This Article is based on the following claim: While the definition of constitutional identity is important for the configuration of the EU as transnational law, it needs to be complemented sometimes—as our case study will try to show—by the notion of common constitutional traditions (“CCTs”). This reconstruction can be performed by viewing the security of the European project as a meta–constitutional rationale that has informed the process of European integration from its early stages. Security, as interpreted here, is expressed not only by CCTs but by the principles of primacy, uniformity, and effectiveness of EU law and all other principles and features allowing the EU legal order to assert its autonomy and persist over time. Security does not coincide with mere stability but has an existential connotation. It refers to a set of core values that needs to be protected against any form of identifiable threat. This approach may apply both to the national and the EU levels.Footnote 1 This meta–constitutional rationale is expressed by two interacting and overlapping discourses—security and fundamental rights—which can be detected not only in the case law of the courts but also in the practices and activity of the European institutions—although the focus of this Article will be on the former. Yet, security is an ambiguous concept: It has a conciliatory and a conflictual side and reflects the tension between the values of freedom and coercion. This feature, which is visible in the well–known case law on constitutional identity,Footnote 2 is confirmed by the case law on CCTs analyzed in this Article. Moreover, CCTs emphasize a dimension of European integration that goes beyond a purely positivist account.
In order to prove our claim, we will preliminarily show that the notion and role of CCTs, after the season of fundamental rights codification in Europe, are far from irrelevant. They are as crucial as ever, precisely due to such codification.
This Article is structured as follows. First, the notion of the EU as transnational law is unfolded by tying up the concepts of constitutional identity and CCTs within the framework of security. This first part will deal, on a more theoretical ground, with the EU as a laboratory of transnational law where an ever–growing tendency—and temptation—to refer to the language of constitutional identity has emerged.
Against this background, we will argue that the alternative language of CCTs, which is much more pluralistic by nature and closer to the constitutional pluralism narrative, better serves the purpose of regulating inevitable constitutional conflicts in the EU laboratory of transnational law.
The second part, dealing more specifically with CCTs, will attempt to gauge the extent of influence and consideration that the “domestic constitutional factor” has had in the Court of Justice of the European Union’s (“CJEU”) most successful achievement, namely that of setting out, in the words of Richard Posner, “a constitutional doctrine by a common law method.”Footnote 3
The analysis in this regard will focus, first, on the development of the process of European integration until the entry into force of the Maastricht Treaty and, second, on the relevance and role of CCTs after the conferral of binding force on the Charter. Thus, the relevant research question is whether, following the season of codification of rights in the EU, the role played by CCTs can be depicted as a chronicle of a death foretold or still has relevance and “constitutional” value.
The question appears to be legitimate, given that it could be argued that one of the most obvious consequences of the adoption and entry into force of the Charter of Fundamental Rights of the European Union (“CFREU” or “Charter”) has been a progressive marginalization—or even sidelining—of CCTs, together with the general principles of EU law. According to this argument, such traditions and principles would have ended up playing an exclusively supplementary and ancillary role vis–à–vis a Charter which, after obtaining constitutional status and binding force, would have finally vested the EU with self–sufficiency in the area of fundamental rights. Our aim is to show instead that—not only despite but, paradoxically, thanks to the Charter—both CCTs and general principles of EU Law can still play a crucial and partially new role in the European integration process.
It will also be shown that CCTs and fundamental rights can be viewed as part of two broader constitutive discourses of European integration—respectively, security and fundamental rights—and inscribed in what can be defined as the meta–constitutional rationale of the security of the European project. These discourses overlap with each other, and it is precisely from their interaction that we can deduce how contradictory the process of European integration can sometimes be.
With regard to the methodology, in principle, two options could be chosen. On the one hand, a synchronic method attempts to capture a snapshot of the impact, which CCTs currently have on the level and form of protection of fundamental rights within the most recent case law of the CJEU.
On the other hand, a diachronic perspective looks at the evolutionary—but also regressionist—tendencies, which have characterized the changing role and nature of CCTs over the course of the European integration process while not underestimating the founding period of such process.
Although the second option may be criticized as an “incursion into legal archaeology,” it may also be the most appropriate perspective for the enquiry for at least two reasons. First, CCTs have an innate capacity to reveal the historical dimension of constitutionalism by identifying lines of continuity binding the past to the present and the present to the future. Second, precisely on account of the characteristic element highlighted above, referring to a present and a future of CCTs without exploring the reasons underlying the genesis and evolution of that notion would risk focusing too much on the trees while losing sight of the woods, or, even worse, focusing too much on the finger while neglecting the moon.
C. The Seasons of CCTs in the European Integration Process
I. The Past
In light of what has been said so far, it is possible to observe how the CJEU’s construction of the security and fundamental rights discourses has taken place gradually, but relentlessly.Footnote 23 Moreover, these discourses have almost always intertwined and reinforced each other.
In fact, it should not be surprising that, before Costa E.N.E.L. and van Gend, the first occasion on which a question arose concerning respect for a constitutional tradition of a Member State—albeit in relation to the ECSC Treaty—was in 1958. There,Footnote 24 the CJEU held that it had no competence to make a finding or take any account of the violation of fundamental principles set forth in the Grundgesetz (German constitution) by Community acts. Upon closer consideration, this also has a paradoxical aspect if one attempts to reflect on the fact that the first time the CJEU acted in the manner of a Constitutional Court, it did so in order to exclude the relevance and validity on Community level of the constitutional tradition of a Member State.Footnote 25
Moreover, it would appear to be no coincidence that this season of European impermeability to domestic constitutional law corresponds to the period of European integration in which the CJEU proved to be more inclined to make specific and detailed comparative law analysis—which it would not do in later periods—of the Member States’ legislation.
Consider, for example, the reasoning in the Algera judgment of 1957.Footnote 26 After an introductory discussion of the possibility of revoking unlawful administrative acts, and having clarified that this was “a problem … which is familiar in the case-law and learned writing of all the countries of the Community, but for the solution of which the Treaty does not contain any rules,” the Court concluded that “unless the Court is to deny justice it is therefore obliged to solve the problem by reference to the rules acknowledged by the legislation, the learned writing and the case-law of the member countries.”Footnote 27
And in that case, the Court did so in a systematic and detailed manner.
All of this occurred, as mentioned above, before the CJEU “pulled out of the hat” the doctrines of the primacy and direct effects.
From that time onwards, the argumentative priorities of the CJEU were evidently destined to be overturned. Previously, it had in fact been very risky for the Court to reference the existence of any requirement for the Community institutions to act in a manner that did not violate the provisions of national constitutions.Footnote 28 But once the principle of primacy had been established, it became essential for the CJEU to suddenly discover an interest in the protection of fundamental rights and to construct a common constitutional framework for such protection, even when no such framework actually existed. From the 1970s onwards, the fundamental rights discourse has been a necessary legitimacy—and autonomy—enhancing tool in the Court’s arsenal. A constant effort to boost the EU’s credentials as a distinct creature of transnational law has led to an assertion of autonomy: Either vis–à–vis its Member States,Footnote 29 or vis–à–vis international law.Footnote 30 Such autonomy implies that the interpretation of fundamental rights that lies at the core of the EU legal system must be in line with its structure and objectives.Footnote 31 These moves may be interpreted as part of the EU’s ongoing strategy of self–justification and self–empowerment.
During this period, the reference to CCTs loses its value as a comparative constitutional analysis in order to take on the nature of a rhetoric tool employed for the purposes of the above–mentioned EU strategy of self–justification.
As a matter of fact, a careful comparative analysis of the constitutional experiences of the Member States might have risked undermining the Court’s new argumentative priorities. It was therefore no coincidence that thereafter the Court only very rarely adopted the almost arithmetical analysis that characterized its reasoning in the Algera judgment.
By contrast, the highly relevant relationship between the CJEU mandate to enforce EU law primacy and the attention paid by the same Court to CCTs has very often been underestimated.
In this regard, it is of great benefit to consider the CJEU’s reasoning in the Internationale Handelsgesellschaft case.Footnote 32 First, it is worth recalling the Luxembourg judges’ statement that the question of the compatibility of Community law with the constitutional law of the Member States was irrelevant for the purposes of assessing the validity of Community law itself.Footnote 33 This statement is entirely inscribed in the logic of the CJEU’s activity, aimed at maintaining the uniformity and efficacy of EU law. Those goals would be undermined whenever Member States, upon declaring the incompatibility of EU law with national constitutional values, would challenge the validity of EU law and disapply it. In other words, we can interpret this ruling as an expression of the meta–constitutional security rationale: The Court may be seen as arguing that the Community legal system’s survival and self–preservation depended upon a certain degree of autonomy from the domestic legal systems. However, the same judges took—almost in an attempt to mitigate the “subversive” scope of this principle—a step of equally fundamental relevance, at least for the purposes of this discussion.
More precisely, in addition to stressing that respect for fundamental rights should be regarded as an integral part of the general principles of Community law, the Court stipulated for the first time that the protection of fundamental rights at the Community level, “inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community.”Footnote 34 On the one hand, focus is given to the relevance of fundamental rights—the fundamental rights discourse; on the other hand, the Court points out that their protection can only take place if the structural and teleological configuration of the European project is preserved—the security discourse.
In an attempt to strike a balance between the values of freedom and coercion within the EU polity, the Court emphasizes that it is not prepared to make concessions regarding the enforcement of the rule of primacy. Nevertheless, it reassures the Member States that such enforcement would not jeopardize and neglect their constitutional traditions.
With regard to the first step cited above, according to which protection for fundamental rights is “inspired by the constitutional traditions common to the Member States,” it may be asserted that the supremacy of Community law over national law, at least within the area of protection for fundamental rights, has never been stated in clear absolute terms by the CJEU. At a time when such supremacy seemed to reach its highest apex—extending beyond the limits laid down in the constitutions of the Member States—in some sense, it was going to be “relativized” by the Court of Justice’s unprecedented reference to national constitutional traditions as an indirect limit on that primacy.
The fact remains that the purportedly reassuring effect aspired to by this last CJEU case law in the area of fundamental rights started to become characterized by a strictly reactive connotation.Footnote 35
With regard to the second step mentioned in Internationale, according to which protection for fundamental rights “must be ensured within the framework of the structure and objectives of the Community,” this amounts to an initial enunciation avant la lettre of the position, which would be stated by the Court much more clearly nine years later in Hauer, according to which CCT exercise limited influence on the development of the case law on fundamental rights.
The Court reiterated in Hauer that:
[T]he question of a possible infringement of fundamental rights by a measure of the Community institutions can only be judged in the light of Community law itself. The introduction of special criteria for assessment stemming from the legislation or constitutional law of a particular Member State would, by damaging the substantive unity and efficacy of Community law, lead inevitably to the destruction of the unity of the common market and the jeopardizing of the cohesion of the Community.Footnote 36
In other words, after expressly considering the constitutional law of nine Member States—an event which was more unique than rare—the CJEU ultimately decided that the best law—or the constitutional tradition that was best placed to realize the objectives of the Community—was to be found in the proportionality principle. That principle, derived from Germany’s constitutional tradition, was to be construed as a general principle of EU law.Footnote 37
Thus, the debate on CCTs appeared to have been resolved during the golden age of the CJEU by a rhetorical sleight of hand of a highly symbolic nature. The Court sought legitimacy for its argument in support of the putative link between the solution proposed within the case before it and the solution allegedly existing within the constitutional experience of the Member States. This meant that the Court could continue to do what it had initially been able to do undisturbed—namely, in the now legendary words of Eric Stein, “tucked away in the fairyland Duchy of Luxembourg and blessed, until recently, with the benign neglect by the power that be and the mass media.”Footnote 38
II. The Present, After the Entry into Force of the Charter: Common Constitution Traditions Today, Still a Meaningful Concept?
As we have attempted to illustrate in the previous section, prior to the launch of the fundamental rights codification process, CCTs were never authentic sources of law. Instead, they were instruments possessing a strong rhetorical element as part of the security discourse. It is now necessary to consider how the act of fundamental rights codification in Europe has affected the status quo.
A distinction may be drawn between two phases. The first starts with the proclamation of the Charter in 2001. The second (still ongoing) starts after the entry into force of the Treaty of Lisbon, which gave also effect to the Charter as a legally binding instrument.
One remark must be made about the first period, defined as one of “limbo.”
During this period, CCTs—and even more so the general principles of Community law, which, as mentioned above, constitute the supranational sublimation of those traditions—provided the interpretative leverage, albeit ambivalently, that the CJEU was able to exploit to take steps that placed the constitutional tolerance of the Member States under serious strain.
Such exploitation occurred in the 2005 Mangold judgment, for example.Footnote 39 In a creative—bordering on manipulative—interpretation, the CJEU asserted the direct applicability of the general principle of non–discrimination on the basis of age, thus greatly expanding the scope of EU law. Roman Herzog’s strongly–worded editorial—commenting on the Court’s decision in the heat of the moment—was emblematic of the inseparable connection between the application of the general principle and the identification of the CCTs underlying that principle. Yet it was also emblematic of the reaction that the Court’s interpretative activism, which was based precisely on that connection, engendered among the Member States. The title of the editorial was eloquent in its simplicity: “Stop the European Court of Justice.”Footnote 40
According to the former President of the Convention responsible for drafting the CFR, this reference to the principle of non–discrimination on the basis of age as a general principle of EU law should have been reflected, if not inspired, by the CCTs of the Member States. By contrast, Herzog argued that:
[T]his ‘general principle of community law’ was a fabrication. In only two of the then 25 member states – namely Finland and Portugal – is there any reference to a ban on age discrimination, and in not one international treaty is there any mention at all of there being such a ban, contrary to the terse allegation of the CJEU. Consequently, it is not difficult to see why the CJEU dispensed with any degree of specification or any proof of its allegation. To put it bluntly, with this construction which the CJEU more or less pulled out of a hat, they were acting not as part of the judicial power but as the legislature.Footnote 41
Against this background, has the CCTs’ highly transformative evolutionary process come to an end after the entry into force of the Charter? Have CCTs effectively exhausted their task in the age of bill(s) of rights?
Our answer is a negative one. Far from having had the effect of pushing back CCTs, the attribution of legally binding force to the Charter has actually led—at least potentially and for sure paradoxically—to the opposite result: Enabling those traditions to emerge more forcefully.
To start, it is necessary to provide a quantitative figure. A recent publication on this issue noted that reference to CCTs has arisen more frequently within the case law of the Court than it did during the pre–Charter period; moreover, figures have increased exponentially over the last ten years.Footnote 42
How specifically has this CCTs’ second drawing manifested itself?
One might reply that this has occurred in at least two ways.
The first is significant on the rhetorical plane—almost as an optical illusion—and appears to be inherent to the CJEU’s argumentative use of CCTs. The second manifestation concerns a new role which, precisely thanks to the entry into force of the Charter, now appears to be capable of characterizing the post–Lisbon CCTs’ life.
As far as the first aspect is concerned, the CJEU’s spring 2015Footnote 43 decision that, for the first time, annulled an entire act of secondary EU law on the grounds that it contrasted with the Charter, appears to be emblematic, as illustrated below.
First, the Irish High Court asked the CJEU whether the provisions of the Directive on the retention of traffic data by e-communications operatorsFootnote 44 was compatible with the proportionality principle laid down by Article 52(1) of the Charter, and whether they violated the rights to privacy, protection of personal data, freedom of expression, and good administration laid down respectively in Articles 7, 8, and 11 of the Charter. Second, the Austrian Constitutional Court, which had been apprised of numerous constitutional actions filed directly by private individuals seeking the annulment of the national law implementing the Directive, sent a preliminary reference asking whether the procedures for collecting data provided for under the Directive were compatible with the rights to privacy, protection of personal data, and freedom of expression protected by the CFR. That Court also asked whether the European legislative framework respected the essence of the right to protection of personal data, and whether the retention of data was compatible with CCTs and with Article 8 of the European Convention on Human Rights (“ECHR”).
The CJEU decision specifically struck down Directive 2006/24/EC on the ground that its provisions regarding data retention, which were intended to pursue the general interest of combating terrorism, were found to violate Articles 7Footnote 45 and 8Footnote 46 of the Charter, concerning respect for private and family life and the protection of personal data respectively. The Court’s decision in Digital Rights Ireland provided an opportunity to reflect on how the CJEU’s supposed recovery of CCTs is at times more rhetorically functional than effective. The CJEU tried to give the impression that it had taken on the task of representing CCTs at the European level in the area of data protection. These traditions were supposedly recognized by Article 8 of the Charter, whose task was merely to Europeanize the CCTs connected to data protection.
In other words, the Court sought to give the impression, through an artful optical illusion,Footnote 47 that the Charter itself was exclusively a codifying constitution, to use the language of Lawrence Lessig.Footnote 48 The Charter’s role would merely involve cataloguing and schematizing existing rules; specifically, “codifying” at the European–level evolutionary developments—in this case relating to the common constitutional traditions.
Still, the Charter has an ambivalent nature. It is undoubtedly a codifying constitution, but it is not limited to this. It also incorporates much of the second category identified by Lessig, namely what he defines as a transformative constitution.Footnote 49 This is characterized by the Charter’s tendency to alter the status quo, innovating essential aspects of the legal culture and thus reaching beyond existing CCTs. As noted earlier, the security of the European project is pursued through an operation of self–justification, which implies some degree of creativity. This operation takes place, first, by allowing change in the interpretation of law—while also preserving the values and principles at the basis of integration—and, second, by including those values and principles, which are supposed to be shared, and excluding all the others.
The tendency to also be a transformative constitution may be observed if one considers that Article 8 of the Charter does not amount to the projection of a shared constitutional principle onto European law.Footnote 50
As to the second issue highlighted above, related to the new role potentially played by CCTs due to the entry into force of the Charter, an important element should be pointed out. The choice to codify the protection of rights—which had previously been protected only through case law, thanks to the vehicle of general principles of European Union law—at the para–constitutional level has, almost paradoxically, favored the emergence of a new role for CCTs. They have been revitalized in the case law of the CJEU. In fact, as will be shown below, the existence of the Charter has made CCTs more prominent in the reasoning of the Court.
More precisely, minor interpretative gaps gave the CJEU an easy time carrying out highly creative interpretative operations, in which traditions play an essential role, in its most recent case law. These gaps result from the fact that, as far as the scope of protection for the rights in play is concerned, the moment of writingFootnote 51 has not always ensured that these rights maintain the same scope following the shift from the unwritten domain—general principles and constitutional traditions—to the written domain of the Charter. This means that a general principle, as inspired by CCTs, is capable of having a scope or an expansive potential that is broader than the codified version of the right in the Charter.Footnote 52
In other words, the argumentative reference within the Court’s reasoning to the general principle—for example, in relation to the principle of good administrationFootnote 53—is potentially capable of being used as a Trojan horse to circumvent the limit provided for under Article 51 with regard to its application within EU law. This capability is precisely due to a greater expansive scope, compared to the formulation of the same right within the Charter.
To put it in simplistic terms, general principles can apply to situations that fall beyond the scope of the corresponding rights contained in the Charter.
It must also be noted that on some occasions the Court has “forgotten” to cite the Charter at all and has referred exclusively to the corresponding general principle and to the CCTs out of which it results. An emblematic case in this regard is El Dridi,Footnote 54 in which the Luxembourg Court invited the referring court—when resolving the dispute pending before it—to take due account of the principle of the retroactive application of a more lenient penalty, “which forms part of the constitutional traditions common to the Member States.”Footnote 55 The Court did so without referring to Article 49(1) of the Charter, which codifies that principle and would have been applicable in this specific case alongside the corresponding general principle.
It is thus no coincidence that the CJEU has tailored its reasoning and adjusted its argumentative instruments to this goal.
This is an argumentative exercise which, if considered within its proper context, becomes even more interesting in that it shows the CJEU as almost a “two–faced Janus” regarding the interpretation of Article 51 of the Charter. On the one hand, the Court has adopted an extremely cautious—if not restrictive—approach, in order to reassure the Member States—and in particular their constitutional courts—that the Charter will not be applied broadly beyond the scope of EU law. On the other hand, the Court is pushing precisely in the opposite direction, by using the highly effective passepartout of general principles and CCTs.
Confirmation of this new role of CCTs as a trump card that is capable of expanding the scope of the Charter beyond the boundaries laid down by Article 51 may be found in the DEB case,Footnote 56 along with the fairly creative application of Article 47—on the right to an effective remedy—by the Court in that case.Footnote 57
The problem that arose in this case concerned the contrast between EU law and German law. German law did not allow a legal person, other than in exceptional cases, to receive free legal aid in order to bring legal actions in the event that it did not dispose of its own resources because under the relevant German legislation, that right was reserved to natural persons. This meant that the applicant company was unable to bring a damages action against the German state on the grounds that it had not transposed an EU directive within the prescribed time limit.
The national judge’s question was simple: Is the principle of an effective judicial remedy—also expressed by Article 47 of the Charter—capable of precluding a national provision that, by failing to provide financial assistance for bringing legal actions to legal persons, de facto does not allow such persons to benefit from the principle of effective judicial relief?
This interesting factual question shows that, when the CJEU lacks CCTs, it is able to follow an alternative path to the one visible in Digital Rights Ireland. This argumentative path involves the recourse, as a supplementary tool, to the recognition by the European Court of Human Rights of the level of consensus between states regarding the way a specific right is protected.
In light of the above, it will come as no surprise that although the national court expressly referred to Article 47 of the Charter, the CJEU started by referring to the corresponding general principle. It asserted that the requirement to protect the principle of effective judicial relief amounts to “a general principle of EU law stemming from the constitutional traditions common to the Member States.”Footnote 58
This opening statement placed the principal question beyond the scope of the Charter; however, it did not yet resolve three significant interpretative obstacles that impaired the CJEU’s ability to answer the national court’s question in the affirmative.
First, it was necessary to avert an outcome that risked resulting in a literal interpretation of Article 47 of the Charter. This provision again refers to “everyone”—except in the third paragraph, which refers less specifically to “those”—and appears to exclude the possibility that the right recognized thereunder may be recognized to a legal person. The Court acknowledged that “no indication is given as to whether such aid must be granted to a legal person or of the nature of the costs covered by that aid” but added that such a “provision must be interpreted in its context, in the light of other provisions of EU law, the law of the Member States and the case law of the European Court of Human Rights.”Footnote 59 As it has been asserted elsewhere,Footnote 60 the reference to context–based interpretation is always a fairly clear indication that the court is engaging in judicial activism. It will come as no surprise that the Community courts reached the conclusion that legal persons cannot, by principle, be precluded from the scope of Article 47 of the Charter. The Court pointed out, inter alia, that on the one hand, the Commission had stressed in its intervention that the term “everyone” used in the first two paragraphs of Article 47 could refer to individuals, but that from a purely linguistic point of view it did not exclude legal persons. On the other hand, it emphasized that although the explanations relating to the Charter were not clear in this regard, confirmation of such an interpretative approach may be found in the use of the term “Person” in the German language version of Article 47—as opposed to the term “Mensch,” used in numerous other Charter provisions where the intention is to refer exclusively to natural persons.
Having thereby creatively overcome the first obstacle—the literal wording of Article 47 of the Charter—a second, equally problematic issue remained. In this specific case, the Court needed to identify CCTs that could be used as fuel to propel the construction of a general principle concerning the grant of free legal aid to legal persons. While, as indicated at the outset by the Court, there was undoubtedly a common constitutional basis for the principle of an effective judicial remedy, the Court could not fail to admit that it was short on constitutional “fuel” with regard to the more specific principle of free legal aid for legal persons. No optical illusion is capable of concealing what was made clear by the Advocate General in his opinion (para. 76-80). The Court itself stated that “examination of the law of the Member States brings to light the absence of a truly common principle which is shared by all those States as regards the award of legal aid to legal persons.”
The need to rectify this shortcoming forced the CJEU to look to the relevant case law of the European Court of Human Rights. Following a careful analysis of that case law, the Luxembourg Court held that—regarding the relevant legal traditions of the members of the Council of Europe—the Strasbourg Court did not, as a matter of principle, exclude the possibility of extending the grant of free legal aid to legal persons, although that possibility “must be assessed in the light of the applicable rules and the situation of the company concerned.”
This amounts to a rather interesting exercise in judicial creativity, involving an expansion of CCTs, looking towards the “greater” Europe. It is evident that, depending on the judicial body that acknowledges the relevant legal traditions—and especially the relevant geographical area on which it focuses—this may or may not result in the emergence of a shared constitutional factor.
In this case, the implicit logic of the CJEU’s reasoning is as follows. Absent an internal source of CCTs, it may be useful—and in fact decisive—to link up with the—much more extensive—external source, which the Strasbourg Court could not avoid drawing on when concluding that entitlement to free legal aid also extended to legal persons, which could be considered to fall within the scope of Article 6(1) of the Convention.
One final “insignificant” detail remained, which prevented the CJEU from finding a violation of EU law. This area of law, as has been noted,Footnote 61 and has not been subject to harmonization on an EU level. In particular, the relevant German law prohibiting it had by no means been adopted as part of any form of transposition of EU law. This area laid outside the scope of EU law and it would have been very difficult to apply the Wachauf case lawFootnote 62 here, given that there was no connecting factor whatsoever that could give rise to any requirement to transpose EU law into national law.
The impact on the sphere of European law was defined by the principle of effectiveness—in this case, broadly interpreted. It seems that the principle of effectiveness may also play the role of a special “gear” between the national and European systems, used to extend the field of application of guarantees of fundamental rights.Footnote 63
The outcome is not infallible, in view of this manipulation carried out over the three stages described above. The CJEU resolved the question by declaring that: (a) The principle of an effective judicial remedy, as enshrined in Article 47 of the Charter, must be interpreted to the effect that legal persons may not be precluded from invoking it; and (b) legal aid granted thereunder may specifically include an exemption from the payment of an advance on court costs and/or legal representation.
Against this background, it is quite clear that CCTs—far from becoming subject to a process of marginalization and progressive sidelining within the case law of the Court following the proclamation and subsequent entry into force of the CFR, in terms of the theory of interpretationFootnote 64—play an essential role in the CJEU’s reasoning. This has been facilitated by the absence of any overlap between the scope of some of the rights provided for under the Charter and of the corresponding general principles. The minor interpretative gaps that emerge from this lack of overlap have allowed the Court to expand the scope of application of EU law. Within this scenario, constitutional traditions play an essential role as part of the security discourse—not only as domestic fuel in the construction of general principles, but also in particular as a Trojan horse on which the interpretative, or rather manipulative, activity of the CJEU focuses—in order to circumvent the limit laid down by Article 51 of the Charter.
III. Relevance of the Common Constitution Traditions in the (Near) Future
Finally, with regard to the possible future development of the language of common constitutional traditions, such language seems very useful to represent a valid option to surpass the alternative language of constitutional identity as the main ingredient in the judicial conversation between the CJEU and constitutional courts in Europe.
In order to present this argument, a step back is necessary.
In the 2004 Omega
Footnote 65 decision, the CJEU moved from the “plural” to the “singular” in its interpretative stance towards CCTs. The Court’s shift from determining those common traditions for the purposes of applying the majoritarian activism approach to considering the individual constitutional identity of the single Member State raised hopes of a possible shift from absolute to relative primacy in the CJEU case law. Those hopes were further fostered by the adoption of the clause on respect for national identity contained in Article 4(2) of the EU Treaty.
In a way, the above–mentioned provision has been taken too seriously by those who believe that, despite the original intent of the draftersFootnote 66 and the relevant case law of the CJEU,Footnote 67 the concept of “national identity” is identified with the concept of “constitutional identity and framed within the discourse of the Court of Justice (“ECJ”) and national constitutional courts’ different claims to sovereign authority.”Footnote 68
This reading was crucial in fueling the already existing “new identity control” season in the case law of the German Constitutional Court.Footnote 69 The request of a preliminary ruling in Gauweiler,Footnote 70 far from being an expression of cooperative constitutionalism, represented the apex of polemic constitutional patriotism in which the language of constitutional identity played an absolute protagonist role. This language was not constrained by any set of essentials that are themselves compliant in general outline with the basic values of Article 2 of the Treaty on European Union (“TEU”). This move towards the conflictual side of security—in the constitutional identity conversation between the German Constitutional Court and the CJEU—has involuntarily supported the wind of populism, which is blowing across Europe and from which courts—including constitutional and supreme courts—are not immune. The language of constitutional identity has been manipulatively borrowed, as the Hungarian case shows very well, by non–independent constitutional courtsFootnote 71 who wish to totally distort the original meaning of constitutional identity and make it substantially overlap with the will of the government.Footnote 72
Against this background, the language of CCTs, as an expression of the conciliatory side of security, could instead be more promising for the future of judicial conversations in Europe.
The Italian Constitutional Court (“ICC”) is a pioneer speaker of this new language, as its first move in the recent Taricco saga seems to confirm.Footnote 73 Strangely enough, the case in which the new attitude has emerged is one in which the same Court used, for the first time everFootnote 74 and in the context of the relationship between the domestic and the EU legal orders, the phrase “constitutional identity.”Footnote 75 This confirms how the dialectics between CCTs and constitutional identity generates ambiguities and contradictions in the relationship between courts. In this major case, the ICC referred a preliminary question to the CJEU: Whether its previous judgment in Taricco
Footnote 76—which, in line with Article 325 of the Treaty on the Functioning of the Union (“TFEU”), required Italian criminal courts to set aside domestic statute of limitations rules whose effect was to undermine the prosecution of tax crimes against the financial interests of the EU—ought to be applied even if it conflicted with the constitutional principle of legality in criminal law. The ICC underlined how this constituted a fundamental principle of the Italian constitutional systemFootnote 77 and flagged its concern for the practical application of the previous ECJ ruling.Footnote 78
Nevertheless, the ICC recognized the importance of the primacy of EU lawFootnote 79 and endeavored to prod the CJEU to revisit its previous ruling by underlying the fact that the principle of legal certainty constitutes “a common requirement to the constitutional traditions of the member states, is present in the system of protection of the ECHR, and as such it enshrines a general principle of EU law.”Footnote 80 While the ICC kept the possibility of invoking the counter–limits doctrine against the future ruling of the CJEU open, it refrained from embracing a confrontational position premised on the idea that the constitutional identity of Italy was undermined by the EU. Rather, the ICC stressed the correspondence between the constitutional tradition of Italy and the values underpinning the project of European integration and asked the CJEU to recognize the common constitutional heritage linking the EU and its member states. True, the ICC specified that the principles that came into question in Taricco deal with the constitutional identity of Member States. Yet, the ICC particularly emphasized the importance of CCTs, including both the national and European ones. In the ICC’s view, the existence of a CCT does not prevent each Member State from adopting a specific understanding of the same principle—most notably where the relevant area of law has not been subject to harmonization. The ICC, without also neglecting the relevance of constitutional identity, focuses more on the notion of constitutional tradition(s). At the same time, however, one of the main outcomes of the Taricco saga is that the protection of the financial interests of the EU—a common good of the EU as a whole—is ensured. One consequence of this reconfiguration is the replacement of the idea of the one and only possible authoritative ruling of the CJEU with that of a cooperative interpretative enterprise, according to which several possible—but by no means all possible—interpretations of EU law by the relevant national courts are admitted.
In other words, concerning constitutional conflict, the ICC seems to propose an alternative language with regard to the protection of the untouchable core of the constitutional legal order. This is compared to the identity-based language spoken by the German Constitutional Tribunal in Gauweiler, for example. It is the language of the necessary protection of constitutional tradition, which turns out to be a European legal concept by design, and for sure is more in line with the current season of cooperative constitutionalism in Europe.Footnote 81
It is not only a formal, linguistic difference but also a substantive one. The constitutional tradition is, by definition, pluralistic in nature, whereas the reference to constitutional identity, by design, is not. As it has been pointed out, the ICC reasoning shifts from the national constitutional tradition to the European one, seeking to prod the CJEU to reconsider its previous judgment in light of values which are part of the European constitutional heritage.Footnote 82
Even if the conclusions of the Advocate General BotFootnote 83 were not promising in this respect,Footnote 84 the CJEU benefitted from the ICC cooperative assist. More precisely, with this judgment,Footnote 85 the Court revisited its previous stance by taking the request to disapply the domestic provisions affording broader protection to fundamental rights seriously, in order to make the protection of the financial interests of the EU conditional upon the respect of the rights of individuals. The ECJ thus proclaims the existence of inherently pluralistic constitutional traditions of Member States; this way, Article 6(3) of the TEU, even if not explicitly mentioned, is definitely preferred to Article 4(2) of the TEU with a view to providing a more elaborate understanding of the principle of legality than that adopted in Taricco I.
The CJEU thus explored three different and equally relevant profiles of the principle of legality: Foreseeability, precision, and non–retroactivity of the applicable criminal law. All these profiles, in the CJEU’s view, are given importance in both the EU legal order and in national legal systems. These are then applicable, in the Italian legal order, to the limitation rules for criminal offences relating to the value added tax (“VAT”). In fact, the Italian Republic, before the adoption of Directive 2017/1371—on the fight against fraud to the Union’s financial interests by means of criminal law—was free to provide rules in its legal system—like the ones defining offenses and the determination of penalties—as part of substantive criminal law, thereby subject to the principle that offenses and penalties must be defined by law (para. 45).
First, as to foreseeability, the CJEU deduces from the case law of the European Court of Human Rights on Article 7(1) of the ECHR that “provisions of criminal law must comply with certain requirements of accessibility and foreseeability, as regards both the definition of the offence and the determination of the penalty.”
Second, the CJEU points out that the requirement that the applicable law must be precise means that:
[T]he law must clearly define offences and the penalties which they attract. That condition is met where the individual is in a position, on the basis of the wording of the relevant provision and if necessary with the help of the interpretation made by the courts, to know which acts or omissions will make him criminally liable.
Third, the principle of non–retroactivity of the criminal law prevents courts, in the course of criminal proceedings, from imposing “a criminal penalty for a conduct which is not prohibited by a national rule adopted before the commission of the alleged offence or aggravate the rules on criminal liability of those against whom such proceedings are brought.”
As a result, the CJEU attaches a broader significance to the principle of legality as part of the CCTs of Member States and as enshrined in Article 49 of the Charter. The consequences of this more convincing construction of the principle of legality are very important if one compares the outcome of Taricco II to the ruling in Taricco I.
In other words, the principle of legality is given enhanced strength not merely by virtue of the protection guaranteed by the Charter and the ECHR but mostly as a result of its configuration as a CCT.
The CJEU specified in Taricco II—M.A.S. and M.B.—that the Taricco rule is not applicable before the publication of the same judgment and is thus not applicable in the pending proceedings before the referring judges. Indeed, in both cases, the facts occurred prior to September 8, 2015, so the applicability of Articles 160(3) and 161(2) of the Criminal Code, and the consequent time–barring of the relevant crimes, was admitted pursuant to the M.A.S. and M.B. judgment.
Since the CJEU completely changed its approach in the two Taricco judgments—it was much more cooperative and open to the reasoning of the ICC in the Taricco II decision—it might have been tempting to predict that such a decision would have been welcomed and promptly enforced by the ICC. Yet, this would have been a wrong prediction. More precisely, in its latest judgmentFootnote 86 – in light of the clarification provided by Taricco II—considered that all questions raised by the referring courts were unfounded because the “Taricco rule” was to be held inapplicable in the cases pending before the Court.
But the Judgment did not end here. It has been stressed above that, in Taricco II, the CJEU’s reasoning reveals a new season of cooperative constitutionalism in Europe, according to which the language of constitutional traditions—pluralistic and tolerant by design—was going to definitely take the place of the much more constitutional, patriotic–based language of constitutional identity. This was also thanks to the ICC’s assist with its request of primary ruling (with Order No. 24/2017).
Surprisingly enough, it is difficult, or impossible, to find traces of the same language of CCTs in the ICC decision No. 115/2018, which followed the Taricco II judgment. It seems, by contrast, that the ICC decision under review is drenched in what appears to be an emerging post–Lisbon constitutional identity narrative. It may be a formalistic statement, but the reference to constitutional identity is present twice in the judgment (paragraphs 5 and 11) whereas the reference to constitutional traditions is nowhere to be found.
Based on the premise that it enjoys a monopoly in upholding fundamental rights, the ICC does not limit itself to considering the questions put forward by the referring judges as inadmissible (para 10). Accordingly, the ICC opts for a more drastic solution and—independently of whether the crimes were committed before or after September 8, 2015—considers that the degree of precision postulated by Article 25(2) of the Italian Constitution precludes the application of the Taricco rule, as clarified in Taricco II.
The Taricco rule is thus inapplicable to facts before the publication of the Taricco I ruling and, as a result, does not apply to the proceedings pending before the referring judges.
More precisely, despite acknowledging the CJEU’s power to interpret EU law uniformly, the Italian Court still argued that Article 325 of the TFEU does not comply with the requirements of specificity and clarity under domestic law.
Although the Court did not trigger its counter–limits explicitly, because it claimed that its ruling is perfectly in line with both domestic law and EU law—thus reserving for itself the power to review EU law in certain circumstances—this judgment still reflects the conflictual side of the meta–constitutional security rationale and confirms its ambiguity.
D. Outline of the Final Findings of the Analysis
In conclusion, to answer the question posed at the outset, it certainly still makes sense today to reflect on the topicality and utility of CCTs. In fact, despite the darkest forecasts, they have still survived at the time of writing. Indeed, as this Article has attempted to demonstrate, they are still in excellent health.
Two key features associated with CCTs—and the general principles of the EU—which followed the Charter’s entry into force, support this hypothesis.
First, the case law of the Court gives CCTs a new lease on life in a creative way. This is because there are minor interpretative gaps between the scope of protection of a right under the Charter and the scope of protection of the same right when construed as a general principle, through the reference to CCTs of the Member States. As a consequence of those interpretive gaps, the recent case law of the CJEU has had an easy time carrying out highly creative interpretations. These gaps are generated by the fact that rights do not always maintain the same scope when put in writing, following the transition from the unwritten domain of general principles and constitutional traditions to the written text of the Charter. This means that a general principle, as inspired by CCTs, is capable of having a scope—or a potential—that is broader than the codified version of the same right in the Charter. Thus, the Court’s reference to general principles may turn out to be a sort of Trojan horse, working to circumvent the limit set out under Article 51 of the Charter with regard to its application within EU law. In simple terms, general principles can have effect beyond the scope of the corresponding rights contained in the Charter.
As we have seen, a good example of this dynamic is provided by the attitude of the CJEU in the enforcement of the principle of good administration beyond the scope of application of Article 41 of the Charter.
The second potential role played by CCTs after Lisbon can be framed as the development of a new language—precisely, that of CCTs—to be used by the CJEU and constitutional courts as an alternative to the identity–based language, which is currently gaining ground in the present scenario of judicial interaction in Europe. The latter language is based on a constitutional–patriotic interpretation of Article 4, paragraph 2 of the TEU.Footnote 87
National identities, in a broader sense, can be considered as counterweights to CCTs. Yet, they are part of the materials upon which these traditions are built. If national identities contribute to the making of national constitutional traditions in the field of fundamental rights, they indeed contribute to create the common traditions as well. National identities can therefore be considered the bricks needed to build CCTs—to the extent that they are common among the Member States—while they become counterweights to the dynamic potential of said traditions when they begin to differ one from the other. In this sense, they are controversial and have a double nature. From this perspective, CCTs—most notably if framed as a pluralistic and “open” notion—can be considered as a possible antidote to the nationalist posture. References to CCTs can help to achieve the famous ideal of “united in diversity.” They stress what is common and thus unifying, while at the same time respecting and accommodating national differences. Against this background, the language of CCTs can facilitate judicial conversations in Europe and foster a much more cooperative constitutionalism as an alternative to the conflict–based language of constitutional identity. Several possible, but by no means all possible, interpretations of EU law by the relevant national courts may be admitted, yet they remain within a common mind frame.
A pioneer of this new language, as we have seen, has been the ICC in its preliminary reference to the CJEU in the Taricco saga.Footnote 88 The ICC held that the principles that came into question in Taricco concern the constitutional identity of Member States. Nevertheless, the ICC emphasizes the importance of the CCTs, both at the national and European levels. For the ICC, the existence of CCTs does not strip Member States of the possibility of adopting a specific understanding of the same principle, especially where the relevant area of law has not been harmonized. With its emphasis on CCTs, the ICC advances a language that provides an alternative to the identity–based language endorsed by the German Constitutional Tribunal, for instance, in Gauweiler. It is the language of the necessary protection of CCTs, which turns out to be a European legal notion, better suited to the stage of cooperative constitutionalism in Europe.
This is a substantial difference; it should not be dismissed as merely a formal and linguistic one. The notion of constitutional tradition is by definition pluralistic in nature, whereas the reference to the constitutional identity is hardly so. The ICC reasoning shifts from the national constitutional tradition to European ones to prod the ECJ to reconsider its previous judgment in light of values that are part of the European constitutional heritage. This approach paid off with the second Taricco decision of the CJEU.
Article 6(3) of the TEU, referring to fundamental rights as they result from the constitutional traditions common to Member States, could, as partially shown by the Taricco saga, prove a more appropriate approach than the appeal to the national identity clause enshrined to Article 4(2) of the TEU. However, the tension between the language of CCTs and the language of constitutional identity—respectively, the conciliatory and conflictual side of security—is also visible in the recent ruling of the ICC in reply to the CJEU decision. This tension and related ambiguity is likely to persist for a long time.
Why did the ICC feel the need to clarify with such emphasis its view related to the radical contrast with the constitution of the Taricco rule if, in order to end the saga, it could have been enough to acknowledge the “clarification” of the CJEU in M.A.S. and M.B.?
The impression is that a lot has to do not only with the vertical relationship with the CJEU but also with the horizontal relationship with ordinary judges.
In other words, the ICC views the cooperative relationship between the CJEU and ordinary judges as a threat to the role and power which should characterize a constitutional court in a system of centralized constitutional adjudication, with regard to the protection of fundamental rights.
The ICC is clearly not indifferent to this risk. This is the reason why the ICC wants to deliver a decision with erga omnes effects.
Although the CJEU has never clarified in Taricco II which judge—the Constitutional Court or the common judges—has to verify the compatibility of the Taricco rule with the principle that offenses and penalties must be defined by law, the ICC rules that it has an exclusive competence to carry out this control, because a supreme principle of the Italian constitutional order is at stake (para. 8).
Even without expressly recalling it, the ICC seems to align itself with the obiter dictum laid down in its judgment No. 269/2017 (para. 5.2).Footnote 89 In that obiter, the constitutional judges, after Taricco II and quoting that judgment, held that “it may therefore occur that the violation of an individual right infringes, at once, upon the guarantees enshrined in the Italian Constitution and those codified by the EU Charter of Fundamental Rights, as recently occurred in reference to the principle of the legality of crimes and punishments,” and added that:
[W]here a law is the object of doubts concerning the rights enshrined in the Italian Constitution or those guaranteed by the EU Charter in those contexts where EU law applies, the question of constitutionality must be raised, leaving in place the possibility of making a referral for a preliminary ruling for matters of interpretation or of invalidity of Union law, under Article 267 [of the] TFEU.
In a way, this is an explicit message to the national judges who should think twice before bypassing the ICC in the attempt to foster their privileged communication channel with the CJEU.
More precisely, the message reflected in the most recent ICC rulings seems to be addressed to the Italian Court of Cassation, the court of last resort in Italy. There is a growing emerging battle between the two courts in the field of multilevel protection of fundamental rights. In fact, the Court of Cassation seems reluctant to raise, as requested by the ICC, the question of constitutionality.
If anything, this demonstrates that the tension between security and fundamental rights, as illustrated in this Article, is not only present at the more visible level of the interaction between constitutional courts and the CJEU but also involves ordinary courts. The nature of transnational law, as it were, is that of penetrating the deepest levels of domestic legal systems and generating conflicts. The challenge for the future of the EU legal system is finding a way to address and manage such conflicts as effectively as possible in times of crisis.