By Steve Peers

The recent ruling by the Court of Justice of the European Union (CJEU) in the Pfleger case confirmed a significant point about the reach of the EU Charter of Fundamental Rights. However, it also indirectly raised some doubts about the Charter’s effectiveness in such situations.

This case revolved around Austria’s limitations on gambling machines. The CJEU has handled numerous cases concerning national gambling restrictions, a topic not comprehensively addressed by EU law but still generally falling under EU internal market rules. The parties contesting the Austrian law’s enforcement questioned its compatibility with the EU Charter, specifically Articles 15 to 17 (covering freedom of occupation, business operation, and property rights) and Article 50 (prohibiting double jeopardy).

Is the Charter Applicable?

Article 51 of the Charter restricts its application to EU institutions and to Member States ‘only’ when they are ‘implementing’ EU law. This appears to narrow the established scope of previous CJEU case law on human rights protection. This case law, dating back to the 1991 ERT judgment, maintained that any national deviations from EU free movement rights must respect human rights as fundamental EU law principles. Strictly speaking, such national deviations weren’t easily viewed as measures ‘implementing’ EU law, leading many legal experts to question if the Charter’s scope was narrower than the general principles.

However, last year’s Fransson judgment affirmed that the Charter’s scope was identical to that of the general principles. Logically, this implied that national deviations from free movement rules fall under the Charter’s purview, with the Pfleger case marking the first time the Court explicitly confirmed this.

Contrasting Internal Market Rules and the Charter

Despite the case’s significance for human rights, the Pfleger judgment primarily focuses on the national rules’ adherence to EU internal market law. The CJEU, seemingly weary of the extensive litigation on this subject, simply restates its previous rulings and tasks the national court with applying them to the case. The CJEU does emphasize that if the national gambling restrictions lack a genuine connection to combating crime or social issues and merely aim to boost tax revenue, they cannot be justified. However, the Court relies on the national court’s findings on this matter.

So, what does the Charter contribute in this instance? Based on the case facts, not a great deal. As per the CJEU, if the national law restricted internal market freedoms, it simultaneously restricted the economic rights enshrined in Articles 15-17 of the Charter. Similarly, if the restrictions couldn’t be justified under internal market rules, they couldn’t be justified as limitations on Charter rights under Article 52 either.

It’s worth noting that the Court did not declare that analyzing the internal market rules within the Treaty would always yield the same result as the Charter analysis. The ruling specifically pertained to ‘circumstances such as those at issue in the main proceedings’. Therefore, it’s conceivable that for a different aspect of the free movement of services more closely linked to human rights than gambling – such as broadcasting – a national restriction might be acceptable from an internal market perspective but raise concerns about freedom of expression. At a minimum, separate applications of the internal market and human rights rules would undoubtedly be necessary when, for instance, the content of communications is being restricted.

The Court steered clear of the separate question of whether the enforcement (as opposed to the substance) of national rules should be judged from a human rights standpoint. It only noted that if the national rules violated Treaty provisions on internal market freedoms, their enforcement wouldn’t be permissible anyway. Conversely, the Advocate-General’s opinion assumed that if national rules were fundamentally compatible with internal market law and the Charter, the specifics of their enforcement could still be evaluated for Charter compliance.

Implications of the Judgment

Although this judgment solely addressed national deviations from internal market Treaty freedoms, there’s no reason to believe its impact is confined to such cases. Abundant EU legislation on various issues allows Member States to deviate from its rules in various ways. There’s no basis for considering the internal market Treaty provisions as unique regarding the Charter’s scope of application.

Specifically, as previously examined on this blog, national deviations from the e-privacy Directive concerning data retention and other forms of telecommunications interception are subject to the Charter, even after the data retention Directive’s annulment. The Court has already scrutinized such national deviations in the context of civil proceedings, and logically, it should do the same for criminal proceedings.

Barnard & Peers: chapter 9, chapter 16