It is a public secret that the Convention was ‘if not a child, at least a god- child’20of Germany. Concern for the lack of sufficient fundamental rights protection has been a constitutional issue since Solange, and made explicit in the new Article 23 inserted in the Basic Law at the occasion of the Maastricht Treaty. Article 23 of the Basic Law states inter alia that Germany is under a ‘duty to participate in the development of the European Union which (..) provides a protection of fundamental rights equivalent to that of this Constitution’. It was thought that the provision required more than the open statement contained in Article 6 EU and the case law of the Court of Justice, which could, after all, be overruled, and which had been open to the critique – rightly or wrongly – that the level of protection offered by the Court was not sufficient. In Solange I, the German Constitutional Court had specifically requested a catalogue of funda- mental rights as a prerequisite for its unconditional acceptance of supremacy of Community law. That claim was dropped in Solange II, when the Bundesverfassungsgericht appeared to be satisfied, at least on a
20 See LFM Besselink, ‘The Member States, the National Constitutions and the Scope of the Charter’, 8 MJ, 2002, 68, at 68.
general level, by the general principles case law of the Court of Justice.21 Nevertheless, the Bundesverfassungsgericht, but also its brethern in other Member States, such as the Corte costituzionale, the Hứjesteretand possi- bly the Cour d’arbitrage, remain wary of the protection offered by the European institutions and the supervision of the Court of Justice.
Will this Charter dispose of all the remaining doubts concerning the protection of fundamental rights from the point of view of national law and the national courts?
23.2.2.1. ‘Common Constitutional Traditions’ in the Charter
The notion of ‘constitutional traditions common to the Member States’
appears on several occasions in the text of the Charter. It is stated in the Preamble that the Charter ‘reaffirms the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States’, after which follows the reference also to a series of specified interna- tional treaties and the case law of the two European Courts (Luxembourg and Strasbourg). The statement may be considered an affirmation of the the- ory of equivalent protection as propounded by the German Constitutional Court and as laid down in the German Constitution. The reference does not re-appear in the specific provisions, but it is used at several instances in the Explanatory Note. It has however been pointed out that these references do not succeed in establishing that these rights are in fact common to all the Member States.22
The notion of ‘constitutional traditions common to the Member States’
in the Charter suffers the same deficiencies and weaknesses as in the case law of the Court of Justice. Firstly, and without looking at specific rights, constitutional rights have a very different status in the various Member States. In Italy and Germany, both dualist and both comprising a consti- tutional court with jurisdiction in the area of fundamental rights, consti- tutional fundamental rights possess a much more privileged role than in countries like the Netherlands and France, where much of the judicial human rights protection depends on the ECHR and its application by the national courts. Secondly, even in countries where the judicial protection of constitutional rights exists, its prominence will vary, depending on the means of judicial enforcement of those rights, for instance the availability of a constitutional complaint procedure such as Verfassungsbeschwerdeor amparo. Turning to specific rights, it is extremely difficult to detect the
21 Of course, this is only a partial explanation of why the Charter was adopted, see for a
‘plethora of justification’, Chr., McCrudden, ‘The Future of the EU Charter of Fundamental Rights’, Jean Monnet Working Paper, 10/01, at 7.
22 SeeLFM Besselink, ‘The Member States, the National Constitutions and the Scope of the Charter’, 8 MJ, 2002, 68, at 70 et seq.
‘common constitutional tradition’ with respect to a particular right. This has to do with definition of a particular right, scope of protection, level of protection, possible limitations and so forth. These difficulties have been described in the literature on the standard of protection which the Court of Justice is to offer in the context of its general principles case law.
23.2.2.2. Article 53 of the Charter23
Article 5324 relates to the situation where the protection offered by the Charter does not meet the standard of protection offered by the Member States’ constitutions in their respective fields of application. The provision is much wider, and also (or perhaps more importantly) refers to the situ- ation where the level of protection offered by the Charter appears lower than that of treaties in their respective fields of application. Its relevance will concern mostly the Charter–ECHR relationship. This aspect of Article 53 will not be discussed here.
The aim of Article 53 is to make clear that the Charter can only serve as minimum protection, and will not stand in the way of further protection offered by other human rights documents. Charter protection cannot be infe- rior to that afforded by those other documents. In the original version of the provision,25mention was made only of the ECHR. From the outset there had been a concern within the Council of Europe and in other quarters that the Charter would dilute the protection offered by the ECHR,26and Article 53 was intended to remove any doubt about this matter. Article 53 was clearly inspired by Article 53 of the ECHR,27and the Council of Europe observers in the Convention have apparently contributed much to the provision.
23 This section draws heavily on JB Liisberg, ‘Does the EU Charter of Fundamental Rights Threaten the Supremacy of Community Law?’, 38 CML Rev(2001) 1171, at 1172 et seq., and the somewhat more complete version ‘Does the EU Charter of Fundamental Rights Threaten the Supremacy of Community Law? Article 53 of the Charter: a fountain of law or just an inkblot?’, Harvard Jean Monnet Working Paper 04/01.
24 Article 53 provides that ‘Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of appli- cation, by Union law and international law and by international agreements to which the Union, the Community or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ Constitutions’.
25 On the drafting history of Article 53 see JB Liisberg, ‘Does the EU Charter of Fundamental Rights Threaten the Supremacy of Community Law?’ 38 CML Rev(2001) 1171, at 1172 et seq., and the somewhat more complete version ‘Does the EU Charter of Fundamental Rights Threaten the Supremacy of Community Law? Article 53 of the Charter: a fountain of law or just an inkblot?’, Harvard Jean Monnet Working Paper 04/01.
26 See on this, and on the question whether the Charter has avoided the risk of dilution or duplication feared within the Council of Europe, P Lemmens, ‘The Relation between the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights – Substantive Aspects’, 8 MJ, 2001, 49.
27 ‘Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party’.
Comparable provisions can be found also in other international texts, and in earlier human rights draft catalogues drawn up previously by the European Parliament. Article 27 of the European Parliament’s Declaration of Fundamental Rights and Freedoms of 12 April 1989 provided that ‘No provision in this Declaration shall be interpreted as restricting the protection afforded by Community law, the law of the Member States, international law and international conventions and accords on fundamental rights and freedoms or as standing in the way of its development’.28The European Parliament’s Draft Constitution for the European Union, adopted on the basis of the Herman report, contained a revised version of Article 27 (point 24 of Title VII): ‘No provision in this Constitution may be interpreted as restricting the protection afforded by the law of the Union, the law of the Member States, and international law’.29 Accordingly, the reference was not only to international treaties, but to international law generally. More importantly, the provisions stated that ‘nothing in this Constitution’ could restrict protection afforded else- where, and was thus not restricted to the provisions relating to funda- mental rights. The text appeared to challenge the supremacy of Union law.
Yet, the Draft also contained a supremacy clause in Article 1(6) stating that
‘The law of the Union takes precedence over the law of the Member States’. It was not however clear how both provisions were to be read in conjunction.
23.2.2.2.1. ‘...in their Respective Fields of Application...’
The phrase ‘in their respective fields of application’ is not clear on a first reading of the provision. Apparently, it was inserted at a rather late stage of the drafting of the provision, and without explicit explanation from the Secretariat. According to Liisberg, who bases his information on ‘informa- tion from EU officials closely involved in the drafting’, the proviso was inserted as a result of extensive consultations between the Legal Service of the Commission and the Secretariat (i.e.members of the Legal Service of the Council). The intention was apparently was to foreclose any doubt about the supremacy of Community law over national Constitutions, and the understanding of the two Legal Services was that the revised wording would make it clear that national Constitutions could only prevail in the limited sphere of exclusive national competence.30If that is the intended meaning of Article 53, it is rather peculiar, given the fact that the Charter
28 Declaration of Fundamental Rights and Freedoms of the European Parliament of 12 April 1989 [1989] OJ C 120/51. Note that Article 27 refers to ‘the law of the Member States’ in general and not to the Constitutions; it does not contain the ‘in their respective fields of application’ proviso, and is not restricted to international conventions to which allthe Member States are party.
29 European Parliament’s Draft Constitution for the European Union of 10 Ferbuary 1994 [1994] OJ C 61/155.
30 JB Liisberg, ‘Does the EU Charter of Fundamental Rights Threaten the Supremacy of Community Law? Article 53 of the Charter: a Fountain of Law or just an Inkblot?’, Harvard Jean Monnet Working Paper 04/01, at 11.
is addressed to the Member States only insofar as they are implementing Union law (Article 51(2) Charter), and in the sphere of exclusive national competence the Charter does not apply at all.
23.2.2.2.2. ‘...by the Member States Constitutions...’
In an early draft of the provision, the reference to national law was broader and was more general to ‘the law of the Member States’. Later, the reference to national law was limited to national Constitutions. During the discussion on the draft provision in the Convention, it appeared that one of the main goals of the reference to national Constitutions would be to emphasise that the Charter would not necessitate a constitutional amendment in the Member States, and that national Constitutions would not be replaced by the Charter.31However, the text at first sight seems to threaten the supremacy of Community law.
The plural in the final phrasing may cause problems of interpretation:
Does it refer only to rights recognised by allMember States’ Constitutions?
This interpretation does seem to be supported by the reference to ‘interna- tional agreements to which (..) allthe Member States are party’. However, neither the drafting history, nor the aim of the provision seems to warrant such a strict interpretation.32 The intention was to make clear that the Charter only provides minimum protection, and the reference to national Constitutions was inserted to make clear beyond a doubt that the national Constitutions need not be adapted and are not replaced by the Charter.
23.2.2.2.3. Does Article 53 Challenge the Supremacy of Community Law?
The aim of the provision clearly was not to introduce an explicit exception to the general principle of supremacy, or to sanction the case law of some of the constitutional courts. Yet, a national constitutional court could well find support in the text of Article 53 of the Charter to maintain its case law limiting the supremacy of Community law by national fundamental rights protection.
Liisberg has argued that Article 53 does not threaten the supremacy of Community law. While he does accept that Article 53 might be sufficiently ambiguous or difficult to understand to attract attention from national judges protective of national fundamental rights,33he argues that a close reading of the text (‘nothing in this Charter’), its political purpose (to send the signal that the Charter is not intended to replace national Constitutions) and perhaps most importantly, its source of inspiration
31 Ibidem, at 15–17, and 35.
32 See also LFM Besselink, ‘The Member States, the National Constitutions and the Scope of the Charter’, 8 MJ, 2001, 68, at 74.
33 JB Liisberg, ‘Does the EU Charter of Fundamental Rights Threaten the Supremacy of Community Law? Article 53 of the Charter: a Fountain of Law or just an Inkblot?’, Harvard Jean Monnet Working Paper 04/01, at 40.
(Article 53 ECHR), all confirm that Article 53 and its reference to consti- tutions of the Member States leave the principle of supremacy of Community law intact.34
The first argument states that since the provision is limited to the Charter itself and not Union law in general, the Charter does not rule out that other Community instruments may have such an effect of restricting or adversely affecting human rights as recognised by inter alia the Member States’ Constitutions. However, that appears to be the very pur- pose of the provision, namely to guarantee that the level of protection will not be decreased, that the advent of the Charter cannot be used as an argument to restrict protection offered elsewhere, including the national Constitutions. It contains at least a hint – even if mistaken – that the supremacy of Community law may not be absolute.
Liisberg’s second argument (the political intention of the provision) is a strong one at face value. However, if the Charter does become a binding document and the Court of Justice is to interpret it, it is unlikely that the Court of Justice will look into the drafting history of the provision. The Court does not look at ‘original intent’, it starts from the text, and mostly interprets Community law teleologically. It is on the other hand to be expected that the Court will interpret in favour of the absolute principle of ultimate supremacy. The argument would then be that Article 53 cannot be considered as an exception to the principle of supremacy because such a far-reaching and revolutionary modification of a constitutional principle would at least have to be stated explicitly in clear and ambiguous terms and could not be brought about by accident and in an almost creeping manner.
However, ‘malignant’ national courts do not start from the premise of absolute supremacy, and they may abuse the provision to their advantage.
Thirdly, Liisberg states that Article 53 of the Charter is entirely inspired by its equivalent in the ECHR, Article 53 ECHR, and accord- ingly, that the only natural meaning of Article 53 of the Charter is to see it as the equivalent of Article 53 ECHR. As such, the provision is sim- ply a politically valuable safeguard, found in almost all human rights instruments, which serves to calm any concerns that the Charter could be used as a pretext to cut down protection enjoyed on the basis of existing rules. Nevertheless, Liisberg does recognise that the Community (and should one add Union) legal order is completely dif- ferent from the legal order devised by the ECHR within the Council of Europe. One might even take it a step further and argue that the ECHR is not concerned with the creation of a legal order. It is concerned only with human rights protection, and controls that the human rights pro- tection in the Contracting States does not fall below the standard set out
34 JB Liisberg, ‘Does the EU Charter of Fundamental Rights Threaten the Supremacy of Community Law?’ 38 CML Rev(2001) 1171, at 1191.
in the ECHR, which is considered a minimum standard. The ECHR allows for Contracting Parties to award a higher level of protection, unless that protection would entail the violation of another right pro- tected under the Convention. The ECHR does not concern itself with creating uniformity of any kind.35Under current Union law, however, the principle of supremacy was introduced in order to ensure that Member States cannot unilaterally deviate from what has been agreed in common, and this is so whatever the grounds that a Member State would invoke to escape the application of Community law, including national fundamental rights.36A similar provision in the Charter, if it were to become binding, does not necessarily have the same meaning as Article 53 of the ECHR: under the current position, Community law doesprevent a Member State, in specific cases, to grant a ‘higher’ level of protection, if this should imply that Community law is not applied within that Member State. Say that Germany had been allowed in the bananas cases to offer a ‘higher level of protection’ to the importers of bananas as prevailing under the German Constitution and had been allowed to protect their right to conduct their business in German style, that would have seriously affected the application of the Bananas regu- lation in Germany. The parallel with Article 53 of the ECHR is thus only partially correct, and does not pay due regard to the principle of supremacy of Community law.
The least one can conclude is that Article 53 is not well drafted, and while it may be intended as merely giving a political signal to ease any concerns about lowering the existing standards of protection in general, it is at least ambiguous and may be open to abuse. The text should have been revised, but has not been done and the text of Article 53 has not been touched. However, the provision must now be read in conjunction with the primacy provision of Article I-6 of the TCE.37