One of the most fundamental questions raised about the legal implications of the Charter seems to be the theory that Article 53, by its reference to national constitutions, could pose a threat to the supremacy of Community law. The principle of supremacy is, in the traditional view, one of the cornerstones of the "new legal order" of the Community.122 The theory has not yet been articulated in any depth in writings by scholars,123 but it pops up as a question mark in a few of the first comments to the Charter.124
As evidenced by the drafting history (see Chapter 2 above) the Legal Services of the Commission and the Council and a few Members of the Convention saw supremacy problems in a reference to "national law" in one of the first drafts of Article 53. To rid themselves of these concerns the draft was first changed to "constitutions of the Member States," and later, at the behest of the Commission, the clause "in their respective fields of application" was inserted. The sensitive issue of supremacy was not discussed at any length among the Members of the Convention, and there is no indication that the issue was generally considered to be a real problem. In any case, it is evident that a cap on the supremacy of Community law in the field of human rights was not what the Convention intended with Article 53. The Article instead served the important political purpose of making clear that national constitutions would not be replaced by the Charter - a message that all Members agreed on, including the European Parliament and the Commission.
The following hypothetical, based on the assumption that the Charter has become binding under EU law, illustrates the theory that Article 53 might pose a threat to supremacy of Community law. Imagine that a Community measure, a regulation for example, is challenged by an individual before a national court as being contrary to a constitutional human rights norm. The national court will first have to assess whether the measure violates the equivalent right of the Charter; if that is a possibility, the case must be referred to the ECJ. It is well-established that only the ECJ can declare Community measures void as incompatible with Community law.125 If the Court in Luxembourg finds that the measure violates the Charter, it will be annulled. Imagine, however, that the Court finds that the measure does not violate the relevant provision of the Charter. Must the Court, as would theoretically be the case today (see Hauer) uphold the measure even if it manifestly runs counter to the national constitutional human rights norm? Or will the Court be allowed or even required to annul the measure on the basis of Article 53 of the Charter? If the Court does not strike the measure down (because, on its reading of Article 53 and other relevant provisions, it can apply only Community law and not national constitutions) the case will continue before the national court. In further proceedings, wouldn't the individual before the national Court be able to rely on Article 53 and argue that the Community legal order acknowledges that nothing should restrict or adversely affect the level of protection afforded by national constitutions? And that it follows that the national courts can declare Community measures inapplicable in their own jurisdictions in so far as the measures contravene national human rights norms providing a higher level of protection than the equivalent Charter rights?
My answer is no. Even based on a purely textual analysis, Article 53 clearly does not empower, let alone compel, the ECJ to apply national constitutional norms over and above Community law, nor does it authorize national courts to declare inapplicable a Community measure that contravenes the relevant Member State constitution. The Article specifically says that "nothing in this Charter" may lead to restrictions of rights in national constitutions. In other words, the Charter does not exclude the possibility that other Community instruments may have such an effect. It might be argued that this is a formalistic reading which would almost empty Article 53 of any legal relevance, since only rarely, if ever, will the Charter itself come into a genuine norm conflict with an equivalent right protected elsewhere. However, based on the drafting history and comparative analysis of similar provisions in other instruments, it might very well be that Article 53 is of extremely limited legal significance. And as the amendment proposed by Jens-Peter Bonde (MEP) (see 2.4. above) illustrates, there is a difference between saying "nothing" in general or "nothing in the treaties/constitution/law of the EU/EC" on the one hand, and saying more narrowly "nothing in this charter" on the other hand. (See also 3.1. above about the draft European Parliament constitution from 1994).
But wouldn't it be absurd to imagine that a simple Commission decision might be able to undermine national rights when a document of constitutional proportions such as the Charter can not do so? No more or less absurd than the current state of law. The objection overlooks the limited nature of the Charter. It is not a constitution itself, only part of a "constitution" akin to a bill of rights. The Charter explicitly says that it is not an instrument of competences, only of rights. It does not address conflicts of norms outside the sphere of the Charter. It might even be argued that the Charter, through Article 51(2), preserves not only the competences of the Union institutions (including the Court) but also, indirectly, the content and hierarchal order of Community measures based on these competences ("The Charter does not ... modify powers ... defined by the Treaties"). Inherent in the powers defined by the Treaties, it can be argued, is the legal force, as defined by the Court, of measures which are the result of the exercise of these powers. I do not think that such an argument is necessary to refute the "supremacy threat" theory, but it could well be made.
What is not a plausible argument, in my opinion, is reliance on the words "in their respective fields of application."126 Instead of extinguishing any doubts about the continued supremacy of Community law, as was the intention of the draftsmen, this proviso is more likely to be a source of doubt. The argument seems to have been that this clause would make it clear that national constitutions could prevail only in the sphere of exclusive national competence (see 2.3. above at note 37). But in Article 51(1) it is already explicitly stipulated that the Charter is addressed to the Member States only when they are implementing Union law. With this in mind, how would the Charter ever be able to restrict or adversely affect rights in national constitutions "within their respective fields of application" understood as the field of exclusive national competence? Furthermore, as the case law shows (see 1.2.(2) above) "scope [or field] of application/competence" is not a very precise term in the context of Community law. In most fields of relevance to the Charter both domestic and Community law will apply to some extent. And there is hardly any area of national law which may not be affected somehow by Community law.127 So, if one were inclined to accept the theory that Article 53 challenges the supremacy of Community law in the field of human rights, the clause just discussed should provide little if any comfort.
Other elements in the text and drafting history may also be a source of confusion and feed fears that the supremacy of Community law is at stake. This is probably partly a result of confusion among the draftsmen, partly a result of the working method, and partly a result of the important political message Article 53 had to convey.
The first such point is the decision to include a reference only to "constitutions" and not to domestic "law" in general (as originally proposed and as in Article 53 ECHR). Couldn't this be interpreted to mean that the Community should give special deference to constitutions, once the Charter has been is incorporated? Why else exclude rights in other parts of domestic law? Second, why are constitutions mentioned on a par with EU law and international agreements, which today have distinctly different value under ECJ case law, if not to indicate some change in their status?128 Third, why does the article mention only international agreements to which "all" Member States, the EU, or the EC are party, if not to confirm that, in general, the instruments referred to in Article 53 serve as the baseline for the Community human rights system? Fourth, when the official explanations to Article 53 say that the Article assures that the ECHR will always be the minimum level of protection afforded under Community law, must this reading not also apply to the other instruments mentioned in Article 53, including constitutions? There is no special distinction between the ECHR and the other instruments referred to in the text of Article 53.
To begin with the last question first, the explanations to Article 53 are indeed somewhat confusing. The fact is, however, that the Charter upholds (or incorporates) the ECHR as a minimum standard for the Community not through Article 53, but through Article 52(3). The incorporation could be said to merely confirm the law under the existing Treaties (see Article 6(2) TEU). The special passage on the ECHR in the explanations to Article 53 is a holdover from previous versions of the text, which had been drafted before the clause in Article 52(3) had seen the light of day. The explanations, which in any case have no formal legal force, should thus be no cause for confusion.129 The special reference to the ECHR in Article 53 and its explanation might be redundant or confusing from a strictly legal point of view, but probably served the overall political purpose of Article 53.
The other elements mentioned may cause some confusion as to the true meaning and purpose of Article 53. They may suggest that Article 53 is a kind of general ratification of the Court's current and future case law. The Court pays attention to common agreements130 and draws inspiration from "the constitutional traditions common to the Member States." On this understanding it was not surprising that some Members of the Convention proposed a reference to "common constitutional traditions" instead of "constitutions," as the Secretariat had considered before the first draft (see notes 27 and 45 above). This idea was not pursued very actively or taken on board, most likely owing to the shared wish to send a clear political message that the Charter would not replace national constitutions. Thus, the reference to "constitutions" was kept as a compromise between Members who wanted the wording of one of the early proposals, i.e. "national law," and those who wanted either no reference at all to national rules or only to what the Court has thus far regarded as relevant, i.e. "the constitutional traditions common to the Member States."
The compromise quality of the text, based on two completely different understandings of the meaning of the provision, blurs - but does not change - the nature of Article 53. The somewhat conflicting intentions of the drafters and the inconsistencies in the text do not support an argument that Article 53 limits the supremacy of Community law. Such an interpretation would involve a major new development in the European legal order, completely outside the mandate of the Convention, and would have to be supported by very firm evidence, not likely to come about from the European Council if and when the Charter is incorporated. The interpretation is simply politically impossible seen from a Community perspective. The whole purpose of strengthened human rights protection at the Community level is precisely to ensure that the supremacy principle is not obstructed by constitutional sensitivities in the Member States (see, e.g., the resolution of the Parliament from March 2000, above in 2.2.).
Based on the drafting history of Article 53 and the special significance of the ECHR in the Community human rights doctrine and in the Charter itself, I would argue that the only natural reading of Article 53 is to see it as an equivalent to Article 53 ECHR. As such, the provision is simply a politically valuable safeguard, found in almost all human rights instruments, which serves to calm any concerns readers may have that the Charter could be used as a pretext to cut down protection enjoyed on the basis of other rules.
At a more general level, it might be counter-argued that the Community legal order is completely different from the legal order devised by the ECHR within the Council of Europe. The differences are obvious: most notably that the Community produces legislation directly binding in the Member States and operates under an elaborate system of judicial control which is first and foremost concerned with the uniform application of Community law in all Member States.131 The European Court of Human Rights, on the other hand, is not primarily concerned with uniformity; it simply ensures that whatever measures the Contracting Parties take do not fall below the minimum level of protection of rights afforded by the ECHR. The European Court of Human Rights has no reason to be concerned if a Contracting Party provides a higher level of protection of a right protected by the ECHR, unless, of course, that protection entails a violation of another right protected by the Convention. The role of the European Court of Justice is more complex. One could say that the European Court of Human Rights operates on a "floor" of protection, on the basis of one single instrument, whereas the European Court Justice has to operate both on a "floor" of protection and under a "ceiling" of dictates from a multitude of different rules which must be uniformly applied throughout the Community to serve their purpose. So even if Article 53 of the Charter is similar to Article 53 ECHR, the argument goes, it might produce altogether different legal effects within the Community context. 132
The supranational nature of the Community no doubt distinguishes it from other public international law contexts. But it is hard to see how this by itself should give a new and different meaning to a provision such as Article 53. Even in a federal system one can imagine a provision like Article 53 in the federal bill of rights, which would not pose a threat to the supremacy of federal law over state law. In fact the Ninth Amendment to the United States Constitution provides such an example, although admittedly with a different background and history. At least the American experience shows that despite many creative readings, the Ninth Amendment has never been invoked before the US Supreme Court to challenge the supremacy of federal law over human rights norms in state constitutions (see 3.5 above). An important difference, if not the most important difference in this respect, is the fact that the principle of supremacy is expressly provided for in the US Constitution. In the EU, the principle is based on case law, and this is probably one of the reasons why the highest courts in some Member States have dared to contest it.133 But this is a socio-political difference, not a legal one. Community law's claim of supremacy is just as firm as the principle expressed in the American Constitution. It is hard to see how Article 53 of the Charter would provide the national courts with any lethal ammunition they do not already have in what has been described as "the cold war" between the ECJ and the national courts.134
The fact that some national courts (only in dicta so far) have reserved a right to assure themselves that Community measures not only comply with Community human rights but also with the national constitutions is, from an EU perspective, already a problem. An EU Charter of Fundamental Rights that does not replace the national constitutions will neither add to nor subtract from this problem. Underlying these court decisions from the Member States is a fundamental understanding in the minds of the judges that their states have retained at least a core of sovereignty that allows the states to break with Community and international law if required by the highest legal authority of that state, the fons et origo of all law,135 their constitution. There is no reason to believe that the Charter or any other measure short of an explicit recognition of supremacy in the Treaties, and consequently also in the national constitutions, would change the minds of these judges. A codification of the supremacy principle is not likely to happen anytime soon; both sides in "the cold war" have reason to be content with the way the system works today, in the twilight zone between public international law and federalism, with occasional rhetorical assertions of state sovereignty by national courts in less than a handful of Member States, but overall compliance.136 So why fix it? The dialogue between the courts and the flexibility shown by national courts and the ECJ, with due regard to national constitutional traditions, make a genuine conflict between constitutional human rights and Community measures more theoretical than real. It has so far proven possible for all the Member State courts to comply in practical terms with the Community ambition of supremacy.
The fear (or wish) by some that Article 53 might jeopardize the supremacy of Community law is perhaps related to a certain tendency by EU lawyers to overemphasize supremacy of Community law as a unique feature of the EU legal system.137 All agreements under public international law claim to reign supreme over national law as a result of the pacta sunt servanda principle (see Articles 26-27 of the Vienna Convention on the Law of Treaties). What is unique in the EU is that this command, on the whole, corresponds to the reality on the ground. The extraordinary systemic feature of the EU is not supremacy (despite the Court's rhetoric about a new legal order) but the enforcement machinery, including the system of preliminary references from national courts to the ECJ and the prosecutorial powers of the Commission. Yet at the end of the day, the Member States, as under general public international law, decide whether to obey or violate Community law as interpreted by the ECJ. A parallel to the ideas about civil disobedience within a national jurisdiction is tempting but not quite accurate, given the absence of hard enforcement measures such as a Union Police or a National Guard in the Community context.
For the sake of comparison to a traditional legal system under public international law, imagine that the UN Security Council adopts a resolution under Chapter VII of the UN Charter ordering a state to gather and produce all information about private bank accounts held in that country by a world-renowned terrorist. Would that state be able to challenge the supremacy of the order (cf. Article 103 of the Charter) with a reference to Article 5(2) ICCPR, on the basis that the state constitution protects absolute privacy in matters related to banking and, as such, provides a higher level of protection than required by Article 17 ICCPR on the right to privacy? Clearly not. No reading of the ICCPR could sustain such an argument.138 From the perspective of international law, the state would either have to change its constitution or break it. Like Article 53, what Article 5(2) prohibits is the use of the Covenant, not other legal norms, to restrict rights protected in other instruments than the Covenant. No modification of the pacta sunt servanda principle was intended or brought about.
In conclusion: a close reading of the text ("nothing in this charter"), its political purpose (to send the signal that the Charter is not intended to replace national constitutions) and perhaps most importantly, its source of inspiration (Article 53 ECHR), all confirm that Article 53 and its reference to constitutions of the Member States leave the principle of supremacy of Community law intact.
The idea that Article 53 might be sufficiently ambiguous (or difficult to understand) to attract attention from litigious EU skeptics and/or national judges protective of Member State sovereignty cannot be entirely rejected. As the case law from the European Court of Human Rights and the UN Human Rights Commission shows, provisions similar to Article 53 may have occasionally led learned judges astray. That arguments based on Article 53 would have sufficient force to cause blood poisoning in the so far relatively painless wound, which the principle of supremacy of Community law has already sustained, seem hard to imagine, however.
Another, somewhat related theory about the legal implications of Article 53 could be to regard the provision as an avenue or source for the "discovery" of new or wider-ranging rights compared to those found in the Charter. Here, the situation would not necessarily involve a conflict between national constitutions and Community measures. The theory could be used in all kinds of relations, including staff cases against Union institutions.139 In cases involving concerns about national constitutions, the theory could imply a discretionary power of the Court to dissolve apparent conflicts by using Article 53 to raise the level of protection under the Charter. The Court would not directly apply rights found in other instruments, but would to a certain extent incorporate them under the wings of the EU legal order and thereby extend them to the entire field of Community law. A less imaginative version of this theory could be to see Article 53 as providing support for the Court to continue and perhaps gradually expand its current willingness to be inspired, not only by the ECHR, but also by constitutions of the Member States and international conventions.
This suggested theory does not seem to have been articulated yet in relation to Article 53 of the Charter, at least not in any detail,140 but could be inspired by some of the writings and dissenting opinions about Article 53 ECHR (most notably Judge de Meyer's article) and the theories about the Ninth Amendment of the US Constitution (see 3.2. and 3.4. above). The version of the theory, which more modestly implies that the Court should feel free to continue its relatively dynamic and conciliatory interpretation and application of Community human rights, would probably be supported by those Members of the Convention who wanted Article 53 to reflect the current jurisprudence by referring to "constitutional traditions common to the Member States" rather than "constitutions of Member States" (see discussion in 4.1. above).
The theory ties into the longstanding debate over whether the Court should base its jurisprudence on the highest level of protection found in any Member State, even if only one Member State affords that level of protection (see 1.2. above). This maximalist or "race to the top" approach have a few proponents among scholars,141 but has not been accepted by the Court. Other scholars have convincingly shown that the seemingly commendable idea of taking the Community to the highest level builds on a somewhat deceptive dichotomy between low and high levels of protection and would not, in its logical conclusion, be conducive to the idea of enhancing confidence in the Union by protecting human rights.
First, some human rights, protected by different Member States are in direct conflict (e.g., the right to abortion v. the right to life). The maximalist approach does not help decide which of the two rights should prevail in such special cases. Second, the theory would imply that single Member States could subject the entire Community to unilateral constitutional dictates by protecting rights to a further extent than elsewhere. And third, protection of human rights almost always involves some measure of balancing between individual rights and communal interests. As such, the idea of the highest level of protection can be deceptive because the variations among the Member States will often be the result of legitimately different balancing acts between communal "rights" (or, more properly, values and interests) and individual rights. That is especially so in relation to the right to property, where the level of protection differs among the Member States and the counter-interests of a communal nature are obvious. If the Court accepted the maximalist theory and pieced together the "best of all worlds," it would lead to a set of Community human rights more generous to the individual than those found in any Member State and thus potentially upset the social systems of Member States and jeopardize the legitimacy of the EU.142
The logic of this critique is strong, but, if taken to its extreme, implies a certain measure of cultural relativism at the expense of the idea that some rights should prevail over communal interests. It can and must be maintained, especially in the context of the relatively homogenous Community, that there is a core set of human rights and a minimum level of protection below which neither the Community nor Member States can fall. The real question is who should articulate that level of protection and decide the conflicts that may occur between inconsistent individual rights and between individual rights and communal values. In the context of the EU, much can be said in favor of leaving that task to the European Court of Justice as the articulator of shared constitutional values.143
It might be argued that there is a need for heightened and more active human rights scrutiny of EU measures by the Court as part of the broadening of Community powers, the constitutionalization process and the efforts to bring the Union closer to the citizens of Europe. Individual Member States will be able to point to "gaps" in the Charter as compared to their own bills of rights. An example could be the concept of Handlungsfreiheit (freedom to act), protected by Article 2(1) of the German Constitution, from which it follows that any restriction of human activity may, in principle, be subject to a judicial review of proportionality.144 This right does not find an equivalent in the Charter, but it might be argued (and some would perhaps invoke Article 53) that the Court should give an extensive interpretation to similar provisions in the Charter, e.g., the right to liberty and security (Article 6), and by such an approach include an equivalent to the German Handlungsfreiheit.
But with a still broader jurisdiction thanks to the expanding regulation and legislative powers of the Community, combined with the sensitive topic of human rights, an encouragement to engage in what might be perceived as unrestrained judicial activism could have the opposite effect of what was intended with heightened Community human rights protection. Such considerations should temper ideas that Article 53 or other parts of the Charter could serve as a "fountain of rights."
It is true, of course, that the inherent nature of human rights requires dynamic interpretations.145 Human rights instruments must be regarded as living instruments in order for the courts to keep apace with changing sensibilities, political developments and technological innovation. This understanding should also apply to the Charter. As Judge De Meyer rightly points out (see 3.2.3. above) the European Court of Human Rights has pronounced several "inherent rights" based on then-expansive interpretations of provisions which are today taken for granted. Keeping in mind the narrow scope of this paper, the question is whether such an approach is supported or required in any way by Article 53 (compare the Ninth Amendment theories discussed under 3.4. above).
In my understanding it is not. The wording, as it stands, does not purport to be an overall indication of how the human rights jurisprudence of the Court should evolve. Had this been the intention, much clearer words could and should have been used. And even if some of the anomalies in the text could lead to some doubt (inter alia, the reference only to constitutions and not to national law in general, see 4.1. above) there is no indication in the drafting history of such an intent behind Article 53.146 The early suggestion by the Convention Secretariat to refer to "constitutional traditions common to the Member States" never materialized, even if a few Convention Members re-launched the idea at a late stage in the drafting (see 2.4 above).
By comparison, it is noticeable that the Ninth Amendment of the US Constitution, the wording of which ("rights retained") would more readily lend itself to judicial activism and an almost natural law approach to human rights, has generally not been cited by the US Supreme Court in its frequently activist approach to civil rights. More importantly, the ECHR case law demonstrates that the European Court of Human Rights has rebuffed all invitations to use Article 53 in this manner.
In conclusion, it would be neither necessary nor sufficient for the Court to rely on Article 53 to continue or develop its current dynamic human rights practice. All that can be said in favor of such a theory is that Article 53 is one of many expressions of the idea that human rights is a broad and developing concept. The Article does not lead to any positive conclusions as to how the rights provisions of the Charter should be interpreted, only that they should not be interpreted to restrict rights flowing from other instruments, some of which are applicable by the Court, some of which are not. Should the Court, contrary to what I expect, feel it necessary to find a textual justification for a continued dynamic human rights jurisprudence, there are other arguments at its disposal. One is consideration five of the preamble, which states that the Charter reaffirms the rights as they result, in particular, from the constitutional traditions and international agreements. Another could be the open-ended references to the rule of law, rules of law and the law in the Charter as well as in the regulatory framework for the activities of the Court, most significantly Article 230(2) (ex Article 173; "and any rule of law") and Article 220 (ex Article 164; "the law" juxtaposed to "the Treaties") of the TEC.
Could it be argued, conversely, that Article 53 of the Charter freezes the current level of human rights protection, and that any developments in the rights protection from now on must be based on Community law alone, as provided by the Community legislature and the Treaties, no longer with any external instruments as sources of inspiration?
This theory is not even hinted at in the first brief comments to the Charter, and it is not very convincing either, at least with the traditional jurisprudence of the Court in mind. There are, however, certain elements in the language, the drafting history and the ideas expressed in the case law under Article 53 ECHR which might support such an interpretation.
One could imagine the theory presented in this way:
It follows from a textual analysis that Article 53 presupposes that all rights going beyond the Charter, either in scope or in character, can enjoy protection only "in their respective fields of application," i.e. outside of the Community context. This must mean that reasoning by negative implication should be the Court's guiding principle. Or in the words of an old maxim, expressio unius est exclusio alterius: what is expressed excludes what is not. As noted in separate opinions in some of the first cases under the ECHR, an Article 53-like provision should be construed and applied as a limiting interpretative principle excluding the teleological and dynamic approach (see 3.2.3. above). This logic is even stronger with the wording of Article 53 of the Charter, which, by referring to "respective fields of application," draws a clear distinction between the rights secured by the Charter and rights which find their basis and are applied elsewhere.147 An interpretation of Article 53 which limits it to stating the self-evident fact that the Member States can apply their constitutions and international agreements within their exclusive sphere of competence reduces it to redundancy. Article 51(1) already provides that the Charter is not addressed to Member States outside the Community context. Every part of the Charter must be given full meaning, and to use Article 53 as a limiting interpretative principle is the only logical way to give affirmative meaning to this provision. The classical arguments about legal certainty, which Judges Verdross and Zekia invoked in the Golder case in 1975, apply with even greater strength in the Community context. Unlike the European Court of Human Rights, the Court must weigh several counter-considerations to ensure that the law of primary concern to the Community, i.e. the body of economic, social and environmental rules, is applied uniformly throughout the Community (see arguments about differences between the EU and the ECHR legal orders above under 4.1.)
The drafting history, the argument could go on, shows that several Member States strongly objected to any reference to the case law of the European Court of Human Rights in Article 53 or Article 52(3) precisely because they worried it would lead to a juridification of what is essentially a political question: the creation of new rights or higher levels of protection. And, at the end of the day, no reference to the case law from Strasbourg was included in the provisions. The reference in the preamble has limited relevance and is arguably only part of a descriptive account of how the current level of Community protection came about. The reference to case law in the official explanations is even less relevant and has no legal value, primarily because the explanations were never adopted by the Member States or the institutions. As long as the Community is not a Contracting Party to the ECHR, the EU/EC is not bound by judgments of the Court in Strasbourg. Article 6(2) TEU does not refer to the case law from Strasbourg either, only to the ECHR, which should be interpreted in accordance with the present level of protection (see Article 52(3) of the Charter).
Finally, the argument would conclude, Article 53 furnishes no basis for the Court to further expand the rights protection with reference to national constitutions. The aim of the Charter (which it advances by also stipulating modern rights, e.g. bioethical rights) is to provide the Court with a positive list of current rights that it must apply, but not broaden. The Charter should be kept alive by the Court but should not take on a life of its own. If the Union wants to provide more protection it can do so, as stated in the last sentence of Article 52(3). The means to do so would either be legislation or amendments to the Charter, if the circumstances so warrant - but not through judicial fiat.
This line of reasoning reflects a range of classical arguments of sovereignty, not least the interpretative principle, in dubio mitius, under public international law.148 International adjudicators should not lightly assume that sovereign states intend to impose upon themselves a more onerous, rather than a less burdensome, obligation. Here the argument is presented not to protect the sovereignty of Member States, but, more innovatively, to protect the perceived "sovereignty" of the Community itself.149
The theory that Article 53 should imply a limiting interpretative principle of general applicability is flawed. The drafting history clearly shows that no such purpose was intended, and the textual elements relied on, even if somewhat confusing, do not logically lead to such a conclusion (see the analysis above under 4.1. and 4.2.). The point about the omission of a reference to case law has some merit.150 It would have served the overriding concern about legal certainty better if such a reference had been included in a proper clause of the Charter, which would have been Article 52(3) and not Article 53. The absence of a reference to case law in Article 52(3) just adds another argument to the already strong case that inconsistencies between the EU and ECHR systems of human rights protection can be completely eliminated only if the EC/EU accedes to the ECHR.
More importantly, this imagined reading of Article 53 runs counter to the essential nature of the Charter for two fundamental reasons. First, the Charter will be part of EU law and, as such, subject to the normal teleological, dynamic and effectiveness-oriented rules of interpretation that the Court applies to EU law. The Charter is not a treaty, in the ordinary sense; it is a quasi-constitutional instrument adopted by a quasi-federal polity to confirm and strengthen restrictions on itself - real restrictions, not quasi-restrictions. Its very existence confirms that the traditional, mainly economic objectives of the EC Treaty should not necessarily trump other considerations. The idea that defenders of Community measures should be able to rely on debatable interpretative principles from public international law (long ago discarded by the Court with respect to Member State sovereignty pleas in the EU context) to protect the "sovereignty" of the Community against itself, is ludicrous. Second, the arguments about the inherent nature of bills of rights as living instruments (see 2.4. and 4.2. above) are almost articles of faith among human rights adjudicators.151 The power to draw inspiration from extra-communitarian sources and to develop the human rights doctrine in accordance with present day conditions is, arguably, both a political and legal necessity in the Community with its eternal concerns about conflicts with national constitutions. Even the experience with the much more traditional ECHR proves the point, as does the experience of federal states such as Germany and the United States. The traditional arguments raised by some governments and judges in the first cases under the ECHR were rejected exactly on this ground.152
Naturally, these observations do not give any answer to the important question of how far the Court may legitimately engage in dynamic or activist approaches to the Charter. That question falls outside the confines of this paper. The point here is that a reading of Article 53 as a limiting interpretative principle is misguided. But on the general issue it is worth noting, before concluding, that fears have been raised, based not on Article 53 but on the open and inclusive working method of the Convention, that the Charter might lead to a more constrained human rights jurisprudence in the EU.153 The argument is that the Convention left behind it a trail of carefully drafted, publicly debated and readily accessible proposals for certain rights or higher levels of protection that were never adopted, for one reason or the other. One example is minority rights,154 as to which elaborate proposals were put forward by Members of the Convention on the basis of input from NGOs.155 One of the applicant countries urged the Convention to include specific minority rights in the Charter.156
While I agree that it would be unfortunate if negative legislative history were to constrain the Court excessively in its application of the Charter, let me add three short comments to this discussion. First, the alternative to open drafting of and deliberations on constitutional instruments is not attractive. It is an embarrassment to the lofty ideals of the EU that drafting documents from the IGCs throughout the history of the Community are not publicly available. Second, even the travaux préparatoires from traditional diplomatic conferences, at least in the field of human rights, are generally accessible and are studied carefully, among other things to a get a sense of who wanted what and objected to what. The idea of accountability should also be embraced at the highest level in the EU decision-making process. Third, both the European Court of Justice, and perhaps more tellingly the European Court of Human Rights (which, like the general public, has full access to the ECHR travaux préparatoires) have generally not felt restricted by the legislative history, even when faced with conclusive evidence that the drafters intended to exclude a certain reading.157 Accessible negative legislative history does not by itself warrant the conclusion that human rights protection in the EU would have been better served without the Charter.
The dynamic approach to human rights interpretation of the European Court of Human Rights has never been opposed by the European Court of Justice. In the spirit of the ECHR system, and in order to avoid clashes between EU law and national human rights, there is reason to hope that the European Court of Justice will regard the Charter as "a living instrument." Article 53 does not provide an argument against such a line.
Finally, Article 53 might be envisioned as a tool to solve cases involving collision of human rights norms of different legal origins. The reading would imply that if a Member State is obliged by one of the instruments mentioned in the provision to protect an unenumerated right, e.g. a right for minorities not to be exposed to hate speech, then the Court should not challenge that obligation on the basis of a rights provision in the Charter, such as Article 11 on freedom of expression. Depending on its delimitation, this theory could be seen as a special subset of the "threat to supremacy" and "incorporativst" theories discussed above under 4.1. and 4.2. Many of the arguments for and against these theories would apply and will not be repeated here. The theory has not yet surfaced in relation to Article 53 of the Charter, but is, judging from the case law under Article 53 ECHR, such a common (mis)understanding of this type of provision that the idea seems destined to appear at some point.
In short, the theory could claim that, at the international level, Article 53 is a special rule of interpretation, which supplements and modifies the general customary rules in the law of treaties relating to conflicts between international obligations (see Articles 28 and 30 of the Vienna Convention on the Law of Treaties). As such, the provision commands that special deference to other human rights instruments should be shown by international adjudicators in the field of human rights. An example could be the Jersild scenario from the European Court of Human Rights which involved the apparent conflict between freedom of expression (Article 10 ECHR) and freedom from racist verbal persecution (Article 4 CERD) (see 3.2.2. above). Applied to the Community context, it might be argued that Article 53 of the Charter would require the Court to decline a request for a preliminary ruling on the compatibility with the Charter and send the case back for final adjudication and balancing of the conflicting rights by the national court.158
As to special rights stemming from national constitutions, the theory would imply the same result, namely that Member State courts, rather than the European Court of Justice, should solve such difficult cases involving conflicts with Charter rights. The view could be described as an extended margin of appreciation theory,159 or, in words closer to the Community terminology, as a theory of judicial subsidiarity.160An example of its imagined application with respect to domestic law could be the Grogan and Open Door scenarios regarding abortion and freedom of expression, where Article 53 would be understood as a command to the European Court of Justice not to decide on the conflict between freedom of expression and the right to life, including the unborn life, but instead to leave this balancing to "the better placed" Irish courts. Such an approach would not necessarily involve a general challenge to the supremacy principle or an incorporation into Community law of the Irish version of the right to life. It could be limited to challenge only the "uniformity" principle, in the sense that all other Member States and the Community itself would still have to comply with Community law, including the Charter, subject to the interpretation of the Court.
In my opinion, this theory, plausible as it may seem from a first reading of Article 53, builds on a fundamental misunderstanding of analogous provisions in human rights law. And, as is evident from the case law of the European Court of Human Rights, this understanding of Article 53 has never been accepted. After the Open Door case was decided in 1992, Article 53 has not been relied on again in this respect by Judges of the Court in dissenting opinions, let alone majority opinions, despite invocations of the theory by governments in at least two similar cases (Jersild from 1994 and Gustafsson from 1996). A comparison to the ECHR is especially persuasive in this regard given the fact that the limited and "monofocal" nature of the ECHR control mechanism could much more easily have accepted such an interpretation of Article 53 to support the idea of a margin of appreciation.161
To explain why this understanding is not correct, first consider a technical point of general relevance to the interpretation of Article 53. Does Article 53 relate at all to rights of a completely different nature than those protected by the Charter? Its title, "level of protection," suggests that Article 53 is only concerned with how similar rights are interpreted (or, to be precise, how they should not be interpreted - with reference to a lower level of protection in the Charter). In many instances it will be difficult to draw a bright line between different rights and better rights (is access to a court a different right than the general right to a fair trial, or just implying a more extensive protection of the same right?). In some cases, however, such as the Jersild case, one right is definitely different from the rights protected in the applicable instrument. And on close reading, Article 53 is not concerned with such a conflict.
Leaving this slightly legalistic point behind, we turn to the fundamental issue. Conflicts between different human rights, whether within the same convention or between rights in two different instruments, are a recurring theme in human rights law.162 As only few human rights are absolute, rarely will genuine norm conflicts occur that judges cannot interpret their way out of (as we saw in the Jersild case and in the even more delicate Open Door case). But when and if genuine norm conflicts occur, there are no mechanical devices or solutions available.163 These are hard cases, but they do not necessarily have to make bad law. And they would make bad law if international courts that are supposed to apply a given instrument and protect the rights enshrined therein simply relinquished their jurisdiction and deferred completely to national courts. This is especially the case in regard to conflicts with other international conventions given the wide-spread occurrence of Article 53-like provisions in human rights instruments and the potential circularity involved (see note 158 above).
As in so many other areas of the law, what is required is balancing. Depending on the sensibilities of the given legal system and its jurisprudence, the international court might very well be under an obligation to show some material deference (not jurisdictional deference) to national courts.164 Such ideas of margin of appreciation or judicial subsidiarity could have been used by a Court which wanted to let Ireland off the hook in the Grogan case not on a technical point as actually happened, but on the substance, even if it might have entailed less than perfect uniformity in the application of Community law.165 Such a method of softening the culture clash in sensitive cases does not, however, follow from Article 53. The extent to which the Court can allow restrictions and limitations on the rights protected by the Charter is regulated in Article 52(1) of the Charter, not Article 53.166 Conflicting human rights norms outside of the Charter might be a good argument for the Court to lower its scrutiny, but the Court cannot escape its obligation to apply and enforce the Charter. And it has no jurisdiction to apply or authoritatively interpret instruments outside the sphere of Community law (see discussion under 4.1. and 4.2.). Both national constitutions and international conventions, to which the Member States are signatories, can serve as a source of inspiration - but they do not bind the Court (see 1.2. above).
In conclusion, while innovative approaches might be necessary to solve difficult cases similar to Grogan, Open Door, and Jersild, without alienating national courts, Article 53 does not, in my opinion, provide any solutions or guidance.
122 See Case 6/64, Costa v. ENEL,  ECR 585 (the groundbreaking declaration of the general principle), and Case 11/70 Internationale Handelsgesellschaft,  ECR 1125 (confirming that the principle also applies to constitutional human rights norms of the Member States). See also the Levy case, referred to below in note 125.
123 The formulation of the theory in this paper is primarily based on exchanges with Professor Joseph Weiler, who suspects that, if the Charter is incorporated into EU law, Article 53 could lead to new challenges to the supremacy of Community law before national courts. See also note 75 above, quoting Professor Weiler's written comments on Article 27 of the European Parliament Declaration of Human Rights from 1989.
124 See comments by French government Alternate Member of the Convention, J. Dutheil de la Rochère, "La charte des droits fondamentaux de l'Union européenne," (2000), 443 Marché Commun et de l'Union européenne 674, at pp. 678-79 ("On notera incidement que l'article 53 de la Charte fait du respect de Constitutions des États membres un standard minimum, ce qui peut à l'avenir être un élément dans le débat sur l'articulation entre droit communautaire/droit de l'Union et droit consitutionnel national"), and O. de Schutter, intervention at a seminar in Strasbourg, June, 2000, recorded in 12 Révue Universelle Des Droits de l'Homme, September 2000, p. 2-68, at p. 49 ("La primauté du droit communautaire n'est-elle pas menacée par une telle reference [aux constitutions des États membres]? A l'inverse, le renvoi aux traditions constitutionelles communes ne serait-il pas de nature a donner une référence plus souple?") (emphasis added). Member of the Convention Andrew Duff (MEP) also seems to be aware of the possible challenge but finds that Article 53, as he euphemistically states it, does not dilute "the important general principle of European Community law concerning uniformity of application," see Duff, "Towards a European Federal Society," in K. Feus (Ed.), note 14 above, pp. 13-27, at p. 21.
125 See Case 314/85, Foto Frost,  ECR 1129. An argument has been made that national courts would be able to declare a Community measure which contravenes the ECHR for inapplicable, if the Member State (as is the case for all Member States except France) became a Contracting Party to the ECHR before they became a Member of the EU/EC/EEC, see Article 30 of the Vienna Convention of the Law of Treaties and Case C-158/91, Levy,  ECR I-4287 (regarding an ILO convention). See L. Besselink, "Entrapped by the Maximum Standard: On Fundamental Rights, Pluralism and Subsidiarity in the European Union," 35 CML Rev. 629-680 (1998), at p. 659-62. The argument is plausible, but not compelling, since the ECHR (as opposed to any ILO conventions) can be said to have been incorporated into EU law by Article 6(2). It would in all cases not apply if the Charter becomes binding, and, furthermore, the argument only relates to conventions, not constitutions.
126 Compare answer by Jean-Paul Jacqué, Head of the Convention Secretariat, to Oliver de Schutter at the Strasbourg seminar referred to at note 124 above. ("Ceci [la référence au champ d'application respectif] veut dire que la Charte ne porte pas atteinte aux disposition nationals lorsqu'il s'agit de compétences appertenant aux États membres, mais que bien entendu la primauté du droit communautaire reste dans le cadre des compétences communautaires. Il n'est donc pas question d'instituer une hiérarchie dans le champ du droit communautaire.").
127 As Judge Koen Lenaerts of the Court of First Instance famously remarked more than ten years ago: "There simply is no nucleus of sovereignty that the Member States can invoke, as such, against the Community," K. Lenaerts, "Constitutionalism and the Many Faces of Federalism," 38 American Journal of Comparative Law 205 (1990), at p. 220.
128 The reference to "Union law" in Article 53 is somewhat puzzling, also given its late and silent reinsertion during the drafting process, see 2.5 above. If the Charter is incorporated into EU law, it will itself be part of EU law. Such a hall-of-mirrors effect could lead to all kinds of theories, which could support either view on the supremacy question. It does not seem necessary or valuable to refer to EU law in Article 53, as the last sentence of Article 52(3) makes clear that Union law shall not be prevented from providing more extensive protection than the ECHR and therefore also the Charter.
129 One might indeed just as well turn the argument around, and say that the explanations only mention the ECHR as a minimum standard, not the other instruments - and thus that the other instruments referred to, including the constitutions, do not serve as minimum standards in the Community legal order.
130 See, e.g., the ERT case, note 13 above, para. 41: "The Court draws inspiration [...] and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories." Note that not all Member States have to be Contracting Parties to a treaty for the Court to be able to draw inspiration from it. O. de Schutter, note 124 above, has criticized this "deviation" from the case law in Article 53, evidently on the understanding that the purpose of Article 53 was somehow to ratify the jurisprudence of the Court. It is, indeed, unfortunate that Article 53 uses the expression "all" Member States, but not because it doesn't reflect the case law referred to. As I intend to show, Article 53 has nothing to do with conflicts between Community law in general and domestic law, and as such should rather strive to imitate Article 53 ECHR than the case law relating to a different matter.
131 See the clear message from the Court in the Hauer case, note 9 above, in which the Court confirmed that the question of human rights compatibility can be judged only 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 Common Market and the jeopardizing of the cohesion of the Community," para. 14.
132 Related to this argument, see for a peculiar reading of Article 53 ECHR, Besselink, note 125 above, at pp. 657-59 and 664-66. The author states quite unconditionally (apparently oblivious to the Open Door case) that the ECHR "assumes that national law in the sphere of fundamental rights has priority over the international regime." On this basis he concludes that the EU cannot accede to the ECHR unless it can be assured that Article 53 ECHR would not apply to the Community, p. 666. The argument that accession to the ECHR could cause supremacy problems because of Article 53 ECHR has been discussed earlier, see J.P. Jacqué, note 17 above. Jacqué dismisses the argument, not with a limiting interpretation of Article 53, but by reference to the fact that the provision would only apply to the Community as a Contracting Party to the ECHR, not in relations between the Community and the Member States, pp. 904-05. The way the argument is presented is an early indication that one of the main draftsmen behind the Charter saw some truth in arguments that an Article 53-like provision, applied within the Community legal order, might pose problems in relation to the supremacy of Community law.
133 See B. de Witte, note 11 above, pp. 177-213, at p. 209, who notes that, curiously, the supremacy clause in federal systems such as the American and the German plays a much less prominent role in the judicial practice of those states than the comparable doctrine of EC law.
134 See J.H.H. Weiler, note 7 above, pp. 219-220, who doubts, however, if the MAD (Mutually Assured Destruction) logic is healthy for the dialogue between the EU and national court systems. Compare assessment of Craig and de Búrca, quoted in note 136 below.
135 Expression used by B. de Witte, note 11 above, p. 210.
136 See Craig and de Búrca, note 12 above, at p. 292 ("This continuing tension is at the heart of the constitutional relationship between Community law and national law, but it does not necessarily point to a dangerous impasse or a crisis for the Community legal system.")
137 See on this question, J.H.H. Weiler, note 7 above, pp. 295-96. For an interesting theory about the root-causes of what could perhaps be termed "the public-international-law-alienation of the Community legal order," see Ole Spiermann, "The Other Side of the Story: An Unpopular Essay on the Making of the European Community Legal Order," 10 EJIL (1999), pp. 763-789.
138 The force of this parallel to the ICCPR is somewhat weakened by the fact that Article 46 ICCPR explicitly provides that nothing in the Covenant shall be interpreted as impairing the provisions of the UN Charter. It is my contention, however, that even without such a clause an argument based on Article 5(2) as described would clearly fail. And, read in its full context, Article 46 ICCPR is more akin to Article 51(2) of the Charter than a repetition of the supremacy principle of international law, including Article 103 of the UN Charter.
139 See for an example of a staff case relating to human rights, CFI Case T-10/93, A v. Commission,  ECR II-179, paras. 48-51. The case concerned a requirement by the Commission for a job applicant to undergo an HIV test; the Court of First Instance considered Article 8 ECHR, but did not find that the practice of the Commission involved a violation of fundamental rights.
140 A. von Bogdandy, note 3 above, mentions that Articles 52(3) and 53 (then draft Articles 51(3) and 52, respectively) might support (in his opinion, unconvincing) arguments in favor of a maximalist theory, see note 141 below. The author believes that the advent of the Charter will trigger demands for heightened human rights scrutiny by the Court, p. 1328. K. Lenaerts, note 4 above, finds that "the Charter contains a potential for growth of the material scope of protection of fundamental rights beyond the sources of those rights mentioned in Article 6(2) TEU," but relates this to Article 52(3), p. 600. His only comment on Article 53, short and in a footnote, is somewhat imprecise and seems to relate to the part of Article 52(3) which says that Union law shall not be prevented from providing more extensive protection than the ECHR ("Article 53 makes it clear that the existing law should in any case be seen as a minimum level of protection"), p. 600, footnote 10.
141 Besselink, note 125 above, seems to be the most cited adherent to the maximalist theory in recent writings, see, e.g., von Bogdandy, note 3 above, p. 1324, and de Witte, note 7 above, p. 881, neither of whom agrees with the theory.
142 See the extensive argument against the maximalist approach developed by J.H.H. Weiler, note 7 above, p. 107-16.
143 See J.H.H. Weiler, note 7 above, p. 116-119.
144 See decisions of the Federal Constitutional Court in the Elfes Case,  BVerfGE 6, 32, and the so-called Riding in the Forrest Case,  BverfGE 80, 137. The example is based on highly valued input from Lothar Ehring.
145 With regard to the ECHR, see D.J. Harris et al., note 77 above, pp. 6-9, and text at note 91 above. The principle has long been expressed by the European Court of Human Rights in the catchy phrase that "the [ECHR] is a living instrument which must be interpreted in the light of present-day conditions." It follows that the ECHR "cannot be interpreted solely in accordance with the intentions of [the] authors as expressed more than forty years ago," see, i.a., Loizidou v. Turkey (1995), A-310, para. 71. It also follows that "it is legitimate when deciding whether a certain measure is acceptable under one of the [ECHR] provisions to take account of the standards prevailing amongst the Member States of the Council of Europe," see, i.a., T v. UK, judgment of December 16, 1999, not yet reported but available at the web site of the European Court of Human Rights, see note 83 above.
146 In addition it could be argued, but not convincingly, that the conclusion is supported by Article 51(2) of the Charter, which says that the Charter entails no new powers for the Community, arguably also including the Court. The problem with this argument, for one, is that there is no new power involved in continuing a dynamic style of interpretation.
147 Again, Article 53's somewhat circular reference to EU law and agreements to which the EU/EC are Contracting Parties, all legal sources of Community law in the strict sense, could work for or against either side in the debate, see note 128 above.
148 See, e.g., the WTO Appellate Body Report in the Hormones Case, where the Appellate Body relied on this principle and called it widely accepted under the following definition: "The principle of in dubio mitius applies in interpreting treaties, in deference to the sovereignty of states. If the meaning of a term is ambiguous, that meaning is to be preferred which is less onerous to the party assuming an obligation, or which interferes less with the territorial and personal supremacy of a party, or involves less general restrictions upon the parties," see EC Measures Concerning Meat And Meat Products, (1998), Canada and US v. EC, AB-1997-4, WT/DS26/AB/R, para. 165. See above at note 89 for an illustration of how the European Court of Human Rights has rejected in dubio mitius arguments (the Golder case), and see Spiermann, note 137 above, at p. 188, footnote 80, for criticism of the WTO Appellate Body decision on this point.
149 The argument would, in the hypothesis constructed, be advanced by a party to preserve a contested Community measure against a human rights challenge before the Court. This party would typically be the Commission, but could also be the Parliament, the Council or a Member State. In real life it seems hard to imagine that the Commission or the Parliament would try to rely on the imagined arguments. Both institutions embrace the human rights trend and are in favor of accession to the ECHR. But one could perhaps imagine a Member State with integrationist inclinations (or vested interests) argue along the classical sovereignty line "on behalf of" the Community.
150 See P. Wachsman, note 124 above, pp. 16-17, who, at the Strasbourg seminar before the Convention had concluded its work, expressed concern about the omission of a reference to case law in the latest draft at the time.
151 In the words of Judge Melchior Wathelet, note 23 above, "On se rappellera, à cet égard, que les droit de l'homme ont toujours été consignés dans des textes d'abord maladroits ou imparfaits, et que cette Charte, avec toutes ses prétendues imperfections, sera au moins un acte de transition, un pas de plus qui permet d'avancer vers une protection sans cesse meilleure de droits de l'homme," p. 585.
152 See also Document 4234/00, CONTRIB 108, of May 2, 2000, submission by the General Council of the Bar of England and Wales to the Convention, in which it is argued that "clearly, the Charter would have to be construed as a living instrument as is the ECHR," p. 17.
153 Argument developed by Professor Joseph Weiler in a lecture on the Charter given at Harvard Law School on November 14, 2000. Also reflected by X. Yataganas, "The Treaty of Nice - The Sharing of Power and the Institutional Balance in the European Union," Harvard Jean Monnet Working Paper 1/2001, p. 50. See also above at note 70.
154 Minority rights pose the special problem of being group or collective rights rather than traditional individual rights. The problem is often only skin-deep, though, as most minority rights, even the right to self-determination, can to a certain extent be formulated as individual rights, e.g., by guaranteeing a right for the minority individual to receive education in his or her own language or the right to take part in local elections. Minority rights will often involve an affirmative element, which is probably one of the reasons it proved impossible to agree on any explicit minority rights in the Charter. The general discrimination clause of the Charter refers to both "language" and "membership of a national minority" as illegal criteria for differential treatment, see Article 21(1). On a dynamic reading this provision, alone or along with Article 22 on linguistic diversity, could perhaps to some extent be interpreted to encompass positive obligations on the Member States vis-à-vis minority individuals (presuming the situation is somehow related to the implementation of Community law, cf. Article 51(1)). If negative legislative history is regarded as relevant by the Court in the interpretation of the Charter, such a dynamic reading might be excluded already on that basis.
155 See Document 4297/00, CONTRIB 169, of May 10, 2000, proposal for inclusion of minority rights submitted by Jens-Peter Bonde (MEP), based on contribution from the European Centre for Minority Issues (ECMI).
156 The applicant country was Hungary, see J. Gower "The Charter of Fundamental Rights and EU Enlargement," in K. Feus (Ed.), note 14 above, pp. 225-237, at pp. 232-33. The author points out that there is a certain element of double standards involved, when the EU expressly recognizes minority rights in the Copenhagen criteria for EU membership but does not include them in the EU Charter of Fundamental Rights.
157 See text at and in note 70 above, about the Comitology and Chernobyl cases, and with respect to the ECHR, see, i.a., Young, James and Webster v. UK, (1981), A-44, where the European Court of Human Rights rejected the British government's arguments that the right to negative freedom of association could not be protected under Article 11 ECHR, even in the face of travaux préparatoires which made clear that the Contracting Parties did not intend to inhibit their possibilities of imposing or permitting closed shop arrangements on their labor markets. The European Court of Human Rights only rarely refers to the travaux préparatoires. The Court prefers to assess current European standards rather than the intention of the drafting states 50 years ago. See D.J. Harris et al., note 77 above, pp. 7-9 and 17.
158 In an extreme version of the theory, the national courts would also be bound by the alleged command of Article 53 never to apply Charter rights against different rights in other instruments. In the Jersild scenario, this would mean that national courts should disregard any considerations of freedom of expression. Such a theory would clearly be unacceptable. First, either the Charter applies to the situation or not. The Community could not possibly demand or legitimately desire that general provisions of the Charter be applied outside the context of the Charter. Second, the idea would lead to the absurd result that two instruments both containing an Article 53-like provision would dissolve each other in the case of a conflict. No remedy would be available under either of the instruments, either in the national judiciary or under international control mechanisms. Both rights would be rendered unjusticiable.
159 Margin of appreciation is a term used by the European Court of Human Rights, see, e.g., van Dijk and van Hoof, note 77 above, pp. 82-95.
160 The EU subsidiarity principle, see Article 5 (ex Article 3b) TEC, is normally thought of in relation to the legislative, not the judicial, powers of the Community. But nothing in the wording of Article 5 TEC excludes its application to "action" in the judicial field, although, as with the legislative sphere, the implications are not crystal-clear. In the field of human rights, one might argue that judicial subsidiarity is already a part of the Court's review of certain Member State measures. The Court says it "must provide the national court with all the elements of interpretation which are necessary in order to enable it to assess the compatibility of [the] legislation with the fundamental rights [... ] the observance of which the Court ensures" (emphasis added), see, e.g., the ERT case, note 13 above, para. 42. This seems to involve a certain degree of deference, resulting in a less strict level of scrutiny than applied to Community measures. See note 15 above.
161 See for a broad discussion of ways in which the ECHR system can be said to be based on a subsidiarity principle, H. Petzold, "The Convention and the Principle of Subsidiarity," in Macdonald et al. (Eds.), note 17 above, pp. 41-62.
162 See, e.g., G. Gaja, "New Instruments and Institutions?," in Alston (Ed.), note 5 above, pp. 781-800, at pp.783-84.
163 Imagine a national constitution which protects, as a human right, access to all documents held by the government, including sensitive information relating to individuals. Should the Court, based on Article 53, simply decline to accept a right-to-private-life case? Or should the Court, as suggested in the dissenting opinion by Judge Martens in the Gustafsson case, see at note 88 above, decide which rights under national law are genuine or legitimate rights as opposed to "illegitimate" or "flawed" rights? Neither solution is satisfactory, or required by Article 53, I would contend.
164 See note 125 above about the Levy case for a possible modification on the point about jurisdictional deference, although this case did not involve a conflict between two human rights norms, but a "normal" conflict between a Community measure and a fundamental right protected, possibly to a greater extent than the general principles of Community law, by an older convention. And even if this case should have any implications for the Charter, it would not be related to Article 53.
165 The Court avoided the human rights problem in a comfortably technical, procedural way by saying that the Member State measures were outside the scope of Community law, as the Court had just concluded that the individuals in the proceedings before the national court could not invoke Article 49 (ex Article 59) on the freedom to provide and receive services, when all they were doing was distributing information with no profit motive or link to the actual service providers (the abortion clinics abroad), see notes 74 and 86 above, para. 31.
166 Whether and how to include the principle of subsidiarity was an important element in the discussions concerning the horizontal provisions of the Charter, see 2.5. above. The debate seems to have been primarily focused on legislative subsidiarity rather than judicial subsidiarity. The expression given to subsidiarity in the Charter, see point five of the preamble and Article 51(1), does probably only give limited, if any, support to the theory discussed above.