RICERCA ITALIANA     

The protection of fundamental rights in the national and supranational legal systems, in the perspective of a "European" Constitution

Università di Pisa

Abstract

This research program aims at studying the protection of fundamental rights in Europe –currently based on a "multilevel protection" system – in the perspective of an European Constitution.
Therefore, research groups will focus on the substantial and procedural aspects referring to the protection of fundamental rights before the national courts, the Court of Justice and the European Court for Human Rights and on the relationships among these different jurisdictions.
The final purpose of the research is to examine the consequences arising from the signature of the Treaty for a Constitution for Europe from the standpoint of the guarantee of human rights and in which extent the adoption of a European Constitution will affect the role of the Courts and their future relationships. <<<

Principal Investigator

Alessandro PIZZORUSSO Università di PISA

Research Objectives

The national research program aims at studying the problematic aspects resulting from the presence of a complicated European system of protection of the fundamental human rights - which is remitted to national courts, European courts and the European Court for the fundamental rights -, in the perspective of the coming into force of the European costitution, after the signature of the Treaty for a Constitution for Europe.
The research aims in particular at studying in depth some substantial and procedural aspects referring to the protection of the fundamental rights in Europe and, thus, at checking the consequences that will arise from the approval of a European Constitution.
In particular, any probable consequence will be taken into account, attempting to individualize which means are needed to prevent conflicts among the several jurisdictional levels; the degree of protection that will be ensured for specific rights (such as, for instance, the guarantees in criminal cases) and the observance of the equality principle; repercussions from the standpoint of the source system and; in particular, of the national system and the sources of law system of the European Union. Futhermore, the research aims at studying the future position of the Court of Justice in the European institutional framework and at taking into considerarion the consequences arising from the globalization. <<<

Timescale

24 months

National and international background

Almost all modern national Fundamental Charters expressly acknowledge the fundamental rights and define the justiciability of all public authorities' acts, including laws.
States have then prepared and signed international treaties and Charters, through which they have decided to limit their own sovereignty for different purposes, and also recognised specific supranational bodies, which have been instituted, if needed, and have the task to define common policies.
The impact that the globalisation process had and is still having on fundamental rights of the individual is also deep. In fact, a double event is occurring. From the one hand, there is an increase in the number of charters for the protection of rights, which aim at extending the instruments for the protection of individual freedoms; at the same time, there is an increasing number of new rights worth of protection which fall within the range of fundamental rights. The study of such dynamics and changing needs for new technologies and technical aspects, requiring new actions aiming at an increased protection of individuals, will be taken into consideration by the Unit coordinated by Prof. Ainis.
All Member States of the European Union are part of the Council of Europe and, through the ratification of the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR, Rome 1950), have recognised the European Court of Human Rights in Strasburg as the judicial body protecting and interpreting the Convention. By mean of the ECHR and the jurisprudence of the Court of Strasbourg, a minimum standard has been set and all Member States are called to guarantee the fundamental rights in connection with it.
Therefore, the fundamental rights and protection of individuals are today so essential for the legitimacy of the political systems that a political power, which is unable to meet this requirement, can be defined without any doubt as incomplete, or illegitimate.
It is also clear that the political power is exercised within the European Union and, equally, treaties that the Union is based on and developed did not contain any catalogue of fundamental rights; so, even if fundamental rights were safeguarded at European level and such safeguard was entrusted to the Court of Justice in Luxembourg, it was not based on a fundamental text.
The Court of Justice has been induced to act for the purpose of guarantying the fundamental rights, basically through the action of the national Constitutional Courts, especially the Italian and German Courts. In particular, a decision by the German Federal Constitutional Court of 1974, known as Solange I, stated that until fundamental rights are not safeguarded sufficiently, the Bundesverfassungsgericht would have checked the enforcement of the European laws on the basis of the national constitutional text. A similar position led the Court of Luxembourg to considerably strengthen the protection of the fundamental right, so that the German Constitutional Court was induced - about ten years later - to declare that the standard for the protection the fundamental rights at European level was the equal to the national one.
Actually, the innovating activity of the Court of Justice in Luxembourg itself has been the guarantee for fundamental rights, as she has used the Convention and the jurisprudence of the Court of Strasbourg as sources for interpretation in the rationes decidendi of the cases. The Court of Justice itself is the judicial body of the European Community and is in charge of sentencing any violation and interpretation of the Union's laws. The Court of Justice was the first to assert the existence of the fundamental rights of Union's citizens, even if these were not expressly recognised in the treaties. The safeguard of them was ensured indirectly. Based on the above, it has to be noticed that the fundamental rights play now a central role in the European integration process. That is basically from October 2nd, 1997 when the Treaty of Amsterdam was signed, changing the Treaty of the European Union and the Treaty establishing the European Communities. In fact, art. 6, § 1, making reference to art. F of the Treaty of Maastricht, provided that «the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States». On the contrary, art. 6, § 2, on the basis f a consolidated case law of the Court of Justice, defines that the fundamental rights protected at EU level are the fundamental rights and freedoms ensured by the ECHR and by the national constitutions and enforced by the Community judge. In addition, the Treaty of Amsterdam has explicitly entrusted the Court of Justice of the European Communities with the task to guarantee the observance of fundamental rights. It means that this Court currently has the explicit power to guarantee the protection of fundamental freedoms and rights within the Union's law system. Even if the Treaty of Maastricht had already provided for the commitment by the European Union to comply with the fundamental human rights that the European Convention guarantees and result from the Constitutional traditions common to the Member States, as "general principles of the Union's laws", it is possible to state, as F. Sudre (Introduction, in F. SUDRE, H. LABAYLE, Réalité et perspectives du droit communautaire des droits fondamentaux, Bruxelles, 2000, 17), that «the change from Maastricht to Amsterdam was [anyway] so meaningful» because we moved from «the devotion of States to the principle of protection of human rights (TEU Preamble) to the devotion of Europe to protection the fundamental rights».
Through the range of general principles of the Community laws, reconstructed by making reference to the constitutional traditions common to the Member States and, especially, the ECHR (general principles of the Union's laws reveal a foundation common to the European States, which is based on shared values – see, F. MODERNE, Légitimité des principes généraux du droit et théorie du droit, in RFDA, 1999, 739), the fundamental rights have then played an important role in the jurisprudence of the Court of Justice of the European Communities. That seems to give a real opportunity of interaction between the Community jurisprudence and the national judges jurisprudence regarding the protection of these rights.
An additional form of interaction between the national and community law systems for the protection of fundamental rights has been reached through the proclamation by the European Council in Nice, of the Charter of Fundamental Rights of the European Union, in December 2000. At the time of signature of the Charter scholars pointed out the political and symbolical, mainly "recognitive" character of the constitutional traditions common to the Member States; it is now clear that the inclusion of the Charter of Nice in the "Treaty establishing a Constitution for Europe", signed in Rome in October 29th 2004, represents one of the main new aspects in terms of protection of rights as such paper is now destined to acquire binding juridical force starting from the enforcement of the Treaty, which is fixed in November 2006, provided that all instruments of ratification have been deposited (art. IV-447).
The opening of an European "constituting process", which necessarily involves both the system of sources and jurisdictional checks, increases questions referred to the correct reading of the positive law framework. From this point of view, it seems to be very interesting to develop the subject of the evolution of relations among different jurisdictions, domestic - which is subdivided into common and constitution in its turn - and supranational - Community and the European Court of Human Rights. That is not only for the purpose of effectively checking the protection of human rights, but also to identify any rules of procedure for coordinating the several levelof jurisdictional action, in order to avoid any superposition or conflict of res judicata.
If the state level continues to represent the "primary place" for the protection of human rights, at least from the point of view of direct actions, it has to be noticed how the partial redefinition of the Court of Justice powers, executed through the Constitutional Treaty, has partially accepted proposals aiming at broadening the range of any person's direct reference to the Court of Luxembourg (being it understood that any preventive check on legislative acts by the Court is excluded), allowing any natural or legal person to institute proceedings «against an act addressed to that person or which is of direct and individual concern to him or her » and « against a regulatory act which is of direct concern to him or her and does not entail implementing measures» (art. III-365, par. 4 of the Treaty).
In addition to the above-mentioned broadening of competences, the "monopoly" of state on the judicial protection of rights runs the risk to be further affected by the mechanism of reference for interpretation (which regulation is substantially unchanged in the Treaty): if it is true that reference for interpretation is created as a tool of cooperation between the national and Community common judges in case of uncertain legitimacy or interpretation of the Community laws, it must also be noticed how - in the case of Italy - the frequent use of it, made by the Court of Justice, has progressively changed it into a mechanism through which the reorganisation of the Constitutional Court of competences is a matter of fundamental right protection, as the Community judge, invested by national judges with issues referring to the validity or interpretation of the Union's laws, does not limit to answer the question submitted to them, but, more or less implicitly gives a judgement of conformity of a certain national discipline with the Community discipline, the meaning and field of action of which have been concomitantly clarified.
An additional and meaningful innovative aspect of the Treaty is represented by an improvement of the Union's powers in crimianal law. Such improvement is reached through the jurisdictionalisation of the principle of legalité in criminal law expressed by Charter of Rights (Art. 49) and included in the Constitutional Text (art. II-109). A similar decision seems to mark time for the acknowledgement of the possibility that the European criminal law system exists and is based on the principle of legitimacy, foundation of the law systems of the Countries in the continental Europe.
The increasing supranational character of the Community law system, in the specific framework of the effects linked to the new Constitutional European Treaty, surely produces and will produce consequences on the concrete methods of protection and the same definition of the fundamental rights. Therefore, a careful study of the institutions of the European Union will, considering the way they are modelling themselves after the recent TEU (institutions for which it seems now possible to use the constitutional categories of the "forms of State" and "government"), oblige the research Unit to closely examine, in a completely innovative way, subjective, individual and collective juridical situations that we describe as fundamental rights. It is also pointed out the delicacy and complexity of the current mechanisms of juridical protection currently applied by more subjects and the need for including or identifying forms of integration, expediting and cooperation among themselves. Let's think about duties, which are often contextual, of national common judges, national Constitutional Courts, the Court of Justice in Luxembourg and the Court of Strasbourg.
In addition, schalars put into evidence how one of the "weak points" of the Union's Constitution is represented by the relationship between the (European) primauté and the (national) counter-limits; remarks on the limits that the national law systems have fixed, at constitutional level, to the supremacy of the Community Laws result today from the "constitutionalisation" of the clause of primacy, which is expressly set forth in art. I-6 of the Constitutional Treaty («The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of Member States »). A similar provision does not only make the consolidated content of the Court of Justice jurisprudence positive, but also extends the range of primauté to the whole of EU laws.
Indeed, based on such clause, the European Constitution and laws have primacy over the national laws, without any specification or limit, so that they expressly clarify that the primauté is valid relative to both the national laws of first range and constitutional range, surmounting the guidelines consolidated in the law systems of the Member States that have always admitted the ordinary primauté, i.e. rules of legislative and sub-legislative range, while more resistance and perplexity were shown in relation to the Constitutional primauté, i.e. national rules of constitutional range. Therefore, the efficiency of the EU laws at national level pays for a paradoxical contradiction: on the one hand, it tends to approach to and standardise national rights; on the other hand, each national right fixes specific conditions and limits (even if these are often more virtual than real) to the efficiency of the EU laws. That is much more true in the field of fundamental rights. <<<