Over the past months the rulings of the Court of Justice of the European Union (CJEU) in the cases of Melloni and Åkerberg Fransson have received due attention. Both cases dealt with the interpretation of the Charter of Fundamental Rights of the European Union (the Charter), and hence with the future course fundamental rights protection at the EU level is likely to take. In Melloni, first, the CJEU ruled that in principle Member States are allowed to apply (higher) national fundamental rights standards in matters falling within the reach of EU law, but only ‘provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised’ (para. 60). Secondly, in Åkerberg Fransson the CJEU opted for a wide interpretation of Article 51(1) of the Charter. This section holds that the provisions of the Charter are addressed ‘to the Member States only when they are implementing Union law’. However, in Åkerberg the CJEU did not consider this reason to refrain from reviewing an issue concerning an offence of national value-added tax evasion and the application of the ne bis in idem principle in Sweden.
The reception of both rulings has not been entirely positive. Especially Åkerberg is said to be based on a too far-fetched understanding of the CJEU’s competences, creating the power to apply EU fundamental rights in a potentially wide range of cases ‘clearly’ not covered by (the wording of) Article 51. Yet not only bloggers and academics have felt the urge to reflect on the issue. Åkerberg has now also been ‘officially’ criticized by the German Bundesverfassungsgericht – hardly the least significant player in the field of (national v.) European fundamental rights protection. In a judgment concerning a counter-terrorism database, that is likely to be first and foremost remembered as a new episode in the Luxemburg-Karlsruhe ‘dialogue’, the Bundesverfassungsgericht added a – supposedly superfluous – consideration that cannot be understood other than as a warning for the CJEU. It stressed that it was out of the question that the case at hand fell within the scope of the Charter, as it pursued nationally determined objectives with only a possible ‘indirect’ effect on the functioning of the legal relationships under EU law. Further, the Bundesverfassungsgericht, according to the (English!) press release, considered that:
‘[t]he European Court of Justice’s decision in the case Åkerberg Fransson (judgment of 26 February 2013, C-617/10) does not change this conclusion. As part of a cooperative relationship, this decision must not be read in a way that would view it as an apparent ultra vires act or as if it endangered the protection and enforcement of the fundamental rights in the member states in a way that questioned the identity of the Basic Law’s constitutional order. The Senate acts on the assumption that the statements in the ECJ’s decision are based on the distinctive features of the law on value-added tax, and express no general view.’
Thus, the Bundesverfassungsgericht states that it understands the meaning of Åkerberg to be a very limited one, as a broader reading would amount to an ultra vires act on the part of the CJEU. Clearer could a warning not be. However, it does bring up the question of how this ultra vires act then exactly would be construed. How exactly can a ‘too broad’ understanding of Article 51(1) of the Charter – the interpretation of which is indeed no doubt a task for the CJEU – be said to make up an act that is ultra vires?
As is signaled in earlier responses to the German Constitutional Court’s take on Åkerberg, the danger of a too broad scope is only one side of the coin. After all, cases are imaginable in which national fundamental rights protection is not as well developed as in Germany, and in which the applicability of the Charter will be warmly welcomed. András Jakab even argues that if the EU does not want to lose its credibility as a community of values, the Charter should be applicable in all domestic cases. Yet, fundamental rights protection can be understood and carried out in different ways. This means that whereas overall applicability of the Charter indeed implies the biggest possible room for fundamental rights protection at the EU level, it also implies that the CJEU’s interpretation of the meaning and reach of (specific) fundamental rights might become ubiquitous and trump other existing approaches and practices. And as Melloni indeed shows, I am not entirely convinced that the ‘primacy, unity, and effectiveness’ of (economic) EU law will then not play a decisive role in setting future human rights standards. Whereas an approach that allows the CJEU to play a pivotal human rights role the moment national situations signal clear, systemic violations of core human rights (cf. the much-debated reverse Solange proposal) might ensure the necessary development of the EU as a human rights based-entity, overall applicability of the Charter is something else. It is a matter of who has the last word on all kinds of fundamental rights issues, and I agree with the Bundesverfassungsgericht that this is something at least worth a little discussion.