Does the EU charter of fundamental rights threaten the supremacy of community law?

Common Market Law Review

Volumn 38, Issue 5, 2001, Pages 1171-1199

  Liisberg, Jonas Bering ^a  

^a Udenrigsministeriet   (Denmark)

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[No Author keywords available]

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EID: 0035624518     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: 10.1023/A:1012907030538     Document Type: Article

References (90)

1. O.J. 2000, C 364/01. For a general account of the Charter, see de Búrca, "The Drafting of the European Charter of Fundamental Rights", 26 EL Rev. (2001), 126-138, and Lenaerts and de Smijter, "A 'Bill of Rights' for the European Union", 38 CML Rev. (2001), 273-300.
2. O.J. 2000, C 364/01. For a general account of the Charter, see de Búrca, "The Drafting of the European Charter of Fundamental Rights", 26 EL Rev. (2001), 126-138, and Lenaerts and de Smijter, "A 'Bill of Rights' for the European Union", 38 CML Rev. (2001), 273-300.
3. The connection between the EU human rights system and the ECHR may cause some terminological confusion. First, the parallel to Art. 53 in the ECHR is incidentally also called Art. 53. Throughout this article, any reference to Art. 53 of the ECHR will be followed by "ECHR", except in sections that deal exclusively with the ECHR. Second, when this article just refers to "the Court", it is the ECJ unless the context clearly indicates otherwise.
4. See CHARTE 4123/1/00 Rev 1 CONVENT 5 of 15 Feb. 2000. See the Council Charter database (http://ue.eu.int) for an (incomplete) collection of the documents.
5. See CHARTE 4111/00 BODY 3 of 20 Jan. 2000.
6. See CHARTE 4136/00 CONTRIB 29 of 28 Feb. 2000. The Council of Europe observers suggested that the Convention recommend to the IGC, as a complement to the adoption of the Charter, that the EC/EU accede to the ECHR. From the beginning, Chairman Herzog dismissed such ideas as going beyond the Cologne mandate.
7. See CHARTE 4135/00 CONVENT 7 of 21 Feb. 2000.
8. See CHARTE 4149/00 CONVENT 13 of 8 March 2000.
9. See CHARTE 4199/00 CONTRIB 80 of 5 April 2000, point 12 and considerations F and R of the preamble.
10. See CHARTE 4305/00 CONVENT 31 of 12 May 2000. The amendment proposed by the Council of Europe was close to draft Art. Y, but stressed the need for a reference to the case law of the ECtHR (See CHARTE 4178/00 CONTRIB 61 of 28 March 2000; not available in database).
11. See CHARTE 4235/00 CONVENT 27 of 18 April 2000.
12. There is no official record of this meeting available from the Council database. The account here is primarily based on minutes from the meeting drawn up by staffers to Convention Members from the Danish Parliament, in a note addressed to the Danish Parliamentary Committee on European Affairs (Info-note I 147 (99/00)), publicly available, in Danish, on the web site of the Danish Parliament (http://www.eu-oplysningen.dk/folketinget/europaudvalget).
13. See CHARTE 4316/00 CONVENT 34 of 16 May 2000.
14. The document, more than a thousand pages long, is not available in the Council Charter database.
15. See CHARTE 4383/00 CONVENT 41 of 3 July 2000. In the following, the document will be referred to as the document de synthese.
16. Amendment No. 425, as referred to in the document de synthese of the Secretariat, loc. cit. supra note 14. It is striking that the Secretariat did not indicate why this radical proposal was made (see thoughts on this issue in note 21 infra).
17. Amendment No. 328, loc. cit. supra note 14.
18. My translation from Danish as quoted in Olsen and Bonde, EUs Charter: Menneskerettighedserklœring eller Forfatning for Europas Forenede Stater? (The EU Charter: Declaration of Human Rights or a Constitution for the United States of Europe?) (Vindrose, 2000), p. 18. Bonde was one of only three Members of the Convention who did not positively endorse the final draft of the Charter at the final meeting on 2 Oct. 2000.
19. Amendments No. 429 and No. 426, loc. cit. supra note 14.
20. This amendment is not referred to in the Secretariat document de synthese section on draft Art. 49. For a possible explanation, see note 21 infra.
21. Amendment No. 436 (Dehaene, Belgian government representative, De Gucht and Lallemand, Belgian parliamentarians), loc. cit. supra note 14.
22. Amendment No. 440. Again it is worth noting that the Secretariat did not refer to this element of the proposal in its document de synthese, see also notes 15, 17 and 19 supra, about the Cederschiöld, Bonde and Friedrich/Mombaum amendments. Based on the missing or incomplete references to these four amendments, which were the only amendments to touch on the supremacy issue, it might be suspected that the Secretariat, by its selections, pursued a "let sleeping dogs lie" strategy. It would be regrettable if such a deliberate suppression of the issue did in fact occur.
23. Amendments No. 433 (Tarchy, Swedish government representative), No. 434 (Voggenhuber, Austrian MEP, The Greens/E.F.A. Group), and No. 426 (Dehousse, Belgian MEP, European Socialists Group), loc. cit. supra note 14.
24. As earlier indicated, see 2.3. supra, the opposing sides were, on the one hand, the UK, Sweden, Denmark, Ireland, the Netherlands and Finland, who all more or less insisted on such a reference and, on the other hand, Spain, Italy, Greece and France, who strongly opposed any such reference.
25. They were the following: Amendments No. 427 and No. 428 (Rodriguez-Bereijo, Spanish government representative, and Tura, Spanish parliamentarian; deletion of reference to conventions to which the "Union" was party; Tarchy also supported such a deletion, although not apparent from the document de synthese); Amendment No. 438 (Moura and Azevedo, Portuguese parliamentarians; inclusion of reference to other conventions); Amendment No. 435 (Van den Burg, Dutch MEP, European Social Democrats Group; inter alia, inclusion of reference to jurisprudence in general); Amendment No. 439 (Berès, French MEP, European Socialist Group; reference to stronger national protection measures); Amendments No. 265 (Meyer, German parliamentarian) and No. 440 (Einem and Holoubek, Austrian parliamentarians; both suggesting a reference to economic and social rights, see also supra note 21).
26. Based on information from EU officials closely involved in the drafting. The document de synthese, loc. cit. supra note 14, does not refer to the accompanying reasons of Jansson's amendment.
27. There is no official record of this meeting available from the Council database. The account here is based on information from participants in the Convention and on Danish parliamentarian minutes from the meeting, (Info-note I 188 (99/00), loc. cit. supra note 11.
28. Based on information from participants in the Convention.
29. See CHARTE 4422/00 CONVENT 45 (Draft Charter) of 28 July 2000 and CHARTE 4423/00 CONVENT 46 (Draft Charter with explanations) of 31 July 2000.
30. See CHARTE 4477/00 CONTRIB 328 of 30 Sept. 2000, by which the Secretariat distributed Commission Communication (COM(2000) 559 final) to Members of the Convention.
31. See CHARTE 4470/1/00 REV 1 CONVENT 47 of 21 Sept. 2000.
32. See CHARTE 4487/00 CONVENT 50 (Charter text) of 11 Oct. 2000 and CHARTE 4473/00 CONVENT 49 (Charter text with explanations) of same date.
33. See COM(2000) 644 final of 11 Oct. 2000.
34. The policy dates back to the 1977 Joint Declaration on Human Rights of the Parliament, Council and Commission (O.J. 1977, C 103/1), followed up by the Parliament's Draft Treaty on a European Union from 1984 (O.J. 1984, C 77/33). See Rack and Lausegger, "The Role of the European Parliament: Past and Future", and Bradley, "Reflections on the Human Rights Role of The European Parliament", both in Alston (Ed.), The EU and Human Rights (OUP, 1999), pp. 801-837 and 839-858. See also note 35 infra. 34. O.J. 1989, C 120/51. The non-binding Declaration has been invoked by plaintiffs in a few cases and was cited as inspiration in the Opinion in Case C-159/90, Grogan, [1991] ECR I-4685.
35. The policy dates back to the 1977 Joint Declaration on Human Rights of the Parliament, Council and Commission (O.J. 1977, C 103/1), followed up by the Parliament's Draft Treaty on a European Union from 1984 (O.J. 1984, C 77/33). See Rack and Lausegger, "The Role of the European Parliament: Past and Future", and Bradley, "Reflections on the Human Rights Role of The European Parliament", both in Alston (Ed.), The EU and Human Rights (OUP, 1999), pp. 801-837 and 839-858. See also note 35 infra. 34. O.J. 1989, C 120/51. The non-binding Declaration has been invoked by plaintiffs in a few cases and was cited as inspiration in the Opinion in Case C-159/90, Grogan, [1991] ECR I-4685.
36. The policy dates back to the 1977 Joint Declaration on Human Rights of the Parliament, Council and Commission (O.J. 1977, C 103/1), followed up by the Parliament's Draft Treaty on a European Union from 1984 (O.J. 1984, C 77/33). See Rack and Lausegger, "The Role of the European Parliament: Past and Future", and Bradley, "Reflections on the Human Rights Role of The European Parliament", both in Alston (Ed.), The EU and Human Rights (OUP, 1999), pp. 801-837 and 839-858. See also note 35 infra. 34. O.J. 1989, C 120/51. The non-binding Declaration has been invoked by plaintiffs in a few cases and was cited as inspiration in the Opinion in Case C-159/90, Grogan, [1991] ECR I-4685.
37. See also comments by Weiler to Art. 27 in Bieber et al. (Eds.), Au nom des peuples européens - In the name of the peoples of Europe (Nomos, 1996), pp. 350-51, where one will find the origins of the author's suspicions about Art. 53 of the Charter: "[Art. 27 is an] ill-drafted provision [which] may misleadingly suggest that the standard of protection of human rights within the field of Community law must always correspond to the 'highest' standard of protection to be found in the European, or even international, space ...Clearly, Article 27 cannot compromise, for example, the overall principle of supremacy of Community law vis-à-vis Member State law".
38. O.J. 1994, C 61/155, Draft Constitution for the European Union of 10 Feb. 1994.
39. Art. 53 used to be Art. 60, before the ECHR was amended by the 11th Protocol which restructured the control machinery of the ECHR (see ETS No. 155). The Protocol entered into force on 1 Nov. 1998.
40. See Decaux, "Article 60", in Pettiti (Ed.), La Convention Européenne des Droits de l'Homme - Commentaire Article par Article (Economica, 1995), p. 897 with references.
41. See ETS No. 35. The Charter was revised in 1996 (see ETS No. 168), a revision which entered into force in 1999. Art. 32 from the original Charter is called Art. H in the revised Charter, but its wording is unchanged.
42. See Commission decisions in the following cases, which involved claims relating to the European Social Charter and the ICESCR: Markonpolou et al. v. Greece, App. 20665/92 et al. decided on 6 April 1992, and M.K. et al v. Greece, App. 20723/92 et al. decided on 1 Dec. 1993. Decisions of the Commission dismissing applications are authoritative precedents. Commission decisions were not reported systematically but are publicly available, along with all Court decisions, at the web site of the European Court of Human Rights (http://www.echr.coe.int/hudoc.htm).
43. See Open Door v. Ireland (1992), A-246, paras. 78-79. Compare the similar Grogan case before the ECJ one year earlier, cited supra note 34.
44. See Jersild v. Denmark (1994), A-298, paras. 21, 27 and 30.
45. See Gustafsson v. Sweden (1996), Reports 1996-11, Vol. 9, para 53 and para 12 of the dissenting opinion by Judge Martens.
46. See Ekbatani v. Sweden (1988), A-134, para 26, and Burghartz v. Switzerland (1994), A-280-B, paras. 22-23. See also concurring opinion by three Judges in Maaouia v. France (2000), nyr, but available through the web-based database.
47. See Handyside v. UK (1976), A-24, para 54. Compare the similar case before the ECJ three years later, Case 34/79, Henn and Darby, [1979] ECR 3795.
48. In a few other judgments, Art. 53 has been referred to in dissenting and concurring opinions. In Golder v. UK (1975), A-18, two dissenting Judges invoked Art. 53 to argue that the ECHR should be interpreted narrowly in dubio mitius. See similar dissenting opinion in the earlier Wemhoff v. FRG (1968), A-7. In De Wilde v. Belgium (1972), A-14, a collective separate opinion of five Judges stated, as dictum, that if Belgian legislation provided for more protection of detained persons than required by Art. 5 ECHR, it followed from Art. 53 that the Belgian authorities should apply Belgian law. See also concurring opinion by Judge Morenilla in Nortier v. the Netherlands (1993), A-267, and dissenting opinion by Judges Kûris et al. in Nilsen v. Norway (2000, nyr).
49. The main articles are two shorter pieces by former Judge of the ECtHR, Jan de Meyer, "Brève réflexions a propos de l'article 60 de la Convention européeenne des droits de l'homme", in Matscher and Petzold (Eds.), Protecting Human Rights: The European Dimension ? Studies in Honour of Gerard J. Wiarda (Heymanns, 1988), pp. 125-129, and by Decaux, op. cit. supra note 38. Standard works on the ECHR, such as Harris et al., Law of the ECHR (Butterworths, 1995),
50. The main articles are two shorter pieces by former Judge of the ECtHR, Jan de Meyer, "Brève réflexions a propos de l'article 60 de la Convention européeenne des droits de l'homme", in Matscher and Petzold (Eds.), Protecting Human Rights: The European Dimension ? Studies in Honour of Gerard J. Wiarda (Heymanns, 1988), pp. 125-129, and by Decaux, op. cit. supra note 38. Standard works on the ECHR, such as Harris et al., Law of the ECHR (Butterworths, 1995),
51. and Dijk and Hoof, Theory and Practice of the ECHR (Kluwer, 1998), 2nd ed., hardly mention Art. 53.
52. The Committee, which issued its conclusions in 1969, addressed the co-existence of the ECHR and the International Covenant on Civil and Political Rights (ICCPR). It found that Art. 53 and its counterpart in the ICCPR, Art. 5(2) have the effect of excluding that provisions in one instrument may limit the other and that restrictions allowed by one treaty should not be invoked to limit the rights under the other treaty. The Committee also concluded that this does not mean that the most favourable provision of one treaty is automatically incorporated into the other system. See Meyer, op. cit. supra note 47, p. 126.
53. See Art. 5(2) ICCPR (999 UNTS 171). Art. 5(2) of the ICESCR (993 UNTS 3) differs only slightly and insignificantly from Art. 5(2) ICCPR, see Craven, The International Covenant on Economic, Social and Cultural Rights (Clarendon Press, 1995), p. 281.
54. See Joseph et al., The International Covenant on Civil and Political Rights (Clarendon Press, 2000), p. 8, Nowak, The UN Covenant on Civil and Political Rights: CCPR Commentary
55. See, inter alia, Art. 29(b) of the Inter-American Convention of Human Rights and Art. 10 of the UNESCO Convention against Discrimination in Education.
56. This section is primarily based on Tribe, American Constitutional Law, 2nd ed. (Foundation Press, 1988), pp. 774-777, 962, 1308-1309, Caplan, "The History and Meaning of the Ninth Amendment", 69 Virginia Law Review (1983), 223-268, and Palmer, Constitutional Amendments (Gale Group, 2000), pp. 203-219.
57. This section is primarily based on Tribe, American Constitutional Law, 2nd ed. (Foundation Press, 1988), pp. 774-777, 962, 1308-1309, Caplan, "The History and Meaning of the Ninth Amendment", 69 Virginia Law Review (1983), 223-268, and Palmer, Constitutional Amendments (Gale Group, 2000), pp. 203-219.
58. This section is primarily based on Tribe, American Constitutional Law, 2nd ed. (Foundation Press, 1988), pp. 774-777, 962, 1308-1309, Caplan, "The History and Meaning of the Ninth Amendment", 69 Virginia Law Review (1983), 223-268, and Palmer, Constitutional Amendments (Gale Group, 2000), pp. 203-219.
59. The quotes, compiled from the sources in note 58 supra, pertain to the following: E. Randolph ("an opiate", 1789), C. Black ("a fountain of law", 1981), and R. Bork ("an inkblot", 1987).
60. The quotes, compiled from the sources in note 58 supra, pertain to the following: E. Randolph ("an opiate", 1789), C. Black ("a fountain of law", 1981), and R. Bork ("an inkblot", 1987).
61. The quotes, compiled from the sources in note 58 supra, pertain to the following: E. Randolph ("an opiate", 1789), C. Black ("a fountain of law", 1981), and R. Bork ("an inkblot", 1987).
62. See Griswold v. Connecticut, 381 U.S. 479 (1965).
63. See opinion by Justices O'Connor, Kennedy and Souter in Planned Parenthood v. Casey 505 U.S. 833 (1992). See also Justice Burgers' opinion in Richmond Newspapers v. Virginia, 448 U.S. 555 (1980) on public access to trials.
64. Tribe, op. cit. supra note 58, pp. 774-777, see especially footnote 14. Numerous other theories have been offered, from the vastly expansionist to the extremely restrictive.
65. The presentation of the theory in this article is primarily based on exchanges with Prof. Weiler, who suspects that Art. 53 could lead to new challenges to the supremacy of Community law before national courts. See also Weiler's comments on Art. 27 of the European Parliament Human Rights Declaration, op. cit. supra note 35.
66. See comments by French government Alternate Member of the Convention, Dutheil de Ia Rochère, "La charte des droits fondamentaux de l'Union européenne", 443 RMC (2000), 678-79 ("On notera incidement que l'article 53 de la Charte fait du respect des Constitutions des États membres un standard minimum, ce qui peut à l'avenir être un élément dans le débat sur l'articulation entre droit communautaire/droit de l'Union et droit consitutionnel national"), and de Schutter, intervention at a seminar in Strasbourg, June, 2000, recorded in 12 Révue Universelle Des Droits de l'Homme (2000), 2-68, at 49 ("La primauté du droit communautaire n'est-elle pas menacée par une telle reference [aux constitutions des États membres]?" Member of the Convention, Duff (MEP), also seems to be aware of the theory but finds that Art. 53 does not dilute "the important general principle of [EC] law concerning uniformity of application", see Duff, "Towards a European Federal Society", in Feus (Ed.), The EU Charter of Fundamental Rights - text and commentaries (Logan Page, 2000), pp. 13-27, at p. 21.
67. See comments by French government Alternate Member of the Convention, Dutheil de Ia Rochère, "La charte des droits fondamentaux de l'Union européenne", 443 RMC (2000), 678-79 ("On notera incidement que l'article 53 de la Charte fait du respect des Constitutions des États membres un standard minimum, ce qui peut à l'avenir être un élément dans le débat sur l'articulation entre droit communautaire/droit de l'Union et droit consitutionnel national"), and de Schutter, intervention at a seminar in Strasbourg, June, 2000, recorded in 12 Révue Universelle Des Droits de l'Homme (2000), 2-68, at 49 ("La primauté du droit communautaire n'est-elle pas menacée par une telle reference [aux constitutions des États membres]?" Member of the Convention, Duff (MEP), also seems to be aware of the theory but finds that Art. 53 does not dilute "the important general principle of [EC] law concerning uniformity of application", see Duff, "Towards a European Federal Society", in Feus (Ed.), The EU Charter of Fundamental Rights - text and commentaries (Logan Page, 2000), pp. 13-27, at p. 21.
68. See comments by French government Alternate Member of the Convention, Dutheil de Ia Rochère, "La charte des droits fondamentaux de l'Union européenne", 443 RMC (2000), 678-79 ("On notera incidement que l'article 53 de la Charte fait du respect des Constitutions des États membres un standard minimum, ce qui peut à l'avenir être un élément dans le débat sur l'articulation entre droit communautaire/droit de l'Union et droit consitutionnel national"), and de Schutter, intervention at a seminar in Strasbourg, June, 2000, recorded in 12 Révue Universelle Des Droits de l'Homme (2000), 2-68, at 49 ("La primauté du droit communautaire n'est-elle pas menacée par une telle reference [aux constitutions des États membres]?" Member of the Convention, Duff (MEP), also seems to be aware of the theory but finds that Art. 53 does not dilute "the important general principle of [EC] law concerning uniformity of application", see Duff, "Towards a European Federal Society", in Feus (Ed.), The EU Charter of Fundamental Rights - text and commentaries (Logan Page, 2000), pp. 13-27, at p. 21.
69. It is well-established that only the ECJ can declare Community measures void as incompatible with Community law, see Case 314/85, Foto Frost, [1987] ECR 1129. An argument has been made that national courts would be able to declare a Community measure which contravenes the ECHR inapplicable, if the Member State (as is the case for all Member States except France) became a Contracting Party to the ECHR before it became a Member of the EU/EC/EEC, cf. Art. 30 of the Vienna Convention of the Law of Treaties and Case C-158/91, Levy, [1993] ECR I-4287 (regarding an ILO convention). See Besselink, "Entrapped by the Maximum Standard: On Fundamental Rights, Pluralism and Subsidiarity in the European Union", 35 CML Rev. (1998), 629-680, at 659-662. The argument is debatable, and in any case only relates to conventions, not constitutions.
70. See, inter alia. Case 44/79, Hauer, [1979] ECR 3727 concerning the right to property.
71. Compare answer by Jacqué, Head of the Convention Secretariat, to de Schutter at the Strasbourg seminar referred to in note 54 supra: "Ceci [la référence au champ d'application respectif] veut dire que la Charte ne porte pas atteinte aux disposition nationals lorsqu'il s'agit de compétences appertenant aux États membres, mais que bien entendu la primauté du droit communautaire reste dans le cadre des compétences communautaires".
72. The important cases are Case 5/88, Wachauf, [1989] ECR 2609; Case 260/89, ERT, [1991] ECR I-2925; and Case C-368/95, Bauer Verlag, [1997] ECR-I 3689. For two recent cases that fell outside the scope of Community law, see Cases C-299/95, Kremzow, [1997] ECR I-2629, and C-309/96, Annibaldi, [1997] ECR I-7493.
73. As Judge Lenaerts of the CFI famously remarked more than ten years ago: "There simply is no nucleus of sovereignty that the Member States can invoke, as such, against the Community": Lenaerts, "Constitutionalism and the Many Faces of Federalism", 38 AJCL (1990), at 220.
74. The reference to "Union law" in Art. 53 is somewhat puzzling. If the Charter is incorporated into EU law, it will itself be part of EU law. Such a hall-of-mirrors effect could lead to all kinds of theories, which could support either view on the supremacy question. The last sentence of Art. 52(3) already makes clear that Union law shall not be prevented from providing more extensive protection.
75. One might indeed just as well turn the argument around, and say that the explanations only mention the ECHR as a minimum standard, not the other instruments - and thus that the explanations recognize that other instruments referred to, including the constitutions, do not serve as minimum standards in the Community legal order.
76. See, e.g., the ERT case, cited supra note 68, para 41. Note that not all Member States have to be Contracting Parties to a treaty for the Court to be able to draw inspiration from it.
77. See the clear message from the Court in the Hauer case, cited supra note 66, para 14: "The introduction of special criteria for assessment stemming from the legislation or constitutional law of a particular Member State would, by damaging the substantive unity and efficacy of Community law, lead inevitably to the destruction of the Common Market and the jeopardizing of the cohesion of the Community".
78. Related to this argument, see for a peculiar reading of Art. 53 of the ECHR, Besselink, op. cit. supra note 165, 657-59 and 664-66. The author states quite unconditionally (apparently oblivious to the Open Door case) that the ECHR "assumes that national law in the sphere of fundamental rights has priority over the international regime". On this basis he concludes that the EU cannot accede to the ECHR unless it can be assured that Art. 53 ECHR would not apply to the Community, p. 666. This theory has been discussed earlier, see Jacqué, "The Convention and the European Communities", in Macdonald et al. (Eds.), The European System for the Protection of Human Rights (Nijhoff, 1993), pp. 889-907.
79. See de Witte, "Direct Effect, Supremacy, and the Nature of the Legal Order", in Craig and de Bürca (Eds.), The Evolution of EU law (OUP, 1999), pp. 177-213, at p. 209, who notes that, curiously, the supremacy clause in federal systems such as the American and the German plays a much less prominent role in the judicial practice of those States than the comparable doctrine of EC law.
80. See the Maastricht case from the German Federal Constitutional Court, Brunner, [1994] 1 CMLR 57, which follows on the earlier German cases, Solange I, [1974] 2 CMLR 540, and Solange II, [1987] 3 CMLR 225, and has been clarified in a recent case from June 2000, see von Bogdandy, "The European Union as a Human Rights Organization?", 37 CML Rev., 1307, at 1322-1323. See also the Maastricht Case of the Danish Supreme Court, Carlsen, [1999] 3 CMLR 854, and the Frontini case of the Italian Constitutional Court, [1974] 2 CMLR 372.
81. See Craig and de Biirca, EU Law (OUP, 1998), at p. 292 ("This continuing tension is at the heart of the constitutional relationship between Community law and national law, but it does not necessarily point to a dangerous impasse or a crisis for the Community legal system").
82. See on this question, Weiler, The Constitution of Europe (CUP, 1999), pp. 295-96. For an interesting theory about the root-causes of what could perhaps be termed "the public-international-law-alienation of the Community legal order", see Spiermann, "The Other Side of the Story", 10 EJIL (1999), 763-789.
83. See on this question, Weiler, The Constitution of Europe (CUP, 1999), pp. 295-96. For an interesting theory about the root-causes of what could perhaps be termed "the public-international-law-alienation of the Community legal order", see Spiermann, "The Other Side of the Story", 10 EJIL (1999), 763-789.
84. The force of this parallel to the ICCPR is somewhat weakened by the fact that Art. 46 ICCPR explicitly provides that nothing in the Covenant shall be interpreted as impairing the provisions of the UN Charter. It is my contention, however, that even without such a clause, an argument based on Art. 5(2) as described would clearly fail.
85. Von Bogdandy, op. cit. supra note 76, mentions that Arts. 52(3) and 53 might support (in his opinion unconvincing) arguments in favour of a maximalist theory, p. 1328. Lenaerts, "Fundamental Rights in the European Union", 25 EL Rev. (2000), 575-600, finds that "the Charter contains a potential for growth of the material scope of protection of fundamental rights", but relates this to Art. 52(3), p. 600. His only comment on Art. 53 is short and somewhat imprecise ("Article 53 makes it clear that the existing law should in any case be seen as a minimum level of protection"), p. 600, footnote 10. See similar comments in Lenaerts and de Smijter, op. cit. supra note 1, 287-88, and on the relationship between Arts. 52(3) and 53 at 294-95.
86. The three theories are discussed in detail - and rejected - in the full version of my paper, loc. cit. supra note *.
87. Besselink, op. cit. supra note 65, seems to be the most cited adherent to the maximalist theory in recent writings, see e.g. von Bogdandy, op. cit. supra note 76, 1324, and de Witte, "The Role of the ECJ in the Protection of Human Rights", in Alston (Ed.), op. cit. supra note 33, pp. 878-881, at p. 881, neither of whom agrees with the theory.
88. See the extensive argument against the maximalist approach developed by Weiler, op. cit. supra note 78, pp. 107-16.
89. With regard to the ECHR, see Harris, op. cit. supra note 47, pp. 6-9. The principle has long been expressed by the ECtHR in the catchy phrase that "the [ECHR] is a living instrument which must be interpreted in the light of present-day conditions", see, inter alia, Loizidou v. Turkey (1995), A-310, para 71.
90. See Decaux, op. cit. supra note 38, p. 900.