HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

ensuring a high level of human rights protection should take precedence over the primacy of EU law, not the other way around. Unfortunately, the wording of Article 53 is not sufficiently clear in this regard, as it states: “Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms” . The problem, however, is not in the restrictive interpretation, but in the fact that if constitutional norms protecting human rights are not applied due to the primacy of EU law, the Charter might be applied, potentially offering a lower level of protection. Although this is a hypothetical situation, it is not impossible that a Member State could enhance its human rights protection standards. Such a scenario should be directly addressed in the text of the Charter to ensure adequate protection of human rights. Aida Torres Pérez offers a highly insightful perspective on this issue by introducing Article 4(2) TEU, known as the “constitutional identity” clause, into the discussion. Pérez focuses on the intersection of Article 4(2) TEU and Article 53 of the Charter, particularly in the context of human rights. Her conclusions are noteworthy: “The examined clauses intersect in the field of fundamental rights, and in this field, they might mutually reinforce each other. For Article 4(2) TEU to enter into play, the constitutional right at stake needs to be conceived as integrating the notion of constitutional identity, regardless of whether the level of protection is better or worse than in the EU. For Article 53 Charter to play a role, the constitution should provide better protection than EU law (with all the difficulties in comparing levels of protection). If a specific interpretation of a constitutional right provided a higher level of protection and were considered to be part of the constitutional identity of that Member State, both clauses would jointly operate”. 19 From a practical standpoint, regarding the application of the Charter as seen through its text, I would conclude that while it functions as an effective mechanism, there are certain shortcomings that could ultimately undermine the enhancement of human rights protection standards throughout the process of European integration. Moving forward, it would be worthwhile to resolve, with legal certainty, the issue of the supremacy and preferential application of Union law in the field of human rights - particularly in cases where a national norm provides a higher level of protection. Such resolution would enhance the practical applicability and significance of the Charter. If there is ever a perception that the Charter is more of a symbolic proclamation aimed at addressing the issue of insufficient human rights protection within the EU, rather than a practical legal document, one needs only consult the database of CJEU decisions. The frequency with which the Charter is referenced illustrates its practical application. From December 1, 2009, when the Charter became part of primary law, 19 PÉREZ, A. T. Constitutional identity and fundamental rights: the intersection between Articles 4(2) TEU and 53 Charter. In: SAIZ ARNAIZ, A. and ALCOBERRO LLIVINA, C. (eds.). National constitutional identity and European integration . Cambridge: Intersentia, 2013, p. 156.

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