CYIL Vol. 4, 2013

MUTUAL RESPECT AND RESIDUAL TENSIONS BETWEEN THE SYSTEMS OF PROTECTION… Supreme Administrative Court 22 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 http://www.edri.org/edri-gram/number6.24/ bulgarian-administrative-case-data-retention. 23 Judgement of 1 February 2011. Information available at http://www.edri.org/edrigram/number9.3/ 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.