Mapping the Scope of Application of EU Fundamental Rights: A Typology

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Table of Contents: I. Introduction. – II. The existing approaches and the reasons for a comprehensive typology. – III. The structure of the typology and the four Iida-criteria. – IV. The criterion of the density of EU regulation. – IV.1. Implementation of EU law by the Member States without discretion. – IV.2. Margins of discretion granted to the Member States by EU law. – IV.3. The implementation of EU law through procedures and sanctions established by the Member States. – IV.4. Minimum harmonization by EU law. – IV.5. Partly exercised EU competences. – IV.6. References in EU law to the regulation by means of national law. – IV.7. EU soft law. – IV.8. Member State action in areas outside of the scope of EU law. – IV.9. Charter Rights not addressed to the Member States. – V. The criterion of the character of the rule of national law. – VI. The criterion of the convergence of objectives. – VII. The criterion of the impact on EU law. – VIII. Conclusion.

Abstract: A number of scholars have attempted to delineate the scope of application of EU fundamental rights with regard to the Member States. The present Article aims to establish a particularly comprehensive typology of situations in which Member States are bound by EU fundamental rights. It is based on an extensive assessment of the CJEU’s case law. Developing its own interpretation of the Court’s criteria, theArticleestablishes a number of “clusters” of cases. At the same time, it shows the principles for the application of EU fundamental rights which can be observed in action. Some loose ends remain, however, that the Court is called to address.

Keywords: EU fundamental rights – scope of application of EU fundamental rights – Art. 51 of the Charter of Fundamental Rights of the European Union – scope of EU law – EU competences – EU Constitutional law.

European Papers, Vol. 3, 2018, No 1, pp. 133-156
2499-8249 - doi: 10.15166/2499-8249/203

* Senior Lecturer, Institute for European Law, University of Fribourg,


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