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the rights of the Charter must be interpreted “in harmony with those traditions”
when the Charter recognises the same fundamental rights.
It must be noted that, since the Treaty of Lisbon, the ECJ refers less explicitly to
national constitutional traditions. However, this does not mean that it does not take
account of them any more. Firstly, the Court of Justice has consistently presumed that
the ECHR reflects these traditions. This is one of the main reasons for which this
convention has been the primary material source of fundamental rights in the EU legal
order. Consequently, when applying the ECHR, the ECJ also relies on those traditions,
as reflected in the latter and in the case law of the European Court of Human Rights
(“ECtHR”). Secondly, the national constitutional traditions are applied though the
Charter whose provisions are interpreted in regard of them. To this end, a direction of
the ECJ may draw up, at its request, an internal research note
(note de recherche)
which
reveals the approach of national constitutional rules on a fundamental right.
In this respect, it can be noted that when ECJ’s judgements rely on these rules
as identified in the research note, they state summarily, at the most, that the adopted
interpretation follows from the constitutional traditions common to the Member
States.
26
Accordingly, such judgements do not refer to the research note, they do not
generally mention which specific national rules protect the fundamental right in
question, and they do not contain an explicit and detailed comparison of these
rules.
27
It may be argued that such a wording of rulings is inconsistent with the ECJ’s
duty to state reasons, as it is difficult for the general (legal) public to verify that the
Court of Justice has drawn a correct conclusion from the national constitutional
rules. A more detailed indication of their approaches is, however, problematic for
practical reasons. In order to guarantee equality of treatment and coherence of its
case-law, all judgements concerning fundamental rights should include, in principle,
such a statement of reasons. This would require from the Court of Justice that it
analyse and indicate the position of all 28 national legal orders, which would be
burdensome for the reasoning. In addition, opinions can vary on the scope and
content of the protection of a fundamental right provided by a national law. Explicit
26
See for example
Berlusconi,
in which the Court of Justice held, without further details, that the
“principle of the retroactive application of the more lenient penalty forms part of the constitutional
traditions common to the Member States. It follows that this principle must be regarded as forming
part of the general principles of Community law which national courts must respect when applying
the national legislation adopted for the purpose of implementing Community law …” (Joined Cases
C-387/02, C-391/02 and C-403/02
Berlusconi and Others
[2005] ECR I-3565, paragraphs 68 and 69).
See also Case 155/79
AM & S Europe v. Commission
[1982] ECR 1575, paragraphs 20 and 24; Cases
46/87 and 227/88
Hoechst
[1989] ECR 2859, paragraphs 17 and 19).
27
Advocates-General do not mention the research notes either, in order to respect the internal and quasi-
confidential nature of these documents. For exceptions see the Opinion of Advocate General Geelhoed
in Case C-119/05
Lucchini
[2007] ECR I-6199, paragraph 37 and footnote 19, and Opinion of
Advocate General Poiares Maduro in Joined Cases C-514/07 P, C-528/07 P and C-532/07 P
Sweden
and Others v. API and Commission
[2010] ECR I-8533, paragraph 29 and footnote 25. References to
research notes in these Opinions are not, however, very useful, as the latter do not transcribe its detailed
content, and they advise the reader to “see” documents that are not accessible to the public.