UNIVERSITY OF BUCHAREST FACULTY OF LAW DOCTORAL SCHOOL. PhD THESIS

UNIVERSITY OF BUCHAREST FACULTY OF LAW DOCTORAL SCHOOL PhD THESIS THE IMPACT OF THE ENTRY INTO FORCE OF THE CHARTER OF FUNDAMENTAL RIGHTS ON THE EU SYSTEM OF HUMAN RIGHTS PROTECTION - SUMMARY - PhD coordinator: PROF. UNIV. DR. ELENA SIMINA TĂNĂSESCU PhD student: MIHAELA VRABIE Bucharest 2015

GENERAl ASPECTS REGARDING THE RESEARCH STUDY Key words: Treaty of Lisbon; EU Charter of Fundamental Rights; protection of fundamental rights; convergence of standards of fundamental rights protection; scope of the EU Charter of Fundamental Rights; the binding force of the EU Charter of Fundamental Rights; normative convergence; judicial convergence. 1. The actuality of the research subject The Treaty of Lisbon, which entered into force on the 1st of December 2009, represents a structural reform of the EU legal order, through the legislative changes brought to the EU primary law. The Treaty of Lisbon introduces, also, important legislative changes to the legal framework governing the protection of fundamental rights and freedoms in the EU. Among these, the most important changes relate to the express recognition of the binding legal force of the EU Charter of Fundamental Rights, the introduction of the EU Charter of Fundamental Rights into EU primary law and the establishment of the possibility for the EU to adhere to the European Convention on Human Rights. As a consequence, following the entry into force of the EU Charter of Fundamental Rights, starting from 1 st of December 2009, all institutions, bodies and agencies of the EU, as well as all Member States of the EU, when implementing EU law, are required to respect and implement the EU Charter of Fundamental Rights, in the same manner in which they must respect and implement the provisions of the EU Treaties. The existence of a new legally binding normative act has produced important consequences within the EU system of fundamental rights protection, both on the legislative level and on the judicial level. At the legislative level, the introduction of the EU Charter of Fundamental Rights in the EU primary law has reshaped the legal framework governing the protection of fundamental rights in the EU, by adding a new normative source, specific to the EU, which governs the protection of fundamental rights in the EU, together with the national law of the Member States, the provisions of the European Convention on Human Rights and other

international treaties ratified by the Member States. It should also be noted that the EU Charter of Fundamental Rights has the potential to influence in the future any area of EU law, because the legislative bodies of the EU are required to comply with the EU Charter when legislating. At the judicial level, the entry into force of the EU Charter of Fundamental Rights provides to the supranational courts and to the courts of the Member States a new legal instrument that must be considered when they are judging cases concerning fundamental rights. Considering all these recent major legislative changes introduced by the Treaty of Lisbon regarding the protection of the fundamental rights in the EU, the research of the impact of entry into force of the EU Charter of Fundamental Rights on the EU system of fundamental rights protection is necessarily required and is one of the topical issues of EU law and constitutional law of the Member States after the 1 st of December 2009. The necessity for this analysis is reinforced by the fact that, on the one hand, as of 1 st of December 2009, the role of fundamental rights protection has increased significantly in the EU legal order, and on the other hand, the entry into force of the EU Charter of Fundamental Rights has complicated even more the multilayered system of fundamental rights protection in the EU, by adding a new level of protection for them. Also, the research on the impact of the EU Charter of Fundamental Rights on the EU system of fundamental rights protection is necessary because the recent official reports issued by the EU institutions on the application of the EU Charter show that its provisions are interpreted and applied differently in the EU Member States, which means that a deeper knowledge of this legal instrument and its relations with other systems of law is required. 2. The objectives of the thesis This thesis aims, through a thorough analysis in the area of constitutional law and EU law, to reveal the theoretical and practical aspects related to the impact of the entry into force of the EU Charter of Fundamental Rights on the EU system of fundamental rights protection. Given the fact that the EU system of fundamental rights protection is characterized by the existence of several normative sources of fundamental rights and also by the existence of several jurisdictions that protect and guarantee fundamental rights, in order to achieve the purpose of the thesis stated above, the following research objectives have been

established: Analysis of the main legislative changes introduced by the Treaty of Lisbon in the area of the protection of fundamental rights in the EU, which is reflected in the Section 1.1. of the Chapter 1 of the thesis; Analysis of the new legal status of the EU Charter of Fundamental Rights after the Treaty of Lisbon, which is reflected in the Section 1.2. of the Chapter 1 of the thesis; Analysis of the main normative sources of fundamental rights in the EU after the entry into force of the EU Charter of Fundamental Rights, developed in the Section 1.3. of the Chapter 1 of the thesis; Identification of the novelty elements brought by the EU Charter of Fundamental Rights, resulted from the comparative analysis of the normative content of the EU Charter in relation to the content of the inspiring sources considered at the moment of its drafting, which is reflected in the Section 2.2. and Section 2.3 of the Chapter 2 of this thesis; Detailed presentation of the scope of application of the EU Charter of Fundamental Rights, both in terms of its addressees and in terms of its beneficiaries, which can be found in Chapter 3 of this thesis; Assessment of the way it was performed the judicial protection of the EU Charter of Fundamental Rights, both in CJEU case-law and in the case-law of the national courts, by analyzing some judgments in which it was exercised an effective control of legality on the basis of the EU Charter, in Chapter 4 of the thesis; Identification and comparative analysis of the main elements of judicial and regulatory conflict and of the main elements of judicial and regulatory convergence, which were introduced by the entry into force of the EU Charter of Fundamental Rights on the standards of the fundamental rights protection within the EU, in the context of the relationship between EU law, national law and European Convention on Human Rights and in the context of the relationship between the three corresponding jurisdictions, in the Chapter 5 of the thesis; Outlining the general conclusions of the thesis regarding the impact of the entry into force of the EU Charter of Fundamental Rights on the EU system of human rights protection, in Chapter 6 of the thesis.

Thus, in order to achieve the research objectives mentioned above, the thesis attempts to formulate answers and solutions regarding some aspects which are insufficiently clarified by the doctrine or jurisprudence, related to the entry into force of the EU Charter of Fundamental Rights. In the context of an abundance of legal sources of fundamental rights in the EU - European Convention on Human Rights, national law and the EU Charter of Fundamental Rights - this thesis aims to determine whether the entry into force of the EU Charter has provided sufficient normative and judicial instruments to allow the harmonious functioning of the system of fundamental rights protection after the entry into force of the EU Charter of Fundamental Rights and to counteract potential conflicts of rights that could be favored by the entry into force of the EU Charter. Also, the research study aims to identify the benefits of this new legal instrument regarding the convergence of standards of fundamental rights protection at EU level. Finally, this paper aims to evaluate whether the objective which has been formally assumed when drafting the EU Charter of Fundamental Rights - that the Charter of Fundamental Rights should strengthen the fundamental rights protection in the EU has been achieved. 3. The content of the thesis The thesis is divided into six main chapters, detailed in subchapters, sections and subsections. The first chapter of the thesis, entitled "General considerations on the legal framework governing the protection of fundamental rights in the European Union after the entry into force of the Treaty of Lisbon", presents introductory and general aspects regarding the legal provisions governing the protection of fundamental rights in the EU, according to the amendments introduced by the Treaty of Lisbon. The first part of this chapter presents the main elements of legislative novelty introduced by the Treaty of Lisbon in the area of fundamental rights protection: the recognition of the legally binding force of the EU Charter, the introduction of the EU Charter in EU primary law and opening the prospect of EU accession to the European Convention on Human Rights and other legislative changes impacting the protection of fundamental rights. Through the analysis carried out in this part of the thesis, it is

highlighted that the new legal framework created by the Treaty of Lisbon is likely to intensify judicial interaction, both at vertical and horizontal level, in the area of the protection of fundamental rights in the EU, setting also, the legal prerequisites for greater consistency in the area of the protection of fundamental rights and for a more effective judicial dialogue. The second part of the first chapter presents, from a historical perspective, the sinuous legislative process that was followed until the adoption and the entry into force of the EU Charter of Fundamental Rights, in order to highlight its evolution from being an ambiguous and indicative norm, to a legally binding rule, which is now a cornerstone - with the status of primary EU legislation - within the legal framework that governs the protection of fundamental rights in the EU. The third subchapter of the first chapter presents the main normative sources of fundamental rights in the EU after the entry into force of the EU Charter of Fundamental Rights. The result of analysis shows that, at EU level, after the entry into force of the EU Charter, there are three main legal sources governing and protecting fundamental rights - on the one hand, the EU Charter, with the status of EU primary law and, on the other hand, the European Convention on Human Rights and the constitutional traditions of the Member States, with the status of general EU principles, sources which are all in a close relationship of interdependence, as regards their interpretation, content and application. Consequently, the analysis of the impact of entry into force of the EU Charter of Fundamental Rights must be performed by evaluating the EU Charter in the context of its relations with other legal sources regulating the protection of fundamental rights in the EU. The second chapter of the thesis is structured in four subchapters, analyzing the normative content of the EU Charter of Fundamental Rights. The first subchapter aims to give a general overview of the rights enshrined in the EU Charter of Fundamental Rights of the EU, by highlighting the structure of this normative act and the main categories of rights contained therein. The second subchapter highlights the content of the provisions of EU Charter, their interpretation guidelines and the sources of inspiration for each right set forth in the Charter, in order to identify the particularities of the EU Charter and the novelty elements brought by it. The third subchapter tries to make a clear delineation of "new" rights, which were introduced by the EU Charter, from the "existing" rights, which were already stipulated by

other international treaties at the moment of the adoption of the EU Charter, in order to highlight the broader content of the EU Charter, compared with that of the European Convention on Human Rights. Given the fact that the EU Charter mentions both the notion of "rights" and the concept of "principles", the fourth subchapter analyzes the distinction between rights and principles of the EU Charter, in order to underline the importance and consequences of the distinction between rights and principles stipulated by the EU Charter. The third chapter of the thesis is structured into three subchapters and outlines the scope of application of the EU Charter of Fundamental Rights, based on the analysis of the relevant legal provisions and relevant recent case law of Court of Justice of the European Union. The first subchapter presents in detail the mode of application of the EU Charter, given the fact that the EU Charter has the same legal value as the EU Treaties, arguing that the EU Charter enjoys a similar application with the application of the EU Treaties. The second subchapter addresses the scope of application of the EU Charter of Fundamental Rights in terms of its addressees, respectively the EU institutions and bodies, on the one hand, and Member States when implementing EU law, on the other hand, trying to define the area of the persons and institutions which are obliged to implement the provisions of the EU Charter. With regard to the scope of application of the EU Charter of Fundamental Rights to the EU Member States, the thesis defines it starting from clarifying the meaning of the notion "implementing EU law" contained in Article 51 paragraph (1) of the EU Charter, in order to argue that this expression refers not only to the mere enforcement of EU law, such as transposing directives, but must be extended beyond these limits, to a wider and more complex interpretation, according to which the notion of "implementing EU law" covers all situations when Member States are acting within the scope of EU law, even when Member States derogate or attempt to obtain an exemption from the application of EU law. The third subchapter examines the scope of application of the EU Charter of Fundamental Rights from the point of view of the beneficiaries of the rights stipulated by the EU Charter, based on the subjective criterion and also based on the territorial criterion. Also, this subchapter addresses the issue of horizontal direct effect of the EU Charter of Fundamental Rights, in order to see whether certain provisions of the EU Charter have the ability to produce horizontal direct effect and to be invoked in litigations between individuals.

The fourth chapter of the thesis deals with the judicial legal protection of the rights enshrined in the EU Charter of Fundamental Rights, ensured by the courts after the entry into force of the EU Charter of Fundamental Rights, analyzing, comparatively, the judicial legal review exercised by the Court of Justice of the European Union based on the EU Charter and also, the judicial legal review exercised by the national courts of the Member States, based on the EU Charter. The fifth chapter of the thesis assesses the impact of the entry into force of the EU Charter of Fundamental Rights on the EU system of fundamental rights protection. To achieve this research objective, the fifth chapter of the thesis is divided into two subchapters, which aim to identify, quantify and analyze the normative and judicial conflict elements and also the normative and judicial convergence elements, which were brought or emphasized by the entry into force of the EU Charter of Fundamental Rights within the EU system of fundamental rights protection. This analysis is placed in the context of the relationship between EU law, national law of the Member States and European Convention on Human Rights and also in the context of the relationship between the three jurisdictions which protect these three legal orders. Apart from the analysis of the scope of application of the EU Charter of Fundamental Rights and of the normative content of the EU Charter of Fundamental Rights, which have been developed in other chapters of the thesis, the fifth chapter provides a detailed assessment of the elements of conflict and convergence which were brought or emphasized by the entry into force of the EU Charter of Fundamental Rights, in the broader context of its relations with other legal regimes for the protection of fundamental rights, because clarifying this issue is of particular importance in the new legal framework for the protection of fundamental rights established by the Treaty of Lisbon and allows a comprehensive assessment of the impact of the entry into force of the EU Charter. In the context of complex multilayered EU system of fundamental rights protection, analyzing the impact of the entry into force of the EU Charter of Fundamental Rights can not be separated from other sources of law governing fundamental rights protection, since the entry into force of a new legal instrument is likely to emphasize the tensions between different legal regimes for the protection of fundamental rights and also the elements of coherence between these regimes.

Also, since the multiplication of legal sources of fundamental rights in the EU raises questions about the actual impact of the entry into force of the EU Charter of Fundamental Rights on the coherence of the system of fundamental rights protection, the research undertaken in the fifth chapter of the thesis tries to establish if adding an additional normative source of fundamental rights at EU level, with the entry into force of the EU Charter, has produced convergence and uniformity of the standards, thus contributing to strengthening the protection of fundamental rights, or conversely, has produced divergence within the EU system of fundamental rights protection. The sixth chapter of the thesis presents the general conclusions of the research study on the impact of the entry into force of the EU Charter of Fundamental Rights on the EU system of human rights protection, highlighting the convergence of standards for the protection of fundamental rights in the EU and the strengthening of the protection of fundamental rights in the EU, as well as the benefits offered by this new legal instrument.