Mr. President, Minister, esteemed fellow justices, dear friends and colleagues. First of all I take this opportunity to thank the Constitutional Court of Hungary for its kind hospitality in inviting me to attend this prestigious conference and for giving me the opportunity to address you here this morning.
I would like to start by reminding you of a basic truth that is at once self-evident and fundamentally important. The European Union is not an empire. It is a voluntary Union of sovereign Member States. Those States have not renounced their inherent national sovereignty but have pooled a significant part of it in order to create a new sui generis legal order that belongs to them all collectively. Indeed, as the Court of Justice made clear in its recent Wightman judgment - a preliminary ruling case from a Scottish court concerning the revocability of a Member State's notification under Article 50 TEU of its intention to leave the Union - Member States join the Union of their own free will and where they activate the mechanism for leaving the Union, or withdraw any such notification, they exercise their sovereignty in making those choices.
Each Member State has, whilst retaining ultimate ownership of its own national sovereignty, conferred part of that sovereignty on the EU institutions in order that certain competences may be exercised supranationally in the interests of all Member States, including the Member State concerned. To take one obvious example, the EU single market would not be possible in the absence of that sharing of sovereignty. The primacy of EU law does not give rise to the imposition of "foreign" rules on any Member State. Rather, it is the consequence of a free choice made by each Member State to belong to the European Union, on the basis that membership is in the national interest.
In that context, my contribution today will focus on the relationship between, on the one hand, the shared values on which the European Union is founded and which reflect our common European identity, and, on the other hand, the distinctive national identity of each of the Union's Member States. My aim will be to demonstrate, by reference to the case law of the Court of Justice of the European Union, that far from supplanting the identity of its Member States, the Union's common identity is itself based on the values that are common to those national identities and that our shared identity in fact underpins and reinforces respect for those common values, and thus for those national identities.
One of our shared European values is respect for individual privacy. In the absence of evidence giving rise to suspicions that someone has committed - or will commit - a crime, every person is free to go about his or her business safe in the knowledge that his or her private communications are just that - private. Yet, Member State authorities have a legitimate interest in carrying out covert surveillance in certain circumstances, in order to fight serious crime, not least in the light of the terrorist threat with which we are, unfortunately, all too familiar. How can we reconcile these competing values?
In that regard, I would highlight the approach taken by the Court of Justice in Ministerio Fiscal, a recent preliminary ruling that was a follow-up to the previous judgments in Digital Rights Ireland and Tele2 Sverige where the Court had held, in substance, that the retention of information concerning the electronic communications of persons generally, may only be justified by the objective of investigating serious crimes and that since that retention of information entails a serious interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter it must be limited to what is strictly necessary and must be based on clear and precise rules governing the extent of any such interference. In Ministerio Fiscal, the issue was whether access by the police to data for the purposes of identifying the owners of SIM cards activated by a stolen mobile telephone, such as their surnames, forenames and, if need be, addresses, constituted a serious interference with their rights to respect for private life and to protection of personal data. The Court replied in the negative, given that those data only enabled the police to establish the identity of the owners of those SIM cards, but did not cover the communications carried out with a stolen mobile phone. In other words, the interference was not serious, since '[t]hose data do not therefore allow precise conclusions to be drawn concerning the private lives of the persons whose data is concerned'.
In that series of judgments the Court of Justice acted to uphold the right to privacy and, in doing so, reasserted the importance that both the Union and its Member States attach to individual freedom and also to the rule of law, since the legislator could only act within the margins set by EU primary law. At the same time, the Court showed an understanding that the challenges faced by each Member State in the field of law and order may vary and that Member States may need to be allowed to take measures that involve some degree of interference with that right, provided that such interference is proportionate and does not compromise the essence of the right.
One of the most important values shared by all EU Member States is the principle of democratic govern-
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ment, so memorably expressed by the US President Abraham Lincoln in his Gettysburg address as entailing government of the people, by the people, for the people. The inalienable right of citizens to participate in the electoral process lies at the very heart of modern democracy and the Court of Justice, recognising its importance in the constitutional traditions of the Member States, as well as in EU primary law, has acted to uphold that right when called upon to do so.
In the Delvigne case, the Court was confronted with a question concerning the scope of the obligations that EU law imposes on the Member States with regard to the right to vote in European Parliament elections. Mr Delvigne - a French national residing in France - had been sentenced to twelve years' imprisonment for murder. As an ancillary consequence of that sentence, Mr Delvigne was deprived of his right to vote in accordance with French criminal law and was excluded from the electoral roll. He challenged that decision before the referring court which asked, in essence, whether Article 39 of the EU Charter of Fundamental Rights precluded such exclusion.
The Court of Justice found that the French legislation at issue constituted a limitation on the exercise of the right to vote in European Parliament elections as provided for in Article 39, paragraph 2, of the Charter of Fundamental Rights. However, it then went on to determine that the limitation in question did in fact comply with the requirements laid down in Article 52, paragraph 1, of that Charter since the exclusion was provided for by law, respected the essence of the citizen's right, pursued a legitimate objective and complied with the principle of proportionality.
Delvigne illustrates the balance that the Court of Justice strikes between EU and national values, as well as the mutually-reinforcing nature of those values. As I have emphasised, the right to democratic participation enshrined in Article 39 of the Charter is itself based on the values of the Member States but there is also scope for value diversity among the Member States as regards the extent to which that right may be restricted. In that respect, the fact that the Court held in Delvigne that the French restrictions at issue were justified in accordance with the requirements of Article 52, paragraph 1, of the Charter is, in my view, significant.
Legal rules pertaining to a Member State's national identity may sometimes come into conflict with EU rules on free movement rights, in particular the free movement of goods and people, and the Court has recognised that such rules may provide a legitimate justification for a restriction. In the Omega and Sayn-Wittgenstein cases, the Court held, in that regard, that 'it is not indispensable for the restrictive measure issued by the authorities of a Member State to correspond to a conception shared by all Member States as regards the precise way in which the fundamental right or legitimate interest in question is to be protected and that, on the contrary, the need for, and proportionality of, the provisions adopted are not excluded merely because one Member State has chosen a system of protection different from that adopted by another State'. In accordance with Article 4, paragraph 2, TEU, the European Union is to respect the national identities of its Member States. The Court's comparative law methodology pays due heed to that constitutional mandate and serves to promote the value diversity to which I made reference earlier. Such a methodology recognises the fact that the level of protection of a fundamental right or that of a general interest may vary from one Member State to another, provided that, in the absence of EU harmonising measures, national measures which derogate from the fundamental freedoms do not adversely affect the essential interests of the Union.
In Sayn-Wittgenstein, for example, the ECJ was asked to examine the compatibility with the Treaty provisions on EU citizenship of an Austrian law that prohibits Austrian citizens from bearing titles of nobility, including those of foreign origin. Since the EU citizen concerned - an Austrian national residing in Germany - had been using a German noble title in Germany for more than fifteen years, the Court of Justice found that Austrian law hampered her right to free movement.
However, the Court then went on to recognize as legitimate the objective pursued by the Austrian law, which "seeks to ensure the observance of the principle of equal treatment as a general principle of law". Furthermore, it recalled that compliance with the principle of proportionality does not require an examination of the systems of protection adopted by other Member States, but only that the measure in question is not disproportionate in the light of the objective pursued. It was not disproportionate for a Member State to pursue the objective of equal treatment by prohibiting any use, by its nationals, of titles of nobility and Austria's refusal to recognise the noble elements of the surname of its own national was thus compatible with Article 21 TFEU. In its judgment, the Court referred expressly to Article 4, paragraph 2, TEU. That reference, made in the context of the proportionality analysis, implies that both the fundamental values of the EU and those inherent in a Member State's national identity must be weighed against one another where they are both in play.
The judgment in Coman provides another example of a situation where a balance is struck between Union-wide rights - on this occasion those attaching to EU citizenship - and national values. The applicants in the main proceedings formed a same-sex couple and were married under Belgian law. The couple sought to obtain long-term residence in Romania, the Member State of which one of the applicants was a national. However, the other applicant was a US citizen and therefore did not qualify as an EU citizen. Moreover, Romanian law did not recognise marriage
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between persons of the same sex and therefore denied the US citizen the status of 'spouse' of an EU citizen enjoying derived residence rights under Article 7(2) of the EU Citizenship Directive. The Constitutional Court of Romania referred several questions to the Court of Justice on the degree of protection offered by the Citizenship Directive in that context.
Applying the rights guaranteed under that directive by analogy on the basis of Article 21, paragraph 1, TFEU, the Court held that a 'spouse' within the meaning of that directive is any person married to another person, and that the directive does not refer to national law for defining what the concept of 'marriage' covers. The Court emphasised that the Member States remain competent as regards personal status, but must exercise that competence in compliance with EU law. Allowing a Member State to refuse the status of spouse to same-sex couples legally married in another Member State would result in variations of free movement rights in the EU depending on whether the former Member State recognises same-sex marriage, which would undermine the objectives of the Citizenship Directive and, by extension, those of Article 21, paragraph 1, TFEU.
As regards justification, the Court of Justice examined the arguments of certain Member States that it was necessary to refuse the status of spouse to same-sex couples legally married in another Member State to protect their conception of marriage as a union between a man and a woman or even to protect public order and national identity within the meaning of Article 4, paragraph 2, TEU. The Court stressed that the protection offered by EU citizenship in a free movement situation neither encroaches on the competence retained by each Member State to develop its own policy as regards marriage nor disregards the national identity of the Member States. Indeed, Member States remain free to define marriage as they see fit for all purposes governed by their own national law but they must recognise the definitions used by other Member States where the residence rights of EU citizens and their third country national spouses are concerned.
I will now turn to another value which is common to all Member States and which underpins our European system of governance. I refer to the principle of judicial independence.
In accordance with that principle, where a legislative or regulatory measure adopted at national level threatens the independence of a national court which is called upon to apply and enforce EU law as a component of domestic law, EU law must afford adequate protection to that court. That point is illustrated by the judgment of the Grand Chamber in Associação Sindical dos Juízes Portugueses, where the Court of Justice held that the second subparagraph of Article 19, paragraph 1, TEU may be relied upon in order to set aside national measures that call into question the independence of the national judiciary.
In the course of its judgment, the Court of Justice explained the relationship between the rule of law, Article 19 TEU, the principle of effective judicial protection and the role of national courts applying EU law. It reaffirmed the point that compliance with the rule of law and the principle of effective judicial protection are inextricably linked. They are, in effect, two sides of the same coin. Since courts and tribunals within the meaning of Article 267 TFEU and Article 47 of the Charter uphold the rule of law within the EU, they must meet the requirements of effective judicial protection, which means, in turn, that they must be independent; that independence is protected by Article 19 TEU. However, as to the salary-reduction measures at issue, the Court found that they did not compromise judicial independence. Most importantly, they formed part of a comprehensive effort to cut public spending and they applied to a wide range of public officials for only a limited period of time.
In Minister for Justice and Equality (Deficiencies in the system of justice), the Court of Justice was called upon to rule on the question whether judicial cooperation may operate in circumstances where the independence of the court that adopted the decision to be recognised and enforced has been called into question. Polish courts had issued three European Arrest Warrants against a Polish national in order to conduct criminal prosecutions. The person concerned opposed the execution of the warrants, submitting that "his surrender would expose him to a real risk of a flagrant denial of justice on account of the lack of independence of [Polish courts] resulting from implementation of the recent legislative reforms of the system of justice in that Member State". The High Court of Ireland expressed doubts as to the independence of Polish courts and asked the Court of Justice whether, in the light of those circumstances, it was required to execute those European Arrest Warrants.
At the outset, the Court examined whether a real risk of breach of the fundamental right of the individual concerned to an independent tribunal and, therefore, of his fundamental right to a fair trial as laid down in the EU Charter, was capable of permitting the executing judicial authority to decline, by way of exception, to give effect to a European Arrest Warrant. The Court of Justice replied in the affirmative. It ruled, and I quote, that "the requirement of judicial independence forms part of the essence of the fundamental right to a fair trial, a right which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded".
Drawing on its previous ruling in Aranyosi and Căldăraru, the Court of Justice also went on to hold that the executing judicial authority must follow a two-step assessment. In essence, the first step focuses
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on the situation of the system of justice of the Member State concerned as a whole, whilst the second step looks at the circumstances of the case at hand.
Following the ruling of the Court of Justice in LM, the High Court decided to execute the warrants at issue. It reasoned that "although recent reforms had brought about systemic deficiencies in the Polish justice system, there [was] no evidence showing that any other aspect of the fair trial right - such as the right to know the nature of the charge, the right to counsel, the right to challenge evidence and the right to present evidence - [was] at risk in Poland".
Before concluding this address, I would like to give one last example of a case where the Court of Justice has recognised that there is scope for value diversity, taking account of national constitutional traditions, provided that the requirements of EU law, and in particular the principles of effectiveness and equivalence, are satisfied. In M.A.S. and M.B., a reference from the Italian Corte costituzionale, the Court of Justice recalled that the Member States must ensure, in cases of serious VAT fraud, that effective and deterrent criminal penalties are adopted. Nevertheless, in the absence of EU harmonisation, it is for the Member States to adopt the rules of limitation applicable to criminal proceedings relating to such cases. This means, in essence, that whilst a Member State must impose effective and deterrent criminal penalties in cases of serious VAT fraud, it is free to consider, for example, that limitation rules form part of substantive criminal law, in accordance with its national constitutional conception of the scope of criminal law. Where that is the case, the Court pointed out that such a Member State must comply with the principle that criminal offences and penalties must be defined by law, a fundamental right enshrined in Article 49 of the Charter. Accordingly, even where the rules of limitation at issue prevent the imposition of effective and deterrent criminal penalties in a significant number of cases of serious VAT fraud, the national court is under no obligation to "disapply" those rules in so far as that obligation is incompatible with Article 49 of the Charter. That does not mean, however, that those rules are left untouched to the detriment of the financial interests of the EU. In the light of the primacy, unity and effectiveness of EU law, it is, first and foremost, for the national legislator to amend those rules so as to avoid impunity.
As I said at the outset, the common European identity that we share as EU citizens is neither intended, nor does it have as its effect, to dilute our precious national identities. The European Union values its diversity, both culturally and linguistically, but also in terms of the different constitutional and legal traditions of its Member States. As the M.A.S. and M.B. case neatly illustrates, it is essential, in any case that touches on the constitutional values of a Member State, for the Court of Justice to be fully informed of all of the parameters and considerations that are relevant to that situation, in order to come to a balanced judgment that pays due heed to those values, and the national constitutional court is very often best placed to provide that overview.
I hope that the cases to which I have referred illustrate the balance that our Court strikes between, on the one hand, the need to ensure that our common values, whose origin is itself the European civilisation that we all share, are adequately protected and, on the other hand, the equally legitimate need for the Member States to express, and to act in accordance with, their own diverse legal traditions. EU identity and national identities are not antagonistic but mutually reinforcing and for me that symbiosis between European and national legal identities is one of the features that I most treasure about our Union's legal order, which it is my immense privilege to serve as President of the Court of Justice.
Thank you very much. ■
Lábjegyzetek:
[1] The author is President of the Court of Justice of the European Union.
Visszaugrás
