EU-CoR

EU-Charter-of-Rights

EU-Charter of Fundamental Rights of the European Union

Art. 51 Field of application (Regelung seit 01.12.2009)

1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.

2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.

Conflict to national rights of equality should lead to validity of the EU-CoR for all acts in the Member States (except UK?) despite the wording here

This provision wants to keep the member states the right to act free of these fundamental European rights as long as they are not transfering European law.

That leads to a conflict between Art 51 EU-CoR (European Unions Charter of Rights)and the Member States rights of equality for everybody:

Imagine two legal acts of a memberstate affecting a person and one and the same fundamental right is relevant - this legal act of the one-and-the-same Member State is one time based on an EU-directive and the other time not.

Supposed further more:

Under the EU/right the citizen would win the trial, under only the Member States laws it would not.

Than we have to request if it is really ok to treat these persons differently in their conflicts with the memberstate.


1.) Result following alone Art 51 CoR

After the wording of Art 51 of CoR we would get different versions of the fundamental right and different results.

On the first glance it is against this art 51 CoR to force the Member States executive to treat both situations respecting effectively the same fundamental right equally.

That was probably what the creators thought (and wanted) when they made this rule.


2.) Influence of the Member States rights of equality

But in the Member States (i think in all) humans have the right of equality out of the Member States laws/ constitutions.

And there is no general relevant aspect based on the real facts that justifies under the Member States laws a different treatment only because the case lies on a field of an EU-directive.

How shall be distinguished exactly whether there is still a field of EU-law or not?

For this is an additional strong argument, that in transferring the directives there is most times more or less freedom for own decisions by the Member States.

In using this freedom within the directive-transferring acts after Art. 51 CoR they are bound to the EU-fundamental rights.

In using their genuine freedom for making laws as they like outside the area of EU law they shall not be bound after Art 51 CoR.

Well, this second constellation may not affect the EU-fundamental rights directly or by their own.

But this different treatment in using two laws, both made by the Member State and both affecting people having this right of equality of this Member State, is probably not to reason under the Member States right of equality.


3.) Conclusion

Due to this and in my eyes the Member States are forced to provide the people/companies, etc. the same fundamental rights independent of the aspect, that they made a law in transferring a European directive or not.

So, strictly contra pars 2, the field of application of Unions law is indirectly but effectively extended.

By the way: Because this happens via the Member States laws of equality (and not the CoR right of equality) I see no reason that this could affect the validity of the CoR itself.