Professor Dr. Dr. h.c. Thomas von Danwitz, D.I.A.P (ENA, Paris),
President of Chamber of the ECJ, Luxembourg 
Ladies and Gentlemen,
I feel very honored to speak to this distinguished audience. Of course, it is a great pleasure to discuss questions on the evolution of EU Law with respect to the institutional foundations of the Union and to the protection of Fundamental Rights in the framework of this seminar. The Charter of Fundamental Rights and its application by the Courts of the Member States raises important questions on the relation to national constitutional law and their protection. Therefore I will be dealing in particular with the challenges resulting from a uniform application of the Charter, its applicability to the Member States and their respective judiciaries. But before entering into that debate, let me first make some general remarks on the evolution of the institutional foundations of the Union. In the final part of my talk, I will present an outlook on the challenges lying ahead in the field of fundamental rights protection.
My remarks on recent evolutions in relation to the institutional foundations of the European Union are triggered mainly by interrogations which have been raised in the course of the Pringle case (C-370/12, pending). After having been exposed this morning to the full range of legal and institutional developments of the Union resulting from the debt crisis, I shall limit myself to three rather brief remarks on questions which have already reached the Court.
In the first place, it has to be recalled that the Member States of the EU remain masters of the treaties, in particular as regards the shaping of the institutional structure of the Union. As a consequence, the mandate of the Court of Justice does not extend to the validity of the treaty dispositions as such. Nonetheless, the Court of Justice has to verify whether the conditions of the simplified revision procedures according to art. 48, paragraph 6 TEU, are met. The mandate of the Court is specifically limited to this procedure, it does not include a review of substantive compatibility of a modification with the existing case law. The detailed exercise of that review might appear delicate at first glance in relation to the scrutiny of whether a revision is limited to a disposition of the third part of the Treaty on the Functioning of the Union, but there should be ways for the Court to overcome that challenge.
In the second place, the institutional arrangements put in place to combat the Euro crisis and in particular the ESM treaty raise questions on the nature and the extent of the powers enshrined in the actual treaties which reflect the well known conceptual divergence between the supranational instruments of the treaties, the so called community method, and forms of intergovernmental cooperation. It seems to be common ground that Member States can enter into forms of intergovernmental cooperation on subject matters lying beyond the powers conferred to the EU in the treaties. But, are Member States barred from using forms of intergovernmental cooperation if the subject matter concerned is covered by the powers conferred to the Union? And if so, does this logic apply as well to the use of Article 352 TFEU? Since the Union does not possess the budgetary means necessary to combat the Euro crisis, those questions are particularly delicate to answer.
In the third place, the ESM treaty raises the fundamental question of whether Union law, as it stands, permits the creation, by a separate treaty concluded amongst the members of the Euro zone, of an entity of international law which, in fact is charged to realize objectives of the Union and, in the same ESM treaty, to mandate the Commission and the European Central Bank to perform, in practice, a significant part of the mission assigned to the ESM. The Pringle case has raised this question under the aspect of a circumvention of the institutional setting of the Union, without having pointed to elements for an intent of such nature or a full equivalence in result. But, the question might be of rather general relevance to the institutional structure of the Union. It is certainly not desirable to see an ongoing evolution of hybrid institutional structures being created in the ambit of the Union. But what are reliable legal limitations to such creationism?
This question appears to be of major relevance in the course of the ongoing debate on a more or less fundamental revision of the institutional structure of the Economic and monetary Union, which certainly will be a major subject for the years to come. In that respect, the judges of the Court would, no different from the citizens of the Union, welcome institutional structures that would enhance the understanding of the Union and, in return, foster the legitimacy of its action.
The Charter of Fundamental Rights marks a core step of codification of fundamental rights protection in the European Union. It builds upon the European Convention on Human Rights, the European Social Charter and other human rights conventions as well as the constitutional traditions common to the EU-Member States. The introduction of a fundamental rights regime into EU law is essentially a story of judge-made law.
Today the Charter offers judicial authorities and citizens a true Bill of Rights instead of the necessity to search for the Court’s decisions in conjunction with a variety of legal and political documents. Some of the Charter’s provisions constitute rather symbolic confirmations others reflect new developments of existing human rights instruments, such as the absolute prohibition of the death penalty, as an example for the first category, and the prohibition of reproductive cloning of human beings and the prohibition of discrimination on relatively “new” of policy such as disability, age and sexual orientation as examples for the latter category.
The Charter’s entry into force can therefore be seen as a major legal innovation of the Lisbon Treaty and will have a significant impact on the constitutionalization of the Union’s legal order in the long run. The Charter entails, in particular for the Court of Justice as well as for national courts, the necessity to ensure a transfer from a system of judge made law in matters of fundamental rights to the codified system of the Charter. This task requires on the one hand to assure the continuity of what has been achieved prior to the Charter as aquis in terms of fundamental rights protection and on the other a new orientation according to the accentuations which follow from the Charter itself.
Even though the Charter came into force only two years ago, the Court has already delivered quite a significant number of judgements in a great variety of fields of substantive law, particularly in matters of social policy, free movement of persons, the status of refugees and EU citizenship.
III. A Uniform Application
First of all, the application of the Charter raises the federal question on how its system of fundamental rights protection will have to fit in between the national systems of fundamental rights protection and the system of the European Convention on Fundamental Rights and Liberties.
The Court’s principle task is to maintain a coherent system of fundamental rights protection given the co-existence of three different systems of human rights protection in Europe consisting namely of the system of national fundamental rights protection, the Strasbourg system of the Convention and the system of the Charter. This might prove to be the most important challenge which the Court will have to face in the years to come.
Also, when reading carefully through Art. 6 TEU, the challenge of coherence does not only exist in terms of these three different systems of fundamental rights protection and their interplay. Even and in particular within the EU system of fundamental rights protection we are, according to the wording of Art. 6 TEU, confronted with four different inspiring sources of fundamental rights protection which are the European Convention on Human Rights, the general principles of EU law, the fundamental rights as granted by the Charter and the common constitutional traditions of the Member States.
In that latter respect, I do not think that it is far fetched to assume that European citizens would find it difficult to accept that fundamental rights protection in the EU could, in practise, be different according to the inspiring sources which would in concreto find application. Therefore, the necessity to maintain a coherent system of fundamental rights protection requires that the Court applies the codified body of fundamental rights enshrined in the Charter in a way which will substantively meet the requirements resulting from any of the other sources for the protection of fundamental rights in the EU.
Now, let me come to a very basic point of understanding which is at the same time essential. The function of the Charter is not to bring about harmonization of the systems of protection of fundamental rights of the Member States; it doesn’t establish a minimum standard generally applicable to Member States like the ECHR does. This is a fundamental difference between the Charter and the Convention. The Charter has rather been elaborated by a genuine demand for a uniform application of EU law. For the Union, it is clear that EU law cannot be interpreted and applied in conformity with, and according to, different requirements under national standards of protection of fundamental rights. This is all the more true for questions dealing with the validity of EU law. To do otherwise would create the risk of having twenty-seven different standards of protection of fundamental rights within the EU, and therefore a divergent application of EU law.
The obligation of the Member States to apply or to transpose provisions of Union law entails that they are not only bound by the primary law of the Union, but evidently that they also have to respect the fundamental rights granted by the Charter. Independently of whether an administrative authority, governmental body or a jurisdiction of a Member State has to apply or implement primary or secondary Union law which is directly applicable or national law which rests on imperative requirements of a directive, it has to respect the fundamental rights guaranteed by the Charter. From the point of view of the Court it is, in order to assure a uniform application of Union law, decisive that the validity of a secondary provision of Union law exclusively rests on its compatibility with primary law and, in particular, with the fundamental rights granted by the Charter. To the contrary, it may not be dependant on national fundamental rights considerations.
The same applies to the possibility and the necessity of an interpretation of Union law in conformity with fundamental rights. Here again, only the primary law of the Union and notably the fundamental rights of the Charter are to be applied. In practical terms, this is in particular relevant in order to determine the substantive content of secondary legislation or, eventually, its scope of application by ways of an interpretation in conformity with the requirements of the Charter. In sum, one could, cum grano salis, establish the general rule that only the fundamental rights of the Union are applicable whenever a legal situation is substantively governed by a directly applicable law of the Union. Thus, the Charter is the exclusive tool of EU law ensuring the conformity of primary and secondary EU law and its application with fundamental rights.
Were a national Court to apply fundamental rights standards resulting from national constitutions in such circumstances, there would be a risk that the relevant secondary law of the Union would not receive a uniform interpretation, but would instead be applied in a divergent manner in different Member States. In principle, the same risk exists for an application of the Strasbourg Convention by national courts if it is applied of EU law in an autonomous manner. Therefore, national courts are entitled, under Article 267 TFEU, to defer questions in that respect to the European Court of Justice.
In that respect, ensuring a certain level of consistency in the degree of fundamental rights protection among the different systems is crucially important to the acceptance of a strong European fundamental rights jurisprudence by the national judiciaries. In general terms, it would certainly be detrimental to the functioning of fundamental rights protection in Europe if the different courts involved in the process entered into a competition for “who grants the best fundamental rights protection”. Furthermore, a maximum level of protection for the exercise of one fundamental right usually occurs at the cost of another. A race to the top for one fundamental right would inevitably lead to a race to the bottom for another.
In addition to this problem of trying to attain the “right” level of fundamental rights protection, such a judicial competition would inevitably lead to an institutional quest for leadership in fundamental rights protection. That kind of evolution would not only promote a detrimental forum shopping for fundamental rights protection in Europe, but, most importantly, it would neglect the fundamental necessity for the preservation of traditional differences in fundamental rights protection that result from national traditions, cultural specificities and historical evolutions leading to a specific conditioning of the legal culture of one or more Member States. There are plenty of examples in that respect: the concept of human dignity, the so called armed democracy in the basic law of Germany, the laws on nobility in Austria, the status of the Catholic Church under the constitution of Poland and the particular importance attributed to the principle of laïcité by the French constitution. In such circumstances, the “required” protection of fundamental rights is deeply linked to the respect for the constitutional identity of Member States as it follows from Article 4 (2) TEU and as the requirement for subsidiarity of fundamental rights is understood. The Court of Justice will have to give a first answer to these questions in the Melloni-case (C-399/11) on the application of the arrest warrant in cases of trial in absentia upon a reference from the Spanish Tribunal Constuticional.
For national judges the applicability of the Charter to the Member States and their public entities is certainly one of the most crucial points which requires careful reflexion.
The application of the Charter requires both its applicability ratione temporis and ratione materiae. Even though the Court has dealt extensively with the question of applicability of the Charter in only a very small number of judgments, it is obvious that these questions have to be answered implicitly in the affirmative before the Court may move onto an interpretation of the Charter rights.
As far as the applicability ratione temporis is concerned, the Court has examined the validity of those legislative acts in light of the Charter, that entered into force before December 1st, 2009 and are still in effect after that date, thereby implicitly assuming the applicability of the Charter to such acts. This rationale also should apply to administrative acts that have permanent effect, even if they have been issued prior to that date. To the contrary, in principle, the applicability of the Charter should be denied in situations that have become definitive in law before the Charter’s entry into force.
The applicability of the Charter ratione materiae is governed by Article 51 of the Charter. According to Paragraph 1 of this Article, the Charter applies, on the one hand, to the institutions, bodies, offices and agencies of the EU and, on the other hand, to the Member States only when they are implementing Union law. While the EU and its institutions are generally bound by the Charter, the extent of the Charter’s applicability with respect to the Member States is much less evident. In order to understand the scope of application of the Charter with regard to Member States, it is essential to consider the wording and the teleology of Article 51 of the Charter as well as the related explanations and the genesis of this Article.
These elements will show that the Charter is not applicable if the case merely concerns a Charter provision but requires as well that – beyond the later provision – another norm of Union law finds in concreto application to the case at hand (Allan Rosas). The Charter does not apply to national legislation that is within the sole competence of the Member States; there must rather be a provision or a principle of Union primary or secondary law which is directly applicable to the case.
When it comes to a detailed interpretation of Article 51 (1) as such, it seems to me that, in light of Article 52 (7) of the Charter, the most conclusive support for the interpretation of Article 51 can and should be drawn from the explanatory notes on that provision. Hereafter it is quite evident that its substantive meaning results from the interplay of the three lines of jurisprudence cited therein, namely Wachauf, ERT and Annibaldi.
Nonetheless, there should be no misunderstanding that the reference to Wachauf and ERT covers, despite the limitation resulting from the reference to Annibaldi, all relevant situations governed by EU law. The quite prudent approach to the scope of application of the Charter should in particular not lead one to think that only a small number of cases will fall under the Charter. As it results from the reference to Wachauf and ERT by the authors of the Charter, all cases that involve national measures determined by obligations under Union law will fall within the Charter’s scope.
There are many occasions for the application of the Charter in such a way, one being that the Charter will apply to all national administrative measures that implement EU law. In this context, measures that simply concern an area covered by a regulation of the EU without being governed by that regulation do not fall within the scope of the Charter. Moreover, a national measure which does not implement EU law but which would indirectly affect the correct implementation of EU law, for example by limiting the scope of application of EU law, should – in my personal view- as well fall within the scope of the Charter. Instead, the Charter does not apply to national legislation even though it is enacted in the context of the transposition of an EU directive in so far as it transcends what is regulated by the directive. When it comes to the application of art. 101 and 102 TFEU and the various dispositions of Regulation 1/2003, it is self-evident that only the fundamental rights of the Charter apply. Only decisions of national anti-trust authorities, which are not covered by EU law, fall outside the scope of application of the charter, as in the Pfleiderer-case (C-360/09) on national rules relating to leniency.
V. Summary and Conclusion
In the final part of my remarks I would like to give a brief outlook on the European fundamental rights protection in the years to come.
The case law of the Court on fundamental rights granted by the Charter has evolved significantly after the Charter’s entry into force. Even though major questions of horizontal impact remain unanswered, some of them will come before the Court in due course. So far, the Court has not shown any reluctance to address major questions if there was a necessity to answer them. It is likely that the Court will soon enter into a decisive phase with respect to fundamental rights, in which conceptual foundations have to be laid. While the recent jurisprudence shows promising signs that the high level of protection envisaged by Article 53 of the Charter will indeed be realized in practice, it seems that the Court will have to answer the most crucial questions relating to the “federal” issues on the applicability of the Charter. It goes without saying that this might, after all, be decisive for the acceptance of the Court’s jurisprudence in the long run.
The essential question is how the ECJ will cope with the challenge of interpreting potentially conflicting provisions found in the ECHR, other international agreements, and national constitutions, if conciliation cannot be achieved. It seems that these Charter provisions are focused on the realization of a maximum standard of one fundamental right, but neglect the difficulties arising from conflicting fundamental rights of different parties in multipolar relations. The rules contained in the Charter are of no real assistance in those circumstances, but nonetheless they allow for one to conclude that the ECJ should exercise its mandate in a twofold orientation; the level of fundamental rights protection provided by the ECHR, international law, international agreements or national constitutions shall not be restricted. Moreover, the balancing of conflicting interests should be conducted in a manner that allows for the optimization of fundamental rights protection. It goes without saying that the openness of the Charter provisions in this respect leaves room for a genuine debate between the national courts and the ECJ within the framework of judicial cooperation as it is established by the preliminary reference proceeding under Article 267 of the TFEU.
Now, a much debated question is whether the Charter, combined with an increase in the EU’s fundamental rights activity and an ever widening scope of EU law, will lead to an important shift in the currently achieved balance in human rights protection between Member States and the Strasbourg ECHR system on one hand and the EU on the other. While it is surely too early for reliable predictions, key provisions of the Charter and first experiences with their application by the EU institutions suggest that the perspective may not be appropriately framed in these terms: Firstly, the scope of the Charter in relation to Member State action is construed prudently. Secondly, the limits of EU competences in this field, unaltered by the Charter and the accession to the Strasbourg system, are acknowledged and respected. For those Charter rights corresponding to the ECHR Article 52 (3) incorporates the legal content of the Convention into the Charter. On that basis the two European Courts have already announced a “parallel” interpretation in which the Court of Justice will continue to faithfully implement the Strasbourg case law. Furthermore, several provisions suggest that the national constitutional traditions and legal systems remain relevant for the interpretation and development of the EU’s corpus of fundamental rights. Finally, we will continue to observe the well-known phenomena of interaction and “commuting” between both levels, of an “osmosis of values“, which have allowed the shaping of general principles of EU law.
If nonetheless, in Europe’s polycentric system of human rights protection, a shift of importance towards the EU level is to occur over time, it will be less a consequence of the Charter itself or of the institution’s work in applying it, but rather a result from other decisions that the Masters of the Treaty have taken and may still take, namely from significant conferrals of legislative competences to the EU, both in most rights-sensitive policy areas such as justice and home affairs and as regards the realisation of specific fundamental rights such as non-discrimination in Article 19 (1) TFEU. There may also be a “spill-over” effect over time, in that interpretations given to the Charter will, even outside its scope, influence that of the ECHR and national bills of rights – but as in the past, this is not likely to be a one-way street.
By taking up these challenges lying ahead in the years to come, it is of an utmost importance to contribute to realising the vision of the Lisbon Treaty and to building a fundamental rights system in Europe in which the judicial and political actors at each level – national, Union and pan-European – will retain their importance. Under the auspices of mutual cooperation their respective missions as complementary and jointly reinforcing.
The European Court of Justice will do its share and contribute to this common European success.
Thank you very much!
 All views expressed are strictly personnel to the author and cannot be attributed to the Court of Justice of the EU.