Stephen Brittain published an article in the European Constitutional Law Review in December 2015. It looks at how one could bring an originalist perspective into the interpretation of the European Convention on Human Rights and the Charter, a field currently dominated by the teleological method, and how this could be used to look at the relationship between the two documents. Brittain argues that the originalist approach encourages democracy and the rule of law as well as clarifies the meaning of the provisions of the Charter.
The Convention and the Charter are two different documents which protect human and fundamental rights differently. Fundamental rights were recognised as ‘general principles’ of EU law in the jurisprudence of the European Court of Justice (ECJ) already before the adoption of the Charter. The Charter is an enforceable bill and can give rise to divergences from the Convention. Article 52(3) of the Charter raises two key issues: first, if the Charter rights have the same “meaning and scope” than the Convention rights; second, if the Charter may accord greater protection than the Convention.
An interpretation of the European Court of Justice
Before the Charter, the ECJ made also decisions against the text of the founding Treaties. For example, Article 173 of the Treaty of Rome stated that actions for annulment could be initiated by “a Member State, the Council or the Commission” and by “any natural or legal person” against a decision. In Chernobyl (C-70/88), the ECJ held that the European Parliament could also bring an action, otherwise it would be a procedural gap.
Brittain explains that the argument most frequently put in favour of the teleological approach of the ECJ is that the framers of the Treaty of Rome were committed to European integration and that their ambition to create a united Europe should be furthered by the ECJ in its interpretation of EU law, for example in Article 173.
Criticisms of the Teleological Approach
The teleological approach is criticised by the author. The key assumption underlying the teleological approach, that a particular law may be said to reflect a single unitary purpose, is doubtful. It creates legal uncertainty by permitting unambiguous text to be overridden by reference to purpose. This is contrary to the rule of law because it precludes citizens from planning their affairs effectively, in reliance upon the plain text of the law. Moreover, it contravenes the right of the peoples of Europe to democratic selfgovernment. It is exceedingly difficult for the framers of EU legal provisions to say with any confidence how the enactments they draft will be read by the court.
An originalist interpretation
Brittain specifies that he has chosen to use the so called “new originalist” method, a choice he motivates by the fact that this perspective looks at the text from the point of view of those for whom it was originally written. In other words the parliaments of the member states that ratified it, as opposed to the “old originalist” perspective which considers it from the drafter’s perspective. To support his choice of interpretive method Brittain mentions a judgment by the US Supreme Court and arguments from Justices Thomas and Scalia, who claim that the Constitution was written for the voters and therefore should be interpreted from their angle. Other arguments that Brittain mentions in favor of his choice of interpretive method are the principles of democratic legitimacy, legal certainty and limitation of the judges’ scope of appreciation.
Brittain emphasises the importance of making the correct historical assessment when interpreting the text, since it is crucial to be able to understand the text as it was originally intended.This is also where originalism faces one of it’s biggest challenges. Justice Antonin Scalia recognises that the material that one has to go through in order to make the correct historical assessment is extensive and that one will have to handle the problems of finding reliable sources as well as remaining impartial during the interpretation. This is however not something that makes Scalia, nor Brittain, question the originalist method.
Brittain then begins his originalist interpretation of the Charter by looking at the direct meaning of the words using a number of highly respected dictionaries, implicitly assuming that this is how one should start analyzing a legally binding document. Brittain mentions the fact that all 24 languages of the EU have official status but claims that this is not problematic in this case since he, after having studied the translations into ten of them, found that they did not differ to any greater extent. This somewhat problematic aspect of EU law has been recognised by the ECJ which stated that in case of divergence between different translations of a provision of EU law “the provision in question must be interpreted by reference to the general scheme and purpose of the rules of which it forms part” (HK Danmark v Experian A/S [C-476/11]),which could be seen as a way of hindering the provision from getting different meaning in different member states, and the provisions to lose their purpose.
According to Brittain the drafters’ aim with the Charter was to provide additional value to the Convention. The Charter provides greater protection of rights than the Convention. The latter considered to constitute a minimum standard. Brittain explains that during the drafting of the Charter the caselaw of European Court of Human Rights (ECtHR) was denoted as an inspirational source and in order to avoid a different interpretation of the Charter by the ECJ and the jurisprudence of the ECtHR, the EU’s compliance with the Convention was of importance.
Many scholars argued that the interpretation of Article 52(3) should impose binding obligation on the ECJ to follow the case-law of the ECtHR. Brittain noted that the object and purpose of Article 52(3) did not require the jurisprudence of the ECtHR to be followed. But in most cases, such as Orlando Arango Jaramillo and Others v EIB (C-334/12 RX-II) and O, S v Maahanmuuttovirasto (Joined Cases C-356/11 and C-357/11),the Court made reference to ECtHR jurisprudence in accordance with Article 52(3) of the Charter on meaning and scope of that right must be ascertained by taking account of the caselaw of the ECtHR although there was no obligation to follow it.
Brittain and many other scholars, such as Elisabeth Defeis and Miguel Poiares Maduro, came to the conclusion that the Convention provides a minimum standard and the Charter may not fall beneath it. There are many rights that are in tension between these two instruments, as in Byankov (C-249/11) where it was difficult to choose the instrument that provides more extensive rights. Advocate General Mengozzi in Byankov expressed his originalist approach that there is no hierarchy between the Charter rights and the founding Treaties. According to him, the rights of the Charter are not superior to any Treaty rights.
To conclude, article 52(3) states that the Charter may give ‘more extensive protection’ while the first sentence of the same paragraph provides ‘meaning and scope’ of the Charter which entails homogeneity with the ECHR. However, there is no guidance on where and how EU law can provide greater protection.
Khaleda Abdul Khalil, Linn Glännestrand and Samantha Guillet