Akerberg and Melloni: what the Court said, did and may have left open

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.

The Court dealt with this issue as follows (edited for brevity):

55. … the national court asks, in essence, whether Article 53 CFR must be interpreted as allowing the executing MS to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the issuing MS, in order to avoid an adverse effect on the right to a fair trial and the rights of the defence guaranteed by its constitution.

56. The interpretation envisaged by the national court at the outset is that Article 53 CFR gives general authorisation to a MS to apply the standard of protection of fundamental rights guaranteed by its constitution when that standard is higher than that deriving from the CFR and, where necessary, to give it priority over the application of provisions of EU law. Such an interpretation would, in particular, allow a MS to make the execution of a EAW issued for the purposes of executing a sentence rendered in absentia subject to conditions intended to avoid an interpretation which restricts or adversely affects fundamental rights recognised by its constitution, even though the application of such conditions is not allowed under Article 4a(1) of [the EAW FD].

57. Such an interpretation of Article 53 of the CFR cannot be accepted.

58. That interpretation of Article 53 of the CFR would undermine the principle of the primacy of EU law inasmuch as it would allow a MS to disapply EU legal rules which are fully in compliance with the Charter where they infringe the fundamental rights guaranteed by that State’s constitution.

59. It is settled case-law that, by virtue of the principle of primacy of EU law, which is an essential feature of the EU legal order [..], rules of national law, even of a constitutional order, cannot be allowed to undermine the effectiveness of EU law on the territory of that State [..]

60. It is true that Article 53 CFR confirms that, where an EU legal act calls for national implementing measures, 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 CFR, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised.

61. However … Article 4a(1) of [the EAW] FD does not allow MS to refuse to execute a European arrest warrant when the person concerned is in one of the situations provided for therein.

62. It should also be borne in mind that the [addition of Article 4a] [was] intended to remedy the difficulties associated with the mutual recognition of decisions rendered in the absence of the person concerned at his trial arising from the differences as among the Member States in the protection of fundamental rights. That FD effects a harmonisation of the conditions of execution of a EAW in the event of a conviction rendered in absentia, which reflects the consensus reached by all the MS regarding the scope to be given under EU law to the procedural rights enjoyed by persons convicted in absentia who are the subject of a EAW.

63.Consequently, allowing a MS to avail itself of Article 53 CFR to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the issuing Member State, a possibility not provided for [in article 4a FD], in order to avoid an adverse effect on the right to a fair trial and the rights of the defence guaranteed by the constitution of the executing MS, by casting doubt on the uniformity of the standard of protection of fundamental rights as defined in that FD, would undermine the principles of mutual trust and recognition which that decision purports to uphold and would, therefore, compromise the efficacy of that FD.

64. … the answer to the third question is that Article 53 CFR must be interpreted as not allowing a MS to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the issuing MS, in order to avoid an adverse effect on the right to a fair trial and the rights of the defence guaranteed by its constitution.

Whereas in Akerberg the Court referred to the Explanations to the CFR to justify a broad reading of the actual text of 51(1) CFR, in Melloni it remarkably did not refer to this document. This could actually have helped it to form a more specific/limited understanding of article 53 CFR, as the relevant text explains: “This provision is intended to maintain the level of protection currently afforded within their respective scope by Union law, national law and international law.” This also shows why par. 60 of Melloni is confusing. It suggests that the Court’s interpretation that higher level standards laid down national and international human rights law can only be applied when  in line with previously developed concepts of primacy, unity and effectiveness somehow flows from the wording of article 53 CFR itself. In fact, it doesn’t. Par. 60 explicates an assumption made by the Court that article 53 CFR needs to be interpreted in the light of previously developed Union law principles. That assumption may, however, itself be open for more specific debate when it comes to the content and purpose of article 53 CFR, including in the light of the text of the Explanations.

More particularly, while the Court accuses the Spanish Constitutional Court of coming to the question with a particular mindset (par. 56), it actually does so itself too. For where is it said, or flow from that article 53 CFR of necessity has to be read in the light of the concepts of primacy, unity and effectiveness of Union law? In particular, why not the other way around in the specific case of fundamental rights standards going beyond those laid down in the CFR? Article 53 CFR, put slightly differently, after all reads: “nothing in this [newer and parallel source of primary Union law] shall be interpreted as restricting or adversely affecting human rights .. as recognised by Union law and international law and by international agreements to which the Union or all the Member States are party, including the ECHR, and by the Member States’ constitutions”. Moreover, as pointed out earlier, the Explanations to article 53 CFR specifically speak of at least “maintaining” current levels of protection in the respective fields of national law, Union law and international law. So there appear to be some reasons for not dismissing out of hand the possibility of re-considering, or at least nuancing the full applicability of primacy, unity and effectiveness for the specific situation of article 53 CFR. From the viewpoint of national and international human rights protection it could well be asked: what is so specific and special about Union law in general that this would require an automatic burden on those wanting to apply that higher standard to proof that that desire would stand up to the instrumental requirements of primacy, unity and effectiveness? These are quite important issues of principle where further judicial elaboration would have been welcome (and probably also expected).

To some, however, given that the (fully CFR-encapsulated) ECHR is seen as the main external point of reference in EU fundamental rights protection, the practical relevance of the article 53 CFR debate may seem rather limited. But it is by no means solely a theoretical problem. To get an idea of the great number of international human rights norms not actually covered by the CFR but ratified by EU Member States, see the useful overview in this 2011 Oxford study for the European Parliament (pp. 182-187). For some examples of national constitutional norms that contain higher human rights standards than the CFR, see the General Rapporteur’s report of the FIDE 2012-fundamental rights session here (p. 6). Now if we take Melloni par. 60 at face value, for national application of all of these extra-CFR norms the situation will now have to be as follows: in those areas covered by/governed by/within the scope of Union law (whenever that may be precisely – see part 1) a prior test will have to be conducted in the light of Union law so as not to interfere with its primacy, unity and effectiveness.  Given the very high hurdle this would likely represent in practice the CFR could well end up being a de facto maximum standard if Melloni would stand – rather than the minimum standard the Masters of the Treaties explicitly meant for it to be.

Like in Akerberg, however, also here the ruling could perhaps be construed narrowly on its facts. The Court’s interpretation implicitly hinges heavily on how the theme of in absentia trials has been recently and very extensively and explicitly dealt with by the EU legislator, that has amended the original FD on this specific point with a view actually to increase legal certainty. This includes a heavy assumption that the point of the higher Spanish constitutional standard must have been part of the discussion, and perhaps in fact been taken into account in the actual legislative solution found. From that perspective the scope of this ruling could be reduced to those situations alone, i.e. where there is reason to be believe that the relevance and applicability of a national constitutional standard has been explicitly considered in the EU legislative process. National and international human rights norms higher than the CFR relied upon in situations where there is no clear record of a previous discussion by the EU legislator would then not be covered by the instruction laid down in par. 60 of Melloni.

Nonetheless, even this narrow reading leaves us with vexing questions about the justifiability of the Court’s approach from the viewpoint of judicial dialogue and national constitutional protection. Is the ECJ really telling the Spanish Constitutional Court here: as long as we see no problem from the viewpoint of the CFR you can no longer second-guess the Spanish negotiators, who apparently saw no problem from the viewpoint of the Spanish constitution? What about the division of power at the national level? And what if the Spanish negotiators actually brought up the issue, but to no effect (think for example qualified majority voting situations)? In other words, the approach taken by the Luxembourg Court may make sense from the Union-level viewpoint of Union law orthodoxy. From a national constitutional perspective of Union law, the Melloni reasoning – taken widely or more narrowly –  may, however, still be rather light on real justification. It would not be so surprising from that perspective if the Spanish constitutional court would actually opt to stick to its own constitution for now. Remember that there are precedents like the German Constitutional Court in 2010, which declared unconstitutional a literal transposition of the EU data retention directive it felt did not comply with the German constitution (N.B. the Commission started infringement proceedings in May last year, which will doubtlessly allow for in-depth considerations of the human rights aspects of the German position). If it came to an infringement procedure in the Spanish case too, the legislative history of the recent EAW-adaptations could be given closer consideration.

On its face, Melloni could have the effect of practically all Member State-level application of national and international human rights norms going beyond the CFR-content from now on having to be pre-emptively checked in the light of the Union law principles of primacy, unity and effectiveness. Just like Akerberg, however, Melloni could perhaps be taken as an attempt to establish a direction for a general theory on facts that may allow the Court eventually to construe this case rather narrowly. In the interest of national level human rights protection, where the focus is not only on the CFR but also on national constitutional standards and international human rights norms not covered by the CFR or providing for a higher standard, such much more narrow construction of Melloni would be very welcome. With regard to interpreting article 53 CFR a more nuanced approach appears necessary.

John Morijn contributes in a personal capacity; the opinions expressed cannot in any way be attributed to the Dutch government.

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