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Federal Bill of Rights’ to States: European Traits from a Comparative Perspective

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Federal Bill of Rights’ to States: European Traits from a Comparative Perspective Federal Markets “Momentum” Research Group The application of the EU ‘federal bill of rights’ to states: European traits from a comparative perspective June 21, 2016 Venue: Room 29 (groundfloor), Hungarian Academy of Sciences Nádor u. 7. 1051 Budapest, Hungary Convener: Csongor István Nagy, research chair and head of the Federal Markets “Momentum” Research Group of the Center for Social Sciences at the Hungarian Academy of Sciences 1 Federal Markets “Momentum” Research Group The respect of fundamental (human) rights is one of the cornerstones of the European Union (EU): it is a precondition of membership1 and it is listed among the core values of the Union.2 Still, EU law contains no effective mechanism to compel Member States to respect fundamental rights and freedoms in general; the EU Charter of Fundamental Rights is, in principle, addressed to EU institutions; it applies to Member States only when they implement EU law.3 The recent controversies between the European Commission and some Member States revealed that the EU’s limited powers do not enable the Commission to effectively intervene in cases where a Member State appears not to comply with the above requirements.4 Although these national measures triggered waves of protest, not infrequently, the Commission was left with very weak legal tools once political means failed. It is not an exaggeration to say that these controversies recently turned the question of the application of the federal bill of rights to states to one of the core issues of the ‘European project’, calling for effective fundamental rights protection in the EU without suppressing national constitutional identities5. Though the above approach, at least at first glance, might appear to be idiosyncratic, it is far from unprecedented and, as far as multilevel constitutionalism is concerned, EU law may draw on the experiences of various regimes where centralized human rights protection and national (state) constitutional identities coexist. First, the European Court of Human Rights (ECtHR), in its jurisprudence, accommodates the legal traditions of 47 member states and purports to reconcile the consistency of the system with national constitutional identities; while not tolerating any encroachment on the core of human rights, it does accords states a wide margin of appreciation. Second, the 1 Copenhagen criteria, established by the European Council in Copenhagen on June 21-22, 1993 (Conclusions of the Presidency). 2 According to Article 2 of the Treaty on the European Union (TEU), the EU “is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.” 3 Article 51. See e.g. Jakab, András, Application of the EU Charter by National Courts in Purely Domestic Cases (October 21, 2014). András Jakab / Dimitry Kochenov (eds), The Enforcement of EU Law and Values: Ensuring Member States’ Compliance (Oxford: Oxford University Press Forthcoming). Available at SSRN: http://ssrn.com/abstract=2512865; Michael Dougan: Judicial review of Member State action under the general principles and the Charter: defining the “scope of Union law, 52 Common Market Law Review 1201 (2015). 4 In the recent period, the Commission criticized a number of national measures, laws and institutional reforms. See e.g. Opinion on the Implementing Principles to the Slovak State Language Law Prepared by the European Commission’s Legal Service (2010), available at http://www.hhrf.org/hhrf/index.php?oldal=426; the European Commission’s Press Release of 6 July 2012 on Romania, expressing concerns “about current developments in Romania, especially regarding actions that appear to reduce the effective powers of independent institutions like the Constitutional Court”, available at http://europa.eu/rapid/press-release_MEMO-12-529_en.htm; Statement from the President of the European Commission and the Secretary General of the Council of Europe on the vote by the Hungarian Parliament of the Fourth amendment to the Hungarian Fundamental Law (Brussels, 11 March 2013), available at http://europa.eu/rapid/press-release_MEMO-13-201_en.htm. 5 See Bernhard Schima, EU fundamental rights and Member State action after Lisbon: putting the ECJ’s case law in its context, 38 Fordham International Law Journal 1097, 1113-1114 (2015). 2 Federal Markets “Momentum” Research Group above question is not (fully) new under the sun, and EU law may draw on the experiences of federal constitutional systems. Federal states have diverging approaches as to the application of the federal bill of rights to states (provinces). While, for instance, in Canada the federal bill of rights equally applies to the federal government and the provinces,6 the current EU architecture clearly parallels the first century of US constitutional law: although today, due to the incorporation doctrine, most fundamental rights valid against the federal government can be invoked also against states,7 the first century of US constitutional law reveals a federal approach similar to Article 51 of the EU Charter of Fundamental Rights. Although the US constitution sporadically established a couple of limits against states that may be regarded as human rights in nature,8 the arsenal of human rights protection as enshrined in the US Constitution’s first ten Amendments (the federal bill of rights) did not apply to states until the adoption of the 14th Amendment (after the Civil War); for a century, states were limited only by the rules of state constitutions. A similar controversy emerges in Australia, where the constitution does not enshrine a statutory bill of rights. The purpose of the special issue is present and to grasp the current European approach as to the application of the federal bill of rights to states from a comparative perspective and to explore the constitutional and jurisprudential patterns addressing the question of inquiry in a multilevel constitutional architecture. It is hoped that it will contribute to the current European debate with a new comparative perspective and foster EU constitutional development with structural patterns worthy of consideration. 6 Canadian Charter of Rights and Freedoms, Section 32(1): “This Charter applies (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.” 7 th JACQUELINE R. KANOVITZ, CONSTITUTIONAL LAW 23 (12 ed. 2010). 8 See Article I Section 10 of the US Constitution: “[n]o state shall (…) pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.” 3 Federal Markets “Momentum” Research Group Conference program 9.00-9.20 Registration 9.20-9.30 Welcoming remarks Prof. Renáta Uitz, Central European University The perspectives of comparative federalism Session chair: Prof. Renáta Uitz, Central European University 9.30-10.00 Bill of rights, federalism and states Csongor István Nagy, University of Szeged & Hungarian Academy of Sciences 10.00-10.30 The first century of US constitutional history: the pre-incorporation era Prof. Kenneth Stevens, Texas Christian University 10.30-10.45 Q&A – Discussion 10.45-11.00 Coffee break 11.00-11.30 The incorporation theory and the notion of federalism: emergence, doctrine and criticism Prof. Lee J. Strang, University of Toledo 11.30-12.00 Margin of appreciation and national constitutional identities in the ECtHR’s jurisprudence Prof. Pál Sonnevend, ELTE Law School – tbc 12.00-12.15 Q&A – Discussion 12.15 – 13.45 LUNCH 4 Federal Markets “Momentum” Research Group The application of EU human rights to Member States: national constitutional identities and margin of appreciation Session chair: Dr. Eszter Polgári, Central European University 13.45-14.15 The 'domestic' drivers of federalisation around rights: the EU case Prof. Marie-Pierre Granger & Dr. Orsolya Salát, Central European University 14.15-14.45 Market freedoms in the age of the Charter – is anything purely internal anymore? Dr. Filippo Fontanelli, University of Edinburgh 14.45-15.00 Q&A – Discussion 15.00-15.15 Coffee break 15.15-15.45 European Union Fundamental (Human) Rights, the European Ombudsman and the Member States Dr. Réka Friedery, Hungarian Academy of Sciences 15.45-16.15 International standards, national constructions and the ECtHR deferentialism: a case-study of international criminal law Dr. Tamás Hoffmann, Hungarian Academy of Sciences 16.15-16.30 Q&A – Discussion 5 .
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