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Conclusion

This chapter has provided an overview of the Charter's cultural diversity- related provisions. It has also attempted to analyse how the Charter relates to long-running discussions about how the Court balances market freedoms with fundamental rights. It was shown that what has been missing in this debate is an explicit awareness that the Charter has actually internalised these different interests. Initial judicial practice in the domain of trade/culture shows that there is no tendency to consistently favour economic interests. A striking factor, however, is that often relevant provisions of the Charter are not, or only partially dealt with. It is too early to assess whether the Charter is leading to different outcomes as compared with the pre-Charter period. What is quite clear is that this will remain a dynamic area given the many challenges that new technology poses.

Notes

  • 1. OJ C326, 26 October 2012, p. 391.
  • 2. See Article 6(1) TEU. See also Charter preamble, para. 5 and Article 52(7) CFR.
  • 3. Explanations relating to the Charter of Fundamental Rights, OJ C303, 14 December 2007, p. 17.
  • 4. CJEU, Case C-617/10, AkerbergFransson, 26 February 2014, paras 19-23.
  • 5. ECJ, Case C-260/89, ERT, 18 June 1991.
  • 6. CJEU, Case C-390/12, Robert Pfleger, 30 April 2014, para. 36.
  • 7. See Explanations, above, concerning Article 52(1) CFR. The articles mentioned in the Explanations have been partly renumbered later;for example, 'Articles 3 and 4(1) TEU' are the current 2 and 3(1) TEU.
  • 8. CJEU, Case C-291/12, Michael Schwarz v. Stadt Bochum, 17 October 2013, para. 38.
  • 9. CJEU, Case C-399/11, Stefano Melloni v. Ministerio Fiscal, 26 February 2013, para. 60.
  • 10. In 2013 Belgium was the last EU member state to ratify the Convention.
  • 11. The Revised European Social Charter has not been ratified by Croatia, the Czech Republic, Denmark, Germany, Greece, Luxembourg, Poland, Spain and the United Kingdom. See Council of Europe (2013a).
  • 12. CJEU, Case C-571/10, Servet Kamberaj, 24 April 2012. Although the Explanations (see above) to Article 34 CFR refer to the Revised European Social Charter, the Court did not draw conclusions from the fact that this treaty has not been - in all its parts - ratified by all EU member states.
  • 13. At this point this treaty was signed but not ratified by Belgium, Greece and Luxembourg. It was not signed or ratified by France.
  • 14. For a discussion of the right to good administration (Article 41 CFR-title V of the Charter), see however De Witte (2008a: 176-179).
  • 15. Referring to ECJ, Case C-288/89, Stichting Collectieve Antennevoorziening Gouda and others, 25 July 1991. The Court in this case accepted that this policy goal is connected to Article 10 ECHR (see para. 23).
  • 16. Referring to the seventeenth recital of Directive 89/552 (OJ L298, 17 October 1989, p. 23) which reads: '[T]his Directive... is without prejudice to ... acts of harmonization, in particular to satisfy mandatory requirements concerning the protection of consumers and the fairness of commercial transactions and competition'.
  • 17. At the time of writing, the CJEU had not yet referred to this article.
  • 18. At the time of writing, the CJEU had not yet referred to this article.
  • 19. See Explanations, above, concerning Article 14 CFR.
  • 20. On this see CJEU, Case C-566/10P, Italian Republic v. Commission, 27 November 2012. This case concerned the question of whether the European Personnel Selection Office should be obliged to publish competition notices in full in more than just the three official languages most widely used. The Court concluded that there was no justification for the new practice of restricted publication (para. 76).
  • 21. CJEU, Case C-202/11, Anton Las v. PSA Antwerp NV, 16 April 2013. The Court ruled on the legality of Belgian legislation obliging employment contracts in Flanders to be drawn up in Dutch. The defence of the Belgian state was placed in Article 22 CFR (para. 26), but then 'requalified' as a 'legitimate interest' which could justify a restriction on the freedom to provide services (para. 27). The Court concluded that the requirement to insist on one language only was not strictly necessary.
  • 22. At the time of writing, the CJEU had not yet referred to this article.
  • 23. Curzon writes: 'one may envisage that the transformation of the [CFR] from a mere political declaration to binding primary law might grant constitutional force to fundamental rights, placing them on par with the fundamental economic freedoms enshrined in the [TFEU]' (emphasis added).
  • 24. As the president of the Court wrote: '[t]here is no hierarchy between fundamental rights and fundamental freedoms as far as [Union] law is concerned' (emphasis added).
  • 25. ECJ, Case 4/73, Nold, 14 May 1974.
  • 26. ECJ, Case 151/78, Sukkerfabriken Nyk0bing, 19 January 1979.
  • 27. CJEU, Case C-283/11, Sky Osterreich GmbH v. Osterreichischer Rundfunk, 22 January 2013, para. 43.
  • 28. OJ L95, 15 April 2010, p. 1.
  • 29. Case C-283/11, above, para. 52.
  • 30. CJEU, Case C-70/10, Scarlet Extended, 24 November 2011.
  • 31. CJEU, Case C-360/10, SABAMv. NetlogNV, 16 February 2012.
  • 32. CJEU, Case C-314/12, UPC Telekabel Wien GmbH, 27 March 2014.
  • 33. CJEU, Case C-234/12, Sky Italia srl v. Autorita per le Garanzie nelle Comunicazioni, 18 July 2013. Sky complained that it was subject to unequal treatment in that different rules about the maximum percentage of commercials to be shown per hour applied to it and to public television channels. The Court discussed the equality issue with reference to Articles 20 and 21

CFR (para. 15), but characterised the freedom to provide services only with reference to Article 56 TFEU (para. 24).

  • 34. CJEU, Case C-12/11, Denise McDonagh v. Ryanair, 31 January 2013, para. 63.
  • 35. OJ L298, 17 October 1989, p. 23.
  • 36. CJEU, Case C-244/10 and C-245/10, Mesopotamia Broadcast A/S METV and Roj TV/AS v. Germany, 22 September 2011, para. 33.
  • 37. Ibid., para. 42.
  • 38. CJEU, Case C-466/12, Nils Svensson e.a. v. Retriever Sverige A.B., 13 February 2014. The case concerned the question of whether providing a page with deep links to newspaper articles infringed the intellectual property rights of the journalists who wrote these articles. The Court concluded that since these articles had been meant for public debate in the first place, freedom of expression considerations took precedence in this case.
  • 39. CJEU, Case C-435/12, ACI Adam BV and Others v. Stichting de Thuiskopie, 10 April 2014.
 
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