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Does the Charter apply to my case

If you think your fundamental rights are being violated, this section will help you find out whether the EU Charter can protect you.

Introduction

This checklist can help you establish whether a specific case is covered by the EU Charter of Fundamental Rights.

The Charter applies only to acts by:

  • EU bodies, or
  • national bodies of EU countries, when implementing EU law.

The checklist can help you determine whether acts by national bodies are implementing EU law.

Need more details?

Disclaimer

This checklist is only for guidance purposes; it does not offer legal advice for individuals and we do not accept any liability in that regard.

If you are an individual seeking advice on initiating legal proceedings, you should seek professional legal advice on your specific situation.

The guidance deals solely with the question of whether the Charter can in theory be applied to an individual case. If the answer to this question is positive, it does not automatically imply that the Charter was violated.

Checklist

Charterclick steps
Who is complaining about the violation of a fundamental right?
For information on the beneficiaries of the Charter’s protection, see Section 1 Part II of the Tutorial.
Does the case involve a fundamental Right granted to EU citizens?

Consider the following list of the Charter’s provisions

The case may concern a fundamental right that the Charter does not grant to EU citizens (notably, the right to asylum under Article 18 of the Charter). Alternatively, it may concern an entitlement that is not granted as a fundamental right under the Charter.
Before concluding that EU fundamental rights are not relevant to the case, please consider that the Charter is not the only source for the protection of fundamental rights within the EU: since the ‘70s, in the absence of an EU Bill of Rights, the European Court of Justice has been granting protection to fundamental rights by elevating them to general principles of EU law. The Lisbon Treaty confirms these latter amongst the sources of EU fundamental rights. See more under Section 2.3 Part I of the Tutorial.
If the case may involve a fundamental right granted as a general principle of EU law, goes to the Checklist’s next question. Like the Charter, EU general principles are binding on the EU institutions, bodies, offices and agencies, as well as to the Member States when they implement EU law.
By contrast, if neither the Charter’s entitlements nor the general principles of EU law are relevant to the case, it is likely that the case does not involve a violation of an EU fundamental right (or a violation of a fundamental right altogether).

Does the case involve a fundamental right granted by EU Law to non-EU citizens?

Consider the following list of the Charter’s provisions. Does the case involve one of the following fundamental rights listed?

The case may concern a fundamental right that the Charter does not grant to non-EU citizens (notably, the rights to vote and to stand as a candidate at lections for the European Parliament and at municipal elections under Articles 39-40 of the Charter, and the right to diplomatic and consular protection, under Article 46). Alternatively, it may concern an entitlement that is not granted as a fundamental right under the Charter.
Before concluding that EU fundamental rights are not relevant to the case, please consider that the Charter is not the only source for the protection of fundamental rights within the EU: since the ‘70s, in the absence of an EU Bill of Rights, the European Court of Justice has been granting protection to fundamental rights by qualifying them as general principles of EU law. The Lisbon Treaty confirms these latter amongst the sources of EU fundamental rights. See more under section 2.3 Part I of the Tutorial.
If the case may involve a fundamental right granted as a general principle of EU law, goes to the Checklist’s next question. Like the Charter, EU general principles are binding on the EU institutions, bodies, offices and agencies, and to the Member States when they implement EU law. By contrast, if neither the Charter’s entitlements nor the general principles of EU law are relevant to the case at issue, it is likely that such case does not involve a violation of an EU fundamental right (or a violation of a fundamental right altogether).

Does the case involve a fundamental right whose protection extends to legal persons?
For information on the protection offered by the Charter to legal persons, see Section 1.1 Part IIof the Tutorial.

The case involves a fundamental right that includes legal persons amongst its beneficiaries, according to its formulation in the Charter, or in light of the interpretation provided by the European Court of Justice.
Please note that the enjoyment of the fundamental right concerned may be limited to a smaller category of legal persons. For instance, Articles 42, 43 and 44 only apply to legal persons having their registered office in the Member States. Sometimes, the case law of the Court of Justice provides indications in this respect: see Case C-279/09 DEB on access to legal aid by legal persons.
If the fundamental right found in the Charter concerned corresponds to a fundamental right granted by the ECHR, according to Article 52(3) of the Charter, it may be useful to consider the case law of the European Court of Human Rights, through the HUDOC Database.
For instance, in DEB, the Court of Justice examined that case law, in order to establish whether any legal person can apply for legal aid. On the relevance of the ECHR and the case law of the European Court of Human Rights for the interpretation of the Charter, see section 5.1 Part III of the Tutorial.

Consider the following list of the Charter’s provisions. Does the case involve any of the entitlements listed?

The case concerns a fundamental right that is inherently limited to natural persons. Accordingly, there is no violation of a fundamental right granted to legal persons under EU law.

Consider the following list of the Charter’s provisions. Does the case involve any of the entitlements listed?

The case concerns a fundamental right that is granted by the Charter; however, it is uncertain whether, under EU law, its protection extends also to legal persons.
You can move to the next question, but, if you establish that the case falls within the scope of EU law, remember that this does not of itself indicate whether the person concerned can invoke the fundamental right at stake. Go to the next question.

The case does not concern a fundamental right granted by the Charter.
However, before concluding that EU fundamental rights are not relevant to the case, please consider that the Charter is not the only source for the protection of fundamental rights within the EU: since the 1970s, in the absence of an EU Bill of Rights, the European Court of Justice has been granting protection to fundamental rights by elevating them to general principles of EU law. The Lisbon Treaty confirms these latter amongst the sources of EU fundamental rights. See more under section 2.3 Part I of the Tutorial.
If the case may involve a fundamental right recognized as a general principle of EU law, go to the Checklist’s next question. Like the Charter, general principles of EU law are binding on the EU institutions, bodies, offices and agencies, and the Member States only when they implement EU law. In contrast, if neither the Charter’s entitlements nor the general principles of EU law are relevant to the case, it is likely that the case does not involve a violation of an EU fundamental right.

Who is the cause of the alleged violation?
Before choosing the answer, it is recommended to consult the relevant section of the tutorial, as indicated below:
The alleged violation stemmed from:

In order to perform their tasks, the EU institutions, bodies, offices and agencies adopt legal acts (see Article 288 TFEU and Section 2 Part II of the Tutorial).
These are legally binding or non-legally binding. According to Article 288 TFEU, typical EU legally binding acts are regulations, directives and decisions; international agreements concluded by the Union with non-Member States or other international organizations also entail legally binding effects.
According to the same provision, typical EU non-legally binding acts are recommendations and opinions.
However, acts with different labels can also be adopted. According to an established case law, their effects are assessed case by case, with a view to establish whether, from a substantial point of view, they can be assimilated to (also formally) legally binding acts.
As a rule, the nature of the act does not interfere with the obligation of the EU institutions, bodies, offices and agencies to respect the Charter, which extends to any activities performed by these latter. Yet, the means available to react to a violation ensuing from a EU measure vary depending on the act’s nature and effects.

In light of the explanation provided in Section 2.1 Part II of the tutorial, the alleged violation of a fundamental right consists of:
Did the act enter into force before or after 1st December 2009?

The Charter is applicable. Go to the next question to identify the available means of judicial protection.

The EU Charter became legally binding on this date, which is when the Lisbon Treaty entered into force legally.

When did the facts allegedly amounting to a violation of the EU Charter occur?

The Charter was not legally binding when the violation occurred. However, at that time, fundamental rights were protected as general principles of EU law. It may be useful to check whether the Court of Justice granted such a status to the fundamental rights at issue in the case (see more under Section 2.3 Part I of the Tutorial). If this is the case, go to the next question. In the contrary case, it is likely that no violation of a fundamental right occurred.

The Charter is applicable. Go to the next question to identify the available means of judicial protection.

The material conduct allegedly in breach of the Charter occurred:

The Charter was not legally binding when the violation occurred. However, at that time, fundamental rights were protected as general principles of EU law. It may be useful to check whether the Court of Justice granted such a status to the fundamental rights at issue in the case (see more under Section 2.3 Part I of the Tutorial). If this is the case, go to the next question. In the contrary case, it is likely that no violation of a fundamental right occurred.

The Charter is applicable. Go to the next question to identify the available means of judicial protection.

When did the alleged violation occur?
The EU Charter has been legally binding since 1st December 2009, the date when the Lisbon Treaty entered into force. The alleged violation occurred:
In particular, the violation occurred:

The Charter was not legally binding at the time of the facts. However, fundamental rights were protected as general principles of EU law. It may be useful to check whether the Court of Justice granted such a status to the fundamental right(s) at issue in the case (see more on the general principles of EU law under Section 2.3 Part I of the Tutorial).
If no, it is likely that no violation of EU fundamental rights occurred.
If yes, go to the next question, in order to establish whether the case falls within the scope of EU law: like the Charter, general principles of EU law apply only to national acts implementing EU law.

Does the case fall within the scope of EU law?
According to Article 51(1), the Charter states that the provisions thereof are binding on the Member States “only when they are implementing EU law”. The national provision at issue:

In order to rely on the Charter’s protection, it is not sufficient to claim that the case involves the violation of a fundamental right granted by the Charter.
One must establish whether a rule of EU primary or secondary law, other than the provision(s) of the Charter allegedly violated, is applicable to the case (in other words, the facts of the case fall within the personal, material and temporal scope of this rule). The application of that rule also triggers the application of the Charter.
Section 2 Part III of the Tutorial provides an overview of the most common situations that fall within the scope of Union law, based on the existing case law of the Court of Justice. The following questions aims at providing some practical assistance to establish whether the case at issue falls within the scope of Union law.
Please note that, if the case does not fall within the scope of EU law, this does mean that any protection of the fundamental rights allegedly violated is available to the individual(s) concerned. However, that protection should be sought under the domestic sources or the ECHR, rather than under the Charter.

Does the case concern a right conferred on individuals by EU law?

According to the established case law of the Court of Justice, “in the absence of EU law rules governing the matter, it is for the domestic legal system of each member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive directly from EU law” (see, for instance, Case C-276/01 Steffensen, § 60).
The Charter (in particular, Article 47 on effective judicial protection) applies to national procedural provisions that, regardless of whether they were adopted with this specific purpose, govern the exercise before domestic courts of rights conferred on individuals by EU law.
See the example provided under point 3 of section 2 Part III of the Tutorial.
Accordingly, you must verify whether the case at issue involves a right - other than the fundamental right allegedly violated – that is conferred on individuals by an EU legally binding act, or by a provision of EU primary law (ie, a provision of the EU Treaties, such as the provisions on the free movement of goods, services, capitals, workers and EU citizens).

Does the case concern the infringement of an EU law obligation?

More and more often, EU law measures require the Member States to provide for effective, proportionate and dissuasive sanctions for the infringement of specific obligations laid down by those acts, or by their implementing legislation.
The Member States can perform that duty by adopting specific sanctions, which must comply with the requirements for the protection of fundamental rights laid down by the Charter. However, the Member States may also decide to rely on sanctions already provided for (comparable) national offences. In this case, the Charter can be invoked only when these sanctions are applied to the infringement of an obligation deriving from EU law. See the example provided under point 4 of section 2 Part III.
Accordingly, you must verify whether the case at issue concerns the infringement of an obligation deriving from an EU legally binding act, or by a provision of EU primary law.

See the explanation of this situation in Section 2 Part III of the Tutorial, no. 7.
Is there any legally binding EU measure that is relevant to the case?
Mr X is a third country national who has legally resided in the Member State Y since 2005. In 2016, his application for a housing benefit was rejected, on the ground that the funds for third-country nationals were exhausted. The national law concerning the housing benefit at issue foresees different criteria as regards the granting of the benefit, depending on the personal status of the applicant; in particular, the criteria applied to third-country nationals are less favorable than those applied to EU citizens. Whilst no EU measure concerning specifically the granting of housing benefits, Article 11(1) of on the status of third-country nationals who are long-term residents stipulates: “‘Long-term residents shall enjoy equal treatment with nationals as regards: (d) social security, social assistance and social protection as defined by national law”. If Mr X enjoys the status of long-term resident under Directive 2003/109/EC, this Directive is relevant to the case and may trigger the application of the Charter. This example draws on Case C-571/10 Kamberaj
What is the relationship between the EU provision and the national provision concerned?
See the explanation of this situation in Section 2 Part III of the Tutorial, no. 1.
See the explanation of this situation in Section 2 Part III of the Tutorial, no. 2.
See the explanation of this situation in Section 2 Part III of the Tutorial, no. 8.
The national provision at issue defines a particular concept/category, contained in the EU measure concerned, whose definition the EU legislature left to the Member States.
See the explanation of this situation in Section 2 Part III of the Tutorial, no. 6.

CONCLUSION
The Charter is applicable.
However, this does not imply that the case at issue involves a violation of the Charter. In particular, most fundamental rights granted by the Charter are not absolute. This means that the right may be subject to limitations, in accordance with the requirements of the Charter. Sections 4 to 6 Part III of the Tutorial provide some guidance useful to understand whether a violation of the Charter actually took place.
However, the Court of Justice of the European Union is the sole body that can declare that an EU act, or a provision thereof, is incompatible with the Charter. This control can be triggered through an action for annulment or through a preliminary ruling for validity. More information on these means of judicial control is provided under section 4 Part I of the Tutorial.
If you consider that an EU act, or a provision thereof is incompatible with the Charter, you must check the date of publication or notification of the act concerned. In the absence thereof, check the day when the person claiming a violation of a fundamental right became aware of the act. If from the date of the violation passed more than 2 months, the deadline for bringing an annulment action against the act has expired. The act’s validity may be challenged through a reference for preliminary ruling to the Court of Justice.
More information on the different means of judicial and non-judicial protection available to react to the alleged violation is available under section 4 and 5 Part I of the Tutorial. If from the date of the violation passed less than 2 months, the deadline for bringing an annulment action (Article 263 TFEU) against the act has not passed.
Check whether the other conditions (notably, the standing rules) are satisfied. See section 4 Part I for more information.
If not, the act’s validity may be challenged through a reference for preliminary ruling to the Court of Justice. See again section 4 Part I for more information.

CONCLUSION
The alleged violation took place when EU law did not apply to the Member State concerned. Accordingly, neither the Charter nor fundamental rights protected as general principles of EU law are applicable. Protection should be sought under domestic sources of fundamental rights protection or the ECHR.

CONCLUSION
It is likely that the Charter is applicable.
Remember that this Checklist tackles the preliminary question of whether the Charter is applicable to a specific case. However, the fact that the Charter is applicable does not necessarily mean that a violation of the Charter did take place. Some information on how to establish whether a violation occurred is provided by sections 4 to section 6 Part III of the Tutorial.
National courts are competent to offer protection in the case of a violation of the Charter flowing from a national provision. Indications on what kinds of protection a national court could provide can be found under section 7 Part III of the Tutorial.

CONCLUSION
It is likely that the Charter is not applicable to the case.
Please, remind that this Checklist is for information purposes only. It does not provide any binding advice. Moreover, the case-law of the Court of Justice on the scope of application of the Charter is dynamic.

CONCLUSION
According to Article 288 TFEU, the Union institutions can adopt the following legally binding acts: regulations, directives and decisions.
Another category of legally binding acts are framework decisions. Before the entry into force of the Lisbon Treaty (on 1st December 2009), such acts were used for legislation in the field of judicial and police cooperation in criminal matters.
The Lisbon Treaty abolished this category, but some framework decisions are still in force: for instance, the Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, and the Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law. Framework decisions are similar to directives, insofar as they require the Member States to achieve a result without specifying the means of achieving it; however, their provisions cannot have direct effect (they cannot be relied on to set aside conflicting national provisions).

CONCLUSION
“Relevant to the case” means an EU measure that concerns the subject matter of the case. Attention must be paid to all circumstances of it: see this example before choosing the answer, consider this example.
Mr X is a non-EU national who has legally resided in Member State Y since 2005. In 2016, his application for a housing benefit was rejected, on the ground that the funds for non-EU nationals were exhausted. The national law concerning the housing benefit at issue foresees different criteria as regards the granting of the benefit, depending on the personal status of the applicant; in particular, the criteria applied to non-EU nationals are less favorable than those applied to EU citizens.
Whilst no EU measure concerns specifically the granting of housing benefits, Article 11(1) of Directive 2003/109/EC on the status of non-EU nationals who are long-term residents stipulates: “‘Long-term residents shall enjoy equal treatment with nationals as regards: (d) social security, social assistance and social protection as defined by national law”.
If Mr X enjoys the status of long-term resident under Directive 2003/109/EC, this Directive is relevant to the case and may trigger the application of the Charter.

CONCLUSION
If you do not know whether there are EU legally binding rules applicable to your case, you may consult Eur-lex, the official database of EU law.
It is recommended a search through EU legislation, using the option “Subject matter” under the filter “Theme”. That option provides a list of topics covered by EU legislation. The suggested path for this search is:
Eur-lex → EU law and related documents → EU Legislation → Search in legislation.
Then scroll down until the filter “Theme” and select “Subject matter”. You will find the different topics under the + button. After selecting the topic(s), press the “Search” button.
Remember to select only EU legally binding instruments (regulations, directives and decisions) and always check if the selected instrument is in force (a green or red light shall appear below the title of the selected instrument: this indicates whether the document is still in force at the time of the search; you can find out the date when the document entered into force in one of its final provisions). In case of a directive, you shall also verify whether the deadline for implementation in the domestic legal orders has passed (you will find this deadline in one of the final provisions of the directive).

CONCLUSION
1. As a first step, choose the fundamental right concerned in the text of the Charter.
Consider the list of EU measures to which the selected provision is particularly relevant: is any of them applicable to the case? Consider the relevant case law: is there any case concerning a similar situation to that affecting your case?
2. As a second step, extend the search to Curia, the Official database of the European Court of Justice. Follow this path: Curia; Search; then, in the search form select:

  • under “Case status”: cases closed;
  • under “Court”: Court of Justice
  • under “References to case-law or legislation”/”Category”: Treaty, then Charter of Fundamental rights, then select the Article that you are looking for.
    Consider the relevant case law: is there any case concerning a similar situation to that affecting your case?
    3. As a third step, extend the search to Eur-lex, the Official database of EU law, following this path: Eur-lex; EU law and related documents; Legislation; Search in legislation; Theme; Subject Matter.

CONCLUSION
The case should be dealt with at the national level.

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