On the Relation between the EU Charter of Fundamental Rights and National Fundamental Rights

This introduction serves as a starting point for the scientific analysis of the complex coexistence of different fundamental rights regimes, mechanisms and institutions in the European multi-level system. It traces the development of fundamental rights protection at EU level and explores the role of European and national (constitutional) courts in applying and interpreting fundamental rights.

Fundamental rights have been a significant component of European Union law for decades and an integral normative element of primary law since the entry into force of the Lisbon Treaty together with the Charter of Fundamental Rights (hereinafter the “CFR”) (2009). However, the application of the CFR is strictly and formally delineated, in a way which, broadly speaking, excludes the independent application of the guarantees contained in the Charter sets out a number of conditions. These conditions and limitations define the scope of the ECJ’s competence, preventing it from being characterized as a human rights court, unlike the European Court of Human Rights (hereinafter the “ECHR”). Nevertheless, it is evident that fundamental rights play an increasingly significant role in the case law of the ECJ, and the EU’s protection system in this area makes good use of its autonomy. This approach ensures that fundamental rights serve as vital tools of interpreting EU norms, allowing to decode the content and meaning from them that best correspond to the EU axiology, while also ensuring the implementation of the principle of effectiveness. Thus, fundamental rights can be regarded as the source of what is sometimes referred to as their ‘radiation’ throughout the entire EU legal system. In the debate on the future of the CFR, we must not lose sight of the fact that the European Union is first and foremost an organization serving citizens and that the effectiveness of the protection of fundamental rights is crucial in shaping pro-European attitudes in our societies.

The European Union’s (EU) judicial system consists of two main pillars: the national courts and the Court of Justice of the European Union (CJEU)—the latter consisting currently of two courts, the European Court of Justice (ECJ) and the General Court. National courts are important as EU law is to a large extent applied at the national rather than Union level. The question of the conformity of national acts with Union law cannot as a rule be brought directly before the CJEU but should be raised before a national court, which may, and in some instances must, request a preliminary ruling from the ECJ on the proper interpretation and, as the case may be, validity of relevant Union legal norms. It is up to the national courts to decide whether, and on what grounds, to request a preliminary ruling and they also then determine the facts of the case and the content of applicable national law. After having received the ruling of the ECJ, the national court will decide on the final outcome of the case.

After having excluded infringements of European law to a large extent from its jurisdiction, in 2012 the Austrian Constitutional Court has stated in a—over the last decade extensively debated—decision that the rights guaranteed by the Charter of Fundamental Rights had to be applied as a standard of review in constitutional proceedings, both on occasion of complaints and in the judicial review of laws. These results have been modified and developed in the following decisions, showing the spectrum of applying the Charter in constitutional proceedings. This contribution explains the approach chosen in the Charter decision and presents the respective case law as well as the case law of the Supreme Administrative Court and the Supreme Court, which have both been applying the Charter of Fundamental Rights regularly.

This chapter will present the Spanish Constitutional Court’s hesitations regarding the application of the EU Charter of Fundamental Rights. The basic assumptions of the Spanish Constitutional Court about European integration are essentially the same as when Spain joined the European Communities in 1986. It never entertained concern or ambition to challenge the rising penetration of EC/EU law into national legal orders. From the beginning, it has practised a sort of pragmatical hybridisation of the constitutional parameter of review, initially regarding international human rights standards. When the need arose, it did not see any problem applying the same approach, first, to EC/EU law and, later, to the Charter of Fundamental Rights as interpreted by the CJEU and to apply its level of protection indirectly, under the disguise of national fundamental rights. The chapter will track the origins and continuity over time of that approach and discuss its advantages and disadvantages.

With its two decisions of 6 November 2019 on the so-called Right to be Forgotten (1 BvR 16/13 and 1 BvR 276/17), the Second Senate of the Bundesverfassungsgericht has significantly realigned the German fundamental rights review of legal acts determined by EU law. In the Right to be Forgotten II decision, the Court has for the first time applied the fundamental rights of the EU Charter of Fundamental Rights to the review of legal acts that were fully harmonised under EU law. In matters that afford Member States legislative latitude, the fundamental rights of the Basic Law remain the relevant standard of review (Right to be Forgotten I). This chapter assesses the above‑mentioned decisions of 6 November 2019 and some of their direct implications. In particular, the criteria for distinguishing the respective spheres of fundamental rights, possible convergences, but also differences will be examined, as well as the question of the extent to which this new case law has already been implemented by the German courts of general and specialised jurisdiction. In this context, the role of the Bundesverfassungsgericht in the European multilevel court system vis-à-vis the Court of Justice of the European Union will also be addressed.

The purpose of this paper is to critically consider the impact of the Charter of Fundamental Rights of the European Union (CFR) within the Italian constitutional adjudication system. After briefly recalling the Italian Constitutional Court’s well-established jurisprudence on the relationship between domestic and European Union law’s main features (Sect. 3), the most recent approaches developed by the Italian Constitutional Court (ICC) with reference to the Charter of Fundamental Rights will be highlighted, taking into account the substantially constitutional nature of the EU Charter of Fundamental Rights and the large overlap of its guarantees with those provided for in the Constitution of the Italian Republic (Sects. 2, 5, 5.1, 5.2). The tricky question of the relationship between the two charters has led to a rethinking of the link between the Italian Constitutional Court, the European Court of Justice (ECJ) and the ordinary court. In this regard, the ICC deemed it necessary to make a ‘clarification’ on the so-called ‘dual preliminarity’, through an obiter dictum in a decision rejecting a constitutional challenge (Sects. 6–6.2). In this occasion, the Italian Constitutional Court had the opportunity to enhance its role as a court of referral under Art. 267 TFEU despite its previous reluctance in such a recognition (Sect. 4). Indeed, the very reason for the aforementioned ‘clarification’ seems to be the dissatisfaction with the formulation of the preliminary questions proposed by the Tribunal of Cuneo to the Court of Justice in the case that gave rise to the well-known ‘Taricco Saga’ (Sects. 7–7.1). After the decision of the Court of Justice on this case, the Italian Constitutional Court considered it necessary, in fact, to better clarify the interpretative questions already submitted to the ECJ by the territorial Tribunal, proposing a new preliminary ruling on the same object in a constitutional proceeding in which the remitting judges (giudici a quibus) had decided to follow the Constitutional Court’s ‘clarification’ on the ‘first word’, although it was not legally binding (Sect. 6.1). The analysis that follows will show how an open dialogue and a spirit of cooperation characterise in principle the attitude of the Italian Constitutional Court towards the Court of Justice. The tensions that have also occurred seem to be inherent in the physiological dynamic of constructive relationships. The crucial role played by the two Courts in defining national identity and common constitutional traditions has initiated a heated and rich doctrinal debate, which, however, does not yet seem to have found shared ground. After all, this is a highly complex task under a constitutional perspective with delicate political repercussions. The discussion on the so-called counter-limits doctrine, in particular, deserves further and deeper consideration (Sect. 8).

The usually placid waters of the Portuguese legal order were shaken in mid-April 2022 by a judicial ruling with the potential to trigger a tsunami of criminal conviction reversals that is already provoking a backlash in the investigation and repression of serious criminal offences committed online. Several provisions of the so-called “Data Retention Law”, originally adopted to transpose the contentious “Data Retention Directive”, were declared unconstitutional by the Portuguese Constitutional Court (PCC), as they breach the rights to privacy, to data protection and to an effective legal remedy, as interpreted in accordance with the Charter of Fundamental Rights of the European Union (CFR). The ruling caused shockwaves across the political spectrum and triggered a constitutional crisis (of sorts), with both the President of the Republic and the Prime Minister hinting on media outlets at the need for a mooted constitutional amendment in a field pre-empted by EU law. The Attorney-General went as far as to request the annulment of the ruling, an unprecedented claim promptly dismissed by the PCC on procedural and material grounds.

This chapter examines the application of the European Union Charter of Fundamental Rights (CFR) as a direct standard for constitutional review in Lithuania. As specified further in the text, constitutional review in Lithuania is carried out by the Constitutional Court and administrative courts, notably the Supreme Administrative Court of Lithuania. The chapter also briefly looks into the issue of the role the CFR plays in the fundamental rights review carried out by other competent entities. With these objectives in mind, the jurisprudence of the Constitutional Court, the case law of administrative courts and courts of general competence as well as publicly available materials of domestic human rights institutions are looked at. The author also refers to analysis carried out previously, notably by a team of researchers who examined various aspects of the application of the CFR and also conducted a survey on how well the CFR is known among Lithuanian lawyers and how often it is used as an instrument in their work. The chapter seeks to answer questions designed by the coordinators of the overall research project. These pertain to the relationship between Lithuanian fundamental rights and those of the CFR, comparison of the fundamental rights catalogues contained in the Lithuanian Constitution and the CFR, the level of protection offered by the two systems, the structure of the fundamental rights control in the Lithuanian legal system, the role the fundamental rights of the CFR play in national monitoring and, ultimately, the existence of examples of court decisions or decisions of the competent constitutional or fundamental rights review bodies that already apply the CFR as a direct standard of such review.

Gradually the supremacy of EU law and the effects of legislative acts transposing the rights and freedoms enshrined in the provisions of the EU Charter into Swedish law, is transforming the domestic legal system. In case secondary legislation is not given the intended effect, provisions in the EU Charter may take upon direct effect independently in the national legal systems in parity with provisions in the ECHR. Particularly the direct effect of the right to a fair trial under both Article 47 of the EU Charter and Article 6 of the ECHR has been palpable in Swedish law. Also the ne bis in idem requirements under the two regimes have greatly influenced the domestic legal system. Indeed, the rights and freedoms in the ECHR and the EU Charter are to a great extent approximated. However in case of a norm conflict the primacy of one system over the other depends on what supranational court decides the case. Having said that, it follows from Chapter 10, section 6 of the Instrument of Government that the ECHR sets the limits in the Swedish legal system. As the Parliament has no competence to transfer powers to the EU in conflict with the Instrument of Government or the ECHR such a Union measure would be ultra vires. At the end of the day, Swedish constitutional law prevails over EU law. In contrast, there is no constitutional limitation of the obligation to give effect to the rights and freedoms of the Convention system.

The idea of an individual fundamental rights complaint before the CJEU is not new, but the respective discussions have fallen silent after the failure to adopt the Treaty establishing a Constitution for Europe in 2005. However, after constitutional courts in several Member States have claimed the right to interpret the EU Charter of Fundamental Rights, the formerly ebbing discussions are slowly getting louder again. This self-empowerment could be perceived as an attempt to obtain the predominant influence on the interpretation of the Charter. Strengthening individual legal action before the CJEU seems as an appropriate response to help maintain the delicate balance of power between national courts and the Luxembourg Court. These thoughts leads us to the following questions: Is the procedural law of the EU in need of a reform? What should such a reform look like? Do the Member States refuse their citizens elementary procedural guarantees to enforce their EU fundamental rights before an EU court—or are there justified concerns to limit the scope of individual action before the CJEU? Would major reforms awaken the sleeping potential of the Court or unleash forces beyond the control of its creators?