Meshing of the Constitution with the Charter of Fundamental Rights of the European Union
Hent Kalmo
Summary
The first sentence in Article 15(1) of the Charter of Fundamental Rights of the European Union provides as follows: ‘Given the principle of subsidiarity, the provisions of the Charter are intended for the institutions, bodies and agencies of the Union and for the Member States only in the event of the application of Union law’. This paper seeks an answer to the question, What is the meaning, after all, of the magical phrase ‘for the Member States only in the event of the application of Union law’ – in what situations, and in what manner, is the Charter to be enforced under the Estonian legal regime? In particular, the relationship, now complicated, between the Charter and the Constitution, is discussed. It is claimed in Estonian legal literature that the compliance of a provision with the fundamental rights should be analysed in the light of the Charter of Fundamental Rights of the European Union and the case-law of the European Court of Justice interpreting the Charter or the Constitution and the European Convention on Human Rights as well as the practice of applying this legislation. However, the European Court of Justice has construed the scope of the Charter in a way that creates a grey area in which the compliance of Estonian legislation with both the Charter and the Constitution needs to be verified. This poses questions of an entirely new type, discussed in this paper. What to do when the requirements of the Constitution and the Charter diverge? In this case, should the Constitution be construed in the light of the Charter (and its most recent interpretation as issued by the European Court of Justice)? What legal consequences should be linked to a situation where a piece of Estonian legislation conflicts with the Charter? In part, these questions relate to the interpretation of applicable law; in part, they concern the shaping of the Estonian legal regime in the future. Although the European Court of Justice has ruled on a number of issues in recent years, there are a number of important aspects left for us to mull over.
Journal Juridica III/2016, pp 147-164