By Benedikt Pirker
In this case of last week, the Court was confronted once again with the question of the scope of application of the Charter of Fundamental Rights as regards Member State action. Many will remember the landmark decision in Åkerberg Fransson on the subject; the decision essentially equated the scope of EU law with the scope of application of EU fundamental rights: where Member States act thus within the scope of EU law, they are bound by EU fundamental rights and the CJEU is the ultimate interpretive authority. The case has caused quite some controversy, with some suggesting a judicial overreach by a Court determined to become the final instance for fundamental rights in the EU to the detriment of national catalogues of fundamental rights and the national courts called to protect them. Nonetheless, other observers – to which I would count myself – have rather read the decision as the confirmation of the principles laid out by the Court in its previous jurisprudence on the topic (see also the coverage of the case on this blog). Siragusa seems to strengthen this view in a number of ways. First, the result of the case can be considered as due deference towards national courts and fundamental rights protection at the national level. Moreover, the Court also uses extensive and systematic references to earlier case law to put its decision in context with the previous jurisprudence. Lastly, there is a valuable attempt to develop a first set of explicit criteria which might serve as future guidance to separate the national and the EU spheres of judicial competence in fundamental rights protection. Continue reading
We have covered on this blog the remarkable Åkerberg Fransson decision (see here and here), in which the Court essentially held that the scope of application of EU fundamental rights was identical to that of the scope of application of EU law itself. The Texdata case – apart from some internal market law aspects we will subsequently cover as well – can mostly be seen as a confirmation of that case law. This is remarkable because the setting in the case is less contentious than in Åkerberg Fransson, but the Court seems to be willing to use already this early opportunity to confirm and emphasize that Åkerberg Fransson is the law and here to stay. The case concerns a requirement in Austrian company law which creates – based on Article 12 of Eleventh Council Directive 89/666/EEC – a system of automatic penalty payments for the failure of a capital company in another Member State with a branch in Austria to submit certain accounting documents within a nine-month period. The Court was called to examine the compatibility of this system with the Directive, with the freedom of establishment and with the principle of effective judicial protection and the rights of defence as enshrined in Articles 47 of the Charter of Fundamental Rights and 6 (2) of the European Convention on Human Rights.
While I cannot go into every detail of the case for the present post, I will first cover the scrutiny by the Court under the requirements of the Directive, which helps to understand the details of the Austrian regime of sanctions; I will then briefly address aspects of the freedom of establishment; and last but not least I will focus on the scope of fundamental rights review exercised by the Court. Continue reading