Article 47 of the EU Charter of Fundamental Rights and Its Impact on Judicial Cooperation in Civil and Commercial Matters
The Impact of a Binding Charter on Enforcement Policy in the Area of Freedom, Security and Justice. . .and Beyond. Some Brief Considerations de iure condendo
Some important conclusions can be drawn on the impact of a binding Charter on the legislative policy and judicial approach to be followed in the future. Firstly, it has been argued that the legal enforceability of the Charter of Fundamental Rights might lead the Court to reconsider its traditional approach on private standing in actions against measures with a general scope of application. Acting similarly to a supreme national court, the EUCJ would have to carefully balance Art. 263 TFEU and Art. 47 CFR, as the status of primary law is recognised for both provisions.
Nevertheless, should the ECJ decide to follow its ‘constitutional vocation’ and interpret the last sentence of Art. 263 (4) TFEU as an implicit refusal (on the part of the Member States) to recognise the right for individuals to contest measures which are legislative in nature, an extensive interpretation of the individual concern requirement is highly unlikely.
Secondly, as to the need to ensure effective judicial protection within the EU legal order, it can be observed that Arts. 47 and 51 CFR, read jointly, will undoubtedly contribute to eliminate the double standard issue mentioned at the beginning of this chapter. From a practical point of view it is possible to envisage a decrease in the EUCJ’s workload following preliminary references, the (sole) standard being already fixed at a normative level by the EU.
Thirdly, with regard to judicial cooperation in civil and commercial matters, it appears that the reference to effective judicial protection (and therefore, indirectly, to Art. 47 CFR) contained in Art. 81 TFEU will impinge on the lawmaking process in the Area of Freedom, Security and Justice forcing the Council to take court access in the utmost consideration when passing legislation in this field. Not to mention the impact it is likely to have on the case law. In fact, it is suggested that under the new framework the ECJ will have to enhance its fundamental rights reasoning while guaranteeing the “free circulation of judicial decisions”.
In doing so it will be able to rely on Art. 6 ECHR and on the common traditions of the Member States but most notably (and effectively) on Art. 47 CFR, which appears to be one of the values framing a true European ordre public clause.
The European Charter of Fundamental Rights and the Area of Freedom, Security and Justice
We explore the many innovations introduced by the Lisbon Treaty in the Area of Freedom, Security and Justice (hereafter AFSJ) in order to assess the potential of Art. 6 TEU, insofar as it grants the EU Charter of Fundamental Rights (hereafter CFR or Charter) “the same legal value as the treaties”.
First, the scope of the relevant new provisions will be considered and evaluated against the previous legal framework. Second, the current state of affairs will be confronted and critically examined with a view to singleout the criticalities in three particularly sensitive areas, namely due process, judicial review and data protection. Finally, it will be possible to establish whether and to what extent the newly binding Charter is capable of enhancing the protection of fundamental rights within the EU legal order.
The Area of Freedom, Security and Justice Before and After the Lisbon Treaty
Scope of Application and Competences
The Lisbon Treaty marks the fall of the ‘pillar structure’ with significant changes in the new institutional framework, but some peculiarities continues to characterize the Justice and Home Affairs Area.1
After its creation by the Maastricht Treaty, its partial ‘communitarisation’ pursuant to the Treaty of Amsterdam and the reforms introduced by the Treaty of Nice, the Third Pillar comes to an end. Although – as in the original Treaty on the European Union – the latter ‘reunites’ under the same general regime the heterogeneous nature of the matters falling within the AFSJ (immigration, asylum, civil law, criminal and police law), it brings about notable changes with respect to the more recent versions of the treaties.
As far as the allocation of powers is concerned, is should be noted that according to Art. 4 TFEU the AFSJ is included among the shared competences and Member States shall exercise their competence to the extent that the Union has not exercised its own or has decided to cease exercising it.
From an institutional viewpoint, the Justice and Home Affairs Council of Ministers retains general competence, but the reasons for having two Commissioners (one for Justice, Fundamental Rights and Citizenship, the other for Home Affairs) remain unclear. This solution can be justified on account of the fact that it is capable of enhancing efficiency; nevertheless, is can cause confusion regarding the respective aims and responsibilities.
Unfortunately, the overwhelming complexity of the Union system in the AFSJ is only partly reduced by the abolishment of the pillar structure because the special regimes granted to the United Kingdom, Ireland and Denmark remains. Indeed, the price paid for the communitarisation of the Third Pillar was the extension of the opt-out regime applicable to the UK and Ireland with regard to the entire area of EU Freedom, Security and Justice, including police cooperation and criminal law. However, according to Protocol No 21, they are free to exercise an opt-in right in relation to a new measure or to a measure amending a pre-existing act which they have already accepted. Moreover, they may refuse to accept an amendment concerning a non-Schengen binding measure. However, if the Council determines that the non-participation of the United Kingdom or Ireland makes the application of that measure inoperable for other Member States or the Union, it may urge them to exercise their opt-in right. Following a period of two moths and in the absence thereof, the Council may determine that Ireland and/or the United Kingdom shall bear the direct financial consequences, if any, necessarily and unavoidably incurred as a result of their choice.
In addition, the Schengen Protocol2 allows these countries not to participate in a Schengen building measure even if it is covered by the Schengenacquis they have accepted. The situation is further complicated by the absence of a clear-cut distinction between Schengen building measures and non-Schengen building measures. For instance, it is difficult to establish with certainty whether access to information contained in a national police database by agents from another Member State amounts to a Schengen building measure or not.3
After a transitory period of 5 years,4 the United Kingdom and Ireland will be subject to the expanded jurisdiction of the Court of Justice (hereafter ECJ or EUCJ) as regards asylum and civil law legislation which they have accepted, or will accept in the future, as well as any future police and criminal law measure which they will opt into. At the latest 6 months before the expiry of this transitional period, the United Kingdom may notify the Council its non-acceptance, with respect to acts adopted in the field of police and judicial cooperation in criminal matters before the entry into force of the Treaty of Lisbon, of the powers of the institutions, including the competence of the Court of Justice.5 This privileged condition allows it to accept at any time acts which have ceased to apply to it.6
The so called ‘variable geometry’ that continues to characterize European integration in this Area7 is also determined by the particular position of Denmark, which remains unaltered in relation to the Schengen acquis. According to Protocol No 22, “none of the provisions of Title V of Part Three of the Treaty on the Functioning of the European Union, no measure adopted pursuant to that Title, no provision of any international agreement concluded by the Union pursuant to that Title, and no decision of the Court of Justice of the European Union interpreting any such provision or measure or any measure amended or amendable pursuant to that Title shall be binding upon or applicable in Denmark”.8 But this State remains free to opt-in.
The flexible participation of these three States makes it difficult to consider the AFSJ fully within the competence of the Union. The complexity of the system also suffers from the new flexibility arrangements, such as the Prüm Treaty. Signed initially by seven Member States,9 sinceNovember 2009 the latter has been in force in fourteen Member States.10 This international agreement provides for the exchange of a wide range of personal information, including fingerprints, DNA and other sensitive data. Relevant parts of this Treaty, namely the provisions designed to improve the exchange of information, are transferred into the legal framework of the European Union by two Decisions adopted by the Council.11
Like the Schengen Convention, the Treaty of Prüm is seen as a “laboratory for Europe”, the goal of which is to push European integration forward. But the idea to develop new mechanisms that operate above and beyond the EU level confirms that Member States have not lost their taste for conventional intergovernmentalism.12 The adoption of an international instrument and its partial incorporation into the treaties implies that all Member States will become bound by measures decided by a limited number of countries without the participation of the European Parliament.
To conclude, the Lisbon Treaty tried to fully resolve all problems that arise from the Third Pillar, but the difficulties caused by the signaled specificities, namely the ‘flexible participation approach’, remain.
1. In some areas of criminal law and policing a special legislative procedure will be enforced. See Art. 86 of the Treaty on Functioning of the European Union (TFEU) concerning the establishment of a European Public Prosecutor’s Office; see Art. 87TFEU concerning the operational cooperation between competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences.
2.Protocol No 19.
3.See R. Baratta, ‘Le principali novità del Trattato di Lisbona’, (2008) Il Diritto dell’Unione europea 69. See Protocol No 21.
4.Protocol No 36, Art. 10.
5.Protocol No 36, Art. 10(4).
6. Protocol No 36, Art. 10(5).
7. This variable geometry does not only characterize the Area of Freedom Security and Justice policy but also the rights because the Protocol No 30 on the application of the Charter of fundamental rights in the EU to the United Kingdom and to Poland provided specific derogations concerning in particular the social rights. On the scope of Protocol No 30, see in this volume G. Di Federico, Chapter 2.
8. Protocol No 22, Art. 2.
9. Belgium, Germany, Spain, France, Luxembourg, the Netherlands and Austria. 10. Belgium, Germany, Spain, France, Luxembourg, the Netherlands, Austria, Finland, Slovenia, Hungary, Bulgaria, Romania, Slovakia and Estonia.
11.Council Decision 2008/615/JHA of 23 June 2008 on the stepping uo of crossborder cooperation, particularry terrorism and cross-border crime,  OJ L 210/1; Council Decision 2008/616/JHA of 23 June 2008 on the implementation of the Decision 2008/615/JHA,  OJ L 210/12.
12. E. Baker, C. Harding, ‘From past imperfect to future perfect? A longitudinal study of
the Third Pillar’, (2009) 34 European Law Review 47.