In a judgment dated 1 December 2020 (2 BvR 1845/18 and 2 BvR 2100/18) the German Federal Constitutional Court allowed, for breach of Article 4 of the EU-Charter (prohibition of ill-treatment), constitutional complaints against judgments by ordinary courts allowing the execution of two European arrest warrants (EAW). It thereby specified the methodology to be applied by German courts when dealing with such matters.
One of the striking elements of this methodology is the global perspective underlying it, i.e. its endeavour to apply Union law while at the same time have due regard to the requirements of the European Convention on Human Rights (the Convention) and national constitutional law. The result is an integrated approach combining and harmonizing the application to the facts of the case of those three co-existing sources of fundamental rights, thereby respecting the specificities of each of them. Key considerations of the judgment regarding the methodological issues raised by the case include:
- The field of the EAW has been entirely regulated by Union law. Consequently, compliance with the fundamental rights of the persons concerned is to be assessed in light of the EU Charter only, to the exclusion of the national Constitution.
- The Constitutional Court is competent to assess that compliance on the basis of the EU Charter, unless a referral for a preliminary ruling by the CJEU is required (Art. 267 TFEU). This assessment is to be done having regard to the case-law of the European Court of Human Rights (Art. 52(3) of the EU-Charter) and of the Constitutional and Supreme Courts of the other EU Member States (Art. 52(4) of the EU-Charter)
- In the case at hand the requirements of Art. 4 of the EU-Charter, as set out by the CJEU, are in line with:
- Art. 3 of the Convention, as interpreted by the European Court of Human Rights (Art. 52(3) of the EU-Charter)
- The constitutional requirement of respect for human dignity (Art. 1 (1) of the German Constitution)
- Consequently, Art. 4 of the EU-Charter can be applied as such to the present case.
By having due regard to the requirements of the Convention when applying EU law and EU fundamental rights, the German Constitutional Court in fact, though not explicitly, takes into account the well-established Strasbourg case-law according to which the application of Union law has to be compliant with the Convention and can be made the subject of an application before the European Court of Human Rights (see, as regards a EAW, the judgments by the European Court of Human Rights in the cases of Pirozzi v. Belgium, 17.4.2018, no. 21055/11and Romeo Castaño v. Belgium, 9.7.2019, no. 8351/17). This is also one of the main reasons why Article 52(3) of the EU-Charter requires that in respect of the rights which the EU-Charter and the Convention have in common, the level of protection guaranteed by the Charter should not fall below the Convention level. Otherwise, domestic courts applying EU law might indeed see their judgments being found in breach of the Convention because the latter’s standards are higher than those of the EU.