1.4.1 Delimitations Regarding Procedural Subsidiarity and Material Rights
Focusing on subsidiarity as an interpretative principle of fundamental rights under the Charter, this study excludes material questions relating to the actual content of the substantive rights that the Charter guarantees. Instead, the study is concerned with the method of applying Charter provision as well as their status and scope.74 Similarly, the ex
ante procedural dimensions of the subsidiarity principle in EU legislative procedures has
been ruled out from the study. Likewise, questions relating to the balancing of opposing material fundamental rights and interests, their respective proportionality as well as temporal questions and damages resulting from disproportionate measures fall outside the scope of this research.
Given the importance of judicial adjudication in the field of EU fundamental rights law, the application of the Charter is mainly studied through the case law of the CJEU.75 By analogy, cases where the Court has applied the principle of subsidiarity or other general principles, will also be relevant. However, the application of the Charter by national courts
70 ESTELLA A. (2002): p. 2. 71 CAROZZA P.G. (2003): p. 78.
72 SANKARI S. (2013): p. 10. See also SARMIENTO D. (2012a): p. 292-305. 73 LANDMAN T. (2004): p. 927; WILLIAMS A. (2007): p. 83.
74 ROSAS A. – ARMATI L. (2012): p. 164. 75 SCHLÜTTER B. (2010): p. 31.
14 in the Member States of the Union will not be considered. Similarly, the case law of the ECtHR is merely used for comparison, where this is considered to contribute to the discussion. Neither will the accession of the EU to the ECHR be outlined in detail, albeit relevant for the protection of fundamental rights within the Union.
The objective is not to examine the effects of EU fundamental rights in general, but the interpretation and application of the Charter in particular. Still, it is necessary to also situate the Charter in relation to other concepts and elements of Union law. However, the narratives over the development of fundamental rights, the Charter and the principle of subsidiarity in EU law must not be understood as thorough. Likewise, the comparison of rights and principles as legal concepts, as well as the description of the relation between the Charter and fundamental rights as general principles, do not aspire to be exhaustive. Primarily, their purpose is to contribute to a deeper understanding of the legal environment in which the Charter operates. After all, at the heart of the study lies the application of the Charter, with due regard to the principle of subsidiarity.
1.4.2 A Structure Embracing the Transversal Nature of Fundamental Rights and Subsidiarity
For the purpose of examining the relation between the Charter and the principle of subsidiarity, the first chapter (1) of this study aims to set out its theoretical framework, comprising its research object, scope, sources and methods applied. As demonstrated, the investigation is focused on two concepts of EU law, namely fundamental rights and subsidiarity, and their intersection under the Charter. Throughout the study, other concepts of EU law are introduced and considered in relation to these, such as the principles of primacy, direct effect, indirect effect and effectiveness of EU law.
The second chapter (2) looks into the legal nature of the Charter a well as the context in which it operates. The formal connection between subsidiarity and fundamental rights is found in Article 51(1) CFR. Nevertheless, this provision cannot be isolated, but must be examined in relation to other general provisions of the Charter and with regard to place the Charter occupies in the EU legal landscape.76 By illustrating how fundamental rights have developed within the EU legal system, the study offers a deeper understanding of the legal heritage that the Charter represents. In order to bring further clarity to the conditions in which the Charter is applied, theoretical insight is provided into the relation between
15 Charter rights and principles, as well as the similarities and differences between the Charter and the general principles of EU law.
In the third chapter (3), the Charter’s many intersections of subsidiarity and fundamental rights are examined. Common denominators of the subsidiarity principle and the Charter are uncovered by looking into how they developed and operate in parallel within the EU legal system. The relation between the subsidiarity principle and EU fundamental rights is analysed, on the one hand, with respect to the level of protection under the Charter, and on the other, with regard to the Charter’s personal and material scope.
Lastly, the fourth chapter (4) analyses the application and interpretation of the Charter by the CJEU. In the light of the principle of subsidiarity, the different forms of Charter adjudication before the Court are examined. In this regard, the study aims to investigate what expressions subsidiarity takes when the Charter is balanced with economic freedoms, applied in conjunction with other norms or used to invalidate EU norms or set aside national legal acts. As a complement to this, the analysis also considers the role of the subsidiarity principle in cases where the Court has not applied the Charter.
In conclusion, the study aims to demonstrate how subsidiarity operates as an interpretative principle of the Charter, when applied by the CJEU. Consequently, the principle of subsidiarity may be used to systemise the application of the Charter, which in turn could enhance legal certainty in EU fundamental rights adjudication.
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