Article 53 of the Charter of Fundamental Rights of the European Union caused, already at its inception, a hermeneutical conundrum:
Nothing in the Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognized, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the [ECHR] and by the Member States’ constitutions.
Article 51, which defines the Charter’s field of application, provides:
The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.
What if in, say, the implementation of Union law, it is found that the Union law violates a constitutional provision of the Member State protecting fundamental human rights?
Under the pre-Charter regime the resolution of such a conflict would proceed as follows. First, under CILFIT (Case 283/81 of 6 October 1982) the validity of the Union law would rest in the hands of the ECJ. A Member State court, even a court against whose decision there was a judicial remedy, would be required to make a preliminary reference for a finding of invalidity. Second, the ECJ would review the Union measure according to its human rights standards (informed, of course, by the constitutional traditions common to the Member States and the ECHR). The applicable human rights norm could not be dictated by the standard of level of protection of any given Member State (Hauer, Case 44/79 of 13 December 1979). If the ECJ were to find that the Union measure was not violative of human rights as defined by the ECJ, it would, by virtue of the principles of supremacy and equality of application of Union law, have to be followed by and within the Member States, even if a similar national measure would violate Member State constitutional provisions. There was a period in which some authors suggested that the ECJ would always have to adopt the highest level of protection to be found among the Member States. That nonsense has luckily been purged from most treatments of the subject matter.
Article 53 seemed to call that orthodoxy into question since an implementing measure could be thought to fall within both the sphere of application of the Union and a Member State. Article 53 could, thus, suggest that the prior understanding would mean that the constitutional protection in a Member State would be restricted and/or adversely affected if it afforded more extensive protection than the Union standard applied by the ECJ.
In the recent Melloni case (Case C-399/11 of 26 February 2013) the Court addressed this precise issue and, not surprisingly, confirmed that one could not read Article 53 as changing the prior orthodoxy. A Member State cannot disapply a Union measure which conforms with European Union human rights standards for violation of its own human rights constitutional provisions.
There is, however, an intriguing ambiguity. What if the national court wishes to set aside the measure implementing Union law (and assuming that there is no alternative implementation possibility) for violation of the ECHR? In theory the question should not arise. Article 52(3) of the Charter provides that
[i]nsofar as this Charter contains rights which correspond to rights guaranteed by the [ECHR], the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.
In conducting its own review, the ECJ should, thus, when dealing with corresponding rights, ensure conformity. And should there be a case of non-corresponding rights, the ECJ has indicated often that it will ensure the compatibility of Union norms with the ECHR.
In Melloni, which concerned the right of a Member State to refuse the execution of a European arrest warrant in respect of individuals who were tried in absentia in the requesting state, the ECJ, with a clear nod to Article 52(3), did duly take a look at the Convention in Recital 50 of its judgment:
This interpretation [of the relevant provisions of the Charter] is in keeping with the scope that has been recognized for the rights guaranteed by Article 6(1) and (3) of the ECHR by the case-law of the European Court of Human Rights.
Whether or not the interpretation by the ECJ of the relevant provisions of the Charter is in fact in keeping with the jurisprudence of the ECHR may not be quite as straightforward as the apodictic statement in Recital 50 suggests. But be that as it may, the more delicate question is whether a national court is required to accept as binding the interpretation of the ECHR by the European Court of Justice.
Paradoxically, I consider it easier from a constitutional theory point of view for a Member State constitutional court to accept that in relation to European Union norms its own norms must yield to those of the Union as a whole, even in matters of human rights, than for the same court to accept what it perceives as an erroneous interpretation of the Convention by the ECJ. Both as a matter of status and expertise the ECJ should have primacy in defining the content and scope of European Union norms. But neither as a matter of status nor expertise is it in a superior position vis-à-vis the constitutional courts of the Member States when it comes to interpreting the Convention. The matter is aggravated by the notoriously telegraphic style that the ECJ adopts when dealing with the Convention jurisprudence – a style not designed to inspire confidence – as evidenced in the Melloni case itself. It is also not helped by the barely disguised historic hostility of the ECJ to the notion that it may have to submit, in matters of human rights, to the superior authority of the European Court of Human Rights.
What is the legal duty of a Member State court when it comes to the conclusion that the ECJ has erred in interpreting an international norm designed to protect individuals and that the rights of said individuals would be violated if it were to follow such an interpretation? Does it simply leave it in the hands of the individual to commence the arduous road to Strasbourg? Does it, instead, refuse to give effect to the Union norm which it finds in violation of the ECHR? Note that in doing so the national court would not be playing a chauvinist game, but would be concerned not to compromise the strictures of the Convention which bind it in a way that does not bind the EU as such.
The interested reader may find it is worth reading with care Recital 44 in Åklagaren (Case 617/10, of the same date as Melloni) in which the ECJ recalls, inter alia, that the ECHR
does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into European Union law. Consequently, European Union law does not govern the relations between the ECHR and the legal systems of the Member States, nor does it determine the conclusions to be drawn by a national court in the event of a conflict between the rights guaranteed by that convention and a rule of national law.
Should a Member State court accept an interpretation of the ECHR by the ECJ, which in its view would bring its jurisdiction into violation of an international obligation of the highest order, a risk which the ECJ does not have? (Did the ECJ shoot itself in the foot in Åklagaren?) Does its legal duty to the European Union legal order trump its legal duty under international law to the Convention system?
There clearly would be some mischief if Member State implementing measures were to differ based on a different understanding of the ECHR requirements. No doubt the ECJ would trumpet its ‘essential feature of the EU legal order’ rhetoric and all the rest. But would it be less mischievous if, say, the ECJ’s interpretation of the Convention was the odd man out compared to the constitutional courts of the Member States? Or would it not violate an essential feature of a national legal order if domestic legislation falling outside the scope of Union law were to be interpreted by Member State courts according to one understanding of the Convention requirements, whilst implementing legislation of the Union followed a different understanding of the Convention?
I can see various plausible ways of thinking about this problem and also various solutions to the problem; my only disagreement will be with those who think it is an ‘easy case’. And, of course, the machinery of seizing Strasbourg, the only Court able to resolve authoritatively the meaning of the Convention, is extraordinarily cumbersome and not suitable for this type of situation. However, the new proposed Accession Protocol for the EU may offer interesting possibilities in this regard.