158
Marta Cartabia
Troisième séance de travail — Les perspectives
to the Commission and, eventually, the preliminary reference became the in-
fringement procedure for the European citizens (
8
).
Also, protection of fundamental rights within the European Union –
which was originally meant to fill the gaps of the Treaties and consequently
to apply to the Community institutions – has in fact proved to be very effec-
tive in relation to Member States. Statistics show that, with some important
exceptions, the European Court of Justice has used the Charter and the other
principles on fundamental rights as external standards to ascertain the valid-
ity of national measures, more than as internal standards against which to
review European acts. As a matter of fact, before the EU Charter rights was
given legal binding effect, the protection of fundamental rights carried out by
the ECJ was mainly directed towards Member States’ measures (
9
), although
things may change in the future, as after the EU Charter has been recognised
the same legal status as the treaties, a rights-based judicial review of European
measures has already taken place more frequently (
10
).
3. As a result, today, acts and legislation of Member States are subject
to multiple judicial controls: the same case is often brought before national
courts – including supreme or constitutional courts –, the European Court of
Human Rights and, within the limits imposed by respective competences, the
judges of the European Union, including the European Court of Justice and
national courts acting as ‘European judges’.
(
8
) P. Pescatore,
Van Gend en Loos, 3 February 1963 – a View fromWithin,
inM. Poiares Maduro
and L. Azoulai (eds),
The Past and Future of EU Law: The Classics of EU Law Revisited on the
50 th Anniversary of the Rome Treaty
, Hart Publishing, 2010, pp. 3-9.
(
9
) The most relevant case is ECJ judgment of 3 September 2008 in Joined Cases C-402/05 P and
C-415/05 P,
Kadi and Al Barakaat
.
(
10
) See for example ECJ judgment of 9 November 2010 in Joined Cases C-92/09 and C-93/09,
Volker und Marcus Schecke and Eifert
, where the Court strikes down some provisions of a
Council regulation concerning the financing of common agricultural policy, because they
established an improper and disproportionate balance between the interest to transparency
on the use and allocation of European funds and the rights to privacy and protection of
personal data, guaranteed by Articles 7 and 8 of the EU Charter of Fundamental Rights. See
also ECJ judgment of 1 March 2011 in Case C-236/09,
Association Belge des Consommateurs
Test-Achats and Others
, where the Courts held the invalidity of some provisions of Council
Directive 2004/113/EC, concerning the application of unisex rules on premiums and
benefits in the insurance service sector, because they enable Member States to maintain
without temporal limitation and exemption from the rule of unisex premiums and benefits
thus infringing Articles 21 and 23 of the EU Charter of Fundamental Rights.
