Blending National Autonomy into the EU Charter. A Reply to Leonard F.M. Besselink

von Daniel Thym

I attended this year’s FIDE conference and my recollection of the plenary debate contrasts with Leonard Besselink’s account. I remember a constructive (and somewhat dull) atmosphere, where representatives from the ECJ were eager to emphasise that they are not about to replace national courts. I cannot remember prominent panelists from national courts expressing fundamental criticism beyond the subtle disagreement about the Melloni and Åkerberg Fransson judgments, which has been around for more than a year and which is certainly justified (I shall come back to this).

Irrespective of who said precisely what in Copenhagen, my vision of the structural shifts in the interaction of national constitutions and the EU Charter differs respectfully from the position put forward by Leonard Besselink. I do not agree that national human rights are being ignored and that the constitutive power has shifted to the European Union. It seems to me that the situation is not quite as dramatic and I will suggest, to the contrary, that the ECJ is moving in the right direction. My objection concerns three aspects: the Melloni judgment, Leonard’s counterfactual hypothesis and the ECJ’s function as a supreme court. While the first objection is rather technical, the remainder highlights the potential of national autonomy in the application of the Charter.

The Outcome of the Melloni Judgment

I concur with Leonard Besselink that the Grand Chamber did not leave much leeway for national human rights in Melloni, thereby effectively obliging the Spanish Tribunal Constitucional to abandon its interpretation of Article 24 of the Spanish Constitution. In contrast to Leonard, I would not blame the ECJ for this outcome ...

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