Internal Market Derogations in Light of the Newly Binding Character of the EU Charter of Fundamental Rights
The Internal Market and Fundamental Rights Post-Lisbon
Although the Luxembourg Court is in certain cases willing to guarantee the effective protection of fundamental rights, i.e. protection in practice, via an evaluation casu ad casum (see Schmidberger and Omega), its theoretical protection of such rights is still ill-defined or lacking. In this regard, the system of protection of fundamental rights so far laid down can be compared to a jigsaw puzzle. Whilst the Court has taken all the essential steps to complete the puzzle, by considering fundamental rights as “general principles of Community law” and by showing respect for the priorities ofmember States and national constitutional courts, it seems unable to place the final piece, failing to expressly assert the relative importance of the said rights and prioritizing economic freedoms. It is suggested that such an attitude can be neither conducive to an adequate justiciability of fundamental rights nor to legal certainty.
Moreover, the references made to other systems of protection, namely the ECHR and the constitutional traditions of member States, furthercontribute to the quandary. At present the interaction and intertwining of such systems is far from certain, making the Court’s reasoning difficult to interpret and reflecting negatively on the protection of fundamental rights.
With the entry into binding force of the Charter and the future accession of the EU to the ECHR it is envisaged that the Court’s logic will need to be modified. As a result of the new legal framework the EUCJ is expected to assume a fully constitutional role, adopting a conceptually clear and unambiguous approach to the pre-eminence of fundamental rights44 and resolving the ambiguities surrounding the coordination of the various systems of protection.
The Effects of a Newly Binding Charter of Fundamental Rights
The Treaty of Lisbon represents a landmark in so far as the Charter is concerned, as Art. 6 of the new Treaty of European Union (ex Art. 6 TEU) recognises that the rights, freedoms and principles set out therein shall be guaranteed the same value as the Treaties.45 It follows that the CFR, as adapted at Strasbourg on the 12th December 2007, will become part of primary EU law, thus acquiring legally binding force. Such a transformation, long awaited by EU institutions and human rights lawyers, is a welcome development for the protection and preservation of fundamental rights in Europe. Although open to debate, it is respectfully suggested that the new character of the CFR may have important consequences in reshaping the delicate balancing process carried out by the EUCJ when dealing with conflicts between the fundamental economic freedoms of the TEC, now re-baptised Treaty on the functioning of the European Union, and fundamental rights.
It must be noted that at present fundamental economic freedoms have a “constitutional” status within the EU similar to that of fundamental rights in national constitutions. This is immediately apparent from the extensivecontrol exercised by EU institutions, particularly the Court of Justice, over national measures with the potential of negatively affecting such freedoms. Moreover, and precisely in light of such a control, fundamental freedoms have assumed a pivotal role in the evolution and advancement of the European Union, resulting in the downward percolation of rights and objectives of market integration into national law.46
On the contrary, the same cannot be said of fundamental rights which were initially imported into EC law as a means of avoiding accusations that EU expansion would lead to a reduction in the protection of the rights of individuals. Their subordination to the “Grundnorm”,47 in the form of the fundamental economic freedoms, currently pursued by the European Court of Justice, is therefore unsurprising (notwithstanding the fact that even prior to the entry into force of the Treaty of Lisbon the general formulation of Art. 6 TEU appeared to request the respect of fundamental rights at all levels – executive, legislative and judicial). Nevertheless, there seem to be good political and legal reasons to suggest that a binding CFR may shift the demarcation line between the two mentioned values leading the ECJ to a revirement jurisprudentiel.
From a political point of view, the proclamation of a binding Charter is a clear value statement which grants visibility and signals that the objectives pursued therein are one of the top priorities of the EU. Since the Court does not operate in a vacuum, it is envisaged that when dealing with fundamental rights it will have to recognise their importance, ensuring a proper interpretation and justiciability. In other words it is possible that the mere political significance of a binding CFR, coupled with the future accession of the EU to the ECHR will be able to guarantee a strengthening of the protection of fundamental rights.
On the other hand, from a legal point of view the fact that the CFR “shall have the same legal value as the Treaties” implies its incorporation into the EU legal order (as primary law) and its subordination to the principles and rules of the same. Amongst such principles, that of effet utile is of particular significance for the present discussion.
Union norms have a certain propensity to create rights for individuals and must be interpreted pursuant to the effet utile principle. This is normally achieved via the concept of direct effect but, on a more general level, EU norms must be interpreted in a manner functional to their scope, prohibiting member States from adopting measures of an inconsistent nature which could potentially deny their effectiveness. Finally, a necessary corollary is the need for existing EU norms to be interpreted inan evolutionary way, taking new exigencies, subsequently inserted into EU law, into account.
On the basis of the principle of effet utile, the insertion of the Charter into primary law will connote a duty for the EUCJ to ensure that the rights and principles contained therein are given full effect. Moreover, and perhaps more fundamentally, the said principle will force the Court to interpret existing norms, be they of primary or secondary law, in conformity with the new developments of the EU legal order. Although fundamental rights have been present since the 1970’s, and as such cannot be considered an entirely new exigency, the legally binding character of the CFR represents an important change in the inclinations of the EU. Therefore, it is presumed that in light of the principle of effet utile, Union judges will need to modify their current benchmark, interpreting the fundamental economic freedoms in an evolutionary way and keeping in mind that these no longer represent the only element in the formation of a European polity. The upshot should be the consideration of fundamental rights as being as worthy of respect as other values already inscribed into primary EU law.
The political and legal evaluations carried out above would suggest that a binding Charter has the potential to trigger a new approach by the EUCJ when weighing competing values. In particular, when faced with a conflict between internal market obligations and fundamental rights, it is likely that it will strive towards a non-hierarchical approach whereby the two competing values are weighed without any sort of predetermined priority.48 In this regard, the current stance according to which fundamental rights are seen as a hindrance to free movement, often being construed as mere derogations to the economic freedoms, would have to be abandoned for a more genuine balancing of interests, especially taking into account the (future) international liability of the EU vis à vis the ECHR. Placing fundamental rights on a par with fundamental freedoms would require the EUCJ to preserve both interests, maximising their protection without sacrificing either.
As noted by De Schutter:
There should be, for each situation of conflict, one solution from which any deviation would entail more losses than gains for the two values considered together, which are both equally worthy of respect.49 This approach is further justified if one studies the actual text of the CFR. Although reference to fundamental economic freedoms is only made in thepreamble of such a document,50 it goes without saying that some of the rights it lists are linked to those freedoms. Thus, since the Charter includes fundamental rights of an economic and of a non-economic nature, without distinguishing between them, the need for a non-hierarchical approach when balancing the two sets of rights becomes evident. In light of the above, it is obvious that the CFR may lead the EUCJ to a revirement jurisprudentiel triggering the development of case-law based on an equal balancing of fundamental rights and economic freedoms. Abandoning the subordination of the former to the latter will have the long-awaited consequence of ensuring that the effective protection of fundamental rights, already apparent in cases such as Schmidberger and Omega, be backed by a sufficiently solid legal and theoretical framework.
This will guarantee an independent and adequate justiciability of those rights, simultaneously assuring a more satisfactory level of legal certainty. Before concluding, a question which deserves a few remarks, and which is being fiercely debated in the academic world, is how and to what extent the opting out of Poland and the UK will affect the CFR.51 As noted elsewhere in this volume the outcome may well be that the EUCJ will continue to resort to Art. 6 TEU to protect fundamental rights. In effect, nothing in the new Treaties prevents the Court from continuing to develop its case-law on the basis of such an Article. Contrariwise, Art. 6(3) of the reformed TEU re-affirms that fundamental rights remain “general principles of the Union’s Law” and the explanations relating to Art. 52 CFR, which are formally granted and interpretative status by Arts. 6 TEU and 52(7) CFR, suggest that the Union’s competences remain unaltered even following the entry into force of the Charter. In a similar vein, Protocol no. 30 expressly states that the Charter does not extend the competences of the Court of Justice of the European Union, implicitly confirming that the Court retains all the powers and competences it already possessed.52
That being so, a continued reliance on Art. 6 is unlikely to reverse the conclusions reached above regarding the balancing of economic freedoms and fundamental rights. The latter would most probably still assume a “constitutional” role within the EU legal order and be balanced fairly and equally against the former in cases of conflict. The reason for such a conclusion is that the “constitutional process” in this field of law is now unstoppable.
In addition, such a conclusion would seem to stem from the structure ofnew Art. 6 of the Treaty on EU. Given that Art. 6(1) of the new Treaty on EU states that the Charter will have the same value as the Treaties, it is highly unlikely that in developing its case-law on the basis of the new Art. 6(3) the EUCJ will not take this into consideration. On the contrary, the Charter will most definitely inform and be instrumental in the Court’s rulings on fundamental rights as general principles of law. This is even more so if one considers that at least half of the Charter rights have already been recognized by the ECJ.
Besides confirming that the rights contained in the Charter are to be regarded as general principles of law, the Luxembourg Court may also employ Art. 6(3) to protect unlisted fundamental rights. In such circumstances the member States would be bound by the primacy of EU law and would have to accept the extended protection enacted by the ECJ. Insofar as Poland and the United Kingdom are concerned, their opting out would thus become devoid of any practical effect.
44.In this context, reference is being made not only to the hierarchical classification of fundamental rights but also to the issue regarding the existence of core fundamental rights in the EC. In Schmidberger the Court stated that “unlike other fundamental rights” freedom of expression and freedom of assembly are subject to certain limitations.
This is an implicit acknowledgement of the fact that in certain cases fundamental rights can be absolute. The existence of such rights also seems confirmed by references to the constitutions of member States and to the ECHR. Their paramount importance in the EU legal order has been confirmed in the recent Kadi appeal judgement (Case 402/05 P Kadi, accessible at http://curia.europa.eu/) where the ECJ considered them to be a parameter of legality of secondary law passed in the CFSP (paras 283–284).
45. On the meaning and legal effects of such an ‘equation’ see G. Di Federico, n. 11 above.
46. See to this effect M. Poiares Maduro, ‘Striking the elusive balance between economic freedom and Social Rights in the EU’, n. 1 above.
47. See M. Lindfelt, Fundamental Rights in the EU – Towards a higher Law of the Land? n. 1 above.
48. Ibid., at 302 where a similar statement is made with reference to the now abandoned Constitutional Treaty.
49. O. De Schutter, ‘The implementation of the EU Charter of Fundamental Rights through the open method of coordination’, Jean Monnet Working Paper 07/04, (2004) New York School of Law, at 40.
50. “The Union . . . . seeks to promote balanced and sustainable development and ensures the free movement of persons, services, goods and capital, and the freedom of establishment”.
51. See Protocol No 30 on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom. Also see Declarations 61 and 62 by Poland,  OJ C 306/156.
52.The exercise of such powers must obviously be carried out in conformity with the ECHR as interpreted by the European Court of human rights in Strasbourg.