Alejandro RUBIO GONZÁLEZ (ES)

The application of the Charter of Fundamental Rights
of the European Union by legal practitioners.
Alejandro Rubio González
Abogado del Estado
Legal Service before the ECJ1.
1.- Introduction.
The purpose of my intervention at this session is to present the topic from the
perspective of a Spanish practitioner. From this point of view, I should highlight the
growing importance of the Charter in the litigation before Spanish Courts. Actually, in
his annual address at the opening ceremony of the judicial year, the President of the
Supreme Court of Spain pointed out to His Majesty the King the growing importance of
EU Law in the enforcement and protection of fundamental rights. Under the title
“Europe, as a stimulus for the recognition of new rights”, he underlined the major role
of Courts of Justice to ensure an adequate protection to fundamental rights.
The importance of this task is steadily increasing -he affirmed- as a result of the
risks and menaces of the scientific and economic progress in the contemporary world. In
particular, Justice Carlos Lesmes highlighted two cases. On the one hand, he referred to
the Google case, a preliminary ruling referred by the Spanish National High Court
regarding the so-called right to be forgotten2. On the other hand, he cited the Aziz
case3, a preliminary ruling from a Commercial Court of Barcelona about the protection
of consumers and mortgage-backed credits under Spanish Law.
These are truly two excellent examples of the importance of the Charter in the
daily Spanish life, at least from a legal point of view. But it is only the tip of the
iceberg. Let me add you some further examples to illustrate the increase in number and
importance of Spanish preliminary rulings related to the Charter.
1
The information and views set out in this document are those of the author and do not necessarily reflect
the official opinion of the Spanish Government.
2
Judgment in Google Spain and Google, C-131/12, EU:C:2014:317.
3
Judgment in Aziz, C-415/11, EU:C:2013:164.
1
Firstly, one of the main areas where Spanish Courts are raising the question is
Labour Law. For instance, in this area we find the following cases: Torralbo Marcos4,
Vital Pérez5, Julián Hernández6 and Nisttahuz Poclava7, the later still pending before
the ECJ.
Secondly, we have noticed a growing importance of the article 47 of the Charter,
i.e. the right to an effective remedy, in what concerns consumers protection. The
clearest example of this tendency is Sánchez Morcillo case8. In this area, we have
pending several cases such as Finanmadrid EFC9 and Sánchez Morcillo II10.
Last but not least, I cannot help calling your attention on the Melloni case11, the
first preliminary ruling referred by the Spanish Constitutional Court. As you may know,
the case was related to the execution of a European arrest warrant issued by the Italian
authorities for the execution of a prison sentence handed down by a judgment in
absentia.
Nevertheless, I intend to use the examples provided by Justice Lesmes in order
to illustrate the application of the Charter in Spain. This approach will allow me to
focus on the three main questions we face in our practice. To begin with, I will address
the importance of the field of application of Charter. Then, I will move onto the role of
article 47 of the Charter in the protection of rights granted to individuals by EU law.
Finally, I will conclude with the potential of the Charter as an interpretation tool to
construe EU Law.
2.- The importance of the field of application of the Charter.
Certainly, the enactment of the Charter of Fundamental Rights as binding law by
the Treaty of Lisbon made the question of fundamental rights gain a momentum.
4
Judgment in Torralbo Marcos, C-265/13, EU:C:2014:187.
Judgment in Vital Pérez, C-416/13, EU:C:2014:2371.
6
Judgment in Julián Hernández and others, C-198/13, EU:C:2014:2055
7
Case C-117/14.
8
Judgment in Sánchez Morcillo, C-169/14, EU:C:2014:2099.
9
Case C-49/14.
10
Case C-539/14.
11
Judgment in Melloni, C-399/11, EU:C:2013:107.
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2
However, in my opinion, it would not be right to see this as a revolution for EU Law.
On the contrary, fundamental rights are not newcomers to Union Law. Long before the
Charter entered into force, under settled case-law, fundamental rights were already
deemed as an integral part of the general principles of the law, the observance of which
was ensured by the Court.
From this point of view, the fact of the Charter gaining legal force as Primary
Law is only the latest step in a long process. This process explains the general
provisions governing the interpretation and application of the Charter included in its
Title VII. However, this is usually forgotten by Spanish practitioners, including judges
and officials.
In particular, it should be remembered that the Charter’s field of application so
far as concerns action of the Member States is defined in Article 51(1) thereof,
according to which the provisions of the Charter are addressed to the Member States
only when they are implementing EU law12. That provision confirms the Court’s settled
case-law, according to which the fundamental rights guaranteed in the legal order of the
European Union are applicable in all situations governed by EU law, but not outside
such situations13.
That definition of the scope of the fundamental rights of the European Union is
borne out by the explanations relating to Article 51 of the Charter, which, in accordance
with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have
to be taken into consideration for the purposes of interpreting the Charter. According to
those explanations, the obligation to respect fundamental rights defined in the context of
the European Union is binding upon the Member States only in respect of matters
covered by EU law14.
12
Judgments in Siragusa, C-206/13, EU:C:2014:126, paragraph 20; Torra1bo Marcos, C-265/13,
EU:C:2014:187, paragraph 28; and Pelckmans Turnhout, C-483/12, EU:C:2014:304, paragraph 17.
13
Judgments in Torra1bo Marcos, C-265/13, EU:C:2014:187, paragraph 29; and Pelckmans Turnhout, C483/12, EU:C:2014:304, paragraph 18.
14
Judgments in Siragusa, C-206/13, EU:C:2014:126, paragraph 22; and Pelckmans Turnhout, C-483/12,
EU:C:2014:304 paragraph 19
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It follows that, where a legal situation does not come within the scope of EU
law, the Court does not have jurisdiction to rule on it and any provisions of the Charter
relied upon cannot, of themselves, form the basis for such jurisdiction15.
Article 6(1) TEU and Article 51(2) of the Charter specify that the provisions of
the Charter are not to extend in any way the competences of the Union as defined in the
Treaties. The charter does not extend the field of application of EU law beyond the
powers of the European Union or establish any new power or task for the European
Union, or modify powers and tasks as defined in the Treaties16. Therefore, the Court has
found that fundamental EU rights could not be applied in relation to national legislation
because the provisions of EU law in the subject area concerned did not impose any
obligation on Member States with regard to the situation at issue in the main
proceedings17.
Despite of this, there is a strong tendency from Spanish courts to refer
preliminary rulings where EU law is not applicable. For instance, that was the case in
Torralbo Marcos18, where the Court ruled that it had no jurisdiction to answer the
questions referred; or in Julián Hernández19, where the Court ruled that the question
could not be examined in the light of the fundamental rights guaranteed by the Charter.
In conclusion, one of the best practices regarding this issue is to find a link with EU
law. That happened in Sánchez Morcillo where the High Court of Castellón changed its
initial approach in order to render the question admissible.
3.- The Right to an effective remedy and the protection of rights granted by
EU law.
In his opinion in Sánchez Morcillo, Advocate General Wahl noticed that the
referring Court did not intend to identify the link of the question with EU law20.
15
Judgment in Pelckmans Turnhout, C-483/12, EU:C:2014:304 paragraph 20.
Judgments in Siragusa, C-206/13, EU:C:2014:126, paragraph 20; and Pelckmans Turnhout, C-483/12,
EU:C:2014:304 paragraph 21.
17
Judgment in Siragusa, C-206/13, EU:C:2014:126, paragraph 26.
18
Judgment in Torralbo Marcos, C-265/13, EU:C:2014:187.
19
Judgment in Julián Hernández and others, C-198/13, EU:C:2014:2055
20
Opinion of Advocate General Wahl in Sánchez Morcillo, C-169/14, EU:C:2014:2110, paragraph 72.
16
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Initially the referring court contemplated making a request for a preliminary ruling
relying only on the provisions of Article 47 of the Charter, without any reference to
Directive 93/13. It was following an observation by one of the parties that the referring
Court decided to reformulate the question so as to introduce Directive 93/13 into the
dispute. Therefore, it seems that Spanish practitioners are aware of the importance of
this issue and are improving their practice in this regard.
Nevertheless, the protection of rights granted by EU law under article 47 of the
Charter raises two additional issues. Firstly, it is essential that any dispute pending
before the national Courts is directly linked to EU law. In other case, the Court of
Justice would not have jurisdiction as it was ruled in Torralbo Marcos21.
The second question is a bit more complex. It refers to the relationship of the
right to an effective remedy and the principle of procedural autonomy. According to
case-law, in the absence of European Union rules governing the matter, it is for the
domestic legal system of each Member State, in accordance with the principle of the
procedural autonomy of the Member States, to designate the courts and tribunals having
jurisdiction and to lay down the detailed procedural rules governing actions for
safeguarding rights which individuals derive from European Union law. Nonetheless,
the Member States are responsible for ensuring that those rights are effectively
protected in each case.
In this respect, the detailed procedural rules governing actions for safeguarding
an individual’s rights under European Union law must be no less favourable than those
governing similar domestic actions (principle of equivalence) and must not render
impossible in practice or excessively difficult the exercise of rights conferred by
European Union law (principle of effectiveness).
Hence the control of the Court of Justice should be limited to these principles.
As Advocate General Jääskinen stated in his opinion in Liivimaa Lihaveis, the
principles of effectiveness and equivalence need to be brought under the umbrella of
21
Judgment in Torralbo Marcos, C-265/13, EU:C:2014:187, paragraphs 40-42.
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Article 47 of the Charter22. So, were the requirements of those principles met, the Court
would not have jurisdiction to examine domestic procedural rules.
4.- The potential of the Charter as an interpretation tool.
Moving back to the link of a dispute with EU law, in my opinion, the highest
potential of the Charter is related to its use as construction tool. According to case‑law,
in the context of a request for a preliminary ruling under Article 267 TFEU, the Court
may interpret Union law only within the limits of the powers conferred upon it23. Thus,
the Court is called upon to interpret, in the light of the Charter, the law of the European
Union within the limits of the powers conferred on it24.
In spite of being a magnificent piece of legal writing, the referring order in
Google case was not very accurate in this regard. If you remember it, the National High
Court asked whether, in the event that the ECJ considered that the connecting factors
referred to in Article 4 of the Directive 95/46 were not present, the Directive must be
applied, in the light of Article 8 of the European Charter of Fundamental Rights, in the
Member State where the centre of gravity of the conflict is located and more effective
protection of the rights of European Union citizens is possible. In fact, the Commission
did not hesitate to underline that this approach was not consistent with the scope of
application of the Charter.
In order to overcome this problem, the Spanish Government proposed the Court
to change the order of the questions. Concerning the Charter issue, we suggested that it
should be used as a construction tool. As a result, the Court should disregard those
interpretations which were not coherent with the Charter. Finally, this was the approach
the Court did follow in its judgment25. Moreover, last week the Court ruled that the
provisions of Directive 95/46, in so far as they govern the processing of personal data
22
Opinion of Advocate General Jääskinen in Liivimaa Lihaveis, C-562/12, EU:C:2014:155, paragraph
47.
23
Judgment in Torralbo Marcos, C-265/13, EU:C:2014:187, paragraph 27.
24
Judgment in Siragusa, C-206/13, EU:C:2014:126, paragraph 20.
25
Judgment in Google Spain and Google, C-131/12, EU:C:2014:317, paragraphs 58 and 68.
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liable to infringe fundamental freedoms, in particular the right to privacy, must
necessarily be interpreted in the light of the fundamental rights set out in the Charter26.
As I told you before, the enactment of the Charter as binding law was not
revolutionary. However, it would not be accurate to deny its importance. The potential
of fundamental rights to interpret EU law would never have been raised without the
Charter. This notion is rooted in the European legal tradition and dates back to Roman
law, but legal practitioners usually forget it. As regards the application of law, one
should always bear in mind that law is only a mean to regulate life. Thus I would like to
conclude pointing out that the Charter reminded us that, as Hermogenian said,
Hominum causa omne ius constitutum sit.27
26
27
Judgment in Ryneš, C-212/13, ECLI:EU:C:2014:2428, paragraph 29.
Digest. 1.5.2.
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