András Jakab, Director of the Institute for Legal Studies of the Hungarian Academy of Sciences and Schumpeter Fellow at the Max Planck Institute, pre-published on SSRN an essay discussing the application of the EU Charter by national courts, to appear in a volume edited by him and Dimitry Kochenov on “The Enforcement of EU Law and Values” (to be published by Oxford University Press this year). He claims that the EU is a community of values such as democracy, freedom and equality, and if the EU is not going to defend those values harder it will lose its credibility. The question raised is how the EU should do that since there are both political and judicial enforcement methods, but neither one is as efficient as they should be. For Jakab the only reliable enforcement mechanisms are those that are judicially guaranteed.
The Author argues that to widen the application of the EU Charter of Fundamental Rights, a re-interpretation of its Art. 51(1) is the most promising way to conceptualise the values of European constitutionalism in a judicially enforceable manner. Art. 51(1) of the EU Charter states that it is only applicable on Member States when they are implementing Union law.
According to Jakab this is the keystone provision of the Charter. It is limiting its scope regarding the Member States and is applicable “only when they are implementing Union law”. The Author states, that this formulation is too restrictive and therefore contradicts the philosophy the European legal system is based upon. To underline the need of a re-interpretation of Art. 51(1) Jakab is presenting three already existing interpretations and evaluating their strengths and weaknesses. This part is followed by his own proposal on the establishment of the “semi-centralised judicial review”.
Jakab states that “if we aim for a fully-fledged value community which benefits all its citizens equally, then the Charter as such should gain full applicability in every case, even in purely domestic cases in domestic courts and even if there is no systemic failure of fundamental rights protection on a domestic level.” According to him this would mean, that the supremacy of EU law (the Charter) would introduce judicial review in Europe. Local courts could exercise this review and the unified application of EU law would be ensured through the preliminary reference procedure. In this way the EU could fulfill its goal to be a “community of fundamental rights”.
As Jakab’s theory contradicts the wording of Art. 51(1), the interpretation by the CJEU and the majority of the scholars, he is presenting solid doctrinal arguments for his theory. One the one hand he takes the Union Citizenship as a concept protecting citizens from their own Member States and therefore in a further step could trigger the application of the Charter. On the other hand he takes Art. 2 and 7 TEU into consideration which applied together with the Fransson Formula “basically all human rights violation can trigger the application of Art. 51(1) [of the Charter].” If the EU was to take such a measure, the conflicting values or interests at stake would arise between a Member State and a Member State court. In that way CJEU would only be involved indirectly through preliminary rulings.
For the best result regarding the implementation of fundamental rights, the CJEU should fully rely on the case law of the ECtHR and by doing so it would strengthen its moral authority. The author holds the view that CJEU would give teeth to the ECtHR because firstly, the EU enforcement mechanisms are stronger and secondly, because of the supremacy of EU law that makes it possible for national courts to stop the national measures from violating fundamental rights by simply not applying them.
The authors is perfectly aware of the fact that his suggestion on how to interpret Art. 51(1) is contradicting the way how most scholars and the CJEU is interpreting the law, but he states that “law is not a physical object that exists independently from us that we just have to recognise – law is what courts make of it”. Therefore Jakab is waiting for a European Marbury v. Madison decision arising from a preliminary reference in a small court in one of the EU Member States, to give the CJEU the possibility to make a judgment which will “transform the Charter into a real Charter for all European citizens, into a Charter which guarantees their freedoms even when domestic forums fail”.
Since its founding the Court has been expanding its competences taking activist decisions which sometimes were far away from what was written in the Treaties. The Author thinks that EU institutions are not willing to stop this approach and the Member States are not able to do so.
He thinks that the European integration process is not going to fail because of a “stronger protection of fundamental rights” but for “purely economic reasons” or “because of anti-constitutionalist and illiberal attempts within some of the MSs”. According to Jakab a decisive step towards a community of fundamental rights can be made with judicial statesmanship, patience for the right cases and a conscious strategy in the very near future. He is closing with an advice to the CJEU. ”For this purpose, the [CJEU] has to reassert its responsibility in both enhancing European integration and promoting the values of the European Union.”
The authors proposal of a creative re-interpretation of article 51(1) of the Charter is a promising way for the European Union to become a community of fundamental rights, which benefits all of its citizens equally and where nobody can be left behind. However, the proposal is quite hard to implement in reality. If the proposal was to be incorporated, the CJEU would be overloaded with cases and the protection of fundamental rights would not be efficient in the way the author wants it to be. The author argues that this is not a legal argument to reject fundamental rights, and maybe it is not, but it is still an argument against re-interpretation of article 51(1) of the Charter.
The re-interpretation would not be compatible with art. 6(2) TEU since it does not take account of the specific characteristics of EU law. According to art. 6(2) TEU, shall the Union accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms without affecting the Union’s competences as defined in the Treaties. The re-interpretation of article 51(1) of the Charter does not limit the possibility of Member States having higher human rights standards than EU law. Both art. 6 TEU and art. 51(2) of the Charter restricts the Charter from extending EU’s competences, the authors proposal is therefore not compatible with this provisions since it extends the competences of the EU.
The proposal also violates article 344 of the TFEU. If the re-interpretation of art. 51(1) would be introduced, art. 344 TFEU would be violated since it prevent the possibility that the ECtHR settle disputes between Member States on matters of EU law.
However, one can see that CJEU is developing its case law in the direction of the author’s proposal of a re-interpretation of the Charter. In the ERT case, the Court found that European human rights law not only applies to a Member State when it is implementing EU law but also when it acts within the scope of Union law. This approach is less restrictive and means that the Charter is applicable not only when the Member States implement an EU norm but also when they derogate therefrom. The Court’s approach to the interpretation of art. 51(1) of the Charter is less restrictive and more compatible with the author’s proposal. The court also introduced a wider interpretation of art. 51(1) of the Charter in the Åklagaren v. Hans Åkerberg Fransson case (commented on this blog here). According to art. 51(1) of the Charter, it is only applicable when Member States are implementing union law but the court ruled that EU fundamental rights should apply “within the scope of EU law”.
The external limits of the Charter is delimited and will probably be until the Court of Justice of the EU sets up a new test to identify them, but one can see that CJEU is developing its case law in the direction of the author’s proposal of a re-interpretation of the Charter.
by Mathias Davatz, Stephanie Winkler, Kristé Zvinklyté