CYIL Vol. 4, 2013

DAVID PETRLÍK CYIL 4 ȍ2013Ȏ 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.