Supranational Fundamental Rights or Primacy of Sovereignty?

• Date: 01 March 2012
• Published date: 01 March 2012
• Author: Vojtech Belling
• DOI: http://doi.org/10.1111/j.1468-0386.2011.00596.x

eulj_596251..268

Supranational Fundamental Rights or

Primacy of Sovereignty?

Legal Effects of the So-Called Opt-Out from the EU Charter

of Fundamental Rights

Vojtech Belling*

Abstract: This analysis explores in detail various aspects of the possible legal impact of

‘British’ Protocol No 30 (the so-called opt-out from the EU Charter of Fundamental

Rights). On the basis of a legal appraisal, it concludes that the Protocol is not in any way

to be understood as a substantial derogation from the standard of protection of funda-

mental rights in the EU or as an ‘opt-out’ from the Charter in a substantial sense.

Nevertheless, its signif‌icance is def‌initely not to be underestimated. Its adoption as a

source of primary law enshrines a legally binding interpretation of the Charter and, in

particular, an interpretation of its horizontal provisions. In Article 1(2) and Article 2, the

Protocol in fact conf‌irms that the application of the Charter cannot lead to a change in the

existing competencies framework. These provisions are of a declaratory nature and apply

to all Member States. In Article 1(1), the Protocol is of a constitutive nature since it rules

out an extensive interpretation of what can be considered national legal acts adopted in the

implementation of EU law only for those States signed up to the Protocol. This specif‌ically

means that if, in the future, as part of the application of the Charter, the Court of Justice

of the EU (ECJ) has a tendency to subsume a certain area of national legislation under

the ‘implementation of Union law’ outside the f‌ield of implementing standards, in the spirit

of the Ellinki Radiophonia Tileorassi judgment (and subsequently allow their reviewabil-

ity with respect to their conformity with the Charter), such action would be admissible

only for those Member States that have not acceded to the Protocol. However, the

Protocol cannot exclude the continued application of the general principles of law instead

of the positively constituted fundamental rights in the Charter by the ECJ.

I Introduction

Protocol No 30 to the Treaty of Lisbon (on the application of the Charter of Funda-

mental Rights of the EU to Poland and to the UK; hereinafter the ‘Protocol’ or the

‘UK/Polish Protocol’), negotiated by the UK and Poland during the Intergovernmental

Conference of 2007–2008, is one of the most diff‌icult-to-interpret changes to primary

law occurring as the Treaty of Lisbon comes into force. Taking into account that also

the Czech Republic is to accede to the Protocol in the future, an in-depth evaluation of

* Secretary of State for European Affairs in the Czech Republic; Lecturer, Charter University, Prague.

European Law Journal, Vol. 18, No. 2, March 2012, pp. 251–268.

© 2012 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

the possible impacts of its provisions to the fundamental rights protection appears to be

necessary. At the outset, it should be stressed that interpretations of the Protocol differ

in political discourse and in legal doctrine. So far, there has been much talk of the fact

that the Protocol represents a kind of ‘opt-out’ from the EU Charter of Fundamental

Rights (hereinafter the ‘Charter’). While in political and media discourse such labels

can normally be attributed to an attempt at maximum simplif‌ication, which can easily

happen at the expense of objectivity, in the case of Protocol No 30, jurisprudence offers

similar notions, according to which the ‘To all intents and purposes, the EU Charter of

Fundamental Rights in the United Kingdom and Poland does not apply,’1‘the Char-

ter’s scope of application is limited,’2or even there has been a ‘deterioration in com-

parison with current legislation.’3In contrast, according to other legal views, the

attempt not to expand the judicial reviewability of national legal acts in respect of their

conformity with the Charter, as expressed in the Charter, could ‘come to nothing’4in

view of the fact that Member States are generally bound by the fundamental rights in

Article 6(3) Treaty on European Union (TEU); in other quarters, it is stated that the

Protocol is intended solely for the purposes of interpretation (which, for that matter, is

indicated by the preamble), which, although it could have constitutive effects in light of

the possible extensive interpretation of certain terms by the EU Court of Justice,5does

not inherently constitute any kind of departure from the material standard applied to

the protection of fundamental rights in the EU.6

In spite of the fact that the Protocol has not yet been subject to intrinsic, deeper-

reaching expert legal discussion and any evaluations tend to be found on the margins of

other analyses dealing with the broader issue of the protection of fundamental rights in

the EU, it is quite obvious that interpretations vary signif‌icantly. For this reason, we

believe it would be useful to examine its essence and possible ramif‌ications in more detail.

II The Legal Context and Incentive for Drafting the Protocol No 30

Although, at f‌irst sight, it is not appropriate for a legal analysis to assess secondary

political motives behind the adoption of any legal act, the legal motives that led the UK

1W. Brandt, ‘Verfassungsrecht in Polen: Verfassungsbeschwerde und Rechtsprechung des polnischen Ver-

fassungsgerichtshofes zu Fragen der EU-Mitgliedschaft?’, (2009) Europarecht 143.

2J. P. Terhechte, ‘Der Vertrag von Lissabon: Grundlegende Verfassungsurkunde der europäischen Rechts-

gemeinschaft oder technischer Änderungsvertrag?’, (2008) Europarecht 171.

3A. Hatje and A. Kindt, ‘Der Vertrag von Lissabon—Europa endlich in guter Verfassung?’, (2008) Neue

Juristische Wochenschrift 1767.

4So F. C. Mayer, ‘Der Vertrag von Lissabon und die Grundrechte’, (2009) Europarecht 93. Mayer, highly

critical of the Protocol, somewhat emotively calls it ‘an ugly signal for the common value base of the

Member States’ (ibid, at 95).

5J. F. Lindner, ‘Zur grundsätzlichen Bedeutung des Protokolls über die Anwendung der Grun-

drechtecharta auf Polen und das Vereinigte Königreich—zugleich ein Beitrag zur Auslegung von Art 51

EGC’, (2008) Europarecht 783 ff.

6The tenet that the Protocol constitutes any kind of substantial derogation from the standard protection of

fundamental rights in the Charter is soundly rejected by V. Mehde, ‘Gespaltener Grundrechtsschutz in der

EU?’, (2008) Europäische Grundrechte Zeitschrift 269 ff. Lindner, mentioned above, closes his treatise in

a similar spirit, appreciating the positive restrictive signif‌icance of the Protocol in respect of extensive

ECJ case-law. See also the report of the UK House of Lords, The Treaty of Lisbon: An Impact Assessment.

Volume I: Report, House of Lords, London March 2008, 101 ff. From a more complex point of view that

lies between both extreme interpretations of the Protocol, see C. Barnard, ‘The “Opt-Out” for the UK and

Poland from the Charter of Fundamental Rights: Triumph of Rhetoric over Reality?’, in S. Griller and

J. Ziller (eds), The Lisbon Treaty. EU Constitutionalism without a Constitutional Treaty? Wien—New York

(Springer, 2008), at 257/282.

European Law Journal Volume 18

252 © 2012 Blackwell Publishing Ltd.