From low- to high-intensity review in the protection of EU fundamental rights 1

Abstract

The CJEU often reviews the validity of EU legislation for compliance with fundamental rights standards. Prior to the entry into force of the Lisbon Treaty, the CJEU's approach to fundamental rights review was characterized by a low-intensity standard of review. Since the elevation of the Charter to primary law status, the CJEU has come to subject EU legislation to far more rigorous levels of scrutiny. This paper critically evaluates the methodology utilized by the CJEU to determine whether low- or high-intensity proportionality review is deployed in cases where EU legislation limits fundamental rights. This question has yet to receive detailed consideration in the literature. Looking to the future of EU fundamental rights, the paper rejects the idea that the nature of the right can determine whether a restriction placed upon that right is subject to low- or high-intensity review. There are practical and normative grounds for rejecting this approach. Instead, the paper argues that the intensity of review should be modulated on the basis of the severity of the interference with the right in question. It is thus seriousness of interference and not the nature of the right in question which determines the applicable standard of review.

1. Introduction

The CJEU is often required to review the validity of EU legislation for compliance with fundamental rights protected by the Charter. Prior to the entry into force of the Lisbon Treaty, the CJEU's approach to fundamental rights review was characterized by the adoption of a low-intensity standard of review. Traditionally, the Court afforded the EU institutions a wide margin of discretion. The consequence was that judicial review of whether a restriction placed upon a fundamental right could be justified was limited to considering whether the contested measure was manifestly disproportionate in light of the objective pursued. Since the elevation of the Charter to primary law status; however, the CJEU has come to subject EU legislation to far more rigorous levels of scrutiny (in some cases at least). In Digital Rights Ireland, the Court held for the first time:

With regard to judicial review…where interferences with fundamental rights are at issue, the extent of the EU legislature's discretion may prove to be limited, depending on a number of factors, including, in particular, the area concerned, the nature of the right at issue guaranteed by the Charter, the nature and seriousness of the interference and the object pursued by the interference. ²

In that case, the EU legislature's discretion was reduced, with the result that judicial review of the exercise of that discretion was ‘strict’. ³ This heightened intensity of review was justified on the basis of ‘the important role played by the protection of personal data in the light of the fundamental right to respect for private life and the extent and seriousness of the interference with that right.’ ⁴ Subsequent cases have confirmed this approach. Consequently, in the post-Lisbon era, one finds the Court engaging in ‘high-intensity’ proportionality review of EU acts that limit fundamental rights in certain contexts. ⁵

Notably, in setting down this fundamental shift in the approach to: (i) the scope of discretion afforded to the EU legislature; and (ii) the subsequent intensification of proportionality review in a fundamental rights context, the CJEU cited the Grand Chamber judgment of the European Court of Human Rights (ECtHR) in S and Marper v. United Kingdom, stating that the reasoning in that judgment on Article 8 ECHR right to private and family life applied ‘by analogy.’ ⁶ In that judgment, the ECtHR held that the margin of appreciation left to competent national authorities varies in cases where a judicial examination of a violation of a Convention right is undertaken. The factors that lead to this varying margin of appreciation were said to include: (i) the nature of the Convention right in issue; (ii) its importance for the individual; (iii) the nature of the interference, and (iv) the object pursued by the interference. ⁷ This margin will tend to be narrower ‘where the right at stake is crucial to the individual's effective enjoyment of intimate or key rights’ and where ‘a particularly important facet of an individual's existence or identity is at stake.’ ⁸ In contrast, whenever there is ‘no consensus within the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to how best to protect it, the margin will be wider.’ ⁹ This approach to the margin of appreciation has been consistently adopted by the ECtHR. ¹⁰ As Dzehtsiarou notes, factors (i) to (iv) above are subjective in nature and provide a broad scope for judicial discretion. Moreover, the meaning of each of these criteria is not entirely clear. They are difficult to measure, and different people will reasonably disagree over their meaning. ¹¹

Against this background, this paper critically evaluates the methodology utilized by the CJEU to determine whether low- or high-intensity proportionality review is deployed in cases where EU legislation limits fundamental rights. This question of when and why the intensity of review varies in fundamental rights cases has yet to receive detailed consideration in the literature. In looking to the future of fundamental rights review in the EU, the paper rejects the idea that the nature of the right can determine whether a restriction placed upon that right is subject to low- or high-intensity review. ¹² There are practical and normative grounds for rejecting this approach. Varying the intensity of review on the basis of the nature of the right necessarily requires the CJEU to explain what the nature of the right in question is. It also requires judicial explanation of why the nature of one right differs from that of other rights in such a way as to justify differing intensities of review. It requires the Court to determine which rights are ‘important’ enough to warrant high-intensity review and, concomitantly, to decide that the nature of other rights is ‘less important’, thereby attracting low-intensity review. These are not tasks well suited to judicial determination. Nor is there any textual basis in the Charter for varying the intensity of review on the basis of the nature of the right in question.

The paper argues that the better approach moving forward is to modulate the intensity of review on the basis of the severity of the interference with the right in question. This approach is far easier for the Court to operationalize than determining these matters on the basis of the nature of rights. Serious interferences will lead to reduced discretion and high-intensity review of the contested EU legislation. Conversely, whenever EU acts interfere with rights to a limited extent (that is, not meeting the ‘seriousness’ threshold), the EU legislature will be afforded a wider margin of discretion and proportionality review will be conducted in a less intensive fashion.

2. The pre-Lisbon era of low-intensity review

It is generally accepted that for much of the history of European integration, the CJEU subjected the discretionary policy choices of the EU institutions to minimal degrees of judicial scrutiny. In most cases where it was contended that EU legal acts had infringed fundamental rights, the Court deployed a very light-touch standard of review. Scant attention was given to the reasoning of the EU institutions for their policy choices, with the consequence that not much was typically required by way of justification from those institutions in order for them to defend the legality of their actions. ¹³

Many of these early cases concerned fundamental rights of an economic nature, such as the right to property or the freedom to pursue a trade or profession. ¹⁴ As De Witte notes, this is readily explicable by the fact that fundamental rights review continued to be conducted within the confines of an EC Treaty that remained heavily geared towards economic integration. ¹⁵ As is common in many legal systems, these economically oriented fundamental rights were not construed as absolute constraints upon the Community's law-making institutions. They could be legally restricted in certain circumstances to pursue policy objectives that were of general interest to the wider Community as a whole. ¹⁶ Such restrictions were only legal, however, where they ‘in fact correspond to objectives of general interest pursued by the Community and…do not constitute a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed.’ ¹⁷

This standard of review was utilized consistently by the Court when conducting fundamental rights review of Community and then Union legal acts. ¹⁸ The established judicial practice was to first set out why the contested legal act corresponded to objectives of general interest pursued by the EU. Then, without much by way of scrutiny, the Court would hold that, in pursuing such objectives, there had been no disproportionate and intolerable interference affecting the very substance of the right in question. ¹⁹ Unlike the two- or three-stage proportionality enquiry that has come to dominate CJEU practice today (see below), much of the earlier (that is, pre-Lisbon Treaty) fundamental rights jurisprudence was somewhat unstructured. The Court focused largely on the suitability of the contested Community/Union measure for achieving an objective in the general interest – invariably finding that it did. Then, the CJEU would typically ignore the necessity stage of the enquiry before swiftly concluding that no disproportionate infringement of the substance of a right had occurred. ²⁰ Overall, there was evidently a reluctance to engage in any meaningful degree of scrutiny of whether any less restrictive measures were available (necessity) and/or whether the overall balance between rights and objectives was proportionate (proportionality stricto sensu). ²¹ As Tridimas notes, the Court opted instead to rely upon some notion of reasonableness or arbitrary conduct. Rather than seriously engaging with some form of two- or three-step proportionality test, the CJEU was content with reviewing whether the EC legislature committed some manifest error when deciding that its policy was appropriate to achieve objectives in the Community/Union interest. ²² As was noted above, this light-touch approach to fundamental rights review of European legal acts was subject to criticism in the literature – since the EU institutions were always afforded a wide margin of discretion, the intensity of review was weak, and the scrutiny of the reasoning of the EU institutions was minimal. Indeed, the Court failed to ‘provide for very structured or illuminating reasoning as to its approach…’ ²³

Despite the Court not always setting out why it adopted such a deferential approach to fundamental rights review of Community/Union legal acts in the pre-Lisbon Treaty era, a number of reasons are typically put forward to justify low-intensity review. The first is that in an era where most legislative acts were adopted by the Council (often via unanimity voting), the product of this intergovernmental decision making ‘was perceived to benefit from the traditional indirect democratic and constitutional legitimacy provided by the states.’ ²⁴ As Maduro has argued, EU legislation that was adopted unanimously by the Member States in the Council were deemed to possess a greater degree of indirect democratic legitimacy than measures adopted by the independent bureaucracy of the Commission. ²⁵ In the former AG's view:

Where states fully controlled the process of decision making no real question of legitimacy was raised. This was bound to determine the nature of constitutional review in the…European Community. For example…no one thought it a priority to provide for the review of a unanimous decision of member states in the Council. ²⁶

A second reason for the prevalence of low-intensity review was that most disputes arose in areas of technical market regulation such as the Common Agricultural Policy (CAP). Consequently, the Court was reluctant to interfere with discretionary policy choices entrusted to the Commission and Council under the Treaties. ²⁷ Respect for the separation of powers thus loomed large, with the Court of Justice adhering to the mantra that it should not overturn such choices simply because they believe things should have been done differently. ²⁸ The third is that, as has already been mentioned, the rights in question were typically economic in nature (right to property, freedom to conduct a business etc.) It was common both under international human rights documents and the common constitutional traditions of the Member States for such rights to be capable of limitation in the pursuit of legitimate public interests. Fourth and finally, it has been suggested that the pro-integrationist leanings of the CJEU meant that it was reluctant to strike down EU legal acts that were the product of political compromise and which, at the end of the day, served to further the goal of European integration. ²⁹

3. Fundamental rights review in the post-Lisbon era

Following the elevation of the Charter on Fundamental Rights to legally binding, primary law status at the Treaty of Lisbon, there was much speculation in the literature as to whether this would result in a shift in the Court's fundamental rights jurisprudence. ³⁰ In particular, the extent to which having a codified ‘bill of rights’ in the Charter might lead to a deviation from the long-established, light-touch approach to judicial scrutiny of EU legislation for compliance with fundamental rights (protected as general principles of law) was pondered. ³¹

A. The development of ‘high-intensity’ fundamental rights review

Following the landmark judgment in Digital Rights Ireland, it is submitted that there has indeed been a shift in the jurisprudence of the CJEU. Whereas the Court continues to subject EU legislation to a traditional, light-touch form of fundamental rights review in certain cases, one now also sees a novel, high-intensity form of fundamental rights review in others. ³² As was just noted, this high-intensity form of review stems from Digital Rights Ireland, where the CJEU found that the EU Data Retention Directive interfered with the rights to a private life and the protection of personal data as protected by Articles 7 and 8 CFR respectively. This was because the Directive imposed various obligations upon entities to retain data. It also allowed public authorities both broad access to data and powers to process such data in ways that led to wide-ranging and serious interferences with the abovementioned fundamental rights. Having found that the Directive restricted the rights in question, the CJEU turned to consider whether such restrictions could be justified in light of the principle of proportionality enshrined in Article 52(1) CFR. ³³ Then, in a novel innovation in the Court's case law, it held that ‘with regard to judicial review…where interferences with fundamental rights are at issue, the extent of the EU legislature's discretion may prove to be limited, depending on a number of factors, including, in particular, the area concerned, the nature of the right at issue guaranteed by the Charter, the nature and seriousness of the interference and the object pursued by the interference.’ ³⁴ The CJEU continued that ‘in view of the important role played by the protection of personal data in the light of the fundamental right to respect for private life and the extent and seriousness of the interference with that right caused by Directive 2006/24, the EU legislature's discretion is reduced, with the result that review of that discretion should be strict.’ ³⁵

Subsequent cases have confirmed this approach. The Court finds that the EU legislature's margin of discretion is reduced, with the consequence that judicial review of the exercise of that discretion is strict. This manifests itself via the adoption of a high-intensity standard of proportionality review that involves, inter alia, considering whether a restriction placed upon a fundamental right is limited to what is strictly necessary in the light of the objective pursued. For example, in J. N. the Court stressed that ‘in view of the importance of the right to liberty enshrined in Article 6 of the Charter and the gravity of the interference with that right which detention represents, limitations on the exercise of the right must apply only in so far as is strictly necessary’. ³⁶ This is a markedly different standard of fundamental rights review than was typically applied in the pre-Lisbon Treaty era. It has been remarked that recent judgments show that ‘the Court has clearly “tightened its grip” in the application of the proportionality test, at least when Charter rights are involved’. ³⁷ In the post-Lisbon Treaty era, judgments like Digital Rights Ireland are said to show that the proportionality principle is deployed in a ‘much stricter’ fashion today in cases involving fundamental rights. ³⁸ In terms of the reasons explaining why such a shift has taken place, it has been suggested that ‘there are two…constitutional arguments that support the need for a more searching review of measures of EU institutions…’ ³⁹ First, the elevation of the Charter of Fundamental Rights to the level of binding primary law by the Treaty of Lisbon has ‘brought fundamental rights review of EU acts to the fore.’ ⁴⁰ Second, the absence of external review stemming from the failure of the EU to accede to the ECHR means that the mandate of reviewing the compatibility of EU legislation with fundamental rights falls exclusively to the CJEU. ‘In discharging that mandate, the high level of protection aimed at by the Charter entails the necessity of carrying out a full and efficient internal review of EU law and of the acts of EU institutions.’ ⁴¹

B. The continuation of ‘low-intensity’ fundamental rights review

It is important to note, however, that the post-Lisbon Treaty era has not brought about a shift towards high-intensity or strict fundamental rights review of EU legislation in all cases. Indeed, in many contemporary cases one still observes the traditional, light-touch approach to fundamental rights review. At times, the CJEU simply fails to clearly identify the margin of discretion to be afforded to the EU legislature and similarly fails to indicate the standard of proportionality review to be applied. At other times, the CJEU does not discuss the nature or importance of the right in question. Instead, in a manner that is reminiscent of the pre-Lisbon Treaty approach, a terse conclusion is reached as to the proportionality of the measure under review, without any meaningful degree of judicial scrutiny of the measure in question or the reasons proffered by the EU legislature in its defence. ⁴²

In Philip Morris, for example, the claimants contended, inter alia, that an EU Directive which prohibited the placing of certain advertisements and statements on tobacco products violated their right, as a business, to freedom of expression and information as protected by Article 11 CFR. ⁴³ In reviewing whether the contested EU legislation constituted a proportionate restriction upon this right, the CJEU first found that the legislation pursued the legitimate objective of protecting public health – an objective that various provisions of the EU Treaties require to be pursued in the definition and implementation of al Union policies. ⁴⁴ There was held to be a ‘need to reconcile the requirements of the protection of those various fundamental rights and legitimate general interest objectives, protected by the EU legal order, and striking a fair balance between them.’ ⁴⁵ In striking this balance between the protection of public health and the right to freedom of expression and information, ‘the discretion enjoyed by the EU legislature, in determining the balance to be struck, varies for each of the goals justifying restrictions on that freedom and depends on the nature of the activities in question.’ ⁴⁶

The implication here is that the discretion of the legislature, and subsequently the intensity of proportionality review carried out by the CJEU, will vary depending on both the importance of the goals being pursued by the EU legislature and ‘the nature of the activities in question.’ The latter quotation could be interpreted as being another way of saying ‘the nature of the right in question.’ Such an interpretation is supported by the fact that the Court then immediately draws attention to the crux of the claim – ‘[i]n the present case, the claimants…rely, in essence, under Article 11 of the Charter, on the freedom to disseminate information in pursuit of their commercial interests.’ ⁴⁷ From there, the Court was swift to conclude that the goal of protecting human health outweighed the right to business information, and that the restrictions placed upon the fundamental right to freedom of expression did not go beyond what was necessary to achieve the objective of protecting public health. Once again, the intensity of proportionality review was low, and the probing of less restrictive measures conducted in a light-touch fashion. ⁴⁸

Another area where we see the continuation of low-intensity fundamental rights review is in relation to the freedom to conduct a business (Article 16 CFR). This area of the jurisprudence is also perhaps the closest the CJEU has come to explicitly endorsing the idea that the nature of some rights protected by the Charter are different from others and/or that some rights are more important than others. In Sky Österreich, it was argued that an EU Directive requiring those holding exclusive broadcasting rights to authorize any other broadcaster to make short news reports from their exclusive broadcasts – without being able to seek compensation greater than the additional costs directly incurred in providing access to the signal – violated the freedom to conduct a business (Article 16 CFR) of those holding exclusive broadcasting rights. ⁴⁹ This was because, inter alia, the holder of exclusive broadcasting rights could not decide freely with which broadcasters it may wish to enter into an agreement regarding the granting of the right to make short news reports. The Court held when reviewing EU legislation in light of the freedom to conduct a business (Article 16 CFR) that that right was not absolute but must be viewed in light of its social function. It continued:

On the basis of that case-law and in the light of the wording of Article 16 of the Charter, which differs from the wording of the other fundamental freedoms laid down in Title II thereof, yet is similar to that of certain provisions of Title IV of the Charter, the freedom to conduct a business may be subject to a broad range of interventions on the part of public authorities which may limit the exercise of economic activity in the public interest. ⁵⁰

Somewhat frustratingly, no further explanation is given as to the content of Titles II and IV of the Charter, or why their difference in wording is legally significant in this context. However, the Court then immediately proclaimed that ‘that circumstance’ (meaning the fact that the freedom to conduct a business may be subject to a broad range of interventions in the public interest) ‘is reflected, inter alia, in the way in which Article 52(1) of the Charter requires the principle of proportionality to be implemented.’ ⁵¹ From there, it was noted that the Directive in question sought to strike a balance between the exclusive broadcasting rights of private companies, on the one hand, and access of the general public to information (right to receive information protected by Article 11(1) CFR), coupled with the aim of promoting media pluralism (Article 11(2) CFR), on the other. In reviewing whether the contested Directive's provisions were suitable, necessary and struck an appropriate balance between various rights and interests, the CJEU once again engaged in a light-touch form of proportionality review. Consequently, despite there plausibly being less restrictive alternatives open to the EU legislature, the EU legislature was entitled to conclude (that is, had a broad margin of discretion) that no such alternatives would have achieved the objective of the legislation as effectively. ⁵²

4. Evaluation – what determines the applicable standard of review?

What (if anything) explains this difference in approach when it comes to the scope of discretion afforded to the EU legislature and the intensity of proportionality review in fundamental rights cases? Why is it that some EU legal acts which place restrictions on fundamental rights continue to be subject to low-intensity proportionality review, whereas others attract a much more stringent, high-intensity review from the Court?

As noted above, the CJEU has held that the extent of the EU legislature's discretion may prove to be limited, and the intensity of proportionality review will vary, on the basis of a number of factors, including: (i) the area concerned; (ii) the nature of the right at issue guaranteed by the Charter; (iii) the nature and seriousness of the interference; and (iv) the object pursued by the interference. ⁵³ As AG Bobek pointed out in Lidl, it follows from this body of case law that ‘the strictness of the Court's judicial review, and in particular the intrusiveness of the proportionality review, may differ from case to case’. ⁵⁴ What is not clear from this, however, is whether there is any methodology to be deployed in the judicial determination of which of the four factors (i)–(iv) are determinative in any given case. In Lidl itself, the AG held, without further explanation, that the two determinative variables in the case at hand were the substantive area of EU law concerned and the nature of the rights in question. ⁵⁵ Why these two factors appeared to be relevant to the AG, whilst others such as the seriousness of the interference were not, is not explained. In other cases where the abovementioned list of variables has been explicitly addressed by the CJEU, the determining factors have been: (i) the nature or importance of the right enshrined in the Charter; and (ii) the seriousness of the interference with that right. ⁵⁶ Once again, the reasons as to why these two factors are determinative for the standard of proportionality review to be conducted remains unexplained.

There therefore appears to be a great deal of judicial discretion involved in both: (a) determining which of the four factors listed in Digital Rights Ireland ((i)–(iv)) are engaged in a given fundamental rights dispute; and (b) the meaning and significance that is to be ascribed to each of those factors so selected by the Court.

A. The nature of the right determines the intensity of review

Despite these ambiguities, it is clear from the jurisprudence to date that the nature of the fundamental right that has been restricted in a given case plays a vital role in the margin of discretion afforded to the EU legislature and the subsequent intensity of proportionality review conducted by the CJEU. In what follows, it shall be shown that, notwithstanding its common usage by the Court, attempting to modulate the intensity of review based on the ‘nature’ of the fundamental right in question runs up against several doctrinal and normative problems and should, therefore, be abandoned. Varying the intensity of review based on the nature of the right necessarily requires the CJEU to explain what the nature of the right in question is. It also requires judicial explanation of why the nature of one right differs from that of other rights in such a way as to justify differing intensities of review. It requires the Court to determine which rights are ‘important’ enough to warrant high-intensity review and, concomitantly, to decide that the nature of other rights is ‘less important’, thereby attracting low-intensity review. As illustrated below, the CJEU has not yet been able to convincingly explain why the nature of certain fundamental rights results in them being ascribed an importance that other rights enshrined in the Charter do not. Furthermore, there is no textual basis in the Charter for varying the intensity of review on the basis of the nature or importance of the right in question.

To begin, consider again the reasoning of the CJEU in Sky Österreich and other judgments discussed above. These judgments may be understood to mean that the nature of the right to freely conduct a business is different than other fundamental rights listed in Title II of the CFR. Absent any further guidance from the Court, this could well be what was meant by noting that the freedom to conduct a business in Article 16 CFR differs from the wording of the other fundamental freedoms laid down in Title II thereof, yet is similar to that of certain provisions of Title IV of the Charter. ⁵⁷ If this distinction is correct, it follows that a broader range of restrictions in the pursuit of the public interest may be permissible when restricting those rights which the CJEU deems to be of a different nature (rights contained in Title IV CFR) than other rights contained in Title II CFR. The problem with this, however, is that in Phillip Morris a very similar approach was taken with respect to the classic civil and political right to freedom of expression (albeit the right to dissemination by a business of commercial information as protected by Article 11 CFR). ⁵⁸

It may well be, therefore, that it is the predominantly economic nature of the right (freedom to conduct a business, the right to property, the right to disseminate commercial information etc.) which is determinative of its relative importance from the perspective of the CJEU. If this is correct – meaning that one can indeed distinguish between rights of greater and lesser importance based on their economic or other nature – it seems to follow that the intensity of proportionality review to be deployed will vary in accordance with the nature of the right in question. Support for this view comes from the abovementioned opinion of AG Bobek in Lidl, where it was stated that ‘the broad discretion enjoyed by the Commission is also confirmed in the present case by the nature of the right at issue’. As the Court has stated, the freedom to conduct a business ‘may be subject to a broad range of interventions on the part of public authorities which may limit the exercise of economic activity in the public interest.’ ⁵⁹

The problem with this approach, however, is that the same can be said of many other rights protected by the Charter which are not economically oriented in nature. Examples here include the right to liberty, the right to private and family life and the right to the protection of personal data (Articles 6, 7 and 8 respectively), all of which can be subject to restrictions via a broad range of interventions taken in the pursuit of the public interest. ⁶⁰ And yet, as we have seen, in some circumstances, interferences with those rights in the pursuit of the public interest have resulted in the margin of discretion enjoyed by the EU legislature being reduced and the intensity of proportionality review being heightened. ⁶¹ It is for this same reason that we can rule out the possibility that those rights which are protected by both the Charter and the ECHR (for example, right to private life or freedom of expression) attract high-intensity review, whereas those (predominantly social and economic rights) which are only protected by the Charter (for example, the freedom to conduct a business) attract low-intensity review. ⁶²

One possible way of interpreting this line of jurisprudence would simply be to say that the rights to liberty, to private life and to data protection (Article 6, 7 and 8 CFR respectively) are simply more important than rights of an economic nature such as the freedom to conduct a business or the right to property (Articles 16 and 17 CFR). In other words, EU legal acts interfering with the rights to liberty, to a private life or the protection of personal data should be subject to more searching review by the CJEU than interferences with the freedom to conduct a business or the right to property, and that this differentiation in the standard of review stems from the relative importance of the rights in question. This interpretation certainly appears to have some support in the case law discussed thus far, where the nature of the right in question is explicitly listed as one of the factors which leads to a variation in the margin of discretion afforded to the EU legislature and the intensity of proportionality review conducted by the Court. Commenting upon this possibility, Peers et al. state that ‘if the Court believes that different types of proportionality test should apply where different charter rights are involved (as it expressly stated in Sky Österreich), it should explain its reasoning and the implications of such a distinction further, and must ensure that it applies this distinction consistently.’ ⁶³

However, there are further problems with taking such an approach. Neither the Charter in general, nor Article 52(1) CFR in particular, distinguishes Charter rights on the basis of their importance, or mandates that varying intensities of review be adopted on the basis of the nature of the right in question. ⁶⁴ One cannot find any explanation to this effect in the Explanations relating to the Charter either. ⁶⁵ ‘[I]it is worth noting that there is no hierarchy of qualified rights under the Charter. Given that all qualified rights stand on an equal footing, conflicts between them must be solved by striking the right balance.’ ⁶⁶ And yet, to say that the nature or importance of a particular fundamental right is the determining factor when it comes to the CJEU's adoption of low- or high-intensity proportionality review means, in essence, that there is a hierarchy of important and less important fundamental rights in the Charter. The key to this hierarchical ordering of rights lies in the manner with which the Court utilizes the proportionality principle to achieve variable intensities of judicial review depending upon the nature or importance of the right in question. EU legislation continues to be reviewed in a low-intensity fashion whenever the Court believes that the right is of a lesser importance, for example, fundamental rights of an economic nature, such as the right to property, the freedom to conduct a business etc. In contrast, a much more robust, high-intensity approach to review is utilized when it comes to purported interferences with other, ‘more important’ rights, such as the right to family life, to a private life, to data protection and to liberty and security of the person.

Now, there may well be sound philosophical, moral or other reasons as to why some rights are to be conceived of as being more important than others. ⁶⁷ The reason why the prohibition of torture and inhuman or degrading treatment admits of no exceptions in the public interest (otherwise known as an absolute right), whereas many other fundamental human rights like the right to a fair trial or the right to freedom of thought, conscience and religion (known as relative rights) do permit of such exceptions would be a classic example here. There may even be sound philosophical, moral or other reasons to support the proposition that even amongst non-absolute rights, some such rights are more important than others. If so, it might well follow that courts should conduct high-intensity proportionality review whenever ‘important’ rights are interfered with, and low-intensity review whenever ‘less important’ rights are interfered with. ⁶⁸ What does not follow from this, however, is that it should be for the CJEU to determine what the nature of fundamental rights protected under the Charter are, or whether certain rights are more important than others. Moreover, from the perspective of the posited law in the Charter, the problem with according different rights different levels of importance based upon their nature is that such an approach is not mandated by either the text of the Charter or the Explanations relating to it. Nor is there any indication in the relevant secondary legislation that the EU institutions have intended to accord a more important status and/or level of protection to certain Charter rights relative to others. Furthermore, in the cases where the CJEU has held that high-intensity proportionality review should be deployed on accounts of the importance of the right in question, there is never any further explanation given as to why such a right is important. For example, in cases where EU legislation authorizes the detention of individuals and is alleged to interfere with their right to liberty, the Court simply asserts that ‘in view of the importance of the right to liberty enshrined in Article 6 of the Charter and the gravity of the interference with that right which detention represents, limitations on the exercise of the right must apply only in so far as is strictly necessary’. ⁶⁹ But why is the right to liberty accorded such importance? On what grounds is importance evaluated and measured in this context? And why do cases involving restrictions on the right to property or the freedom to conduct a business not similarly mention the importance of those rights when calibrating the correct standard of proportionality review? The same omission of any explanation as to why the fundamental right is viewed as being important can be seen in relation to the rights to private life and data protection. ⁷⁰

B. The seriousness of the interference with the right determines the intensity of review

Based on the above, it is submitted that there are both analytical and normative shortcomings with the CJEU's practice of modulating the intensity of fundamental rights review based upon the nature of the right. That the nature of the right is an important factor for the CJEU in determining the intensity of review seems to be undeniable based on the case law. As argued above, however, that very same case law fails to explain why the nature of some Charter rights differ from others and/or are more or less important than others. In what follows, it is contended that the better view, both analytically and normatively, is that the intensity of proportionality review conducted by the CJEU should depend upon the seriousness of the interference with the fundamental right in question. Whenever EU legal acts ‘seriously’ interfere with fundamental rights protected by the Charter, the EU legislature's discretion will be reduced, and proportionality review will be ‘strict’. On this view, the nature of the right (right to private life, right to protection of personal data, freedom to conduct a business, right to property, right to equality before the law etc.) is irrelevant. Serious interferences will result in the CJEU utilising the proportionality principle in order to determine whether the legislation in question is ‘strictly necessary for the purpose of attaining the objective pursued’. ⁷¹

Conversely, whenever EU legal acts interfere with Charter rights to a limited or even negligible extent (that is, not meeting the threshold of ‘seriousness’), the EU legislature will be afforded a wider margin of discretion and proportionality review will be conducted in a less intensive fashion. ⁷² Support for this view can be found in post-Lisbon cases like Sky Österreich, ⁷³ Schwarz ⁷⁴ and Rzecznik Praw Obywatelskich (RPO), ⁷⁵ where the Court did not find that there had been a serious restriction of the fundamental rights engaged in those disputes (the right to freely conduct a business, to private life and to equal treatment respectively). Consequently, the scope of discretion afforded to the EU legislature in these cases was not explicitly restricted and the Court did not deploy the high-intensity, strictly necessary standard of review. ⁷⁶ Similarly, in a number of cases where EU legislation has placed minimal restrictions upon fundamental rights, the CJEU has continued to afford the EU legislature a wide margin of discretion and the traditional, manifestly disproportionate standard of review was adopted as a result. ⁷⁷

Notably, there are some indications in the recent case law pertaining to Member State obligations under the Charter that an emphasis is now being placed upon the seriousness of the interference with the right in question when it comes to determining the appropriate intensity of proportionality review. In relation to the rights to a private life and the protection of personal data, in particular, the Court has recently held that ‘whether the Member States may justify a limitation on the rights guaranteed in Articles 7 and 8 of the Charter must be assessed by measuring the seriousness of the interference which such a limitation entails and by verifying that the importance of the objective of general interest pursued by that limitation is proportionate to that seriousness.’ ⁷⁸ It is submitted that such an approach should be consistently embraced by the CJEU in the future when reviewing EU legislation for fundamental rights compliance.

Accordingly, the margin of discretion to be afforded to the EU legislature and the subsequent intensity of proportionality review to be deployed by the CJEU should be modulated on the basis of the seriousness of the interference with the fundamental right in question. From a practical perspective, it is much easier for lawyers and judges to try to conceptualize, argue about and ultimately determine whether the actions of a public authority constitute a serious interference with a right than it is to argue over the nature and relative importance of rights in abstract terms. Married to this practical consideration is the consideration of doctrinal clarity. As the above analysis of the case law has shown, the CJEU has thus far been unable to convincingly explain why, for example, the right to the protection of personal data is worthy of the label ‘important’, whereas the right to property is not.

In contrast, determining whether restrictions placed upon a fundamental right meets the threshold of being ‘particularly serious’ appears to be both more workable in practice and easier to explain doctrinally. For example, in J.N. the claimants challenged an EU Directive that allowed Member State authorities to detain third-country nationals who applied for international protection in order to protect national security or public order. ⁷⁹ These powers of detention were challenged on the grounds that they interfered with Article 6 CFR, which provides that everyone has the right to liberty and security of person. ⁸⁰ In the Court’s view, detaining applicants for reasons of national security did indeed place a limit upon the right to liberty and such a right could, in principle, be restricted in the pursuit of such a legitimate objective. In examining whether the powers of detention provided for by the Directive were necessary, the CJEU emphasized that ‘in view of the importance of the right to liberty enshrined in Article 6 of the Charter and the gravity of the interference with that right which detention represents, limitations on the exercise of the right must apply only in so far as is strictly necessary.’ ⁸¹ Although not explained clearly by the Court, the seriousness of the interference with the right to liberty stems from the fact that the Directive allowed for an individual's detention. Detention is by definition a serious interference with the right to liberty, whereas other types of measures which restrict the liberty of the individual in the name of protecting national security often do not meet the same level of severity, for example, orders mandating where an individual may not travel to or may not reside. ⁸² Accordingly, in light of this serious interference with the right to liberty, the CJEU engaged in high-intensity review of the contested EU legislation. ⁸³

Further clarification is provided in cases pertaining to the right to private life and the protection of personal data (Articles 7 and 8 CFR). In Digital Rights Ireland, having held that the discretion of the EU legislature would be reduced, and the intensity of proportionality review be enhanced, the CJEU found that the data retention Directive pursued objectives of general EU interest; namely, to contribute to the fight against serious crime, international terrorism and, ultimately, to public security. ⁸⁴ Whilst this was of the ‘utmost importance in order to ensure public security…such an objective of general interest, however fundamental it may be, does not, in itself, justify a retention measure such as that established by Directive 2006/24 being considered to be necessary for the purpose of that fight.’ ⁸⁵ In reviewing whether this was the case, the CJEU engaged in close scrutiny of the substance of the Directive, noting that the rules on retention covered all means of electronic communication of all subscribers or registered users of electronic communications networks. This meant that the Directive potentially allowed for interference with the rights of the entire European population, since the data of persons with no connection to organized or serious crime could be retained by relevant national authorities without exception. ⁸⁶ There were also no meaningful limits in the Directive to regulate the access to, and subsequent use of, personal data by national authorities. Finally, the rule that all data must be retained for a minimum of 6 months and a maximum of 24 months was not based on any objective criteria and failed to distinguish between different types or uses of personal data. ⁸⁷ As a result, the Directive did not set down clear and precise rules governing the extent of the interference with rights contained in Articles 7 and 8 CFR. The Directive led to wide-ranging and particularly serious interference with fundamental rights. Moreover, such interference was not precisely circumscribed by provisions aimed at ensuring that it was actually limited to what was ‘strictly necessary’. ⁸⁸

More recently, the CJEU has further clarified this concept of serious interference with regards to fundamental rights review. In OT, for example, it was held that ‘in order to assess the seriousness of that interference, account must be taken, inter alia, of the nature of the personal data at issue, in particular of any sensitivity of those data, and of the nature of, and specific methods for, the processing of the data at issue, in particular of the number of persons having access to those data and the methods of accessing them.’ ⁸⁹ In making this assessment, factors such as the public disclosure online of personal information about individuals, the volume and frequency of information disclosed, the content and nature of that information and the number of people capable accessing that information are all relevant factors in determining the seriousness of the interference with the right. ⁹⁰

When considered together, these recent judgments confirm that whenever EU legal acts lead to serious interferences with fundamental rights contained in the Charter, the EU legislature's discretion will be reduced and proportionality review will be strict. In terms of what constitutes a ‘serious’ interference with fundamental rights, this will largely depend upon the facts of each individual case. ⁹¹ Nonetheless, these examples (albeit limited in number) provide some guidance. It is clear that empowering authorities to deprive an individual of their liberty would meet this threshold. So too would granting public authorities widespread and largely unchecked access to personal data. In all such cases, various objectively verifiable factors such as the scope, content, frequency and availability of personal data are factored into the analysis of whether an interference with the right is serious or not. Whilst further case law is needed to clarify this point, it seems that imposing detentions, or failing to prevent the widespread disclosure of personal information online to an unlimited number of people, are far more serious restrictions upon fundamental rights than, say, limiting the freedom to conduct a business by prohibiting the advertising of electronic cigarettes in certain media. ⁹² Crucially, the nature or importance of the right in question is irrelevant in making this determination.

5. Conclusion

This paper has cast a critical eye over the CJEU's approach to reviewing EU legislation for compliance with fundamental rights protected by the EU Charter of Fundamental Rights. In so doing, it has critically assessed the methodology utilized by the CJEU to determine whether low- or high-intensity proportionality review is deployed in fundamental rights cases. Based on that analysis, it has been contended that the Court's attempts to vary the scope of discretion afforded to the EU legislature and the subsequent intensity of proportionality review to be deployed on the basis of the nature of the fundamental right at issue should be rejected. Varying the intensity of review on the basis of the nature of the right necessarily requires the CJEU to explain what the nature of the right in question is. It also requires judicial explanation of why the nature of one right differs from that of other rights in such a way as to justify differing intensities of review. It requires the Court to determine which rights are ‘important’ enough to warrant high-intensity review and, concomitantly, to decide that the nature of other rights is ‘less important’, thereby attracting low-intensity review. It has been argued that the CJEU has not yet been able to convincingly explain why the nature of certain fundamental rights results in them being ascribed an importance that other rights enshrined in the Charter do not. It has further been argued that there is no textual basis in the Charter for varying the intensity of review on the basis of the nature or importance of the right in question. Turning to the future of fundamental rights review of EU legislation, it is submitted that the better approach is to modulate the intensity of review on the basis of the severity of the interference with the right in question. There is some evidence of precisely this approach now being taken by the CJEU when reviewing the compliance of Member State actions and measures with Charter rights. That approach should also be embraced on a consistent basis by the Court when conducting fundamental rights review of EU legislation. It is far easier for the Court to operationalize than determining these matters on the basis of the nature of rights. Serious interferences will lead to the reduced discretion of the EU legislature and high-intensity review of the contested EU legislation. Conversely, whenever EU acts interfere with rights to a limited extent (that is, not meeting the ‘seriousness’ threshold), the EU legislature will be afforded a wider margin of discretion and proportionality review will be conducted in a less intensive fashion.