INTRODUCTION

The scope of application of EU fundamental rights is of great significance. It is of importance to determine at what point fundamental rights matters fall within the scope of Union law, because then the ECJ becomes competent to exercise judicial review and to set fundamental rights standards. This has implications for the powers that can be exercised by the EU institutions and the member states in the respective areas. Moreover, if the ECJ were to apply EU fundamental rights to situations where there are no rules of EU law, and therefore no powers for the EU, this would have the effect of unacceptably extending the EU ‘ s powers. The scope of application of EU fundamental rights is also of particular importance for exploring the (potential) development of positive obligations on the basis of EU law. The main question to be asked in that respect is to what degree it can be expected that positive obligations could indeed fall within, or rather outside, the scope of application of EU law.

In answering this question, the meaning of Article 51 of the Charter is of central concern. This chapter discusses, first, how scholars have interpreted the meaning of this provision (section 9.2.). What scope and what limits do they derive from this provision for the protection of fundamental rights by the ECJ, and how do they expect the ECJ to accommodate a notion of positive obligations into EU law on the basis of this provision? By finding answers to those questions, a theoretical framework for a development of positive obligations is set out which aims to respect the limits laid down in Article 51. Next, it is examined how the ECJ itself has interpreted and applied Article 51 of the Charter (section 9.3.). In this regard, three types of situations which the ECJ has found to fall within the scope of application of EU fundamental rights will be discussed. It is submitted that the EU in fact enjoys different types of powers in these three types of situations. The existence of these different types of powers needs to be acknowledged when assessing whether it would be possible for the ECJ to develop positive obligations in its case-law.