The Charter and the Constitutional Courts of the Member States
It is particularly interesting to note that also National courts have applied the Charter. Limiting our analysis to the Constitutional Courts of the Member States,86 the first reference to the Charter can be found in a decision by the Spanish Constitutional Court laid down on the 30th November 2000.87
Here the Spanish judges used Art. 8 of the Charter (“Data protection”) in support of their position. What is striking is that the provision was applied as if the Charter had been legally binding and in force. The Charterwas understood as a constitutional parameter of legality, also by virtue of its solemn proclamation by the three main institutions.
The Spanish Constitutional Court used the Charter again in 200688 and in 200889 when in affirming the fundamental right to non-discrimination founded on sexual orientation, it made reference to the case-law of the European Court of Human Rights and the ECJ and to the Charter.
The Italian Constitutional Court acknowledged the importance of the Charter in its judgment of 24 April 2002 considering it a non binding text containing the principles common to the European legal orders.90
Some commentators have remained puzzled by this decision wondering why the Court had resorted to a document devoid of any legal force given its traditional resistance to EC law. And in fact, unlike their Spanish counterparts – who consider the international texts concerning human rights as an automatic criterion for the interpretation of the Law91 - the Italian Constitutional judges consider the Charter a ‘weak’ interpretative instrument.
In a second judgment,92 the Italian Constitutional Court referred to some international instruments, including the Charter, thereby confirming the willingness to take the latter into consideration when deciding in fundamental rights cases. This time, however, the Italian Court referred to the Charter ad adiuvandum without questioning its formal status.93 It is suggested that this implies an indirect acknowledgment of the legal value of The Charter as a result of the National and supranational case-law.
In 2006, the Italian Constitutional Court adopted two other judgments,94 in which it referred to the Charter including this text amongst the international instruments devoted to fundamental rights protection, but specifying that it is not binding. More recently, judges have questioned the constitutional legitimacy of a piece of legislation which provided for a more favourable statute of limitations and more favourable attenuating circumstances, but excluded pending first instance trials from its scope ofapplication.95
According to the constitutional judges, these norms violate the principle of favor rei - which calls for the retroactive applicability of the more favourable criminal norm - enshrined in Arts. 10 and 11 of the Italian Constitution. Moreover, the latter is recognized by Art. 15 of the 1966 International Covenant on Civil and Political Rights and constitutes a “general principle of community law”.96 And yet, no reference was made to the Charter.
Finally, in a judgment of March 200997 the Italian Constitutional Court referred to the Charter, including this text among the sources of Community Law, pursuant to Article 11 and Article 117 of the Italian Constitution, but finally excluded that the Charter, as well as the Convention of New York on the Rights of the Child, could generate a specific obligation capable of affecting the outcome of the case at hand.
These decisions show how the Charter can be used to interpret the fundamental principles of the national Constitutions. The latter have reconsidered their normative and axiological foundations on flexible principles, open to external influences by the International Organizations they belong to.98
A different stance was adopted by the Belgian Constitutional Court99 following the ECJ’s judgment in Ordre des Barreaux francophones, 100 where Arts. 47 and 48 CFR were not mentioned despite the fact that these provisions had been invoked by the applicants and by AG Poiares Maduro.
According to the Constitutional Court the Charter (quoted by the applicants in relation to the national Constitution) affirms the existence of common values of the EU which are also enshrined in the Belgian Constitution and can therefore be taken into consideration. However, because the Charter does not amount to a legally binding instrument, the Belgian Court ruled that the action was inadmissible in that it relied on the violation of the constitutional rules read jointly with the Charter.101 In a subsequent judgment, 102 the same Court decided to follow the Charter, albeit claiming its non binding character.
he Charter, which in the meantime had been included in the Constitutional Treaty and proclaimed for the second time on 12 December 2007, was used in three other occasions by national constitutional Courts.
On the 19 November 2004, the French Conseil Constitutionnel stated that the Charter was compatible with the national legal order in as much as the rights included therein would be interpreted in accordance with the constitutional traditions common to the Member States. The Constitutional Court concluded that neither the contents of the Charter nor its effects on the exercise of national sovereignty required a revision of the 1958 Constitution.103 Particular importance was given to the Explanations of Charter. The reason can be found in the version of the Charter included in the Constitutional Treaty, which instructs courts to “give due regard” to the latter.
Similarly, the Spanish Constitutional Court104 ruled that the European Constitutional Treaty was fully compatible with the national Constitution since the Charter could be considered as an interpretative instrument of the rights contained in the former.105 This analogy can be explained by taking into consideration the fact that the Spanish legal order, as well as the French, establishes with respect to international agreements an ex ante system of constitutional review. In this instance, the Spanish Constitutional Court was called upon to check, pre-emptively, the legitimacy of a system of protection of fundamental rights operating on different levels (including the National Constitution, the ECHR and the Charter of Fundamental Rights, representing the second part of the European Constitutional Treaty), that could allow for diverging interpretations of the same rights.106
The Spanish judges clarified that the domestic legal order provides for both a preventive and an ex post review of International treaties. By consequence, the compatibility with the Constitution can be effectively guaranteed since the interpretative problems posed by the multilevel system of protection will be solved on a case by case basis (and not solely in a pre-emptive and abstract way, as it would be under French law). Hence, the Tribunal Constitucional concluded that Arts. II-111 and II-112 of the European Constitutional Treaty (namely Arts. 51 and 52 of the Charter) were inline with the Spanish Constitution since they aim at ensuring only a minimum level of protection of fundamental rights within the EU. The Member States are not prevented from setting higher standards. According to the Spanish Constitutional Court, the only suitable way to avoid conflicting jurisprudence in this field is the dialogue between the Courts.107
After having abandoned the idea of a Constitutional Treaty governing the European Union, the French Constitutional Court was called upon to decide on the compatibility of the Lisbon Treaty with the French Constitution.
In the decision of 20 December 2007, having examined the new Art. 6 of the EU Treaty (concerning the protection of human rights in the EU and granting full legal force to the CFR) the Court concluded that the Charter did not require constitutional amendments, neither as far as the content of its provisions is concerned, nor by reason of the effects it can produce.108 Another National Constitutional Court – traditionally sensitive to the relations between the national and European level of protection of fundamental rights – was called to rule on the matter. In its judgment of 30 June 2009, the German Constitutional Court stated that: according to the Treaty of Lisbon, the fundamental rights protection in the European Union is based on two foundations: the Charter of Fundamental Rights of the European Union (...) and the Union’s unwritten fundamental rights, which continue to apply as general principles of the Union’s law (Article 6.3 TEU Lisbon).
These two foundations of European fundamental-rights protection are complemented by Article 6.2 TEU Lisbon, which authorises and obliges the European Union to accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950.109 The German Constitutional Court further developed its case law on the level of protection of fundamental rights developed in Solange II110 and Maastricht, 111 claiming that:
The general provision concerning limitations under Article 52.1 of the Charter can at most restrict the human dignity guaranteed in Article 1 of the Charter, but not Article 1.1 of the Basic Law. For the European and the national levels offundamental rights must be distinguished. […] Article 52.1 of the Charter might be at all relevant to the national level of fundamental rights only to the extent that due to it, a level of protection of fundamental rights on the European level that is essentially comparable to that afforded by the Basic Law within the meaning of Article 23.1 sentence 1 of the Basic Law would no longer be guaranteed. [...] It will be for future proceedings to clarify whether and to what extent a decline of the protection of fundamental rights by changes in primary law can at all be admissibly challenged on the basis of Article 1.1 of the Basic Law and what requirements as to substantiation may be placed on such a challenge
86. Basic and advanced queries on decisions by national ordinary courts referring to the EU Charter of Fundamental rights can be performed at www.europeanrights.eu
87. Spanish Constitutional Court, Judgment 30 November 2000, No 292.
88. Spanish Constitutional Court, Judgment 13 February 2006, No 41.
89. Spanish Constitutional Court, Judgment 22 December 2008, No 176.
90. Italian Constitutional Court, Judgment 24 April 2002, No 135/2002, para 2.2. A similar conclusion was reached by the Portuguese Constitutional Court in Judgment (accordão) No 275/02.
91. M. Cartabia, A. Celotto, ‘La giustizia costituzionale in Italia dopo la Carta di Nizza’, (2002) Giurisprudenza Costituzionale 4485.
92. Italian Constitutional Court, Judgment 24 October 2002, No 445/2002. See also Italian Constitutional Court, Judgment 15 December 2008, No 438/2008.
93. The Italian Constitutional Court assumed the same position in the judgment 15 December 2008, No 438/2008. See for a similar conclusion, the Portuguese Constitutional Court, Judgment 9 July 2009, No 359/2009.
94. Italian Constitutional Court, Judgment 23 October 2006, No 393/2006, para 6.2; Italian Constitutional Court, Judgment 8 November 2006, No 394/2006, para 6.4.
95. No Law 5 December 2005, No 251.
96. Italian Constitutional Court, Order 5 March 2007, No 93.
97. Italian Constitutional Court, Judgment 11 March 2009, No 86.
98. A. Ruggieri, n. 21 above, 14.
99. Belgian Constitutional Court, Judgment 23 January 2008, No 10/2008.
100. Case C-305/05 Ordre des Barreaux francophones et germanophones, n. 65 above.
101. See also Belgian Constitutional Court, Judgment 19 March 2009, No 58/2009.
102. Belgian Constitutional Court, Judgment 12 February 2009, No 17/2009.
103. French Constitutional Council, Decision 19 November 2004, No 2004-505 DC, para 22. See L. Azoulay, F. Ronkes Agerbeek, ‘Conseil Contitutionnel, Decision No 2004-505 DC of 19 November 2004, on the Treaty establishing a Constitution for Europe’, (2005) Common Market Law Review 871. In regard to other parts of the European Constitutional Treaty (policies and functioning of the Union and new prerogatives of National parliaments), the French Constitutional Council ruled that the permission to ratify may only be granted after the revision of the French Constitution. In France there are control mechanisms (political and judicial) which may be activated between the signature of a treaty and its ratification. The Constitutional Council is responsible for adopting the relevant decisions.
104. Spanish Constitutional Court, Judgment 13 December 2004, DCT 1/2004.
105. P. Caretti, ‘Il Tribunal constitucional e il Conseil constitutionnel sulla Costituzione per l’Europa’, (2005) Quaderni costituzionali 419.
106. On the multilevel system of protection of fundamental rights in Europe, cf. the contribution in this volume by G. Di Federico, ‘Chapter 2’.
107. I. Gomez Fernandez, ‘Una svolta nella giurisprudenza del Tribunal Constitucional spagnolo’, (2005) Quaderni costituzionali 424.
108. French Constitutional Council, Decision 20 December 2007, No 2007-560 DC, paras 11 and 12. In a similar case, the Czech Court established that the norms of the Treaty of Lisbon and of the European Union’s Charter of Fundamental Rights are compatible with the principles and the Constitutional order of the State, see Judgment 26 November 2008, No 19/08.
109. German Constitutional Court, judgment 30 June 2009, No BvR 2 BvE 2/08 2 BvE 5/
08 -2 BvR 1010/08 -2 BvR 1022/08 -2 BvR 1259/08 - 2 BvR 182/09, para 35. See J. Ziller, ‘Solange III (or the Bundesverfassungsgericht’s, Europefriendliness). On the decision of the German Federal Constitutional Court over the ratification of the Treaty of Lisbon’ (2009) Rivista Italiana di Diritto Pubblico Comunitario, 973.
110. German Constitutional Court, judgment 22 October 1986, No 2 BvR 197/83.
111. German Constitutional Court, judgment 12 October 1993, No 2 BvR 2134/92.
112. Ibid., para 189.