The Court of Justice handed down an interesting decision on 6 March 2014 in Case C-206/13 Cruciano Siragusa v Regione Sicilia. The judgment does two things: it declines to answer a preliminary question referred to it on the grounds it has no jurisdiction and it describes when the Charter of Fundamental Rights and the general principles of EU law come into play and when they don’t.
In short, the judgment doesn’t say anything especially new but it does set out clearly when there is a connection can be established between national litigation and EU law.
Here’s a quick summary of the facts. Signor Siragusa owned some land in Sicily which was in a landscape conservation area. He needed, according to the local planning rules, to obtain permission to make alterations to his land before he made them. He didn’t. He did the work first, made the alterations and applied for retrospective planning permission. That permission was refused and he was ordered to restore the land to its original state. He didn’t like that. He challenged the refusal before a local court and raised the issue whether the restrictions on his enjoyment of his property resulting from the local planning laws were compatible with EU law, in particular, the principle of proportionality and the Charter of Fundamental Rights.
The national court before which Signor Siragusa’s case was pending referred a question to the Court of Justice on whether whether Article 17 of the Charter and the principle of proportionality must be construed as precluding a provision of national legislation imposing restrictions on his ability to modify his land as he wished.
The Court of Justice held that it had no jurisdiction to answer the question referred because the national court had failed to show in its order for reference that the national planning legislation in issue falls within the scope of EU law or implements that law. Similarly, the national court had not established that the Court of Justice has jurisdiction to interpret the principle of proportionality in the present case.
What is interesting about the judgment is that provides a clear summary of when the Charter applies in the national legal order and when the Court of Justice has jurisdiction to interpret it.
The Court of Justice recalls that under Article 51(1) of the Charter, its provisions are addressed to the Member States only when they are implementing EU law. Article 6(1) TEU and Article 51(2) of the Charter specify that the provisions of the Charter are not to extend in any way the competences of the Union as defined in the Treaties. Accordingly, the Court is called upon to interpret, in the light of the Charter, the law of the European Union within the limits of the powers conferred on it (Case C‑256/11 Dereci and Others  ECR I‑11315, paragraph 71 and the case-law cited).
It also recalls that it has no jurisdiction to examine the compatibility with the Charter of national legislation falling outside the scope of EU law. If such legislation falls within the scope of EU law, on the other hand, the Court must provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation is compatible with the fundamental rights the observance of which the Court ensures (Case C‑617/10 Åkerberg Fransson  ECR, paragraph 19 and the case-law cited).
That definition of the scope of the fundamental rights of the EU is borne out by the explanations relating to Article 51 of the Charter, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the purposes of interpreting the Charter (Case C‑279/09 DEB  ECR I‑13849, paragraph 32). According to those explanations, the obligation to respect fundamental rights defined in the context of the European Union is binding upon the Member States only in respect of matters covered by EU law.
In this case, the Court of Justice held that while EU environmental law and the Italian landscape law pursued the similar but not the same objectives, the concept of ‘implementing Union law’, as referred to in Article 51 of the Charter, requires a certain degree of connection above and beyond the matters covered being closely related or one of those matters having an indirect impact on the other (Case C‑299/95 Kremzow  ECR I‑2629, paragraph 16).
In order to determine whether national legislation involves the implementation of EU law for the purposes of Article 51 of the Charter, some of the points to be determined are whether that legislation is intended to implement a provision of EU law; the nature of that legislation and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; and also whether there are specific rules of EU law on the matter or capable of affecting it (Case C‑309/96 Annibaldi  ECR I‑7493, paragraphs 21 to 23; Case C‑40/11 Iida  ECR, paragraph 79; and Case C‑87/12 Ymeraga and Others  ECR, paragraph 41).
In particular, the Court has found that fundamental EU rights could not be applied in relation to national legislation because the provisions of EU law in the subject area concerned did not impose any obligation on Member States with regard to the situation at issue in the main proceedings (Case C‑144/95 Maurin  ECR I‑2909, paragraphs 11 and 12).
The Court held that none of the provisions of Italian law in this case implemented any EU law which distinguishes this case from that of Case C‑416/10 Križan and Others , unpublished.
While the Court of Justice held that the Italian law in this case did not implement EU law, the analysis did not end there. The Court also examined whether the protection of fundamental rights in EU law risks being infringed through action at EU level or through the implementation of EU law by the Member States.
Such an analysis is needed to avoid a situation in which the level of protection of fundamental rights varies according to the national law involved in such a way as to undermine the unity, primacy and effectiveness of EU law (Case 11/70 Internationale Handelsgesellschaft  ECR 1125, paragraph 3, and Case C‑399/11 Melloni  ECR, paragraph 60). However, there is nothing in the order for reference to suggest that any such risk is involved in the case before the referring court.
Consequently, it was not established that the Court has jurisdiction to interpret Article 17 of the Charter (Case C‑245/09 Omalet  ECR I‑13771, paragraph 18; see also the Orders in Case C‑457/09 Chartry  ECR I‑819, paragraphs 25 and 26; Case C‑134/12 Corpul Naţional al Poliţiştilor  ECR, paragraph 15; Case C‑498/12 Pedone  ECR, paragraph 15; and Case C‑371/13 SC Schuster & Co Ecologic  ECR, paragraph 18).
Finally, as for the principle of proportionality, the Court of Justice recalled that it is a general principle of EU law which must be observed by any national legislation which falls within the scope of EU law or which implements that law (Case 77/81 Zuckerfabrik Franken  ECR 681, paragraph 22; Case 382/87 Buet and EBS  ECR 1235, paragraph 11; Case C‑2/93 Exportslachterijen van Oordegem  ECR I‑2283, paragraph 20; and Joined Cases C‑422/09, C‑425/09 and C‑426/09 Vandorou and Others  ECR I‑12411, paragraph 65). Given that the referring court has failed to establish that the Italian legislation in this case falls within the scope of EU law or implements that law, it has by the same token not been established that the Court has jurisdiction to interpret the principle of proportionality in the present case.
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