Introduction

Since entry into force of the Charter of Fundamental Rights of the European Union in 2009, it can be argued that all of the European Union's general principles of law are essentially ‘covered.’ The Charter codifies, directly or indirectly, all existing EU fundamental rights and legal principles. According to Barents and Brinkhorst, it can even be stated that the Charter must always be applied by the ECJ as well as the national courts. This seems to follow the reasoning set out in Faber, in which the ECJ held that when an EU legal norm is used as a rule of public order in an internal legal system and is of the same order as a national rule, the national courts are required to test each provision which is transposed into national law against the EU norm.

In this chapter we want to address the property rights issue, a fundamental right both covered by the Charter and the ECHR.

Article 17 Charter and Article 1 FP ECHR

While both the Charter and the ECHR offer protection of personal ownership rights, the application may differ.

In this particular case, it is important to compare Article 1 EP of the ECHR and Article 17 of the Charter. Article 17(1) of the Charter reads:

However, it should be noted that in Dutch policy papers and literature it has been argued (see also further below) that the conversion of pension rights does not need to be tested against the Charter in addition to testing it against Article 1 FP ECHR, as such a test would presumably lead to the same results. After all, Article 17 Charter and Article 1 FP ECHR in principle correspond, as is confirmed by the explanatory memorandum to the Charter.