Stuck Between Unity and Diversity

The role of the EU Charter in disputes concerning fundamental rights standards between the EU and Member States (MS) has been characterized by ambiguity ever since the Charter’s inception. While many different approaches have been devised in theory, practice struggles to provide clear guidance in concrete cases. As the EU deepens integration of MS to effectively face the challenges ahead, the appropriate interpretation of the Charter may counterbalance this progressive harmonisation by embracing diverse fundamental rights standards. In particular, I advocate for a pluralistic interpretation of Article 53 of the Charter that allows for a greater degree of accommodation of national particularities. In that way, one would not only reduce constitutional tensions but perhaps even find that there may be unity in diversity after all.

Deeper integration doesn’t equal greater unification

During the last two decades, the EU has been struggling to effectively keep up with the global challenges. It seems that to position itself as a relevant global actor and preserve its relevance, it needs to deepen the level of integration. Since a Treaty change seems politically unrealistic, enhanced integration will need to proceed within the existing Treaty provisions and rely on secondary legislation.

Further integration does not and should not be equated with complete unification. The clearest indication of this is the prospect of widening of the EU to new MS. As past practice has shown, furthering the integration within the EU will be theoretically and practically impossible without differentiation. Widening and deepening has always been accompanied by (transitional or permanent) differentiation among the MS. Moreover, EU’s legislative activity has not consistently held up to the axiom of uniformity. As studies of differentiation show, a significant portion of EU law entails differentiation (see here or here). At the level of secondary law, this approach is most often adopted by ways of partial or minimum harmonization, entailing safeguard clauses. Establishing deeper integration will entail both unification and accommodation of diversity (for a recent study, see here). This post focuses on situations where secondary EU law affords a degree of deference to the MS, leaving aside instances of either no or full harmonization, as these raise separate issues with regards to the Charter.

In the area of fundamental rights protection, principled and pragmatic reasons justify deference to the MS. In terms of public intervention by the EU, its legitimacy will be linked to the level of accommodation of MS preferences available under EU law. In that sense, the protection of pluralism, inherent to the EU’s fundamental rights landscape, presents a normative value by itself. Additionally, adopting such deference is a politically opportune choice. This applies even more in fundamental rights protection, as rights represent the foundational value choices of given societies and are often inviting topics to stir political turmoil. When regulating areas where discrepancies among the levels of fundamental rights protection are expected, the EU should therefore adopt mechanisms which allow such accommodation.

Accommodating fundamental rights diversity in secondary law

Numerous acts of secondary legislation allow MS to apply their own fundamental rights standards (e.g. Article 1(7) of Directive 2006/123/EC or Article 13 of Directive (EU) 2016/343). The underlying idea is that MS are allowed to occupy the fields not (fully) regulated by EU law by providing their own (higher) standards of protection, reaching above the “floor”. They are generally free to adopt their own rules, insofar as they do not interfere with their primary law obligations, namely the “ceiling”.

In terms of fundamental rights, the margin of discretion, and especially the role of the Charter, remains somewhat fogged. The main question is whether the Charter is supposed to play a role in determining the scope of deference left to the MS between the floor and the ceiling. Noting the ambiguity in the case law, this post proposes a more pluralistic understanding of Article 53 of the Charter (see Millet and de Witte), mainly based on its role in resolving cases of conflicting standards.

The application of the Charter

Fundamental rights protection in the EU (as in any federal-type structure) is essentially tied to the allocation of competences. Hence, the first question is whether the Charter even applies in the area between the floor and the ceiling. This relates to its scope of application as elaborated in the case law (C-40/11 Lida, para. 79; C-206/13 Siragusa, para. 25) of the CJEU. As explained by Dougan, Charter rights are second-order norms that are only invoked when a first-order norm of EU law triggers their application. Whether this is the case in the situations discussed here is wrapped in a degree of mist (for detailed discussions, see here, here or here). For the purpose of this post, we will presume the applicability of the Charter, meaning that we are left with the question whether the Charter has anything to say about the rebalancing of rights at the MS level.

Does the Charter say anything about diverse fundamental rights standards?

In some cases of minimum harmonization, against the express will of the legislator, the CJEU (somewhat paradoxically) employed the Charter to limit the scope of MS’s discretion, even converting a floor into a ceiling (for example C-426/11 Alemo Herron or C-201/15 AGET Iraklis). This prompts the question whether the Charter sets any rules determining the leeway left to the MS in striking a different balance between competing rights from the one that follows from EU law. This appears to be linked to Article 53 of the Charter. The ambiguity, however, follows from the fact that there is essentially only one case (C-399/11 Melloni) where the CJEU engaged in a substantive discussion on Article 53 of the Charter as a conflict of rights norm, and none of the minimum harmonization cases even mention it.

This seems to confirm the predominant position in the literature, ascribing Article 53 of the Charter (only) symbolic value, being a politically useful “inkblot”. In contrast to this narrative, I argue that in light of the normative arguments in favour of legal certainty and preservation of pluralism, Article 53 of the Charter should be used in a more progressive manner to adjudicate such cases as well. This is even more relevant in the face of Kleinlein’s and Torres Pérez’s findings that expanding EU fundamental rights protection could lead to a unification of standards.

How to (re)use Article 53 of the Charter?

The main concern behind the prevailing interpretations of Article 53 of the Charter – implicitly reinforced by the CJEU’s limited references to it – is the potential threat it poses to the principle of primacy of EU law. As the narrative goes, applying national fundamental rights standards based on Article 53 of the Charter would allow the MS courts to override EU law, inviting them to review EU law against national standards. This would not be in line with the mandate of the framers of the Charter, nor was it their intention. Several arguments can be made against this position.

First, measuring MS action against national fundamental rights standards does not equal adjudication of the validity of EU law based on those standards. A MS may be allowed to adopt different fundamental rights standards and stay fully in line with EU law. This should arguably be the norm in situations of minimum harmonization.

Second, the concern over primacy is only valid if the national courts unilaterally disregard the relevant EU law. Conversely, if a different standard is condoned by the CJEU, then MS action is fully in line with EU law. If the CJEU allows a MS to adopt higher standards under Article 53 of the Charter, the MS is not violating the principle of primacy, rather, it is acting in full accordance with it. In true pluralist sense, the key then lies in loyal cooperation between national courts and the CJEU.

Third, interpreting Article 53 of the Charter to allow higher national standards in situations of minimum harmonization can arguably be presented as fully in line with Melloni – the only reference point thus far. There, the CJEU stated that the “[…] national authorities and courts remain free to apply national standards of protection of fundamental rights, 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).

Focussing on primacy, this must clearly mean that primacy is not always violated if MS adopt higher national standards. To put it differently, the CJEU permits the use of national standards as long as primacy is safe and well. Primacy will only be infringed if a MS unilaterally disregards the EU standard. If, however, the CJEU grants a margin of discretion to the MS to go beyond the threshold (which should be the norm under minimum harmonization), then it is still EU law itself which determines the measure of its own validity. The degree of deference left to the MS would rest on the level of exhaustiveness of the relevant EU legislation (C‑617/10 Åkerberg Fransson, para. 29). In different circumstances this seems to have been implicitly confirmed in C‑42/17 M.A.S. and M.B.

It follows that insofar as EU law does not exhaustively regulate an issue, Article 53 of the Charter should be read to allow the MS, in cooperation with the CJEU, to occupy the space between the floor and the ceiling under secondary EU law with its own standards of fundamental rights protection (C-168/13 Jeremy F and C-507/17 Google v CNIL). Article 53 of the Charter would then function as a guiding principle, requiring of the CJEU to allow MS to adopt higher standards of fundamental rights protection unless this was exceptionally not possible due to a violation of other principles of EU law. This interpretation of the provision would add normative weight to the argument that national fundamental rights diversity needs to be preserved. This should be a cause for celebration for the remaining few constitutional pluralists out there. It offers a new platform for dialogue on effective fundamental rights protection in Europe.

Primacy is only threatened if the CJEU, even in cases where the legislator intended to leave scope for MS discretion, insists on a narrow interpretation of EU law provisions for the sake of effectiveness. If the CJEU grants broader discretion to national courts, accepting that the unity and effectiveness of EU law must be balanced with other EU law principles, then the concerns over primacy are mostly dissolved.

Why should the Court start referring to Article 53 of the Charter?

The proposed reading of Article 53 of the Charter would be beneficial for two main reasons. It would provide clearer guidance regarding the extent to which the MS are allowed to exercise their discretion under secondary EU legislation. The “rules of engagement” would become more predictable, leading to less constitutional confrontations.

Moreover, the said interpretation is more in line with the pluralistic underpinnings of the EU. It makes a step away from the paradigmatic focus on effet utile, based on the internal market logic. Instead, it leads to the realization that effectiveness is just one of the principles determining the EU legal order, which must be balanced against others. In the wake of deeper integration, spreading into many rights-sensitive areas, the continuing application of internal market logic seems somewhat obsolete and incompatible with the reality. The proposed reading of Article 53 of the Charter would also foster MS legitimacy and further reduce the risk of constitutional confrontations.

Paradoxically, adopting a deferential stance towards national fundamental rights standards in harmonized areas may end up encouraging deeper integration among the MS. They may be less reserved, knowing that the fundamental tenets of their systems will not be compromised, eventually resulting in a higher level of effectiveness of EU law. Perhaps there is unity in diversity after all.

The author wishes to thank Samo Bardutzky and Jaka Kukavica for their helpful comments. They do not, however, share the responsibility for all the remaining errors.