The lecture was held online on 26 May 2023, and students from the State University of Northern Parana- UENP- Brazil participated in the event.
My presentation was structured as follows:
I. General Introduction
II. Harmonization of the standards of protection of human rights
III. Dialogue between Courts – ways
IV. New challenges. “The growing interplay between the Convention and EU law” reflected at the domestic level
V. Tensions between Courts within the EU
VI. Conclusions. The need for strengthening of the dialogue in the EU
I mentioned in the opening that the presentation is part of a project run by the Central European Professors’ Network, coordinated by the Central European Academy. The project focuses on analyzing the future of the European Union (EU) and the internal processes within the EU. The main question we are researching is “What future for the EU?” and our goal is to examine how individual Member States, and particularly individual institutions, can work together. We will also explore what processes and institutions might need to be reconsidered, such as redefining EU and Member State competences, revising the principle of pre-emption, and shifting the role of EU agencies towards networking.
I explained that in the context of my research proposal, I structured my presentation to explore the role of constitutional justice as a “centripetal force” for the future coexistence in the EU, with a particular focus on the protection of human rights within the EU.
In the Introduction of the presentation, I explicated that fundamental rights are protected within the EU at the national level by the constitutions, at the supranational level by the Charter, and at the international level by the Convention of European Rights and Fundamental Freedoms (and other Treaties). Each “level” has its own “guardian”: the European Court of Human Rights, the European Court of Justice, and the constitutional courts. I briefly presented the Constitutional Court of Romania and the institutional architecture in terms of constitutional review in the other states of the EU.
In the Section 2 – Harmonization of the standards of protection of human rights, also quoting Grainne de Burca and Katharine Young, in the sense that “the meaning of human rights has always been susceptible to multiple and sometimes conflicting interpretations”, I underlined that this statement becomes even more relevant when looking at a regional protection system like the EU, where multiple layers (national, supranational, international) interact based on loosely defined rules, or rules influenced by the evolving interpretation of different types of courts. Furthermore, I offered some perspectives on how the European catalogues of human rights are to be applied to avoid conflicts and ensure that individuals obtain the most effective protection possible. Thus, I referred to the discussions at the Conference of European Constitutional Courts, which was hosted in 2021 by the Constitutional Court of the Czech Republic. The topic of the conference was “Human Rights and Fundamental Freedoms: The Relationship of International, Supranational, and National Catalogues in the 21st Century”. I also discussed the situation in Romania, focusing on the correlation between Article 11, 20, and 148 of the Constitution.
In the Section 3 – Dialogue between Courts I expressed the opinion that to function as a centripetal force, the protection of human rights requires the harmony of the courts. I presented landmarks of the dialogue through preliminary reference (as concerns European Court of Justice – ECJ) or advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols (as concerns European Court of Human Rights – ECtHR). I also discussed the dialogue within specific international structures, such as associations of constitutional courts, the Venice Commission, and the collaborating networks established at the level of the ECtHR and the ECJ. Moreover, I highlighted the dialogue within multilateral, bilateral meetings, and other events, referencing the case law of the ECtHR and the ECJ by constitutional courts and national judges. I exemplified with the situation in Romania, where thedirect dialogue with the ECJ was open in the first year of EU membership – January 2007, when a lower court, the Tribunal of Ilfov County, addressed the first question for a preliminary ruling in the Jipa case C – 33/07. The Constitutional Court of Romania also opened a dialogue with the ECJ in December 2016 (case C-673/16, Coman and Others). In relation to the last case, I mentioned important recent developments that perfectly support the idea of “layers of protection that interact and complement one another” in terms of the functioning of the catalogue of human rights within the EU. This refers to the ECtHR issuing a ruling in the case of Buhuceanu, Ciobotaru, and 20 other families against Romania, where Romania must adopt a legal form of recognition of same-sex families.
In the Section 4 – New challenges. “The growing interplay between the Convention and EU law” reflected at the domestic level, I explained that most challenges are determined by mixed reports, which involve all three categories of courts: national, the ECtHR, and the ECJ. Issues may arise for the domestic courts of the EU Member States when they have to combine fundamental rights under EU and Convention law which set different protection levels. In such a situation, it was held in an opinion that it is safe to assume, as the result of a combination of Article 52(3) of the EU-Charter and Article 53 of the Convention, that domestic courts should apply the higher of the two levels. However, in practice, this is not easy to achieve, implying a genuine methodology of constitutional interpretation, based on a deep knowledge of both the CJEU and ECHR case law. I also discussed how the topic of judicial dialogue is one of the most frequently addressed in the recent years.
Section 5 – Tensions Between Courts within the EU was dedicated to the discussions concerning the primacy of EU law in terms of the ECJ and the concept of constitutional/national identity. I emphasized that the assertion of the primacy of EU law by the ECJ has created and still creates tensions in the relationships with the constitutional courts of the Member States. These tensions are enhanced at various times, including the intervention of other “ingredients” than the preservation of formally declared national sovereignty and /or constitutional identity. I explored the concept of constitutional and national identity, drawing on doctrinal and jurisprudential developments, and provided examples from the case law of the ECJ and the Constitutional Court of Romania.
In the Conclusions I emphasized the need for strengthening the dialogue of the judges – a key for protection/harmonization of the protection of human rights. Legal certainty and the preservation of the constitutional status of both the EU and the Member States, and their integration, imply the use of the same language of constitutional law, both on the protection component of fundamental rights.
From the perspective of the scope of the Project, an issue of reflection is whether we should rethink the legal framework/mechanisms of the dialogue of the courts.
As Brazil is a federal state, I inquired about the relationship between states and authorities within the federation. Specifically, I was interested in the tensions, dialogues, and coherence involved. During the presentation, debates highlighted the significant difference between the Brazilian federation and the EU as a structure of states. The issues raised by the coexistence within the EU, which are determined by the diversity and traditions of the Member States, are practically non-existent in Brazil as a federal state.
The debates within this event substantiate, together with other findings from the research that led to the elaboration of the book chapter taught in the project, my conclusion that from a constitutional point of view, the EU is an original construction with a unique diversity that distinguishes it from any current federal structure. Unity in diversity is the official motto of the EU, suggesting a centripetal tendency towards unity but reflecting unattainable differences in both state entities and constitutions. In this type of constitutional structure, which is in continuous development, perhaps the key is precisely to abandon the classic classifications of state structures. Not every state structure is a geometrical construction, and not everything can be put into traditional/conservative forms and formulas. The dilemmas of the constitutional review and the dispute of priority versus primacy in the EU come in large part from the “captivity” in such a stereotypical vision, with the attempt to place the national and European legal order in the paradigm of the classic Kelsenian pyramid.
