When does the Charter of Fundamental Rights apply to member states?

Before member states are obliged to conform to the EU Charter of Fundamental Rights, there must be some connection between the member
state’s activities and EU law. Article 51(1) of the charter tells us that it applies to member states ‘when they are implementing Union law’.

But, in C-617/10 Fransson,
the European Court of Justice (CJEU) seemed to suggest that ‘implementing Union law’
could be broadly understood to include any case where ‘national legislation falls within the scope of the European Union’, whatever that expression might mean. The court evidently considered that its gloss should be given a wide field of operation, holding that since the case was related to VAT law, and VAT is an EU tax, it fell within the ‘scope’.

Fingerprint data

In joined cases C-446/12–C-449/12 Willems, the court has taken a more analytical view. The case concerned Dutch nationals who had applied for passports or identity cards but refused to provide fingerprints because they were worried about them being harvested into a national database for unspecified further use. The Dutch court asked the CJEU to decide whether Directive 2252/2004, which concerns biometric data in travel documents, read together with the charter, provided guarantees against such use.

The court held that it did not. For the most part, this was simply a matter of construing the legislation. In the first place, on a pretty plain reading, the directive had nothing at all to say about identity cards. That disposed of one case. More broadly, the court thought that the legislation was not intended to say anything about the use and storage of data for any purpose other than in travel documents. This was drawn from a recital, which stated that the directive dealt only with the storage and use of data in travel documents, and not with any other use or storage of such
data, which was a matter for national law.

It was argued, however, on the basis of Frannson, that since the data collection in these cases would take place pursuant to the directive, this brought its subsequent use ‘within the scope’ of EU law, making the charter applicable to member state activities in that regard.

The CJEU disagreed. Instead
of making ‘scope’ the test of ‘implementing EU law’, it used the question of whether EU law was ‘applicable’ to decide whether the situation was within its scope. Having already held, based on an interpretation of the provisions in question, that EU law was not applicable, the court ruled that the charter did not apply. It was not enough to say that the case ‘arose out of’ the application of
EU law; it had to be established that the case actually involved
an instance of its application.

Legislative interpretation

So far as the applicability of the charter to member states’ activity is concerned, this is sensible: it puts the horse (‘Is EU law applicable?’) in front of the cart (‘Is this case within the scope of EU law?’), where Fransson suggested a rather different arrangement.

So, given its interpretation
of the legislation, the CJEU correctly held that the charter did not apply. But did this approach not miss the point? The CJEU first interpreted the legislation, concluding it had nothing to say on the topic,
and then decided whether the charter should apply. It seems
at least arguable that the charter should have been considered
at the earlier stage.

Shouldn’t the real argument have been whether it was permissible for the directive, consistently with the charter,
to make provision for biometric data to be collected and used for a particular purpose without imposing a restriction on its further use by member states? And, if so, couldn’t the legislation have been interpreted narrowly, whatever its recitals said, to achieve that result? Whatever doubt there is about the application of the charter to member states’ activities, there is surely no doubt that it should be referred to in construing EU legislation.

So, Willems is a sensible decision so far as it concerns the application of the charter by member states, but a rather weak effort so far as it concerns the use of the charter for an incontestably relevant purpose in construing EU legislation. SJ

Paul Stanley QC is a barrister practising from Essex Court Chambers