Il presente contributo persegue un duplice obiettivo. In primo luogo, esso intende illustrare il ruolo di grande importanza che ha svolto, e continua a svolgere, la Convenzione europea dei diritti dell’uomo (la “CEDU”), come interpretata dalla Corte europea dei diritti dell’uomo (la “Corte EDU”), nell’ambito del sistema di protezione dei diritti fondamentali dell’UE. In secondo luogo, esso vuole dimostrare l’influenza che la Carta dei diritti fondamentali dell’UE (la “Carta”), come interpretata dalla Corte di giustizia dell’UE (la “Corte UE”), ha avuto sull’interpretazione evolutiva della Convenzione, nonostante la giovane età della Carta. Si sostiene, pertanto, che tale influenza reciproca abbia il potenziale per creare delle sinergie tra le due corti, capaci di accrescere il livello di protezione dei diritti fondamentali in tutta l’Europa.

SOMMARIO:

I. Introduction. - II. The Court of Justice: The Constitutional and Supreme Court of the EU. - III. The Charter: the EU’s ‘Bill of Rights’. - IV. Interaction between the Charter and the Convention. - V. Corresponding fundamental rights: consistency in the interpretation of the Charter and the Convention. - VI. The Convention as the minimum standard for protection. - VII. Coordination of three standards of protection: national constitutions – Convention – Charter. - VIII. The Charter as a positive influence on the dynamic interpretation of the Convention. - IX. Concluding remarks. - NOTE

I. Introduction.

I. The European Court of Human Rights (the ‘ECtHR’) is a beacon of hope for those who feel that justice has been denied at national level. It is also the protector of a certain idea of European democracy, according to which policy choices made by the incumbent majority of the moment must respect the sphere of individual freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms (the ‘Convention’). Last, but not least, it is a symbol of our shared European identity and common heritage as nothing unites Europeans more than the feeling that we all belong to a community of values where fundamental rights are upheld. The Convention, as interpreted by the ECtHR, has played, and continues to play, a highly influential role in the EU legal order. The Charter of Fundamental Rights of the European Union (the ‘Charter’), despite its relative youth, has, in turn, influenced the interpretation of the Convention. That mutual influence has the potential to create synergies between the ECtHR and the Court of Justice of the European Union (the ‘CJEU’), that improve fundamental rights protection in Europe as a whole.

II. The Court of Justice: The Constitutional and Supreme Court of the EU.

II. Although both the Convention and the EU legal order are committed to protecting fundamental rights, their respective systems of protection do not operate in precisely the same way [1]. Whilst the Convention operates as an external check on the obligations imposed by that international agreement on the Contracting Parties, the EU system of fundamental rights protection is an internal component of the rule of law within the EU. Even though the EU is not a State [2], the logic underpinning its system of fundamental rights protection is closer to that of an EU Member State than to that provided for by the Convention. The same logic applies to the Court of Justice of the European Union (the ‘CJEU’), the guarantor of the rule of law within the EU, whose role is, in effect, to act as both the Constitutional and Supreme Court of the European Union. Just like any Constitutional Court in Europe, the CJEU ensures that the acts adopted by the EU institutions comply with primary EU law, notably the EU Treaties and the Charter. It is also called upon to rule on the allocation of powers between the EU and its Member States as well as between the EU institutions. Just like any Supreme Court in Europe, the CJEU ensures the uniform application of EU law throughout the territory of the EU Member States, from the Gulf of Finland to the Strait of Gibraltar and from the Atlantic to the Aegean [3]. It does so through the preliminary reference mechanism, the keystone of the EU judicial system [4].

III. The Charter: the EU’s ‘Bill of Rights’.

III. Needless to say, in fulfilling those tasks, the CJEU must uphold the rule of law, of which fundamental rights, as recognised in the Charter, are part and parcel. This means, in essence, that the entire body of EU law – composed of thousands of directives, regulations and decisions – must be consistent with the Charter. That body must be interpreted in the light of the Charter. Nevertheless, where a consistent interpretation is not possible, the CJEU will have no choice but to annul or to declare invalid the EU act in question that constitutes an unjustified restriction on the exercise of a fundamental right. That was exactly what the CJEU did in Digital Rights where it declared invalid the Data Retention Directive, on the ground that by ordering the indiscriminate retention of personal metadata contained in electronic communications, that directive imposed a disproportionate restriction on the right to respect for private life as well as on the right to the protection of personal data, enshrined respectively in Art. 7 and 8 of the Charter [5]. Since the enforcement of EU law is largely decentralised, the implementation of that body of law is, in principle, entrusted to the EU Member States and their courts. Accordingly, such implementation can only take place in compliance with the Charter. For example, in the seminal Aranyosi and Căldăraru [6], the CJEU held that a Member State may not execute a European Arrest Warrant where such execution entails a violation of Art. 4 of the Charter brought about by the conditions of detention in the prison system of the issuing Member State. In the same way, it follows from the ruling of the CJEU in Bougnaoui and ADDH that an EU Member State implementing Directive 2000/78 – a directive which seeks to combat discrimination on grounds of, inter alia, religion or belief in the work place – must prevent an employer from treating an employee unequally in circumstances where such unequal treatment is grounded in a customer’s refusal to use the services of that employer because the employee wears an Islamic headscarf [7]. Unlike the system set out by the Convention, when it comes to the EU Member States, fundamental rights are not self-standing [8]. Not all national measures may be examined in the light of the Charter, but only those that fall within the scope of EU law [9]. Metaphorically speaking, the Charter is the [continua ..]

IV. Interaction between the Charter and the Convention.

IV. That said, it does not follow from the fact that the Charter is centre stage in the EU system of fundamental rights protection that the CJEU is required to adopt an isolationist or ‘EU-centric’ approach. On the contrary, the Charter mandates the CJEU to embrace openness and dialogue, in the field of fundamental rights, with the legal orders that surround the EU. That openness finds concrete expression in the Charter requirements that the CJEU should interpret fundamental rights in harmony with the constitutional traditions common to the EU Member States and, where relevant, that the CJEU should interpret the meaning and scope of those rights in the same way as the rights guaranteed under the Convention. Thus, the CJEU is required to engage in a constructive dialogue with the national courts – notably national Constitutional and Supreme Courts – and, of course, the ECtHR. Consequently, the Charter has not only codified but has also given new impetus to the case law of the CJEU in respect of the general principles of EU law, where it has held that the Convention has ‘special significance’ [12]. With the entry into full legal force of the Charter, one may be tempted to say that the Convention has now ‘a very special significance’ in the EU legal order. It is true that, until the EU accedes to the Convention, that international agreement is not incorporated into EU law [13]. As a result, the CJEU does not enjoy jurisdiction to answer questions that relate, for example, to the relationship between the Convention and the legal systems of the EU Member States [14]. Nevertheless, the Convention provides precious insights and guidance to the CJEU in the field of fundamental rights. First, as Art. 6(3) TEU confirms, fundamental rights recognised by the Convention constitute general principles of EU law, i.e. judge-made principles that enjoy constitutional status. Second, unlike the EU Treaties themselves which are silent as to the way in which the CJEU is to interpret them, the Charter contains two specific provisions that provide interpretative guidance regarding the interaction between the Charter and the Convention, i.e. Art. 52(3) and 53 of the Charter [15]. Art. 52(3) of the Charter states that ‘in so far as [the] Charter contains rights which correspond to rights guaranteed by the Convention […], the meaning and scope of those rights shall be the same [continua ..]

V. Corresponding fundamental rights: consistency in the interpretation of the Charter and the Convention.

V. The explanations relating to the Charter, which are to be given ‘due regard by the courts of the [EU] and of the Member States’ [17], list those corresponding fundamental rights [18]. To name just a few, this is the case for the prohibition against inhuman or degrading treatment [19], the right to liberty in the context of extradition procedures [20], the freedom of expression and information [21], the right to freedom of conscience and religion [22], the right to respect for private and family life [23], the right to property [24] and the principle that offences and penalties must be defined by law [25]. Once that correspondence is established, the CJEU will strive to ensure that the Charter is interpreted so as to provide, at the very least, a level of protection that corresponds to that of the Convention, as interpreted by the ECtHR. Allow me to illustrate that point by looking at three recent examples taken from the case law of the CJEU in very different areas of EU law. To begin with, in Bougnaoui and ADDH, the CJEU held, referring to the Convention, that the term ‘religion’ laid down in the Charter was to be interpreted broadly so as to encompass ‘both the forum internum, that is the fact of having a belief, and the forum externum, that is the manifestation of religious faith in public’. In order to ensure consistency with both the Charter and the Convention, the term ‘religion’ set out in the Directive 2000/78 was also to be interpreted in the same fashion [26]. The second example arises from the ruling of the CJEU in Florescu [27], a case concerning the compatibility with the right to property of austerity measures adopted by Romania in order to implement the conditions that the EU had attached to the grant of financial assistance to that Member State. In that case, the CJEU recognised that the need to rationalise public spending in an exceptional context of global financial and economic crisis constitutes a legitimate limitation on the exercise of that fundamental right. In so doing, the CJEU expressly referred to the ruling of the ECtHR in Ionel Panfile v. Romania [28]. The third example involves an asylum case called Al Chodor and Others [29]. In that case, the CJEU was called upon to decide whether an EU Member State was under an obligation to define the notion of ‘a significant [continua ..]

VI. The Convention as the minimum standard for protection.

VI. Moreover, the CJEU takes account of the Convention as the minimum threshold for protection, meaning that the EU system of fundamental rights protection may go above and beyond that threshold. For example, whilst the scope of Art. 13 ECHR is limited to guaranteeing an effective remedy against violations of the rights set out in the Convention itself, that of the first paragraph of Art. 47 of the Charter, which enshrines the right to an effective judicial remedy, covers not only the rights recognised by the Charter but also the ‘rights and freedoms guaranteed by the law of the Union’. This can be seen in environmental cases, where the CJEU has held that Art. 47 of the Charter provides an effective remedy against national mea­sures that violate rights that EU environmental law confers on individuals, including NGOs. That is so regardless of whether other provisions of the Charter are also at issue [32].

VII. Coordination of three standards of protection: national constitutions – Convention – Charter.

VII. For its part, Art. 53 of the Charter seeks to coordinate the three different standards of protection that co-exist in the EU Member States, namely those provided by national constitutions, those provided by EU law and those provided by international law, notably by the Convention. That provision of the Charter aims to bring order to pluralism by striking a balance between European unity and national diversity. In Melloni, the Court of Justice interpreted that provision as meaning that, where a Member State implements EU law, the application of national standards of protection of fundamental rights must compromise neither the level of protection provided for by the Charter, nor the primacy, unity and effectiveness of EU law [33]. As to the rights recognised in the Charter that correspond to those guaranteed by the Convention, this means, in essence, that an EU Member State may apply its own standards of protection, provided that three conditions are met. First, those standards must comply with the level of protection guaranteed by the Charter which, in turn, guarantees, at the very least, a level of protection equivalent to that of the Convention. Second, national standards may only be applied where the EU has not adopted a uniform level of protection which, needless to say, must itself comply with the Charter. Last, but not least, that higher level of protection must not jeopardise the objectives pursued by EU law. Allow me to illustrate that point by highlighting the contrast between, on the one hand, the ruling of the CJEU in Melloni and, on the other hand, those in F., Åkerberg Fransson, and M.A.S. and M.B. Whilst in the first of those cases, it was held that EU law did indeed prescribe a uniform level of fundamental rights protection, in the circumstances of the latter cases the opposite conclusion was reached, allowing room for national diversity. In Melloni, the EU legislator amended, in 2009, the European Arrest Warrant Framework Decision with a view to protecting the procedural rights of persons subject to criminal proceedings whilst improving mutual recognition of judicial decisions between Member States. To that effect, the EU legislator introduced a new provision that lists the circumstances under which the executing judicial authority may not refuse execution of a European Arrest Warrant issued against a person convicted in absentia. In that regard, the CJEU noted that [continua ..]

VIII. The Charter as a positive influence on the dynamic interpretation of the Convention.

VIII. In the same way, the ECtHR has, on several occasions, decided to take account of the Charter. It has done so in order to give new impetus to the dynamic and evolutive interpretation of the Convention, under which that international agreement is to be read as a living instrument. Thus, the Convention, as interpreted and applied by the ECtHR, also invites cooperation with Luxembourg. In particular, the ECtHR has relied on the Charter in order to update the content of Convention rights. The Charter was created, in essence, by setting down clearly in one single document a catalogue of fundamental rights stemming from the constitutional traditions common to the EU Member States, the Convention and other international agreements, as those sources of law stood at the beginning of this new millennium. Thus, whilst over the past six decades the Convention has established itself as a more mature system of fundamental rights protection, the ECtHR has rightly relied on the Charter – a mere teenager by comparison – in order to reveal the existence of an emerging European consensus as to the standards to be achieved in the field of fundamental rights [38]. For example, as you all know, in Scoppola v. Italy (no. 2), the ECtHR [39], departing from the previous decision of the European Commission of Human Rights in X v. Germany [40], ruled that Art. 7 of the Convention is to be interpreted so as to include the right to benefit from a more lenient penalty provided for in a law enacted subsequent to the offence. It did so despite the fact that the Convention is silent in that regard. In the course of its reasoning, the ECtHR referred to the ruling of the CJEU in Berlusconi  [41] and to the fact that Art. 49 of the Charter expressly recognises that right [42]. Both findings supported the view that, after the decision in X v. Germany was delivered, ‘a consensus […] gradually emerged in Europe and internationally [demonstrating that that right had] become a fundamental principle of criminal law’ [43]. The ECtHR followed a similar approach in Bayatyan v. Armenia, where it held that Art. 9 of the Convention recognises the right to conscientious objection, a right that is expressly mentioned in Art. 10(2) of the Charter. In so doing, it held that that provision of the Charter ‘reflects the unanimous recognition of the right to conscientious objection by the [continua ..]

IX. Concluding remarks.

IX. Whilst it is true that, on occasion, the two Courts may adopt divergent approaches on a particular question, as a matter of principle, both courts strive to achieve convergence, as the rulings of the ECtHR in Povse v. Austria and Avotiņš v. Latvia [45], and those of the CJEU in Aranyosi and Căldăraru and C.K. [46] demonstrate. This substantive convergence facilitates the application and interpretation of fundamental rights by the national courts which are called upon to operate in the multi-level system of fundamental rights protection that exists in Europe. Most importantly, this convergence is not left to chance but is the result of a constructive and cooperative relationship between the CJEU and the ECtHR that is based on comity and mutual respect. The judicial authority of both Courts is strengthened when they work together, as such cooperation is mutually reinforcing and creates synergies in the field of fundamental rights protection. There is no better way to improve the protection of fundamental rights at European level than to enhance citizens’ trust and confidence in their two European Courts, by showing that they share the same values and work together, to the benefit of all Europeans.

NOTE