HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

that Member States must ensure compatibility with the Charter when implementing EU law, the framework supports harmonization in the field of human rights across the Member States. However, one might question whether the solution provided by Article 51 is truly satisfactory and sufficiently complex (though likely the only feasible one, given the competencies of the Union). It fails to address what would happen if the supremacy of EU law were to hypothetically lead to the derogation of a national constitutional norm protecting human rights, particularly one that offers a higher standard of protection than that guaranteed by the Charter. In such a scenario, it could be argued that, due to the insufficient standard of protection provided by the EU, the overall level of human rights protection in a Member State would be degraded. It might be worthwhile to contemplate a new provision ensuring that, in cases where a Member State’s constitutional norm provides a higher standard of protection for its residents, this norm should take precedence - even if, due to the supremacy of European law, it would otherwise not be applied. Some might counter that this could partially undermine the harmonizing function of the Charter. However, when viewed from the perspective of human rights and the interest in ensuring their highest possible protection, no other approach seems reasonable, even at the potential cost of reduced harmonization. The balance between the supremacy of EU law and the protection of national constitutional identity, including human rights, remains an ongoing challenge and is a subject of scholarly debate and judicial discourse. It is therefore not surprising that this issue has also been addressed by the CJEU. 16 In the Melloni judgment 17 , the CJEU engaged with aspects of this debate when it held that EU law can pre-empt national law, including constitutional law, to ensure EU law is effective. The court ruled that Member States, when implementing EU law, must respect the Charter, even if national constitutional standards suggest a higher level of protection. In my opinion, the Melloni decision raises more questions than it answers. The CJEU addressed the issue of the precedence of EU law over national constitutional law, citing Article 53 of the Charter, yet remained reserved on the use of national law in place of EU law. It suggested that national law might be applied, provided it does not jeopardize the primacy and effectiveness of EU law 18 ; otherwise, EU law should prevail. I believe such an interpretation is not ideal for human rights protection, as the goal should always be to enhance the standards of human rights protection and prevent situations where those standards could be lowered. National law should be applied whenever it offers a higher level of protection, because the principle of 16 I recommend your attention to a relatively recent decision by the CJEU, Case C-619/18, Commission v. Poland (2019), where the CJEU concluded that Polish laws implementing Judicial Reforms were within the scope of EU rules on judicial independence, thereby invoking the Charter (in para. 55).

17 C-399/11, Melloni (2013), para. 60. 18 C-399/11, Melloni (2013), para. 58-64.

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