Case Notes
| DOI | 10.1177/1023263X1302000407 |
| Date | 01 December 2013 |
| Published date | 01 December 2013 |
| Subject Matter | Case Notes |
576 20 MJ 4 (2013)
CASE NOTES
Dealing wit h Divergences in Fundamental Rights Standa rds
Case C-399/11 Stefano Melloni v. Ministerio Fiscal, Judgment (Grand Chamber) of
26February 2013, not yet reported
Maartje de Visser *
§1. IN TRODUCT ION
On 26February 2013, the Grand Chamber of t he Court of Justice of the European Union
(CJEU) handed down its decision in the case of Stefano Mell oni v. Ministerio Fiscal.1 is
judgment has been much anticipated by both Europea n and national legal scholars, given
that the Court was for the rst time provided with the opportunity of authoritatively
establishing the meaning of Article 53 of the Charter of Fundamental Rights. More
particularly, it was faced with the question whether Member States are allowed, under
that provision, to apply higher domestic standards of fundamental rights protection
when a situation falls within the scope of Union law. Even more interesting is that the
EU legal instrument that prompted the Spanish Tribunal Constitucional to engage
the CJEU in the former’s rst ever preliminary reference was the maligned European
Arrest Warrant (EAW) Framework Decision (as amended). e EAW had already led to
constitutional litigat ion in a variety of Member States, and a less th an satisfactory ruli ng
from Luxembourg in the w ake of its adoption in 2002.2
A er a summary of the relevant facts and the Court’s ruling in Melloni, this note
o ers observ ations on three issues. First, it brie y explores how the decision bolsters the
e ect of framework decisions within domestic legal orders. Secondly, it considers the
Court’s approach to Article53 of the Char ter. e Grand Chamb er attributes overriding
importance to respect for the doctrine of primacy in interpreting this provision and
was accordingly not willing to condone the application of divergent higher national
standards in t he case at hand. While not unexpec ted, it is to be hoped that the Court wi ll
show some more exibility in future case law and give Member States some latitude to
* Assistant Profe ssor of Law, School of Law, Singapore Management Unive rsity.
1 Case C-399/11 Stefano Melloni v. Ministerio Fi scal, Judgment of 26Februa ry 2012, not yet reported.
2 For an examin ation see D. Sarmiento, ‘Europea n Union: e European Ar rest Warrant and the Quest
for Constitutiona l Coherence’, 6 International Jo urnal of Constituti onal Law 1 (2008), p.171–183.
Case Notes
20 MJ 4 (2013) 577
apply their higher right s standards in certain situat ions, a possibility that was explicitly
mentioned by Advocate General Bot in his Opi nion in Melloni.
On a related note, the Court’s engagement with the Charter, both as regards
determining the scope of the procedural rights at issue, as well as the intensity of the
review of the contested provision of EU law, was rather super cial.It is submitted that
the Court should improve its approach to safeguard the legitimacy of its fundamental
rights ruli ngs. Lastly, and adopting a more institutional perspec tive, I look at the use of
the preliminary reference procedure by national constitutional courts: in what can be
considered a welcome development the latter would appear to become more enamoured
of engaging in a direc t dialogue with the CJEU.
§2. RELEVANT FACTS
Stefano Melloni cannot be considered as an upstanding citizen. He was arrested in
Spain in 1996 to be extradited to Italy to stand trial there for fraudulent bankruptcy.
Having successfu lly made bail, Mr Melloni ed, whereupon the Italian court decided to
direct the relevant notices to the lawyers appointed by him at an earlier stage. In 2003,
the Italian cour t handed down an in absentia ruling, sentencing M r Melloni to 10 years’
imprisonment. e appeal that his lawyers i nstituted against this verdict was d ismissed.
e Ita lian prosecutor thereupon issued a European Arrest Warrant for execution of the
sentence. A er Mr Melloni was again apprehended by the Spanish police, t he competent
court (Audiencia Nacional) decided in 2008 that he should indeed be surrendered to the
Italian authorities. Mr Melloni led a recurso de amparo against that decision with the
Spanish Tribunal Constitucional, asserting a violation of the requirements owing from
that court’s interpretation of the const itutional right to a fair tria l.3 is case law require s
that the surrender of persons convicted in absentia of serious o ences is conditional
on them being able to have their conviction reviewed, as part of ‘the essence of a fair
trial in a way that a ects human dignity’. Framework Decision 2009/299 concerning
the European Arrest Warrant,4 which has amended the original Framework Decision
2002/584,5 however, provides in Article 4a(1) that the execut ion of an EAW for serving a
sentence imposed in absentia cannot be refused when the person concerned was aware
of the forthcoming cri minal proceedings or was duly represented by counsel during t he
trial.As this appeared to be the case with Mr Melloni’s situation, the Spanish Tr ib un al
Constitucional was confronted with the ques tion whether it could nevertheless retain its
3 Article24(2) of the Spa nish Constitut ion.
4 Council Framework Decision 2009/299/JHA of 26 February 2009 amendi ng Framework Decisions
2002/584/J HA, 2005/214/JHA, 2006/783/JH A, 2008/909/JHA and 20 08/947/JHA, thereby enhanci ng
the procedura l rights of persons and fo stering the applicat ion of the principle of mutual re cognition to
decisions rendered in t he absence of the person concer ned at the trial, [200 9] OJ L81/24.
5 Council Fra mework Decision 2002/584/JH A of 13June 2002 on the Europea n arrest warrant and t he
surrender procedu res between Member State s, [2002] OJ L190/1.
Case Notes
578 20 MJ 4 (2013)
constitutional cas e law concerning the rig ht to a fair tria l within the scope of EU law. In
2011, it decided to engage the Court of Justice on this matter by referring th ree preliminary
questions that in e ect outlined three di erent ways to arrive at such an outcome.6
§3. THE REASONING OF THE COURT
Before being able to consider the three prelim inary questions on their merits, t he Court
had to decide on the argument put forward by several governments and the Council
that the reference was inadm issible, given that the decision of the Audiencia Nacional to
surrender Mr Melloni to the Ita lian authorities was taken before the expir y of the time-
limit for transposition of the amendment of the EAW Framework Decision. Following
Advocate General Bot, the Court however reasoned that it is standing case law that
procedural rule s – like those laid down in Article4a – apply to a ll proceedings pending
at the time when they enter into force. As Mr Melloni’s proceedings were ongoing, the
request for a preliminar y ruling was held admissible rati one tempori s.
Turning to the questions referred by the Tribunal Constitucional, the Court of Just ice
was rst invited to consider whether Article4a of the Framework Decision could be
read as allowing national judicial authorities to make the execution of arrest warrants
in situat ions like th at of Mr Melloni cond itional on the av ailabilit y of a retrial .Referring
to both the wording and pur pose of this provision, the Court answered in the negative.
Under the 2002 EAW Framework Decision, it was not always clear when national
authorities could exercise discretion and refuse or impose conditions on the surrender
of suspects or convicted persons to ot her Member States. With the 2009 amendment, t he
Council intended to remedy this situation by exhaustively listing the circumstances in
which execution of an EAW in relation to an in absentia judgment could not be refuse d,
thereby removing legal uncertainty and enhancing the e ectiveness of the principle of
mutual recognition of judicial decisions.7 is answer meant that the Court of Justice
also had to confront the sec ond preliminary question, which quer ied the compatibility of
Article4a with the r ight to a fair trial and t he rights of defence guaranteed by the Cha rter
of Fundamental Ri ghts (Articles47 and 48). e Grand Ch amber needed only ve short
paragraphs to conclude that these rights had not been breached. It noted that the right
of defendants to be present at their trial is not absolute and that this is recognized by
Article4a, which sets out the situations in which they can be taken to have voluntarily
and unambiguously waived the right to take part in the criminal proceedings. is
interpretation of the fundamental rights at issue was furthermore found to be in line
with the case l aw of the European Court of Human Rights.
6 On this reference, see A. Torres Pérez, ‘Spanish Constitutional Court, Constitutional Dialogue on
the European Arrest Warrant: e Spani sh Constitutional Cour t Knocking on Luxembourg’s Door’,
8European Constitutional Law Review 1 (2012), p.105–127.
7 See in part icular Framework Dec ision 2009/299, recitals 2 to 5.
To continue reading
Request your trial