WHO’S AFRAID OF THE CHARTER? THE COURT OF JUSTICE,
NATIONAL COURTS AND THE NEW FRAMEWORK OF
FUNDAMENTAL RIGHTS PROTECTION IN EUROPE
DANIEL SARMIENTO*
In Edward Albee’s famous play Who’s Afraid of Virginia Woolf?, two
middle-aged and sophisticated academics, George and Martha, struggle to
keep their marriage alive by creating the illusion of a son they never had. As
the play goes on and George and Martha unashamedly confront each other in
front of two young guests during a late-evening gathering, they sing to
themselves every now and then “who’s afraid of Virginia Woolf?” The
audience eventually realizes thatVirginiaWoolf represents a life made of false
illusions. The imaginary son George and Martha never had, the illusion they
both artificially created, was the only reason to keep their marriage together.
Albee’s disturbing play is thus a reminder of the importance of facing reality,
but also of the force of illusions (and their risks) in keeping relationships
together.
For many years, the Court of Justice of the European Union and the
constitutional courts of the Member States have lived under the illusion of
unilateral supremacy. According to the Court of Justice, EU law has primacy
over national Constitutions, whilst national supreme jurisdictions have
repeatedly stated that EU law’s ultimate source of legitimacy lies in the
Constitution of the Member State, thus subjecting EU law to constitutional
review. The illusion played the trick and it has bound this odd couple happily
together for more than forty years.
However, the entry into force of the Charter of Fundamental Rights of the
European Union (hereafter “the Charter”) has proved how fragile the illusion
and the marriage can be. In a series of ground-breaking decisions (Åkerberg
* Professor of EU andAdministrative Law (Universidad Complutense de Madrid) and legal
secretary at the European Court of Justice. I have profited from valuable comments from friends
and colleagues both at the Court and in the academic community. In particular I wish to thank
Ricardo Alonso García, Pedro Cruz Villalón, Xavier Groussot, José Gutiérrez-Fons, Holger
Hestermeyer, Sara Iglesias Sánchez, Flavien Mariatte, Francisco Mena-Parras, Siofra O’Leary,
Juan Luis Requejo, Dominique Ritleng, Suvi Sankari, Jan Zgilinksi and the anonymous
reviewers for excellent comments. Earlier drafts of this article were presented at the European
University Institute and at the Centre of Excellence in Foundations on European Law and Polity
of the University of Helsinki, where I also benefited from comments and questions from
participants. The usual disclaimer applies: all the views (the right ones but above all the wrong
ones) herein expressed are strictly personal.
Common Market Law Review 50: 1267–1304, 2013.
© 2013 Kluwer Law International. Printed in the United Kingdom.
Fransson, Melloni, N.S., etc.), the Court of Justice has put the Charter at the
forefront of European integration, an event that can hardly be a surprise in
light of the prominent status that the Charter was given by the Member States
once the Lisbon Treaty entered into force. The role of the Charter as a
paramount reference of EU law grants new interpretative powers to the Court
of Justice, but it does so in an area much cherished by national constitutional
courts.
Fundamental rights protection is one of the few areas in which
constitutional courts are willing to scrutinize EU law. Therefore, any conflict
between the Charter and a fundamental right as protected by a Member State’s
constitution could tragically put at risk the illusion that European courts have
comfortably lived under. In light of some reactions of constitutional courts to
the ECJ’s early case law on the Charter, it could all be taken as the very first
symptom of a marriage coming inevitably to a sad end.1
However, the opposite
could also be argued: through a process of trial and error, the ECJ and
constitutional courts might be struggling to accommodate their respective
claims of supremacy in a novel and more sophisticated framework in which all
legal orders pursue a new role in a composite legal space. Such a process could
result in a different arrangement for EU and national fundamental rights
protection, but also in a common understanding of constitutional supremacy in
the European Union. In other words, the highest courts in Europe could be
struggling to find a way to live in harmony without the assistance of false
illusions, but with the benefits and the daunting challenges of having to face
reality. This article will show that such process is currently in the making, and
it will be argued that the chances of living a life comfortably together, but
without false illusions, might be too good to be spoiled.
First, I deal with the impact of the Charter in EU Law and will explain how
it has conditioned the way in which EU lawyers currently approach
fundamental rights in Europe.As a result of this impact, section 2 will address
one of the most contested issues since the enactment of the Charter: its scope
of application when applied by Member States. Some criteria will be proposed
in an attempt (fallible, but an attempt nevertheless) to determine the exact
scope of Article 51(1) of the Charter after the ECJ’s seminal decision in
Åkerberg Fransson. Section 3 will then address, once the scope of application
of the Charter has been determined, how the Charter interacts with national
1. See the judgment of 1 Jan. 2012 of the Czech Constitutional Court (Pl. ÚS 5/12),
declaring that the ECJ breached the right to a fair trial; the judgment of the Polish Constitutional
Court of 16 Nov. 2011 (SK 45/09) on the constitutionality of Regulation 44/2001; and more
recently the judgment of the German Federal Constitutional Court of 24 April 2013 (1 BvR
1215/07), pointing in a precautionary dictum at the limits of the scope of application of EU
fundamental rights. On this last judgment, see the editorial comment “Ultra vires – has the
Bundesverfassungsgericht shown its teeth?” 50 CML Rev, 925–929.
CML Rev. 20131268 Sarmiento
fundamental rights when national courts find themselves under the obligation
to serve two masters. Åkerberg Fransson and Melloni have set the basic rules
for a new framework of fundamental rights in Europe. Whether this new
framework is bound to work will depend on future developments. This article
proposes a few ways forward, while raising some queries that the framework
will eventually drive the ECJ to address.
1. What’s in a Charter?
When the Charter entered into force on 1 December 2009, the prospects of a
revolutionary impact in EU law were far from clear.2
The ECJ had been
proclaiming for decades that fundamental rights were part of EU law as
general principles, thus possessing the status of primary law.3
This case law
was the result of the pressure exerted by national Constitutional courts in the
early 1970s, in particular by the German Federal Constitutional Court,
concerned as it then was with the lack of scrutiny of EU acts in light of
fundamental rights and freedoms.4
In a well-known story often told, the ECJ
rose to the challenge and declared that EU law was bound to observe
fundamental rights as general principles of law, as derived from the common
constitutional traditions of the Member States and from the standards of
protection guaranteed by international instruments for the protection of
fundamental rights, not least the European Convention on Human Rights.5
In
the late 1980s it became obvious that the ECJ’s scrutiny would not only
concern EU acts, but also Member State action when implementing EU law.6
The scope of fundamental rights over time even went as far as recognizing
their potential impact inter privatos, as in the case of non-discrimination on
the grounds of sex or age,7
or the right of collective action.8
Prior to the change
2. See Weiler, “Does the European Union Treaty Need a Charter of Rights?” 6 ELJ (2000),
95–97; De Witte, “The legal status of the Charter:Vital question or non-issue?” 8 MJ (2001), 81
et seq., and Iglesias Sánchez, “The Court and the Charter: The impact of the entry into force of
the LisbonTreaty on the ECJ’s approach to fundamental rights”, 49 CMLR (2012), 1565–1568.
3. See the seminal judgments in Case 29/69, Stauder, [1969] ECR 419 and Case 11/70,
Internationale Handelsgesellschaft, [1970] ECR 1125, followed, inter alia, by Case 4/73, Nold
v. Commission, [1974] ECR 491 and Case 44/79, Hauer, [1979] ECR 3727.
4. On the tensions between the ECJ and the Bundesverfassungsgericht in the late 1960s and
early 1970s, see Alter, Establishing the Supremacy of European Law. The Making of an
International Rule of Law in Europe (OUP, 2001).
5. See Weiler, The Constitution of Europe. “Do the New Clothes have an Emperor?” and
other Essays on European Integration (Cambridge University Press, 1999), pp. 103 et seq.
6. Case 5/88, Wachauf, [1989] ECR 2609; Case C-260/89, ERT, [1991] ECR I-2925.
7. Case 43/75, Defrenne, [1976] ECR 455 (equality on the grounds of sex) and Case
C-144/04, Mangold, [2005] ECR I-9981 (equality on the grounds of age).
Fundamental Rights 1269
in the Charter’s legal value in 2009, it appeared that the EU had a very
dignified fundamental rights record in spite of the absence of a written text
showing those rights.There were thus well-founded reasons to believe that the
Charter would be a mere confirmation of past practice, a rubberstamp of the
status quo as it then stood in late 2009.
With the benefit of hindsight, it can now be said that the Charter has been
the source of very significant changes in EU law. Far from being a decorative
declaration validating past practices, the Charter has forced the Union to take
fundamental rights even more seriously, a move that has consequently pushed
the ECJ in the same direction.The reasons underlying this change appear as an
illustrative background when explaining the ECJ’s recent case law.
Making fundamental rights visible has the virtue of bringing to the forefront
of the debate many issues that might have given the wrongful impression of
being peacefully resolved. By rendering those rights more visible, Member
States may now be exposed to specific obligations limiting their margin of
action. Individuals become familiarized with the standards to which Member
States are bound when implementing EU law, in the same way those same
individuals can also demand the EU to act in accordance with, and promoting,
the rights proclaimed in the Charter. EU and national judges are no longer the
enforcers of a casuistic array of rights whose content only appears spread over
numerous judgments of the ECJ, but the guardians of a fully-fledged
declaration of rights. The visibility of rights transforms them into perceivable
matter, a tangible good added to the patrimony of the individual.Above all, the
visibility of the Charter puts in the limelight two issues that have been
discretely managed in the past by the ECJ, but that now demand a clear and
direct answer: the division of competences between the Union and its Member
States, and the status of the individual as a Union citizen.
Once EU fundamental rights become a tangible reality, authorities are
entitled to know what portion of the obligation they must comply with. When
fundamental rights benefited from a certain obscurity, acting solely as general
principles, the precise share of the burden was an issue that often remained on
the sideline. However, at the present time Member States are perfectly right to
demand a clearer division of tasks, knowing as they do what the Charter
carries within. Since the ECJ’s seminal decision in Wachauf,9
in which the
ECJ recognized that Member States were also bound by EU fundamental
rights when implementing EU law, the degree of exposure of Member States
to EU fundamental rights has been on a gradual yet constant rise.The wording
8. Case C-438/05, International Transport Workers’ Federation and Finnish Seamen’s
Union (Viking Line), [2007] ECR I-10779, para 54; Case C-341/05, Laval un Partneri, [2007]
ECR I-11767, para 98.
9. Cited supra note 6.
CML Rev. 20131270 Sarmiento
of the Charter itself is ambiguous on this point, its Article 51(1) does not
confirm whether that trend is to be stopped, whether it may continue, or if the
Wachauf doctrine should be reconsidered altogether. Until the ECJ’s recent
decisions, Member States were well aware that the scope of application of the
Charter required an overt, clear and convincing decision from the ECJ that
would eventually have major consequences for the distribution of powers
between the Union and its Member States. All in all, the Charter was raising
“the federal question”.10
Though EU Institutions and Member States remain the formal addressees
of the Charter, it is the individual who benefits from the rights. However, the
status of the individual has been far from settled in the evolving history of
European integration and of EU law in particular. Restrictive standing
requirements of individuals for EU courts have contrasted with the generous
array of EU remedies those same individuals benefit from vis-à-vis national
courts.11
The “economic individual” benefits from free movement rules,
whilst the “non-economic individual” remained for a long time the pariah of
integration. These paradoxes came partially to an end with Maastricht’s
proclamation of Union citizenship, a status that is destined to be, according to
the ECJ, “the fundamental status of nationals of the Member States”.12
Since
1992, the status of Union citizens (and as a result, also of many third country
nationals) has reinforced the role of the individual as a relevant protagonist of
European integration.13
The Union citizen is not a passive subject whose sole
destiny is to receive the goods that the internal market provides. Citizens are
called to play an active role in the process, a significant voice with the power
to condition EU and national policies.14
The paradigm of EU citizenship was
evident in 2010, when the ECJ proclaimed the ability of Article 20 TFEU to
protect “the genuine enjoyment of the substance of the rights attached to the
status of citizenship”. In Rottmann and Ruiz Zambrano,15
EU citizenship
10. Shortly after the Charter was solemnly proclaimed (but not enacted as binding law), Piet
Eeckhout, in one of the first doctrinal comments ofArt. 51(1) of the Charter, used an illustrative
title: “The EU Charter of Fundamental Rights and the Federal Question”, 39 CML Rev (2002).
11. The paradigm of this case law is Case C-50/00 P, Unión de Pequeños Agricultores v.
Council, [2002] ECR I-6677.
12. Case C-184/99, Grzelczyk, [2001] ECR I-6193, para 31, confirmed later in, inter alia,
Case C-224/98, D’Hoop, [2002] ECR I-6191, para 28, and Case C-209/03, Bidar, [2005] ECR
I-2119, para 31.
13. See O’Leary, The Evolving Concept of Community Citizenship (Kluwer Law
International, 1996) and Closa, “The Concept of Citizenship in theTreaty on European Union”,
29 CML Rev. (1992), 1137.
14. See, in particular,Art. 10TEU andArts. 39 to 46 of the Charter, underTitleV (Citizens’
rights).
15. Case C-135/08, Rottmann, [2010] ECR I-1449 and Case C-34/09, Ruiz Zambrano,
[2011] ECR I-1177.
Fundamental Rights 1271
finally became a self-standing status in the sole possession of the individual,
irrespective of a transfrontier link and fully cognizable by all courts. Against
this background, the Charter should eventually become a significant part of
the said “substance of the rights attached to the status of citizenship”.16
This article deals primarily with the first of these two issues. The ECJ’s
early decisions on the Charter show that the federal question has been the main
source of its concerns, particularly when dealing with the scope of application
of the Charter and its level of protection vis-à-vis national fundamental rights.
Of course Union citizenship and the content of each individual right have also
been at the heart of much controversy in the past years, but it seems obvious
that the federal question has attracted most attention because it acts as a
premise, a question préalable, to all the remaining issues. Thus, the following
section addresses the scope of application of the Charter as stated in Article
51(1), a matter dealt with by the ECJ in Åkerberg Fransson.17
It then deals
with the level of protection clause, Article 53 of the Charter, as interpreted in
Melloni18
and, indirectly, in Åkerberg Fransson and N.S.19
It will be argued
that the ECJ has created a new framework of “situations” with the purpose of
allocating the respective scopes of application and protection of the Charter
and of national fundamental rights. Despite some internal incoherence and a
fragmented structure that obscures its reading, criticisms addressed later on,
the arrangement designed by the ECJ attempts to recognize the strategic role
of supreme and constitutional courts, but also assures the autonomy of
Member States as well as the Charter’s prominent role in fundamental rights
protection.
2. Scope of application
Article 51(1) of the Charter refers to the personal and material scope of
application of the freedoms, rights and principles therein proclaimed, and it
does so in a very conventional way. As to the personal scope, the provision
states that the Charter is only addressed to Member States and to EU
institutions, bodies, offices and agencies. On the issue of the material scope,
the wording of the rule only restricts the applicability of the Charter when
referring to Member States, bound by its provisions “only when they are
16. Ruiz Zambrano, cited previous note, at para 42. On the link between fundamental rights
and the “substance of the rights” test, see Sarmiento, “The Constitutional Core of the European
Union”, in Saiz Arnaiz and Alcoberro (Eds.), National Constitutional Identity and European
Integration (Intersentia, 2013).
17. Case C-617/10, Åkerberg Fransson, judgment of 26 Feb. 2013, nyr.
18. Case C-399/11, Melloni, judgment of 26 Feb. 2013, nyr.
19. Joined Cases C-411 & 493/10, N.S. and Others, judgment of 21 Dec. 2011, nyr.
CML Rev. 20131272 Sarmiento
implementing EU Law”. Therefore, the rules on the scope of application
diverge depending on whether the Charter addresses EU Institutions or
Member States.20
Since the main focus of this article is on the role of Member States, the EU
Institutions are not dealt with in detail. Suffice it here to say that the status of
EU Institutions under the Charter is far from settled, as the current euro crisis
and the growing tendency towards fragmentation and intergovernmentalism is
proving. In Pringle, the ECJ confirmed that Member State action under the
umbrella of theTreaty establishing the European Stability Mechanism was not
an implementation of EU law.21
As a result, one may wonder what is the role
of EU Institutions in the establishment and daily governance of the ESM or,
for that matter, in the implementation of the Fiscal Compact, agreements in
which EU Institutions play an important yet peculiarly outsourced role.22
Similar queries concern the applicability of the Charter to certain agreements
into which the Union’s Institutions can enter, as in the case of Memoranda of
Understanding on Specific Economic Policy Conditionality, instruments
signed by the European Commission and a Member State subject to a
financial assistance programme, pursuant to Article 13(4) of the Treaty
Establishing the European Stability Mechanism.23
Considering the nature of
20. I will not deal here with the issue of horizontal effect of the Charter. For some authors,
the enumerated addressees of Art. 51(1) confirms the exclusion of any effects in relationships
inter privatos. On this issue, see the Opinions of A.G. Cruz Villalón in Case C-176/12,
Association de Médiation Sociale (nyr) and of A.G. Trstenjak in Case C-282/10, Dominguez,
judgment of 24 Jan. 2012, nyr.
21. Case C-370/12, Pringle, judgment of 27 Nov. 2012, nyr, paras. 179 to 182.
22. The Commission has assumed powers within the Board of Governors and the Board of
Directors of the European Stability Mechanism pursuant to Art. 4.4, 5.3, 5.6.g, 6.2, 13, 14.5,
16.5, 17.5 of the Treaty Establishing the European Stability Mechanism; the ECJ has also
assumed powers, underArt. 37.3 of the ESM Treaty.As to the Treaty on Stability, Coordination
and Governance in the Economic and Monetary Union (the Fiscal Compact), the Commission
has also received new powers according to Arts. 3, 5, 6 to 8 and 12. Article 8 of the Fiscal
Compact grants jurisdiction to the ECJ, while Arts. 4 to 6 give powers to the Council. This
attribution of extra-EU powers to EU Institutions has been approved by the ECJ in Pringle, cited
supra note 21, at paras. 155 to 177.The issue of EU institutions’ participation in non-EU bodies
and its impact in the application of the Charter was already discussed in 2002 by Jacqué, “La
Charte des droits fondamentaux de l’Union Européenne. Aspects juridiques généraux”, 14
Revue Européenne de Droit Public (2002), 110. More recently, see Peers, “Towards a New Form
of EU Law?: The Use of EU Institutions outside the EU Legal Framework”, 9 EuConst (2013).
23. So far, the ECJ has declared its lack of jurisdiction to interpret the Memorandum of
Understanding signed between the European Commission and Portugal in Case C-128/12,
Sindicato dos Bancários do Norte and Others, Order of 7 March 2013, nyr. However, the
preliminary reference concerned implementing measures prior to Decision 2011/344, on
granting Union financial assistance to Portugal. According to Art. 13(3) of the ESM Treaty,
“The MoU shall be fully consistent with the measures of economic policy coordination
provided for in the TFEU, in particular with any act of European Union law, including any
opinion, warning, recommendation or decision addressed to the ESM Member concerned”. At
Fundamental Rights 1273
the measures contained in these agreements, but also their impact on ordinary
citizens’ lives, it is surprising that the issue has remained unchallenged for so
long.
However, the main difficulties relate to determining the criteria of
application of the Charter to the Member States. The fact that Member States
are bound to the Charter “only” when they “implement” EU law puts them
under particular pressure, as they are obliged to comply with the rights
provided in the Charter, but also with the rights of their internal legal order.
This situation raises an issue of distribution of powers between the Union and
its Member States, but also of jurisdiction between the ECJ and its national
counterparts, guardians of their respective legal orders and, above all,
fundamental rights. To this end, the ECJ has built a case law that aims at
balancing the need to guarantee Charter rights in Member States, but also
safeguarding the autonomy of Member States and their internal instruments of
fundamental rights protection.
2.1. Member States and the implementation of EU law
2.1.1. The terms of the debate
According to Article 51(1), the provisions of the Charter bind Member States
“only when they are implementing Union law”.The term “implementation” is
not an innocent one, as it refers to situations where Member States act as
agents of the Union, enforcing EU rules. This commonly called “agency
situation”24
appears in contexts of strict implementation of EU law, wherein
the Member State acts as a decentralized administration of the EU, for
example in the customs union, the common organization of the sugar market,
or monetary policy in Eurozone members.25
However, the ECJ has also stated
in a well-established and hardly contested case law that Member States are
also bound by EU fundamental rights when acting “within the scope of
application” of EU law.26
This criterion is obviously much wider, exposing
Member States more broadly to EU fundamental rights, including when they
apply EU rules that grant a wide margin of discretion to Member States.Thus,
the fact thatArticle 51(1) refers, as the “only” relevant criteria, to situations in
the time of writing, another reference was pending before the ECJ, openly stating the link
between national austerity measures and Decision 2011/344 (Case C-264/12, Sindicato
Nacional dos Profissionais de Seguros e Afins).
24. The term comes from Weiler, op. cit. supra note 5, pp. 120 et seq.
25. Examples of “agency situations” pre-dating the Charter can be found, inter alia, in
Wachauf, cited supra; Case C-2/92, Bostock, [1994] ECR I-955, and Joined Cases C-20 &
64/00, Booker Aquaculture and Hydro Seafood, [2003] ECR I-7411.
26. See, inter alia, ERT, cited supra note 6; Case C-368/95, Familiapress, [1997] ECR
I-3689, and Case C-112/00, Schmidberger, [2003] ECR I-5659.
CML Rev. 20131274 Sarmiento
which Member States “implement” EU law, led some authors to interpret this
provision as a clear signal from the masters of the treaties, by virtue of which
the Charter would only apply to Member States when acting in an agency
situation, i.e. as a result of strict implementation of EU rules.27
However, the issue was not as simple as first appeared. Besides the literal
terms of Article 51(1) and the concerns of some members of the two
Conventions during the drafting of the Charter,28
there were many other
arguments supporting the preservation of the ECJ’s traditional case law which
would have led to the applicability of the Charter in both “implementation”
and “scope of application” situations.29
First, the explanations to the Charter,
whose interpretative authority is proclaimed in Article 6 TEU, state that “it
follows unambiguously from the case law of the Court of Justice that the
requirement to respect fundamental rights defined in the context of the Union
is only binding on the Member States when they act in the scope of Union
law”.30
Immediately after, the explanations refer to Wachauf and ERT, the
judgments that best portray the two well-established situations mentioned
above. Furthermore, there were some linguistic versions of Article 51(1) that
did not refer to “implementation” but to a more vague “application”, which
27. In this sense, see Huber, “The Unitary Effect of the Community’s Fundamental Rights:
the ERT-Doctrine Needs to be Reviewed”, 14 EPL (2008). Taking an intermediate stance, but
inviting the ECJ to undertake a self-restrained approach to Art. 51(1) contrasting with previous
case law, Ladenburger, “Protection of Fundamental Rights post-Lisbon – The interaction
between the Charter of Fundamental Rights, the European Convention of Human Rights and
National Constitutions” – Institutional Report, FIDE 2012, at p. 14 et seq.; von Danwitz and
Paraschas, “A fresh start for the Charter: Fundamental questions on the application of the
European Charter of Fundamental Rights”, 35 Fordham International Law Journal (2012), pgs.
1399 et seq., and Nusser, Die Bindung der Mitgliedstaaten an die Unionsgrundrechte, Mohr
Siebeck, 2011. Taking a broader view, see Craig, EU Administrative Law, 2nd
ed. (OUP, 2012),
pp. 446 et seq.; Kokott and Sobotta, “The Charter of Fundamental Rights of the European
Union after Lisbon”, EUI Working Papers, Academy of European Law, No. 2010/06, p. 6 et
seq., and Groussot, Pech and Petursson, “The Scope of Application of EU Fundamental Rights
on Member States’ Action: In Search of Certainty in EU Adjudication”, Eric Stein Working
Paper 1/2011. For an overall vision of the debate, see the ECJ’s Special Edition of its Bulletin
Reflet 2013/1, devoted to the Charter, and in particular pp. 43 et seq.
28. Although some members of the first Convention were determined to restrict the scope
of application of the Charter (see the authoritative account of Braibant, La Charte des Droits
Fondamentaux de l’Union Europénne, Seuil, 2001 pp. 251–252), such determination was not so
clear on the part of other members, as is the case of Mr Vitorino, representative of the
Commission, who qualified the language ofArt. 51(1) as a “stylistic precaution”. SeeVitorino,
“The Charter of Fundamental Rights as a foundation for the Area of Freedom, Security and
Justice”, Exeter Paper in European Law No. 4, Exeter, 2001, p. 17.
29. In this line of reasoning, see the Opinion of A.G. Bot in Case C-108/10 Scattolon (not
yet reported), paras. 180–120.
30. Italics added.
Fundamental Rights 1275
could be interpreted as a via media between the Wachauf and ERT lines of case
law.31
Prior to the principled decision in Åkerberg Fransson, the ECJ sent a few
somewhat contradictory messages when dealing with this issue.32
In Iida,33
for example, a case on free movement of persons, paraphrasing a scarcely
quoted case law from the 1990s (part of which was, however, referred to in the
explanations to Art. 51(1)),34
a five judge chamber stated that in order to
ascertain whether a Member State “implements” Union law in the sense of
Article 51(1), the following criteria should be considered: “whether the
national legislation at issue is intended to implement a provision of European
Union law, what the character of that legislation is, and whether it pursues
objectives other than those covered by European Union law, even if it is
capable of indirectly affecting that law, and also whether there are specific
rules of European Union law on the matter or capable of affecting it”.35
However, in Dereci,36
also a free movement of persons case, the Grand
Chamber declared that the applicability of the Charter depended on whether
“in the light of the circumstances of the disputes in the main
proceedings, … the situation of the applicants in the main proceedings is
covered by European Union law”,37
thus disregarding the very specific
requirements concerning nature, content and purpose of EU and domestic
rules enumerated in Iida.
The debate was resolved by the Grand Chamber in Åkerberg Fransson, a
case concerning the applicability of Article 50 of the Charter to the national
enforcement mechanisms of the VAT Directive. Article 22 of the Directive
allows Member States to “impose other obligations which they deem
necessary for the correct collection of the tax and for the prevention of
evasion”. In Sweden, a system of double administrative and criminal penalties
allowed judges to impose criminal sanctions on persons who had already been
sanctioned definitively by the tax authorities. Although the judge in the
criminal proceedings was empowered to deduct the administrative penalty
from the criminal sanction, the system was questioned in light of the ne bis in
idem principle, as enshrined in Article 50 of the Charter.
31. That is the case of the Spanish version (“aplicar”), as well as the Finnish (“soveltavat”)
and the Swedish version (“tillämpar”), as highlighted by Rosas and Kaila, “L’application de la
Charte des droits fondamentaux de l’Union Européenne par la Cour de Justice: un premier
bilan”, 16 Il Diritto dell’Unione Europea (2011), 19.
32. See Rosas and Armati, EU Constitutional Law. An Introduction, 2nd
ed. (Hart
Publishers, 2012), pp. 166–167.
33. Case C-40/11, Iida, judgment of 8 Nov. 2012, nyr.
34. Case C-309/96, Annibaldi, [2007] ECR I-7493.
35. Iida, at para 79.
36. Case C-256/11, Dereci and Others, judgment of 15 Nov. 2011, nyr.
37. Dereci, at para 72.
CML Rev. 20131276 Sarmiento
The circumstances of Åkerberg Fransson were at the fringes of Article
51(1) of the Charter. The national judge would be imposing a sanction on a
person infringing the rules of an EU harmonized tax, VAT, probably the
paradigm of an exhaustively EU regulated tax and the revenues from which,
furthermore, make up a significant share of the Union’s own resources. On the
point of enforcement, however, it was also self-evident that Member States
enjoy a wide margin of discretion, not only in light of their procedural
autonomy, but also as a result of the ambiguous terms ofArticle 22 of the then
applicable SixthVAT Directive. Member States are allowed to impose punitive
measures on individuals in order to prevent tax evasion, but do those measures
also have to be in conformity with the Charter? In its reply to this query, the
ECJ gave a coherent answer by means of four criteria that can be catalogued as
follows.
2.1.2. No relevant distinction between “implementation” and “scope of
application”
The ECJ came to the conclusion that Article 50 of the Charter was applicable
to a situation like that in Åkerberg Fransson. In a principled and detailed
judgment, the ECJ solved the apparent tension between the “implementation”
and “scope of application” situations by confirming its previous case law and
thus asserting that the Charter had not in any way changed the criteria of
applicability of EU fundamental rights from prior to 1 December 2009. In the
words of the ECJ,Article 51(1) “thus confirms the Court’s case law relating to
the extent to which actions of the Member States must comply with the
requirements flowing from the fundamental rights guaranteed in the legal
order of the European Union”.38
This decision makes sense. It is obvious that if the Charter’s aim was to
overrule the ECJ’s pre–2009 case law on the scope of application of
fundamental rights, it would have done so in unambiguous terms. If the
Charter was enacted to make visible and to reinforce the protection of the
fundamental rights of individuals, a regressive decision concerning its scope
of application would have been of such relevance that it would have required
a clear statement on the part of its drafters. No such statement is to be found
throughout its provisions; quite the opposite. The ambiguity that flows from
the sum ofArticle 51(1) and the explanations, the lack of clear and consensual
indications during the debates in both Conventions, and the diversity of
linguistic versions of Article 51(1), were sufficient proof that the Charter was
not in the business of changing the ECJ’s case law on this point.39
As the
Advocate General held in his Opinion in Åkerberg Fransson, if the ECJ was to
38. Åkerberg Fransson, at para 18.
39. See references in footnotes 28 and 31 supra.
Fundamental Rights 1277
declare the inapplicability of the Charter in the case at hand, a revision of its
previous and consolidated case law would have been needed, since the Charter
did not provide conclusive arguments in favour of an overruling. The ECJ
agreed on this point with its Advocate General, although it disagreed when
declining his invitation to perform such an overruling in the circumstances of
Åkerberg Fransson.40
2.1.3. No areas of EU law foreign to the Charter
By refusing to embrace a regressive interpretation of Article 51(1) of the
Charter, the ECJ also rejects the possibility that Member States might act
within the scope of application of EU law but with no duty to respect the
Charter. A strict interpretation of Article 51(1) would have confirmed the
existence of areas in which EU law would be applicable, but not the Charter.
The ECJ has clearly rejected this scenario in Åkerberg Fransson, and for this
purpose it stated that “situations cannot exist which are covered in that way by
European Union law without those fundamental rights being applicable”.41
In
one of the most powerful passages of the judgment, the ECJ bluntly
concluded: “the applicability of European Union law entails applicability of
the fundamental rights guaranteed by the Charter”.42
In the expressive terms
used by Lenaerts and Gutiérrez-Fons commenting this passage, the Charter
thus becomes the “shadow” of substantive EU rules.43
2.1.4. No Member State acts foreign to the Charter
The same rationale applies also to Member States when they apply EU law. In
Åkerberg Fransson, one of the arguments of the Member States in support of
the purely internal character of the case was that Swedish criminal law was not
a transposition measure of the Sixth VAT Directive. In their opinion, Member
State action that is not intended to be an “implementation” of EU law
(although it might indirectly serve such purpose) should not be considered
“implementation” in the sense of Article 51(1) of the Charter. We can find
some support for this argument in the aforementioned case of Iida, a
five-judge chamber judgment rendered shortly before Åkerberg Fransson,
where the ECJ pointed, among other criteria, at the importance of “whether the
national legislation at issue is intended to implement a provision of European
Union law”.
40. Opinion of A.G. Cruz Villalón in Åkerberg Fransson, at para 5.
41. Åkerberg Fransson, at para 21.
42. Ibidem.
43. Lenaerts and Gutiérrez-Fons, “The Place of the Charter in the EU Constitutional
Edifice”, in Peers, Hervey, Kenner and Ward (Eds.), The EU Charter of Fundamental Rights.A
Commentary (Hart Publishers, 2013). On this passage of the judgment, see also Hancox,
annotation of Åkerberg Fransson, 50 CML Rev.; (2013), 1411–1432.
CML Rev. 20131278 Sarmiento
In Åkerberg Fransson, the ECJ’s Grand Chamber departed from Iida and
rejected the Member State’s position, concluding that “the fact that the
national legislation upon which those tax penalties and criminal proceedings
are founded has not been adopted to transpose Directive 2006/112 cannot call
that conclusion into question, since its application is designed to penalize an
infringement of that directive and is therefore intended to implement the
obligation imposed on the Member States by the Treaty to impose effective
penalties for conduct prejudicial to the financial interests of the European
Union”. Therefore it is not the intention of the State, but the function of the
State act regarding the implementation of EU law which matters.44
The ECJ
thus relies on the effect and not the cause of Member State action, a criterion
that is perfectly coherent with the need effectively to guarantee Charter rights.
Otherwise, the protection of those rights would be avoided by a simple
statement of the concerned Member State denying that its original purpose
was to implement EU law.
2.2. “Triggering rules”
The judgment in Åkerberg Fransson provides relevant criteria concerning the
interpretation ofArticle 51(1) of the Charter. However, the judgment does not
codify the different links that the ECJ has developed throughout the years in
determining when Member States “implement” EU law. After Åkerberg
Fransson, we know that “implementation” in the sense of Article 51(1) also
refers to situations within “the scope of application” of EU law. However, we
are still missing the overall picture.
Although such picture might not be found in one single judgment, the ECJ’s
recent case law is providing some resources that help to construct a list of
criteria to trigger the application of the Charter. If Member States only need to
apply the Charter when they “implement” EU law, in the sense settled by the
ECJ in Åkerberg Fransson, such an implementation will imply that there is a
substantive rule of EU law governing the facts of the case. This means that all
cases concerning the Charter will need as an essential precondition to its
application the existence of a substantive rule of EU law, what Ladenburger
has defined as “a concrete norm of EU law applied”.45
I will call such EU
44. It must be added that this outcome is coherent with the ECJ’s case law concerning the
obligation of consistent interpretation of national law in light of Directives. Since the judgment
in the seminal case of Marleasing (Case C-106/89 [1990] ECR I-4135), it is clear that national
courts must interpret not only the domestic rules transposing the Directive (i.e., those notified
by the Member State to the Commission), but the entire domestic legal order in search of a
consistent interpretation. This was openly stated in the Grand Chamber judgment in Joined
Cases C-397-403/01, Pfeiffer and Others, [2004] ECR I-8835), at para 115.
45. Ladenburger, op. cit. supra, p. 16 (italics added).
Fundamental Rights 1279
norm the “triggering rule”, for it acts as a catalyst for the application of the
Charter by Member States. In light of the ECJ’s case law, such triggering rules
can be catalogued into three groups, which I will call mandating rules,
optioning rules and remedial rules.46
Also, as the reverse side of the same coin,
there are exclusionary rules acting as negative triggers, for they point at areas
where EU rules do not apply at all.
2.2.1. Mandating rules
A Member State will be “implementing” EU law in the sense of Article 51(1)
of the Charter when it acts under an express mandate contained in a rule of EU
law. The “mandating rule” orders the Member State or States to undertake a
specific activity. It is thus a mandate to attain goals through specific means.
When acting pursuant to the said mandate, a Member State will be
“implementing” EU law and thus will be subject to the provisions of the
Charter.
Åkerberg Fransson is an example of such a mandate, whereby Member
States act under the obligation, pursuant to Article 22 of the Sixth VAT
Directive (now Art. 273 of Directive 2006/112), to ensure that every taxable
person submits a VAT return by a deadline to be determined by Member
States. Since the Member States are also, according to Article 325 TFEU,
under the obligation to take effective and deterring measures to counter fraud
affecting the financial interests of the EU, it is therefore clear that a national
punitive criminal reaction to a breach of these provisions constitutes an
“implementation” of EU law.
The mandate might grant a broad margin of Member State discretion or no
discretion at all, depending on the terms of the EU rule. This will have
consequences when it comes to determining the level of protection, an issue
examined below (section 3). But in order to determine the application of the
Charter, what the mandating rules require for the purposes of Article 51(1) is
that they contain a clear obligation, as to the goals and/or the means addressed
to the Member State. The use in the norm of imperative verbs like “shall”,
“will” or “must” are obvious indicators of an obligation acting as a mandating
rule. The same will result when the mandating rule grants an individual right
vis-à-vis the Member State; the mandate will be equally present, but as a result
of the exercise of the right by the individual.
46. A proposal inspired by Safjan, “Areas of application of the Charter of Fundamental
Rights of the European Union: Fields of conflict?” EUI WP Law 2012/22, pp. 7–12, who
distinguishes, under the category of “gear mechanisms”, between a “mechanism of
complementarity”, a mechanism of effectivity and a mechanism based on a “close functional
relationship”.
CML Rev. 20131280 Sarmiento
Cases concerning national criminal or administrative sanctions are good
examples of such mandating rules, inasmuch EU law frequently contains
provisions requiring Member States to ensure an effective enforcement of a
regulated area of EU policy.47
The same applies to equality law, an area in
which EU Directives mandate a goal through specific means, thus allowing
the Charter’s rules on equality to play a role when Member States implement
these directives.48
Other examples can also be found in the ECJ’s post-Charter
case law. For example, S.C.49
concerned the interpretation of Article 28(1) of
Regulation 2201/2003,50
according to which “a judgment on the exercise of
parental responsibility in respect of a child given in a Member State which is
enforceable in that Member State and has been served shall be enforced in
another Member State when, on the application of any interested party, it has
been declared enforceable there”.The mandate addressed to the Member State
ordering enforcement of the judgment must be complied with in conformity
with the Charter, as in S.C., where the ECJ scrutinized Member State action in
light of Articles 6 and 24 of the Charter.51
In Dülger,52
the ECJ was called to
interpret Article 7 of Decision No 1/80 on the development of the Ankara
Agreement. This provision establishes the principle that members of
the family of a Turkish worker who are not nationals of a Member State have
the right to accompany or join him or her in the host Member State. When the
worker exercises this right, Member States act within the mandate ofArticle 7
and, as in Dülger, they must comply inter alia with Article 7 of the Charter.53
2.2.2. Optioning rules
Member States may find themselves implementing an exhaustively regulated
area by EU law, but explicitly receiving by virtue of those rules the possibility
of making a choice. If the Member State decides voluntarily to follow such
47. The case law of the ECJ previous to the entry into force of the Charter is abundant. See,
inter alia, the judgments in Case 8/77, Sagulo and Others, [1977] ECR 1495; Case C-326/88,
Hansen, [1990] ECR I-2911; Case 68/88, Commission v. Greece, [1989] ECR 2965; Case
C-7/90, Vandevenne and Others, [1991] ECR I-4371, and Case C-262/99, Louloudakis, [2001]
ECR I-5547. After the entry into force of the Charter, the same rationale has been applied, as
seen in Case C-546/09, Aurubis Balgaria, [2011] ECR I-2531 and Case C-210/10, Urbán,
judgment of 9 Feb. 2012.
48. See, inter alia, Cases C-555/07, Kücükdeveci, [2010] ECR I-365; Case C-447/09,
Prigge, [2011] ECR I-8003 and Case C-141/11, Hörnfeldt, judgment of 5 July 2012, nyr.
49. Case C-92/12 PPU, Health Service Executive v. S.C., judgment of 26 April 2012, nyr.
50. Council Regulation (EC) No 2201/2003 of 27 Nov. 2003 concerning jurisdiction and the
recognition and enforcement of judgments in matrimonial matters and the matters of parental
responsibility, repealing Regulation (EC) No 1347/2000 (O.J. 2003, L 338/1).
51. S.C., cited supra, at paras. 111 and 127.
52. Case C-451/11, Dülger, judgment of 19 July 2012, nyr.
53. In Dülger, at paras. 52 and 53.
Fundamental Rights 1281
course, the decisions it will eventually make will be considered
“implementation” in the sense of Article 51(1) of the Charter.
An example of an optioning rule can be found in N.S.,54
in which the ECJ
was called to interpretArticle 3(2) of Regulation 343/2003, on the criteria and
mechanisms for determining the Member State responsible for examining an
asylum application lodged in a Member State.55
Article 3(2) introduces an
exception to the general rule by stating that a Member State “may examine an
application for asylum lodged with it by a third-country national, even if such
examination is not its responsibility under the criteria laid down in this
Regulation”. The Member State is not under an obligation to examine the
application; it acts pursuant to a discretionary power granted by the
Regulation. According to the ECJ, this power “forms part of the mechanisms
for determining the Member State responsible for an asylum application
provided for under that regulation and, therefore, merely an element of the
Common European Asylum System”.56
Inasmuch as the power forms part of
a broader general regulatory framework of EU law, the ECJ came to the
conclusion that “a Member State which exercises that discretionary power
must be considered as implementing European Union law within the meaning
of Article 51(1) of the Charter”.57
Another example can be found in Pupino.58
Under the Italian legislation at
issue in the main proceedings, testimony given during the preliminary
enquiries in a criminal procedure must generally be repeated at the trial in
order to acquire full evidential value. However, Italian law allowed in certain
cases to give that testimony only once, during the preliminary enquiries, with
the same probative value. Member States were not under an obligation to
enforce such exceptions as a result of Framework Decision 2001/220 on the
standing of victims in criminal proceedings. But once a Member States
decides freely to make use of this exception, it is subject to EU fundamental
rights.59
2.2.3. Remedial rules
One of the most prominent features of EU law applied by the Member States
is its ability to empower national judges for the purpose of guaranteeing the
effectiveness of the rights and obligations derived from EU law. In a
54. N.S. and Others, cited supra note 19.
55. Council Regulation (EC) No 343/2003 of 18 Feb. 2003 establishing the criteria and
mechanisms for determining the Member State responsible for examining an asylum
application lodged in one of the Member States by a third-country national (O.J. 2003, L 50/1).
56. N.S., cited supra, para 68.
57. Ibid.
58. Case C-105/03, Pupino, [2005] I-05285.
59. Pupino, cited supra, paras. 55 and 56.
CML Rev. 20131282 Sarmiento
well-established case law,60
the ECJ has developed a wide array of EU-made
remedies in the hands of national judges, including damages actions,61
interim
measures,62
access to justice,63
or procedural guarantees.64
This case law is
based on the principle of loyal cooperation (Art. 4 TEU), but also on the new
provision contained in Article 19 TEU, according to which “Member States
shall provide remedies sufficient to ensure effective legal protection in the
fields covered by Union law”. Furthermore, the ECJ has developed the
principles of effectiveness and equivalence, through which it scrutinizes
national procedural rules that hinder the exercise of EU rights before domestic
courts.65
The overall framework that emerges from this case law is one of
strict submission of Member States to EU remedies.This submission is mostly
restricted to the domain of national procedural law, but it nevertheless
constitutes an area of major relevance for the Charter, since it is mainly before
national courts that fundamental rights are to be guaranteed.
After the entry into force of the Charter, the ECJ kept its case law on
remedies unchanged in substance. However, as a result of some of the
Charter’s provisions, particularly Article 47, there has been a considerable
increase of judgments in which the ECJ addresses an issue concerning a
previously confirmed remedy, or the principle of effectiveness or equivalence,
having regard also or exclusively to the Charter. This trend is not only putting
considerable pressure on the autonomy of the principle of effectiveness (one
could wonder if this principle is being cannibalized by Art. 47 of the
Charter),66
but it has also reinforced the already existing remedies. Overall,
when individuals exercise EU rights before national courts, the judicial
60. For a general prospect, see Dougan, National remedies before the Court of Justice:
issues of harmonisation and differentiation (Hart Publishing, 2004), and Slaughter, Stone
Sweet and Weiler (Eds.), The European Courts and National Courts: Doctrine and
Jurisprudence (Hart Publishing, 1998).
61. See, inter alia, Joined Cases C-6 & 9/90, Francovich and Others, [1991] ECR I-5357,
para 35, and Joined Cases C-46 & 48/93, Brasserie du Pêcheur and Factortame, [1996] ECR
I-1029, para 31.
62. See, inter alia, Case C-213/89, Factortame and Others, [1990] ECR I-2433, para 21,
and Case C-432/05, Unibet, [2007] ECR I-2271, para 67.
63. See, inter alia, Case 222/84, Johnston, [1986] ECR 1651, paras. 18 and 19; Case
222/86, Heylens and Others, [1987] ECR 4097, para 14; Case C-50/00 P, Unión de Pequeños
Agricultores v. Council, [2002] ECR I-6677, para 39; and Unibet, cited previous note, para 37.
64. See, inter alia, Case 322/81, Nederlandsche Banden-Industrie-Michelin v.
Commission, [1983] ECR 3461 para 7, and Case C-69/10, Samba Diouf, [2011] ECR I-7151,
para 35; and Case C-277/11, M., judgment of 22 Nov. 2012, nyr.
65. See, inter alia, Case 33/76, Rewe-Zentralfinanz and Rewe-Zentral, [1976] ECR 1989,
and Joined cases C-430 & 431/93, Van Schijndel and Van Veen, [1995] ECR I-4705, para 17.
66. On the distinction between the principles of effectiveness andArt. 47 of the Charter, see
Prechal and Widdershoven, “Effectiveness or Effective Judicial Protection: A Poorly
Articulated Relationship”, in Today’s Multilayered Legal Order: Current Issues and
Perspectives. Liber Amicorum in Honour of Arjen W.H. Meij (Paris Legal Publishers, 2011).
Fundamental Rights 1283
itinerary leading to the court’s final judgment is to be considered
“implementation” in the sense of Article 51(1) of the Charter.
In DEB,67
the ECJ was questioned by the Kammergericht about the
conformity with the principle of effectiveness of a national rule that subjected
the exercise of a damages action for breach of EU law to the making of an
advance payment in respect of costs. Furthermore, the claimant in the case was
a legal person, and under the national rules legal persons did not qualify for
legal aid. As can be seen, DEB did not concern the rules governing the
substantive right of the claimant, but the national procedural rules allowing
the exercise of such right before national courts. In these circumstances, the
ECJ reformulated the question of the German referring court and analysed the
case in light of Article 47 of the Charter.68
Although the ECJ came to
the conclusion that German law was in conformity with Article 47, it also
resulted that the Kammergericht, when deciding on the issue of costs and legal
aid, was “implementing” EU law pursuant to Article 51(1) of the Charter.69
Shortly after DEB, the ECJ faced a similar setting in Otis,70
a case decided
by the Grand Chamber in which a delicate issue on the independence of
national courts was raised. In a rather kafkaesque turn of events, a Belgian
court made a reference to the ECJ asking whether it was compatible with the
Charter that the Commission brings a damages action against a private party
for breach of EU competition law. In the case at hand, the breach of EU
competition rules had been previously declared by the Commission by way of
a Decision stating the incompatibility of an agreement withArticle 101TFEU.
One of the parties to the agreement was the defendant in the main proceedings,
which had sold its products to various EU Institutions, including the
Commission. Following the ECJ’s judgment in Masterfoods,71
Commission
decisions in the area of competition bind the national judge hearing a damages
action for breach of EU competition law. However, the referring judge
doubted if it was compatible with the Charter that the claimant in the
proceedings had the power to issue decisions binding the judge on a crucial
point of law.As in DEB, the ECJ decided that the circumstances raised in Otis
did not constitute a breach of Article 47 of the Charter.72
However, by
admitting the conformity of national procedural law with the Charter, the ECJ
was also confirming that the Belgian court was “implementing” EU law when
determining the scope of its own jurisdiction in light of its internal procedural
67. Case C-279/09 DEB [2010] ECR I-13849.
68. DEB, cited supra, paras. 28 to 33.
69. The ECJ reached the same result, but answered by way of a reasoned order, in Case
C-156/12, GREP, Order of 13 June 2012, nyr.
70. Case C-199/11, Otis and others, judgment of 6 Nov. 2012, nyr.
71. Case C-344/98, Masterfoods, [2000] ECR I-11369.
72. Otis, cited supra, para 56 et seq.
CML Rev. 20131284 Sarmiento
rules. In the ECJ’s own words: “When [the] right [to claim compensation for
the damages suffered] is exercised, however, the fundamental rights of the
defendants, as safeguarded, inter alia, by the Charter, must be observed”.73
2.2.4. Exclusionary rules
It is also important to highlight that EU rules may contain provisions that
exclude certain areas of Member State action from their scope of application.
Since these provisions act as exceptions, they must be construed restrictively.
The EU rule must be clear and unconditional as to its exclusionary purpose.
But once the exclusion is construed, it is obvious that the Member States are
not “implementing” EU law when acting within the said exclusion.Therefore,
exclusionary rules appear as a useful accessory that complements the
triggering rules, delimiting in the negative the areas of influence of EU law
and, consequently, of the Charter.
For example, Directive 95/46/EC on the protection of individuals with
regard to the processing of personal data,74
states in Article 3 that its
provisions “shall not apply” to the processing operations concerning “security,
defence, State security (including the economic well-being of the State when
the processing operation relates to State security matters) and the activities of
the State in areas of criminal law”. This is a clear and unconditional provision
excluding the applicability of EU law on personal data protection, including
the Charter, from the said areas of Member State action. The same can be
found in the area of public procurement, where Directive 2004/1875
excludes
in Articles 15 to 18 a number of contracts from its scope of application. In
other cases the exclusion might concern a specific fundamental right, as in the
case of Directive 2010/64 on the right to interpretation and translation in
criminal proceedings.76
According to Article 1(4) of the Directive, none of its
provisions “affect national law concerning the presence of legal counsel
during any stage of the criminal proceedings, nor [do they] affect national law
concerning the right of access of a suspected or accused person to documents
in criminal proceedings”, thus excluding scrutiny in light of Article 47 of the
Charter when Member States “implement” Directive 2010/64.
73. Ibid., para 45. See also Case C-93/12, Agrokonsulting, judgment of 27 June 2013, nyr,
paras. 59–61.
74. Directive 95/46/EC of the European Parliament and of the Council of 24 Oct. 1995 on
the protection of individuals with regard to the processing of personal data and on the free
movement of such data (O.J. 1995, L 281/31).
75. Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004
on the coordination of procedures for the award of public works contracts, public supply
contracts and public service contracts (O.J. 2004, L 134/114).
76. Directive 2010/64/EU of the European Parliament and of the Council of 20 Oct. 2010 on
the right to interpretation and translation in criminal proceedings (O.J. 2010, L 280/1).
Fundamental Rights 1285
2.3. Somewhere beyond the Charter
The judgments mentioned so far show how the triggering rules act as a
necessary premise when invoking Charter rights in Member States. However,
another valuable source can be found in the ECJ’s orders refusing jurisdiction.
The ECJ tends to avoid developing substantive points of law in orders, a task
it will reserve for judgments. But despite the absence of any principled
statements, the cases solved by way of an order interpreting Article 51(1) of
the Charter confirm how the triggering rules work, particularly when none are
to be found in a specific case. This is a common scenario when the claimant
unsuccessfully invokes the existence of a mandating rule, or when he or she
raises a procedural point in absence of a right based on EU law. If the ECJ
comes to the conclusion that the claimant’s situation is not within the scope of
the mandating rule, or that there is no right whatsoever involved in the case,
the Member State will not be considered to be “implementing” EU law in the
sense of Article 51(1) of the Charter.
The ECJ considered there was no mandating rule in Vino,77
a case in which
an Italian court questioned the legality of the terms of fixed-time working
contracts in the postal sector, deemed to be discriminatory in contrast with the
conditions in other sectors. According to the Italian court, the mandating rule
that triggered the Charter was clause 4 of the Framework Agreement in
Directive 1999/70, concerning fixed-term work.78
The ECJ disagreed, as the
Directive only concerns situations of discrimination between fixed-term
workers and “comparable permanent workers”. Because the referring court
was comparing the conditions of fixed-term working contracts with other
companies and not with permanent workers, the potential discrimination was
not within the scope of EU law. In Sindicato Bancarios do Norte,79
the
triggering rule invoked was a Memorandum of Understanding between the
Commission and Portugal. The ECJ seemed to admit that the Memorandum
was not an act of EU law, at least not at the specific time in which the national
contested measures were enacted; thus Portugal could not be subject to the
Charter.80
The reduction of police officers’ salaries in Romania was also
deemed to lack a triggering rule justifying the applicability of the Charter.81
As for Luxembourg nationals invoking EU immigration rules before
Luxembourg authorities in order to benefit from family reunification
measures, in
77. Case C-161/11, Vino, [2011] ECR I-91.
78. Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement
on fixed-term work concluded by ETUC, UNICE and CEEP (O.J. 1999, L 175/43).
79. Sindicato Bancarios do Norte, cited supra note 23.
80. See Ibid, para 12.
81. Orders of the Court in Case C-134/12, Corpul, 10 May 2012, nyr, Case C-462/11,
Cozman, 14 Dec. 2011, nyr, and Case C-434/11, 14 Dec. 2011, Corpul, nyr.
CML Rev. 20131286 Sarmiento
Ymeraga,82
the ECJ reached the conclusion that Luxembourg was not
“implementing” EU law: the family reunification and residence directives did
not apply to the case, and nor did the free movement rule of Article 21 TFEU,
nor the “substance of the rights test” of Article 20 TFEU.83
As was stated above, the remedial rule cannot trigger Charter rights if there
is no right granted by EU law to be invoked before a national court. This was
the case in the Chartry saga,84
several references questioning the obligation of
Belgian courts to refer to the Constitutional court before making a preliminary
reference to the ECJ. Because the rights involved in each case had no link at all
with EU law, the ECJ was unable to rule on the conformity of the Belgian
procedural rules with Article 47 of the Charter. In contrast to the
circumstances in DEB, the claimants in the cases of T, Loreti, Gentile and
Pedone85
challenged the Italian rules of legal aid, but they did so in the absence
of a link with EU law. The ECJ stated that the Italian referring court was not
“implementing” EU law and denied the application of the Charter. The ECJ
arrived at the same result in Currà,86
where the claimants questioned the
immunity of the German State before Italian courts in claims about war crimes
committed during the SecondWorldWar.The substantive right invoked before
the national courts was not based on EU law, so any procedural limitation was
exempt from scrutiny under Article 47 of the Charter.87
3. Level of protection
Whilst Article 51(1) of the Charter traces the border for determining its
applicability, Article 53 introduces the terms through which the Charter
interacts with national fundamental rights in areas of concurrent application
of both legal orders. At first sight the provision appears to be a traditional
82. Judgment in Case C-87/12 Ymeraga, judgment of 8 May 2013, nyr.
83. In the same line, see the judgment in Case C-27/11 Vinkov, judgment of 7 June 2012,
nyr, and the Order in Case C-14/13, Cholakova, Order of 6 June 2013, nyr.
84. Orders of the Court in Case C-312/12, Ajdini, Order of 21 Feb. 2013, nyr; Case
C-538/10, Lebrun, [2011] ECR I-137*, Summ.pub; Case C-314/10, Pagnoul, [2011] ECR
I-136*, Summ.pub; Case C-457/09, Chartry [2011] ECR I-819), and Case C-267/10, Rossius
[2011] ECR I-81*, Summ.pub.).
85. Orders of the Court in Case C-73/13 T, Order of 8 May 2013, nyr; Case C-555/12,
Loreti, Order of 14 March 2013, nyr; Case C-499/12 Gentile, Order of 7 Feb. 2013, nyr; and
Case C-498/12, Pedone, Order of 7 Feb. 2013, nyr.
86. Order of the Court in Case C-466/11, Currà, Order of 12 July 2012, nyr.
87. Order of the Court in Joined Cases 483 & 484/11, Boncea and others, Order of 14 Dec.
2011, nyr, and Case C-339/10, Estov, [2010] ECR I-11465.
Fundamental Rights 1287
minimum standard clause, well known in international human rights law.88
However, because of the peculiar traits of EU law, Article 53 has been
interpreted by the ECJ as something more than a minimum standard clause,
coming closer to a conflict of laws rule in the area of fundamental rights.89
The
way in which this rule works has been recently portrayed in Melloni and
Åkerberg Fransson, where the ECJ introduced an important distinction that
conditions how the two systems of fundamental rights, of the EU and of the
Member States, interact when solving a case which comes within the scope of
EU law. In order to describe this doctrine I will use a term that EU lawyers are
familiarized with: “situations”.90
By distinguishing three different
“situations”, I address the diverging scenarios expressly mentioned in the
judgments of Melloni and Åkerberg Fransson, followed by the legal
consequences that each “situation” entails.
According to the ECJ’s case law, once the Charter is confirmed as
“applicable” to a Member State under Article 51(1), the following step is to
determine if the Charter right at hand is able to effectively “protect” the
individual. This second enquiry is based on Article 53 of the Charter,
according to which none of its provisions “shall be interpreted as restricting or
adversely affecting human rights and fundamental freedoms as recognized, in
their respective fields of application, by Union law and international law and
by international agreements to which the Union or all the Member States are
party”. The provision adds, regarding international agreements and domestic
law, that the said human rights instruments include the ECHR, and “the
Member States’ constitutions”.
88. Art. 53 finds its direct source of inspiration in Art. 53 ECHR. There are, however, other
relevant references, mostly Art. 5.2 of the International Covenant on Civil and Political Rights,
Art. 5.2 of the International Covenant on Economic, Social and Cultural Rights, orArt. 29 of the
American Convention on Human Rights. On the influence of these provisions on Art. 53 of the
Charter, seeAlonso García “The Horizontal Provisions of the Charter of Fundamental Rights of
the European Union” 8 ELJ (2002), 507 et seq., and Bering Liisberg, “Does the EU Charter of
Fundamental RightsThreaten the Supremacy of Community Law?” 38 CML Rev. (2001), 1183
to 1188.
89. Before the ECJ’s decisions in Melloni and Åkerberg Fransson, the literature was
divided on the scope and meaning of Art. 53. See, inter alia, the diverging positions of Alonso
García, op. cit. previous note, 507 et seq., and Bering Liisberg, op. cit. previous note, 1189 et
seq.; Azoulai, “Article II-113” in Burgorgue, Levade and Picod, Traité établissant une
Constitution pour l’Europe (Bruylant, 2005), p. 689. Prior to the enactment of Art. 53, but
addressing the issue as well, see Besselink, “Entrapped by the maximum standard: on
fundamental rights, pluralism and subsidiarity in the European Union”, 35 CML Rev. (1998),
629.
90. Besides the fact that the ECJ uses the term “situation” when referring to cases in the
scope of application of EU fundamental rights, see, inter alia, Lenaerts, “Exploring the Limits
of the EU Charter of Fundamental Rights”, 8 EuConst (2012), 376–387 and Iglesias Sánchez,
op. cit. supra note 2, 1583 et seq.
CML Rev. 20131288 Sarmiento
In Melloni and Åkerberg Fransson, the ECJ interpretedArticle 53 such that
Charter rights and domestic fundamental rights interact in different ways
depending on whether EU law has completely or only partially “determined”
the Member State’s action. The notion of “determination” is to be understood
as a concept equivalent to that of discretion. Thus, when EU law completely
determines the Member State’s action, there is no discretion granted to
Member States in fulfilling EU obligations. On the contrary, when EU law
only partially determines Member State action, the Member State may
implement EU law making use of a discretionary margin of manoeuvre. In the
first “situation”, the Charter displaces national fundamental rights, with the
exceptions that will be examined later. In the second “situation”, national
fundamental rights can be the relevant reference, unless the Charter’s rights
provide a higher standard of protection.There is also a third “situation” still to
be resolved in the ECJ’s case law: Member State action derogating from
fundamental freedoms, an area subject to the authority of the ERT judgment,
where a principled decision is still awaited. Further “situations” could be
addressed, but for the time being the case law appears to be dealing with these
three. Overall, the current portrait provides further clarity in the allocation of
tasks between the EU and national legal orders, drawing a separation of
normative and jurisdictional powers inspired, as will be argued below, by those
of federal systems.
3.1. Situation 1: Complete determination
In regulatory scenarios where EU law, as interpreted by the Court, has
completely determined the way in which Member States must act, it follows
that the Charter displaces national fundamental rights. In these circumstances,
the Charter is the sole relevant fundamental rights instrument applicable, with
the exception of the ECHR and of the exceptions that will be developed
further. This is the conclusion that results from Melloni, a preliminary
reference, whereby the Spanish Constitutional Court questioned, in light of
Article 53 of the Charter, whether its own case law precluding the surrender of
persons convicted in absentia in another Member State superseded
Framework Decision 2002/584 on the European arrest warrant and the
surrender procedures between Member States. The Spanish Constitutional
Court’s case law was considerably more protective of the individual, but
clearly clashed withArticle 4a(1) of the Framework Decision, which imposed
an unqualified surrender once a series of procedural conditions had been
guaranteed. In the case of Melloni, such guarantees had been fulfilled, but
Fundamental Rights 1289
under the Spanish Constitutional Court’s case law Mr Melloni could still not
be surrendered to the Italian authorities.91
The ECJ’s judgment in Melloni starts with an analysis of the validity of
Article 4a(1) of Framework Decision 2002/584 in the light ofArticle 47 of the
Charter, following closely the ECHR’s case law on the matter. Once the ECJ
confirmed the provision’s compatibility withArticle 47, it turned toArticle 53
of the Charter, in line with the Spanish Constitutional Court’s query, and
stated that “where an EU legal act calls for national implementing measures,
national authorities and courts remain free to apply national standards of
protection of fundamental rights … ”.92
However, the ECJ immediately
highlighted the fact thatArticle 4a(1) of Framework Decision 2002/584 “does
not allow Member States to refuse to execute a European arrest warrant when
the person concerned is in one of the situations provided for therein”.93
Because the Member State is deprived of discretionary choices by this rule, a
conclusion that results not only from the literal text of Article 4a(1) but also
from the goals of Framework Decision 2002/584, the ECJ came to the
conclusion that Spain could not rely on Article 53 of the Charter in order to
justify a derogation.
This outcome is confirmed in Åkerberg Fransson, issued (not
coincidentally) on the very same day as Melloni. In paragraph 29 of the
judgment in Åkerberg Fransson, making an explicit reference to this passage
of Melloni, the ECJ stated that “where a court of a Member State is called upon
to review whether fundamental rights are complied with by a national
provision or measure which, in a situation where action of the Member States
is not entirely determined by European Union law … national authorities and
courts remain free to apply national standards of protection of fundamental
rights … ”94
Åkerberg Fransson depicts the opposite scenario, one in which
Member States do enjoy sufficient discretion, but it indirectly confirms the
solution in Melloni. In Åkerberg Fransson, the Member State benefited from
a margin of manoeuvre granted by EU law, thus becoming free to apply
national standards of fundamental rights. On the contrary, in Melloni, the
Member State was deprived of such margin, making the Charter the sole
relevant fundamental rights reference.
The outcome offered by the ECJ introduces a variable to the federal doctrine
of pre-emption. Federal systems rely on this doctrine in areas of shared
competence, assuring the normative and executive powers of the States as long
91. The Spanish context of the case has been described in detail by Torres Perez,
“Constitutional Dialogue on the European Arrest Warrant: The Spanish Constitutional Court
knocking on Luxembourg’s Door”, 8 EuConst (2012), 82.
92. Melloni, cited supra, para 60 (emphasis added).
93. Ibid, para 61.
94. Emphasis added.
CML Rev. 20131290 Sarmiento
as federal authorities do not exercise their own, but pre-empting the powers of
the States once the federal authorities make use of them.95
In Melloni and
Åkerberg Fransson the ECJ has confirmed the shared nature of fundamental
rights protection, guaranteeing Member State action in areas not previously
pre-empted by EU law. Recognizing the relevance of national fundamental
rights when EU rules grant discretionary choice to Member States, but
imposing strict primacy once a domain is completely determined by EU rules,
the ECJ emphasizes the importance of a coordinated separation of tasks
between the Union and the Member States in the area of fundamental rights
protection.96
This development is coherent with the Charter’s reference to the
Union’s and Member State’s competences in Article 51(2), but also with
Article 53’s reference to the “respective fields of application” of fundamental
rights between the Union and its Member States. Furthermore, it shows how
the Charter has forced the ECJ to address the federal question, and how the
ECJ has consciously moved towards a sophisticated approach that blends its
concerns about competence and allocation of tasks with ensuring an adequate
level of protection of fundamental rights.
The first commentaries of Melloni have criticized the severity of the
solution, taking into account that the ECJ forced a Member State to accept a
less protective standard of protection of a fundamental right than that in its
constitutional law.97
However, this critique loses much of its force when
analysed from a broader perspective. That an EU act completely determines
the actions of Member States, thus leaving no space for national fundamental
rights, in no way implies that such an act is immune to an exhaustive
fundamental rights scrutiny. EU acts will always be subject to a control of
validity in light of the Charter, a scrutiny that complies, as a result of Article
52(3) of the Charter, with the standards set by the ECHR. Therefore, in a
regulatory framework completely determined by EU law, there is no
fundamental rights gap, quite the contrary. The Treaties and the ECJ’s case
law guarantee the power of national courts to scrutinize the validity of EU acts
in light of the Charter if they consider that the said acts do not violate Charter
95. The doctrine of pre-emption is found chiefly in the case law of the US Supreme Court.
For a summary of this Court’s position in the context of US federalism, see Pacific Gas &
electric Co v. State Energy Resources Conservation & Development Commission, 461 US 190
(1983). On the doctrine of pre-emption in EU law, see Lenaerts, “Constitutionalism and the
Many Faces of Federalism” 38 AJCL (1990) and Schütze, “Supremacy without pre-emption?
The very slowly emergent doctrine of Community preemption” 43 CML Rev. (2006), 1023.
96. Prior to Melloni, a similar approach was put forward byTorres Perez, Conflicts of Rights
in the European Union. A Theory of Supranational Adjudication (OUP, 2009), pp. 13 et seq.
97. See De Boer, annotation of Melloni, 50 CML Rev. (2013) and Díez-Hochleitner “El
derecho a la última palabra: ¿Tribunales constitucionales o Tribunal de Justicia de la Unión?”
Working Paper IDEIR nº 17 (2013), pp. 22 et seq. and Martín Rodríguez, “Crónica de una
muerte anunciada” 30 Revista General de Derecho Europeo (2013).
Fundamental Rights 1291
rights.98
In case of doubt, Article 267 TFEU and the Foto-Frost case law
ensure that national courts make a preliminary reference to the ECJ in order to
confirm any possible violation of the Charter.99
In the course of national
proceedings, Member State courts can grant interim measures for the
purposes of protecting the individual’s rights conferred by the Charter.100
Furthermore, the interpretation that the ECJ will derive from the Charter will
be bound to the standards previously settled by the ECHR, and it will take into
account the constitutional traditions common to the Member States.101
According to Article 52(1) of the Charter, any restriction of a fundamental
right must be examined through the lens of a proportionality test, an
assessment that so far has proved its ability to effectively monitor EU
legislative and administrative action.102
Overall, Member State action might
be completely determined by a EU act, but such act by no means deprives the
individual of a genuine protection of his fundamental rights.
Also, the interpretation that Melloni gives of Article 53 of the Charter is
tacitly pointing its finger at the EU legislature. Member States bound by an
EU act are not defenceless if they consider that it trumps domestic
fundamental rights. Negotiators in the Council will frequently find
themselves facing constitutional objections from some Member States that
can condition the discussions and eventually the final outcome.103
If a
Member State unsuccessfully pleads an exception to protect a domestic
constitutional rule of particular importance, it will always have the chance to
bring a direct action before the ECJ.104
Furthermore, since the entry into force
of theTreaty of Lisbon, direct actions can be construed not just on the grounds
of a breach of the Charter, but also by reference to the national identity clause,
as stated in the terms of Article 4(2) TEU, considerably more detailed and
judicially cognizable than the previous Article 6(3) TEU. The purpose of this
98. Case 314/85, Foto-Frost, [1987] ECR 4199, at para 14.
99. Foto-Frost, ibid., paras. 15–20.
100. See, inter alia, Joined Cases C-143/88 & C-92/89, Zuckerfabrik Süderdithmarschen
and Zuckerfabrik Soest, [1991] ECR I-415, para 17, and Case C-366/10, Air Transport
Association of America and Others, judgment of 21 Dec. 2011, nyr, para 47.
101. SeeArt. 6 TEU, as well as para 5 of the Preamble andArt. 52(3) and (4) of the Charter.
On the influence of the ECHR in the interpretation of the Charter and its limits, see Case
C-571/10, Kamberaj, judgment of 24 April 2012, nyr, para 62 and Akerberg Fransson, cited
supra, para 44.
102. The ECJ has scrutinized the validity of EU legislation in light of the Charter in Joined
Cases C-92 & 93/09, Volker und Markus Schecke and Eifert, [2010] ECR I-11063; Case
C-236/09, Association Belge des Consommateurs Test-Achats and Others, [2011] ECR I-773;
Case C-221/09, AJD Tuna, [2011] ECR I-1655; Case C-283/11, Sky Östereich, judgment of 22
Jan. 2013, nyr, and Case C-234/12, Sky Italia, judgment of 18 July 2013, nyr.
103. See Hilson, “The Unpatriotism of the Economic Constitution? Rights to Free
Movement and their Impact on National and European Identity” 14 ELJ (2008).
104. Art. 263(2) TFEU.
CML Rev. 20131292 Sarmiento
clause is precisely to stop the EU from enacting measures that might collide
with a constitutional rule of essential importance for a Member State.105
In his
Opinion in Melloni, Advocate General Bot scrutinized the Spanish
Constitutional Court’s case law in light of Article 4(2) TEU, and came to the
conclusion that the case law did not represent an essential constitutional rule
for Spain.106
The Spanish Government had pleaded during the oral hearing
that the refusal to surrender persons convicted in absentia was not part of
Spain’s national identity.107
Furthermore, the ECJ has confirmed an important exception to the
aforementioned rule in cases of complete determination by an EU act. In N.S.,
and shortly after the ECHR had delivered its landmark decision in M.S.S.
versus Belgium and Greece,108
the ECJ followed suit and admitted that asylum
procedural rules must be reinterpreted in order to overcome systemic
deficiencies leading to serious fundamental rights breaches.109
Facing the
strict jurisdictional rules of Regulation 343/2003, the ECJ confirmed an
exception to these rules “if there are substantial grounds for believing that
there are systemic flaws in the asylum procedure and reception conditions for
asylum applicants in the Member State responsible, resulting in inhuman or
degrading treatment, within the meaning ofArticle 4 of the Charter, of asylum
seekers transferred to the territory of that Member State”.110
The same line of
argument was followed by Advocate General Sharpston in Radu, a European
Arrest Warrant case concerning the protection of fundamental rights in the
Member State of origin and the powers of the executing Member State to
refuse surrender on such grounds.111
Because of the lack of detailed evidence
in the file, the ECJ did not address the possibility of accepting such a
fundamental rights exception, but it is obvious from its previous judgment in
N.S. that when systemic flaws appear in an EU-based arrangement based on
mutual recognition, Member States are under the obligation to derogate from
105. On the scope of the national identity clase, see von Bogdandy and Schill, “Overcoming
absolute primacy: Respect for national identity under the Lisbon Treaty’, 48 CML Rev. (2011)
and Millet, L’Union Européenne et l’identité constitutionnelle des États membres (LGDJ,
Paris), pp. 257 et seq.
106. Opinion of A.G. Bot in Melloni, paras. 140–142.
107. Ibid., para 141.
108. Judgment of 21 Jan. 2011, Application No 30696/09.
109. See Costello “Dublin-case NS/ME: Finally, an end to blind trust across the EU?”,
(2012) Migrantenrecht,; Heijer, annotation of N.S., 49 CML Rev. (2012) and Mellon, “The
Charter of Fundamental Rights and the Dublin Convention: An Analysis of N.S. v. Secretary of
State for the Home Department”, 18 EPL (2012).
110. N.S., cited supra, para 86 (emphasis added).
111. Opinion of A.G. Sharpston in Case C-396/11, Radu, judgment of 29 Jan. 2013, nyr,
para 97.
Fundamental Rights 1293
the rules if such systemic flaws result in a serious breach of a fundamental
right.
3.2. Situation 2: Partial determination
If EU law has only partially determined the regulatory framework of the case,
Member States retain a margin of action in which their internal legal system
plays the leading role. In contrast with Melloni, the ECJ considered that the
EU rules governing the case in Åkerberg Fransson left Member States
considerable discretion. In these circumstances, and although Member States
are “implementing” EU law as a result of a triggering rule, they are free to
choose the regulatory means by which to attain the goals set by the European
rule. When it comes to fundamental rights protection this will entail, in line
with the principle of subsidiarity, that the facts will be better governed by
national fundamental rights, in accordance with the standards set by the higher
jurisdictions of the Member State.As the ECJ affirmed in Åkerberg Fransson,
in contexts of partial determination by EU law
“national authorities and courts remain free to apply national standards of
protection of fundamental rights, provided that the level of protection
provided for by the Charter, as interpreted by the Court, and the primacy,
unity and effectiveness of European Union law are not thereby
compromised”.112
As can be seen, in situations of partial determination the ECJ confirms that
EU and national fundamental rights coexist for the purposes of the resolution
of the case. Both systems of fundamental rights are in principle applicable,
since EU law grants Member States (and in particular national courts) the
power to protect fundamental rights with one or the other instrument. It is
likely that domestic courts will tend to make use of the source they are more
familiar with, i.e. national fundamental rights, but nothing precludes them
from solving the case solely by reference to the Charter’s standards of
protection. Consequently, in situations partially determined by EU law, the
Charter is applicable, but it will not necessarily be the relevant protective rule,
a choice that falls upon the national court.113
However, the ECJ has introduced a twofold exception to the general
criterion. First, the Charter will become the sole applicable rule if its level of
protection is superior to that provided by the national fundamental rights
112. Akerberg Fransson, cited supra, note 17, para 29.
113. In this vein, see Lenaerts and Gutiérrez-Fons, op. cit. supra note 43.
CML Rev. 20131294 Sarmiento
system. In other words, in situations partially determined by EU law, the
Charter plays a subsidiary rule, waiting to enter the scene in case national
standards are inferior to those of the Charter. This is perfectly in line with the
general objectives of the Charter and the underlying reasons for its enactment:
if the rights therein are more protective and the Member State is implementing
EU law, the Charter demands all Member States to comply with its standards
when acting within the competences vested in the Union. This interpretation
accords with Article 53 of the Charter, in particular with the passage
highlighting that nothing within its provisions “shall be interpreted as
restricting or adversely affecting human rights and fundamental freedoms as
recognized … by the Member States’ constitutions”. Indeed, the Charter
respects the protection granted by national fundamental rights and EU law
cannot restrict it. However, if the Charter goes beyond the standards set by the
internal legal order in an area governed by EU law, the former will display its
protective force.
Secondly, and only if national fundamental rights happen to be more
protective, the Charter can exceptionally displace them if the said national
fundamental rights prove to “compromise” the “primacy, unity and
effectiveness of European Union law”. This is a safeguard clause, an
exceptional remedy for situations where the ordinary application of Article
53, as interpreted in Åkerberg Fransson, might lead to severe breach of
constitutionally protected principles inherent in the EU’s legal order. In
principle, these circumstances should be exceptional, and the safeguard clause
should thus act as the equivalent to the Solange clauses developed by national
constitutional courts: last-resort safety measures to be used only in
extraordinary situations that, as the Spanish Constitutional Court stated in
Opinion 1/2004, are “hardly conceivable”.114
It is also difficult to envisage
such a scenario before the ECJ, but, in line with its national counterparts,
Luxembourg has powerful reasons to impose its own counter-limits, whose
purpose is, in last instance and in line with previous case law, to guarantee the
autonomy of EU law.115
The logic of the entire construction is, in principle, simple to grasp, but it is
nevertheless subject to conceptual and practical difficulties that the ECJ will
have to address in the years to come. Comparing standards of fundamental
rights protection is no simple task, particularly in a system in which
twenty-eight national legal orders interact with EU law and with the ECHR.
114. Opinion of the Spanish Constitutional Court 1/2004 of 13 Dec. 2004, FJ 4º.
115. The ECJ is gradually developing its own “constitutional core” doctrine in parallel to
national constitutional courts. This development can be seen in landmark decisions like Joined
Cases C-402 & 415/05 P, Kadi and Al Barakaat International Foundation v. Council and
Commission [2008] ECR I-6351 and Ruiz Zambrano. On the existence of a “constitutional
core”, see Rosas and Amati, op. cit. supra note 32, p. 43 and Sarmiento, op. cit. supra note 16.
Fundamental Rights 1295
The difficulties are practical (how to compare? Is a preliminary reference
needed? What are the relevant parameters of comparison? ), but there are also
conceptual hurdles of a considerable complexity.
For example, the underlying values of a fundamental right might not always
be the same in different legal orders.The right to marry is enshrined inArticle
9 of the Charter, but in some Member States it protects values inherent to a
specific conception of family life, whilst in others it is closer to an
individualistic vision of the value of privacy, thus protecting the right to form
a family in the way one considers most appropriate. Another conceptual
difficulty occurs in those Member States that recognize a special protection to
the “essential content” of fundamental rights. What if a Member State
considers that a specific aspect of a right comes within its “essential content”,
but the Charter appears to be less*
protective? Can the Charter trump the
“essential content” of a national fundamental right?And if so, how essential is
it, if it can be set aside as a result of EU law?
Similar doubts can be found when facing horizontal conflicts between
fundamental rights. The ECJ’s interpretation of Article 53 of the Charter
concerns conflicts between the individual and the State over equivalent rights.
However, if the case concerns a conflict between the holder of a right to
intellectual property and the holder of a right to freedom of information, the
comparison between standards becomes more complex. In these
circumstances, the solution should not be too different to that in Åkerberg
Fransson: the standard will not concern the degree of protection of one right,
but the overall weight given to the combination of both rights.116
If EU law
grants more weight to the right to intellectual property than to freedom of
information in the concrete circumstances of the case at hand, that weight is
the reference against which the national standard should be compared. This
process can become too circumstantial and subject to the peculiarities of each
legal order but, overall, the comparative analysis is possible.
3.3. Situation 3: Derogations from fundamental freedoms
The third and last situation concerns Member State action pursuant to the
derogation from a fundamental freedom. In a well-established case law
* The original text of this sentence, as published, erroneously said “more protective” rather
than “less protective”. Text updated March 2014.
116. This is confirmed by the ECJ’s approach to conflicts between fundamental rights, as in
Case C-275/06, Promusicae, [2008] ECR I-271, para 70: “when transposing those directives,
the Member States take care to rely on an interpretation of them which allows a fair balance to
be struck between the various fundamental rights protected by the Community legal order.
Further, when implementing the measures transposing those directives, the authorities and
courts of the Member States must not only interpret their national law in a manner consistent
with those directives but also make sure that they do not rely on an interpretation of them which
would be in conflict with those fundamental rights.”
CML Rev. 20131296 Sarmiento
starting with ERT, the ECJ has declared that Member States, when justifying
derogations to a fundamental freedom, are obliged to comply with EU
fundamental rights. ERT concerned the compatibility with theTreaty freedom
to provide services of the grant of a television franchise to a single broadcaster.
After endorsing Greece’s right to invoke the justifications of the then
equivalent to today’s Article 62 TFEU, the ECJ added that the relevant Greek
rules “can fall under the exceptions provided for by the combination of
[Articles 52 and 62 TFEU] only if they are compatible with the fundamental
rights the observance of which is ensured by the Court”.117
ERT thus opened
the door to an application of EU fundamental rights in particularly sensitive
areas of Member State action such as public policy, public security or public
health, and its authority has been reiterated throughout the years in the ECJ’s
subsequent case law.118
At first sight, it could be argued that this situation is no different from a
situation partially determined by EU law, as depicted above. It is true that in
ERT the ECJ was dealing with a framework in which Member States still hold
a wide scope of action. However, as shown by Schmidberger, Omega or Viking
Line,119
the margin involved when justifying derogations to a fundamental
freedom is very different from that found pursuant to a regulation or a
directive. Free movement rules occupy a privileged constitutional position in
EU law, but, above all, justifications to these rules deal with concepts such as
“public policy” or “public security” which are autonomous and thus subject to
the ECJ’s interpretative jurisdiction.120
It would be contradictory if the ECJ
became empowered to define the scope of “public policy”, but not to impose
limits to such justification on the grounds of, for example, the right to liberty
and security or the prohibition of degrading treatment or punishment.121
Therefore, the underlying rationale of ERT is that of coherence in the
interpretation and application of EU law, but in an area of constitutional
relevance for the internal market in its entirety.
The ECJ has not yet decided whether the consequences previously
portrayed for situations of complete and partial determination by EU law also
117. ERT, cited supra, para 42.
118. See, inter alia, Familiapress, cited supra, note 26; Case C-60/00, Carpenter, [2002]
ECR I-6279; Schmidberger, cited supra note 26; Case C-71/02, Karner, [2004] ECR I-3025;
and Case C-441/02, Commission v. Germany, [2006] ECR I-3449.
119. Schmidberger, cited supra note 26, paras. 79–82; Case C-36/02, Omega, [2004] ECR
I-9609, paras. 32–39; Viking Line, cited supra note 8, paras. 86–89; and Laval, cited supra note
8, paras. 107–111.
120. Although the ECJ grants a considerable margin of appreciation to Member States in
particularly sensitive areas (see, inter alia, Case 34/79, Henn and Darby, [1979] ECR 3795,
para 15, and Case C-268/99, Jany and Others, [2001] ECR I-8615, paras. 56 and 60), the truth
is that the scrutiny operates in light of the Treaties and not national law.
121. Arts. 6 and 7 of the Charter.
Fundamental Rights 1297
extend to the free movement derogations. In principle, it would be reasonable
that the Åkerberg Fransson case law on partial determination should also
apply to an ERT scenario. Member States are entitled to justify derogations to
free movement rules, but when doing so they must comply with their internal
fundamental rights, unless the Charter, as interpreted by the ECJ, provides a
higher protection of the right or rights concerned. This outcome would not
endanger the ERT rationale and would grant Member States’ fundamental
rights a high degree of autonomy that the ERT judgment could appear to
disregard. The question is currently open, but it has recently been brought to
the ECJ’s attention in Pfleger,122
a preliminary reference from the
Unabhängiger Verwaltungssenat of the Land of Upper Austria, questioning
the legality of domestic measures derogating from the freedom to provide
services in light of Articles 15 to 17, 47 and 50 of the Charter. The ECJ will
have the opportunity to determine how the ERT case law stands today.
4. National constitutional accommodation
The framework of fundamental rights created by the Charter and the ECJ’s
recent case law does not exist in a vacuum. Now it is time that Member States,
and particularly their supreme and constitutional courts, actively participate in
this system and contribute to make it work properly. Acceptance will not
always be simple. Fundamental rights are one of the sovereign domains of
supreme and constitutional courts, and the risk that the EU might force a
Member State to lower its standards of fundamental rights protection is not an
appealing prospect for such courts. However, it is argued that the ECJ’s case
law provides a balanced solution that reconciles the Charter’s role with the
autonomy of national constitutional arrangements. Furthermore, it is
submitted that this framework can help supreme and constitutional courts to
reinforce their position within the State, a result of their privileged position as
guarantors of both EU and national fundamental rights.
The case law portrayed above provides a framework guaranteeing all
institutional actors the ability to condition the outcome of a case in which both
EU and national fundamental rights are applicable. As argued above, in cases
of complete determination by EU law, Member States retain powerful ex ante
and ex post mechanisms safeguarding the integrity of their essential
constitutional traits. In the case of partially determined areas of EU law, the
role of Member States is crucial, and Charter protection will only be called for
in cases of lower national standards. Supreme and constitutional courts can
hardly find this outcome surprising or unfamiliar: this is exactly the role
122. Case C-390/12, pending before the Court.
CML Rev. 20131298 Sarmiento
assigned to the ECHR in domestic law, whereby the Strasbourg court sets
minimum standards that all signatory States must comply with. The role that
Melloni and Åkerberg Fransson attribute to the Charter in situations of partial
determination is purely to the benefit of the individual, a solution that justifies
setting aside a less protective national fundamental right. Supreme and
constitutional courts with high standards of fundamental rights protection will
see no need to make use of the Charter in situations partially determined by
EU law. Overall, the result of the ECJ’s case law is to push domestic
fundamental rights in the same direction, a direction that drives both legal
orders towards higher standards of protection.
It could be argued that under these arrangements, supreme and
constitutional courts will inevitably lose autonomy vis-à-vis the ECJ. If the
standards of protection of the Charter can only be authoritatively determined
by the Luxembourg court, national courts will need to submit a preliminary
reference in every case before deciding which is the superior standard.
However, this concern is unfounded. It is reasonable to expect that during the
first years, the ECJ will be increasingly addressed by its national counterparts
on points of interpretation concerning each specific right. But this is a
transitory situation which will stabilize in the course of time, as the ECJ
continues to define the scope and content of each provision of the Charter. In
a few years’ time the national supreme and constitutional courts will be
perfectly aware of the standards set by the Charter without the need to make a
preliminary reference, and will thus not consider themselves to be under a
wrongly perceived “supervision” from the ECJ. All in all, the Charter is not
destined to be a menace to supreme and constitutional courts, but quite the
opposite: it is a unique opportunity, particularly for constitutional courts, to
assume an even more relevant role in the institutional dynamics of the State
and of the Union as a whole.
Constitutional courts are peculiar jurisdictions frequently linked to the
traumatic past of a political community. The emergence of constitutional
courts in Europe is mostly the result of previous historical calamities, whether
dictatorship, occupation, civil war or calculated genocide, to name but a
few.123
Constitutional courts thus appear as counter-majoritarian institutions,
acting as watchdogs not of another institution, but of democracy itself.124
As a
result of European integration, the prospects of further calamities on the
123. On the origins of European continental constitutional courts, see Ferreres Comella,
Constitutional Courts & DemocraticValues (Yale University Press, 2009), pp. 3–27 and, in the
case of Eastern European countries, Schwartz, The Struggle for Constitutional Justice in
Post-Communist Europe (University of Chicago Press, 2000).
124. See Habermas, Between Facts and Norms: Contributions to a Discourse Theory of
Law and Democracy (MIT Press, YEAR), pp. 263 et seq.; Ferreres Comella, op. cit. previous
note, pp. 86 et seq., and Waldron, Law and Disagreement (OUP, 2001), pp. 266 et seq.
Fundamental Rights 1299
continent have diminished considerably, at least for the time being. The
consolidation of democratic institutions in Europe’s Member States has
gradually deprived constitutional courts of many of the conflicts they were
originally empowered to resolve. Therefore, today’s principal raison d’être of
constitutional courts has become, in a rather unexpected way, the protection of
the fundamental rights and freedoms of the individual,125
but an individual
whose identity is tied to several political communities, both national and
European. Constitutional courts can hardly continue to maintain their
fundamental rights jurisdiction under the illusion of an individual exclusively
tied to a bond with the nation State.126
Therefore, as a cosmopolitan approach
to fundamental rights becomes inevitable, the need for constitutional courts to
adapt their framework to such context becomes not only convenient, but also
an existential concern.
In its recent case law, the ECJ gives constitutional courts a role to play in a
cosmopolitan scenario for the protection of fundamental rights in Europe.
Melloni and Åkerberg Fransson highlight the importance of national
standards of protection in deciding the role to be played by the Charter in
solving a concrete case. Such a role will be determined by supreme and
constitutional courts as a consequence of their own interpretation of the
fundamental rights at stake. National standards of fundamental rights
condition the application of the Charter in a Member State, at the same time
that the Charter exerts its influence when it becomes a more protective source.
The interaction of both systems of fundamental rights does not result in the
exclusive pre-eminence of EU law, but in a balanced compromise in which
both systems are taken into account.
Furthermore, constitutional courts can put their privileged jurisdiction at
the service of the Charter in order to reinforce the rights it enshrines in the
125. That Constitutional courts are now heavily reliant on their role as guarantors of
“rights”, and not so much as courts entrusted with institutional litigation, can be witnessed in
some recent, yet very relevant, developments.The French Conseil constitutionnel assumed new
powers in 2009 as a result of the question prioritaire de constitutionnalité, for the scrutiny only
of laws in light of fundamental rights, on request of a private litigant before an ordinary court.
The Spanish Tribunal Constitucional has recently reformed its Statute in order to reduce the
growing number of direct actions of individuals for the protection of fundamental rights, which
represented approximately 90% of its docket. The idea of abandoning institutional litigation in
order to become a genuine “court” is well portrayed in the case of the Belgian Cour d’arbitrage,
renamed in 2007 Conseil constitutionnel, which has expanded its traditionally limited scope of
interpretation to the entire constitutional text, thus allowing direct actions against laws in light
of all fundamental rights as enshrined in the Belgian Constitution. According to the German
Bundesverfassungsgericht’s 2012 report, to date the Verfassungsbeschwerden (individual
direct action for the protection of fundamental rights) has taken 96.53% of the cases since the
court’s creation in 1951.
126. Weiler, “To be a European citizen – Eros or Civilization”, (1997) Journal of European
Public Policy, 495.
CML Rev. 20131300 Sarmiento
domestic scene. In fact, there are plenty of examples of constitutional courts
channelling the potential of the Charter through internal constitutional
remedies.127
The German Constitutional Court has confirmed the
constitutional duty of lower courts to make a preliminary reference pursuant to
Article 267TFEU, when a decision from the ECJ is necessary to determine the
exact scope of discretion of a Member State that implements EU law.128
In
light of the importance of margins of appreciation after the ECJ’s judgments
in Melloni and Åkerberg Fransson, the decision of the German Constitutional
Court is a remarkable move, which puts the Constitution at the service of the
preliminary reference procedure, at the same time allowing the ECJ to
determine the precise framework in which German courts will eventually
apply the Charter or the Grundgesetz. In the same vein, the Austrian
Constitutional Court incorporated the Charter as part of its parameter of
constitutional review, a decision that now allows that court to scrutinize
statutes in light of the Charter.129
The Spanish Constitutional Court has
recognized the constitutional protection of primacy of EU law when the ECJ
has previously declared the authoritative interpretation of a EU provision,
including, of course, a provision of the Charter.130
The fact that the French
Constitutional Council has made its first preliminary reference in the course
of a question prioritaire de constitutionnalité, a special procedure exclusively
concerned with fundamental rights cases, proves that the engagement of
constitutional courts with EU fundamental rights protection is currently
standard practice and not an exception.131
This is the domestic context in which the new framework for fundamental
rights protection is now emerging. Seen in this light, the chances that the ECJ
and its national counterparts decide to cooperate through the means portrayed
here are very promising. And if the framework proves to work, unilateral
supremacy will no longer be an issue. At least not in the area of fundamental
rights protection, but that is, as is well known, the very core of conflicts
between courts in the EU.
127. See Mayer, “Multilevel Constitutional Jurisdiction”, in von Bogdandy and Bast,
(Eds.), Principles of European Constitutional Law, 2nd ed. (Hart Publishers, 2010).
128. Order of 4 Oct. 2011 (1 BvL 3/08), paras. 52 et seq.
129. Judgment of 14 March 2012 (U 466/11 and 1836/11). Klaushofer and Palmstorfer,
“Austrian Constitutional Court uses Charter of Fundamental Rights of the European Union as
standard of review: Effects on Union Law” 19 EPL (2013), 1.
130. Judgment of 2 July 2012 (STC 145/2012). Sarmiento, “Reinforcing the (domestic)
constitutional protection of primacy of EU law”, annotation of STC 145/2012 (Tribunal
Constitutional), 50 CML Rev. (2013), 000.
131. Decision of 4 April 2013 (Décision n° 2013-314P QPC).
Fundamental Rights 1301
5. Conclusion
This article has shown how the Charter has inevitably forced the EU and its
Member States to address major constitutional issues, some of them going
well beyond fundamental rights protection. So far, the ECJ has managed to
balance the needs of a normatively strong Charter with respect for the
competences and the autonomy of Member States. The recent case law makes
specific contributions in this area, but has also provided some hints as to the
challenges that lie ahead.
First, by clearing the issue of applicability of the Charter in Member States,
the ECJ has shifted the attention from Article 51(1) to Article 53. Seen
together with the remaining decisions of the ECJ on Article 51(1) of the
Charter, the seminal judgment in Åkerberg Fransson confirms that the term
“implementation” includes all the traditional criteria in the ECJ’s pre-Charter
case law, based, as has been seen, on the presence of what are here called
“triggering rules”. This principled decision thus puts the emphasis not on
Article 51(1) of the Charter, but onArticle 53, a conflict rule for those cases in
which both EU and national fundamental rights are applicable.This transfer of
the centre of gravitation from issues of applicability towards issues of
interaction between autonomous legal orders proves that the case law seems
willing to assume a pluralist approach to constitutional issues.132
A strict
conception of the applicability of the Charter would presuppose a stark
separation between EU and national legal orders. However, a wide scope of
application of the Charter entails an exponential increase of cases in which
both legal orders are potentially applicable when solving the case at hand.
Article 53 of the Charter assumes that such interaction exists and it provides,
as interpreted by the ECJ, a conflict rule to make both legal orders interact in
a coordinated fashion. If pluralism is understood as a variety of autonomous
legal orders coexisting in a common space and with common objectives, the
interpretation of Article 53 given by the ECJ in Melloni and Åkerberg
Fransson, and specifically in situations of partial determination, is the
confirmation that EU and national legal orders have embraced pluralism, and
precisely in a domain that represents the paradigm of constitutional identity.
132. The idea of constitutional pluralism in EU law has been developed in detail by, inter
alia, Kumm, “The Jurisprudence of Constitutional Conflict. Constitutional Supremacy in
Europe before and after the Constitutional Treaty”, 11 ELJ (2005), Poiares Maduro,
“Contrapunctual Law: Europe’s Constitutional Pluralism in Action”, in “Walker (Ed.),
Sovereignty in Transition (Hart Publishers, 2003), and Walker, “The idea of constitutional
pluralism” 65 MLR (2002), 317. An overall portrait of the movement can be seen in the
collective work of Komárek and Avbelj, Constitutional Pluralism in the European Union and
Beyond (Hart Publishing, 2012).
CML Rev. 20131302 Sarmiento
Second, the ECJ has highlighted the importance of comparative standards
of fundamental rights protection between the Charter and the internal legal
orders. In this respect, public lawyers will need to broaden their minds towards
a more cosmopolitan vision of their domestic constitutional arrangements,133
in line with what the German Constitutional Court calls an interpretation of
the Constitution “open towards European law”.134
The same applies to EU
lawyers, whose approach to EU law must take the mandate ofArticle 4(2)TEU
seriously, contributing to an inclusive interpretation of the Treaties and the
Charter that genuinely protects national identities.135
All in all, legal science in
Europe has powerful reasons to undertake a serious reconsideration of its
purposes and methods.136
Some Member States have taken the first steps in
this direction.137
But above all, and despite the weaknesses of the case law and the problems
that still lay ahead, the ECJ’s first attempts in addressing the Charter’s
constitutional challenges show that the Luxembourg court and its national
supreme and constitutional counterparts have much to lose through conflict,
and a lot more to gain by way of loyal cooperation.138
The national courts that
best manage to adapt to this new framework will become major institutional
voices in a pan-European legal space. One of the benefits of loyal cooperation
is supranational relevance, a role that supreme and constitutional courts would
have hardly ever conceived in the traditional landscape of the nation State.The
Charter has given both the ECJ and national high courts the unique chance to
133. See, inter alia, von Bogdandy, “National legal scholarship in the European legal area
– A manifesto” 10 I.CON (2012), 618 et seq., Torres López, op. cit. supra note 96, pp. 141 et
seq., and Jacobs, “The Uses of Comparative Law in the Law of the European Communties”, in
Plender (Ed.), Legal History and Comparative Law Essays in Honour of Albert Kiralfy (Frank
Cass & Co., 1990).
134. On the category of Europarechtsfreundlichkeit, see Vosskuhle, “The cooperation
between European courts: the Verbund of European courts and its legal toolbox, in Court of
Justice, The Court of Justice and the construction of Europe:Analyses and perspectives on sixty
years of case law (Asser Press, 2013), pp. 94 et seq.
135. In this sense, see also Alonso García, op. cit. supra note 88, p. 513, demanding a pro
communitate interpretation of national constitutional law and a pro constitutione interpretation
of EU law.
136. On the role of EU fundamental rights as a source of transformation of legal science, see
von Bogdandy, “The European Union as a human rights organization? Human rights and the
core of the European Union” 37 CML Rev. (2000), 1336.
137. See e.g. the German Wissenschaftsrat’s 2012 report on the state of legal science,
Perspektiven der Rechtswissenschaft in Deutschland. Situation, Analysen, Empfehlungen,
available at www.wissenschaftsrat.de/download/archiv/2558-12.pdf.
138. On loyalty and institutional cooperation between courts, see Sarmiento, “National
voice and European loyalty. Member State autonomy, European remedies and constitutional
pluralism in EU law” in Micklitz and de Witte (Eds.), The European Court of Justice and the
autonomy of Member States (Intersentia, 2012) and Cartabia, “Europe and rights: taking
dialogue seriously”, 5 EuConst (2009), 27 et seq.
Fundamental Rights 1303
construe, as a common enterprise, the framework of fundamental rights
protection in Europe. The temptation for a court to entrench itself in the
discourse of unilateral primacy might be seductive, as is the lure of living a life
under false illusions, with all its dubious benefits, but with all the risks as well.
At the end of Albee’s play, George walks next to Martha as he quietly sings
to himself “who’s afraid of Virginia Woolf?”, to which Martha replies, “I am,
George… I am”. With the entry into force of the Charter, the ECJ and its
national counterparts can sing this song over and over. And if they all take the
Charter seriously, as the ECJ has succeeded in doing in its first judgments to
date, they could all reply, without a hint of doubt, “Not me, George… not me”.
CML Rev. 20131304 Sarmiento