Czech Yearbook Vol. 4 2013

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MUTUAL RESPECT AND RESIDUAL TENSIONS BETWEEN THE SYSTEMS OF PROTECTION…
Supreme Administrative Court22 and by the Supreme Court of Cyprus.23 The “leader”
in exercising this kind of review is undoubtedly the German Constitutional Court,
which declared national implementing measures unconstitutional, for instance, also
in the European arrest warrant case.24 The constitutional courts usually apply only
the national standard of fundamental rights when the national measure is within the
scope of application of EU law. However, the Austrian Constitutional Court applies
both the national and the Union standard of fundamental rights (see infra).
The subsidiary approach adopted in Åkerberg Fransson is a formal and explicit
recognition of the above-mentioned practice. It has, above all, a symbolic value, and
it demonstrates that the Court of Justice is fully aware of the importance and role
of national law in the application of fundamental rights in the scope of EU law.
Admittedly, by defining the scope of the Charter widely, the ECJ spreads its reach
out to a large area of application on the national level. However, by adhering to the
subsidiary principle, it partially “empties” this area; it leaves it to the national law, and
it assigns a simple correction role to the Charter, the latter intervening compulsorily
only in extreme cases when the national standard is too low (it does not attain the
EU standard) or too high (it compromises the primacy, unity or effectiveness of
EU law). The formal recognition of the role of this national standard, in any case,
has an important potential for practice, as the above-mentioned judgments of the
constitutional courts have shown.
3. Respect of the national constitutional traditions by the Court of Justice
In the field of fundamental rights the EU systemhas always endeavoured to respect
the national systems and, more specifically, the constitutional traditions common to
the Member States. The Court of Justice held already in 1974 that “fundamental
rights form an integral part of the general principles of law, the observance of which
it ensures. In safeguarding these rights, the Court is bound to draw inspiration from
constitutional traditions common to the Member States, and it cannot therefore
uphold measures which are incompatible with fundamental rights recognised and
protected by the Constitutions of those States”.25 The Treaty of Lisbon has confirmed
the binding force of these constitutional traditions in Article 6(3) TEU. Furthermore,
it highlighted their importance in Article 52(4) of the Charter, according to which
22 Judgement of 11 December 2008. Information available at /
bulgarian-administrative-case-data-retention.
23 Judgement of 1 February 2011. Information available at /
data-retention-un-lawful-cyprus.
24 Judgement of 18 July 2005, 2 BvR 2236/04, in which the German Constitutional Court declared the
German law on the European arrest warrant annul and void. In the Court’s view this statute restricted,
in a disproportionate way, the freedom from extradition enshrined in Article 16 paragraph 2 of the
Basic Law, since the legislature had not fully exhausted the margin of discretion conferred on it by the
EU Framework Decision on the European arrest warrant, in order to guarantee a protection that would
be as respectful of fundamental rights as possible.
25 Case 4/73 Nold v. Commission [1974] ECR 491, paragraph 13. This conception was validated in the
Treaty of Maastricht and more specifically in the former Article 6(2) TEU.