15 Utrecht L. Rev. 1 (2019)

handle is hein.journals/utrecht15 and id is 1 raw text is: 





               Utrecht




                                This article is published in a peer-reviewed section of the Utrecht Law Review









Protection of the EU Charter for Private


Legal Entities and Public Authorities?


The Personal Scope of Fundamental


Rights within Europe Compared


Manon Julicher, Marina Henriques, Aina Amat Blai, Pasquale Policastro*





1. Introduction

Both the  European  Court of Human   Rights (ECtHR)  and the Court of Justice of the European  Union  (CJEU)
play an important  role in the protection of fundamental rights in Europe. However, whereas   the ECtHR  has
always  been  a heavyweight  in the  protection of fundamental   (human)  rights, the CJEU  has traditionally
played  a more  modest   role in this protection. Recently, however, this court has been  developing  into a
more  important  guardian of fundamental   rights.' One of the reasons for this is the coming into force of the
EU's own  fundamental   rights document:   the Charter of Fundamental   Rights of the  European  Union  (the
Charter), which  became  binding for EU Member States in   2009.2 Although  the CJEU  is increasingly dealing
with fundamental   rights cases, and appeals and referrals to the Charter are piling up,' there is still unclarity
concerning  the application of the Charter.4 Its doctrines and concepts are not as clearly defined as comparable
concepts  in the European Convention  on Human   Rights (ECHR). This is the case, for example, if one considers
the topic of the personal scope  of the fundamental   rights in the Charter. The issue of the personal scope
concerns  the question of who  can claim the protection  of the fundamental  rights.5 It is generally accepted


*  Manon Julicher is a PhD researcher in Constitutional Law at Utrecht University. Marina Henriques is a researcher at the Centre for Social
   Studies of the University of Coimbra and a PhD researcher at the University of Coimbra (Doctoral Program in Law, Justice, and Citizenship in the
   21st Century). Aina Amat Blai works as a legal specialist in EU law for the Human Rights Institute of Catalonia. Pasquale Policastro is full time
   professor at the University of Szczecin, Department of Constitutional Law and European Integration. Corresponding author: Manon Julicher,
   email: m.m.julicher@uu.nl. This article is written within the context of the project 'The Charter of Fundamental Rights in action'. This is a
   DG-Justice project that aims to promote better knowledge and awareness ofthe content, application and relevance ofthe EU Charter within
   the European legal order (http://www.ces.uc.pt/cfr/, last visited 20 June 2018). The authors like to thank Jose Manuel Pureza (coordinator
   of the project 'The Charter of Fundamental Rights in action'), Conceigio Gomes (executive coordinator of the Permanent Observatory for
   Justice, Centre for Social Studies), Philip Langbroek (Professor of Justice Administration and Judicial Organisation, Utrecht University), Rob
   Widdershoven (Professor of European Administrative Law, Utrecht University) and Janneke Gerards (Professor of Fundamental Rights Law,
   Utrecht University), who provided expertise and comments that greatly improved this paper. The authors also thank Carolina Carvalho (junior
   researcher at the Centre for Social Studies) for the assistance with the research on the Portuguese part of the paper.
1  J. Gerards, 'Who Decides on Fundamental Rights Issues in Europe? Towards a mechanism to Coordinate the Roles of the National Courts,
   the ECJ and the ECtHR', in S. Weatherill and S. de Vries (eds.), Five years legally binding EU Charter of Fundamental Rights - What is the
   state of play in the protection of fundamental Rights in the EU? (2015); S. Weatherill, 'From Economic Rights to Fundamental Rights', in
   S. de Vries et al. (eds), The Protection of Fundamental Rights in the EU after Lisbon (2013); S. De Vries, 'The protection of fundamental
   rights within Europe's Internal Market after Lisbon - an endeavour for more harmony', in S. De Vries & U. Bernitz (eds.), Protection of
   Fundamental Rights in the EU after Lisbon (2013); J. Morijn, 'Balancing Fundamental Rights and Common Market Freedoms in Union Law:
   Schmidberger and Omega in the Light of the European Constitution' (2006) 12 European LawlJournal, no. 1.
2  Gerards, supra note 1, p. 49.
3   Ibid.
4  L. Bojarski et al., The Charter of Fundamental Rights as a Living Instrument (2014), p. 5.
5  D. Curtin & R. van Ooik, 'The Sting is Always in the Tail. The Personal Scope of Application of the EU Charter of Fundamental Rights',
   (2001) 8 Maastricht Journal of European and Comparative Law, no. 1, p. 103; S. Greer et al., Human rights in the Council of Europe and
   the European Union (2018), pp. 312-313.



www.utrechtlawreview.org   I Volume 15, Issue 1, 2019 | http://doi.org/10.18352/ulr.490 I

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 2,700 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Access to this content requires a subscription. Please visit the following page to request a quote or trial:

Already a HeinOnline Subscriber?