Uniformity or deference to national constitutional traditions in the protection of fundamental rights? Opinion AG Bot in Case C-399/11 Melloni

This Opinion of Advocate General Bot, given in response to a preliminary reference raised by the Spanish Tribunal Constitucional, gives interesting insights on the relation between national and EU fundamental rights standards, and gives an important interpretation on the ambiguous wording of Article 53 of the Charter on Fundamental Rights. AG Bot reaffirms the autonomous nature of the EU fundamental rights standard. He clearly rejects the idea that Article 53 entails that the Charter merely lays down a minimum standard of rights protection above which Member States would be free to apply a higher –national- standard of protection. However, he admits that a provision of secondary law may be challenged where it infringes national constitutional identity.

Protection of fundamental rights in the EU and the problem of divergent standards
A classic question concerning the protection of fundamental rights in the EU is what standard of protection applies at the supranational level in the absence of total commonality in the protection of fundamental rights offered by the EU Member States. The CJEU has traditionally drawn from both international treaties – in particular the European Convention on Human Rights – and the common constitutional traditions of the EU Member States in protecting fundamental rights. Yet, at the same time it has held that the rights-standard applied at the supranational level is autonomous and has claimed authority in interpreting it (famously in cases like Internationale Handelsgesellschaft). However, whether and in what manner the CJEU should allow the Member States to apply their own, national, standard of rights protection different from this EU standard when a situation falls in the scope of EU law, remains controversial. (see for example Aida Torres Pérez, Conflicts of Rights in the European Union, A Theory of Supranational Adjudication, Oxford & New York: Oxford University Press 2009; and my review in Common Market Law Review 48 (2011) issue 4, pp. 1349-1353.)

With the coming into force of the Lisbon Treaty, two new provisions have a bearing on this issue. The first is Article 4 (2) TEU, concerning respect for national constitutional identity. It states:

“The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional [my Italics], inclusive of regional and local self-government.”

The second is Article 53 of the EU Charter of Fundamental Rights in the European Union. This article reads:

“Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, 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.” [My Italics]

Both provisions therefore seem to recognise that some degree of constitutional differences between the Member States needs to be accommodated, even when a situation falls in the scope of EU law. Every now and then, the CJEU is confronted with the question of whether Member States can invoke nationally protected fundamental rights, not belonging to the common constitutional traditions, in order to derogate from provisions of EU law. For example, in Omega Spielhallen the Court considered whether the German principle of human dignity could justify a derogation from the free movement of services. The Court held the German derogation could be justified under the public policy exception. Another more recent example was the case of Sayn-Wittgenstein in which the Court used Article 4 (2) on constitutional identity to uphold an Austrian derogation from the freedom to provide services.

Facts of the case
The Opinion of AG Bot under consideration deals with a similar conflict, namely between the Spanish constitutional right to a fair trial and the way in which that right is protected under Framework Decision 2009/299 and the Charter. A Spanish court authorised the extradition of the applicant, Mr. Melloni, to Italy in order for him to be tried there. However, Mr. Melloni fled after being released on bail and so escaped extradition. The result of this was that he was sentenced in absentia to ten years imprisonment for bankruptcy fraud by an Italian Court.
Following a dismissal of the appeal to the case, a European arrest warrant was issued for Mr. Melloni, and he was arrested again in Spain. Mr. Melloni, however, challenged extradition to Italy and filed a so-called ‘recurso de amparo’ with the Spanish Tribunal Constitucional. He argued that his surrender to the Italian authorities would infringe his right to fair trial enshrined in Article 24(2) of the Spanish Constitution, because he had been convicted for a very serious offence in absentia without him having the possibility of challenging his conviction. Previous case-law of the Tribunal Constitucional had established that the availability of such review was a condition for surrender in case of serious offences.
However, Article 4a (1) of the applicable Framework Decision 2009/299 included no such right of review, where the person not appearing at his trial “being aware of the scheduled trial, had given a mandate to a legal counsellor, who was either appointed by [him] or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial.” (par. 28) Mr. Melloni, had in fact appointed two lawyers to defend him in his case before the Italian court and thus seemed unable to rely on the provision in the Framework Decision.
The Tribunal Constitucional decided to ask the CJEU for a preliminary ruling on this issue. One of the issues it raised was whether Article 53 of the Charter could be relied on to uphold the better protection of fundamental rights offered under the Spanish Constitution.

Rejection of the Charter as mere minimum standard
AG Bot answered this question in the negative. He held that Article 53 of the Charter does not allow the Member States to invoke a higher level of rights protection under its national constitution in this particular case. The Tribunal Consticional had identified three possible interpretations of Article 53. The first is that Article 53 determines the Charter as a minimum standard of protection, similar to Article 53 of the ECHR. On such an interpretation Member States would retain the authority to provide a higher level of protection of fundamental rights, without making that standard applicable to the Union as a whole. The second interpretation is as follows:

“93. The second interpretation of Article 53 of the Charter is that the provision aims to define the scope of the Charter and, in particular, the constitutions of the Member States, respectively, by indicating in accordance with Article 51 of the Charter that, where European Union law applies, is that which derives from the Charter.”

The third possible interpretation consists “in applying one or other of the first two interpretations depending on the characteristics of the specific problem of fundamental rights at issue and the context in which the assessment of the level of protection which must prevail is made.” [par. 95]

AG Bot “firmly” rejects the first interpretation, seeing it to infringe the primacy of EU law and as having the “effect of impairing the unity and efficacy of that law”. [par. 98] Bot sees this interpretation affirmed by the words “in their respective fields of application” of Article 53. [par. 100] Allowing the Spanish authorities to apply a different standard in the present case “would have the effect, in particular, of seriously undermining the uniformity of the level of protection defined in Article 4a(1) of the Framework Decision and might hinder the execution of European arrest warrants issued for the purpose of executing judgments given in absentia.” [par. 102] Bot goes even further to state that the Spanish interpretation would “paralyse the execution by the Spanish judicial authorities of European arrest warrants issued for the purpose of executing judgments rendered in absentia, unless the issuing Member States could guarantee the persons concerned a retrial.” [par. 103] In addition, Bot holds the first interpretation would undermine the principle of legal certainty.

The autonomous nature of the protection of fundamental rights
From paragraph 105 on Bot then gives an explanation of “the traditional methods of evaluating the level of protection which must be afforded to fundamental rights within the European Union.”[par. 105] The key consideration here is paragraph 109:

“109. The fundamental rights to be protected and the level of protection to be afforded to them reflect the choices of a society as regards the proper balance to be achieved between the interests of individuals and those of the community to which they belong. That determination is closely linked to assessments which are specific to the legal order concerned, relating particularly to the social, cultural and historical context of that order, and cannot therefore be transposed automatically to other contexts.”

In other words, the rights standard that applies in the scope of EU law is one particularly tailored to the context of that order. Therefore, “the specific nature of European Union law means that the level of protection deriving from the interpretation of a national constitution cannot be automatically transposed to the European Union level nor can it be relied upon as an argument in the context of the application of European Union law.” [par. 111] In the case under consideration, the level of rights protection must be “adapted to the requirements connected with the construction of an area of freedom, security and justice.”[par.113] The Framework Decision is meant to ensure the execution of European arrest warrants rendered in absentia as well as to guarantee the adequate protection of fundamental rights.

“119. In order to reconcile those objectives, the European Union legislature set the level of protection for the fundamental rights in question so as not to compromise the effectiveness of the mechanism of the European arrest warrant.”

Upholding the first interpretation of Article 53 suggested by the Spanish Tribunal Constitucional therefore “would upset the balance thus achieved by Article 4 to the Framework Decision and cannot therefore, be allowed.” [par. 122]

This sui-generis approach to rights protection in the EU, however, may disregard that the nature of public authority exercised by the EU is not easy to distinguish from that exercised by the Member States themselves. This was well formulated by Besselink in an article in the Common Market Law Review of 1998 (35 (1998), pp. 629-680, at p. 669):

“It is hard to explain why norms which are designed as supreme rules for the conduct of public affairs and the behaviour of public authorities should not apply to those same affairs and to the same authorities when they act on the basis of Community law.”

This is further strengthened by the fact that the dividing line between situations falling within the scope of Union law and those outside often seems arbitrary, as was discussed by AG Sharpston in Zambrano. Moreover, the choice of a specific standard of rights protection in a Member State not only depends on the specific national context, but rather seems to depend on a specific and often fundamental democratic choice made in a particular Member State. It is doubtful whether the EU Charter can be said to rest on a similar fundamental democratic choice, which would entitle it to replace national rights standards in the scope of Union law.

However, Bot does draw a distinction between “situations in which there is a definition at European Union level of the degree of protection which must be afforded to a fundamental right in the implementation of action by the European Union and those in which that level of protection has not been the subject of a common definition.”[par. 124] It is not entirely clear what situations fall under the second situation, but it seems that Bot has in mind those situations where EU law allows the Member States discretion in implementing, and where implementation can be realised with both respecting national rights standards as well as the effectiveness of EU law. [see par. 127]

The interpretation of Article 53
The interpretation of Article 53 Bot supports is that it should be read in close conjunction with Article 51 and 52 of the Charter, which concern its scope.

“133. Article 53 of the Charter, supplementing those provisions, makes clear that, within the framework of the coexistence of the various sources of protection for fundamental rights the Charter cannot, on its own, result in a reduction in the level of protection for those rights in the different legal orders. That article therefore seeks to confirm that the Charter imposes a level of protection for fundamental rights only within the field of application of European Union law.”

Although this interpretation is unsurprising in light of the previous considerations of AG Bot, and other case-law, it does mean that Article 53 loses its independent meaning vis-à-vis Article 51 of the Charter. Article 51 already limits the scope of the Charter to “the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law.” Bot’s reading of Article 53 adds nothing to this, it merely serves as a reaffirmation that the scope of the Charter is limited. It therefore is doubtful that this is the most persuasive interpretation of Article 53 and that it reflects the intentions of its drafters.

Constitutional identity
Finally, Bot reflects on the issue of national constitutional identity. He admits that where a provision of secondary law adversely affects a Member State’s national identity, it may challenge it on the basis of Article 4 (2) TEU. [par. 139] This is interesting, because as far as I am aware the CJEU has not yet held that Member States are able to derogate from provisions of secondary EU law on the basis of their national constitutional identity. So far, it seems that only where a provision of EU law itself allows for such a derogation, as for example in the case of the Treaty Freedoms, the Court will allow the possibility of a derogation on the basis of national constitutional identity.

In any case, Bot holds that constitutional identity is not at issue in the case at hand, basically because Spain itself had stated it is not. In addition, he states that “a concept demanding protection for a fundamental right must not be confused with an attack on the national identity or, more specifically the national constitutional identity of a Member State.” [par.142] However, it is questionable to what extent this argument should be upheld. Fundamental rights are often seen by national constitutional courts as part of the essence of the constitution. Good examples are statements on this by the German and Italian Constitutional Court. Furthermore, the fact that the Spanish Government did not consider the national right standard to be part of Spanish constitutional identity, may not be that important. National governments are normally not the institutions that have the task of interpreting and applying fundamental rights standards. Rather, fundamental rights standards are normally invoked against the acts of governments. The fact that a government therefore contends a right is not part of is constitutional identity may be immaterial.

The Opinion of AG Bot offers interesting insights on the scope of the Charter and the relation between national and EU standards of fundamental rights. Its result is perhaps unsurprising, given the CJEU’s concern with issues of primacy and uniformity of EU law. However, the case illustrates the difficult nature of rights protection in the EU. Whereas the ECtHR can interpret the ECHR-rights as minimum standards, the EU mostly interprets the EU rights standard also as a maximum. With an expanding scope of EU law, this means that there will be less and less leeway for Member States to apply their own rights standards, and further reduces their national autonomy in an area that concerns fundamental national values.


  1. Pingback: Subsidiarity: Right of Access to an Attorney | Martin Holterman
  2. O. García

    Good analysis.

    In http://blog.delegibus.com/2539 I have discussed a different side of the Advocate General’s opinion. I see shortcomings in his reasoning and ask whether his overall approach to fundamental rights on the Union level (as opposed to the question how they interpolate with the member states level and vice versa) isn’t bound to sterilize the germs of a true fundamental rights culture in the sense of a dynamical constitutional jurisprudence.

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