law and the non-hierarchical relationship between rights, principles and general principles. For Lenaerts (2012: 402) (...) the scope of application of the Charter and that of general principles of EU law should overlap. A dual regime should be avoided, since it would give rise to arbitrary divergences as to the current quality and potency of those rights.

4 doctrine points out, works to the detriment of the effectiveness of all the rights of the Charter (Prechal: 2004: 178), (Krommendijk: 2015: 321). b) The principle of attribution of powers as a limit to the effectiveness of rights. Secondly, throughout the Treaty of Lisbon and the Charter itself, it is repeated as a mantra that it does not extend the scope of application of Union law beyond what is attributed, nor does it create any new competence or mission for the Union, or modify the competencies and missions defined in the treaties (51.2 CFREU and 6.3 TEU). 10 This means that the positivization of the Charter is embedded in the distribution of competencies predetermined in the treaties. As is proper to their nature, the fundamental rights of the Charter do not reflect by themselves, the form of exercise of public power, its contours and limits, in relation to citizens. In order to know the true effectiveness and scope of the rights of the Charter (that is to say, what exercise of power they limit and to what point), the provisions on the division of powers of the text of the treaties of the Union must be met. In my opinion, this entails further consequences that can only be pointed out here. On the one hand, in spite of the advance in the concretion of the principle of attribution of competence in the Treaty of Lisbon, the finalist character of the competences of the Union continues to complicate the comprehension of its scope, and this results in the scope of application of the rights of the Charter. 11 As indicated in the Treaties (Article 5.3 TEU) and the Charter itself, the scope of the non-exclusive competences of the Union should be placed in the dynamic context of the principle of subsidiarity (Lenaerts: 2012: 377) - with the complexity that this entails, given the procedure of the Protocols annexed to the Treaty-, and even within the exclusive competence of the Union, it must always attend to the eventual dialogue between constitutional courts in its version of ultra vires review, which may condition the initial interpretation of the Court of Justice of the European Union (CJ) or the interpretative uniformity of each provision. 12 As Cruz Villalón (2005: 155) specified at the time, the Charter thus becomes a legally transparent area, so to speak, through which the contents that truly matter in terms of rights and freedoms circulate freely. The conclusion of all this is that the Charter is a 10 As explained by the CFREU, it is a matter of explicitly mentioning what logically is inferred from the principle of subsidiarity and from the fact that the Union only has attribution powers. The fundamental rights guaranteed in the Union are only effective within the framework of the competences that define the Treaties. Consequently, the obligation of the institutions of the Union, in accordance with the second sentence of paragraph 1, to promote the principles set out in the Charter can only occur within the limits of the aforementioned competences. 11 See Opinion of the Court of Justice of 28 March 1996, 2/94, EU: C: 1996: 140, paragraph 25: the Community normally acts on the basis of specific competences which, as the Court has held, should not necessarily result expressly from specific provisions of the Treaty, but can also be implicitly derived from such provisions. The question relating to Article 352 of the Treaty on the Functioning of the European Union will always be problematic. As Govaere (2016: 3) points out: Especially since the Lisbon Treaty is therefore no longer sufficient to determine whether competence is conferred to the Union by the Treaties in any given case. The renewed line of questioning after the Lisbon Treaty is first of all who may determine whether competence has been transferred to the Union. The first section will therefore address the issue of whether conferral of competence is to give or to grab. 12 See on the publication of decisions Melloni and Åkerberg, the Editorial of the European Constitutional Law Review (2012: 9: 172): Nevertheless, even if it is not certain where Union law begins and ends at this moment, it is certain that its scope will expand with the use that the Union legislature makes of its new competences, especially in the field of home affairs and justice, domains in which fundamental rights are perhaps even more fundamental than in other domains.

5 derivative document, that reflects', without its own light, which merely reflects or lets pass the light projected by other stars of the firmament of rights. On the other hand, situations arise in which the performance of institutions obviates the limit of rights on the false ground of their lack of competence in the matter. See, for example, the judgment of the Court of Justice in the accumulated cases Ledra Advertising. In this decision, the European Court admitted a cassation appeal against the initial decision of the General Court stating that the Charter is not applicable to the actions of the Commission and the ECB in the framework of the European Stability Mechanism due to its lack of competence in that framework, external to the European system. 13 This decision has been amended but warns of the problems of absolutely linking rights to the competences of the Treaties. c) The scope of application of the Charter. What the previous provisions make clear is that the atavistic fear considering the CFREU as a federalizing device has converted the principle of attribution of competence (Article 5 TEU) into the cornerstone of the effectiveness of the provisions of the Charter (Lenaerts: 2012: 376). Article 51.1 of the CFREU ends up making the vicissitudes of the debate on the nature of the Charter and the powers attributed to the visible institutions. According to this Article the provisions of the present Charter are addressed to the institutions, organs and agencies of the Union, respecting the principle of subsidiarity, as well as to the member states only when they apply the law of the Union. 14 The Charter limits the public power of the institutions of the Union, but also of the states when they act as mere agents of the Union. This statement presents the "bifunctionality" of the Charter (Cruz Villalón: 2017: 87), which is, at the same time that of the Union and of the member states. This is where the principle of competence attribution clause plays with all its force. The CFREU, with the same legal value as the Treaties (Article 6.1 TEU) involves the same commitment for the states as the original right: it limits and obliges the action of these within the division of powers between the Union and the member states. Here the Charter operates in a space previously occupied by state constitutions which, due to the autonomous and dynamic nature of the European order, raises all the problems of its effectiveness within the framework of relations between legal orders. 15 Here the real doubts and complexity about the effectiveness of CFREU begin. The problems regarding the ability of the Charter to limit public power are centered precisely in that space in which the public authorities of the States act and, therefore, it must be determined whether they do so from the legal basis of the Treaties or from their own constitutions. In the first case, the limits to the performance of the power will be determined by the content of the rights of the Charter. The second problem arises for the 13 And as can be observed, although the Member States do not apply Union Law in the framework of the European Stability Mechanism, as the Charter is not destined to them in such a sphere, the Charter is directed to the Union s institutions when they act outside its legal framework. Thus, the Commission is obliged to watch over them to ensure the Memorandum is compatible with the fundamental rights guaranteed by the Charter. Judgment of the CJ 20 September 2016, Ledra advertising Company y BCE, C-8/15 P ac-10/15p,ecli:eu:c:2016:701 Para Italics added. 15 This allows reference again to Augusto Aguilar Calahorro, La dimensión constitucional del principio de primacía, Thomson Reuters- Aranzadi, Madrid, 2015.

6 content of the fundamental rights of the Constitution, and these may not coincide with those. 16 Therefore, it is essential to delimit the competence framework of the Union and the States before granting either one type of effectiveness or another to the Charter. This framework does nothing more than expand the problems related to the competence area of the Union. It is essential that in the determination of the competence zone of the states and the Union, what are at stake in this case are fundamental rights. The definition of Article 51.1 CFREU refers directly to the previous debate on the limits and counter-limits that the signing of treaties entails. 17 Therefore, Article 51.1 CFREU is not enough to limit the effectiveness of the Charter, but must be inferred on a case by case basis inserted in the constant dialogue between courts, as will be seen below. To conclude this first section, it is important to highlight an essential idea among the above. The effectiveness of the CFREU turns on the previous idea of attribution of competence. The effectiveness of the Charter's rights as limits to power is at the epicenter of the debate on the attribution of powers to the Union by the states, and, consequently, on what is attributed and attributable, a debate connected with the eternal kompetenz-kompetenz and the limits of national identities. What is on the table in the application of the Charter is, in the words of the Spanish Constitutional Court (SCC), the guarantee of the existence of states and their basic structures, as well as their values, principles and fundamental rights, which in no case may become unrecognizable after the phenomenon of the transfer of the exercise of powers to the supra-state organization 18. The Charter of Fundamental Rights, instead of representing a limitation and obligation for public power vis-à-vis citizens, constitutes a debate on the basis of the Union's own power. Indeed, the application of the Charter and its effectiveness lie in the very reason for the exercise of the power of the Union, or in other words, in the legitimacy of the European Union and its law. For this reason, it is not surprising that the Charter has become, 16 See Judgments of the Court of Justice of the European Union of 26 June 1997, C-368/95, case Familiapress case, ECLI: EU: C: 1997: 325; of 12 June 2003, C-112/00, Case Schmidberger, ECLI: EU: C: 2003: 333; of 11 December 2007, C-438/05, case Viking Line, ECLI: EU: C: 2007: 772. And here, in the so-called derogation situation (Lenaerts: 2012: 383) the doctrine is divided between two basilar perspectives (Editorial Eu Const, 2013: 170): the universalist perspective that preaches the unification of shared values through the jurisdictional procedure ( Jacobs: 2001: 331), (Cartabia: 2009: 19), (Pernice: 2015: 541), (Cruz Villalón: 2017: 90), and therefore the need for the content of the rights of the Charter to coincide with that of state constitutions through minimum guarantees; and the historicist, or particularist, which proclaims the different efficacy and scope of the content of rights in the different levels of multilevel protection according to the particular social choices of each State (see the Conclusions of Advocate General Bott of October 2, 2012, Melloni, C- 399/11, paragraph 109, ECLI: EU: C: 2012: The issue is complicated, for example, taking into account the jurisprudence of the Court of Justice on the general principles of Union law, in which it has been pointed out that any measure limiting the fundamental freedoms of the Treaties constitutes an act of application of the European law and must comply with the fundamental rights of the Union, so it turns the issue into a case by case matter. See Judgment of the Court of Justice of 30 April 2014, Pfleger, C-390/12, ECLI: EU: C: 2014: 281 or Judgment of the Court of Justice of 5 June 2018, Coman, C-673 / 16, ECLI: EU: 2018: 385. See recently Hong: 2016: 549 or Canor: 2013: Declaration of the Spanish Constitutional Court 1/2004, of December 13, ratio decidendi (FJ) (FJ3. Specified previously in FJ2 of the same: those material limits, not expressly included in the constitutional provision, but implicitly derived from the Constitution and the essential meaning of the precept, are translated into respect for the sovereignty of the state, our basic constitutional structures and the system of values and fundamental principles enshrined in our Constitution, in which fundamental rights acquire their own substantivity (Article 10.1 SC).

7 rather than a limit to the exercise of power, an instrument for legitimizing derived rights. Moving forward to the conclusions of this work, we would assert the Charter has become, in judicial practice, a tool for interpreting the principle of attribution of powers and the margin of discretion of states in the European sphere. Something that adopts a special relevance in the scope of the directive: that is, the rights of the Charter, in the Spanish state, are essentially a hermeneutic tool on the meaning and scope of European directives. II. THE CHARTER OF FUNDAMENTAL RIGHTS IN THE INTERNAL LEGAL ORDER. Since the judgment of the Spanish Constitutional Court (STC) 28/1991, 14 February, the highest Court has been very cautious about the control of rights in the European sphere. To give internal effectiveness to the principle of primacy, 19 it developed the doctrine of the infra-constitutional nature of the normative conflict between national acts and European derived law. According to settled doctrine it is not for the Constitutional Court to control the suitability of the activity of national public authorities to European Community law. This control falls to the organs of the ordinary jurisdiction, as applications that are of the community legal order and, where appropriate, to the Court of Justice of the European Communities through the appeal of non-compliance. 20 In this way, the Constitutional Court (CC) has systematically denied its competence to decide on possible violations of fundamental rights within the framework of European law, whether derived rights or the action of the national public powers in application or enforcement of European law. On rare occasions, it has admitted legal protection of individual constitutional rights by way of appeal to the Constitutional Court in the matter that it has been limited to controlling, from the sharing of competences through the correct approach of the preliminary question by the national judges 21 or its submission to the jurisprudence of the CJEU from the dimension of the constitutional right to effective judicial protection. 22 The CC has made a concrete pronouncement on Article 51 CFREU on at least two noteworthy occasions: in Declaration 1/2004 and in the Melloni case. In the CC referred specifically to the limitation that the Charter makes on 19.Judgment of the Court of Justice of 11 July1989, Ford España, C170/88, ECLI:EU:C:1989: Judgments of the Constitutional Court 372/1993, 13 December FJ 8; 265/ /1994, 3 October, FJ 2; 147/1996, 19September, FJ. 3; 45/1996, 25 March, FJ 5; 202/1996, 9 December, FJ Specifically the Constitutional Court Judgments 27/2013, 11 February and 58/2004, 19 April. Equally Sentences of the Constitutional Court 194/2006, 19 June, 78/2010, 20 October, 145/2012, 2 July and 27/2013, 11 February. The Judgment of the Constitutional Court 194/ June confirmed this idea,suggesting that the role of the CC is, to monitor whether the ordinary judge adapts or not to the system legally provided for the control of the laws (...) and not (...) whether there was or was not the alleged contradiction between the internal regulations and the community law that justified the non-application of the former for its benefit, but only and exclusively, if the Spanish judge has adopted his decision not to apply it within its jurisdiction, that is, in due process with all the guarantees. 22 The Constitutional Court Judgment 145/2012, 2 July, case Iberdrola 23 See the Declaration of the Constitutional Court (DTC) 1/2004, 13 December, para. 6

8 connecting the judge to the cases in which they apply Union Law. In its response, the CC distinguished two possible intensities in the application of the Charter: 24 - first, the judge must grant direct effectiveness and primacy to the precepts of the Charter over domestic law in a case in which Union Law is applied, pursuant to article 93 of the Spanish Constitution, the article by which Spain ratified the original treaties of the European Union and adopted the acquis communautaire. Second, when judges do not strictly apply Union law in the specific case, they may also grant hermeneutic value to the Charter by virtue of the provisions of Article 10.2 SC, 25 setting it as a guideline for the interpretation of the rules regarding fundamental rights and liberties that the Constitution recognizes 26 In relation to the possible conflict between the internal guarantee and that of the Charter, the CC was brief: it is not possible to deal in the abstract with future conflicts in specific cases, but it is clearly noted that the Charter is conceived, in any case, as a guarantee of minimums, on which the content of each right and freedom can be developed until reaching the content density ensured in each case by internal law. 27 And in the event that a hypothetical conflict could occur the national authorities [do not] cease to be subject to the internal order when they act by fulfilling acquired obligations [for the ratification of the European Treaties...], because also in these cases they are still public powers subject to the Constitution. 28 Therefore, the application by the national judge, as European judge, of the fundamental rights of the Charter will have to entail, almost without exception, the simultaneous application of the correlative fundamental national right. 29 That is to say, the CC has determined that, on the one hand, the level of guarantee will depend on the application of the CFREU within the meaning of Article 93, SC or Article 10.2 SC, having primacy over internal law and having a hermeneutical character in the second case. But since the Charter is a guarantee of minimums; on the other hand, in any case the constitutional parameter should always be applied, at least as a minimum 24 This double dimension of the Charter has been confirmed by Organic Law 1/2008, of 30 July, which authorizes the ratification by Spain of the Treaty of Lisbon. Through Article 93 SC, the CFREU is introduced into the Spanish legal system, with the special effectiveness that this provision dispenses with application primacy of European law in the domestic sphere:. At the same time, the organic law preaches the linking of the Charter with Article 10.2 SC. 25 In accordance with Article 10.2 of the SC: "The rules relating to fundamental rights and freedoms recognized by the Constitution shall be interpreted in accordance with the Universal Declaration of Human Rights and international treaties and agreements on the same matters ratified by Spain. 26 Declaration of the Constitutional Court 1/2004, of December 13, FJ 7: Therefore, the doubt that can be examined here is that relating to the possible contradiction of the Charter of rights with the Constitution that, by virtue of the provisions of Article 10.2 SC, should be erected, after its integration into the Spanish legal system, as a guideline for the interpretation of the rules relating to fundamental rights and freedoms recognized by the Constitution'; this, of course, without prejudice to its value as Union law, integrated into our Article 93 SC. 27 Ibid. 28 See the Judgment of the Constitutional Court 64/1991, APESCO, 22 March 1991, paragraph 8 of the ratio decidendi. 29 Declaration of Constitutional Court1/2004, 13 December, FJ 7.

9 However, in the first preliminary question referred by the CC to the CJEU, 30 in the first concrete conflict between intensities of protection of rights in the well-known Melloni case, 31 the court denied this doctrine: if it is generally authorized that a Member State applies the standard of protection of fundamental rights guaranteed by its constitution when it is higher than that derived from the Charter (...) it [would] undermine the principle of primacy of Union law, as it would allow a member state to put obstacles to the application of acts of Union law fully in accordance with the Charter, if they do not respect the fundamental rights guaranteed by the Constitution of the fundamental rights guaranteed by that State s Constitution. 32 On the very same day, the CJ ruled in the Åkerberg Fransson case, clarifying this idea. 33 The application of European law by national public authorities is not limited to mere administrative application, 34 but also to the normative development of European standards for its application. And here the different shades of Article 51.1 CFREU will begin to unfold, the various colours of the linking of the national public powers to the Charter when they apply Union Law. The CJEU affirms, 30 Sentence of the Constitutional Court 86/2011, 9 June. 31 Sentence of the CJ, 26 February2013, Melloni, C-399/11,ECLI:EU:C: =! : Ibid., Paragraph 58. More clearly in the Judgment of the Court of Justice of 26 February 2013, Åkerberg Fransson, C- 617/10, ECLI: EU: C: 2013: 105, paragraph 45: As regards, secondly, the consequences that a national court must draw in the event of a conflict between the provisions of its national law and the rights guaranteed by the Charter, according to settled case-law, the national court in charge of applying the provisions of European Union law, within the framework of its competence is obliged to guarantee the full effectiveness of these norms, leaving unofficially, if necessary, any contrary provision of national legislation, even later, without requesting or waiting for its prior repeal by the legislator or by any other constitutional procedure. 33 A nuance that clearly will have a pacifying character. The question of the euro-order required a clear uniform orientation given that there were several decisions of national courts which set out the constitutional doubts raised by the harmonization of the 2002 framework decision of the criminal sphere and its contradictions with the principles of equality and criminal legality. The conclusions of Advocate- General Dámaso Ruiz-Jarabo Colomer of 12 September 2006 can be seen in Leden van de Ministerraad, C-303/05, ECLI: EU: C: 2006: 552, points 4 to 8: The solution to this dilemma requires facing, without hesitation, the role of fundamental rights in a sector as sensitive as that of police and judicial cooperation in criminal matters, once the Charter of Fundamental Rights of the European Union has been proclaimed. The challenge does not seem trivial, since in some Member States the transposition of the Framework Decision has been out of the question for violating citizen guarantees. And the decisions of European courts such as: Trybunał Konstytucyjny (Constitutional Court of Poland), judgment of April 27, 2005, (P 1/05). German Bundesverfassungsgericht (Federal Constitutional Court), judgment 18 July 2005, 2 BvR 2236/04. Judgment of the Areios Pagos (Greek Court of Cassation) of 20 December 2005 (case 2483/2005). Supreme Court of Cyprus, judgment of November 7, 2005, case 294/2005. Ústavní soud (Czech Constitutional Court), Judgment of 3 May 2006, (case 66/04). 34 See, too, the Judgment of the Court of Justice of 21 December, 2011, N.S. and others, C- 411/10, ECLI: EU: 2011: 865, in relation to the discretion left to the states by European regulations; Judgment of the Court of Justice of 16 May 2017, Berlioz Investment Fund, C-682/15, ECLI: EU: 2017: 373, on the establishment of sanctioning measures as measures for the application of a directive; and the Judgment of 13 June 2017, Florescu et al., C-258/14, ECLI: EU: C: 2017: 448.

10 in a situation in which the action of the Member States is not totally determined by Union law, the national authorities and courts are still entitled to apply national standards for the protection of fundamental rights, provided that this application does not affect the level of protection provided for by the Charter, as interpreted by the Court of Justice, nor the primacy, unity and effectiveness of Union law. 35 That is to say, when European law acts with uniform force and occupies all the normative space, the level of guarantee of rights will be exclusively that of the Charter, which, if inferior to that of national constitutions, should be applied with primacy. If instead, European law allows a margin of discretion to the states for the development of European law then they could impose the highest level of guarantees of their constitutions (Sarmiento: 2013: 1267), (Carmona Contreras: 2016: 20). There are two immediate conclusions of this dialogue between the courts: 36 on the one hand, the CC will rethink its 2004 doctrine on the effectiveness of the Charter in the domestic sphere, tending to generalize its mere hermeneutic efficacy -Article10.2 SCagainst its primacy -Article. 93 SC-; and on the other hand, the consequences on the effectiveness of the Charter will focus the debate and its application around the question of the direct effectiveness of the directives and the margins for their transposition. A. The more radical attitude of the CJEU will cause the CC to withdraw immediately to a bellicose position in relation to European law, towards the merely hermeneutical value of the CFREU, dispensing with its inclusion through Article 93 SC and the Organic Law 1 / 2008 of 30 July. The response to the Melloni case granted by the CJEU has undoubtedly led to a radicalization of the CC's proposals about the Charter. In the judgment in which the CC definitively resolves the matter as an a quo body, 37 it has shown its total dissatisfaction with the approaches of the CJEU. Thus, not only has it recalled (unnecessarily but following in the wake of the German Bundesverfassungsgericht) the doctrine of counter-limits (Barile: 1973: 2416), 38 that is, that the CC is the ultimate guarantor of fundamental rights in Spain and could arrogate to itself in extremis the control of validity and application of European derived law 35 Judgment of the CJ of 26 February 2013, Åkerberg Fransson, C- 617/10, ECLI:EU:C:2013:105, paragraph Dialogue in which the Judgment of the German Constitutional Court must be taken into account, BVerfG December 15, 2015, 2 BvR 2735/14, Solange III; and its response in the Judgment of the Court of Justice of April 5, 2016, Aranyosi and Căldăraru, C-404/15 and 659/15 PPU, ECLI: EU: C: 2016: 198, paragraph 194, in which it is admitted that the framework decision 2009/299 / JHA of the Council of 26 February 2009, allows the judicial enforcement authority to verify, specifically and precisely, if there are serious and well-founded reasons to believe that the person subject to a European Union arrest warrant issued for the purpose of criminal proceedings or the execution of a custodial sentence shall, due to the conditions of detention in that Member State, pose a real risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter of Human Rights of the European Union, if delivered to that Member State and for this purpose may postpone its decision on the delivery of the person concerned until it obtains the additional information and if the existence of that risk cannot be excluded within a reasonable period of time, the aforementioned authority will have to decide whether to proceed with the delivery procedure. 37 The case finally resolved by the judgment of the constitutional Court26/2014, 13 February For its definition, constitutional problems and an analysis of the counter-limits in the different states of the Union, I refer to Celoto and Groppi: 2005: 287. The Spanish counter-limits were formalized in the respect for the basic national constitutional structures among which fundamental rights are found and were expressed in the Constitutional Court's Declaration 1/2004, of 13 December, FJ 3, and now again in the FJ 3 of the Judgment of the Constitutional Court 26/2014, of 13 February.

11 internally; rather, it has finally opted, at its own risk, to grant the Charter a merely hermeneutical nature ex art SC in the specific case, 39 equating the CFREU with any international treaty. In this sense, not even the execution of a euro-order (based on the framework decision 2009/299 / JAI) is sufficient reason for the CC to apply the Charter as a single parameter of guarantee of rights, to disregard the constitutional guarantee by virtue of European primacy. The constitutional judge seems exempt from direct effectiveness and the primacy of the Charter when applying Union Law. 40 The CC will always use the Charter with a mere hermeneutic value, integrating it internally through Article 10.2 SC 41 since the Charter and its primacy are aimed at the selection of the rule applicable to the case that corresponds exclusively to the national judge. B. The debate on the effectiveness of the Charter, apart from other issues such as the level of guarantees applicable, will refocus on the principle of attribution of competences. Specifically, in the wake of the Åkerberg Fransson decision, the margin of discretion left to the states for the transposition of European directives (or framework decisions adopted in criminal matters before the entry into force of the Lisbon Treaty) will be the essential context in which the debate on the effectiveness of the Charter and its application will be developed This will lead to the issue of the limitation of power - characteristic of the charters of rights, its constitutional political dimension (due to its legitimizing character of Law- in a technical legal issue about the precision, clarity and unconditionality of the terms of the directives and derivative law in general. That is, the Charter will be used by the Spanish ordinary jurisdiction as a parameter of interpretation of the directives. Two reasons can justify this statement: first, that the conforming interpretation will be the general principle to be applied to avoid conflict between levels of guarantee, the most immediate solution to the conflict over the attribution of powers to the Union; and second, because the direct application of the Charter or a higher level of guarantees by the State will depend on the margin of appreciation left to the state in the derived right (framework or directive decision). Not in vain has the CJEU specified that certain acts such as directives must necessarily be interpreted in the light of the fundamental rights of the Charter In particular, the TC points to FJ. 4: "the control canon that we must apply to prosecute the constitutionality of (...) [the euro-order] must be integrated by international treaties and agreements on the protection of fundamental rights and public freedoms ratified by Spain. Among these treaties we find both the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the Charter of Fundamental Rights of the European Union, which are constituted, together with the interpretation that they carry out the guarantee bodies established by these same treaties and international agreements, in essential elements when interpreting the absolute content of the right recognized in Art SC ; a statement that it makes after the CJ points out that the Melloni case falls within the scope of "application of European law. 40 Although we could say that the CC disobeys the Judgment of the CJ the sure thing is that finally it fulfills its postulates and decides the constitutionality of the Euro-order, that it does specify that it is a voluntary" change in its own doctrine. See FJ 4 of STC 26/2014: Thus we must affirm now, reviewing, therefore, the doctrine established from STC 91/ See, for example, the concurring individual opinion of Judge Adela Asúa Batarrita to the Melloni Constitutional Court Judgment: "However, the Judgment approved by the majority [...] is aligned with our previous jurisprudence, which had reiterated that the Community law does not integrate the constitutionality canon, that this Court does not have as its mission to guarantee the application of Community law, and that Community law would only be relevant from the perspective of Article 10.2 SC, that is, in relation to the interpretation of the scope of fundamental constitution 42 See in particular the judgment of the CJ of 13 May 2014, Google Spain y Google, C-131/12, ECLI:EU:C.214:317m section 68 and ff.

12 In short, the attitude of the CJEU seems to have worked to the detriment of the value of the Charter and its effectiveness. By placing the core of the question, now, in the greater or lesser discretion left to the state for the development and implementation of European derived law, the ratio decidendi on the application of the CFREU will be found in the classic debate on the effectiveness of directives (clarity, precision and unconditionality, horizontal efficacy, exclusionary effects, triangular relations, possibility of invocation. etc In Spanish ordinary jurisprudence it is observed, therefore, that the core of the decision on the application of the Charter to a specific case is found in the analysis of the literal text of the directives, in which the Charter operates as a mere tool of interpretive principles. At the same time, the withdrawal of the CC after Melloni will be the definitive incentive for ordinary judges to 'read' the Charter with a merely hermeneutical value, and not with the same legal value as the supranational Treaties. III. THE DEVELOPMENT OF THE DOCTRINE OF THE COURT OF JUSTICE ON THE WHEN TO APPLY THE UNION LAW OF ARTICLE 51.1 CFREU: THE APPLICABILITY TEST. From the judgments in the cases of Melloni, Åkerberg Fransson, Julián Hernández 43 and Torralbo Marcos, 44 among others, a scheme can be drawn up about the Charter s applicability. We have tried to carry out what we could call the test of application of the Charter. Let us summarize this test through the steps that the judge should take to certify whether he is applying European law and, therefore, subject to the protection level of the Charter, or on the contrary, he is dealing with an exclusively domestic matter. In putting forward a first conclusion, it will be observed that in this test the CJEU finally allows and almost adopts the solution of using the Charter as a tool for interpreting the space occupied by derivative law, instead of observing it as a canon of validity and a limit to the action of the supranational power in its relationship with citizens The invocation of the Charter. 43 Judgment of the CJ 10 July 2014, Julián Hernández, C-198/13, ECLI:EU:C:2014: Judgment of the CJ 27 March 2014, Torralbo Marcos, C- 265/13, ECLI:EU:C:2014: Although the Judgment of the Court of Justice of 8 April 2014, Digital Rights Ireland, C-293/12, ECLI: EU: C: 2014: 238 should be related with the aforementioned Judgment of the Court of Justice of 13 May 2014, Google Spain y Google, C-131/12, ECLI: EU: C: 214: 317. However, on close consideration, in the first case the CJEU states in paragraphs 53 and 54: In this regard, it must be remembered that (...) the express obligation established in Article 8, paragraph 1, of the Charter, has a special importance for the right to respect for privacy enshrined in Article 7 of this Charter. Therefore, the regulations of the Union in question must establish clear and precise rules that regulate the scope and application of the measure in question and establish minimum requirements so that the persons whose data have been preserved have sufficient guarantees that allow their personal data to be effectively protected (...) "; so that, in the control of validity, the CJEU is only really controlling the margin left to the European legislator to develop the guarantees of a right by means of a directive. While in the second case, Google Spain case, the CJEU refers to the need to interpret the directives in light of the Charter. That is why we could say that the CJEU exempts, in the last instance, fundamental rights such as the protection of privacy or data protection from direct effectiveness, in all cases requiring the normative development of law and, therefore, focusing the force of application of the Charter in the mediate efficiency provided by the development legislation.

13 The beginning of the application of the Charter by the European judge arises with the key moment of the invocation of the right by individuals. However, the mere invocation of a right in the Charter cannot by itself ground its applicability. 46 Moreover, not only is it irrelevant that the individual has invoked the Charter directly before the judge, but it also requires that the purpose of the main proceedings be related to the interpretation or application of a rule of Union law other than that contained in the Charter. 47 It is equally irrelevant whether a direct invocation of national or European law is made. The application of EU law must be understood as the moment in which the public authorities act as mere agents of application as well as the moment in which they incorporate the Community regulations, adopting internal rules required by European law (De Witte: 1999: 859 ). The nature of the national judge as a European judge requires that he or she be linked in the same territorial and temporal scope by two integrated autonomous systems with different validity parameters and efficiency criteria of their own (Fernández Segado: 2005: 57). Therefore, the application of the Charter does not depend, in reality, on whether the individual directly grounds a subjective claim on a provision of the Charter or on European Law, for the test of applicability this is not essential. The judge can (and must) officially carry out a community control of the invoked norms, even though it is a purely national matter, at which time the Charter can enter into ex-officio operation. 48 This is where the national judge 49 exercises his role as a European judge subject to the principles of interpretation and effectiveness of one or other legal system in the same field of personal, temporal and territorial validity. His or her work, moreover, is not to control the validity of the rules of one or the other legal order, but to decide which provisions are applicable to the specific case by application principles (primacy or hierarchy depending on the case) but never judging by motu proprio validity of either, for which there are bodies that monopolize this function. 50 Therefore, really the claim of individuals before the judge, their confidence in the direct effectiveness of European provisions, does not in itself trigger the application of the 46 Judgment of the Court of Justice of 27 March 2014, Torralbo Marcos, C-265/13, ECLI: EU: C: 2014: 187, paragraph 33: When a legal situation does not fall within the scope of application of the Law of the Union, the Court of Justice does not have jurisdiction to hear it and the provisions of the Charter that are eventually invoked cannot support such jurisdiction on their own paragraph 33. See, in this respect, the Court of Justice Åkerberg Fransson, cit.., paragraph 22, or judgment of the Court of Justice of 1 December 2016, Daouidi, C- 395/15, ECLI: EU: C: 2016: Judgment of the CJ Torralbo Marcos, loc. cit. paragraph 33. Judgment of the CJ 6 March 2014, Siragusa, C-206/13, ECLI:EU:C:2014:126, paragraph Case of control abusive nature of clauses in a contract in defence of consumers. For all these I refer to the Judgment of the Court of 14 March 2013, Aziz, C-415/11, ECLI:EU:C:2013: We take it for granted, when referring to the national judge as an enforcement agent of European law, which is understood to be public administration in a broad sense, whose connection to the principle of direct effectiveness and primacy is ensured - Judgment of the Court of, 22 June 1989, Fratelli Costanzo, C-193/88, ECLI: EU: C: 1989: 256- but where the final problem will remain in the hands of the contentious judge. 50 Regarding the lack of powers of the national judge to carry out a validity control of European secondary law, I refer to the structural decision of the Judgment of the Court of Justice of 22 October 1987, Foto-Frost, C-314/85, ECLI: EU: C: 1987: 452. On the state of the issue of the double jeopardy in Spain and the consequences of the double imposition of respect for the Spanish judges of the national Constitution and the Treaties, I refer to the Constitutional Court Sentence of 4 October 2016, 168 / 2016, unconstitutionality question