By Benedikt Pirker
In this case of last week, the Court was confronted once again with the question of the scope of application of the Charter of Fundamental Rights as regards Member State action. Many will remember the landmark decision in Åkerberg Fransson on the subject; the decision essentially equated the scope of EU law with the scope of application of EU fundamental rights: where Member States act thus within the scope of EU law, they are bound by EU fundamental rights and the CJEU is the ultimate interpretive authority. The case has caused quite some controversy, with some suggesting a judicial overreach by a Court determined to become the final instance for fundamental rights in the EU to the detriment of national catalogues of fundamental rights and the national courts called to protect them. Nonetheless, other observers – to which I would count myself – have rather read the decision as the confirmation of the principles laid out by the Court in its previous jurisprudence on the topic (see also the coverage of the case on this blog). Siragusa seems to strengthen this view in a number of ways. First, the result of the case can be considered as due deference towards national courts and fundamental rights protection at the national level. Moreover, the Court also uses extensive and systematic references to earlier case law to put its decision in context with the previous jurisprudence. Lastly, there is a valuable attempt to develop a first set of explicit criteria which might serve as future guidance to separate the national and the EU spheres of judicial competence in fundamental rights protection.
The case concerned a preliminary reference on the compatibility of an Italian decree with the right to property enshrined in Article 17 of the Charter and proportionality as a general principle of EU law. The decree required a property owner to restore a site to its former state, because some works that had been undertaken were incompatible with the national landscape conservation rules applicable to the whole area. Contrary to all the participants in the proceedings, the national court had suggested that EU law was applicable to the case because landscape protection could not be seen to “stand alone as a concept separate from the protection of the environment”, as a number of EU rules based on the environmental competence of the Union would show (para 10).
However, a closer look by the Commission already revealed that the mentioned provisions addressed mainly the EU and its institutions (e.g. the Aarhus Convention or the latter’s implementing regulation) rather than the Member States, or dealt with EU competences in abstracto (e.g. Article 4 (2) e TFEU) or the aims and measures of EU environmental policy (Article 191 TFEU). In the light of this, the Court repeated what it had said in Åkerberg Franssson: Based on Article 51 (1) of the Charter read in the light of the Explanations to the Charter, Member States were only bound by EU fundamental rights in respect of matters “covered by EU law” (para 22).
Then, it went on to establish in some more detail which “certain degree of connection above and beyond the matters covered being closely related or one of those matters having an indirect impact on the other” was required to render EU law and thus EU fundamental rights applicable (para 24, referring to the Kremzow case). The interesting part is here that the Court established a set of criteria which – at least in my reading – seem to be destined to become benchmarks for future cases to establish in a given situation whether Member States are “implementing” the law of the EU and would thus be bound be EU fundamental rights. In a second part, the Court used the occasion to address the objectives of EU fundamental rights protection.
The set of criteria
First, the Court enumerated a number of criteria that should be examined to establish whether national legislation “involves the implementation of EU law for the purposes of Article 51 of the Charter”. The list is, however, clearly not exhaustive (“some of the points to be determined”). Nonetheless, the criteria are interesting: they encompass
“whether that legislation is intended to implement a provision of EU law; the nature of that legislation and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; and also whether there are specific rules of EU law on the matter or capable of affecting it”. (para 25, references to cases Annibaldi, Iida and Ymeraga omitted)
The Court then examined whether EU law imposed any obligations in the subject area with regard to the situation at issue (para 26 with reference to Maurin). However, no such obligations could be identified for landscape protection (para 27).
As to the objectives pursued, landscape protection was one factor to be taken into consideration in assessing the impact of a project on the environment in accordance with Directive 2011/92 and as part of the environmental information referred to in the Aarhus Convention and its implementing legislation. However, this still left the objectives of EU legislation as being “not the same” as those pursued by the national decree at issue (para 28).
Lastly, the Court found that – as in Annibaldi – the fact that national legislation could have an indirect effect on a system established by EU law could not constitute a sufficient connection to bring such legislation within the scope of EU law (para 29).
At this point, one could criticize the somewhat blurry language used by the Court. Criteria are established, only to be immediately applied using different words. As a consequence, it becomes difficult to follow the exact reasoning process of the Court and to assess the weight given to the individual criteria. Nonetheless, a basic structure of reasoning can be derived from the judgment and provides some welcome predictability. The Court seems to draw together elements from a number of important past decisions such as Annibaldi, Maurin or Kremzow, while leaving aside – at least for now – more contentious ones (one could think of Carpenter as an example here). Against this background, the Court seems to examine in each case:
1) the nature of national legislation and whether it intends to implement EU law;
2) the objectives pursued by national law and to what extent they overlap with those covered by EU law;
3) linked to this criterion the negative criterion whether national legislation merely indirectly affects EU law;
4) the existence of “specific” rules of EU law on the matter, which includes EU rules “capable of affecting” a situation.
Still some case law will be needed to flesh out the practical application of these criteria. It is, for example, not easy to understand what is to be assessed when the Court speaks of the “nature” of national legislation. Also, the fact that EU rules merely “capable of affecting” a given situation are also relevant creates quite some leeway for the Court. Nonetheless, to have them established by the Court building up on the already existing case law is a first important step towards predictability and legal certainty.
The objectives of EU fundamental rights protection
In a second part of the judgment, the Court discussed briefly the objectives underlying EU fundamental rights protection. On the one hand, according to the Court fundamental rights must not infringed in areas of EU activity, be it through action at the EU level or the Member States implementing EU law (para 31). On the other hand, there is a need to avoid a situation in which the level of protection of fundamental rights varied based on national law in such a way as to undermine the unity, primacy and effectiveness of EU law (para 32, referring to Internationale Handelsgesellschaft and Melloni).
There are some confusing elements about the Court’s statements in this part. First, the relationship established between these two objectives is put as perhaps more natural or logical than it actually is. For the Court, the need to avoid a danger for the unity, primacy and effectiveness of EU law is a “reason” for the protection of fundamental rights at the EU level (para 32). However, the two objectives could also be seen as competing with each other. It was mainly the Court’s decision to emphasize the effectiveness of EU law in cases like Melloni (see also Vanessa’s recent post on the topic). As a consequence, where EU law establishes exhaustively a certain level of fundamental rights protection, Member States cannot go beyond that level. This is, however, certainly not the only way the interaction between these two objectives could have been resolved. It is the solution the Court chose, and it makes sense in the light of the unity and effectiveness of EU law. One can nonetheless perfectly well imagine a solution that would prioritize e.g. the objective of protecting fundamental rights and thus would accept the highest level of protection for these rights, be it enshrined in national or EU law.
Second, the sentence ending the short discussion of the Court also leaves the reader somewhat puzzled. In this sentence, the Court stated that “there [was] nothing […] to suggest that any such risk is involved in the case before the referring court”. One is led to wonder how this criterion of risk for the unity, primacy and effectiveness of EU law is to be applied. The sentence stands somewhat isolated from the previous set of criteria to determine the scope of EU law. Does this risk criterion form part of the other mentioned criteria, perhaps as part of the fourth criterion of existing EU rules on a matter or EU rules capable of affecting a situation? Future case law will have to be observed as to whether the established set of criteria will be clarified and applied with consistency.
Summing up, the Court can be commended for its efforts in Siragusa. Despite some terminological fuzziness, the Court attempted to fit the case into the jigsaw puzzle of earlier decisions on the scope of EU fundamental rights. It seems determined to develop a catalogue of criteria to guide the future development of the scope of EU fundamental rights. And, last but not least, looking at the result of the case – the Court declared it had no jurisdiction – the Court also seems to be willing to let fundamental rights cases be decided at the national level, when there is no convincing connection to EU law which would establish its own jurisdiction.