Implementation of EU law through domestic measures after Fransson: the Court of Justice buys time and ‘non-preclusion’ troubles loom large

Abstract:

In 2014, the Court came to terms with the application of the Charter of Fundamental Rights to domestic measures in the wake of Fransson. The five cases discussed here provide an overview of the Court's subsequent interpretation of the 'implementation' link between EU law and national measures, required for the Charter to apply.

Arguably, the Court is playing by ear and eludes the real legal riddle: how to determine with certainty the application of EU law at large in a specific case. Because the application of the Charter depends on the application of EU law, this issue deserves more attention. In particular, the precise notion of the application of EU law could help to identify non-preclusion cases, i.e. those in which EU law applies to, but does not prohibit, domestic measures. Only in these cases does the Charter have added value as an autonomous standard of review.