Written evidence from Professor Paul Craig

1 Scope of Application of the Charter to Member States

1)     Article 51(1) states that the Charter provisions are addressed to the Member States only when they are implementing Union law. The scope of application of this provision of the EU Charter has recently been clarified by the CJEU in Åkerberg Fransson.[1] There was prior to this case debate about the scope of application of the Charter to Member States.

2)     The narrow interpretation was that Member States were only bound by the Charter when acting as agents in the application of EU law and where implementing an EU directive. The Charter would not be applicable in other instances where the EU courts had held that the fundamental rights’ jurisprudence bound the Member States, such as when Member States attempted to derogate from EU law.

3)     The broader construction of Article 51 was that Member States were bound by the Charter whenever they act within the scope of EU law. There were four arguments for this wider view. First, there was a textual argument: the CJEU has, in the past, tended to use the phrase ‘implementing Community rules’ as synonymous with Member State rules that fall within the scope of Community law. Secondly, the broader interpretation is supported by the explanatory memorandum, which must be given due regard when interpreting Charter rights.[2] The original explanatory memorandum stated that ‘as regards the Member States, it follows unambiguously from the case law of the Court of Justice that the requirement to respect fundamental rights defined in a Union context is only binding on the Member States when they act in the context of Community law’.[3] This reading was reinforced by the updated explanatory memorandum on the Charter of Rights produced by the Convention on the Future of Europe when drafting the Constitutional Treaty. This memorandum stated in relation to Article 51 that ‘it follows unambiguously from the case law of the Court of Justice that the requirement to respect fundamental rights defined in a Union context is only binding on the Member States when they act in the scope of Union law.’[4] This formulation was retained in the version of the explanatory memorandum endorsed when the Charter was re-issued in 2007 at time of the signature of the Lisbon Treaty.[5] The memorandum cited established case law for this proposition, including jurisprudence on the application of fundamental rights when Member States attempted to ‘derogate’ from EU law.  If the narrow view had really been intended then the Member States had ample opportunity over the last decade to cast the explanatory memorandum in those terms, but did not do so. To the contrary, the formulation in the later versions of the memorandum reinforces the broader reading of Article 51(1). Third, the narrow view would lead to formalistic distinctions between situations where Member States would be bound by the Charter, and those where they would not, which make little sense in terms of principle. Fourthly, if the narrow view were taken the Member States would in all likelihood continue to be bound by the CJEU’s prior fundamental rights’ jurisprudence. The effect of the narrow view would then be that Member States were caught by the Charter in some instances, and in others by the Court’s prior case law.

4)     Åkerberg Fransson has now resolved the issue in favour of the wider view. The case concerned the applicability of Article 50 of the Charter, which provides that ‘no one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.’ This provision replicated that contained in Protocol 7 ECHR.  The Swedish court made a preliminary reference to the CJEU, asking whether national enforcement mechanisms for an EU VAT Directive were compatible with Article 50. The Directive allowed Member States to impose obligations which they deem necessary for the correct collection of the tax and for the prevention of evasion. Sweden adopted a system of tax and criminal penalties, which allowed judges to impose criminal sanctions to persons who had already been sanctioned by the tax authorities, albeit the judge in the criminal proceedings could deduct the administrative penalty from the criminal sanction.

5)     Sweden and a number of other governments argued that the case did not fall within the remit of the Charter because Sweden was said not to be implementing EU law for the purposes of Article 51(1). They contended that because the national law was not directly implementing a provision of EU law it was therefore not caught by the Charter.

6)     There had been considerable academic debate as to whether the wording of Article 51 narrowed the scope of application of the Charter against Member States, by way of comparison with the Court’s fundamental rights case law prior to the Charter. The CJEU resolved this issue in Åkerberg Fransson, finding against a narrow interpretation of the Charter.

17. It is to be recalled in respect of those submissions that the Charter’s field of application so far as concerns action of the Member States is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States only when they are implementing European Union law.

18. That article of the Charter thus confirms the Court’s case-law relating to the extent to which actions of the Member States must comply with the requirements flowing from the fundamental rights guaranteed in the legal order of the European Union.

19. The Court’s settled case-law indeed states, in essence, that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by European Union law, but not outside such situations. In this respect the Court has already observed that it has no power to examine the compatibility with the Charter of national legislation lying outside the scope of European Union law. On the other hand, if such legislation falls within the scope of European Union law, the Court, when requested to give a preliminary ruling, must provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation is compatible with the fundamental rights the observance of which the Court ensures (see inter alia, to this effect, Case C‑260/89 ERT [1991] I‑2925, paragraph 42; Case C‑299/95 Kremzow [1997] ECR I‑2629, paragraph 15; Case C-309/96 Annibaldi [2007] ECR I‑7493, paragraph 13; Case C-94/00 Roquette Frères [2002] ECR I‑9011, paragraph 25; Case C-349/07 Sopropé [2008] ECR I-10369, paragraph 34; Case C-256/11 Dereci and Others [2011] ECR I-0000, paragraph 72; and Case C-27/11 Vinkov [2012] ECR I-0000, paragraph 58).

20. That definition of the field of application of the fundamental rights of the European Union is borne out by the explanations relating to Article 51 of the Charter, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the purpose of interpreting it (see, to this effect, Case C-279/09 DEB [2010] ECR I‑13849, paragraph 32). According to those explanations, ‘the requirement to respect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of Union law’.

21. Since the fundamental rights guaranteed by the Charter must therefore be complied with where national legislation falls within the scope of European Union law, situations cannot exist which are covered in that way by European Union law without those fundamental rights being applicable. The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter.

22. Where, on the other hand, a legal situation does not come within the scope of European Union law, the Court does not have jurisdiction to rule on it and any provisions of the Charter relied upon cannot, of themselves, form the basis for such jurisdiction (see, to this effect, the order in Case C-466/11 Currà and Others [2012] ECR I-0000, paragraph 26).

23. These considerations correspond to those underlying Article 6(1) TEU, according to which the provisions of the Charter are not to extend in any way the competences of the European Union as defined in the Treaties. Likewise, the Charter, pursuant to Article 51(2) thereof, does not extend the field of application of European Union law beyond the powers of the European Union or establish any new power or task for the European Union, or modify powers and tasks as defined in the Treaties (see Dereci and Others , paragraph 71).

7)     The CJEU was clear that the Charter applies against Member States when they act within the scope of EU law. The reasoning in paragraph 21 is especially forceful in this respect, the CJEU stating that there cannot be situations that are governed by EU law, without fundamental rights as guaranteed by the Charter being applicable.

8)     The CJEU further held that Sweden was acting in the scope of EU law in the instant case, because the tax and criminal penalties were imposed, in part at least, for non-payment of VAT, which was governed by EU law. The fact that the national legislation upon which those tax and criminal penalties are founded was not adopted to transpose the EU Directive did not alter this conclusion, because it was designed to penalize an infringement of the Directive and was therefore intended to implement the obligation imposed on the Member States by the Treaty to impose effective penalties for conduct prejudicial to the financial interests of the European Union.[6]

9)     While the CJEU was therefore clear that the Charter was applicable, it was however willing to accord the national court some latitude in the application of fundamental rights, as is made clear from the following extract. The CJEU’s reasoning is that where the case is not determined entirely by EU law[7] national courts can apply national standards of protection on fundamental rights, subject to the twin caveats that the level of protection provided for by the Charter and the primacy, unity and effectiveness of EU law are not undermined.

29. That said, where a court of a Member State is called upon to review whether fundamental rights are complied with by a national provision or measure which, in a situation where action of the Member States is not entirely determined by European Union law, implements the latter for the purposes of Article 51(1) of the Charter, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of European Union law are not thereby compromised (see, in relation to the latter aspect, Case C-399/11 Melloni [2013] ECR I-0000, paragraph 60).

10) On the substance of the case concerning whether there was an infringement of Article 50 of the Charter, the CJEU held that the mere co-existence of tax penalties and criminal sanctions did not per se infringe Article 50. It would only do so if the tax penalty could itself be regarded as criminal in nature, and this was a matter to be decided by the national court in the light of criteria laid down by the CJEU.[8]

11) It is important to emphasize that the Charter provisions are only applicable where the Member State is acting within the scope of EU law. There must in that sense be some ‘lock on’ to EU law before a claimant can make use of the Charter. The following should merely be regarded as examples of the general precept that Member States are bound by Charter rights when acting in the scope of EU law. The Charter will be applicable when the Member States act as agents for the EU in the context of shared administration, and when they seek to take advantage of a defence to what would otherwise be the applicable EU norm. The Charter will apply to Member States when their action falls within the bounds of a Treaty article, regulation or decision. Thus if a Member State acting in the area of free movement of goods has national provisions that arguably infringe, for example, the right to protection for personal data, then this Charter right should be capable of being raised by the affected individual. The claimant would have to show a sufficient connection between the Charter right allegedly infringed and the particular area of EU law in order to justify the conclusion that the Member State action fell within the scope of Union law. The Charter will also be applicable when a Member State implements a directive. Member States have an obligation to implement directives, and thus if the choice of form and methods are felt to violate a Charter right then this should be capable of being raised in the national or EU courts.

12) It is important to emphasize also that the preceding analysis is concerned with the vertical application of the Charter to Member States when they implement EU law in the sense of acting within the scope of EU law. The extent to which Charter rights might be applicable horizontally as between individuals is a complex topic.[9] Suffice it to say for the present that Article 51 of the Charter is framed in terms of application to EU institutions and Member States. It does not in terms apply so as to impose an obligation on individuals, as noted by AG Trstenjak in the NS case, para 173,set out in para 19 of this note. There are, however, indications that some Charter rights could take effect as general principles of law.[10] It should in addition be noted that the obligation in Article 51 of the Charter on EU authorities and Member State authorities when they implement EU law to respect and enforce Charter rights, is binding inter alia on EU and national courts.  There is nothing that limits this obligation to vertical cases involving the state and it is therefore possible that Article 51 could have an element of what is termed indirect effect in horizontal cases, whereby the legal rules that pertain as between individuals are interpreted insofar as possible to be consistent with Charter rights.

2 Scope of Application of Protocol 30

13) The UK and Poland negotiated a Protocol[11] designed to limit the application of the Charter in certain respects. The Protocol contains a lengthy preamble, which, inter alia, reaffirms that Article 6 TEU requires the courts of the UK and Poland to interpret and apply the Charter in accord with the explanations referred to in that Article. The preamble moreover ‘notes’ the wish of Poland and the United Kingdom to clarify certain aspects of the application of the Charter.

14) The Protocol has two substantive articles. Article 1(1) states that the Charter does not extend the ability of the Union courts, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms. Article 1(2) further states that for the avoidance of doubt nothing in Title IV of the Charter, which concerns solidarity rights, creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law. Article 2 provides that insofar as a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognized in the law or practices of Poland or of the United Kingdom.

15) The ‘broad view’ of Article 1(1) of the Protocol was that it was akin to an opt-out, such that the Charter creates no legally enforceable rights that can be pleaded against the UK or Poland, either before Union or national courts. This view is not, however, sustainable when read in the light of the Protocol as a whole. If the intent had been for the Protocol to create a complete opt-out for the UK and Poland in relation to the entire Charter, then this could have been simply done. It would only have required a single article, suitably and simply worded to achieve this result. If this had been the intent behind Article 1(1) of the Protocol, then Article 1(2) and Article 2 would have been legally redundant. There would, by definition, have been no need for anything to have been said about, for example, solidarity rights not being enforceable against the UK and Poland if Article 1(1) constituted a complete opt-out from the entirety of the Charter. It should moreover be noted that the very wording of Article 2 assumes that the Charter applies to the UK and Poland. The broad view is moreover inconsistent with the wording of the preamble to the Protocol, in which the contracting parties ‘note’ that the UK and Poland wish to clarify ‘certain aspects of the application of the Charter’, and ‘reaffirm’ that ‘references in this Protocol to the operation of specific provisions of the Charter are strictly without prejudice to the operation of other provisions of the Charter’. These extracts from the preamble, and especially the latter, contradict a reading of the Protocol as a complete opt-out.

16) The ‘limited view’ focuses on the precise wording of Article 1(1), which states that the Charter does not ‘extend the ability’ of Union or national courts to find that national laws etc are inconsistent with rights reaffirmed by the Charter. On this view Article 1(1) has less impact.[12] The EU courts could, prior to the Charter, consider the legality of EU measures, and Member State action where it fell within the sphere of EU law, for violation of fundamental rights. The matter would often arise in the context of a preliminary ruling from a national court, which had the duty to consider the legality of, for example, Member State action for compliance with EU law, including fundamental rights. Viewed from this perspective the Charter does not ‘extend the ability’ of Union or national courts to find that national laws etc are inconsistent with Charter rights. Thus Article 1(1) affirms established orthodoxy, and reaffirms the injunction in Article 51(2) that the Charter does not extend the field of application of EU law. It fits moreover with the statement in the preamble that the UK and Poland wish to clarify certain aspects of the application of the Charter.

17) Article 1(2) is, by way of contrast, a substantive limit, which reduces the impact of Title IV of the Charter concerning solidarity rights. So too more generally is the stipulation in Article 2 that insofar as a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognized in the law or practices of those countries. It should nonetheless be noted that the crucial wording is ‘recognized in the law or practices’ of the UK and Poland. This wording provides the CJEU with interpretive discretion as to when a Charter right might be regarded as recognized by the law or practice of that country.

18) The limited view was affirmed by the CJEU in the NS case.[13] It held in relation to Art 1(1) of the Protocol that,

119.According to the wording of that provision, as noted by the Advocate General in points 169 and 170 of her Opinion in Case C-411/10, Protocol (No 30) does not call into question the applicability of the Charter in the United Kingdom or in Poland, a position which is confirmed by the recitals in the preamble to that protocol. Thus, according to the third recital in the preamble to Protocol (No 30), Article 6 TEU requires the Charter to be applied and interpreted by the courts of Poland and of the United Kingdom strictly in accordance with the explanations referred to in that article. In addition, according to the sixth recital in the preamble to that protocol, the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles.

120. In those circumstances, Article 1(1) of Protocol (No 30) explains Article 51 of the Charter with regard to the scope thereof and does not intend to exempt the Republic of Poland or the United Kingdom from the obligation to comply with the provisions of the Charter or to prevent a court of one of those Member States from ensuring compliance with those provisions.

121. Since the rights referred to in the cases in the main proceedings do not form part of Title IV of the Charter, there is no need to rule on the interpretation of Article 1(2) of Protocol (No 30).

122. The answer to the seventh question in Case C-411/10 is therefore that, in so far as the preceding questions arise in respect of the obligations of the United Kingdom, the answers to the second to sixth questions referred in Case C-411/10 do not require to be qualified in any respect so as to take account of Protocol (No 30).

19) The CJEU in this respect affirmed the view of Advocate General Trstenjak.

167. In my view, the question whether Protocol No 30 is to be regarded as a general opt-out from the Charter of Fundamental Rights for the United Kingdom and the Republic of Poland can be easily answered in the negative. This conclusion is suggested by an analysis of the wording of Protocol No 30, having particular regard to its recitals.

168. Under Article 1(1) of Protocol No 30, the Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.

169. According to its wording, Article 1(1) of Protocol No 30 therefore makes clear that the Charter of Fundamental Rights does not have the effect of either shifting powers at the expense of the United Kingdom or Poland or of extending the field of application of EU law beyond the powers of the European Union as established in the Treaties. Article 1(1) of Protocol No 30 thus merely reaffirms the normative content of Article 51 of the Charter of Fundamental Rights, which seeks to prevent precisely such an extension of EU powers or Article 1(1) of the Protocol does not therefore, in principle, call into question the validity of the Charter of Fundamental Rights for the United Kingdom and for Poland.

170. This view is confirmed in the recitals in the preamble to the Protocol, which confirms, in several places, the fundamental validity of the Charter of Fundamental Rights in the Polish and the English legal orders. For example, the third recital states that under Article 6 TEU the Charter is to be applied and interpreted by the courts of Poland and of the United Kingdom strictly in accordance with the explanations referred to in that article. Reference is made in the eighth and ninth recitals to the wish of Poland and the United Kingdom to clarify certain aspects of the application of the Charter and the application of the Charter in relation to the laws and administrative action of Poland and of the United Kingdom.

171. Whilst Article 1(1) of Protocol No 30 does not call into question the validity of the Charter of Fundamental Rights, but should merely be regarded as an express confirmation of the normative content of Article 51 of the Charter of Fundamental Rights, Article 1(2) of Protocol No 30 appears to seek to clarify the validity of individual provisions of the Charter in the legal orders of the United Kingdom and Poland. Under Article 1(2) of Protocol No 30, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as such rights are provided for in their respective national laws.

172. Article 1(2) of Protocol No 30 relates to the social fundamental rights and principles grouped together under Title IV of the Charter of Fundamental Rights (Article 27 to 38). That title, entitled ‘Solidarity’, is regarded as one of the most controversial areas in the evolution of the Charter. There was dispute not only over the fundamental question whether social rights and principles should be incorporated into the Charter, but also how many social rights should be included, how they should be organised in detail, what binding force they should have, and whether they should be classified as fundamental rights or as principles.

173. With the statement that Title IV of the Charter of Fundamental Rights does not create justiciable rights applicable to Poland or the United Kingdom, Article 1(2) of Protocol No 30 first reaffirms the principle, set out in Article 51(1) of the Charter, that the Charter does not create justiciable rights as between private individuals. However, Article 1(2) of Protocol No 30 also appears to rule out new EU rights and entitlements being derived from Articles 27 to 38 of the Charter of Fundamental Rights, on which those entitled could rely against the United Kingdom or against Poland.

174. Because the contested fundamental rights in the present case are not among the social fundamental rights and principles set out in Title IV of the Charter of Fundamental Rights, however, there is no need to examine in any greater detail here the question of the precise validity and scope of Article 1(2) of Protocol No 30. It is sufficient to refer to the 10th recital in the preamble to Protocol No 30, according to which references in that protocol to the operation of specific provisions of the Charter are strictly without prejudice to the operation of other provisions of the Charter.

175. Article 2 of Protocol No 30 provides, lastly, that where a provision of the Charter refers to national laws and practices, it only applies to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom.

176. In the light of the abovementioned recitals, it is not possible to infer from Article 2 of Protocol No 30 a general opt-out from the Charter of Fundamental Rights for the United Kingdom and the Republic of Poland. Moreover, Article 2 of Protocol No 30 applies solely to provisions of the Charter of Fundamental Rights which make reference to national laws and practices. That is not the case with the provisions of the Charter which are relevant in the present case.

20) In my view the CJEU’s judgment in NS was legally correct given the wording of Protocol No 30, and so too was the Opinion of the Advocate General.

21) The report of the European Union Scrutiny Committee 2007 at the time when what became Protocol 30 was drafted reveals two related points: the government did not conceive of the Protocol as a complete opt-out, and there were uncertainties in the government’s thinking as to what the precise impact of Protocol 30 would be. An issue that preoccupied the European Union Scrutiny Committee in 2007 was whether a CJEU ruling on the meaning of a Charter right given in the context of an action involving implementation in a different Member State would bind the UK insofar as it involved a point of legal principle concerning that Charter right. The answer is that the UK would be bound by such a ruling in the same way that it is bound by the CJEU’s interpretation of any other issue of EU law, and this is further affirmed by the last recital in the preamble to Protocol 30, which states that ‘this Protocol is without prejudice to other obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally’. Thus if the CJEU gave a legal ruling on the meaning of, for example, Article 47 concerning the right to an effective remedy and a fair trial in the context of a preliminary reference from another Member State, the CJEU ruling would lay down the legal meaning of that term for all Member States, assuming that the facts of a case in another state involved the same issue of legal principle. The point made in this paragraph is subject to the limits provided in Articles 1(2) and 2 of Protocol 30. Thus if a CJEU ruling were to interpret a particular Charter provision falling within Title IV so as to create justiciable rights in an action involving another Member State, then this ruling would not bind the UK, in the sense that it would not oblige the UK to recognize or create such rights. 

22) The criticism of the CJEU in NS by Mostyn J. in the AB case was, with respect, not warranted. Four points should be made in this regard.

23) First, UK courts prior to the AB case applied the Charter with equanimity, interpreting the term implementing EU law to mean whenever a Member State acts within the material scope of EU, RFU v Consolidated Information Services [2012] UKSC 55, para 28, L Kerr; R (Zagorski) v Secretary of State for Business, Innovation and Skills [2011] HRLR 6 140, paras 66-71 per Lloyd Jones J. See also Benkharbouche v Embassy of Sudan; Janah v  Embassy of Libya [2013] EAT

24) Second, courts interpret legal provisions based primarily on the text as informed by background material, such as the preamble. The text and preamble do not sustain the legal conclusion that Protocol No 30 was a complete opt-out from the Charter. This does not moreover appear to have been the intent of the UK government when it negotiated Protocol 30, see para 21 above. If it had been it would, as stated above, have been very simple to draft a complete opt-out. It would simply have said ‘The rights and principles contained in the Charter have no application to the UK and Poland’, with the provisions in the preamble suitably worded by way of introduction. Protocol No 30 contains no such provision.

25) Third, Mostyn J.’s critique is based in part on elision between the European Convention of Human Rights and the EU Charter of Rights. This is apparent when Mostyn J. states (para 12) that ‘The assertion in the sixth recital of the protocol that no new rights are created seems to me to be a misleading product of political compromise because on any view the Charter enunciates a host of new rights which are not expressly found in the European Convention on Human Rights signed in Rome in 1950.’ It is clear however that the statement in the sixth recital to the preamble to Protocol No 30 that no new rights are created by the EU Charter is a reference to pre-existing EU law, and is not directed at any comparison with the ECHR. The legal premise on which the EU Charter was drafted was that it was declaratory of rights that already existed in the EU legal order, and this is reflected in the Charter explanations to each article, which go to some length to explain the legal provenance of the particular provision. There may well be questions as to whether the Charter really can be regarded as merely declaratory of existing EU law, but that is entirely separate from the reasoning in Mostyn J.’s judgment. No one has ever claimed that the Charter was limited to rights found in the ECHR. To the contrary, the Charter was expressly drafted on the assumption that it was to cover a broader range of rights.

26) Fourth, Mostyn J. is however correct to point out that if the UK were to withdraw from the ECHR while remaining in the EU it would still be bound by the EU Charter, subject to the limits flowing from the Protocol considered above. This would mean that ECHR rights that are included in the EU Charter would continue to apply to the UK, insofar as the case fell within the scope of EU law. This has however always been so ever since the EU Charter became legally binding.

27) The Chairman of this committee, Mr William Cash, suggested during questions in the House of Commons to the Secretary of State for Justice concerning the AB case that legislation should be enacted to the effect that: ‘Notwithstanding any provision of the European Communities Act 1972, nothing in the Charter of Fundamental Rights of the European Union shall be binding in any legal proceedings of the United Kingdom and shall not form part of the law applicable in any part of the United Kingdom and that this Act reaffirms the supremacy of the United Kingdom Parliament.’ I make two purely legal comments in relation to this type of proposal.

28) First, the enactment of such legislation would place the UK in breach of EU law. The NS case was a ruling on the meaning of EU law, viz, the interpretation of Protocol 30 and its impact on the application of the Charter to the UK and Poland. The enactment of legislation akin to that in para 27 cannot unilaterally alter the CJEU’s legal interpretation of the Charter, nor can the UK unilaterally alter the Lisbon Treaty or the EU Charter.

29) Second, the enactment of legislation worded in accord with the formulation in para 27 would not prevent application of the CJEU’s fundamental rights jurisprudence to the UK. The EU Charter very largely replicates rights already existing in other parts of EU law or in the CJEU’s fundamental rights jurisprudence. This case law has been applicable against the Member States when they acted in the scope of EU law for nearly three decades, and this has not in general been regarded as problematic. The enactment of legislation worded in accord with para 27 would not legally prevent application of these precepts in the UK.

January 2014