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MUTUAL RESPECT AND RESIDUAL TENSIONS BETWEEN THE SYSTEMS OF PROTECTION…
reference to such national laws would accordingly expose the ECJ to a systematic
criticism, which would undermine its authority.
In the light of the foregoing, it must be stressed that the absence of an explicit
and detailed comparison of national laws in judgements of the Court of Justice
does not mean that the latter does not take account of them. However, this absence
means that the ECJ is sometimes criticized that it has not adequately respected the
constitutional traditions common to Member States.28
4. Respect of the EU system by the national courts
As already mentioned, when the national courts apply fundamental rights and
they are in the scope of EU law, they must respect the principle of primacy of EU
law and the EU standard of fundamental rights enshrined in the Charter (either by
applying this EU standard, or by applying the national standard of fundamental
rights subject to the conditions of Åkerberg Fransson).
In this regard, the Treaty of Lisbon has not changed the two opposite tendencies
which can be observed in the national case-law. First of all, it must be stressed
that the national courts respect, in principle, the primacy of EU law in the field
of fundamental rights, and, in overwhelming majority of cases, their approach is
very “EU-friendly”.29 Similarly, they have keenly welcomed the Charter, and they
have applied it in numerous cases.30 One of the most significant examples is the
approach of the Austrian Constitutional Court, which made the Charter enforceable
in the proceedings brought before it for the judicial review of national legislation.
Consequently, applicants can directly rely on the Charter when they plead before this
court that the contested national measures violate their fundamental rights.31
This tendency is also demonstrated by an increase of requests to the ECJ for
a preliminary ruling which concern the Charter. While there were almost no such
references in 2009,32 this number rose to 27 in 2011, and it reached 41, an increase of
28 As for the principle of the retroactive application of the more lenient penalty, recognised in Berlusconi,
see D. Simon, Primauté du droit communautaire et rétroactivité in mitius des lois pénales, Revue
Europe, 2005, No. 7, 12, 13, or F. Tacconi, Casenote – Berlusconi at the European Court of Justice
– C-387/02, German Law Journal, 2006, Vol. 7. No 3, p. 319. Concerning the principle of non-
discrimination on grounds of age, recognised in Case C-144/04 Malgold [2005] ECR I-9981, see the
Opinion of Advocate General Mazák in Case C-411/05 Palacios de la Villa [2007] ECR I-8531.
29 See the General Report of the Association of Councils of States and of Supreme Administrative
Courts, seminar of the Hague of 24 November 2011, p. 5, available at
colloquiums/colloq_en_23.html.
30 See General Report of the Association of Councils of States and of Supreme Administrative Courts,
cited in previous note.
31 Judgement of 14 March 2012, No. U 466/11 and U 1836/11. Available at /
vfgh-site/attachments/9/6/0/CH0006/CMS1353421369433/grundrechtecharta_english_u466-11.pdf.
32 The main reason being that the Charter did not have a binding force yet, even if it had already been
adopted in 2000. However, the Court of Justice had already applied the Charter before the Treaty of
Lisbon (see above note 2).