The Charter has been described as a creative catalogue of rights, because it combines traditional civil and political rights with economic, social and cultural ones. In addition to this, it introduces fundamental rights of a more innovative nature, such as principles of bioethics. The Preamble insists on its modern character, aiming to ‘strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments’. By placing all the rights guaranteed on the same level, it not only presents an indivisible and horizontal understanding of fundamental rights, but also a represents a creative combination of provisions touching upon all three generations of fundamental rights.162
157 Article 10 of Protocol No. 36 on transitional provisions, annexed to the Treaty of Lisbon. See CRAIG P. (2009): p. 93; BRYDE B.-O. (2010): p. 126; CHALMERS D. (2010): p. 144; WALKILA S. (2015): p. 143. Nevertheless, under Article 276 TFEU, the CJEU has no jurisdiction to review the exercise, validity or proportionality of the Member States’ law-enforcement in the area of freedom, security and justice. See PERNICE I. (2008): p. 246.
158 CARTABIA M. (2012): p. 269-270; SAIZ ARNAIZ A. – TORRES PÉREZ A. (2012): p. 9-10; WALKILA S. (2012): p. 616-634; DE BÚRCA G. (2013): p. 170; WALKILA S. (2015): p. 132.
159 Search in the Curia database on 3 June 2015. Search command identifying all judgements from the CJEU between 7 December 2001 and 30 November 2009 containing the phrase ‘Charter of Fundamental Rights’.
160 Search in the Curia database on 3 June 2015. Search command identifying all judgements from the CJEU between 1 December 2009 and 1 December 2014 containing the phrase ‘Charter of Fundamental Rights’.
161 Joint Communication of Presidents COSTA and SKOURIS from the European Court of Human Rights and the CJEU of the European Union, 24.1.2011, p.1; Commission Report on the application of the EU Charter of Fundamental Rights 2012, COM(2013) 271 final, p. 7. See also ROSAS A. – KAILA H. (2011): p. 9; WALKILA S. (2011): p. 817; SAIZ ARNAIZ A. – TORRES PÉREZ A. (2012): p. 9-10; DE VRIES S.A. (2013b): p. 74; DOUGLAS-SCOTT S. (2013): p. 161; GROUSSOT X. (et.al.) (2013): p. 103; WALKILA S. (2015): p. 141-146. Cf e.g. Case C-279/09 DEB, paras. 29, 59 with Cases C-386/10 P Chalkor, paras. 51-52; C-199/11 Otis, paras. 46-47, where the CJEU referred to Article 47 CFR, prior to Article 6(1) ECHR. As a consequence, it is possible that the protection of fundamental rights within the EU has been strengthened, since the Charter guarantees at least the same level of protection as the ECHR.
162 LINDFELT M. (2007): p. 303; ANDERSON D. – MURPHY C.C. (2011): p. 5; CRAIG P. – DE BÚRCA G. (2011): p. 395; DASHWOOD A. (et.al) (2011): p. 361; LADENBURGER C. (2012): p. 143; ROSAS A. – ARMATI L. (2012): p. 172; DE VRIES S.A. (2013b): p. 71; WALKILA S. (2015): p. 127, 133.
27 Drawing inspiration from the case law of the CJEU, international human rights instruments, constitutional traditions common to the Member States as well as EU primary and secondary law, the Charter comprises 54 Articles, divided into seven different Titles covering the themes of Dignity (Title I: Articles 1-5), Freedoms (Title II: Articles 6-19), Equality (Title III: Articles 20-26), Solidarity (Title IV: Articles 27-38), Citizens’ Rights (Title V: Articles 39-46) and Justice (Title VI: Articles 47-50). In addition to the Titles outlining the material fundamental rights provisions, the Charter entails one last Title containing some General Provisions (Title VII: Articles 51-54) regarding the scope of application of the Charter as well as its interpretation and level of protection.163
In accordance with Article 6(1) TEU, the Union recognises the rights, freedoms and principles set out in the Charter. Yet, the EU assembles all its fundamental rights in one catalogue, under one common denominator, namely that of fundamental rights.164 This ‘language of rights’ emphasises the autonomy of the individual and entitles its addressees to invoke their rights against other legal subjects, thus resulting in legal obligations for the adversaries.165 However, the notion of ‘rights’ is ambiguous, because not all rights in EU law are fundamental.166 Still, the inclusion of a right in the Charter allows for the presumption that it constitutes a fundamental right.167 Notwithstanding this presumption, the categorisation of fundamental rights still remains complicated due to their character as underlying principles of EU law.168 Indeed, the notion of fundamental rights is not a mere issue of formal denomination, but above all a question about normative function, effectiveness and constitutional significance.169 It follows, that the Charter’s notion of rights is more complex than what appears at a first glance.
As a fact, the Charter does not keep up a very rigorous distinction between fundamental rights and freedoms. Provisions laying down fundamental freedoms can be found in Title II on ‘Freedoms’ (Articles 6-19). Still, only some of these are literally designated as freedoms (Articles 10-13 and 15-16), whereas others are rather described as rights (Articles 6-9, 14, 17 and 18). Also, one additional freedom can be found in Article 45. Furthermore, several of the Articles combine the concepts of rights and freedoms (Articles 10-12, 14-15, 45), some even formulated in terms of a ‘right to freedom’ (Articles 10-12).
163 OJANEN T. (2003): p. 676; DASHWOOD A. (et.al.) 2011: p. 361-362. 164 Opinion of AG VILLALÓN CRUZ in Case C-176/12 AMS, para. 44. 165 DWORKIN R. (1977): p. 14, 172, 185.
166 PRECHAL S. (2005): p. 99-100; WALKILA S. (2015): p. 22-23.
167 See e.g. Opinion of AG TIZZANO in Case C-173/99 BECTU, para. 28; Opinion of AG TRSTENJAK in Cases C-350/06 & 520/06 Schultz‑Hoff, para. 38; Opinion of AG TRSTENJAK in Case C-282/10 Dominguez, para. 75.
168 RAITIO J. (2003): p. 175. 169 WALKILA S. (2015): p. 26.
28 Hence, a part from the different semantics, there appears to be no legally relevant distinctions between fundamental rights and freedoms contained in the Charter.170 This is also supported by the case law of the CJEU, which has treated freedoms under the Charter as equivalent to fundamental rights.171
What rather causes polemic and uncertainty is the Charter’s distinction between rights (and freedoms), on the one hand, and provisions giving expression to principles, on the other. Although the inclusion of social rights into the Charter provoked some resistance, such a distinction was not envisaged when the non-binding Charter was first drafted.172 It was not until later, when the Charter became legally binding, that Article 52(5) with its legal distinction between rights and principles was introduced.173 For obvious reason, the posterior introduction of such a distinction is likely to cause ambiguous results.
According to the Preamble and Article 51(1) CFR, rights shall be ‘respected’, whereas principles are only to be ‘observed’. This is further developed in Article 52(5), which emphasises that provisions containing principles must be implemented by legislative and executive acts of the Union or the Member States, before they become ‘judicially cognisable’. However, the Article places no such restrictions on the rights and freedoms guaranteed under the Charter. A contrario, the Charter implies that only provisions held to constitute rights are capable of being invoked and enforced before a court of law.174
Based on the wording of the Charter, Articles 2-3, 6-12, 14-15, 17-18, 24-31, 33-35, 39- 45, 47-48 and 50 contain explicit references to rights. Out of these, however, the Explanations to the Charter point out Articles 25 and 26 as examples of principles. It must therefore be assumed that a literal interpretation of the Charter does not significantly contribute to the identification of what substantive fundamental rights it guarantees.