Thou shalt have no other courts before me

von Walther Michl

Opinion 2/13 has already spurred outrage throughout the blogosphere. I concur with the statements published on this site: none of the Court’s arguments is compelling, some can be attributed to its exaggerated cautiousness, some, however, are utterly ill-founded. My contribution will focus on the ECJ’s statements under the caption ‘The specific characteristics and the autonomy of EU law’ (starting at marginal number 179) which I consider to be those with the most glaring blunders and misapprehensions.

Article 53 ECHR and Article 53 CFR

First of all, I absolutely fail to see how on earth the alleged relationship between Article 53 ECHR (European Convention on Human Rights) and Article 53 CFR (Charter of Fundamental Rights of the European Union) could play any role in the legal assessment of the accession agreement. And I feel in good company since Advocate General Kokott’s exhaustive opinion does not even mention the issue. The Court bases its argument on the Melloni judgment which underscored what all EU law experts had already known since the decision in Internationale Handelsgesellschaft (1970): no national law of any rank, not even constitutional law, can break the primacy of European law in order not to jeopardise its primacy, unity and effectiveness. Only when the Member States are implementing EU law (Article 51(1), 1st sentence) but their actions are not completely determined by it can there be a field of application for Article 53 CFR at all. The simultaneous applicability of both the Charter and national fundamental rights is the crucial prerequisite for the provision to have any impact as a comparison between Melloni and the (in)famous Akerberg Fransson decision shows ...

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