The Court of Justice Faced with Opting-out Member States
| Date | 01 December 2015 |
| DOI | 10.1177/203228441500600417 |
| Published date | 01 December 2015 |
| Author | Paolo Mengozzi |
| Subject Matter | Session 5: The CJEU and Future Challenges |
546 Intersentia
THE COURT OF JUSTICE FACED WITH
OPTING-OUT MEMBER STATES*
P M **
1. THE EXTENT OF THE OPTINGOUT PHENOMENON
e progressive enlargement of the European Community has called for special
changes in its rules . ese changes have mitigated the charac teristics belonging since
the very begin ning to Community ru les to aim at being applied in a uni form way. is
was made necessary to meet particu lar needs which, duri ng the negotiations for the
enlargement procedures, were put forward by some States c alled “opting-out States”
and which were nally satis ed. Basically the system is c omplex and rais es problems;
the idea of re uni fyi ng E urop e and to br ing t oget her S tate s wi th d i erent traditions has
made it necessary to complicate t he system even more.
e term “opting-out States” has a merely relative scope as it concerns the non-
application to these States of a speci c cluster of EU rules identi ed in ad hoc protocols.
For this reason the United Ki ngdom is an opting-out State vis-à-vis t he Charter of
Fundamental R ights under Protocol 30.1 e second paragraph of Article 1 of this
Protocol a rms that ‘nothing in Title IV of the Charter creates justi able rights
applicable to Poland or the United Kingdom except in so far as [these same States]
ha[ve] provided for such rights in [their] national law’.
With regard to Poland, instead, one scholar stresses that t here is a clear majority
opinion whereby the fact that that cou ntry is part of t he same Protocol 30 does not
mak e it a n opt ing- out S tate . is i s bec ause of De clar ati on 62, als o joi ned t o the Treat y
of Lisbon, whereby Poland has declared that, “ having regard to the tradition of social
movement of “Solidarit y” and its sig ni cant contribution to the struggle for social
and labour rights, it f ully respects socia l and labour rights, as est ablished by European
Union law, and in particular those rea rmed in tit le IV of the Charter of Funda mental
* is contribution is to be considered an Opinion, with reference to the traditional NJECL division
between Ar ticles and Opinion.
** Advocate Genera l CJEU.
1 Protocol 30 on the application of the C harter of Funda mental right s of the European Union to
Poland and United Ki ngdom, attached to the Treaty of Li sbon.
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