1. The Charter of Fundamental Rights of the European Union Part B: Competences and Limitations Prof. Dr. Monika Böhm

2. Part B: Competences and Limitations I.Field of Application of the Charter II.EU-Competences: Overview III.EU-Competences: Work IV.Article 153 V.EU-Competences: (Public) Health (Art. 168) VI.EU-Competences: Education (Article 165 f.) VII.Discussion: Fields of CFR-Application in the areas of work, health and education? VIII.Limitations for the Member States: Free Movement of Persons IX.Discussion: Social and economic rights in the EU – political statements or “hard law“? X.Conclusion 2

3. I. Field of Application of the Charter 1. Articles 51 and 52 The provisions are addressed to the institutions, bodies, offices and agencies of the Union. Member states are only bound when they are implementing Union law. The limits of the Union´s powers are to be respected. 3

4. I). Field of Application of the Charter 2. ECJ: Akerberg Fransson-case (C 617/10) Facts of the case: Mr Akerberg Fransson has been subject to tax penalties and criminal proceedings due to breaches of his obligations to declare VAT 4

5. I). Field of Application of the Charter 2. ECJ: Akerberg Fransson-case (C 617/10) Art. 50 CFR Right not to be tried or punished twice in criminal proceedings for the same criminal offence. 5

6. I). Field of Application of the Charter 2. ECJ: Akerberg Fransson-case (C 617/10) I mplementation of EU-Law? ECJ: -Every Member Staat has to take all measures for ensuring collection of VAT -The EU´s own resources include revenue from the collection of VAT 6

7. I. Field of Application of the Charter - Discussion Difference between Article 51 and the UK/Poland-protocol 7

8. II. EU-Competences: Overview 1. Principle of conferral Article 6 TEU: (1) … The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. 8

9. … (2) Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States. II. EU-Competences: Overview 1. Principle of conferral Article 5 TEU: 9

10. … (3) Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States…. II. EU-Competences: Overview 2. Principle of subsidiarity Article 5 TEU: 10

11. II. EU-Competences: Overview 3. Limited Competences Exclusive – Article 2 (1) TFEU: When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts… 11

12. II. EU-Competences: Overview 3. Limited Competences Shared – Article 2 (2) TFEU: When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member states shall exercise their competence to the extent that the Union has not exercised its competence….. 12

13. II. EU-Competences: Overview 3. Limited Competences Coordination, support, supplement – Article 2 (5) TFEU: In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas. 13

14. III. EU-Competences: Work Title X: Social Policy Articles 151 ff. TFEU Article 151 TFEU: … To this end the Union and the Member States shall implement measures which take account of the diverse forms of national practices, in particular in the field of contractual relations, and the need to maintain the competitiveness of the Union economy. 14

15. IV. Article 153 TFEU: 1. With a view to achieving the objectives of Article 151, the Union shall support and complement the activities of the Member States in the following fields: (a) improvement in particular of the working environment to protect workers' health and safety; (b) working conditions; (c) social security and social protection of workers; (d) protection of workers where their employment contract is terminated; (e) the information and consultation of workers; (f) representation and collective defence of the interests of workers and employers, including co-determination, subject to paragraph 5; 4. The provisions adopted pursuant to this Article: - shall not affect the right of Member States to define the fundamental principles of their social security systems and must not significantly affect the financial equilibrium thereof, - shall not prevent any Member State from maintaining or introducing more stringent protective measures compatible with the Treaties. 5. The provisions of this Article shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs. 15

16. Article 156 TFEU: With a view to achieving the objectives of Article 151 and without prejudice to the other provisions of the Treaties, the Commission shall encourage cooperation between the Member States and facilitate the coordination of their action in all social policy fields under this Chapter, particularly in matters relating to: - employment, - labour law and working conditions, - basic and advanced vocational training, - social security, - prevention of occupational accidents and diseases, - occupational hygiene, - the right of association and collective bargaining between employers and workers. To this end, the Commission shall act in close contact with Member States by making studies, delivering opinions and arranging consultations … 16

17. V. EU-Competences: (Public Health) Article 168 (1) TFEU: (1) A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities. Union action, which shall complement national policies, shall be directed towards improving public health, preventing physical and mental illness and diseases, and obviating sources of danger to physical and mental health. … 17

18. V. EU-Competences: (Public Health) Article 168 (2) TFEU: The Union shall encourage cooperation between the Member States in the areas referred to in this Article and, if necessary, lend support to their action.... 18

19. V. EU-Competences: (Public Health) Article 168 (7) TFEU: Union action shall respect the responsibilities of the Member States for the definition of their health policy and for the organisation and delivery of health services and medical care. The responsibilities of the Member States shall include the management of health services and medical care and the allocation of the resources assigned to them. The measures referred to in paragraph 4(a) shall not affect national provisions on the donation or medical use of organs and blood. 19

20. VI. EU-Competences: Education (Articles 165 f. TFEU) Article 165 (1) TFEU: The Union shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity. … 20

21. VI. EU-Competences: Education (Articles 165 f. TFEU) Article 165 (2) TFEU: Union action shall be aimed at: - developing the European dimension in education, particularly through the teaching and dissemination of the languages of the Member States, - encouraging mobility of students and teachers, by encouraging inter alia, the academic recognition of diplomas and periods of study, - promoting cooperation between educational establishments, 21

22. VI. EU-Competences: Education (Articles 165 f. TFEU) Article 165 (4) TFEU: In order to contribute to the achievement of the objectives referred to in this Article: - the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, after consulting the Economic and Social Committee and the Committee of the Regions, shall adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States, - the Council, on a proposal from the Commission, shall adopt recommendations. 22

23. VII. Discussion: Fields of CFR-Application in the areas of work, health and education? 23

24. VIII. Limitations for the Member States: Free Movement of Persons 1. Article 45 TFEU: Freedom of movement for workers shall be secured within the Union. …. 24

25. VIII. Limitations for the Member States: Free Movement of Persons 2. Article 49 TFEU: … restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. … 25

26. VIII. Limitations for the Member States: Free Movement of Persons 3. Article 56 TFEU:... restrictions on freedom to provide services within the Union shall be prohibited… 26

27. IX. Discussion: Social and economic rights in the EU – political statements or “hard law“? 27

28. X. Conclusion FOR the Charter Psychological impact: we are one union, based not only on economic values but on fundamental rights as well Visibility Ties for the European Court of Justice 28

29. X. Conclusion Critical Points the wording is not clear (rights, freedoms, principles) Observe Field of application (ECJ!!) Gap between rights and competences of the EU 29

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