Introduction
In this article I shall seek to address the relationship between the European Convention on Human Rights (‘the Convention’) and the European Charter of Fundamental Rights (‘the Charter’). The Convention was adopted in 1950 by the Council of Europe. It had two key objectives: to prevent any repeat of the widespread human rights violations which had occurred during the Second World War and to protect western Europe from communist subversion.Footnote 1 The Charter was drafted in 2000 and given legal effect in 2009. Its purpose was to make more visible the fundamental rights protected by EU law.Footnote 2 Prior to the ratification of the Lisbon Treaty the EU did not have its own legally enforceable bill of rights. Fundamental rights were, however, recognised as ‘general principles’ of EU law in the jurisprudence of the European Court of Justice.Footnote 3
The advent of the Charter as a legally enforceable bill of rights for the EU poses a challenge to the Convention and gives rise to the danger of divergences developing between the two instruments. Article 52(3) of the Charter seeks to address this danger. It provides as follows:
In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.
This provision raises two key issues. First, it must be determined what it means to give rights which ‘correspond’ to those in the Convention the same ‘meaning and scope’. In this connection it must be determined whether the requirement that Charter rights be given the same ‘meaning and scope’ as corresponding Convention rights requires the European Court of Justice to follow the case law of the European Court of Human Rights, or merely the text of the Convention itself. Second, it must be determined when the Charter may be deemed to accord greater protection than is accorded to corresponding rights under the Convention. In the remainder of this article I shall carry out an originalist analysis of these two questions.
Before embarking on the substance of the article, however, it shall be necessary to explain why I believe that the method of interpretation usually employed by the European Court of Justice, namely the teleological approach, should not be adopted in the interpretation of the Charter. Thus, in the first part of the article I shall describe the court’s teleological approach to interpretation. I shall also consider the justifications which have been put forward in defence of that approach, ultimately concluding that none of these is persuasive. I shall then put forward certain criticisms of the court’s teleological approach. The ultimate conclusion arrived at in the first part of this article is that the court’s teleological approach to interpretation is fundamentally undesirable. In the second part of the article I shall describe in detail the nature of originalism, provide arguments in favour of the adoption of an originalist approach in the interpretation of the Charter, and I shall respond to certain criticisms of originalism advanced by scholars and others. In the third part of the article I shall apply an originalist method in interpreting Article 52(3) of the Charter.
The Teleological Approach to Interpretation of the European Court of Justice
Hartley suggests that decisions of the European Court of Justice may be divided into three groupings: decisions within the text, decisions beyond the text, and decisions against the text.Footnote 4 Decisions within the text are generally considered unobjectionable. For this reason, I shall confine my discussion in what follows to decisions which go beyond, and those which go against, the text.
Prior to the advent of the Charter the European Court of Justice had held that the observance of human rights norms was a general principle of EU law and a precondition to the validity of EU law provisions. In Costa v ENEL Footnote 5 the court held that EU law was supreme and must prevail in the event of an inconsistency between it and provisions of national law. This decision provoked concern on the part of national constitutional courts that EU law provisions could violate rights protected by national constitutions.Footnote 6 Certain national constitutional courts declared that they would hold provisions of EU law invalid if they infringed national constitutional rights.Footnote 7
In Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel,Footnote 8 the European Court of Justice once more stated that EU law was superior to national law. The court stated that any alternative finding would have ‘an adverse effect on the uniformity and efficacy of Community law’.Footnote 9 However, in an attempt to persuade national constitutional courts to accept the supremacy of EU law the European Court of Justice stated that human rights formed part of the general principles of EU law, the observance of which the court ensured.Footnote 10 The text of the treaties did not confer upon the European Court of Justice a power to protect fundamental rights; thus, the decision of the European Court of Justice in Internationale Handelsgesellschaft is one which goes beyond the text of the law. I shall now proceed to consider a decision of the European Court of Justice which goes against the text.
Article 173 of the Treaty of Rome originally stated that actions for annulment could be initiated by ‘a Member State, the Council or the Commission’ and by ‘[a]ny natural or legal person against a decision addressed to that person or… against a decision which… is of direct and individual concern to the former’. The list contained in in Article 173 was plainly meant to be comprehensive. Indeed, in the Comitology case,Footnote 11 the European Court of Justice held that the European Parliament (‘the Parliament’) could not bring an action for annulment, since it was not named in Article 173.
In the Chernobyl caseFootnote 12 the court overruled its decision in Comitology, holding that the Parliament could bring an action for annulment.Footnote 13 The court stated that a ‘procedural gap’ would exist if the Parliament could not take an action for annulment. The court stated that the existence of such a gap would upset the ‘institutional balance laid down by the Treaties’.Footnote 14 In Chernobyl the European Court of Justice arrived at a conclusion contrary to the text of Article 173, on the basis of the broad principle of ‘institutional balance’.Footnote 15 There could hardly be a clearer example of a court contradicting the text of the law on the basis of its putative purpose.
Justifications for the Court’s Approach: an Evaluation
Many arguments have been made in support of the teleological approach of the European Court of Justice. Due to the limited space available it will only be possible to consider the most prominent of these.
Perhaps the argument most frequently put forward in favour of the teleological approach of the European Court of Justice is that the framers of the Treaty of Rome were committed to European integration and that their ambition to create a united Europe should be furthered by the European Court of Justice in its interpretation of provisions of EU law. The preamble of the TEU is frequently invoked in support of this argument.Footnote 16 It states that the member states of the EU are ‘RESOLVED to continue the process of creating an ever closer union among the peoples of Europe’.
The invocation of the ‘ever closer Union’ language of the preamble in support of the court’s teleological approach has been criticised on a number of different grounds. First, it has been argued that the preamble is too vague to be of much use in judicial decision-making.Footnote 17 The phrase ‘ever closer union’ may not refer to the political integration of the member states at all. Very similar language has been used to describe traditional diplomatic co-operation between states. For example, when an Anglo-German alliance was being considered in 1898 Arthur Balfour, a British cabinet minister, stated that the German Foreign Secretary was ‘in favour of a closer union between the countries’.Footnote 18 It is plain that Balfour did not use the phrase to refer to the political integration of Britain and Germany and, thus, it is unclear that the language of the TEU must be so understood either.
Moreover, Stuart Scheingold notes that the fundamental principles of the Treaty ‘provide something for everyone’, which reflects the deep divisions among the framers of the treaties in relation to the nature of the European project.Footnote 19 The EEC Treaty provided for integration of a much less thoroughgoing kind than had the European Political Community Treaty, which was proposed in 1953. This latter treaty had made provision for a pan-European executive answerable to a pan-European parliament. The European Political Community project foundered after member state objections to its federalising tendencies.Footnote 20 That failure indicates that the framers of the EEC Treaty were not attempting to achieve the complete political integration of the member states of the EU.
Renaud Dehousse has stated that ‘the open-textured character of many provisions, together with the purpose-oriented nature of the Treaty, lent itself, quite well to the kind of teleological interpretation proposed by the ECJ’.Footnote 21 It is submitted, however, that the vagueness of the treaties cannot justify many of the decisions of the European Court of Justice which exemplify its teleological approach. The decision of the court in Internationale Handelsgesellschaft, for instance, cannot be justified by reference to the text of the treaties, which did not provide any role whatsoever for the EU in the protection of fundamental rights. It is plain from the historical background to the Treaty of Rome that this was an intentional omission, because the failed European Political Community treaty had made provision, in Article 45 thereof, for complaints in relation to violations of fundamental rights by the institutions of the European Political Community to be referred to a court established under that treaty, whereas the Treaty of Rome, proposed shortly after the failure of the European Political Community project, made no such provision.Footnote 22
A third argument made in favour of the court’s teleological approach is that the effectiveness of EU law would be undermined if another method of interpretation were to be employed.Footnote 23 For example, in Amministrazione delle finanze dello Stato v Simmenthal,Footnote 24 the court re-affirmed its conclusion in Costa v ENEL Footnote 25 that EU law was superior to all provisions of national law.Footnote 26 The court emphasised that the effectiveness of EU law would be undermined otherwise.Footnote 27 The Treaty did not provide that EU law was to prevail over contradictory national law. The court also ignored the applicable principles of international law, under which it is was left to the legal system of each individual state to decide whether, and to what extent, principles of international law should apply directly in national law.Footnote 28
It is submitted that, due to its generalised nature, the effectiveness argument in favour of the court’s teleological approach can justify any decision which strengthens EU law or expands its application. This involves accepting an unconstrained law-making power vesting in the court.Footnote 29 For this reason, the effectiveness argument in favour of the court’s teleological approach must be rejected.
A third argument frequently made in favour of the court’s teleological approach is that more traditional methods of interpretation cannot be applied due to the multilingual nature of EU law. The EU treaties are authentic in 24 different languages.Footnote 30 Timothy Millett has stated that ‘the multilingual nature of Community legislation necessarily reduces the importance of the literal method of interpretation’.Footnote 31
Differences between the language versions of EU law texts arise frequently.Footnote 32 However, it is submitted that the conclusion that EU law must therefore be interpreted purposively does not follow, for a number of reasons. First, Nial Fennelly has stated that ‘[l]inguistic conflict or ambiguity is not, in any sense, a pre-condition for the application of the teleological or schematic approach’.Footnote 33 Many cases in which the court has deployed its teleological approach did not involve divergences between the different language versions of EU law.Footnote 34 In the case of Åkerberg Fransson,Footnote 35 the European Court of Justice concluded that the phrase ‘implementing Union law’, which delineates the scope of application of the Charter to the member states, encompassed member state derogations from EU law. I have argued in detail elsewhere that this conclusion cannot be justified by reference to any of the language versions of the Charter.Footnote 36
Second, it is not clear that teleological interpretation is necessary to reconcile divergences among language versions when these do arise. Mattias Derlén identifies three means by which international law tribunals have sought to resolve divergences between different language versions of a particular text. These are: classical reconciliation; reconciliation and examination of purpose; and a teleological approach.Footnote 37 I have discussed the merits and demerits of each of these respective approaches elsewhere.Footnote 38 Suffice it to state here that the conclusion that a teleological approach to interpretation is necessary because of the multilingual nature of EU law is not axiomatic.
Criticisms of the Court’s Teleological Approach
The teleological approach of the European Court of Justice may be criticised for a number of different reasons. First, the key assumption underlying the teleological approach, namely that a particular law may be said to reflect a single unitary purpose, is doubtful. This is because laws usually reflect a compromise between competing purposes, which means that focusing on one purpose, and excluding others from consideration, is likely to lead to error.Footnote 39 In Statens Kontrol Med Aedle Metaller v Larsen Footnote 40 the European Court of Justice held that the fact that the Treaty contained a prohibition on import taxes suggested that the latter sought ‘to guarantee generally the neutrality of systems of internal taxation with regard to intra-Community trade’ and that, for this reason, taxes that discriminated as between exports were also prohibited.Footnote 41
The framers of the Treaty of Rome may have banned discriminatory taxes on imports, but not on exports, for a number of different reasons. One possible explanation is that they wanted to lower the volume of exports of goods which were ‘particularly valuable or especially sought after’.Footnote 42 Thus, the judgment of the court in Larsen indicates that ascribing a single overarching ‘purpose’ to a particular legal provision is impossible, because the lawmaker will always have more than one actuating motive in enacting a particular law. In such circumstances the lawmaker will have to determine the extent to which each of these competing purposes should be pursued. It would be wrong for the court to assume in such circumstances that the law in question seeks to achieve a single identifiable purpose.
A second difficulty with the court’s teleological method of interpretation is that the court frequently pitches the purpose of the law at a high level of generality.Footnote 43 This enables the court to arrive at conclusions it deems desirable on policy grounds.Footnote 44 In Commission v Council (‘ERTA’),Footnote 45 the court held that, by conferring on the EU the power to lay down common rules in the field of transportation, the member states had alienated their right to enter into agreements with third parties in that field. The court stated that ‘the unity of the Common Market and uniform application of Community law’ would be compromised in the event of any alternative conclusion.Footnote 46 It is important to underline that the Treaty did not confer any competence on the EU to enter into international agreements in relation to transportation.Footnote 47 Nevertheless, the court held that the member states could no longer individually enter into such agreements,Footnote 48 and that the EU had exclusive competence in the field. Thus, in ERTA the court relied on the ‘meta-purpose’ of uniformity in order to claim a competence which the Treaties did not confer on the EU.
A third difficulty with the court’s teleological method of interpretation is that it creates legal uncertainty by permitting unambiguous text to be overridden by reference to purpose. This is contrary to the rule of law because it precludes citizens from planning their affairs effectively, in reliance upon the plain text of the law.Footnote 49 The case of Defrenne v SABENA Footnote 50 involved Article 119 of the Treaty of Rome. That provision guaranteed equal pay for equal work between men and women. By its text, however, it was addressed exclusively to the member states. The court stated that the effectiveness of Article 119 would be compromised if it were not applicable to private parties and, accordingly, held that it could also be invoked against private entities.Footnote 51 Thus, the decision of the court in Defrenne undermined private expectations by giving the text of Article 119 a meaning which citizens could not reasonably have predicted beforehand.
A fourth related difficulty presented by the court’s teleological approach is that it contravenes the right of the peoples of Europe to democratic self-government. Conway has stated that ‘democracy seems to require that the interpretative perspective of the judiciary and that of the legislative … authority must converge substantially’.Footnote 52 However, due to the legal uncertainty generated by the court’s teleological approach, it is exceedingly difficult, if not entirely impossible, for the framers of EU legal provisions to say with any confidence how the enactments they draft will be read by the court.
In Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel,Footnote 53 as discussed above, the court held that fundamental rights constituted general principles of EU law, the observance of which the court ensured. This conclusion was reached in spite of the fact that the Treaty did not explicitly refer to fundamental rights at all. It is submitted that the decision in Internationale Handelsgesellschaft was contrary the intentions of the member dtates at the time the Treaty was ratified. As noted above, the Treaty of Rome was framed, concluded, and ratified after the demise of the proposed European Political Community and European Defence Community. The European Political Community Treaty had included provisions for a supreme court to review decisions of its institutions for compliance with the provisions of the European Convention of Human Right.Footnote 54 However, both of these projects failed after the rejection of the European Defence Community Treaty by the French National Assembly in August 1954.Footnote 55 Unlike the European Political Community Treaty, the Treaty of Rome did not confer a jurisdiction upon the European Court of Justice to review the activities of the institutions for compliance with fundamental rights. It is submitted that, in the movement from the European Political Community Treaty to the Treaty of Rome, in circumstances where the former foundered due to concerns in relation to its federalising tendencies, we may conclude that the framers of the EEC Treaty intended to withhold from the European Court of Justice the power to review the activities of the European institutions and, a fortiori, those of the member states, for compliance with human rights norms.Footnote 56 The decision of the court in Internationale Handelsgesellschaft, therefore, demonstrates that the teleological approach can lead to results which contradict both the text of the law and the intention of its framers. For this reason, it is submitted that the approach of the court is undemocratic.
What is originalism?
There are several schools of originalism. David Langwaller sets out a taxonomy which is useful in distinguishing between them. He describes ‘old originalism’ as a ‘search for the intention of the founding fathers’.Footnote 57 By contrast, he says that the most important idea of ‘new originalism’ is ‘that the meaning of the constitution is the original public meaning of the document...’Footnote 58 ‘Old originalism’ seeks to identify the intentions of the law’s drafters. However, the drafters of the Charter did not have the authority to ratify it and it would, therefore, be inappropriate to adopt an old originalist approach in interpreting the Charter. The ratifiers of the Charter were the parliaments of the various EU member states and the Irish electorate. Thus, it is submitted that a new originalist approach, which accords priority to the public meaning of the words of the document rather than the intention of its framers, should be adopted by the European Court of Justice.
Such an approach is exemplified in the jurisprudence of both Justice Scalia and Justice Thomas of the US Supreme Court. In District of Columbia v Heller,Footnote 59 Justice Scalia stated as follows:
[i]n interpreting this text, we are guided by the principle that the Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary … meaning.Footnote 60
Justice Scalia and Justice Thomas refer to four different categories of material in seeking to uncover the original meaning of the Constitution: text, pre-ratification law and usage, drafting and ratification history, and post-ratification interpretations. I shall discuss each of these in my analysis of Article 52(3) of the Charter below. However, before embarking upon an originalist analysis of that article I will first put forward my reasons for believing that the European Court of Justice should apply a new originalist approach in its interpretation of the Charter.
Arguments in favour of Originalism
The first argument in favour of new originalism is that it gives effect to the expectations of citizens when they ratified the text being interpreted. This guarantees the democratic legitimacy of the interpretative process.Footnote 61 This is important because the Charter was itself approved by a democratic procedure, i.e. the unanimous approval of the member states of the EU.Footnote 62 Given that such a cumbersome procedure was adopted in the ratification of the Charter, it would be curious if its meaning could be changed unilaterally by the European Court of Justice.Footnote 63
The second argument in favour of new originalism is that it contributes to legal certainty by closely adhering to the text of the law.Footnote 64 If courts charged with interpreting the law adhere closely to its text it should be easier for citizens to find out what their rights are and for governments to determine the extent of their powers.
Third, by adhering closely to the text, originalists recognise that legal draughtsmen generally choose the words they use carefully.Footnote 65 The Convention at which the Charter was drafted deliberated painstakingly over its wording. My discussion below of the drafting history of Article 52(3) should demonstrate this clearly. For this reason, an interpreter should not lightly assume that they did not intend what they said.
Fourth, adhering closely to the text of the law constrains judicial discretion.Footnote 66 Although there is certainly some room for disagreement as to the meaning of particular words of phrases, there are certain meanings which a text simply cannot bear. As Scalia has put it, ‘[w]ords do have a limited range of meaning, and no interpretation that goes beyond that range is permissible’.Footnote 67
Arguments against originalism
Textual ambiguity
New originalism has been criticised for four main reasons. First, it has been argued that it does not, in fact, constrain the interpretative options of judges and that it enables them to surreptitiously engage in decision-making which gives effect to their own personal preferences, rather than to any objective ‘law’.Footnote 68
However, it seems excessive to suggest that the limitations inherent in originalist methodology have no constraining force on judicial decision-making. Wildenthal has argued, with some reservations, that Justice Scalia’s dissenting opinion in Maryland v Craig Footnote 69 demonstrates the capacity of texualism to constrain judges.Footnote 70 The case concerned the meaning of the Confrontation Clause of the Sixth Amendment to the United States Constitution. The latter states that ‘[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him’. In a five-to-four majority decision the court construed the clause to guarantee merely ‘the reliability of the evidence’ presented at trial. In the view of the majority it did not necessarily extend a right to confront witnesses face-to-face. Justice Scalia wrote a dissenting opinion in which three of his colleagues joined, upholding a right to face-to-face confrontation. Thus, in Maryland v Craig, Justice Scalia’s preference for close adherence to the text of the Constitution led him to a more robust defence of the right to confrontation than some of his colleagues, who thought the spectacle of a child victim of sexual abuse being confronted by her abuser distasteful.
Thus, it is submitted that adherence to the tenets of originalism certainly constrains the freedom of action of judges, though it is important to recognise that subjectivity in judicial decision-making can never be eliminated entirely.
Historical ambiguity
Perry has argued that ‘[t]he originalist approach does not entail a minimalist judicial role because … there is often more than one plausible conclusion to the inquiry into the original meaning of a constitutional provision’.Footnote 71 This argument suggests that, due to the indeterminacy of historical investigation generally, originalists interpret equivocal historical materials so as to arrive at conclusions congenial to them.
However, many of the scholars who have criticised the originalist justices for historical analyses undertaken in their opinions have suggested that the historical materials supported a different outcome.Footnote 72 This suggests that Justice Scalia and Justice Thomas may arguably at times have been imperfect practitioners of originalism, but it also implies that accurate historical analyses, leading to principled and justifiable originalist interpretations, are in fact possible. Moreover, it is important to note that other scholars have endorsed historical analyses undertaken by the originalist justices.Footnote 73 If originalists have occasionally erred in their reading of history, the appropriate response is to try to learn from those errors, rather than to abandon historical analysis.Footnote 74
Indeed, the originalist justices acknowledge the occasional existence of historical obscurity. In McIntyre v Ohio Elections Comm’n,Footnote 75 Justice Scalia stated that, because the original meaning of the First Amendment was hopelessly obscure on the question as to whether anonymous political speech was protected, the court should defer to the longstanding tradition under which such speech had been proscribed. This suggests that the court should defer to the political branches where the original meaning of the Constitution is unclear.Footnote 76 Though Justice Thomas arrived at a different conclusion to Justice Scalia in McIntyre, finding that the historical materials did support the existence of a right to speak anonymously, he expressed a similar view on the matter of general principle in Deck v Missouri,Footnote 77 indicating that where the original meaning of the Constitution was unclear the court should refrain from articulating a constitutional rule.
The ‘dead hand’ of the past
Joseph Raz suggests that the democratic argument in favour of originalism carries little weight in the case of old laws, the original makers of which have long since died.Footnote 78 However, Michael McConnell has sought to refute this view by arguing that a society’s right to self-government is not to be considered as exercisable at a particular moment, by the citizens of the generation that happen to be alive at the time. Rather, he suggests that self-government is a right exercised by a society over time and across generations.Footnote 79 According to this view the laws in force do not derive their authority from the existing society but, rather, from the authority of the generation that enacted them.Footnote 80 Self-government over time recognises that each generation can enact new laws and amend those enacted by its predecessors.Footnote 81 By agreeing to be bound by the enactments of past generations the present generation acquires the right to bind future generations.
The main benefit of conceiving of self-government in this way is that it enables citizens to plan their affairs more effectively because they may rest assured that the rights they enjoy today will also be secured to them tomorrow.Footnote 82 Moreover, it is important to state that those who object to the notion of self-government over time as atavistic are not typically arguing that current legislative majorities should be freed from inherited constraints. Rather, they are arguing that the judiciary should be empowered to constrain current majorities on a basis other than the authority of the people, dead or alive.Footnote 83
I shall now carry out an originalist analysis of the two issues which arise from the text of Article 52(3) Charter, namely the precise status of the case law of the European Court of Human Rights, and the extent to which the European Court of Justice may depart from that jurisprudence, under the Charter.
The status of the case law of the European Court of Human Rights
Introduction
Before entering into a detailed discussion of the legal relationship between the Charter and the Convention, it is important to note that one of the chief purposes of the Charter was to codify the rights protected by the European Court of Justice’s general principles jurisprudence, which was in large part inspired by the Convention and the jurisprudence of the European Court of Human Rights.Footnote 84
Textual analysis
The starting point in discerning the original meaning of a legal text ought to be with an examination of the dictionary definitions of the terms used in the text. The Oxford English Dictionary defines the verb ‘to correspond’ in the following terms:
1. intr. To answer to something else in respect of fitness; to agree with; to be agreeable or conformable to; to be congruous or in harmony with … 2. a. To answer to in character or function; to be similar or analogous to (rarely with) … b. To answer or agree in regard to position, amount, etc…
Webster’s Ninth New Collegiate Dictionary contains a similar entry: ‘1. a : to be in conformity or agreement … b: to compare closely… c: to be equivalent or parallel…’Footnote 85 It is plain from these definitions that for two things to ‘correspond’ they need not be identical. Similarity between the two is sufficient.Footnote 86 Thus, where Charter rights are phrased similarly to Convention rights it is necessary, pursuant to Article 52(3) of the Charter, to assign the same ‘meaning and scope’ to each.
This definition of the verb ‘to correspond’ is confirmed by the leading English language law dictionaries. Stroud’s Judicial Dictionary contains the following entry: ‘Correspond… “to correspond” does not, usually or properly mean, “to be identical with”, but “to harmonise with”, or “to be suitable to”…’Footnote 87 As discussed above the ‘text’ of Article 52(3) of the Charter consists of all 24 language versions of the Charter. It is thus necessary to ensure that the other language versions of that article do not materially differ from the English version. From a perusal of the relevant multilingual dictionaries it appears that most of the other language versions of the Charter use close synonyms for ‘correspond’ and no deviations from the English version are immediately apparent.Footnote 88
This reading is also confirmed by the Opinion of Advocate General Cruz Villalón in Scarlet Extended SA v Société belge des auteurs compositeurs et éditeurs (SABAM),Footnote 89 in which he stated that ‘in the circumstances of the main action, the rights guaranteed in Article 8 of the ECHR “correspond” …to those guaranteed in Articles 7 (“respect for private and family life”) and 8 (“protection of personal data”) of the Charter, just as the rights guaranteed in Article 10 of the ECHR “correspond” to those guaranteed in Article 11 of the Charter (“freedom of expression and information”), notwithstanding the differences concerning the expressions used and the terms employed, respectively’.Footnote 90 A comprehensive list of the Charter rights which correspond to the Convention rights is provided by the Explanations to the Charter.Footnote 91
The Oxford English Dictionary defines ‘meaning’ in the following terms: ‘1. The significance, purpose, underlying truth, etc., of something…’ The verb ‘to mean’ has been defined as follows in Stroud’s Judicial Dictionary:
‘MEAN. When a statute says that a word or phrase shall “mean” – not merely that it shall “include” – certain things or acts, “the definition is a hard-and-fast definition, and no other meaning can be assigned to the expression than is put down in the definition”’.Footnote 92
Thus, the use of the word ‘meaning’ in Article 52(3) suggests that Charter rights corresponding to Convention rights should be interpreted identically with the latter.
The Oxford English Dictionary defines the word ‘scope’ as ‘6… b. The sphere or area over which any activity operates or is effective; range of application or of subjects embraced; the reach or tendency of an argument, etc.; the field covered by a branch of knowledge, an inquiry, concept, etc’. Webster’s Ninth New Collegiate Dictionary contains a similar entry: ‘1: space or opportunity for unhampered motion, activity, or thought … 3: extent of treatment, activity or influence, or influence 4: range of operation’.Footnote 93
In the Convention on the Future of Europe Petite argued that the word ‘scope’ included the limitations on rights contained in the Convention.Footnote 94 The word ‘scope’ in Article 52(3) of the Charter is perhaps best interpreted, therefore, as meaning that the imposition of limitations on Charter rights, which would not be recognised as legitimate if applied to corresponding Convention rights, are alike prohibited by the Charter. Thus, neither ‘[t]he sphere or area’ nor the ‘range of operation’ of Charter rights could be reduced on this reading of Article 52(3).Footnote 95
The Oxford English Dictionary contains the following entry for the word ‘shall’: ‘1. An utterance of the word “shall”; a command, promise, or determination (such as is expressed by means of “shall”)’. Scalia and Garner note that the word ‘shall’ has traditionally been understood as imposing a mandatory requirement. However, they also note that ‘shall’ has been misused by legal drafters, such that it is no longer safe to automatically adhere to its traditional meaning.Footnote 96
A contextual reading of the Charter’s general provisions suggests that the word ‘shall’ in Article 52(3) of the Charter should be understood as imposing a mandatory requirement. Article 52(5) states that ‘[t]he provisions of this Charter which contain principles may be implemented…’Footnote 97 The use of the word ‘may’ in Article 52(5) was intended to indicate that no mandatory requirement was thereby being imposed.Footnote 98 Differences in terminology between closely related legal provisions suggest a difference in meaning.Footnote 99 Thus, the variation in terminology between the words ‘shall’ and ‘may,’ in Article 52(3) and Article 52(5) respectively, suggests that the former imposes a mandatory requirement and that the latter does not.
The Oxford English Dictionary contains the following entry for the adjective ‘same’: ‘A. adj. I. Not numerically different from an object indicated or implied; identical. 1. With forward reference: Identical with what is indicated in the following context’.
Thus, the most natural reading of the first sentence of Article 52(3) is that Charter rights, which roughly approximate to rights in the Convention, should be interpreted identically to those Convention rights.Footnote 100 This reading is confirmed by a perusal of its drafting history. The Council of Europe observers at the Convention believed that the final draft of Article 52(3) ensured ‘an identity of scope and meaning between the rights contained in the two instruments’.Footnote 101 Article 52(3) seeks to address the concern, articulated by many during the Charter Convention,Footnote 102 and in subsequent scholarly commentary, that deviations in wording between the Charter and the Convention would lead to different interpretations of the two instruments.Footnote 103
However, Article 52(3) does not specifically refer to the case law of the European Court of Human Rights. It could, therefore, mean that the European Court of Justice must give Charter rights corresponding to Convention rights the same meaning as the text of the latter warrants, rather than the meaning dictated by the European Court of Human Rights.
The Explanations of the Charter provide some clarification on this point. They state that ‘[t]he meaning and the scope of the guaranteed rights are determined not only by the text of those instruments, but also by the case-law of the European Court of Human Rights and by the Court of Justice of the European Union’. However, the Explanations also state that that provision does not adversely affect the autonomy of EU law, thus implying that though the jurisprudence of the European Court of Human Rights carries great weight, it is not binding in all circumstances.Footnote 104
Pre-ratification practice
Murray notes that ‘[p]rior to the entry into force of the Lisbon Treaty, the Court of Justice … enjoyed a considerable degree of autonomy as to the meaning and scope of rights falling within the ambit of Community law, even though it has demonstrated considerable deference to the Strasbourg Court’.Footnote 105 The case law of the European Court of Human Rights did not strictly bind the European Court of Justice. Nonetheless, the European Court of Justice drew heavily on that case law in developing its own distinctive human rights jurisprudence.Footnote 106
Drafting history
The case law of the European Court of Human Rights was repeatedly referred to as a source of inspiration during the drafting of the Charter.Footnote 107 Moreover, the risk of divergence between the European Court of Justice’s jurisprudence on the Charter and the jurisprudence of the European Court of Human Rights was highlighted from the beginning of the Convention’s work. EU accession to the Convention was recommended as a means of avoiding such divergent interpretations.Footnote 108
The Charter Convention specifically contemplated including an obligation to follow the European Court of Human Rights’s jurisprudence in the operative text of the Charter. Lord Goldsmith, for example, recommended including a provision which would ensure that ‘[e]ach reference in this Charter to an Article of the ECHR or its Protocols should be interpreted in accordance with the jurisprudence of the Strasbourg organs’.Footnote 109 The Praesidium adopted such suggestions in its draft of 18 April 2000, which contained a provision, Article H.4, stating that ‘[n]o provision of this Charter may be interpreted as restricting the scope of the rights guaranteed by…the European Convention on Human Rights as interpreted by the case law of the European Court of Human Rights’.Footnote 110 However, certain members of the Convention argued that the inclusion of such a provision would hamper the development of an autonomous doctrine of fundamental rights in EU law, which was one of the essential purposes of the Charter.Footnote 111
The proposed text evolved somewhat over the next few weeks and by 3 July the working draft of what became Article 52(3) contained no reference to the case law of the European Court of Human Rights.Footnote 112 This bare reference to the Convention was understood by some to implicitly include the jurisprudence of the European Court of Human Rights.Footnote 113 The Council of Europe observers in the Convention were not so sanguine. In a contribution on 13 July 2000, Marc Fischbach stated that ‘[i]t will not be at all obvious – unless an express provision to that effect is included – that the minimum level of protection to be respected … will also be applicable to those rights contained in the Charter whose equivalents are to be found not in the ECHR but in the case law of the European Court of Human Rights’.
After this intervention members of the Convention proposed an amendment of the draft Charter, so as to include a reference to the case law of the European Court of Human Rights.Footnote 114 The Praesidium’s Draft Preamble of 14 July stated that ‘[t]his charter confirms the rights that arise out of…the jurisprudence of the Court of Justice of the European Communities and of the European Court of Human Rights’.Footnote 115 This is also the form of words contained in the final version of the Charter, save that the words ‘case-law’ have been substituted for ‘jurisprudence’.
In a report issued on 14 September 2000, the ‘Legal Affairs and Human Rights Council in the Parlamentary (sic) Assembly of the Council of Europe ’Footnote 116 declared itself satisfied that the reference to the European Court of Human Rights’s case law in the Preamble of the Charter ensured ‘that future developments regarding the ECHR and the Charter will be consistent and harmonious and … thus avoided destroying the common dynamic of these two instruments’.Footnote 117 Certain scholars have expressed agreement with this view.Footnote 118
However, the form in which the case law of the European Court of Human Rights was incorporated into the Charter was weaker, for several reasons, than the Council of Europe might have desired. First, the language of the Preamble does not impose an obligation to follow the case law of the European Court of Human Rights. It simply recognises that case law as a source of inspiration of the Charter.Footnote 119 Second, the Preamble accords equal importance to the human rights case law of the European Court of Justice and of the European Court of Human Rights. Thus, it is unclear how the European Court of Justice should act in the event of a contradiction between the case law of the two courts.Footnote 120
Perhaps mindful of the ambiguous status of the European Court of Human Rights’s case law in the Charter, the Legal Affairs and Human Rights Council Report repeated the Council of Europe observers’ earlier refrain that the only sure means of guarding against divergences between the Charter and Convention was for the EU to accede to the latter.Footnote 121 In a further contribution, the Council of Europe observers themselves once more recommended including a reference to the case law of the European Court of Human Rights in the operative part of the Charter text.Footnote 122 However, this proposal fell on deaf ears. Thus, the drafting history of the Charter does ‘not support a strict bindingness of the ECtHR’s case law’.Footnote 123
What is to be made of all this? In a submission to the Convention, the European Commission interpreted Article 52(3) as meaning that the rights set forth in the Charter
correspond in their meaning and scope to rights already secured by the European Convention, without prejudice to the principle of the autonomy of Union law. The risk of the case-law of the European Court of Human Rights diverging from that of the Court of Justice of the European Communities should thereby be removed.Footnote 124
This Janus-like quotation neatly encapsulates the ambivalent relationship between the Convention and the Charter, which is characterised by a perpetual tension between the competing imperatives of homogeneity, on the one hand, and institutional autonomy on the other.
In the Convention on the Future of Europe, Judge Skouris of the European Court of Justice stated that Article 52(3) ‘would confirm the current Court of Justice practice of following the interpretation given to the Convention by the European Court of Human Rights, and should not lead to a change in that satisfactory practice of the Court of Justice’.Footnote 125 On this view Article 52(3) represented a codification of the European Court of Justice’s jurisprudence under which, as we have seen, the case law of the European Court of Human Rights had been accorded significant weight, but was not regarded as binding in all circumstances.
It is submitted that this latter interpretation of Article 52(3) is the correct one. First, the text of that article is ambiguous because it could be read as referring either to the Convention as interpreted by the European Court of Human Rights, or to the text of the Convention alone. Second, this interpretation would ensure continuity with the pre-Lisbon jurisprudence of the European Court of Justice. Third, the removal of what would have been a binding obligation to follow the jurisprudence of the European Court of Human Rights from the operative text of the Charter strongly suggests that the framers of the latter distinguished between the Convention itself and the European Court of Human Rights’s interpretation thereof. This is also the interpretation supported by most post-Lisbon discussions of Article 52(3).
Post-ratification interpretations
De Búrca interprets Article 52(3) of the Charter as maintaining the pre-Lisbon position, whereby the European Court of Justice drew ‘sporadically and inconsistently on … international human rights sources’ but under which the European Court of Justice was ‘the final and authoritative arbiter of their meaning and impact within the EU’.Footnote 126
However, scholars have put forward a number of arguments in favour of interpreting Article 52(3) as imposing a binding obligation on the European Court of Justice to adhere to the case law of the European Court of Human Rights. First, many have argued that the European Court of Justice must follow the jurisprudence of the European Court of Human Rights because, pursuant to Article 45 of the Convention, the latter is the authoritative interpreter of the Convention.Footnote 127 However, EU law must determine for itself the modalities of its interaction with other legal orders. Thus, it is for EU law to determine the status of the jurisprudence of the European Court of Human Rights under the Charter.
Second, it might be argued, given that the object and purpose of Article 52(3) was to prevent divergences between the Convention and Charter, that Article 52(3) should be interpreted as requiring adherence to the European Court of Human Rights’s case law.Footnote 128 I noted above that Article 52(3) could refer to either the text of the Convention alone, or to the Convention as interpreted by the European Court of Human Rights, and thus that it was ambiguous as to the status of the jurisprudence of the European Court of Human Rights. I also noted that the drafting history supports the former interpretation, and that it is tolerably clear that the framers of the Charter did not intend to impose a binding obligation on the European Court of Justice to follow the jurisprudence of the European Court of Human Rights in all circumstances. Rather, they meant to codify the pre-existing jurisprudence of the European Court of Justice, which accorded a high degree of respect to the jurisprudence of the European Court of Human Rights but nonetheless recognised that EU law might depart from it in certain circumstances. Thus, the ‘object and purpose’ of Article 52(3) was not to render the jurisprudence of the European Court of Human Rights strictly binding.
In the case of Orlando Arango Jaramillo & Ors,Footnote 129 the court stated that ‘reference must be made’ to the jurisprudence of the European Court of Human Rights ‘in accordance with Article 52(3) of the Charter’.Footnote 130 Similarly, in S v Maahanmuuttovirasto,Footnote 131 Advocate General Bot stated that ‘[i]t should be recalled that the right to the respect for private and family life is guaranteed in Article 7 of the Charter, in the same terms as Article 8(1) of the ECHR, which means, under Article 52(3) of the Charter, that the meaning and the scope of that right must be determined by taking account of the case-law of the European Court of Human Rights in that regard’.Footnote 132
These formulations plainly accord high value to the jurisprudence of the European Court of Human Rights, and yet they do not recognise any mandatory obligation to follow it. Thus, although the court has routinely referred to the case law of the European Court of Human Rights in the interpretation of Charter provisions, it has not uniformly done so.
Beginning with those cases in which the European Court of Human Rights jurisprudence has been accepted without modification, in Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen,Footnote 133 for example, the court stated that legal persons could invoke the rights protected under Articles 7 and 8 of the Charter only insofar as the official title of the legal person contained the names of one or more natural persons, in accordance with European Court of Human Rights case law.Footnote 134 The court has referred to the jurisprudence of the European Court of Human Rights with approval in many other cases since the Charter came into force.Footnote 135
‘More extensive protection’ under the Charter
Textual analysis
The second sentence of Article 52(3) states that ‘[t]his provision shall not prevent Union law providing more extensive protection’. This sentence introduces a strange ambivalence into Article 52(3). As we have seen, its first sentence provides that the ‘meaning and scope’ of Charter rights with analogues in the Convention ‘shall be the same’, which seemingly requires homogeneity, whereas its second sentence admits that the Charter may afford ‘more extensive protection’ to these rights.
However, the import of Article 52(3) is tolerably clear. It means that, in so far as Charter rights correspond to Convention rights, the Convention provides a minimum standard beneath which the Charter may not fall. However, the text gives no guidance which might enable an interpreter to determine where and to what extent EU law affords greater protection.
Drafting history
The drafting history of the Charter makes it plain that the aim was not merely to reproduce the rights protected by the Convention. To the contrary, the drafters of the Charter sought to ‘provide added value’.Footnote 136 When Convention rights were adopted their scope was frequently widened.Footnote 137 The Explanations of the Charter provide a full list of the rights which correspond to, but nonetheless provide greater protection than, the Convention.Footnote 138 The Convention, therefore, in the view of the drafters of the Charter, constituted a ‘minimum standard,’ which EU law could exceed but never fall short of.Footnote 139
Post-ratification interpretations
Scholars have noted the tension between the first and second sentences of Article 52(3)Footnote 140 and many have arrived at the same conclusion I have, namely that the Convention provides a ‘floor’ beneath which the Charter may not fall.Footnote 141 Scholars have also pointed to the difficulty in comparing the protection afforded by human rights instruments quantitatively.Footnote 142 The Byankov case, which I shall discuss presently, shows that it can be extremely difficult to decide which of two instruments provides ‘more extensive protection’, especially where two or more rights are in tension with one another.
Whatever the original meaning of Article 52(3), it would be a considerable oversimplification to suggest that, in their interpretation of the Charter, the European Court of Justice and its Advocates General will only depart from the case law of the European Court of Human Rights in order to offer ‘more extensive protection’ than the latter. In reality, deviations from European Court of Human Rights case law have thus far been condoned by the European Court of Justice or its Advocates General in four distinct sets of circumstances. The decision of the European Court of Justice in Diouf Footnote 143 is an example of a case falling into the first category, i.e. where the text of the Charter, or the Explanations relating thereto, afford greater protection to a right than European Court of Human Rights jurisprudence. The case concerned the meaning of Article 47 of the Charter, which protects the right to an effective remedy. Article 47 of the Charter corresponds to Article 13 of the Convention, which also guarantees the right to an effective remedy. However, where Article 13 of the Convention guarantees this right only in relation to violations of rights protected by ‘this Convention’, Article 47 of the Charter guarantees an effective remedy in relation to ‘rights and freedoms guaranteed by the law of the Union’. Due to this divergence in the wording of the two instruments the court refused to confine Article 47 to violations of the Charter itself.Footnote 144
The approach of the court in Diouf is thoroughly justified according to originalist theory. Originalism accords priority to the text being interpreted and requires that the text be given the meaning reasonable interpreters would have ascribed to it at the time of its enactment. Where it is plain from its text that a particular guarantee in the Charter is broader than that contained in the Convention the European Court of Justice must interpret the Charter as providing greater protection. This is entirely consistent with Article 52(3) of the Charter, under which the Convention constitutes a floor which may be exceeded by EU law.
Åkerberg Fransson Footnote 145 is an example of a case falling into the second category, i.e. where the Convention provision concerned has not been ratified by a number of member states. The ne bis in idem or ‘double jeopardy’ principle is enshrined in both Article 4 of Protocol 7 of the Convention and in Article 50 of the Charter. The European Court of Human Rights has ruled that the imposition of both criminal and administrative penalties in respect of the same offence violates Article 4 of Protocol 7 of the Convention.Footnote 146 However, in Åkerberg Fransson, Advocate General Cruz Villalón stated that the European Court of Justice should not adhere to the case law of the European Court of Human Rights. He reasoned that, because many member states had not ratified the Convention Protocol and others had lodged reservations in respect of it,Footnote 147 the Convention did not actually guarantee the ne bis in idem principle.Footnote 148 Moreover, many member states continued to impose administrative and criminal penalties simultaneously.Footnote 149 For these reasons Advocate General Cruz Villalón suggested that the European Court of Justice should give a ‘partially autonomous interpretation’ to Article 50 of the Charter.Footnote 150 He concluded that ‘regard must be had to the current state of the case-law of the European Court of Human Rights but the protective threshold which the Court of Justice is required to respect must be the result of an independent interpretation which is based exclusively on the wording and scope of Article 50 of the Charter’.Footnote 151 The European Court of Justice implicitly agreed with Advocate General Cruz-Villalón in its judgment in Åkerberg Fransson. It held that Article 50 of the Charter permitted the simultaneous imposition of criminal and administrative penalties for the same offence.Footnote 152
The Opinion of Advocate General Cruz Villalón suggests that those aspects of the Convention which have not been unanimously ratified by the member states of the EU cannot be said to be ‘guaranteed’ by it. The exception he suggests is supported by the text of the Charter. Article 53 thereof describes the European Convention as an ‘international agreement … to which the Union or all the Member States are party’. Because Article 53 conceives of the Convention as an agreement unanimously supported by the member states, it must follow that any aspect of the Convention not supported by all member states is not included in Article 53’s reference to the Convention. It is reasonable to suppose, unless the context indicates otherwise, that a word used in one part of a text has the same meaning throughout. Thus, since Article 53 indicates that references to the Convention are to be understood as referring to those aspects of the Convention ratified by all member states, all references to the Convention in the Charter should be so construed. Therefore, Advocate General Cruz Villalón’s conclusion appears to be justified by reference to the text of the Charter.
However, the Explanations to the Charter provide that ‘[t]he reference to the ECHR covers both the Convention and the Protocols to it’. This reference to ‘the Protocols’ suggests that it refers to all of the Protocols. However, the Explanations to the Charter cannot be invoked to contradict its operative text. Article 53 plainly conceives of the Convention as something to which all member states have signed up. Therefore, if all member states have not signed up to a Convention Protocol, the rights contained therein should not be considered to be ‘guaranteed’ by the Convention for the purposes of Article 52(3).
The Byankov Footnote 153 case falls into the third category, i.e. the case law of the European Court of Human Rights was rejected because it had the potential to interfere with the operation of the internal market. The case concerned the validity of a national law which imposed limitations on the freedom of movement of Union citizens with unsecured debt in excess of a specified statutory amount. Article 27(1) of Directive 2004/38 provided an exhaustive list of grounds upon which EU citizens’ freedom of movement within the Union could be restricted, and expressly excluded economic grounds. The referring court had noted that the European Court of Human Rights permitted the imposition of limitations on the free movement of debtors in order to secure the interests of creditors, subject to certain limitations. The referring court had suggested that the unavailability of such a remedy would mean that EU law provided a lesser standard of protection to creditors than the Convention, in violation of Article 52(3) of the Charter.Footnote 154
Advocate General Mengozzi stated that the EU legal system protected freedom of movement to a considerably greater degree than the Convention.Footnote 155 He then added that ‘[t]here exists within European Union law a legal arsenal capable of guaranteeing the rights of creditors without requiring any infringement of a debtor’s freedom of movement. I do not therefore share the referring court’s concern about the existence of a level of protection that differs between the ECHR system and the European Union legal order’.Footnote 156 Thus, the Opinion of Advocate General Mengozzi in Byankov suggests, first, that the requirement in Article 52(3) of the Charter that the level of protection afforded by the Convention and the Charter be ‘the same’ does not require that identical remedies be available in both systems; functional equivalence will suffice. Second, Advocate General Mengozzi’s Opinion suggests that the requirements of the internal market may justify a refusal to accept the validity, in EU law, of remedies which are recognised as legitimate by the Convention. The European Court of Justice arrived at the same conclusion but did not engage with this point in the same level of detail as Advocate General Mengozzi.Footnote 157
The Byankov case demonstrates that the Charter does not create a strict hierarchy between fundamental rights and fundamental freedoms; the court will instead endeavour to strike a balance between the two, as it did prior to the ratification of the Treaty of Lisbon. The approach of Advocate General Mengozzi in Byankov is thoroughly justified on originalist grounds. Article 6.1 TEU states that ‘[t]he Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union … which shall have the same legal value as the Treaties’. It is plain, therefore, that the rights protected by the Charter are not superior to any of the internal market rules set out in the Treaties. Rather, the fundamental rights protected by the Charter and the market freedoms contained in the Treaties must be reconciled. In seeking to strike that balance, the court should keep the injunction in Article 52(3) in mind, however, and like Advocate General Mengozzi in Byankov, should strive for functional equivalence in the standard of protection afforded by the Charter and the Convention.
The Radu Footnote 158 case falls into the fourth category, i.e. in that case the protection afforded by the jurisprudence of the Convention was deemed to be inadequate as a normative matter. European Court of Human Rights jurisprudence required contracting states to refuse an extradition request where there was likely to be a ‘flagrant disregard’ of the rights of the accused in the event of his extradition.Footnote 159 It also required an applicant to prove the risk of flagrant disregard beyond a reasonable doubt.Footnote 160 Advocate General Sharpston considered this standard deficient for a number of reasons, including its vagueness and stringency.Footnote 161 Instead, she recommended applying a standard under which a European Arrest Warrant would be refused where ‘the deficiency or deficiencies in the trial process should be such as fundamentally to destroy its fairness’.Footnote 162 She also recommended applying a lower standard of proof, whereby an applicant would merely have to prove ‘that his objections to the transfer are substantially well founded’.Footnote 163 The European Court of Justice did not address this issue in its judgment.
It is plain that a refusal to apply European Court of Human Rights standards on normative grounds alone is not consistent with an originalist view of the Charter. Originalist theory requires an interpreter to adhere to the text of the law being interpreted. Article 52(3) plainly indicates that Charter rights with analogues in the Convention should be interpreted consistently with the latter. Although the case law of the European Court of Human Rights is not strictly binding, on an originalist view of Article 52(3), it has heavy presumptive weight and, thus, more than mere disapproval is required to justify departing from it. In Radu Advocate General Sharpston identified no textual or originalist basis for her disapproval of the European Court of Human Rights standards of review and of proof. Thus, it must be concluded that the Opinion of Advocate General Sharpston cannot be justified on an originalist interpretation of the Charter.
Conclusion
The purpose of this article has been to discern the original meaning of Article 52(3) of the Charter. Prior to attempting to reconstruct its original meaning, however, it was necessary to justify the choice of originalism as an interpretative methodology.
In the first section I described the teleological method of interpretation currently employed by the court. I also considered some of the arguments which have been put forward to justify that approach, and some of the criticisms which have been made of it, concluding ultimately that the court should not apply the teleological method to the provisions of the Charter.
In the second section of the article I considered the nature of originalism. I considered the several schools of originalist theory, concluding that a ‘new originalist’ approach, which accords priority to the public meaning words of the document rather than the intention of its framers, should be adopted by the European Court of Justice in its interpretation of the Charter.
In the third section of the article I put forward a number of arguments in favour of the adoption of an originalist approach. I argued that the adoption of an originalist approach was necessary to enable the interpretative process to be compatible with democracy and the rule of law. I also argued that the adoption of any alternative approach risked rendering superfluous the care and attention which the framers of the Charter displayed in drafting its provisions. I further argued that the adoption of an originalist approach in the interpretation of the Charter would help to clarify the meaning of its provisions and constrain the discretion of the judges charged with its interpretation.
In the fourth section of the article I considered and rejected certain arguments which have been made against the adoption of an originalist approach. Specifically, I argued that the occasional existence of textual or historical ambiguities in relation to the text being interpreted did not undermine the originalist enterprise and that the originalist justices have developed means of dealing with such ambiguity. I also rejected the suggestion that the adoption of an originalist approach implied living under the suzerainty of generations past, arguing instead that the adoption of an originalist approach in the interpretation of the Charter would enable the peoples of Europe to exercise their right to self-government over time.
In the fifth section of the article I sought to show that Article 52(3) of the Charter, on an originalist interpretation thereof, does not impose a strict obligation on the European Court of Justice to follow the case law of the European Court of Human Rights, though the court must afford such case law considerable weight.
In the sixth section of the article I sought to discern in what circumstances the European Court of Justice might legitimately, and consistently with originalist theory, depart from the jurisprudence of the European Court of Human Rights, whether to provide ‘more extensive protection’ or for some other reason. First, I concluded that this should be permitted where the text of the Charter, interpreted according to its meaning at the time of its adoption, justified a ‘more extensive’ interpretation of a Charter right. Second, I concluded that the European Court of Justice should depart from the jurisprudence of the European Court of Human Rights where that jurisprudence concerned a Convention Protocol which had not been ratified by all member states. Third, I concluded that, due to the equal status of the treaties and the Charter in the EU legal order, Charter rights had to be interpreted in a manner consistent with the requirements of the internal market, as set out in the treaties. Fourth, I argued that normative disagreement with the case law of the European Court of Human Rights did not, on an originalist analysis of Article 52(3), justify departing therefrom in the interpretation of corresponding provisions of the Charter.
The relationship between the Convention and the Charter is likely to provide an enduring theme of legal discourse in the EU for some time. This contribution has proposed that the original meaning of the Charter should be adhered to by the European Court of Justice in its delineation of the boundaries between the two instruments. In this way the wishes of the peoples of Europe may be given effect to and the democratic status of fundamental rights adjudication in Europe may be safeguarded.
