John Morijn

With Akerberg and Melloni the CJEU issued two important judgments on 26 February 2013. After a first post about Akerberg, in this second part John considers Melloni and the Court’s application of article 53 of the Charter of Fundamental Rights.

Melloni was about an Italian citizen whose extradition to Italy was ordered by a Spanish court in 1996. He fled while released on bail and so escaped surrender to the Italian authorities. In 1997 he was tried in absentia by an Italian court and sentenced to 10 years’ imprisonment for bankruptcy fraud. After resurfacing in Spain in 2008, Mr. Melloni was arrested by the police. At the constitutional court he challenged his impending surrender to il bel paese which in the meantime was based on a European Arrest Warrant (EAW), arguing it would violate his right under article 24(2) of the Spanish constitution not to be tried in absentia. The constitutional court, which had previously upheld a similar appeal under the first version of the EAW Framework Decision (FD) (2002/584) in a case concerning a request from Romanian authorities after an in absentia trial there, noted that the EU legislative arrangements had changed in the meantime. In particular,  FD 2009/299 had added wording (article 4a) to FD 2002/584 precisely on the point of under which conditions executing judicial authorities could refuse to execute an EAW if the person did not appear in person at the resulting in the decision. This led the constitutional court to ask, essentially, (1) whether the wording of article 4a (stating executing judicial authorities “may” refuse to execute an EAW issued, unless one of four scenarios is present) precludes national authorities from adding the condition that the conviction should be open tot review in the scenarios specified, (2) if yes, whether such preclusion would  actually be in line with articles 47 and 48(2) CFR, and (3) if so, whether article 53 CFR would then still allow for a higher national constitutional standard to be applied.  The Court answered the first two questions in the affirmative, relying in particular on its earlier ruling in Radu (see the previous EUtopia Law blog by Anita Davies here for convincing criticism of the Court’s approach). I will focus the discussion here on the article 53 CFR-point. Continue reading →

John Morijn

In the first of two posts on the CJEU’s important recent judgments in Akerberg and Melloni, John considers the Akerberg case and in particular its interpretation of article 51(1) of the Charter of Fundamental Rights.

In dealing with Akerberg and Melloni in a coordinated way, the CJEU’s Grand Chamber took a conscious first step towards developing a general theory on how to apply the EU Charter of Fundamental Rights (CFR). First, it engaged with a long running debate about the Charter’s scope of application with regard to Member States’ actions, interpreting the article 51(1) CFR wording of “only when implementing Union law”. Second,  it interpreted article 53 CFR which states that “nothing in the CFR shall be interpreted as restricting or adversely affecting human rights … as recognised by [principally] the ECHR and by the Member States’ constitutions”.

Union law insiders will probably recognise an expansionist streak in the ECJ’s approach in the first case, Akerberg, to equate “implementing Union law” to “acting within its scope”. For (national) human rights law practioners less familiar with Union law’s subtleties and simply wondering when the now binding Charter and its sometimes higher human rights standards apply, the ECJ may have done little more than re-word the dilemma in Union law Babylonian. In the second case, Melloni, in an effort to protect its understanding of Union law, the ECJ turned the wording and rationale of article 53 CFR completely on its head, practically positioning the CFR as a maximum rather than a minimum standard of human rights protection. Both cases seem to leave room for interpretation, however, allowing details of the general theory to be ironed out in future cases. But perhaps the main message of 26 February 2013 is that the ECJ left no doubts about the institution in charge of any such future ironings out: itself. Continue reading →