The Contribution of the Court of Justice to the Structuring of the European Space of Fundamental Rights
| Author | Dominique Ritleng |
| Published date | 01 December 2014 |
| Date | 01 December 2014 |
| DOI | http://doi.org/10.1177/203228441400500406 |
| Subject Matter | Article |
New Journal of Eu ropean Crimina l Law, Vol. 5, Issue 4, 2014 507
THE CONTRIBUTION OF THE COURT
OFJUSTICE TO THE STRUCTURING
OFTHEEUROPEAN SPACE OF
FUNDAMENTAL RIGHTS*
D R**
ABSTRACT
With the Melloni and Åkerberg Fransson judgments, the Court of Justice has g reatly
helped to de ne the articulation of the di e rent systems of legal protection of fund amental
rights in the European Union, by providing usef ul guidance on the scope of application
of the Charter, the concurring application of the di erent standards of protection and
the convergence of the EU Charter and of the European C onvention on human rights.
Keywords: Charter of EU fundamental rights; concurrent application of national
standards of protection; convergence of interpretation with the ECHR; level of
protection; scope of application
With the Melloni and Åkerberg Fransson decisions1, handed down the same day –
which is certai nly no coincidence – the Court of Justice has greatly contr ibuted to the
constitution and the st ructuring of a European constitutiona l space for fundamental
rights.2 Whether one welcomes the outcome of the cases or not, these two decisions
undoubtedly indicate what are t he means to ensure the coex istence and the art iculation
of the systems for the protection of fundamental rights wh ich, due to a plurality of
* Text translated f rom French language by Irene Wiecz orek, PhD Candidate at the Vrije Unive rsiteit
Brussels, a nd at the Université Libre de Br uxelles, and G avin Robinson, Ph D University of
Luxemburg.
** Professor at the Univer sity of Strasbourg. Former re ferendaire at the Cou rt of Justice (2006–2013).
e opinion ex pressed are persona l ones.
1 ECJ, 26February 2013, Mell oni, C-399/11; ECJ, 26February 2 013, Åkerberg Fransson, C-617/10.
2 See L. Wildhaber et J. Callewaert, Espace constitutionnel européen et droits fondamentaux. Une
vision global e pour une pluralité de droit s et de juges, Mél . G.C. Rodrigue z Iglesias, Be rliner
Wissenscha sverlag 2003, p.61.
Dominique Rit leng
508 Intersentia
sources and pluralit y of judges entrusted with t he task of ensuring their application,
overlap within t he European Union.
e Melloni decision originated from a preliminary ruling issued by the Spanish
constitutional Tribunal seized with a recurso de amparo against a judicial decision
ordering the surrender of the appellant to the Italian aut horities in observa nce of a
European Arrest Warrant. e surrender request aimed at t he execution of an
imprisonment sanct ion imposed by the Italian authorities. I n his appeal, the appellant
relied on previous case law of the Spanish Constitutional Tribunal3 imposing that,
pursuant to the right to a fa ir trial enshri ned at Article24(2) of the Spanish Constitution,
the surrender to foreign authorities of a person convic ted in absentia must be subject to
the possibility for the c onvicted person to contest the convict ion in order to safeguard
his or her defence rights. e constitutional tribunal considered it necessary to refer to
the Court of Justice for the i nterpretation of Article53 of the Charter of Funda mental
Rights of the Europea n Union which delimits t he scope of application of the fund amental
rights enshrined in t he charter, including the right of defence. In particu lar they asked
if Article 53 of the Char ter enables an executing State to subject the surrender of a
person convicted in absentia to the condition that his/her convict ion can be revisited in
the requesting State w ith the aim of preventing infringement of t he right to a fair trial
and to the right of defence as gra nted by the executing State’s constitution,4 even if the
European Arrest Framework Decision, as modi ed in 2009, does not allow for such a
possibility, and it (the Framework Decision) is still not judged incompatible with
Articles47 and 48 of t he Charter of Fundamental Rig hts of the European Union.
In the Åkerberg Fransson case, following the 1990 Swedish law on income tax
(taxeringslagen), the applicant had been imposed an increase in the due amount, as a
consequence of some inaccuracy i n the value added tax (‘VAT’) declaration.
5
In addition
to that, he was also prose cuted for serious tax o ences, pur suant to the 1971 Swedish law
on tax o ences (Skattebrottslagen). Having some doubts on the legalit y of the presence of
double sanctions for the same facts, the Haparanda Tingsratt (the local tribunal in
Haparanda), which had to decide on the case of Mr Å kerberg Fransson, referred to the
Court of Justice the question whether the principle of ne bis in idem as enshr ined in
Article50 of the Charter prevented t he presence of criminal pursuits for s cal fra ud, i f t he
person has already been object of a nanc ial sanction u nder sca l law for the same facts.
6
3 See STC, 30Ma rch 2000, n°91/2000. is case law lead s the Spanish Constitutiona l Tribunal to
accept a “recurso d ’amparo” against a meas ure executing a Europe an Arrest Warrant iss ued for the
execution of a sanc tion of imprisonment env isaged by a decision handed down in abse ntia. e
reason for the recu rso was grounded on the fac t that the surrender had not bee n made conditional
on the possibil ity of reviewing t he decision. (see also STC, 2 8September 2009, n°199/2009).
4 See the case from wh ich the referral orgi nated n°86/2011 of 9June 2011, comments A. Torres Pérez,
ECLR 2012, p.105; M. Pérez Manz ano, Revista es pañola de Derecho Con stitucional 2012, p.311.
5 e tax increase envis aged by the taxeringsl agen was respectively of 20 a nd of 40% concerning the
VAT and the income tax.
6 Article 50 of t he Charter: “No one sh all be liable to be t ried or punished a gain in cri minal
proceedings for an o ence for which he or she ha s already been nally acquitte d or convicted with in
the Union in accorda nce with the law.”
To continue reading
Request your trial