Supremacy of the EU Charter in National Courts in Purely Domestic Cases
The European Union is not just a community based on common interests but is also a community of values. These values are peace, democracy, the rule of law and human rights. If the EU does not want to lose its credibility, it has a duty to defend all of these values to the greatest extent possible, at least within Europe, and especially within the European Union. The different options of how to enforce these values do not exclude, but rather reinforce each other.
Most of them depend on political discretion (isolation of the political party concerned within its European party family, art. 7 TEU, treaty infringement procedures initiated by the Commission), which makes the use of these methods unreliable as guarantees of the abovementioned values. European politicians might (and actually often do) behave in an opportunistic manner, they are interested in smoothening the conflicts or even in pretending that there are no conflicts. European politicians might have a tendency to turn a blind eye against such problems when faced with a major crisis within the EU which seems to them to be of more importance than issues of constitutionalism in one of the Member States. We should of course expect European politicians to believe in the values of constitutionalism, but liberty is based on distrust towards politicians. A mechanism which leaves the enforcement of constitutionalism in the hands of politicians is a useful, but unreliable mechanism. Reliable mechanisms are judicially guaranteed mechanisms, where those affected can enforce these values.
The most promising way to conceptualise the values of European constitutionalism in a judicially enforceable manner is to widen the application of the EU Charter of Fundamental Rights. There are four ways in which the role of the Charter can be viewed:
(1) If interpreted restrictively (as the dominant view of German academic writing does), then the Charter only applies in extreme cases of breach of the Charter.
(2) If interpreted literally, art. 51 of the Charter defines the scope through the application of EU law: the Charter only applies if EU law is applicable, so basically a collateral application of the Charter (confirmed by C-617/10, Åkerberg Fransson on 26.02.2013).
(3) If interpreted widely, the Charter also applies outside of the scope of EU law. The reason for such an interpretation is that union citizenship must entail a last guarantee of fundamental rights for cases of systemic failure in a Member State. This „Reverse Solange“ approach has been advanced by Armin von Bogdandy and his colleagues and it has been widely discussed on Verfassungsblog.
(4) If interpreted even more widely, union citizenship does not only entail a guarantee for the total failure of national mechanisms, but it also ensures the general applicability of the Charter in all domestic cases. I am going to argue for this last solution.
If we bind the applicability of the Charter to the applicability of EU law as is suggested by the restrictive interpretations (1) and (2), then we basically deny or at least very strongly limit the value community nature of the EU. If we enable the Charter beyond this only in extreme cases as proposed in (3), then we are building a value community (which is definitely better than the former two solutions). If we, however, aim for a fully fledged value community which benefits all its citizens equally, then the Charter as such should gain full applicability in every case, even in purely domestic cases in domestic courts and even if there is no systemic failure of fundamental rights protection on a domestic level.
This means that via the supremacy of EU law (more precisely here: that of the Charter) decentralised judicial review will be introduced all around Europe. The European Union could become in this way a “community of fundamental rights” where nobody can be left behind (by the way, the idea of excluding a Member State because of fundamental rights violations is an appalling and unacceptable denial of a European moral community: the citizens of the excluded country would be left behind to suffer, whereas the rest of Europe would save itself). This would be especially important in cases where, in a sacrilegious manner, violations of fundamental rights are entrenched in constitutions and where constitutional courts have been filled up with party soldiers who do not care about constitutional arguments. Ordinary courts have the advantage that there are many of them in every country, the personnel is consequently difficult to exchange along party political lines, and even one single ordinary judge is able to cry for help in the form of a preliminary reference to the CJEU.
Sooner or later the CJEU is going to receive a preliminary reference from a small countryside court in one of the EU Member States (be it a large or a small Member State), so it will be given the opportunity to make, without exaggeration, one of the biggest leading cases of modern constitutionalism. A European Marbury v. Madison is yet to come, which will transform the Charter into a real Charter for all European citizens, into a Charter which guarantees their freedoms even when domestic forums fail.
The CJEU will have to face this challenge and it should not shy away from the task. Leading cases often seem impossible (or even doctrinally doubtful) at the time in which they were made, but if they confirm the general value system of society and if they help the judiciary to enhance these values, then they later become obvious and unquestionable (e.g. the direct effect of directives was considered by many to be a contra legem interpretation of the EEC Treaty… until it became a permanent feature of the case law of the ECJ). If we do not want to give art. 51 of the Charter a meaning which deprives Union citizens of their fundamental rights, then the provision should rather be seen as the determination of a minimal, and not a maximal, scope for the Charter.
The ECtHR is unable to take this step, as in many countries the ECHR does not have direct applicability and supremacy. But the ECtHR can deliver the moral authority, i.e. if the CJEU wants to make a stronger case then it is advisable for the CJEU to fully rely on ECtHR case law wherever it is possible (cf. art. 52 para 3, art. 53).
In general, the EU should rely on the authority of the Council of Europe, including the Venice Commission, as otherwise (economic or other) sanctions might appear to be part of a political game or a money saving measure, especially if enforcement is in the hands of the Commission. A further difficulty is that for such a mechanism to exist, a modification of the founding treaties would be necessary. As I have argued in a Jean Monnet Working Paper on the Full Parliamentarisation of the EU without Changing the Treaties, such modifications are difficult for politicians to accept as they result in them losing their discretionary powers. A re-interpretation of existing treaty provisions is more realistic in such cases. Thus a Copenhagen Commission as proposed by Jan-Werner Müller is both difficult to introduce and (in case I am wrong and it will be introduced) not advisable to apply.
Every society is held together by certain values, which are at least rhetorically unquestionable. In the Middle Ages, it was Christianity, heretics had to face the consequences of breaching religious taboos. After WWII, in Western Europe, and since the end of communism in the whole of Europe, these integrating values have been the secular values of constitutionalism. There were and there will be heretic attempts to question these values, but if we want to believe that European integration has a chance, then we have to stop these attempts before it becomes too late. If it can happen in one EU Member State, then it can also happen in another one, and the European edifice which is built on these values will surprisingly quickly fall apart.
You write that ECtHR is unable to do what you describe (as I read it, to prevent a decrease in the level of fundamental rights protection in a member state), because the ECHR does not have direct applicability and supremacy. I cannot agree with this:
1) ECHR offers at least a procedural instrument to the citizen, that is not dependent on the (factual) discretion state authorities (as opposed to the preliminary reference procedure). By the way, I would not be that optimistic when it comes to the impossibility of a state to control the judiciary.
2) ECtHR can impose obligations upon the CoE member state with the same authority as the ECJ. The government may ignore both, there is practically no difference. Of course the EU has more political possibilites to „punish“ the government (in effect the member state and its citizens), but using them does not require what you suggest – a judicial change of the scope of applicability of the Charter (I cannot call the possibilites 3 and 4 in your text „interpretations“ of the Charter.).
3) ECtHR is a court established and entrusted solely with the protection of fundamental rights. The ECJ is not and it is starting to show in its interpretation of the Charter – it seems that its approach will lead to compromising fundamental rights in order to give the fullest effect to EU law, thereby disrupting higher fundamental rights standards in the member states. Does this really make ECJ THE moral authority to enforce systemic fundamental rights standards in the member statesy in areas clearly falling outside EU competence and outside the scope of application of the Charter?
Your arguments are based on the following assumptions which are, I believe, only partially correct:
1.) The members of the Union share all together the same set of values as formulated in the Articles 2, 3 and 6 TEU. Legally speaking, this might be correct. No one can deny that we have oublicly adhered to the same set of values defined in and by the Treaties.
However practically, we will have to recognize that each component member in fact understands – and practices – these values differently.
2.) There is a value and hence a strong point in favor of the Charter being applicable to all EU citizens at the same level of scale and scope. I completely agree. However, this would mean disregarding the practiced and legal realities we are confronted with in different regions and Member States of Europe. I imagine that in the process of Constitutionalization of the German Federal Republic, the general assumption needed to be made- for it to become effective – that all members adhering to this Federation would share or start to share the same sets of values – legally, but also practically speaking.
And if we look at the situation in Germany, were realities might already vary, and go beyond it to look at our neighbours, we will have to recognize that the reality is a different one. In fact, the crisis that the „European South“ and maybe soon regions beyond it will be faced, might in fact constitute exactly an expression of different levels of societal (in)equalities – practiced over time and even accenuating themselves in times of crisis.
The ECJ will therefore ’simply‘ politically at least for yet some time not be able to interpret the Charter in a way similar to the one you argue for.
3.) One shouldn’t be too much aware of media (over-)emphasis, even if personnally concerned with the siutation in Hungary. If the Union isn’t able to find a common position to the situation, then that is more an expression of the more general divide on the issue concerned itself. In the particular case of Hungary, it seems to me, one might in any case be particularly aware of the particular European burden that was levied on the country and its population at the end of World War II – a burden that, seemingly in my eyes, starts to weigh particularly hard after 45 years of a ban to discuss issues in an open and truly cooperative way, has been taken off. At the same time, I believe that you are correct in understanding the Charter as a long-term goal to solve the situation: in a Union without (mental) borders, the rights of Hungarian minorities and of minorities generally will be no less than those of the majority. Where this has so far been better implemented – I would emphasize the Germano-Danish solution to the minorities living on both sides of the border – the issue will likely be solved, to the advantage of all.
A Marbury v. Madison, sadly but comprehensibly, is therefore legally unlikely and politically infeasible.
This, my personal and criticziable opinion, is one which is, I believe, not particularly difficult to observe. However, it is much harder to commonly accept it and to build on the necessary conclusions we can and have to derive from it. Convincing the European public that each society individually will be better off by moving towards a practiced reality of the Charter and that commonly, the European society will be better off if it truly defines the set of values as defined in the Treaties and the Charter as their common, unique and inviolably unitary set of values. Each and every human individually will be better off and collectively so we will be alltogether if we are able to unify our sets of values at the level of the Charter.