Latzel/Reichert, Superobligatory transposition of directives and the scope of EU fundamental rights

Do Member States have to respect EU law, especially the Charter of Fundamental Rights (CFR) when they transpose EU directives into national law and thereby go beyond the minimum standard the directives require? Or do they act beyond the scope of EU law and are free to legislate within their national legal framework?

The authors have developed a guide to determine whether Member States are bound by the CFR when they transpose directives beyond their minimum standards. The guide generally corresponds to the case law of the ECJ. It can therefore help Member States and their (constitutional) courts find the right legal standard to measure national transpositions of directives against fundamental rights. The guide can also be valuable in anticipating how the ECJ might further advance its jurisdiction on the application of the CFR to superobligatory transposition of directives:

• When Member States transpose directives into national law, they are bound by EU fundamental rights only insofar as more far-reaching legal consequences are attached to issues covered by the directive (vertically superobligatory transposition). If Member States only extend the scope of a directive or pick up legal elements which are not regulated by the directive (horizontally superobligatory transposition), they are not bound by the Charter because they are in this respect not subject to any obligations under EU law and cannot affect objectives of the directive.

• When Member States transpose directives in a vertically superobligatory manner, they must comply with the Charter within the constraints of the competences conferred upon the EU: EU fundamental rights cannot be comprehensively applied if the EU only has competence for minimum harmonization. If the fundamental rights were applied in this case, there would be a quasi-maximum harmonization effect. This would interfere with the remaining competences of the Member States contrary to Article 51(2) CFR. The Charter would only unlawfully ‘cap’ the Member States’ autonomy by applying those fundamental rights which are contrary to the objective of the directive (for example, the freedom to conduct a business under Article 16 CFR to the protection of workers intended by a directive). If, however, a fundamental right has the same objective as the respective directive, its national transposition can also be measured against that fundamental right without shifting competences in favour of the EU. Thus, if the EU is only competent for minimum harmonization, the CFR can only be applied if the resulting rule could also have been set as secondary law. If the EU is competent for maximum harmonization and, nonetheless, only provides for minimum harmonization, Member States are comprehensively bound by EU fundamental rights when vertically exceeding the standards of the respective directive. In these cases, there is no risk of a hidden shift in competence in favour of the EU.

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