166
Marta Cartabia
Troisième séance de travail — Les perspectives
d. A last point that I now wish to highlight concerns the direct effect of the
provisions of the Charter of Fundamental Rights of the European Union. This
may be a very sensitive point for national supreme and constitutional courts.
In fact, since
Simmenthal
, the doctrine of direct effect has entailed the mar-
ginalisation of national constitutional courts from the process of European
integration. Where direct effect applies, cases fall beyond the reach of consti-
tutional courts’ jurisdictions, as they are, rather, decided by ordinary judges,
‘in dialogue’ with the ECJ.
Now, the question arises as to whether, to what extent and under which
conditions the provisions of the Charter have direct effect, and consequently
empower lower national courts to set aside incompatible national legislation.
Do all the provisions of the Charter have direct effect, for the simple reason
that they deal with fundamental rights? Or is direct effect only limited to those
provisions of the Charter that meet the conditions established by the ECJ in
its case-law – i.e. that the European provisions are precise, clear and uncondi-
tional (
26
)? In some recent cases, the ECJ appears to take a very broad interpre-
tation of the direct effect of the rights enshrined in the Charter, assuming that
all the provision of the Charter are
per se
directly applicable: ‘European Union
law precludes a judicial practice which makes the obligation for a national
court to disapply any provision contrary to a fundamental right guaranteed
by the Charter conditional upon that infringement being clear from the text of
the Charter or the case-law relating to it, since it withholds from the national
court the power to assess fully with, as the case may be, the cooperation of the
Court of Justice, whether that provision is compatible with the Charter’ (
27
).
Should this approach be confirmed, the role of national constitutional
courts in the protection of fundamental rights will dramatically shrink. It
might be useful and desirable for national judges if the ECJ in the near future
would make clear what provisions of the Charter have direct effect and under
which conditions they are supposed to be applied by national judges following
the
Simmenthal
doctrine.
7. Originally, a multilevel European system for the protection of funda-
mental rights developed, thanks to the relevance attached to ‘external con-
trols’. National States had proved to be unreliable guardians of their citizens’
(
26
) B. De Witte,
The Continuous Significance of Van Gend en Loos,
in M. Poiares Maduro and L.
Azoulai (eds),
The Past and Future of EU Law,
quoted, pp. 9-16.
(
27
) ECJ judgment of 26 February 2013in Case C-617/10,
Åkerberg Fransson
, paragraph 48.
