On the (in)applicability of the EU Charter of Fundamental Rights to national measures exceeding the requirements of minimum harmonisation Directives
Abstract
This article responds to the Court of Justice of the European Union's ( CJEU's) recent judgment in TSN and AKT (C-609/17 and C-610/17), in which the Grand Chamber ruled on the fundamental question of whether the EU Charter of Fundamental Rights is applicable to national measures that exceed the requirements of minimum harmonisation EU directives. Faced with a choice between two competing theories which had developed in the case law and scholarship, the CJEU decided-against the advice of AG Bot-that such national measures, insofar as they exceed those minimum requirements, do not fall within the scope of the EU Charter.
This article discusses the reasoning relied on by the Advocate General and the Grand Chamber respectively, with an emphasis on the key difference between power-granting and power-recognising clauses in EU directives. The article then reflects on some conceptual and terminological implications of the CJEU's ruling.
The aim is to bring further clarity, and a certain refinement, when it comes to determining the Charter's applicability to national "toppings" to minimum harmonisation EU directives.