PROTECTION OF FUNDAMENTAL RIGHTS –
THE JUDICIAL VIEWPOINT AT EU LEVEL
‘Widening the scope of the Charter: For and Against’
Presentation to the Committee on Petitions of the European Parliament
Public session, Brussels, 23rd February 2016
Introduction
I begin with the obvious disclaimers:
●this is a personal viewpoint from one Advocate General, it is not – and could not be – the collective official position of the Court of Justice of the European Union (‘the CJEU’);
●the CJEU will interpret the legislative texts that exist now, ratherthan the legislative texts that might exist at some point in the future– members of the CJEU are therefore, individually and collectively, pre-programmed to be wary about engaging in too much crystal-ball gazing;
●the CJEU deals with the cases that are brought before it – it neither goes out and looks for cases nor selects which of the cases that are submitted for its consideration it is going to deal with (unlike, for example, the US Supreme Court); for that reason, the CJEU’s case-law reflects the problems that have been put before it rather than all the interesting questions that arise in relation to (here) the scope, role and application of the Charter;
●the CJEU has neither an agenda (federalist or otherwise) nor a legislative programme: it is a court of law.
These caveats are important.
How we got where we are
●Professor Spaventa’s study helpfully reminds us (section 1.1),as have earlier speakers,ofthe evolution of fundamental rights protection in EEC / EC / EU law and the subsequent ‘constitutionalisation’ of that protection in the Charter (and the ‘fundamental principles’ developed by the CJEU before the birth of the Charter are still part of the overall picture of rights protection);
●the elevation of the Charter from ‘soft law’ to the same status as the Treaties was balanced by a firm indication from the Member States that this was not to be accompanied by ‘competence creep’: thus, Article 6(1) TEU expressly states that, ‘[t]he provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties’;
●in defining the field of application of the Charter, Article 51 of the Charter seeks to give effect to that Treaty limitation.
The present situation
●Professor Spaventa’s study contains a detailed and scholarly analysis of the ‘Charter cases’ in various different areas of EU law;
●I shall confine myself to the observation that, as far as I can see, the Court has been both careful and cautious about approaching Article 51 of the Charter;
●in summary, it has tried to find a balance between Scylla (a very narrow reading of what is meant by ‘[apply] to the Member States only when they are implementing Union law’) and Charybdis (a very broad reading, such that anything related to anything that is covered by EU law suffices to trigger the Charter);
●if the CJEU is criticised in roughly equal measure by some well-respected parts of the academic community who feel that it does not go far enough in its rulings on the scope of the Charter, and by certain elements in certain Member States who feel equally vehemently that it has already gone too far, perhaps that is an indication that the CJEU is getting the balance about right;
●in shorthand, the situation (as described by the CJEU’s new President, Koen Lenaerts) is that the Charter is the ‘shadow’ of EU law – thus, where there is no provision of EU law that is relevant to the case, the Charter cannot be relied upon as a source of free-standing rights.
The possible ways forward
●leave things as they are OR
●widen the scope of the Charter (either by widening the definition in Article 51 or by deleting it completely – I agree with earlier speakers who have pointed out that, to change matters, it would also be necessary to amend Article 6 TEU);
●my personal preference (speaking purely technically as a lawyer) is to have a clause that defines the scope of application of the Charter, because a situation in which there are no definitions is usually bad news from the standpoint of legal certainty;
●thus, IF there is to be change, I would personally favour making whatever change is decided upon explicit in the Charter (as well as, on this hypothesis, amending Article 6 TEU) so that individuals reading the Charter would be clear as to the circumstances in which they could rely on the rights that it contains;
●in what follows, I shall therefore use ‘widening the scope of Article 51’ as shorthand for ‘removing some / all of the present limitations that Article 51 contains as to the scopeof application of the Charter and making the necessary changes to Article 6 TEU’.
Widening the scope of Article 51: the arguments in favour
●improved fundamental rights protection within the EU (up to three overlapping levels of protection for the individual EU citizen – from national constitutional law, from the ECHR and from the Charter);
●EU citizens would be able to have ‘free-standing’ recourse to the Charter and invoke it whenever they consider that the safeguards that it contains have been violated, without the need to identify a specific substantive provision of EU law that is pertinent to their situation;
●the Charter is a modern, extensive and up-to-date fundamental rights document – it may therefore (possibly) protect certain rights explicitly which are either not protected under national constitutional law and / or the ECHR or are not so clearly protected under one or other of those instruments;
●in this perspective, the CJEU would provide an additional level of judicial protection to that already offered by national constitutional courts and the European Court of Human Rights.
Widening the scope of Article 51 : the arguments against
●the Member States have made it crystal clear that they do not wish the application of the Charter to result in ‘competence creep’;
●when the Charter was elevated to the level of primary law, there was never any intention that it should become a free-standing source of fundamental rights: its role is to serve as a check on the validity of EU secondary law and to inform the interpretation of EU substantive law (primary and secondary) and its applicability to Member States’ actions is merely ancillary to that role;[1]
●existing fundamental rights protection (from national constitutional law and from the ECHR) is adequate;
●the CJEU’s job is to oversee the observance of EU law within the European Union – it is not to function as an additional fundamental rights jurisdiction.
Two further observations
●whilst some articles of the Charter clearly define particular fundamental rights, other articles are more programmatic / aspirational; thus, IF the scope of Article 51 of the Charter were to be widened it might also be necessary / desirable to re-evaluate and / or make clearer the distinction within the Charter between ‘rights’ and ‘principles’;
●converting the Charter into a free-standing source of fundamental rights implies,in my view, a move in the direction of a more federal concept of the European Union (see my Opinion in Case C-34/09 Ruiz Zambrano, points 156-177): to some, that would be a welcome and positive move whilst to others it would be anathema.
Conclusion
●the CJEU will continue to work with the text(s) that it is given to interpret and it will do its best to interpret those texts in a way that is consistent with their letter and spirit;
●the choice as to whether or not to widen the scope of Article 51 of the Charter (and concurrently to amend Article 6 TEU) is quintessentially one that it is not for the CJEU to make: that choice lies with the Member States in dialogue with the European Parliament as the democratically elected representatives of the citizens of the European Union.
Eleanor Sharpston
23rdFebruary 2016
1
European Parliament Committee on Petitions (23 February 2016) - Sharpston
[1] –See, for example, Joined Cases C-92/09 and C-93/09 Volker and Marcus Schecke (publication of personal data about beneficiaries of EU agricultural funds); Case C-131/12 Google Spain and Google (the ‘right to be forgotten’); Joined Cases C-293/12 and C-594/12Digital Rights Ireland (Data Retention Directive); and Case C-362/14 Schrems (‘Facebook’ / US Safe Harbour Decision).