: The duty of the Union to respect fundamental rights and its implications on the power to sanction
The role of fundamental rights as constraints on the power of the Union to sanction is a corollary of the general duty to respect the fundamental rights guaranteed in the EU law order, by the Charter and as general principles, which binds any components of the institutional architecture of the Union, cutting across all the competences and powers foreseen in the Treaties..
The Lisbon Treaty clarified the general scope of the Union’s duty to respect general principles concerning fundamental rights. Article 6(2) of the pre-Lisbon TEU referred to the duty of the Union to respect fundamental rights ‘as general principles of Community law'. This provision could be read, alternatively, as a limit to the relevance of the fundamental rights identified by the Court of Justice only to Community law (the first-pillar of the post-Maastricht Union), or, on the contrary, as the confirmation that the duty of the Union to respect those general principles also extends to the fields of the Common Foreign and Security Policy (CFSP) and Justice and Home Affairs (i.e. the second and third pillars of the postMaastricht Union). At the end of the 1990s, the issue became highly sensitive from the perspective of the power of the Union to impose sanctions, in light of the growing reliance on restrictive measures against natural or legal persons or other non-State entities, which are decided through CFSP acts. Shortly before the entry into force of the Lisbon Treaty, in the context of some preliminary rulings concerning the validity of such restrictive measures, the ECJ had the occasion to clarify that the Union was also bound by the general principles of Community law in its activities within the second and third pillars. The Lisbon Treaty then formally abolished the pillar-structure and introduced a reference to fundamental rights as ‘general principles of the Union’s law'1' in Article 6(3) of the current TEU.
However, the most important novelty introduced by the Lisbon Treaty has been the Charter being granted with ‘the same legal value as the Treaties’. The catalogue of the fundamental rights guaranteed by the Charter draws significantly on the previous case law of the ECJ on the general principles, on the European Convention on Human Rights (‘ECHR’) and the related case law of the European Court of Human Rights (‘ECtHR’), and on other international human rights treaties. This does not mean, however, that the Charter is a mere consolidation of the fundamental rights acquis previously developed by the ECJ through the general principles. A more accurate assessment is that the content of the Charter ‘goes beyond the fundamental rights recognized so far by the Court of Justice, but falls short of what on the basis of the current criteria for fundamental rights protection in the EU potentially belongs to the acquis communautairc’,
For sure, a more innovative part of the Charter is represented by its Title VII, headed ‘General provisions governing the interpretation and application of the Charter’. This set of rules, which concern all the fundamental rights granted in Titles I to VI, does not constitute a mere codification of the previous case law of the ECJ. The very idea of ‘constraining’, at least to some extent, the role of the ECJ as regards the interpretation of EU fundamental rights is unedited and unfolds from the Member States’ fear that the Charter could become a powerful tool for the expansion of the Union’s competences. In this respect, it must be recalled that some important guidance on the interpretation of the Charter is also provided by a separate document, the so called ‘Explanations’. Whilst they have not been granted legally binding status, the Explanations must be given ‘due regard’ in the interpretation of the Charter.
In addition to the significant overlap between the Charter and the general principles in terms of the fundamental rights granted, the Treaties do not establish any hierarchical relationship between the two sources, nor has the ECJ elaborated upon this issue. On several occasions, the ECJ has rather opted for a combined reference, ensuring the continuity between its pre-Lisbon case law on fundamental rights and the Charter. Nonetheless, it is important to stress that the Charter and the general principles, whilst much intertwined in substance, remain two formally distinct sets of rules, with some degree of autonomy between them. In this respect, at least two implications deserve attention for the purpose of this chapter.
Firstly, the Court may offer protection to a fundamental right which is not granted by the Charter through the general principles. Secondly, so far the ECJ has not offered a clear answer as to whether (Member) States or their emanations can invoke the protection of the Charter. In an infringement procedure where Spain sought to rely on Article 41 CFR vis-à-vis the Commission, the Court observed that ‘that right reflects a general principle of EU law’ and, on this basis, expressly refrained from ‘adopting a position as to whether a Member State may be regarded as or equated with a ‘person’ within the meaning of [Article 41 CFR], and can on that basis rely on the right that it lays down’. It then added, referring to its previous case law, that ‘the EU institutions are required to observe that general principles of law in the context of administrative procedures that are initiated against Member States and are liable to result in decisions adversely affecting them’. What remains dubious, also with respect to the general principles, is whether States or their emanations can rely on fundamental rights other than those enshrining procedural safeguards, within the limits of the compatibility of those rights with their nature as legal entities.
The negative function of the Charter as a constraint on the Union’s activities is clearly stated in Article 51(1) CFR. According to this provision, the Charter ‘[is] addressed to the institutions, bodies, offices and agencies of the Union (...) and to the Member States only when they are implementing Union law’. A clear difference is thus established between the scope of the Member States’ duty to respect the Charter, which is limited to the situations in which they ‘implement’ Union law, and the scope of the Union’s duty, which is unqualified. Accordingly, the latter must be understood as extending to any articulation of the EU institutional framework, regardless of the formal label, and to any of the Union’s actions, internal or external. In other words, that duty is inherent in the very fact of being an entity of the Union. An implicit confirmation of this has come from the Ledra judgment, where the ECJ stated that ‘the Charter is addressed to the EU institutions, including (...) when they act outside the EU legal framework’ in the performance of tasks at
relations between individuals’ (see Case C-413/15 Elaine Earrell v. Alan Whitty and Others, EU:C:2017:745, para. 33). According to the General Court, an emanation of a Third State is ‘an entity which participated in the exercise of governmental powers or which ran a public sendee under governmental control’ (see Case T-496/10, Bank Mellat v. Council, EU:T:2013:39, para. 42).
iJ Ibidem, para. 90. The Court referred to its judgments in Case C-501/10, Spain v. Commission, EU:C:2004:438, para. 52, and in the Joined Cases C-549/12 P and C-54/13 P, Germany v. Commission, para. 89. For a comment also touching on the issue addressed here, see M. Chamon, ‘Fining Member States under the SGP, or how enforcement is different from implementation under Article 291 TFEU: Spain v. Council (2018) Common Market Law Review 55, 1495.
tributed on them by the Member States. No doubts can therefore exist about the relevance of the Charter vis-à-vis the Union in the exercise of the powers conferred by the Treaties.
This conclusion is not challenged by the fact that some EU acts fall outside (at least prima facie) the jurisdiction of the ECJ. This is the case of CFSP provisions and measures, which are altogether excluded from the jurisdiction of the ECJ, with very limited exceptions. This situation may be problematic from the point of view of the judicial protection of natural and legal persons. For sure, it can hardly be reconciled with the founding value of the rule of law, which, as the ECJ has been repeating since its 1986 judgment in Les Verts, requires that the acts of the EU institutions can be the subject of a review of their conformity with ‘the basic constitutional charter, the Treaty’. Nonetheless, the duty of the Union to respect the Charter when acting within the CFSP remains unaltered, and the question arises as to whether, and possibly to what extent, the Charter - notably, Article 47 on the right to an effective judicial remedy - can help in filling some of the existing gaps in judicial protection. A similar situation exists, as we shall see, with respect to the measures - which could possibly include sanctions - that the European Council and the Council may adopt, pursuant to Article 7 TEU, vis-à-vis a Member State that is (potentially) acting in violation of the Union’s founding values.
Finally, it is worth recalling that, even if the Union, unlike its Member States, is not (yet) formally bound by the ECHR, the Lisbon Treaty has elevated the protection granted by the ECHR to a minimum standard in the context of the Charter. Article 52(3) CFR prescribes that ‘the meaning and scope’ of the provisions of the Charter that affirm fundamental rights already guaranteed by the ECHR 'shall be the same as those laid down by the said Convention’, without excluding the possibility that a ‘more extensive protection’ is provided by Union law. According to the Explanations, the case law of the ECtHR shall be considered when reconstructing the meaning, the scope and the regime of limitations of the abovementioned Charter provisions. As will be seen, the ‘bridge’ between the Charter and the ECHR built by Article 52(3) CFR has some important implications on the limits that fundamental rights pose on the power of the Union to impose sanctions.