How Fundamental are Fundamental
Principles? Primacy and Fundamental
Rights after Lisbon
Lucia Serena Rossi*
I. The Primacy of EU Law and its Limits:
A Gentlemen’s Agreement
The primacy of European law over the laws of Member States is a well-known
public secret which apparently is best not written into the European Treaties.
This has been confirmed by the recent evolution from the Constitutional Treaty
to the Lisbon Treaty with the over 40-year-old principle, finally codified by the
former (and prior to that by the Giscard Draft), being deleted by the latter. In
that context, politicians realised what lawyers were already aware of and, horrified, vetoed the codification of the principle.
It is peculiar that the most fundamental of the EU legal order’s fundamental
principles has never succeeded in attaining an explicit affirmation in the EC-EU
founding treaties, despite their many revisions. Thus, the principle of primacy
remains a judge-made rule which, nonetheless, ensures that EU law is recognized
by all Member States as outweighing national laws.
Such a state of affairs, not particularly worrying for common law legal systems,
is puzzling for many civil law countries where written Constitutions have been
modified in order to recognize a principle that, apparently, cannot be ratified by
all Member States.
A. Yes, but . . . (Constitutional or Supreme Courts and
the Concept of Primacy)
It is briefly worth recalling that supremacy has been introduced by the EU judicial
system which itself comprises the ECJ and national Constitutional or Supreme
Courts.
* Professor of EU Law, Director Interdepartmental Research Centre on EU LAW (CIRDCE)
University of Bologna.
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In light of the enduring silence of the Treaties, a long-distance dialogue
between national Constitutional Courts and the ECJ has led the former to define
their position as regards the delicate question of EU law in the national hierarchy
of legal values.
It is important to note that the theoretical starting point was not identical in
all the original members of the European Economic Community. Whilst France
and Belgium recognized the supremacy of international treaties over subsequent
national laws, other national Constitutions, which—as in Italy—had been
adopted prior to the signature of the 1951 European Coal and Steel Community
Treaty and 1957 EEC Treaty, did not contain similar provisions.
As is well known, in Van Gend & Loos¹ the ECJ qualified the European
Community as ‘a new legal order of international law for the benefit of which
the states have limited their sovereign rights, albeit within limited fields, and the
subjects of which comprise not only the Member States but also their nationals’
and in Costa-Enel ² it pronounced the primacy of EU law: ‘Contrary to ordinary
international treaties, the EEC Treaty has created its own legal system which . . .
became an integral part of the legal systems of the Member States and which
their courts are bound to apply.’
The initial acceptance of such developments was not easy for the Italian
Constitutional Court, especially in light of the fact that only a few months
before (in the same case, ie Costa-Enel) it had stated that previous (European)
rules could be repealed by later (Italian) legislation.³ That being so, a few years
later, in Frontini,⁴ the same Court held that Article 11 of the Italian Constitution
(which had originally been drafted with the United Nations in mind) allowed
for the necessary limitations of sovereignty for membership of the European
Community. Nevertheless, the Court considered that such a surrender of sovereignty could not be unlimited. In particular, Community rules could not outweigh the protection of the fundamental rights or the fundamental principles
enshrined in the Italian Constitution. It was only with the Granital⁵ case that the
Italian Court finally recognized that, as prescribed by the ECJ in Simmenthal,⁶
all national judges have a duty to set Italian law aside when it is incompatible
with EU law without the need to request the authorization of the Constitutional
Court. Nonetheless, it maintained the same exceptions set in Frontini: whenever
the European rule infringes a fundamental principle of the Italian constitutional
system or a fundamental right, it will be for the Constitutional Court to decide
¹ Case 26/62 [1963] ECR 1.
² Case 6/64 Costa-Enel [1964] ECR 585.
³ See Corte Costituzionale Italiana, n 14/1974, para 14.
⁴ See Corte Costituzionale Italiana, n 173/1983.
⁵ See Corte Costituzionale Italiana, n 170/1984. See inter alia Gaja, ‘New developments in a
Continuing Story: the relationship between EEC Law and Italian Law’ (1990) 27 CML Rev 83–95,
Adinolfi, ‘The Judicial Application of Community Law in Italy’ (1998) 35 CML Rev 1313–1369.
⁶ Case 106/1977 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629.
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what rule should prevail.⁷ Such exceptions were called ‘counterlimits’ by those
who considered EC primacy as a limit to the binding force of Italian law.
The idea that certain essential national values can defy EC law primacy was
shared by other Constitutional Courts which re-affirmed their competence
to assess conflicts between fundamental values and EU Law. Throughout the
years, however, the primacy has gradually but universally been accepted as the
rule, with national limits coming to be regarded as exceptions. Each Court,
however, created its own theory, depending on the characteristics of its national
Constitution.⁸
In Solange I⁹ the German Constitutional Court held that the applicability
of secondary Community law in the Federal Republic was subject to a fundamental rights review by the Bundesverfassungsgericht. Subsequently, in Solange
II¹⁰ it changed its stance, declaring that it would no longer control the compatibility of Community law with German fundamental rights, ‘as long as the
European Communities, and in particular the case law of the Court of Justice
of the European Communities, generally ensured an effective protection of fundamental rights’.¹¹ Following some reserve in the Maastricht Urteil,¹² in the
Banana Case¹³ the same Court stated that its control would only apply if the EC
protection of fundamental rights no longer functioned, a hypothesis that must
not be evaluated in light of a single case, but of a wider perspective, revealing
general structural deficits on the European level.¹⁴ Consequently, the applicant
must prove that European law, and the judgments handed down by the Court of
Justice of the European Communities, have fallen below the standard of protection requested by the ‘Solange II’ decision.
As regards the French Conseil Constitutionnel, we can see that it originally argued that a Community Act could not be transposed into French law if
⁷ In the case Fragd, Corte Costituzionale Italiana, n 232/1989, a violation of the principle of
due process by the Court of Justice (annulling regulations without retroactive effect) could have
been envisaged. The Italian Constitutional Court went close to declaring such a violation, but diplomatically avoided doing so. After that judgement, the ECJ followed the Italian Court, changing its
practice.
⁸ See on this subject Besselink ‘Entrapped by the Maximum Standard: on Fundamental Rights,
Pluralism and Subsidiarity in the European Union’ (1998) 35 CML Rev 629–680.
⁹ Decision of the German Federal Constitutional Court of the 29 May 1974, BVerfGE 37, 279.
This decision followed the ECJ judgment of 1970 in the Case 11/70 Internationale Handelsgesellschaft
mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel ) [1970] ECR 1125. This would apply
‘as long as the integration process has not progressed so far that the Community law also receives a
catalogue of fundamental rights decided on by a parliament and of settled validity, which is adequate
in comparison with the catalogue of fundamental rights contained in the Grundgesetz.’
¹⁰ Decision of the German Federal Constitutional Court of 22 October 1986, BVefGE 73,
339–388.
¹¹ Decision of the German Federal Constitutional Court, cited above at n 9, paras 378–381.
¹² Decision of the German Federal Constitutional Court of the 12 October 1993, 2 BvR L 134/92
and 2159/92.
¹³ Decision of the German Federal Constitutional Court of 7 June 2000, 2 BvL 1/97.
¹⁴ Dieter H Scheuing, ‘The Approach to European Law in German Jurisprudence’ 5 German Law
Journal No 6 2004, available online at: <http://www.germanlawjournal.com/article.php?id=446>.
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inconsistent with an ‘express provision of the French Constitution’.¹⁵ Such an
attitude was subsequently overturned to cover conflicts with the ‘national identity of Member States inherent to their fundamental political and constitutional
structures’,¹⁶ and finally ‘rules and principles inherent to the French constitutional identity’.¹⁷
On the other hand, the Spanish Constitutional Court has drawn a distinction
between the primacy of EU Law and the supremacy of the Constitution itself,
with the latter being seen as hierarchically superior to the former.¹⁸
Where the national system does not provide for a Constitutional Court, the
question has been settled by other Supreme jurisdictions. The House of Lords has
rejected the doctrine of implied repeal for certain ‘constitutional statutes’ such
as the 1972 European Community Act stating that due to their importance they
may only be repealed or amended by Parliament’s express intervention.¹⁹ In the
event of a contrast between EU legislation and fundamental or constitutional
rights guaranteed by English law (this must probably also be read to comprise
cases of incompatibility with other ‘constitutional statutes’²⁰), the question is
whether the European Communities Act can be considered as wide enough to
incorporate that measure into national law. The principle of EU law supremacy
must therefore originate from, and be authorized by, Parliament. Such an authorization is not unconditional and absolute given that, according to English constitutional law, Parliament does not have the power to subordinate the doctrine of
Parliamentary sovereignty to the principle of EU supremacy.
The above analysis could include a number of other Constitutional or Supreme
Court doctrines²¹ which accept the primacy of European law in different guises
¹⁵ Décision n 2004–496 DC du 10 juin 2004, loi pour la confiance dans l’économie numérique.
¹⁶ Décision n 2004–505 DC du 19 novembre 2004, Traité établissant une Constitution pour
l’Europe, See Richards, ‘The Supremacy of Community Law before the French Constitutional Court’
31 EL Rev 2006, 499–517.
¹⁷ Décision n 2006–540 DC du 27 juillet 2006, Loi relative au droit d’auteur et aux droits voisins
dans la société de l’information (DADVSI).
¹⁸ Tribunal Constitutional Declaration of 13 December 2004.
¹⁹ English and Wales High Court (Administrative Court), decision [2002] EWHC 195 Admin,
Thoburn v Sunderland City Council (<http://www.bailii.org/ew/cases/EWHC/Admin/2002/195.
html>). See S Boyron, ‘In the Name of European Law: the Metric Martyrs case’ (2002) 27 ELR
771–779; A Biondi, ‘La supremazia dell’ordinamento comunitario e i “martiri del sistema metrico”
nell’ordinamento inglese’, Quaderni Costituzionali 2003 847–848.
²⁰ Lord Justice Laws, in Thoburn v Sunderland City Council, cited above at n 19, qualifies as of ‘constitutional statutes’ the Magna Carta, the Bill of Rights 1689, the Acts of Union 1707, the Reform
Acts, the Human Rights Act 1998, the Scotland Act 1998, the Government of Wales Act 1998, and
the European Communities Act 1972. Such statutes are, because of their constitutional importance,
to be protected from implied repeal and, whilst not entrenched in English law, can only be repealed
by the express intervention of Parliament.
²¹ The Slovenian Constitution declares that international organizations to which the exercise of
part of the sovereign rights is transferred must be based ‘on respect for human rights and fundamental freedoms, democracy and the principles of the rule of law’. According to Ciril Ribičič, Judge of
the Constitutional Court of the Republic of Slovenia, the Constitutional Court will not be allowed
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but which, in principle, do not consider it as absolute. Therefore, it can be argued
that each national legal order has taken a different path to accepting the primacy
of European Law. The essential values to be preserved—and which might restrict
the supremacy of EU law—are not interpreted in the same way throughout the
Member States.
From this perspective, and if one considers that the European legal system and
national Constitutions are distinct elements forming a single legal order (monistic approach), they would be interlocked in an odd hierarchy. At the summit
we would find certain national constitutional fundamental principles with hierarchical superiority over European law. The latter would then itself have supremacy over non-fundamental national constitutional principles and ordinary
national laws which would represent the lowest tier of the hierarchy. One should
note that as the top fundamental principles are not identical, they would retain a
national character and thus would need to be defined by the competent national
Constitutional Court.
This representation could also be translated into a dualistic approach, without
changing the final result. Even if the relationship were not considered as hierarchical but was based on an attribution of competences, the final word on the delimitation of such competences would be a prerogative of national Constitutional or
Supreme Courts.
B. No, but . . . (The ECJ on Constitutional Values as
Limits to Primacy)
As stated above, all Courts (national and/or European) seem to have developed
their own theory on the supremacy of EU law. Nonetheless, a common element
emerges: the protection of certain fundamental values is a potential limit to the
supremacy of EU law.
That being so, the idea of what principles and what rights are so fundamental
to prevent the application of Community law may have different interpretations
when the unique parameter is the national Constitution.
The Court of Justice (ECJ and Court of First Instance (CFI)) have often
explicitly rejected that national constitutional principles can limit the force of
European law. This is apparent in Kreil,²² where the principle of equality stemming from the Treaty was considered more important than the German ‘constitutional’ prohibition of enrolling women in the army. Moreover, in cases such as
to react in cases in which national interests in general are violated by EU law, but only for violations
concerning human rights and fundamental freedoms, democracy, and the principles of the rule of
law. See Implementing European Standards into the Case Law of the Constitutional Court, available
online at: <http://www.us-rs.si/en/index.php?sv_path=3583,3367,3368,3379>.
²² Case C-285/1998 Tanja Kreil v Bundesrepublik Deutschland [2000] ECR I-69.
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Internationale Handelsgesellshaft,²³ Dow Chemical,²⁴ and Gonnelli,²⁵ the Court
has reiterated that in so far as the EU Treaty contains (more or less explicit)
derogations such as public policy, mandatory requirements etc, Member States
cannot claim infringement of fundamental rights or principles formulated by
their national Constitutions in order to reject the validity or binding effects of
a Community measure. Finally, the Court has also held that a Member State
cannot invoke provisions, practices, or situations present in its domestic legal
order (including those resulting from the internal constitutional organization) to
justify the failure to observe obligations arising under Community law.²⁶
Notwithstanding its express refusal to confirm the existence of national constitutional limits, the ECJ has shown its willingness to grant them a substantial value rapidly developing the concept of ‘essential principles’ of the European
legal order to assess the legality of Community Acts. Nonetheless, the reasoning adopted by the ECJ stood in stark contrast with that followed by national
Constitutional Courts. In fact, as the EEC Treaty was originally conceived on
a functional basis, the general category of fundamental rights received no mention, forcing the Court to refer to external sources: ‘common constitutional
traditions’,²⁷ and the European Convention on Human Rights.²⁸
²³ See ECJ in Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für
Getreide und Futtermittel ) [1970] ECR 1125, para 3: ‘The validity of a Community measure or its effect
within a Member State cannot be affected by allegations that it runs counter to either fundamental rights
as formulated by the constitution of that state or the principles of a national constitutional structure.’
²⁴ ‘The validity of Community measures can only be judged in the light of Community law and, therefore, reference either to infringements of fundamental rights as formulated in the Constitution of a Member
State or to the principles of a national constitutional structure cannot affect the validity of a Community
measure or its effect in the territory of that State’. See ECJ Joined Cases 97/87 to 99/87 Dow Chemical
Iberica SA, and others v Commission of the European Communities [1989] ECR 03165, para 38.
²⁵ See order of the CFI, Case T-231/02 Gonnelli and AIFO v Commission of the European
Communities [2004] II-1051, para 57: ‘Furthermore, in their observations on the objection of inadmissibility, the applicants cannot maintain that, to remedy this alleged lack of judicial protection, the
Italian Constitutional Court could refrain from applying Community measures contrary to the fundamental rights proclaimed in the national Constitution since, in accordance with settled case-law,
Community law has primacy over national law (Case 6/64 Costa [1964] ECR 614)’.
²⁶ See, inter alia, Case C-87/02 Commission v Italy [2004] ECR I-5975, para 38; Case C-102/06,
Commission v Austria, not published in the ECR, para 9; Case C-212/06 Government of the French
Community and Walloon Government v Flemish Government, not published in the ECR.
²⁷ See Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide
und Futtermittel ) [1970] ECR 1125, para 12: ‘ . . . fundamental rights form an integral part of the
general principles of law, the observance of which it ensures in safeguarding these rights, the court
is bound to draw inspiration from constitutional traditions common to the member states, and it
cannot therefore uphold measures which are incompatible with fundamental rights recognized and
protected by the constitutions of those states’.
²⁸ Case 4/73 J Nold, Kohlen- und Baustoffgroßhandlung v Commission of the European Communities)
[1974] ECR 491, para 13: ‘fundamental rights form an integral part of the general principles of law,
the observance of which it ensures in safeguarding these rights, the court is bound to draw inspiration from constitutional traditions common to the member states, and it cannot therefore uphold
measures which are incompatible with fundamental rights recognized and protected by the constitutions of those states. Similarly, international treaties for the protection of human rights on which the
member states have collaborated or of which they are signatories, can supply guidelines which should
be followed within the framework of community law.’
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Although having rejected the idea that national Constitutions may formally
limit EC law primacy, the ECJ seems to grant the former a substantial role as
parameter of validity of Community acts. However, the reference to common
constitutional traditions is not a mere renvoi as the Court tends to interpret such
traditions in the light of the EC legal framework,²⁹ in an attempt to declare that
they are also fundamental principles of the EU/Community. In Hauer the Court
stated that common constitutional traditions are a ‘source of inspiration’ and
international treaties ‘can supply guidelines which should be followed within the
framework of community law’.³⁰
In more recent case law the Court simply, and almost mechanically, refers to
common constitutional traditions without giving further details (for instance
concerning the principle of retroactive application of more lenient penalties³¹).
The concept of common constitutional tradition is not to be understood as
the sum of all the rules contained in national Constitutions, nor does the Court
attempt to compare all Constitutions in order to determine a sort of minimum
common denominator. The ECJ merely limits its evaluation to certain constitutions, starting with that of the claimant State and concluding that a certain
principle is common to other Constitutions and, more importantly, that it is to be
considered as a fundamental principle of the community legal order. By carrying
out such an analysis, national constitutional values, once external to EC law, are
internalized, becoming an integral part of the Community system.
Such a logic ensures that ‘pride’ is preserved. In fact, respect for national values is guaranteed without endangering the primacy of EC law, and the EC legal
order appears to be a self-contained system. However, and above all, it is up to
the ECJ to determine what should be considered ‘fundamental’ and/or ‘common’. The Court, in fact, still refers to an ‘EU’ notion of fundamental rights,
which embraces national Constitutions, the European Court of Human Rights
(ECHR) and, of late, the Charter of Fundamental rights.
In recent years the Luxembourg judges have not hesitated to prioritize fundamental rights when weighing them against market freedoms. In certain cases,
reference is explicitly made to the specific national Constitution at issue, as in
²⁹ Case 44/79 Hauer v Land Rheinland-Pfalz [1979] ECR 3727, para 14: ‘the question of a possible infringement of fundamental rights by a measure of the community institutions can only be
judged in the light of community law itself. The introduction of special criteria for assessment stemming from the legislation or constitutional law of a particular member state would, by damaging the
substantive unity and efficacy of community law, lead inevitably to the destruction of the unity of the
common market and the jeopardizing of the cohesion of the community.’
³⁰ Case 44/79, Hauer, ibid, para 15. See also Case 29/69 Erich Stauder v City of Ulm—Sozialam
[1969] ECR 00419, para 7; Case C-274/99 Bernard Connolly v Commission of the European
Communities [2001] ECR I-01611, para 37; Case C-283/05 ASML (ASML Netherlands BV v
Semiconductor Industry Services GmbH (SEMIS)) [2005] ECR I-12041, para 26.
³¹ See Joined Cases C-387/02, C-391/02, and C-403/02, Criminal Proceedings against Silvio
Berlusconi and Others [2005] ECR I-3565, paras 67 to 69; Case C-45/06 Campina GmbH & Co, formerly TUFFI Campina emzett GmbH v Hauptzollamt Frankfurt (Oder) [2007] I-2089, para 32; Case
C-420/06 Rüdiger Jager v Amt für Landwirtschaft Bützow, not published in the ECR.
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Schmidberger³² and Omega.³³ Moreover, the ECJ seems eager to appear as a
Constitutional Court and its case law concerning the protection of fundamental
rights has sometimes been very radical. In Carpenter,³⁴ for example, the scope of
the Treaty was clearly over-stretched in order to protect individual rights against
a Member State.
If a common ground for the evaluation of fundamental rights is provided to all
Member States by the European Convention of Human Rights (which according
to the Court has a ‘special significance in that respect’³⁵), the same cannot be said
for common constitutional traditions.
In particular, it is up to the Court to decide when a constitutional tradition can
be qualified as ‘common’. Constitutional values which, although very significant
for one Member State, are not considered as common constitutional traditions,
may not be worthy of regard for the ECJ.
In a few cases the ECJ has granted certain deeply-rooted national constitutional values special consideration, seemingly of a more substantial and political
nature than a formal and legal one. In Grogan,³⁶ the Court succeeded (with a
certain amount of difficulty) in interpreting the Common market (and its own
jurisdiction) so as allow the Irish prohibition on abortion to limit the free movement of services and the fundamental right of expression.
In other cases the Court reconciles national constitutional principles and
Community Acts by exploiting the flexibility allowed in the transposition of
directives. In Fazenda Pública,³⁷ the Court was asked to determine whether, when
³² Case C-112/00 Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich
[2003] ECR I-5659 para 69: ‘the Austrian authorities were inspired by considerations linked to
respect of the fundamental rights of the demonstrators to freedom of expression and freedom of
assembly, which are enshrined in and guaranteed by the ECHR and the Austrian Constitution’, and
para 74: ‘Thus, since both the Community and its Member States are required to respect fundamental rights, the protection of those rights is a legitimate interest which, in principle, justifies a restriction of the obligations imposed by Community law, even under a fundamental freedom guaranteed
by the Treaty such as the free movement of goods’.
³³ Case C-36/02 Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin
der Bundesstadt Bonn [2004] ECR I-9609, para 35: ‘Since both the Community and its Member
States are required to respect fundamental rights, the protection of those rights is a legitimate interest
which, in principle, justifies a restriction of the obligations imposed by Community law, even under a
fundamental freedom guaranteed by the Treaty such as the freedom to provide services’.
³⁴ Case C-60/00 Mary Carpenter v Secretary of State for the Home Department [2002] ECR
I-6279.
³⁵ See, inter alia, Case C-260/89 Elliniki Radiophonia Tiléorassi AE and Panellinia Omospondia
Syllogon Prossopikou v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas and Nicolaos Avdellas and
others [1991] ECR I-2925, para 41; Case C-274/99 Bernard Connolly v Commission of the European
Communitie [2001] ECR I-01611, para 37; Case C-94/00 Roquette Frères SA v Directeur général
de la concurrence, de la consommation et de la répression des fraudes, and Commission of the European
Communities [2002] ECR I-9011, para 25; Case C-112/00 Schmidberger, cited above at n 32, para 71
and Case C-36/02, Omega, cited above at n 33, para 33.
³⁶ Case C-159/90 The Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan
and others [1991] ECR I-4685.
³⁷ Case C-446/98 Fazenda Pública v Câmara Municipal do Porto—Reference for a preliminary ruling: Supremo Tribunal Administrativo—Portugal [2000] ECR I-11435.
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faced with a national provision empowering the Minister of Finance to define
significant distortions of competition on a case-by-case basis, the Portuguese
Court should find that provision unconstitutional, for failure to comply with the
principle that taxation must have a legal basis, or whether it should apply it by
virtue of the fact that it complied with the Community Sixth Directive (which
has primacy over national Constitutions). The Court considered that, since the
Sixth Directive does not require that in transposing it Member States grant an
administrative authority power to specify what is covered by the concept of ‘significant distortions of competition’, it is possible for the former to adopt other
methods of transposition which are consistent both with the Directive and with
a national Constitution. Similar reasoning has been applied with regard to the
Swedish Constitution in Unibet.³⁸
Finally, the Court has frequently evaluated what could generally be defined
as ‘constitutional cultures’ of the Member States—when they are invoked as a
means for avoiding the application of general common rules—with the same
strict test of proportionality employed to assess mandatory requirements. This
is apparent in the case law concerning language and protection of minorities
(Groener,³⁹ Mutsch,⁴⁰ Otto Bickel e Ulrich Franz,⁴¹ Angonese⁴²), in some aspects of
citizenship, such as the regulation of surnames (Garcia Avello⁴³) or the conditions
of the right to vote (Eman Sevinger⁴⁴), where the weighing of the national interest
is carried out with reference to the community principle of non-discrimination
on grounds of nationality. Furthermore, in cases involving the organization of
armies (Sirdar,⁴⁵ Kreil,⁴⁶ Dory⁴⁷) the Court, although recognizing that Member
States possess exclusive competence to regulate such a subject matter, analysed
³⁸ Case C-432/05 Unibet (London) Ltd, Unibet (International) Ltd v Justitiekanslern [2007] ECR
I-2271.
³⁹ Case C-379/87 Anita Groener v Minister for Education and the City of Dublin Vocational
Educational Committee [1989] ECR 3967. In this case Court accepted the Irish Minister for
Education’s refusal to appoint a Dutch art teacher who had failed a test intended to assess her knowledge of the Irish language on the ground that teachers have an essential role to play, not only through
the teaching which they provide but also by their participation in the daily life of the school and the
privileged relationship which they have with their pupils.
⁴⁰ Case 139/84 Criminal Proceedings against Robert Heinrich Maria Mutsch [1985] ECR 2681.
According to the Court, the principle of free movement of workers requires that a worker who is a
national of one Member State and habitually resides in another Member State be entitled to require
that criminal proceedings against him take place in a language other than the language normally used
in proceedings before the court which tries him if workers who are nationals of the host Member State
have that right in the same circumstances.
⁴¹ Case C-274/97 Criminal Proceedings against Horst Otto Bickel and Ulrich Franz [1998] I-7673.
⁴² Case C-281/98 Roman Angonese v Cassa di Risparmio di Bolzano SpA [2000] ECR I-4139.
⁴³ Case C-148/02 Carlos Garcia Avello v État belge [2003] ECR I-11613.
⁴⁴ Case C-300/04 MG Eman and OB Sevinger v College van Burgemeester en wethouders van Den
Haag [2006] ECR I-8055.
⁴⁵ Case C-273/97 Angela Maria Sirdar v The Army Board and Secretary of State for Defence [1999]
ECR I-7403.
⁴⁶ Case C-285/98 Tanja Kreil v Bundesrepublik Deutschland [2000] ECR I-69.
⁴⁷ Case C-186/01 Alexander Dory v Bundesrepublik Deutschland [2003] ECR I-2479.
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the consequences that such an organization could have on the community principle of gender equality in employment.
In conclusion, it may be argued that the primacy of European law and the hierarchy of supreme values are still founded on a sort of constitutional custom, or
on what may be better defined as a gentlemen’s agreement, ie a silent compromise
among different co-existing theories relating to the foundations of the whole system. Although ambiguous, such a system appears to be effective. The judiciary
of Member States and of the EU, albeit prepared to state their theoretical idea of
hierarchy, carefully avoid its extreme practical application which would provoke
a crisis of the whole system.
Fundamental principles remain a sort of grey area, where vagueness and flexibility are two sides of the same coin. A wise use of the judges’ discretionary powers can create a common system of values, based on the awareness and mutual
respect of diversities.
II. Codifying Primacy: Can Ambiguity be Abandoned?
The Constitutional Treaty, signed in Rome on 29 October 2004, expressly stated
that primary law and law adopted by the institutions of the Union in exercising
competences conferred on it (secondary law) have primacy over the law of the
Member States (Article I-6).
In order to respond to the many criticisms that such a stipulation (already
inserted into the Giscard Draft) had encountered, a Declaration was annexed to
the Constitutional Treaty. The content of such a Declaration was rather ambiguous, providing that ‘the Conference notes that Article I-6 reflects existing case law
of the Court of Justice of the European Communities and of the Court of First
Instance’. It seems that the primary objective was to exclude ECJ competence
in the CFSP. However, it also paved the way for an ‘ECJ-like’ idea of primacy of
EU law (which, as we have seen, is not readily reconcilable with that advanced by
national Constitutional or Supreme Courts).
That being so, the above was offset by Article I-5, according to which the Union
must respect the national identities of Member States, inherent in their fundamental
political and constitutional structures, inclusive of regional and local self-government
and their essential State functions. The fact that the Charter of Fundamental Rights
was part of the Constitutional Treaty could also have been regarded as a further
guarantee of national fundamental values as, in so far as they were mirrored by the
Charter, they gained new strength vis-à-vis incompatible secondary EU law.
Nonetheless, for many Member States this was more alarming than reassuring.⁴⁸ The mere codification of the principle of primacy within a Treaty qualified
⁴⁸ This effect of the word ‘Constitution’ had been foreseen by Dashwood, ‘The Relationship
between the Member States and the European Union/European Community’ (2004) 41 CML Rev
335–381.
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as constitutional not only provoked the indignation of certain ill-informed politician but was also paradoxical for national Constitutional Courts.
Throughout the short life (or quasi-life) of the Constitutional Treaty, many
new judgments on the relationship between national Constitutions and the
Treaty were delivered, in a sort of actio finium regundorum, reaffirming the ultimate sovereignty of national Constitutions’ basic principles. A few examples are the
Spanish and French Constitutional Court decisions on the Constitutional Treaty
itself.⁴⁹
In the same period, Constitutional judgments relating to the Framework
Decision on the European Arrest Warrant show that even when faced with the
same problem, single Constitutional Courts may react differently. As the prohibition to extradite citizens is considered as a fundamental principle by many
Constitutions, the question of constitutional consistency of the Framework
Decision was raised before several national Constitutional Courts, leading to
numerous different solutions. The Polish and Cypriot Courts, although maintaining that it could be infringed by the Framework Decision, concluded that,
in light of the importance of the latter’s aims, the national Constitution was to
be amended.⁵⁰ The German Bundesverfassungsgericht decided that it was the
German law incorrectly implementing the Framework Decision (and not the
Framework Decision itself) that should be declared unconstitutional. The Belgian
Court questioned the compatibility of the Framework Decision with fundamental rights, asking the ECJ for a preliminary ruling. The latter concluded as to an
absence of violation.⁵¹
One of the real (and again paradoxical) effects of the aborted Constitutional
Treaty has been that of bringing the issue of supreme values of the EU legal order
to the fore. The codification of the gentlemen’s agreement between judges proved
to be too challenging, even 40 years after Costa-Enel.
Finally, as a result of the de-constitutionalisation process, all references to primacy have been erased from the text of the Lisbon Treaty. Only a Declaration of
the Conference (n 17 above) recognizes that, in accordance with well settled case
law of the Court of Justice, ‘the Treaties and the law adopted by the Union on
the basis of the Treaties have primacy over the law of Member States, under the
conditions laid down by the said case law’.
Furthermore, the Conference has inserted an Annex containing the Opinion of
the Council Legal’s Service on the primacy of EC law of 22 June 2007,⁵² according to which ‘it results from the case law of the Court of Justice that primacy of
EC law is a cornerstone principle of Community law. According to the Court,
this principle is inherent to the specific nature of the European Community’.
⁴⁹ See Conseil constitutionnel, 19.1.2004, dc n 505/2004, Tribunal Constitucional, 13.12.2004
(1/2004).
⁵⁰ On the Polish judgment, see comment of Leczykiewicz, (2006) 43 CML Rev 1181–1191.
⁵¹ Case C-303/05 Advocaten voor der Wereld VZW v Leden van de Ministerraad [2007] ECR
I-3633.
⁵² Opinion of the Council Legal Service 11197/07 (JUR 260).
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The opinion further states that ‘the fact that the principle of primacy will not be
included in the future treaty shall not in any way change the existence of the principle and the existing case law of the Court of Justice’.
The legal force of these documents is weak. On the one hand, Declarations are
non-binding acts, that can nevertheless be used as secondary means of interpretation. On the other hand, opinions of the Legal service of the Council are internal acts, which may give rise to some external effects only in so far they are part
of the Declaration itself. Whilst a Declaration is better than nothing, it is clearly
insufficient to overcome the inherent ambiguities expressed above.
As already stated, the Constitutional Treaty established an equilibrium
between primacy (Article I-6) and the respect of national systems (Article I-5).
Whilst the Lisbon Treaty relegates primacy to a Declaration, it preserves the
safeguards to national identities. The new Article 4 of the Treaty on European
Union (TEU) sketches the relations between the EU and national legal systems,
combining three different principles. The logical succession of such principles
is probably also intended as a legal one. First comes the classic international law
principle confirming that competences not conferred upon the Union by the
Treaties remain with Member States. Then, the obligation for the EU to respect
the equality of Member States and their national identities, inherent in their
political and constitutional fundamental structures as well as their essential State
functions.
Lastly, we find what has always been the cornerstone of the relations between
the Community and its Member States: the duty of loyal cooperation, with the
final specification of the duties of Member States. Such a duty has been recognized by the ECJ as being mutual, operating in both directions.
As a result of the process of ‘provisional constitutionalization’ and subsequent
‘de-constitutionalization’, the principle of supremacy of EU law is still concealed,
whilst its limits have been reinforced and openly affirmed.
In comparison with the current Treaties, a new obligation emerges for the EU
to respect fundamental identities, constitutional structures, and essential functions of the Member Sates. Such an obligation must be observed by the EU when
acting within its competences. The consequence is that all legislation contrasting with the fundamental constitutional structures of Member States could be
annulled on grounds of violation of the Treaty.
A question arises as to whether the case law of the ECJ on constitutional values
(mentioned above) can still be considered valid. In future, should constitutional
traditions not common to Member States deserve higher respect or can they—
when invoked against fundamental freedoms or other EU principles—still be
limited by a proportionality test? Will the Lisbon Treaty change the current situation? Once again, the final word rests with the Court.
It is worth stressing that the Italian Constitutional Court has recently reaffirmed
the primacy of EU law, qualifying it as ‘constitutional’, while other international
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treaties, notably the ECHR, are merely ‘sub-constitutional’.⁵³ As a consequence
whilst Italian judges may not disapply Italian laws contrary to an international
Convention without requesting a preliminary constitutional ruling, they may, on
the contrary, directly apply European law, calling upon the Constitutional Court
only in cases involving conflicts with fundamental principles of the national
Constitution. Such a strongly pro-European judgment was certainly unexpected,
especially in light of the fact that the new Article 117 of the Italian Constitution
(introduced by the 2001 revision⁵⁴) does not distinguish EU legislation from
international treaties, both being described as limiting the legislative powers of
the Italian State and Regions. It seems that the Italian Court has interpreted the
new constitutional provision in connection with Article 11 of the Constitution in
order to confer a privileged status to EU law.⁵⁵ Nonetheless, if a conflict should
arise between an EU rule and a fundamental principle of the Constitution, primacy can neither be automatically recognized nor granted, the final choice being
left to the Constitutional Court. In cases of conflict between EU legislation and
the European Convention, on the other hand, such a judgment would seem to
acknowledge that Italian judges must apply the former, setting the latter aside.
Generally speaking, after Lisbon the principle of primacy may not necessarily
be weakened. By appearing as a lesser threat for national constitutional identities,
it might be more readily accepted by Constitutional and Supreme Courts.
III. Fundamental Rights after Lisbon
The described process of de-constitutionalization has also concerned the Charter
of Fundamental Rights which, in the meantime and by virtue of several ECJ
judgements,⁵⁶ has acquired the status of soft law.⁵⁷
The Charter was undoubtedly the most—if not the only—really ‘constitutional’ part of the Constitutional Treaty and for this reason it has formally been
removed from the Lisbon Treaty and included in a new Declaration adopted in
Strasbourg on 12 December 2007 by the three EU legislative institutions.⁵⁸
⁵³ See Corte Costituzionale Italiana, ns 348/2007 and 349/2007.
⁵⁴ Legge costituzionale 18/10/2001, n 3 (GU, n 248 del 24 ottobre 2001): ‘Legislative powers
shall be vested in the State and the Regions in compliance with the constitution and with the constraints deriving from EU legislation and international obligations.’
⁵⁵ See also Corte Costituzionale, n 39/2008.
⁵⁶ See Case C-13/05 Sonia Chacón Navas [2006] ECR I-6467; Case C-432/05 Unibet (London)
Ltd, Unibet (International) Ltd v Justitiekanslern [2007] ECR I-2271.
⁵⁷ The Charter has been frequently employed in the legal reasoning not only by the Advocates
General, the CFI, and more recently also by the ECJ, but also by national judges. For a monitoring
of such a case law, see the Observatory on Fundamental Rights, available online at: <http://www.
europeanrights.eu/index.php?lang=eng>.
⁵⁸ This time, unlike the 2000 Nice Declaration, the Council of Ministers was represented at the
highest level.
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Paradoxically, the fact that the Charter has been disembodied from the Treaty
may have positive effects, in so far as it is more handy and readable for citizens
whilst still maintaining its symbolic force (after all, it remains a constitutional
idea). Of course, legal problems may arise as it is no longer part of the Treaty.
How could the Charter be amended? Should the new procedure for ordinary
revision be applied? Certainly it seems difficult to imagine that the Charter could
be amended without a new Convention.
In any case the Charter represents a major step for citizens as fundamental
rights finally become visible and transparent and will not continue to be a complicated secret for insiders. The Charter is a sort of habeas corpus, which can be
invoked either to demand the annulment of acts of the EU institutions or against
Member States which violate fundamental rights when implementing EU law
(or when acting within the scope of the Treaty).⁵⁹ The first case is particularly
important, as neither national Courts nor the ECHR may annul a Community/
Union act. In this context, the Charter not only clarifies the situation but it also
reduces the wide discretionary powers of the ECJ to decide what rights are fundamental and their scope. Finally, it raises the level of fundamental rights in the
EU by defining the ECHR (as well as the national constitutions⁶⁰) as a minimum
standard.
The Lisbon Treaty gives full legal value to the Charter. A new Article 6 of the
TEU affirms (paragraph 1) that the Charter ‘shall have the same legal value as
the Treaties’, specifying that it does not extend the competences of the European
institutions. Although the Charter is not encompassed in a Protocol, its legal
status is similar to that of Protocols, which, according to international law, have
‘the same value of the Treaty’ to which they pertain. For this reason the Court
of Justice is competent to interpret and apply it. The same Article establishes that
the rights, freedoms and principles within the Charter shall be interpreted in
accordance with the general provisions in Title VII of the latter and with due
regard to the so called ‘Praesidium explanations’, setting out the sources of those
provisions, which are now referred to in the Preamble of the Charter. Paragraph 2
establishes that the Union shall accede to the ECHR.
Finally, Article 6 (paragraph 3) reminds that ‘fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights
and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the
Union’s law.’
⁵⁹ See LS Rossi, ‘Constitutionnalisation de l’Union européenne et des droits fondamentaux’
(2002) Rev Trim Dr eur, pp 22–53.
⁶⁰ See Article 53 of the Charter, and for some remarks on the latter, see Liisberg, ‘Does the EU
Charter of Fundamental Rights Threaten the Supremacy of Community Law?’ (2001) 38 CML Rev
1171–1199.
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Reading paragraphs 1 and 3 of the new Article 6, a difference can be noticed
between the Charter, which is binding and linked to specific means of interpretation, and the ‘classic’ category of fundamental rights, as they emerge from common constitutional traditions, and/or the ECHR. Such a differentiation may
seem useless as the Charter was declared (and declares itself, see Preamble) to
be a simple codification of existing fundamental rights, as settled in the ECHR
and in common constitutional traditions. Nevertheless, it becomes particularly
significant if one considers the opting out of the United Kingdom and Poland.
Although the force of the Charter is limited as far as their legislations are concerned, these States are still fully engaged by the general principles of EU law
envisaged by the Court of Justice, such as the protection of human rights.
It could be questioned whether the ECJ enjoys the same discretionary power
in interpreting the Charter and general fundamental rights. On the one hand,
the ECJ is the only official interpreter of the Charter, but it must respect both the
Praesidium Explanations and the limits fi xed by the Charter itself. It can also be
expected that in the future the Court will interpret the Explanations in a more
general perspective.
On the other hand, even if in principle the Luxembourg Court is not the only
judge of general principles, as it cannot ignore what the ECHR and national
Constitutional Courts state with regard to the European Convention and
national Constitutions respectively, it may have more room for interpreting those
principles. As seen above, the ECJ tends to transform them into internal values,
to be applied in light of the EU system. Some limits to its discretionary power
could arguably stem from the new Article 4 and, in the future, from the accession
of the EU to the ECHR, which is established by Article 6 but subordinated to a
problematic decision by unanimity.
It is likely that the Court will use the Charter as a term of reference and as a list
of fundamental rights, nevertheless continuing to refer to the other sources. The
geographical limits to the scope of the Charter (due to the opting-outs) will probably compel the Court to keep the broader category of general principles alive, as
an autonomous source of fundamental rights.
The British and Polish opting-outs, referred to in the Protocol, n 30, raise
numerous questions. The consideranda of such a Protocol state that Article 6 of
the Treaty on European Union requires that the Charter be applied and interpreted strictly by the courts of Poland and of the United Kingdom. Interpretation
must be in accordance with the Explanations referred to in that Article, and
with the Charter itself, provided that the latter merely grants visibility to rights,
freedoms, and principles already recognized by the Union, without creating new
rights or principles.
Article 1 establishes that ‘the Charter does not extend the ability of the
Court of Justice of the EU, or any court or tribunal of Poland or of the United
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Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the
fundamental rights, freedoms and principles that it reaffirms. In particular,
and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as
Poland or the United Kingdom has provided for such rights in its national law.’
The reference to Title IV only seems to be inserted by way of exemplification,
meaning that the opt-out is general. It is not very clear, however, how one must
reconcile this provision with the fact that soon after the same Protocol reaffirms that ‘references in this Protocol to the operation of specific provisions of
the Charter are strictly without prejudice to the operation of other provisions
of the Charter’, provided that there is no other reference to specific provisions
of the Charter.
The reasons for such opting-out are probably linked to concerns that national
judges may widen the binding force of the Charter, using an interpretation by
analogy so as to cover domestic laws outside the scope of EU legislation. In fact,
in Italy some judges already draw inspiration from the Charter, expressly referring to it in order to solve disputes of a purely domestic nature.
The picture is completed by two confusing Declarations issued by Poland.
According to the first one, ‘the Charter does not affect in any way the right of
Member States to legislate in the sphere of public morality, family law, as well as
the protection of human dignity and respect for human physical and moral integrity.’ By virtue of the second Declaration, Poland asserts that, having regard to
the traditional social movement of ‘Solidarity’, it fully respects social and labour
rights, as established by EU law, and in particular those reaffirmed in Title IV of
the Charter of Fundamental Rights of the European Union.
From a legal standpoint, the consequences of the Protocol and the Declarations
are not very significant as all Member States are bound by the Treaties to respect
fundamental rights when implementing EU rules. Moreover, the fact that the
Charter ‘does not extend’ the power of the ECJ and national Courts to declare
that a national provision is inconsistent with the rights referred to in the Charter,
implies that their existing competence is preserved and not restricted.
Conversely, from a political and symbolic point of view, the British and Polish
opt-outs have relevant effects. The Charter could have represented a first common identity core of a constitutional nature in so far as it expresses values that
may be considered as shared by all Member States. Unfortunately, in light of the
above the Union is characterized by a real identity deficit; it is difficult to see how
the Charter could play such a role.
That being so, it must be recognized that a major step forward has been made.
By granting the Charter legal status, the Treaty of Lisbon ensures its transformation from soft law into hard law.
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Moreover, although the Lisbon Treaty may not improve the protection of fundamental rights when compared with the Constitutional Treaty, it will definitely
have such an effect if judged against the Treaty of Nice.
First of all, it establishes the accession of the EU to the ECHR (which is however subordinated to a unanimous decision and therefore not trouble-free).⁶¹
Such an accession entails a further step forward in the protection of fundamental
rights, as well as a more complex articulation of judicial remedies.⁶² In any case,
the accession agreement should be negotiated with great caution, in an attempt to
strike a balance between two competing requirements: on the one hand, the preservation of the autonomy of the EU legal order and on the other hand the need to
allow the Strasbourg Court to interpret the ECHR without altering the relations
between Member States and the European system. Protocol No 8 annexed to
the Lisbon Treaty imposes the conservation of certain specific characteristics of
the Union and Union law, in particular with regard to the Union’s participation
in the control bodies of the European Convention, as well as the mechanisms
for identifying the subject (EU/Member States) to whom applications have to
be addressed. The accession agreement shall ensure that the competences of the
Union or the powers of its institutions are not affected and shall also preserve
the situation of Member States derogating from the European Convention and
reservations made by Member States. Finally, any dispute concerning the interpretation or application of the EU Treaties shall only be settled by the resolution
mechanisms included therein.
Secondly, it must be borne in mind that the Treaty of Lisbon provides for a new
list of fundamental values of the EU. Article 2 of the TEU, which is broader than
Article 6 of the current EU Treaty, includes among ‘the fundamental values of
the Union, which are common to the Member States’, the respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights,
including the rights of persons belonging to minorities, as well as pluralism, nondiscrimination, tolerance, justice, solidarity and equality between women and
men. These values are equally binding for the EU and Member States. As regards
the latter, the new Article 7 of the TEU establishes a procedure of suspension
of the rights of Member States responsible for a serious and persistent breach of
the values referred to in Article 2. Such values also form the essential core of a
European identity and for this reason must be shared by all the States wishing
to accede to the EU (as prescribed by Article 49 of the TEU). Similarly, they
⁶¹ By effect of the Lisbon Treaty also the judicial protection of the individual rights is improved,
as far as the conditions they have to fulfil in the procedures of legality review for some non-legislative
acts concerning them directly even if not individually.
⁶² On the current relations between ECJ and the European Court. see Douglas-Scott, ‘A Tale of
Two Courts: Luxembourg, Strasbourg and the Growing European Human Rights Acquis’ (2006) 43
CML Rev 629–665.
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represent a guideline for EU external relations, as clearly stated by new Articles 3,
para 5⁶³ and 21 of the TEU,⁶⁴ introduced by the Lisbon Treaty.⁶⁵
IV. New Challenges: How Fundamental are Fundamental Rights?
Undoubtedly, fundamental rights embody a major part of the fundamental principles of the EU. They also limit the effects of EU legislation in so far as, on the
one hand, the respect of domestic constitutional rights by EU institutions is seen
by Member States as a filter for the primacy of EU law and, on the other hand, the
Court of Justice may declare an act of the EU institutions to be null where there is
a violation of fundamental rights.
Considering that throughout the years the EU system for the protection of
fundamental rights has made important strides forward, and that in the future
a further level of control will be established by the Strasbourg Court, one may
⁶³ ‘In its relations with the wider world, the Union shall uphold and promote its values and
interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade,
eradication of poverty and the protection of human rights, in particular the rights of the child, as well
as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.’
⁶⁴ ‘1. The Union’s action on the international scene shall be guided by the principles which have
inspired its own creation, development and enlargement, and which it seeks to advance in the wider
world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental
freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law. The Union shall seek to develop relations
and build partnerships with third countries, and international, regional or global organizations which
share the principles referred to in the first subparagraph. It shall promote multilateral solutions to
common problems, in particular in the framework of the United Nations. 2. The Union shall define
and pursue common policies and actions, and shall work for a high degree of cooperation in all fields
of international relations, in order to: (a) safeguard its values, fundamental interests, security, independence and integrity; (b) consolidate and support democracy, the rule of law, human rights and
the principles of international law; (c) preserve peace, prevent conflicts and strengthen international
security, in accordance with the purposes and principles of the United Nations Charter, with the
principles of the Helsinki Final Act and with the aims of the Charter of Paris, including those relating to external borders; (d) foster the sustainable economic, social and environmental development
of developing countries, with the primary aim of eradicating poverty; (e) encourage the integration
of all countries into the world economy, including through the progressive abolition of restrictions
on international trade; (f ) help develop international measures to preserve and improve the quality
of the environment and the sustainable management of global natural resources, in order to ensure
sustainable development; (g) assist populations, countries and regions confronting natural or manmade disasters; and (h) promote an international system based on stronger multilateral cooperation
and good global governance. 3. The Union shall respect the principles and pursue the objectives
set out in paragraphs 1 and 2 in the development and implementation of the different areas of the
Union’s external action covered by this Title and by Part Five of the Treaty on the Functioning of the
European Union, and of the external aspects of its other policies. The Union shall ensure consistency
between the different areas of its external action and between these and its other policies.’
⁶⁵ For a comprehensive descriptions of the multi-faceted significance of the Fundamental rights
in the EC policies, see Lenaerts, ‘Fundamental Rights in the European Union’ (2000) 25 ELR
575–600.
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question whether national Constitutional or Supreme Courts will give up their
role as watchdogs of fundamental domestic principles. The answer seems to be in
the negative, at least from a short-term perspective.
First of all, a contrast could arise between national values and European values
(be it from Brussels or from Strasbourg) leading national courts to refuse the primacy of a European rule not because it entails a standard of protection which is
lower than the domestic one but because it sets a standard which is considered too
high. An example could be the right to establish a family, or the interpretation
of gender discrimination as including sexual orientation, an area in which both
the Strasbourg Court (EB⁶⁶) and the Luxembourg Court (Tadao Maruko⁶⁷) have
recently assumed very liberal positions. Recognizing the possibility for homosexuals to adopt children or conferring legal effects to unions involving people of the
same sex (or, even more radically, to polygamist unions) may still be perceived by
some Member States as conflicting with core domestic constitutional traditions.
Secondly, a new challenge is increasingly stemming from issues related to public security. The sphere of action and competences of the EU in the area of freedom, security and justice will be enhanced by effect of the Lisbon Treaty, with
the latter providing for the use of the same legal basis and instruments applicable
to the internal market. Although respect for fundamental rights and the different legal systems and traditions of Member States is clearly stated in Article 67 of
the Treaty on the Functioning of the European Union (TF), such conflicts may
become particularly disruptive and dangerous for the coherence of the system.
A relevant example is provided by the black lists concerning suspect terrorists,
enacted by a decision of the Sanction Committee of the UN Security Council and
demanding States to freeze the assets of the persons listed therein. Subsequent
acts of the EU (common positions) and of the EC (regulations or decisions) take
the necessary implementing measures, which raise the question of the violation of
the applicants’ fundamental rights (property rights, statement of reasons, right to
be heard and fair trial). In these cases a conflict may arise among different standards of fundamental rights and diverging ideas regarding the extent to which
derogations to fundamental rights may be allowed for security reasons.
Initially, in Yusuf, and Kadi,⁶⁸ the CFI declared that the EU is bound to
observe the resolutions of UN bodies, regardless of the fundamental principles
⁶⁶ See ECHR, the case of EB v France, App no 43546/02.
⁶⁷ See ECJ, Case C-267/06 Tadao Maruko v Versorgungsanstalt der deutschen Bühnen, not published in the ECR.
⁶⁸ See Case T-306/01 Yusuf (Ahmed Ali Yusuf and Al Barakaat International Foundation v Council
of the European Union and Commission of the European Communities) [2005] ECR II-3533, and Case
T-315/01 Kadi (Yassin Abdullah Kadi v Council of the European Union and Commission of the European
Communities) [2005] ECR II-3649. The CFI assessed the question of competence, finding that the
combination of Articles 60, 301, and 308 of the EC Treaty may provide a legal basis for adopting
sanctions against individuals (given that the EC Treaty only provides for sanctions against States).
This is disputable since the provisions enacted can hardly be considered as ‘necessary for the good
functioning of the internal market’ (according to the prescription of Article 308 of the EC Treaty).
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of the EC and the ECHR. Such a duty derived from the fact that obligations of
Member States of the United Nations under the Charter of the United Nations
clearly prevail over all other obligations of domestic or international treaty law
(including, the ECHR⁶⁹). Although not a member of the United Nations, according to the Court the EU must not infringe the duties imposed on its Member
States. Consequently, it is bound to adopt all the measures necessary to enable
its Member States to fulfil the said obligations. Nevertheless, the Court found
that it would be competent to indirectly review the lawfulness of decisions of
the Security Council on the basis of jus cogens, which is binding on all subjects
of international law, including the organs of the United Nations, but concluding
that the freezing of funds does not infringe the standard of universal protection
of the fundamental rights of the human person covered by jus cogens.
Since the aforementioned judgements and EU procedures have been strongly
criticized,⁷⁰ subsequent decisions of the CFI and of the ECJ have tried to soften
the reasoning under many profiles, ensuring that a minimum level of protection
is guaranteed to claimants. In Chafiq Ayadi and Faraj Hassan,⁷¹ the CFI stressed
that the respect of fundamental rights must allow national judges to exclude
homes, cars or everyday consumers goods from the list of assets to be frozen. In
Othman⁷² it granted the applicant a sum of money necessary to pay for legal aid.
A new attitude focusing on the rights of defence of applicants has recently
been confirmed by the Court of Justice and the CFI. In Organisation des
Modjahedines du Peuple d’Iran⁷³ the CFI annulled a Council’s decision for the
first time.⁷⁴ This judgment also draws a fundamental distinction between the
⁶⁹ Primacy extends to decisions contained in a resolution of the Security Council, in accordance with Article 25 of the Charter of the United Nations, under which the Members of the United
Nations are bound to accept and carry out the decisions of the Security Council.
⁷⁰ See the ‘Dick Martin Introductory Memorandum’, 19 March 2007, presented to the
Parliamentary Assembly of the Council of Europe (available online at: <http://www.statewatch.org/
news/2007/may/coe-marty-un-lists.pdf>). On the many legal questions raised by such a case law, see
Nettesheim, ‘U.N. Sanctions against Individuals: a Challenge to the Architecture of the European
Union Governance’ (2007) 44 CML Rev 567–600.
⁷¹ See Case T-253/02 Chafiq Ayadi v Council of the European Union [2006] ECR II-2139; Case
T-49/04 Faraj Hassan v Council of the European Union and Commission of the European Communities
[2006] ECR II-52.
⁷² See order of the CFI in the Case T-318/01 Omar Mohammed Othman v Council of the European
Union and Commission of the European Communities [2002] OJ C68/13.
⁷³ See Case T-228/02 Organisation des Modjahedines du peuple d’Iran v Council of the European
Union [2006] ECR II-4665.
⁷⁴ In that case the UN Security Council resolution did not individuate itself the names of the
persons to be sanctioned, so leaving a discretionary power to the EU and EC institutions. For this
reason, the institutions were expected to apply the fundamental guarantees of the applicants, such as
the right to be heard and the duty to state the reasons of the act. The CFI however annulled only the
EC decision but affirmed the impossibility of annulling a JHA Common Position. In this judgment
the Court also held that, as a rule, the safeguard relating to the obligation to state reasons provided
for by Article 253 of the EC Treaty is fully applicable in the context of the adoption of a decision to
freeze funds under the contested regulation. The Court has inferred from that principle, interpreted
in the light of the case law, that the statement of reasons for an initial decision to freeze funds must
at least make actual and specific reference to the reasons why the Council considers, having regard to
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first application of a freezing measure, which requires a ‘surprise effect’ in order
for it to be effective, and the decision to maintain such a measure: the right to
be heard of the victim should be contextual in the first case and preliminary in
the second. In Ocalan-PKK ⁷⁵ the ECJ annulled a decision of the CFI (on the
grounds of manifest error). In SEGI and Gestoras⁷⁶ the ECJ declared that when
individual rights are affected, judicial review of Justice and Home Affairs (JHA)
common positions is possible as regards annulment and preliminary rulings.⁷⁷
The same trend is visible in recent case law, highlighting the tight connection
which exists between the duty to state reasons and defence rights. In Stichting-Al
Aqsa,⁷⁸ Kongra-Gel,⁷⁹ and Ocalan⁸⁰ certain Council decisions freezing assets
were annulled in so far as they failed to state reasons. In Sison,⁸¹ the CFI not
only annulled a Council decision for failure to state reasons but also clarified
the duties of the EU/EC institutions to respect fundamental rights when UN
provisions leave them discretionary powers.⁸² The Court also considered that
the breach of the applicant’s rights of defence may, in principle, be sufficiently
serious for European institutions to incur liability (although the Court found
that in the present case there was no proof of a direct causal link between the
measures adopted and the alleged losses).
Finally, the recent Opinions of Advocate General Poiares Maduro in Kadi and
Al Barakaat ⁸³ state that the EC regulations in issue, which implement UN decisions, breach the applicants’ rights to property and fair trial/judicial review and
must therefore be annulled.
the precise information or material in the relevant file available to it, that a decision has been taken
by a competent authority of a Member State in respect of the person concerned, unless overriding
considerations concerning the security of the Community and its Member States, or the conduct of
their international relations, militate against it.
⁷⁵ See Case C-229/05 P Osman Ocalan, on behalf of the Kurdistan Workers’ Party (PKK) and Serif
Vanly, on behalf of the Kurdistan National Congress (KNK) v Council of the European Union [2007]
ECR I-439.
⁷⁶ See Case C-354/04 P Gestoras Pro Amnistía and Others v Council of the European Union [2007]
ECR I-1579 and Case C-355/04 P Segi and Araitz Zubimendi and Aritza Galarraga v Council of the
European Union [2007] ECR 1657.
⁷⁷ See also Case C-117/06 Gerda Möllendorf, Christiane Möllendorf-Niehuus, not published in the
ECR, where the ECJ dealt for the first time with the rights of third parties, which may be jeopardized
by the application of freezing measures.
⁷⁸ See Case T-327/03 Stichting Al-Aqsa v Council of the European Union, not published in the
ECR.
⁷⁹ See Case T-253/04 Kongra-Geland others v Council of the European Union, not published in the
ECR.
⁸⁰ Case T-229/02 Osman Ocalan v Council, [2008] not published in the ECR.
⁸¹ Case T-47/03 Jose Maria Sison v Council of the European Union, not published in the ECR.
⁸² According to this judgment the Council must carry out a periodic review of the measures (at
least twice a year) in order to ascertain whether they are still necessary.
⁸³ See the Opinions of AG Poiares Maduro in the Case T-315/01 Kadi (Yassin Abdullah Kadi v
Council of the European Union and Commission of the European Communities) [2005] ECR II-3649,
and in the Case C-415/05 P Al Barakaat Foundation v Council of the European Union and Commission
of the European Communities, pending case.
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Rossi
The ECJ is now called upon to decide whether to follow the suggestions of
Advocate General Maduro. Such a decision is not straightforward as the issue at
stake is not simply to ‘soften’ the previous case law, but to reverse it. To this end,
the Court may employ the classic proportionality test in an attempt to find the
right balance between the obligation to respect UN sanctions and the exigency of
applying them with the least prejudice of fundamental rights.
The decision also involves problems relating to the hierarchy of fundamental
principles and fundamental rights. Is loyalty to the UN system the top constitutional priority of the EU and of its Member States? Must the EU really implement
Acts on which adoption it has no say and which infringe its own fundamental
principles?
As the EU is not a member of the UN, the source of its duties towards the
latter are still to be found in the TEU itself, notably in the principle of loyal cooperation with EU Member States. Therefore, if the Member States’ Supreme or
Constitutional Courts decide that the UN sanction system violates fundamental
rights, the ECJ and CFI would necessarily be bound to follow the national Courts.
It is worth recalling that on 24 April 2008 the British High Court invalidated
the asset-freezing regime implementing the UN Security Council Resolutions
because it was adopted by the Government bypassing the Parliament.
On the other hand, given that, as Advocate General Maduro has remarked, the
principle of loyal co-operation works both ways, Member States are called upon
to respect the fundamental values of the EU and to voice their concerns before
the Security Council of the UN. The former must therefore question whether
complying with the UN sanctions system is more important than respect for
those rights which are considered fundamental by national constitutions and by
the ECHR, and which lay behind the very idea of a European identity.⁸⁴
In any case it could be helpful to recall what the Court stated in Burgoa.⁸⁵
It is true that according to Article 307 of the TCE rights and obligations arising from international agreements concluded before the entry into force of the
Treaty between one or more Member States on the one hand, and one or more
third countries on the other, are not affected by the provisions of the Treaty.
Nevertheless, such an Article only implies a duty on the part of the institutions
of the community not to impede the performance of the obligations of Member
States which stem from a prior agreement and does not bind the Community
itself to implement the latter. In other words, the principle of loyal co-operation
may compel the EU not to preclude (for instance on the ground of free movement
⁸⁴ For different opinions about the idea of fundamental rights as core identity of the European
Union, see Von Bogdandy, ‘The European Union as a Human rights Organizations? Human Rights
and the Core of the European Union’ (2000) 37 CML Rev 1307–1338; Eeckout, ‘The EU Charter
of Fundamental Rights and the Federal Question’ (2002) 39 CML Rev 945–994; Dutheil De La
Rochère, ‘The EU and the Individual: Fundamental Rights in the Draft Constitutional Treaty’ (2004)
41 CML Rev 345–354.
⁸⁵ See Case 812/79 Attorney General v Juan C Burgoa [1980] ECR 2787.
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of capital) the effect of national measures implementing the Security Council
decisions. But it cannot oblige the EU to itself adopt provisions (moreover in
matters where its competence is questionable⁸⁶) infringing its own fundamental
principles.
V. Concluding Remarks
In the current stage of European integration, the question of what principles are
really fundamental in the EU becomes increasingly important. Fundamental
principles in fact may limit the primacy of EU legislation (when they are
considered by national judges) or affect the legality of the latter (when assessed by
the ECJ).
Every national constitutional system has its own fundamental principles; likewise, the EU has also developed its own. But, as the national constitutional orders
are strictly interlocked with the EU system, those principles reflect each other as
in a hall of mirrors, with a continuous external-internal intertwining. Though
they may still be separately identified, the borderline between them is fading and
a process of convergence is underway (the Charter of Fundamental Rights being
the first manifestation).
To date, cases of potential conflict have been avoided by the judges on the
grounds of a tacit gentlemen’s agreement. After Lisbon, in spite of the enhanced
protection of fundamental rights and of national constitutional traditions, fundamental principles remain a sort of grey area, where vagueness and flexibility are
two sides of the same coin.
If ambiguity may facilitate a constitutional modus vivendi within the borders
of the Union, it may nonetheless become dangerous when the EU system of values, as well as the national ones, are confronted with external challenges. Threats
to fundamental rights and to fundamental principles should lead Member States
to jointly reflect on what is really fundamental for Europeans.
⁸⁶ Even after the Treaty of Lisbon coming into force, as the new explicit EU competence in this
matters (provided for by the new Article 61H of the TF) will be not exclusive, Member States will
retain the national competence of implementing the Security Council decisions, being not obliged
to do it by using the legislative framework of the EU if this is not necessary fot the purposes of
Article 61.
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