A Federal Question Doctrine for EU Fundamental Rights Law:Making sense of Articles 51 and 53 of the Charter of Fundamental Rights

Konstanze Von PappKeele University

AbstractThe EU Fundamental Rights Charter should be understood as acknowledging that fundamental rights are the foundation of European democracies and thus underlying EU integration, and that the division of powers between the EU and its Member States is ultimately in the interest of people. This would leave room for the overprotection of rights as a matter of national or international law. Such a rights based approach would respect international human rights law and fit into EU internal market, citizenship and private law. Respect for Member State powers would serve as a limiting factor to this approach by limiting the extent of judicial review by the Court of Justice of the EU.

Introduction

The EU Charter of Fundamental Rights (Charter) has attracted both praise and criticism. Some of the criticism is due to the fact that countries with a less strong role for judicial review struggle with the idea of courts interfering with parliamentary decision-making.1 This problem is aggravated if the judicial interference derives not from a domestic, but from an international court.2 The more specific critique is that there is no way of knowing where the stopping point for the Court of Justice of the EU (CJEU) reaching into national law is.3 On one level, this is the problem of how easily the jurisdiction of the CJEU in fundamental rights cases is triggered: it is addressed by Article 51 of the Charter and the sometimes very controversial case law thereunder. On another level, however, the question becomes what room is left for rights protected under national or international law, even if the CJEU may have jurisdiction over the matter. This is addressed by Article 53 of the Charter, which, unfortunately, does not receive sufficient attention in the case law. Accordingly, there does not appear much, if any, room for deviation from the EU standard. This is due to the fact that, somewhat counterintuitively, EU fundamental rights law is often perceived as dealing with powers rather than rights.

Using US law as a point of comparison, it will be argued that the focus needs to shift back to rights, which must lie at the heart of a more comprehensive EU fundamental rights doctrine. The argument will proceed as follows. First, I will explain the lack of coherence in EU fundamental rights law, which is in particular due to an unsatisfactory trade-off between a competency-based approach and a pure rights rationale. Second, I will argue that a more fruitful interaction between Article 51 of the Charter (dealing with EU jurisdiction), and Article 53 (dealing with standards of rights protection) would improve this trade-off. Third, I will show that re-focusing on rights would make room for 1 This is in particular true for the UK.2 See, e.g., the critique by M Wheeler, Cavalier with our Constitution: a Charter too far, available

electronically at http://ukhumanrightsblog.com/2016/02/09. 3 J Masing, Unity and diversity of European fundamental rights protection, (2016) E.L.Rev. 490, 508

describes the need for “concurrent fundamental rights protection in a spirit of diversity”.

a more coherent and comprehensive EU fundamental rights doctrine that would also fit into EU internal market, citizenship, and private law.

Shortcomings in EU fundamental rights law

EU fundamental rights law is suffering from a lack of coherence. This is due to several problems. One is that the EU is neither a human rights organization, nor a federal state with a Constitution.4 So, if seen solely through an international human rights or a Constitutional law lens, EU fundamental rights law is bound to disappoint. Historically, the European Community was set up as a regional economic organization acting through its own institutions with the overarching aim of creating a common market.5 It is therefore not straightforward to explain why the EU should be in need of fundamental rights, and how these rights should be protected.6 Even more difficult to justify is why the actions of the Member States should be scrutinized by the CJEU for potential breach of fundamental rights: this would normally be a task for the (Constitutional) courts of the Member States and the European Court of Human Rights (ECtHR). Adding judicial review by the CJEU of Member State measures gives rise to the critique that the EU is overstepping its powers.7

Is EU fundamental rights law about rights or about powers?

Rights are different from powers. In legal theory, rights are contrasted with obligations (as correlatives) in the sense that the entitlement of one person is the legal disablement of another.8 Powers enter this picture on a different level, because powers allow for changes to any set of rights and obligations: this is why powers are sometimes referred to as an example of norms regulating competences (as opposed to norms regulating conduct, such

4 J Weiler, Federalism without Constitutionalism: Europe’s Sonderweg in K Nicolaidis and R Howse, The Federal Vision, Oxford 2001, 54.

5 F Fabbrini, Fundamental Rights in Europe: Challenges and Transformations in Comparative Perspective, Oxford 2014, 13 sees EU fundamental rights as equivalent to the economic layout of the then-European Economic Community. This could be corroborated by the preparatory work for the (failed) Political Community, see G de Burca, The Evolution of EU Human Rights Law, in: P Craig and G de Burca, The Evolution of EU Law, 2nd ed., Oxford 2011, 465, 468 et seq. Contrast the traditional view by J Weiler, Methods of Protection: Towards a Second and Third Generation of Protection, in: A Cassese et al (eds), Human Rights and the European Community: Methods of Protection (Baden-Baden) 1991, 555, 580 et seq; A von Bogdandy, The European Union as a Human Rights Organization? (2000) 37 C.M.L.Rev. 1307, 1335 et seq.

6 The rule of law requires powers that directly impact on citizens to be bound by basic legal principles. Since a breach of national Constitutional rights cannot render an EU measure invalid (see Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125 para 3), general principles as an equivalent to the basic protection under Constitutional law were recognized on the EU level.

7 To illustrate this: the review powers of the CJEU figured in the Brexit debate as an argument for the Leave campaign as per Michael Gove (“an unaccountable European Court in Luxembourg which is extending its reach every week, increasingly using the Charter of Fundamental Rights which in many ways gives the EU more power and reach than ever before...”, Telegraph (20 February 2016) available at http://www.telegraph.co.uk/news/newstopics/eureferendum/12166345)). The response to this was also phrased in terms of competences, see P Eeckhout, The Real Record of the EU Charter of Rights, U.K. Const. L. Blog (6th May 2016) (available at https://ukconstitutionallaw.org).

8 See P Schlag, How to Do Things with Hohfeld, University of Colorado Working Paper Number 14-4, 4 (2014) (available at ssrn.com/abstract=2473246).

as rights and obligations).9 In advanced Constitutional systems, individual rights do not merely represent the absence of power.10 Instead, they outweigh powers and can thus be used in court to either argue the non-applicability of otherwise lawful legislation in a particular case, or even the unconstitutionality of (parts of) that legislation.11 In federal systems,12 apart from a potential usurpation of the will of the democratically elected legislature, this may also constitute undue interference with state powers by the federal Constitutional court. This specific problem has shaped both US and EU fundamental rights development. It explains why the protection of fundamental rights against (Member) state acts is almost inextricably linked to questions of distribution of powers between federal and state level. The underlying worry is that judicial protection of rights on the federal level undermines state powers to regulate within their remaining areas of competence.13 However, the better question to ask would be under which circumstances the (Member) state protection of rights might be sufficient. The involvement of a “federal Constitutional court” in a non-technical sense14 appears most important when it comes to protecting the rights of individuals against action taken by the federal government (or, respectively, the EU). Member state acts on the other hand are an entirely different matter.

Why EU fundamental rights protection against the Member States?

It is difficult to see why an additional layer of EU fundamental rights should be applied to Member State measures. After all, these are already subject to judicial review by the national (Constitutional) courts and the European Court of Human Rights (ECtHR). This question underlies the case law both before and after the adoption of the Charter in 2000

9 E Vranes, The Definition of “Norm Conflict” in International Law and Legal Theory, (2006) E.J.I.L. 17, 395, 396.

10 The first ten amendments to the US Constitution (Bill of Rights) were originally understood not as individual liberties, but as limits on federal power: Barron v Baltimore, 32 U.S. (7 Pet.) 243 (1833). See J Ely, Democracy and Distrust: A Theory of Judicial Review, Cambridge (Mass.) 1980, 35 et seq.; J Roche, Courts and Rights: The American Judiciary in Action, 2nd ed., New York 1966, 65 et seq.

11 In Germany, Constitutional review of legislative acts is explicitly provided for by the Grundgesetz. In the US, it is based on case law deriving from the insight that in free states, “the supreme legislative derives its power and authority from the constitution, [thus] it cannot overleap the bounds of it ....” See Massachusetts Circular Letter of February 11, 1768 (quoted by F.A. Hayek, The Constitution of Liberty, Routledge Classics edition 2006, 155, 410 at note 9).

12 As per the definition suggested by James Madison, The Federalist No. 39: Government power in a federal system lies in more than one central governmental unit. The reference to federal systems as opposed to federal states is used so as to also capture the supranational structure of the EU, where powers are vertically divided between the EU and its Member States. Functionally, the EU is a federal system - regardless of whether it achieves the exact same level of integration as a nation state, see I Pernice, Harmonization of Legislation in Federal Systems (Baden-Baden 1996), 9, 15. Employing a political science perspective, see E Young, What Can Europe Tell Us About the Future of American Federalism, (2017) 49 Arizona State Law Journal 1109, 1110.

13 For the US, see A Hamilton in J Cooke (ed), The Federalist No. 84, New York 1961, 575, 579; for the EU see e.g. I Pernice, Eine Grundrechte-Charta für die Europäische Union, Deutsches Verwaltungsblatt (DVBl) 2000, 847, 852 et seq.

14 Including not only the Supreme Court of any federal state (note 12), but a supranational court tasked with continuing integration and equipped with robust review powers such as the CJEU. See K von Papp, The Role and Powers of the CJEU in E Guinchard & M Grainger (eds), The New EU Judiciary, Kluwer 2017, 101, 104-105.

and its formal incorporation into primary law by the Lisbon treaty in 2009. It is a problem that has also been referred to as the ‘federal question’.15 It is therefore necessary to clearly distinguish between cases that concern fundamental rights protection against measures by the EU institutions (EU acts), and those that concern fundamental rights protection against Member State measures.16 As already indicated, the former do not raise specific concerns from a federalism perspective: the CJEU as EU judiciary is the sole forum that could - or, in a legal system abiding by the rule of law, must17 - decide upon the lawfulness of EU acts, which includes a review against the benchmark of (EU) fundamental rights. However, the judicial enforcement of EU rights against Member state acts is much more problematic: why should the CJEU have review powers over Member state acts? Article 51(1) of the Charter answers this question by reference to the Member States “implementing” EU law:

Article 51Field of Application

1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.

2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.

In essence, this means that the Court has jurisdiction whenever the review of the Member State measure amounts to the indirect review of an EU act. Therefore, it is necessary to determine in which circumstances a Member State measure ultimately originates in EU law. Pre-Charter case law answered this question incrementally by reference to “categories” of factual scenarios.18 The current state of the law can be broadly summarized as follows: EU fundamental rights apply except for circumstances that are

15 P Eeckhout, The EU Charter of Fundamental Rights and the Federal Question, (2002) 39 C.M.L.Rev. 945. There, ‘federal question’ focuses on competences and thus the jurisdictional question of who should be judging fundamental rights violations. Here, it is used in a broader sense: which interest does the EU have in protecting rights conclusively as a matter of EU law.

16 The reason for developing and applying EU fundamental rights mentioned supra (note 6) only applies to EU fundamental rights protection against the EU institutions.

17 Case 11/70 Internationale Handelsgesellschaft (supra note 6).18 Following the “agency” situation (Member States implementing EU legislation) were scenarios that

came within the “scope of EU” law (derogation from the fundamental freedoms). This later embraced “mandatory requirements”, Case C-368/95 Vereinigte Familiapress v Bauer Verlag [1997] I-3689. Consequently, EU fundamental rights applied to indistinctly applicable measures. Fundamental rights then informed the Court’s analysis where compliance with EU law more generally was at stake (see infra 4.2.1). Advocate General Sharpston in Case C-427/06 Bartsch v Bosch und Siemens Altersfürsorge [2008] ECR I-07245 para 69 (situations “otherwise” within the scope of EU law). Article 51 could have been understood as being limited to the ‘implementing’ scenario, but its accompanying explanations are broader. Case C-617/10 Åklagaren v Åkerberg Fransson ECLI:EU:C:2013:105 para 21 ended the uncertainty in favour of the wider “scope of EU law”, confirmed by Case C-390/12 Pfleger ECLI:EU:C:2014:281 paras 35-36. See M Dougan, Judicial Review of Member State Action under the General Principles and the Charter: Defining the Scope of Union Law, (2015) 52 C.M.L.Rev. 1201.

clearly alone for the Member States to regulate, i.e. completely independent from their duties under EU law.19 Whereas earlier case law suggested that a strict EU law obligation was necessary for Member States to be additionally bound by EU fundamental rights, this appears more relaxed nowadays. However, a Member State must at least be acting under some form of EU direction other than the obligation or prohibition imposed by the relevant EU fundamental right alone.20 Determining which factual scenarios thus fall under the CJEU’s review powers (now Article 51 of the Charter) has never been straightforward. It is rendered more difficult by the fact that EU law nowadays covers a much wider range of policies than in the early 1960s. The evolution of fundamental rights cases has therefore seen a different criterion emerging, which is inquiring into the potential impact of any relevant EU rule on the subject matter.21

Limiting the applicability of the Charter to Member States to such situations of “implementation of EU law” formally explains why EU fundamental rights should be included as basis for review: because the CJEU has jurisdiction over the application and interpretation of EU law, which extends to situations in which EU law is indirectly at stake. This satisfies the principle of conferred powers (Article 5(2) TEU). Continued respect for this principle is explicitly ensured by Article 51(2), providing that the Charter does not create new EU competences. In short, Article 51 represents what I will refer to as powers rationale (who has the power to grant rights). The main concern here is to build EU fundamental rights into the framework of powers that are divided between the EU and its Member States, leaving this framework untouched to the largest possible extent. This does not only show respect for Member State sovereignty, but at the same time ensures that the Member States continue to accept EU supremacy.22

The EU or federal interest underlying Article 51 is the interest in judicially enforcing EU fundamental rights. Tying EU fundamental rights review to the Court’s general jurisdiction over EU law (jurisdictional threshold) has fundamentally shaped the case law before and after the entry into force of the Lisbon Treaty.23 It explains why the CJEU under certain conditions has the power to enforce EU fundamental rights against the

19 In Case 149/77 Defrenne III [1978] ECR 1365, 1386, 1388, Advocate General Capotorti noted the lack of a “Community provision giving a precise form”, so the relationship in question was not “entirely governed by Community law”. The availability of EU fundamental rights as a trigger for the CJEU’s review power over Member State acts here resembles the conditions for the direct effect of EU law. See Opinion of AG Sharpston in Case C-427/06 Bartsch (note 18) referring to a specific EU rule being needed. See also Opinion of AG Kokott in Case C-483/09 [2011] ECR I-8263 para 39, and Case C-198/13 Hernandez ECLI:EU:C:2014:2055 para 35. However, the test for direct effect of EU law should still be distinguished from the jurisdictional threshold (infra ‘EU fundamental rights and private law’).

20 Case C-299/95 Kremzow v Austrian State [1997] ECR I-2629 para 15. Compare Case C-617/10 Åkerberg Fransson (note 18) para 22.

21 This will be dealt with in more detail infra note 109 and accompanying text. 22 Internationale Handelsgesellschaft (supra note 6).23 The Court refuses judicial review of Member State acts on the basis of EU fundamental rights if the

Member States act within their retained powers – in other words, outside the ‘scope’ of EU law: Case C-260/89 Elliniki Radiophonia Tiléorassi (ERT) v DE Pliroforissis [1991] ECR I-2925 para 42. So there must be a ‘sufficient connection’ with EU law, Case C-299/95 Kremzow (note 20) para 16; or a “specific interest of the Union”, Opinion of Advocate General Cruz Villalón in Case C-617/10 Åkerberg Fransson (note 18) para 40.

Member States. It does not, however, explain why Member States are bound by EU fundamental rights in the first place.

What is the normative basis of respect for EU fundamental rights by the Member States?

The answer to this question can only be found in what I will refer to as the rights rationale: people have rights that predate the official recognition or enforcement of these rights by states. The most convincing explanation to date from an EU perspective can be found in the well-known Opinion of Advocate General Jacobs in the Konstantinidis case, as well as that of Advocate General Sharpston in Zambrano:24 ultimately, the Member States are bound by EU fundamental rights, because these are the basic values that European societies share. They are part of the common Constitutional traditions and the ECHR, but they are not “granted” by either of these instruments, nor by the Charter. Instead, they belong to people and are therefore pre-Constitutional (natural) law. Similarly, from a Member State perspective, one could picture the transfer of powers to the EU as being “mortgaged” in the sense that Member States can only transfer powers that are already constrained by individual liberties.25

The Constitutional history of the US shows that the more advanced a federal system becomes, the more likely there is a shift of focus to rights protection. It also exemplifies how this could become possible: in the US, there have been various attempts at a justification of what was perceived as federal intrusion into state affairs. What eventually proved to be a viable approach, however, was the combination of a formal and a more substantive element. The formal element was a federal obligation that was explicitly binding the states, namely the 14th Amendment (“No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”). The more substantive element involved assessing, on a case-to-case basis, whether the individual right that a person claimed against the state was “fundamental”.26 In proceeding thus selectively, the US Supreme Court eventually gave effect to a minority view according to which the states have always been bound by individual rights as part of Anglo-American

24 Case C-168/91 Konstantinidis v Stadt Altensteig [1993] ECR I-1191, and Case C-34/09 Zambrano v Office national de l’emploi [2011] ECR I-01177. See infra ‘EU fundamental rights and EU citizenship’.

25 I Pernice, Grundrechtsgehalte im Europäischen Gemeinschaftsrecht, Baden-Baden 1979, 219 et seq. (Schriftenreihe Europäische Wirtschaft, Band 96).

26 See Duncan v Louisiana, 391 U.S. 145, 148 et seq. (1968) regarding rights in criminal proceedings: “whether ... a procedure is necessary to an Anglo-American regime of ordered liberty”.

pre-Constitutional values underlying the common law.27 Under the rights rationale, the focus shifts to determining which rights these are.

Article 53 of the Charter should be read in the light of a similar natural law theory. It can best be understood on the assumption that people may have more rights than specifically granted by, or protected under, any given Constitutional or international instrument:

Article 53Level of ProtectionNothing in this 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 and international law and by international agreements to which the Union, the Community or all the Member States are party …, and by the Member States’ constitutions.” (Emphasis added)

The proposed natural law reading is corroborated by a systematic argument drawn from Article 1 of the Charter (‘Human dignity’), and the wider human rights context: Article 53 of the Charter follows the wording of Article 53 of the ECHR, which draws on the Universal Declaration of Human Rights. European states, therefore, share the global acknowledgment after World War II that individual rights are ultimately founded in human dignity itself.28

Despite the reference to “respective fields of application”,29 Article 53 does not address the ‘federal’ question in the sense of a jurisdictional threshold for the CJEU. Instead, it is concerned with the standard of rights protection that remains independent from EU law. In other words, it is driven by a more libertarian view, the mandate for which is the EU's commitment to (libertarian) democracy and the rule of law (Article 2 TEU). Therefore, the EU interest here is not the respect of powers as divided between EU and Member States,30 but the respect of rights that people have. Therefore, underlying Article 53 is not

27 Corfield v Coryell, 6 Fed. Cas. 546 (C.C.E.D. Pa. 1823). See A Amar, The Bill of Rights: Creation and Reconstruction, New Haven 1998, 156 et seq. Contrast Barron v Baltimore, note 10. This was helped by a broad substantive reading of “due process of law”, i.e. economic laissez faire against both federal and state regulation (Lochner v New York, 198 U.S. 45 (1905)). When “incorporating” the Bill of Rights step-by-step from the 1920’s onwards, the Supreme Court could thus rely on an established methodology by reading individual rights into “due process of law”. See J Roche (note 10), 77; B Schwartz, A History of the Supreme Court, Oxford, New York 1995, 277. Despite its advantages, the US Supreme Court did not adopt Justice Black’s suggestion of “total incorporation” of (just) the Bill of Rights (Adamson v California, 332 U.S. 46, 68-123 (minority)).

28 The question then is which rights follow from human dignity. For a generous view including social rights see D Schiek, Towards more resilience for a social EU: the constitutionally conditioned internal market (2017) 13 Euro Const Law Review 611. There is a good argument that the centrality of human dignity bridges otherwise diverging rights theories, M Nowak & K Januszewski, Non-State Actors and Human Rights in M Noortmann, A Reinisch & C Ryngaert (eds), Non-State Actors in International Law (Hart) 2015, 113, 125 et seq. For the close relationship between the Charter and international human rights law see A Rosas, The Charter and Universal Human Rights Instruments in S Peers, T Hervey, J Kenner & A Ward, The EU Charter of Fundamental Rights: A Commentary (Hart) 2014, para 60.01.

29 For more detail see infra ‘The respective fields of application’.30 Even though a sufficient connection with EU law is formally also required for the jurisdictional

threshold to be met. This is further discussed in light of the Melloni case infra note 48, and accompanying text.

the ‘federal’ question of enforcing EU rights by the CJEU, but that of securing the existing rights of EU citizens in a multi-layered system of governance.

The remaining problem is to define the precise interaction of different layers of rights, which will be dealt with infra (‘A workable interaction between Articles 51 and 53?’). Before addressing this, however, it is worth considering briefly how both the rights and the powers approach to EU fundamental rights have overall impacted upon the field.

Implications of the different perspectives on EU fundamental rights

In light of the diverging rationales or “paradigms”31 a coherent EU fundamental rights doctrine can only emerge if we find a way to square the powers with the rights approach. From a rights point of view, EU fundamental rights law does not reach far enough, while under a mere powers rationale the EU is overstepping its competences and interfering in domestic affairs under the guise of rights protection. This tension naturally lends itself as the basis for a “pick-and-choose” approach that ultimately instrumentalizes EU fundamental rights law - and, especially, the Charter - for purposes other than rights protection. For example, in a public law context, one would typically rely more on the powers rationale and therefore see (EU fundamental) rights predominantly as governance tools.32 This can best be seen in the early cases discussing EU fundamental rights protection against Member State acts.33 These cases share a certain governance perspective: the first question asked is that of who is the proper regulator for the relevant subject area. The answer is given without regard to the individual rights at stake. Instead, what matters is the division of competences between the EU and the Member States in an almost abstract manner.34

A purely economic perspective on the other hand would, at least if dominated by classical ordo-liberal theory, start from the opposite end, thereby employing the rights rationale: freedom of economic activity means that state intervention is limited, and must at the very least comply with the rule of law (thus including certain fundamental rights).35 This is the basis on which the general principle of proportionality was first introduced into the analysis of Member State restrictions to fundamental freedoms in the case of Rutili.36 By contrast, a private law context will necessarily shift the focus to the consequences of

31 L Besselink, The Parameters of Constitutional Conflict after Melloni, (2014) 39 E.L.Rev. 531.32 E.g. Y Poullet and S Gutwirth, The Contribution of the Article 29 Working Party to the Construction of

a Harmonised European Data Protection System: an Illustration of Reflexive Governance? in: O De Schutter and V Moreno Lax, Human Rights in the web of governance, Bruylant (2010) 253, 285 et seq.; O De Schutter, The Democratic Experimentalist Approach to Governance: Protecting Social Rights in the EU in: O De Schutter and J Lenoble, Reflexive Governance, Oxford (2010), 115.

33 See Joint Cases 60/84 and 61/84 Cinéthèque v Fédération nationale des cinémas français [1985] ECR 2605) and Case C-260/89 ERT (note 23), where an explicit reference to Cinéthèque shows that the Court still relied on the powers rationale. For a more detailed discussion see K von Papp, Die Integrationswirkung von Grundrechten in der Europäischen Gemeinschaft, (Heidelberger Schriften zum Wirtschaftsrecht und Europarecht Vol. 36), Baden-Baden 2007, 127-129.

34 Although the national legislator’s intention may matter (see also note 109 infra). In any event, in both Cinéthèque and ERT the driving factor was the content and form of the governmental measure.

35 F.A. Hayek (supra note 11), 193 et seq. 36 Case 36/75 Rutili v The Minister for the Interior [1975] ECR 1219.

rights protection for private relationships, which will then depend on the so-called hori-zontal applicability or horizontal direct effect of rights. One of the classical cases here is the Defrenne case37, and a more recent example is the case of Association de médiation sociale (AMS).38 Such private law contexts show most clearly that the powers rationale must be complemented from a rights perspective (see infra ‘EU fundamental rights and private law’).

Where a case is being pleaded on the basis of EU citizenship, the rights rationale becomes predominant when for the first time the question of which rights do we have is being addressed - including family rights or the “very substance” of citizenship rights. Although closely connected with the status of EU citizens, the rights rationale here has typically had far-reaching social implications, as evidenced by cases such as Metock39 and Brey.40 In this context, the Court has been using the powers rationale as a stopping point (see infra ‘EU fundamental rights and EU citizenship’).

Lastly, there is also a classical human rights perspective, which often focuses on the problem of which court has the last word - the CJEU, the ECtHR, or even national Constitutional courts. The challenge for developing a more coherent EU fundamental rights doctrine lies in accommodating these various perspectives.

A workable interaction between Articles 51 and 53 of the Charter? In contrast to the jurisdictional threshold for CJEU review of Member State acts (Article 51), Article 53 and the question of diverging standards has received little attention in the case law. The Melloni case in particular cast doubt on whether there will be much room, if any, for a higher standard of rights protection under national law.

The ‘respective fields of application’

Article 53 refers to the “respective fields of application” of the different layers of national, EU, and ECHR rights. This is an unsatisfactory attempt to balance the rights with the powers rationale. As a matter of both national and international law, the Member States are always bound to respect the rights enshrined in their own Constitutions, as well as the ECHR rights. In addition, they are bound by EU fundamental rights to the extent these follow from human dignity or the natural law theory outlined supra. But the CJEU can only enforce these EU rights if Article 51(1) of the Charter is satisfied.41

Second, there are various possible interpretations of “respective fields of application”: under a narrow reading, Article 53 would leave room for more protection under the ECHR or national Constitutions (“overprotection” of rights) only where EU fundamental rights do not apply: this would cover purely internal scenarios, leaving it to the Member States to provide for a higher level of rights protection than the EU does. Under this

37 Supra note 19.38 Case C-176/12 AMS v Union locale des syndicats ECLI:EU:C:2014:2. See infra (‘EU fundamental

rights and private law’).39 Case C- 127/08 Metock v Minister for Justice, Equality and Law Reform [2008] ECR I-06241.40 Case C-140/12 Pensionsversicherungsanstalt v Brey ECLI:EU:C:2013:565.41 See supra text accompanying notes 24 et seq.

reading, Article 53 of the Charter would essentially be re-stating Article 51, with the mere clarification that outside the scope of application of EU fundamental rights, Member States remain free to apply whichever level of Constitutional rights protection they see fit. However, this would only state the obvious. On the other hand, where EU fundamental rights do apply, such a narrow reading would imply that Member States could never provide such separate (higher) rights protection on the basis of national law. This would render Article 53 redundant,42 and constitute a breach of international law.43

Under a broader reading, Article 53 would acknowledge that there are overlaps in the fields of application of national and EU fundamental rights.44 So Article 53 would deal with all scenarios involving Member State measures, including scenarios where EU fundamental rights apply. It would allow Member States to subject their own actions to even stricter scrutiny than required under EU law (either on the basis of national or international human rights law) without any further reservations. This would represent the rights rationale in its purest form.45 Without putting any limits on Member States relying on a (higher) national standard of rights protection, this entails the risk that Member States instrumentalize national rights as exceptional basis for disregarding EU supremacy. This is why the CJEU originally grounded its reasoning in fundamental rights cases on the principle of EU supremacy (supra note 6), as it did also in the Melloni case. One of the issues explicitly raised in this case was which reading – the narrow or the broader one – of Article 53 to prefer. The question of standards arises when EU and national rights apply: Melloni

In the Melloni case, the Spanish Constitutional Court referred to the CJEU several questions that had arisen in the context of the European Arrest Warrant (EAW).46 Mr Melloni, a resident in Spain, had been convicted in Italy in absentia. The Italian authorities issued an arrest warrant, which Mr Melloni challenged for breach of the fair trial principle of the Spanish Constitution. The right to a fair trial appeared better protected under Spanish law than it was under the European Arrest Warrant (EAW) Framework Decision, because the latter allowed Member States to refuse extradition only if neither the indicted nor his lawyer had been present. The issue therefore was whether Article 53 in this context allowed for the overprotection of the right to a fair trial by the Spanish Constitution, or whether the EU's acceptance of a higher standard of Member State fundamental rights protection was somehow qualified.

42 N de Boer, Case Annotation Case C-399/11 Melloni (2013) C.M.L.Rev. 1083, 1093.43 From an international law perspective, an EU maximum standard cannot exist (C Costello, The

Bosphorus ruling of the European Court of Human Rights (...), (2006) 6 Human Rights Law Review 87.44 See also B de Witte in S Peers et al (eds), The EU Charter of Fundamental Rights (note 28) para 53.27.

So in principle, Member States can “overprotect” rights and subject their powers to even more scrutiny. The crucial question is what limits there are under EU law for Member States to do so.

45 Focusing on the appropriate degree of rights protection in any given case from an individual’s point of view, without regard to the fact that this may restrict remaining competencies (or, discretion) of the Member States.

46 Framework Decision on the European arrest warrant and the surrender procedures between Member States, [2002] O.J. L190/1 (with the relevant Article 4a inserted by Council Framework Decision 2009/299/JHA, [2002] O.J. L81/24).

Both the Advocate General and the Court agreed that the latter was the case: allowing the Member States to generally provide a higher standard of fundamental rights protection would run counter the principle of supremacy.47 Therefore, a nuanced approach was needed, falling somewhere between the narrow and the broad reading of Article 53 as set out supra at 3.1. This intermediate approach would, in principle, allow for overprotection even when Member States act within the scope of EU law, but only if this does not compromise the primacy, unity, and effectiveness of EU law.48 In Melloni this test was not satisfied: the CJEU saw the purpose of the EAW as standardizing the protection of the rights of defense in order to secure an effective framework for mutual recognition.49

Steering an intermediate course, Melloni clearly rejects a narrow reading of Article 53. The Court correctly understands the respective fields of application not simply as picking up the powers rationale underlying Article 51. In other words, when the Member States are “implementing” EU law for the purpose of Article 51, they are still acting within the respective field of application of their own Constitutional and/or ECHR rights. Melloni acknowledges that there simply are no distinct spheres of application of EU fundamental rights, Member State Constitutional rights, and ECHR rights. Typically, as far as Member State measures are under review, these will overlap. Article 53 preserves the existing standard of rights protection under both national and international law.50 This becomes relevant only in cases where both national - often including international - rights and EU rights apply. So the jurisdictional trigger of EU fundamental rights (Article 51) is a conditio sine qua non for the application of Article 53. The question then becomes is what the latter adds to the analysis.

Conflating the powers with the rights rationale: a critique of Melloni

The intermediate approach followed in the Melloni case creates a new conundrum: in general, the overprotection of rights appears to be allowed only “if this does not compromise the primacy, unity, and effectiveness of EU law.” This qualification bears the risk of effectively taking away most if not all of Article 53: if the primacy, unity, and effectiveness of EU law were understood as a general ceiling to this provision, it would mean simply going back to the powers rationale underlying the early case law beginning with Internationale Handelsgesellschaft.51 This is true at least insofar as the reference to 47 This follows from Internationale Handelsgesellschaft (note 6).48 Case C-399/11 Melloni ECLI:EU:C:2013:107 paras 59-60. Contrast the approach in the Opinion by

Advocate General Bot at para 124, distinguishing between scenarios in which there is an EU definition of the level of protection that must be afforded to an EU fundamental right when Member States are implementing EU law, and those in which there is no such “common definition”.

49 Case C-399/11 Melloni paras 62-63. Approvingly S I Sánchez, The Court and the Charter: The impact of the entry into force of the Lisbon Treaty on the ECJ’s approach to fundamental rights, (2012) 49 C.M.L.Rev. 1565, 1608 (the sphere was being governed by EU law and based on the principle of mutual recognition). But the question is whether the EU interest in mutual recognition apart from meeting the jurisdictional threshold is also sufficient to outweigh any diverging standard of rights protection. Regarding EU external relations law see K von Papp, The principle of autonomy of EU law and its implications for intra-EU disputes under the Energy Charter Treaty, in: A. Dimopoulos (ed), The EU and investment arbitration under the Energy Charter Treaty, Cambridge University Press (forthcoming).

50 This excludes an interpretation of the Charter “downwards“, B de Witte (note 44 at para 53.04).51 Supra note 6. For a critique of the Court’s emphasis on absolute primacy in Melloni see L Besselink

(note 31), (2014) 39 E.L.Rev. 531, 542 et seq.

primacy is concerned since the ultimate limit to the overprotection of rights would in any event be the uniformity and primacy of EU law.52 However, this cannot be correct for the following reasons.

First, it would render Article 53 redundant: Melloni uses the same reason why EU fundamental rights scrutiny by the CJEU is warranted in the first place for limiting the circumstances under which the Member States could provide a higher standard of protection. Article 53 would not add anything to the analysis already done under Article 51.53 Second, replicating the primacy, unity, and effectiveness as ceiling for Article 53 renders this provision remote, since it conflates the jurisdictional threshold (Article 51) with limits for overprotection of rights by the Member States. This increases the risk of mixing cases against the EU and those against the Member States.54 Moreover, it would logically lead to a maximum standard of EU rights protection.55 However, such a maximum standard departs from other EU cases,56 and it cannot be reconciled with international law.57 It also challenges the Solange armistice with national Constitutional courts.

Third, it is not appropriate to approach a case like Melloni with the same logic underlying Internationale Handelsgesellschaft. It would require a serious stretch to find that the EU interest in both scenarios is essentially of the same concern. This would be saying that an EU-wide extradition procedure of people with criminal convictions can be compared to the common market in cereals, with the effect that the governing EU rules categorically exclude any form of higher rights protection in the individual Member States. Internationale Handelsgesellschaft concerned the legality of a decision taken by German authorities to declare a deposit forfeit in application of Community rules governing the common market in agriculture, i.e. the traditional agency scenario, in which the Constitutionality of an EU legislative act is indirectly at stake. In Melloni on the other 52 B de Witte (note 44 at para 53.12) argues that had the Charter meant to introduce an exception to the

principle of supremacy, this would have been done explicitly; and its drafters would still have lacked the authority to do so. This is probably true. However, there are features in EU primary law as well as in the case law on fundamental rights that recognise limits to the uniformity of EU law, if not even to primacy (see infra ‘An analogy with EU minimum harmonization?’ et seq.).

53 Arguably the Court was incorrectly combining Articles 51 and 53 of the Charter, so one should read the reference to (absolute) primacy out of the Melloni formula as far as Article 53 is concerned. See L Besselink (note 31); and N de Boer (note 42). Contrast M Dougan (note 18); and N Nic Shuibhne, The Court of Justice and fundamental rights: if margin of appreciation is the solution, what is the problem? in O Arnardóttir and A Buyse (eds), Shifting Centres of Gravity in Human Rights Protection: Rethinking relations between the ECHR, EU, and national legal orders (Routledge) 2016, 116.

54 See text accompanying notes 16 - 18 supra. The concern about Member States undermining EU supremacy is sometimes linked to challenges against EU acts, where Member States are said to be prevented from overprotecting national rights. See, e.g., B de Witte (note 44) at para 53.25; J Liisberg, Does the EU Charter of Fundamental Rights Threaten the Supremacy of Community Law? (2001) 38 C.M.L.Rev. 1171, 1189 et seq. The more precise question to ask instead is under which circumstances Member States by subjecting their own acts to a higher standard could be jeopardizing EU supremacy.

55 L Besselink (note 31), (2014) 39 E.L.Rev. 531, 546.56 Contrast Case 5/88 Wachauf v Bundesamt für Ernährung [1989] ECR 2609 with Case C-2/92 Ex parte

Bostock [1994] ECR I-955, where the Court clarified that as a matter of EU law, Member States are not obliged but free to provide compensation for expropriation if required under their respective Constitutions, para 19. See K von Papp (note 33), 303 et seq., 306-307.

57 See supra note 42.

hand, the EU act that could be deemed indirectly at stake was a mere Framework Decision, which was originally grounded in the (intergovernmental) Third Pillar. In light of the remaining Member State competences it is questionable whether such a scenario could still be considered as indirect review of an EU act. This is especially true given that the object and purpose of the provision at stake in Melloni was not a closer integration of the EU market. Instead, it was aimed at the enhancement of the procedural rights of persons while fostering the application of the principle of mutual recognition.58 In such a context, there must be significantly more room for Member States arguing that any exercise of their remaining discretion remains subject to national rights to the extent these provide a more robust protection.

What the Court should instead have considered in Melloni is the quality and intensity of the EU interest in the matter. In this respect, what was essentially at stake was the EU interest in a uniform standard of what are essentially civil liberties in the area of judicial cooperation. In other words, the federal (EU) interest here is not simply market integration. Apart from the formal EU interest in the principle of mutual recognition, which is the “cornerstone” of judicial cooperation in criminal matters,59 the substantive EU interest would seem rather small. Criminal law and procedure remain, after all, not only in the competency of the Member States but may well be regarded as part of their national identities.60 The intensity of the potential clash between civil liberties and security might thus allow Member States to insist upon striking the right balance by themselves, taking into account the specific circumstances of any given case.61

But even if seen from an EU internal market perspective the reasoning in Melloni is rather one-sided. The economic theory that underlies EU law has been slowly but steadily moving from a purely ordo-liberal to a more social model that makes – at least now and again – room for giving preference to social rights over the functioning of the internal market.62 The better approach in Melloni would therefore not have inquired into the strict compatibility of the Spanish standard with EU law. Instead, the question should have been whether the national overprotection of the right to a fair trial in the sense that the convicted person itself needs to be present can be tolerated from an EU perspective, or whether this would render the quest for uniformity and effectiveness of the EAW nugatory (for example, because people would have an incentive to stay away from their trial in those Member States).

EU law does allow for diverging standards of protection

58 Supra note 46.59 Joined Cases C-404 and 659/15 PPU Aranyosi and Căldăraru at para 79 with further references.60 Judgment of the German Constitutional Court (Lisbon), BVerfG, 2 BvE 2/08 of 30 June 2009.61 See the German Court’s refusal to follow the European Arrest Warrant Procedure in a case where this

would have put human dignity at risk, BVerfG (“Mr R”) 2BvR 2735/14, annotation by J Nowag in (2016) 53 C.M.L.Rev. 1441.

62 An early example in the context of equal pay are Joined Cases 270 and 271/97 Deutsche Post AG v Sievers and Schrage [2000] ECR I-929 paras 56-57. Contrast also the more recent Case C-201/15 AGET Iraklis with the harsher line of Case C-438/05 Viking Line [2007] ECR I-10779, or Case C-341/05 Laval v Svenska Byggnadsarbetareförbundet [2007] ECR I-11767.

The classical case illustrating the fact that even EU internal market law does allow for different national or local standards of protection as far as fundamental rights are concerned is Omega.63 This case concerned the prohibition by German local authorities of certain shooting games offered by a laser-drome operated as UK franchise. The reason for this was that the relevant games by the city of Bonn were considered simulated homicide and trivialization of violence, and thus in breach of the Constitutional principle of human dignity. Germany defended the measure on the basis of the generally acknowledged public policy exemption, corroborated by the absolute protection of human dignity under the German Constitution. This raised the question of whether a Member State could, in the absence of a common conception of human dignity at EU level,64 thereby justify the restriction of the fundamental freedom to provide services. The Court held that the public policy exemption would indeed apply if there was a “genuine and sufficiently serious threat to a fundamental interest of society”.65 This may to some degree vary from Member State to Member State as long it was “within the limits imposed by the Treaty”.66 Essentially, this means that the fundamental interest of society must be a legitimate interest under EU law, and the measure at stake must be proportionate. So far, the analysis falls squarely within long-standing case law regarding the freedom to provide services. What makes this case interesting from a fundamental rights perspective is the fact that these requirements were fulfilled since the (then-) Community legal order also “undeniably strives to ensure respect for human dignity as a general principle of law.”67

At the same time, Omega stands for the proposition that the overprotection of human dignity in Germany can be tolerated at the EU level, because it does not amount to a disproportionate interference with the EU’s otherwise overarching interest in a functioning internal market. The same high level of protection of human dignity is not required as a matter of EU law; therefore, other Member States and in particular the UK remain free to allow the controversial game.68

It is thus possible and, as argued here, also necessary, to understand Article 53 as an exception to the uniformity of EU law, and maybe even to EU supremacy:69 in a similar way to the explicit derogation clauses exempting the Member States under certain circumstances from strict compliance with the fundamental freedoms, Article 53 explicitly allows for derogations from the fundamental rights standard under EU law. What is possible in internal market law must also be possible in the area of fundamental rights protection - and even more so. This means that the uniformity and primacy of EU law (as tied together in Melloni) cannot automatically exclude the overprotection of

63 Case C-36/02 Omega Spielhallen v Oberbürgermeisterin der Stadt Bonn [2004], I-9609. 64 The controversial game was legally marketed in the UK.65 Case C-36/02 para 30.66 Ibid. para 31.67 Ibid. para 34. The proportionality principle was satisfied since only the most offensive variant of the

laser game had been prohibited.68 In that sense, Omega resembles the Bostock case mentioned supra note 42.69 A recent illustration is Case C-42/17 M.A.S. ECLI:EU:C:2017:936 regarding the implications of Case

C-105/14 Taricco ECLI:EU:C:2015:555: respect for the foreseeability, precision, and non-retroactivity of law as protected under the Italian Constitution is recognized as limiting the obligation under EU law to combat tax fraud by displacing national limitation periods. Other examples of exceptions to absolute supremacy are discussed infra, see notes 72 et seq., 80 et seq. (and accompanying text).

rights by the Member States (as seen in Omega). Instead, there has to be a good reason i.e. a real EU interest in limiting a higher standard of rights protection against Member States: for example, this could be a specific and sufficiently strong EU interest in a uniform approach to the relevant subject matter under the particular circumstances of the case. It would also mean - as the CJEU appears to have recognized - that certain rights that are protected absolutely either at national or international level are likely to allow for overprotection by the relevant Member State. Omega and the absolute protection of human dignity in Germany would be an example, as would the international protection against torture or degrading treatment.70 Given the close connection with the ECHR and the historical development of universal human rights based on human dignity after World War II (see supra ‘What is the normative basis of respect for EU fundamental rights by the Member States?’), these should not be regarded as rare examples, but the essence of the suggested rights rationale underlying the Charter, which would then tie with international law.

Developing a comprehensive EU fundamental rights doctrine

A differentiated approach to the EU (‘federal’) question

To briefly summarize, there are two different types of ‘federal’ questions: one concerns the EU interest for the purpose of Article 51 of the Charter, thus triggering the CJEU’s jurisdiction. The other relates to the EU interest in limiting a higher protection of certain rights as a matter of national or international law (Article 53). This leads to the question of whether the respective EU interests are different in substance, or merely different in degree. If we understand Article 53 as a true exception to the uniformity and maybe even the primacy of EU law as suggested supra (‘Conflating the powers with the rights rationale: a critique of Melloni’), there would be a case for arguing a difference in substance. Alternatively, there would at least be a difference in degree, with the effect that we have to attach less weight to the ‘primacy, unity, and effectiveness’ of EU law under Article 53 than under Article 51. In other words, the threshold for finding an EU interest that excludes Member State overprotection under Article 53 must be a higher one than the jurisdictional threshold for Article 51. Put differently, even if the CJEU has jurisdiction over the matter (which it is likely to have), it may well allow Member States to overprotect the rights of their citizens. Such an approach could be corroborated by drawing the following parallels, the full elaboration of which is beyond this article.

An analogy with EU minimum harmonization?

One possible parallel would be EU minimum harmonization. The reading of cases like Omega and Melloni here suggested exemplifies the need to distinguish between a lawful deviation from the principle of uniformity and maybe even EU primacy, and an unlawful breach thereof. This line-drawing exercise is known - but not fully explored either - when 70 Following the case of Mr R (note 61), the Court in Aranyosi (note 59) acknowledges respect for an

absolute prohibition of torture and inhuman or degrading treatment: this means squaring the strong primacy claim by Melloni with a place for Article 53 and higher rights protection in the EAW context. The Court thus relies on exceptions from mutual trust developed in asylum cases. See Joined Cases C-404 & 659/15, annotation by G Anagnostaras (2016) 53 C.M.L.Rev. 1675, 1691 et seq.

it comes to reviewing the legality of stricter Member State regulation within the reach of EU harmonization directives (Article 114(4) through 114(9), and EU minimum harmonization under Article 114(10) TFEU). Member States can either maintain existing or introduce new regulation that is stricter than harmonized EU law in terms of achieving a certain degree of, for example, environmental protection. Also, the EU legislature itself can explicitly provide for Member States derogating from (i.e. topping) the EU standard of, e.g., environmental protection, under the relevant harmonization directive (Article 114(10)). Minimum harmonization is a generally accepted and commonly used tool in EU law,71 even though it sits uncomfortably with the principle of uniformity, and arguably even with an absolute claim to EU supremacy.72

This can be illustrated by the Philip Morris case.73 One of the questions here was whether certain provisions of the Tobacco Products Directive 2014/40 that allow for higher standards of Member State regulation74 are compatible with Article 114 TFEU. The question turned specifically on whether any stricter national standard was only allowed to the extent it related to aspects of packaging that were not harmonized by the directive. The Court held that the directive would indeed have to be interpreted this way. Otherwise, this would amount to “undermining the harmonization effected by the directive with regard to the packaging of those products.”75 Taken in the abstract, this would appear to rule out stricter domestic standards in areas of EU law that are already fully harmonized. However, this would effectively do away with the possibility of stricter regulation in the Member States and thus the purpose of minimum harmonization. It would also put existing EU legislation into serious doubt.76

This is the same conundrum encountered supra (‘A workable interaction between Articles 51 and 53’) when discussing the Melloni case and its implications for Article 53 of the Charter. With regard to minimum harmonization, this has led German commentators to conclude that the threshold for limiting stricter national regulation cannot, therefore, be the minimum standard of protection introduced by the EU harmonization directive.77 The same logic must apply to Article 53 of the Charter: the threshold for limiting Member State overprotection of fundamental rights cannot automatically be the “harmonized” standard of protection by the corresponding EU fundamental right. So the approach suggested by AG Bot in Melloni78 should be taken with caution: an inquiry into which 71 For example, in the area of technical harmonization or food safety: examples by R Streinz,

Europarecht, (C.F. Müller) 8th ed 2008 at para 934, fn 285 and 286.72 R Streinz, ibid. para 926 therefore refers to “deviating from the principle of exclusive supremacy“

(English translation by the author). 73 Case C-547/14 Philip Morris Brands v Secretary of State for Health ECLI:EU:C:2016:325.74 Under Article 24(2) “this ... shall not affect the right of a Member State to maintain ... further

requirements ... in relation to the standardization of ... tobacco products, where it is justified on grounds of public health ....” Article 24(3) provides that: “A Member State may also prohibit a certain category of tobacco ... products, on grounds relating to the specific situation in that Member State and provided the provisions are justified by the need to protect public health ....”

75 Note 73 para 71. 76 As further illustrated by S Weatherill, Contract Law of the Internal Market, Cambridge 2016, 230 et

seq. with particular regard to the Services Directive [2006] O.J. L376/36. 77 R Streinz, Europarecht (note 71), para 931 with further reference.78 Supra note 48. Opinion 2/13 Accession of the EU to the ECHR ECLI:EU:C:2014:2454 reinforced a

formal reading of Melloni so that the standard of EU rights protection would appear to fall under the

part of EU law is meant to provide a definite EU standard, and which is not, should only be undertaken with regard to secondary law that does not touch upon fundamental rights. It can serve as a useful point of departure for determining whether or not EU law is exhaustive, which is particularly useful in the area of minimum harmonization (see infra ‘A differentiated approach to the EU (federal) question’). But there should remain more room for national divergence when EU regulation goes further and restricts fundamental rights. This is precisely why the standard of harmonization or EU fundamental rights protection is a minimum standard only: it does not by itself set the benchmark for diverging national standards to the extent they are stricter. Instead, the correct benchmark setting out the limits for stricter Member State regulation must be found in a combination of a more flexible approach to EU supremacy and an exception to the uniformity principle, weight against the importance of the overprotected right under the circumstances, and followed by some form of proportionality test that ensures the Member States are not using fundamental rights protection as form of discrimination in disguise.79

An analogy with international law obligations of the Member States predating EU law?

A second parallel could be drawn to Article 351 TFEU, which in its first paragraph makes an exception to absolute EU supremacy with regard to prior international law obligations of the Member States.80 Its second paragraph, which has been understood as expression of the duty of loyal cooperation,81 then requires Member States to eliminate any incompatibilities between their prior obligations and EU law. Advocate General Maduro suggested to read this as preventing the Member States from “frustrat(ing) or jeopardis(ing) the purpose of EU action.”82 This suggests a somewhat more flexible test than scrutinizing whether national law is in compliance with EU law. As seen supra, a lower benchmark for reviewing Member State action is necessary in areas where the supremacy principle does not strictly apply. Advocate General Maduro’s approach to Article 351 - even though not fully endorsed by the Court - could be used as a point of reference for fundamental rights protection, recalling that both the principle of supremacy and any exceptions thereto are flanked by the duty of loyal cooperation. The latter is “reciprocal”, i.e. ”by its very nature” binds Member States and the EU.83

Regarding the overprotection of fundamental rights this could be made useful in the following sense. Article 53 of the Charter clarifies that the EU must respect some form of deviation between national (including international) and EU standards. The duty of loyal cooperation requires that the Member States do not thereby frustrate or jeopardize the

supremacy principle. However, the underlying concern there is maintaining the CJEU’s exclusive jurisdiction over defining the scope of EU law vis-à-vis external actors, see also note 49.

79 E.g., by way of analogy with Article 36 TFEU. For the difficulties with defining any limit formulated as “not obstructing the functioning of the internal market“ in the context of minimum harmonization see W Kahl in: C Calliess & M Ruffert (eds), EUV/AEUV, 4th ed. 2011, Article 114 paras 56 et seq.

80 K von Papp, Solving Conflicts with International Investment Law from an EU Law Perspective: Article 351 Revisited, (2015) 42:4 LIEI 325, 327.

81 Opinion of Advocate General Maduro in Cases C-205/06 Commission v Austria 2009 ECR I-1301 and C-249/06 Commission v Sweden ECR I-1335 para 33.

82 Ibid. para 38.83 Case C-339/00 Ireland v Commission [2003] ECR I-11757 para 72.

purpose of EU action. This might not be the case if in an individual case a Member State Constitutional Court concludes that it needs to make an exception from the narrow circumstances under which it can refuse extradition.84 However, the duty of loyal cooperation also requires that the EU does not introduce obstacles that render the possibility for Member States to overprotect rights practically impossible - as would Melloni if the reference to primacy and “unity” is understood in an absolute sense.

An analogy with US fundamental rights law?

The third parallel could be US fundamental rights law. In this respect, it should be noted that the US Supreme Court can revise state court judgments on the basis of federal US law.85 It cannot review state court decisions based on state law. The obvious question arising is where to draw the line in cases where state law is inextricably linked to federal law: in favour of the remaining sovereignty of the states, or in favour of a citizen seeking judicial protection based on federal rights. In Murdock v City of Memphis86 Justice Miller held that the first was the case, so the Supreme Court’s review powers remain strictly limited to federal law. The basis for this effectively was a continued trust in the state courts.87 From the perspective of a proponent of state powers, this also means that a state court could ensure the non-interference by the federal judiciary by basing its decision firmly on state law: this is the origin of the independent and adequate state grounds doctrine, which shields a state court judgment from review by the US Supreme Court.88 The relevant presumptions work in such a way that it is left to the state court to explicitly clarify whether its decision was grounded in state law.89

For the area of fundamental rights this doctrine enabled the further development of rights protection in the 1970s by way of what has also been referred to as New Judicial Federalism.90 This development was characterized by re-focusing on the state Constitutional courts for more profound protection of fundamental rights under the state Constitutions.91 The US Supreme Court accepted that the independent and adequate state grounds doctrine in principle allowed for this.92 What is necessary, of course, is that there is no breach of federal law. However, reading nemo tenetur under State Constitutional

84 See the example of the German case of Mr R (note 61).85 Since Justice Story’s decision in Martin v Hunter’s Lessee, 14 U.S. (1 Wheat) 304 (1816) this is based

on a purposive reading of Article III US Constitution, which vests the judicial power of the United States regarding “all cases ... arising under this Constitution and the Laws of the United States ... in one supreme Court”.

86 87 U.S. (20 Wall.) 590 (1875). 87 “It is not to be presumed that the State courts, where the rule is clearly laid down ... on the Federal

question, and its influence ... seen, will disregard or overlook it.” 87 U.S. (20 Wall.) 590, 632 (1875). 88 Eustis v Bolles, 150 U.S. 361 (1893). Crucially, the state law basis must not be in breach of federal law.89 Michigan v Long, 463 U.S. 1032 (1983): to rebut a presumption that its decision is also based on

federal law, the state court must explicitly state that it is based on state law alone. This precludes review on the basis of federal law, which Justice O’Conor justified historically (independence for state courts) and pragmatically (case load of the US Supreme Court).

90 J.A. Gardner, State Constitutional Rights as Resistance to National Power, (2003) 91 Georgetown L.J. 1003, 1031 with further references.

91 W.J. Brennan, State Constitutions and the Protection of Individual Rights, (1977) 90 Harv. L. Rev. 489, 498.

92 City of Mesquite v Aladdins’s Castle, Inc., 455 U.S. 283, 293 (1982).

law so as to exclude illegally obtained evidence while the same would be allowed under federal law might be considered such a breach.93 Nevertheless, as long as the discrepancy between federal and state law can be explained by the states simply providing for a wider protection of civil liberties as against the government it would not amount to such a breach: this is because the rights contained in the US Constitution are regarded as minimum protection only.94 So the basis for individual states overprotecting fundamental rights is an independent and adequate basis in state law, plus the recognition that federal rights are providing a floor only.

In EU law, such a theory would work as well, and there are indeed hints at a very similar approach in the Opinion by Advocate General Cosmas in the case of Sievers and Schrage.95 This implicitly presumed a carve-out from the supremacy principle where EU law left room for Member States to provide a more robust rights protection (in that case, anti-discrimination).96 For this theory to work in practice, it would be necessary, however, to treat the Melloni judgment with caution as suggested above, and take Article 53 at face value, with EU fundamental rights as a minimum standard only.

The rights rationale as workable basis for EU internal market, citizenship, and private law

In this last part it will be argued that EU fundamental rights law should in principle be based on the rights rationale. Appropriate consideration should be given to powers as a mere limiting factor, protecting the Member States (or, as the case may be, other private parties) against an over-expansive reach. This would allow for a coherent doctrine that ties with internal market law, EU citizenship, and private law.

EU fundamental rights and the internal market

There is a traditional link between EU internal market law and fundamental rights that arises from the case law by which the “scope of EU law” – and thus, the applicability of EU fundamental rights to acts of the Member States – is defined by the fundamental mar-ket freedoms.97 While fundamental rights do not necessarily go in tandem with funda-93 Contrast the narrow protection under the 5th Amendment by the Supreme Court in Harris v New York,

401 U.S. 222 (1971) with the much more robust one under the Californian Constitution by the California Supreme Court: “We pause to ... reaffirm the independent nature of the California Constitution and our responsibility to separately define and protect the rights of California citizens ...“ People v Disbrow, 16 Cal. 3d 101, 113 (1976).

94 Gardner, note 90 at 1030 et seq. Colliding rights of individuals, for example in the case of demonstrations on privately owned land, cause difficulties. Compare Lloyd Corp. v Tanner, 407 U.S. 551 (1972) with Robins v Pruneyard Shopping Centre, 153 Cal. Rptr. 854 (1979), where the Californian Supreme Court overprotected free speech under the state Constitution on the basis that this could still be reconciled with the minimum protection of property under federal law.

95 Supra note 62. German law included part-time workers retroactively into an occupational pension scheme. Despite going thus beyond Article 119 EEC, the Advocate General suggested “... the national provision ... can ... in a legally valid way stand as an independent basis for the plaintiff’s claim .... There is thus neither a question of contradiction ..., nor of a collision ...” AG Opinion in Joined Cases 270/97 and 271/97 Sievers and Schrage [2000] ECR I-929 at para 69 (English translation by the author).

96 For a more detailed discussion see K von Papp, note 33, pp 297 et seq., 302 et seq.97 Supra note 18.

mental freedoms,98 it is suggested that the rights rationale accounts best for the economic theory underlying the EU as an organization. Instead of reducing people to their role as factors of production, the rights rationale allows for a broader consideration of their so-cial situation, as the Carpenter case illustrates.

The Court held that the threatened deportation of the wife of a British provider of advertising services “would be detrimental to their family life and, therefore, to the conditions under which Mr Carpenter exercises a fundamental freedom”.99 The Court was thus looking at the factual scenario from the perspective of the individual with an interest in limiting government power generally, not addressing the question of which level of government specifically (the EU or the UK) would be competent to regulate immigration. This case has important ramifications for both fundamental rights and internal market law since it provides the doctrinal basis on which the EU – limited in its activities by the principle of conferred powers – can still engage in human rights protection: it can do so by defining the compliance with EU fundamental rights as one of the benchmarks that must be met by Member States when imposing restrictions on cross-border (economic) activity.100

The Court followed a similar logic in the context of the free movement of goods. In Karner101, the question was whether rules regarding the advertisement of insolvency auctions constituted a trade barrier. The measure fell under the Keck exception and hence did not restrict the free movement of goods. Under a strictly doctrinal approach, there was thus no need to move on to the question of justification. However, while the Advocate General reviewed the compliance with EU fundamental rights in the alternative, the Court did so in addition to the review of the traditional Keck formula. Applying a relaxed standard of scrutiny, it concluded that the restriction of commercial speech was proportionate under the circumstances.102 The decision has been criticized for overly expanding the scope of EU fundamental rights,103 to the detriment of Member State sovereignty.104 But Karner simply applies the same rights rationale underlying the Carpenter case: to be relieved from their duties under fundamental freedoms law, Member States must show that their measure is fully justified, including conformity with EU fundamental rights. In this sense, Karner constitutes at least a partial retreat from a pure powers rationale. Moreover, it was decided relatively close in time to the Steffensen case that further developed the scenario in which Member States were said to be ‘implementing’ EU legislation.105

98 See, in particular, the example of the right to strike in Viking and Laval (note 62) as well as in Case C-112/00 Schmidberger v Austria [2003] ECR I-5659; or human dignity in Omega (note 63).

99 Case C-60/00 Carpenter v Secretary of State for the Home Department [2002] ECR I-6305 at para 39.100 For further discussion see K von Papp (supra note 33), 149 et seq. 101 Case C-71/02 Karner Industrie Auktionen GmbH v Troostwijk GmbH [2004] ECR I-3025.102 Advocate General Alber had arrived at the opposite conclusion, noting that the restriction here

concerned a true fact, which required a stricter standard of scrutiny.103 See, e.g., T Tridimas, General Principles of EU Law, 2nd ed. (Oxford) 2007, 40.104 For an argument that Karner should be treated as a purely internal case such as Kremzow (supra note

20), see J Stuyck, Annotation to Case C-71/02 Karner (2004) 41 C.M.L.Rev. 1683, 1696. 105 Case C-276/01 Steffensen [2003] ECR I-3735 (decided by the same Chamber as Karner: EU

fundamental rights as an additional hurdle for the legality of Member State acts; in Karner by adding to the Keck criteria; in Steffensen by adding to the principles of effectiveness and equivalence. See K von

Åkerberg Fransson106 illustrates the unfitness of a pure powers rationale post-Lisbon. Since the sole connection to EU law was the VAT element on tax illegally withheld, the CJEU relied on the very general assumption that Sweden in prosecuting the case “intended to implement the obligation imposed on the Member States by the Treaty to impose effective penalties for conduct prejudicial to the financial interests of the European Union.”107 This appears to give up on any serious attempt to corroborate the judicial interference by grounding it in EU competences.108 Only one day later, the Second Chamber of the CJEU effectively followed suit by adding a further element in order to establish the EU (jurisdictional) interest in a matter only partially covered by EU legislation: moving beyond previous case law, it is now sufficient that “(...) there are specific rules of EU law on the matter or capable of affecting it.”109 Therefore, it is no longer decisive whether there is a formal EU competence over the relevant subject area, nor whether the Member States are implementing a specific EU provision: the potential impact of an EU rule on the case can suffice.

It is necessary to take note of this development and acknowledge that the EU interest in subjecting Member state acts to judicial scrutiny is typically high, with the effect that the jurisdictional threshold is low. This is not necessarily problematic. Although the purpose underlying the powers rationale is to safeguard the federal division of powers between EU and Member States (see supra ‘Why EU fundamental rights protection against the Member States?’), and hence Member State sovereignty, the respect of sovereignty is not an end in itself:110 the ultimate purpose of the division of power is to clearly confine government(s) to the benefit of citizens. So despite construing the “scope of EU law” in Article 51 of the Charter broadly, any remaining limits to the CJEU’s jurisdiction should ultimately be in the interest of EU citizens: sovereignty in the sense of national identity will be preserved so as to ensure a lower level of government with traditionally closer ties

Papp, Die Durchsetzung der Gemeinschaftsgrundrechte gegenüber den Mitgliedstaaten, Europäisches Wirtschafts- und Steuerrecht (EWS) 2009, 216, 219 et seq.

106 Supra note 20. The question was whether ne bis in idem applied to a case where Swedish authorities imposed an administrative fine and prosecuted Mr Fransson for tax offence, based on the same facts. The Court answered this in the affirmative, based on the relevant EU Tax Directives and the general duty of loyal cooperation: “tax penalties and criminal proceedings for tax evasion ... because the information concerning VAT ... was false, constitute implementation of ... EU law....” (ibid. para 27). It did not matter that Sweden in executing its own laws was not transposing the EU Tax Directives.

107 Ibid. para 28. This assumption can hold only if it can be corroborated by objective factors. The Court presented these as the Member States’ EU obligations under the Tax Directives, and Articles 4(3) TEU and 325 TFEU. Therefore, the applicability EU fundamental rights can be justified by EU financial interests, which has recently been corroborated by Case C-42/17 M.A.S. (note 69) para 52.

108 Although formally, it is insisted that “[t]he mere fact that such exercise of public authority [by the Member State] has its ultimate origin in Union law is not of itself sufficient.” Opinion of AG Cruz Villalón in C-617/10, Åkerberg Fransson at para 40.

109 Case C-87/12 Ymeraga v Ministre du Travail ECLI:EU:C:2013:291 para 41 (emphasis added). In assessing the applicability of EU fundamental rights, the Court considered whether a Member State legislating on free movement meant to implement an EU directive covering third country nationals - an inquiry into the purpose of legislation. Compare also Case C-309/96 Annibaldi [1997] ECR I-7493.

110 R Schütze, From Dual to Cooperative Federalism, Oxford 2013, 47, 56 et seq. (division of powers as ‘functional’ dimension of federalism). In the US context, see the quote by Justice Kennedy in Bond v United States, 564 U.S. 211 (2011): “State sovereignty is not just an end in itself. ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power’.”

to the citizens. Carpenter is problematic in this respect, not because of a broad understanding of family rights, but because of its expansive approach to the freedom to provide services.111 So Carpenter should be understood more narrowly. If the freedom to provide services includes “attractive” domestic conditions, this approach could be limited to favourable living conditions in the sense that EU fundamental rights, in particular the respect for family life, are guaranteed.

EU fundamental rights and EU citizenship

The Court’s approach in Carpenter and Karner comes close to the one suggested by Ad-vocate General Jacobs in Konstantinides:112 an EU citizen who moves across borders must be able to rely on EU fundamental rights. The Court has never adopted this ap-proach as a matter of EU fundamental rights law. Under the case law, it is not simply the status of a migrating EU citizen that triggers the applicability of EU fundamental rights. Rather, some form of economic activity must still be present (hence the link with funda-mental freedoms and the internal market, addressed supra ‘EU fundamental rights and the internal market’). Nevertheless, there is one stream in EU citizenship law that ties very neatly with the rights rationale. This is the Zambrano case and its progeny, which has been referred to as a “safety valve“, making up for a potential lack of rights protection under EU law.113 In essence, the right to family life here is transformed into the “substance of rights” of minor EU citizens: children who unlike their parents are EU citizens cannot de facto be forced to leave the EU because their (formerly working) father is being denied a right of resid-ence. One can read Zambrano formally as insisting upon a minimum protection of EU citizens in the sense that they must have the real possibility to remain on EU territory if they so wish - with the consequence that this increases the rights enjoyed by third country nationals who care for them. Alternatively, however, one can understand Zambrano as fostering the right to remain united as a family: the EU interest at stake would have more substance than a mere citizenship shell, which raises the question of what rights are suffi -ciently connected with citizenship. Instead, the substantive EU value clearly recognized as potentially outweighing Member State interests would be the EU fundamental right to respect for private and family life.

Such a reading of Zambrano can be justified by understanding the rights rationale underlying Carpenter as continued under the “cloak” of citizenship. This can be corroborated by subsequent case law, where the Court explicitly relied on Carpenter.114

111 The very vague formula of making the fundamental freedom “less attractive” originally applied only to indirectly discriminatory measures, see K von Papp (supra note 33), 142 et seq., 149 et seq.

112 Note 24. See also Case C-617/10 Åkerberg Fransson, annotation by E Hancox, (2013) 50 C.M.L.Rev. 1411, 4125 (observing a potential “revival” of the AG’s suggestion in Konstantinidis). The potential advantage of the Charter would be to give a precise shape to fundamental rights that may come with EU citizenship. Compare the argument by Justice Black in the US context, supra note 27.

113 Supra note 24; see S I Sánchez (note 49), (2012) 49 C.M.L.Rev. 1565, 1592 et seq. Compare D Kochenov, On Tiles and Pillars: EU Citizenship as a Federal Denominator in D Kochenov (ed), EU Citizenship and Federalism: The Role of Rights, Cambridge 2016 (arguing for a more structural role of EU citizenship).

114 Case C-459/99 MRAX v Belgian State [2002] ECR I-06591 para 53. See also Case C- 127/08 Metock (supra note 39) para 56: “Even before the adoption of Directive 2004/38, the Community legislature

Despite a narrower line of cases,115 the rights rationale has remained of crucial importance in the citizenship context. The CJEU used the same reasoning as in Carpenter for a new, more generous interpretation of the Citizenship Directive that does not require the spouse of an EU citizen to show lawful residence in one Member State before accompanying the EU citizen to another Member State, with the argument that “if Union citizens were not allowed to lead a normal family life in the host Member State, the exercise of the freedoms they are guaranteed by the Treaty would be seriously obstructed.”116 The problem with this open-ended formula is that it seems to capture any shortfall in the full social well-being of an EU citizen, since this might then translate into an obstacle to free movement.117 This can result in the national courts having to carefully assess the individual circumstances of a case instead of simply concluding that a right of residence ended the moment an EU citizen applied for benefits.118

This is where the powers rationale can still serve as a stopping point. In the citizenship context, it can be equated with the doctrinal view of citizenship as “legal creation” that is underlying a separate line of cases.119 Whereas this view is not shared here, the concern for respecting Member States is. However, this can be done by adopting the rights rationale as a coherent doctrinal basis for protecting EU fundamental rights. The powers rationale (or, legal creation theory) would merely serve as an explanation why these existing rights may not be enforced by the CJEU in a specific case. This would tie with the suggested natural law thesis, and it would limit the otherwise open-ended formula enabling an EU citizen to claim family reunification or welfare benefits on the basis of the effectiveness of free movement rights. For example, given that the Member States remain responsible in the field of social policy, EU law should impose access to welfare only in scenarios in which there is a real risk that an EU citizen and dependent family members could no longer lead a life in human dignity, or - more broadly - in line with EU fundamental rights. This is essentially what the German legislation at stake in the Dano case did: clarifying that its purpose was to enable a life in human dignity, excluding those “foreign nationals who have entered national territory in order to obtain social assistance ....’120 From an EU

recognized the importance of ensuring the protection of the family life of nationals of the Member States in order to eliminate obstacles to the exercise of the fundamental freedoms....”

115 See, e.g., Cases C-256/11 Dereci et al v Bundesministerium für Inneres [2011] ECR I-11315 paras 50 et seq.; C-40/11 Iida v Stadt Ulm ECLI:EU:C:2012:691 paras 66 et seq., 78 et seq.; and C-333/13 Dano v Jobcenter Leipzig ECLI:EU:C:2014:2358, where the Court took a narrow approach to EU citizenship, coupled with a refusal to engage in EU fundamental rights review: it denied a young Romanian mother’s claim to equal treatment regarding basic social benefits under a hybrid German law that had merged jobseekers’ allowances and social assistance without connection to the job market.

116 Case C-127/08 Metock (supra note 39) para 62. Contrast Case C-109/01 Secretary of State v Akrich [2003] ECR I-9607 paras 53 et seq.

117 See Case C-140/12 Brey (supra note 40) paras 70-71: a German pensioner in Austria applied for a benefit in order to top-up his retirement income. The CJEU held that “the margin for manoeuvre [of the Member States] must not be used by them in a manner which would compromise attainment of the objective of Directive 2004/38, which is ... to facilitate and strengthen the exercise of Union citizens’ primary right to move and reside freely ..., and the practical effect of that directive ...”

118 Ibid. paras 76-80.119 D Thym, Frontiers of EU Citizenship: Three Trajectories and their Methodological Foundations in D

Kochenov (note 113). See the case examples at note 115.120 Book XII of the German Social Code (SGB XII), Section 23(3).

fundamental rights point of view, it may have been questioned whether the protection of human dignity can be thus limited to German nationals. Since the Omega case it is clear that human dignity is also very robustly protected as an EU fundamental right, which goes hand in hand with the historical evolvement of international human rights (see supra ‘What is the normative basis of respect for EU fundamental rights by the Member States?’). This could function as a limited exception to the otherwise accepted interest of the Member State to control their exposure in the field of social policy. In Dano, this could have led to scrutinizing the amount claimed by Mrs Dano: under the particular circumstances, did the denial of the basic amount claimed put her at real risk of leading a life without human dignity as an EU-wide standard? This would have made more sense than disposing of the fundamental rights issue by holding that the jurisdictional threshold was not met.

EU fundamental rights and private law

The instances in which EU fundamental rights protection has repercussions for private law relationships should be looked at separately.121 EU law, originating from international law, binds the Member States, not private parties. Therefore, the question of whether a private party is bound by EU law requires further analytical steps. This may simply amount to confirming that there is a sufficiently precise provision of EU law. In the case of secondary law some well-known additional criteria need to be satisfied.122 Some EU law obligations, especially in internal market law, derive directly from primary law. Here, the question becomes whether the Treaties themselves - in particular, the fundamental freedoms - are sufficiently precise and, under the circumstances, binding upon private parties. This further analysis needs to satisfy both the direct effect of EU law and its hori-zontal application. At times, however, these are mingled in one single step, which has made it difficult to clearly see the remaining role for EU fundamental rights.

For example, the AMS case123 concerned a provision of the French Code du travail, which allowed for non-permanent workers to be excluded from the count when establishing whether a business was under the relevant EU Directive obliged to formally provide for workers’ representation. The Advocate General started from the right to information and consultation of workers (Article 27 of the Charter), and suggested to treat the issue in a way similar to Mangold. By contrast, the Court started with the fact that in defining “em-ployee” too narrowly, France had mis-implemented the relevant directive. As there is, in principle, no horizontal direct effect, the question became whether, exceptionally, this could be overcome by way of analogy with Kücükdeveci. The Court held that it could not. Although the case was governed by EU law in the sense of Åkerberg Fransson124, the fundamental right at stake was not sufficiently precise on its own, and could therefore not displace national legislation. The Court was clearly driven by the aim to secure an area of social and labour policy where the Member States remain free from constraints of EU law.125 Less clear is the doctrinal basis used by the Court. 121 See supra note 19.122 See, e.g., P Craig and G de Burca, EU Law: Text, Cases and Materials, Oxford 2015, 280 et seq.123 Case C-176/12 AMS (note 38).124 Supra note 20.125 Case C-176/12 AMS (note 38) paras 48-49.

One reading of AMS is that despite Mangold, the Court is not prepared to override Mem-ber State legislation unless the EU law constraint is not only a fundamental one, but also one that within the hierarchy of rights has a traditionally strong rank.126 This could be cor-roborated by considering equality rights – in contrast to social rights – as reinforced by EU legislative powers (Article 157(3) and Article 19 TFEU). This would mean going back to a pure powers rationale. Another reading would be to see AMS as the logical se-quence to cases following Defrenne III:127 the Member State’s obligation under EU law was simply not “precise” or “specific” enough to warrant judicial scrutiny by the CJEU in a situation that was regulated by national private law. This would mean accepting that the Court equates the test for finding direct effect with the jurisdictional threshold for con-cluding that a situation is governed by EU law for the purpose of EU fundamental rights review of Member State acts. As indicated supra, this is not advisable.

Therefore, a third reading is suggested: even if one were to start - as did the Advocate General - with the EU fundamental right, Article 27 of the Charter only applies within the scope of EU law.128 The powers rationale remains relevant with regard to the jurisdic-tional threshold. So the first question becomes whether Article 51 of the Charter is satis-fied. It is, because the matter is governed by EU Directive 2002/14.129 The second ques-tion is whether the private employer is bound by the relevant workers’ rights. It is only at this stage that the specificity or precision of EU law becomes relevant. In this respect, the Advocate General and the Court were in disagreement as to whether the EU Directive or the fundamental right (Article 27) is decisive.130 The crucial issue beyond direct effect, however, then becomes the possibility of the horizontal application of the relevant EU rule to private parties.131 This means considering whether, exceptionally, the rights of in-dividuals need to be protected vis-à-vis private power in the same way as against public power. This issue can only be addressed from a rights perspective, which needs to com-plement the analysis so far.

From this perspective, an analogy to the case law regarding the horizontal applicability of the fundamental freedoms becomes obvious. The question should have been whether the relevant workers’ rights apply to a private company which has in place rules “of any 126 So D Chalmers, G Davies, M Monti, European Union Law, 3rd ed. Cambridge 2014, 323 with regard to

Case C-382/10 Dominguez. Similarly, the protection of human dignity seems to outrank social rights, and there might still be an “economic bias”, S. Weatherill, From Economic Rights to Fundamental Rights, in: S: de Vries, U. Bernitz & S. Weatherill (eds), The Protection of Fundamental Rights in the EU after Lisbon, Oxford 2013 (Studies of the Oxford Institute of European and Comparative Law, Vol. 15), 11, 26 et seq.

127 Case 149/77 Defrenne III (note 19).128 By contrast, the right not to be discriminated against on grounds of age has the standing of a Treaty

provision with direct effect and is thus always within the scope of EU law. The Court acknowledges this when contrasting Article 27 with Article 21 of the Charter, Case C-176/12 AMS (note 38) at para 47.

129 Directive of the European Parliament and Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community [2002] O.J. L80/29.

130 Contrast the Opinion in Case C-176/12 AMS (note 38) at paras 73-80 with Judgment of the Court (ibid.) at paras 45-49.

131 This issue was only addressed in the Opinion of the Advocate General in AMS (ibid.) at para 77 (answering it in the affirmative). See also A Young, Horizontality and the EU Charter, U.K. Const. L. Blog (29 January 2014) (available at http://ukconstitutionallaw.org).

[other] nature aimed at regulating in a collective manner gainful employment and the pro-vision of services;”132 or whether, given that working conditions are sometimes regulated by public and sometimes by private law, “limiting [their] application ... to acts of a public authority risks creating inequality in its application.”133 Acknowledging the overall size and economic weight of a company such as AMS in the specific sector and under the spe-cific circumstances of the French market could, in the individual case, warrant horizontal application of rights, as long as these are of a “mandatory” character.134 It is this latter cri-terion which could then give rise to a discussion of whether the social rights of workers are caught or not.

Some Member States may provide an even higher protection to workers’ rights, including against smaller companies. So Member States may be “overprotecting” workers’ rights, as was the situation in Sievers and Schrage.135 There, the issue was whether the economic function of then-Article 119 EEC (leveling the playing field between companies), or its social function prevailed in a situation where they came into conflict with each other. The Court held that the social function prevailed, and that Germany was free to overprotect female workers by applying the Defrenne case law retroactively.136 Following this view, it is arguable that there is an EU interest in effective rights protection, including the social well-being of EU citizens. This interest as an objective EU value could even give rise to an exceptional duty to protect EU citizens against social harm.137

Conclusion

The incoherence of EU fundamental rights law is mainly due to competing underlying ra-tionales that focus on either rights or powers. Despite case law to the contrary, the EU in-terest underlying the jurisdictional threshold of Article 51 is a different one than the EU interest limiting Member State overprotection of rights under Article 53. A more coherent EU rights doctrine could be developed on the basis of the rights rationale, complemented by due consideration of powers as stopping point for strict judicial enforcement of EU rights against the Member States by the CJEU. The origin of the binding nature of EU fundamental rights lies in pre-Constitutional or natural law. Acknowledging this would position the EU as an organization of and for its citizens, which might also help easing the remaining tension between EU and international human rights law.

132 Case C-281/98 Angonese and Cassa di Risparmio di Bolzano [2000] ECR I-04139 at para 31.133 Ibid. at para 33.134 Ibid. at para 34. In legal theory, fundamental rights can be protected against private power only if

understood in a more objective (value-based) rather than purely libertarian sense, see R Alexy, A Theory of Constitutional Rights, Oxford 2002, 352, 354 et seq. This objective value might culminate in a duty of the state to ensure effective rights protection, including against private parties.

135 Supra notes 95 and 96. 136 For a more detailed discussion see K von Papp, note 33, pp 291 et seq.137 Note 134.