The Protection of Fundamental Rights in Europe

Abstract

Since the entry into force of the Treaty on European Union (TEU) on 1 December 2009 the people of Europe, the citizens of the European Union (EU), have taken a great leap forward in terms of their codified legal rights and liberties. For a long time they have been living mostly under judge-made law, be it as a result of the interpretation of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) by the European Court of Human Rights (ECtHR) in Strasbourg or of the creation or recognition of fundamental rights by the European Court of Justice (ECJ) in Luxembourg. While the Strasbourg Court grants legal protection as measured by human rights with universal character, the ECJ in its established case law guaranteed the protection of fundamental rights which the relevant parties sought within the scope of application of the Community Treaties. Now the Treaty of Lisbon recognises rights, freedoms and principles at Union level in a more comprehensive understanding – beyond the mere market-based context – setting them out in the Charter of Fundamental Rights of the European Union (EUCFR) and giving its provisions binding legal force (Art. 6.1 TEU).

Translated by Robert Böttner, assistant at the Chair for Public Law, International Public Law and European Integration at the University of Erfurt. The author would like to thank Professor Eileen Denza for reviewing the translation.

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Since the entry into force of the Treaty on European Union (TEU) on 1 December 2009 the people of Europe,¹ the citizens of the European Union (EU), have taken a great leap forward in terms of their codified legal rights and liberties. For a long time they have been living mostly under judge-made law, be it as a result of the interpretation of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) by the European Court of Human Rights (ECtHR) in Strasbourg or of the creation or recognition of fundamental rights by the European Court of Justice (ECJ) in Luxembourg. While the Strasbourg Court grants legal protection as measured by human rights with universal character, the ECJ in its established case law guaranteed the protection of fundamental rights which the relevant parties sought within the scope of application of the Community Treaties.² Now the Treaty of Lisbon recognises rights, freedoms and principles at Union level in a more comprehensive understanding – beyond the mere market-based context – setting them out in the Charter of Fundamental Rights of the European Union (EUCFR) and giving its provisions binding legal force (Art. 6.1 TEU).

The development of fundamental rights on the supranational level is mainly the result of the admonitions on the part of the national (constitutional) courts, especially of the Italian Corte Costituzionale ³ and the French Conseil Constitutionnel. Most striking, however, was the support given by the German Bundesverfassungsgericht, which called for a protection of such rights in the Community or even reserved for itself the right to review Community action on grounds of fundamental rights as long as the Community did not dispose of its own guarantees (infra Sect. 6).⁴ These signals, which originated from national actors in the framework of the European protection of fundamental rights, were enhanced by initiatives by the other institutions, in particular by those of the European Parliament which introduced several proposals for recognition of fundamental rights in the European Community’s (EC) legal order.⁵ Thus, the call for a review of “secondary Union law and other acts of the European Union” on grounds of fundamental rights⁶ and the abstention from exercising this national jurisdiction only as long as the EU guarantees an application of fundamental rights which in substance and effectiveness is essentially similar to the protection of fundamental rights required unconditionally by the German Basic Law⁷ is obviously the paradigm of a dialogue between the Luxembourg Court and the German Federal Constitutional Court.⁸

Both systems, that of the Council of Europe and, in some degree, that of the EU, exhibit several similarities to national systems of constitutional protection. Thus, the superior European courts and the superior domestic courts are dealing with similar matters, applying similar provisions of substantive law and following similar procedural rules. As a result, the standards of European fundamental rights, especially those of the Union, are “constitutionalised” by the guarantees enshrined in the various national bills of rights. Simultaneously, there is “a kind of bilateral interplay between the EU and Convention law, thereby producing a twofold process of ‘conventionalisation’ of Union law and ‘unionisation’ of Convention law, though with different timings and intensity.”⁹ Therefore, it is possible to draw a triangle that has, at its three vertices, the various supreme or constitutional courts, the ECJ and the ECtHR. As the legal systems concerned do not only coexist but also overlap each other,¹⁰ it is within this triangle that cooperation in the field of human rights develops and provokes collisions at the same time.¹¹

1 The Protection of Fundamental Rights Under the EC and the EU Treaty of Maastricht in the Case Law of the European Court of Justice

Although the 1957 Treaty of Rome did not contain specific provisions on the protection of fundamental rights, the ECJ has nonetheless upheld the need for respect for fundamental rights in the context of action at EC/EU level since the Community’s early days.¹² In the Stauder judgment on occasion of its review of a disposition of secondary Community law about the purchase of butter at a reduced price for reasons of social assistance the Court concluded its analysis: “Interpreted in this way the provision at issue contains nothing capable of prejudicing the fundamental human rights enshrined in the general principles of Community law and protected by the Court.”¹³ In Internationale Handelsgesellschaft, the ECJ concluded that “[i]n fact, respect for fundamental rights forms an integral part of the general principles of law protected by the ECJ. The protection of such rights, whilst inspired by the constitutional traditions common to Member States, must be ensured within the framework of the structure and objectives of the Community.”¹⁴ General legal principles which are common to the legal systems of Member States form an element of unwritten primary Community law.

Following the cases of Stauder and Internationale Handelsgesellschaft, the ECJ, both in the opinions of its Advocates General and in its judgments, has regularly referred to its duty to ensure observance of the general principles of law, of which fundamental rights form an integral part. This recourse to the general principles of law reflects the French approach to fundamental rights, according to which they are understood rather as principles, attributing to them the character of objective rights.¹⁵ In identifying particular rights and interpreting their content, the Court in Internationale Handelsgesellschaft draws inspiration also from the constitutional traditions common to the Member States and thus reaffirms and specifies the general principles of law as sources for recognition of fundamental rights within the legal order of the Community. Finally in the case of Nold the Court referred to guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories, including in particular the ECHR,¹⁶ thus underpinning the Community’s protection of fundamental rights in a twofold concept: “As the Court has already stated, fundamental rights form an integral part of the general principles of law, the observance of which it ensures. In safeguarding these rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States, and it cannot therefore uphold measures which are incompatible with fundamental rights recognized and protected by the Constitutions of those States. Similarly, international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories can supply guidelines which should be followed within the framework of Community law.”¹⁷

These international instruments are not directly applied as legally binding provisions under international law but rather used as sources for establishing general principles common to the legal orders of the Member States. At the same time, examination of the extensive case law in which reference is made to the ECHR (beginning with Rutili to Hoechst and Orkem up to Defrenne and Wachauf) shows that the Court has indeed applied the provisions of the Human Rights Convention as part of Community law independent of the theoretical explanation of their legal significance as an element for the identification of general principles of law. Thus one can say that even before the forthcoming accession of the Union the ECHR has had a function equivalent to that of a formally recognised catalogue of fundamental rights.¹⁸

This interplay between both sources, the general principles of law, especially the constitutional traditions common to the Member States, and the ECHR was already enshrined in the Treaty of Maastricht in 1992 (Art. 6 TEU) as a cornerstone of the protection of fundamental rights at the level of the Union. Since the beginning of the 1990s, though, the fundamental rights arguments of the ECJ have focused unequivocally on the ECHR rights. Although general principles are still mentioned, they are not developed on a comparative legal basis in the case law of the ECJ. Successive Treaties from Maastricht onwards have strengthened the position of fundamental rights in the EU. But it is the Charter of Fundamental Rights which is supposed to be a “huge step forward for the European citizen” (A. Duff) for it provides for visibility and publicity of fundamental rights guarantees and thus leads to increased legal certainty. It facilitates the Europe-wide discourse on, and enhances the legitimating power of, fundamental rights.¹⁹

2 The Protection of Fundamental Rights in the Union According to Art. 6 TEU

2.1 An Interwoven System of Protection

The Treaty of Lisbon, which is a reform treaty, substantially revises Art. 6 TEU. Articles 6.1 to 3 TEU cover a tripartite interwoven system for the protection of fundamental rights in the EU²⁰ by:

• 1. Recognising the rights, freedoms and principles set out in the EUCFR in its revised version of 12 December 2007²¹ in a legally binding way and thus declaring them a legal source of Union law, establishing at the same time a safeguard for the competences of the Member States

• 2. Setting out the authorisation and obligation of the EU to accede to the ECHR, which by this means becomes a legal source of Union law as well, and

• 3. Declaring the fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, constituent “general principles” of Union law which thus remain a source of legal guidance for the interpretation especially of the Charter of Fundamental Rights as a legal source of the Union.²² Thereby, the Treaty of Lisbon – with slight adaptions – takes up the case law of the ECJ and its codification by the Treaty of Maastricht (supra Sect. 1). The source for the interpretation of the law – as opposed to an actual source of law – is not directly binding but rather has an effect similar to that of a norm by serving as a means of orientation for the interpretation of the source of law.²³

The juxtaposition of the codified (Art. 6.1 (1) TEU) and uncodified (Art. 6.3 TEU) catalogue of fundamental rights has been criticised as “unusual” and in need of reform. For a dynamic development of the fundamental rights with regard to further development of the ECHR and the national constitutions to be possible,²⁴ Art. 6.3 TEU would not have been required since Art. 52.3 and 4 EUCFR bind the ECJ in this respect anyway.²⁵ On the other hand, with regard to the codification of European fundamental rights, emphasis has been put on the “interaction of the fundamental rights culture at Member State and European level” as well as the significance of the “diversity of the human rights culture in the current and future Member States” that has proven to be an “impetus for the steady improvement of the protection of human rights”.²⁶ This solution, which is based on the competition of different systems of fundamental rights by means of constitutional comparison, however, misjudges the fact that for a long time the ECJ has derived fundamental rights essentially from the ECHR which it applies as part of Community law (infra Sect. 2.3). In the future it will see its task to be the decision of cases with fundamental rights implication submitted to it by applying the Charter of Fundamental Rights, whose guarantees – in the light of the authentic interpretation of the rights of the Convention by the ECtHR – it has to lead to a high level of protection.

2.2 Fundamental Rights as Principles (Art. 6.3 TEU)

The Union Treaty restates the differentiation already found in the Preamble of the Charter of Fundamental Rights (6th recital) and Art. 52 EUCFR between “rights” and “freedoms” on the one hand and “principles” on the other (Art. 6.1 TEU). The Explanations of the Praesidium of the Convention²⁷ classify individual Articles of the Charter of Fundamental Rights as principles (e.g. Art. 25, 26 and 27, but also Art. 34.1 and 3 and Art. 35, 36, 38). The distinction is another confusing and unsatisfactory peculiarity of the Charter which is further consolidated by the wording of Art. 6.1 TEU and 51 EUCFR. The United Kingdom has been most reluctant to talk about economic and social rights,²⁸ but preferred instead to use the word “principles”. “Principles” have no definite, but a prima facie validity and are thus rather imperatives for optimisation. Their implementation is only feasible within the framework of a balancing with other objectives of primary law.²⁹ As such, they are “factors to be taken into account by courts when interpreting legislation, but which do not in and of themselves create enforceable rights”.³⁰ “Principles” are binding, but justiciable only in so far as Member States have adopted laws or taken administrative actions (i.e. have adopted “acts”) when “implementing” Union law (Art. 52.5 EUCFR).³¹ Subjectively enforceable fundamental rights are different from the fundamental principles which may be implemented through legislation. It would be decisive for the distinction, whether the relevant provision (also) relates to the protection of rights of individuals or this is expressly excluded.³² However, the stumbling block for the distinction remains that the Charter does not identify which provisions contain rights and which principles.

The principles pursuant to Art. 6.1 TEU are to be distinguished from the “general principles” of Art. 6.3 TEU. By using this term – following the case law of the ECJ (Stauder) as well as Art. F.2 TEU-Maastricht – it summarises the fundamental rights of the ECHR and the fundamental rights as they result from the constitutional traditions common to the Member States, thereby making them a source for the interpretation of Union law.³³ The significance of the common constitutional traditions is so far regarded marginal, since the ECJ will not refrain from an autonomous interpretation of the Charter, equivalent to the interpretation of the Treaties. At the same time, comparative evaluation would affect the achievements made by the codification of fundamental rights in the Charter.³⁴ The interpretation of the Charter itself is bound by its general provisions in Title VII (Art. 51–54 EUCFR) on the one hand and by the “Explanations referred to in the Charter” (historical interpretation) which themselves are limited to those “that set out the sources of those provisions” (Art. 6.1 (3) TEU) on the other.

2.3 The European Charter of Fundamental Rights

2.3.1 Origin, Entry into Force and Relevance of the Charter

The EUCFR was prepared by the first broadly based Convention, encompassing members of the European Parliament and of national parliaments. At the summit in Nice in December 2000, the Member States were not yet unanimously ready to incorporate the Charter into the Treaty of Nice. Instead, the EUCFR, drawing on the “constitutional traditions and international obligations common to the Member States” was “solemnly proclaimed” by the European Parliament, the Commission and the Council.³⁵ Prior to the adoption of the draft Charter by the Convention, the Bureau of the Convention prepared Explanations for each Article of the Charter. The Explanations are intended to clarify the provisions of the Charter, indicating the sources and scope of each of the rights set out.

The second Convention incorporated the Charter as Part II into the Treaty establishing a Constitution for Europe (TCE) signed in Rome on 29 October 2004.³⁶ Since the Constitutional Treaty failed to be ratified by all Member States, the Charter continued to live on as a solemn political proclamation. The Intergovernmental Conference (IGC 2007) decided, in line with its June mandate, to make the Charter legally binding but without incorporating the text into the Treaty of Lisbon.

One day before the signing of the Treaty of Lisbon, the Charter was solemnly proclaimed in Strasbourg for a second time by the European Parliament, the Council and the European Commission. The EUCFR has been published in the Official Journal of the EU with the Explanations relating to the Charter of Fundamental Rights.³⁷ It entered into force on 1 December 2009 along with the TEU and the Treaty on the Functioning of the European Union (TFEU) without, however, becoming a part of the Union Treaty itself. The United Kingdom and the Netherlands were afraid that the incorporation of the Charter into the Reform Treaty would create the impression of a “statehood” at Union level. In order to make it a fully adequate and equivalent document in the legal system of the Union, the second clause of Art. 6.1 TEU provides that the Charter shall have the same legal value as the TEU and the TFEU. Nevertheless, this is an impairment of the concept of unity envisaged by the Constitutional Treaty.

The Charter of Fundamental Rights “confirms the fundamental rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States.”³⁸ Their guarantees concern civil, political and economic freedoms and social rights (“rights to respect”, “rights to protect” and “rights to fulfil”). Bringing together various rights which were previously enshrined preponderantly in other human rights documents, and thus making them “more visible”³⁹ for the citizens of the Union, the Charter is a manifestation of shared European values. The codification not only underlines and clarifies the legal status and freedoms of the Union’s citizens vis-à-vis the institutions of the Union, but also satisfies the need for fundamental rights facing and limiting the enlarged powers at Union level – especially the crucial ones regarding the “area of freedom, security and justice” (Title V of the TFEU) which were brought within the “Community method”.⁴⁰ The result will be the most up-to-date human rights document in the world, and it offers the citizens a basis for scrutinising EU institutions and Member States when they implement EU law.

2.3.2 The Likely Effect of the Legally Binding Force of the Charter for the Protection of Fundamental Rights in the Case Law of the ECJ

The most important change relates to the legal status of the Charter: new Art. 6.1 (1) TEU provides that the Charter, which has been excluded from the Union Treaty, will have the same legal value as the Treaties (“incorporated by reference”). Declaring the Charter to be legally binding will of course be likely to encourage and probably speed up the development of the case law of the ECJ which within the framework of Union law will try to gain mastery in the protection of human rights in competition with the Strasbourg Court. So far the ECJ has rarely proved itself to be a pioneer and precursor with regard to the establishment of a high level of protection. The ECJ has only rarely declared a European legal act void for its incompatibility with European fundamental rights.⁴¹ Nonetheless, even without the Charter of Fundamental Rights it could examine European acts for their conformity with fundamental rights more resolutely. It is true that in its Omega ruling the Court has shown a sense of proportion for the somehow vague guarantee of “human dignity” as a fundamental cornerstone of the German Constitution: Here the Court recognises that “the Community legal order undeniably strives to ensure respect for human dignity as a general principle of law” and “that the objective of protecting human dignity is compatible with Community law”; therefore human dignity as a principle validated in the Union’s legal order⁴² “justifies (within the scope of proportionality) a restriction of the obligations imposed by Community law, even under a fundamental freedom guaranteed by the Treaty such as the freedom to provide services.”⁴³

Nevertheless, “it is not indispensable in that respect for the restrictive measure issued by the authorities of a Member State to correspond to a conception shared by all Member States as regards the precise way in which the fundamental right or legitimate interest in question is to be protected.”⁴⁴ In fact the “double test” which the ECJ applies to national restrictions of the obligations imposed by Union law allows for different standards of protection in domestic law.⁴⁵ Contrary to this filtered and differentiated method of the handling of the fundamental rights traditions of the Member States, in the Bosphorus decision, although the Luxembourg Court thoroughly examined the principle of proportionality, it rather blurred the question of the limits of Art. 1 of the first Protocol to the ECHR on the protection of property by merely stating that the guarantee of property can be limited by a public interest/general interest but without a detailed review as to whether the seizure of the aircraft by the Irish authorities met the requirements of “the conditions provided for by law and by the general principles of international law.”⁴⁶

Summarising the “fundamental rights rhetoric” of the ECJ, the question of the protection or the normative area (which fundamental right is affected?) and the question of the admissible restrictions (to be determined in the future according to Art. 52.1 and 52.3 EUCFR) and consequently the justification for such restriction needs to be made clearer and dealt with more extensively in its case law. In those cases in which there is no express restriction, the possibility of a de facto or indirect invasion, which may also lead to a violation of fundamental rights, should be examined.⁴⁷ Despite the codification of the principle of proportionality with regard to its second element (necessity) and third element (appropriateness: “limitations [must] meet objectives of general interest […] or […] the rights and freedoms of others”), a coordinated method of application is still often lacking in the ECJ’s examination of fundamental rights.⁴⁸ However, after the rulings in Kadi ⁴⁹ and Yussuf,⁵⁰ there is no doubt about the Court’s willingness to give its case law a higher profile in matters concerning fundamental rights. The reason for a predictable evolution of the substantial standards of fundamental rights protection by the Luxembourg Court lies also in the fact that the ECJ will be increasingly asked to interpret the ECHR, given that a number of Charter rights are derived from that document. By this means, the growing caseload of the ECtHR can be alleviated in the long run.

2.3.3 The Effect of the Charter on the Interpretation and Application of Fundamental Rights

The entry into force of the Charter following the ratification of the Lisbon Treaty will not be without impact on the method of defining the scope and content of fundamental rights in the case law of the ECJ. So far its task has been in a first step to identify the common European standards of fundamental rights by analysing the national legal orders as part of the general legal principles of European law and align them with the guarantees of the ECHR as they have been interpreted in the case law of the Strasbourg Court. Due to codification of the fundamental rights of dignity, freedom and equality as well as the incorporation of social (“solidarity”), civil and judicial rights into the Charter, the Luxembourg Court’s task will now be to outline especially those guarantees which have no parallel provision in the ECHR,⁵¹ as subjective rights⁵² (“rights to fulfil”) in contrast to the “rights to respect” and the “rights to protect”,⁵³ and to determine their content with regard to human rights in such a way – also in the analysis of the scope of protection – that they are not reduced to mere ciphers. In so far as the guarantees recognised by the Charter are a reception of the constitutional traditions common to the Member States, the Court is obliged to interpret these rights “in harmony with those traditions” pursuant to Art. 52.4 EUCFR. Thus, the ECJ could be confronted with national essential principles on which the respective guarantees are based. However, on the one hand, the sphere of the rights included in paragraph 4 is vague, for many rights are founded on several sources. On the other hand, the explanations of the Praesidium in paragraph 4 call for “a high standard of protection” so that it is not to be expected that the ECJ will be kept by paragraph 4 from an autonomous interpretation of the Charter according to the established method of interpretation of the Treaties.⁵⁴

Meanwhile the Court will have to be more systematic and methodically stringent in its interpretation of fundamental rights in order to ensure rationality and understanding of its decisions. On this basis the second step of defining the scope of fundamental rights will still be determined by a process that has been characteristic of the established interpretation of fundamental rights by the ECJ. The Court will have to fit the various listed fundamental rights into the structures and aims of the Union which are spelt out in Art. 3, 6 and 9 TEU and the horizontal clauses of Art. 10–13 TEU in particular. This “Union reserve competence” is now partially codified by the specification of “objectives of general interest recognised by the Union” in Art. 52.1 EUCFR. This implies that restrictions cannot be justified merely by reference to aims for which a competence is conferred upon the EU even though the Union legislator may not impose restrictions to fundamental rights for the pursuit of discretionary chosen aims or “as such”. Safeguarded interests include among others the status of churches and of secular and religious communities, the rights of children, and consumer and animal protection.⁵⁵ Restrictions of fundamental rights are to be in accordance with the principle of proportionality, in accordance with its definition in Art. 52.1, second sentence, where EUCFR requires appropriateness for purpose as well as necessity (adequateness) and the balancing with other interests. Thus, in addition to objectives of general interest to the Union, the “need to protect the rights and freedoms of others” has to be taken into consideration. Any limitation to the exercise of a fundamental right of the Charter may in each individual case be justified not only by a specific Union interest, but also by individual interests of third parties. In return, however, these conflicting interests are themselves restricted by general limits to the restrictability or “counter limits” (i.e. the so-called Schranken-Schranken). In the existing case law on the review of the proportionality of a restriction the ECJ has too strongly stressed the interest of the Community, thereby neglecting the examination of the importance of conflicting interests.⁵⁶

In recent cases the ECJ seems to be, however, more sensitive for the need to weigh and balance the interests involved on the ground of the principle of proportionality.⁵⁷ Thus, the Court argues, that any limitation to the exercise of a fundamental right “must apply only in so far as is strictly necessary”.⁵⁸ The ruling also spells out the clear message to the Union’s institutions to justify more intensively their measures, both, with regard to pursue the adoption of measures which might affect fundamental rights and in the context of a judicial review of such measures.⁵⁹

If the Court more thoroughly systemises also the methodical approach of the examination of fundamental rights, expectations set in the Charter will be met: Due to its legally binding force the Charter will make it more straightforward for individuals to enforce rights which are guaranteed under international law. Although the Charter reaffirms rights and principles which already substantially exist, albeit in many cases only at an international level, the Luxembourg Court will turn the “soft” law standards in the field of international human rights on the basis of the Charter into “hard” law. A risk could be that a difference in approach to the human rights guarantees which are enshrined identically in the Charter and in the Convention may develop between the Strasbourg and Luxembourg Court. This might be remedied by the Union signing up to the ECHR.

2.3.4 Further Provisions on Interpretation

Art. 6.1 (3) TEU also stipulates that the Charter rights are to be interpreted in accordance with the “horizontal” provisions of the Charter, i.e. Art. 51 through 54 EUCFR clarifying the Charter’s scope and applicability and with “due regard” to the Explanations prepared by the Bureau of the Charter Convention. The Explanations now referred to in this general provision on fundamental rights of the TEU, and retained in the Preamble to the Charter (5th recital, sentence 2) as well as in its Art. 52.7, are attached to the text of the Charter and published in the same Official Journal as the Charter itself.⁶⁰

The Explanations do not have the value of an “agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty” or of an “instrument which was made by one or more parties in connection with the conclusion of the treaty” in the sense of Art. 31 VCLT.⁶¹ These Explanations are rather “supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion” in the sense of Art. 32 VCLT. In literature and comments on Art. 6 TEU this meaning of the Explanations is briefly confirmed by emphasis on their lack of any “legal value” or on their “non-binding” character.⁶²

Article 51.1 EUCFR provides that the Charter provisions are addressed to EU institutions, bodies, offices and agencies of the Union and to Member States only when implementing EU law, a qualification which is absent from the terms of Art. 6.1 TEU itself. This means that the ECJ will be in a position to examine whether the Member States comply with their obligations resulting from the fundamental rights guarantees of the Charter when implementing Union law because exclusion of this control on the basis of ex-Art. 46 lit. d TEU is no longer possible since the entry into force of the Lisbon Treaty (Art. 19.3 lit. c TEU). The Charter also provides that the principle of subsidiarity is to be respected. Article 51.2 EUCFR states that the Charter does not extend the field of application of Union law beyond the powers of the Union; nor does it establish or modify any Union powers or tasks. From Art. 51.1 EUCFR it follows that it does not apply to situations involving purely domestic law; for the Charter to be directly relevant there must be a link to Union law. National courts may, however, find inspiration in EU law even when applying purely domestic law.

Article 52.3 EUCFR contains the obligation to an interpretation of the provisions of the Charter that is consistent with the ECHR (“the meaning and scope of those rights shall be the same”); this does not change the ECHR’s character as a source for the interpretation of the law (Art. 6.3 TEU).⁶³ As a result, this leads to a synchronisation of substantive law of the Charter with the law of the Convention. Although this does not mean that the Convention becomes an integral part of Union law, the normative content of the Charter provisions is adapted to that of the corresponding provisions of the Convention by means of systematic interpretation. In principle, this inclusion refers to the scope, the definition of what is considered an interference with fundamental rights as well as the requirements of the corresponding Charter provisions to justification of interferences. Nonetheless, it also requires – depending on the respective level of the review – a differentiated and, referring to the individual case, flexible solution.⁶⁴ Article 52.4 EUCFR provides that rights resulting from constitutional traditions common to the Member States are to be interpreted in harmony with those traditions.⁶⁵ Thus, Art. 52.4 EUCFR can be understood in the sense that in addition to the general reservation of Art. 52.1 EUCFR – and also in addition to Art. 52.3 EUCFR – one can deduce further requirements for the justification of limitations.⁶⁶ In particular, the need for guidance on the distinction between “rights” and “principles” was the justification for the new Art. 52.5 EUCFR.

2.3.5 Limits of the Guarantees

Article 6.1, sentence 2, TEU makes clear that “[t]he provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties”. It also confirms that the Charter does not extend the field of application of Union law or of Union tasks. Additionally the Declaration on the Charter of Fundamental Rights (included in the Final Act under No. 1) was annexed to the Treaty of Lisbon, in which the Conference and thus all of the Member States assert that the Charter which is to have a legally binding force confirms the fundamental rights guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States.

New Art. 6.3 TEU reflects ex-Art. 6.2 TEU-N, a provision which has been used extensively by the ECJ in developing its case law on fundamental rights. It provides that “[f]undamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.” Limits to a wide interpretation of the European “Bill of Rights” by the ECJ are not only set by the already mentioned Art. 6.1, first sentence, TEU and the Declaration on the Charter of Fundamental Rights, but also by Art. 52.6 EUCFR, which provides that full account is to be taken of national laws and practices as specified in the Charter, and this would appear to give some weight to the references to national law.

On the basis of Art. 6 TEU it can therefore be concluded that the application of the Charter is limited on several levels by conditions set in the Charter itself, confirmed subsequently by the Treaty of Lisbon in Art. 6.1 and given political weight by the Declaration of the Conference (i.e. the Member States).

3 The Loss of Unity and Unanimity on Human Rights Standards Among the Member States?

The somewhat awkward status of the Charter of Fundamental Rights came to an end with the ratification of the Treaty of Lisbon. However, unanimity among the Member States’ governments has come at a price. The United Kingdom and subsequently Poland have insisted on a Protocol on the application of the Charter of Fundamental Rights, containing an exemption from the “operation of specific provisions of the Charter” (10th indent of Protocol No. 30) in both countries. According to the Protocol, neither “the Court of Justice of the European Union, [n]or any court or tribunal of Poland or of the United Kingdom” will be entitled “to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that [the Charter] reaffirms” (Art. 1.1 of the Protocol). Title IV referring to “social rights” (“solidarity”) does not create “justiciable rights applicable to Poland or the United Kingdom except insofar as Poland or the United Kingdom has provided for such rights in its national law” (Art. 1.2 of the Protocol). References in the Charter to domestic law or practice do not apply to the United Kingdom or Poland unless the rights are recognised in the law or practices of these countries (Art. 2 of the Protocol). As provided in Art. 51 TEU, the Protocol has the same legal value as the Treaties.

According to the British Foreign Minister in the European Scrutiny Committee of the UK House of Commons this is not meant to be an “opt-out” from the Charter as a whole.⁶⁷ Alan Dashwood, who has advised the UK government extensively on the Constitutional Treaty, also writes that the function of the Protocol is “interpretative – to state unequivocally, and with the force of primary law, what ought to be obvious from a reading of the Charter in the light of the horizontal provisions and of the official explanations.”⁶⁸ This view is supported by the Preamble to the Protocol which says, as mentioned above, that the purpose of the Protocol is to “clarify certain aspects of the application of the Charter.” In other words, following this view the Protocol contains clarifications, but does not change the status quo of the protection of fundamental rights in the EU and does not exclude the jurisdiction of the ECJ in this field in relation to Poland and the United Kingdom.

However, depending on the reading of Art. 1 of the Protocol, there might be elements of opt-out for the United Kingdom and Poland. While Art. 1.2 states that “nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except insofar as Poland or the United Kingdom has provided for such rights in its national law”, the Protocol obviously covers some economically crucial provisions of the Charter on workers’ rights under the heading of “Solidarity”. The United Kingdom believed that the content of this title related to non-justiciable principles, not rights (supra Sect. 2.2), so that the question of their direct effectiveness would not arise. However, two of the provisions under the title of solidarity which caused British businesses most concern, Art. 28 EUCFR on collective bargaining and action and Art. 30 EUCFR on unjustified dismissal, appear to be drafted in terms of rights, not principles, and are thus potentially justiciable.⁶⁹ Article 1.2 of the Protocol therefore makes clear that if any of the provisions of Title IV are in fact classed as rights they are not justiciable in respect to the United Kingdom and Poland. Why are Art. 28 and Art. 30 EUCFR so sensitive to the United Kingdom and Poland, respectively?⁷⁰

The United Kingdom, with its absence of a written constitution, has no “right to strike”. Instead, trade unions enjoy only immunity from being sued in tort when certain conditions are satisfied. By contrast, in the immunity-based system, strikes are seen as unlawful and trade unions have to justify why they are going on strike. Given the structural differences in approach between common law and civil law, the UK government has been concerned about the EU introducing a “right” to strike in the United Kingdom. Beyond this, UK businesses were concerned that Art. 30 EUCFR gave individuals the right to protection against unfair dismissal. Finally, there is a perplexing irony about the Polish position under Art. 1.2 of the Protocol in particular. The Polish Declaration on the Protocol stated:⁷¹

Poland declares that, having regard to the tradition of social movement of ‘Solidarity’ and its significant contribution to the struggle for social and labour rights, it fully respects social and labour rights, as established by European Union law, and in particular those reaffirmed in Title IV of the Charter of Fundamental Rights of the European Union.

This Declaration appears to undermine significantly any potential use of Art. 1.2 of the Protocol as an “opt-out” with respect to Poland. In fact, as this Declaration shows, Poland’s concerns are not with social and labour rights. Poland’s real fears lie with subjects such as gay marriage and abortion, but the Protocol does not touch on these issues.⁷²

Reading the Protocol, one comes to the conclusion that in “reality” it “lies somewhere in between […] opt-out” and mere “clarification”.⁷³ Federal admissibility of different levels of protection of fundamental rights – even in the application of federal law in the relation between the states and the federation – can be seen in the federal model of the Federal Republic of Germany (Art. 142 GG) with derogation from the principle that “Federal law shall take precedence over Land law” (Art. 31 GG). However, this provision requires “consistency” of the fundamental rights provided for by Land constitutions and the rights of the individual as guaranteed by the federal constitution.⁷⁴ The differences regarding fundamental rights between the relevant norms of labour and social rights in the United Kingdom (and Poland) on the one hand and the guarantees of the Charter of Fundamental Rights of the Union on the other would be substantially diminished in that, regardless of the Charter’s limited scope of application in these two countries, their commitment to the fundamental rights of the ECHR – which are in most cases identical to those of the Charter – and the constitutional traditions common to the Member States (Art. 6.3 TEU) as general principles of law and thus the binding case law of the ECJ in the field of fundamental rights remain untouched. The binding case law relating to fundamental rights of the ECtHR would remain unaffected. In the field of the protection of fundamental rights the Union seems to become once more a “Europe à la carte”. The unity and the common basis of values in EU law seem to be partly diminished.

4 The Relationship Between the System of Protection of Fundamental Rights by the Union and the ECHR

4.1 Coherence in the Case Law

For some time the Luxembourg Court has obviously tried to stress coherence of its case law with that of the ECtHR.⁷⁵ So far the most obvious conflict between the two European courts in the case of Senator Lines has been alleviated by the ECtHR’s decision on dismissal of the action. This case was about provisional legal protection against the setting of a fine by the European Commission for infringement of European competition rules. The applicant company – the Senator Lines shipping company with its registered office in Bremen, Germany – regarded its economic existence as threatened due to the refusal of deferment of the required security by means of a bank guarantee. It took legal remedies against the decision of the ECJ⁷⁶ by bringing an action before the ECtHR (as ultima ratio) against all the Member States of the EC – a highly unusual procedure. In a later decision, which became final in the absence of an appeal, the Luxembourg Court of First Instance quashed the fine.⁷⁷ Therefore the ECtHR in accordance with the ECHR could find that there was no continuing infringement of fundamental rights and that the applicant was not a victim of a violation.⁷⁸ Hence there was no more room for a possible diverging interpretation of fundamental rights by the ECtHR and the ECJ.

4.2 Remaining Potential for Conflict

At the same time there still remains the potential for conflicts in European competition law, in particular concerning the right to refuse to provide testimony in anti-trust suits or the question whether the Court provides the same level of protection for actions within business premises as for those within private residences or whether it will – regardless of the decision by the ECtHR in the case of Niemietz ⁷⁹ – stick to the general line of the Hoechst decision⁸⁰ in the sense of differentiating between “private premises” and “business premises”, thereby holding on to the distinction between “employed” and “self-employed”. According to Advocate General Juliane Kokott the protection of legal professional privilege does not apply for the benefit of enrolled in-house lawyers in anti-trust proceedings of the European Commission. Internal company communications with enrolled in-house lawyers, even if he/she is a member of a Bar or Law Society, does not enjoy legal professional privilege as guaranteed by fundamental rights at Union level (Art. 8.1 ECHR in conjunction with Art. 6.1 ECHR and Art. 6.3 lit. c ECHR – right to fair trial – Art. 7 EUCFR in conjunction with Art. 47 (1), Art. 47 (2), second sentence, and Art. 48 (2) EUCFR) between a lawyer and his client.⁸¹ It could not be concluded that the principle of equal treatment (Art. 20 and 21 EUCFR) was infringed as “with regard to their respective degrees of independence when giving legal advice or providing representation in legal proceedings, there is therefore usually a significant difference between a lawyer in private practice or employed by a law firm, on the one hand, and an enrolled in-house lawyer, on the other.”⁸² Hence the protection of the legal privilege with regard to documents seized during a search according to EU anti-trust law is reduced. Evidently, the ECJ is influenced by the argument that further-reaching protection of fundamental rights would interfere with the proper functioning of effective control by the authorities of compliance with anti-trust and competition rules.⁸³

4.3 The Accession of the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950

In the light of the efforts for coherence, compatibility and harmony between the legal principles of the existing Treaties (Art. 6.3 TEU), the rights of the Charter of Fundamental Rights and the rights contained in the Strasbourg Convention, Art. 6.2, first sentence, TEU provides for the accession of the Union to the ECHR. By now the guarantees of the ECHR form a European public order with objective character, i.e. an order that is not limited to bilateral commitments among states but rather imposes objective obligations on them. The Court called the Convention “a constitutional instrument of European public order (ordre public)”, thereby stressing the states’ obligation “to have regard to the special character of the Convention and the Protocols thereto as a treaty for the collective enforcement of human rights and fundamental freedoms.”⁸⁴ As a consequence of the accession of the Union to the Convention the Strasbourg Court will be recognised as the final authority in the field of human rights.

At the same time the new provision meets the requirement of a treaty revision spelled out by the ECJ in its Opinion 2/94 on the accession of the EC to the ECHR.⁸⁵ Realisation of the accession is only possible by meeting the strict prerequisites set by the Lisbon Treaty. The Council must decide unanimously to accept the terms of accession. Moreover, accession requires not only the consent of the European Parliament but also of all Member States in accordance with their respective constitutional requirements (Art. 218.6 lit. a (ii), 218.8 TFEU). Additionally, there was a need to create an exception (i.e. make special provision) for the accession of the Union to the ECHR to which originally only members of the Council of Europe could accede (Art. 59 ECHR, Art. 4 of the Statute of the Council of Europe). This was done by Protocol No. 14, which entered into force on 1 June 2010. Pursuant to its Art. 17, a new paragraph has been inserted in Art. 59 ECHR providing that “[t]he European Union may accede to this Convention.”

This amendment was not sufficient to allow for an immediate accession to the ECHR. The accession of the EU, which is neither a State nor a member of the Council of Europe and which has its own specific legal system, requires certain adaptions to the Convention system. These include: amendments to provisions of the Convention to ensure that it operates effectively with the participation of the EU; supplementary interpretative provisions; adaptations of the procedure before the ECtHR to take into account the characteristics of the legal order of the EU, in particular the specific relationship between an EU Member State’s legal order and that of the EU itself; and other technical and administrative issues not directly pertaining to the text of the Convention, but for which a legal basis is required.

These recent amendments, defining the status of the European Union as a High Contracting Party to the Convention and the Protocols, were set out in the “Agreement on the Accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms”.⁸⁶ Accession to the Convention and the Protocols will impose on the European Union obligations with regard only to acts, measures or omissions of its institutions and bodies, offices or agencies, or of persons, acting on their behalf. Pursuant to Article 6.2 TEU it does not “require the European Union to perform an act or adopt a measure for which it has no competence under European Union law” (amendment to Art. 59.2 lit. c ECHR).

4.3.1 Relevance of External Control by the ECtHR

Only the accession of the Union to the ECHR will allow European citizens to bring before the ECtHR actions against the decisions of the authorities of the Union or against judgments of the Luxembourg Court which are not in accordance with the ECHR or with the case law of the Strasbourg Court. This will allow legal proceedings (now guaranteed by domestic law in similar situations) where an infringement of the fundamental rights enshrined in the Convention is asserted. Until now at Union level there has been no correlation between the subjection of EU citizens and their legal protection by an external judicial review – although this is demanded by the principle of subiectio trahit protectionem.

After the entry into force of the Charter of Fundamental Rights it would have appeared somewhat anachronistic that the EU should remain the only legal area in Europe not subject to external review by the ECtHR. Given the background of extended Union competences through the Treaty of Lisbon, in particular in the area of police and judicial cooperation (“area of freedom, security and justice” – Art. 82 et seqq., 87 et seqq. TFEU), the existence of the Charter implies that the ECJ will be confronted with far more questions having fundamental rights implications than before through request for preliminary rulings. Many issues will contain aspects on which there is yet no established case law of the Strasbourg Court. Therefore, the fourth consideration of the Agreement on the Accession of the EU to the ECHR expressly recognises the need to give the individual “the right to submit the acts, measures or ommissions of the European Union to the external control” of the ECtHR.

With accession, the Union, as did its Member States before it, recognises the necessity for the “sheet anchor of a human rights constitution” (Ch Tomuschat), a function which the Convention already performs at the level of the Member States. Due to the lack of specification the Union itself will determine the rank of the ECHR within its legal order. According to the rulings of the ECJ international agreements (as well as international customary law) take precedence over secondary Union law.⁸⁷ Secondary law of the Union thus cannot effectively derogate from international obligations of the Union within its legal order. In case of a violation of the Convention by secondary law the ECJ has to declare void the respective act of Union law.⁸⁸ The primacy of primary Union law over international agreements and hence also over the ECHR stems from the fact that the Union is not authorised to amend the European Treaties, i.e. the TEU and the TFEU (Art. 48 TEU, Art. 218.5 and 6 TFEU).⁸⁹ If, however, a norm of an international agreement, in this case some provisions within the ECHR, has the status of a provision of ius cogens these norms will take precedence over primary and secondary Union law. Any conflict would lead to the relevant provision of Union law being invalid (Art. 53 VCLT).⁹⁰ As a result the Strasbourg Convention thus – in parallel to its position in between constitutional and ordinary law in Germany – will take its place between secondary and primary law of the Union. This implies that even with the accession it will rank below the Charter of Fundamental Rights, which according to Art. 6.1, second clause, TEU is part of primary Union law. Nonetheless, pursuant to Art. 52.3 EUCFR, the ECHR constitutes the substantive minimum standard also for fundamental rights of the Union which will be interpreted through recourse to the ECHR and to the case law of the ECtHR. The competence of the ECtHR to asses the conformity of EU law with the provisions of the Convention will not prejudice the principle of the autonomous interpretation of EU law.⁹¹

4.3.2 Safeguarding of Substantive and Procedural Coherence

It has often been said that the accession to the ECHR would assist to avoid any risk of conflict between EU law and the ECHR as interpreted in Strasbourg, by placing fundamental rights on a single consistent foundation throughout the EU. At the same time it appears that in the light of the development of fundamental rights in the case law of the ECJ the argument of creating substantive cohesion between the protection of fundamental rights within the Union and the protection by the Strasbourg system is not as powerful as it was during the debate over the last decades on the accession favoured by the Council of Europe and many Member States. The decisions of the Strasbourg Court have become a “means of orientation”⁹² for the ECJ which is reflected in the efforts of the Luxembourg Court to follow the interpretation of the ECHR by the Strasbourg Court in the development of general principles of European law. In the Bosphorus decision of 2005 the ECtHR confirmed that the Community enjoyed a level of protection of fundamental rights “equivalent” (i.e. comparable, not identical!) to that of the ECHR (infra Sect. 4.4). Accordingly it is to be assumed that a Contracting Party does not deviate from the requirements of the Convention if it merely complies with its obligations required by membership in an international organisation.⁹³ Such a (refutable) “presumption of compliance with the Convention”⁹⁴ is given when substantive guarantees exist and judicial control mechanisms are also provided. Nonetheless, in the context of the increase in ECJ decisions with fundamental rights implications which is to be expected (supra Sect. 4.3.1) and given the Bosphorus decision, one should recall a statement by G. Ress in 2002 according to which it “cannot be excluded that with a lack of an institutional link (by means of accession) the interpretation and application of the ECHR (by the ECtHR and the ECJ) will grow apart without there being any (other) remedy.”⁹⁵

At least as urgent as the aspect of ensuring substantive coherence is now the need for procedural coherence between the legal order of the Union and the Strasbourg system.⁹⁶ Despite the tendencies of substantive convergence the Union could not itself be party in proceedings before the ECtHR due to its not being a Party to the ECHR. Only accession will allow EU institutions to directly present their standpoint before the Strasbourg Court in cases related to Union law (ius standi). At present the Member States are solely responsible for compliance with the ECHR, and also in so far as the execution or application of Union law is concerned. How paradoxical this situation is became evident in the Matthews case,⁹⁷ which dealt with the issue of the inhabitants of Gibraltar being denied the right to vote in the European Parliament elections. This right was expressly excluded by the terms of Annex II to the Council Decision and the Act of 1976 concerning the European Parliament election by direct universal suffrage.⁹⁸ This Act of 1976 was not an ordinary legislative act of the ECs but an international agreement supplementing the primary law of the EC and thus part of Community law. Hence, it could not be challenged before the ECJ.

The ECtHR affirmed the applicability of Art. 3 of Protocol No. 1 to the ECHR and thus a violation of the European status activus (i.e. the human right to free expression in the choice of the legislature). By that the Strasbourg Court assumed a continuing collective responsibility of the Member States to ensure an interpretation of transferred sovereign powers in a way that is in conformity with the Convention. However, the changes to Union law necessary in such a case could not be made solely by the State found in breach by the Court in Strasbourg. In the Matthews case, proceedings had been taken only against the United Kingdom, and not against all of the then Member States of the Union. Hence, the accession of the Union to the ECHR is a logical and useful supplement to the codification of the Charter of Fundamental Rights, not only for reasons of substantive coherence between the law of the Union and of the Convention but also to establish legal clarity and certainty.

4.4 Jurisdictional Competition and Coherence: Normative Precautions of the Charter of Fundamental Rights

Article 6.2 TEU contains an authorisation for the accession of the Union to the ECHR as well as a commitment of the Member States to ensure this very accession, which requires an amendment of the Convention according to the Protocol (No. 8) on the accession of the Union to the ECHR (Art. 1). In the long run the accession will contribute to a decrease of potential divergences in the case law of the Strasbourg and the Luxembourg Court. Competition among the courts has been recognised as an element with structural effects on the law in Europe.⁹⁹ It results from overlapping functions of legal protection in the European “compound of constitutions” (Verfassungsverbund) and leads to potential areas of conflict.¹⁰⁰

Such areas of overlap are of special interest in federal and confederal (EU) multilevel governance systems. However, the relationship between the ECJ and the ECtHR is not free from conflict either. This is especially true in cases in which the ECJ established a certain interpretation of the guarantees before the ECtHR and then found itself subject to correction due to subsequent decisions by the Strasbourg Court (Hoechst decision). Despite the expectation that the Luxembourg Court would “revise its case law in the sense of an approach towards the Strasbourg Court” the accession of the Union to the ECHR resembles a strategy for conflict prevention. Additionally, with the Treaty of Lisbon this is all the more necessary since the inclusion of the area of freedom, security and justice in the Community method (Art. 67 TFEU) implies an increase of Union competences in areas with sensitive human rights implications (such as asylum, immigration policy and police and judicial cooperation in criminal matters) as a result of which divergences in the case law of the two courts will be more likely.

The situation of a horizontal competition between the Strasbourg and the Luxembourg jurisdictions regarding the protection of human rights is the ratio legis of Art. 52.3 EUCFR which attempts to ensure the coherence of the European protection of fundamental rights intended by Art. 6.3 TEU in the relation between the ECHR and the EUCFR. Through the transfer clause of sentence 1 of Art. 52.3 EUCFR, which also includes the case law of the ECtHR and of the ECJ, the “meaning and scope” of the rights granted by the ECHR is adopted where these rights are reflected in the Charter. In this context the judgments of the ECtHR have a prejudicial effect for the ECJ in the way of interpretation.¹⁰¹ Exceptions in the scope are transferred from the law of the Convention if it cannot be inferred from the Charter that a more comprehensive protection than in the Convention is intended.¹⁰² The guarantees of these rights and their possible restrictions are determined in the legal order of the Union by the established principles of the application of the ECHR. It also results from Art. 52.3 EUCFR that the law of the Convention covers all the sovereign action which – directly or indirectly – has a negative effect on the fundamental rights of the individual. In addition to limitations of fundamental rights this may also include a violation of a duty to protect as being in need of justification.¹⁰³ The restrictions on the limitations as they result from the ECHR influence the general provision on the restriction of limitations of Art. 52.1 EUCFR but does not replace it.¹⁰⁴

Upon request the Praesidium of the Convention on Fundamental Rights in its Explanations compiled a list of those provisions of the Charter that correspond to rights of the ECHR as well as a summary of Charter provisions whose scope is wider than that of the corresponding ECHR provisions.¹⁰⁵ Hence, Art. 52.3 EUCFR directly binds the European institutions to the equivalent rights within the ECHR. This in effect ensures that even before the accession of the Union to the ECHR the institutions of the EU must observe the Convention.¹⁰⁶ In so far as Charter provisions correspond to rights granted by the ECHR they have the same meaning and scope. Sentence 2 of Art. 52.3 EUCFR ensures that the level of protection provided by the ECHR is observed as the minimum standard. This provision also allows an independent development of protection of fundamental rights in the Union more extensive than the ECHR. This guarantees a limited but at the same time substantively continuing independence of the protection of fundamental rights in the Union from the ECHR.¹⁰⁷ Union law can provide further-reaching protection than the ECHR.

An important landmark judgment in the history of the relations between the two European Courts is certainly the one delivered in the Bosphorus case, in which the Strasbourg Court considered the protection of fundamental rights under Community law sensu stricto – i.e. within the former so-called first pillar – to be “equivalent” to that which the Convention provides. The Court did state that “equivalent” meant the same as “comparable”, as any requirement that the organisation’s protection be “identical” rather than “comparable” could run counter to the interests of international cooperation (supra Sect. 4.3.2).¹⁰⁸ This general competence of the Luxembourg Court for the review of the Union acts with regard to fundamental rights has been put under the condition of a sort of “Solange”-reserve competence (i.e. the reserve competence that the German Federal Constitutional Court claims for itself vis-à-vis the judiciary of the ECJ). This means that the presumption of a principally sufficient level of protection of fundamental rights within the Union may be set aside in the circumstances of a particular case if “it is considered that the protection of Convention rights was manifestly deficient.”¹⁰⁹

Actually there seems to be at least one essential difference between the two approaches. Whereas the German Constitutional Court requires the presumption of equivalence to be rebutted that a general or large-scale drop in the EU-standards be established, under the Bosphorus jurisprudence the presumption can be rebutted on a case-by-case basis.¹¹⁰ Thus, the Strasbourg Court has accepted with respect to the “Convention compliance” of the national implementation of EC law mutual recognition as the rule, stricter scrutiny as the exception. In such exceptional cases it takes on a “residual competence” (Auffangzuständigkeit). By that the ECtHR can incidentally review the act of Union law because the Strasbourg Court, unlike the German Federal Constitutional Court, is not restricted by the principle of primacy. With the accession of the Union to the ECHR the existing residual competence of the ECtHR will become a competence for all cases in which a violation of Art. 52.3 EUCFR either by a Union act or a domestic act of implementation is asserted, i.e. it is covered by the minimum level of protection set by the ECHR. However, the Strasbourg Court – in the light of the Bosphorus decision – is likely to exercise this competence in the event of an individual application (Art. 34 ECHR) brought before it against any such act only if it establishes that the level of protection of fundamental rights against such an act at domestic or at Union level is “manifestly deficient”¹¹¹ and leads – in terms of the admissibility of the application – to a “significant disadvantage” (Art. 35.3 lit. b ECHR) of the applicant.

5 The Relationship Between the National (Constitutional) Courts and the Strasbourg Court Within the Judicial Dialogue in Europe

The relationship between the German Federal Constitutional Court and the ECJ – at least until the Mangold decision by the ECJ – was characterised by latent judicial conflict regarding the residual competence claimed by the Karlsruhe Court.¹¹² Differences between the courts in Karlsruhe and Strasbourg, however, are of a substantive nature.¹¹³ Such manifest divergence in the case law of the German Federal Constitutional Court on the one hand and the ECtHR on the other became evident in the mid-1990s in the case of the secondary school teacher Vogt who was dismissed from German school service because of her membership in the German Communist Party (Deutsche Kommunistische Partei, DKP). This case, which the German Federal Constitutional Court decided not to entertain on the grounds that the constitutional complaint had insufficient “prospects of success”, led the ECtHR to criticise the disproportionate interference with freedom of expression and freedom of association since the German Federal Constitutional Court had not banned this party.¹¹⁴ Nonetheless the Court found it admissible to oblige every civil servant to political loyalty to the Constitution, i.e. to protect the free democratic basic order.

5.1 The Case Görgülü Before German and European Courts

The further development of the relationship between the Strasbourg Court and the national courts can be highlighted on the basis of the Görgülü decision of the German Bundesverfassungsgericht. In this case the Court had to decide on the right of access to and custody of a father to his son who was born out of wedlock and who was given up for adoption by his mother one day after he was born. In September 2003 the Naumburg Court of Appeal dismissed the application of the biological father Görgülü to award a mandatory injunction recognising such visiting rights. Following this decision Görgülü, a Turkish national living in Germany, submitted an application to the ECtHR pursuant to Art. 34 ECHR. The applicant alleged in particular that a court decision refusing him access to and custody of his son violated his right to respect for his family life under Art. 8 ECHR. The Strasbourg Court ruled that the reasons relied on by the Court of Appeal to suspend the applicant’s access to his child were insufficient to justify such a serious interference in the applicant’s family life. There had therefore been a violation of Art. 8 ECHR. The Naumburg Court of Appeal, however, in two further decisions overturned the judgment of the Federal Constitutional Court and denied the right of access and custody of Görgülü to his biological son.¹¹⁵ In three constitutional complaints which were lodged, the Karlsruhe Court had to rule on the legal relationship between the European Convention on Human Rights and the German Constitution.

The Court stated and reaffirmed in Görgülü I that, in Gemany, the Convention and its Protocols have the status of a federal statute. This implies that, in Germany, as in any other country whose domestic law does not treat the Convention as the supreme law of the land, there is a theoretical possibility of conflict between the requirements of the Convention and those of domestic law.

As the German Constitutional Court had pointed out in Görgülü I, a problem can arise in areas where the rights of different parties may give rise to conflict, so that any extension of the right of one party will be tantamount to a restriction of the right of another or may conflict with other provisions of the domestic constitution. In such areas, an extensive interpretation by the ECtHR of one of the rights involved may result in a conflict with domestic constitutional law in so far as this protects conflicting rights of others. The Bundesverfassungsgericht mentions family law as one of several examples. Giving an extensive reading to the rights of a biological father under Art. 8 ECHR may theoretically result in restricting constitutionally protected rights to family life of foster parents or of the children who live with them. It is with regard to situations of this type that the reasons of the Görgülü decision analyse the possibility of conflict between the Convention and domestic law, and the obligations of German courts with respect to this possibility. The Court’s observations sound as if “‘multipolar situations’ were rare birds whereas in real life such situations are daily reality”. It is obvious that in a pronouncement of the Strasbourg Court the interests of third parties are duly taken into account. Hence it follows that the Karlsruhe judges should acknowledge that its emphasis on the peculiarity of “multipolar situations” “lacks solid foundations”; the relevant doctrine is suitable only for instances where general regimes are to be established by way of legislation, but not with respect to the execution of judgments in individual cases.¹¹⁶

As the Constitutional Court puts it, the German Basic Law has not “taken the greatest possible steps in opening itself to international-law connections.”¹¹⁷ The greatest possible step would have been to endow international agreements and other international laws with the status of constitutional law – or an even higher status – and thereby to reduce to a minimum or even exclude the possibility of conflict between national and international law. This step has not been taken in Germany – neither generally nor with respect to the Convention in particular. The Convention has only been given the status of an ordinary federal statute.¹¹⁸

Nevertheless, “the decision of the [ECtHR] must be taken into account in the domestic sphere, that is, the responsible authorities or courts must discernibly consider the decision and, if necessary, justify understandably why they […] do not follow the international-law interpretation of the law” when interpreting national law – including the fundamental rights and the guarantees.¹¹⁹ The very vague legal terms “to take into account” and “to consider” are to be interpreted in the sense of a duty to (understandably) justify decisions (Begründungspflicht) that arise when a national court in its decision intends to disregard a guarantee of the ECHR in its interpretation by the ECtHR as this would lead to an irresolvable conflict with a norm of German constitutional law. The terminology used by the Bundesverfassungsgericht is meant to underline that national courts are required to embed a judgment of the Strasbourg Court into the relevant differentiated and graduated system of law.¹²⁰ The Federal Constitutional Court thus signals to the Strasbourg Court once more after the case of Caroline that certain balancing decisions not only have to be taken at domestic level but instead are exclusively matters of the national courts. At the same time, however, the Karlsruhe Court allows for national constitutional complaints in case a German court has not taken notice of an ECtHR decision or has disregarded the domestic legal force of the respective judgment. The Bundesverfassungsgericht had previously held that it could act in a corrective way only if the erroneous application of Convention law also conflicted with German constitutional law, especially if it was arbitrary.¹²¹ The German Court in its Görgülü decision thus shows its effort to strengthen the general concept of a “commitment to international law” (Völkerrechtsfreundlichkeit) of the German Basic Law and its willingness to enter into an open analysis of the arguments of the ECtHR on its grounds, which is characteristic of a dialogue of legal orders.¹²²

The responsible German authorities have to regularly interpret national laws in the light of the Convention and the binding effect of the judgments of the ECtHR (Art. 46 ECHR), giving primacy to the guarantees of the Convention in the case of a conflict between the Convention and national law.¹²³ In the case of a violation of German constitutional law caused by the binding effect of a judgment of the Strasbourg Court, the national law, however, prevails on account of its hierarchically superior position. Accordingly, there is namely the possibility of such a contradiction between the Convention and higher-ranking domestic law, and the Federal Constitutional Court has made it clear that in the case of such a conflict, it is the Basic Law – not the conflicting international agreement – that the German courts would have to apply: “The Basic Law accords particular protection to the central stock of international human rights […]. As long as applicable methodological standards leave scope for interpretation and weighing of interests, German courts must give precedence to interpretation in accordance with the Convention. The situation is different only if observing the decision of the [ECtHR], for example, because the facts on which it is based have changed, clearly violates statute law to the contrary or German constitutional provisions [or] the fundamental rights of third parties. ‘Take into account’ means taking notice of the Convention provision as interpreted by the [ECtHR] and applying it to the case, provided the application does not violate prior-ranking law, in particular constitutional law. In any event, the Convention provision as interpreted by the [ECtHR] must be taken into account in making a decision; the court must at least duly consider it.”¹²⁴ In this context, however, the Karlsruhe Court refers only to the entirely theoretical situation in which the principal facts of a case have changed after it had already been decided by the Strasbourg Court.¹²⁵

In the cases of Görgülü II and III the German Bundesverfassungsgericht held that the Naumburg Court failed in its obligation to deal with the question “how the Art. 6.2 sentence 1 of the German Basic law” [guarantee of the parents’ rights] could be interpreted in a way that respects the obligations of the Federal Republic of Germany under international law.”¹²⁶ In Görgülü III the Federal Constitutional Court reaffirmed that an applicant can by means of a constitutional complaint rely on the affected fundamental right in connection with the principle of the rule of law of the national constitution by alleging that the national authorities have disregarded or not taken into account a judgment of the ECtHR.¹²⁷

The Italian Corte Costituzionale comes to a similar conclusion in its landmark decision 349/2007 in which it had to examine the compatibility of an ordinary domestic provision with Art. 1 of Protocol No. 1 to the ECHR on the protection of property. The Italian Court confirmed its case law according to which the ECHR ranks as an ordinary law in Italy. At the same time, however, it emphasised the obligation of the “national legislator to respect the provisions of the Convention with the consequence that an ordinary domestic norm that is incompatible with a provision of the ECHR and thus with ‘international obligations’ pursuant to Art. 117.1 [of the Italian Constitution]¹²⁸ for those reasons violates this constitutional standard.”¹²⁹ Also as regards the judges’ obligation to interpret domestic law in the light of the ECHR there is significant equivalence (even including the wording) between the German Bundesverfassungsgericht and the Italian Corte Costituzionale. The Italian Constitutional Court regards the ordinary national courts as obliged to “take into consideration Art. 117.1 of the Italian Constitution as the relevant standard for the evaluation and to determine on a systematic basis whether the (national) norm reviewed is in compliance with Art. 1 of Protocol No. 1 to the ECHR as interpreted by the ECtHR.” If the ordinary judge concludes that there is no interpretation that would be in conformity with the Convention or if he even doubts this he has to submit the question to the Constitutional Court, which examines the issue in compliance with Art. 117.1 of the Italian Constitution.¹³⁰ According to the decision which had to rule on the conformity of an ordinary law with the ECHR, it is not the guarantee of the ECHR itself which has to be “taken into consideration” but rather the national implementing norm of Art. 117.1 of the Italian Constitution which requires an interpretation of domestic law consistent with the “international obligations” of Italy. This is merely a difference of method and not of substance as regards the binding nature of the ECHR. Additionally the Italian Constitutional Court establishes “in a general line” that the guarantees of the ECHR contain “interpretative value” also for the constitutional parameters.¹³¹

Thus, the Görgülü decision series dwelt on the issue of conflict at some length and underlined at the very beginning the “national sovereignty” aspect in the case of a conflict between national law and the rights in the Convention. What aroused particular criticism in this regard is that the Court used the terms “take into account” and “consider” (rather than “abide by”, “obey” or “implement”) to specify the national courts’ duties in dealing with ECtHR judgments, that it referred to certain reserve competences of “sovereignty”, and that it seemed to disapprove of applying ECtHR judgments in a “schematic” way.¹³² Nevertheless, the Federal Constitutional Court stated the ordinary judge’s obligation to interpret German constitutional law (Art. 6.2 GG) in accordance with the international obligations of Germany. While the domestic courts are under an obligation to give full effect to the judgments of the ECtHR, they have to avoid situations in which implementation of an ECtHR judgment would result in violation of constitutionally protected rights of the other parties to the original dispute. If an ordinary court fails to take due account of a decision of the ECtHR, the party concerned may take this to the Constitutional Court as a violation of the relevant constitutional right.¹³³ Nevertheless, on the part of the ECtHR, the Polish judge admitted in a general comment that “the Court (scil: the ECtHR) must remain particularly cautious in cases concerning private relations, where – at least to some extent – the Convention applies horizontally. The ECtHR lacks full information, here, and local courts seem much better equipped to assess what solution would be best in protecting the rights and interests of all involved parties. Such caution would apply, particularly, to cases in which the lapse of time may change the situation.”¹³⁴

As shown in the reasoning outlined above, the German Bundesverfassungsgericht (case Görgülü) and the Italian Corte Costituzionale (decision 349/2007), both recognise the ECHR – regardless of its status in the law of the Member States¹³⁵ – as a “constitutional instrument of European public order”¹³⁶ in the sphere of protection of human rights which the supreme courts of the States Parties to the Convention cannot escape unless they want to risk “helping” the applicant to gain a claim for restitutio in integrum in the sense of satisfaction if he/she successfully sues the relevant State for violation of the Convention or one of its Protocols on the domestic level (Art. 41 ECHR).¹³⁷ This process of “constitutionalisation” of international human rights systems (especially the ECHR) forms the third side of a triangle, which due to the danger of an overlapping of the judiciaries at different levels that are behind the substantive regimes of fundamental rights has even been called a “Bermuda Triangle”;¹³⁸ it consists of three vertices: the various national supreme or constitutional courts, the ECJ and the ECtHR.¹³⁹

5.2 The Case Caroline von Hannover Before German and European Courts

In the same line is the ruling of the German Federal Constitutional Court in the last Caroline judgment of 26 February 2008 – part of the famous series of landmark judgments in the Caroline von Hannover case which have deeply influenced the relationship between the Strasbourg Court and the German Bundesverfassungsgericht.¹⁴⁰ The Strasbourg Court had considered that the German courts had not struck a fair balance between the competing interests involved, namely the respect for her private life guaranteed by Art. 8 ECHR against the freedom of expression guaranteed by Art. 10 ECHR. Accordingly the Strasbourg Court held that there had been a violation of Art. 8 ECHR and that it was not necessary to rule on the applicant’s complaint relating to the respect for her family life.¹⁴¹

The Federal Constitutional Court pointed out in its final decision that the ordinary judges have to interpret the German constitutional provisions on the limits of the freedom of press in the light of the guarantees of the ECHR as they are interpreted by the ECtHR, and that they have to balance the reluctant constitutional guarantees, i.e. the freedom of press on the one hand and the protection of the private life of Caroline on the other, in accordance with the relevant guarantees of the ECHR. The Caroline von Hannover decisions confirm the thesis of an ongoing constitutional discourse about the scope and limits of fundamental rights. Domestic courts and constitutional courts increasingly apply the art of distinction, well-known to common law countries, in order to avoid head-on collisions with the ECHR. This “tactic of avoidance” is deemed to represent a soft answer to the potential ambitions of the ECtHR to become the constitutional court of Europe.¹⁴² Nonetheless, the Caroline decision of the ECtHR still raises the fundamental question if the Strasbourg Court should provide a “common European [i.e. ius publicum europaeum] (minimum) standard for the protection of human rights” through leading – and in structural and systematic terms corrective – decisions rather than through merely “bringing individual justice in a single case” and thereby through “balancing in the individual case”.¹⁴³

5.3 Confirmation of Coherent Case Law in Relations Between the German Federal Constitutional Court and the ECtHR: The Zaunegger Case and the Cases Schmitz v. Germany and Mork v. Germany

Coherence in the case law of the ECtHR and the German Federal Constitutional Court can also be found in the decision of the Karlsruhe Court in the case of Zaunegger, which dealt with the question of whether it is in accordance with the German Basic Law that a transfer of parental custody for children born out of wedlock (whether in joint custody or in sole custody) to the father beneath the threshold of removal of custody of Section 1666 BGB (Bürgerliches Gesetzbuch, German Civil Code) is not possible against the mother’s will, that having regard to the relevant provisions of family law is not possible. The ECtHR when first deciding the case held that the general exclusion of a judicial review of the initial attribution of sole custody to the mother with regard to the aim pursued, i.e. the protection of the well-being of a child born out of wedlock, was disproportionate. Hence, Art. 14 in conjunction with Art. 9 ECHR was violated.¹⁴⁴ Subsequent to and in accordance with this decision the Federal Constitutional Court found that Section 1626a para 1 no. 1 and Section 1672 para 1 BGB in the version of the Act Reforming the Law of Parent and Child (Gesetz zur Reform des Kindschaftsrechts) of 16 December 1997¹⁴⁵ are incompatible with Art. 6.2 of the Basic Law.¹⁴⁶

Given the background of this development it is far from certain whether the assumption will be confirmed that further conflicts between the Federal Constitutional Court and the Strasbourg Court are more likely as a stronger ECHR will develop into an independent objective legal order, which like the law of the EU would have direct effect within the States Parties to the Convention.¹⁴⁷

As long as the Council of Europe’s “living instrument” keeps growing, differences between the levels of protection of the ECHR and national constitutions can, however, appear anywhere, and anytime.¹⁴⁸ This is particularly true after the series of judgments of the ECtHR in the cases of M. v. Germany,¹⁴⁹ Kallweit v. Germany,¹⁵⁰ Schmitz v. Germany ¹⁵¹ and Mork v. Germany. ¹⁵² Until 1998, in Germany the maximum duration of the first placement in preventive detention could not exceed ten years. After the relevant provision of the Criminal Code was changed and infinite preventive detention was made possible, and German courts prolonged the detention also of detainees who had been convicted before 1998, the ECtHR held that this retrospective application violated the Convention. All provisions on the retrospective prolongation of preventive detention and on the retrospective order of such detention were held incompatible with the Basic Law by the Bundesverfassungsgericht which overruled its earlier case law. The German Court held again that “the guarantees of the ECHR have constitutional significance in that they influence the interpretation of fundamental rights and of principles of the rule of law contained in the Basic Law. [Thereby] the Bundesverfassungsgericht takes into account the decisions of the [ECtHR] even if they do not concern the same subject-matter of the dispute. This is based on the de facto function of guidance and orientation which the case law of the ECtHR in interpreting the ECHR contains, even beyond the individual case.”¹⁵³ With reference to the domestic fundamental rights that “have to be understood as characteristics of human rights and which have absorbed them as minimum standards” (Art. 1.2 GG), the Court explains “the openness of the Basic Law towards international law is the expression of an understanding of ‘sovereignty’ that not only does not hinder integration into inter- and supranational contexts as well as their further development, but even has that as a precondition. Against this background the ‘last word’ of the German Constitution does not oppose a European dialogue of the Courts but instead is its normative foundation.”¹⁵⁴

This is a remarkable fact of “dialogue”, as indeed, the ECtHR also seems to have noticed. The Court stresses its enthusiastic appreciation of Germany’s efforts to comply with the Convention by stating that “[i]t welcomes the Federal Constitutional Court’s approach for interpreting the provisions of the Basic Law also in the light of the Convention and this Court’s case-law, which demonstrates that court’s continuing commitment to the protection of fundamental rights not only on national, but also on European level.”¹⁵⁵

6 The Relationship Between the National Supreme Courts and the Luxembourg Court

6.1 From a General Guarantee of the Unalterable Standards of Basic Rights Through Ultra Vires Review to Identity Review

This aspect is mainly focused on the quarrel between the Luxembourg Court and the German Federal Constitutional Court caused by the Solange I decision (1974) where the German Court reserved the competence to review mainly secondary Union law (i.e. directives, regulations and decisions) in the light of the fundamental rights enshrined in the German Constitution as far as these legal acts have to be executed by German authorities. In 1986 the German Court determined that the legal protection by the institutions of the EC, especially of the ECJ, was equivalent to the protection of fundamental rights guaranteed by the German list of constitutional rights (supra before Sect. 1).¹⁵⁶ In its decision on the Treaty of Maastricht the Federal Constitutional Court confirmed that where necessary it is willing to procedurally guarantee protection of fundamental rights if the substance of these fundamental rights is threatened by a decrease in European standards of fundamental rights.¹⁵⁷

This interrelation between the national reserve competence regarding the “general guarantee of the unalterable standards of basic rights” on the one hand and the guarantee for protection of fundamental rights by the Luxembourg Court “in each individual case for the entire territory of the European Communities” on the other was coined by the Federal Constitutional Court with the term “relationship of cooperation [Kooperationsverhältnis]”.¹⁵⁸ The “how” of this review, however, remained unanswered. In its decision on the Banana Market Regulation the German Court, however, asserted its position on the need for protection of fundamental rights by EC law, with reference to the judgments of the ECJ in relation to the Banana Market Regulation, which, “in so far as they generally safeguard the essential content of fundamental rights”, have been met, because the case law of the ECJ “generally ensure[s] effective protection of fundamental rights as against the sovereign powers of the Communities which is to be regarded as substantially similar to the protection of fundamental rights required unconditionally by the Basic Law.”¹⁵⁹ This is considered a confirmation of the formula used by the Federal Constitutional Court in its Solange II decision which then was adopted in the first sentence of Art. 23.1 GG.¹⁶⁰ Thus, to revive domestic protection of fundamental rights vis-à-vis acts of secondary Union law would require a – hypothetical – general decline of fundamental rights in their substantive aspects.

A new stage in the relation between German constitutional jurisdiction and the ECJ, which was established to “ensure that in the interpretation and application of the Treaties the law is observed” (Art. 19.1 TEU), could be initiated by the judgment of the Federal Constitutional Court on the Union Treaty of Lisbon.

Here the Court, in an intentionally ambiguous way, claims exclusive competence within the context of an identity review (Identitätskontrolle) for an ultra vires review in accordance with the principle of the Basic Law’s openness towards European Law (Europarechtsfreundlichkeit) – and in accordance with the principle of subsidiarity (sentence 2 of Art. 5.1 and 5.3 TEU) – “where Community and Union institutions transgress the boundaries of the sovereign powers accorded to them by way of conferred power”, especially “if legal protection cannot be obtained at the Union level.” It, however, limits this reserve competence for a review to cases of “obvious transgressions”.¹⁶¹ On the other hand and with regard to “the […] core content of the Basic Law’s constitutional identity” it claims the right to review “whether due to the action of European institutions, the principles under Article 1 and Article 20 of the Basic Law, which are declared inviolable in Article 79.3 of the Basic Law, are violated.”¹⁶² This right – previously claimed by the Federal Constitutional Court in its Maastricht judgment – to review (1) “whether legal acts of the European institutions and bodies keep within or exceed the limits of the sovereign rights granted to them”¹⁶³ and (2) whether “a general guarantee of the unalterable standards of basic rights” is safeguarded¹⁶⁴ has now been supplemented by the Karlsruhe judges by a third analysis of the revival of the Federal Constitutional Courts’ review power that is “rooted in constitutional law.”

Referring to the German Federal Constitutional Court, the Polish Constitutional Tribunal also shares the view “that the competences, under the prohibition of conferral, manifest about a constitutional identity, and thus they reflect the values the Constitution is based on […]. Therefore, constitutional identity is a concept which determines the scope of ‘excluding – from the competence to confer competences – the matters which constitute […] “the heart of the matter”, i.e. are fundamental to the basis of the political system of a given state’, the conferral of which would not be possible pursuant to Article 90¹⁶⁵ of the [Polish] Constitution.”¹⁶⁶ Despite the expansion of the protection of fundamental rights at the international level, and the binding force of the Charter of Fundamental Rights as a means of creation of identity at the supranational level,¹⁶⁷ the national fundamental rights, given their different historical shape and judicial review, remain a key element in the catalogue of identity values of national constitutions¹⁶⁸ and thus vehicles to review the process of transferring “sovereign powers” to the Union.

6.2 Bone of Contention and Pacifying the Fronts: The Mangold Case and the Honeywell Case

Among the ECJ decisions that have fostered suspicions of an ultra vires application of law is the case of Tanja Kreil ¹⁶⁹ that opened up service in the German Armed Forces to women. This decision probably met “the outermost limits of acceptable legal interpretation” and would have encountered severe criticism if it had not met a political trend.¹⁷⁰ An example of “[ECJ] case law transgressing the limits” of the competences conferred by the Treaty is considered to be the 2005 case of Mangold.¹⁷¹

6.2.1 The Mangold Case

Mangold had had a fixed-term employment contract, the limitation of which had been deliberately based by both parties to the contract exclusively on sentence 4 of Section 14.3 of the German “Law on Part-Time Working and Fixed-Term Contracts” (Gesetz über Teilzeitarbeit und befristete Arbeitsverträge – Teilzeit- und Befristungsgesetz – TzBfG), thereby intentionally triggering court proceedings. This provision – valid until 31 December 2006 – permitted a fixed term to be set for the employment relationship with an employee who had reached the age of 52 without justification other than the age of the employee and without limitation regarding duration or number of renewals. The case was referred to the ECJ for preliminary ruling by the Munich Labour Court. The ECJ held that fixed-term employment contracts pursuant to sentence 4 of Section 14.3 TzBfG introduced direct discrimination on grounds of age. Unequal treatment on grounds of age could be justified by Art 6.1 of Directive 2000/78/EC¹⁷² – which at the time of the ECJ decision had not yet been transposed into German law – only if a legitimate aim was thereby pursued. Making age the only criterion required for setting a fixed term for the employment contract – with no consideration of the particular case of the individual employee and without “proof” of the objective necessity of the amended provision for encouraging the employment of older unemployed persons – was neither appropriate nor necessary for achieving the aim pursued.¹⁷³

The fact that Directive 2000/78/EC, in accordance with the additional period for transposition provided for by the Directive itself (Art. 18(2) of the Directive), had not yet been implemented in Germany had been regarded immaterial by the ECJ. On the one hand, a period for transposition that had not yet expired was without significance due to the principle of advance effect (Vorwirkung). This principle provides that Member States must refrain from taking any measures that are seriously liable to compromise the attainment of the objective set out in a Directive. Sentence 4 of Section 14.3 TzBfG was considered by the ECJ as such a measure.¹⁷⁴ On the other hand, the prohibition of discrimination on grounds of age had to be regarded as a general principle of Union law that was effective unconditional of the Directive. The ECJ thus held that the principle of non-discrimination was not laid down in Directive 2000/78/EC but was rather restated by it. The prohibition of discrimination on various grounds included in the Directive (religion, belief, disability, age, sexual orientation) already originated from several international instruments and from the constitutional traditions common to the Member States.¹⁷⁵

In its decision Kücükdeveci of 19 January 2010 the ECJ clearly emphasised the problems raised by the core statements of the Mangold judicature: Section 622 BGB, according to which periods of employment completed before the age of 25 are not to be taken into account in calculating the notice period, violates the Union’s fundamental rights principle of non-discrimination on grounds of age as reflected in Directive 2000/78/EC and may thus not be applied in that specific case. In contrast to the Mangold case, by the time of the dismissal the period for transposing the relevant anti-discrimination directive had already expired.¹⁷⁶

The Mangold decision of the ECJ has been qualified as a “misjudgment.”¹⁷⁷ But even those who are in favour of the result of the decision recognise significant methodical weaknesses in the reasoning of the Court. The horizontal advance effect (Dritt-Vorwirkung) assumed by the ECJ – in the relationship between the employer and the employee – has been regarded as a violation of Art. 288.3 TFEU and thus as a disregard of the express will of the European primary law legislator. The finding of the ECJ that there existed a general principle of Union law prohibiting discrimination on grounds of age was considered the result of an invention, a grasp into the Platonic sphere of ideals (“ein Griff in den ‘platonischen Begriffshimmel’”)¹⁷⁸ by which the Court would act as the creator of primary law – because Finland is the only Member State of the EU that now prohibits discrimination based on age (Paragraph 6.2 of the Finnish Constitution). The specific application of the principle of non-discrimination is entrusted by Art. 10 TFEU to the European legislator, not to the ECJ. Such political law-making by the Court was not envisaged by the transfer of German sovereign power to the EU for it violates the principles of the democratic state governed by the rule of law.¹⁷⁹

6.2.2 The Honeywell Case: Assessing the Mangold Judgment

After the German Federal Labour Court, applying the Mangold judgment in a decision of 26 April 2006¹⁸⁰ regarding fixed-term employment for older persons, declared that the possibility in sentence 4 of Section 14.3 TzBfG to conclude fixed-term contracts with employees aged 52 and older without giving objective reasons was “inapplicable” for reason of discrimination on grounds of age,¹⁸¹ the defeated entrepreneur raised a constitutional complaint against this judgment. Some critics of the Mangold decision saw the Federal Constitutional Court faced with the alternatives either “to review the excessive case law of the ECJ more strictly in the future or to give up its function as a watchdog once and for all.”¹⁸²

In its judgment of 6 July 2010 the German Federal Constitutional Court has rejected the constitutional complaint as unfounded.¹⁸³ On the ultra vires review the judges of the Karlsruhe Court have taken up a “reserved” stance¹⁸⁴ by pointing out again that “as long as the Court of Justice did not have an opportunity to rule on the questions of Union law which have arisen, the Federal Constitutional Court may not find any inapplicability of Union law for Germany […]. Ultra vires review by the Federal Constitutional Court can moreover only be considered if it is manifest that acts of the European bodies and institutions have taken place outside the transferred competences. A breach of the principle of conferral is only manifest if the European bodies and institutions have transgressed the boundaries of their competences in a manner specifically violating the principle of conferral (Article 23.1 of the Basic Law), the breach of competences is in other words sufficiently qualified […]. This means that the act of the authority of the European Union must be manifestly in violation of competences and that the impugned act is highly significant in the structure of competences between the Member States and the Union with regard to the principle of conferral and to the binding nature of the statute under the rule of law.”¹⁸⁵

At the same time the Federal Constitutional Court concedes to the ECJ in view of the “‘uniqueness’ of the Treaties and goals that are inherent to them” methodological autonomy in finding the law, which must be interpreted as a recognition of the Court of Justice’s case law tradition, which is orientated in line with the effet utile principle. The Karlsruhe Court even admits to the Luxembourg Court a “right to tolerance of error” in individual cases as long as there are neither “considerable [shifts] in the structure of competences [nor] impacts on fundamental rights to arise which constitute a burden or do not oppose domestic compensation for such burdens.”¹⁸⁶ As a result, the case law of the Bundesverfassungsgericht as characterised by the Solange II decision (supra Sect. 6.1) has been confirmed and the relationship of cooperation with the ECJ has not been denounced (infra Sect. 6.3).

Thus, the Karlsruhe Court has avoided an open conflict with the ECJ – a “clash of courts” – and proved sense of proportion. The expected clarification¹⁸⁷ of the requirements under which the reserve competence of the Federal Constitutional Court can be activated was achieved at least in some crucial points: When – i.e. according to which criteria – do legal instruments of the European institutions transgress the limits of the sovereign power conferred upon them? What are the content and scope of “the unalterable standard of basic rights”? Does a disregard of the limited powers of the Union in an individual case – like Mangold – suffice to justify an intervention by the Federal Constitutional Court or should such a course require structural defects? Does the explicit limitation of the reserve competence to the “general guarantee of the unalterable standard of basic rights” release the Federal Constitutional Court from a review of the individual case? The deciding criteria are in accordance to the Honeywell decision that the impugned act of the authority of the EU constitutes a “manifest” breach of the principle of conferral (“sufficiently qualified”) and that it is “highly significant” in the structure of competences between the Member States and the Union.

In his dissenting opinion Justice H. Landau accused the Second Senate of the Bundesverfassungsgericht saying that “the majority one-sidedly dissolves the tension occurring here between the principle of safeguarding democratic legitimation”, which itself underlines the principle of conferral, “and the functioning of the Union in favour of functionality.” From the point of view of Justice Landau the judgment in the case of Honeywell “continues to pursue a problematic tendency which is already recognisable in the previous case-law of the Federal Constitutional Court, that is of only asserting on paper the democratically founded national right to hand down a final ruling on the application of sovereign power in one’s own territory and the concomitant responsibility for compliance with the competences granted to the Union, and of shying away from effectively implementing them in practice.” Justice Landau points out that, with its judgment in the case of Mangold, “the Court of Justice manifestly transgressed the competences granted to it to interpret Community law with the Mangold judgment and acted ultra vires.”¹⁸⁸

This decision of the Federal Constitutional Court seems to be quite contained or even a withdrawl in comparison to its ruling on the Treaty of Lisbon. After the “proclamation” of the constitutional yardsticks for the review of secondary Union law in its pronouncement of 30 June 2009 the Karlsruhe Court in Honeywell obviously relents vis-Á-vis the Luxembourg judges. Meanwhile, it would have appeared questionable to turn the Mangold judgment of the ECJ into a “leading case” which would be decisive for the future relationship between Luxembourg and Strasbourg. Misjudgments are not unknown to domestic case law either, as can be seen in the judgment of the Higher Regional Court (Oberlandesgericht) of Naumburg in the case of Görgülü (supra Sect. 5.1). Mangold and similar decisions should not merely lead to a breach in the relationship of cooperation but rather lead to a continuous practice of that relationship in reality. For the ECJ this means that its rulings must bear in mind the limits of the competences of the EU. The Court should thus not approach individual cases without solid reasons or by means of a general construction that applies general principles of Union law to areas for which the Union or one of its institutions is not competent. On the other hand, as regards the supreme domestic courts, the relationship of cooperation requires the recognition of the ECJ’s monopoly on the interpretation of the European Treaties which they should accept – while recognising the right to a lawful judge (sentence 2 of Art. 101.1 GG) and the guarantee of effective legal protection (Art. 19.4 GG)¹⁸⁹ – by deciding to refer relevant cases to the ECJ but no longer regarding such proceedings as implying the risk of subordination to the integration guidelines of the Luxembourg Court.¹⁹⁰

6.3 Towards a Practiced Relationship of Cooperation

Regardless of justified objections against the case law of the ECJ some consequences of the claim of the Karlsruhe Court to protect indispensable elements of the German constitutional order and thus of the national control monopoly for the “relationship of cooperation” between the ECJ and the Bundesverfassungsgericht in the field of fundamental rights protection remained uncertain until the Honeywell decision (supra Sect. 6.2.2). The Federal Constitutional Court in its Lisbon ruling with regard to the “fundamental rights [as] part of the core contents of the constitution that restrict the transfer of sovereign powers to the European Union” spelled out again the Solange II formula, under which it “no longer exercises its jurisdiction to decide on the applicability of secondary Union law and other acts of the European Union cited as the legal basis for any acts of German courts or authorities within the sovereign sphere of the Federal Republic of Germany only for as long as ¹⁹¹ the Union guarantees an application of fundamental rights which in substance and effectiveness is essentially similar to the protection of fundamental rights required unconditionally by the Basic Law”.¹⁹² Nevertheless, in one of the following paragraphs the Federal Constitutional Court pointedly underlines that “in view of the position of the Community institutions, which is derived from international treaties”, it could “recognise the final character of the decisions of the Court of Justice only ‘in principle’.”¹⁹³ This term “in principle”, which is strikingly often used throughout the entire judgment, clearly reveals that the Federal Constitutional Court reserves for itself the right to deviate exceptionally from decisions of the Luxembourg Court. The Court holds that such a (limited) recognition (only “in principle”) is due to the fact that “the position of the Community institutions […] is derived from international agreements.”¹⁹⁴

The Court’s remarks in the Lisbon judgment are further obscured¹⁹⁵ in that in terms of constitutional procedure it considers placing an ultra vires review as well as an identity review within the existing procedures, e.g. in application of the “legal concept [of the concrete review of statutes] expressed in Article 100.1 of the Basic Law”,¹⁹⁶ i.e. a procedure which the Bundesverfassungsgericht since its Solange I decision regards applicable accordingly with regard to a review of the conformity of domestic law with Community law.¹⁹⁷ Nevertheless, following its Solange II decision the Court did not consider making any further use of it.¹⁹⁸

Since secondary Union law as such is not an act of German public authority (Art. 93.1 no. 4a GG) that could be directly challenged by a constitutional complaint,¹⁹⁹ this procedure is not appropriate for the initiation of an ultra vires review or an identity review. These procedural obstacles have led the Federal Constitutional Court to suggest to the German legislator – in a way that disregards the Luxembourg Court’s monopoly of interpretation – the possibility of the “creation […] of an additional type of proceedings before the Federal Constitutional Court that is especially tailored to ultra vires review and identity review.” By doing so it challenges the foundation of the Union as a legal community, i.e. the Union-wide consistent, uniform and effective validity of Community law.²⁰⁰ The supporters of a review competence for the national constitutional courts meet these objections by arguing that the European legal order would not be fragmented by such control if the ECJ took “this decision into consideration in its judgments.” Only national constitutional courts could “provide protection against uncontrolled and unauthorised law-making by judges.”²⁰¹ This, however, outlines a relationship of cooperation, the standards of which are set by national constitutional courts.

If with direct textual reference to these procedural considerations the Federal Constitutional Court enumerates areas of regulation with relevance to constitutional identity, which by virtue of closeness to democratic principles (Art. 23.1, 20.1 and 2 with Art. 79.3 GG) call for a special level of protection in the light of safeguarding the state sovereignty,²⁰² it sets constitutional limits to the process of European integration. Meanwhile within this domaine réservé the judicial reserve competence regarding the application of a national standard of fundamental rights can be realised: This is particularly appropriate to the “important area for fundamental rights” of the administration of criminal law,²⁰³ but also in all emanations of democratic self-determination that rely on the possibility “to assert oneself in one’s own cultural area.”²⁰⁴

The reserve competence claimed by the Bundesverfassungsgericht can also lead to dismissal of secondary Union law, which has been adopted in these areas, and by the ultra vires review as well as the identity review because according to the Federal Constitutional Court the provisions of a secondary legal act of the Union that affect sovereignty imply “an inadmissible autonomous Treaty amendment”²⁰⁵ and at the same time are below the standards of the fundamental rights of the Basic Law. Such a situation does not seem unrealistic since the Court, in terms of Solange II, recognises the final character of even the decisions of the Court of Justice with relevance to fundamental rights “only ‘in principle’.”²⁰⁶ Meanwhile it does not feel obliged by the principle of primacy of Union law (Declaration (No. 17) concerning primacy) “if the mandatory order to apply the law is evidently lacking” or “if within or outside the sovereign powers conferred, these powers are exercised […] in such a way that a violation of the constitutional identity […] is the consequence.”²⁰⁷ Evidently this is to limit a dismissal of the application of legal acts of the Union by the Federal Constitutional Court to exceptions only.²⁰⁸ Nonetheless, the German Court in the Lisbon decision claimed for itself the right to decide on the exercise of powers even in areas in which competences have clearly been conferred upon the Union. Such a course would thwart the role of national parliaments that has been granted to them procedurally by Protocol (No. 2) on the application of the principles of subsidiarity and proportionality (Art. 6 and 7 of the Protocol) for the review of draft legislative acts by the Union by the standards of the principle of subsidiarity (sentence 2 of Art. 5.1 TEU). The Federal Constitutional Court – as had been the case ever since the judgment in Solange I ²⁰⁹ – finds it necessary to first refer the case for a preliminary ruling according to Art. 267 TFEU.²¹⁰ The Court thereby recognises the judicial power granted to the ECJ by the Treaty of Lisbon for an infringement of the principle of subsidiarity by a legislative act (Art. 8 of the Protocol). Nonetheless, only the Honeywell decision ensures that the formula of the “relationship of cooperation”, which stems from the decision on the Maastricht Treaty, does not degenerate into an idle chatter.²¹¹

7 Primacy of Union Law

7.1 The Significance of Primacy for the Protection of Fundamental Rights Pursuant to the Lisbon Judgment of the Federal Constitutional Court

Protection of fundamental rights by domestic courts on the one hand and the European Court on the other is closely related to the question of primacy of Union law. In the Greek legal order, for example, “the few existing areas of difficulty […] in which actual conflicts between Union law and the Greek constitution seem to exist, [can be found] in the field of fundamental rights rather than the field of competences, sovereignty, and democracy.”²¹² On the occasion of the decisions of different constitutional courts of the Member States regarding the constitutional conformity of the Treaty of Lisbon, several outstanding academic contributions have dealt with this axiom of the legal order of the Union, making it the starting point of the analysis of the “architecture of the European area of fundamental rights.”²¹³ Rightly, it has been indicated that although Union law takes precedence it does not claim to be supreme in the sense of a subordination of the national legal orders.²¹⁴

In a problematic section of its Lisbon decision the German Federal Constitutional Court explained that “[t]he ultra vires review as well as the identity review may result in Community law or, in future, Union law being declared inapplicable in Germany” (supra Sects. 6.1 and 6.3). It thereby considers different procedures in which such a challenge can be brought before the Constitutional Court, all of which pursue the aim of “not to apply in individual cases in Germany legal instruments of the European Union that transgress competences or that violate constitutional identity.”²¹⁵ At the same time the Federal Constitutional Court makes the primacy of application conditional upon the case that the relevant legal act of the Union does not clearly show “absence of a constitutive order to apply the law.” The order to apply the law will have legal effect only if given “by the Act Approving the Treaty of Lisbon.” In the clear absence of a constitutive order to apply the law the Federal Constitutional Court claims the right to establish “the inapplicability of such a legal instrument to Germany.” Such determination would also have to be made if, within or outside the sovereign powers conferred, these powers were exercised with the consequent effect on Germany of a violation of its constitutional identity, which is inviolable under Art. 79.3 GG and is also respected by European treaty law, namely Art. 4.2, first sentence, TEU.²¹⁶ The Karlsruhe judges thus claim for themselves the competence to exclude legal acts of the Union or acts of implementation by the German state authority from the primacy of application of Union law and declare them inapplicable in Germany if according to their evaluation they violate Art. 1 GG – as well as the human dignity content of any other fundamental right of the Basic Law – or Art. 20 GG.

An even further-reaching view was expressed in 2008 by then Federal Constitutional Court judge S. Broß (Second Senate) – one of the judges in the Lisbon decision – that the primacy of application of Union law over contradicting national law as established by the ECJ in Flamino Costa (1964),²¹⁷ and over national constitutional law and fundamental rights as expressly extended in Internationale Handelsgesellschaft (1970),²¹⁸ and the “hierarchy of norms between Community law and domestic law” connected therewith did not “at least at that time” take into account the international law structure of the Community Treaties. The Luxembourg Court thus without due “restraint” presumed to take the role of a “constitutional court of the Community.” This magisterial case law he identifies as an infringement of the principle of democracy and the principle of the rule of law, which was one of the reasons for the “slowing down of the integration process” and the failure of the Constitutional Treaty.²¹⁹

This view, however, fails to recognise that primacy of Community law and the direct effect resulting from it are essential characteristics of the supranational structure of this organisation.²²⁰ Anticipating those objections St. Mangiameli has rightly emphasised that “the ECJ in the EC had to establish a system for the protection of fundamental rights in order to ensure primacy of the Community legal order.”²²¹ The development of Community fundamental rights in the case law of the ECJ thus is a consequence of its previously praeter legem established principle of the primacy of Community law, which, however, is inextricably linked to supranationality itself. Its codified outcome, the European Charter of Fundamental Rights, has been understood “as counterpart to the principle of primacy of European law”,²²² providing for effective protection of the individual rights and freedoms of the citizens of the EU, whilst they cannot invoke fundamental rights of the national constitutions against “the Treaties and the law adopted by the Union.”²²³

In the area of fundamental rights the principle of primacy has the effect that Union law, once in force, cannot be reviewed against national standards of fundamental rights (because of this very principle). Well before the highly controversial rulings of the German Federal Constitutional Court, H.P. Ipsen, the nestor of the German European law school, acknowledged “in principle” the priority of application of Community law to national fundamental rights, and set no limits based on Art. 79.3 GG to the effects of the priority rule in terms of its application.²²⁴ While he still considered the Communities to be “special-purpose associations [Zweckverbände] for functional integration”, the competences of the Union have grown remarkably since the Single European Act (1986) and the Treaty of Maastricht. The EU is sometimes said to have state-like sovereign power. Does this development require establishing the national supreme courts as “counterweights” to European jurisdiction so that they can safeguard the role of the Member States as “Masters of the Treaties”, which is essential for the protection of national sovereignty?²²⁵ Are the reserved competences of the national supreme courts even essential to control the limits imposed to national sovereignty in the course of European integration in order to protect indispensible national constitutional rights from invasion by supranational sovereign power?

This is evidently the objective of the Bundesverfassungsgericht in particular when it recognises “the primacy of application of Union law only […] by virtue and in the context of the constitutional empowerment that continues in effect.”²²⁶ The same is true for the Italian Corte Costituzionale, which reserves the right to define the limits of integrational power; or the Conseil Constitutionnel, which ranks the French Constitution at the top of the hierarchy of norms as not affected by the Union Treaties (infra Sect. 7.3.3). The supreme courts of the Member States thus claim the competence to review and reject Union law – even if only in case of an “emergency” – against the standard of what they consider the essential, inviolable and founding elements of their constitutional identity and the definitive competences of the relevant national constitutional order, thereby, however, undermining the monopoly of the Court of the European Union for the interpretation of the Treaties (Art. 19.3 lit. b TEU).

As a result, the unity of the legal system of the EU is at stake, especially if the supreme courts of all Member States decided to use the domaines réservés of their respective constitutional orders to protect their own values against a valid legal act of the Union in order to prevent its application in the domestic sphere. With reference to the Mangold case it is suggested that the ECJ, frankly in unilateral diktat rather than as a result of multilateral dialogue and cooperation, “no longer appl[ies] a principle of Community law established by the Court itself that has been dismissed in one of the Member States – i.e. single-handedly – for not being covered by the national act of approval.” At the same time, with regard to the monopoly of interpretation of the ECJ, the due respect called for by the ECJ for such a national act of dismissal is interpreted in a philistine way as a contribution to “ensure unity of Community law.”²²⁷ Clarification of those “close and clear-cut requirements” for the breakaway of the national judiciary from the legal order of the Union is expected by its supporters to come from the Federal Constitutional Court itself.²²⁸ Meanwhile, however, the solution for the conflict between the realisation of the aims of integration and the respect for fundamental rights at Union level can only be found through the enhanced development of the supranational protection of fundamental rights.²²⁹

7.2 Codification and Significance of Primacy

The principle, found at a prominent place in the failed TCE, according to which “[t]he Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States”²³⁰ and thus determine the relationship between the Union and the Member States, has not been adopted in the Treaty of Lisbon due to especially British resistance. The concern about primacy – expressed by the UK Government (and others) in the context of the Constitution for the EU – was mainly based on the fact that as the Constitution was drafted it would have applied to the then Second Pillar and would have therefore called into question the ultimate independence of the Member States in the conduct of their foreign policy. The abolishment of the principle of primacy in the text of the TEU is in this view one of the big substantive improvements in Lisbon.²³¹ Pursuant to the “Declaration concerning primacy” (No. 17) the Conference recalls that “in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law”, making this rule on a conflict of laws nothing more than a declaration governing the future interpretation of the Union Treaties.²³² Nevertheless, this failed codification in the Treaty is not detrimental for it would have had merely declaratory, not constitutive, force.²³³ This is confirmed by the Opinion of the Council Legal Service according to which “the existence of the principle and the existing case-law of the Court of Justice” is in no way to be altered.²³⁴ With a correct interpretation of the Declaration, which does not impose limitations to the existing acquis, it can be assumed that the principle established by the ECJ of the primacy of European law over national constitutional law remains unaffected as well.²³⁵

The primacy of application of European law does not, as the Bundesverfassungsgericht has pointed out again in its Lisbon ²³⁶ and Honeywell ²³⁷ decisions, affect the validity of conflicting law in the Member States and only inhibits its application (not its validity) to the extent required by the Treaties. The primacy rule is different from the provision of the German Basic Law that federal law shall take precedence over conflicting Land law (Art. 31 GG). Law of a Member State that is contrary to Community and Union law is rendered inapplicable merely to the extent required by the conflicting regulatory content of Community and Union law. The principle of primacy of Union law nullifies the effect of conflicting national law and inhibits its going into effect within the area of application of the relevant Union law.²³⁸ This interpretation of the primacy of Union law explains why, for instance, in the case of Mangold (supra Sect. 6.2) German labour law (sentence 1 and 4 of Section 14.3 TzBfG) remained inapplicable in Germany by reason of incompatibility with the Union principle of non-discrimination on grounds of age.

Indirectly, the ECHR and the case law of the Strasbourg Court specifying its provisions are already part of the principle of primacy of Union law over national law. As a source for the interpretation of the fundamental rights of the Union, especially their scope and content, the ECJ uses the ECHR in its interpretation by the ECtHR. Although in a number of Member States the ECHR has only the status of an ordinary law,²³⁹ it obtains primacy over constitutional law through the case law of the ECJ.²⁴⁰ With the accession of the Union to the ECHR the law of the Convention will directly take part in the primacy of Union law over the law of the Member States. This also applies to the Protocols to the ECHR, such as Protocol No. 1, which have been ratified by all Member States. The binding to the law of the Convention integrated into Union law is limited to the scope of Union law.²⁴¹

7.3 The Legal Situation in the Member States of the Union and the Interpretation of Primacy at the Highest Judicial Level

Undisputed as the primacy of Union law over ordinary national law may be today,²⁴² the history of its relationship to national constitutional law is controversial and complex. According to Ch. Grabenwarter ²⁴³ three groups of states can be distinguished: those in which Union law is attributed full primacy of application (the Netherlands and Austria); states in which Union law enjoys limited primacy (Italy, Germany, Belgium, Denmark, but also Spain, Sweden, Ireland, the United Kingdom,²⁴⁴ Hungary and the Czech Republic); and those states in which national constitutional law takes precedence over Union law (France and Poland).

With regard to the interpretation of primacy, the decisions of the national supreme courts of the states in groups two and three are most enlightening. Despite different starting points of the courts it can be said with regard to the safeguarding of indispensable constitutional standards (of fundamental rights) in their relationship to the EU that the majority of those courts through an interpretation that is in conformity with European law and through a method of balancing conflicting rights and principles (“practical concordance”) – even when expressly placing the national constitution, not the Union legal order, at the top of the domestic legal order (French Conseil Constitutionnel, Polish Constitutional Tribunal) – endeavour to reconcile real conflicts which can arise between Community/Union law and the relevant domestic constitutional provisions. Additionally, relying on the national constitution they reserve the right to intervene in cases of exceptional, general violations of substantial rules,²⁴⁵ which are, however, according to the description of those cases of conflict by the supreme national courts of a rather hypothetical nature.

The position of the Bundesverfassungsgericht, which places primacy of application of a supranational legal act under the condition of the existence of a “constitutive order to apply the law”, is most widely shared among the highest courts of the Member States by the Italian Corte Costituzionale and the Spanish Tribunal Constitucional. In spite of the fact that the French Conseil Constitutionnel and the Polish Constitutional Tribunal place their national constitution at the top of the respective domestic legal order, it is unmistakable that there is considerable overlap between the decisions of the Bundesverfassungsgericht and the decisions of those two courts in the establishing of judicial claims to protect essential constitutional elements.

7.3.1 The Italian Corte Costituzionale

In Italy, primacy of Union law is based on Art. 11 of the Italian Constitution according to which “Italy agrees, on conditions of equality with other States, to such limitations of sovereignty as may be necessary to a world order ensuring peace and justice among the Nations” and that it “promotes and encourages international organisations furthering such ends.” In the early 1970s the Italian Corte Costituzionale – while principally recognising primacy of Union law as well as the monopoly of the ECJ for the interpretation of Community law – has reserved the right to “[review] the act implementing the Treaty as regards compliance with basic principles […] of the [Italian] Constitution and the inalienable rights of the person.”²⁴⁶ For this case the Corte has furthermore reserved the right to personally examine the constitutionality “of the continuing compatibility of the Treaty with said principles” even at the risk that such an approach could call into question Italy’s remaining in the Community.²⁴⁷ Meanwhile the Italian Constitutional Court in a reasoning related to the protection of fundamental rights has emphasised that through an innovative interpretation it intends to clarify the contours of the fundamental rights of the Italian Constitution. In this context it has underlined Italy’s obligation to contribute to the development of the EU.²⁴⁸

This is used in Italian academic literature as the foundation for the theory of controlimiti (counter limits – supra Sect. 2.3.3), which describes the limits of the power of integration.²⁴⁹ It is essentially based on the thought that while the Italian legal order recognises and approves of limitations to sovereign power by Union law it also sets limits to them in order to safeguard fundamental values of the Italian legal order. Individual opinions in Italian writings regard Art. 117 of the Italian Constitution, which has been amended by a constitutional reform in 2001, as confirmation and codification of the case law of the Corte Costituzionale through which in consequence Union law would merely enjoy a limited primacy at the constitutional level by virtue of the theory of controlimiti.²⁵⁰

7.3.2 The Spanish Tribunal Constitucional

Following its decision on the Treaty of Maastricht of 1 July 1992 in which it expressly reserved the right to review the constitutionality of Community law,²⁵¹ the Spanish Tribunal Constitucional in its judgment on the Constitutional Treaty confirmed the compatibility of the primacy clause of the TCE with its own constitutional order. Despite this “existential requirement” of the legal order of the EU it regards the relationship between the national constitution and the law of the EU as unaffected. Supremacy of the Spanish Constitution, which “is not necessarily sustained on hierarchy” but, however, “[i]n principle […] implies primacy”, is conserved in that the principle of primacy of Union law in the sense of “preferential or prevalent application” is provided for in the Spanish Constitution itself (Art. 93 of the Spanish Constitution) and “it is not a primacy with a general scope.”²⁵² Therefore, on the one hand, Art. 93 of the Spanish Constitution, which enables the transfer of competences, is understood as a “door” between the legal orders in the sense of an “opening-up of Spanish legislation.”²⁵³ On the other hand, the primacy of Union law is limited to “the scope of the exercise of the competences attributed to the European institutions.” At the same time the Spanish Constitutional Tribunal postulates an – albeit hypothetical – reserve competence: “In the unlikely case where, in the ulterior dynamics of the legislation of the European Union, said law is considered irreconcilable with the Spanish Constitution, without the hypothetical excesses of the European legislation with regard to the European Constitution itself being remedied by the ordinary channels set forth therein, in a final instance, the conservation of the sovereignty of the Spanish people and the given supremacy of the Constitution could lead this Court to approach the problems which, in such a case, would arise. Under current circumstances, said problems are considered inexistent through the corresponding constitutional procedures […].”²⁵⁴ But even in this ultima ratio case of a reserve competence, the reference for a preliminary ruling before the ECJ (Art. 256.3 in conjunction with Art. 267 TFEU) is considered procedurally superior to those procedures provided for by Spanish constitutional law.

7.3.3 The French Conseil Constitutionnel

In precedent cases, the French Conseil Constitutionnel has held that secondary Union law is not limited by national law, neither by ordinary nor by constitutional provisions, and therefore that supranational law has primacy also over Art. 88.1 of the French Constitution which provides the legal authorisation from the French nation for participation in the ECs and in the EU. The French Conseil Constitutionnel intends, however, to except cases where an explicit clash with the French Constitution results from the implementation of an EC directive (“qu’ainsi, la transposition en droit interne d’une directive communautaire résulte d’une exigence constitutionnelle à laquelle il ne pourrait être fait obstacle qu’en raison d’une disposition expresse contraire de la Constitution”).²⁵⁵ Restating this caveat explicitly in the décisions n° 2004-497 DC of 1 July 2004,²⁵⁶ n° 2004-498 DC²⁵⁷ and n° 2004-499 DC²⁵⁸ of 29 July 2004 with regard to dispositions which affect the identity of the French Constitution, the Conseil Constitutionnel then endeavoured to refine bit by bit its reserve competence by adding implicitly that the constitutional disposition has to reveal not only an express connection, but also a specific interrelation with the principles laid down in the law of the Union.²⁵⁹

Supplementing these criteria to an increasing extent, the caveat of the conformity of secondary Union law with the French Constitution was refined in the case law of the high court which strived to define in the best way possible the constitutional framework of the relationship between national law and secondary Union law. The opportunity to clarify this case law presented itself vey quickly on the occasion of decision n° 2006-540 DC of 27 July 2006,²⁶⁰ when the Conseil Constitutionnel consolidated its reserve competence considering that “the transposition of a directive cannot run counter to a rule or principle inherent to the constitutional identity of France, except when the constituting power consents thereto.”²⁶¹ This decision, which strongly marked a shift in and the stabilisation of the case law, was then taken up as a canon in the decisions n° 2006-543 DC²⁶² and n° 2008-564 DC,²⁶³ the latter constituting actually the high point of the achievement of a case law consistent in its basic principles since 2004 and in its formulation since 2006.²⁶⁴

The conformity of the primacy of Union law as codified by the failed Constitutional Treaty has been recognised by the Conseil Constitutionnel. In its decision on the TCE and following its previous case law it has not judged this principle of primacy of Union law over domestic law of the Member States (Art. I-6, then Art. I-5 TCE) as a “revision” of the French Constitution. Only when international commitments assumed by France “contain a clause running counter to the Constitution, call into question constitutionally guaranteed rights and freedoms or affect the fundamental conditions of the exercising of national sovereignty” a revision of the Constitution would be required. This has been contradicted by the Conseil Constitutionnel with regard to the Constitutional Treaty for Europe which is in substantive respects identical with the Treaty of Lisbon.²⁶⁵ The binding effect of the European Charter of Fundamental Rights is not considered unconstitutional. The Conseil also refers to the case law of the ECtHR, e.g. to interpret the European fundamental right of freedom of religion in such a way that it does not interfere with the French principle of laïcité (secularity).²⁶⁶

In general, however, the Conseil Constitutionnel left no doubt that the naming of the international treaty it reviewed (“Constitutional Treaty”) “has no effect upon the existence of the French Constitution and the place of the latter at the summit of the domestic legal order.”²⁶⁷

7.3.4 The Polish Constitutional Tribunal

In its decisions of 11 May 2005 regarding Poland’s membership in the EU²⁶⁸ and of 24 November 2010 on the Treaty of Lisbon²⁶⁹ the Polish Constitutional Tribunal ruled:

The accession of Poland to the European Union did not undermine the supremacy of the Constitution over the whole legal order within the field of sovereignty of the Republic of Poland. The norms of the Constitution, being the supreme act which is an expression of the Nation’s will, would not lose their binding force or change their content by the mere fact of an irreconcilable inconsistency between these norms and any Community provision. In such a situation, the autonomous decision as regards the appropriate manner of resolving that inconsistency, including the expediency of a revision of the Constitution, belongs to the Polish constitutional legislator. […] [T]he validity and efficacy of the accession [of Poland to the EU] are dependent upon fulfilment of the constitutional elements of the integration procedure, including the procedure for delegating competences.

[A] collision would occur in the event that an irreconcilable inconsistency appeared between a constitutional norm and a Community norm, such as could not be eliminated by means of applying an interpretation which respects the mutual autonomy of European law and national law. Such a collision may in no event be resolved by assuming the supremacy of a Community norm over a constitutional norm. Furthermore, it may not lead to the situation whereby a constitutional norm loses its binding force and is substituted by a Community norm, nor may it lead to an application of the constitutional norm restricted to areas beyond the scope of Community law regulation. In such an event the Nation as the sovereign, or a State authority organ authorised by the Constitution to represent the Nation, would need to decide on: amending the Constitution; or causing modifications within Community provisions; or, ultimately, on Poland’s withdrawal from the European Union.

And the Polish Constitutional Tribunal adds:

The principle of interpreting domestic law in a manner ‘sympathetic to European law’, as formulated within the Constitutional Tribunal’s jurisprudence, has its limits. In no event may it lead to results contradicting the explicit wording of constitutional norms or being irreconcilable with the minimum guarantee functions realised by the Constitution. In particular, the norms of the Constitution within the field of individual rights and freedoms indicate a minimum and unsurpassable threshold which may not be lowered or questioned as a result of the introduction of Community provisions.

[…] The Member States maintain the right to assess whether or not, in issuing particular legal provisions, the Community (Union) legislative organs acted within the delegated competences and in accordance with the principles of subsidiarity and proportionality. Should the adoption of provisions infringe these frameworks, the principle of the precedence of Community law fails to apply with respect to such provisions. […]

The [ECJ] is the primary, but not the sole, depositary of powers as regards application of the Treaties within the legal system of the Communities and Union. The interpretation of Community law performed by the ECJ should fall within the scope of functions and competences delegated to the Communities by its Member States. It should also remain in correlation with the principle of subsidiarity. Furthermore, this interpretation should be based upon the assumption of mutual loyalty between the […] Union institutions and the Member States. This assumption generates a duty for the ECJ to be sympathetically disposed towards the national legal systems and a duty for the Member States to show the highest standard of respect for Community norms.²⁷⁰

In its judgment on the Treaty of Lisbon the Polish Constitutional Tribunal maintained its stance presented in the statement of reasons for the judgment of 11 May 2005, pursuant to which “the Constitution remains – due to its unique status – ‘the supreme law of the Republic of Poland’ with regard to all international agreements which are binding for the Republic of Poland. This also concerns ratified international agreements about conferral of competences ‘in relation to certain matters’. Due to the primacy of the binding force of the Constitution […] the Constitution enjoys precedence as to the binding force and application in the territory of the Republic of Poland.”²⁷¹

7.3.5 The Czech Constitutional Court

In its decision of Lisbon Treaty II the Czech Constitutional Court reserved the right to review the Treaties for the reform of the EU which had not yet entered into force against the entire national constitution. Thereby, “the Constitutional Court acquires an opportunity to evaluate to a certain extent the constitutionality of the interpretation of already existing EU law norms by the Court of Justice, without coming into direct conflict with it.”²⁷² Unlike the right claimed by the Bundesverfassungsgericht to review “in individual cases […] legal instruments of the European Union that transgress competences or that violate constitutional identity [scil.: secondary legal acts]” the Czech Constitutional Court refers to the examination of primary Union law not yet in force at that time, i.e. it respects the primacy of Union law with regard to secondary legal acts of the Union. In the European Arrest Warrant case the Czech Constitutional Court implicitly found that a “possible inconsistency” of national law and Union law can be removed “not only by priority application of European law norms, but also through constitutional amendments”.²⁷³

In the same decision the Czech Constitutional Court adds: “Thus, if there are several interpretations of the constitutional order, which includes the Charter of Fundamental Rights and Freedoms, and only some of them lead to fulfilling the obligation that the Czech Republic assumed in connection with its membership in the EU, that interpretation must be selected which supports fulfillment of that obligation, and not an interpretation that prevents such fulfillment.”²⁷⁴

Emphasising this starting point and with reference to the Maastricht decision of the German Bundesverfassungsgericht the Czech Constitutional Court in its Lisbon Treaty I decision had already declared that it in the future it could “function as an ultima ratio and may review whether any act of Union bodies exceeded the powers that the Czech Republic transferred to the EU under Art. 10a of the Constitution. However, the Constitutional Court assumes that such a situation can occur only in quite exceptional cases; these could be, in particular, abandoning the identity of values and, as already cited, exceeding the scope of conferred competences.”²⁷⁵ By that it has also reserved the right to an identity review and an ultra vires review in exceptional cases.

7.3.6 The Position of an Undecided Member State: The Legal Situation in Greece

Like the constitutions of other Member States, the Greek Constitution leaves unanswered the question of primacy of Union law over national constitutional law (Art. 28.2 and 3 and an “interpretative explanation”). In a proceeding concerning the compatibility of some provisions of Greek press and media law, according to which companies that are “associated” with Greek media companies are excluded from participating in public tender procedures (Act 3021/2002), the Fourth Chamber of the Council of State (Supreme Administrative Court) in extended composition (Grand Chamber) pronounced in favour of supremacy of the Greek Constitution. According to the opinion of the judges issuing the majority judgment of this decision the supremacy of the Constitution applies “at least in the present stage of development of Community law and as long as a European constitutional document as superior provision has not been adopted which would bind the Member States to amend their constitutions in case of conflicts with this superior provision.”²⁷⁶ This formula goes far beyond the respective reserve competences which the supreme and constitutional courts of other Member States claim for themselves.²⁷⁷

In a dissenting opinion to the judgment, two judges held that the primacy of application of Community law is effective also over Greek constitutional provisions with the “only self-evident” condition that the respective applicable provision of Community law respects the principles of the protection of fundamental rights and the basis of the democratic form of government. They also expressly referred to the case law of the German Bundesverfassungsgericht (Solange II) and the Italian Corte Costituzionale (Granital and others). Nonetheless, primacy of Union law over national constitutional law must be dealt with as an issue which is still open and controversial in the Greek legal order.²⁷⁸ In an earlier proceeding the Plenum of the Council of State challenged the attempt of the Sixth Chamber to explicitly recognise supremacy of the constitution over Community law.²⁷⁹ It seems to trust that there will be no such conflict.

7.4 The Binding Power of Fundamental Rights for the (Supranational) Codification and the (National) Implementation of Margin of Appreciation of the Member States

National fundamental rights do not – at least from the perspective of Union law – undermine the validity of the supranational Treaties as such or their effect in the Member States. On the other hand, the Charter of Fundamental Rights in its interpretation in the light of international agreements on human rights, especially the ECHR, can influence the interpretation of domestic fundamental rights; this applies to the transposition and implementation of secondary Union law into the domestic legal order as well as to national courts and administrative authorities in their interpretation and application of provisions of secondary Union law, to the interpretation of domestic law in conformity with Union law and also to the cumulative application of domestic provisions in the execution of secondary law. A commitment, resulting from primary law, that could bind the Member States to fundamental rights can only be considered for situations that are not exhaustively regulated by secondary law.²⁸⁰ The Charter of Fundamental Rights does not, however, restrict the fundamental rights commitment of the Member States to the execution of secondary Union law. The Union fundamental rights must be observed, especially with regard to the express (e.g. Art. 36, 51, 62 TFEU) and implicit (Cassis de Dijon) exemptions to the market freedoms.²⁸¹

A further-reaching domestic guarantee of fundamental rights does not apply either, if an implementing act of a Member State infringed a national fundamental right but at the same time was necessary due to Union law which is in conformity with the Charter, i.e. if the Member State has no margin of appreciation. As early as 1992 the Conseil Constitutionnel ruled that the protection of fundamental rights of the individual provided by the ECJ was sufficient to guarantee fundamental rights as provided for by the national constitutions.²⁸² Following its own Chamber decision²⁸³ the First Senate of the Bundesverfassungsgericht also clarified that national provisions that are required by Union law are not reviewed against the standards of the domestic fundamental rights catalogue if and in so far as national legislative bodies have no margin of appreciation. Hence, in these cases German specialised courts are to examine requirements made by Union law only against fundamental rights of the Union and, if necessary and with regard to the guarantee of effective legal protection (Art. 19.4 GG), make a reference for preliminary ruling according to Art. 267 TFEU. Only if the ECJ then annuls the directive in question will there be room to review the national implementing act against the standards of German fundamental rights and to refer the case pursuant to Art. 100.1 GG.²⁸⁴

This case law is in most parts identical to the requirements made by the ECJ regarding the Member States’ obligations to give effect to European fundamental rights.²⁸⁵ In its review of the Directive on Family Reunification²⁸⁶ the Court distinguishes between two intertwined legal levels: on the one hand, provisions of a directive which impose direct and precise obligations on the Member States and, on the other hand, those which leave a margin of appreciation.²⁸⁷ Also, those provisions of a directive, which “afford the Member States a certain margin of appreciation and allow them in certain circumstances to apply national legislation derogating from the basic rules imposed by the Directive”, are to be examined against the standards of fundamental rights of the Union.²⁸⁸ This is consistent in so far as those clauses guaranteeing an individual transposal of an EU directive by a Member State (“opening clauses”) are not part of national law but of Union law for which the fundamental rights of the Union are the relevant standard of evaluation.²⁸⁹

This is to be distinguished from the question if and to what extent implementing acts of Member States issued under the discretion conferred by the opening clause are to be examined against the standards of the fundamental rights of the Union or of the domestic fundamental rights order. Following the position of the ECJ – which is in accordance with the view of the Bundesverfassungsgericht ²⁹⁰ – if it is an implementing act required without any margin of appreciation, only a review based on Union fundamental rights can be considered. If, on the other hand, it is an implementing act for which the Member States may use a margin of appreciation, the ECJ holds that “the requirements flowing from the protection of general principles recognised in the Community legal order, which include fundamental rights, are also binding on Member States when they implement Community rules, and that consequently they are bound, as far as possible, to apply the rules in accordance with those requirements.”²⁹¹ Since Member States are obliged by the general principles of Union law when using their margin of appreciation, they are bound by the fundamental rights of the Union in this legal sphere. In contrast, the Bundesverfassungsgericht limits the application of Union fundamental rights to the case that “Community law leaves no room for appreciation but imposes mandatory requirements.”²⁹² Fundamental rights of the Union are to be binding on the Member States only if they implement mandatory requirements.²⁹³ This is only “complementary protection of fundamental rights” in so far as either the European or the respective domestic fundamental rights order is applied; i.e. in so far as actions of either level that are not bound by fundamental rights are thus unimaginable. The divergence between the ECJ and the German Federal Constitutional Court on that matter is, however, put into context in that the Bundesverfassungsgericht generally regards the fundamental and systemic decision of a directive as part of the mandatory requirements.²⁹⁴ A third opinion holds that when operating under a appreciation clause the national legislator is to be obliged by Art. 53 EUCFR – besides being fully bound by domestic fundamental rights – to respect the fundamental rights of the Union. Thus, the protection of fundamental rights is doubled, with the domestic fundamental rights functioning as “enhanced protection of European fundamental rights.”²⁹⁵ Even if Member States have a margin of appreciation, this is to be filled by safeguarding not only the national fundamental rights but also the fundamental rights of the Union due to the Member States’ commitment to mandatory purposes of the Union.²⁹⁶

8 The Role of the Courts in Multilevel Constitutional Governance

European States are embedded in multiple and overlapping layers of regional and national “constitutional governance”. Courts, it seems, inevitably foster a constitutionalisation of the legal order(s) of the arising transnational global society. The results are multiple legal regimes – and multiple regime-collisions of a growing complexity²⁹⁷ – with courts as “gateways and interfaces”.²⁹⁸ Today’s intensity of European integration would have never been possible if in addition to the “competition of legal orders” – most recently manifested with the Charter of Fundamental Rights – between Union law, the ECHR and domestic law, a “competition of judiciaries” between the national constitutional courts, the ECtHR and the ECJ had not developed.²⁹⁹

The “bilateral interplay” between the EU and Convention law was described as “a twofold process of ‘conventionalisation’ of Union law and ‘unionisation’ of Convention law, though with different timings and intensities.”³⁰⁰ This transformation from a competition of legal orders into a competition of judiciaries, as reflected by the line of the case law of the German Federal Constitutional Court (Solange I – Solange II – Maastricht – Banana Market), is a decisive step towards the unity of the European legal order, which in turn forms a fundamental premise of the systemic rationality of law.³⁰¹ In the wake of the structural problems of the European multilevel governance system, the rationality and the objective adequacy of law are repeatedly put to the test.³⁰² For this the “critical discourse” in the exchange of thesis and antithesis, the advancing of argument and counterargument between the participating courts, but not, however, the authority of “the final say” is a substantial requirement. This competition of judiciaries, it is held, excludes efforts for convergence but ensures “protection of coherence [Kohärenzvorsorge]” through which a significant amount of trust between the courts involved is created.³⁰³

An important expression of this protection of coherence vis-à-vis the national constitutional traditions can be found in the Open door case of the Strasbourg Court in which the scope of protection of a fundamental right had been determined by weighing a specific guarantee of the ECHR (freedom of expression pursuant to Art. 10.2 ECHR) against a domestic fundamental right of constitutional law (right to life of the unborn child according to Art. 40.3.3 of the Irish Constitution).³⁰⁴ This case shows how difficult it is to avoid contradictions in the triangle of the judiciaries in Strasbourg, Luxembourg and the Member States because the result of the careful considerations by the ECtHR contrasts with the previous case law of the ECJ which had affirmed that medical termination of pregnancy constitutes a service but denied that there had been a violation of the right to free distribution of information on such services.³⁰⁵ The plea that former ECtHR President, Luzius Wildhaber, has directed to the national courts equally applies to the ECJ: In order to create legal certainty and convergence the Luxembourg Court is also required as far as possible in its deliberations to respect the ECHR and its interpretation by the Strasbourg Court.³⁰⁶