Fundamental rights in the E.U.: whose rights are they anyway ... and who´s right?

• Author: Miriam Aziz
• Profession: Marie Curie Fellow, Robert Schuman Centre for Advanced Studies, European University Institute, Florence.

ABSTRACT: The discussion which follows is conducted in order to evaluate the extent to which judges of the national constitutional courts of the member states have dug their heels in the face of the challenge posed by legal pluralism.¹ Indeed, many judges have gone to considerable lengths in order to protect what they view as part of the national heritage of rights. Rights protectionism has been practised on the basis that the states which they serve protect human rights more vigorously than others or, alternatively, that they uphold certain rights and fundamental values which are not to be found in the Constitutions of other states. Such arguments have found their way to the German Federal Constitutional Court’s or Bundesverfassungsgericht decisions concerning European integration, for instance, both directly and indirectly. The same may be said, however, regarding constitutional courts of other EU member states. I have, however, elected to concentrate on the German case.

1. INTRODUCTION

   Which of the following words could be used to most usefully describe the develop-ment of fundamental rights and policies in the European Union? Is it A. éclat. B. eclectic. Or C. eclipse? Whereas one might be tempted to select B, the answer is of course D, that is to say, all of the above. The reason, as this paper will show, is not because A. and C. are conveniently placed at either side of eclectic in the Concise Oxford Dictionary.² Rather, it is because they have evolved in some instances through a brilliant display or effect (éclat) in which the European Court of Justice (ECJ) has had a visible hand. Moreover, they have derived ideas and style from a broad and diverse range of sources which include inter alia “the constitutional traditions common to the Member States” (eclectic). They have also, as in the case of an eclipse, obscured the light from one celestial body (in this case, the legal orders of the member states) by the passage of another (EU law), thereby, as some would argue, depriving the former of significance, power and even prominence. Indeed, the juridical debate concerning the relationship between EU law and national law has become so polarised, in some cases, that it might be more appropriate to replace the word eclipse with eclipsing binary which is used to refer to a binary star whose “…brightness varies periodically as the two components pass one in front of the other”.³ If only it were that simple!

   Multi-jurisdictionality⁴ has led to the (re) configuration of jurisdictional bounda-ries does little to reduce the complexity with which rights holders are faced. Human rights have been framed in a number of national, supra- and international legal spheres, some of which have significantly challenged states’ legal orders in terms of both legal and political authority.⁵ No more so has the challenge been so acute than at the interface between states and international organisations such as the EU, the Council of Europe, the United Nations, and the Word Trade Organization (WTO), to name but a few. This somewhat qualifies references to the word eclipse in relation to fundamental rights and policies in the EU, given that it is generally taken to refer to two bodies, where one obscures the other. For those who view EU law solely in terms of international law this may not pose much of a problem.⁶ For others, however, who are less able to succumb to the siren calls of denial, the tension between the two is worst understood in binary terms, particularly where one is characterised as international law. Indeed, the initial steps taken by the ECJ in Van Gend en Loos⁷ which engineered the genetic code of EC law so that it, contrary to international law, created rights upon which individuals could directly rely, initiated a process whereby jurists had to face the reconfiguration of their respective legal orders through the ‘third way’ of EC law.

   As the competence of the Union expanded, this arguably⁸ gave rise to a fourth way given the process which led to its restructuring into a layered entity, sheltering a host of legal entities,⁹ of which the EC is only one.¹⁰ This gave rise to spheres of direct effect concerning the rights and interests of individuals with some rights being framed in a thick sense, namely under the first pillar of the EC, and others in a thin sense, namely under the other two pillars, the Common Foreign and Security Policy (CFSP) and Cooperation on Justice and Home Affairs (CJHA). In the case of the latter, rights are not exposed to the supervisory jurisdiction of the European Court of Justice and are also, as in the case of EUROPOL, outside the remit of parliamentary control.¹¹ The point which I am trying to make is this: elements of differentiated integration give rise to differential spheres of rights both potential and actual which constitutes one of the many personalities of a polity which is both non-static and flexible.¹² However, trying to be all things to all people is impossible to sustain; choices have to be made. The win some, lose some process of prioritisation is familiar territory to the rights debate; indeed, they are inseparable. Thus where human rights goes, the “significant other” of prioritisation follows, at times hand in hand, at others a few paces behind.¹³ Prioritisation is, however, the more practically minded of the two, vested with the task of converting the currency of abstraction which human rights insists on converting into a currency which renders implementation affordable. It is not the win some, lose some deliberative process per se which deserves attention as regards the case at hand, but rather, the way in which it is conducted so that the policy choices being made, often under the mantle of judicial activism, may be exposed.

   As regards both the third and the fourth way, it has been very much a case of the road less travelled, the maps of which have not always been available to all those who seek to journey along it. Those maps which have been provided have not always been easy to read, near impossible, however, for those who expect to find the map’s key outlined solely in terms of international law. I say solely, because whereas EU law does contain elements of international law, it can not be exclusively understood in these terms, particularly when Community law has priority over national legal provisions,¹⁴ where damages can be obtained for the non-implementation of EC law¹⁵ and where there is a conflict between national law and Community law, the latter prevails,¹⁶ judicial ‘conscientious objectors’ notwithstanding. The stand made by the conscientious objectors is instructive for the intents and purposes of this paper, given that those national constitutional courts which have elected to object to the supremacy rule have done so inter alia on the basis of fundamental rights and the protection of values enshrined in their respective legal orders through the prism of competence.

   Indeed, fundamental rights has further consolidated the role of national constitutional court judges as constitutional ombudsmen, not unlike the Spanish concept of the Defensor del Pueblo which in this context is used to refer to the role of courts as being responsible for ‘border patrols’.¹⁷ In some cases, as in the Italian case Frontini¹⁸ this has been achieved on the basis of outright rejection of the supremacy rule. In other cases, the rejection has been achieved in a more subtle manner, with courts meaning what they say, but not necessarily saying what they mean. Indeed, the dexterity with which national courts have framed their objection to the supremacy rule has been such that it is not always clear when derogations are being made.

   As this paper will show, however, the ‘politics of dissent’¹⁹ is not always as identifiable as those conducted under the aegis of the ‘two legal orders’ doctrine. As regards the development of EU fundamental rights and policies, it is not only a case of asking ‘whose rights are they anyway?’, but also, ‘who is right?’ and, arguably, ‘who decides who is right?’ The debate concerning the ultimate authority, or Kompetenz- Kompetenz does not necessarily lend itself to the reductive components of multiple choice questions (or MCQs). As all those who have suffered at the hands of MCQs know best, where there is an ‘all of the above’ box, there is generally a request or, indeed a summons, to ‘Discuss’.

2. WHO FRAMED EU FUNDAMENTAL RIGHTS AND POLICIES?

   The European Court of Justice has constituted a driving force of the European integration process.²⁰ It has, however, not acted alone but has been aided and abetted by lawyers and national judges who have contributed to the development of the legal integration process, each in their own way, that is to say, according to both their means and their respective ends. This has, to some extent, created a type of “spill over”,²¹ the dynamics of which has, to some extent, fed back into the greater political environment.²² Governments are not, as has been suggested, the only actors who do not control this behaviour.²³ National constitutional courts find themselves faced with the same predicament in spite of their attempts to ‘claw back’ the remit of their jurisdiction. The best they can hope to achieve, as I will go on to argue, is to provide a theoretical blueprint for national judges who operate across the judicial spectrum as to advise them how to contain the impact of EU law on their domestic legal system.

   As regards the development of EU fundamental rights and policies, the European Court of Justice has in some cases rushed in where policy makers feared to tread,²⁴ re-presenting stretches of imagination which were arguably too wide, in terms of legitimacy.²⁵ It has also, however, had to come to terms with the process of differentiated integration as mediated through legal and extra-legal frameworks to which its access has been restricted, in spite of some of its circumnavigatory attempts to hold otherwise.²...