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European Fundamental Rights and the Member States: From ‘Selective’ to ‘Total’ Incorporation?

Published online by Cambridge University Press:  27 October 2017


In parallel with American constitutional thought, there exists a doctrine of incorporation in the European legal order. European fundamental rights will thus not exclusively limit the European institutions. They may—in certain situations—equally apply to the public authorities of the Member States. This chapter looks at the incorporation doctrine across the three sources of European fundamental rights. With three distinct sources of fundamental rights, the constitutional principles governing the European incorporation doctrine are unsurprisingly more complex than the American incorporation doctrine. What are the similarities and dissimilarities between the European and the American incorporation doctrine? The Union presently favours selective over total incorporation. In this respect, it emulates the American constitutional order. Yet the European doctrine nonetheless differs strikingly from the classic American doctrine. For unlike the latter, the European legal order has not made incorporation dependent on the type of fundamental right at issue. The European doctrine has, by contrast, made the incorporation of Union fundamental rights into national legal orders dependent on the type of Member State action.

Research Article
Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2012

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1 The ‘Bill of Rights’ is the constitutional shorthand for the first ten amendments to the 1787 Constitution. They had been proposed in 1789 to the first Congress by James Madison, but only came into effect, after their ratification by the States, in 1791. The incorporation doctrine is thereby the perhaps most controversial constitutional question of the second half of the twentieth century. It has been fought over with much brilliance and bile. For an overview of the debate—from different viewpoints, see only: Berger, R, Government by the Judiciary: The Transformation of the Fourteenth Amendment (Indianapolis, Liberty Fund, 1997)Google Scholar, and Amar, A, The Bill of Rights (New Haven, Conn, Yale University Press, 1998)Google Scholar.

2 The question of incorporation must be distinguished from the question of direct effect. The doctrine of direct effect concerns the question whether federal provisions are sufficiently clear and precise. If they are, fundamental rights (like any ordinary European law) will have direct effect and will need to be applied by the executive and judicial branches. By contrast, the doctrine of incorporation concerns the question against whom they can be applied, in this case: whether European human rights may—exceptionally—also provide a judicial review standard for national laws . On the distinction between direct effect and the scope of application of a norm, see Schütze, R, European Constitutional Law (Cambridge, Cambridge University Press, 2012)CrossRefGoogle Scholar ch 9.

3 On the three sources of fundamental rights in the European Union legal order, cfSchütze, R, ‘Three “Bills of Rights” for the European Union’ (2011) 30 Yearbook of European Law 131 CrossRefGoogle Scholar.

4 Case C-34/09 Zambrano v ONEM, nyr. On the laconic character of the actual judgment, see Editorial, ‘Seven Questions for Seven Paragraphs’ (2011) 36 European Law Review 161 Google Scholar.

5 Barron v Mayor & City of Baltimore, 32 US 243 (1833).

6 The Amendment states (emphasis added): ‘No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.’

7 Barron v Baltimore (n 5) 247.

8 Barron v Baltimore (n 5) 249.

9 Barron v Baltimore (n 5) 250:

Had Congress engaged in the extraordinary occupation of improving the Constitutions of the several States by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.

10 Barron v Baltimore (n 5) 251.

11 On the Civil War (1861–65) as a constitutional watershed, cfSchütze, R, ‘Federalism as Constitutional Pluralism: “Letter from America”’ in Avbelj, M and Komárek, J, Constitutional Pluralism in the European Union and Beyond (Oxford, Hart Publishing, 2012) 185, esp 199 fGoogle Scholar.

12 The Thirteenth Amendment prohibits slavery or involuntary servitude, except as a punishment for crime. The Fifteenth Amendment prohibits any discrimination within the right to vote ‘on account of race, color, or previous condition of servitude’. The Fourteenth Amendment is discussed below.

13 US Constitution, Fourteenth Amendment, s 1.

14 ‘Before the Civil War, the status of national citizenship remained at best vague. The Constitution mentioned it without defining what it was.’ See Tribe, L, American Constitutional Law, 3rd edn (New York, Foundation Press, 2000) 1298 Google Scholar. Until the Civil War the United States indeed followed the constitutional solution that presently applies in the European Union, that is: Member States are (almost) entirely free to determine State membership, and this State citizenship will—indirectly—confer European citizenship cf Art 20(1) TFEU:

Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

15 Slaughterhouse Cases, 83 US 36 (1872).

16 Slaughterhouse (n 15) 77.

17 Slaughterhouse (n 15) 79.

18 Slaughterhouse (n 15) 78.

19 Cf Cruikshank 92 US 542 (1876), esp at p 551.

20 The Slaughterhouse ruling was confirmed in Twining v State 211 US 78 (1908); as well as in Adamson v California 332 US 46 (1947), 51–53:

With the adoption of the Fourteenth Amendment, it was suggested that the dual citizenship recognized by its first sentence secured for citizens federal protection for their elemental privileges and immunities of state citizenship. The Slaughter-House cases decided, contrary to the suggestion, that these rights, as privileges and immunities of state citizenship, remained under the sole protection of the state governments. This Court, without the expression of a contrary view upon that phase of the issues before the Court, has approved this determination … This reading of the Federal Constitution has heretofore found favor with the majority of this Court as a natural and logical interpretation. It accords with the constitutional doctrine of federalism by leaving to the states the responsibility of dealing with the privileges and immunities of their citizens except those inherent in national citizenship.

21 Cf.Tribe, , American Constitutional Law (n 14) 1316 Google Scholar:

And despite the semantic difficulties that the process-based language of that provision poses for incorporation of the substantive guarantees of the Bill of Rights, the Supreme Court, beginning in the late nineteenth century, has indeed interpreted the Due Process Clause expansively, so that it essentially preforms many of the functions for which the Privileges and Immunities Clause was designed.

and Ely, JH, Democracy and Distrust: Theory of Judicial Review (Cambridge, Mass, Harvard University Press, 1980) 18 Google Scholar:

Familiarity breeds inattention, and we apparently need periodic reminding that ‘substantive due process’ is a contradiction in terms—sort of like ‘green pastel redness’.

22 For an analysis of the demise of the philosophy of dual federalism, see Corwin, E, ‘The Passing of Dual Federalism’ (1950) 36 Virginia Law Review 1 CrossRefGoogle Scholar, as well as Schütze, R, From Dual to Cooperative Federalism: The Changing Structure of European Law (Oxford, Oxford, University Press, 2009)CrossRefGoogle Scholar ch 2.

23 Gitlow v New York 268 US 652 (1925).

24 Ibid, 666.

25 Palko v Connecticut 302 US 319 (1937).

26 Ibid, 323 (per Justice Cardozo):

We have said that, in appellant’s view, the Fourteenth Amendment is to be taken as embodying the prohibitions of the Fifth. His thesis is even broader. Whatever would be a violation of the original bill of rights (Amendments I to VIII) if done by the federal government is now equally unlawful by force of the Fourteenth Amendment if done by a state. There is no such general rule.

27 Palko (n 25) 325.

28 Palko (n 25) 325. For a criticism of the ‘ordered liberty’ test in particular, see concurring opinion of Justice Frankfurter in Palko; as well as: Henkin, L, ‘“Selective Incorporation” in the Fourteenth Amendment’ (1963) 73 Yale Law Journal 74 CrossRefGoogle Scholar.

29 For the various tests for selective incorporation, see Duncan v Louisiana 391 US 145 (1968), esp pp 148–49.

30 McDonald et al v City of Chicago, Illinois et al 561 US (2010) nyr.

31 The Second Amendment states: ‘A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.’

32 Chicago, Illinois, Municipal Code § 8–20–040(a) (2009).

33 McDonald et al v City of Chicago (n 30) 10: ‘For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.’

34 McDonald et al (n 30) 11 (with reference to Adamson ).

35 McDonald et al (n 30) 12 (with reference to Duncan )

36 McDonald et al (n 30) 13 (with reference to Gitlow ).

37 McDonald et al (n 30) 13.

38 McDonald et al (n 30) 16.

39 McDonald et al (n 30) 18 (with reference to Malloy v Hogan 378 US 1 (1964)).

40 McDonald et al (n 30) 15: ‘[T]he Court never has embraced Justice Black’s “total incorporation” theory.’ The classic proponent of ‘total incorporation’ had indeed been Justice Black, cf Adamson 332 US 68–123 (dissenting opinion).

41 There exist however a few federal rights that have not been found to be incorporated, such as the Fifth Amendment Right to indictment by a grand jury (cf Hurtado v California 100 US 516 (1884)).

42 Pescatore, P, ‘Les Droit de l’homme et l’intégration européenne’ (1968) 4 Cahiers du Droit Européen 629 Google Scholar.

43 For speculations on the historical reasons for this absence, see Pescatore, P, ‘The Context and Significance of Fundamental Rights in the Law of the European Communities’ (1981) 2 Human Rights Journal 295 Google Scholar; as well as Dauses, MA, ‘The Protection of Fundamental Rights in the Community Legal Order’ (1985) 10 European Law Review 399 Google Scholar. And for a new look at the historical material, see also Búrca, G de, ‘The Evolution of EU Human Rights Law’ in Craig, P and Búrca, G de, The Evolution of EU Law, 2nd edn (Oxford, Oxford University Press, 2011) 465 Google Scholar.

44 For an overview of the various discussions, see Schütze, European Constitutional Law (n 2) ch 12.

45 Case 5/88 Wachauf v Bundesamt für Ernährung und Forstwirtschaft [1989] ECR 2609. The idea had been implicit in the (earlier) ruling Case 36/75 Rutili v Ministre de l’intérieur [1975] ECR 1219.

46 On the right to property as a European fundamental right, cf Case 44/79 Hauer v Land Rheinland-Pfalz [1979] ECR 3727, esp para 17: ‘The right to property is guaranteed in the [Union] legal order in accordance with the ideas common to the constitutions of the Member States’.

47 Wachauf (n 45) para 19.

48 On the Member States acting as the Union executive, see Schütze, R, ‘From Rome to Lisbon: “Executive Federalism” in the (New) European Union’ (2010) 47 Common Market Law Review 1385 Google Scholar.

49 Case C-144/95 Maurin [1996] ECR I-2909. For more recent case law, see also Case C-336/07 Kabel Deutschland Vertrieb v Niederländische Landesmedienanstalt für den privaten Rundfunk [2008] ECR I-10889; as well as Case 45/08 Spector Photo Group v CBFA [2009] ECR I-12073.

50 Maurin (n 49) para 11.

51 Maurin (n 49) para 12.

52 CfDougan, M, Minimum Harmonisation and the Internal Market’ (2000) 37 Common Market Law Review 853 CrossRefGoogle Scholar; and see esp Cecco, F de, ‘Room to Move? Minimum Harmonization and Fundamental Rights’ (2006) 43 Common Market Law Review 9 Google Scholar.

53 Wachauf (n 45).

54 Wachauf (n 45) paras 22–23 (emphasis added):

The [European] regulations in question accordingly leave the competent national authorities a sufficiently wide margin of appreciation to enable them to apply those rules in a manner consistent with the requirements of the protection of fundamental rights, either by giving the lessee the opportunity of keeping all or part of the reference quantity if he intends to continue milk production, or by compensating him if he undertakes to abandon such production definitively. The submission that the rules in question conflict with the requirements of the protection of fundamental rights in the Union legal order must therefore be rejected.

55 Cf Case 2/92 The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Dennis Clifford Bostock [1994] ECR-I 955.

56 Bostock (n 55) para 10:

Nothing in the regulations referred to by the national court requires Member States to introduce a scheme for the payment by a landlord of compensation to an outgoing tenant, or directly confers on a tenant a right to such compensation, in respect of the reference quantity transferred to the landlord on the expiry of a lease.

57 Bostock (n 55) paras 17 f.

58 Case 275/06 Promusicae v Telefónica de España [2008] ECR 271. The case will be discussed below.

59 Cf Case C-2/97 Società italiana petroli SpA (IP) v Borsana [1998] ECR I-8597, esp para 40: Since the legislation at issue is a more stringent measure for the protection of working conditions compatible with the Treaty and results from the exercise by a Member State of the powers it has retained pursuant to Article [153] of the [FEU] Treaty, it is not for the Court to rule on whether such legislation and the penalties imposed therein are compatible with the principle of proportionality.

See also Case C-6/03 Deponiezweckverband Eiterköpfe v Land Rheinland-Pfalz [2005] ECR I-2753.

60 Case C-260/89 Elliniki Radiophonia Tiléorassi AE and Panellinia Omospondia Syllogon Prossopikou v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas and Nicolaos Avdellas and others (ERT )[1991] ECR I-2925.

61 ERT (n 60) para 43.

62 In Case 60 and 61/84 Cinéthèque SA and others v Fédération nationale des cinémas français [1985] ECR 2605.

63 See in particular Jacobs, F, ‘Human Rights in the European Union: The Role of the Court of Justice’ (2001) European Law Review 331, 336–37Google Scholar; and more recently Huber, PM, ‘The unitary Effect of the Community’s Fundamental Rights: The ERT-Doctrine Needs to be revisited’ (2008) 14 European Public Law 323, 328Google Scholar: ‘Though this concept is approved from various sides, it is neither methodologically nor dogmatically convincing.’

64 Cf Case C-368/95 Vereinigte Familiapress Zeitungsverlagsund vertriebs GmbH v Heinrich Bauer Verlag [1997] ECR I-3689.

65 ERT (n 60) para 42:

[W]here such rules do fall within the scope of [Union] law, and reference is made to the Court for a preliminary ruling, it must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with the fundamental rights the observance of which the Court ensures and which derive in particular from the European Convention on Human Rights.

In the following paragraph the Court then refers to the derogation rationale as a ‘particular’ expression of this wider scope rationale.

66 It is clear that the European Treaties must, in a jurisdictional sense, first apply to a given situation. Thus in the Grogan Case (Case C-159/90 Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others [1991] ECR I-4685), the Court declared that the defendants could not invoke the European fundamental right to freedom of expression against Irish legislation prohibiting activities assisting abortion. According to the European Court, the defendants had distributed information on abortion clinics not on behalf of the latter and it thus followed that

the link between the activity of the students associations of which Mr Grogan and the other defendants are officers and medical terminations of pregnancies carried out in clinics in another Member State is too tenuous for the prohibition on the distribution of information to be capable of being regarded as a restriction within the meaning of the Treaty (para 24).

The national legislation thus lay outside the scope of European law (see para 31).

67 Cf Case C-309/96 Annibaldi v Sindaco del Comune di Guidonia and Presidente Regione Lazio [1997] ECR I-7493, paras 21 and 24:

Against that background, it is clear, first of all, that there is nothing in the present case to suggest that the Regional Law was intended to implement a provision of [Union] law either in the sphere of agriculture or in that of the environment or culture … Accordingly, as [European] law stands at present, national legislation such as the Regional Law, which establishes a nature and archaeological park in order to protect and enhance the value of the environment and the cultural heritage of the area concerned, applies to a situation which does not fall within the scope of [European] law.

And see also Case 323/08 Rodríguez Mayor v Herencia yacente de Rafael de las Heras Dávila [2009] ECR I-11621, para 59:

However, as is clear from the findings relating to the first two questions, a situation such as that at issue in the dispute in the main proceedings does not fall within the scope of Directive 98/59, or, accordingly, within that of [Union] law.

See also Case C-555/07 Kücükdevici v Swedex [2010] ECR I-365, esp paras 23–25.

68 This appears to be the meaning of the phrase in Cinéthèque (n 62) para 26: Although it is true that it is the duty of this Court to ensure observance of fundamental rights in the field of [Union] law, it has no power to examine the compatibility with the European Convention of national legislation which concerns, as in this case, an area which falls within the jurisdiction of the national legislator.

In favour of this second view, see also AG Sharpston in Case 34/09 Zambrano v ONEM, nyr—discussed below (cf Conclusion).

69 See only Case 299/95 Kremzow [1997] ECR I-2629; Case C-309/96 Annibaldi v Sindaco del Commune di Guidoma [1997] ECR I-7493; as well as more recently Case C-333/09 Noel v SCP Brouard Daude [2009] ECR I-205.

70 CfTryfonidou, A, ‘The Outer Limits of Article 28 EC: Purely Internal Situations and the Development of the Court’s Approach through the Years’ in Barnard, C and Odudu, O (eds), The Outer Limits of European Law (Oxford, Hart Publishing, 2009)Google Scholar ch 9.

71 Kremzow (n 69).

72 Kremzow (n 69) para 16.

73 Kremzow (n 69) para 16.

74 Charter, Preamble 4.

75 For an early analysis of this ‘federal’ question, see Eeckhout, P, ‘The EU Charter of Fundamental Rights and the Federal Question’ (2002) 39 Common Market Law Review 945 CrossRefGoogle Scholar.

76 Art 51(1) Charter.

77 Explanations, p 32.

78 Ibid. The Explanations here quote Case C-292/97 Karlsson [2000] ECR I-2737, para 37 (itself referring to Bostock (n 55) para 16).

79 This view is taken by Barnard, C, ‘The ‘Opt-Out’ for the UK and Poland from the Charter of Fundamental Rights: Triumph of Rhetoric over Reality?’ in Griller, S and Ziller, J (eds), The Lisbon Treaty: EU Constitutionalism Without a Constitutional Treaty? (Wien, Springer, 2008) 256, 263Google Scholar: ‘Even if the Explanations are wider, it is unlikely that they will be used to contradict the express wording of the Charter since the Explanations are merely guidance on the inter pretation of the Charter. The Charter will therefore apply to states only when implementing [Union] law[.]’.

80 In favour of this view, see AG Bot in Case C-108/10 Ivana Scattolon v Ministero dell’Istruzione, dell’Università e della Ricerca, nyr, esp para 120:

Besides the fact that a restriction of the scope of the Charter in relation to the scope of the fundamental rights recognised as general principles of EU law was not, in my view, the intention of the authors of the Charter, a strict interpretation of Article 51(1) of the Charter does not appear desirable. Indeed, it would lead to the creation of two separate systems of protection of fundamental rights within the Union, according to whether they stem from the Charter or from general principles of law. That would weaken the level of protection of those rights, which could be regarded as being contrary to the wording of Article 53 of the Charter, which provides, in particular, that ‘[n]othing in [the] Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law …’.

81 In favour of this view, see Borowsky, M, ‘Artikel 51’ in Meyer, J (ed), Kommentar zur Charta der Grundrechte der Europäischen Union ([Basel], Lichtenhahn, 2006) 531, 539Google Scholar.

82 For a discussion of this point, see Liisberg, JB, ‘Does the EU charter of Fundamental Rights Threaten the Supremacy of Community Law?’ (2001) 38 Common Market Law Review 1171 CrossRefGoogle Scholar. For an excellent discussion of Art 53 of the Charter in light of a—potential—conflict between European law and Spanish fundamental rights, see Pérez, A Torres, ‘Constitutional Dialogue on the European Arrest Warrant: The Spanish Constitutional Court Knocking on Luxembourg’s Door’ (2012) 8 European Constitutional Law Review 105, esp 115 fCrossRefGoogle Scholar.

83 Liisberg, , ‘Does the EU Charter of Fundamental Rights …?’ (n 82) 1198 Google Scholar.

84 On the principle of preemption in the European legal order, see Schütze, European Constitutional Law (n 2) 2012) ch 10.

85 Case C-275/06 Promusicae v Telefónica de España [2008] ECR 271.

86 Promusicae v Telefónica de España (n 85) para 41. Article 17 and Article 47 of the Charter protect, respectively, the right to property and the right of an effective remedy.

87 Promusicae (n 85) para 55.

88 Promusicae (n 85) para 54.

89 Promusicae (n 85) para 63.

90 Promusicae (n 85) paras 65 and 68.

91 Protocol (No 30) on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom.

92 The European Council has already agreed that the Czech Republic will be added to Protocol No 30 when the Treaties are next amended, cf European Council (29–30 October 2009), Presidency Conclusions, Annex I: (Draft) Protocol on the Application of the Charter of Fundamental Rights of the European Union to the Czech Republic, especially Art 1: ‘Protocol No 30 on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom shall apply to the Czech Republic.’

93 This has recently been confirmed by Case C-411/10 NS v Secretary of State for the Home Department, nyr, esp paras 119 f.

94 Protocol No 30, preamble 3.

95 Protocol No 30, preamble 8: ‘Noting the wish of Poland and the United Kingdom to clarify certain aspects of the application of the Charter’. For a sceptical view on the purpose of the Protocol, see Dougan, M, ‘The Treaty of Lisbon 2007: Winning Minds, Not Hearts’ (2008) 45 Common Market Law Review 617, 670Google Scholar: ‘[T]he Protocol’s primary purpose is to serve as an effective political response to a serious failure of public discourse. Indeed, the Protocol emerges as a fantasy solution to a fantasy problem[.]’

96 Protocol No 30, preamble 10: ‘Reaffirming that references in this Protocol to the operation of specific provisions of the Charter are strictly without prejudice to the operation of other provisions of the Charter.’

97 Cf Case C-411/10 NS v Secretary of State for the Home Department (n 93).

98 For an example of just where this might happen, see Leanaerts, K and Smijter, E de, ‘A “Bill of Rights” for the European Union’ (2001) 38 Common Market Law Review 273, 282–84Google Scholar.

99 And yet, this might only be true for Britain as Declaration (No 62) looks like a Polish opt-out from the opt-out:

Poland declares that, having regard to the tradition of social movement of ‘Solidarity’ and its significant contribution to the struggle for social and labour rights, it fully respects social and labour rights, as established by European Union law, and in particular reaffirmed in Title IV of the Charter of Fundamental Rights of the European Union.

100 The following Charter rights use the phrase: Art 9—‘Right to marry and to found a family’; Art 10—‘Freedom of Thought, Conscience, and Religion’; Article 14—‘Right to Education’; Art 16—‘Freedom to conduct a Business’; Art 27—‘Workers’ right to information and consultation within the undertaking’; Art 28—‘Right of collective bargaining and action’; Art 30—‘Protection in the event of unjustified dismissal’; Art 34—‘Social security and social assistance’; Art 35—‘Health Care’; and Art 36—‘Access to services of general economic interest’.

101 Declaration (No 61) by the Republic of Poland on the Charter of Fundamental Rights of the European Union: ‘The charter does not affect in any way the right of Member States to legislate in the sphere of public morality, family law, as well as the protection of human dignity and respect for human physical and moral integrity.’

102 Commission, Memorandum: Accession of the European Communities to the European Convention on the Protection of Human Rights and Fundamental Freedoms, [1979] Bulletin of the European Communities —Supplement 2/79, esp 11 f.

103 Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Opinion 2/94 [1996] ECR 1759.

104 On this point, see Krisch, N, ‘The Open Architecture of European Human Rights Law’, (2008) 71 Modern Law Review 183, 197CrossRefGoogle Scholar:

[F]rom the perspective of the domestic courts national constitutional norms emerge as ultimately superior to European human rights norms and national courts as the final authorities in determining their relationship. This seems to hold more broadly: asked about their relationship to Strasbourg, 21 out of 32 responding European constitutional courts declared themselves not bound by ECtHR rulings.

105 For the German legal order, see the—relatively—recent confirmation by the German Constitutional Court in Görgülü (2 BvR 1481/04 available (English) at

106 Peters, A, ‘The Position of International Law within the European Community Legal Order’ (1997) 40 German Yearbook of International Law 9, 34Google Scholar: ‘transposing international law into [Union] law strengthens international rules by allowing them to partake in the special effects of [Union] law’.

107 On the effect and status of international agreements in the European Union, see Schütze, R, ‘The Morphology of Legislative Power in the European Community: Legal Instruments and the Federal Division of Powers’ (2006) 25 Yearbook of European law 91, esp 131 fCrossRefGoogle Scholar.

108 Art 218(8) TFEU—second indent.

109 Art 218(6)(a)(ii) TFEU.

110 While the procedure resembles that for the conclusion of mixed agreements, it differs from the latter in that it makes the validity of the Union decision legally dependent on its prior ratification by the Member States.

111 Art 218(8) TFEU—second indent.

112 Case C-34/09 Zambrano v ONEM, nyr. On the laconic character of the actual judgment, see Editorial ‘Seven Questions for Seven Paragraphs’ (n 4).

113 Zambrano (n 112) Opinion of AG Sharpston, para 152.

114 Yet the learned Advocate General added an exception to this rule so as to placate the Member States—ever fearful of European human rights entering into their ‘reserved’ areas (Zambrano (n 112) para 168):

Fundamental rights protection under EU law would only be relevant when the circumstances leading to its being invoked fell within an area of exclusive or shared EU competence. The type of competence involved would be of relevance for the purpose of defining the proper scope of protection. In the case of shared competence, the very logic behind the sharing of competence would tend to imply that fundamental rights protection under EU law would be complementary to that provided by national law. This proviso, however, would introduce, through the back door, a similar degree of constitutional uncertainty as existed before. On the rise of ‘competence cocktails’ in the European legal order, see Schütze, R, ‘Lisbon and the Federal Order of Competences: A Prospective Analysis’ (2008) 33 European Law Review 709 Google Scholar.

115 Zambrano (n 112) Opinion of AG Sharpston, para 170.

116 Zambrano (n 112) Opinion of AG Sharpston, para 172.

117 Ibid.

118 Zambrano (n 112) Opinion of AG Sharpston, para 173.

119 Ibid.

120 Zambrano (n 112) Opinion of AG Sharpston, paras 174–75:

For present purposes, the material point in time is the birth of Mr Ruiz Zambrano’s second child, Diego, on 1 September 2003. It is that event (the entry into the equation of a citizen of the Union) which—if Mr Ruiz Zambrano is right—ought to have led the Belgian authorities to accept that he had derivative rights of residence and to treat his claim for unemployment benefit accordingly. At that stage, the Treaty on European Union had remained essentially unchanged since Maastricht. The Court had clearly stated in Opinion 2/94 that the European Community had, at that point, no powers to ratify the European Convention of Human Rights. The Charter was still soft law, with no direct effect or Treaty recognition. The Lisbon Treaty was not even on the horizon. Against that background, I simply do not think that the necessary constitutional evolution in the foundations of the EU, such as would justify saying that fundamental rights under EU law were capable of being relied upon independently as free-standing rights, had yet taken place.

121 Zambrano (n 112) Opinion of AG Sharpston, para 177.

122 In the meantime, an interesting—academic—solution has been suggested by A von Bogdandy and his team ( cfBogdandy, A von et al, ‘Reverse Solange—Protecting the Essence of Fundamental Rights Against EU Member States’ (2012) 49 Common Market Law Review 489 Google Scholar). Starting from Zambrano ‘s insistence on an inviolable substance of citizenship rights, the authors ‘are taking that jurisprudence one step further and propose to basically define this “substance” with reference to the essence of fundamental rights enshrined in Article 2 TEU’. ‘This standard applies to public authority throughout the European legal space. Consequently, a violation by a Member State, even in purely internal situations, can be considered an infringement of the substance of Union citizenship’ (ibid 491). This solution is, however, subsequently limited in light of the authors’ belief that ‘[t]he respective experiences undergone by federal States like the USA or Germany are not a suitable way for Europe to proceed’ (ibid, 496). This limitation takes the form of a ‘reverse’ Solange, and is described as follows (ibid, 491): ‘In order to preserve constitutional pluralism, which is protected by Article 4(2) TEU, we suggest framing a “reverse” Solange doctrine, applied to the Member States from the European level. This can be put briefly as follows; beyond the scope of Article 51(1) CFREU Member States remain autonomous in fundamental right protection as long as it can be presumed that they ensure the essence of fundamental rights enshrined in Article 2 TEU. However, should it come to the extreme cons tellation that a violation is to be seen as systemic, this presumption is rebutted. In such a case, individuals can rely on their status as Union citizens to seek redress before national courts.’

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