The EU Charter of Fundamental Rights in the Member States 9781509940912, 9781509940943, 9781509940936

Table of contents :
Table of Contents
Notes on Contributors
List of Abbreviations
Introduction
I. A Constitutional Landmark
II. The Questions
III. Multilayered Perspectives
IV. Acknowledgements
PART I: THE FOUNDATIONS
1. The Role of the EU Charter in the Member States
I. The Question of Competences
II. The Autonomous Development of the Charter and the Question of Higher National Levels of Protection
III. The Horizontal Application of the Charter
IV. Concluding remarks
2. The EU Charter Ten Years On: A View from Strasbourg
I. Introduction
II. The Relationship with the ECHR Viewed Through the Lens of the Charter
III. EU Law, the Charter and the Strasbourg Court
IV. What Lies Ahead?
V. Concluding Remarks
PART II: MEMBER STATE PERSPECTIVES
3. Austria: United in Consistent Interpretation
I. Preliminary Remarks
II. Citations of and References to the Charter from a Quantitative Point of View
III. Legal Status of the Charter in the National Legal Order
IV. Citations of and References to the Charter from a Qualitative Point of View
V. Impact of the Charter on the National Branches of Government in Austria
VI. Final Remarks
4. Belgium: The EU Charter in a Tradition of Openness
I. Introduction
II. Status of the Charter in the Belgian Legal Order
III. Application of the Charter in the Belgian Legal Order
IV. Impact of the Charter on the Belgian Legal Order
5. Bulgaria: Rays of Light in a Cloudy Sky
I. Introduction
II. A Statistical Overview
III. The 'Quality' of the Charter-Based Judicial Reasoning
IV. The Scope of Application of the Charter and the Level of Protection Guaranteed by It
V. Rights Guaranteed by the Charter
VI. Conclusion and the Broader Context
6. Czech Republic and Slovakia: Another International Human Rights Treaty?
I. Introduction
II. Constitutional Status of the Charter in the Czech Republic and Slovakia
III. Application of the Charter in Domestic Courts' Practice
IV. Conclusion
7. The EU Charter before the French Parliament and Courts: Between (Great) Disillusion and (Little) Hope
I. Introduction: The Exceptionalism of the French Legal Landscape
II. References to the Charter from a Quantitative Point of View
III. References to the Charter from a Qualitative Point of View
IV. The Charter and French Academic Discourse
V. Conclusions
8. Taking Up the European Mandate: The Charter Before German Courts
I. Introduction
II. Empirical Assessment of the Role of the Charter in Germany
III. The Charter as a Standard of Judicial Review in Germany
IV. Charter Rights as Applied by German Courts
V. Institutional and Contextual Background
V. Conclusion
9. Hungary: A Half-Hearted Look at the Charter
I. The Formal Status of the Charter
II. The Quantitative Dimension of the Charter's Domestic Application
III. The Qualitative Dimension of the Charter's Domestic Application
IV. Institutions and the Broader Context
10. Ireland and the Charter: Ten Underwhelming Years?
I. Introduction
II. National Sovereignty Issues
III. Cases Where the Charter Has Been Used Largely Rhetorically
IV. Cases Where the Charter May Be Said to Have Had Some Impact
V. Conclusions
11. Italy: New Frontiers and Further Developments
I. Quantitative Dimension
II. Constitutional Status and the Qualitative Dimension of the Charter in the Case-Law of the Italian Constitutional Court
III. References to the Charter
IV. Balancing and Proportionality
V. Concluding Remarks: Aiming at Enhanced Cooperation Among All Courts
12. The Netherlands: The New Kid on the Block, Growing Pains or Growing Gains?
I. Introduction
II. Quantitative Dimension
III. Qualitative Dimension
IV. Rights Guaranteed by the Charter
V. Institutions and the Broader Context
13. Poland – The Charter of Fundamental Rights as a Last Resort?
I. Introduction
II. References to the Charter in the Polish Case-Law in Numbers
III. The (Self-Standing) Status of the Charter in the National Legal Order
IV. Rights Guaranteed by the Charter in the Polish Case-Law
V. Reactions of Different Actors to the Application of the Charter by the Courts
VI. Conclusions
14. Portugal: Lukewarm Engagement with the Charter
I. Introduction
II. The Case-Law Engaging with the Charter1
III. The Constitutional Court and the Charter
IV. The Legislative Process and the Charter
V. Charter Rights before National Courts
VI. Horizontal Issues
VII. Impact of the Charter within the Judiciary
VIII. Scholarly Perceptions of the Charter
IX. Conclusion: Trends Identified
15. Trials, Tributes and Tribulations: The EU Charter before the Slovenian Courts
I. Introduction
II. The Charter Before the Slovenian Ordinary Courts
III. The Charter Before the Slovenian Constitutional Court
IV. Final Comments and (Tentative) Conclusions
16. The (Incomplete) Reception of the EU Charter of Fundamental Rights in Spain
I. Introduction
II. Quantitative Dimension
III. Qualitative Dimension
IV. Rights Guaranteed by the Charter
V. Institutions and the Broader Context
VI. Conclusion
17. Limited But Not Inconsequential: The Application of the Charter by the Courts of England and Wales
I. Introduction
II. Quantitative Dimension
III. Qualitative Dimension
IV. Rights Guaranteed by the Charter
V. Concluding Remarks and the Broader Context
PART III: SELECTED RIGHTS
18. Article 8: The Right to Data Protection
I. Introduction
II. The Disparate Impact of the Charter Right to Data Protection across EU Member States
III. Disaggregating Data Protection from Privacy
IV. Differentiation through the Back Door: 'Implementing' the General Data Protection Regulation
V. Concluding Observations
19. Article 47: The Right to an Effective Remedy and to a Fair Trial
I. Introduction
II. Scope of Application of Article 47 of the Charter
III. Justified Limitations of Article 47 of the Charter
IV. Article 47 of the Charter and Other Fundamental Rights Sources
V. Conclusion
20. Article 50: The Elusive Shape of the Ne Bis In Idem Rule
I. Introduction
II. Preliminary Remarks on Prima Facie Modest National Use of Article 50
III. Qualitatively Relevant National Use of the Ne Bis In Idem Rule
IV. Concluding Remarks
21. Article 51: The Scope of Application of the Charter
I. Introduction
II. National Courts and the 'Test' of Article 51(1) of the Charter
III. Is There Life Outside the Scope of the Charter?
IV. National Views on Unsettled Ground
V. Concluding Remarks
22. Article 52: Twenty-Eight Shades of Interpretation?
I. Introduction
II. Member States' Approaches Towards the Principle of Proportionality
III. A Brief Comment on Essence
IV. The Charter, the ECHR and National Constitutional Rights
V. Conclusion
23. Why Article 53 of the Charter Should Ground the Application of National Fundamental Rights in Fully Harmonised Areas
I. Introduction: The EU Constitutionalist Dream vs Member State Constitutionalism
II. The Possible Readings of Article 53 of the Charter
III. The Court of Justice's Interpretation of Article 53 of the Charter: Conserving Orthodoxy
IV. The Case for the Pluralist Reading of Article 53 of the Charter
V. Conclusion
PART IV: BROADER PERSPECTIVES
24. References for a Preliminary Ruling and the Charter of Fundamental Rights: Experiences and Data from 2010 to 2018
I. The Charter, National Courts and the Need for Judicial Dialogue: A Prologue
II. The Use of the Preliminary Ruling Procedure by the Courts
III. Requests for a Preliminary Ruling Mentioning the EU Charter of Fundamental Rights
IV. The Courts Sending Requests Concerning the Charter and the Relevance of Such Requests12
V. The Relative Prominence of Charter Articles and its Linkages in Requests for a Preliminary Ruling
VI. The Legal Sources that Courts Use in Charter-Relevant Requests for a Preliminary Ruling
VII. The Role of the ECHR in Charter-Relevant Requests for a Preliminary Ruling
VIII. The Charter, National Courts and the Need for Judicial Dialogue: An Epilogue
25. The Charter as a Standard of Constitutional Review in the Member States
I. Introduction
II. Judicial Constitutionalisation of the Charter in Austria
III. Attempts to Recentralise Constitutional Review in Italy
IV. Departure from the Procedural Separation between EU and Constitutional Law Disputes in Germany
V. The Charter as an Indirect Standard of Constitutional Review
VI. No Meaningful Review in Light of the Charter in France
VII. Conclusion
26. Exporting Cherries for the Cakes: The Charter of Fundamental Rights in Domestic Courts of the EU's Neighbourhood
I. Introduction
II. Slowly Paving the Way: The Jurisprudence of Third-Country Courts and the Charter
III. The Charter as an Exportable Commodity: Limits and Potential
IV. Seeing the Wood for the Trees: The Position of the Charter in EU Agreements with Third Countries
V. The Incoming Tide of EU Law and the Judiciary in Third Countries
VI. Conclusions
27. Protecting Fundamental Rights Beyond the Charter: Repositioning the Reverse Solange Doctrine in Light of the CJEU"s Article 2 TEU Case-Law
I. Freedom of Speech as a Key to Human Rights and Democracy
II. The Limited Applicability of the Charter
III. Reverse Solange: The Doctrine"s Basic Logic and Elements
IV. Protecting Fundamental Rights under Article 2 TEU
V. Maintaining the Federal Balance
VI. Conclusion
28. The Cosmopolitan and Federal Margins of Appreciation
I. Introduction
II. The Cosmopolitan Dimension
III. Two Reasons for Federalism
IV. Consequences
V. Freedom of Movement and Fundamental Rights
VI. Tug-of-War
VII. Absorption
VIII. Kelsen's Third Sphere
IX. Beyond Law
Conclusion
I. Quantity
II. Quality
III. Structures and Institutions
IV. The Road(s) Ahead
V. The Charter: A (R)evolution that Never Was?
Selected Bibliography
Index

Citation preview

THE EU CHARTER OF FUNDAMENTAL RIGHTS IN THE MEMBER STATES Ten years after the Charter of Fundamental Rights of the European Union became part of binding primary law, and 20 years since its adoption, this volume assesses the application of the EU Charter in the Member States. How often, and in particular by which actors, is the EU Charter invoked at the national level? In what type of situations is it used? Has the approach of national courts in general, and of constitutional courts in particular, to EU law and to EU fundamental rights law changed following the entry into force of the Charter? What sort of interplay does the Charter generate with the national bill of rights and the European Convention? Is life with the Charter on the national level a harmonious ‘praktische Konkordanz’ or rather a messy ‘ménage à trois’? These and other questions are discussed in the four parts that form the book. Part I is dedicated to the normative foundations. Part II sets out Member States’ Perspectives, providing a structured, in-depth account of the Charter’s operation in 16 different Member States. Part III provides a detailed evaluation of the national application of selected rights contained within the Charter. Part IV synthesises the materials presented to develop a series of broader perspectives, and looks to discover underlying lessons about the relationship between EU fundamental rights law and national legal systems. Volume 7 in the series EU Law in the Member States

EU Law in the Member States Located at the cross-section between EU law, comparative law and socio-legal studies, EU Law in the Member States explores the interaction of EU law and national legal systems by analysing comparative evidence of the impact landmark EU measures – from CJEU decisions and secondary legislation to soft law – have had across different Member States. The nature and operation of EU law has traditionally been analysed in a highly ‘centralised’ way, through the lenses of Brussels and Luxembourg, and in terms of the Treaty and its interpretation by the Court of Justice. Beneath this orthodoxy, however, lies the complex world of the genuine life of EU law in the Member States. Judicial and administrative practices across the Union’s 27 Member States considerably qualify and sometimes even challenge the long-standing assumption that doctrines such as the direct effect and supremacy of EU law ensure a uniform and effective application of its provisions. Each volume brings together leading academics, national experts and practitioners in order to draw conclusions both for EU law generally and the specific area in question on the basis of Member State reports and broader horizontal papers, and will be of interest to ­generalist EU lawyers and specialists in each field across the Member States. Academic audiences will benefit from the tight integration of national case studies and doctrinal analysis, whilst practitioners and policy makers will find systematically presented comparative evidence and commentary. Series Editors Jeremias Adams-Prassl Michal Bobek Volume 1: Viking, Laval and Beyond Edited by Mark Freedland and Jeremias Prassl Volume 2: Central European Judges under the European Influence: The Transformative Power of the EU Revisited Edited by Michal Bobek Volume 3: Air Passenger Rights, Ten Years On Edited by Jeremias Prassl and Michal Bobek Volume 4: The Eurosceptic Challenge Edited by Clara Rauchegger and Anna Wallerman Volume 5: The Impact of European Institutions on the Rule of Law and Democracy: Slovenia and Beyond Matej Avbelj and Jernej Letnar Cernic Volume 6: The Effectiveness of The Köbler Liability in National Courts Zsófia Varga

The EU Charter of Fundamental Rights in the Member States Edited by

Michal Bobek and

Jeremias Adams-Prassl

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2020 Copyright © The editors and contributors severally 2020 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2020. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Bobek, Michal, 1977- editor.  |  Prassl, Jeremias, editor. Title: The EU charter of fundamental rights in the member states / edited by Michal Bobek and Jeremias Prassl. Other titles: European Union charter of fundamental rights in the member states Description: Oxford, UK ; New York, NY : Hart Publishing, an imprint of Bloomsbury Publishing, 2020.  |  Series: EU law in the member states ; volume 7  |  Includes bibliographical references and index. Identifiers: LCCN 2020035610 (print)  |  LCCN 2020035611 (ebook)  |  ISBN 9781509940912 (hardback)  |  ISBN 9781509945641 (paperback)  |  ISBN 9781509940929 (Epub)  |  ISBN 9781509940936 (epdf) Subjects: LCSH: Charter of Fundamental Rights of the European Union (2000 December 7)  |  Human rights—European Union countries. Classification: LCC KJE5132 .E918 2020 (print)  |  LCC KJE5132 (ebook)  |  DDC 341.4/8094—dc23 LC record available at https://lccn.loc.gov/2020035610 LC ebook record available at https://lccn.loc.gov/2020035611 ISBN: HB: 978-1-50994-091-2 ePDF: 978-1-50994-093-6 ePub: 978-1-50994-092-9 Typeset by Compuscript Ltd, Shannon

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Table of Contents Notes on Contributors�������������������������������������������������������������������������������������������������������ix List of Abbreviations�������������������������������������������������������������������������������������������������������xxi Introduction����������������������������������������������������������������������������������������������������������������������� 1 Jeremias Adams-Prassl and Michal Bobek PART I THE FOUNDATIONS 1. The Role of the EU Charter in the Member States������������������������������������������������������� 19 Koen Lenaerts 2. The EU Charter Ten Years On: A View from Strasbourg���������������������������������������������� 37 Síofra O’Leary PART II MEMBER STATE PERSPECTIVES 3. Austria: United in Consistent Interpretation��������������������������������������������������������������� 69 Christoph Grabenwarter and Christine Pesendorfer 4. Belgium: The EU Charter in a Tradition of Openness�������������������������������������������������� 87 Sarah Lambrecht 5. Bulgaria: Rays of Light in a Cloudy Sky������������������������������������������������������������������� 109 Alexander Kornezov 6. Czech Republic and Slovakia: Another International Human Rights Treaty?������������� 127 Adam Blisa, Pavel Molek and Katarína Šipulová 7. The EU Charter before the French Parliament and Courts: Between (Great) Disillusion and (Little) Hope������������������������������������������������������������������������������������ 159 Laurence Burgorgue-Larsen 8. Taking Up the European Mandate: The Charter Before German Courts�������������������� 175 Mattias Wendel 9. Hungary: A Half-Hearted Look at the Charter��������������������������������������������������������� 197 Antal Berkes, András Jakab and Pál Sonnevend 10. Ireland and the Charter: Ten Underwhelming Years?������������������������������������������������� 225 Gerard Hogan

vi  Table of Contents 11. Italy: New Frontiers and Further Developments�������������������������������������������������������� 239 Silvana Sciarra and Angelo Jr Golia 12. The Netherlands: The New Kid on the Block, Growing Pains or Growing Gains?������ 257 Corinna Wissels and Aniel Pahladsingh 13. Poland – The Charter of Fundamental Rights as a Last Resort?��������������������������������� 275 Krystyna Kowalik-Bańczyk 14. Portugal: Lukewarm Engagement with the Charter��������������������������������������������������� 289 Gonçalo de Almeida Ribeiro and Patrícia Fragoso Martins 15. Trials, Tributes and Tribulations: The EU Charter before the Slovenian Courts���������� 305 Matej Accetto 16. The (Incomplete) Reception of the EU Charter of Fundamental Rights in Spain�������� 319 Daniel Sarmiento and Xavier Codina 17. Limited But Not Inconsequential: The Application of the Charter by the Courts of England and Wales����������������������������������������������������������������������������������������������� 331 Lady Arden and Takis Tridimas PART III SELECTED RIGHTS 18. Article 8: The Right to Data Protection��������������������������������������������������������������������� 353 Orla Lynskey 19. Article 47: The Right to an Effective Remedy and to a Fair Trial�������������������������������� 371 Kathleen Gutman 20. Article 50: The Elusive Shape of the Ne Bis In Idem Rule������������������������������������������ 385 Magdalena Ličková 21. Article 51: The Scope of Application of the Charter������������������������������������������������� 401 Sara Iglesias Sánchez 22. Article 52: Twenty-Eight Shades of Interpretation?���������������������������������������������������� 421 Maja Brkan and Šejla Imamović 23. Why Article 53 of the Charter Should Ground the Application of National Fundamental Rights in Fully Harmonised Areas������������������������������������������������������� 441 François-Xavier Millet PART IV BROADER PERSPECTIVES 24. References for a Preliminary Ruling and the Charter of Fundamental Rights: Experiences and Data from 2010 to 2018������������������������������������������������������������������� 467 David Reichel and Gabriel N. Toggenburg 25. The Charter as a Standard of Constitutional Review in the Member States��������������� 483 Clara Rauchegger

Table of Contents  vii 26. Exporting Cherries for the Cakes: The Charter of Fundamental Rights in Domestic Courts of the EU’s Neighbourhood������������������������������������������������������� 499 Adam Łazowski 27. Protecting Fundamental Rights Beyond the Charter: Repositioning the Reverse Solange Doctrine in Light of the CJEU’s Article 2 TEU Case-Law����������������� 525 Armin von Bogdandy and Luke Dimitrios Spieker 28. The Cosmopolitan and Federal Margins of Appreciation������������������������������������������ 547 Alexander Somek Conclusion��������������������������������������������������������������������������������������������������������������������� 559 Michal Bobek and Jeremias Adams-Prassl Selected Bibliography������������������������������������������������������������������������������������������������������ 575 Index������������������������������������������������������������������������������������������������������������������������������ 589

viii

Notes on Contributors Matej Accetto has been a Judge (since March 2017) and Vice-President (since September 2019) of the Constitutional Court of the Republic of Slovenia, as well as Associate Professor of European Law at the University of Ljubljana Faculty of Law. He is also a former Fellow of the Lord Slynn of Hadley European Law Foundation (2003–04), the Monica Partridge Visiting Fellow at the University of Cambridge, Fitzwilliam College (2006), Japan Foundation Fellow at Waseda University (2011), Visiting Scholar at the University of Cambridge, Faculty of Law (2012), and Gulbenkian Professor of Law at the Católica Global School of Law/UCP Lisbon (2013–16), where he continues to teach as a Visiting Professor. To the extent that his work at the Court allows for it, his research interests mostly focus on EU public law, the role of the courts and citizenship issues. Jeremias Adams-Prassl is Professor of Law, and Deputy Director of the Institute of European and Comparative Law, University of Oxford. He is the author of Humans as a Service (winner of the 2019 St Petersburg Prize) (Oxford University Press, 2018) and The Concept of the Employer (Oxford University Press, 2015), over 100 articles, chapters, and commentaries, as well as an editor of Chitty on Contracts (33rd edn, Sweet & Maxwell, 2018) and the EU Law in the Member States series (Hart). He read law at Oxford, Paris and Harvard; his work has been recognised by prizes for teaching, research and public impact, including the Wedderburn, Mancini and Apgar Prizes, an Oxford University Teaching Award, a British Academy Rising Star Engagement Award, an O2RB Excellence in Impact Award, and an ESRC Outstanding Impact in Public Policy Prize. He is particularly interested in the role of fundamental rights in shaping the future of work, technology, and innovation, and tweets @JeremiasPrassl. Gonçalo Almeida Ribeiro has been a Judge of the Constitutional Court of Portugal since July 2016 and is Professor at the Faculty of Law of Universidade Católica Portuguesa. He undertook basic legal studies at the Universidade Nova de Lisboa (2006) and has an LLM (2007) and SJD (2012) from Harvard Law School. He is a member of the Executive Committee of the International Association of Constitutional Law (IACL). He was joint coordinator of the Lisbon Section of the Católica Research Centre for the Future of Law (2014–16), Visiting Professor at KU Leuven (2013) and at the Law Faculty of the University of Perugia (2014), held a Gulbenkian Professorship at the Católica Global School of Law (2013–16), was Clark Byse Fellow at Harvard Law School (2010/11) and was a Teaching Fellow at the Harvard Kennedy School of Government (2009/10). He was awarded the Harvard Law School’s Mancini Prize for his dissertation, published as The Decline of Private Law: A Philosophic History of Liberal Legalism (Hart, 2019), and won the Dean’s Award for Excellence in Student Teaching at the Harvard Kennedy School of Government (2010). He is a member of the International Society of Public Law (ICON-S), the International Law Association (ILA) and the Internationale Vereinigung für Rechts- und Sozialphilosophie (IVR). His research is in the fields of constitutional theory, legal philosophy, comparative law and the history of legal thought. He has been a guest speaker at Columbia Law School, the European University Institute, Harvard Law School, Humbold-Universität zu Berlin, the Johns Hopkins School of Advanced International

x  Notes on Contributors Studies, Katholieke Universiteit Leuven, Oxford University Faculty of Law, Università Bocconi, Università degli Studi di Bologna, Università degli Studi di Perugia, among others. The Rt Hon Lady Arden DBE was called to the Bar of England and Wales in 1971, and became a Queen’s Counsel in 1986. She is a graduate of Cambridge and Harvard, and holds several honorary degrees. She was appointed a Justice of the High Court of Justice of England and Wales in 1993, being the first woman judge to be assigned to the Chancery Division. From 1 January 1996 to 31 January 1999 she was the chair of the Law Commission of England and Wales. In 2000 she acted as an ad hoc judge of the ECtHR in Strasbourg. In 2000 she was appointed member of the Court of Appeal of England and Wales. She has sat on cases on a wide range of subjects, including human rights, constitutional law, asylum, EU law, ­housing, VAT, tax and directors’ duties. Lady Arden is also a Member of the Permanent Court of Arbitration in The Hague, and an ad hoc judge of the ECtHR. She is an Honorary fellow of the American College of Trial Lawyers. In June 2017 Lady Arden was appointed as the Chair of the Septemviri by the University of Cambridge. Lady Arden was a member of the Steering Group of the Company Law Review established by the Department of Trade and Industry from 1998 to 2001. The Review’s final report led to the Companies Act 2006, the longest statute ever passed by the British Parliament. She was the chair of the Papers Committee for the Commonwealth Law Conference held in London in September 2005. From 2004 to 2006 Lady Arden was chair of the Judges’ Council Working Party on Constitutional Reform which was heavily involved in the draft legislation which became the Constitutional Reform Act 2005 and the Judicial Discipline (Prescribed Procedures) Regulations 2006. Lady Arden was Head of International Judicial Relations for England and Wales from 2005 until January 2018. She has travelled extensively to help promote the rule of law and to further her personal ­interest in meeting judges in other jurisdictions and in comparative human rights and constitutional law. Lady Arden has given numerous lectures, and written articles and books (or c­ ontributions to books) on human rights, company law, terrorism and other subjects. In 2015, she authored two books entitled Human Rights and European Law: Building New Legal Orders and Common Law and Modern Society: Keeping Pace with Change (both published by Oxford University Press). On 1 October 2018 Lady Arden was appointed a Justice of the Supreme Court of the United Kingdom. Antal Berkes holds a masters’ degree in law from the Eötvös Loránd University (Budapest), and postgraduate degrees from the Central European University (human rights LLM) and Université Aix-Marseille III (masters in international law). He completed his PhD at Université Paris 1 (Panthéon-Sorbonne) in co-supervision with the Eötvös Loránd University (Budapest) in 2015 with a thesis entitled ‘“Grey Zones”: The Protection of Human Rights in Areas out of the Effective Control of the State’. His research interests are public international law and EU law. His international law interests encompass the fields of international human rights law, international humanitarian law and refugee law. Between 2016 and 2018, he was postdoctoral research fellow at the University of Manchester, Manchester International Law Centre. In 2019, he was postdoctoral research fellow at the University of Pretoria, SARChI Professorship on International Constitutional Law (Prof Erika de Wet), which resulted in his book ­entitled International Human Rights Law in Areas Beyond State Territorial Control (Cambridge University Press, forthcoming). He is currently a lecturer in public/international law at Brunel University London. Michal Bobek is Advocate General at the Court of Justice of the European Union. He s­ tudied law and international relations (Charles University in Prague), and obtained a diploma

Notes on Contributors  xi in English law and the law of the European Union (University of Cambridge), a Magister Juris (University of Oxford) and a Doctor of Laws (European University Institute, Florence). He served as Legal Secretary to the President of the Supreme Administrative Court of the Czech Republic (2005–09) and as Head of the Research and Documentation Department of that court (2008–09). He was a Fellow (2011–12) and Research Fellow (2013–16) at the Institute of European and Comparative Law of the University of Oxford; and a Professor at the College of Europe in Bruges (2013–15). He has been a lecturer and visiting professor at numerous universities in Europe and overseas, and is the author of numerous publications in the field of EU law, European human rights, comparative (public) law and legal theory. Armin von Bogdandy is director at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg and Professor for Public Law at the University in Frankfurt/ Main. He studied law and philosophy before obtaining a PhD in Freiburg (1988) and qualifying as a professor at the FU Berlin (1996). He has been President of the OECD Nuclear Energy Tribunal as well as a member of the German Science Council (Wissenschaftsrat) and the of Scientific Committee of the European Union Agency for Fundamental Rights; he has held visiting positions at the New York University School of Law, the European University Institute, the Xiamen Academy of International Law and the Universidad Nacional Autonóma de México, among others. He is the recipient of the Leibniz Prize, the prize for outstanding scientific achievements in the field of legal and economic foundations by the Berlin-Brandenburg Academy of Sciences, the Premio Internacional ‘Hector Fix Zamudio’, and the ‘Mazo’ (gavel) of the Interamerican Court of Human Rights. His research centres on the structural changes affecting public law, be they theoretical, doctrinal or practical. Adam Blisa earned his MA in law at the Faculty of Law at Masaryk University in Brno, and continues there as a PhD candidate at the Department of Constitutional Law and Political Science. Apart from his work at the Judicial Studies Institute, he clerks for a judge of the Supreme Administrative Court of the Czech Republic. Maja Brkan is Associate Professor of European Union Law at Maastricht University. She holds the position of Associate Director of the Maastricht Centre for European Law and is Associate Editor of the European Data Protection Law Review. Her current research focuses on the ­theoretical underpinnings of the EU fundamental rights, on the interplay between EU fundamental rights and new technologies as well as on questions of data protection and privacy. In her work, she further explores the impact of new technologies, in particular artificial intelligence, on the European democracy and freedom of elections. She regularly acts as a peer-reviewer for top EU legal journals, was a recipient of the Slovenian prize ‘Young Lawyer of the Year 2007’ and holds a prestigious Diploma of the Academy of European Law from the European University Institute in Florence. She is the coauthor (together with Prof Dr Verica Trstenjak) of the core textbook on EU law in the Slovenian language, an author of a monograph on EU external relations and an editor of two edited volumes. Before entering academia in Maastricht in 2013, she worked as a legal advisor (référéndaire) for two Slovenian members of the Court of Justice of the European Union. Laurence Burgorgue-Larsen is Professor in Law at the Sorbonne Law School (University Paris 1), member and former Vice-Deputy of the Institut de Recherche en droit international et ­européen de la Sorbonne (IREDIES) and Director of the Studies Group on International Law and Latin American Law (GEDILAS) of the Sorbonne within the IREDIES. She is the director of the collection Cahiers européens from the French publisher Pedone and a member of the advisory board of numerous legal journals (eg EJHR, NQHR, RTDH). She researches and teaches

xii  Notes on Contributors in the areas of human rights law, comparative law and European and international law. Her publications (in several languages) are diverse in the field of regional human rights: she is the author of La Convention européenne des droits de l’homme (2nd edn, Lextenso, 2015), El diálogo judicial. Máximo desafío de los tiempos jurídicos modernos (Mexico City, Porrúa, 2013) and coauthor, with A Úbeda de Torres, of The Inter-American Court of Human Right. Case Law and Commentaries (Oxford University Press, 2011). She has also managed several collective researches, La Charte des droits fondamentaux de l’Union européenne saisie par les juges en Europe [The EU Charter of Fundamental Rights as Apprehended by National Judges] (Pedone, 2017), Derechos humanos en contexto en América latina. El impacto del sistema interamericano de derechos humanos en los Estados partes, vol 1: Colombia, Ecuador, Haití México, Nicaragua, Perú, República Dominicana, Uruguay, Venezuela (Tirant lo Blanch, 2016). She has been invited to numerous universities in Europe, Africa, Asia and various Latin American countries. She is also, since January 2012, a Judge at the Constitutional Court of Andorra (President, 2014–16). Xavier Codina García-Andrade earned his PhD in law at Universidad Complutense de Madrid in 2016 and he is currently Professor of Administrative and EU Law at CUNEF. As part of his academic experience he spent five months at the Court of Justice of the European Union within Advocate General Campos Sánchez-Bordona’s cabinet. He is a practising lawyer in the Madrid office of Uría Menéndez where he is part of the public law team, advising on a wide range of areas of administrative and EU law, especially in regulated sectors, security and defence, prevention of money laundering, public procurement law and liability of public authorities. He has authored numerous contributions, his most recent being a book on public contract modifications, La modificación de los contratos del sector público (BOE, 2019). Patrícia Fragoso Martins is Professor of Law at the Law Faculty, Universidade Católica Portuguesa, Lisbon, and researcher at the Católica Research Centre for the Future of Law, since 2013. She obtained a law degree and an MPhil at the School of Law of Universidade Católica Portuguesa (2001 and 2011), and was a Visiting Research Fellow at Columbia University School of Law (2007/08). She obtained an LLM in EU law at King’s College London School of Law in (2009/10) and a PhD in EU law at Católica Global School of Law (2013) with a dissertation entitled ‘Rethinking Access by Private Parties to the Court of Justice of the European Union’. She has been an attorney-at-law registered with the Portuguese Bar since 2003, legal counsel responsible for the European and competition law practice at Campos Ferreira, Sá Carneiro e Associados since 2013, and an alternate member of the Board of Management of the Fundamental Rights Agency of the European Union since 2015. She was Director of the Master of Transnational Law programme at the School of Law of Universidade Católica Portuguesa (2016–18), and since 2015 has been a member of the Executive Commission of the Annual Meeting of Portuguese Public Law Professors. She was a member of the Coordination Commission and Executive Director of the Católica Research Centre for the Future of Law (2013), a member of the Advisory Board to the Dean of the School of Law of Universidade Católica Portuguesa, Lisboa (2011–13), Executive Coordinator of the Arbitration Centre at Catholic University (2008–13), legal adviser for the Ministry of Justice in the fields of public law, European law and international law (2006–07), and a teaching assistant at Universidade Católica Portuguesa (2003–13). She is currently teaching at bachelor, master, postgraduate and PhD levels, and researching mostly in the areas of EU law, international law, fundamental rights law and case method.

Notes on Contributors  xiii Angelo Jr Golia (LLM and PhD, University of Naples 2) is currently Senior Research Fellow at the Max Planck Institute for Public Comparative Law and International Law of Heidelberg (Germany). Over the past years, he has spent research stays at the Institut des Hautes Etudes sur la Justice in Paris (2015), at the Aix-Marseille Université (2015 and 2017), and at the University of Pittsburgh (2016). He also served for a year (2017/18) as a junior clerk at the Italian Constitutional Court (with Judge Silvana Sciarra) and collaborated with the International Human Rights Law Clinic of the Aix-Marseille Université. His research interests focus on legal pluralism, the constitutionalisation of international law, the judicialisation of politics, and the interface between economic power and constitutionalism. His most recent publications concern the role of the right of resistance in transnational settings and the intellectual foundations of the ECtHR. He is a member of the Advisory Board of the Heidelberg Journal of International Law. Christoph Grabenwarter studied law and business administration in Vienna (1984–89); obtaining a Dr iur, University of Vienna (1991) and a Dr rer soc oec, University of Vienna (1994). He was a research assistant and lecturer at the University of Vienna, Institute for State and Administrative Law (1988–97); a member of the Secretariat of the European Commission of Human Rights, Strasbourg (1991); and a Research Fellow at the Max Planck Institute of Comparative Law and Public International Law, Heidelberg (1994–95). He achieved habilitation in constitutional law, administrative law and comparative public law, University of Vienna Faculty of Law (1997) and was a visiting professor, University of Linz/Danube, Austria (1997–99), Professor for Public Law, University of Bonn (1999–2002); an ad hoc Judge at the European Court of Human Rights (2002-5); Professor for Comparative and European Public Law, University of Graz (2002–06); Professor for Public Law, Business Law and International Law, University of Economics and Business, Vienna (since 2006); Judge at the Constitutional Court of Austria (since 2005) and Vice-President (since 2018); a member of the Commission ‘Democracy through Law’, Council of Europe (‘Venice Commission’) (since 2006); a member of the Advisory Panel of Experts on Candidates for Election as Judge to the ECtHR, Strasbourg (since 2014) and Deputy Chairman (since 2018); President of the Austrian Jurists’ Forum ÖJT (Österreichischer Juristentag) (since 2015); and Fellow at the Institute for Advanced Study (Wissenschaftskolleg), Berlin (2018–19). Kathleen Gutman is a Legal Secretary (référendaire) in the Chambers of Advocate General Evgeni Tanchev at the Court of Justice of the European Union. She holds a PhD in law and an MA in European studies from the University of Leuven. She also holds a JD and LLM in international and comparative law from the Duke University School of Law. She previously worked as a litigation associate at the New York office of Jones Day, as an assistant professor of EU law at the University of Antwerp, and as a visiting professor at the Institute for European Law of the University of Leuven. Her research and practice focus on the fields of EU procedural and constitutional law. In particular, she is coauthor (with K Lenaerts and I Maselis) of EU Procedural Law (Oxford University Press, 2015; 2nd edn forthcoming), concerning the EU system of judicial protection and procedure before the Court of Justice. Gerard Hogan was previously a lecturer in law at Trinity College, Dublin from 1981 to 2007 and a Senior Counsel from 1997 to 2010. He was appointed a judge of the High Court of Ireland in October 2010 and a judge of the Court of Appeal of Ireland in October 2014. He was nominated by the Government of Ireland to the post of Advocate General of the Court of Justice in May 2018 and took up that position for a six-year term in October 2018. His most

xiv  Notes on Contributors recent publication is Kelly, The Irish Constitution (of which he is joint editor), the fifth edition of which was published in November 2018. Sara Iglesias Sánchez holds a PhD in law from the University Complutense, an LLM from the Yale Law School and a BA in political sciences from the UNED. She is legal secretary at the Court of Justice of the European Union, at the chambers of Advocate General Bobek. She has also been legal secretary at the chambers of Advocate General Cruz Villalón and has been legal officer at the Research of Documentation Directorate of the Court of Justice. Prior to that, she was a lecturer in EU and international law at the University of Cádiz, where she also coordinated a bilingual masters in international relations and migrations. She has lectured at the Universidad Complutense, the IE University, ICADE, the University of Salamanca and has acted as supervisor of student research at the Center of Constitutional and Political Studies in Madrid. She has been visiting researcher at the Max Planck Institute for International and Comparative Law, the Centre for Migration and Law of Radboud University, and the Center of Research and Studies of the Hague Academy of International Law. She has also acted as a consultant for the International Organisation for Migrations. She has published extensively on EU migration law, citizenship and fundamental rights. She is the author of a monograph on Free Movement of Third Country Nationals in the EU (Reus, 2010) and has coedited two collected volumes (Global Challenges in the Arctic Region, Routledge, 2017, with E Conde; and Protecting Vulnerable Groups, Hart, 2015, with F Ippolito). She is a member of the editorial board of the Revista de Derecho Comunitario Europeo and of the scientific board of European Papers. She is currently coediting a collection of essays on the Charter of Fundamental Rights in the Area of Freedom, Security and Justice (Cambridge University Press, forthcoming, with M Gonzalez Pascual). Šejla Imamović is Assistant Professor of European and Comparative Constitutional Law at Maastricht University, having previously been a PhD researcher and lecturer there. Her main research interest is fundamental rights law of the European Union, with a particular focus on its relation with the ECHR and national law. She has published widely in academic journals and books, and has written thematic reports for, among others, the European Parliament and the Council of Europe. András Jakab is Professor of Austrian Constitutional and Administrative Law at the University of Salzburg (since 2017). He is also an Honorary Fellow of the Pázmány Péter Catholic University. Formerly he held different research and teaching positions in Budapest (Calvinist University Károli Gáspár in Budapest, 2001–03; Pázmány Péter Catholic University 2010–11 and 2016–17; Hungarian Academy of Sciences 2013–17), Madrid (Centro de Estudios Políticos y Constitucionales, 2008–10), Liverpool (University of Liverpool, 2006–08), Nottingham (Nottingham Trent University, 2004–06) and Heidelberg (Max Planck Institute for Comparative Public Law and International Law, 2003–04 and 2011–16). He held a number of visiting and temporary positions in Milan, Luxembourg, Vienna, Heidelberg and Budapest. His main research areas are constitutional law, European law, legal theory and comparative law. His recent publications include European Constitutional Language (Cambridge University Press, 2016), The Enforcement of EU Law and Values (coedited with D Kochenov, Oxford University Press, 2017) and Comparative Constitutional Reasoning (coedited with A Dyevre and G Itzcovich, Cambridge University Press, 2017). Alexander Kornezov graduated in law from St Kliment Ohridski University, Sofia (2002), and has a Master of Laws in European law from the College of Europe (Bruges, 2004) and a Doctor of Laws (2008). He was a lawyer at the Brussels Bar (2004–06); a senior lecturer in

Notes on Contributors  xv EU procedural law at the University of National and World Economy, Sofia (2008–12) and St Kliment Ohridski University, Sofia (2010–13); Associate Professor of EU Law and International Private Law at the Bulgarian Academy of Sciences (since 2014); guest lecturer at the University of Cambridge and at the Katholieke Universiteit Leuven; Legal Secretary at the Court of Justice of the European Union (2007–16); a Judge at the Civil Service Tribunal from 13 April 2016 to 31 August 2016; and has been a Judge at the General Court since 19 September 2016. He was a founding member and member of the board of directors of the Bulgarian Association for European Law, was editor-in-chief of the European law journal Evropeiski praven pregled, and is the author of numerous publications in the field of European law. Krystyna Kowalik-Banczyk PhD is Associate Professor of European Law and Competition Law at the Institute of Law Studies, Polish Academy of Sciences, Warsaw. She graduated from the Faculty of Law and Administration at the Gdańsk University. She undertook postgraduate studies (DEA) in European Community law at the University of Social Sciences in Toulouse, France and then achieved an LLM in EU law at the College of Europe in Bruges (Belgium). She wrote her PhD on the regulation of e-commerce in EU and international law. She has lectured in EU law at the Centre of Europe of the University of Warsaw, at the European School of Law and Administration in Warsaw and at the Technical University of Gdańsk. She has been a visiting professor at the University Panthéon-Assas in Paris, the University Nice Sophia-Antipolis and the University of Luxembourg. She obtained her professorship on the basis of her book on the right of defence in EU antitrust proceedings. From September 2016 she has been a Polish judge at the General Court of the European Union. Sarah Lambrecht is a référendaire at the Belgian Constitutional Court and a researcher at the Research Group Government and Law, University of Antwerp. Prior to becoming a law clerk, she undertook a traineeship at the ECtHR and a research stay at the University of Cambridge. She is coeditor (with P Popelier and K Lemmens) of the book Criticism of the European Court of Human Rights (Intersentia, 2016). Currently, she is completing her doctoral research under the supervision of Prof Dr Patricia Popelier on the dynamics between national fundamental rights protection and the ECHR system. Her research specialties are constitutional law and European human rights protection. Koen Lenaerts holds a lic iuris, PhD in Law (Katholieke Universiteit Leuven) and a Master of Laws, Master in Public Administration (Harvard University). He was a lecturer (1979–83) and subsequently Professor of European Law, Katholieke Universiteit Leuven (since 1983); Legal Secretary at the Court of Justice (1984–85); Professor at the College of Europe, Bruges (1984–89); a member of the Brussels Bar (1986–89); a visiting professor at Harvard Law School (1989); a Judge at the Court of First Instance of the European Communities from 25 September 1989 to 6 October 2003; a Judge at the Court of Justice since 7 October 2003; Vice-President of the Court of Justice from 9 October 2012 to 8 October 2015; and has been President of the Court of Justice since 8 October 2015. Adam Łazowski is a Professor of EU Law at Westminster Law School, University of Westminster. His research focuses on EU pre-accession policy, EU external relations, the internal market, EU criminal law as well as withdrawal from the European Union. On the latter topic he has published extensively in academic journals (European Law Review, Public Law, Journal of European Public Policy) and edited volumes published by Oxford University Press and Cambridge University Press. His monograph on legal parameters of EU exit is forthcoming (Edward Elgar). He serves on the editorial boards of the New Journal of European Criminal Law, and an online journal European Papers and Croatian Yearbook of European Law

xvi  Notes on Contributors and Policy. He regularly speaks at conferences around the world, and has delivered guest lectures at various European universities, including the College of Europe, the University of Surrey, the University of Leicester, the University of Sussex, the University of Warsaw, the University of Tartu, Université Libre de Bruxelles, the University of Zagreb, the University of Luxembourg, the University of Basel and the University of Rotterdam. He regularly teaches at the European Law Academy (ERA) in Trier (Germany) and the European Institute of Public Administration (EIPA) in Luxembourg. In November 2012 he provided oral and written evidence to the House of Lords EU Select Committee (inquiry into EU enlargement). In December 2015 he provided oral and written evidence to the Scottish Parliament (inquiry into withdrawal from the EU). In December 2017 his written evidence was cited in the House of Lords report, ‘Brexit: Deal or No Deal’. Magdalena Ličková is a référendaire at the Court of Justice of the European Union (cabinet of Advocate General Michal Bobek). Previously she gained experience at an international law firm and she was a postdoctoral researcher at the University of Luxembourg. She completed her PhD examining the interplay between the EU and the Member States’ external relations at the Université Paris I-Sorbonne. She holds law degrees from Harvard Law School, Université Paris I, Université des Sciences Sociales de Toulouse, and the University of West Bohemia in Pilsen. She publishes and lectures on EU law. Orla Lynskey is an Associate Professor of Law at the London School of Economics and Political Science. She teaches and conducts research in the areas of data protection and digital rights, technology regulation, and EU law. She studied at Trinity College Dublin (LLB, Law and French), the College of Europe, Bruges (LLM) and the University of Cambridge (PhD). Her doctoral research and monograph (The Foundations of EU Data Protection Law, Oxford University Press) focused on the dual dignitary and economic nature of personal data and the normative limits of individual control over such data. She is currently working on interrelated projects on the fundamental rights implications of ‘data power’ in digital markets and the EU’s right to data portability. She is a general editor of International Data Privacy Law and a case-note editor of the Modern Law Review. She is also a member of the EU Commission multi-stakeholder expert group on the GDPR and a member of several advisory boards on matters relevant to data protection. Prior to entering academia, she worked for two years in competition law practice in Brussels. François-Xavier Millet is a Professor of Public Law at the University of the Antilles (Guadeloupe, France), currently on leave at the Court of Justice as a référendaire within the chambers of Advocate General Bobek. A graduate of Sciences Po Paris, Sorbonne Law School and Jean Moulin University in Lyon, he obtained his PhD at the European University Institute (Florence, Italy). Following his doctorate, he became an Associate Professor at the University of Toulouse Capitole before being appointed in Guadeloupe as Full Professor after successfully passing the agrégation in France. He has published numerous articles in the field of EU law and comparative constitutional law in French, English and Italian. He is the author of two monographs: Le contrôle de constitutionnalité des lois de transposition en France et en Allemagne (L’Harmattan, 2011) and L’Union européenne et l’identité constitutionnelle des États membres (LGDJ-Lextenso, 2013), for which he was awarded the prix de thèse du Conseil constitutionnel and the Mauro Cappelletti Prize. He has been a coeditor of the European Constitutional Law Review since 2016. Pavel Molek has a law degree from the Faculty of Law of Masaryk University and a political science degree from the Faculty of Social Sciences of Masaryk University. During 2009/10, he

Notes on Contributors  xvii completed the LLM programme Law in European and Global Context at the Universidade Católica in Lisbon. In 2015, he was appointed a Judge at the Supreme Administrative Court. At the same time, he has been working as a lecturer and scholar at the Masaryk University in Brno, where he completed his habilitation in 2015 and was appointed Associate Professor (docent) of Constitutional Law. Since 2010, he has delivered guest lectures annually at the Universidade Católica in Lisbon. He is currently working on a book series about human rights, and has authored several other books. He writes radio dramas for Czech radio, including My (For This Time) Occupied Country and See, the Conqu’ring Hero Comes! (an alternative history of the creation of Handel’s oratorio Judas Maccabeus). Síofra O’Leary, BCL (University College Dublin), PhD (European University Institute) was sworn in as a Judge at the ECtHR in July 2015. Prior to joining the ECtHR, Judge O’Leary worked for 18 years at the Court of Justice of the European Union, where she served as a référendaire and chef de cabinet for Judges Aindrias Ó Caoimh, Fidelma Macken and Federico Mancini. She later ran part of that Court’s Research Directorate. Judge O’Leary has been a Visiting Professor at the College of Europe in Bruges for many years where she has taught LLM courses on EU law and the individual, EU social law and policy and now a judicial workshop. She has, in recent years, been a member of the editorial board of the Common Market Law Review and is now a member of both its Advisory Board and the Board of the Irish Centre for European Law. In 2016 she was elected an Honorary Bencher of the Honorable Society of King’s Inns. Before joining the Court of Justice of the European Union, she was the Assistant Director for the Centre of European Legal Studies at the University of Cambridge and a Fellow of Emmanuel College. She was previously a Visiting Fellow at the Faculty of Law, University College Dublin, a Postdoctoral Fellow at the University of Cádiz, Spain and a Research Associate at the Institute for Public Policy Research in London. She is the author of two books entitled The Evolving Concept of Community Citizenship (Kluwer, 1996) and Employment Law at the European Court of Justice (Hart, 2001) and has published extensively in academic journals and monographs on the protection of fundamental rights, EU employment law, the free movement of persons and services, and EU citizenship. Aniel Pahladsingh has a law degree from the University of Leiden (1999) and has worked since 2007 as an EU lawyer at the Dutch Council of State. He is the Secretary of the Commission on European Union Law at the Council, which has coordinating tasks in the field of EU law, including questions on the EU Charter and the implementation of EU law into national law. Since 2010 he has been deputy judge at the district court of Rotterdam, where he settles disputes within administrative law. In 2017, he was appointed as a deputy member at the Human Rights Committee and is engaged in disputes about human rights protection. Before working at the Dutch Council of State, he worked in various positions at the Immigration and Naturalization Service (2000–07). He has written several articles regarding human rights and the Charter of Fundamental Rights. Christine Pesendorfer studied law at Vienna University and EUI Florence, Doctor of Laws (1982), and was Assistant Lecturer at the Institute of Public Law at Vienna University; Legal Secretary at the Austrian Constitutional Court (1986–89); and Lecturer at the Vienna University for Business (1992–99). She worked in the Federal Chancellery of Austria, Constitutional Office as a member of the preparation team for Austria’s accession to the EES and the EC (1989–94). She has been a legal advisor on constitutional law and European law; a Permanent Agent of the Republic of Austria before the Courts of the European Union (1998–2017); Head of Unit EC Litigation (2001–07); Head of the Department Legal Affairs of European Integration and International Economic Law (2007–17); and Head of the Department of Legal Services (2018).

xviii  Notes on Contributors Clara Rauchegger is Assistant Professor of EU Law at the University of Innsbruck. Previously she was a Max Weber Postdoctoral Fellow at the European University Institute for two years. Clara completed her PhD at the University of Cambridge, where she was a scholar of the Austrian Academy of Sciences and the UK Arts & Humanities Research Council. Prior to the PhD, she worked at the Representation of Tyrol to the EU, the European Parliament and the Court of Justice of the European Union. Her research interests lie at the intersections of EU and domestic constitutional law, with a particular focus on fundamental rights protection. David Reichel has been working for the EU Agency for Fundamental Rights (FRA) since 2014. Currently he is a Project Manager in the FRA’s Research and Data Unit, responsible for its work related to artificial intelligence, big data and fundamental rights. Previously (2007–14), he worked for the International Centre for Migration Policy Development (ICMPD) and as a lecturer at the University of Vienna (2009–14). He holds a doctorate in sociology from the University of Vienna and has published extensively on topics related to citizenship, migration, migrant integration and human rights. Daniel Sarmiento is Professor of EU Law at the Universidad Complutense de Madrid and counsel in the Madrid office of Uría Menéndez. He has extensive experience in the public sector, having worked for the Spanish Central Administration (2004–06) and as a legal secretary in the Court of Justice of the European Union (2007–15). His practice in EU law covers a wide range of areas, such as competition, state aids, banking law, regulatory, litigation, constitutional law, private international law, tax law, criminal law and institutional affairs. He is the author of several books, including El Control de Proporcionalidad de la Actividad Administrativa [The Proportionality Assessment of Administrative Action] (Tirant lo Blanch, 2004), Poder Judicial e Integración Europea [The Judiciary and European Integration] (Thomson-Civitas, 2004) and El Soft Law Administrativo [Administrative Soft Law] (Thomson-Civitas, 2008). He regularly contributes to leading legal journals such as the Common Market Law Review, the European Law Review or the Revista Española de Derecho Europeo. Silvana Sciarra was the first woman elected by Parliament as a Judge at the Italian Constitutional Court. She started her mandate in November 2014, after serving as Full Professor of Labour Law and European Social Law at the University of Florence and at the European University Institute. She was a Harkness Fellow and Fulbright Fellow at various US universities, and has been a visiting professor at a number of universities, including Warwick (Leverhulme Professor), Columbia Law School (BNL Professor), Cambridge (where she held the Arthur Goodhart Chair in Legal Science 2006–07), Stockholm, Lund, University College London, LUISS Rome. She holds PhD Honoris Causa in Law at the Universities of Stockholm (2006) and Hasselt (2012). Katarína Šipulová earned her PhD at the Faculty of Social Studies, Department of European Studies, Masaryk University, Brno, and her MSt in sociolegal research at the University of Oxford. Her main area of interest is transitional justice and democratisation of Central and Eastern European countries. She worked as Head of the International Department of the Czech Supreme Court. She has been an active member of several research projects dealing with human rights as well as international law and its impact on domestic jurisprudence (eg international human rights treaties in national legal systems, implementation of ECtHR case-law against the Czech Republic). She was co-leader of a project on the application of EU law by the Czech civil courts conducted by the Supreme Court in 2012 and 2018. Currently, she works as a Senior Researcher at the Judicial Studies Institute, Masaryk University. Her most recent publications

Notes on Contributors  xix include Ideology and International Human Rights Commitments in Post-Communist Regimes: The Cases of the Czech Republic and Slovakia (coauthored with J Janovský and H Smekal) in M Wind (ed) International Courts and Domestic Politics (Cambridge University Press, 2018); and (with D Kosař) ‘The Strasbourg Court Meets Abusive Constitutionalism: Baka v Hungary and the Rule of Law’ (2018) 10 Hague Journal on the Rule of Law 83. Alexander Somek is currently Professor of Legal Philosophy in the Faculty of Law, University of Vienna. Prior to his present appointment, he held the Charles E Floete Chair in the College of Law, University of Iowa, and he has held visiting professorships at Princeton University and at the London School of Economics. He was a Law and Public Affairs Fellow at Princeton in the academic year 2013–14 and a fellow in the Institute for Advanced Study in Berlin during 2007–08. He is the author of several books, including The Legal Relation (Cambridge University Press, 2017) and The Cosmopolitan Constitution (Oxford University Press, 2014). Luke Dimitrios Spieker is a research fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg and has been PhD candidate under the supervision of Armin von Bogdandy since August 2018. He holds a German law degree from Humboldt University Berlin (2016), a Maîtrise en droit européen from Université Panthéon-Assas (2017) and an LLM from King’s College London (2018). Before joining the institute, he gathered practical experiences as an intern with the German representation before the European Courts, the cabinet of Advocate General Juliane Kokott at the ECJ, the German Federal Foreign Office as well as the EU and competition law team of two international law firms in Brussels and London. His research interests are EU constitutional law, EU values and the relationship of EU and national constitutional courts. Gabriel N Toggenburg joined the EU Agency for Fundamental Rights (FRA) in 2009 as legal researcher. In 2015, he became Senior Legal Advisor in the Director’s Office and since 2019 has been assigned to coordinate policy in regard to the Charter of Fundamental Rights. Before joining the FRA, he worked for ten years at the European Academy in Bolzano, as a senior legal researcher, and has been a visiting academic at universities in the United States and Austria. He holds a master’s degree in law (University of Innsbruck), an LLM in European law (Danube University Krems) and a PhD in law (European University Institute, Florence). He has published widely on a range of human rights issues and holds an Honorary Professorship in European Union and Human Rights Law at the University of Graz. Takis Tridimas is the Chair of European Law at the Dickson Poon School of Law, King’s College London and Director of the Centre of European Law. He is also the Nancy A Patterson Distinguished Faculty Scholar and Professor at Pennsylvania State University and a barrister in Matrix Chambers. His interests include the constitutional law of the EU, judicial protection, banking and financial law, and comparative law. He is the author of numerous publications, including Schütze and Tridimas (eds) Oxford Principles of European Union Law, vol I: The European Union Legal Order (Oxford University Press, 2018); FIDE General Report on Banking Union (Kluwer, 2016); ‘The ECJ and the National Courts: Dialogue, Cooperation, and Instability’ in AM Arnull and D Chalmers (eds), Oxford Handbook of European Union Law (Oxford University Press, 2015); HW Micklitz and T Tridimas (eds), Risk and EU Law (Edward Elgar, 2015); and The General Principles of EU Law (2nd edn, Oxford University Press, 2006). He has appeared before the ECJ, the ECtHR and the Supreme Court of the United Kingdom. He took part in the drafting the Withdrawal Agreement of the UK from the European Union in 2017–18 and chaired the Committee responsible for drafting the Treaty of Accession of 2003 by which Central and Eastern European states joined the EU.

xx  Notes on Contributors Mattias Wendel is Professor of Public Law, International Law, EU Law and Comparative Law at the Faculty of Law of Bielefeld University. He is author of several books, articles and contributions in the field of EU law, public law and comparative law and a member of the editorial board of the European Constitutional Law Review and the Cahiers de droit européen. Corinna Wissels is State Councillor at the Dutch Council of State since 2013. She is a member of the Administrative Jurisdiction Division of the Council of State, in particular of its Aliens Chamber (dealing with regular and asylum residence permits, detention, etc) and the General Affairs Chamber (dealing with cases concerning the Environmental Permitting Act, Water Act, Soil Protection Act, government information, privacy, education and healthcare, grants, compensation and housing and healthcare benefits, etc). Within the Council of State she is a member of its EU law committee. Before joining the Council of State, she was head of the European law department of the Ministry of Foreign Affairs, responsible for the agents representing the Netherlands at the Court of Justice of the EU and for advising the Ministry of Foreign Affairs and other ministries on EU law (2007–13). From 2001 to 2007 she was one of the agents representing the Netherlands at the Court of Justice. From 1993 to 1997 she worked in Moscow, first as a lawyer (Gide Loyrette Nouel and Baker & McKenzie), then as Director of the Iris Russia Commercial Law Project, advising on the drafting of the new Russian Civil Code. She started her career as lawyer/advocate in Rotterdam, Brussels and Amsterdam, specialising in European law (Loeff Clayes Verbeke Sorel, 1987–93). She has a law degree from the University of Leiden (1986), with a specialisation in European and international law, and a Diplome d’Etudes Approfondies from the University of Paris (Paris II) on European and international law (1987). As President of the Dutch Association of European Law, Corinna actively promotes the discussion on EU law in the Netherlands and seeks to encourage young professionals to join in the debate. She is also the current president of the International Federation of European Law (FIDE).

List of Abbreviations AFSJ

Area of Freedom, Security and Justice

AWB

Algemene wet bestuursrecht (General Administrative Law Act, the Netherlands)

BAG

Bundesarbeitsgericht (Federal Labour Court, Germany)

BFH

Bundesfinanzhof (Federal Tax Court, Germany)

BGH

Bundesgerichtshof (Federal Court of Justice, Germany)

Brussels Regulation

(Regulation No 44 of 2001) (EC) of 22 December 2000 on j­urisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L12/10

BSG

Bundessozialgericht (Federal Social Court, Germany)

BVerwG

Bundesverwaltungsgericht (Federal Administrative Court, Germany)

BVerfG

Bundesverfassungsgericht (German Federal Constitutional Court, Germany)

CC

Corte Costituzionale (Constitutional Court, Italy)

CdC

Corte di Cassazione (Court of Cassation, Italy)

CdS

Consiglio di Stato (Council of State, Italy)

CEAS

Common European Asylum System

CFSP

Common Foreign and Security Policy

Charter

Charter of Fundamental Rights of the European Union

CISA

Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders [2000] OJ L239/19

CNECV

Conselho Nacional de Ética para as Ciências da Vida (National Council of Ethics for the Life Sciences)

CNPMA

Conselho Nacional para a Procriação Medicamente Assistida (National Council for Medically Assisted Procreation)

CRC

Convention on the Rights of the Child

CRPD

Convention on the Rights of Persons with Disabilities

xxii  List of Abbreviations Dublin Regulation

Council Regulation (EC) No 343/2003 of 18 February 2003 ­establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national [2003] OJ L50/1

Dublin III Regulation

Regulation (EU) No 604/13 of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) [2013] OJ L180

EAW

European arrest warrant

ECB

European Central Bank

ECHR

European Convention on Human Rights

ECtHR

European Court of Human Rights

EDPS

European Data Protection Supervisor

EEA

European Economic Area

EFTA

European Free Trade Area

ENP

European Neighbourhood Policy

ESC

European Social Charter

ESM

European Stability Mechanism

ETUC

European Trade Union Confederation

EU

European Union

EUJN

Judicial Network of the European Union

EWCA

England and Wales Court of Appeal (United Kingdom)

EWHC

England and Wales High Court (United Kingdom)

FRA

European Union Agency for Fundamental Rights

GDPR

General Data Protection Regulation (Regulation No 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data [2016] L119/1)

Gerechtshoven

Gerechtshoven (Courts of Appeal, the Netherlands)

GG

Grundgesetz (Basic Law, Germany)

ICCPR

International Covenant on Civil and Political Rights

ICPCR

International Conference on Peace and Conflict Resolution

ICPESCR

International Covenant on Economic, Social and Cultural Rights

KS

Konstitutsionen sud (Constitutional Court, Bulgaria)

List of Abbreviations  xxiii LED

Law Enforcement Directive

LIBE Committee

European Parliament Committee on Civil Liberties, Justice and Home Affairs

MoU

Memorandum of Understanding

NS CR

Nejvyšší soud České republiky (Supreme Court, the Czech Republic)

NSS

Nejvyšší správní soud (Supreme Administrative Court, the Czech Republic)

OGH

Oberster Gerichtshof (Supreme Court, Austria)

OLG

Oberlandesgericht (Higher Regional Court)

OSCE

Organization for Security and Co-operation in Europe

OVG

Oberverwaltungsgericht (Higher Regional Administrative Court)

PACE

Parliamentary Assembly of the Council of Europe

PETI-Committee

European Parliament Petitions Committee

PiS

Prawo i Sprawiedliwość (Law and Justice Party, Poland)

PNR

Passenger Name Record

QPC

Question prioritaire de constitutionnalité (Priority Constitutional Question, France)

Reception Directive

Directive 2003/9/EC of the Council of 27 January 2003 laying down minimum standards for the reception of asylum seekers [2003] OJ L 31/18

Rechtbank

Rechtbank (District court, the Netherlands)

RIS

Rechtsinformationssystem des Bundes (Legal Information System, Austria)

SEPA

Scottish Environmental Protection Agency (United Kingdom)

SPC

Supplementary Protection Certificate

TCN

Third-country national

TECE

Treaty establishing a Constitution for Europe

TEU

Treaty on European Union

TFEU

Treaty on the Functioning of the European Union

UDHR

Universal Declaration of Human Rights

UN

United Nations

UNICEF

United Nations Children’s Fund

US CR

Ústavní soud České republiky (Constitutional Court, the Czech Republic)

xxiv  List of Abbreviations US SR

Ústavný súd Slovenskej republiky (Constitutional Court, Slovakia)

ÚOHS

Úřad pro ochranu hospodářské soutěže (Office for the Protection of Competition, the Czech Republic)

VAS

Varhoven administrativen sud (Supreme Administrative Court, Bulgaria)

VKS

Varhoven kasatsionen sud (Supreme Court of Cassation, Bulgaria)

VfGH

Verfassungsgerichtshof (Constitutional Court, Austria)

VwGH

Verwaltungsgerichtshof (Administrative Court, Austria)

VfSlg

Verfassungssammlung (Collection of the Constitutional Court, Austria)

Introduction JEREMIAS ADAMS-PRASSL AND MICHAL BOBEK

T

he majority of scholarship exploring the nature and development of EU law to date has focused on its operation at the Union level: the actions of key institutions, legislative and policy choices made in Brussels and Strasbourg, and their interpretation and reflection in the jurisprudence of the Court of Justice of the European Union (‘the Court of Justice’). In consequence, most scholarly and legal discourse has been aimed at that level, describing and analysing EU law from a perspective akin to that of a fully fledged and autonomous legal system. Fundamental constitutional doctrines, including the primacy of EU law and its direct effect, are said to ensure the uniform application of rights and duties found in the Treaties and secondary legislation in the Member States. As a result, Member States and their legal systems only feature to a limited extent, notably as a source of preliminary references and as recipients of the rulings thus issued, occasional constitutional reservations notwithstanding. Beneath this orthodoxy, however, there lies a complex world of national (non-)implementation of EU norms: the considerable heterogeneity of the Union’s 27 legal systems, their differences in administrative and juridical cultures and practices, pose serious challenges to our understanding of the Union’s legal order built on the twin idols of uniformity and effectiveness.1 In this regard, the need for national perspectives in EU law has gradually been recognised, with area-specific academic studies, judicial as well as scholarly networks, and thematic textbooks all beginning to plug the gaps in our understanding of the genuine operation of Union law across the Member States. In the series ‘EU Law in the Member States’, we set out to explore EU law in a slightly different way, focusing on a comparative analysis of the reception of EU legal landmarks at the national level several years after the event. The initial definition of landmark developments was two-pronged, asking first whether a topic was thought to be of particular significance and/or controversy in a specific regulatory domain of EU law (whether due to the development of a novel legal point or due to a change of tack in existing approaches); and second, whether the development had caused particular upheaval, discussion or controversy in at least some Member States’ domestic systems. Over the years, the resulting volumes have ranged from the reception of individual decisions of the Court of Justice and specific legislative reforms through to the large-scale sociolegal transformation of Member States’ judiciaries. Throughout, the central question has remained constant: what is the reality on the ground, at the national level?

1 See further, M Bobek, ‘EU Law in National Courts: Viking, Laval and Beyond’ in M Freedland and J Prassl (eds), Viking, Laval and Beyond (Hart 2016) 323.

2  Jeremias Adams-Prassl and Michal Bobek I.  A CONSTITUTIONAL LANDMARK

The present volume turns its attention to a landmark legal development at the constitutional level, of significance not just to a particular regulatory domain of EU law, but cutting right across all areas of legislative and policy activity: the tenth anniversary of the elevation of the European Union’s Charter of Fundamental Rights (‘the Charter’) to legally binding, Treaty-level status. Drafted at the turn of the Millennium,2 the Charter was solemnly proclaimed by the Union institutions in December 2000, ‘recognis[ing] the rights, freedoms and principles set out’ therein.3 In subsequent years, the legal status of the Charter remained unclear: the Court of Justice did not make any reference to it for nearly five years.4 It was only with the entry in force of the Treaty of Lisbon on 1 December 2009 that the Charter became a legally binding instrument, with Article 6(1) TEU providing that its provisions were to ‘have the same legal value as the Treaties’.5 Whilst certainly not the exclusive source of fundamental rights protection within the EU legal order,6 the Charter has quickly become the primary avenue for rights-based claims. It is a unique instrument, both in terms of the substantive rights protected and its scope of application.7 As regards the former, the Charter eschews traditional distinctions between legal, political and socioeconomic rights, setting out a list of approximately 50 rights and principles, clustered into six chapters: Dignity, Freedoms, Equality, Solidarity, Citizens’ Rights and Justice. Specific rights range from the well established (such as the right to life in Article 2 of the Charter, or the right to an effective remedy and fair trial in Article 47 of the Charter) to ‘quirky niches’ (including notably the right to free placement services in Article 29 of the Charter).8 Both the content and potential of many provisions are still in need of an exploration. As regards the latter, the primary stated aim of the Charter is to control the exercise of the Union’s powers. This is reflected in Article 51(1), which defines the Charter’s scope of application. The Charter is applicable to all activities of Union institutions and bodies (an institutional definition), but to the Member States only when they are implementing EU law (a functional definition). Thus, the Charter should be applied and taken into account by all national authorities when they are acting within the scope of EU law, ie when they are operating as Union authorities on the national level. This is an easy line to draw in principle – but a very difficult one in practice, as both the Court of Justice’s case-law post-Åkerberg Fransson,9 as well as its national reflection, demonstrate. December 2019 marked the tenth anniversary of the Charter’s becoming a binding part of primary law: a decade on, it is no longer a mere source of inspiration. The Charter has grown far beyond a non-binding embodiment of the general principles developed in the caselaw of the Court of Justice. As a legally enforceable yardstick for judicial review and conform interpretation, it has spawned a significant body of case-law, commentary, and scholarship.

2 G de Búrca, ‘The Drafting of the EU Charter of Fundamental Rights’ (2000) 25 ELRev 331. 3 [2000] OJ C364/1. 4 Case C–540/03 Parliament v Council EU:C:2006:429. 5 Consolidated Version of the Treaty on European Union [2008] OJ C115/13. 6 As a result of both the ‘bridge’ in Article 52(3) of the Charter, linking the Charter standard to that of the ECHR, and the on-going role of general principles of EU law, as explicitly recognized by Article 6 TEU. Further see eg R Schütze, ‘Three “Bills of Rights” for the European Union’ (2011) 30 Yearbook of European Law 131. 7 For a detailed commentary, see in particular S Peers, T Hervey, J Kenner and A Ward, The EU Charter of Fundamental Rights: A Commentary (Hart 2014). 8 S Weatherill, Law and Values in the European Union (Oxford University Press 2016) 141. 9 Case C–617/10 Åkerberg Fransson EU:C:2013:105.

Introduction  3 In the run-up to the Charter’s entry into force as part of primary law, a number of commentators articulated various predictions concerning the role the Charter might come to play at the national level. These ranged from hopes that the Charter would fill a considerable gap in fundamental rights protection extant at the national level to metaphors of a ‘crowded house’ to which (yet another) fundamental rights catalogue could add but little.10 After all, since all bar two of Member States’ constitutions already provided for a national bill of rights or functionally similar instruments, and all Member States had long become signatories of the European Convention on Human Rights (ECHR), what new substantive or procedural guarantees might a third catalogue of fundamental rights add to the existing national protection of fundamental rights? These and many other aspects of the development and role of the Charter have been discussed extensively at the European level. But what has been happening in the Member States? How, in what situations, and to what extent is the Charter actually being applied by domestic authorities, in particular by the national courts? What is the empirical picture? The fragmented evidence available so far suggests considerable diversity among the Member States, ranging from Austria, where the Constitutional Court elevated the Charter to domestic constitutional status as early as 2012, to a number of other Member States in which it would appear that the national constitutional court has not once quoted the Charter in ten years.11 II.  THE QUESTIONS

A decade on, the time was thus ripe to revisit and comparatively to assess the issue of the genuine life of the Charter in the Member States. Over the course of two days in the spring of 2019, we invited a group of academics, practitioners and judges from across the European Union and beyond to come to Oxford in order to map the terrain, both qualitatively and quantitatively, drawing on a series of interlinking questions which had been posed to national rapporteurs. These domestic reports formed the basis for comparative discussion. They are contained in Part II of the present volume. Together, we tackled the following questions. A.  Quantity: Empirical Evidence as to the Use of the Charter How often and by which actors is the Charter invoked on the national level, particularly in the practice of national courts? Is there any significant variation in the number of citations as far as the level of courts or courts of specific jurisdiction are concerned? How often is the Charter invoked by the constitutional court in particular? Are there any instances in which the provisions of the Charter would have been referred to by the national legislator or by expert bodies commenting on draft legislation?

10 A term notably coined by P Cruz Villalón, ‘Rights in Europe: The Crowded House’ (2012) 01 KCL, Working Paper in European Law. 11 The pioneering first work was L Burgorgue-Larsen (ed), La Charte des droits fondamentaux saisie par les juges en Europe. The Charter of Fundamental Rights as apprehended by Judges in Europe (Paris, Pedone 2017). Regular data is furthermore produced by the European Union Agency for Fundamental Rights (FRA) in its annual Fundamental Rights Report which contains a chapter dedicated to the use of the Charter at national level (online at https://fra. europa.eu/en/eu-charter).

4  Jeremias Adams-Prassl and Michal Bobek B.  Quality: Reasoning with the Charter at the National Level Within the citations and uses of the Charter identified, how often are the Charter provisions analysed on their own? Are there cases in which the protection of the Charter would have been explicitly recognised as being higher than the one provided for in either the ECHR or the national bill of rights? If the Charter is invoked by the national constitutional court, is there any differentiation as to the use of the Charter in relation to different types of procedure before the constitutional court? Could the Charter ever be used by the national (constitutional) court(s) to annul a provision of national law, such as national law implementing an EU law measure? In those national cases in which the Charter has been applied or invoked, did the respective court discuss whether or not in the situation at hand the Member State in question was ‘implementing Union law’ within the meaning of Article 51(1) of the Charter? Are there situations in which the Charter is being used beyond the scope of EU law, in purely internal situations? C.  The Rights Guaranteed by the Charter Are there any specific (substantive or procedural) rights stemming from the Charter that have been referred to by national courts more frequently than others? Is there any discernible debate, be it judicial or academic, on the difference between rights and principles recognised by the Charter? Are there any cases at the national level in which the provisions of the Charter were applied to a dispute between two individuals (ie a situation that could be qualified as ‘horizontal direct effect’ of Charter provisions)? Are there any national pronouncements on permissible limitations under the Charter? How is the test of proportionality applied in relation to the Charter at the national level? D.  Institutions, Structures and Judicial Culture Has the Charter impacted on the legal culture and the availability of specific fundamental rights in some countries? Has it been used by all actors, including legislators and executives, in the fundamental rights landscape of the Member States? How, if at all, has that use changed the relationship between these actors? Has the approach of national constitutional courts to EU law in general, and to EU fundamental rights law in particular, changed following the entry into force of the Charter? What sort of interplay does the Charter generate with national bills of rights and the ECHR? Have there been any changes in the interpretation of either of the two instruments or any specific rights concerned therein following the entry into force of the Charter? On the whole, is life with the Charter at the national level characterised by a harmonious praktische Konkordanz or rather a messy ménage à trois? III.  MULTILAYERED PERSPECTIVES

The rich discussion that ensued helped to elucidate a complex and heterogeneous picture, forming the basis for the completed chapters collected in this volume. This book is structured as follows. Part I, ‘The Foundations’, explores the Charter’s first decade from high-level internal and external perspectives. The task was to provide a normative framework of expectations: what do the respective ‘human rights centres’ of Luxembourg and Strasbourg, expect

Introduction  5 from their national interlocutors? The scene thus set, Part II, ‘Member States’ Perspectives’, provides a structured, in-depth account of the Charter’s operation in 16 different Member States. Part III, ‘Selected Rights’, offers a detailed evaluation of certain rights contained within the Charter, drawn from both the substantive and horizontal chapters. Part IV, ‘Broader Perspectives’, finally, synthesises the materials presented up to that point to develop a series of perspectives, looking to develop underlying lessons about the relationship between EU law and domestic legal systems. A brief conclusion returns to the broader issues of multilevel fundamental rights protection in general, and the interaction of different legal orders within the European legal space in particular. A.  The Foundations Writing from the perspective of the Court of Justice, President Koen Lenaerts highlights how the Charter has brought about both continuity, in terms of the Court’s commitment to fundamental rights and the rule of law, and change, in terms of visibility for fundamental rights in a ‘Union of values’, extending far beyond the internal market. Its enforcement has given rise to a series of normative questions surrounding these values, including the distribution of competences between the Union and its Member States, the limits (if any) to national legal systems’ ability to provide a higher level of protection than that envisaged by the Charter, and the issue of the horizontal application of Charter rights. The first of these questions turns on whether a Member State is ‘implementing EU law’ in any given situation – to be interpreted, in Lenaerts’s terminology, through the metaphor of ‘the Charter [being] the “shadow” of EU law’: there can be no situation that is governed by EU law in which the Charter does not apply as this would be contrary to the rule of law within the EU. Once within the scope of EU law, the second question asks whether higher domestic standards of protection might arise. Here, a fundamental challenge arises in balancing two (seemingly) competing priorities – European unity and national diversity. Neither, however, is absolute, as both principles are subject to compliance with the Charter. The Union courts’ role is limited to ensuring that compliance; the precise balance beyond it should be left to the EU political process. The third question, on horizontality, considers if the fact that private parties are not explicitly listed as addressees in Article 51(1) of the Charter should not be taken as the basis for blanket conclusions either way: what is required instead is a careful examination of individual articles to determine their applicability as between private parties. Lenaerts concludes with a call for the increased ‘free movement of constitutional ideas’ across borders and institutions ‘in order to ensure that the plurality of sources that protect fundamental rights operates to the benefit of individuals’. This invitation to dialogue is taken up in the contribution by Síofra O’Leary on the European Court of Human Rights (ECtHR). Whilst Luxembourg and Strasbourg are distinct in both their operation and constitutional status, they have nonetheless exerted significant influence over each other’s development. Three particular areas are highlighted: first, the links and passerelles which chart the ever-closer historical relationship between the ECHR and the Charter – including in particular Article 52(3) of the Charter. As a consequence of this codification of the ECHR’s special significance, O’Leary argues, consideration of Strasbourg case-law is essential in interpreting the Charter. Second, turning to the different roles which EU law and the Charter play in the Strasbourg court’s case-law, she identifies a series of different ways in which the ECtHR has come to rely on EU law: as part of the domestic law of the respondent state, as references for information purposes, as general referencing, when transplanting

6  Jeremias Adams-Prassl and Michal Bobek EU law notions into ECtHR case-law, and in cases where Union norms have had a (decisive) influence. With a view to the future, finally, the chapter explores key questions that might be relevant to the Charter’s next ten years, and the Luxembourg court’s increasing role as a fundamental rights adjudicator, including in particular questions relating to judicial dialogue, whether bilateral (between the two European courts) and trilateral (between the latter and national courts), the underlying nexus between fundamental rights and the rule of law, and how to strike fair balances and provide more extensive protection. B.  Member State Perspectives Part II of the book shifts the focus on the lived reality in 16 Member States (including, at the time of the Oxford conference, the United Kingdom). Each national report is loosely structured to provide quantitative information about citations and references to the Charter; a legal analysis of its position in the domestic constitutional order; a qualitative and contextual analysis of the Charter’s use; as well as an overarching analysis of the Charter’s impact on the Member State’s judicial, legislative and political system. Space limitations prohibit a detailed summary of each report. Instead, a detailed transversal analysis structured around key articles is provided in Parts III and IV, as well as the concluding chapter’s reflections on key findings emerging from individual chapters and reports. In Austria, Christoph Grabenwarter and Christine Pesendorfer report, the Charter is well settled into the domestic legal order as well as scholarship. A general openness to EU law is reflected in consistent references to the Charter. This is due not least to a ground-breaking decision of the Austrian Constitutional Court, which elevated the Charter to a unique position in the Austrian legal order: up until 2012, EU law – including the Charter – was not considered to be part of domestic constitutional law, and thus a standard for judicial review before the Constitutional Court. In the so-called ‘Charter decision’, however, the latter granted the status of constitutionally guaranteed rights to specific Charter rights, as long as they were ‘similar in wording and purpose’ to rights already guaranteed by the Austrian Federal Constitution. Grabenwarter and Pesendorfer chronicle the ensuing judicial dialogue between the three Austrian highest courts, as well as the involvement of the Court of Justice, and its broader ‘game-changing’ implications. The situation in Belgium shows some interesting parallels, as Sarah Lambrecht’s contribution demonstrates. Against a general openness to European and international law, all senior courts refer to the Charter, and have done so even before its entry into legal force – albeit with significant variations. The Union’s fundamental rights instrument has become rather prominent in the case-law of the Constitutional Court and, with respect to certain domains (such as notably immigration and asylum; the right to an effective remedy; the right to be heard; and children’s rights), also in the case-law and the advisory opinions of the Council of State. By contrast, the Charter is almost entirely absent from the case-law of the Court of Cassation. Furthermore, at least until broader familiarity with the Charter becomes established across legal actors more generally, the impact of the Charter, not least given its limited field of application, remains eclipsed by that of the ECHR. The picture in Bulgaria, as chronicled by Alexander Kornezov, is rather different: on the one hand, the advent of the Lisbon Treaty significantly increased references to fundamental rights protected under the Union’s legal order. Litigants frequently rely on the Charter, and national courts have begun to refer related preliminary questions to the Court of Justice. From a qualitative perspective, on the other hand, references to the Charter contained in the case-law

Introduction  7 of the Bulgarian courts appear less promising. They are often formal, declaratory, even decorative, and combined with references to the ECHR, without distinction and without further ado. Much of the examined case-law, Kornezov suggests, leaves the impression that the citations of the Charter were added as an adjunct in support of a decision already taken on the basis of other legal rules, rather than playing a central role in courts’ reasoning. There are some noteworthy exceptions: the Charter has been used on several occasions in order to achieve lasting structural change in the internal division of competence within the national judiciary, notably by restructuring rules on the territorial jurisdiction of administrative courts; to assert jurisdiction in areas where national law excludes judicial review; or even to address pressing broader societal concerns. The fact that some of these decisions lie outside the scope of EU law suggests a genuine judicial empowerment based on the Charter. In a joint report covering both the Czech Republic and Slovakia, Adam Blisa, Pavel Molek and Katarína Šipulová offer a number of interesting microlevel comparisons. United as a federal entity until 31 December 1992, both states started from a very similar legal and constitutional structure. With regard to EU law in general, and the Charter in particular, however, more than 20 years after the dissolution of the federation, important differences have emerged right from the beginning: ratification of the Charter was a controversial and drawn-out process in the Czech Republic, whereas a clear pro-European attitude in Slovakia saw the Charter firmly embedded at the (supra-)constitutional level. These distinct political approaches, however, do not seem to have translated into judicial application: the authors conclude that while the Slovak apex courts shared the overall optimistic stance of the legislature towards EU law and the Charter, Czech political scepticism did not influence the top courts’ stance and the Czech apex courts gradually began to include the Charter in their reasoning. This leads to a quite intriguing dissociation: in both countries, the courts appear to pull in the opposite direction than that of local politics. The Euroscepticism of Czech politicians is clearly not shared by Czech apex courts. In Slovakia, political pro-Europe optimism is not matched in judicial practice. One potential explanation for this phenomenon lies in the fact that apex courts in both countries approached the Charter much like other international (human rights) treaties, failing to engage with the detailed provisions on its applicability in Article 51 of the Charter. The ensuing uncertainty as to the Charter’s scope of application, compounded by uncertainty regarding its new or added value compared to other well-embedded fundamental rights documents, such as the ECHR, are highlighted as key drivers of the (slowly diminishing) reluctance of constitutional courts to engage with the Charter. Reference to the Charter in France is severely constrained, both in terms of legislative and judicial bodies: the Council of State has only made very limited reference to the Charter, and whilst the Court of Cassation has mentioned its provisions somewhat more frequently, they have only rarely been dispositive. Indeed, it is only the Social Chamber of the Court of Cassation that has made explicit reference to the Charter at the outset of its determinations. In exploring potential reasons for this lack of engagement, Laurence Burgorgue-Larsen identifies a number of factors, including a lack of clarity as regards the scope of the Charter under Article 51(1) of the Charter, and the omnipresence in French domestic case-law of the ECHR. In Germany, Mattias Wendel explains, references to the Charter are somewhat difficult to determine, given the lack of consistent or representative case-law reporting and competing abbreviations and terminology. Regardless of these obstacles, the report finds several thousands of references to the Charter in all jurisdictions and at all levels, without significant variations across either. There is a substantive difference, however, in terms of how the Charter is used in practice: in the majority of decisions in which the Federal Constitutional Court explicitly refers to the Charter it does not play a decisive role, and is instead mentioned

8  Jeremias Adams-Prassl and Michal Bobek as part of the relevant facts or jurisprudence of the Court of Justice. This stands in stark contrast with the ordinary or specialised courts tasked with the application of EU law, including the Charter. There is furthermore a considerable degree of heterogeneity insofar as the application or citation of different Treaty articles before various apex courts are concerned: freedom of expression and information (Article 11) and the right to property (Article 17), for example, are exclusively cited by the civil law branch of the Federal Court, whereas the antidiscrimination provisions in Article 21 and the right to collective bargaining and action in Article 28 are primarily the domain of the Federal Labour Court. The chapter also highlights a recent and significant change heralded by two decisions of the Federal Constitutional Court from November 2019, allowing, for the first time, the Charter to be invoked as a standard of constitutionality review before the Federal Constitutional Court. A surprisingly different role for the Charter is highlighted in Antal Berkes, Andras Jakab, and Pal Sonnevend’s report on Hungary: during the drafting process of the new constitution or Fundamental Law, in force since 2012, the Charter (together with the ECHR) played a major role as a source of inspiration for the Constitution’s chapter on ‘Freedom and Responsibility’. Judicial application of the Charter, on the other hand, has been rather limited – both in absolute numerical terms and in substance. The Constitutional Court has generally restricted use of the Charter to an interpretative aid of domestic constitutional rights. Litigants and judges in the ordinary courts have similarly limited their reliance on the Charter to situations where there is overlap with the ECHR and Strasbourg jurisprudence. The authors speak of a trend towards combination rather than autonomisation of the relevant provisions: courts combine different international instruments in order to challenge domestic provisions in the light of various possible legal orders, rather than making joint reference to overlapping provisions so as to support one and the same legal argument. This relative paucity of use, they conclude, may soon be subject to change – given domestic political concerns, and the Court of Justice’s increasing emphasis on judicial independence, the Charter may yet (together with the ECHR) emerge as an ‘auxiliary constitution’. Before the Lisbon Treaty, Gerard Hogan explains, commentators in Ireland had repeatedly voiced concern that the Charter would function as a ‘Trojan horse’, usurping sovereignty over fundamental rights protection both from domestic constitutional law and Strasbourg. These fears have proved to be unfounded: to date, ‘the experience in respect of the Charter has been rather underwhelming’, as the author notes. The Charter has had almost no impact at all on public opinion or public consciousness, and its role in the formal legal order has been limited to cases dealing with the interpretation and application of EU law. Indeed, it appears to have been used sparingly even in that context, which goes against a general trend of a ‘golden decade’ for the reception of EU law into Irish law. In consequence, Irish case-law citing the Charter falls, broadly speaking, into two camps: a series of decisions where domestic courts have sought to defend national (fundamental rights) sovereignty against encroachment from Charter rights, for example through a narrow interpretation of the Charter’s scope of application; and a cluster of cases where reference to the Charter has been limited to rhetorical force and effect or supplementary illustration of a key point. The Charter is well established across all branches and levels of the Italian judicial system, as shown in the chapter by Silvana Sciarra and Angelo Jr Golia. Relevant databases reveal several thousand references (albeit still a small proportion of overall litigation). Amongst the senior courts, references to the Charter are significantly more numerous before the Constitutional Court, which can be traced back to the centralised and specialised approach to judicial review in Italian law. Even then, references are generally limited to incidental judicial review procedures (initiated by ordinary judges in the course of pending proceedings), rather than in direct

Introduction  9 judicial review proceedings. More recently, however, the Constitutional Court appears to have embarked on a careful reformulation of the relationship between different grounds of review, hinting in a 2017 decision (in part inspired by the key Austrian ruling, discussed above) that courts might be free to choose whether to investigate alleged violations in light of the Italian Constitution, or the Charter, and subsequently inviting the development of an increasingly sophisticated jurisprudence as the scope of Charter rights. An initial uneasiness with regard to a potential disempowerment of ordinary courts and with a restriction of their duties to act as European judges as well as national ones, the authors argue, is thus gradually developing into a mature understanding of reciprocal obligations and tasks within closely interrelated systems of norms. In the Netherlands, Corinna Wissels and Aniel Pahladsingh explain, the Charter’s role in the domestic legal system begins at the legislative stage: drafting instructions explicitly list the Charter, alongside the ECHR and the International Covenant on Civil and Political Rights, as superior restrictions. The Charter also plays a regular (if frequently somewhat formulaic) role in the work of the Advisory Division of the Council of State. The case-law of the Council of State is particularly illustrative as regards different relationships between rights found in the Charter and the ECHR. Where the Council would traditionally have begun by invoking ECHR provisions and only then turned to the Charter and interpreted it along similar lines, the caselaw has since developed so that when corresponding provisions in the ECHR and Charter are invoked, the Council of State starts by assessing the Charter provision, and only subsequently refers to the case-law of the ECtHR. This has led to several instances in which the protection provided for in the Charter has been recognised as being higher than the protection provided for in the ECHR, including the protection of personal data (Article 8 of the Charter), the rights of the child (Article 24 of the Charter) and the right to an effective remedy and to a fair trial (Article 47 of the Charter). The role of the Charter in Poland might at first appear somewhat restrained, given the existence of Protocol 30 of the Lisbon Treaty, which purports to clarify the application of the Charter in Poland and the United Kingdom. As Krystyna Kowalik-Bańczyk explains, the Protocol was a factor in explaining early domestic judicial reluctance in engaging with Charter rights. As in several other Member States, references to the Charter are unevenly divided across different jurisdictions, with administrative courts taking a clear lead. The Constitutional Tribunal, which had been traditionally content to use the Charter as an ‘external source’, on the other hand, has more recently begun to reduce the number of references to the Charter in its judgments. Overall, however, the number of references has grown steadily, and is now in line with other new Member States. This development was spurred, in particular, by a political situation that led to extensive reforms of the judicial system in recent years, with a tendency for domestic courts to resort to ‘Luxembourg over Strasbourg’ in order to handle time-sensitive or systemic threats to the enforcement of fundamental rights in Poland, in particular as regards the proper functioning of judicial independence. The Charter, Kowalik-Bańczyk concludes, might thus turn out to be a text of ‘last resort’ for certain questions that cannot be solved at national level. In their investigation of the Charter’s application in Portugal, Gonçalo de Almeida Ribeiro and Patrícia Fragoso Martins find a total of 213 decisions engaging with the Charter, significantly less than 1 per cent of overall decisions. References are spread across all jurisdictions, albeit with a concentration in the courts of common jurisdiction (as opposed to administrative and constitutional adjudication). Overall, the authors identify five key trends: first, the Charter’s significance in domestic rights adjudication is clearly reduced vis-a-vis the constitutional bill of rights in the case-law of national courts. Second, instead of substantive engagement with the

10  Jeremias Adams-Prassl and Michal Bobek Charter’s provisions, there is a clear predominance of generic and vague references to Union rights, often serving a strictly rhetorical function. The impact of the Charter is furthermore weakened, third, by the fact that judicial engagement usually reduces its status to that of one instrument among a plurality of international human rights documents incorporated in the constitutional order, and fourth, by a focus on procedural rights of various kinds when particular provisions are pleaded or invoked. That said, there appear to be traces of a new, strategic appeal to EU law standards of protection in some recent cases, in particular when challenging austerity measures. In Slovenia, Matej Accetto cautions, readers should expect sparse vegetation rather than lush forests, with time as a key mitigating factor: it took over five years after accession for a Slovenian court to request a preliminary reference ruling – albeit in a case in which the Charter ended up playing a not insubstantial role. With the exception of immigration and asylum disputes, the Charter has rarely been invoked, and even less frequently relied upon as a substantive validity criterion. This is particularly curious in the context of labour law and social security, given the Charter’s potential to bolster such rights, and domestic courts’ lack of aversion to the horizontal application of fundamental rights more generally. Accetto adduces two possible explanations: first, the fact that, in comparative terms, Slovenian constitutional law has already recognised a relatively extensive set of labour and social rights, so in this area the need to rely on European sources may traditionally have been less pronounced. Second, the true impact of the Charter may, as with EU law in general, be brought about through the jurisprudence of the Luxembourg court rather than by the mere formal status of the Charter. Ultimately, the way in which, and the extent to which, the Charter is used appears to be conditioned, in part, by the legal area concerned, the activity of the parties in a case, and the aptitude of the particular court or even particular judges seised of a particular case. Daniel Sarmiento and Xavier Codina juxtapose initial grand political gestures with an underwhelming and even disappointing reception of the Charter in the Spanish legal landscape. Whilst Parliament in 2008 expressly incorporated the text of the Charter in its ratification of the Lisbon Treaty, highlighting its role in European integration and citizenship, judicial adoption has lagged far behind – strongly influenced, not least, by the Spanish Constitutional Court’s approach to the role of the Charter and domestic fundamental rights in Melloni.12 Full implementation of the Charter thus seems to be ‘incomplete’, in at least two different ways. First, the Charter is being used as a mere interpretative tool, consistently cited alongside the equivalent national rights. Second, national courts fail to carry out a proper analysis on essential matters regarding the Charter’s application, including questions as to whether EU law is being applied, or the applicable standard of protection for a particular right. The result, particularly as regards the Constitutional Court, is a clear divergence of paths: while the Court of Justice is increasingly becoming a fundamental rights court, the authors argue, the Constitutional Court (and the Spanish legislation regulating access to it) seem to be set on the opposite path. In discussing the impact of the Charter in England and Wales, Lady Arden and Takis Tridimas highlight the long-standing plurality of sources of fundamental rights protection, encompassing the common law, the ECHR as incorporated in the Human Rights Act 1998, and EU law both before and after the Treaty of Lisbon. Domestic courts at all levels have grappled with the Charter, albeit often limited to reference in passing: the ECHR similarly remains as the primary reference point for the legislature as a result of the Human Rights Act. The real value of the Charter in domestic law lies in its remedial aspects: given the doctrine

12 Case

C–399/11 Melloni EU:C:2013:107.

Introduction  11 of parliamentary sovereignty, courts are limited in case of clear rights violations to issue a declaration of incompatibility. To the extent that a case falls within the scope of EU law, on the other hand, even an Act of Parliament can be disapplied: in its 2017 Benkharbouche decision, the Supreme Court confirmed the Charter’s role as a free-standing basis for the disapplication of national law, including in certain horizontal scenarios.13 Following the United Kingdom’s departure from the European Union, however, that effect is no longer be available to litigants: the Withdrawal Act explicitly excludes the Charter of Fundamental Rights from the body of ‘retained EU law’ to remain in force after the 31 January 2019. C.  Evaluating Selected Rights The six chapters forming Part III take the country reports as their starting point to evaluate selected Charter provisions in depth. First, there are three contributions reflecting on different Charter articles from a comparative perspective, in order to tease out different themes: novelty, frequency and dissonance. i. Novelty When asked to identify novel rights in the Charter, for a number of commentators Article 8 will spring to mind: a genuine Charter innovation in the field of human rights protection, it has enthusiastically been taken up by the Court of Justice, often in close connection with the right to respect for private and family life (Article 7 of the Charter). However, as the national reception of the right to data protection in EU Member States explored by Orla Lynskey shows, this enthusiasm is not necessarily reflected at the domestic level. There is significant variety both in terms of the judicial recognition and application of the right to data protection, and its role in the legislative process. The mixed reception of Article 8 of the Charter, Lynskey argues, may be explained in part by the divergent ‘starting points’ for Member States when it comes to this newly codified right: in some it was already a well-established part of the constitutional law apparatus, in others, no more a fundamental right than consumer protection or financial services regulation. The domestic context in which the right is invoked may therefore play a significant role in shaping its contours. She furthermore identifies a persistent lack of clarity about how this right interacts with the more engrained right to respect for private life. Whilst progress has been made by scholars in providing a coherent and credible conceptual framework for their interaction, the Court of Justice’s jurisprudence has done little to elucidate this relationship. As a result, Member States are given significant leeway to reconcile Charter rights (most evidently data protection and freedom of expression), leaving domestic actors – be they courts or data protection authorities – with the opportunity to shape the content of the right to data protection. ii. Frequency The right to an effective remedy and to a fair trial under Article 47 of the Charter is the most frequently cited and applied right by a long stretch, particularly in judicial practice – not least given its interaction with most other (substantive) rights. Kathleen Gutman’s contribution



13 [2017]

UKSC 62.

12  Jeremias Adams-Prassl and Michal Bobek suggests that Article 47 serves, in many ways, as a microcosm for most of the constitutional questions surrounding the Charter, including the scope of application of the Charter in relation to the Member States, justified limitations of Charter rights, the horizontal direct effect of the Charter and the relationship between the Charter, the ECHR and the Member States’ constitutions. As a result, Article 47 plays a key role in ensuring the application of the Charter in the Member States. In particular, Gutman argues, it helps bring to light procedural deficiencies in the national legal systems and the need for structural or legislative changes; it accentuates the concrete means of judicial review of fundamental rights in the Member State courts and the ‘added value’ of the Charter in providing enhanced protection as compared to the ECHR; and it draws attention to new issues warranting further development in the case-law, such as the personal scope of the Charter and the essence of Charter rights. iii. Dissonance In terms of the frequency of its use, Article 50 of the Charter, enshrining the ne bis in idem rule, may be seen as the book’s Cinderella, invited to a ball where she does not belong. The choice of that provision for a comparative in-depth study was motivated by different considerations: as Magdalena Ličková notes in her chapter, for a number of years the approach of Strasbourg, on the one hand, and of Luxembourg, on the other, differed. As a result, the provision is an ideal case study in diversity: what happens at the national level where ‘instructions’ coming from the respective European levels differ? Ličková recalls that the prohibition of ne bis in idem is an internationally established principle with long historical roots. Three aspects of that rule have been of particular relevance in the interaction of EU law and domestic regimes. First, its application in double-track enforcement regimes, where administrative and criminal proceedings and sanctions are combined on the basis of a single set of facts. Second, questions of ne bis in idem have arisen in competition law, with the definition of ‘the same’ of particular relevant where a single set of facts might implicate multiple defendants. Third, significant issues have also been raised in the context of cross-border judicial cooperation in criminal law. Overall, Ličková concludes, the principle seems to have been well embraced – whilst also revealing a significant degree of underlying complexity in its mutual dynamics: ‘the simple is always simplified’. The remaining chapters in Part III examine the three key transversal provisions of the Charter, namely Articles 51, 52 and 53, again basing their analysis on the wealth of information assembled in the national chapters, at least as far as specific data were available. The Charter’s scope of application, as defined in Article 51 of the Charter, is not an easy rule, to put it mildly. Sara Iglesias Sánchez suggests that in its decision in Åkerberg Fransson, the Court of Justice ‘captured in a formula of beautiful simplicity the enormous complexity of this matter’. The question of the scope of the Charter thus became intrinsically linked with the scope of EU law itself. A number of variables make this a difficult enquiry, including diverse national situations, the Charter’s distinct functions and the capacities in which it might be invoked. It is at its most complex where Member State law is concerned, with domestic courts thus playing a crucial role in seeking to define precise boundaries through the preliminary reference procedure. That said, Iglesias Sánchez suggests, questions raised in that manner are but the tip of the iceberg: upon closer inspection, it turns out that domestic courts are becoming increasingly comfortable with the precise contours of Article 51, without at the same time abandoning a clear commitment to domestic fundamental rights instruments. Rather than defining a clear dividing line, then, the ultimate

Introduction  13 question that emerges is one concerning the interaction and collaboration between domestic and Union systems: put differently, the ‘intensity’ of the connection with EU law, as well as of the different standards of protection between constitutional fundamental rights and the Charter. Maja Brkan and Šejla Imamović ask whether Member States’ approaches towards Article 52 of the Charter reveal ‘Twenty-Eight Shades of Interpretations’ – a complex provision designed to clarify the scope of protected rights, at first glance it appears to have received rather divergent interpretations at the domestic level. A closer look, however, reveals that these divergences can mostly be understood as different shades of rather similar, or at least comparable, interpretations. Discrepancies among Member States’ interpretations stem from a number of factors, including divergent terminological use of legal notions rather than conceptual differences in understanding of these notions, the way in which domestic system of fundamental rights protection functions, the way in which EU law has been given effect in the domestic legal order, and, importantly, the role the ECHR plays in it. Consequently, the interpretation given to Article 52 of the Charter on domestic level is the result of embeddedness into a multilevel system of sources of fundamental rights, where pre-existing understandings of national fundamental rights cohabit with those of the Court of Justice and the ECtHR. Brkan and Imamović emphasise how any remaining differences in national interpretations of Article 52 are primarily only a matter of nuances. As regards the analysis of proportionality, for example, only a handful of national jurisdictions apply a different proportionality analysis – notably France and Italy – whereas others mostly converge with the Court of Justice- or ECtHR-style proportionality. However, when it comes to the interpretation and application of Charter rights, the Member States’ approaches are more fragmented: some Member States show clear preference for either the corresponding ECHR rights and their interpretation by the Strasbourg Court, or the corresponding national constitutional rights as interpreted by national courts, most notably national constitutional courts. Others use different sources jointly, without a clear preference for either. François-Xavier Millet, finally, turns to the question of a potential conflict between national fundamental rights standards and EU-level norms. The ability of Article 53 of the Charter to set out a clear level of protection, he argues, is hampered by the fact that the European Union has never been totally at ease with fundamental rights in general and with national rights in particular. That is the consequence of both its constitutional principles – notably the primacy of EU law, not to be undermined by domestic legal provisions – and its somewhat diverging telos, torn between an aspiration to be ‘the best legal order for fundamental rights protection’ and the pursuit of integration, including in particular the internal market and the area of freedom, security and justice. Given these structural and material constraints, domestic fundamental rights protection is bound, despite its high moral and legal value within individual Member States, to be reduced to its bare bones within the broader context of the Union’s legal framework, leaving it at odds with the thick constitutional ambition of the EU. In its current interpretation by the Court of Justice, Article 53 is deprived of any real added value, as it is only taken into account when the application of domestic fundamental rights standards is compatible with the internal logic of EU law. This need not be the case: as Millet suggests, Article 53 has introduced a new dimension of formalised respect for substantive national rights within the EU’s fundamental rights regime. This builds the foundation for a positive use of Article 53 to allow for the exceptional application of (higher) national standards, even if operating to the detriment of uniformity, and – at least on a narrow construction – the primacy and effectiveness of EU law.

14  Jeremias Adams-Prassl and Michal Bobek D.  Broader Perspectives Turning from individual Charter provisions to broader, underlying considerations, the opening contribution to Part IV provides a detailed empirical overview of the operation of the preliminary reference procedure where the Charter is involved, prepared on the basis of data collated by the European Union’s Agency for Fundamental Rights (‘FRA’). In its most recent report, the FRA suggested that ‘the Charter’s role and usage at the national level remained ambivalent’. As David Reichel and Gabriel N Toggenburg highlight, however, a number of methodological difficulties hamper any comprehensive documentation across all Member States. Instead, their contribution presents a statistical analysis of the use of the Charter in preliminary references over a period of eight years, from 2010 to 2018. During that period, 477 preliminary references (or 12 per cent out of a total of 4,096) explicitly refer to the Charter – with a clear increase visible in earlier years stabilising to around 50 references (17 per cent) per year. These figures mask considerable heterogeneity in terms of referring countries (with Italy, Germany and Belgium sending the highest numbers, whereas Cyprus and Malta are yet to make a reference that mentions the Charter), as well as referring courts (even though the Dutch Council of State sent the single highest number of requests, a clear overall majority originates from regional- or local-level courts). In terms of specific articles referenced, the most important provisions are the right to an effective remedy and to a fair trial in Article 47 of the Charter (approximately one-third of all references), and the anti-discrimination provisions in Article 21 of the Charter (20 per cent). One reason behind this is their use in combination with other, more specific, articles, as a detailed network analysis demonstrates. Overall, the authors conclude, the socioeconomic rights included in the Charter’s Solidarity Title are less frequently referred to than rights found in the Justice Title. Returning to the theme of judicial dialogue, finally, they highlight that in nearly one-fifth of preliminary references involving the Charter, national courts have also referenced the ECHR – a promising start for the Charter’s inclusion in Member States’ domestic fundamental rights protection apparatus. Clara Rauchegger investigates the Charter as a standard of constitutional review in the Member States more broadly, exploring how national constitutional courts have reacted to new-found competition from ordinary courts in matters of human rights protection. In most Member States, the central role of constitutional courts as guardians of fundamental rights is challenged by the Charter: while only constitutional courts can review legislation in light of domestic fundamental rights, this limitation does not apply with regard to EU fundamental rights, thus empowering ordinary courts to invalidate domestic legislation without reference to the constitutional court. This could be tolerated as long as the overlap between domestic constitutional law and the EU acquis was relatively limited – a situation that changed dramatically in 2009. In developing a typology of responses, Rauchegger distinguishes three models regarding the status of the Charter as a standard of constitutional review. First, situations where the Charter serves as a direct standard of constitutional review, such as in Italy and Austria following decisions by their respective constitutional courts in 2012 and 2017. A second model is one of indirect constitutional review in light of the Charter, where the jurisdiction of the domestic constitutional court is limited to domestic constitutional law and does not formally extend to the Charter. The approaches of the Spanish and Belgian constitutional courts are exemplary of this model, where the Charter is limited to being taken into account by the constitutional court as an aid to the interpretation of domestic constitutional rights. Under a third model, finally, the Charter has almost no relevance to the domestic constitutional court. France is the prime example of this approach. In these Member States, the Charter is generally

Introduction  15 not taken into account for the interpretation of domestic constitutional rights: even if the Charter is cited, it does not play any decisive role. The effect of the Charter is not necessarily limited to EU Member States. As Adam Łazowski argues, the Charter might, at least in principle, constitute well-suited export material, bearing in mind its prominence in the EU legal order as recognised by the Court of Justice, as well as the fact that respect for human rights and the rule of law are cornerstones of EU external action, reinforced through a variety of political and economic instruments. Despite this potential, however, he concludes that the Charter is – at best – a cherry on the top of the cake. Random references to its provisions may be found in the jurisprudence of courts from Oslo to Tbilisi, yet the Charter merely serves as a persuasive source, with passing references to it frequently sandwiched between national law and the ECHR. There are a number of reasons for this, ranging from a close substantive overlap with the ECHR and domestic norms to the fact that even the latest generation of association agreements concluded by the European Union, which generally demand extensive approximation efforts, fail to make explicit reference to the Charter. Yet this is not the end of the story: third-country interest in the Charter, Łazowski argues, may grow proportionally with the intensity with which the Charter is employed by the Court of Justice to interpret the EU acquis. Armin von Bogdandy and Luke Dimitrios Spieker turn to an exploration of how EU law might protect fundamental rights beyond the Charter by repositioning the Reverse Solange doctrine in light of the Article 2 TEU. European democracy, the rule of law, and fundamental rights are under pressure in a number of Member States as the result of a larger ‘illiberal turn’ – particularly insofar as freedom of speech is concerned. At the same time, however, it might appear that Article 51(1) of the Charter curtails the relevance of EU fundamental rights in countering the illiberal tendencies in EU Member States: Europe’s ‘illiberal turn’ is characterised by a series of domestic measures, often (though not always) in areas that do not obviously fit within the scope of EU law, and thus the protective scope of the Charter. Von Bogdandy and Spieker set out to prove this understanding wrong. Based on the Reverse Solange doctrine, they demonstrate the relevance of EU fundamental rights as part of the Union’s common values enshrined in Article 2 TEU. To the extent that they fall under Article 2 TEU, EU fundamental rights obligations therefore apply even beyond the confines of the Charter. One key challenge to this approach lies in its central premise: the judicial applicability of Article 2 TEU. Drawing on the Court of Justice’s recent case-law, related primarily to Article 19(1) TEU, the authors reformulate the Reverse Solange doctrine and demonstrate how the judicial applicability of Article 2 TEU can be construed without reference to the Court of Justice’s citizenship case-law. Once activated thus, they conclude, Article 2 TEU entails a duty of value-conform interpretation of national law resting on national judges. As such, national judges and individuals can rely on Article 2 TEU to counter illiberal developments and attacks on the Union’s common values in their Member States. Alexander Somek, finally, accounts for both the cosmopolitan and the federal margin of appreciation, comparing the ECHR and the EU as two tracks of integration, arguing that a detailed understanding of the difference between a cosmopolitan and a federal vision of integration is relevant to understanding judicial deference and the margin of appreciation that results from it: a conceptual approach which could be crucial to understand, if not resolve, the multilayered and multifaceted conflicts between different systems and norms that have become apparent throughout this volume. The argument begins with an analysis of why participation in the ECHR system invests constitutional law with a cosmopolitan dimension: by shifting focus from citizens to foreigners, constitutions aspire to appear legitimate even to those who find themselves temporarily or permanently in a disenfranchised state. Respect for human rights is

16  Jeremias Adams-Prassl and Michal Bobek one key to such legitimacy. The cosmopolitan dimension of the ECHR system, which is thoroughly liberal and embraces universal principles, he argues, gives rise to a particular – possibly even the only defensible – understanding of the margin of appreciation. After contrasting this understanding with the role that such a margin plays within federal contexts, Somek explains why systems of fundamental rights protection remain steeped, necessarily, in indeterminacy. Ultimately, they are based not on law but on mutual trust. This is the key to understanding their inherent ‘pluralism’ – an approach, he suggests, that is easier for the ECHR system, for it is not burdened with asserting the place of the central level within a federal system; rendering pluralism milder and not as salient as it is in the case of the Union system. IV. ACKNOWLEDGEMENTS

This volume presents the fruits of a conference organised under the joint auspices of the Oxford Law Faculty’s Institute of European and Comparative Law, the Bonavero Institute of Human Rights and the European Union Agency for Fundamental Rights. Special thanks are due to Gabriel N Toggenburg, Birke Häcker, Kate O’Regan, and Helen Mountfield QC. As editors, we are particularly grateful to a number of colleagues for their administrative and editorial assistance, without which this project could not have been completed. This includes, in particular, Jenny Dix at the Institute of European and Comparative Law, Oxford, as well as Deirdre Hosford and Monika Kotrhová at the Court of Justice of the EU. We are equally grateful to Sinead Moloney and the entire editorial team at Hart Publishing for their ongoing support and patience. The contributors have attempted to capture the law (and practice) as it stood across the Member States in September 2019.

Part I

The Foundations

18

1 The Role of the EU Charter in the Member States KOEN LENAERTS*

T

en years ago, on 1 December 2009, the Charter of Fundamental Rights of the European Union (‘the Charter’) became legally binding. It now has the same legal value as the Treaties. The entry into force of that catalogue of fundamental rights brought about both continuity and change. Continuity because the Charter reflects and complements the Court of Justice of the European Union’s (‘the Court of Justice’) long-standing commitment to upholding fundamental rights as an integral part of the rule of law within the EU. Change because by giving more visibility to fundamental rights, the Charter highlights the fact that the EU is about much more than its internal market. It is, first and foremost, a ‘Union of values’,1 which strives to strike the right balance between individual freedom and the public good. From a constitutional perspective, the Charter is called upon to fulfil three basic functions.2 First, it serves as a source of inspiration for the discovery of general principles of EU law.3 Second, it serves as an aid to interpretation. Given that the provisions of the Charter are primary EU law, secondary EU law, as well as national law implementing EU law, must be interpreted in the light of those provisions.4 Finally, it has been relied upon as providing grounds for judicial review.5 EU legislation that breaches the Charter is to be annulled or

* All opinions expressed herein are personal to the author. 1 Case C-621/18 Wightman and Others EU:C:2018:999, para 63. 2 See K Lenaerts, ‘Exploring the Limits of the EU Charter of Fundamental Rights’ (2012) 8 European Constitutional Law Review 375. 3 See eg Case C-555/07 Kücükdeveci EU:C:2010:21, para 22. 4 See Case C-400/10 PPU McB EU:C:2010:582, para 51 (holding that ‘the Court [of Justice] is called upon to interpret, in the light of the Charter, the law of the [EU] within the limits of the powers conferred on it’). See also Case C-256/11 Dereci and Others EU:C:2011:734, para 71; Case C-40/11 Iida EU:C:2012:691, para 78; Case C-370/12 Pringle EU:C:2012:756, para 179; Case C-87/12 Ymeraga and Others EU:C:2013:291, para 40; Case C-206/13 Siragusa EU:C:2014:126, para 20; Case C-198/13 Julián Hernández and Others EU:C:2014:2055, para 32; Case C-152/17 Consorzio Italian Management and Catania Multiservizi EU:C:2018:264, para 33; and Case C-260/17 Anodiki Services EPE EU:C:2018:864, para 38. 5 See eg Case C-601/15 N PPU EU:C:2016:84. See also Case C-426/16 Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen and Others EU:C:2018:335, para 38 (noting that ‘the European Union is a union based on the rule of law in which all acts of its institutions are subject to review of their compatibility with, in particular, the Treaties, general principles of law and fundamental rights’).

20  Koen Lenaerts declared invalid,6 and national law implementing EU law that contravenes the fundamental rights enshrined therein must be set aside.7 In the context of those three basic functions, the enforcement of the Charter has given rise to normative questions that the Court of Justice, as the supreme body responsible for the interpretation of EU law, is called upon to resolve. Those questions relate to the role that values such as respect for human dignity, freedom, democracy, equality and the rule of law play in defining the EU system of fundamental rights protection. Those questions also relate to the way in which the specific characteristics of EU law – primacy, direct effect and effectiveness, among others – operate in the context of the Charter. Finally, those questions concern the way in which the Charter may contribute to consolidating those ‘values [that] are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail’.8 The purpose of this chapter is not to provide a comprehensive answer to all the normative questions to which the entry into force of the Charter has given rise as that exercise would most probably require an entire book, but rather to look at just three of them, which focus on the application of the Charter to the Member States. To that end, it is divided into three parts. Section I explores the question of competences by looking at the way in which EU law allocates powers between the EU and its Member States in the field of fundamental rights protection. In particular, the expression ‘implementing EU law’, within the meaning of Article 51(1) of the Charter, will be examined in detail. Once it is established that a national measure is ‘implementing EU law’, the question that arises is whether EU law allows room for national law to provide for a higher level of protection. In section II, it will be argued that the Charter does not rule out diversity but that a higher national level of protection may be applied where EU law does not provide for a uniform level of protection and in so far as ‘the primacy, unity and effectiveness of EU law are [not] compromised’.9 The existence or absence of such a uniform level of protection is, subject to compliance with primary EU law, a question for the EU political process to resolve in the light of the principle of democracy on which the EU is founded. Finally, in section III, the issue of the horizontal application of fundamental rights will be addressed in the light of recent developments in the case-law of the Court of Justice. I.  THE QUESTION OF COMPETENCES

The question of competences is what distinguishes the Charter from national systems of fundamental rights protection as well as from the European Convention on Human Rights (ECHR). This is because the Charter is governed by the principle of conferral, which is given concrete expression in the field of fundamental rights protection by Article 51(1) thereof. That provision states that: ‘The provisions of [the] Charter are addressed … to the Member States only when they are implementing [EU] law’ (emphasis added).

6 See eg Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke and Eifert EU:C:2010:662; Case C-236/09 Association belge des Consommateurs Test-Achats and Others EU:C:2011:100; Joined Cases C-584/10 P, C-593/10 P and C-595/10 P Commission and Others v Kadi (Kadi II) EU:C:2013:518; Joined Cases C-293/12 and C-594/12 Digital Rights Ireland and Others EU:C:2014:238; and Case C-362/14 Schrems EU:C:2015:650. 7 See eg Case C-414/16 Egenberger EU:C:2018:257, para 79; Joined Cases C-569/16 and C-570/16 Bauer and Willmeroth EU:C:2018:871, para 91; and Case C-684/16 Max-Planck-Gesellschaft zur Förderung der Wissenschaften EU:C:2018:874, para 80. 8 Art 2 TEU. 9 Case C-399/11 Melloni EU:C:2013:107, para 60.

The Role of the EU Charter in the Member States  21 Writing extrajudicially, I tried to explain the meaning of the expression ‘implementing EU law’ by the following metaphor: ‘[T]he Charter is the “shadow” of EU law. Just as an object defines the contours of its shadow, the scope of EU law determines that of the Charter.’10 It is worth noting that that metaphor has caught on in academia,11 and has been referred to by Advocate General Bobek in two of his opinions.12 That metaphor seeks to give visibility to the fact that the ‘[t]he applicability of [EU] law entails [the] applicability of the fundamental rights guaranteed by the Charter’.13 Simply put, there can be no situation that is governed by EU law in which the Charter does not apply as this would be contrary to the rule of law within the EU. In order to determine whether a Member State is implementing EU law, one must look at the scope of application of EU law and, in particular, at the link between that law and the national measure in question. A.  Implementing EU Law In the light of the case-law of the Court of Justice, it is now safe to say that the Charter applies to so-called ‘agency situations’ and to so-called ‘derogation situations’.14 However, that same case-law has also revealed that the classical ‘two-constellation’ typology may not always suffice in itself to explain convincingly why the Charter applies in complex situations.15 This is because, just as happens with any shadow, there are grey areas where it is difficult to determine where the darkness ends and the brightness begins. Perhaps that is the reason why in Iida the Court of Justice provided additional guidance to examine ‘penumbra’ cases. In that case, it held that in determining whether a national measure is implementing EU law within the meaning of Article 51(1) of the Charter: [I]t must be ascertained among other things whether the national legislation at issue is intended to implement a provision of [EU] law, what the character of that legislation is, and whether it pursues objectives other than those covered by [EU] law, even if it is capable of indirectly affecting that law, and also whether there are specific rules of [EU] law on the matter or capable of affecting it.16

As Advocate General Bobek explained in his Opinion in Ispas, the Iida criteria ‘are neither cumulative, nor exhaustive. They merely constitute indicative criteria aimed at providing guidance to national courts.’17 10 K Lenaerts and JA Gutiérrez–Fons, ‘The Place of the Charter in the EU Constitutional Edifice’ in S Peers, T Hervey, J Kenner and A Ward (eds), The EU Charter of Fundamental Rights: A Commentary (Oxford, CH Beck, Hart, Nomos, 2014) 1560, 1568. 11 See eg D Sarmiento, ‘Who’s Afraid of the Charter? The Court of Justice, National Courts and the New Framework of Fundamental Rights Protection in Europe’ (2013) 50 CML Rev 1267, 1278; and M Bonelli and M Claes, ‘Judicial Serendipity: How Portuguese Judges Came to the Rescue of the Polish Judiciary: ECJ 27 February 2018, Case C-64/16, Associação Sindical dos Juízes Portugueses’ (2018) 14 European Constitutional Law Review 622, 630. 12 Opinions of Advocate General Bobek in Case C-646/17 Moro EU:C:2019:95, point 81; and in Case C-298/16 Ispas EU:C:2017:650, point 29. 13 Case C-617/10 Åkerberg Fransson EU:C:2013:105, para 21. 14 See, in this regard, K Lenaerts and JA Gutiérrez-Fons, ‘The EU Internal Market and the EU Charter: Exploring the “Derogation Situation”’ in F Amtenbrink, G Davies, D Kochenov and J Lindeboom (eds), The Law of the EU Internal Market and the Future of European Integration: Essays in Honour of Laurence W Gormley (Cambridge, Cambridge University Press, 2019). 15 P Benedikt, ‘Mapping the Scope of Application of EU Fundamental Rights: A Typology’ (2018) 3 European Papers 133. 16 Iida (n 4) para 79 (emphasis added). See also Ymeraga and Others (n 4) para 41; Siragusa (n 4) para 25; and Julián Hernández and Others (n 4) para 37. See also Order in Joined Cases C-177/17 and C-178/17 Demarchi Gino and Garavaldi, not published, EU:C:2017:656, para 20. 17 Opinion of Advocate General Bobek in Ispas (n 12) point 47.

22  Koen Lenaerts The Court of Justice has also pointed out that mere substantive proximity to a provision of EU law does not suffice to consider the national measure in question to be ‘implementing EU law’ within the meaning of Article 51(1) of the Charter.18 The link between EU law and the national measure in question ‘must reach a certain level of specificity in normative terms’.19 In determining the existence of such a level of specificity, one must examine whether by adopting the national measure in question, the Member State concerned is fulfilling ‘a specific obligation’ imposed by EU law with regard to the situation in the main proceedings. Two examples taken from the case-law in which the Court of Justice reached different outcomes may illustrate this point. The first is a Spanish reference, the second a reference from Romania. In Julián Hernández and Others,20 the applicants in the main proceedings were employees invalidly dismissed by a private company that became insolvent. Since judicial proceedings against their employer had lasted more than 60 days and Spanish law provided that, in those circumstances, the employer could, once the judgment had become final, claim from the state the remuneration paid to the employees concerned beyond that period of 60 days, the applicants argued that they were entitled to that payment by way of subrogation to the rights of their insolvent employer. However, the competent authorities rejected their claim on the ground that, under Spanish law, that payment was limited to cases involving unfair dismissal. This meant that employees such as the applicants who had been subject to invalid dismissal were not entitled to such payment. The national court held that the interpretation of Spanish law put forward by the competent authorities was correct. However, it asked the Court of Justice whether the rule of Spanish law at issue implemented EU law, in particular Directive 2008/94, which provides minimum protection to employees in the event of the insolvency of their employer.21 If so, it asked whether that legislation was compatible with Article 20 of the Charter.22 The Court of Justice held that the rule of Spanish law at issue did not implement EU law within the meaning of Article 51(1) of the Charter. First, unlike Directive 2008/94, that rule did not seek to protect employees, but rather to compensate the employer for the excessive length of judicial proceedings.23 Second, it did not adversely affect the provisions of that Directive. On the contrary, Spain had fulfilled its obligations under Directive 2008/94 given that the applicants had already obtained the payment of remuneration satisfying the obligation of minimum protection imposed by that Directive.24 Third and last, the adoption of the

18 See Siragusa (n 4) para 24 (holding that ‘the concept of “implementing [EU] law” … requires a 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’). See also Case C-562/12 Liivimaa Lihaveis EU:C:2014:2229, para 62; Julián Hernández and Others (n 4) para 34; and Case C-218/15 Paoletti and Others EU:C:2016:748, para 14. 19 Opinion of Advocate General Bobek in Ispas (n 12) point 48. 20 Julián Hernández and Others (n 4). 21 Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer [2008] OJ L283/36. 22 Art 20 of the Charter, entitled ‘Equality before the law’, states that ‘Everyone is equal before the law.’ 23 Julián Hernández and Others (n 4) para 40. The Court of Justice observed that the claim against the state only covered the period after the 60th working day following the date on which judicial proceedings challenging the dismissal were commenced. For their part, Arts 3 and 4(2) of Directive 2008/94 guarantee the payment of remuneration during the minimum period of the last three months of the employment relationship. 24 ibid para 43. As to minimum harmonisation, see eg F de Cecco, ‘Room to Move? Minimum Harmonization and Fundamental Rights’ (2006) 43 CML Rev 9; and E Spaventa, ‘Should We “Harmonize” Fundamental Rights in the EU? Some Reflections about Minimum Standards and Fundamental Rights Protection in the EU Composite Constitutional System’ (2018) 55 CML Rev 997. See also Joined Cases C-609/17 and C-610/17 TSN and AKT EU:C:2019:981.

The Role of the EU Charter in the Member States  23 rule at issue did not result from EU law but ‘from the exercise of the exclusive competence of the Member States’.25 By contrast, in Florescu, the Court of Justice found that the Charter applied to austerity measures adopted by Romania in order to implement the conditions that the EU had attached to the grant of financial assistance to that Member State. In particular, those austerity measures prohibited the combining of a public-sector retirement pension with income from activities carried out in public institutions (such as universities) if the amount of the pension exceeded a certain threshold. At the outset, the Court of Justice found that the Memorandum of Understanding (MoU) entered into by the EU and Romania was adopted on the basis of the relevant provisions of EU law that govern the grant of mutual assistance to a Member State whose currency is not the euro.26 It thus ruled that the MoU in question was to be regarded as an act of an EU institution. Next, it found that the MoU required, inter alia, a reduction of the public-sector wage bill and a reform of the pension system. Since the austerity measures at issue pursued those two objectives, the Court of Justice reasoned that those measures ‘implemented the MoU’ within the meaning of Article 51(1) of the Charter. Most importantly, the fact that the MoU left Romania some discretion in deciding the means of attaining those two objectives was irrelevant for present purposes. Referring to its previous judgment in NS and Others,27 the Court of Justice held that: ‘[W]here a Member State adopts measures in the exercise of the discretion conferred upon it by an act of EU law, it must be regarded as implementing that law, within the meaning of Article 51(1) of the Charter.’28 B.  Article 51(1) of the Charter and Article 19(1) TEU Before moving on to the second question, it is worth looking at the seminal judgments of the Court of Justice in the Portuguese Judges case (Associação Sindical dos Juízes Portugueses) and in Commission v Poland (Independence of the Supreme Court).29 In those two judgments, the Court of Justice drew a distinction between the expressions ‘implementing EU law’ within the meaning of Article 51(1) of the Charter and ‘in the fields covered by EU law’ within the meaning of the second subparagraph of Article 19(1) TEU. In the Portuguese Judges case, the Court of Justice relied on that distinction in order not to examine whether the salary-reduction measures adopted by Portugal in the context of the euro crisis implemented EU law, within the meaning of Article 51(1) of the Charter, leaving that question open.30 Instead, it went on to explain the relationship between the rule of law, Article 19 TEU, the principle of effective judicial protection and national courts. It held that the EU is founded on the values set out in Article 2 TEU, such as respect for the rule of law. Article 19 TEU gives concrete expression to that founding value by entrusting ‘the responsibility for ensuring judicial review in the EU legal order not only to the [Court of Justice] but also to national courts and tribunals’.31 Accordingly, the Member States are under the obligation 25 Julián Hernández and Others (n 4) paras 44 and 45. 26 Art 143 TFEU and Council Regulation (EC) No 332/2002 of 18 February 2002 establishing a facility providing medium–term financial assistance for Member States’ balances of payments [2002] OJ L53/1. 27 Joined Cases C-411/10 and C-493/10 NS and Others EU:C:2011:865, para 65. 28 See Case C-258/14 Florescu and Others EU:C:2017:448, para 48. 29 Case C-64/16 Associação Sindical dos Juízes Portugueses EU:C:2018:117; and Case C-619/18 Commission v Poland (Independence of the Supreme Court) EU:C:2019:531. 30 cf Opinion of Advocate General Saugmandsgaard Øe in Case C-64/16 Associação Sindical dos Juízes Portugueses EU:C:2017:395. 31 Associação Sindical dos Juízes Portugueses (n 29) para 32.

24  Koen Lenaerts ‘to establish a system of legal remedies and procedures ensuring effective judicial protection in [the fields covered by EU law]’.32 In that regard, the Court of Justice found that there is an unbreakable link between compliance with the rule of law and the principle of effective judicial protection: one cannot exist without the other. The bodies entrusted with responsibility for upholding the rule of law within the EU – ie ‘courts or tribunals’ – must meet the requirements of effective judicial protection. This means, in essence, that such protection must be provided by a body that falls within the notion of ‘court or tribunal’ as defined by EU law. In particular, referring to its case-law on Article 267 TFEU and on Article 47 of the Charter, the Court of Justice held that that notion requires courts to be independent.33 After recalling what judicial independence means for the purposes of that case-law,34 the Court of Justice found that ‘the receipt by those members of a level of remuneration commensurate with the importance of the functions they carry out constitutes a guarantee essential to judicial independence’.35 In order to determine whether the applicants in the main proceedings – who were members of the Tribunal de Contas (Court of Auditors) – could benefit from that guarantee, the referring court had to undertake two verifications: first, whether the Tribunal de Contas was a ‘court or tribunal’ within the meaning of EU law; and second, whether that Tribunal may ‘rule … on questions concerning the application and interpretation of EU law’.36 In Commission v Poland, the Court of Justice confirmed the distinction between the expressions ‘implementing EU law’ within the meaning of Article 51(1) of the Charter and ‘in the fields covered by EU law’ within the meaning of the second subparagraph of Article 19(1) TEU. In that case, the Court of Justice upheld an infringement action brought by the Commission against Poland on the ground that by passing a series of reforms that undermined the independence of the Polish Supreme Court,37 that Member State had failed to fulfil its obligations under Article 19(1) TEU. Poland argued, first, that the contested legislation fell outside the scope of application of that Treaty provision, since that legislation related to the organisation of the national judiciary, an area in which the Member States retain their competence. Second, it contended that Article 19(1) TEU only applied to situations that are governed by EU law. Unlike the legislation at issue in the Portuguese Judges case – which was adopted in response to the grant of financial assistance by the EU – Poland observed that the contested legislation had no link whatsoever to EU law. 32 ibid para 34. 33 ibid paras 42, 43 and 44. Regarding Art 47 of the Charter – which contains the notion of ‘independent and impartial tribunal’, the Court of Justice referred to Case C-685/15 Online Games and Others EU:C:2017:452, para 60; and Case C-403/16 El Hassani EU:C:2017:960, para 40. As to the notion of ‘court or tribunal’ set out in Art 267 TFEU, it referred to Case C-506/04 Wilson EU:C:2006:587, para 49; and Case C-503/15 Margarit Panicello EU:C:2017:126, para 37. 34 In that regard, the Court of Justice noted that: ‘The concept of independence presupposes, in particular, that the body concerned exercises its judicial functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, and that it is thus protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions.’ Associação Sindical dos Juízes Portugueses (n 29) para 44. See also Case C-216/18 PPU Minister for Justice and Equality (Deficiencies in the system of justice) EU:C:2018:586, para 48. In that case, the Court of Justice held that: ‘[T]he requirement of judicial independence forms part of the essence of the fundamental right to a fair trial, a right which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in [Art] 2 TEU, in particular the value of the rule of law, will be safeguarded.’ 35 Associação Sindical dos Juízes Portugueses (n 29) para 45. 36 ibid para 40. 37 Those reforms sought to lower the retirement age of the judges appointed to the Supreme Court and to grant the President of the Republic of Poland the discretion to extend the period of judicial activity of judges of that court.

The Role of the EU Charter in the Member States  25 However, the Court of Justice took a different view. It began by reaffirming the distinction between the scope ratione materiae of Article 19(1) TEU and that of Article 51(1) of the Charter. Poland had misconstrued the ruling in the Portuguese Judges case, since the fact that the salary-reduction measures at issue had been adopted by Portugal in the context of the euro crisis had had no bearing on the Court of Justice’s interpretation of Article 19(1) TEU.38 On the contrary, the Court of Justice pinpointed the two key factors that trigger the application of that Treaty provision, ie first, whether the body at issue in the main proceedings is a ‘court or tribunal’ within the meaning of EU law; and, second, whether it may rule on questions concerning the interpretation and application of that law. If the answer to those two questions is in the affirmative, Article 19(1) TEU protects that body from any measure that may threaten its independence. Moreover, whilst the Court of Justice acknowledged that matters pertaining to the organisation of the judiciary remain within the exclusive purview of the Member State regulatory powers, those powers must be exercised in compliance with EU law, and in particular with Article 19(1) TEU.39 It follows from those two seminal judgments that, whilst Article 51(1) of the Charter and Article 19(1) TEU do not have the same scope ratione materiae, they both serve to define the way in which the EU system of fundamental rights protection operates. First, Article 51(1) of the Charter reassures the Member States – and in particular, their constitutional courts – that not all fundamental rights questions are EU law questions. Thus, Article 51(1) of the Charter allocates responsibilities as to the level of governance that must protect fundamental rights effectively. Second, Article 19(1) TEU serves to protect the judicial architecture within which the Charter is to provide its protection in compliance with Article 51(1) thereof. That is the reason why the scope of application of Article 19(1) TEU and that of Article 51(1) of the Charter are not the same. The former provision does not look at whether EU law is being implemented in the case at hand, but focuses on the question whether a particular body may, on occasion, be called upon to interpret and apply that law. If that body is considered to be a ‘court or tribunal’ within the meaning of EU law and enjoys jurisdiction over questions pertaining to the interpretation and application of that law, then its independence must be protected at all times. That is because only such permanent protection may prevent the entire edifice of EU judicial remedies from being undermined. Indeed, since only independent courts or tribunals may engage in a dialogue with the Court of Justice via the preliminary reference mechanism, that dialogue cannot continue where a court or tribunal is no longer independent.40 Threats to judicial independence constitute a real risk to the proper functioning of the preliminary reference mechanism which has ‘the object of securing uniform interpretation of EU law, thereby serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties’.41 The interpretation of Article 19(1) TEU put forward by the Court of Justice is based on a structural understanding of the EU legal order: independent national courts – acting as the courts of general jurisdiction for the application and enforcement of EU law in the Member States – are indeed an essential building block of the EU’s constitutional structure.

38 Commission v Poland (Independence of the Supreme Court) (n 29) paras 50 and 51. 39 ibid para 52. 40 See, in this regard, K Lenaerts, ‘On Judicial Independence and the Quest for National, Supranational and Transnational Justice’ in G Selvik and Others (eds), The Art of Judicial Reasoning: Festschrift in Honour of Carl Baudenbacher (Basel, Springer, 2019) 155. 41 Commission v Poland (Independence of the Supreme Court) (n 29) para 45.

26  Koen Lenaerts II.  THE AUTONOMOUS DEVELOPMENT OF THE CHARTER AND THE QUESTION OF HIGHER NATIONAL LEVELS OF PROTECTION

Once it is established that a national measure implements EU law, and hence the Charter applies, the question arises whether national law may provide for a higher level of protection of fundamental rights. It will always be a higher level because a national measure implementing EU law may not disregard the level of protection guaranteed by the Charter. That question relates to the way in which the Court of Justice strives to find the right balance between European unity and national diversity. Most importantly, in answering that question, the Court of Justice seeks to accommodate the two perspectives from which fundamental rights may be examined, which often seem to pull in different directions. On the one hand, fundamental rights are a symbol of universality that unites individuals in their human condition. On the other hand, the way in which fundamental rights are weighed against objectives of general interest may differ as between the EU and some of its Member States and as between one Member State and another. Thus, the way in which fundamental rights are balanced may reflect national, regional and local identities. The objective of accommodating those two – often conflicting – perspectives is enshrined in the Preamble to the Charter, which states that: The Union contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States and the organisation of their public authorities at national, regional and local levels.

In this section, it is posited that neither European unity nor national diversity is absolute as both must comply with the Charter. Save to the extent that the EU courts need to intervene in order to enforce that compliance, it is not for them to choose the precise balance between European unity and national diversity. That is rather a matter for the EU political process in accordance with the principle of democracy. A.  The ECHR as a Minimum Threshold of Protection In so far as the Charter contains rights that correspond to those guaranteed by the ECHR, it follows from Article 52(3) of the Charter that ‘the meaning and scope of those Charter rights shall be the same as those laid down by the said Convention’. This means, in essence, that the level of protection guaranteed by the Charter may not disregard that guaranteed by the ECHR.42 That said, the need for normative consistency does not prevent EU law from providing more extensive protection. As the Court of Justice held in TC, ‘[a]ccount must … be taken of [the] ECHR …, as the minimum threshold of protection’.43 It follows that the Charter allows room for autonomous developments in the field of fundamental rights protection. The seminal

42 See eg N (n 5) para 77; Case C-18/16 K EU:C:2017:680, para 50; Case C-524/15 Menci EU:C:2018:197, para 62; Case C-180/17 Staatssecretaris van Veiligheid en Justitie (Suspensory effect of the appeal) EU:C:2018:775, para 31; and Case C-175/17 Belastingdienst/Toeslagen (Suspensory effect of the appeal) EU:C:2018:776, para 35. 43 Case C-492/18 PPU TC EU:C:2019:108, para 57.

The Role of the EU Charter in the Member States  27 ruling of the Court of Justice in Menci, which concerned the application of the ne bis in idem principle in the context of non-payment of VAT, illustrates this point.44 In that case, the Court of Justice had to decide whether it would align its interpretation of Article 50 of the Charter with the judgment of the European Court of Human Rights (the ECtHR) in A and B v Norway, in which that Court modified its previous case-law.45 According to that judgment, where tax penalties are criminal in nature, a duplication of tax and criminal proceedings and penalties punishing the same violation of the tax law does not infringe the ne bis in idem principle enshrined in Article 4 of Protocol No 7 to the ECHR, where the tax and criminal proceedings at issue have a sufficiently close connection in substance and time.46 If that connection exists, there is simply no ‘bis’. Alternatively, the Court of Justice could develop its own approach based on the Charter that would nevertheless comply with the level of protection guaranteed by the ECHR resulting from A and B v Norway.47 This was actually what the Court of Justice did. At the outset, the Court of Justice recalled that the ECHR ‘does not constitute, as long as the [EU] has not acceded to it, a legal instrument which has been formally incorporated into EU law’,48 and that normative consistency between the Charter and the ECHR may not adversely affect the autonomy of EU law.49 Next, it went on to find that a duplication of tax and criminal proceedings and penalties constitutes a limitation on the ne bis in idem principle laid down in Article 50 of the Charter, that must comply with Article 52(1) of the Charter. Such compliance requires national law implementing EU law to fulfil the following conditions. First, national law providing for such a duplication must pursue an objective of general interest which is such as to justify it (eg combating VAT offences). Moreover, tax and criminal proceedings must have complementary objectives. Second, national law must contain rules ensuring coordination that limits to the strictly necessary the disadvantages resulting from such a duplication. Third, national law must provide for rules making it possible to ensure that the severity of all of the penalties imposed is limited to what is strictly necessary in relation to the seriousness of the offence concerned.50 Finally, the Court of Justice observed that its interpretation of Articles 50 and 52(1) of the Charter provided a level of protection of fundamental rights that was not in conflict with that guaranteed by the ECHR. It follows from Menci that a right contained in the Charter may be interpreted by the Court of Justice so as to provide a higher level of protection than that guaranteed by the ECHR.51 It is worth noting that, unlike other rights recognised by the Charter, the application of the 44 Menci (n 42). See also Case C-537/16 Garlsson Real Estate and Others EU:C:2018:193, and Joined Cases C-596/16 and C-597/16 Di Puma and Zecca EU:C:2018:192. However, only the judgment in Menci refers to the judgment of the ECtHR in A and B v Norway. More recently, see Joined Cases C-924/19 PPU and C-925/19 PPU Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, EU:C:2020:367. 45 ECtHR, judgment of 15 November 2016 A and B v Norway CE:ECHR:2016:1115JUD002413011. 46 ibid para 132. 47 See, in that regard, Opinion of Advocate General Campos Sánchez–Bordona in Case C-524/15 Menci EU:C:2017:667, paras 78 et seq. 48 Menci (n 42) para 22. See also Åkerberg Fransson (n 13) para 44; N (n 5) para 45. 49 Menci (n 42) para 23. See also N (n 5) para 47; K (n 42); and Staatssecretaris van Veiligheid en Justitie (Suspensory effect of the appeal) (n 42) para 31. 50 Menci (n 42) para 63. 51 See eg M Luchtman, ‘The ECJ’s Recent Case Law on Ne Bis In Idem: Implications for Law Enforcement in a Shared Legal Order’ (2018) 55 CML Rev 1717, 1730 (who notes that in Menci, ‘the [Court of Justice] clearly deviates from the approach of the [ECtHR], which does not recognize such combinations as a limitation of the principle, but rather excludes such combinations from the scope of the principle; according to the ECtHR, they are not considered to be a bis. Precisely because of that difference, it is important to stress that the [Court of Justice] does establish a higher ne bis in idem threshold than the ECtHR, although the [Court of Justice] itself makes no mention of that difference, nor does it refer to the aforementioned final sentence of [Art] 52(3) [of the Charter]’).

28  Koen Lenaerts ne bis in idem principle does not often entail a conflict with other fundamental rights. Where a conflict of fundamental rights exists, the question of providing a higher level of protection becomes more complex. The reason is that there is a risk of tilting the golden balance struck by the ECtHR, in so far as providing a fundamental right with a higher level of protection may inevitably entail providing a conflicting fundamental right with a lower level of protection. In Puškár, Advocate General Kokott examined this question. She posited that departure from the case-law of the ECtHR is ‘only permitted provided that it does not also cause another fundamental right in the Charter corresponding to a right in the ECHR to be accorded less protection than in the case law of the ECtHR’.52 This would suggest that the autonomous development of the Charter is not always possible. B.  The Principle of Democracy and Levels of Fundamental Rights Protection Moreover, the EU legislature may impose a uniform level of fundamental rights protection. It may do so provided that it does not disregard the level of protection guaranteed by the Charter. Needless to say, the EU legislature is free to decide whether to impose a uniform level of protection that is higher than that guaranteed by the Charter. That uniform level of protection rules out diversity as it precludes the application of higher levels of protection provided for by national law. By contrast, where the EU legislature has not provided for a uniform level of protection, there is room for national diversity. However, that diversity is not absolute as it must, first, comply with the level of protection guaranteed by the Charter; and, second, respect ‘the primacy, unity and effectiveness of EU law’. It follows that, subject to compliance with the Charter and other provisions of primary EU law, the choice between European unity and national diversity is a political question that is adopted at EU level on the basis of the principle of representative democracy. Some commentators have compared the judgment of the Court of Justice in MAS and MB (also known as Taricco II) with that in Melloni, asking themselves whether the latter judgment was overruled.53 However, that is clearly not the right approach. The reason is very simple. As Advocate General Bobek noted in his Opinion in Dzivev,54 whilst in Melloni the EU legislature had laid down a uniform level of protection, that was not the case in MAS and MB.55 i.  The Charter and Uniformity In Melloni, the EU legislature amended, in 2009, the European Arrest Warrant Framework Decision with a view to protecting the procedural rights of persons subject to criminal proceedings whilst improving mutual recognition of judicial decisions between Member States. To that effect, the EU legislature introduced a new provision that lists the circumstances under which

52 Opinion of Advocate General Kokott in Case C-73/16 Puškár EU:C:2017:253, point 123. The Court of Justice declared that question to be inadmissible as it ‘was raised by the referring court in general terms’ and was not clearly drafted. See Case C-73/16 Puškár EU:C:2017:725, para 119. 53 F Vigano, ‘Melloni Overruled? Considerations on the “Taricco II” Judgment of the Court of Justice’ (2018) 9 New Journal of European Criminal Law 18. 54 Opinion of Advocate General Bobek in Case C-310/16 Dzivev EU:C:2018:623, points 81 et seq. 55 See, in this regard, C Rauchegger ‘National Constitutional Rights and the Primacy of EU law: MAS’ (2018) 55 CML Rev 1521, 1533 (who observes that ‘[t]he lack of harmonization by the EU legislature distinguishes MAS from Melloni’).

The Role of the EU Charter in the Member States  29 the executing judicial authority may not refuse execution of a European Arrest Warrant issued against a person convicted in absentia. In that regard, the Court of Justice noted that the new provision complied with Articles 47 and 48 of the Charter – two provisions that are in keeping with the scope that has been recognised for the rights guaranteed by Article 6(1) and (3) ECHR56 – given that it only applied to situations where the person convicted in absentia was deemed to have voluntarily and unambiguously waived his or her right to be present at the trial in the issuing Member State. Since the EU legislature had itself struck, in compliance with the Charter, a balance between the protection of those fundamental rights and the requirements of mutual recognition of judicial decisions, the application of a higher national level of protection was ruled out. It is worth noting that the rationale put forward by the Court of Justice in Melloni was not a one-off. Rather, it was recently confirmed in Związek Gmin Zagłębia Miedziowego (Local Government Association of Polkowice).57 That case concerned the scope of the right to deduct input VAT incurred on supplies used indissociably for the purpose of both economic activities (liable to VAT) and non-economic activities (exempted from that tax). Since Polish legislation provided no method for calculating the deductible share of input VAT incurred on those supplies, the principle of fiscal legality (nullum tributum sine lege), as enshrined in Article 217 of the Polish Constitution, precluded the tax administration from applying any such method of calculation. This meant that a taxable person had the right to deduct the entire input VAT. After finding that the VAT Directive precluded such deduction, the Court of Justice, drawing on the constitutional traditions common to the Member States, recognised the principle of fiscal legality as a general principle of EU law,58 requiring that the essential elements of a tax be provided for by law. This, however, is not the case for all technical aspects of such a tax, provided that the rules provided for by law enable the taxpayer to foresee and to calculate the amount of tax due and to determine the moment when it becomes payable.59 That being so, the question arose whether it was for national law or for EU law to identify the essential elements of VAT. In the key passage of that judgment, the Court of Justice held that as regards an essential element of a tax that has been harmonised by the EU legislature, such as VAT, the question of which elements of that tax are to be provided for by law must be examined in the light of the principle of fiscal legality as a general principle of EU law, and not on the basis of an interpretation of that principle in national law.60 For the Court of Justice, the right to deduct input VAT is an essential element of that tax that has been fully harmonised by the VAT Directive, leaving the Member States no discretion as regards its implementation.61 By contrast, the methods of calculation at issue in the main proceedings were not essential elements of VAT but technical aspects of that tax that were not required to be provided for by law. Those aspects simply had to be regulated in such a way as to allow for a pro-rata deduction of input VAT only. The judgment of the Court of Justice in Związek Gmin Zagłębia Miedziowego (Local Government Association of Polkowice) constitutes an important development for two reasons. First, it shows convergence between the Charter and general principles of EU law. As regards both, the Court of Justice follows the same rationale when determining their scope of 56 Melloni (n 9) para 50. 57 Case C-566/17 Związek Gmin Zagłębia Miedziowego EU:C:2019:390. For another example, see Case C-469/17 Funke Medien NRW, EU:C:2019:623. 58 Z wi ą zek Gmin Zag łę bia Miedziowego (n 57) para 36. 59 ibid para 39. 60 ibid para 41. 61 ibid para 42.

30  Koen Lenaerts application and the existence or absence of a uniform level of protection. Second, that case also demonstrates that the presence of full EU harmonisation and the existence of a uniform level of protection often go hand in hand. ii.  The Charter and Diversity By contrast, in MAS and MB, another VAT case, the Court of Justice recalled that the Member States must ensure, in cases of serious VAT fraud, that effective and deterrent criminal penalties are adopted. Nevertheless, in the absence of EU harmonisation, it is for the Member States to adopt the limitation rules applicable to criminal proceedings relating to those cases. This means, in essence, that whilst a Member State must impose effective and deterrent criminal penalties in cases of serious VAT fraud, it is free to consider, for example, that limitation rules form part of substantive criminal law. Where that is the case, the Court of Justice pointed out that such a Member State must comply with the principle that criminal offences and penalties must be defined by law, a fundamental right enshrined in Article 49 of the Charter which corresponds to Article 7(1) ECHR.62 Accordingly, even where the limitation rules at issue prevent the imposition of effective and deterrent criminal penalties in a significant number of cases of serious VAT fraud, the national court is under no obligation to disapply those rules in so far as that obligation is incompatible with Article 49 of the Charter. That does not mean, however, that those limitation rules are left untouched to the detriment of the financial interests of the EU. In the light of the primacy, unity and effectiveness of EU law, it is, first and foremost, for the national legislature to amend those limitation rules so as to avoid impunity in a significant number of cases of serious VAT fraud. Accordingly, the judgment of the Court of Justice in MAS and MB fits well with those in cases such as Åkerberg Fransson,63 F,64 Kolev and Others65 and Dzivev,66 where the EU legislature did not lay down a uniform level of fundamental rights protection. In Åkerberg Fransson, the Court of Justice held that, in order to ensure that all VAT revenue is collected and, in so doing, that the financial interests of the European Union are protected, the Member States have freedom to choose the applicable penalties. These penalties may therefore take the form of administrative penalties, criminal penalties or a combination of the two. In taking that decision, the national legislature must comply with Article 50 of the Charter, which enshrines the principle of ne bis in idem. Accordingly, it is only where an administrative penalty is criminal in nature for the purposes of Article 50 of the Charter and has become final that the Charter precludes criminal proceedings in respect of the same acts from being brought against the same person. As to the primacy, unity and effectiveness of EU law, the option chosen by the national legislature had to provide for sanctions that protected the financial interests of the EU in an effective, dissuasive and proportionate fashion. Similarly, in F, a case which related to the European Arrest Warrant, the Court of Justice found that there was room for national diversity in the context of the speciality rule. According to that rule, before the issuing judicial authorities prosecute the person concerned for offences other than those for which he or she has been surrendered, they must obtain the consent of the executing judicial authority. Thus, in F, the question was whether EU law prevented the



62 Case

C-42/17 MAS and MB EU:C:2017:936, para 55. Fransson (n 13) para 29. 64 Case C-168/13 PPU F. EU:C:2013:358, para 55. 65 Case C-612/15 Kolev and Others EU:C:2018:392. 66 Case C-310/16 Dzivev and Others EU:C:2019:30. 63 Åkerberg

The Role of the EU Charter in the Member States  31 person surrendered from bringing an appeal having suspensive effect against a decision taken by the executing judicial authority by which it gave its consent. In that regard, the Court of Justice found that the European Arrest Warrant Framework Decision, interpreted in the light of Article 47 of the Charter, neither imposed nor opposed such a right of appeal. It noted that the principle of effective judicial protection, as enshrined in Article 47 of the Charter, ‘affords an individual a right of access to a court but not to a number of levels of jurisdiction’. Thus, it was for the constitutional law of the executing Member State – and only for that law – to determine the existence or absence of such a right at national level. That said, if that right did exist, its exercise could not compromise the primacy, unity and effectiveness of EU law. For the case at hand, this meant that the exercise of that right of appeal could not have the effect of preventing the executing judicial authority from adopting a decision within the time-limits prescribed by EU law. In the same way, in Kolev and Others, the Court of Justice acknowledged that there was room for diversity. That case involved criminal proceedings brought against eight customs officers who were charged with having participated in a criminal undertaking for more than a year by demanding bribes from those crossing the border between Bulgaria and Turkey in order not to carry out customs inspections and not to document any irregularities identified. Under Bulgarian law, if the prosecutor did not bring to an end the pre-trial stage of criminal proceedings on the expiry of two years after the bringing of charges for serious offences, the accused could request a court to close the criminal proceedings. If that period had indeed expired, such a court would grant the prosecutor an additional period of 3.5 months during which he or she could bring the case for trial. Thereafter, the court was required to examine whether the prosecutor had infringed essential procedural requirements. In the affirmative, the prosecutor enjoyed an additional period of one month to cure those infringements.67 Thus, the referring court asked, in essence, whether the relevant EU law provisions that protect the financial interests of the EU (by means of ensuring the effective collection of custom duties) opposed such a procedure for terminating criminal proceedings. After noting that EU law does not contain rules on the termination of customs-related criminal proceedings, the Court of Justice ruled that the Member States ‘must nonetheless ensure that cases of serious fraud or any other serious illegal activity affecting the financial interests of the Union in customs matters are punishable by criminal penalties that are effective and that act as a deterrent’. In that regard, the procedure at issue in the main proceedings affected those financial interests in so far as it was liable to impede the effectiveness of criminal prosecution and the punishment of acts that may be categorised as serious fraud or other serious illegal activity. In particular, the periods of 3.5 months and one month did not stop running in the event of the accused deploying delaying tactics. Whilst the national court had to give full effect to the relevant EU law provisions that protect the financial interests of the EU, it must do so in compliance with the Charter,68 in particular in compliance with Article 48(2) thereof and with the right to be heard within a reasonable time. Most importantly for present purposes, where the national court enjoys, under national law, a number of approaches in order to give full effect to EU law, it may only choose those that provide effective judicial protection to the fundamental rights in questions. However, that does not mean choosing the option that brings about the most favourable outcome for the accused, but the one that ensures compliance with the Charter whilst not compromising the primacy, unity and effectiveness of EU law.69

67 Kolev 68 ibid 69 ibid

and Others (n 65) para 21. para 68. para 75.

32  Koen Lenaerts More recently, in Dzivev and Others, a Bulgarian court that lacked jurisdiction ordered the interception of telecommunications of the applicants in the main proceedings on suspicion of having committed VAT fraud. The entire case rested on the taking of that evidence alone. However, under Bulgarian law, the referring court had no choice but to exclude that evidence from prosecution. Thus, the referring court asked, in essence, whether the relevant EU law provisions that protect the financial interests of the EU (by means of ensuring the effective collection of VAT) opposed such exclusion. At the outset, the Court of Justice found that rules of procedure for the taking of evidence and the use of that evidence in VAT-related criminal proceedings were not governed by EU law. That said, the autonomy enjoyed by the Member States in adopting those rules was circumscribed by the principles of effectiveness, equivalence and proportionality.70 Referring to its previous ruling in MAS and MB, the Court of Justice found that that autonomy was also circumscribed by the fundamental rights guaranteed by the Charter.71 In particular, Articles 7 and 52(1) of the Charter require any limitation on the exercise of the right to private life to be provided for by law. This was not the case in the main proceedings, since the interception of telecommunications was ordered by a court that did not enjoy the necessary jurisdiction.72 Thus, the Court of Justice found that EU law did not oppose the exclusion of such evidence. III.  THE HORIZONTAL APPLICATION OF THE CHARTER

It is true that, unlike the EU institutions, bodies, offices and agencies as well as the Member States but only when implementing EU law, private parties are not explicitly mentioned in Article 51(1) of the Charter amongst the Charter’s addressees. That absence led some commentators to support the view that the Charter as a whole is unable to produce horizontal direct effect.73 However, in AMS,74 the Court of Justice recognised, albeit implicitly, that some provisions of the Charter may produce horizontal direct effect. Indeed, instead of ruling out that the Charter as a whole may produce such effect, the Court of Justice went on to examine in detail whether a specific provision of the Charter – its Article 27 (workers’ right to information and consultation within the undertaking) – met the requirements to be directly applicable in disputes between private parties. Whilst Article 27 of the Charter did not meet those requirements,75 subsequent judgments have confirmed that other provisions of the Charter may do so. In Egenberger, IR, Bauer and Willmeroth, Max-Planck and Cresco Investigation,76 the Court of Justice held that a fundamental right enshrined in a provision of the Charter may produce horizontal direct effect provided that such a Charter provision is sufficient in itself and does not need to be made more specific by other provisions of EU or national law to confer on 70 Dzivev and Others (n 66) para 30. 71 ibid para 33. 72 ibid para 37. 73 See, notably, Opinion of Advocate General Trstenjak in Case C-282/10 Dominguez EU:C:2011:559, points 80 et seq. cf Opinion of Advocate General Cruz Villalón in Case C-176/12 Association de médiation sociale EU:C:2013:491, points 28 et seq. 74 Case C-176/12 Association de médiation sociale EU:C:2014:2. 75 See Case C-573/17 Popławski EU:C:2019:530, para 63 (holding that ‘the national court is not required, solely on the basis of EU law, to disapply a provision of national law which is incompatible with a provision of the Charter … which, like [Art] 27, does not have direct effect’). 76 Egenberger (n 7) para 57; Case C-68/17 IR EU:C:2018:696; Bauer and Willmeroth (n 7); Max-Planck-Gesellschaft zur Förderung der Wissenschaften (n 7); and Case C-193/17 Cresco Investigation EU:C:2019:43.

The Role of the EU Charter in the Member States  33 individuals a right on which they may rely as such. Accordingly, such a right is unconditional and mandatory in nature, applying not only to the action of public authorities, but also in disputes between private parties.77 To date, this is the case of Articles 21(1), 31(2) and 47 of the Charter (respectively, the right to non-discrimination, the right to paid annual leave and the right to effective judicial protection). Moreover, in Bauer and Willmeroth and Max-Planck – two cases concerning the horizontal application of the right to paid annual leave enshrined in Article 31(2) of the Charter – the Court of Justice explicitly stated that no conclusion may be drawn from the fact that Article 51(1) of the Charter does not mention individuals amongst its addressees. First, ‘the fact that certain provisions of primary law are addressed principally to the Member States does not preclude their application to relations between individuals’.78 This is true if one looks at cases such as Walrave and Koch, Defrenne and Angonese.79 Second, Article 51(1) of the Charter could not prevent the fact that some provisions of the Charter – such as Article 21(1) – are sufficient in themselves to confer on individuals rights which they may rely on as such in a dispute with another individual. Third and last, the exercise of some fundamental rights entails, by the very nature of those rights, the imposition of obligations on other private individuals.80 Another element that is worth mentioning regarding the judgments of the Court of Justice in Bauer and Willmeroth and Max-Planck is that it is only the essence of Article 31(2) of the Charter that may produce horizontal direct effect. This is in sharp contrast with Articles 21(1) and 47 of the Charter, which may, as a whole, produce such effect. Accordingly, it is only where a national measure does not respect the essence of the right to paid annual leave that Article 31(2) of the Charter may be relied upon in a dispute between private parties.81 Moreover, some commentators who opposed the horizontal application of the Charter have argued that the theory of ‘positive obligations’ put forward by the ECtHR would suffice to provide effective judicial protection to the fundamental rights recognised in the Charter.82 Whilst the system of fundamental rights protection established by the ECHR does not cover violations committed by private parties as only states are parties to that Convention (pending accession of the EU), it does impose on the Contracting Parties a ‘duty to protect’ individuals against violations of ECHR rights committed by other individuals.83 However, it is 77 K Lenaerts and JA Gutierrez-Fons, ‘The European Court of Justice as the Guardian of the Rule of “EU Social law”’ in F Vandenbroucke, C Barnard, and G De Baere (eds), A European Social Union after the Crisis (Cambridge, Cambridge University Press, 2017) 407, 446 et seq. 78 Bauer and Willmeroth (n 7) para 88; and Max-Planck-Gesellschaft zur Förderung der Wissenschaften (n 7). 79 Case 36/74 Walrave and Koch EU:C:1974:140; Case 43/75 Defrenne EU:C:1976:56; and Case C-281/98 Angonese EU:C:2000:296. 80 Bauer and Willmeroth (n 7) paras 87–90; and Max-Planck-Gesellschaft zur Förderung der Wissenschaften (n 7) paras 76–79. 81 K Lenaerts, ‘Limits on Limitations: The Essence of Fundamental Rights in the EU’ (2019) 20 German Law Journal 779. In the light of the judgments Bauer and Willmeroth (n 7) and Max-Planck-Gesellschaft zur Förderung der Wissenschaften (n 7), one may argue that Art 31(2) of the Charter may be relied upon where a national measure compromises the essence of the right to paid annual leave by bringing about the loss of that right. Conversely, that is not the case in respect of non-essential elements of that right, such as the precise duration of annual leave and, where appropriate, certain conditions under which that right is to be exercised. 82 See, notably, Opinion of Advocate General Trstenjak in Case C-282/10 Dominguez EU:C:2011:559, points 84–87. 83 In the context of employment law, see eg ECtHR, judgment of 13 August 1981, Young, James and Webster v the United Kingdom CE:ECHR:1981:0813JUD000760176 (where the ECtHR held that the UK had the positive obligation to prevent an employer (British Rail) from lawfully dismissing three employees who had refused to join three trade unions with which such an employer had entered into an agreement, stating that membership of one of those unions was a condition of employment. In so doing, the ECtHR pointed out that ‘there is no call to examine whether, as the applicants argued, the State might also be responsible on the ground that it should be regarded as employer or that British Rail was under its control’).

34  Koen Lenaerts respectfully submitted that the views of those commentators are not well founded. The reason is twofold. First, the question of the horizontal application of fundamental rights is not a new one but is as old as the judgment of the Court of Justice in Defrenne.84 In the light of that judgment and of those that relate to the horizontal application of the fundamental freedoms,85 it is safe to say that the horizontal application of fundamental rights is firmly established in the case-law of the Court of Justice. Second, as I mentioned in January 2018 during my speech at the opening of the ECtHR’s judicial year, although both the ECHR and the EU legal order are committed to protecting fundamental rights, their respective systems of protection do not operate in precisely the same way. Whilst the ECHR operates as an external check on the obligations imposed by that international agreement on the Contracting Parties, the EU system of fundamental rights protection is an internal component of the rule of law within the EU.86 As such, that system benefits from the special features of EU law that include the principle of primacy and, of course, the principle of direct effect. The differences between the system of fundamental rights protection established by the ECHR and that established by EU law can be seen in XC and Others.87 In that case, Austrian legislation provided for a judicial remedy that allowed for criminal proceedings closed by means of a final decision to be reheard in the event of a violation of the ECHR. That remedy was applicable where the ECtHR had issued a ruling finding that Austria had committed such a violation. In addition, the same applied where it was the Austrian Supreme Court itself that made that finding, provided that the conditions of admissibility set out in the ECHR were met, notably that concerning the exhaustion of domestic remedies.88 However, the judicial remedy at issue did not apply where the final decision was adopted in breach of EU law, and in particular of the Charter. Thus, the question that arose was whether, in order for that remedy to comply with the principles of equivalence and effectiveness, its scope had to be expanded so as to include infringements of EU law. As to the principle of equivalence, the Court of Justice examined whether the judicial remedy at issue was, in the light of its purpose and cause of action, similar to those that seek to safeguard the rights that EU law confers on individuals.89 On the one hand, the Court of Justice described the main features of the remedy at issue in the main proceedings. It pointed out that that remedy was functionally linked to proceedings before the ECtHR.90 It sought to implement the rulings of the ECtHR in the Austrian legal

84 Defrenne (n 79). 85 See eg Walrave and Koch (n 79); and Angonese (n 79). It is worth noting that an unjustified restriction on a fundamental freedom may entail an unjustified limitation on the rights enshrined in Arts 15–17 of the Charter (respectively, the freedom to choose an occupation and the right to engage in work, the freedom to conduct a business and the right to property). See, in this regard, Case C-390/12 Pfleger and Others EU:C:2014:28, para 60 (holding that ‘an examination of the restriction represented by the national legislation at issue in the main proceedings from the point of view of [Art] 56 TFEU covers also possible limitations of the exercise of the rights and freedoms provided for in [Arts] 15 to 17 of the Charter, so that a separate examination is not necessary’). See also Case C-201/15 AGET Iraklis EU:C:2016:972, paras 102 and 103 (holding that ‘a regime … such as the regime established by the legislation at issue in the main proceedings … infringes [Art] 49 TFEU. On identical grounds, such legislation also fails to comply with the principle of proportionality laid down in [Art] 52(1) of the Charter and, therefore, with [Art] 16 thereof’). 86 K Lenaerts, ‘The ECtHR and the CJEU: Creating Synergies in the Field of Fundamental Rights Protection’, speech delivered on the occasion of the Opening of the Judicial Year at the ECtHR, 26 January 2018, Strasbourg. An article based on that speech was published in [2018] Il Diritto dell’Unione Europea 9. 87 Case C-234/17 XC and Others EU:C:2018:853. 88 See Art 35 ECHR. 89 XC and Others (n 87) para 27. 90 ibid para 31.

The Role of the EU Charter in the Member States  35 order. In addition, it aimed to anticipate situations where the ECtHR would find that Austria had breached the ECHR. That was the reason why reliance on the remedy at issue was made conditional upon complying with the admissibility requirements set out in the ECHR.91 On the other hand, the Court of Justice provided an overview of the constitutional framework within which judicial remedies that seek to protect EU rights operate. First, by virtue of the principles of primacy and direct effect, national measures that are incompatible with directly effective rights recognised in the Charter cannot form part of the EU legal order.92 Second, the EU system of judicial protection entrusts national courts with responsibility for protecting effectively the rights that EU law confers on individuals. To that end, those courts may and, where appropriate, must engage in a dialogue with the Court of Justice, by means of the preliminary reference mechanism.93 That mechanism has the object of securing uniform interpretation of EU law, thereby serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties. Third and most importantly for present purposes, national courts called upon to apply provisions of EU law are under a duty to give full effect to those provisions, if necessary refusing of their own motion to apply any conflicting provision of national law, and without requesting or awaiting the prior setting aside of that provision of national law by legislative or other constitutional means.94 Accordingly, the Court of Justice reached the conclusion that the remedy in question and those that seek to protect the rights that EU law confers on individuals were not similar, given that the EU ‘constitutional framework guarantees everyone the opportunity to obtain the effective protection of rights conferred by the EU legal order even before there is a national decision with the force of res judicata’.95 As to the principle of effectiveness, the Court of Justice recalled its previous case-law on the principle of res judicata. In that regard, it held that EU law does not require a national court automatically to go back on a judgment having the authority of res judicata in order to take into account the interpretation of a relevant provision of EU law adopted by the Court of Justice after delivery of that judgment. Given that no element of the file called into question the effective protection of the rights of the applicants in the main proceedings, the Court of Justice ruled that the principle of effectiveness did not preclude a limitation of the scope of the remedy at issue to a violation of the ECHR. In any event, the Court of Justice added that, where a final decision is adopted in breach of EU law, applicants can still seek damages against the defaulting Member State in accordance with the Köbler line of case-law.96

IV. CONCLUDING REMARKS

In retrospect, the entry into force of the Charter is one of the most important achievements in the history of European integration. It shows that the European integration project is more than its internal market. The EU is, first and foremost, a union of democracies, a union of justice and a union of rights, which draws on the constitutional traditions common to the Member States.

91 ibid

para 34. para 37. 93 ibid paras 40 and 41. 94 ibid para 44. 95 ibid para 46. 96 ibid paras 54, 55 and 58. See also Case C-160/14 Ferreira da Silva e Brito and Others EU:C:2015:565. 92 ibid

36  Koen Lenaerts Gone are the days where academic debates revolve around the question whether fundamental rights are taken seriously at EU level. Fundamental rights are part and parcel of the rule of law within the EU that the Court of Justice is firmly committed to upholding. It is true that prior to 1 December 2009, fundamental rights in the EU were protected as general principles of EU law. However, the Charter has given more visibility to those rights. The Charter has facilitated national courts across Europe becoming acquainted with the protection of fundamental rights at EU level. In concrete terms, the fact that national courts have become familiar with the Charter has brought about an increasing number of references in which those courts asked, either explicitly or implicitly, the Court of Justice to interpret the Charter. A search of the Court of Justice’s internal database reveals that in 2018 that Court decided 684 (760) cases, of which 112 contained the expression ‘the Charter’ in the part of the decision where the Court of Justice put forward its reasoning (c. 16 per cent).97 This quantitative change means that the legal discourse of the Court of Justice has changed qualitatively. Fundamental rights occupy centre stage in the judicial dialogue between the Court of Justice and national courts. More than ever before, national courts, the ECtHR and the Court of Justice must work together in order to ensure that the plurality of sources that protect fundamental rights operates to the benefit of individuals. That requires some sense of order that creates synergies. However, those synergies may only take place where courts respect each other and are willing to influence and be influenced by the legal orders that surround them. In the light of the uncertain times in which we live, courts should not insulate themselves from external influences. The fact of allowing the free movement of constitutional ideas across borders contributes to improving the protection of fundamental rights. That is so, be it at national, supranational or international levels.

97 Of those 112, 65 were decisions adopted in the context of the preliminary reference procedure. Also, in 2018, 30 decisions mentioned the Charter in their dispositive part.

2 The EU Charter Ten Years On: A View from Strasbourg SÍOFRA O’LEARY*

I. INTRODUCTION

T

here are many features that distinguish the two European courts now charged with the protection of fundamental rights at pan-European level.1 The legal systems of which they form a part, the nature of their dialogue with national judges, their judicial methods and the scope of their jurisdiction differ.2 The ECtHR serves as an external check of respect for the obligations imposed by the Convention on High Contracting Parties, whereas the Charter is an instrument of primary EU law and therefore an internal component of the law of EU Member States. Fundamental rights, as recognised in the Charter, must be interpreted and applied within the EU in accordance with the latter’s constitutional framework and with due regard to the primacy, effectiveness and unity of EU law.3 The Charter benefits from judicial constructs such as primacy and, in certain circumstances, direct effect. Both are highly effective remedies, not least because when applying them national judges are acting as judges of EU law.4 The mission of the Strasbourg court, in contrast, is to define the minimum standard of fundamental rights protection across 47 heterogeneous Council of Europe Member States. This is a minimum standard

* The views expressed in this chapter are purely personal to the author. 1 Reference will be made throughout to EU law, the TEU and TFEU, the Charter, the Court of Justice, the Luxembourg court, the ECHR, the ECtHR, the Strasbourg court, and to national or domestic courts and/or law. 2 See further S O’Leary, ‘A Tale of Two Cities: Fundamental Rights Protection in Strasbourg and Luxembourg’ (2018) Cambridge Yearbook of European Legal Studies 1; the speech delivered by the President of the Court of Justice, K Lenaerts, ‘The ECHR and the Court of Justice: Creating Synergies in the Field of Fundamental Rights Protection’ at the opening of the Judicial Year at the ECtHR, 26 January 2018, www.echr.coe.int/Documents/Dialogue_2018_ ENG.pdf#page=29 and the latter’s contribution in this volume. 3 See eg Opinion 2/13 Accession of the Union to the ECHR EU:C:2014:2454, paras 177 and 188, or Case C-234/17 XC EU:C:2018:853, para 45. See also the interviews with Court of Justice judges reported in X Groussot, N-L Arold Lorenz and G Thor Petursson, ‘The Paradox of Human Rights Protection in Europe: Two Courts, One Goal?’ in O Mjöll Arnardóttir and A Buyse (eds), Shifting Centres of Gravity in Human Rights Protection: Rethinking Relations between the ECHR, EU, and National Legal Orders (Routledge, 2016) 8, 19: ‘We are not a human rights court, and we are aware of that. … For us, we do it in the framework of our normal function; our normal function is to guarantee the uniform application of Community law, and this is the more important task of our Court.’ 4 Case C-64/16 Associação Sindical dos Juízes Portugueses EU:C:2018:117, paras 32–33 (also known as the Portuguese judges case).

38  Síofra O’Leary that those states, particularly if they are EU Member States, are free to go beyond, given the terms of Article 53 ECHR and Article 52(3) of the Charter. The Convention constitutes, as the ECtHR has repeatedly held, a ‘constitutional instrument of European public order’.5 However, it has never been an exclusive or exclusionary instrument in this regard.6 It is now joined by the Charter, creating, according to one former Advocate General, a ‘crowded house’.7 The mission of the Court of Justice is both broader (it seeks to ensure the uniform interpretation of EU law generally) and, as regards fundamental rights, narrower (its fundamental rights’ jurisdiction is limited by the scope of application of EU law and the principle of conferral) than that of the ECtHR. The autonomy of EU law and the sui generis nature of the EU legal order are recurring themes, even when the Luxembourg court is wearing its fundamental rights mantle. However, while the ECtHR may recognise certain special features of the EU legal order,8 the question of its autonomy does not feature in Strasbourg assessments of Convention compliance by EU Member States. These differences should not be forgotten when comparing and contrasting the two European systems for the protection of fundamental rights with a view to exploring how each influences or refers to the case law of the other. It is proposed in this chapter firstly to retrace the links and ‘passerelles’9 which chart the historical relationship between, unite, and one might even say bind the ECHR and the Charter. These links and bridges are dotted throughout the case-law of the Court of Justice pre-dating the Charter and can now be found in the provisions of the TEU and TFEU as well as in the general provisions of the Charter itself. While well known, it is timely to revisit them briefly in the overall context of ‘a’ Strasbourg view of the Charter’s development and impact over the past ten years. Secondly, the chapter seeks to illustrate the different roles which EU law and the Charter play in the Strasbourg court’s case-law. This will be prefaced by a necessary reminder of the guiding principles of interpretation pursuant to which the Strasbourg court operates. Concrete examples and cases will be drawn from many different areas of Strasbourg case-law but, perhaps unsurprisingly, recurring references might be made to those areas of the law – immigration and asylum, data protection and privacy, defence rights and freedom of expression – where the jurisdiction or jurisprudence of the two courts has overlapped most frequently and with greater depth and where this looks set to continue. Finally, the chapter looks to the future. It explores some important questions relating to the judicial dialogue – bilateral (between the two European courts) and trilateral (between

5 See Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v Ireland no 45036/98 ECHR [GC] 2005-VI, paras 152–58; MSS v Belgium and Greece no 30696/09 (ECHR [GC], 2011) paras 338–40; Avotiņš v Latvia no 17502/07 (ECHR [GC], 23 May 2016) para 101; and Michaud v France no 12323/11 (ECHR, 2012) para 103. 6 See the study by C McCruddon, ‘Using Comparative Reasoning in Human Rights Adjudication: The Court of Justice of the European Union and the European Court of Human Rights Compared’ (2013) 15 Centre for European Legal Studies 383, which demonstrates the receptiveness of the Strasbourg court to other sources of law and instruments for the protection of fundamental rights. 7 See the speech by the then Advocate General Cruz Villalón, ‘Rights in Europe: The Crowded House’ (2012) KCL Working Papers in European Law 01/2012. 8 See eg the Bosphorus presumption of equivalent protection discussed below or cases such as Moustaquim v Belgium no 12313/86 (ECHR, 18 February 1991), regarding the expulsion of a long-term third-country national resident, para 49: ‘As for the preferential treatment given to nationals of the other member States of the Communities, there is objective and reasonable justification for it as Belgium belongs, together with those States, to a special legal order.’ 9 The ‘passerelle’ was originally one of the fruits of the pillar architecture of the Treaty of Maastricht. Denoting in French a gangplank, platform or ramp, it is perhaps a fitting way to describe the bridges – past, present and future – between the two European courts, the texts that it is their duty to interpret and apply, and the case-law in which they do so.

The EU Charter Ten Years On: A View from Strasbourg  39 the latter and national courts) – in which both courts engage. In this context mention will be made of Protocol No 16 ECHR, which entered into force on 1 August 2018, and of the importance for both European courts not to lose sight of the fact that it is the national judge and national courts which continue to bear primary responsibility for the protection of fundamental rights in the domestic and European sphere. This section also suggests some of the challenges, viewed from the perspective and experience of a specialised fundamental rights court, which might face the Court of Justice as its fundamental rights docket continues to expand and become more complex. II.  THE RELATIONSHIP WITH THE ECHR VIEWED THROUGH THE LENS OF THE CHARTER

The Oxford conference that led to this publication sought to reflect on how national courts and bodies have been using the Charter ten years on from its acquisition of binding legal force. From a Strasbourg perspective, some preliminary points are worth noting. Firstly, Article 6 of the TEU did not merely recognise the Charter as having the same legal value as the EU Treaties. Crucially, it also introduced the obligation on the EU to accede to the ECHR, albeit an obligation to be fulfilled subject to certain conditions.10 In addition, it maintained in place the original source of the EU’s fundamental rights jurisdiction and jurisprudence, namely fundamental rights as general principles of EU law. In the latter context, express mention continues to be made in the TEU to ‘fundamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States’.11 The Court of Justice has repeatedly recognised the special significance which EU law, and that court, affords the ECHR. Indeed the President of the Court of Justice has spoken in Strasbourg of the mature system of fundamental rights protection which the Convention has become over decades, likening the Charter to a mere teenager by comparison but reminding us, quite correctly, that many a parent has learned a thing or two from their teenage children.12 The point here, however, is a simple one. The date of the entry into force of the Lisbon treaty is not the EU’s fundamental rights ground zero; nor is it the starting or end point of the relationship between the ECHR and the Charter. The relevance and consequences of the three-pronged approach to fundamental rights protection reflected in Article 6 of the revised TEU was captured by one author in the following terms in the aftermath of the Court of Justice’s Opinion 2/13 on accession to the ECHR: [P]erhaps the fact that it is now ‘back to the drawing board’ is also a unique second (or third) chance to ask the basic prior question of the Lisbon Treaty text: quite how can the application of an EU internal human rights document (the Charter) that the Luxembourg Court is under an obligation to apply, be combined with external judicial review by the Strasbourg Court of the EU’s (including the

10 Art 6(2) TEU stipulates that ‘accession shall not affect the Union’s competences as defined in the Treaties’. Further Treaty conditions, given considerable bite by the Court of Justice in Opinion 2/13, cited above (n 3), can be found in Protocol (No 8) relating to Art 6(2) TEU on the accession of the Union to the ECHR in which, to the latter condition is added preservation of the specific characteristics of the EU and EU law and respect for Art 344 TFEU. See also the declaration on Art 6(2) TEU: ‘The Conference agrees that the Union’s accession to the [ECHR] should be arranged in such a way as to preserve the specific features of Union law.’ On Opinion 2/13 (n 3) and the Court of Justice’s legitimate safeguarding of these features, see D Halberstam, ‘“It’s the Autonomy, Stupid!” A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, and the Way Forward’ (2015) 16 German Law Journal 105. 11 Art 6(3) TEU. 12 See Lenaerts, ECtHR speech (n 2).

40  Síofra O’Leary Luxembourg Court’s) performance with regard to the ECHR, if that ECHR and the way in which it is interpreted are themselves part (but only part) of the normative content of the Charter? This is not an easy one.13

When considering the impact of the Charter after ten years, it seems important not to overlook this critical aspect of the post-Lisbon EU fundamental rights architecture. Few commentators have addressed the complex construct in Article 6 TEU. Too few have examined the effect, if any, of five years of a legally binding and increasingly used Charter being interpreted and developed in the case-law of the Court of Justice before that same court handed down its opinion on the draft accession agreement which the EU and the Council of Europe had negotiated pursuant to the legal obligation enshrined in Article 6(2) TEU. This obligation had been accommodated by Protocol No 14 to the ECHR, which was open for signature in 2004 and ratified by 2010. Opinion 2/13 was only handed down in 2014. Yet the reality is that national judges regularly struggle with this complex Article 6 TEU construct, in one form or another.14 It could be suggested that this is reflected in the terms of the preliminary references relating to fundamental rights which increasingly make their way to Luxembourg. Since 1 December 2009, it would appear that national referring judges have made a reference to the ECHR in the very wording of the questions referred in at least 72 cases.15 This is a not insignificant number. Indeed, it reflects the point made in some national reports, namely the continued centrality of national constitutions and/or the ECHR and recurring legal uncertainty regarding the effect of having parallel rights in the ECHR and the Charter.16 Secondly, that the EU is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights is now – to borrow the language of Jane Austen – a truth so universally acknowledged that few self-respecting EU lawyers would dare question it. This truth is reflected in both the preamble of the TEU and that of the Charter. As the Court of Justice’s post-Charter case-law has developed and as cases accumulate that have at their heart a perceived threat to the EU’s foundational values, this truth has passed from the preambles and opening articles of the Treaties, to become lynchpins in the reasoning of the Court of Justice itself.17 It is noticeable that in his aforementioned speech in Strasbourg in 2018, President Lenaerts observed that: [T]he EU system of fundamental rights protection is an internal component of the rule of law within the EU … [and the Court of Justice is] the guarantor of the rule of law within the EU.18

13 See J Morijn, ‘After Opinion 2/13: How to Move On in Strasbourg and Brussels?’ (5 January 2015) EUtopia law. See also, on the multiple layered fundamental rights protection provided by the Lisbon Treaty, W Weiss, ‘Human Rights in the EU: Rethinking the Role of the European Convention on Human Rights After Lisbon’ (2011) 7 European Constitutional Law Review 64. 14 See further C Roth and F Burgaud, ‘Charte des droits fondamentaux v Convention européene: dommages collatéraux en vue’ [2013] Recueil Dalloz no 29, 1977; or the speech of the then President of the Spanish Constitutional Court, Perez de los Cobos, at the 2015 opening of the ECtHR judicial year, www.echr.coe.int/Documents/ Dialogue_2015_ENG.pdf#page=25. 15 The absolute accuracy of this figure cannot be guaranteed but the ballpark figure should be relatively reliable. When referring, the Court of Justice appears to expect national courts to provide sufficient information on the corresponding right and ECtHR case-law about which they enquire: see Case C-18/16 K EU:C:2017:680, para 51. Own-initiative Court of Justice examination of correspondence, if raised by a national referring court, does not seem required or desired. 16 See eg the UK report: Lady Arden and T Tridimas ‘Limited But Not Inconsequential: The Application of the Charter by the Courts of England and Wales’, ch 17 of the present volume. 17 Citing Art 2 TEU and the values listed, see eg Case C-621/18 Wightman EU:C:2018:999; interim Order C-619/18 Commission v Poland EU:C:2018:910, para 21; or Case C-216/18 PPU Minister for Justice and Equality (Deficiencies in the system of justice) EU:C:2018:586, para 48 (otherwise known as LM or Celmer). 18 Lenaerts, ECtHR speech (n 2) (emphasis added).

The EU Charter Ten Years On: A View from Strasbourg  41 I will return to this rule-of-law/fundamental rights nexus later as it represents, for the two courts, essential common ground as regards the past, the present and the foreseeable future. It is also important to note that in the preamble of the Charter EU values are referred to as ‘being indivisible and universal’.19 Article 21(1) TEU, which can be found in the chapter on the general provisions on the EU’s external action, reinforces the theme of universality and indivisibility: 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. (emphasis added)

A Curia search uncovers another interesting fact; albeit one of undetermined value. It does not appear that the Court of Justice has yet referred to the indivisibility and universality of fundamental rights as recognised in the Charter and the above provision of the TEU. In contrast, the General Court has stated on several occasions that: ‘Article 21(1) TEU provides that the Union’s action on the international scene is to seek to advance in the wider world, inter alia, the rule of law, the universality and indivisibility of human rights and respect for international law.’ All references have been in Common Foreign and Security Policy (CFSP) cases in the field of asset-freezing and many have been accompanied by references to ECtHR jurisprudence on fair trial requirements and judicial independence.20 Some might argue that, given the division of jurisdiction in the EU Treaties, the CFSP context justifies the reference by one court and not by the other. However, the fact remains that the indivisibility and universality of fundamental rights should apply as much within the EU as it does outwith and that it is an EU objective to seek to advance these values ‘in the wider world’. Council of Europe states are the wider world, albeit with some having one foot within the EU, others hoping to join and others simply remaining neighbours.21 Greater EU recognition that the Charter forms part of a broader fundamental rights edifice whose construction dates back many decades would not be damaging for the primacy, effectiveness and unity of EU law, and would only further enhance the solidity of the Charter itself. Thirdly, ten years on from the Treaty of Lisbon, and before examining the Charter’s impact at domestic level and beyond, it is worth recalling the extent to which the TEU and the Charter explicitly recognised that much of the civil and political DNA of the latter could be traced back to the ECHR. This is reflected in Article 6 TEU, in the preamble and provisions of the Charter itself, and in the opening recitals of many pieces of EU secondary legislation.22 The Charter’s preamble speaks of the need to strengthen the protection of fundamental rights in the light of ‘changes in society, social progress and scientific and technological

19 Curiously the values, as listed in the second recital of the Charter preamble, do not there extend to respect for human rights. 20 See Case T-119/11 Gbagbo EU:T:2013:216, para 79; Case T-288/15 Abdelaziz Ezz EU:T:2018:619, para 59; Case T-274/16 Thabet and Mubarek EU:T:2018:826, para 93; Case T-175/15 Mabrouk EU:T:2017:694, para 64, and Case T-406/13 Gossio EU:T:2015:7, para 47. 21 The relevance of that neighbouring ‘wider world’ to the EU can be seen in many Strasbourg cases: see eg JR and Others v Greece no 22696/16 (ECHR, 25 January 2018) (complaints by migrants under Arts 3 and 5 and the operation of the EU–Turkey agreement concluded on 18 March 2016). 22 Good examples are provided by the ‘Roadmap’ directives, whose purpose is to strengthen procedural rights in criminal proceedings, such as Directive (EU) 2016/343 of the European Parliament and the Council on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings [2016] OJ L65/1. As the recitals and content of these directives illustrate, they introduce, by way of EU harmonising legislation, core ECHR rights and a considerable part of ECtHR jurisprudence. See further below.

42  Síofra O’Leary developments’. The Charter makes the rights protected more visible and ‘reaffirms the rights’ as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the ECHR, the Social Charters adopted by the EU and by the Council of Europe, and the case-law of the Court of Justice and of the ECtHR.23 When drafted, the Charter appears to have been conceived as an outward facing and inclusive human rights text.24 From a Strasbourg perspective, Article 52(3) of the Charter is naturally a key provision as it constitutes one of several axes around which dialogue between the two European courts is constructed.25 It provides: In so far as the Charter contains rights which correspond to rights guaranteed by the [ECHR], the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.

This Charter article is variously described as enshrining a principle of ‘homogeneity’,26 ‘correspondence’27 or ‘equivalence’. The explanations in relation to Article 52(3) refer to the need for consistency and correspondence, and recognise that the meaning and scope of the guaranteed rights are determined not only by the text of the Convention and its protocols, but also by the case-law of the ECtHR and by the Court of Justice itself. The EU may guarantee ‘more extensive protection’, but the level of protection afforded by the Charter may never be lower than that guaranteed by the ECHR. The explanations do also specify that reference to the limitation arrangements laid down in the ECHR are not intended to adversely affect the autonomy of EU law and that of the Court of Justice itself. A list of rights which may ‘at the present stage, without precluding developments in the law, legislation and the Treaties’ be regarded as corresponding to rights in the ECHR is provided in the explanations. Thus far, I have seen little discussion of this possibility, identified by the explanations, that ECHR/Charter rights which now correspond might no longer do so in future on foot of changes in EU primary or secondary law. From the perspective of the universality and indivisibility of fundamental rights, it is a question worth probing further. Given the central importance of Article 52(3) of the Charter to the relationship of correspondence on which the Charter is at least partly premised, it is also worth reflecting on how, over time, the Court of Justice has approached this general provision. A rough search on the Curia database produces a figure of 54 Court of Justice judgments and orders in which Article 52(3) Charter was referred to explicitly since the entry into force of the Treaty of Lisbon.28 However, in the same time period, 647 Court of Justice judgments and orders referred to the Charter.

23 See also declaration no 1 annexed to the TEU which states: ‘The Charter of Fundamental Rights of the European Union, which has legally binding force, confirms the fundamental rights guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States’ (emphasis added). 24 This is reflected in the relevant European Parliament resolutions adopted when it was being drafted. See eg Resolution on the drafting of a European Union Charter of Fundamental Rights (Duff-Voggenhuber report) of 16 March 2000 (A5-0064/2000). 25 See further, for a personal view, J Callewaert, ‘Do We Still Need Article 6 (2) TEU? Considerations on the Absence of EU Accession to the ECHR and its Consequences’ (2018) 55 CMLRev 1685. 26 See eg Opinion of Advocate General Kokott in Case C-501/11 P Schindler Holdings EU:C:2013:248, para 136, or the former President of the ECtHR Sir N Bratza, ‘The ECHR and the Charter of Fundamental Rights of the EU: A Process of Mutual Enrichment’ in A Rosas, E Levits and Y Bot (eds), The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case-Law (The Hague, Asser Press, 2013) 167, 175. 27 See eg Joined Cases C-217/15 and C-350/15 Orsi EU:C:2017:264, para 15. 28 The search covered the period from 1 December 2009 to 5 March 2019. The figure seems low and may have to be verified.

The EU Charter Ten Years On: A View from Strasbourg  43 Although many of these references may have been in passing, with the Charter not central to the Court of Justice’s reasoning, the number of references to Article 52(3) appears nevertheless to be relatively small. It may be that correspondence is taken as given in some cases and not worth mentioning. In early cases post-Lisbon, the Court of Justice appeared to clearly indicate that where Charter rights are derived from ECHR rights, the Court of Justice should follow the clear judgments of the ECtHR. McB is a prime example: Article 7 contains rights corresponding to those guaranteed by Article 8(1) of the ECHR. Article 7 of the Charter must therefore be given the same meaning and the same scope as Article 8(1) of the ECHR, as interpreted by the case law of the European Court of Human Rights.29

In some more recent cases where Article 52(3) of the Charter has featured, the need to ensure the necessary consistency between corresponding rights is noted, but it is offset by a reminder of the need to ensure that this does not adversely affect the autonomy of EU law and that of the Court of Justice.30 In these cases the Court of Justice merely ‘takes account’ of the corresponding ECHR article when interpreting the Charter one.31 It is, on the one hand, worth considering whether the fact of Charter rights corresponding to ECHR ones does not mean that the autonomy of EU law is conditioned in any event and, on the other, worth questioning further the benchmarks against which ‘adverse’ effects are to be judged?32 Many Court of Justice judgments now follow a reference to Article 52(3) of the Charter with a reminder that the ECHR, as long as the EU has not acceded to it, is not a legal instrument which has been formally incorporated into EU law. One of the results of this is that the examination of any question referred must, in the words of the Court of Justice ‘be undertaken solely in the light of the fundamental rights guaranteed by the Charter’.33 But the reasoning in such judgments often concludes, via the Article 52(3) correspondence clause, with a reference, however fleeting, to the corresponding Convention right and one example at least of relevant ECtHR case-law.34 The Charter is understandably central to the Court of Justice’s analysis, but it is clearly not its sole point of reference; nor, it is suggested, was it meant to be.35 The tenor of other, recent judgments is different again, reminiscent of the earlier cases and the style in McB. Take MA, a case concerning the Dublin III regulation in which the Court of Justice recognised that Article 4 of the Charter has the same meaning and scope as Article 3 ECHR. It stated:

29 See eg Case C-400/10 PPU McB EU:C:2010:582, para 53. In Case C-279/09 DEB EU:C:2010:811, para 30, the interpretation of the relevant provision of the Charter was broader and more contextual: ‘[Article 47 of the Charter] must be interpreted in its context, in the light of other provisions of EU law, the law of the Member States and the case-law of the [ECtHR].’ In Case C-92/09 Volker and Schecke EU:C:2010:662, paras 51–52, the reference to Art 52(3) was accompanied by one to Art 53 which, according to the Court of Justice ‘further states that nothing in the Charter is to be interpreted as restricting or adversely affecting the rights recognised inter alia by the Convention’. For the approach of Advocates General, during this early period, see eg the Opinion of Advocate General Kokott in Schindler Holding (n 26); or the Opinion of Advocate General Bot in Case C-283/11 Sky Österreich v Österreich Rundfunk EU:C:2012:341. 30 See Case C-601/15 PPU JN v Staatssecretaris van Veiligheid en Justitie EU:C:2016:84, para 47, or Joined Cases C-203/15 and C-698/15 Tele2 Sverige and Watson and Others EU:C:2016:970, para 129. 31 K (n 15) para 50 and the case-law cited therein. See also Case C-294/16 PPU JZ v Prokuratura Rejonowa Łódź – Śródmieście EU:C:2016:610; and JN v Staatssecretaris van Veiligheid en Justitie (n 30). 32 See also S Peers and S Prechal, ‘Article 52 – Scope and Interpretation of Rights and Principles’ in S Peers et al (eds), The EU Charter of Fundamental Rights: A Commentary (Oxford, Hart Publishing, 2014) 1455, 1496. 33 See eg Orsi (n 27) para 15; Case C-543/14 Conseil des ministres EU:C:2016:605, para 23, or Case C-218/15 Paoletti and Others EU:C:2016:748, para 22. Where the validity of a provision of EU law is at issue, this sole reference point is more understandable (see JN v Staatssecretaris van Veiligheid en Justitie (n 30)). 34 See Orsi (n 27) paras 24–26. 35 See further Peers and Prechal (n 32).

44  Síofra O’Leary [T]he Member States, …, are also bound, in the application of that regulation, by the case law of the European Court of Human Rights and by Article 4 of the Charter.36

What does seem important to restate is that Article 52(3) of the Charter requires rights contained in the Charter which correspond to rights guaranteed by the ECHR to be given the same meaning and scope as those laid down by the ECHR.37 It does not appear to require the articles of the two texts to correspond.38 The Court of Justice’s uneven references to Article 52(3) may be the result of different things: the particular needs of a given case; the pen of a particular rapporteur or chamber; concern to stress in one case more than in another the autonomy of EU law; etc. However, the clarity and the consistency of the Article 52(3) Charter message and references to the Convention and ECtHR case-law do matter. One reason can be found in the complex multilevel system for the protection of fundamental rights in Europe referred to earlier and the duty of both European courts to facilitate the central role of the national judge. How is a watered-down representation of the Article 52(3) correspondence clause or the absence of references to relevant and well-established Strasbourg case-law understood at national level? When a judgment does not pick up on the explicit references made to Strasbourg case-law by an Advocate General, should a national judge understand this as a tacit acceptance or rejection of that case-law? Another reason for the importance of such references lies in the Bosphorus presumption of equivalent protection.39 This presumption applies when a Member State has no discretion in the implementation of its EU obligations and is rebuttable only if the standard of protection for ECHR rights is found to be manifestly deficient. It is based on two pillars: the substantive guarantees offered by the international organisation in question; and the procedural mechanisms available for controlling their observance.40 EU law is considered to benefit from the presumption because it offers equivalent protection of substantive guarantees. This equivalence is demonstrated, according to the ECtHR in Bosphorus, by the Court of Justice’s extensive reference to the ECHR and ECtHR case-law as well as, according to the Court in Avotiņš, to the crucial correspondence clause in Article 52(3) of the Charter.41 Given the importance, the nature and the underpinnings of the presumption, how is a Strasbourg judge to understand Court of Justice case-law when it is silent on relevant ECtHR case-law or excessively selective when it does so refer, despite the explicit terms of Articles 52(3) and 53 of the Charter? If the former Charter provision is a codification of the

36 See Case C-661/17 MA and Others EU:C:2019:53, para 84 (emphasis added), citing Case C-578/16 PPU CK and Others EU:C:2017:127, para 63. In the latter judgment the Court of Justice emphasised that this was an obligation determined by the EU legislature in its references to the ECHR and Strasbourg case-law in the recitals of the regulation. 37 Case C-426/16 Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen VZW and Others EU:C:2018:335, para 40. 38 When asked, in Tele2 Sverige (n 30), whether Digital Rights Ireland and Others (Case C-293/12 EU:C:2014:238) had expanded the scope of Arts 7 and 8 of the Charter beyond Art 8 ECHR, the Court of Justice declined jurisdiction to answer the question but continued, para 129 (emphasis added): ‘[T]he first sentence of Article 52(3) does not preclude Union law from providing protection that is more extensive then the ECHR. It should be added, finally, that Article 8 of the Charter concerns a fundamental right which is distinct from that enshrined in Article 7 of the Charter and which has no equivalent in the ECHR.’ In the earlier case Volker and Schecke (n 29), the Court of Justice had concentrated on the corresponding nature of the rights, regardless of their location in different provisions. 39 Bosphorus developed further in Michaud and Avotiņš v Latvia (n 5). 40 See, in this latter regard, Satakunnan Markkinapörssi Oy and Satamedia Oy v Finland no 931/13 (ECHR [GC], 27 June 2017) para 150, citing Bosphorus: ‘[T]he Court has regularly emphasised the importance, for the protection of fundamental rights in the EU, of the judicial dialogue conducted between the domestic courts of EU Member States and the Court of Justice in the form of references from the former for preliminary rulings by the latter.’ 41 See Bosphorus (n 5) para 159; relied on in Avotiņš (n 5) para 102.

The EU Charter Ten Years On: A View from Strasbourg  45 ECHR’s special significance, with the ECtHR responsible for setting the minimum standard and competent to raise (or change) that standard over time, careful and considered analysis of relevant Strasbourg case-law is surely essential.42 When it comes to the consequences of court judgments, jurists are, like historians, prophets who look backwards. In this vein, one final observation on EU law’s relationship with the ECHR, viewed through the lens of the Charter, seems necessary. With hindsight it is clearly a pity that no reference was made to Article 52(3) in Opinion 2/13. Greater prominence for this important clause or a simple explanation of the relationship between the EU and the ECHR and the objectives that accession was designed to achieve might have softened the impact or reception of certain parts of the reasoning in the opinion itself.43 III.  EU LAW, THE CHARTER AND THE STRASBOURG COURT

A.  Principles Guiding ECtHR Judicial Interpretation It is useful to revisit briefly the principles that guide ECtHR judicial interpretation and method to understand the overall context in which references to EU law and the Charter occur at the Strasbourg court. The ECHR must be interpreted according to international rules on the interpretation of treaties. This essentially means in good faith and in accordance with the ordinary meaning given to the terms of the treaty in their context and in the light of its object and purpose.44 The Convention may also be the subject of a dynamic or evolutive interpretation. This ‘living instrument’ doctrine has formed the basis for an interpretative approach which has enabled the Court to adapt, over time, the text of the Convention to legal, social, ethical or scientific developments.45 When it interprets the ECHR, the Strasbourg court seeks to take account of any relevant rules and principles of international law applicable in relations between the Contracting Parties.46 When it examines whether, with reference to norms of international law, common ground or development of the law in a particular direction can be discerned, the Court does not distinguish between sources of law according to whether or not they have been signed and ratified by the respondent state. Thus, in cases

42 See also K Lenaerts, ‘The Place of the Charter in the EU Constitutional Edifice’ in K Lenaerts et al (eds), The EU Charter of Fundamental Rights – A Commentary (Oxford, Hart, 2014) 1559, 1581. Compare the Advocate General in Joined Cases C-411/10 and C-493/10 NS and Others EU:C:2011:611, para 145, who regarded the reference to the ECHR as being essentially a dynamic reference, and the Advocate General in Case C-617/10 Åkerberg Fransson EU:C:2012:340, paras 84 and 87, who considered the reference to the ECHR in primary EU law as being to the Convention as it stands. 43 The text of Art 52(3) of the Charter is reproduced in para 44 of Opinion 2/13 (n 3) but at no point does the Court of Justice refer to or explain its purpose in its subsequent reasoning. Similarly, at no point are the travaux préparatoires in relation to Art 6(2) TEU discussed or the objectives of accession identified. Compare the analysis of the aims and purpose of the draft EEA agreement in Opinion 1/91 EU:C:1991:490. 44 See, variously, Art 31 of the Vienna Convention; application of this principle in eg Golder v the United Kingdom no 4451/71 (ECHR, 21 February 1975) para 29 (where the right of access to a court was found to be inherent in the fair trial guarantees of Art 6 ECHR); and discussion of the interpretation of the ECHR in DJ Harris, M O’Boyle et al, Law of the European Convention on Human Rights, 3rd edn (Oxford, Oxford University Press) 7–21. 45 For a recent illustration of the living instrument doctrine at work see paras 138–48 of Magyar Helsinki Bizottság v Hungary no 18030/11 (ECHR [GC], 8 November 2016) (the right of access to information was found, in certain circumstances, to flow from the freedom of expression in Art 10 ECHR), and the discussion of the doctrine in the concurring opinion of Judges Raimondi and Sicilianos in that case. 46 A comprehensive overview of the ECtHR’s approach to international law materials is provided in the case of Demir and Baykara v Turkey no 34503/97 (ECHR [GC], 12 November 2008) paras 65–68.

46  Síofra O’Leary prior to 1 December 2009, the Strasbourg court referred to the Charter even though it was not then binding.47 The Court has repeatedly stated that it is not competent to rule formally on compliance with domestic law, other international treaties or EU law.48 To these interpretative rules and tools must be added the principles of proportionality, effective interpretation, fair balance,49 subsidiarity, the Bosphorus presumption of equivalent protection, the margin of appreciation doctrine, and the principle according to which certain Convention terms have an autonomous meaning.50 Subsidiarity and the margin of appreciation highlight, with particular clarity, one of the important differences between the Convention and Charter systems mentioned at the outset. In Strasbourg, subsidiarity is a judicial and not just a legislative principle. It characterises the Court’s external supervisory jurisdiction and the manner in which it exercises it. The margin of appreciation and European consensus operate in this regard in an accordion-like manner, affording states as much room as is required, but no more than is necessary in the circumstances of a given case. While this is sometimes depicted as a weakness in Strasbourg case-law by commentators, it can also be regarded as a strength when it comes to adjudicating highly sensitive fundamental rights disputes and when balancing conflicting rights and interests. The Strasbourg margin accommodates diversity which the uniform interpretation of EU law may seek to exclude or diminish. This, as I will suggest below, might create pressure points in future, highly sensitive fundamental rights cases before the Court of Justice. Due to the expanded scope of EU law and the Charter’s possible influence, if only indirect, on the determination of the latter, such cases will increasingly fall within the remit of the Court of Justice. What, for example, would the Court of Justice do in socio-morally sensitive Grogan-type cases or, in the post-Lisbon era, in politically charged cases in relation to questions where society in a given Member State is polarised?51 B.  Reference to and Reliance on EU Law and the Charter in Strasbourg The Charter, and EU law more generally, are referenced and used by the Strasbourg court in a multitude of ways. While this chapter seeks to highlight citations of and reliance on the Charter, the picture would be incomplete without also explaining when and why provisions and measures of secondary EU law, and Court of Justice case-law interpreting them, feature

47 In Christine Goodwin v the United Kingdom no 28957/95 ECHR [GC] 2002-VI; Vilho Eskelinen and Others v Finland no 63235/00 ECHR [GC] 2007-II; and Sørensen and Rasmussen v Denmark nos 52562/99 and 52620/99 ECHR [GC] 2006-I, the Court was guided by the Charter even though it was not then binding. 48 See eg SJ v Luxembourg no 34471/04 (ECHR, 4 March 2008) para 52; and Jeunesse v the Netherlands no 12738/10 (ECHR [GC], 3 October 2014) para 110. 49 See Soering v the United Kingdom (Plenary) no 14038/88 (ECHR, 7 July 1989) para 89: ‘[I]nherent in the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.’ 50 See eg the autonomous meaning of the term ‘civil rights and obligations’ in Art 6 ECHR examined in Micallef v Malta no 17056/06 (ECHR [GC], 2009). 51 See, as regards the past, Case C-159/90 Grogan EU:C:1991:378 or, as regards the present, the recent judgment in an accelerated preliminary reference procedure following a request from the Spanish Supreme Court for an interpretation of the relevant provisions of EU law in relation to elected Members of the European Parliament from the Region of Catalunya who had not been accredited due to their failure to swear allegiance in person to the Spanish Constitution. The MEP in question was in jail awaiting sentencing when the request was made and convicted when the Court of Justice judgment was handed down – see Case C-502/19 Junqueras Vies EU:C:2019:1115. Other affected Spanish MEPs are in Belgium, the subject of EAWs.

The EU Charter Ten Years On: A View from Strasbourg  47 in ECtHR case-law.52 Such references are more frequent and, at times, have more far-reaching effects than some passing references to the Charter. This overview is far from exhaustive, but it does seek to give a flavour of and, to an extent, systematise how the ECtHR has referred to or relied on EU law and the Charter.53 Several different categories of usage can be identified, with a degree of overlap between some of them. i.  EU Law and the Charter as Part of the Domestic Law of the Respondent State It is too often overlooked that in many cases the ECtHR must treat EU law as part of domestic law. For better or worse, as indicated previously, it will not pay undue or perhaps any attention to the sui generis nature of EU law or to the autonomy of the system of which it forms a part. Several articles of the Convention use the terms ‘law’ and ‘lawful’, with the result that an examination of lawfulness becomes an integral part of the Court’s assessment of whether or not there has been a violation. Article 5 and the qualified rights in Articles 8–10 provide a good illustration of this. Article 5(1) ECHR stipulates that detention must be ‘in accordance with a procedure prescribed by law’. The applicants in Ilias and Ahmed v Hungary were Bangladeshi nationals who arrived in the transit zone situated on the border between Hungary and Serbia and submitted applications for asylum. Their applications were rejected and they were escorted back to Serbia. In the Convention proceedings they complained, inter alia, that their deprivation of liberty in the transit zone had been contrary to Article 5 ECHR and, in that context, that the impugned measure lacked any basis in the domestic law. They further submitted that Hungary, an EU Member State, was under an obligation to act in accordance with EU law according to which Member States should not hold a person in detention for the sole reason that he or she was an asylum-seeker. In response, the ECtHR chamber held: Article 5 § 1 of the Convention refers not only to national law but also, where appropriate, to other applicable legal norms, including those which have their source in international law. … Those norms may clearly also stem from European Union law.54

The Chamber in Ilias Ahmed noted that, pursuant to EU law, EU Member States should not hold a person in detention for the sole reason that he or she is an asylum applicant.55 It found that the applicants had been deprived of their liberty without any formal decision of the authorities solely by virtue of an elastically interpreted general provision of the law and held that there had been a violation of Article 5(1) ECHR.56 It should be observed

52 The ECtHR can refer, sometimes quite prolifically, to soft-law instruments, and different judges within the Court will have different views on the weight that should be attached to them. European Commission recommendations and European Parliament resolutions have featured in this regard. See eg NKM v Hungary no 66529/11 (ECHR, 14 May 2013) para 58, (European Commission recommendation on remuneration policies in the financial services sector); Bayatyan v Armenia no 23459/03 (ECHR [GC], 2011) (European Parliament Resolutions on Conscientious Objections); or Sanoma Uitgevers BV v the Netherlands no 38224/03 (ECHR [GC], 14 September 2010) (European Parliament Resolution on the Confidentiality of Journalists’ Sources). 53 For examinations of this same subject, see eg G Nicolaou, ‘The Strasbourg View on the Charter of Fundamental Rights’ (2013) College of Europe Cooperative Research Paper 03/2013; the particularly fine analysis by T Lock, ‘The Influence of EU Law on Strasbourg Doctrines’ (2016) 41 EL Rev 804; and the overview by B Dickson, ‘The EU Charter of Fundamental Rights in the Case Law of the European Court of Human Rights’ (2015) European Human Rights Law Rev 27–40. 54 Ilias Ahmed v Hungary no 47287/15 (ECHR, 14 March 2017) para 63. 55 Referring to Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection [2013] OJ L180/60. 56 See in this regard, Case C-528/15 Al Chodor EU:C:2017:213. The written observations and oral submissions made in the case addressed the question whether observance of the fundamental rights guaranteed by the ECHR and

48  Síofra O’Leary that the Grand Chamber approached the question of deprivation of liberty differently from the Chamber – emphasising the physical and legal characteristics of a transit zone located on the land border between two Council of Europe Member States and stressing the link between Articles 3 and 5 ECHR – which form part of an interconnecting system – as well as their separate nature.57 EU law directives regularly feature in ECtHR judgments as part of the Court’s assessment of domestic law in asylum, administrative detention, detention and expulsion cases.58 At issue in Thimothawes v Belgium, for example, were two periods of detention which fell within the scope of the EU Returns and Reception Directives.59 The Chamber in Thimothawes followed the same line as that in Ilias Ahmed regarding the source of ‘legal norms’ under Article 5 ECHR, emphasised that it was not its task to review the transposition in Belgian law of the Reception Directive and after a careful examination of the individual and concrete circumstances of and surrounding the applicant’s detention, concluded that there was no violation.60 A number of points are worth making in relation to this category. Firstly, too often respondent states make only a passing reference in their submissions in Strasbourg to the fact that the national legislation which the domestic courts have been interpreting and applying transposes a piece, or a complex series, of EU secondary legislation.61 This overlooks the importance of making the EU law connection and context clearer. It also ignores the fact that half or a majority of the judges sitting on the Strasbourg bench in a given case may hail from non-EU Member States. Their knowledge of EU law and understanding of its relevance should not be presumed. The European Commission has rarely intervened as a third-party intervener in Strasbourg, which in certain cases may be a policy worth reconsidering on its part. At the time of writing, the Grand Chamber of the ECtHR has just heard oral argument in Article 8 ECHR cases involving Sweden and the United Kingdom and systems for the bulk interception of data.62 In cases of that nature it is imperative that the Strasbourg court be provided with clear and comprehensive submissions on the interrelationship between the Convention and EU law. Yet, neither the Commission nor any EU Member State other than the two respondents, intervened in those data protection cases despite data protection of relevance pending before the

interpreted by the ECtHR demands that the objective criteria for assessing the risk of absconding be defined in legislation. The Court of Justice held that it did – paras 38–45 – and concluded that settled domestic case-law confirming a consistent administrative practice on the part of the competent authority could not suffice. The ECtHR operated as the minimum threshold of protection (para 37), with the Charter offering more favourable protection (see the Advocate General’s Opinion in Case C-528/15 EU:C:2016:865, para 39). See also Case C-492/18 PPU TC EU:C:2019:108. 57 No 47287/15, judgment of the Grand Chamber (ECHR, 21 November 2019). See, in contrast, the subsequent decision of the CJEU in Joined Cases C-924/19 PPU and C-925/19 PPU FMS and Others EU:C:2020:367, to the effect that asylum-seekers in a transit zone on the Serbian-Hungarian border – since dismantled – had been detained. 58 See, variously, AM v France no 56324/13 (ECHR, 12 July 2016); Paci v Belgium no 45597/09 (ECHR, 17 April 2018); Thimothawes v Belgium no 39061/11 (ECHR, 4 April 2017). 59 See Directive 2003/9/EC of the Council of 27 January 2003 laying down minimum standards for the reception of asylum seekers [2003] OJ L31/18, and Directive 2008/115/EC of the European Parliament and the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L348/98. 60 See Thimothawes, ibid paras 71 and 74–81. See the separate opinion of Judges Lemmens on the alignment in Chamber judgments of Convention and EU law regarding the need for an individual assessment of the situation of those being placed in detention and the necessity thereof. 61 See my concurring opinion in JK and Others v Sweden no 59166/12 (ECHR [GC], 23 August 2016). 62 See the submissions in Big Brother Watch and Others v the United Kingdom nos 58170/13, 62322/14 and 24960/15, and Centrum För Rattvisa v Sweden, no 35252/08 at www.echr.coe.int/Pages/home.aspx?p=hearings&w=5817013_ 10072019&language=en and www.echr.coe.int/Pages/home.aspx?p=hearings&w=3525208_10072019&language=en &c=&py=2019.

The EU Charter Ten Years On: A View from Strasbourg  49 Court of Justice.63 Secondly, with regard to some EU Member States such failures to properly account for EU law may be down to the mundane fact of litigation before the two European courts being the responsibility of two different government departments, or to counsel in the case being well versed in Convention but not EU law. If we recognise, however, that there is now a multilevel and complex system for the protection of fundamental rights in the EU, it is worth asking whether legal education and advocacy have kept pace with the requirements of such a system. Thirdly, the Strasbourg court leaves itself open to criticism when in some cases, such as the Article 5 and related cases cited above, it recognises the integrated nature of EU law in the domestic legal order, while in other cases, some of which are referred to below, it may treat EU law on a par with any other international treaty and, at times, perhaps even with soft law instruments. In certain fields, where a respondent state is an EU Member State, this is quite simply incorrect.64 A good example of the problems to which this may give rise is provided in MK v Greece, a case that concerned an intra-EU situation where the final order for the child’s return to the Member State of his habitual residence (France) emanated from a court in the Member State (Greece) where the child had been wrongfully retained.65 A chamber of seven judges held, by a majority, in the circumstances of the case, that this failure to enforce a Greek court order did not violate Article 8 ECHR as it was taken in the child’s best interests. However, as emphasised in the dissenting opinion of Judge Koskelo, the case fell squarely within the scope of application of the Brussels IIa Regulation.66 The latter is a directly applicable and binding part of the Greek – as well as the French – legal order and it defined clearly the jurisdiction of the respective judicial authorities of the two EU Member States involved in the circumstances of that case. The best interests of the child had to be respected, and attended to, within the jurisdictional framework laid down in the regulation. It would appear from the majority judgment – where the EU regulation features after international and Council of Europe instruments – that the applicable EU regulatory system was not addressed by the respondent state or, in depth, by the majority of the chamber, which limited itself to an examination of the ‘overriding’ mechanism provided by the regulation which did not appear, given the circumstances of the case, to be applicable.67 To the extent that attention was paid to the Brussels IIa Regulation, the dissenting judge considered that it was not sufficiently careful attention. ii.  References to EU Law and the Charter for Informational Purposes In cases falling within this second category, the Strasbourg court may simply refer to the provisions of EU law and the Charter in the opening section of the judgment dedicated to the

63 See the recent Opinions of Advocate General Campos-Sánchez Bordona in Case C-623/17 Privacy International EU:C:2020:5; Joined Cases C-511/18 and C-512/18 La Quadrature du Net and Others EU:C:2020:6; and Case C-520/18 Ordre des barreaux francophones et germanophone and Others, EU:C:2020:7. 64 According to the International Court of Justice (see eg Barcelona Traction Light and Power Company, Limited, Judgment, ICJ Reports 1970, 3), there is a difference between the respective roles of domestic law and international law. In proceedings before international courts domestic law is generally regarded as a fact by reference to which the rules of international law have to be applied, not as a rule to be applied at the international level as a rule of law. This difference in the role played by domestic law and international law in the ECtHR’s judgments and decisions may explain why, traditionally, the former has preceded the latter. 65 MK v Greece no 51312/16 (ECHR, 1 February 2018). 66 Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 [2003] OJ L338/1 (Brussels IIa). 67 See para 89 of the majority judgment in MK (n 65) and para 39 of the dissenting Opinion of Judge Koskelo.

50  Síofra O’Leary relevant legal framework.68 No further mention of EU law might be made in the ECtHR’s subsequent legal assessment. This may point to the EU law reference constituting a mere statement of context. Not all references to the Charter will carry particular weight and in some cases it is Court of Justice case-law interpreting secondary legislation of relevance that will play a more important role.69 Lock suggests, however, that the Strasbourg court should be more forthcoming where an analysis of the outcome in a given case could suggest that ‘the ECtHR’s distinct awareness of the Court of Justice’s position shaped the outcome of its decision’.70 There is some merit in his criticism but there is also a considerable degree of speculation regarding what may have been the decisive, thought-shaping, element in any given deliberation. It would seem, in addition, a little churlish to chastise a court that issues lengthy judgments, indeed sometimes over-lengthy ones, for not going the extra mile. Where EU law has had such an influence and this is not clearly stated in the judgment of the ECtHR, such a fact will very often be identified in any separate opinions annexed to the judgment. In addition, it cannot be forgotten that 19 High Contracting Parties are not EU Member States and judges from those states may have particular views on the weight to be attached to EU law and the Charter. In some cases, the inclusion of references in the legal framework may simply be the result of reliance, by a party or intervener, on provisions of EU law and material, with the Court finding no need to follow up on the point being advanced. iii.  General (but Targeted) Referencing In many cases, the Strasbourg court may seek to place a given case in its relevant EU law context, although without EU law and the Charter determining the Court’s assessment as such. These references could be interpreted as being more targeted, however, as they may seek to clarify what a related EU law case may have left unclear from the Convention perspective or how two parallel lines of case-law correspond. Two examples from the fields of privacy/data protection and freedom of expression illustrate the point. At issue in Satakunnan Markkinapörssi Oy and Satamedia Oy v Finland71 was the collection, processing and publication of personal taxation data on a massive scale both in print form and via an SMS service. Data relating to about one-third of Finnish taxpayers were so 68 The relevant legal framework in a Court of Justice judgment will usually be limited to provisions of national law and EU secondary law, with the ECHR or other international treaties of direct relevance to the case in hand cited on occasion. In ECtHR judgments, the legal framework appears in the ‘Facts’ section of the Court’s judgments and decisions, immediately after a section outlining the circumstances of the case, and is much broader. It can encompass ‘Domestic law and practice’, ‘International law and practice’ (this may include international legal norms at the universal level and at the regional level, as well as reports and other documents of a factual nature by UN and regional monitoring bodies), ‘European Union law’, ‘Comparative law’ and ‘Other materials’ (which might include scholarly works and reports by international NGOs). 69 See, for an example of a passing reference to the Charter, Zubac v Croatia no 40160/12 (ECHR [GC], 5 April 2018) (Art 47) or, for an example where EU secondary legislation and case-law is of more interest than the Charter itself, Parrillo v Italy no 46470/11 (ECHR [GC], 2015), citing Art 3 of the Charter, Directive 98/44/EC of the European Parliament and of the Council on the legal protection of biotechnological inventions ([1998] OJ L213 and case-law such as Case C-34/10 Brüstle EU:C:2011:669. Unless there is absolutely no connection or relevance, most Grand Chamber cases in recent years which concern EU Member States will make at the very least a passing reference to the corresponding provision of the Charter. 70 Lock (n 53) refers as an example to Rantsev v Cyprus and Russia no 25965/04 (ECHR, 2010) (extracts) where contextual reference was made to Council Framework Decision 2002/629/JHA on combating trafficking in human beings without recognition that this did or may have influenced the ECtHR’s evolutive interpretation of Art 4(1) ECHR to prohibit human trafficking. 71 No 931/13 (n 40).

The EU Charter Ten Years On: A View from Strasbourg  51 published.72 The Finnish Data Protection Ombudsman brought proceedings to limit the scope of the applicants’ activities. The case will be familiar to EU lawyers as the Strasbourg case had been preceded by a preliminary ruling from the Court of Justice on whether the applicants’ activities were carried out for journalistic purposes, thereby enabling them to benefit from the derogation contained in Article 9 of the EU Data Protection Directive.73 The Finnish authorities ordered the applicants to scale back considerably their operations in view of data protection considerations and to refrain from use of the SMS service. In the Convention proceedings, the applicants claimed a violation of their Article 10 right to impart information, having regard, among other things, to the facts that the collection of personal taxation data was not illegal as such and that the information collected and published was in the public domain. The Grand Chamber found that there had been no breach of Article 10 ECHR in the particular circumstances of the case given that the domestic courts had struck a fair balance between the competing rights at issue, namely press freedom and privacy rights, which, it recalled, are deserving of equal respect.74 As regards the balancing exercise, some points are worth noting. Firstly, the Court in this case deals with layers of national and EU law, combined with a preliminary reference and strands of Court of Justice and ECtHR case-law. The judgment is quite simply impregnated with EU law. Secondly, the Strasbourg court signals that balancing means just that: a pondering of different fundamental rights or a fundamental right and competing public interest objectives. In a case involving the protection of personal data that were in the public domain, the Court was able to adjudicate effectively on the scope of protection within the ambit of Article 8 of the Convention, even if there is no separate article on data protection, unlike Article 8 of the Charter which explicitly articulates this fundamental aspect of private life. The second example, which also concerns balancing rights to privacy and freedom of expression, is ML and WW v Germany. This is effectively the ECtHR’s first ‘right to be forgotten’ case.75 The applicants sought unsuccessfully to anonymise online press archive material concerning their criminal trial and conviction. The Court found that the domestic courts’ refusal did not violate the Convention. The correct balance had been struck between the privacy rights of the applicants, viewed in terms of their right to protection of their personal data, and the Article 10 right of a media organisation to make available online to the public its historical record of the information it has already published about that individual. Whereas the Court of Justice’s ground-breaking judgment in Google Spain concerned data processed and stored by a search engine, this case concerned press archives. Furthermore, the facts of the German case pre-dated the Google Spain preliminary reference by several years.76 However, while making these differences clear and after, once again, extensive references to relevant provisions of EU law, the Strasbourg court in its balancing exercise examined the Article 10 aspects of the case in detail – not least the role played by the internet in providing access

72 Under Finnish law, such information is accessible to the public subject to compliance with certain conditions. 73 Case C-73/07 Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy and Satamedia Oy EU:C:2008:727. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281/31. 74 In balancing these rights the Court had regard, as appropriate, to the criteria established in its previous judgments including Von Hannover v Germany (no 2) nos 40660/08 and 60641/08 (ECHR [GC], 2012); and Couderc and Hachette Filipacchi Associés v France no 40454/07 (ECHR [GC], 2015) (extracts). 75 Nos 60798/10 and 65599/10 (ECHR, 28 June 2018.) 76 This fact – the length of some Strasbourg proceedings – is one which the ECtHR has to recognise as weakening its contribution in certain ground-breaking areas of law. ML and WW (n 75) was lodged in 2010 and communicated to the respondent government in 2012, two years before the Court of Justice judgment in Google Spain.

52  Síofra O’Leary to and disseminating information and the primary function of the press in a democracy to act as a ‘public watchdog’. This, of course, contrasts with the absence of an examination of freedom of expression considerations in the judgment in Google Spain. The Court in ML and WW observed that, depending on the context, the balancing exercise between the competing Articles 8 and 10 rights may produce different results when it comes to the assertion of a right to have one’s personal data anonymised or erased. However, the conflicting rights are, in principle, of equal value.77 iv.  Transplanting EU Law Notions into ECHR Case-Law This is a more delicate category and one that has, rightly, attracted some criticism both within the Strasbourg court and without. Some examples are provided to illustrate how legal transplants work and to explain the difficulties to which they may give rise. The applicant in Vizgirda v Slovenia was a Lithuanian national who was arrested on suspicion of having robbed a bank in Slovenia shortly after his arrival in the country. Following his arrest, he was provided with interpretation into Russian, which is not his native language. The services of the interpreter continued during the investigation phase and trial as well as during his appeal against conviction. The applicant was at all times legally represented, and was assisted by the interpreter when communicating with his lawyer. It was only at the time of his appeal on a point of law and later in the proceedings relating to his constitutional complaint that the applicant argued that his trial had been unfair because of the difficulties he had experienced in following the proceedings in the Russian language. The complaint was dismissed by the national court. In the Convention proceedings the applicant essentially complained that he was unable to defend himself effectively during the criminal trial because the oral proceedings and the relevant documents were not translated into Lithuanian, his native language, but only into Russian, a language he had considerable difficulty in understanding. The Court ruled in favour of the applicant and found a breach of Article 6(1) and (3) of the Convention.78 In doing so, a majority of the chamber relied, inter alia, on what they considered to be relevant EU law instruments.79 According to the majority, the Convention had been breached because the Slovenian authorities had operated on the assumption that the applicant could follow the proceedings in Russian. They had not verified his linguistic competence in that language.80 However, the two dissenting judges in Vizgirda took the majority to task as regards their reliance on EU law in their development of the correct Convention legal standard: In terms of methodology, we … cannot subscribe to the way in which the majority have taken European Union law into consideration. In introducing new criteria and positive obligations under Article 6 § 3 (e), the majority have partly built upon the developments in EU law described in

77 This Strasbourg judgment has since been followed by two ‘right to be forgotten’ decisions from the German Federal Constitutional Court – 1 BvR 16/13 and 1 BvR 276/17, Orders of 6 November 2019, where that court also emphasised that the conflicting fundamental rights must be balanced on an equal basis and that the ‘the balancing must take into account the fundamental right to respect for private and family life under Art 7 of the Charter and the fundamental right to the protection of personal data under Art 8 of the Charter [which] guarantees correspond to Art 8 of the European Convention on Human Rights’. See the comment by P Friedl, ‘New Laws of Forgetting – The German Constitutional Court on the Right To Be Forgotten’ European Law Blog, 12 December 2019, https://europeanlawblog. eu/2019/12/12/new-laws-of-forgetting-the-german-constitutional-court-on-the-right-to-be-forgotten/ 78 Vizgirda v Slovenia no 59868/08 (ECHR, 28 August 2018). 79 Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings [2010] OJ L280/1 and Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings [2012] OJ L142/1. 80 See Vizgirda (n 78) para 81.

The EU Charter Ten Years On: A View from Strasbourg  53 paragraphs 52–61 of the judgment and relied upon in the general principles part of the Court’s assessment in paragraphs 82, 83, 84 and 86, which form the core of the newly set standards. While EU law may, in a certain context, be used as a source of inspiration in the case law of the Court, its task is not to assess whether the respondent State complied with it in a particular case (see, mutatis mutandis, Ullens de Schooten and Rezabek v Belgium, no 3989/07 and 38353/07, 20 September 2011). This notwithstanding, one should bear in mind that at the material time Slovenia was not yet a member of the EU. Furthermore, all the EU standards relied upon by the majority were adopted well after the events in question took place. Consequently, the domestic courts can hardly be blamed for not acting in conformity with those subsequent standards.81

Another somewhat problematic legal transplant can be found in the Grand Chamber judgment in JK v Sweden. In seeking to clarify its case-law pursuant to Article 3 of the Convention on the general assessment of risk, past ill-treatment as an indication of future risk and the burden of proof in this context, the Grand Chamber sought inspiration from notes and guidelines established by the United Nations High Commissioner for Refugees and from the provisions of the EU Qualification Directive, in particular, Article 4.82 Concurring and dissenting judges highlighted the weaknesses in the judgment which resulted from the Court ‘choosing preferred elements from either or both sources, leaving aside those elements which suit its judicial narrative less well and jettisoning all important context’.83 In JK, the Court held that ‘it is the shared duty of an asylum-seeker and the immigration authorities to ascertain and evaluate all relevant facts of the case in the asylum proceedings’.84 However, in a judgment inspired in part by EU asylum law, this statement appears to be at odds with the relevant EU directive as interpreted by the Court of Justice.85 Guberina v Croatia provides a third interesting example in relation to discrimination law and social policy.86 The applicant was the father of a severely disabled child who required constant attention. He sold the family’s third-floor flat, which did not have a lift, and purchased a house so as to provide the child with facilities better suited to his and the family’s corresponding needs. The applicant sought tax relief on the purchase of the house under the relevant legislation but his request was refused on the ground that the flat he had sold met the needs of the family. No consideration was given to the situation of the disabled child and the absence of a lift in the flat. The Court found a breach of Article 14 of the Convention read in conjunction with Article 1 of Protocol No 1. In doing so, it held that the applicant could complain of discriminatory treatment on account of his child’s disability. Article 14 ECHR was held to cover situations in which an individual is treated less favourably on the basis of another’s status within the meaning of the case-law under that provision (‘discrimination by association’). While the legal transplant in Guberina is not in itself problematic, what is noteworthy is the failure to identify from whence the transplant came. The Court of Justice had

81 Para 8 of the dissenting opinion in Vizgarda (ibid, emphasis added). Lock gives another example of what is, in his view, an uncritical or incorrect legal transplant: Posti and Rahko v Finland no 27824/95 ECHR 2002-VII, where the ECtHR is said to have transposed, but decontextualised, the Plaumann test. 82 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (as recast by Directive 2011/95/EU of 13 December 2011) [2011] OJ L337/9. 83 See the separate opinions of Judge Ranzoni (dissenting) and myself (concurring) in JK v Sweden (n 61). 84 ibid para 196 of the judgment. 85 See Case C-277/11 MM v Minister for Justice, Equality and Law Reform and Others EU:C:2012:744 which distinguishes between the establishment of facts (in relation to which the applicant and state authorities must cooperate) and their legal appraisal, which falls exclusively to those authorities. 86 Guberina v Croatia no 23682/13 (ECHR, 22 March 2016) para 78.

54  Síofra O’Leary previously recognised that EU equality directives prohibit discrimination by association in cases like Coleman and CHEZ Razpredelenie Bulgaria AD but the chamber made no mention of either.87 In Molla Sali v Greece, the Grand Chamber recently confirmed that Article 14 ECHR covers discrimination by association but, unlike the chamber, it clarified matters, recognising the influence of EU equality legislation and the case-law of the Court of Justice in this regard.88 v.  Cases where EU Law and/or the Charter have had a (Decisive) Influence In this bundle of cases the ECtHR refers to EU law and the Charter in order to inform its assessment of the existence or not of a European consensus on a particular legal question. In some cases, it has relied on provisions of EU law, and specifically the Charter, to develop its interpretation of a provision of the Convention, the latter being, as explained previously, a ‘living instrument’. As explained by another Strasbourg judge, the ECtHR seeks, in this context, merely to inquire whether it can derive assistance from the Charter when interpreting and applying the Convention in cases of which it is seised. It does not purport to interpret the Charter. There are several well-known examples of where the ECtHR has relied on provisions of the Charter in this way. In Christine Goodwin v the United Kingdom, decided in 2002, the applicant claimed that the national authorities had failed in their positive obligations concerning her right to respect for private life and the right to marry under Articles 8 and 12 ECHR. The applicant, who had undergone gender reassignment, could not have the register of birth altered to reflect this change. The Charter was examined, along with other European and international instruments, as part of the ECtHR’s inquiry into whether there was ‘any evolving convergence as to the standards to be achieved’.89 As regards the right to marry, the Court noted that Article 9 of the recently adopted Charter departed, no doubt deliberately, from the wording of Article 12 ECHR in removing the reference to men and women.90 However, while the Charter may feed, influentially, into the Court’s assessment of the consensus, recognition of a growing consensus may not, in some cases, alter radically the states’ margin of appreciation when it comes to regulating the evolving domain. In Schalk and Kopf v Austria, decided in 2010, the ECtHR recognised, regard being had to Article 9 of the Charter, that the right to marry enshrined in Article 12 need not in all circumstances be limited to marriage between two persons of the opposite sex. However, as matters stood, the ECtHR noted that the Charter had left the question whether or not to allow same-sex marriage to regulation by national law. An obligation to regulate for marriage equality was not, the Court held, to be derived from Article 12 or from Articles 8 and 14 combined. As marriage has deep-rooted social and cultural connotations which may differ largely from one society to another, the ECtHR emphasised that it must not rush to substitute its own judgment in place of that of the national authorities, who are best placed to assess and respond to the needs of their society.

87 Case C-303/06 Coleman v Attridge Law and Steve Law EU:C:2008:415; and Case C-83/14 CHEZ Razpredelenie Bulgaria AD EU:C:2015:480. 88 Molla Sali v Greece no 20452/14 (ECHR [GC], 19 December 2018) paras 78–81, citing, amongst others, Guberina. For other examples of inspiration drawn from EU equality law, see DH and Others v the Czech Republic no 57325/00 ECHR [GC] 2007-IV, or Konstantin Markin v Russia no 30078/06 (ECHR [GC], 2012) (extracts). 89 Goodwin (n 47) para 78. 90 ibid paras 58 and 100.

The EU Charter Ten Years On: A View from Strasbourg  55 A further example of EU law featuring in the ECtHR’s analysis of the consensus is provided in Demir and Baykara. At issue was a ban on municipal workers founding a trade union and an order setting aside with retroactive effect a collective bargaining agreement. The Court found unanimously that the freedom of association guaranteed by Article 11 ECHR had been violated. It referred to both Articles 12(1) and 28 of the Charter and made clear what it was looking for, namely ‘that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member States of the Council of Europe’.91 As in Bayatyan, discussed below, the Charter was not the sole source but it was a significant source of inspiration.92 In Scoppola no 2, the ECtHR held, referring to Article 49 of the Charter and Court of Justice case-law such as Berlusconi, that Article 7 ECHR was to be interpreted so as to include the right to benefit from a more lenient penalty provided for in a law adopted subsequent to the commission of the offence. A similar development of Convention law can be discerned in Bayatyan v Armenia, where Article 10(2) of the Charter was referenced in a judgment which interpreted Article 9 ECHR as recognising the right to conscientious objection. The Charter provision was taken to confirm a broader change internationally and, more particularly, in Europe. However, some points are worth noting. Considerable reliance was also placed by the ECtHR on the interpretation of the International Covenant on Civil and Political Rights and on the fact that an overwhelming majority of Council of Europe states recognised conscientious objection in their law and practice. In addition, this case is a good example of why the Charter is perhaps a potent source of inspiration but also one that has to be used with care in relation to non-EU Member States.93 What was important for the ECtHR was that the Charter reflected unanimous support in EU Member States for the evolutive interpretation of the Convention which it was considering. It is noteworthy that no attention was paid in Strasbourg to the distinction in the Charter between rights and principles and, in this regard, to the terms of Article 52(5) of the Charter. Where EU law and the Charter may play an important future role is where Convention rights and case-law have, to an extent, been codified in EU secondary legislation. For instance, in recent years, the EU has adopted directives on procedural rights for suspects and accused persons. One such directive concerns the right of access to a lawyer in criminal proceedings, a subject on which the Strasbourg court had already developed extensive jurisprudence.94 In recent Strasbourg Grand Chamber cases on the right of access to a lawyer we see the Court referring to the directive and its Convention origins, but also using the definitions provided by the EU legislature to clarify its own case-law on a given point.95 As De Witte points out,

91 See Demir and Baykara (n 46) para 86. 92 ibid paras 98–106. 93 See, for criticism rather than a call for care, the concurring opinion of Judge Wojtyczek in National Union of Rail, Maritime and Transport Workers v the United Kingdom no 31045/10 (ECHE, 8 April 2014) para 4: ‘[I]n my view the questions whether a specific treaty has been ratified by the respondent State and whether it binds all the High Contracting Parties to the Convention are of the utmost relevance for the interpretation of the latter. … it is illegitimate to transform treaty rules that bind only some members of the Council of Europe into an element of the Convention, unless unequivocal rules of treaty interpretation require otherwise.’ 94 Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty [2013] OJ L294/1. 95 See eg Ibrahim and others v the United Kingdom nos 50541/08, 50571/08, 50573/08 and 40351/09 (ECHR [GC], 13 September 2016) paras 203–15 and 259, 261, 264 and 271.

56  Síofra O’Leary these directives demonstrate that the Court of Justice is not the only relevant EU actor when it comes to measuring the impact of the Charter. In the case of the procedural rights directives mentioned above, the EU legislature based itself on a non-rights legal basis but invoked the Charter, in accordance with Article 51(1) of the latter, in the exercise of its powers. He questions whether the EU legislation in question would have looked the same or different without the invocation of the Charter. An additional question for the future will be whether, given the origins of the fundamental rights codified, these directives will be interpreted and applied by the Court of Justice with due and explicit regard to their Convention origins and the related extensive case-law of the Convention court.96 IV.  WHAT LIES AHEAD?

Thus far the chapter has looked at the basis on which EU law provides for interaction and correspondence with the ECHR and in turn has examined cases that demonstrate how the ECtHR engages with and uses EU law and the Charter. This concluding section will look at different and somewhat heterogeneous questions that may be relevant to the Charter’s next ten years. A.  Judicial Dialogue In terms of judicial dialogue, the Strasbourg–Luxembourg report card in recent years would probably read ‘satisfactory/working hard’. Informal, bilateral meetings between the two courts take place and are open and constructive. Cross-referencing continues apace and, in the main, is done with care. The Bosphorus presumption survived both the obligation to accede in Article 6 TEU and the indefinite postponement of the execution of that obligation. Mutual recognition, a potential sticking point of considerable importance, has been the subject of important judgments on both sides. The Court of Justice has accepted that the presumptions and degree of automaticity underpinning some legislation in the area of freedom, security and justice (AFSJ) must give way in certain circumstances to the overarching need to respect fundamental rights.97 For its part, the Strasbourg court has recognised that the creation of the AFSJ, and mutual recognition mechanisms necessary to achieve it, are legitimate in principle from the standpoint of the Convention. However, it has also made clear that national courts in executing Member States, confronted with such mechanisms: must at least be empowered to conduct a review commensurate with the gravity of any serious allegation of a violation of fundamental rights in the State of origin, in order to ensure that the protection of those rights is not manifestly deficient.98

96 See, for a case that suggests that they will be, CK (n 36) para 63 on the interpretation of the Dublin III Regulation. In Directive 2013/48, in relation to the right of access to a lawyer, recital 14 simply states that the directive builds on the rights in Arts 47–48 of the Charter, by building on Art 6 ECHR as interpreted by the ECtHR. Will the language of recitals determine the extent to which the EU legislature has tied the interpretation of EU secondary law to the Convention mast? 97 See, variously, Case C-237/15 PPU Lanigan EU:C:2015:474; Case C-404 and 659/15 PPU Aranyosi and Caldararu EU:C:2016:198; or CK (n 36). 98 Avotiņš (n 5) paras 113–14.

The EU Charter Ten Years On: A View from Strasbourg  57 Yet, as pointed out in the introduction, dialogue in this field is not and can never be b ­ ilateral. In a speech delivered in Strasbourg in 2014 when accession was considered a certainty, the President of the Bundesverfassungsgericht pointed out that Strasbourg was not only intimately connected with the national courts but that it was also closely linked to the Court of Justice. As regards this European judicial relationship in motion, he stressed that both courts should not forget that ‘national courts are more than just casual bystanders’.99 Speaking from the perspective of a national constitutional judge he argued that the mandates of the two European courts should not blur but be kept distinct and stressed that: [A]s much as a uniformly high human rights standard in Europe is desirable, it is not the task of the Luxembourg court, but that of Strasbourg and the ECtHR, to safeguard it internationally.

Judicial dialogue in relation to the Charter occurs principally, of course, via the preliminary reference procedure, the keystone of the EU’s judicial architecture.100 It is clear that questions relating to fundamental rights are now both a visible and a significant part of the Court of Justice’s docket.101 However, since the entry into force of the Lisbon Treaty, my Curia research reveals a significant number of cases in which national judges have also included references to the ECHR in their preliminary reference questions (72) or in the text of their preliminary references (24). They clearly see judicial dialogue in the field of fundamental rights in trilateral terms. This is particularly well demonstrated in European arrest warrant cases before national courts in which questions have been referred to the Court of Justice;102 but also in ones where questions have not been referred.103 In Opinion 2/13, the Court of Justice regarded Protocol No 16, in force since August 2018, as a potential threat to the autonomy and effectiveness of the preliminary reference procedure. It feared that the new mechanism might see national courts refer questions to the Strasbourg court when what is at issue in the case before them are actually rights guaranteed by the Charter, albeit ones corresponding to those secured by the ECHR.104 In short, national judges might prefer to go straight to the Strasbourg source in relation to a right reaffirmed in the Charter. It is important to stress that the Strasbourg court has stated, repeatedly, that the task of interpreting and applying the provisions of EU law falls firstly to the Court of Justice in the context of a request for a preliminary ruling, and secondly to the domestic courts in their capacity as courts

99 A Voßkuhle, ‘Pyramid or Mobile? Human Rights Protection by the European Constitutional Courts’, Dialogue between Judges 2014, seminar, Strasbourg, 31 January 2014. 100 See Opinion 2/13 (n 3) para 176: ‘[T]he judicial system as thus conceived has as its keystone the preliminary ruling procedure provided for in Article 267 TFEU, which, by setting up a dialogue between one court and another, specifically between the Court of Justice and the courts and tribunals of the Member States, has the object of securing uniform interpretation of EU law … thereby serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties.’ 101 On the gradual transformation of the Court of Justice into a human rights court, see D Sarmiento, ‘A Court That Dare Not Speak Its Name: Human Rights at the Court of Justice’, published on ejiltalk.org, 7 May 2018. 102 As regards preliminary references, see Aranyosi and Caldararu (n 97), LM (n 17); or the case on prison conditions in the context of execution of an EAW, Criminal proceedings against Dumitru-Tudor Dorobantu C–128/18 EU:C:2019:857, where detailed questions translating, in reality, ECtHR case-law on Art 3 ECHR and prison conditions were addressed to the Court of Justice by a German court. 103 See eg the Order of the German constitutional court of 15 December 2015, 2 BvR 2735/14, where it carried out an ‘identity control’ in accordance with German constitutional law in a case fully covered by EU law. In doing so it highlighted that the mutual trust required by EU law could be shaken if there were factual indications that requirements which are absolutely essential for the protection of human dignity would not be met if the requested person were extradited. In addition, it made clear that when it comes to fundamental rights protection, the Court of Justice does not act in isolation but must take account of national constitutional law and the ECHR. 104 Opinion 2/13 (n 3) paras 196–199.

58  Síofra O’Leary of the EU, when they give effect to EU law as interpreted by the Court of Justice.105 Strasbourg does not control Member State compliance with EU law but does look, subject to certain conditions, at compliance by domestic authorities with the ECHR when applying EU law. There is little time here to explore in detail whether the fears of the Court of Justice in relation to Protocol No 16 are well founded. Some brief points are worth making. Firstly, the risk identified and some solutions if it were to materialise exist regardless of accession. This was clearly pointed out by Advocate General Kokott in her View on the draft accession agreement.106 Secondly, Protocol No 16 does provide national judges in the fifteen Member States which have thus far ratified it, nine of which are EU Member States, with a novel advisory opinion procedure which they can use while a domestic case is pending. However, it seems odd to emphasise mutual trust as being a central tenet in the EU’s constitutional architecture while at the same time assessing Protocol No 16 from the perspective of a presumed lack of trust that those same judges from EU Member States will respect their EU law obligations, including those under Article 267 TFEU. Thirdly, it is worth asking if there is really a problem from an EU law perspective if a national judge, on a voluntary basis, seeks non-binding guidance from the Strasbourg court in relation to a provision of the Convention? Are questions which could be ‘Luxembourg’ cases not frequently before the Strasbourg court (and vice versa) in any event? It is of course for the Court of Justice to provide national judges with the magic key to unlock the answer to the all-important question, namely when a case comes within the scope of EU law (with the result that any question should be Luxembourg bound and Charter related) and when it does not (meaning Strasbourg and the Convention await). However, depending on how a case is litigated before them, national judges with fundamental rights on their mind might sometimes focus on substance rather than scope.107 Some examples might help to tease out this last point further. Ebrahimian v France was a case on dismissal from public-sector employment in France due to the applicant’s refusal to remove her Islamic headscarf. The facts of the case pre-dated the entry into force of the EU general framework equality directive.108 However, even if the directive had applied at the relevant time, could it be argued that this was a ‘Luxembourg’ and therefore a Charter case, meaning that any voluntary request for a non-binding opinion by a national court in relation to Article 9 ECHR would have undermined the autonomy and effectiveness of Article 267 TFEU? It is clear that the Court of Justice’s involvement in cases relating to religion, in the employment field and beyond, has increased remarkably. In Achbita and Bougnaoui it was confronted by questions relating to dismissal for the wearing of the same religious symbol, albeit in relation to private-sector employees.109 However, Ebrahimian, like the many Strasbourg cases on religious symbols that preceded it, eg Eweida, Leyla Sahin or Dahlab110 – is a case about religious freedom. The Court of Justice cases were cases about secondary EU legislation prohibiting 105 Avotiņš (n 5) para 100. 106 EU:C:2014:2475, paras 136–41. She does not refer explicitly to the possibility of infringement actions for failing to fulfil obligations under Art 267(3) TFEU. 107 In terms of clarifying what comes within the scope of EU law, and therefore the Charter, the Court of Justice Factsheet on the field of application of the Charter is to be welcomed. Recent Court of Justice case-law on judicial independence which draws on Art 19(1) TEU, and which distinguishes between the scope of application of EU law/the Charter, and ‘the fields covered by EU law’ referred to in Art 19(1) TEU does not make the drawing of judicial borders any easier. See, in the latter regard, the Portuguese judges case (n 4) and Commission v Poland (n 17). 108 Ebrahimian v France no 64846/11 (ECHR, 26 November 2015). Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16. 109 Case C-157/15 EU:C:2017:203; Case C-188/15 EU:C:2017:204. 110 Eweida and Others v the United Kingdom nos 48420/10, 36516/10, 51671/10 et al (ECHR, 15 January 2013); Leyla Sahin v Turkey no 44774/98 (ECHR, 10 November 2005), or Dahlab v Switzerland (dec) no 42393/98 (ECHR, 15 February 2001).

The EU Charter Ten Years On: A View from Strasbourg  59 discrimination on grounds of religion. The Court of Justice did tack its interpretation of the General Framework Directive to the provision of the Charter on religious freedom rather than that prohibiting religious discrimination. That being said, the legal questions in the Strasbourg and Luxembourg cases were not identical.111 What time will tell is whether the Court of Justice will succeed in steering the need for a coherent and uniform interpretation of EU law with perhaps the demands of national courts and authorities in certain fields for the accommodation of a degree of ‘diversity and different value decisions’.112 A second example might give rise to more lively debate, although I should stress that the intention is simply to give pause for thought. In Åkerberg Fransson, the Court of Justice first clarified questions relating to the scope of the Charter before providing an interpretation of the principle of ne bis in idem guaranteed thereunder. The judgment in question contained an all-important clarification as to the Charter’s scope. However, it is worth remembering that, bar one, all the intervening Member States, the European Commission and the public prosecutor in the main proceedings considered that the concrete case in question did not come within the scope of the Charter. The point again is that what constitutes a ‘Luxembourg case’ is not always going to be clear as a case winds its way through the domestic courts. Protocol No 16 is clearly not intended to tempt national judges into forum shopping when in need of interpretative guidance on fundamental rights. The ECtHR, when filtering requests and applying the admissibility conditions for which the protocol and the Rules of Court provide, will have to police its jurisdiction with great care.113 However, it would seem a mistake to approach Protocol No 16 as, per se, problematic, when what it could provide is further cooperation and synchronization between national judges and the two European courts. B.  The Fundamental Rights – Rule-of-Law Nexus In both the Convention and EU systems, the protection of fundamental rights goes hand in hand with respect for democracy and the rule of law. As indicated previously, the values enumerated in Article 2 TEU since the Treaty of Lisbon now feature prominently and frequently in Court of Justice reasoning. As the EU experiences, at first hand, rule-of-law crises, and as the Court of Justice is increasingly seised of legal questions relating directly or indirectly to challenges to the rule of law in EU Member States, it has characterised itself as the guarantor of the rule of law in EU Member States. This is noteworthy because it demonstrates the distance which the EU, its legal order and its court have come since the first rule-of-law reference in Les Verts.114 But it could be argued that it is a characterisation that is also only partly correct and seems 111 See further on cases before the two European courts in this field, R McCrea, ‘Singing from the Same Hymn Sheet? What the Differences between the Strasbourg and Luxembourg Courts Tell Us about Religious Freedom, Non-Discrimination and the Secular State’ (2016) 5 Oxford Journal of Law and Religion 183. 112 The citation is taken from the German FCC decision in 1 BVR 276/17 (Right to be Forgotten II) – press release no 84/2019 of 27 November 2019. 113 See further S O’Leary and T Eicke, ‘Some Reflections on Protocol no 16’ (2018) European Human Rights Law Review 220. See also, for a demonstration of its readiness to delimit the scope of advisory opinions, the first two opinions: Advisory opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother, P16-2018-001, 10 April 2019 (where the ECtHR reformulated and limited the questions it answered) and Advisory opinion concerning the use of the “blanket reference” or “legislation by reference” technique in the definition of an offence and the standards of comparison between the criminal law in force at the time of the commission of the offence and the amended criminal law, P16-2019-001, 29 May 2020 (where it declined to answer certain questions which did not fulfil the admissibility criteria). 114 Case C-294/83 Les Verts v Parliament EU:C:1986:166.

60  Síofra O’Leary blind to the mechanisms designed to protect the rule of law which have been in place in Europe for decades. As far back as 1975, the ECtHR held that: [While] the Preamble does not include the rule of law in the object and purpose of the Convention, [it] points to it as being one of the features of the common spiritual heritage of the member States of the Council of Europe. …. it would be a mistake to see in this reference a merely ‘more or less rhetorical reference’.115

Ever since Golder, the ECtHR has used the rule of law as an interpretative tool for the development of substantive guarantees under the rights set forth in the different articles and protocols of the Convention. It has stressed that the importance of certain Convention rights stems from their being central to democracy and the rule of law, these two notions being interdependent. It is not necessary to identify whether the bulk, a significant part, half, etc, of the Strasbourg court’s cases respond to rule-of-law dysfunction in some form or another. Suffice it to say that rule-of-law questions are central to what it does.116 And this has always been recognised by the EU. After 1992, the Council of Europe doubled its membership and between 1992 and 1997 the ECHR entered into force in all the Central and Eastern European states that later acceded to the EU. This was no mere coincidence. With the prospect of the EU more than doubling its own membership, the Copenhagen criteria set out the rules of future accession and subsequent membership of the EU. The criteria firmly anchored conditionality into the accession process, with the newly added Articles 2 and 7 TEU designed to encourage adherence thereafter. New Member States, and indeed older ones, are required to ensure the stability of institutions guaranteeing democracy, the rule of law and human rights.117 Membership of the Council of Europe and ratification of the ECHR were key in this regard. Why? Because in the words of one EU legal commentator: ‘[I]t is the key task of the EC[t]HR, among other international institutions, to keep European legal orders in check.’118 So it is important to ask, with two European courts now addressing rule-of-law questions, where do we go from here? An overall analysis of the case-law of both courts demonstrates that the much-touted thesis according to which the two European courts are jealous of their respective jurisdiction and reluctant to cite or rely on the case-law of the other is overstated.119 115 Golder v the United Kingdom (n 44) series A no 18, § 34 (where the ECtHR established that the right to a fair trial included the right of access to a court). Art 3 of the Statute of the Council of Europe had of course provided that every Member State of the Council must accept the principle of the rule of law, human rights and democracy and that these three core values are closely interlinked. 116 See, recently, Guðmundur Andri Ástráðsson v Iceland no 26374/18 (ECHR, 12 March 2019) on judicial independence and the establishment of a tribunal in accordance with the law, para 97: ‘Under Article 6 § 1 of the Convention a tribunal must always be “established by law”. This expression reflects the principle of the rule of law which is inherent in the system of protection established by the Convention and its Protocols.’ A request for referral to the Grand Chamber is pending in this case. 117 See further C Hillion, ‘The Copenhagen Criteria and their Progeny’ in C Hillion (ed), EU Enlargement: A Legal Approach (Oxford, Hart, 2004); and D Kochenov, ‘The ENP Conditionality: Pre-Accession Mistakes Repeated’ in L Delcour and E Tulmets (eds), Pioneer Europe. Testing EU Foreign Policy in the Neighbourhood (Baden Baden, Nomos, 2008). The economic Copenhagen criteria called for the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union. 118 See D Kochenov, ‘EU Law without the Rule of Law: Is the Veneration of Autonomy Worth It?’ (2015) 21 Yearbook of European Law 1, 10. See also C Closa, D Kochenov and JHH Weiler, ‘Reinforcing Rule of Law Oversight in the EU’ (2104) RSCAS Working Paper 2014/25, who do question whether mechanisms to deal with individual human rights violations are the best way to address rule of law deficiencies and in a different vein. A von Bogdandy, ‘In the Name of the European Club of Liberal Democracies. How to Evaluate Strasbourg Jurisprudence’ ejiltalk.org, 20 December 2018. 119 A Curia search dating back to 2009 – again, undoubtedly imperfect – throws up 148 judgments and orders in which the Court of Justice refers to the Convention in its assessment. In four cases the ECHR features in the operative part. See further S O’Leary, ‘Courts, Charters and Conventions: Making Sense of Fundamental Rights in the EU’ (2016) LVI Irish Jurist 4, 24–27.

The EU Charter Ten Years On: A View from Strasbourg  61 However, it would be strange for the Court of Justice, as core fundamental rights issues, indeed overarching human rights principles such as the rule of law, and questions that go to the heart of democracy become, for the first time, political issues in Brussels and legal ones in Luxembourg, not to refer to the ECtHR and its extensive case-law. Some commentators have responded with concern to previous judgments such as LM, where the Luxembourg court remained silent on the role of the Strasbourg court and its rule-of-law cases: The ECJ’s silence about the – actual and possible – roles of the European Court of Human Rights is particularly disturbing … it might be recalled that one court – albeit … the ECJ – might not always be enough for safeguarding the rule of law.120

In early 2019 the Strasbourg court handed down an important judgment in an Icelandic case on judicial independence in which it applied well-established case-law in this field, including the Grand Chamber judgment in Baka v Hungary.121 It also referred to case-law of the General Court of the EU, in which the question of the proper establishment of a bench of the Civil Service Tribunal had been at issue.122 As said previously, the Convention is neither an exclusive nor an exclusionary text. It would seem odd in such an important field if cross-referencing traffic would be one way or uneven. The absence of references to ECtHR case-law on the rule of law and judicial independence in the LM case contrasts with the substantial and detailed references to case-law on prison conditions in ML v Generalstaatsanwaltschaft Bremen.123 The 2019 infringement judgment against Poland on the retirement age for Supreme Court judges contained a fleeting reference to the ECHR without, once again, any reference to extensive ECtHR case-law on judicial independence.124 As 2019 came to a close, however, additional rule-of-law judgments engaged openly and quite extensively with the Strasbourg jurisprudential acquis on judicial independence. In AK, for example, the Court of Justice examined the need for judges to be protected from external intervention or pressure liable to jeopardise their independence. In doing so, it referenced the settled case-law of the Strasbourg court on the concepts of judicial independence and objective impartiality.125 The words of the President of the Court of Justice in his speech at the opening of the Strasbourg judicial year in January 2018 are much more encouraging than the silence in Court of Justice judgments such as LM and Commission v Poland might otherwise suggest: [I]t does not follow from the fact that the Charter is centre stage in the EU system of fundamental rights protection that the Court of Justice is required to adopt an isolationist or ‘EU-centric’ approach. On the contrary, the Charter mandates the Court of Justice to embrace openness and dialogue, in the field of fundamental rights, with the legal orders that surround the EU. … Thus, the Court of Justice is required to engage in a constructive dialogue with the national courts – notably national Constitutional and Supreme Courts – and, of course, the EC[t]HR. Consequently, the Charter has not only

120 See the comments on LM by C Dupré, ‘Individuals and Judges in Defense of the Rule of Law’, https://verfassungsblog.de/individuals-and-judges-in-defense-of-the-rule-of-law/, accessed 28 July 2018. 121 Baka v Hungary no 20216/12 (ECHR [GC], 23 June 2016) para 165. 122 Case T-639/16 P, EU:T:2018:22. 123 Case C-220/18 PPU ML v Generalstaatsanwaltschaft Bremen EU:C:2018:589. 124 In Case C-619/18 European Commission v Republic of Poland EU:C:2019:531 the Court of Justice states in para 49: ‘The principle of the effective judicial protection of individuals’ rights under EU law, referred to in the second subparagraph of Article 19(1) TEU, is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the [ECHR] and which is now reaffirmed by Article 47 of the Charter.’ Contrast the references in the Opinion of Advocate General Tanchev to ECtHR case-law on judicial independence and impartiality, EU:C:2019:325, paras 71 and 88. 125 Joined Cases C-585/18, C-624/18 and C-625/18 AK and Others (Independence of the Disciplinary Chamber of the Supreme Court) EU:C:2019:982, paras 126–31.

62  Síofra O’Leary codified but has also given new impetus to the case law of the Court of Justice in respect of the general principles of EU law, where it has held that the Convention has ‘special significance’.126 With the entry into full legal force of the Charter, I am tempted to say that the Convention has now ‘a very special significance’ in the EU legal order. … Moreover, the meaning and scope of the rights recognised by the Charter are directly influenced by the Convention. This ‘esprit d’ouverture’ shows that the Charter is by no means a rival to the Convention, nor is it intended to impose competing obligations on the EU Member States in the field of fundamental rights. On the contrary, the Charter invites cooperation with Strasbourg.127

One could question whether the legal obligation in Article 52(3) of the Charter translates simply as an ‘esprit d’ouverture’. For the reasons outlined above, it would seem to represent something much more legally significant in EU and domestic legal orders. However, this extract from the speech of the President of the Court of Justice does capture what the relationship should be. The two European courts’ tasks are different, yet in some cases similar fundamental rights questions do and will arise. Crucially, when it comes to protecting fundamental rights and the rule of law, their objectives are common. As the scope of EU law expands, instances in which they will occupy the same terrain will increase. Both courts must remain sensitive to this. In many judgments the Court of Justice engages explicitly with Strasbourg case-law. However, in some key judgments it has been noticeable precisely because it has not. Yet, it would seem a mistake, in the years ahead, and given the times in which we are living, to ignore or squander the wealth of the Convention court’s jurisprudential acquis in the field of fundamental rights. Furthermore, there is a risk that the message for new, long-standing and candidate Member States might be understood as follows – to become an EU Member State, comply with the ECHR;128 after withdrawal from the EU, comply with the ECHR either on the basis of international law or possibly as part of the terms of exit;129 but when an EU Member State, look only to us, even in relation to fundamental rights questions in which we may be relative newcomers. There are solid jurisprudential and other reasons for avoiding the impression that either or both courts work, in their respective fields, without due or sufficient regard for the work of the other. C.  Striking Fair Balances and Providing ‘More Extensive Protection’ The assessment of fundamental rights in a democracy entails complex balancing exercises either between individual rights (eg privacy v expression) or between the rights of the individual and the collective interest (eg privacy v national security or the fight against crime). The balance struck often reflects or has to take into consideration complex societal choices. The ECtHR has repeatedly stated that: [I]nherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.130

126 See, as an example, Case C-260/89 ERT EU:C:1991:254, para 41 for a case in which this significance was referred to explicitly. 127 See Lenaerts, ECtHR speech (n 2). 128 See the terms of the Copenhagen criteria referred to in n 117. 129 See eg Case C-327/18 PPU RO EU:C:2018:733, paras 52 and 61. 130 Soering (n 49) para 89.

The EU Charter Ten Years On: A View from Strasbourg  63 In other words, balancing is the bread and butter of a fundamental rights court. As different and more complex fundamental rights questions arrive in Luxembourg, requiring the Court of Justice to engage in more and more difficult and sensitive balancing exercises, it remains to be seen whether its message and methodology will come under pressure. Returning to the field of religious discrimination/freedom, the recent judgment in the Egenberger case, which concerned the reconciliation of the autonomy rights of religious organisations with the right of employees of such organisations to be free of discrimination, shows the type of tightrope the Court of Justice will have to walk when it engages and enjoins national courts to engage in fair balancing in certain fields.131 Whether fairly or unfairly, the words delphic, syllogistic, laconic and apodictic have been used to describe the reasoning of the Court of Justice in some cases.132 The five paragraphs of Ruiz Zambrano are held up as an example of where collegiate decision-making allowing no separate opinions may represent a weakness rather than a strength. These critics may grow louder as the Court of Justice docket expands and what it contains becomes more challenging.133 What the Court of Justice leaves unsaid or refers back to the national judge to resolve on his or her own will be scrutinised; but so too will statements that are seen by the Court of Justice as part of the solution but which could themselves be considered questionable from a fundamental rights perspective.134 Furthermore, the Court of Justice has developed its own fundamental rights language. In some cases the pattern is simple and fundamental rights may even be a spectral presence. In other cases it weaves a complex legal tapestry with threads drawn from the Charter, primary and secondary EU law, references to the ECtHR and its caselaw, along with references to the primacy, unity and effectiveness of EU law itself. Coman, the case relating to the free movement of an EU citizen and recognition of his same-sex marriage to a third-country national, is held up both as an example of Charter progressiveness and judicial reasoning so EU-centred and sophisticated that it risks becoming inaccessible.135 Finally, leaving aside the question whether Court of Justice reasoning and method might develop further and differently as its fundamental rights docket expands, I return to the proviso in Article 52(3) of the Charter to the effect that, notwithstanding ECHR/Charter correspondence, EU law may provide more extensive protection. Viewed simply, this means that Charter protection may never fall below that guaranteed by the ECHR, itself a minimum standard. The ‘more extensive protection’ proviso is well known in EU primary and secondary law.

131 Case C-414/16 Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV EU:C:2018:257. The Court of Justice set out a test under which religious organisations must show the ‘objectively verifiable existence of a direct link between the occupational requirement imposed by the employer and the activity concerned’, which marked a departure from the approach followed by German courts which, in the light of German constitutional guarantees of religious autonomy, had given very restricted powers to the courts to second guess the decisions of religious bodies. 132 See eg G de Búrca, ‘After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator?’ (2013) 20 Maastricht Journal of European and Comparative Law 168. 133 See eg JHH Weiler, ‘Je Suis Achbita’ (2017) 15 International Journal of Constitutional Law 879. 134 See eg the indication in para 43 of Achbita to the effect that it was for the referring court to verify ‘whether, taking into account the inherent constraints to which the undertaking is subject, and without G4S being required to take on an additional burden, it would have been possible for G4S, faced with such a refusal, to offer her a post not involving any visual contact with those customers, instead of dismissing her’ or the suggestion in Digital Rights, para 58, that data pertaining to ‘a particular geographical zone’ might justifiably be retained. There seems to be some realisation of the latter criterion being potentially problematic – see the Opinion of Advocate General Campos-Sánchez Bordona in Ordre des barreaux francophones et germanophone (n 63) paras 74 and 88. 135 See D Sarmiento, ‘The Legal Acrobatics of Fundamental Rights – Coman and Gay Marriage as a Case Study’ https://despiteourdifferencesblog.wordpress.com/2018/06/06/the-legal-acrobatics-of-fundamental-rights-coman-andgay-marriage-as-a-case-study/, accessed 6 June 2018.

64  Síofra O’Leary In the field of social policy, for example, it can be found in Article 153(3) TFEU and in directives adopted on that basis.136 However, it has to be recognised that, when it comes to fundamental rights, more favourable protection of one right usually means less favourable or lower protection of another. It may be one thing to grant, by way of more favourable protection than the minimum established in an EU social policy directive, five weeks of annual paid leave instead of four, but how does this translate in the field of fundamental rights? Privacy and data protection are a useful case study. Since the judgment in Google Spain, where the Court of Justice did not engage explicitly in the balancing of rights to privacy and freedom of expression, the former right, in conjunction with the right to data protection in Article 8 of the Charter have emerged as Charter ‘super rights’, indicative of where and how EU law may provide ‘more favourable protection’.137 But one could also characterise Strasbourg and Luxembourg cases in this field as instances of divergent balances rather than cases of more or less favourable protection.138 In Article 8 ECHR cases on privacy, data protection and mass surveillance, for example, a complex balancing exercise is occurring; one that brings into play other fundamental rights (the right to life or to liberty and security in Articles 2 and 5 of the Convention), albeit their presence may be silent and their content may remain abstract and undefined. If we look to Strasbourg terrorism-related case-law beyond the narrow confines of Article 8, this balancing is brought into sharp relief.139 The quite legitimate ascendancy of data protection as a fundamental right and its increased and indeed fundamental importance in this digital age should not obscure the fact that balancing means just that – the careful weighing and consideration of two competing rights and interests. Just as the interests of public safety and law enforcement will sometimes have to give way to the right to privacy, so the right to privacy may on occasion need to yield to competing considerations. Where the balancing of qualified rights and legitimate public interests is at issue, the drawing of red lines and creation of absolutist principles may be problematic. Preliminary reference requests in which the Court of Justice is being asked to explain and develop further the consequences of a judgment such as Tele 2 Sverige arguably go to the heart of the question of divergent balances.140 It remains to be seen, following the Opinions mentioned above, whether the Court of Justice will engage properly with the submissions of the numerous governments which intervened in those cases,141 with the national courts which seek to engage in ongoing dialogue with it in the field of data protection and with the fundamental rights case-law of its Strasbourg counterpart, whether established or evolving. 136 See eg Art 23 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time [2003] OJ L299, 9–19. 137 Contrast C Kunner, ‘A “Super-Right” to Data Protection? The Irish Facebook Case & the Future of EU Data Transfer Regulation’ http://blogs.lse.ac.uk/mediapolicyproject/2014/06/24/a-super-right-to-data-protection-the-irishfacebook-case-the-future-of-eu-data-transfer-regulation/; and M Scheinen, ‘The Essence of Privacy and Varying Degrees of Intrusion’ Verfassungsblog, 7 October 2015. 138 See C Dauticourt, ‘A Strasbourg Perspective on the Autonomous Development of Fundamental Rights in EU Law: Trends and Implications’ NYU School of Law, Jean Monnet Working Paper 10/2010. 139 See A and others v the United Kingdom no 3455/05 [GC], paras 177 and 180; or Tagayeva and Others v Russia no 26562/07 (ECHR, 13 April 2017) para 492. 140 See eg Case C-207/16 Ministerio Fiscal EU:C:2018:788. It is striking that in the Opinions of Advocate General Campos-Sánchez Bordona in Privacy International (n 63), La Quadrature du Net and Others and French Data Network and Others (n 63), and Ordre des barreaux francophones et germanophone and Others (n 63), references to the ECHR are few and far between, despite the extensive nature of relevant Art 8 case-law and a case on bulk communications data pending before the Grand Chamber following the Chamber judgment in Big Brother Watch and Others v the United Kingdom (n 62). For an analysis of the reference in the latter case, see F Verbruggen, S Royer and H Severijns, ‘Reconsidering the Blanket-Data-Retention-Taboo, for Human Rights’ Sake?’ European Law Blog, https://europeanlawblog.eu/2018/10/01/reconsidering-the-blanket-data-retention-taboo-for-human-rights-sake/, accessed 1 October 2018. 141 Between 13 and 18 EU Member State governments, as well as Norway and the European Data Protection Supervisor, appeared before the Court of Justice in the UK, Belgian and French cases just listed.

The EU Charter Ten Years On: A View from Strasbourg  65 V.  CONCLUDING REMARKS

Ten years on from the Lisbon Treaty, the significance of the Charter in the EU and Member State legal orders flows clearly from the expanding fundamental rights docket of the Court of Justice. It is explained in detail by other contributors to this volume. The manner in which the Charter was drafted, its subsequent acquisition of binding legal value, the use to which it has been put by litigants, lawyers, national courts and the Court of Justice contribute to what must be hailed as a significant milestone in the history of EU integration. While it is principally the expanding scope of EU law, rather than the Charter, that has transformed the nature of the legal questions now referred to the Court of Justice, the Charter is clearly transforming the manner in which that court tackles those legal questions. A search in the Curia database – preferably the more powerful version available within the Court of Justice – would in all likelihood reveal more frequent references in recent years to the constitutional nature of the EU legal order or to the autonomy of EU law and of the Court of Justice itself than had been the case in the pre-Lisbon era. Once again, while these changes in judicial style, reasoning and even mission cannot be attributed solely to the Charter, the latter has undoubtedly fed into this development. As evidenced by the Strasbourg case-law outlined above, the Charter is recognised as a new and significant element of domestic law in EU Member States. It is included by the ECtHR as a contextual point of reference of importance, operates as a source of general and more concrete inspiration, and constitutes a legal text which may influence the Strasbourg court’s analysis of legal consensus on a given point. In terms of the Bosphorus presumption, the Charter is considered quite logically to have consolidated rather than weakened one of the twin pillars on which that presumption relies. That being said, where mechanisms of EU law, such as mutual recognition, demonstrate the potential to undermine the effective protection of fundamental rights by EU Member States, the Strasbourg court has not been shy to point this out. While EU Member States are bound by their obligations pursuant to the EU Treaties, they continue to be bound by their Convention obligations and to the jurisdiction of the ECtHR. Only 27 Council of Europe Member States are also EU Member States, but that constitutes a significant bloc, to which must be added EEA states and states with whom the EU has concluded association or other agreements. It is too often forgotten in EU circles that three EU Member States, including a founding Member State, feature amongst the top ten producers of pending applications in Strasbourg.142 Clearly, if the EU and its Member States must continue to take cognizance of the Convention, the ECtHR must also keep abreast of EU law. The Convention – for decades a legal text accorded special significance by the EU legal order – is now one that, in the words of the President of the Court of Justice, has acquired a ‘very special significance’. How and when this special significance will continue to manifest itself in the judgments of the Court of Justice dealing with fundamental rights in relation to which the ECHR and Charter correspond remains to be seen. In the next decade the Charter will no doubt enter new territory as more difficult fundamental rights questions present themselves. The Court of Justice may find that it has to consider whether tools developed by the ECtHR to date (not least the margin of appreciation or Animal Defenders’ type

142 See the statistics in relation to the 56,800 applications published on the ECHR website on 30 June 2019, www.echr. coe.int/Documents/Stats_pending_month_2019_BIL.pdf.

66  Síofra O’Leary judicial review) also have a role to play in the EU legal order. The Convention will continue to constitute a constitutional instrument of European public order. However, denied sufficient resources in recent years,143 and still confronted by an untenably large docket, the Strasbourg court will have to continue to work hard on how it frames, explains and articulates its decisions. This will also entail, in relevant cases, greater and deeper involvement with EU law, the EU legal order and the Charter itself. At a time when the fundamental rights acquis of the past is challenged in some quarters, one of the most important elements for both courts when it comes to legitimating their judicial decisions will remain the quality of their reasoning and the judicial dialogue in which they engage, with each other and with national courts. How they face this challenge in the coming decade will be crucial.

143 A problem with reference to which the EU has pledged support but not, it would appear, delivered. In July 2017, in a speech at the Council of Europe’s Committee of Ministers, the EU’s High Representative for Foreign Affairs and Security Policy stated: ‘In the meantime, it is essential for us to strengthen the European Court of Human Rights, and to make sure it can continue to deliver on its mandate, that is for us a fundamental mandate. The Court today needs both political and financial support. Politically, there is a duty to always respect its decisions, even when some of us do not agree with them. This is the very essence of the rule of law. But there is more. Following recent decisions, the Court might be faced with an unprecedented number of cases. I think it is in our common interest that all Member States will intervene locally to prevent this excessive amount of cases coming to the Court. But on top of that, all Member States should secure the necessary financial resources for the Court. And we, as the European Union, are willing to show our support to secure the functioning of the Court.’

Part II

Member State Perspectives

68

3 Austria: United in Consistent Interpretation CHRISTOPH GRABENWARTER AND CHRISTINE PESENDORFER*

I.  PRELIMINARY REMARKS

T

he eu charter of Fundamental Rights is broadly adopted by the national courts and legal scholarship in Austria. As this chapter will demonstrate, many references to the Charter can be found in Austrian jurisprudence. This is due, among other reasons, to the fact that the Austrian courts have traditionally been open to European law. In addition, a groundbreaking decision of the Austrian Constitutional Court (Verfassungsgerichtshof, VfGH) has given the Charter a special position in the Austrian legal order. The research for this chapter focused in particular on the three Austrian high courts: the Constitutional Court, the Supreme Administrative Court (Verwaltungsgerichtshof, VwGH) and the Supreme Court (Oberster Gerichtshof, OGH). The Legal Information System of the Republic of Austria (Rechtsinformationssystem des Bundes, RIS) has been used for this purpose.1 The results include all cases where the Charter was cited among the most important norms on which the decisions are based.2

* We would like to thank Dr Maria-Theresia Rappersberger, researcher at the Constitutional Court, for her valuable support. 1 The RIS is a database that provides a query function with search parameters such as ‘court’, ‘identification number of the case’, ‘date’, ‘keywords’ and ‘norm’. Since a query for keywords yields too many results, the parameter ‘norm’ has been used. 2 The research considered all rulings that had been made available in the database by 21 January 2019. There are two types of documents to choose from in the database: firstly, headnote documents (Rechtssätze) are created by the courts and contain legally relevant statements taken from the court decisions. Secondly, opinions (Entscheidungstexte) contain the full-text documents of the court decisions. Since, in general, there is one full text document for every decision and a varying number of corresponding headnotes, the full-text version has been chosen for the Constitutional Court and the Supreme Administrative Court. However, since there are no matches in this category in relation to the Supreme Court, the category headnote documents has been used in this case. For the sake of completeness, it should be stressed that there is no general standard for the analysis and documentation of court decisions in the Austrian Legal Information System; methods of analysis and search parameters might be used in a different way by the courts, within their sole responsibility.

70  Christoph Grabenwarter and Christine Pesendorfer II.  CITATIONS OF AND REFERENCES TO THE CHARTER FROM A QUANTITATIVE POINT OF VIEW3

A.  Citation at Different Levels of Courts With regard to the administrative courts of first instance, there are 62 decisions of the Federal Administrative Court (Bundesverwaltungsgericht) citing the Charter among the most important norms (since 1 January 2014). Article 47 of the Charter is the provision mentioned most frequently, namely in 61 of these 62 decisions. Only two decisions of Regional Administrative Courts can be found (Regional Administrative Court of Burgenland, citing Article 47, and Regional Administrative Court of Upper Austria, citing Article 49 of the Charter). This can be explained by the fact that the RIS database contains only selected decisions of Regional Administrative Courts. Therefore, a thorough analysis of lower courts’ jurisprudence relating to the Charter is difficult to achieve. With respect to the highest courts in Austria, such an analysis is easier. According to the Legal Information System of the Republic of Austria, the Charter was invoked by the Constitutional Court in 93 rulings so far (all after the entry into force of the Treaty of Lisbon). The Supreme Administrative Court has adopted 408 rulings (one before the entry into force of the Treaty of Lisbon) and the Supreme Court has adopted 14 rulings (four before the Lisbon Treaty).4 For the sake of completeness, it should be noted that these numbers also include rulings in which several cases were joined. In fact, there is a significant variation in the figures between the three courts of last instance in Austria, which can – partly – be explained by their competences. Both the Supreme Administrative Court and the Constitutional Court have the competence to review the legality of administrative decisions, whereas the Supreme Court’s jurisdiction comprises the legal review of civil and criminal cases.5 It seems that EU law, which for a long time predominantly influenced national public law, still has had a stronger impact on domestic administrative law than on civil and criminal law during the last ten years. In addition, the rather limited number of results for the Supreme Court can be explained by the fact that the Supreme Court publishes only selected cases in the RIS, whereas the majority of decisions of the Supreme Administrative Court and the Constitutional Court are documented and analysed in the RIS. The divergence in the number of citations between the Supreme Administrative Court and the Constitutional Court can partly be explained by the divergent number of appeals lodged before these courts.6 In addition, the rather reluctant acceptance of Charter rights as a standard of constitutional review by the Constitutional Court in comparison to the Supreme Administrative Court may be an explanation for the variation in the figures (see below, section III.B.i). 3 For citations of and references to the Charter from a qualitative perspective, see s IV. 4 cf J Hofbauer and C Binder, ‘The EU Charter of Fundamental Rights Seized by the National Judges – National Report Austria’ in L Burgorgue Larsen (ed), La Charte des droits fondamentaux saisie par les juges en Europe. The Charter of Fundamental Rights as Apprehended by Judges in Europe (Paris, Pedone, 2017) 99, 103; European Union Agency for Fundamental Rights (FRA), Fundamental Rights Report 2018 (Luxembourg 2018) 36. Different numbers of results in other contributions can be explained by the use of different search parameters. 5 A Orator, ‘The Decision of the Austrian Verfassungsgerichtshof on the EU Charter of Fundamental Rights: An Instrument of Leverage or Rearguard Action?’ (2015) 16 German Law Journal 1429, 1432; A Müller, ‘An Austrian Ménage à Trois: The Convention, the Charter and the Constitution’ in KS Ziegler, E Wicks and L Hodson (eds), The UK and European Human Rights: A Strained Relationship? (Oxford, Hart, 2015) 312. 6 See generally Activity Reports of VfGH and VwGH, available at www.vfgh.gv.at/verfassungsgerichtshof/publikationen/activity_reports.en.html and www.vwgh.gv.at/gerichtshof/taetigkeitsberichte/index.html. In 2017, around 5,000 new cases were brought before the Constitutional Court; the number of appeals lodged before the Supreme Administrative Court was around 7,300.

Austria: United in Consistent Interpretation  71 B.  Reference to the Charter in the Legislative Process Generally speaking, the Charter seems to be of rather limited relevance in the national Austrian legislative process,7 because for most Charter rights there is already a corresponding right in the ECHR, which has enjoyed constitutional status in Austria since as far back as 1964. As a general rule, it is up to the competent ministry to assess every bill and draft regulation for its compatibility with Union law. The EU-conformity assessment has to be published together with the legal preparatory materials. Whereas ex ante constitutional review, including legal scrutiny of compatibility with fundamental rights, is the central task of the Constitutional Service (an administrative unit in the Federal Chancellery with specialised expertise in constitutional law in general and fundamental rights in particular), the EU-conformity check, which includes compatibility with the Charter, is – at least in theory – the sole responsibility of the competent ministries.8 This is a consequence of the fact that the Charter was never formally assigned constitutional status by passing through the decision-making procedure enshrined in Article 44 of the Austrian Federal Constitutional Act. However, the Charter plays a certain role in the legislative process. In cases involving corresponding ECHR rights, the Charter is usually only quoted additionally. A recent example might be the preparatory materials of the Implementation Act on the General Data Protection Regulation, Federal Law Gazette BGBl I 2017/120, which refer primarily to section 1 of the Data Protection Act and Article 8(2) ECHR, but also to Article 8(2) of the Charter. Another example is the reference to Article 47 of the Charter in several recent national acts implementing the Aarhus Convention.9 Beyond that, there are a few examples of explicit references to Charter rights in national legislation: for instance, the Federal Act on Proceedings of Administrative Courts (§ 24(4)) and the Supreme Administrative Court Act (§ 39(2) lit 6) refer explicitly to Article 47 of the Charter in the context of the fair trial requirement of a public hearing.10 III.  LEGAL STATUS OF THE CHARTER IN THE NATIONAL LEGAL ORDER

A.  General Remarks about Fundamental Rights in Austria The Austrian legal order is characterised by a formal understanding of the hierarchy of norms (Stufenbau der Rechtsordnung). In general, fundamental rights enjoy constitutional status,11 but there are exceptions.12 In Austria, the basic catalogue of fundamental rights was enacted as early as in 186713 and was incorporated into the Austrian Constitution of 1920. With some amendments and additions, it is still in force.

7 See also FRA, Fundamental Rights Report 2018 (n 4) 42–43. 8 M Klamert, ‘The Implementation and Application of the Charter of Fundamental Rights of the EU in Austria’ (2018) 4 Acta Universitatis Carolinae Iuridica 89, 99. 9 Aarhus-Beteiligungsgesetz 2018, Federal Law Gazette BGBl I 2018/73, and Emissionsgesetz Luft 2018, Federal Law Gazette BGBl I 2018/75; other examples are mentioned in Hofbauer and Binder (n 4) 101, fn 15. 10 Hofbauer and Binder (n 4) 101. 11 eg Klamert (n 8) 90–91; Hofbauer and Binder (n 4) 99–100; Müller (n 5) 300–01. 12 See below. 13 Staatsgrundgesetz (StGG) 1867 (Basic Law on the General Rights of Nationals in the Kingdoms and Länder represented in the Council of the Realm).

72  Christoph Grabenwarter and Christine Pesendorfer The second comprehensive fundamental rights catalogue and pillar of fundamental rights protection in Austria was added to the Austrian Constitution with the ratification of the ECHR in 1958, which was assigned constitutional status in 1964. Consequently, the ECHR has been part of the Austrian Constitution since 1964. In addition, there are a variety of fundamental rights enshrined in other legal provisions, eg in the Federal Constitutional Act of 1920 itself,14 and in other national statutory provisions or international treaties with a formal constitutional status. Some examples are Article I of the Federal Constitutional Law Implementing the International Convention on the Elimination of all Forms of Racial Discrimination15 on equal treatment between non-nationals, section I of the Data Protection Act16 or Article 7 of the Austrian State Treaty of 1955 on minority rights.17 Nevertheless, there are some examples of fundamental rights that do not enjoy constitutional status in Austria, eg the ICCPR. This is due to the fact that the constitutional status of a legal provision is not primarily determined by its content but rather by formal criteria, in particular adoption according to the decision-making process for constitutional provisions enshrined in Article 44 of the Austrian Federal Constitutional Act. Among other features, this process provides for special quora and an explicit designation as a constitutional provision. B.  The Status of the Charter Over the Course of Time i.  The Status Until 2012 The Charter is another example of (a catalogue of) fundamental rights without constitutional status. Unlike the ECHR, neither EU law in general nor EU primary law nor the Charter have been incorporated into the Austrian legal order by assigning them constitutional status and thus formal precedence over domestic ordinary law. Due to the primacy and the direct effect of EU law, this was not considered necessary, either at the time of Austria’s accession to the EC in 1995 or at the time of the ratification of the Treaty of Lisbon which made the Charter legally binding. It is against this background that the Austrian Constitutional Court, since Austria’s accession to the EC, consistently held that a violation of EU law (secondary law as well as primary law) in general did not constitute a breach of the Austrian Constitution.18 Consequently, the Constitutional Court – except for cases of manifest contradiction with EU law19 – did not apply EU law as a benchmark for its judicial review until 2012.20 This led to the paradoxical result that although – or rather because – the Constitutional Court acknowledged the supremacy and direct effect of EU law, an individual complainant would hardly ever be successful before the Court in cases of violation of EU law. As a

14 eg Art 7: Equality of all citizens before the law. 15 Federal Law Gazette BGBl 1973/390. 16 Federal Law Gazette BGBl I 1999/165. 17 Federal Law Gazette BGBl 1955/152. 18 VfSlg 14.886/1997, 15.583/1999, 16.143/2001 et al (Verfassungssammlung/VfSlg – Collection of the Austrian Constitutional Court); cf Klamert (n 8) 92; T Öhlinger and M Potacs, EU Recht und staatliches Recht, 6th edn (Vienna, Lexis Nexis, 2017) 185–86. 19 eg VfSlg 16.401/2001; M Holoubek, ‘Austrian National Report. The Constitutional Court of the Republic of Austria’ (XVIth Congress of the Conference of European Constitutional Courts, 2014) 2–3, www.vfgh.gv.at/cms/vfghkongress/downloads/landesberichte/LB_Autriche_EN.pdf; Klamert (n 8) 92; Hofbauer and Binder (n 4) 109. 20 eg VfSlg 15.753/2000, 18.266/2007; further quotations in VfSlg 19.632/2012, paras 19–24; see Holoubek (n 19) 2–3; Müller (n 5) 302–03.

Austria: United in Consistent Interpretation  73 consequence of its primacy and direct applicability, EU law took precedence over the potentially conflicting national provision, which – according to the reasoning of the Court – rendered the complaint inadmissible because of the procedural requirement of ‘applicability’ of the national provision.21 Consequently, judicial review with respect to EU law (including primary law) remained essentially a task for the ordinary and administrative courts and – in the last instance – for the Supreme Administrative Court in administrative cases or for the Supreme Court in civil and criminal matters. ii.  The ‘Charter Decision’ of the Constitutional Court The Constitutional Court’s landmark decision of 2012, VfSlg (Verfassungssammlung – Collection of the Austrian Constitutional Court) 19.632/2012 (henceforth ‘the Charter decision’) constituted a turning point: the Austrian Constitutional Court ‘constitutionalised’ the Charter in part. The Court attributed the status of constitutionally guaranteed rights to those Charter rights that were ‘similar in wording and purpose’ to rights guaranteed by the Austrian Federal Constitution. Those rights could thus be invoked as constitutionally guaranteed rights in cases of ‘concrete’ judicial review in constitutional complaint procedures.22 Moreover, within the scope of application of the Charter, Charter rights would also constitute a standard of review in abstract judicial review proceedings according to Articles 139 and 140 of the Federal Constitutional Act.23 In its reasoning, the Constitutional Court – with reference to Article 6(1) TEU – explicitly differentiated the Charter from other sources of primary law, arguing that ‘the Charter is an area that is markedly distinct from the Treaties’.24 However, the Charter was not ‘constitutionalised’ as a whole – which of course would not fall within the jurisdiction of the Constitutional Court. Instead, the Court took a selective approach. The Court found that many rights of the Charter have – within the scope of application of Union law – the same function as Austrian constitutionally guaranteed rights for the autonomous area of Austrian law (in particular fundamental rights laid down in the ECHR), and reserved its right to decide on a case-by-case basis which of the rights guaranteed by the Charter constitute a standard of review in proceedings before the Court and which do not.25 iii.  The Status of Charter Provisions Compared to National Constitutional Rights and Provisions of the ECHR As a general rule, it can be observed that the Charter provisions are usually not analysed on their own, provided that there exist corresponding provisions of the ECHR or national fundamental rights. This is a consequence of the fact that the Constitutional Court only attributed constitutional status to those Charter rights which are ‘similar in wording and purpose’ to rights guaranteed by the Austrian Federal Constitution. For the majority of ‘rights’ of the Charter there seems to be a corresponding right in the Austrian Constitution, in particular among the rights protected under the ECHR.

21 Orator (n 5) 1431; Klamert (n 8) 93; Müller (n 5) 303. 22 Proceedings according to Arts 144 and 144a Federal Constitutional Act. 23 VfSlg 19.632/2012, para 35. 24 VfSlg 19.632/2012, para 25. The reasoning of the distinctiveness of the Charter as opposed to the Treaties was criticised because of its ‘distorting’ and incomplete quotation of Art 6(1) TEU by Orator (n 5) 1437. 25 VfSlg 19.632/2012, para 36, 38; Orator (n 5) 1436.

74  Christoph Grabenwarter and Christine Pesendorfer Conversely, if a constitutionally guaranteed right, in particular an ECHR right, has the same scope of application as a Charter right, the Constitutional Court has held in its established case-law that it would base its decision (exclusively) on the Austrian Constitution.26 The reasoning behind this is to maintain the existing division of competences – both between national constitutional courts and European high courts and between the different courts of last instance at national level – in order to provide the best possible fundamental rights protection for the individual.27 However, in its Charter decision of 2012, the Constitutional Court emphasised that fundamental rights resulting from national constitutions, from international conventions and from the Charter must be interpreted as consistently as possible.28 The Court derived the ‘obligation of consistent interpretation’ from a systematic interpretation of Article 52(3)29 and 52(4)30 and Article 53 of the Charter.31 Only in cases in which there is no provision enshrined in the Austrian Constitution corresponding to that of the Charter do national courts in general and the Constitutional Court in particular refer exclusively to the Charter.32 This was the case in recent decisions on Article 47(2) of the Charter on the right to a fair and public hearing with regard to asylum, according to its widened scope of application in comparison to Article 6 ECHR.33 It is, meanwhile, established case-law – of both the Constitutional Court and the Supreme Administrative Court – that administrative decisions are reversed for unlawful omission of an oral hearing.34 With respect to the level of protection, no national pronouncements on Article 53 of the Charter35 have been identified where the protection of the Charter has been recognised as being higher than the one provided for in either the ECHR or in the national bill of rights. Quite the contrary: the discussion is rather about how to deal with a situation where the national fundamental rights protection is higher than the level guaranteed by international instruments, in particular the Charter, without lowering the level of protection. The intention of Article 53 of the Charter is to maintain the level of protection currently afforded by Union law, national law and international law. Owing to its importance, explicit mention is made of the ECHR.36 In this context it should be pointed out again that the Constitutional Court in its Charter decision – referring to Article 53 of the Charter – emphasised that ‘fundamental rights

26 Beginning with VfSlg 19.632/2012, para 44; VfSlg 20.000/2015, paras 273–74; VfGH 14 March 2018, G 248/2017 et al, para 128. 27 C Grabenwarter, ‘Europäische Grundrechte in der Rechtsprechung des Verfassungsgerichtshofes’ (2012) Journal für Rechtspolitik 298, 302. 28 VfSlg 19.632/2012, para 46. 29 ‘[T]he meaning and scope of those [ie the Charter] rights shall be the same as laid down by the said Convention’ (ie the ECHR). 30 ‘In so far as this Charter recognises fundamental rights resulting from constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions.’ 31 VfSlg 19.632/2012, paras 45–46. 32 Müller (n 5) 309–10; S Kieber and R Klaushofer, ‘The Austrian Constitutional Court Post Case-Law After the Landmark Decision on Charter of Fundamental Rights of the European Union’ (2017) 23 European Public Law 221, 228–29. 33 Hofbauer and Binder (n 4) 114. In older decisions on Art 47(2) the courts also used Art 6 ECHR and the Federal Constitutional Law on the Implementation of the International Convention on the Elimination of all Forms of Racial Discrimination, Federal Law Gazette BGBl 1973/390, in their argumentation. 34 eg VfGH 24 November 2016, E 1079/2016, with further references; VwGH 22 May 2014, Ro 2014/21/0047. 35 See especially Hofbauer and Binder (n 4) 115–16. 36 Explanation on Art 53 – Level of protection [2007] OJ C303/35. As for academic pronouncements on Article 53 of the Charter, see E Vranes, ‘Art 53’ in M Holoubek and G Lienbacher (eds), GRC-Kommentar, 2nd edn (Vienna, Manz, 2019).

Austria: United in Consistent Interpretation  75 resulting from national constitutions, international law conventions, and from the Charter, must be interpreted as consistently as possible’. The Constitutional Court explicitly refers to the constitutional traditions common to the Member States and to the corresponding rights guaranteed by the ECHR. This approach of ‘consistent interpretation’ of different fundamental rights sources – whether national or international – can be explained against the background of the long Austrian tradition and experience dealing with parallel fundamental rights contained both in the Austrian Constitution since 1867, and in the ECHR, which has enjoyed constitutional status since 1964.37 As for Article 53 of the Charter, there is only one case where this article was debated in substance by the Constitutional Court: the Court requested a preliminary ruling from the Court of Justice, asking whether – having regard to Article 52(4) of the Charter – it followed ‘from the principle of the preservation of higher levels of protection in Article 53 of the Charter that the limits applicable under the Charter in relation to permissible restrictions must be more narrowly circumscribed by secondary law’.38 The background of this question was the higher level of protection of personal data guaranteed by section I of the Austrian Data Protection Act compared to Article 8 ECHR. The Constitutional Court wanted to know whether, in the case of stricter protection by the Member States’ constitutions, those rights prevail over the limits of the Charter rights when the Constitutional Court has to assess domestic provisions implementing Union law. The Constitutional Court assumed that, within the scope of application of the Charter, a single fundamental right in just one national constitution cannot undermine the primacy of the Charter right. However, where a higher level of protection is deduced from a comparison between several Member States’ constitutions, it could be compelling to interpret the Charter right in such a way as not to undermine the level of protection guaranteed in the national constitutions. The Court also referred to Article 52(4) of the Charter, according to which fundamental rights resulting from the constitutional traditions common to the Member States and recognised by the Charter shall be interpreted in harmony with those traditions.39 As the Court of Justice invalidated the Data Retention Directive for being contrary to Articles 7 and 8 of the Charter, it abstained from answering this and some additional questions of the Constitutional Court. In its subsequent decision in the continued procedure, the Constitutional Court, however, referred explicitly to Article 53 of the Charter when assessing the national implementing legislation, giving priority to the more protective rule as guaranteed in Austrian Constitutional Law (section I of the Data Protection Act).40 The Constitutional Court held: [W]here certain discretion was left to national authorities in the implementation of Union law which touch upon fundamental rights as contained in the Charter as well as (other) constitutionally guaranteed rights, the Constitutional Court decides on the basis of the latter if it has the same scope of protection as the right guaranteed under the Charter and where the limits for permissible restrictions are drawn more restrictive or at least not less restrictive.41

37 Hofbauer and Binder (n 4) 115, quoting Holoubek (n 19) 2. 38 VfSlg 19.702/2012, question 2.4, quoted in Court of Justice Joined Cases C-293/12 and C-594/12 Digital Rights Ireland and Others EU:C:2014:238, para 21. 39 VfSlg 19.702/2012, 5.2. 40 VfSlg 19.892/2014, para 149. 41 VfSlg 19.892/2014, para 145, translation by Hofbauer and Binder (n 4) 117.

76  Christoph Grabenwarter and Christine Pesendorfer IV.  CITATIONS OF AND REFERENCES TO THE CHARTER FROM A QUALITATIVE POINT OF VIEW

A.  Use of the Charter by the Constitutional Court According to the Charter decision, there is no differentiation as to the use of Charter rights in different types of procedure before the Constitutional Court. Charter rights may be invoked as constitutionally guaranteed rights in ‘concrete’ fundamental rights procedures for a constitutional complaint according to Articles 144 and 144a of the Federal Constitutional Act. They equally constitute a standard of review in abstract judicial review proceedings according to Articles 139 and 140 of the Federal Constitutional Act, provided that the guarantee contained in the Charter is similar in its wording and purpose to rights that are guaranteed by the Austrian Federal Constitution.42 However, the use of Charter rights is limited by the scope of application of Union law. Although the Constitutional Court generally accepted Charter rights as a standard of review in general judicial review proceedings,43 there are only a few examples where Charter rights have been used to annul a domestic provision implementing EU law. The most prominent example is the Constitutional Court’s judgment on the national implementing legislation to the Data Retention Directive 2006/24/EC.44 The Constitutional Court explicitly considered Articles 7 and 8 of the Charter as a possible standard of review of the legality of the implementing laws,45 because ‘the guarantee accorded by the Charter corresponds, in its wording and degree of determination, to the constitutionally guaranteed rights laid down in the Austrian Federal Constitution’.46 This – according to the Court – could be assumed as regards the relation between Article 8 ECHR and Article 7 of the Charter. However, ultimately – after the Court of Justice had held that the Data Retention Directive 2006/24/EC was incompatible with Articles 7 and 8 of the Charter – the Constitutional Court assessed the challenged provisions in its continued procedure with reference to Article 53 of the Charter, mainly on the basis of the corresponding provision of section I of the Data Protection Act, which provides for a stricter standard of protection (see section III.B.iii). Yet in another case,47 the Constitutional Court declared section 11(4) of the Federal Asylum Act unconstitutional because it had generally prevented an (appellate) court chamber of the Asylum Court from holding a public hearing of its own motion. This, according to the Constitutional Court, contravened primarily Article 47(2) of the Charter, but also the rule of law and the Federal Constitutional Law Implementing the International Convention on the Elimination of all Forms of Racial Discrimination. B.  Relevance of Article 51 of the Charter to the Courts48 All three courts of last instance regularly scrutinise and sometimes discuss the applicability of the Charter with regard to Article 51(1) of the Charter and deal with the question whether or 42 VfSlg 19.632/2012, para 35. 43 VfSlg 19.632/2012, para 43. 44 VfSlg 19.892/2014. 45 Amendments to the Telecommunications Act 2003 (Federal Law Gazette BGBl I 2003/70), the Code of Criminal Procedure 1975 (Federal Law Gazette BGBl 1975/631) and the Security Police Act (Federal Law Gazette BGBl 1991/566). 46 VfSlg 19.892/2014, para 144. 47 VfSlg 19.845/2014. 48 For this discussion see, extensively, Hofbauer and Binder (n 4) 104–05, which to a large extent is still up to date.

Austria: United in Consistent Interpretation  77 not EU law is being implemented in the situation at hand, but there are some (minor) differences in their argumentation. As a general rule, it can be observed that Austrian administrative authorities and courts, including last-instance courts, accept and follow the Court of Justice’s interpretation of Article 51(1) of the Charter without reservation.49 In its Charter decision, the Constitutional Court emphasised that, according to the caselaw of the Court of Justice, the scope of application of Union law has to be interpreted broadly. ‘It covers the implementation of directly applicable Union law by courts or administrative authorities of the Member States … as well as the enforcement of Member States’ implementing provisions.’50 In accordance with the Court of Justice case-law, the contested asylum cases were definitely recognised as being within the scope of Union law, due to the fact that the complainants had been seeking international protection, and that during the proceedings their legal status was guaranteed by several EU directives. The Constitutional Court also referred in its later decisions to the case-law of the Court of Justice when it substantiated its interpretation of Article 51(1) of the Charter. It took up the ‘new formula’ of the scope of application, developed by the Court of Justice after the Åkerberg judgment in reaction to the dissent of the German Bundesverfassungsgericht.51 In essence, the implementation of Union law requires that Union law imposes a certain obligation on the Member State as regards the contested facts of the case. In order to determine whether national legislation involves the implementation of EU law for the purposes of Article 51 of the Charter, some of the points to be determined are: whether that legislation is intended to implement a provision of EU law; the nature of the legislation; whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; and, finally, whether there are specific rules of EU law on the matter or capable of affecting it.52 According to the Court of Justice, fundamental EU rights cannot be applied in relation to national legislation when the provisions of EU law in the subject area concerned do not impose any obligation on Member States regarding the situation at issue in the main proceedings.53 The ‘new formula’ developed by the Court of Justice on the scope of application of the Charter54 after the dissent with the German Bundesverfassungsgericht and its adoption by the Constitutional Court is also extensively described in the leading Austrian commentary on the Charter.55 In its case-law, the Constitutional Court, for example, held that certain limitations on open access to Austrian university education for non-nationals (EU citizens) were within the scope of EU law.56 On the contrary, it considered the case of a Dutch same-sex couple who wanted to repeat their marriage in Austria as being outside the scope of application of Union law.57 In the former case, the Court concluded that Union law applied from the fact that the domestic ‘quota system’ for access to medical studies in Austria had been implemented with regard to

49 See M Holoubek and M Oswald ‘Art 51’ in Holoubek and Lienbacher (n 36) paras 42–46. 50 VfSlg 19.632/2012, para 47. 51 Holoubek and Oswald, ‘Art 51’ in Holoubek and Lienbacher (n 36) paras 28–31 and 42. 52 Case C-206/13 Siragusa EU:C:2014:126, para 25; VfSlg 19.865/2014, 19.955/2015 et al. 53 Siragusa (n 52) para 26. 54 Case C-40/11 Iida EU:C:2012:691, para 79; Case C-87/12 Ymeraga EU:C:2013:291, para 41; Case C-206/13 (n 53) para 25. 55 Holoubek and Oswald ‘Art 51’, in Holoubek and Lienbacher (n 36) in particular paras 28–31, with further references. 56 VfSlg 19.955/2015. 57 VfSlg 19.865/2014.

78  Christoph Grabenwarter and Christine Pesendorfer the judgment of the Court of Justice in Commission v Austria.58 In the latter case on same-sex marriage, the Court, referring to the Court of Justice’s case-law on the scope of application, considered the applicable national provisions59 as being outside the scope of application of Union law, because they were not intended to implement provisions of EU law and did not fall within the Union’s competences. Because Union law did not impose any obligations on the Member States in the area concerned, the application was dismissed, regardless of the fact that the case concerned a cross-border situation.60 The Supreme Administrative Court in general supports a very open understanding of the scope of application of Union law.61 It held that Article 51 of the Charter must be understood in a broad sense and that the implementation of directives which have been transposed into domestic law constitutes without doubt a central aspect of Union law.62 According to its established case-law, the following cases are within the scope of application of Union law: 1. cases involving the implementation of directives, including their direct application in the case of non-implementation; 2. cases involving direct application of Union law (in particular regulations); 3. any cases with reference to Union law, in particular ‘cross-border situations’.63 The Supreme Court also seems to support a broad interpretation of Article 51(1) of the Charter. In a case dealing with the implementation of a directive on the internal market in electricity, it held that cases are always within the scope of application of the Charter: 1. when a measure falls within the scope of the TFEU, eg when a party can invoke the right of free movement or another fundamental freedom, or 2. when there is EU secondary legislation on the matter, even where the directive leaves a margin of discretion to the Member State. In addition (and in partial contradiction to the Constitutional Court), the Supreme Court held that in cases within the scope of application of the Charter, rights have to be examined exclusively in light of the Charter.64 However, in a later decision the Supreme Court, without any further elaboration, restricted itself to a general confirmation that the Charter applies and that the Member States are bound by the Charter when they apply secondary Union law, in particular EU regulations and directives.65 As for the application of the Charter beyond the scope of EU law, in particular in purely internal situations, no reference was found. For the time being there seem to be only academic considerations of whether to extend the application of the Charter to purely internal situations by interpretation of Articles 144 and 7 of the Austrian Federal Constitutional Act.66 In a similar way, the Constitutional Court had already extended the scope of application of

58 Case C-147/03 Commission v Austria EU:C:2005:427. 59 Art 13 of the Implementing Regulation to the National Marriage Act (German National Gazette dRGBl I S 654/1941) and Art 16(1) of the national Act on Conflict of Laws (Federal Law Gazette BGBl 1978/304). 60 For additional case-law of the Constitutional Court, cf Kieber and Klaushofer (n 32) 221–22. 61 See Hofbauer and Binder (n 4) 105. 62 VwSlg 8780 F/2013 (Verwaltungssammlung/VwSlg – Collection of the Austrian Administrative Court). 63 VwSlg 18.757 A/2013 with reference to VwGH 19 September 2013, 2013/15/0207. However, in the case of the same-sex marriage of the Dutch couple who wanted to repeat their marriage in Austria, the Supreme Administrative Court confirmed the findings of the Constitutional Court: VwGH 29 October 2014, 2013/01/0022. 64 OGH 4 March 2013, 8Ob7/13g, 2.3. 65 OGH 16 December 2014, 10 ObS 44/14i. 66 Holoubek and Oswald ‘Art 51’, in Holoubek and Lienbacher (n 36) para 46.

Austria: United in Consistent Interpretation  79 those rights enshrined in the Austrian Constitution which protect only Austrian citizens67 to EU citizens.68 The acceptance and the unconditional adoption of Court of Justice rulings on Article 51(1) of the Charter by the Constitutional Court and other Austrian courts demonstrates again the attempts by the different players in the Austrian fundamental rights landscape to achieve a ‘consistent’ or ‘harmonious interpretation’ of the Charter and other fundamental rights. C.  Reference to Other Charter Rights i.  Frequently Quoted Rights The right to an effective remedy and to a fair trial (Article 47) is the most frequently used Charter provision among Austrian courts of last instance. This is in line with the general trend in the EU.69 The Constitutional Court referred 56 times to Article 47, the Supreme Administrative Court 297 times and the Supreme Court 6 times.70 This phenomenon can easily be explained by the widened scope of application of Article 47 of the Charter in comparison to Article 6 ECHR, ie beyond civil rights and criminal proceedings,71 in particular asylum proceedings.72 Asylum cases represent a significant percentage of the workload of the two courts of last instance responsible for the legal review of administrative decisions (the Constitutional Court and the Supreme Administrative Court). Article 21 of the Charter has been referred to relatively often in requests for preliminary rulings, in particular by the Supreme Court and the Supreme Administrative Court in the context of the Employment Equality Directive and the Directive on Equal Treatment in Matters of Social Security. In a series of cases, the compatibility of national cut-off dates for pay scales, in particular for civil servants, with the prohibition of age discrimination, enshrined in Article 21 of the Charter, has been challenged before the Court of Justice.73 Articles 7 (Respect for private and family life), 8 (Protection of personal data), 15 (Freedom to choose an occupation and right to engage in work), 16 (Freedom to conduct a business) and 17 (Right to property) seem to play a significant role before the Constitutional Court, insofar as they are ‘similar in wording and purpose to rights that are guaranteed by the Austrian Federal Constitution’.74 Articles 1 (Human dignity), 4 (Prohibition of torture and inhuman or degrading treatment or punishment), 24 (The rights of the child), 37 (Environmental protection), 39 (Right to vote and to stand as a candidate at elections to the European Parliament), 40 (Right to vote and to stand as a candidate at municipal elections) and 49 (Principles of

67 eg Art 7 Federal Constitutional Act, or the fundamental rights enshrined in the Basic Law on the General Rights of Nationals in the Kingdoms and Länder represented in the Council of the Realm (StGG of 1867). 68 VfSlg 19.077/2010; VfSlg 19.118/2010; VfSlg 19.568/2011; further references in Holoubek and Oswald ‘Art 51’, in Holoubek and Lienbacher (n 36) para 46. 69 FRA, Fundamental Rights Report 2018 (n 4) 37. 70 Source: RIS, results as of 21 January 2019. Results might differ dependent on which search parameters/key words are used in a query. 71 VfSlg 19.632/2012, paras 55–56. 72 Hofbauer and Binder (n 4) 114. 73 OGH 26 February 2015, 8ObA11/15y; Case C-417/13 Starjakob EU:C:2015:38; OGH 24 September 2015, 9ObA20/15d, 9ObA165/16d; Case C-539/15 Bowman EU:C:2016:977; OGH 19 December 2016, 9ObA141/15y et al; Case C-24/17 Österreichischer Gewerkschaftsbund EU:C:2019:373; Case C-396/17 Leitner EU:C:2019:375; VwGH 16 September 2013, 2012/12/0051; Case C-529/13 Felber EU:C:2015:20; VwGH 16 September 2013, 2013/12/0076, et al. 74 VfSlg 19.632/2012, para 35.

80  Christoph Grabenwarter and Christine Pesendorfer legality and proportionality of criminal offences and penalties) were each referred to by the Constitutional Court in only one case. In addition, the general Charter provisions, such as Article 51 on the scope of application and Article 52 on the scope and interpretation of rights and principles, were frequently examined, in particular by the Constitutional Court and the Supreme Administrative Court.75 ii.  Rights and Principles Recognised by the Charter The difference between rights and principles recognised by the Charter is addressed by the Constitutional Court in its Charter decision. The Court observes that the Charter, as expressed in Article 51, contains ‘rights’ and ‘principles’, while it remains to be clarified in detail which provisions qualify as rights and which as principles, as well as what importance this differentiation has. The Court reserves its right to ‘decide on a case-by-case basis’ which of the Charter provisions contain ‘rights’ – comparable to those fundamental rights enshrined in the Austrian Constitution and thus containing a standard of constitutional review before the Court – and which provisions rather constitute (non-comparable) ‘principles’.76 Given the fact that ‘some of the individual guarantees afforded by the Charter totally differ in their normative structure, and some, such as Article 22 or Article 37, do not resemble constitutionally guaranteed rights but principles’, only those Charter provisions which are ‘similar in wording and purpose to rights that are guaranteed by the Austrian Federal Constitution’ were accepted by the Constitutional Court as a standard of constitutional review.77 Thus it seems that the Constitutional Court takes the fundamental rights enshrined in the Austrian Constitution, in particular the fundamental rights of the ECHR, as a yardstick for its qualification of the Charter provisions as ‘rights’ or ‘principles’. In the academic debate, the criteria for the distinction between ‘rights’ and ‘principles’ are controversial. The following criteria for the qualification of Charter provisions have been mentioned: the explanations relating to the Charter; the wording of the Charter provision; its level of specificity; its origin (either from EU law, international treaties or constitutional traditions common to the Member States); its meaning and purpose; whether the provision provides for an individual right as contained in the Treaties; and whether the provision is aimed at protection of, or rather a benefit to, the individual.78 However, the determining factor and test for qualification according to the Austrian legal tradition79 seems to be whether the Charter provision contains an individual right that can be directly invoked. Principles – on the contrary – create obligations for the Union or, within the scope of application of Union law, the Member States, and need to be implemented, but they never provide for directly applicable rights themselves.80 iii.  ‘Horizontal Direct Effect’ of Charter Provisions There are – for the time being – no final judgments on ‘horizontal direct effect’ of the Charter in Austria where the Charter was directly applied in a dispute between individuals. However, 75 Hofbauer and Binder (n 4) 113, Table 2. 76 VfSlg 19.632/2012, para 34; see Orator (n 5) 1436. 77 VfSlg 19.632/2012, para 35; Müller (n 5) 306. 78 See E Rumler-Korinek and E Vranes, ‘Art 52’ in Holoubek and Lienbacher (n 36) paras 53–54, with further references; HJ Cremer, ‘§1 Funktionen der Grundrechte’ in Ch Grabenwarter (ed), Europäischer Grundrechteschutz (Baden-Baden, Nomos, 2014) 39, paras 46–47. 79 Fundamental rights as subjektiv-öffentliche Rechte. 80 G Baumgartner, ‘Grundsätze und Grundrechte der Grundrechte-Charta’ in R Feik and R Winkler (eds), Festschrift für Walter Berka (Vienna, Jan Sramek Verlag, 2013) 6–7.

Austria: United in Consistent Interpretation  81 the Supreme Court submitted a request for a preliminary ruling to the Court of Justice in 2017, asking about the interpretation of Article 21 of the Charter in conjunction with provisions of the Employment Equality Directive in a dispute between an employee and an employer in the context of a private employment relationship. The Supreme Court wanted to know whether EU law is precluding a national rule according to which Good Friday is a holiday only for employees who are members of certain Christian churches. This rule only entitled those employees to get public holiday pay if they were required to work on Good Friday. In addition, the Supreme Court asked whether – in the case of a discriminatory legal situation – a private employer should be requested to grant the rights and entitlements in respect of Good Friday to all employees, or whether the national provision must be disapplied in its entirety. The Court of Justice decided in favour of horizontal direct effect of Article 21 of the Charter.81 As a consequence of the Court of Justice ruling, the legal privilege for the members of those Christian churches was abolished,82 essentially mooting the claim for public holiday pay before the referring court. Thus, the Charter provision was not directly applied between the parties. In addition, there are a number of cases dealing with the compatibility of provisions in collective agreements with the principle of non-discrimination. The Supreme Court submitted several requests for a preliminary ruling to the Court of Justice, concerning the compatibility of provisions in collective agreements not only with EC directives on non-discrimination but also with Charter rights, in particular Article 21.83 The Court of Justice did not base its findings on the Charter rights in either of its decisions but limited its answers to the compatibility with the directives at issue.84 However, it has been argued that the content of collective agreements pertains to the Member States and thus Charter rights are not directly applicable between individuals in the case of collective agreements.85 iv.  Reference to Article 52 of the Charter and the Principle of Proportionality Pursuant to Article 52(1) of the Charter, limitations to the rights set out in the Charter have to be provided for by law and respect the essence of these rights and freedoms and must not violate the principle of proportionality. These limitations reflect the actual state of fundamental rights protection in Europe.86 As has been explained earlier in detail (see section III.B.iii), for the majority of rights enshrined in the Charter there is a corresponding right in the Austrian Constitution. That is why the Austrian courts of last instance usually base their decisions (also) on national constitutional fundamental rights, in particular rights deriving from the ECHR. The Constitutional Court has already emphasised in its Charter decision that the Court bases its decision on the Austrian Constitution if a constitutionally guaranteed right has the same scope of application as a Charter right.87 Even in the case of implementation of Union law, the Constitutional Court decides on the basis of existing national fundamental rights, if Union law leaves

81 Case C-193/17 Cresco Investigation EU:C:2019:43. 82 Federal Law Gazette BGBl I 2019/22. 83 OGH 24 September 2015, 9ObA20/15d, 9ObA165/16d, on employment schemes; see also OGH 13 September 2012, 8ObA 76/14f et al on social benefits (child allowance) provided by the employer. 84 Case C-539/15 Bowman EU:C:2016:977; Case C-476/12 Österreichischer Gewerkschaftsbund EU:C:2014:2332. 85 Holoubek and Oswald, ‘Art 51’ in Holoubek and Lienbacher (n 36) para 59 fn 240, with reference to F Schorkopf, ‘§3 Grundrechtsverpflichtete’ in Grabenwarter (n 78) 137–38, para 31. 86 Rumler-Korinek and Vranes, ‘Art 52’ in Holoubek and Lienbacher (n 36) paras 10, 15 with further references. 87 VfSlg 19.632/2012, para 44; see s III.B.iii.

82  Christoph Grabenwarter and Christine Pesendorfer discretionary scope for implementation and if the domestic implementing provisions affect a national fundamental right, provided that the latter has the same scope of application as the Charter right.88 Austrian courts usually apply a proportionality test, which is based on the German model and defined by a four-step test, comprising the existence of a legitimate aim, suitability, necessity and appropriateness/proportionality in the stricter sense. Insofar as Austrian courts apply ECHR rights, they usually comply with the judgments of the ECtHR and refer directly to its court rulings. ECtHR rulings are quoted frequently. The Constitutional Court, in particular, often bases its decisions on the findings of the Strasbourg court when it has to assess the necessity of a provision or an administrative act in a democratic society. Although the proportionality tests applied by the Constitutional Court on the one hand and the ECtHR on the other are not identical, their decisions are usually based on coherent considerations.89 Other courts usually automatically ‘transfer’ the proportionality test used by the Strasbourg court, without referring explicitly to the details of the proportionality test used by the ECtHR. In the case of the national fundamental right on data protection, the Constitutional Court explicitly decided that a stricter proportionality test provided for in section I, paragraph 2 of the Data Protection Act had to be applied.90 This provision contains a legal reservation that defines the limits for interference with fundamental rights in a much narrower sense than Article 8(2) ECHR. It requires that the use of data which deserve special protection may be justified only in order to safeguard substantial public interests and that, at the same time, adequate safeguards protecting the confidentiality interest of the individual are legally set down. Finally, this provision explicitly prescribes that even in the case of permissible limitations, the interference with the fundamental right must be carried out in the ‘least intrusive and goal oriented manner’.91 However, in our view the formal criteria of different proportionality tests should not be overestimated.92 As described earlier, the Constitutional Court, with reference to Articles 52(3) and 53, opts for an ‘interpretation as consistently as possible’, as far as fundamental rights enshrined in national constitutions, international law conventions and the Charter are affected.93 This endeavour to achieve coherent fundamental rights protection equally includes ECHR and Charter rights.94 As has been mentioned earlier, Austria has a long tradition of ‘harmonious interpretation’ of different layers of constitutionally guaranteed rights – in any case since the ‘constitutionalisation’ of the ECHR in 1964. According to the ‘principle of conformity’ set out in Article 52(2) of the Charter, the rights recognised by the Charter for which provision is made in the Treaties ‘shall be exercised under the conditions and within the limits defined by those Treaties’. There are no pronouncements on Article 52(2) of the Charter in Austrian case-law.

88 VfSlg 19.892/2014, para 145; VfSlg 20.000/2015, paras 273–74; VfGH 14 March 2018, G 248/2017 et al, para 128. 89 Grabenwarter (n 78) 299–300. 90 VfSlg 19.892/2014, paras 147–48. 91 VfSlg 19.892/2014, para 148. 92 Compare the criticism in particular by German lawyers that the standards developed in German jurisprudence and academic writing have not been scrutinised, quoted by E Vranes, ‘The Final Clauses of the Charter of Fundamental Rights – Stumbling Blocks for the First and Second Convention’ (2003) 7 European Integration Online Papers, http://eiop.or.at/eiop/texte/2003-007a.htm >; and Rumler-Korinek and Vranes, ‘Art 52’ in Holoubek and Lienbacher (n 36) para 15. 93 VfSlg 19.632/2012, paras 45–46. 94 Grabenwarter (n 78) 298–299.

Austria: United in Consistent Interpretation  83 As for permissible limitations, two questions are discussed in academic writing.95 Firstly, the relevance of this clause for those fundamental rights which have been recognised as general principles of EU law by the Court of Justice; secondly, whether in the context of Article 52(2) of the Charter secondary law is also relevant and may restrict the scope of Charter rights. As for the first question, it has been deduced from the Charter’s central function of enhancing the visibility of fundamental rights that the ‘principle of conformity’ in Article 52(2) – unless the standard of protection granted by Union law is not reduced – is not applicable to those rights, insofar as the Charter contains more concrete definitions or deviations.96 The second question is controversial. One opinion considers that secondary law is not a possible and permissible limitation to Charter rights, because that would enable secondary law and its lawmaking bodies to influence the level of fundamental rights protection.97 On the other hand, a contextual analysis supports a possible function of secondary law in limiting the scope of Charter rights. The right of free movement, which is limited both by the TFEU and by secondary law, or the right to vote and to stand as a candidate at elections (Articles 39 and 40 of the Charter) and its parallel and complementary provisions, both in the TFEU and in secondary law, are given as examples of the possibility of secondary law limiting Charter rights.98 These examples also illustrate the complexity of the relationship between the Charter, the Treaties, the ECHR and national constitutions. However, Articles 52(3) and 53 of the Charter confirm the ECHR as a minimum standard of protection.99 V.  IMPACT OF THE CHARTER ON THE NATIONAL BRANCHES OF GOVERNMENT IN AUSTRIA

The Charter was actually considered a domestic ‘game changer’100 as between the three supreme judicial bodies in Austria. These three courts of last instance have been characterised as ‘equally ranking peer courts’.101 Their constitutionally defined functions can be described as follows. The Constitutional Court has exclusive competence for the general judicial review of national legal and implementing provisions.102 As the Court stressed in its Charter decision, the system of legal protection set out in the Federal Constitutional Act in general concentrates claims of violations of constitutionally guaranteed rights in one instance, ie the Constitutional Court, ‘which is also the only instance to adjudicate on such violations through general norms, ie statutory acts and regulations, and the only instance that has the competence to set aside such norms’.103 Apart from this central and exclusive constitutional jurisdiction, the Constitutional 95 For details, see Vranes (n 92): despite the fact that the final clauses of the Charter have been subject to some minor changes, this contribution is still relevant. See also Rumler-Korinek and Vranes, ‘Art 52’ in Holoubek and Lienbacher (n 36) paras 20–24. 96 S Griller, ‘Der Anwendungsbereich der Grundrechtscharta und das Verhältnis zu sonstigen Gemeinschaftsrechten, Rechten aus der EMRK und zu verfassungsgesetzlich gewährleisteten Rechten’ in A Duschanek and S Griller (eds), Grundrechte für Europa: Die Europäische Union nach Nizza (Vienna, Springer, 2002) 131–32, 145–46; for further references, see Rumler-Korinek and Vranes, ‘Art 52’ in Holoubek and Lienbacher (n 36) para 23. 97 See Vranes (n 92) 6. 98 Further references in Rumler-Korinek and Vranes, ‘Art 52’ in Holoubek and Lienbacher (n 36) para 24. 99 Vranes (n 92) 6. 100 Orator (n 5) 1431; see also Müller (n 5) 312–13. 101 Orator (n 5) 1431. 102 Art 140 Federal Constitutional Act: constitutional scrutiny of laws; Art 139 Federal Constitutional Act: legal scrutiny of regulations. 103 VfSlg 19.632/2012, para 33.

84  Christoph Grabenwarter and Christine Pesendorfer Court is also responsible for the constitutional review of administrative decisions. In fact, responsibility for the review of the legality of administrative decisions is shared between the Constitutional Court and the Supreme Administrative Court because, as a rule, a violation of fundamental rights is normally accompanied by a violation of ‘ordinary’ law, which must be invoked before the Supreme Administrative Court.104 However, legal matters pertaining to the competence of the Constitutional Court are excluded from the jurisdiction of the Supreme Administrative Court.105 In contrast, the Supreme Court is responsible for the review of civil and criminal law decisions, the legal and constitutional review of domestic provisions equally being explicitly excluded from its jurisdiction.106 In case of doubt about the constitutionality of a domestic provision, all ordinary courts, including the Supreme Court, have to refer the case to the Constitutional Court to repeal the contested provision.107 It has been explained earlier that the Charter was never incorporated into the Austrian legal order by assigning constitutional status to it. Against this background, the Constitutional Court – up to its landmark decision of 2012 – had consistently abstained from applying EU law as a standard for judicial review before the Court, because EU law in general would be tantamount to ordinary domestic law. Thus, the Constitutional Court had generally acknowledged the jurisdiction of the ordinary and administrative courts for judicial review with regard to compatibility with Union law.108 As a consequence, the Supreme Administrative Court in particular had already developed its own case-law on the Charter as early as in 2004 – even before the entry into force of the Charter as part of primary law – by directly referring to the Charter and emphasising its direct applicability.109 The Charter decision of 2012 triggered a debate among the Austrian courts of last instance on their authority to exercise a fundamental rights review in light of the Charter and on their relationship with each other.110 After the Constitutional Court had partly ‘constitutionalised’ the Charter and thus – with reference to the structure of the domestic system of fundamental rights protection under the Austrian Constitution as centralised constitutional review – had claimed a privileged role in the adjudication of the Charter,111 the Supreme Court challenged the Constitutional Court by making a request for a preliminary ruling to the Court of Justice.112 The Supreme Court wanted to know whether the principle of equivalence (which was used as a decisive element by the Constitutional Court in its Charter decision) required ordinary courts ‘to request the

104 Art 133 Federal Constitutional Act. 105 Art 133(5) Federal Constitutional Act; Müller (n 5) 313. 106 Art 89(1) Federal Constitutional Act. 107 Art 89(2) Federal Constitutional Act. 108 VfSlg 14.886/1997, VfSlg 15.215/1998. 109 eg in relation to Art 6: VwGH 15 December 2003, 99/03/0423; VwGH 20 July 2004, 2003/03/0103; VwGH 24 June 2009, 2007/05/0101; VwGH 8 October 2010, 2007/04/0134, etc; in relation to the principle of equality, VwGH 29 January 2004, 99/17/0135. See also M Handstanger, ‘Schutz der Unionsgrundrechte am Beispiel des VwGH’ (2014) 69 Zeitschrift für öffentliches Recht 39, 48–49; M Holoubek, ‘Europäischer und nationaler Grundrechtsschutz’ in S Griller et al (eds), Wirtschaftsverfassung und Binnenmarkt – Festschrift für Heinz-Peter Rill zum 70 Geburtstag (Vienna, Springer, 2010) 261. See further VwGH 5 April 2002, 2002/18/0019; VwGH 26 June 2003, 2001/18/0191; VwGH 30 November 2004, 2002/18/0019; VwGH 23 November 2005, 2004/09/0150; VwGH 22 February 2007, 2002/14/0013; VwGH 26 June 2003, 2001/18/0191. 110 Hofbauer and Binder (n 4) 111; Müller (n 5) 312: ‘Promoting a Rivalry or even a Battle of Courts?’. 111 See Müller (n 5) 312. 112 OGH 17 December 2012, 9 Ob 15/12i.

Austria: United in Consistent Interpretation  85 Constitutional Court to strike down the legislation generally and (could not) simply refrain from applying that legislation in the particular case concerned’.113 By insinuating that, in cases of an incompatibility of domestic law with the Charter, ordinary courts might be obliged under Article 89(2) of the Federal Constitutional Act to turn first to the Constitutional Court for formal annulment of that domestic law and would be unable to refrain from applying a statute that is contrary to the Charter of their own motion or to make a reference for a preliminary ruling to the Court of Justice, the Supreme Court tried to outplay the Constitutional Court via the Court of Justice.114 However, the Court of Justice avoided directly commenting on the Constitutional Court’s interpretation of the principle of equivalence115 but rather pointed to the Melki criteria: with reference to the Constitutional Court’s explicit acceptance of the Court of Justice’s case-law on the relationship between Union law and domestic (constitutional) law (in particular the quotation of paragraph 57 of the Court of Justice’s decisions in C-188/10 and C-189/10, Melki and Abdeli116), the Court of Justice confirmed that EU law does not preclude an interim procedure as provided for in Article 89(2) of the Federal Constitutional Act as long as (inter alia) ordinary courts remain free to make a reference to the Court of Justice at whatever stage of the proceedings they consider appropriate in the interlocutory procedure for the review of constitutionality, and to disapply a national legislative provision if they consider it contrary to EU law.117 In addition, the Court of Justice required the referring Supreme Court to ascertain whether national legislation such as Article 89(2) of the Federal Constitutional Act could be interpreted in such a way as to comply with those requirements of EU law. In a later case118 the Supreme Court approached the same question from another angle and – again with regard to the principle of equivalence – asked for the comparability of the fundamental rights review under the ECtHR system on the one hand and the EU review system on the other hand. This time, in fact, the Court of Justice engaged with the issue of equivalence and concluded that these types of procedures cannot be regarded as equivalent. It should be mentioned that the Charter decision of the Constitutional Court was also criticised because of its judicial activism, allegedly bypassing the legislative procedure providing for the enactment of constitutional law in the Austrian Federal Constitutional Act, and thus shifting the balance from the political to the judicial branch.119 However, the aim of the Charter decision of the Constitutional Court was not the empowerment of the Constitutional Court within the national judicial structure. On the contrary, in academic writing it was described as a ‘rearguard action’ of the Constitutional Court vis-a-vis the other Supreme Courts120 in order to defend the central role and expertise in fundamental rights protection attributed to it by the Austrian Federal Constitutional Act.121 The Charter decision can be interpreted as a selfconfident effort of the Constitutional Court to maintain and defend the existing division of competences as provided for in the Austrian Constitution – against both the Court of Justice

113 As quoted in Court of Justice Case C-112/13 A v B and Others EU:C:2014:2195, para 27; see Hofbauer and Binder (n 4) 111. 114 Müller (n 5) 313–14. 115 Orator (n 5) 1441. 116 Joined Cases C-188/10 and C-189/10 Melki and Abdeli EU:C:2010:363. 117 A v B and Others (n 113) para 46. 118 Case C-234/17 XC and Others EU:C:2018:853. 119 Müller (n 5) 311–12. 120 Orator (n 5) 1433, 1442–43, 1447. 121 Müller (n 5) 319; Orator (n 5) 1442–43, see in particular VfSlg 19.632/2012, para 33.

86  Christoph Grabenwarter and Christine Pesendorfer and the other Austrian courts of last instance – for the sake of the best fundamental rights protection possible.122 VI.  FINAL REMARKS

In addition to the judicial branch, the status and the role of the Charter are also broadly accepted by legal scholarship in Austria. This can be explained by the long tradition of a ‘multilayered fundamental rights protection’ in Austria. In particular, active and growing participation by legal scholars in the reception of Charter rights into the framework of fundamental rights protection can be observed. As for the reception of Charter principles, there is a reluctant approach insofar as these principles require positive action by the state in order to provide social benefits. ‘Social rights’ are rather alien to the Austrian fundamental rights catalogue. There was already a long academic discussion on the implementation of the European Social Charter of the Council of Europe in the Austrian Constitution in the 1960/1970s, which decided against admitting those guarantees into the Austrian fundamental rights catalogue. In the context of the Supreme Court’s request for a preliminary ruling on Good Friday in C-193/17 Cresco Investigation, the question of horizontal direct effect of Charter rights was scholarly discussed. Most of the contributions referred to the arguments of Advocate General Bobek in this case.123 Apart from dogmatic questions it was argued that widening the judicial lawmaking possibilities in the context of fundamental rights would undermine the legislator’s role and possibilities to further define the content of a such a right, thus interfering with the separation of powers.124 Most of the controversies in legal scholarship dealt with the landmark decision VfSlg 19.632/2012.125 Some legal scholars criticised the decision, in particular with regard to its argumentation.126 The Supreme Court openly questioned the case-law of the Constitutional Court in its reference to the Court of Justice under Article 267 TFEU.127 However, the Court of Justice, in its decision in C-112/13 A, did not entertain any doubts as to whether the prominent use of the Charter in domestic Austrian law would be in line with EU law.128 Today, seven years after the landmark decision, the status of the Charter as equivalent to constitutional rights is no longer disputed.129

122 Grabenwarter (n 78) 304. 123 Opinion of Advocate General Bobek in Case C-193/17 Cresco Investigation EU:C:2018:614. 124 M Fornasier, ‘Gleichbehandlung, konfessionelles Arbeitsrecht und horizontale Wirkung der Unionsgrundrechte’ (2019) European Union Private Law Review 141, 146–47; for critical remarks on horizontal direct effect of Charter rights, see also A Piekenbrock (2019) European Union Private Law Review 93; and M Kopetzki, ecolex 2019 97. 125 See above, section III.B.ii. 126 For an overview, see Öhlinger and Potacs (n 18) 186. 127 OGH 17 December 2012, 9 Ob 15/12i. 128 A v B and Others (n 113) in particular para 46. 129 A Balthasar, ‘Sechs Jahre Charta-Erkenntnis – was bleibt?’ (2018) Journal für Rechtspolitik 191, in particular 192–93, 218–19.

4 Belgium: The EU Charter in a Tradition of Openness SARAH LAMBRECHT

I. INTRODUCTION

B

elgium has a deeply ingrained tradition of openness towards international and European law. This tradition of openness extends to the Charter of Fundamental Rights of the European Union (‘the Charter’). All three supreme courts of Belgium – the Cour constitutionnelle1 (Constitutional Court), the Cour de cassation2 (Court of Cassation) and the Conseil d’État (Council of State) with its section de législation3 (Legislative Section) and section du contentieux administratif4 (Administrative Litigation Section) – refer to the Charter. They also make use of the preliminary reference procedure, where relevant invoking the Charter. The impact of the Charter does vary significantly amongst the three supreme courts. Whereas it has become rather prominent in the case-law of the Constitutional Court and, with respect to certain domains, in the case-law and the advisory opinions of the Council of State, the Charter is almost entirely absent from the case-law of the Court of Cassation. Furthermore, the impact of the Charter, with its limited field of application, remains eclipsed by that of the ECHR. Despite these limitations, the influence of such a young legal document on the Belgian legal order is quite remarkable. Prior to the entry into force of the Lisbon Treaty, the Charter already had some traction in the case law of the Constitutional Court and the advisory opinions of the Council of State (section II.A). Since December 2009, the Charter can be invoked as EU primary law before the national courts, either directly or indirectly (section II.B). The Belgian supreme courts only apply the Charter within its field of application, embracing the interpretation of Article 51(1) 1 The Constitutional Court – originally called the Cour d’arbitrage (Court of Arbitration) – was formally established in 1984 as a consequence of the federalisation process. It has the power to review federal and subnational Acts of Parliament against rules that allocate powers between the federal authorities, the Communities and the Regions, and against fundamental rights enshrined in the Constitution. 2 The Court of Cassation is the supreme court in civil and criminal cases. It is tasked with reviewing the legality of judicial decisions and guarantees the unity of case-law, as well as its evolution. 3 As an independent judicial advisory body, the primary purpose of the Legislative Section is to improve the quality of legislation and to ensure that superior norms, including the Constitution and European and international law, are not breached. 4 The most important competence of the Administrative Litigation Section is its power to suspend and to annul administrative acts, both individual and statutory, that are contrary to the legal rules in force. It also operates as a cassation court, reviewing the legality of decisions of administrative jurisdictions.

88  Sarah Lambrecht of the Charter by the Court of Justice. An exception is the Legislative Section of the Council of State, which also occasionally refers to the Charter outside its field of application (section III.A). The Charter has been invoked hundreds of times before the Belgian supreme courts, but there is substantial variation in the number of citations. A great array of Charter rights are invoked, with a prominent place for the right to an effective remedy and to a fair trial (section III.B). The Belgian supreme courts do not hesitate to request preliminary rulings of the Court of Justice, in which the Charter is starting to become a common feature (section III.C). A delicate point remains the conciliation of the principle of the broadest rights protection with the primacy, unity and effectiveness of EU law. Up until now, this has not caused any notable difficulties (section III.D). Overall, the Charter is becoming increasingly embedded in the Belgian legal order (section IV). II.  STATUS OF THE CHARTER IN THE BELGIAN LEGAL ORDER

A.  Status Prior to the Entry into Force of the Lisbon Treaty Prior to gaining status as EU primary law, the legal effect of the Charter was limited in Belgium. The Charter did not feature in the case-law of the Court of Cassation before the entry into force of the Lisbon Treaty.5 Certain lawyers did, however, try to push for the Charter to be already taken into account by the Council of State and the Constitutional Court. This yielded only partial success. Inspired by the case-law of the Court of Justice, the Constitutional Court proved willing to take account of the Charter under certain conditions.6 In principle, grounds for annulment based on a violation of constitutional provisions read in conjunction with Charter provisions were held inadmissible.7 The Constitutional Court nonetheless confirmed that it could take into consideration the Charter in its review, ‘in so far as the Charter confirms the existence of communal values of the European Union that are essentially also included in the provisions of the Constitution’.8 Moreover, the Constitutional Court implemented the case-law of the Court of Justice that took account of the Charter.9 The Administrative Litigation Section of the Council of State took a different approach. From 2007 onwards, lawyers in asylum and migration cases repeatedly invoked Article 47 of the Charter and, to a lesser extent, Article 41 of the Charter.10 On every occasion, the Council of State declared these grounds inadmissible on the basis that the Charter had no binding legal 5 The earliest reference was in Cass 8 September 2010, P.10.1485.F (Art 48(1); execution of EAW). 6 W Verrijdt, ‘Het Grondwettelijk Hof en het Unierecht: over constitutioneel pluralisme en rechterlijke dialoog [The Constitutional Court and Union Law: On Constitutional Pluralism and Judicial Dialogue]’ in I Samoy et al (eds), Invloed van het Europese recht op het Belgische privaatrecht [Influence of European Law on Belgian Private Law] (Cambridge, Intersentia, 2012) 59–60, referencing Case T-177/01 Jégo-Quéré v Commission EU:T:2002:112, para 42; Case C-540/03 Parliament v Council EU:C:2006:429, paras 38 and 58; Case C-341/05 Laval un Partneri EU:C:2007:809, paras 90–91. 7 CC 10 July 2008, no 101/2008, B.21.4; CC 19 March 2009, no 58/2009, B.15 (on Flemish decree assenting to the Lisbon Treaty). 8 CC 23 January 2008, no 10/2008, B.2.2 (English translation by the author). Similarly, CC 23 November 2005, no 167/2005, B.18.3; CC 10 July 2008, no 101/2008, B.21.4; CC 12 February 2009, 17/2009, B.64.2 and B.102.4. 9 CC 7 June 2007, no 81/2007, B.9.2; CC 30 October 2008, no 140/2008, B.9.2. In both cases the Constitutional Court had to rule on the proportionality of the severity of penalties for breaching excise duty legislation, which implemented EU law. It held that the Member States had to exercise their competences with due regard for EU law and its general principles and, consequently, with due regard for the principle of proportionality, as mentioned notably in Art 49(3) of the Charter, referencing Case C-303/05 Advocaten voor de Wereld vzw v Ministerraad EU:C:2007:261, paras 45–46. 10 During this period the Charter was invoked in 66 cases before the 14th Chamber (Dutch-speaking) and once before the 11th Chamber (French-speaking), which deal with migration and asylum cases.

Belgium: The EU Charter in a Tradition of Openness  89 force.11 In a few other cases, applicants made reference to Charter provisions without them being addressed by the Council of State.12 Conversely, the Legislative Section of the Council of State started citing the Charter from its solemn proclamation by the European Parliament, the Council and the Commission on 7 December 2000.13 As the Legislative Section is tasked with providing preliminary advisory opinions on draft legislation, the lack of binding legal force of the Charter was not considered an obstacle.14 The Legislative Section of the Council of State primarily wished to inform the legislature of the Charter’s scope of protection,15 especially when it is distinct from that of the ECHR.16 It also confirmed that the Charter constituted a source of inspiration in the determination of the general principles of EU law17 and explicitly aligned itself with the approach taken by the Constitutional Court.18 B.  Status Since the Entry into Force of the Lisbon Treaty Since the entry into force of the Lisbon Treaty on 1 December 2009, the Charter has the same legal status as EU primary law in the Belgian legal order.19 In practice, the Charter is nearly always invoked alongside the corresponding provisions of the ECHR or other international

11 See, amongst many others, CE (14) 15 May 2008, no 182963; CE (14) 30 October 2008, no 187504; CE (14) 6 May 2009, no 193074; CE (14) 18 September 2009, no 196178; CE (14) 23 November 2009, no 198116. The Council added in certain judgments that the Charter was merely a political declaration without direct effect in the internal legal order, see CE (14) 27 June 2008, no 184888; CE (14) 14 July 2009, no 195241. In multiple cases, the applicants made reference to Parliament v Council (n 6). In response, the Council of State held that the Court of Justice had explicitly stated in this judgment that ‘the Charter is not a legally binding instrument’. 12 CE (6) 3 January 2007, no 167371 (Arts 40 and 47); CE (13) 18 June 2007, no 172359 (Art 37); CE (6) 28 October 2009, no 197433 (Arts 15 and 16). 13 A divergence in practice between the Chambers can, however, be detected. Prior to the entry into force of the Lisbon Treaty, the Legislative Section referred to the Charter in 40 opinions with great variety between the Chambers: 1 opinion of the 1st Chamber (Dutch-speaking), 15 opinions of the 2nd Chamber (French-speaking), none of the 3rd Chamber (Dutch-speaking), 8 opinions of the 4th Chamber (French-speaking) and 16 opinions of the general assembly (bilingual). Since the entry into force of the Lisbon Treaty, all Chambers refer to the Charter. 14 In fact, the Council of State explicitly confirmed its lack of binding legal force, see CE 19 February 2003, Opinion no 34628/2, fn 6; CE 4 July 2006, Opinion no 40516/AG, para 23; CE 11 July 2006, Opinions nos 40689/AG, 40690/AG and 40691/AG, para 23; CE 20 May 2008, Opinion no 44382/AG, fn 13. 15 CE 19 November 2002, Opinion no 33962/2, fn 22 (Art 8; draft legislation introducing a new procedure for granting access to the national register); CE 19 February 2003, Opinion no 34628/2 (Arts 14 and 21; draft legislation restricting access to veterinary studies); CE 24 January 2007, Opinion no 42034/2 and CE 26 February 2007, Opinion no 42243/2 (Art 8, reference to ‘habeas data’; draft legislation on data processing by fiscal authorities and on introducing a register of non-merchant employment); CE 23 May 2007, Opinion no 42628/2 (Art 50; draft legislation assenting to the European Convention on the International Validity of Criminal Judgments); CE 2 June 2008, Opinion no 44203/2, fn 19 (Art 1; draft legislation on the obligation for court proceedings concerning certain family law matters to take place behind closed doors). 16 CE 20 September 2005, Opinions nos 38817/AG, 38818/AG, 38841/AG and 38906/AG, fn 186 (Art 9; draft legislation on social parenthood and adoption by same-sex couples); CE 24 October 2007, Opinion no 43646/2, para 3.2.2 (Arts 15 and 29; draft legislation on the obligation for recruitment agencies to acquire prior authorisation); CE 20 May 2008, Opinion no 44382/AG, para 6 (Art 47; draft legislation on the imposition on the Council of State of binding time-limits in certain proceedings). 17 CE 23 May 2007, Opinion no 42628/2, fn 55 and CE 20 May 2008, Opinion no 44382/AG, fn 13, referring to Joined Cases T-219/02 and T-337/02 Lutz Herrera v Commission EU:T:2004:318, paras 87–88. The latter Opinion also refers to Case C-438/05 The International Transport Workers’ Federation and The Finnish Seamen’s Union EU:C:2007:772, paras 43–44; Laval un Partneri (n 6) para 91; Case C-450/06 Varec EU:C:2008:91, para 48. 18 CE 20 November 2007, Opinion no 43509/VR/4 on the proportionality of the severity of penalties for infractions in environmental matters, citing CC 7 June 2007, no 81/2007, B.9.2 (see above n 9). 19 The Legislative Section of the Council of State concluded that this posed no constitutional objections. See, inter alia, CE 29 January 2008, Opinion no 43989/AG, paras 12–14 on the draft legislation assenting to the Treaty of

90  Sarah Lambrecht human rights treaties, as well as the Constitution. In this light, it is important to note that the Belgian legal system combines diffuse and centralised rights review.20 In the 1971 Franco Suisse Le Ski judgment, the Court of Cassation overturned its classic dualist approach to international law. The Court of Cassation held in this landmark judgment that a judge has the duty to set aside the application of provisions of domestic law that are contrary to a treaty provision which produces direct effects in the internal legal order, deriving this primacy ‘from the very nature of treaty-based international law’.21 The primacy of EU law, as well as the power of courts to enforce this primacy, is thus embedded in a broader theory of the primacy of international law over domestic law. As the case itself concerned Community law, the Court of Cassation did emphasise the specificity of Community law, echoing in its wording the Van Gend en Loos22 and Costa v ENEL23 decisions of the Court of Justice.24 The Court of Cassation later clarified that this primacy is a general principle of law, which means that its breach can be invoked as grounds for cassation.25 The Council of State also adopted the doctrine.26 Ordinary and administrative courts must therefore disapply national norms that are contrary to self-executing international and European law, including the Charter within its field of application. The Court of Cassation has not yet developed much case-law on the Charter’s justiciability, nor on the difference between rights and principles recognised in the Charter. Usually, the provisions of the Charter are applied without discussing their direct effect.27 An exception is an early judgment of the Court of Cassation in which it held, in a case concerning parentage, that Articles 3, 24(2) and 24(3) of the Charter were as such not sufficiently precise and complete to have direct effect, as they leave several possibilities to the state to meet the requirements of the child’s best interest. Consequently, the Court of Cassation deemed they cannot create subjective rights and obligations for individuals.28 Such an approach is problematic, since it limits the justiciability of the Charter without

Lisbon; CE 3 March 2009, Opinion no 45905/AG, para 10 on the draft legislation introducing the so-called priority rule explained below. 20 Ambiguity remains as to the precise relation of EU primary law with the Belgian Constitution, and its legal basis. For more details on the diverging case-law of the Belgian supreme courts, see, amongst many others, E Slautsky, ‘De la hiérarchie entre Constitution et droit international’ [2009] Administration publique (Trimestriel) 227; P Popelier, ‘Report on Belgium’ in G Martinico and O Pollicino (eds), The National Judicial Treatment of the ECHR and EU Laws: A Comparative Constitutional Perspective (Amsterdam, Europa Law Publishing, 2010) 81–99; Y Lejeune, ‘Les rapports normatifs entre la Constitution belge et le droit international ou européen dans l’ordre interne: à l’aune des relations entre ordres juridiques primaires’ [2012] Revue belge de droit international 372; A Alen and W Verrijdt, ‘La relation entre la Constitution belge et le droit international et européen’ in I Riassetto et al (eds), Liber amicorum Rusen Ergeç (Luxembourg, Pasicrisie luxembourgeoise, 2017) 31–54; A Alen, S Lambrecht and W Verrijdt, ‘Dialogue entre juges constitutionnels européens: Belgique’ in B Bonnet (ed), Traité des rapports entre orders juridiques (Paris, LGDJ, 2018) 1395–99; W Verrijdt, ‘Belgium’ in S Griller et al (eds), Member States’ Constitutions and EU Integration (Oxford, Hart, 2020, forthcoming). 21 Cass 27 May 1971, Franco Suisse Le Ski, Pas 1971, I, 886 (English translation by the author). See similarly, Cass 9 November 2004, P.04.0849.N; Cass 16 November 2004, P.04.0644.N; Cass 4 April 2008, F.06.0100.F. 22 Case 26/62 van Gend en Loos EU:C:1963:1. 23 Case 6/64 Costa v ENEL EU:C:1964:66. 24 M Claes, The National Courts’ Mandate in the European Constitution (Oxford, Hart, 2006) 199–204. 25 Cass 5 December 1994, S.94.0033.N. 26 CE 26 June 1985, no 25520; CE 17 February 1989, no 32026. 27 The Council of State does not systematically examine in its case-law whether an invoked provision of EU primary law has direct effect and appears to have largely abandoned this requirement in the framework of its contentieux objectif: see N Cariat, ‘La Charte des droits fondamentaux de l’Union européenne et les juridictions belges: Quelques balises pour une application prometteuse’ [2010] Journal des tribunaux 105, 107; K Wauters and A Percy, ‘De Raad van State als EU-rechter [The Council of State as EU Judge]’ in N Cariat and J Nowak (eds), Le droit de l’Union européenne et le juge belge (Brussels, Bruylant, 2015) 234–36. 28 Cass 2 March 2012, C.10.0685.F. In fact, it would have sufficed for the Court of Cassation to state that the issue at hand did not concern the implementation of EU law, as it confirmed further in the judgment.

Belgium: The EU Charter in a Tradition of Openness  91 providing much justification.29 As this judgment stands alone, it remains to be seen how the Court of Cassation will approach the issue in future cases. The inviolability of parliamentary legislation with respect to the Constitution was only lifted with the creation of a Constitutional Court, installed in 1984 in light of the federalisation process. Its initial competences were limited to supervising the division of powers between the federation and the federated entities, hence its original name Cour d’arbitrage (Court of Arbitration). The Constitutional Court could be accessed through an action for annulment by institutional parties or a request for a preliminary ruling by courts. In 1989, every person with a justifiable interest was granted access to the Constitutional Court. Furthermore, the Constitutional Court was given the power to review the compatibility of parliamentary legislation with the principle of equality and non-discrimination (Articles 10 and 11 of the Constitution) and the rights and freedoms on education (Article 24 of the Constitution). This extension of its scope of review would prove crucial for the integration of international and European law in the case-law of the Constitutional Court. According to the Constitutional Court, the constitutional principle of equality and non-discrimination prohibits every discrimination, irrespective of its origin.30 This leads the Constitutional Court to read the constitutional principle of equality and non-discrimination in combination with the rights and freedoms guaranteed in the Constitution, binding international and European law,31 unwritten principles of law and other constitutional clauses. In 2003, the Constitutional Court’s scope of review was further expanded to include the provisions of Title II of the Constitution on ‘The Belgians and their rights’, as well as the principle of legality and equality in fiscal cases and the protection of foreigners. Again, the Constitutional Court embraced an important rule of interpretation. If a constitutional right has a scope analogous, even if only partly, to that of a binding treaty provision, the Constitutional Court considers that the guarantees provided by the constitutional and treaty provisions form an inextricable whole. Hence, constitutional rights are read together with their international counterparts, and constitutional and international guarantees are cumulated to ensure the broadest protection to individuals.32 Even though the Constitutional Court’s jurisdiction is limited to rules on the division of powers between the federation and the federated entities and fundamental rights enshrined in the Constitution, these rules of interpretation enable it to indirectly review the compliance of parliamentary legislation with international and European law and integrate the case-law of the ECtHR and the Court of Justice.33 Through the application of both rules of interpretation, the Constitutional Court verifies, albeit indirectly, whether parliamentary legislation is in conformity with the rights and freedoms recognised by the Charter. 29 Critically A Bailleux, ‘La Charte des droits fondamentaux de l’Union européenne et son application “sectorielle”’ in S Van Drooghenbroeck (ed), Le droit international et européen des droits de l’homme devant le juge national (Brussels, Larcier, 2014) 39. 30 See, amongst many others, CC 13 October 1989, no 23/89, B.1.2; CC 2 February 2000, no 13/2000, B.4.2; CC 6 October 2004, no 157/2004, B.10. 31 These provisions do not need to be self-executing, as the Constitutional Court undertakes an abstract review of the constitutionality of parliamentary legislation (see eg CC 22 July 2003, no 106/2003, B.2; CC 19 July 2004, no 92/2004, B.5). Prior to 2003, the Belgian Constitutional Court did, however, require that these provisions were self-executing (see eg CC 23 May 1990, no 18/90, B.11.3; CC 27 March 1996, no 24/96, B.4.2; CC 23 April 2002, no 76/2002, B.2.2). 32 eg CC 22 July 2004, no 136/2004, B.5. 33 See, amongst many others, M-F Rigaux and B Renauld, La Cour constitutionnelle (Brussels, Bruylant 2008) 78, 93–94; P Popelier, ‘The Supremacy Dilemma: The Belgian Constitutional Court Caught Between the European Court of Human Rights and the European Court of Justice’ in P Popelier et al (eds), Human Rights Protection in the European Legal Order: The Interaction between the European and the National Courts (Cambridge, Intersentia, 2011) 154–56;

92  Sarah Lambrecht To facilitate the coexistence of diffuse and centralised rights review and alleviate tensions between the supreme courts, a priority rule was introduced in 2009.34 According to this priority rule, courts are in principle obliged first to submit a preliminary question to the Constitutional Court when an Act of Parliament is claimed to violate a fundamental right that is protected in part or in full both by a provision in Title II of the Constitution and by a provision of European or international law. If only a provision of European or international law is invoked, the court has to verify, even ex officio, whether Title II of the Constitution does not contain a partly or fully equivalent provision. Following the Melki and Abdeli judgment,35 it was added in 2014 that these obligations do not affect the possibility for the court to also submit a preliminary question to the Court of Justice, either simultaneously or at a later date.36 Courts will have to take this priority rule into consideration when applying the Charter.37 III.  APPLICATION OF THE CHARTER IN THE BELGIAN LEGAL ORDER

A.  Limited Field of Application The Charter is regularly invoked before the Belgian supreme courts and applied by them, although its impact remains eclipsed by that of the ECHR. To a large extent, this can be explained by the Charter’s limited field of application at the national level. As stipulated in Article 51(1), the provisions of the Charter are addressed to the Member States only when they are implementing EU law. In order for parties to successfully invoke the Charter, they have to demonstrate that their case falls within the Charter’s field of application. The Belgian supreme courts have faithfully integrated the case-law of the Court of Justice on this issue. The Court of Cassation only accepts grounds for cassation based on a violation of the Charter if the case at hand concerns the implementation of EU law and refuses to apply the M Verdussen, Justice constitutionnelle (Brussels, Larcier 2012) 121–38; S Lambrecht, ‘The Attitude of Four Supreme Courts Towards the European Court of Human Rights: Strasbourg Has Spoken …’ in S Besson and A Ziegler (eds), The Judge in European and International Law (Zurich, Schulthess, 2013) 312; A Alen, J Spreutels, E Peremans and W Verrijdt, ‘La coopération entre les cours constitutionnelles en Europe: Rapport de la Cour Constitutionnelle de Belgique’ (16th Conference of European Constitutional Courts, Vienna, 12–14 May 2014) www.const-court.be/public/ stet/f/stet-2014-002f.pdf, accessed 1 June 2019, 2–11; G Rosoux, Vers une “dématérialisation” des droits fondamentaux? Convergence des droits fondamentaux dans une protection fragmentée, à la lumière du raisonnement du juge constitutionnel belge (Brussels, Bruylant 2015) 39–183. 34 Art 26(4) of the Special Act of 6 January 1989 on the Constitutional Court, as amended by Art 2 of the Special Act of 12 July 2009. See also CE 3 March 2009, Opinion no 45905/AG, paras 5–12 on its compatibility with the primacy of EU law. This priority rule was proposed at a symposium of the three supreme courts in 2005. For the report of the working group and its recommendations, see J Velaers, ‘Le contrôle des lois, décrets et ordonnances au regard du titre II de la Constitution et des conventions internationales relatives aux droits de l’homme, en cas de concours de droits fondamentaux’ in A Arts et al (eds), Les rapports entre la Cour d’arbitrage, le Pouvoir judiciaire et le Conseil d’Etat (Brussels, La Charte, 2006) 125–49. 35 Joined Cases C-188/10 and C-189/10 Melki and Abdeli EU:C:2010:363. See M Bossuyt and W Verrijdt, ‘The Full Effect of EU Law and of Constitutional Review in Belgium and France after the Melki Judgment’ (2011) 7 European Constitutional Law Review 355; J Velaers, ‘The Protection of Fundamental Rights by the Belgian Constitutional Court and the Melki–Abdeli judgment of the European Court of Justice’ in M Claes et al (eds), Constitutional Conversations in Europe: Actors, Topics and Procedures (Cambridge, Intersentia 2012) 323–42. 36 Art 26(4) of the Special Act of 6 January 1989 on the Constitutional Court, as amended by Art 8 of the Special Act of 4 April 2014. 37 eg the Antwerp Commercial Court referred questions simultaneously to the Constitutional Court and the Court of Justice concerning the mandatory closing day. The Constitutional Court followed suit (CC 18 October 2012, no 119/2012; CC 9 October 2014, no 142/2014). The Court of Justice held that the issue did not come within the scope of EU law (Order in Case C-559/11 Pelckmans Turnhout EU:C:2012:615; and judgment in C-483/12 Pelckmans Turnhout EU:C:2014:304).

Belgium: The EU Charter in a Tradition of Openness  93 Charter outside its scope of application.38 Although no reference is made to the case-law of the Court of Justice on Article 51(1) – in line with the traditional laconic style of reasoning and economic use of citations – the Court of Cassation clearly embraces its interpretation.39 The Administrative Litigation Section of the Council of State also requires applicants to demonstrate that a case falls within the Charter’s field of application.40 The Council of State will therefore reformulate a preliminary question to the Constitutional Court if the Charter is invoked outside its field of application.41 Similarly, the Council of State refused to apply Article 24(2) of the Charter, guaranteeing the child’s best-interest standard, when the applicants failed to prove that the contested decision to end the guardianship for unaccompanied minors based on medical evidence that they were not minors concerned the implementation of EU law.42 This line of case-law is generally followed by the ordinary and administrative courts,43 although there appears to be some confusion as to the Charter’s limited field of application.44 Certain courts, including the Constitutional Court, have even referred preliminary questions to the Court of Justice invoking the Charter, despite the cases at hand having no connection to EU law.45 In the same vein, the Constitutional Court verifies whether the Charter is applicable, albeit not always explicitly. In its judgment on the law introducing a ban on face covering (also dubbed the ‘burqa ban’), the Constitutional Court considered the grounds for annulment inadmissible in so far as they relied on the Charter.46 It came to a similar conclusion in its judgment on the use of videoconferences for court hearings of persons detained on remand.47 The Constitutional Court has explicitly embraced the Court of Justice’s interpretation of Article 51(1) – applying the Charter for example in a VAT case48 and in a case on data mining and matching to combat social security fraud.49 The practice of the Legislative Section of the Council of State must be distinguished. Aware of the Charter’s limited field of application, it usually invokes the Charter in opinions on draft

38 Cass 2 March 2012, C.10.0685.F; Cass 3 October 2012, P.12.0709.F; Cass 1 April 2014, P.13.1957.N; Cass 10 June 2014, P.14.0280.N; Cass 15 October 2014, P.14.1399.F; Cass 9 December 2015, P.15.1497.F; Cass 23 December 2015, P.15.1596.F; Cass 16 March 2016, P.16.0281.F; Cass 27 September 2016, P.15.0852.N; Cass 28 February 2017, P.16.0261.N; Cass 21 November 2017, P.15.0109.N; Cass 27 March 2018, P.17.1061.N. 39 A Lenaerts and V Vanovermeire, ‘De toepassing van het Handvest van de grondrechten van de Europese Unie op handelingen van de lidstaten [The Application of the Charter on Actions of Member States]’ [2016] Tijdschrift voor bestuurswetenschappen & publiekrecht 16, 32. 40 eg CE (11) 20 October 2016, no 236202 (withdrawal of a residence permit). 41 CE (11) 7 June 2012, no 219645, no 219646 and no 19649, ‘reverse discrimination’ cases concerning citizens in a purely internal situation enjoying less favourable family reunification conditions than other EU citizens, leading to CC 26 September 2013, no 123/2013. 42 CE (11) 7 July 2015, no 231862; CE (11) 12 October 2015, no 232526; CE (11) 28 April 2016, no 234579; CE (11) 17 May 2018, no 241.518. Unlike the Court of Cassation, the Council of State did not state that the provision lacked direct effect – it only did so with respect to the Articles 3, 8 and 20 of the Convention on the Rights of the Child (cf fn 28–29). 43 eg Brussels Court of Appeal 12 May 2017, JLMB 2017, 1426; Council for Alien Law Litigation (Joint Chambers) 8 May 2018, no 203684, referencing Case C-617/10 Åkerberg Fransson EU:C:2013:105. 44 Bailleux (n 29) 40–42; J Van Meerbeeck, ‘Le droit de l’Union européenne devant les juridictions de l’ordre judiciaire’ in N Cariat and J Nowak (n 27) 190–192. 45 See above n 37; Orders in Case C-457/09 Chartry EU:C:2011:101; in Joined Cases C–267/10 and C–268/10 Rossius and Collard EU:C:2011:332; in Case C-314/10 Pagnoul EU:C:2011:609; in Case C-312/12 Ajdini EU:C:2013:103. 46 CC 6 December 2012, no 145/2012, B.10, B.39.2, B.42.2 and B.53.2. 47 CC 21 June 2018, no 76/2018, B.8. 48 CC 19 January 2017, no 5/2017, B.9-10, referencing Case C-419/14 WebMindLicenses EU:C:2015:832, paras 66–67. 49 CC 15 March 2018, no 29/2018, B.15, referencing Case C-617/10 Åkerberg Fransson EU:C:2013:105, paras 17 ff.

94  Sarah Lambrecht legislation that implements EU law.50 In addition, it occasionally refers to the Charter even in purely internal matters. This divergence can easily be explained by the different role it occupies within the Belgian legal order. As it is charged with giving an advisory opinion on draft legislation, it can be important to signal, for example, the difference in the formulation of Charter provisions to accommodate new developments51 or the protection offered by the Charter, especially if it surpasses that of the ECHR.52 B.  Citations of the Charter The Charter has been cited hundreds of times in the case-law of the Belgian supreme courts.53 While all three supreme courts refer to the Charter, the variation in the frequency and depth of the Charter’s application does stand out (see Table 4.1). A wide variety of provisions of the Charter are referenced in the case-law of the Belgian supreme courts, in almost all cases alongside provisions of the Constitution, the ECHR or other international human rights treaties. The invoked rights and the way they are applied heavily depend on the jurisdiction of the court and the case at hand. Table 4.1  Citations of the Charter in judgments and opinions of the Belgian supreme courts (2000–2018)a Belgian Constitutional Courtb

Belgian Court of Cassationc

Belgian Council of State, Administrative Litigation Section

Belgian Council of State, Legislative Sectiond

2000

0

0%

0

0%

0

0%

0

2001

0

0%

0

0%

0

0%

0

0%

2002

0

0%

0

0%

0

0%

1