The Charter became primary EU law when the Lisbon Treaty entered into force in December 2009. In order to understand the impact of the Charter on EU law the scope of it has to be determined, both regarding when it is applicable and how the provisions within it should be interpreted. Koen Lenaerts explores this topic in his article Exploring the Limits of the EU Charter of Fundamental Rights, published in Vol. 8 of the European constitutional Law Review in October 2012 (available here). The article gives an overview of the rules relating to the scope and interpretation of the Charter. The author points out interesting aspects regarding the limitation of the Charter towards national constitutions. Moreover, there is an interesting discussion concerning the relationship between the Charter and ECHR.
Field of Application of the Charter
The Explanations relating to the Charter are not legally binding but an interpretative tool. According to Lenaerts, the interpretative value of the Explanations should be higher than that of travaux préparatoires since the authors to the Treaty of Lisbon and those of the Charter has stressed the importance of the Explanations. Hence, in practice the ECJ cannot interpret the Charter contrary to the Explanations without engaging in judicial activism. The Explanations are used by Lenaerts to show that case-law pre-dating the Charter is applicable in interpreting the meaning of the provisions. He suggests that this case-law includes two situations where the Charter imposes obligations on the member states, in accordance with Article 51 of the Charter. The first one is when there is an EU obligation that requires the member states to take actions; the second one is when a member state derogates from EU law. When the member states implement legislation that does not follow from an EU law obligation the Charter is not applicable.
In Wachauf (Case 5/88 ) and Karlsson (Case C-292/97 ), which both dealt with fundamental rights based on the general principles, the ECJ held that those rights where binding upon the member states when applying a normative scheme put in place by the EU legislator. As regards the derogation situation Lord Goldsmith and former Advocate General Jacobs among others have argued that the Charter should not apply, while the general principles should apply. According to Lenaerts the ERT case (C-260/89 ) shows, contrary to the view of other scholars, that the Charter in fact does apply when the member states derogate from EU law. In the ERT case the ECJ states that when deciding whether rules that obstruct the freedom to provide services can be justified according to EU law it has to be ‘interpreted in the light of general principles of law and in particular of fundamental rights’. The ERT case also confirms that fundamental rights were considered general principles before the Charter was adopted. When member states derogate from EU law, the general principles demand that the fundamental rights are respected. The ERT case is mentioned explicitly in the Explanations concerning Article 51, which supports that the fundamental rights in the Charter must be respected when member states derogate from EU law. These points in favour of Lenaerts position that the Charter applies.
Lenaerts states that the Charter does not alter the scope of application with respect to when only the general principles provided protection for fundamental rights under EU law. On the other hand, Joseph Weiler wonders if the Charter itself adds any value to the protection of fundamental rights in EU law. However, Lenaerts argues that there is in fact added value from the Charter since it has a broader scope than the general principles and may contribute to the discovery of new general principles. Yet, he does not touch upon the subject on what impact this discovery of general principles from the Charter would have on EU law. Since it appears that the scope of application between the general principles and the Charter is the same, what significance would these newly found general principles have? Does he suggest that the general principles can be used as a backdoor in order to extend the scope of application of the Charter?
Interpretation and Scope of the Charter
The limitations of the fundamental rights of the Charter are contained in Article 52(1). Lenaerts compares the Charter and the ECHR, stating that the system regarding limitations of rights under ECHR (‘qualified rights’) must be followed by a specific derogation clause. However, the Charter the system is quite dissimilar, since Article 51(1) is defined as a ‘general limitation clause’. According to Lenaerts, the substance of being a ‘general limitation clause’ is that the provisions confirm conditions that the limitations on the exercise of the rights and freedoms recognized by the Charter must be fulfilled in order to not infringe and be consistent with EU law. In general, the wording of Article 51(1) is highly inspired by diverse aspects, such as; case-law of the ECJ on the protection of fundamental rights, which in fact takes inspiration from the established case-law of the ECtHR.
The relationship between ECHR and the Charter is mainly regulated in Article 52(3) which “is intended to ensure the necessary consistency between the Charter and the ECHR”, “without thereby adversely affecting the autonomy of [EU] law and of that of the [ECJ]” (Lenaerts, p. 394). Lenaerts declares that the autonomy of EU law could mainly be grounded on the principle “of the more extensive protection”, which means that the provisions formally affirm that the level of protection maintained under EU law could never be lower than that guaranteed by the ECHR. In light of the Explanations relating to the Charter the provisions are formulated in a way allowing the Union to guarantee more extensive protection and never offer a lower protection of the rights than contained in ECHR. Furthermore, Lenaerts argues that a combined reading of Article 52(3) and 53 of the Charter demonstrates a threat towards the autonomy of EU law in situations when the ECtHR either raises the level of protection of fundamental rights, or determine to expand the scope of application in a way that the level of protection overtakes that guaranteed by EU law. In those matters the ECJ is obliged to reinterpret the Charter in order to attain the level of protection guaranteed by the ECHR.
Nevertheless, Lenaerts underlines that a convergent interpretation of the rights in the Charter and ECHR may be complex when it comes to the principle of ne bis in idem. According to the rationale of Article 50 of the Charter, in situations when ne bis in idem is relied upon in a cross-border situation, the principle must be interpreted in compliance with EU law, for instance in accordance with the case-law established by the ECJ under the Convention implementing the Schengen Agreement, which was stated in the Gözütok and Brügge case (C-187/01 and C-385/01 ). Nonetheless, in internal situations of double proceedings, the principle of ne bis in idem enshrined in Article 50 would have the same meaning and scope as in ECHR. In accordance with the ECtHR’s reasoning in case of Sergey Zolotukhin v. Russia (judgment of 10 February 2009, No. 14939/03) the concept of ‘idem” was interpreted in conformity with the case-law of the ECJ in order to have a convergent interpretation of the wording of ne bis in idem principle. The outcome of the ECtHR’s decision in the above mentioned case demonstrates the importance that both courts engage in a constructive dialogue, especially regarding the provisions of the Charter that denotes to the ECHR.
A combined reading of Article 52(4) and 53 confirms that the Charter is not designed to define fundamental rights in accordance with “the smallest common denominator”. It is rather meant to interpret the fundamental rights in a way that ensures a high level of protection, which according to Lenaerts, is adapted to the nature of EU law and is in harmony with the national constitutional traditions. The challenging aspect would be if Article 53 of the Charter were to be interpreted as a codification of the Solange approach (judgments of the German Bundesverfassungsgericht of 29 May 1974 [2 BvL 52/71] and of 22 October 1986 [2 BvR 197/83]), which confirmed that the primacy of EU law is conditioned upon a certain level of protection of fundamental rights, required to be at least equivalent to the level of protection ensured by the constitution of the member states. In other words, the question is whether the wording of Article 53 of the Charter may limit the primacy of EU law.
Lenaerts argues that Article 53 does not function as a rule of conflict, but rather as a rule aiming to strengthen the primacy of EU law by obliging the ECJ to present the reasons behind the decisions of either to follow or depart from the level of protection of fundamental rights provided by the member states’ constitutional tradition. In addition, other scholars interpret Article 53 of the Charter as a provision not aiming to limit the primacy of EU law, but as a tool for the member states’ beneficial interest to assure that the Charter does not replace their national constitution and threaten a higher level of fundamental rights protections (see for example J. Bering Liisberg). Moreover, the wording “in their respective fields of applications” clarifies that Article 53 is not designed to limit the primacy of EU law. It follows from the rules of interpretation provided by the Charter itself that the rights enshrined in it, are only binding for the member states when they implement EU law. Hence, situations considered to be outside the scope of application of EU law would entirely be governed by the constitution of the member states, thus the Charter does not enforce any changes within the EU system. Consequently Article 53 should not be interpreted in accordance with the Solange approach, but rather in conformity with the ECJ rulings in Omega (Case C-36/02 ) and Sayn-Wittgenstein (Case C-208/09 ), where the ECJ determined that the member states should have the opportunity to determine the level of protection of fundamental rights which they considered to be consistent with their national constitution, as far as the essential interests of the EU are not adversely affected by national measures implementing EU law. This means that the application of the EU fundamental rights does not directly exclude the application of rights recognized by the domestic courts. Thus, the member states should be allowed a margin of appreciation in situations when EU fundamental rights are applied in their national legal system in order to accept the differences between the member states regarding the level of protection of fundamental rights.
To conclude, the Charter does not pose a serious threat towards the national constitutions. The implementation of the Charter does not alter the division of competence between the Union and the member states. Also, the existence of the Charter is not aimed to extend the competence of the EU institutions, especially that of the ECJ. It is also worth noting that the translations to the Charter are not coherent between the language versions. In the Swedish version, for example, the word tillämpa is used in the provision instead of ‘implementing’. The meaning of tillämpa is more “to apply” in a direct English translation. This will lead to problems when it comes to how the Charter should be interpreted in practice when the formulations are dissimilar between the member states. For how the ECJ handles this issue, see the recent judgment in Åklagare v. Hans Åkerberg Fransson (Case C-617/10 ), commented on this blog last week.
by Elisabeth Aronsson, Hevi Dawody and Magnus Österdahl