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Verdún Abogados

Verdún Abogados




Art. 6 (1) of the Treaty of the European Union provides that “the Union recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties”. Since the entry into force of the Treaty of Lisbon on 1 December 2009,  the Charter has become part of European Union primary law, being  given  binding legal effect.

On the one hand,  it can  be considered that the Charter is just a codified form of what already existed under the European Court of Justice  Jurisprudence, but, on the other hand, it is a fact that in the last years the number of claims brought before the European Court of Justice (ECJ) , directly -under Art. 263 TFEU[1]-  or indirectly -under Art. 267 TFEU[2]-, alleging violation of the rights of the Charter has  been raised. The expansion of the scope of the European Union law has undoubtedly contributed to this increase.

However, it must be pointed out that before the Lisbon Treaty came into force, the ECJ has repeatedly proclaimed an EU concept of  human rights and has stated that any provision of EU law contrary to human rights is to be annulled by the Court. Additionally,  it has declared  that “respect for fundamental rights forms an integral part of the general principles of law protected by the Court”(Case 11/70[3]).



Title VII  of the Charter (Articles 51 to 54) intended to clearly provide the situations under which the Charter may be invoked, and determine how the provisions of the Charter are to be interpreted.

The essential  point is that “the provisions of this Charterare addressed to the institutions, bodies,  offices and agencies of the Union with due regard to the principle of subsidiarity and to the Member States only when they are implementing Union law” (Art. 51 (1) of the Charter).  The existence of this condition will determine whether the litigant may raise the breach of a right conferred in the Charter before the Court. To asses such condition  the interpretation of the notion “implementation” will have an important role.

In  words of the  ECJ, “where a legal situation does not come within the scope of European Union law, the Court does not have jurisdiction  to rule on it (…)”.[4]

In the light of the foregoing, when a party to the domestic dispute has the intention of invoking the application of any  of the rights enshrined in  the Charter before the national judge, the litigant  should  perform a test or assessment of whether the  situation is falling   within the scope  of the European Union law. The connection between the case and the E.U. law may be assessed  by examining whether there is a norm of Union law other than a provision of the Charter which is applicable in concreto , in other words, directly relevant for the case at hand; the test is not satisfied by the simple fact that it is possible to cite a norm of Union law which on substance covers the same subject area as is at issue in the actual  case.[5]

The difference between a situation falling or not  within the scope  of the European Union law can be observed by examining the following two   cases:

In Sociedade Agricola case [6],  the claimant invoked  the application of  art. 47 of the Charter  (right to an effective legal protection) , the  Directive 2003/8 and the Court’s  judgment in case DEBDeutsche Energiehandels[7] (2010) in order that the Portuguese Court  sets aside  a Portuguese law which prohibits legal persons pursuing a commercial objective from obtaining legal aid. The ECJ  held that the Directive 2003/8 does not envisage the grant of legal aid to legal persons and that there is no concrete evidence in the order for reference to indicate that the claimant submitted a request for legal aid for a legal action seeking to protect rights conferred on it by Union law.

Following our test or assessment it could  be said that  the  alleged provision of Union law (Directive 2003/8) other than the provision of the Charter (art. 47), is not applicable in concreto and that Portugal is not implementing Union law when it prohibits the Portuguese companies from obtaining legal aid.

Although  both cases are dealing  with the same  issue - national legislation refusing legal aid to legal persons-,   the difference between the DEB case in which the ECJ held its jurisdiction  and the Sociedade case in which the ECJ decided its lack of jurisdiction is that in the former the ECJ could find the  connection of the case with European law as  DEB has applied for legal aid in order to bring an action to establish that the Bundesrepublik Deutschland has incurred in State liability under EU law for the delay in the transposition of Directive 98/30/EC,  resulting of that delay an extremely high financial  damage and being DEB unable to make the  necessary advance payment of court costs required by the  German law to  pursue the action seeking to establish State liability, which made in practice, impossible or, at the very least, excessively difficult, for DEB to obtain reparation.

It can be seen that assessment may be performed by the ECJ from different perspectives. It is therefore necessary to understand the existence of  difficulties with judicial review on the scope and applicability of the Charter and the decision whether the case falls within the scope of European Union law.



Despite the fact that the ECJ uses the Charter as a source of general principles of the European Union law against which the provisions of Directives and EU regulations (and provisions of  EU soft law) have to be interpreted and applied,[8] the Charter, as laid down in its Article 51 (2), does not extend the field of application of Union law.

Consequently,  the approach case-by-case is required to evaluate whether Union law is being implemented in a specific case where any right enshrined in the Charter is invoked before the  national court, which is obliged to apply European Union law within its sphere of competence and to protect the rights conferred on citizens by that law[9]  and to disapply any conflicting national provision,  of whatever rank, which could obstruct  the application of European Union law.[10]

If the national court has doubts on the interpretation of the European Union law, it should refer the questions to the ECJ for a preliminary ruling under the preliminary reference procedure.

In view of the foregoing, it seems to be appropriate that, in support of the alleged rights of the Charter,  an in-depth analysis of the direct relevance of the norm of the European Union in the case and of the connection of the case with European Union law is submitted to the ECJ.  The controversial points will be decided by the ECJ taking into consideration  the grade of relevance of the alleged norm of the European Union law and the rest of  circumstances at stake.



Francisco Verdún Pérez 


Fuengirola, Málaga, Spain.

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[1] Article 263 of the Treaty on the Functioning of the European Union (TFEU) establishes  the  action for annulment by virtue of which the applicant seeks the annulment of a measure (in particular a regulation, directive or decision) adopted by an institution, body, office or agency of the European Union.


[2]Article 267 of the TFEU contains the preliminary ruling procedure by means of which the Court of Justice cooperates with all the courts of the Member States. The national court  may, and sometimes must, refer to the Court of Justice and ask it to explain a point concerning the interpretation of EU law, whose clarification is necessary for the resolution of the domestic dispute. 


[3]Case 11/70, Internationale Handelsgesellshaft mbH and Einfuhr–und Vorratsstelle für Getriede und Futtermittel.  Judgment of the CJEC 17 December 1970


[4]Case C-617/10 Aklagaren v. Hans Akerberg Fransson.  Judgment of the C.J.E.U. 26 February 2013.


[5] Rosas, Allan. When is the EU Charter of Fundamental Rights applicable at national level?  Mykolo Romerio Universitetas , 2012  p. 1269-1288.


[6] Case C-258/13. Sociedade Agricola e Imobiliaria da Quinta de SPaioLda v. InstitutodaSegurança Social IP, Order of the Court 28 November 2013


[7]Case C-279/09 DEB Deutsche Energiehandels-und Beratungsgesellschaft mbH v. Bundesrepublik Deutschland. Judgment of the Court 22 December 2010.

“the Court  hereby rules:

The principle of effective judicial protection, as enshrined in Article 47 of the Charter, must be interpreted as meaning that it is not impossible for legal persons to rely on that principle and that aid granted pursuant to that principle may cover, inter alia, dispensation from advance payment of the costs of proceedings and/or the assistance of a lawyer (…)”


[8]  O’Neill, Aidan : “How the CJEU uses the Charter of  Fundamental Rights”. (2012)


[9] Principle of direct application of European Union law stated by the ECJ in the Van Gend & Loos judgment in 1963.


[10] Principle of primacy of European Union  law over national law established by the ECJ in  the Costa judgment in 1964




On the 30th of October 2012 it was published in the “Boletin oficial del Estado”-BOE- (Spanish official newspaper for new legislation) the Law number 7/2012, containing important measures against fraud.

Regarding especially, the prohibition of paying an amount of 2.500 euros or more in cash or it´s equivalent in any foreign currency during operations, in which any of the involved parties act in the name of a company or professional status.

If the payer is a private person non resident in Spain and not acting in the name of a company nor acting as a professional then the limit of amount is 15.000 euros or it´s equivalent in any foreign currency. This limit is not applicable when making payments and deposits into credit institutions. These rules regarding limitations of payments will come in force in 20 days after being published in BOE.

The remaining measures against fraud came into force on the 31st of October 2012, these meaning among other aspects some penalties will be tougher , introduction of some changes of the use of VAT in property transactions and the obligation to inform about assets and rights situated abroad (Bank accounts, Bonds, Real Estates, etc).

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