RICERCA ITALIANA     

Research program

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

University Co-ordinator

Università di PISA - DIRITTO PUBBLICO - PISA(PI)

Research Unit Leader

Alessandro PIZZORUSSO

Description

The signature of the "Treaty establishing a Constitution for Europe" is, without any doubt, a fundamental step in the history of the European integration process. The debate on the nature of this text has been and is still broad, and is characterised by those whose opinion points out its typically internationalistic feature, opposing to those who on the contrary deem that it is now possible to talk about a "European Constitution". Surely, beyond uncertainty resulting from the act self-qualification, the act is, on the one hand, defined as the "Treaty establishing a Constitution for Europe" and, on the other hand, totally and simply denominated as "Constitution" in the text. If compared to the previous acts, the diversity of this new prescriptive act seems to be, at least from the point of view of the drafting process, in the peculiarities of the conventional methods – which, in the past as everybody knows, was only used on the occasion of the draft of the European Charter of Fundamental Rights – and, from a substantial point of view, in the inclusion of a catalogue of rights in the text of the act. With regard to this, it is possible to highlight how the presence of a catalogue of this kind, which is included in a document outlining the organisation and functioning of the institutions in a given law system, determines the reproduction for the first time at EU level of that typically binary system peculiar to most of the XX century European Constitutions.
Certainly, the inclusion of the European Charter of Fundamental Rights in the new Constitutional Treaty represents one of the main new issues concerning the protection of rights, as such Charter, after having been merely "proclaimed" in Nice in December 2000, is now destined to acquire binding legal effect starting from the enforcement of the Treaty by November 2006 – provided that all ratification tools are registered (art. IV-447). But, it is also true that the Treaty of Rome signed on 29th October 2004 shows further noteworthy elements that the research unit shall focus on.
First of all, in relation to the protection of fundamental rights within the framework of the Community law system, ART. I-9 first of all confirms that principle which was already developed by the Court of Justice and then admitted in the Treaty of Maastricht, and according to which "Fundamental Rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law". Art. I-9 also establishes that the Union agrees to the European Convention itself, safeguarding the human rights and fundamental freedoms, it being understood that "such accession shall not affect the Union's competences as defined in the Constitution". A deep analysis shall be then addressed to the consequences of this provision from the point of view of the interaction among the several systems protecting rights in Europe and, in particular, in this case, between the protection granted by the European Court of the Human Rights, on the one hand, and that one granted by the Court of Justice, on the other hand. In fact, if it is true that the Court of Strasburg sometimes makes a sort of indirect check on the Community law, being competent to check the "conventionality" of the national acts enforcing the original and derived Community law (case decided on July 1st, 1993 Procola vs. Luxembourg; Cantoni vs. France, 15th November 1996; Matthews vs. the United Kingdom, 18th February 1999,) based on the principle that "Member States are responsible for any action or omission from their internal bodies violating the Convention, subject to the fact that the concerned action or omission results from the enforcement of domestic laws or international duties" (sentence 9th February 1990, M. & Co. vs. the Federal German Republic); it is also certain that the formal adhesion of the European Court of the Human Rights can produce, on the one hand, the effect to allow any individual to appeal to the European Court of the Human Rights against any act directly issued by the Union institutions when she believes not to have been properly protected by the UE judges; and, on the other hand, the effect to put the Court of Justice in a position of substantial subordination towards the Court of Strasburg and its jurisprudence.
With regard to this, the research unit will also inquire into the real extent of the so-called "horizontal clauses", i.e. articles II-111, II-112 and II-113 of the Treaty, which regulate the field of enforcement of the Charter of Rights, the extent and interpretation of rights and principles hereof contained as well as the granted degree of protection. The centrality of these provisions within the framework of the protection of fundamental rights at European level is confirmed by the attention that the Spanish Tribunal constitucional and the French Conseil constitutionnel have recently paid to them when they have been requested decide on the compatibility with the respective national constitutions of the new Constitutional Treaty.
Among the most considerable novelties that the research unit will focus on, there is the partial re-definition of the EU Court of Justice powers. First of all, it is important to observe that this expression makes now reference to the «Court of Justice», the «Court» and «specialised courts» (which denominations, subjected to broad debates and repeated changes, are not uniform in all Union's languages) that are thus conceived as one single, even if articulated, institution. That does not only determine the inclusion of the Court and specialised courts in the EU «institutions», but it particularly allows the treaty to fix common rules for all judicial bodies and generally ascribes the several competences to the «Court of Justice of the European Communities», giving other sources the task to specify which bodies being part of it shall perform said competences. The study carried out by the research unit for the purpose of understanding the methods and effects of these interaction in defining the field of competences of the several judges involved in the protection of rights within the European Constitutional space will not be separated from the analysis of the close tie existing between the national and Community levels to jurisdictionally protect rights. In this sense, art. I-29, paragraph 1, second part, is significant and establishes that «Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law»: such provision, probably adopted in order to join the judicial institutions with the national judges who are still the first ones to enforce the EU laws (as it's also established by article I-5, which imposes the Member States the adoption of measures to « ensure fullfilment of the obligations posed by the Constitution or resulting from the acts of the institutions of the Union ») seems to confirm the opportunity of a deep study of the meaning and the extent of the complementarity and subsidiarity of jurisdictional remedies, widely defined at national level, and "common" remedies peculiar to the European Union, as well as the relations with the protection afforded by the European Court of the Human Rights. In this perspective, special attention shall be paid to the mechanism of preliminary intervention by the Court of Justice, the regulation of which, according to new article III-369 seems to be substantially unchanged if compared to current article 234. Preliminary reference is in fact a fundamental tool of cooperation between the common national judges and the Community judges, giving the former the opportunity to refer to the latter every time that any doubt should arise in connection with the validity or interpretation of the EU law. Such mechanism is capable to deeply affect the protection of fundamental rights within the European constitutional space so that when the national judge asks for the preliminary intervention of the Court of Justice, he would risk to violate the powers of the Italian Constitutional Court that is been playing a central role since a long time, in the protection of the fundamental rights throughout the judicial review of legislation.
As scholars have put into evidence, an issue seems particularly interesting and important for the purposes of the research: the so called "hidden review on national legislation" performed by the Court of Justice by means of above mentioned art. 234 TEC. The EU court, invested by national judges with questions concerning the validity or interpretation of the Union's laws, does not only answer that specific question, but she performes a judgement of compatibility of the discipline – in particular, the one in force in the member state where the judge raising the issue comes from – with the european law which meaning and extent are concomitantly clarified. In this case, the Court declares for instance that "directive x is/is not opposed to a national discipline that establishes …": such a decision, whilst not having the power to declare the national legislation void, clearly shows the a quo judge what decision he shall adopt in relation to the specific case. Therefore, the research unit aims at carrying out a deep study focusing on this topic, for the purpose of explaining if this special method of use of the deferment tool as in art. 234 is the consequence of how preliminary questions are formulated by common judges or rather depends on a new role of the Court of Justice to be traced back to the jurisprudential behaviour of the Court of Justice.
At the same time, it will be necessary to inquiry into the issue concerning the direct appeal to the Court of Justice. With regard to this, many proposals were submitted in order to widen the extent of it, usually excluding legislative acts. The conclusion that was reached with the new Treaty (art. III-365, par. 4) – which has anyway rejected the proposal of entrusting the Court of Justice with the preliminary judicial review of legislative acts – allows any individual or legal person to sue «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 require implementing measures ». With regard to the latter the article establishes that the regulation does not require implementing measures because in case of implementing measures the individual may only submit a case against them, and consequently the regulation. However, perplexities have been expressed about the possibility to sue only against regulations, and not against other acts such as decisions that do not provide for implementing measures.
The research shall also take into consideration to which extent the protection of the fundamental rights in the European Constitutional space can be granted through the proceedings for failure to fulfill an abligation and the proceedings for anulment tools, fixed at community level (the first one has been partially modified by the constitutional treaty; the second one has been innovated by the Treaty of Nice and subsequently modified in the last treaty); furthermore the research will focus on the inclusion in the Court of Justice's powers of those concerning the freedom, justice and security, even if it is established that the court has no power to «review the validity or proportionality of any act committed by the police or any other body responsible for the enforcement of the law of a Member State or the exercise of the Member States' responsibilities for the maintenance of the public order and the national security safeguard » (making reference to art. 35, par. 5, TEC).