Fundamental rights and the effectiveness of European Law

The present contribution deals with the troubled relationship between fundamental rights and the effectiveness of the European law. As legal theorists know, the normative value of fundamental individual rights is not necessarily the same in every circumstances. Rather, fundamental rights must be weighted in case of conflict, against others interests of the same value. In accordance with such general assumption, the ECJ has consistently held that the protection of individual fundamental rights ought to be balanced against other fundamental interests of European constitutional law. The ancestry of this principle is probably Internationale Handelsgesellschaft where the Court, after clarifying that “respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice” went on saying :” the protection of such rights, whilst inspired by the constitutional traditions common to the member states, must be ensured within the framework of the structure and the objectives of the Community”. Among the interests, which can lawfully interfere with the protection of individual rights, the ECJ has constantly identified the need to preserve the unity and the effectiveness of European law. In normative perspective, this is quite an obvious proposition. In modern legal orders, the effectiveness of law constitutes a value by itself, which transcends the hierarchical rank of the individual legal rules at stake. Quite the contrary, it depends on a number of factors and circumstances, which include also the normative value of the particular rule whose effectiveness is at stake. These two sets of interests – the need to protect fundamental individual rights and the interest to safeguard the effectiveness of EU law- are highly heterogeneous, the one being an individual right whereas the other is collective in nature. It is, therefore quite arduous to commensurate their respective weight in the context of a conflict. In the ECJ case law, the infinite variety of forms of weighing between them can be categorised into three models, which broadly describe the mutual position of either interest, in relation with the other. In the first – the asymmetrical model- the two interests are accorded different value, with the consequences that one of them must be accommodated within the priority granted in principle to the other. In the second – the symmetrical model-, the two terms are normatively equivalent, with the consequence that none of them can be accorded absolute protection. In the third – model of cooperation- the two interests, far from clashing, tend to reinforce each other mutually and concur in determining a normative balance in which each one is conveniently accommodated. In each of these three models, the ECJ tends to recognise a considerable, yet varying, role of the margin of appreciation of national authorities. In particular, while reserving for itself the task to determine the level of interest to safeguard the effectiveness of EU law, the ECJ seems to have bestowed upon the national authorities, and in particular upon national judges, the task to determine the general interests which can lawfully interfere with it, and to determine on a case-by-case basis the intensity of admissible interference.