Dorota Leczykiewicz: Melloni and the future of constitutional conflict in the EU

leczykiewicz_dorotaConstitutional conflict is a leitmotif of the relationship between EU law and national law. Courts of EU Member States are under a dual obligation of loyalty. On the one hand, they need to apply and respect their own laws, but on the other, they also need to ensure effectiveness of norms of the EU legal order. In the event of conflict, the principle of supremacy of Union law tells them to disapply conflicting national rules. Member States’ courts to a large extent accept that obligation, although they usually exclude from its ambit conflicts between EU law and state constitutions. For this reason, the best tactic for the Court of Justice of the EU is to avoid situations where EU law would require from national courts to act in violation of the state constitution. The Court of Justice has developed various techniques to deal with such instances of potential constitutional conflict. The controversial issue may be brought outside the scope of EU law (Grogan), EU law may be recognised to protect the same constitutional right and to the same far-reaching extent (Omega Spielhallen), or the principle of respect for national identity, as laid down by Article 4(2) of the Treaty on the European Union, may be used to allow national norms to remain applicable even when they undermine effectiveness of an EU norm (as I discuss here). In a recent judgment in the Melloni case(Case C-399/11, Judgment of 26 February 2013) the Grand Chamber of the Court of Justice of the EU decided not to use any of these techniques. Instead an EU Framework Decision was held to prevail over the Spanish Constitution.

Mr Melloni, while present in Spain, was facing trial for a bankruptcy fraud before an Italian court. A Spanish court authorised his extradition to Italy but in the same time released him on bail. Mr Melloni fled and never appeared before the Italian court. The trial took place in his absence, although in the presence of lawyers that Mr Melloni had himself appointed. Mr Melloni was convicted. The decision was upheld by all levels of Italian judiciary. Some years later Mr Melloni was arrested by the Spanish police. In 2008 a European Arrest Warrant was issued by the Italian court requesting Spanish authorities to surrender Mr Melloni. The Spanish court authorised the surrender, after which Mr Melloni lodged a petition for a constitutional protection before the Spanish Constitutional Court. He claimed that if he was surrendered to Italy Article 24(2) of the Spanish Constitution guaranteeing the right to a fair trial would be violated. The right to a fair trial, as protected by the Spanish Constitution, entailed that he should not be surrendered without Spain imposing on Italy a condition that he would be able to challenge the result of his Italian trial, a possibility which did not exist under Italian law.

The right to a fair trial

Melloni may be read as a case concerning merely the scope of the right to a fair trial. Should Mr Melloni have a possibility to ask for a retrial in Italy? Does the fact that he chose his lawyers and was represented by them during a trial from which he was absent justify his surrender to Italy to execute a custodial sentence even if he was unable to ask for a retrial? The European Arrest Warrant (EAW) Framework Decision (2002/584 as amended by Framework Decision 2009/299), on the basis of which Mr Melloni’s surrender would take place, does offer some protection to the right to a fair trial. It provides that the executing judicial authority may refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence if the convicted person did not appear in person at the trial. This discretion is however excluded in three sets of circumstances, including when the person was summoned in due time and informed that a decision might be handed down if she did not appear for the trial, or she had given a mandate to a legal counsellor to defend her at the trial and was so defended. In these circumstances, the national court is under an obligation to execute the European arrest warrant and is not allowed to impose any additional conditions. In comparison, the Spanish Constitutional Court interpreted Article 24(2) of the Spanish Constitution to mean that extradition to countries which allow convictions in absentia without making surrender conditional upon the convicted party being able to challenge the conviction would be ‘an ‘indirect’ infringement of the requirements deriving from the right to a fair trial’. It follows that the protection offered by the Spanish Constitution is broader than that offered by the EAW Framework Decision. It is also worth noting that the Spanish Constitutional Court made no attempt to interpret Article 24(2) restrictively so as to avoid conflict with EU law. The direct incompatibility between the Spanish Constitution, as interpreted by the Spanish Constitutional Court, and the EAW Framework Decision meant that Spanish authorities had no way of reconciling their obligations stemming from EU law, on the one hand, and national law, on the other. The limits of the principle of EU law supremacy were to be tested once again.

Supremacy and fundamental rights, yet again…

The conflict between the EAW Framework Decision and the Spanish Constitution led the Spanish Constitutional Court to ask the Court of Justice of the EU for interpretation of obligations of national courts under EU law. Three points should be made here. First, the EAW Framework Decision harmonises exhaustively the grounds on the basis of which recognition of decisions of courts of other Member States following a trial at which the person concerned did not appear in person may be refused. Secondly, the right to a fair trial is in the EU legal order a ‘fundamental right’, now guaranteed also by the Charter of Fundamental Rights (Article 47). Thirdly, the Charter includes a provision according to which ‘Nothing in the Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law … and by the Member States’ constitutions’ (Article 53).

The Court’s judgment in Melloni is clearly motivated by the desire to protect the EAW regime and its effectiveness. The Charter right to a fair trial is interpreted narrowly to ensure that the regime is compatible with it. The objective of the EAW Framework Decision, which is the improvement of mutual recognition of judicial decisions, is held to justify the restrictions imposed on national courts’ competence to refuse the execution of a European arrest warrant in a situation where the person being surrendered is unable to apply for a retrial. Yet, this conclusion is reached by the Court without any proportionality review, which raises questions as to compatibility of the Court’s reasoning with Article 52(1) of the Charter. The standard of protection of the Charter right to a fair trial is in this context the same as that defined in the Framework Decision. National constitutions are denied any role in the interpretation of the Charter right. According to the Court, national authorities and courts can apply national standards of protection of fundamental rights, a possibility envisaged by Article 53 of the Charter, only is so far as ‘the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law [were] not thereby compromised’. This means that EU secondary law prevails over state constitutions. Whenever application of national constitutional standards would affect effectiveness of an EU act national courts have to refrain from using them. Member States’ courts are effectively prohibited from ‘casting doubt on the uniformity of the standard of protection of fundamental rights as defined in that framework decision’.

The future of constitutional conflict

The significance of the Melloni judgment should not be underestimated. While its immediate effects could be restricted to the particular EU legislative act in question, the judgment sends a very worrying message about the way in which the Court of Justice sees its role as a constitutional review court. The starting assumption of the Court is not only that the EU legislator has respected fundamental rights but also that the scope of protection of fundamental rights, including those recognised in the Charter, should be determined on the basis of an act of secondary law. If this method was applied more broadly, an EU act could never be found invalid for breaching fundamental rights. The judgment in Melloni is also a step towards the centralisation of standards of fundamental rights protection in the EU, at least in areas where Member States’ authorities are implementing EU acts. When such assiduous centralisation leads to the lowering of protection which national courts are allowed to offer further instances of constitutional conflict are only a matter of time.

Dr Dorota Leczykiewicz is Leverhulme Trust Early Career Fellow at the Faculty of Law and at Trinity College, University of Oxford.

Suggested citation:  D. Leczykiewicz: Melloni and the future of constitutional conflict in the EU U.K. Const. L. Blog (22nd May 2013) (available at