EU integration and Fundamental Rights Protection. An approach to the guarantees of rights and freedoms in the European Multilevel framework

EU intEgration and fUndamEntal rights protEction approach to thE gUarantEEs of rights and frEEdoms in thE EUropEan mUltilEvEl framEwork CONSEJO EDITORIAL Miguel Ángel Collado Yurrita Joan egea FernÁndez isabel FernÁndez torres José ignaCio garCía ninet Javier lopéz garCía de la serrana belén noguera de la Muela luis prieto sanChís FranCisCo raMos Méndez riCardo robles planas sixto sÁnChez lorenzo Jesús-María silva sÁnChez Joan Manuel traYter JiMénez Juan José trigÁs rodríguez Director de publicaciones EU intEgration and fUndamEntal rights protEction approach to thE gUarantEEs of rights and frEEdoms in thE EUropEan mUltilEvEl framEwork Joaquín Sarrión Esteve Associate Professor of Constitutional Law Jean Monnet Chair in Governance and Regulation in the Digital Age (GovReDig) Director of the ISAAC Chair. Individual rights, scientific research and cooperation, UNED-CNR/IFAC. Universidad Nacional de Educación a Distancia EU INTEGRATION AND FUNDAMENTAL RIGHTS PROTECTION APPROACH TO THE GUARANTEES OF RIGHTS AND FREEDOMS IN THE EUROPEAN MULTILEVEL FRAMEWORK Any form of reproduction, distribution, public communication or transformation of this work may only be carried out with the authorisation of its owners, except in cases provided for by law. Please contact CEDRO (Spanish Reproduction Rights Centre) if you need to photocopy or scan any part of this work (www.conlicencia.com; 91 702 19 70 /93 272 04 47). Acknowledgements: This book has been reviewed and evaluated in English, guaranteeing the quality of its content. Work developed within the activities of the Jean Monnet Chair in Governance and Regulation in the Digital Age -Project 101127331 GovReDig. Funded by the European Union. The opinions and views expressed are solely those of the author and do not necessarily reflect those of the European Union or the European Education and Culture Executive Agency (EACEA). Neither the European Union nor the EACEA can be held responsible for them. ISAAC Chair. Individual rights, scientific research and cooperation, UNED-CNR/IFAC. Universidad Nacional de Educación a Distancia (UNED). © 2025 Joaquín Sarrión Esteve © 2025 Atelier Santa Dorotea 8, 08004 Barcelona e-mail: [email protected] www.atelierlibrosjuridicos.com Tel. 93 295 45 60 I.S.B.N.: 979-13-87867-80-5 Depósito legal: B 20383-2025 Impresión: Safekat In memoriam: to my mother, always in my thoughts, in the nostalgia of my longed-for and distant childhood nights. sUmmary contEnts prEfacE . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 part i. introdUction to thE EU intEgration procEss and thE EU mUltilEvEl lEgal systEm . . . . . . . . . . 15 1. on the nature oF the european union and the integration . . . . . . . . . . . . . . . . . . . . . 15 2. a brieF historiCal overview: FroM the european CoMMunities to the european union . . . . . . . . 16 3. FundaMental obJeCtives and prinCiples oF the european union . . . . . . . . . . . . . . . . . . . 26 4. the legal sYsteM oF the european union: its autonoMY and sourCes . . . . . . . . . . . . . . . 28 5. a MethodologiCal approaCh to the relationship between eu law and the law oF the MeMber states FroM a Multilevel perspeCtive and the prinCiples oF relationship . . . . . . . . . . . . . . . . . . . . . 38 part ii. thE gUarantEEs of rights and frEEdoms in thE spanish intErnal lEgal fiEld . . . . . . . . . . . . . . . 59 1. regulatorY or norMative guarantees oF rights and FreedoMs in the spanish legal Field . . . . . . 61 16 / Joaquín Sarrión Esteve the “classical patterns” of international law , as Alonso García points out, as it not only has its own legal personality, but also its own institutions with regulatory and executive powers3 and, we might add, its own jurisdiction and its own autonomous legal system that includes a system for the protection of fundamental rights, as we will analyse later in this book. Due to its contribution to reconciliation, peace, democracy and rights, it was awarded the Nobel Peace Prize in 2012. But apart from these brief notes on the complex nature of the EU, it is necessary to make some observations on the historical process that led to its creation. 2. A BRIEF HISTORICAL OVERVIEW: FROM THE EUROPEAN COMMUNITIES TO THE EUROPEAN UNION It is impossible to introduce the multilevel system of protection of rights and freedoms in the European Union, and its multilevel legal system without starting from the historical process of European integration that has made possible the existence of what we know today as the European Union (EU), perhaps, as Sarmiento says, “the most ambitious political and economic project (...) since the fall of the Roman Empire” or, at least, one of them4 . It is above all a hopeful project in the context of what has been called the European post-war period5 , a very long period in which the European project was born. This makes it necesderación, proporcionalidad y margen de apreciación en la jurisdicción europea de los derechos”, Revista General de Derecho Europeo, n. 25, 2011. 3. R. Alonso García, Sistema Jurídico de la Unión Europea, 4ª edición, Civitas Thomsom Reuters, Madrid, 2014, p. 71. 4. D. Sarmiento, El Derecho de la Unión Europea, 3rd edition, Marcial Pons, Madrid, 2020, p. 23 5. T. Judt, Postguerra. Una historia de Europa desde 1945, Taurus, Madrid, 2020. EU integration and fundamental rights protection / 17 sary for us to pause, albeit briefly, to consider some key moments and legal documents in European history. Firstly, it is important to note Schuman’s Declaration of 9 May 19506 : “Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity. The coming together of the nations of Europe requires the elimination of the age-old opposition of France and Germany. Any action taken must in the first place concern these two countries.” This declaration laid the foundations for the drafting and adoption of the Treaties establishing the European Communities by the founding Member States (Belgium, the Federal Republic of Germany7 , France, Italy, Luxembourg and the Netherlands)8: the Treaty establishing the European Coal and Steel Community (ECSC) of 18 April 19519 ; the Treaties establishing 6. European Union, Declaration of 9 May 1950 by Robert Schuman, https:// european-union.europa.eu/principles-countries-history/history-eu/1945-59/schuman-declaration-may-1950_en 7. It is important to note that after World War II, Germany was divided into two states: the Federal Republic of Germany and the German Democratic Republic, which would not be reunified until 3 October 1990 with the integration of the second in the first one. 8. A historical study of the formation of the Communities and their historical evolution is not the main focus of this work. For further information, please refer to Y. Gómez Sánchez, La Unión Europea en sus documentos, Centro de Estudios Políticos y Constitucionales, Madrid, 2000; P. Craig, and G. de Burca, (eds.), The Evolution of EU Law, Oxford University Press, Oxford, 2008; and M. J. Dedman, The origins and Development of the European Union (19452008). A History of European Integration, Routledge, 2nd edition, Routledge, Abingdon, Oxon, 2010. 9. The offer made in the Schuman Declaration was accepted not only by Germany, but also by Italy, Belgium, the Netherlands and Luxembourg, and the negotiations that began in Paris in June 1950 culminated on 18 April 1951 with the signing of the ECSC Treaty, which entered into force on 25 July 1952. The 18 / Joaquín Sarrión Esteve the European Economic Community (EEC) and the European Atomic Energy Community (EAEC), both of 27 March 195710 . The aim of these Treaties was to create a common market11; for which the four fundamental freedoms were essential. These were subordinate to the objective of achieving the free movement of goods, persons, services and capital12 . Subsequently, in 1973, the first enlargement of the European Communities took place, with the accession of the United Kingdom, Ireland and Denmark. In 1981, the second enlargement took place with the accession of Greece, and in 1986, the third with the incorporation of Spain and Portugal, bringing the number of members to 12. The evolution of the common market highlighted several problems and led to a proliferation of proposals for improvement, with various reports and even some unsuccessful reform projects (the Tindemans Report in 1975, the Three Wise Men Report in 1979 and the Spinelli Project in 1984, to name a few of them). The European Commission drew up the 1985 White Paper on the achievement of the Internal Market13, which, together with other reports, served as the basis for the adoption significance of the Schuman Declaration has led to 9 May being designated ‘Europe Day’. 10. These two treaties are the result of an initiative by the Benelux countries (Belgium, the Netherlands and Luxembourg) presented at the Messina Con - ference (1955) to advance integration after the failures of the European Defence Community and the European Political Community. 11. Article 2 of the EEC Treaty, in its original wording, established that the mission of the Community was “to promote, through the establishment of a common market and the progressive approximation of the economic policies of the Member States, a harmonious development of economic activities throughout the Community, continuous and balanced expansion, increasing stability, a rapid rise in the standard of living and closer relations between the States which comprise it”. 12. Paragraphs a, b, and c of Article 3 EECT. See B. Pérez de las Heras, El Mercado Interior Europeo. Las libertades económicas comunitarias: mercancías, personas, servicios y capitales, second edition, University of Deusto, Bilbao, 2008. 13. COM (85) 310 of 9 September, presented to the Council in June 1985. EU integration and fundamental rights protection / 19 of the 1986 Single European Act (SEA), which reformed the founding treaties14. This SEA replaced the notion of a ‘common market’ with that of an ‘internal market’ to emphasise the desire for market unity. In effect, the new concept specified that the aim was to achieve an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured according to the conditions of the treaty. Shortly afterwards and following such significant historical events as the fall of the Berlin Wall (1989), which for some could have meant the end of history15 , and the important German reunification16 , the milestone of the creation of the European Union as an entity was reached through the Treaty on European Union, adopted on 7 February 1992 in Maastricht17 . An EU founded on the Communities and based on the acquis communautaire18. Article 2 TEC, as amended, establishes that the aim is to achieve “a harmonious and balanced development of economic activities throughout the Community, sustainable and non-in14. The Single European Act was signed in Luxembourg on 17 February 1986 and in The Hague on 28 February 1986, entering into force on 1 July 1987. 15. F. Fukuyama, The End of History and the Last Man, Penguin, 1993. For Fukuyama, the fall of Soviet communism marked the end of ideological evolution with the triumph of liberal democracy as the final form of government, and he explained this in an article that served as the basis for his book. 16. This made the new Germany a major player in the integration process, both economically and politically. Sarmiento points out that a kind of pact or entente was reached in which the Member States accepted reunification and Germany’s new hegemonic position in exchange for Germany’s renunciation of the mark in favour of the euro as the common currency. See D. Sarmiento, El Derecho de la Unión Europea, 3rd edition, op. cit., pp. 35-36. On German unification, see R. Arnold, La unificación alemana. Estudios sobre Derecho alemán y europeo, Civitas, Madrid, 1993. 17. The Treaty on European Union was signed in Maastricht on 7 February 1992 and entered into force on 1 November of the following year, in 1993. 18. See A. Mangas Martín, D. J. Liñán Nogueras, Instituciones y Derecho de la Unión Europea, 1st edition, McGraw-hill, Madrid, 1996, pp. 25 and 26. 20 / Joaquín Sarrión Esteve flationary growth that respects the environment, a high degree of social convergence, a high standard of living and quality of life , economic and social cohesion and solidarity among Member States”; Articles 3 and 4 TEC establish the establishment of a common market and an economic and monetary union as necessary instruments for these objectives. Economic and monetary union is established as “the indispensable complement to the consolidation of the internal market”19 . At the same time, the preamble to the TEU proclaimed the Member States’ adherence to the principle of respect for human rights and fundamental freedoms, and the European Union’s commitment to respect fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms. In 1995, a new enlargement took place, with the incorporation of three Member States: Sweden, Finland and Austria20 . The Treaty of Amsterdam was signed in Luxembourg on 2 October 1997 and entered into force on 1 May 1999, introducing in Article 2 TEC as new objectives “equality between men and women” and “a high degree of competitiveness”. It also established a rule linking the EU to human rights, stipulating that it would be based on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and maintained its commitment to respect the rights enshrined in the ECHR.21 It also amended the TEC, stipulating that Community policy in the field of development cooperation would contribute to the objective of respect for human rights and fundamental freedoms (Article 177(2)). 19. B. Pérez de las Heras, op. cit. pp. 19-20. 20. Norway was also expected to join, but the referendum on accession had a negative outcome. 21. Art. 6.(1) and (2) Treaty on European Union. EU integration and fundamental rights protection / 21 The Nice Council, which culminated in the Treaty of Nice22 , leaves intact the objectives set out in Article 2 TEC and the actions provided for in Articles 3 and 4 thereof, relating to the achievement of the market and economic and monetary union; but, at the same time, it introduces minor amendments in the field of human rights in the Treaty on European Union and in the Treaty establishing the European Community . Nevertheless, the Nice Council is significant because it adopted the Charter of Fundamental Rights of the European Union through a Declaration of the European Commission, the European Parliament and the Council of 7 December 2000 . In addition, the Final Act of the Treaty of Nice included a Declaration on the future of the Union, calling for a broad and in-depth debate on the future development of the European Union, which led to the opening of a process of debate. In December 2001, the European Council agreed on the so-called Laeken Declaration to promote the process and agreed to set up a Convention, which began its work on 28 February 2002 to prepare a draft reform of the Treaties. The Convention on the Future of Europe concluded with a “Draft Treaty establishing a Constitution for Europe”, which was presented to the President of the European Council in Rome on 18 July 2003. The candidate countries that had completed their accession negotiations were invited to the Intergovernmental Conference that worked on this draft, as were those candidate countries that had not yet concluded their negotiations, in an observer capacity. The Conference began its work, and without a reform being approved, the planned accession of 10 new Member States took place on 1 May 2004: Estonia, Latvia, Lithuania, Poland, the Czech Republic, Slovakia, Hungary, Slovenia, Cyprus and Malta. On 18 June 2004, the Heads of State and Government of the 25 Member States approved the Draft Treaty establishing a 22. The Treaty of Nice was signed on 26 February 2001 in the city of Nice and entered into force on 1 February 2003. 22 / Joaquín Sarrión Esteve Constitution for Europe, which incorporated the Charter of Fundamental Rights adapted for inclusion therein (Part II, Articles II-61-114). However, it did not come into force after being rejected in referendums in France and the Netherlands. This failure was followed by a long period of uncertainty about the future of the reform, which did not rule out further enlargement, with the accession of Romania and Bulgaria on 1 January 2007. The Berlin Declaration of 25 March 2007 made it clear that there was no possibility of continuing with the draft Constitutional Treaty. Subsequently, the European Council of 21 and 22 June 2007 convened a new Intergovernmental Conference to reform the Treaties, but according to a precise mandate23. And at the Lisbon Summit, held on 18 and 19 October, the Treaty Reforming the Treaties, known as the Treaty of Lisbon, was agreed and signed on 13 December in the Portuguese capital. On the other hand, the text of the Charter of Fundamental Rights of the European Union was adapted and updated, removing the adaptations that had been made for its inclusion in the draft Constitutional Treaty, and it was solemnly proclaimed in Strasbourg on 12 December 2007, one day before the signing of the Treaty of Lisbon. The Treaty of Lisbon incorporates much of the draft Constitutional Treaty; however, unlike the aforementioned draft, it does not replace the founding treaties, but rather modifies them, affecting the TEU, the TECT and the TEAEC. In this sense, it expressly attributes legal personality to the European Union, succeeding the European Community. The Treaty on the European Union retains its name, but the Treaty establishing the European Community is renamed the Treaty on the Functioning of the European Union (TFEU). 23. A. Mangas Martín, “Introducción. El Compromiso con los derechos fundamentales”, in Mangas Martín, A., (ed.), Carta de los derechos fundamentales de la Unión Europea: comentario artículo por artículo, Fundación BBVA, Bilbao, 2008, p. 64. EU integration and fundamental rights protection / 23 The Treaty of Lisbon has been described as a ‘quasi-constitutional’ treaty24 , and although its main objective is to clarify and consolidate rather than reform, it introduces significant changes to the constitutional structure and some of the Union’s policies25 . The current Article 3 of the TEU sets out the objectives of the Union, and its third paragraph states that: “ 1. The Union’s aim is to promote peace, its values and the well-being of its peoples. 2. The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime. 3. The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance. It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child. It shall promote economic, social and territorial cohesion, and solidarity among Member States. 24. L. S. Rossi, “A New Revision of the EU Treaties After Lisbon?”, in Rossi, L.S. and Cassorali, F. (ed.), The EU after Lisbon, Springer, 2014, p. 6. 25. As indicated by T. Tridimas (2012), “Competence after Lisbon. The elusive search for bright lines”, in Ashiagbor, D., Countouris, N., and Lianos, I. (ed.), The European Union After the Treaty of Lisbon, Cambridge University Press, Cambridge, 2012, pp. 49-50. 24 / Joaquín Sarrión Esteve It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced. 4. The Union shall establish an economic and monetary union whose currency is the euro. 5. In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter. 6. The Union shall pursue its objectives by appropriate means commensurate with the competences which are conferred upon it in the Treaties. And Article 2 TEU adds: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” It is also important to note that the TEU attributes legal force to the Charter of Fundamental Rights of the European Union, in Article 6(1) TEU in the version proclaimed on 12 December 2007. This could lead us to conclude, in the midst of the European integration process, that while it is true that the “market” has been at the heart of the substantial construction of the Communities and the European Union, as a foundation and key instrument in the evolution of the European legal order alongside the economic, and freedoms that underpin it, it is no EU integration and fundamental rights protection / 25 less true that fundamental rights and their protection have gradually gained greater significance and relevance. Thus, from the silence of the founding treaties on these rights, there has been a long process that has culminated in the attribution of legal force to a Charter of Fundamental Rights, which acquired the legal force of a treaty since the entry into force of the Treaty of Lisbon on 1 December 2009. The severe economic crisis forced Member States to respond to the need for assistance from some members, launching various rescue operations that did not quite fit under the umbrella of the Treaties. For this reason, on 25 March 2011, the European Council adopted a Decision amending the TFEU,26 including a new third paragraph in Article 136 to provide for a stability mechanism for the euro area27 ; which was formalised in the Treaty establishing the European Stability Mechanism (ESM), to be supplemented by the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union. As for EU membership, the Union expanded to 28 Member States with the accession of Croatia on 1 June 2013. However, following the Brexit referendum, the United Kingdom began negotiations to leave the EU, a withdrawal process regulated by Article 50 TEU, which culminated in the UK leaving the EU with effect from 31 January 2020, now considered a third country, after a transitional period (until 31 December 2020). 26. Indeed, the use of the simplified revision mechanism provided for in Article 48(6) TEU was the subject of a preliminary ruling by the CJEU, which confirmed that the conditions laid down had been met. See Judgment of the Court of Justice of 27 November 2012, Pringle, C-370/12, ECLI:EU:C:2012:756 27. Article 136(3) TFEU provides that “The Member States whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole. The granting of any required financial assistance under the mechanism will be made subject to strict conditionality.” 32 / Joaquín Sarrión Esteve The founding treaties, which form the cornerstone of the European Union’s legal system and have undergone various significant amendments, are: — The Treaty establishing the European Economic Community (EEC), signed in Rome on 25 March 1957, which entered into force on 1 January 1958. Its name has changed through various reforms, such as the Maastricht Treaty, which changed it to the Treaty establishing the European Community (TEC), and the recent reform of the Treaty of Lisbon, which entered into force on 1 December 2009 and renamed the Treaty the Treaty on the Functioning of the European Union (TFEU)46 . — The Treaty establishing the European Atomic Energy Community (TEuratom), signed in Rome on 25 March 1957 and which came into force on 1 January 1958. The Euratom Treaty has survived the reform of the Treaty of Lisbon. — The Treaty on European Union (TEU). Signed in Maastricht on 1 February 1992, it entered into force on 1 November 1993. Initially, it was a treaty that created the European Union and amended the founding treaties, but with the Lisbon reform it has become the backbone and constitutional treaty of the new EU. However, the Treaty establishing the European Coal and Steel Community (TCECA), signed in Paris on 18 April 1951, is no longer in force. Although it entered into force on 23 July 1952, it had a planned term of 50 years, after which it was not resources system, in accordance with Article 311 TFEU. See D. Sarmiento, El Derecho de la Unión Europea, 3rd edition, op. cit., pp. 231-232. 46. It is significant that the Treaty establishing the European Community has changed from being a treaty establishing an international organisation to becoming, through the Treaty of Lisbon, a treaty governing the functioning and application of the European Union. EU integration and fundamental rights protection / 33 renewed in 2002, and its powers were taken over by the European Community and subsequently by the European Union. Special mention should be made of the Charter of Fundamental Rights of the European Union (CFREU), proclaimed in Nice on 7 December 2000 by the European Parliament, the Council of the European Union and the European Commission, which, in the version adopted on 12 December 2007 in Strasbourg, acquired legal force equivalent to that of a treaty on 1 December 2009, in accordance with Article 6(1) of the TEU, following the Lisbon reform. We must also consider the various reform treaties47 , highlighting the last of these: the Treaty of Lisbon of 13 December 2007, which entered into force on 1 December 200948 ; the 47. It is worth highlighting the Merger Treaty establishing a Single Council and a Single Commission of the European Communities, of 8 April 1965 (which entered into force on 1 July 1967 and was repealed by the Treaty of Amsterdam); the Treaty of Luxembourg, signed on 22 April 1970 and which entered into force on 1 January 1971; the Treaty of Brussels, signed on 22 July 1975 and in force since 1 January 1977, which established an increase in the organisation’s resources and increased the powers of the European Parliament, which, under the Treaty of Brussels, acquired the right to scrutinise the EU’s accounts and to assess at the end of each financial year whether the Commission had spent the budget correctly and prudently; the Single European Act, signed on 17 and 28 February 1986 in Luxembourg and The Hague, which entered into force on 1 July 1987, with the main objective of creating an internal market without borders and effectively guaranteeing the four economic freedoms; the Treaty on European Union, signed in Maastricht on 7 February 1992 and which came into force on 1 November 1993, which created the European Union on three pillars: the Community pillar (the pre-existing European Community), the second pillar (Common Foreign and Security Policy, CFSP), and the third pillar (police and judicial cooperation in criminal matters); the Treaty of Amsterdam, signed on 2 October 1997 and which entered into force on 1 May 1999, which communitarises some sectors of the second and third pillars; the Treaty of Nice, signed on 26 February 2001 and which came into force on 1 February 2003, with the aim of preparing for the broad accession of new Member States from Eastern Europe; and the Treaty of Lisbon of 13 December 2007, which came into force on 1 December 2009. 48. The Treaties may currently be amended in accordance with Article 48 TEU, which establishes two types of amendment: ordinary and simplified, pro- 34 / Joaquín Sarrión Esteve accession treaties of each of the non-founding Member States; as well as the Agreement on the withdrawal of the United Kingdom, published on 12 November 201949 . In addition, there are the protocols annexed to the treaties; as well as the so-called agreed statements at intergovernmental conferences, which may serve for the purposes of interpreting the treaties; and the so-called constituent acts and, as mentioned above, the protocols, the general principles of European Union law, most of which are the product of the doctrine of the Court of Justice in the exercise of its competence to ensure compliance with EU law in the interpretation and application of the Treaties (Art. 19 TEU), and which are incorporated at the top of the European Union’s legal system, are binding on the institutions and Member States and serve to interpret Union law. The fundamental characteristic of primary law is that it is binding and directly applicable. However, it is important to note that if we conceive of EU law as a legal system with a pyramidal structure, at the top we should also place the national identity of the Member States, respect for which is enshrined in the Treaty itself and in the Preamble to the Charter of Fundamental Rights of the European Union50 . 4.2. International agreements Special mention should be made of the possibility of adopting international agreements, since, in accordance with Article 216 TFEU, the Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary to achieve, in the context of Union policies, any of cedures which we will not analyse here. 49. Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (2019/C 384 I/01). 50. Rossi, L.S., “A New Revision of the EU Treaties After Lisbon?”, op. cit. EU integration and fundamental rights protection / 35 the objectives set out in the Treaties, or is provided for in a legally binding act of the Union, or may affect common rules or alter their scope (Article 216(1) TFEU); these agreements shall be binding on the institutions and Member States (Article 216(2) TFEU). It should be understood, with regard to their legal position in the hierarchy of sources of Union law, that international agreements are subordinate to primary law but above secondary law, as the Court of Justice has had occasion to rule, inter alia, in Kadi (2013)51. In this important judgment, the Court makes an interesting assumption of the doctrine of constitutional limits to assert that the protection of fundamental rights could limit the international obligations assumed by the European Union52 . 4.3. Derived or secondary law Derived law consists of regulatory provisions, or rules of the Union institutions that have the power to enact or approve them in accordance with the provisions of the Treaties themselves, and which are binding on the Member States and institutions, depending on their nature, after their publication in the Official Journal of the Union. The fundamental characteristic of secondary legislation is its effectiveness, which can be vertical or horizontal. Vertical effectiveness refers to relations between Member States and citizens, and horizontal effectiveness refers to relations between individuals. 51. Judgment of the Court of Justice (Grand Chamber) of 18 July 2013, Commission and Others v Kadi, joined cases 584/10 P, 593/10 P and 595/10 P, ECLI:EU:C:2013:518, paragraphs 357 et seq. 52. See Sarrión Esteve, J., “La tutela de los derechos fundamentales en la Unión Europea como límite a las obligaciones internacionales y el Derecho internacional “, Constitución y democracia. Ayer y hoy: libro homenaje a Antonio Torres del Moral, v. 3, 2012, pp. 3365-3382. 36 / Joaquín Sarrión Esteve Here, it is important to highlight the acts provided for in Article 288 TFEU: regulations, directives, decisions, recommendations and opinions, which, according to Alonso García, are referred to as “typical” because they are regulated precisely in that article53. Regulations (Article 288(2) TFEU) are rules of a general nature or scope that are fully effective, binding in their entirety and directly applicable in each Member State, and cannot be subject to reservations or exceptions, without prejudice to any implementing measures or measures for their implementation. This is a category of legislation equivalent to law in domestic law. Regulations are published in the Official Journal of the European Union and do not require any transposition. Directives (Art. 288(3) TFEU), on the other hand, are not as general in scope, as they refer to their addressees and are only binding to the extent of a specific objective within a given time frame, leaving it up to the Member States to choose and determine the appropriate form and measures to achieve that result. Unlike Regulations, Directives require transposition, which is manifested precisely in the implementation of national legislation in such a way as to achieve the results intended by the Directives. Decisions (Article 288(4) TFEU) are binding in their entirety (like regulations), but with a specific or general scope; if they specify addressees, they are only binding on those addressees. Recommendations and opinions (Art. 288(5) TFEU) are non-binding acts. On the other hand, interinstitutional agreements (Art. 295 TFEU) must be taken into consideration. These are atypical regulatory provisions that were incorporated with the Treaty of Lisbon and are intended to organise cooperation between the European Parliament, the Council and the Commission. 53. R. Alonso García, Sistema jurídico de la Unión Europea, op. cit., p. 170. EU integration and fundamental rights protection / 37 4.4. Tertiary or complementary law Tertiary or complementary law consists of regulatory provisions that develop or complement secondary law. We could perhaps include in this category delegated acts, a category introduced by the Treaty of Lisbon in Article 290 TFEU, which are intended to enable the Commission to adopt non-legislative acts of a general nature that supplement or amend certain non-essential elements of the legislative act; as well as the implementing acts provided for in Article 291 TFEU, defined as measures necessary for the implementation of legally binding acts, which, although they are primarily the responsibility of the Member States (Article 291(1) TFEU), may also be the responsibility of the Commission and, in specific and duly justified cases, as well as in the CFSP, the Council (Article 291(2) TFEU), with provision for the European Parliament and the Council to establish in advance, by means of regulations, through the ordinary legislative procedure, the rules and modalities for control by Member States of the exercise of implementing powers by the Commission (Article 291(4) TFEU)54. 54. The adoption of implementing acts by the Commission is not new; it was already provided for in the Treaties and was studied under the name of comitology. However, the new requirement introduced by the Treaty of Lisbon that it be regulated by a regulation adopted under the ordinary legislative procedure has made it necessary to adopt a new one: Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers, which entered into force on 1 March 2011Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers, OJEU 28.2.2011 L55/13. 38 / Joaquín Sarrión Esteve 4.5. Other sources of European Union law Some authors add the case law of the CJEU as a source of EU law, as it supplements and clarifies it, as well as some complementary sources such as custom or scientific doctrine55 . 5. A METHODOLOGICAL APPROACH TO THE RELATIONSHIP BETWEEN EU LAW AND THE LAW OF THE MEMBER STATES FROM A MULTILEVEL PERSPECTIVE AND THE PRINCIPLES OF RELATIONSHIP If anything defines the science of law, or we could say law as a science, it is that ‘it can shape the law itself and life in and under the law’56 . Thus, part of the work, of the research on law, must start from and focus on the problem of interpretation, including when we talk about the relationship between EU law and Member State law. However, in a legal system with a normative constitution57 , legal interpretation, based on the paradigm of the Constitution itself, must necessarily be constitutional, since traditional methods or criteria of interpretation (grammatical or literal, systematic, historical, teleological) are complemented or crowned by interpretation in accordance with the Constitution, or constitutional interpretation, and it is here that the axiological principles and values of the Constitution itself become important, 55. C. F. Molina del Pozo, Derecho de la Unión Europea, Reus, Madrid, 2015, pp. 269-278. 56. Since its inception, law has been a practical science. See K. Engisch, Introducción al pensamiento jurídico, Comares, Granada, 2001, p. 3. 57. On the concept of the constitution as a norm, see A. Torres del Moral, Estado de Derecho y Democracia de partidos, 5th edition, Universitas, Madrid, 2015, pp. 130 et seq. EU integration and fundamental rights protection / 39 insofar as every rule or provision must be interpreted in accordance with it. However, today, the problem of constitutional interpretation in the Spanish legal system cannot be separated from the process of European integration. The Spanish Constitution is not a closed text, but is open, on the one hand, to the influence of both the Universal Declaration of Human Rights and other international human rights texts ratified by Spain (Art. 10(1) Spanish Constitution) for the interpretation of fundamental rights; and, on the other hand, to the transfer of the exercise of powers and sovereignty within the framework of the European integration process (Art. 93 Spanish Constitution)58, which necessarily makes European Union law and its principles rules to be taken into consideration, especially those principles that can be described as constitutional and that enable the European legal system to be effective and, therefore, also the rights that it recognises. This makes it difficult, if not impossible, not to consider pluralistic approaches to the interpretation of legal rules and institutions. We are talking about theories of legal dogma that seek to explain, from an ordinal point of view, the relationships between EU law and the domestic or internal law of Member States. The truth is that there are a lot of papers on 58. Art. 93 CE: “By means of an organic law, authorisation may be granted for concluding treaties by which powers derived from the Constitution shall be vested in an international organisation or institution. It is incumbent on the Cortes Generales or the Government, as the case may be, to guarantee compliance with these treaties and with the resolutions emanating from the international and supranational organisations in which the powers have been vested.” 40 / Joaquín Sarrión Esteve this subject, both on constitutional pluralism59 and on multilevel constitutionalism60. Both theories or dogmatic constructs have different origins and subsequent developments, but we can basically say that they share certain similarities in terms of their theoretical basis61. Thus, both start from an ordinal perspective and aim to explain an architecture of relations between autonomous legal systems, each with its own fundamental norm that defines the criteria for the validity of its own norms and its relations with other systems; these are intertwined in such a way that they become interdependent and can be described as subsystems that are integrated into the multilevel system that encompasses them62; from an integrative and pluralistic vision or perspective 59. See, for example, N. Maccormick, Questioning Sovereignty. Law, State and Nation in the European Commonwealth, Oxford University Press, Oxford, 1999, pp. 703–750; and K. Jaklic, Constitutional Pluralism in the EU, Oxford University Press, Oxford, 2014. For a review of the literature on this theory, see A. Bobic, “Constitutional Pluralism Is Not Dead: An Analysis of Interactions Between Constitutional Courts of Member States and the European Court of Justice”, German Law Journal, v. 18, n.6, 2017, pp. 1395-1428. 60. In this regard, see: I. Pernice, “Multilevel constitutionalism and the Treaty of Amsterdam: European Constitution-making revisited?”, Common Market Law Review, v. 36, 1999, pp. 703–756, and “Multilevel constitutionalism in the European Union”, European Law Review, no. 5, 2002, pp. 511-529; Gómez Sánchez, Y., Constitucionalismo Multinivel. Derechos Fundamentales, 5th edition, Sanz y Torres, Madrid, 2020, p. 45. 61. F. C. Mayer, F. C. and M. Wendel, “Multilevel Constitutionalism and Constitutional Pluralism”, in Matej, A. and Komárek, J. (ed.), Constitutional Pluralism in the European Union and Beyond, Hart Publishing, Oxford and Portland, 2012, p. 151. 62. It can therefore be said that “multilevel constitutionalism can be configured as an autonomous paradigm within the European integration process, aimed at explaining this legal complexity, applicable to systems made up of subsystems which, in constitutionalism, can be linked to federalism and systematic interpretation”, see T. Freixes Sanjuan, “Multilevel Constitutionalism and European Integration”, in Freixes Sanjuan, T., Gómez Sánchez, Y., Rovira Viñas, A. (dir), Constitucionalismo Multinivel y relaciones entre Parlamentos: Parlamento eu- EU integration and fundamental rights protection / 41 that would make it possible to overcome any conflicts arising from sovereignty theories based on a paradigm or theory in which centres of power and national and transnational legitimacy coexist and interact63. Notwithstanding its problems and limitations, as is the case with almost all theoretical constructs, it is nonetheless true that it allows for a rational approach to the complex legal reality in which we live64. It should also be noted that these theories are not limited to description, but rather, by offering guidelines for resolving conflict situations, they are also prescriptive, or if you prefer, normative65. Furthermore, the existence of a radical separation between legal systems, as has been eloquently stated, is nothing more than a “mirage”66. As Nieto has rightly pointed out, “the reception of Community law has spread among us like wildfire (...) it has penetrated almost all economic and social activities to such an extent that few now escape its regulation”67; it is therefore increasingly necessary to clearly define, delimit and speify the way in which the relationship between Community law and the Spanish legal system into which it is incorporated is articulated. And these theories, or methodologies, can ultimately help us to understand the relationship between the different levels, ropeo, Parlamentos nacionales, Parlamentos regionales con competencias legislativas, CEPC, Madrid, 2013, p. 41. 63. On the comparison between the sovereigntist and pluralist views, see F. Fabbrini, Fundamental Rights in Europe, Oxford University Press, Oxford, 2015, pp. 15-25. 64. Y. Gómez Sánchez, Constitucionalismo Multinivel. Derechos Fundamentales, 5th edition, op. cit., pp. 45 et seq. 65. D. Sarmiento, El Derecho de la Unión Europea, 3rd edition, op. cit. 66. I. Borrajo Iniesta,”Las fricciones jurisdiccionales en la cooperación prejudicial: los tribunales constitucionales ante el Derecho Comunitario”, in La articulación entre el Derecho comunitario y los Derechos nacionales: algunas zonas de fricción, Estudios de Derecho Judicial, n. 95, 2006. 67. A. Nieto, “El Derecho comunitario europeo como Derecho común vulgar”, Revista de Administración Pública, n. 200, 2015, p. 38. 48 / Joaquín Sarrión Esteve sions, such as in Sayn-Wittgestein (2010)80 and Commission v Luxembourg (2011)81 . 4) The principles of direct effect and primacy The Court of Justice has certainly defined the relationship between EU law and domestic law, as well as the principle of autonomy of the European legal system, by proclaiming the principles of direct effect and primacy. Thus, EU legal provisions can themselves give rise to rights and obligations for individuals (Van Gend en Loos, 1963)82 This is what is known as direct effect, meaning that individuals can request the application of the rule vis-à-vis the State (vertical effectiveness) or vis-à-vis other individuals (horizontal effectiveness) by invoking it before the public authorities (both administrative and judicial), which will be obliged to safeguard it. This is what is known as direct effect or direct effectiveness. For EU legal provisions to have direct effect, the rule must be unconditional (leaving no room for discretion) and sufficiently clear and precise (a specific obligation devoid of ambiguity), as determined by the Court of Justice (Van Gend en Loos, 1963)83 .We can project this onto the different provisions of the European legal system: Firstly, we can talk about the Treaties, that is, the rules contained in the founding Treaties, which, if they meet the above requirements, will have direct effect (vertical and horizontal effectiveness) when they generate rights and obligations (Van Gend en Loos, 1963)84 ; but not when they contain mere objectives, establish procedural obligations, or grant broad powers 80. Judgment of the Court of Justice of 22 December 2010, Inlonka SaynWittgenstein, C-208/09, ECLI:EU:C:2010:806. 81. Judgment of the Court of Justice of 24 May 2011, Commission v Luxembourg, 51/08, ECLI:EU:C:2011:336. 82. Van Gend in Loos, 1963, cit. 83. Ibid. 84. Ibid. EU integration and fundamental rights protection / 49 of discretion. As Sarmiento points out, we must include here not only the Treaties themselves, but also protocols, amending or reforming treaties, accession treaties, and even the Charter of Fundamental Rights of the European Union85. Regulations, for their part, are binding in their entirety by their very nature and therefore have direct effect both vertically and horizontally (Politi, 1971)86 . Directives, as they require transposition by Member States, it is the national law transposing the Directive that creates rights and obligations, so in principle they do not have direct effect. However, they will have direct vertical effect (vis-à-vis the State87 ) when, after the transposition period has elapsed, transposition has not taken place or has been carried out incorrectly, provided that the rule is sufficiently clear and precise (Ratti, 1979)88, even if it does not generate subjective rights in the strict sense (Becker, 1982)89 . 85. Here, a distinction should be made between those rights that are strictly fundamental rights and those rights that have been included as principles, which would serve for interpretation purposes. D, Sarmiento, El Derecho de la Unión Europea, 3rd edition, op. cit. 86. Judgment of the Court of Justice of 14 December 1971, Politi v Ministero delle Finanze, C-43/71, ECLI:EU:C:1971:122 87. Furthermore, a broad concept of the State must be considered, in the sense of any public administration or authority, including all types of public bodies and business entities. Furthermore, even the Court of Justice has considered that the direct effect of a directive could be invoked against an entity subject to public authority or control, or if the authority has entrusted them with the exercise of a public interest mission and has endowed them with exorbitant powers, as was the case with a private insurance company in the Farrell case (2017). Judgment of the Court of Justice (Grand Chamber) of 10 October 2017, Farrell, C-413/15, ECLI:EU:C:2017:745 88. Judgment of the Court of Justice of 5 April 1979, Ratti, C-148/78, ECLI:EU:C:1979:110. 89. Judgment of the Court of Justice of 19 January 1982, Becker, C-8/81, ECLI:EU:C:1982:7. 50 / Joaquín Sarrión Esteve They lack horizontal effectiveness strictu sensu, that is, between individuals (Marshall, 198690; Faccini Dori, 199491 ), and yet, given that they can be invoked before public authorities, they can have results or effects that are detrimental to third parties, see Fratelli Constanzo (1989)92 , which is known as the “horizontal effects that can arise from vertical litigation” or “horizontal effects of vertical application” as Alonso García puts it93 or also known as the “reverse vertical effect” or “indirect horizontal effectiveness”94, or simply “indirect effects” or “triangular effects”95; which, in short, amounts to an expansion of the direct effects of directives on relations between private individuals96 . However, for reasons of legal certainty, the so-called reverse direct effect is prohibited, i.e. it cannot give rise to criminal liability or aggravate it97 . Furthermore, we cannot ignore the fact that directives, in addition to enjoying this direct effect when the conditions are met, have interpretative effect, i.e. the national court must interpret national legislation adopted in accordance with the directive it implements (Von Colson, 1984)98 , an interpretation 90. Judgment of the Court of Justice of 26 February 1986, Marshall, C-152/84, ECLI:EU:C:1986:84. 91. Judgment of the Court of Justice of 14 July 1994, Faccini Dori, C-91/92, ECLI:EU:C:1994:292. 92. Judgment of the Court of Justice of 22 June 1989, Fratelli Costanzo, C-103/88, ECLI:EU:C:1989:256 93. R. Alonso García, Sistema Jurídico de la Unión Europea, 4th edition, op. cit., p. 289. 94. L. Mellado Ruiz, “Autonomía procedimental del Estado y Ordenamiento Comunitario”, in Derecho Comunitario y Procedimiento Tributario, Atelier, 2010, p. 34. 95. A. Mangas Martín, D. J. Liñán Nogueras, Instituciones y Derecho de la Unión Europea, 10th edition, op. cit., pp. 436 et seq. 96. See D. Sarmiento, El Derecho de la Unión Europea, 3rd edition, op. cit., p. 317. 97. Ibid., pp. 317-318. 98. Judgment of the Court of Justice of 10 April 1984, Von Colson, C-14/83, EU:C:1984:153. EU integration and fundamental rights protection / 51 that the Court of Justice later extended to prior national law (Marleasing, 1990)99 . With regard to other legal instruments, since the Grad judgment (1970)100 , the Court of Justice has accepted the direct effect of decisions, and since Fruit Company (1971), international agreements or treaties101 . On the other hand, opinions and recommendations would lack this direct effect as they are not legally binding. The primacy of EU law implies the preference or prevalence, derived from the principle of competence and direct effect, of EU law over national law, such that the law arising from the treaty cannot be opposed in court by any kind of internal text (Costa, 1964)102 ; even in the face of a constitutional provision or a standard of constitutional protection (Melloni, 2013)103 . This primacy is projected by both primary law and secondary law for acts with direct effect. Internationale Handelgesellchaft (1970)104 , and Politi (1971)105 . Following Sarmiento106 we can say that the primacy of EU law manifests itself in two ways: one regulatory (abstract conflict) and the other applicative (concrete conflict), the latter occurring when, in a specific case, a choice must be made between the application of European law and national law, and 99. Marleasing, 1990, cit. 100. Judgment of the Court of Justice of 6 October 1970, Grad, C-9/70, ECLI:EU:C:1970:78. 101. Judgment of 13 May 1971, International Fruit Company and Others v Commission, C-41/70, ECLI:EU:C:1971:53. See also Judgment of the Court of Justice of 30 September 1987, Demirel, C-12/86, EU:C:1987:400 102. Costa, 1964, cit. 103. Judgment of 26 February 2013, Stefano Melloni v Public Prosecutor, C-399/11, ECLI:EU:C:2013:107. 104. Judgment of 17 December 1970, Internationale Handelsgesselschaft, C-11/70, EU:C:1970:114. 105. Politi, 1971, cit. 106. D. Sarmiento, El Derecho de la Unión Europea, op. cit., pp. 272, 314 et seq. 52 / Joaquín Sarrión Esteve the legal operator, whether a judge or an administration107 ; because once it has been determined that a consistent interpretation is not possible (which would be mandatory if possible) and in the case of the application of a European provision with direct effect, the national provision must be disapplied (displaced), regardless of its nature and whether or not it is temporary, prior or subsequent to the European provision108. However, the primacy rule can also be explained in terms of the so-called exclusionary effects (the application of the contrary national rule is prevented) and substitution effects (the European rule applies in place of the national rule)109. If this European provision did not have direct effect, and the interpretation of the national rule in accordance with it was not possible, then the Administration would apply the rule of domestic law, and EU law would not be effective; leaving the door open for the interested party concerned to claim financial liability from the State for infringement of Union law110. 107. See Fratelli Costanzo, 1988, cit, paragraph 32. Covering both general administrative provisions and specific individual administrative decisions, see Judgment of the Court of Justice of 29 April 1999, Ciola, C-224/1997, EU:C:1999:212, paragraph 32. On the position of the public administration regarding primacy, see J. Sarrión Esteve, “La Administración Pública ante la primacía y efectividad del Derecho de la Unión Europea”, op. cit. 108. The national court is not obliged to wait for the national provision to be amended, repealed or annulled, whether by legislative or judicial means. See Judgment of the Court of Justice of 9 March 1978, Simmenthal, C-106/77, EU:C:1978:49, paragraph 24. 109. See in this regard A. López Escudero, “Primacía del Derecho de la Unión Europea y sus límites en la jurisprudencia reciente del TJUE”, Revista de Derecho Comunitario Europeo, n. 64, 2019, pp. 795-796. 110. Thus, the financial liability of the State would be a closing clause in the system to compensate those who may be harmed by administrative acts contrary to European law. See De los Mozos y Touya, I., “Efectos de la invalidez por infracción del derecho europeo”, in López Ramón, F. and Villar Rojas, F. (coords.), El alcance de la invalidez de la actuación administrativa, INAP, Madrid, 2017, p. 690. EU integration and fundamental rights protection / 53 This is without prejudice to the State’s obligation to amend, annul or repeal the incompatible national rule, i.e. to definitively remove it from the legal system111 . However, the principle of primacy currently faces two paradoxes: firstly, despite the years that have passed since its establishment in case law, it has not been expressly included in the Treaties, beyond the Declaration on primacy112 which states: “17. Declaration concerning primacy The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law. The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260): “Opinion of the Council Legal Service of 22 June 2007 It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL, 15 July 1964, Case 6/641 [1] there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the 111. See R. Alonso García, Las sentencias básicas del Tribunal de Justicia de la Unión Europea, 5th edition, Civitas, Madrid, 2014, p. 92. 112. Consolidated version of the Treaty on the Functioning of the European Union - DECLARATIONS annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, signed on 13 December 2007 - A. DECLARATIONS CONCERNING PROVISIONS OF THE TREATIES - 17. Declaration concerning primacy. Official Journal No. 115 of 09/05/2008 p. 0344 – 0344. 12008E/AFI/DCL/17. Available here: https://eur-lex.europa.eu/legal-content/ES/ TXT/?uri=CELEX%3A12008E%2FAFI%2FDCL%2F17 54 / Joaquín Sarrión Esteve future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice. [1] “It follows (…) that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.”” Another paradox is that although the constitutional and supreme courts of the Member States recognise the principle of primacy, they nevertheless express certain reservations113 or, as we have said before, what we might call constitutional limits to the primacy of Union law114 . 5) Principles of loyal cooperation, institutional and procedural autonomy, the principle of consistent interpretation, and the effectiveness of European Union law. As is well known, Member States have a duty to cooperate in the application of European Union law, which is reflected in the principle of loyal cooperation, provided for in Article 4.3 TEU, which is reciprocal in nature and implies that the Union and the Member States shall respect and assist each other in carrying out the tasks arising from the Treaties. Thus, Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union; and they shall facilitate the achievement of the Union’s tasks and refrain from any measure 113. L. S. Rossi, “A New Revision of the EU Treaties After Lisbon?”, op. cit. pp. 7-8. 114. See J. Sarrión Esteve, Los límites a la integración europea en la doctrina constitucional op. cit. EU integration and fundamental rights protection / 55 which could jeopardise the attainment of the Union’s objectives (Article 4.3 TEU). To this end, Member States enjoy institutional and procedural autonomy, but they must respect the equivalence (the regulation must not be less favourable than that applicable to similar domestic resources) and effectiveness (nor must it make it impossible in practice or excessively difficult to exercise the rights conferred at EU level) of Union law, as stated by the Court of Justice in Unibet (2007)115 . Let us not fool ourselves: this implies obligations for the legal operator at the internal level, who must provide and guarantee adequate protection of the rights derived from European law -the effectiveness of rights and libertiesthus conditioning the purported principle of institutional and procedural autonomy, even in the procedural sphere116 . The scope of EU law is not limited exclusively to matters falling within the competence of the European Union, since, as the Court of Justice has stated, the fact that a matter falls within the exclusive competence of the Member States does not automatically mean that it is excluded ratione materiae from the EU, but rather that Member States must also respect EU law in the exercise of their exclusive competences, unless it is an internal situation with no connection to it117 . This is because, 115. Judgment of the Court of Justice of 13 March 2007, Unibet, 432/05, EU:C:2007:163 116. See J. Sarrión Esteve, “El Tribunal de Justicia de la Unión Europea y la protección del consumidor en la crisis financiera”, Federalismi.it. Rivista di Diritto Pubblico Italiano, Comparato, Europeo, n. 13, 2020, p. 126; “Apuntes sobre la autoridad de la res iudicata en la jurisprudencia del Tribunal de Justicia de la Unión Europea”, Cuadernos Europeos de Deusto, n. 65, 2021; Los desafíos para la Justicia Europea en un sistema multinivel: Una aproximación desde la perspectiva de la eficacia de los derechos, Aranzadi, Madrid, 2024. 117. This has enabled the Court of Justice to review tax rules, the registration and modification of names in the Civil Registry, the revocation of nationality by a Member State, and the procedural rules of the Member States themselves, matters which are a priori within the exclusive competence of the States but which may have a connection with EU law. 56 / Joaquín Sarrión Esteve even though a matter may fall within the exclusive competence of the State, it may be affected by rules or provisions of European Union law adopted in the exercise of the Union’s competences. In fact, on many occasions, the European Union regulates matters through directives, leaving their development and implementation to the Member States. Furthermore, it is for the national courts to interpret domestic law ‘as far as possible´ (principle of interpretation in conformity) in accordance with European Union law. This principle extends not only to domestic law, but also to European Union law itself, as well as to international law and, therefore, to international agreements and treaties118 . It should be noted that the Court of Justice began by requiring this interpretation in accordance with national legislation implementing or enforcing Union legislation (Von Colson and Kaman, 1984)119 , but it was subsequently extended to pre-existing national legislation (Marleasing, 1990)120 and even to the entire domestic legal system (Pfeiffer, 2004)121 , although several limits would obviously have to be specified, since there must be a national rule to interpret, given that, in principle, no interpretation can be drawn from a void; nor would an impossible or contra legem interpretation be possible in application of this principle, although the national judge must select and use that national interpretative method or criterion, from among the hermeneutical methods or criteria existing in the national legal system, which allows the Court to carry out this interpretation in accordance with the law; and finally, the gen118. What Alonso García refers to as the ad intra (relations between primary law and secondary law) and ad extra levels of EU law, see R. Alonso García, Sistema Jurídico de la Unión Europea, 4th edition, op. cit. p. 302. 119. Von Colson, 1984, cit. 120. Marleasing, 1990, cit. 121. Judgment of 5 October 2004, Pfeiffer and Others, joined cases C-397/01 to C-403/01, EU:C:2004:584. EU integration and fundamental rights protection / 57 eral principles of legal certainty, criminal legality and non-retroactivity must be respected122 . However, in relation to these limits, it is important to consider that the principle of consistent interpretation can play an interesting role when we are dealing with provisions of European Union law that do not have direct effect, but if we are dealing with provisions with direct effect, the principle of primacy and the non-application of the national provision should come into play in order to guarantee the effectiveness of Union law; Thus, primacy also has a clear impact on the principle of institutional and procedural autonomy, including procedural autonomy, as evidenced, among others, in Factortame (1990), where the national judge is empowered to guarantee the effectiveness of a judicial decision on rights derived from European law by excluding the application of a national rule that prevents the adoption of provisional measures123 . We will return to the question of the effectiveness of the rights conferred by European law in the last part of this work. 122. R. Alonso García, Sistema Jurídico de la Unión Europea, 4th edition, op. cit. pp. 306 et seq.; D. Sarmiento, El Derecho de la Unión Europea, 3rd edition op. cit., pp. 320-322; A. Mangas Martín, D. J. Liñán Nogueras, Instituciones y Derecho de la Unión Europea, 10th edition 10th edition, op. cit., pp. 441-443. 123. Judgment of the Court of Justice, 19 June 1990, Factortame and Others, C-213/89, EU:C:1990:257, paragraphs 22-23. 64 / Joaquín Sarrión Esteve rules by legal operators in the process of interpretation - interpretation in accordance with the Constitution (STC 771985) - and to the legislative power, since parliamentary autonomy cannot serve as an excuse for the obligation that its decisions comply with the Constitution (SSTC 259/2015, FJ 7). Thus, holders of public office have an inherent duty to abide by the Constitution as a manifestation of respect for it, although this duty does not constitute an obligation of ideological adherence or conformity with its content (STC 101/1983, of 18 November). 1.2. Development by ordinary/organic law (reservation of ordinary/organic law) The reservation of law for the regulation of the exercise of rights is a general or generic guarantee of the rights contained in Chapter II of Title I (art. 53(1) CE)135 , while there is a specific organic law reservation for the “implementation” of the fundamental rights and public freedoms recognised in Section One of Chapter II of Title I, i.e. the rights contained in Articles 15 to 29 of the Spanish Constitution (art. 81 Spanish Constitution)136 , which guarantees a broad consensus by requiring an absolute majority for its approval. 135. Article 53(1) of the Spanish Constitution: “The rights and liberties recognised in Chapter Two of the present Title are binding for all public authorities. The exercise of such rights and liberties, which shall be protected in accordance with the provisions of Article 161, 1a), may be regulated only by law which shall, in any case, respect their essential content”. 136. Art. 81(1) CE: “Organic laws are those relating to the development of fundamental rights and public liberties, those which establish Statutes of Autonomy and the general electoral system, and other laws provided in the Constitution”. One can consider that the reference to “fundamental rights and liberties” coincides with the heading of Section I of Chapter II of Title I of the Spanish Constitution. See STC 116/1999, of 17 June, on the extension of the coverage of the organic law reserve solely to the rights contemplated in Section 1 of Chapter 2 of Title I, thus excluding the rights in Section 2, but also the right to equality in Ar- EU integration and fundamental rights protection / 65 This organic law reservation would extend to the direct development of the fundamental right or when it is a regulation that affects basic constitutional aspects, i.e., its essential elements, or when it is a matter of establishing limits, with regulations that affect non-essential elements without affecting the scope and limits of the right being excluded from this reservation; outside this reservation, the reservation of ordinary law would apply, although this is a dividing line that, as Díez-Picazo points out, is not easy to draw137. It is important to note that the organic law reservation is a limit that excludes the intervention of the regional legislator in the development of the rights of Section One, which, on the other hand, can intervene through regional law in the regulation of other rights138; although the regional legislator may be limited in its regulation by the state’s competence to approve basic legislation with the aim of regulating “the basic conditions that guarantee the equality of all Spaniards in the exercise of their rights and in the fulfilment of their constitutional duties”139. ticle 14. However, some authors include Article 14 in the coverage of this organic law reserve. See C. Montesinos Padilla and A. Queralt Jiménez, Protección Jurisdiccional de los Derechos - Sistemas Español, Universal, Regional Europeo y Supranacional - Teoría y Práctica, op. cit., p. 94; F. J. Díaz Revorio (ed.), Constitución Española y Ley Orgánica del Tribunal Constitucional, Tirant lo Blanch, 2022, p. 203. 137. L. M. Díez-Picazo, Sistema de derechos fundamentales, 5th ed., op. cit., p. 101. 138. However, Díez-Picazo points out that some Constitutional Court rulings, such as STC 173/1998, have allowed the Autonomous Community of the Basque Country to regulate the right of association insofar as it does not affect the essential elements of the fundamental right, which are those that fall within the exclusive competence of the State under Article 149(1)(1) of the Spanish Constitution. Díez-Picazo doubts whether this ruling responds to the particular circumstances of the specific case. L. M. Díez-Picazo, Sistema de derechos fundamentales, 5th ed., op. cit., pp. 102-103. 139. Ibid. 66 / Joaquín Sarrión Esteve Unlike the reservation of organic law, the reservation of ordinary law covers all the rights and freedoms in Chapter II of Title I and would require a legal norm to regulate non-basic or non-essential aspects of rights, and for any type of intervention in them. Evidently, these provisions imply that the executive branch, i.e., the Government, may be limited in its use of instruments with the force of law in matters of fundamental rights. On the one hand, legislative decrees cannot regulate matters reserved for organic law (Art. 82(1) CE)140 but they can regulate matters reserved solely for ordinary law; and decree-laws cannot “affect” the rights, duties and freedoms regulated in Title I (Art. 86(1) CE)141. This safeguard gave rise to some controversy or doctrinal discussion as to whether it was an extensive reservation or one limited to fundamental rights reserved for organic law; and the Constitutional Court has sought to define this guarantee in the sense that affecting a fundamental right does not equate to any intervention in it, but only when it involves comprehensive regulation or affects essential elements of the rights142 , without clearly and precisely determining which rights and to what extent they may be regulated by decree-law143 . 140. Art. 82.1 CE: “The Cortes Generales may delegate to the Government the power to issue rules with the force of law on specific matters not included in the foregoing article. “ 141. Art. 86(1) CE: “In cases of extraordinary and urgent need, the Government may issue temporary legislative provisions which shall take the form of decree-laws and which may not affect the regulation of the basic State institutions, the rights, duties and liberties contained in Title 1, the system of the Autonomous Communities, or the General Electoral Law”. Note the similarity, although not the coincidence, with the heading of Title I of the Spanish Constitution, “Fundamental rights and duties”. 142. L. M. Díez-Picazo, Sistema de derechos fundamentales, 5th ed., op. cit., pp. 102-103. 143. Y. Gómez Sánchez, Constitucionalismo Multinivel. Derechos Fundamentales, 6th ed., op. cit., pp. 227-228; and in the same sense, see L. M. Díez-Picazo, Sistema de derechos fundamentales, 5th ed., op. cit., op. cit., pp. 102-103. EU integration and fundamental rights protection / 67 1.3. Respect for essential content The guarantee of respect for essential content in the legislative development of rights, provided for in Article 53(1) of the Spanish Constitution, covers the rights and freedoms regulated in Chapter II of Title I (Articles 14 to 38), and therefore does not cover all constitutional rights, excluding those rights that are outside Title I, as well as the guiding principles of Chapter III of Title I (Articles 39 to 52 of the Spanish Constitution). The concept of essential content is incorporated into the Spanish Constitution, in Article 53(1) under the influence of the Bonn Basic Law, which establishes in Article 19(2) that “in no case may the essence of a fundamental right be transferred”, understood as a prohibition on regulating the right in such a way that it becomes unrecognisable. However, there is no definition in our Constitution of what constitutes the essential content of a right, so it is the Constitutional Court, as the highest interpreter of the Constitution, which must establish it or attempt to delimit its content or boundaries. This idea of “essential content” can also be found in the European Convention on Human Rights, Article 17 of which prohibits any act that leads to the destruction of fundamental rights, and in the Charter of Fundamental Rights of the European Union, which provides that any limitation of rights must be established by law and respect their essential content (Article 17 of the Charter). It is important to note that this is a guarantee that is primarily directed at the legislator, who is obliged to respect a minimum standard when regulating the law, but it is also, in turn, a limit for the Constitutional Court, which must respect the legislator’s capacity to shape the law, beyond the limit that the law is not distorted or misrepresented144 . 144. F. Balaguer Callejón (coord.), G. Cámara Villar, M. L. Balaguer Callejón, J. A. Montilla Martos, Introducción al Derecho Constitucional, 5th ed., Tecnos, 2016, pp. 369-370. 68 / Joaquín Sarrión Esteve It is also important to note, as we have said before, that the lack of regulation does not prevent the exercise of rights or their effectiveness if they are directly invocable (direct effectiveness). It has also been considered that the essential content is covered by the application of the principle of proportionality, coinciding with what would be proportionality in the strict sense or the prohibition of emptying145 . 1.4. Constitutional rigidity Other normative guarantees may be considered, such as constitutional rigidity itself. The Spanish Constitution is a rigid constitution insofar as its reform requires more than the approval of a law by a simple majority, and this guarantee protects rights and freedoms, as its reform will require following the constitutional reform procedure established in Title X of the Constitution. There are certainly two reform procedures, the ordinary and the aggravated, and the aggravated procedure, which allows for the modification of the entire Constitution, is the one that must also be used to reform fundamental rights, understood as those that enjoy the greatest protection, that is, the rights of Section One of Chapter II of Title I (Articles 15 to 29); the other constitutional r rights would be protected by the ordinary reform procedure, whether they are in Title I, including the guiding principles of Chapter III, or outside it146. 1.5. Other guarantees Likewise, the doctrine refers to the existence of guarantee rights, that is, the provision in the Constitution of rights that 145. L. M. Díez-Picazo, Sistema de derechos fundamentales, 5th ed., op. cit., p. 113. 146. Y. Gómez Sánchez, Constitucionalismo Multinivel. Derechos Fundamentales, 6th ed., op. cit., p. 228. EU integration and fundamental rights protection / 69 constitute a guarantee of others, the most significant example being the right to effective judicial protection (Article 24 CE), which serves as an instrument to protect or safeguard the exercise of constitutional and fundamental rights. However, this particular guarantee also constitutes a jurisdictional guarantee. There are also constitutional prohibitions that serve to protect rights and freedoms and their exercise, such as the prohibition that no one may be compelled to declare their ideology, religion or beliefs (Art. 16(2) CE), which protects the free exercise of ideological and religious freedom147 ; or the prohibition of prior censorship (Art. 20(2) CE148 ) which protects the rights contained in Art. 20(1) CE, including freedom of expression (Art. 20(1)(a) CE), artistic, scientific and technical production and creation (Art. 20(1) (b) CE), academic freedom (Art. 20(1)(c) CE), and the right to freedom of information (Art. 20(1)(d) CE). As well as constitutional obligations established normatively in the constitutional text, which also serve to ensure the free exercise of rights and freedoms, as is the case with the obligation for individuals to participate in education (Article 27(7) CE), or when a prior judicial decision is required for the suspension or dissolution of associations (Art. 22(4) CE), or for entering private homes (Art. 18(2) CE), although in these cases it can be understood that these are also jurisdictional guarantees, as Gómez Sánchez points out149 147. However, the Constitutional Court has considered it legitimate to request information from individuals regarding their beliefs or religion because of a request made by the interested party, see STC 160/1987, of 27 October. 148. Art. 20(2) CE: “The exercise of these rights may not be restricted by any form of prior censorship.” 149. Y. Gómez Sánchez, Constitucionalismo Multinivel. Derechos Fundamentales, 6th ed., op. cit., p. 229. 70 / Joaquín Sarrión Esteve 2. JURISDICTIONAL GUARANTEES OF RIGHTS AND FREEDOMS IN THE SPANISH INTERNAL LEGAL FIELD Jurisdictional guarantees are those that are exercised before the courts (jurisdictional bodies)150. Furthermore, it should be noted that these jurisdictional guarantees are considered to be subjective public rights, which means that they, in turn, are subject to guarantees151. Pérez Luño distinguishes between generic and specific jurisdictional protection, the latter being specifically provided for rights and freedoms152 . The generic jurisdictional protection protects both rights and other constitutional interests and legal assets and includes effective judicial protection without defencelessness and due process (Art. 24 CE153 ), as well as constitutional review (Arts. 161(1)(a) and 163 CE). 150. We follow the approach taken in J. Sarrión Esteve, El reconocimiento y protección de los derechos y libertades en un mundo en transformación. ¿Hacia un nuevo paradigma constitucional?, Aranzadi, Madrid, 2023, p. 91 et seq. 151. V. Gimeno Sendra, A. Torres del Moral, P. Morenilla Allard, M. Díaz Martínez, Los derechos fundamentales y su protección jurisdiccional, 3rd edition, Edisofer, 2018, p. 602. 152. E. Pérez Luño, Los derechos fundamentales, Tecnos, 1984, p. 85. 153. Art. 24 CE: “1. Every person has the right to obtain the effective protection of the Judges and the Courts in the exercise of his or her legitimate rights and interests, and in no case may he go undefended. 2. Likewise, all persons have the right of access to the ordinary judge predetermined by law; to the defence and assistance of a lawyer; to be informed of the charges brought against them; to a public trial without undue delays and with full guarantees; to the use of evidence appropriate to their defence; to not make selfincriminating statements; to not declare themselves guilty; and to be presumed innocent. The law shall determine the cases in which, for reasons of family relationship or professional secrecy, it shall not be compulsory to make statements regarding alleged criminal offences” EU integration and fundamental rights protection / 71 2.1. Effective judicial protection a) Effective judicial protection without defencelessness and the right to a trial with all guarantees Article 24 establishes the right to effective judicial protection without defencelessness and to a trial with all guarantees. This right is also enshrined in Article 6 of the ECHR and Articles 47-50 of the European Charter of Fundamental Rights. In addition, article 24(1) establishes the right of all persons -both natural and legal persons, nationals and foreigners, regardless of their legal status154 - to access to effective judicial protection, a right of legal configuration or provision155 that includes, in a broad sense: 1) The right of access to judges and courts or access to jurisdiction or justice This is the right to be a party to proceedings and to promote jurisdictional activity, which is also often referred to as effective judicial protection in the strict sense156 , and which does not allow excessive obstacles inherent in unreasonable or disproportionate formalism157 so as to guarantee the pro actione principle of the individual. Thus, it has found that an excessively strict judicial application of the institution of expiry violates the right to effective judicial protection (access to jurisdiction) because it is contrary 154. SSTC 99/1985, of 30 September; 115/1987, of 7 July; STC 95/2003, of 10 June. 155. SSTC 38/1983, of 16 May; 99/1985, of 30 September, section 4; 205/1990, of 13 December. 156. L. M. Díez Picazo, Sistema de Derechos fundamentales, 5th ed., op. cit., p. 414. 157. SSTC 57/1984, of 8 May; STC 57/1985, of 29 April; 218/2009, of 21 December, FJ2; 22/2011, of 14 March. 72 / Joaquín Sarrión Esteve to the pro actione principle (STC 220/2012, of 26 November, sections 3 and 4). Likewise, failure to recognise a procedural channel for examining the redress of a possible violation of a fundamental right, such as the right not to be subjected to torture or inhuman or degrading treatment, if it makes the protection of that right impracticable, constitutes a violation of the right of access to the courts (STC 61/2024, of 9 April, section 4). Furthermore, it not only protects a subjective right or power, but the right of access to the courts also covers any legitimate interest that is minimally personalisable158 . Constitutional doctrine has also considered that a manifest error on which a decision of inadmissibility is based has constitutional relevance and constitutes a violation of the right of access to jurisdiction (SSTC 167/2014, of 22 October, section 4; and 6/2018, of 22 January, sections 3 and 5). 2) The right to obtain a reasoned decision, based on law and, where appropriate, consistent with the merits of the case. The right to obtain a decision or ruling from the courts that is based on law implies a right to obtain a reasoned decision and, where appropriate, one that is consistent with the merits of the case. Firstly, it should be noted that the right to obtain a decision based on law constitutes a guarantee against the arbitrariness of public power and therefore implies the requirement that the decision contain the elements and reasons, the legal criteria, that led to the adoption of the decision by the court. Furthermore, in accordance with constitutional doctrine, restrictions on fundamental rights require a reinforced justification that adequately weighs the rights at stake, and the use of stereotyp158. L. M. Díez Picazo, Sistema de derechos fundamentales, 5th ed., op. cit., p. 414. EU integration and fundamental rights protection / 73 ical formulas does not fulfil the required duty of justification (STC 131/2016, of 18 July, sections 5 and 6). Secondly, the reasoning must be based on law and must not be arbitrary or manifestly unreasonable. Although the Constitutional Court cannot review the correctness or incorrectness of the judicial decision, given that Article 24(1) of the Spanish Constitution does not require or guarantee that the court is correct, whether in the selection, interpretation or application of the rule, the fact is that the right to effective judicial protection does require that the decision, whether it be one of inadmissibility or on the merits of the case, be motivated (substantiated) by law (see STC 147/1999, of 4 January, sections 2 and 5). This does not prevent an admissibility ruling if the petition deals with non-legal issues or does not meet the procedural requirements established by law. Thirdly, questions may also arise regarding the inconsistency of the ruling, either by omission or by excess in relation to what was requested. STC 61/2009, of 9 March, in its section 5, sets out the constitutional doctrine on the defect of inconsistency: “We must now proceed to judge the complaint regarding the inconsistency by omission that the contested ruling may have incurred. To do so, we must start from the established constitutional doctrine on the defect of inconsistency, emphasising that this refers to the duty of the judicial bodies to decide, which must resolve the disputes brought before them by providing answers to all the claims made by the parties, avoiding any discrepancy between the judicial ruling and the terms in which the parties formulated their claims, by granting more or less than or something other than what was requested (see, for example, STC 40/2006, of 13 February, section 2). By granting more, less or something other than what was requested, the judicial body commits forms of inconsistency known as omission, extra petitum and inconsistency due to error. The first, omissive inconsistency or ex silentio, which is the one alleged in the appeal for protection, occurs when the court leaves unanswered any of the claims submitted for its consideration by the 80 / Joaquín Sarrión Esteve testify or to tell the truth is prohibited, and the lack of a statement cannot constitute evidence, although an implausible statement can, although in any case sufficient evidence is required (SSTC 220/1998, of 16 November). This guarantee of criminal proceedings is manifested outside the proceedings in Article 17(3) of the Spanish Constitution in relation to detention. 3) The right to the presumption of innocence, which requires evidence to the contrary to be freely assessed by the judge, does not constitute a violation of the right if the circumstantial evidence is based on proven facts. 4) The right to a second hearing in criminal cases can be inferred from Article 24(2) of the Spanish Constitution, through the application of Article 10.2 of the Spanish Constitution, in relation to Article 14(5) of the International Covenant on Civil and Political Rights (ICCPR), which requires the right of the convicted person to have the judgment and sentence reviewed by a higher court (STC 42/1982, of 5 July, section 3), as well as in relation to Article 2 of Protocol 7 to the ECHR, ratified by Spain on 16 September 1998. However, it was not until the Law 41/2015 of 5 October, amending the Criminal Procedure Act, that the Spanish system generalised the second instance in criminal proceedings to guarantee a second evaluation of the evidence, since previously criminal cassation only allowed for the review of formal or legal aspects, which led to various international condemnations in the United Nations163. 2.2. Constitutionality control This is included as a guarantee or guarantees of generic judicial protection because it protects not only fundamental rights and freedoms but also the entire Constitution. 163. Ídem., p. 118. EU integration and fundamental rights protection / 81 a) Appeal on grounds of unconstitutionality This includes the appeal for unconstitutionality before the Constitutional Court provided for in Article 161(1)(a) of the Spanish Constitution and developed in Organic Law 2/1979 of 3 October on the Constitutional Court, which, in accordance with Article 162(1)(a), may be lodged by the President of the Government, the Ombudsman, 50 Members of Parliament, 50 senators, the executive collegiate bodies of the autonomous communities and, where applicable, their assemblies (with regard to provisions with the force of law that may affect their own sphere of autonomy). We are therefore faced with active legal standing of public authorities to allow the control of public powers over the legislator164 ; which excludes individuals from appealing against the constitutionality of laws and provisions with the force of law, although it could be introduced via a reform of the Organic Law of the Constitutional Court, to resolve in particular the “single case laws” that do not require administrative or jurisdictional acts for their application165. The deadline for filing is three months from publication (Art. 33(1) LOTC), as a general rule, as there is a specific deadline of six months for appeals to be filed by the Prime Minister and the collegiate bodies of the Autonomous Communities, to allow conflicts to be resolved through the Bilateral Cooperation Commission between the General State Administration and the respective Autonomous Community, with an agreement to begin negotiations that must be notified to the Constitutional Court within three months of the publication of the provision (Art. 33(2) LOTC). It should also be noted that there is constitutional control of appeals lodged against the formal tax regulations of the Terri164. Y. Gómez Sánchez, Multilevel Constitutionalism. Fundamental Rights, Sanz y Torres, 5th ed., p. 243. 165. In this regard, L. M. Díez-Picazo, Sistema de derechos fundamentales (System of Fundamental Rights), 5th ed., op. cit., p. 113. 82 / Joaquín Sarrión Esteve tories of Álava, Guipúzcoa and Vizcaya, issued in the exercise of their exclusive powers guaranteed by the first additional provision of the Constitution. Likewise, Organic Law 12/2015 of 22 September established the preliminary appeal of unconstitutionality for draft organic laws on Statutes of Autonomy or their amendment, which to a limited extent restores the preliminary appeal of unconstitutionality provided for in the first draft of the LOTC. A very short period of three days is established for its filing, from the publication of the approved text in the Official Gazette of the Spanish Parliament, and its filing automatically suspends subsequent proceedings, including, where applicable, the calling of a referendum, until the Constitutional Court has ruled. b) Question of unconstitutionality Article 163 of the Spanish Constitution establishes that “ If a judicial body considers, in some action, that a regulation with the status of law which is applicable thereto, and upon the validity of which the judgment depends, may be contrary to the Constitution, it may bring the matter before the Constitutional Court in the circumstances, manner and subject to the consequences to be laid down by law, which shall in no case be suspensive.” This mechanism allows judges to consult the Constitutional Court on the constitutionality of laws they are required to apply and enables the legal system to be refined. At the same time, it is an obligation, as judges do not have constitutional control over the law, which is exclusive to the Constitutional Court (concentrated control), except for pre-constitutional laws which, given the possible coexistence of the Constitution with pre-constitutional rules, may be disregarded by judges in application of the Repealing Provision of the Constitution. There is a possibility that the Constitutional Court itself may raise a question of unconstitutionality, so that when it consid- EU integration and fundamental rights protection / 83 ers an appeal for protection, the Chamber will refer the matter to the Plenary, which may declare the provisions unconstitutional during the processing of an appeal for protection (Article 55(2) LOTC). Subsequently, specific judicial protection must be taken into consideration. Following Y. Gómez, we refer to specific judicial protection to refer to the specific judicial protection for the rights that has been established, regardless of whether it refers to all or part of the rights, and also regardless of when it occurs. We can talk about a priori or prior judicial protection, such as the requirement of prior judicial authorisation for entering private homes (Art. 18(2) CE) or a judicial decision for the suspension or dissolution of associations (Art. 22(4) CE). And a posteriori jurisdictional protection, to refer to protection through jurisdictional procedures to protect the right, such as preferential and summary proceedings, including some specific proceedings that have some of these characteristics of preference and summary nature, of protection specific to certain rights, as is the case, for example, with the protection of the right of habeas corpus (Art. 17(4) CE, Organic Law 6/1984, of 24 May, regulating Habeas Corpus), the right of assembly (Art. 21, Organic Law 9/1983, of 15 July), the protection of the right to honour, personal and family privacy and one’s own image (Art. 18(1) CE, Organic Law 1/1982 of 5 May); and the appeal for protection before the Constitutional Court, which we will discuss in detail. 2.3. Preferential and summary proceedings Also known as ordinary judicial or jurisdictional protection. 84 / Joaquín Sarrión Esteve a) Concept and general characteristics of the preferential and summary procedure in Art. 53(2) CE This is a preferential and summary procedure before the ordinary courts, which is unique to Spanish law166, provided for in art. 53(2) CE for the protection of the rights and freedoms contained in art. 14 and in Section 1 of Chapter II of Title I, thus leaving out Section II, including conscientious objection to military service (Article 30(2) of the Spanish Constitution), which is protected by the constitutional appeal for protection, but lacks the coverage of the preferential and summary procedure or judicial or ordinary jurisdictional protection, as it is commonly known. Nor is there full coincidence with the rights and freedoms that enjoy the protection of the organic law reserve (Article 81 of the Spanish Constitution) or the constitutional reform procedure (Article 168 of the Spanish Constitution), which only protect the rights contained in Section 1 of Chapter II of Title I (Articles 15 to 29 of the Spanish Constitution). However, although the object of protection is limited, two issues must be considered: firstly, it does not protect everything contained in the articles, but rather rights and freedoms, so that mandates to the legislator contained in Section 1 of Chapter II of Title I have been excluded from protection; and secondly, rights and freedoms have been protected which, although contained outside that scope, can be connected to those that are within it, for example, However, although the object of protection is limited, two issues must be considered: firstly, it does not protect everything contained in the articles, but rather rights and freedoms, so that general principles or mandates to the legislator have been excluded from protection; 166. F. Balaguer Callejón (coord.), G. Cámara Villar, M. L. Balaguer Callejón, J. A. Montilla Martos, Introducción al Derecho Constitucional, op. cit., p. 372. EU integration and fundamental rights protection / 85 and secondly, rights and freedoms that are outside this scope but can be connected to those within it may be protected167 . Any person who can allege the violation of one of the protected rights has standing to sue, even though Article 53(2) refers to citizens. It was initially regulated by Law 62/1978, of 26 December, on the Judicial Protection of Fundamental Rights of the Individual, which provided for protection in the criminal, contentious and civil spheres, but it has since been repealed and specifically regulated in the specific legislation of the different jurisdictional orders. The principles of preference and summary proceedings mean that it is a special procedure in relation to time limits, which are shorter, and in relation to the subject matter of the dispute, as only the violation of fundamental rights can be alleged and not questions of legality. It is therefore important to note that the limitation of the subject matter exclusively to the protection of fundamental rights specifically protected in this procedure makes it unsuitable for the protection of claims that are not related to these rights, which would lead to their inadmissibility without defence, as the mere invocation of the fundamental right cannot be considered sufficient (SSTC 37/1982, of 16 June; 31/1984, of 7 March). It should be noted that these procedures, any of the preferential and summary procedures in the ordinary courts, constitute a prior judicial remedy and open access to the Constitutional Court through the constitutional appeal for protection, in accordance with the provisions of Article 44 LOTC. However, it should also be noted that their use is not mandatory, and the interested party may opt for the non-preferential and summary ordinary procedure or may also resort to both. In the latter case, lis pendens cannot be invoked, nor does the dismissal of one imply the dismissal of the other, although if one of them is 167. G. Fernández Farreres, El recurso de amparo según la jurisprudencia constitucional (The appeal for protection according to constitutional case law), Marcial Pons, Madrid, 1994, pp. 24-26. 86 / Joaquín Sarrión Esteve upheld, the other should be dismissed due to supervening loss of purpose168 . b) The different preferential and summary proceedings before the ordinary courts Civil jurisdiction. In general, Article 249(2) of the Civil Procedure Act (LEC) provides that claims seeking protection of the right to honour, privacy and personal image (regulated by Organic Law 1/1982 of 5 May on the protection of honour, personal privacy and personal image), and those seeking civil judicial protection of any other “fundamental right”, unless they refer to the right of rectification, shall be dealt with in ordinary proceedings, with the Public Prosecutor’s Office always being a party, and their processing being “preferential” in nature; thus, it is not in fact a specific preferential and summary procedure, even though it is attributed a preferential nature. With regard to the right of rectification, specific protection is provided for in Articles 1 to 8 of Organic Law 2/1984 of 26 March on the right of rectification, which provides that if the right of rectification has not been complied with (for which there is a period of seven calendar days from the publication or dissemination of the information to be rectified), an action for rectification may be brought within seven working days before the Court of First Instance of the domicile of the interested party or before that of the place of the address of the media outlet (Article 4), without the need for a solicitor or advocate, accompanying the rectification and sent within the legally established period. The procedure is established through oral proceedings, with some particularities, including that only relevant evidence that can be presented at the hearing will be admitted, and that the judgement will be handed down on the same day or the day after the hearing (arts. 5 and 6 OL 2/1984). 168. L. M. Díez Picazo, Sistema de derechos fundamentales, 5th editon, op. cit., pp. 78-79. EU integration and fundamental rights protection / 87 Criminal jurisdiction. The protection of fundamental rights is provided for through the summary procedure laid down in the Criminal Procedure Act (LECrim) since the reform carried out by Law 38/2002 of 24 October. In addition, there is a very specific procedure for the protection, in the criminal jurisdiction, of the right to personal freedom (Article 17 of the Spanish Constitution), as mandated by paragraph 4 of the same Article 17 of the Spanish Constitution, which establishes that “ A habeas corpus procedure shall be regulated by law in order to ensure the immediate handing over to the judicial authorities of any person arrested illegally (...)”. The habeas corpus procedure is set out in Organic Law 6/1984, of 24 May, regulating the ‘Habeas Corpus’ procedure, which may be initiated a) by the person deprived of liberty, their spouse or person with whom they have a similar emotional relationship, descendants, ascendants, siblings and, where applicable, with regard to minors and incapacitated persons, their legal representatives; b) the Public Prosecutor’s Office; c) the Ombudsman; d) or ex officio by the competent judge (Art. 3 OL 6/1984); the competent judge being the Investigating Judge of the place where the person deprived of liberty is located, or alternatively that of the place where the arrest took place, and, failing that, that of the place where the last news of the whereabouts of the detained person was received (Art. 2 OL 6/1984). The procedure facilitates the immediate transfer to the competent judicial authority of any person who has been illegally detained, considering as such, in accordance with the provisions of Article 2 of the Law: a) Those who have been detained by an authority, an agent of that authority, a public official or a private individual, without the legal requirements being met or without the formalities and requirements laid down by law having been complied with; 88 / Joaquín Sarrión Esteve b) those who are unlawfully detained in any establishment or place; c) those detained for a period longer than that specified in the laws, if, after that period has elapsed, they have not been released or handed over to the judge closest to the place of detention; and d) those deprived of liberty whose rights guaranteed by the Constitution and procedural laws to all detained persons are not respected. The procedure shall be initiated, if not ex officio, by means of a written application or appearance, without the mandatory intervention of a solicitor or advocate. The written application must state: a) The name and personal circumstances of the applicant and of the person for whom judicial protection is sought; b) The location of the person deprived of liberty, the authority or person in whose custody they are, if known, and any other circumstances that may be relevant; and c) The specific reason for requesting Habeas Corpus (Art. 4 OL. 6/1984). The authority or public official shall be obliged to immediately inform the competent judge of the application for habeas corpus made by the person deprived of liberty who is in their custody (Art. 5 OL 6/1984). The competent judge shall examine whether the requirements for processing the application are met, forward it to the Public Prosecutor’s Office, and, by means of a ruling, agree to initiate proceedings unless the application is inadmissible, in which case the ruling shall be notified to the Public Prosecutor’s Office; no appeal may be lodged against this ruling (Art. 6 OL 6/1984). The preferential and summary nature of the proceedings is particularly evident in the maximum period of 24 hours from the order to initiate proceedings for carrying out the proceedings and resolving the matter as appropriate. Within twenty-four hours of the order to initiate proceedings being issued, the judges shall carry out all the corresponding proceedings and issue the appropriate decision (Art. 7 OL 6/1984). In the EU integration and fundamental rights protection / 89 same order to initiate proceedings, the judge shall order the authority in whose custody the person deprived of liberty is held, or the person in whose possession they are, to bring them before him or her without excuse or delay, or else he or she shall go to the place and, before issuing a ruling, shall hear the person deprived of liberty or, where applicable, their legal representative and solicitor, if one has been appointed, as well as the Public Prosecutor’s Office; the judge shall then hear the justification for their actions from the authority, agents, public official and, in any case, the person in whose custody the person deprived of liberty was held, informing them of the statements made by the person deprived of liberty; The judge shall admit, if deemed relevant, the evidence presented and any evidence proposed that may be examined at the hearing, and a ruling shall be issued (Art. 7 OL 6/1984). The ruling may find that none of the circumstances provided for in relation to the illegality of the arrest or deprivation of rights exist, declaring the deprivation of liberty to be in accordance with the law; or it may find that any of the circumstances determining the illegality of the arrest exist, agreeing to one of the following measures: a) Release; b) Continuation of the deprivation of liberty in accordance with the legal provisions applicable to the case, but, if deemed necessary, in a different establishment or under the custody of persons other than those who had previously detained the person; c) The person deprived of liberty shall be immediately brought before a judge, if the legally established period for their detention has already elapsed (art. 8 OL. 6/1984) Contentious-Administrative Jurisdiction. Provided for in the Contentious-Administrative Jurisdiction Law169 as a specific procedure for the protection of the rights referred to in Article 53.2 of the Spanish Constitution, in Articles 114-122 of the act. This is a special declaratory process, of a preferential nature 169. Law 29/1998, of 13 July, regulating contentious-administrative jurisdiction. 96 / Joaquín Sarrión Esteve c) Effects of the judgment The ruling on the merits of the case shall grant or deny the amparo (Article 53 OLCC), and if the amparo is granted, it shall include one of the following rulings (Article 55(1): “a) Declaration of nullity of the decision, act or resolution that has impeded the full exercise of the protected rights or freedoms, determining, where appropriate, the extent of its effects. b) Recognition of the public right or freedom, in accordance with its constitutionally declared content. c) Restoration of the appellant’s right or freedom in its entirety, with the adoption of appropriate measures, where applicable, for its preservation.” Likewise, if the appeal should be upheld because the law applied infringes fundamental rights or public freedoms, the Chamber, or where appropriate the section, shall refer the matter to the Plenary with suspension of the time limit for delivering the judgment (Art. 55(2) OLCC). 3. INSTITUTIONS OF GUARANTEE IN THE SPANISH INTERNAL LEGAL FIELD The institutions of guarantee are established to protect or act as instruments for guaranteeing rights and freedoms. These institutions include Parliament, the Public Prosecutor’s Office and the Ombudsman. The Parliament acts as an institution of guarantee of rights through Parliament’s control of the Government. The Parliament can influence the protection of rights and freedoms through questions, interpellations and committees of inquiry. This guarantee is not only manifested at the state level, with the Spanish Parliament (Congress of Deputies and Senate) controlling the actions of the Spanish Government, but also at the EU integration and fundamental rights protection / 97 regional level, through the control that the Assemblies of the respective Autonomous Communities exercise over regional governments or executives. 3.1. Public Prosecutor’s Office This is an institution that fundamentally guarantees legality in its actions, where it also acts to protect rights and freedoms, departing in this sense from traditional criminal proceedings186. The mission of the Public Prosecutor’s Office, in accordance with the provisions of Article 124(1) of the Spanish Constitution, is to: “The Office of the Public Prosecutor, without prejudice to the functions entrusted to other bodies, has as its mission that of promoting the operation of justice in the defence of the rule of law, of citizens’ rights and of the public interest as safeguarded by the law, whether ex officio or at the request of interested parties, as well as that of protecting the independence of the Courts and securing through them the satisfaction of social interest ”. These functions are exercised through its own bodies, in accordance with the principles of unity of action and hierarchical dependence and, in all cases, subject to the principles of legality and impartiality (Art. 124(2) Spanish Constitution)187 . The Attorney General is appointed by the King, at the proposal of the Government, after consultation with the General Council of the Judiciary (Art. 124(4) Spanish Constitution)188 . 186. Which rather complements, see Y. Gómez Sánchez, Constitucionalismo Multinivel. Derechos Fundamentales, 6th ed, op. cit., pp. 252-267. 187. Art. 124(2) Spanish Constitution: “The Office of Public Prosecutor exercises its duties through its own bodies in accordance with the principles of unity of action and hierarchical dependency, subject in all cases to the principles of the rule of law and of impartiality” . 188. Art. 124(4) Spanish Constitution: “The State Public Prosecutor shall be appointed by the King on being nominated by the Government, after consulta- 98 / Joaquín Sarrión Esteve The Government communicates with the Public Prosecutor’s Office through the Ministry of Justice and the Attorney General, and the President of the Government may address the Attorney General directly without intermediation if he deems it necessary, in accordance with the provisions of Article 8 of the Statute, approved by Law 50/1981, of 30 December, regulating the Organic Statute of the Public Prosecutor’s Office, to which we refer. Among the powers and functions attributed to it, one of the most notable is that of protecting rights and freedoms, which, as Y. Gómez points out, complements criminal proceedings189 , it being understood that this defence of rights goes beyond fundamental rights in the strict sense, “encompassing both the broadly constitutional sphere and that of ordinary legality”190 , and it is worth highlighting, within its powers in this area: a) Filing an appeal for protection before the Constitutional Court (Arts. 162(1)(b)) The Public Prosecutor’s Office’s standing to file an appeal for protection is recognised by the specific configuration of the institution in the Constitution, as a merit of its specific institutional position as “ius agendi”, so that, by promoting protection, the Public Prosecutor’s Office defends fundamental rights, albeit not as the holder of those rights, but as the bearer of a public interest in relation to their integrity and effectiveness. In the words of the Constitutional Court: “The standing to file an appeal for protection that the Constitution attributes to the Public Prosecutor’s Office in section 1 b) of its tion with the General Council of the Judiciary.” 189. Following Y, Gómez Sánchez, Constitucionalismo Multinivel. Derechos Fundamentales, 6th ed, op. cit., p. 256. 190. E. Torres Dulce, “El Ministerio Fiscal como órgano constitucional” in Rodríguez-Piñero and Bravo Ferrer, M., Casas Baamonde, M.E., Comentarios a la Constitución Española, BOE, 2020, v. 2, p. 770. EU integration and fundamental rights protection / 99 article 162 and which also appears in point 1 b) of Article 46 of the LOTC, is configured as a ius agendi recognised to this body by virtue of its specific institutional position, functionally defined in Article 124.1 of the fundamental law. By promoting constitutional protection, the Public Prosecutor’s Office certainly defends fundamental rights, but it does so, and this is where the peculiar nature of its action lies, not because it holds ownership of those rights, but as the bearer of the public interest in the integrity and effectiveness of those rights. This standing, as can be inferred from the literal wording of the aforementioned section 46.1 b) of the LOTC, and as also corresponds to its institutional nature, is not conditional on the requirement that the Public Prosecutor’s Office have acted as a party in the preceding judicial proceedings, a requirement that would render meaningless the constitutional and legal provision of standing under consideration, although it must be said that this cannot be exercised by virtue of the subsidiary nature of the appeal for protection, but only once a final decision has been handed down in the ordinary courts.” (STC 86/1985, of 10 July, FJ 1) “The standing to appeal for amparo that Article 162.1 b) of the Spanish Constitution attributes to the Public Prosecutor’s Office and which is also included in Article 46.1 b) of the Organic Law of the Constitutional Court is configured, as we had occasion to point out in STC 86/1985, of 10 July, FJ 1, “as a ius agendi recognised to this body by virtue of its specific institutional position, functionally defined in Article 124.1 of the fundamental law . By promoting constitutional protection, the Public Prosecutor’s Office certainly defends fundamental rights, but it does so, and this is where the peculiar nature of its action lies, not because it holds ownership of them, but as the bearer of the public interest in the integrity and effectiveness of such rights.” As we already stated in STC 211/1994, of 13 July, FJ 2, “the appeal for protection does not constitute a means open to the public authorities for the defence of their acts and the powers on which they are based, but rather an instrument for the correct limitation of such powers and for the possible purification of those acts, in defence of the fundamental rights and public freedoms of individuals. This is logical because, otherwise, 100 / Joaquín Sarrión Esteve the meaning and function of the appeal for protection as a means of protecting the fundamental rights of citizens would be reversed, becoming an instrument of the public authorities against individuals.” In the present case, the standing of the Public Prosecutor’s Office is fully justified, since although it is true that the holder of the right has not appeared before the Constitutional Court, it is unquestionable that the intervention of the Public Prosecutor’s Office, as plaintiff, has the sole purpose of defending a fundamental right of a capital nature. (STC 12/2014, of 27 January, section 2) b) To intervene in proceedings in which the Constitutional Court is involved, in accordance with the provisions of the law, including amparo proceedings in which its intervention is mandatory (Art. 47(2) OLCC). However, the Public Prosecutor’s Office must act in accordance with the principle of legality, so that it is the law that determines the public interest and how it should be defended, with the aim of justice as a constitutional value (Art. 1 Spanish Constitution). Therefore, although the public interest may be promoted through a request from the Government, which is responsible for legislative policy (Art. 97 Spanish Constitution), the Attorney General must seek the opinion of the Board of Prosecutors (Art. 8(2) of the Statute) prior to making his decision, and may refuse to accept the interest proposed by the Government in relation to the promotion of any jurisdictional action191 . 191. Ibid., p. 769. EU integration and fundamental rights protection / 101 3.2. Ombudsman of the people The institution of the Ombudsman of the people is provided for in Article 54 of the Spanish Constitution, as a high commissioner of the Spanish Parliament, stipulating that: “ Article 54. An organic law shall regulate the institution of Ombudsman the People, who shall be a high commisioner of the Cortes Generales, appointed by them to defend the rights contained in this Title; for this purpose he may supervise Administration activities and report thereon to the Cortes Generales.” It is a constitutional institution, a “gurantee of institutional type”192 , which has its precedents, on the one hand, in the Justicia Mayor de Aragón (Chief Justice of Aragon) and, on the other, the figure of the Scandinavian Ombudsman, which appears in the 1809 Constitution of Sweden and extends to other European countries, and with which its functions are linked193, although in the Spanish case there is a particular attribution of protection of rights and freedoms that comparable institutions in other countries do not usually have194. High Commissioner of the Spanish Parliament for the defence of the rights and freedoms of Title I, for which purpose he or she may supervise the activity of the Administration, with functions of inspection and verification of the functioning of public services, guidance and proposals on measures necessary to correct anomalies in the functioning by issuing reports, and the jurisdictional defence of rights and freedoms, as he or she has standing to file appeals of unconstitutionality and amparo. 192. J. M. Sánchez Saudinós, “Artículo 54” in Rodríguez-Piñero and Bravo Ferrer, M., Casas Baamonde, M.E., Comentarios a la Constitución Española, BOE, 2020, v. 2, p. 1495. 193. Y. Gómez Sánchez, op. cit., pp. 256 et seq. 194. Perhaps because other institutions perform this function in these countries. See J. M. Sánchez Saudinós, op. cit., p. 1496. 102 / Joaquín Sarrión Esteve Thus, the DP may file an appeal for protection before the Constitutional Court for the protection of fundamental rights (Article 162(1)(b) of the Spanish Constitution); as well as an appeal for unconstitutionality (Article 162(1)(a) of the Spanish Constitution), the latter being understood as a mechanism for the defence of the entire Constitution, including the rights and freedoms recognised therein. “Nor is there any defect in the application attributed to the appeal for unconstitutionality lodged by the Ombudsman. The lawyer for the Governing Council of the Community of Madrid argues that Article 81.1 of the LOTC generally requires representation by a solicitor and the guidance of a lawyer in order to act in constitutional proceedings (with the sole exception of the provisions of Article 82.1 and 2 for Members of Parliament or Senators and for the executive bodies of the State and the Autonomous Communities, respectively), a requirement that has not been met in the present case, in which the Ombudsman is acting on his own behalf, without legal representation or guidance. However, the fact is that Article 81.1 of the LOTC is only applicable, as expressly stated therein, to natural or legal persons whose interest entitles them to appear in constitutional proceedings, and not to legitimate constitutional bodies, including the Ombudsman. These bodies, and not only the group of Deputies or Senators vested with legitimacy, are also expressly referred to in Article 82.1, which provides that they shall be represented by the member or members they designate or by a commissioner appointed for that purpose. However, in the case of a single-person body such as the Ombudsman, it is clear that the incumbent may act in constitutional proceedings on his or her own behalf, without prejudice to the possibility of appointing a representative or commissioner for that purpose. Both the lawyer for the Governing Council of the Community of Madrid and the State Attorney argue that the Ombudsman’s appeal is partially flawed in terms of standing, since in the first of the legal grounds for his claim, he alleges that the contested law violates the principle of legal certainty established in Article 9.3 of the Con- EU integration and fundamental rights protection / 103 stitution, whereas the Ombudsman can only act, in accordance with Organic Law 3/1981 of 6 April, in defence of the rights included in Title I of the Constitution, a function that delimits the powers of the institution. This last preliminary objection must also be rejected for the simple reason that Articles 162.1 a) of the Constitution and 32.1 of the LOTC recognise the Ombudsman’s standing to bring appeals on grounds of unconstitutionality without subjecting it to any objective limits or conditions. However, even if the argument that the Ombudsman can only bring appeals for unconstitutionality within the scope of the institution’s purposes, i.e. for the defence of the rights included in Title I of the Constitution (Article 54 of the Constitution and Article 1 of Organic Law 3/1981, of 6 April), it would still have standing to act in the present proceedings, since the objective purpose of the action brought should not be confused with its legal grounds or reasoning. As can be inferred from its statement of claim, the Ombudsman seeks in this case to defend the right to a fair tax system inspired by the principles of equality and progressivity and which is not confiscatory in scope, as set out in Article 31.1 of the Constitution. To this end, the Ombudsman also alleges a violation of the principle of legal certainty, which he attributes to the contested law, since this is a general principle of the constitutional order and its possible violation would affect the constitutionality of the laws regulating the tax system and, even more so, the fairness of this system itself. There is, therefore, a clear connection between the Ombudsman’s argument in the present appeal for unconstitutionality and the material scope of his functions, which removes any shadow of doubt about his standing to appeal, even if a restrictive interpretation of the rules governing it were to be accepted.” The institution is regulated by Organic Law 3/1981, of 6 April, on the Ombudsman. He or she is elected for a period of five years, by a three-fifths majority of each Chamber, in separate plenary sessions. If this majority is not achieved, he requires the favourable vote of three-fifths of the Congress and an absolute majority of the Senate. Furthermore, in the performance of his duties, he or she enjoys inviolability for his state- 104 / Joaquín Sarrión Esteve ments or actions, and immunity, being subject to the jurisdiction of the Supreme Court195 . At the regional level, there has been a proliferation of Ombudsman institutions within their respective areas of competence, which have administrative supervisory functions in their respective Autonomous Communities and with which the Ombudsman cooperates. Furthermore, the provision for supervision by regional bodies is not incompatible with the functions of the Ombudsman, provided that he or she maintains them, but exclusive and exclusive competence cannot be attributed to the regional body. “The State Attorney is correct in arguing that Article 2(1) of Law 36/1985 determines cases of cooperation between the Ombudsman and similar regional figures, and that it does not regulate, as this is not its purpose, the scope of competence of either the Ombudsman or these regional institutions. The powers of the Ombudsman derive from Article 54 of the Constitution, which provides for the institution, and have been developed in Organic Law 3/1981 of 6 April, which regulates it. The powers of the regional parliamentary commissioners derive from their own Statutes of Autonomy and have in turn been developed, for the most part, by laws of their Parliaments. It is therefore Article 35 of the EAC, which provides for the figure of the Sindic de Greuges, that must be consulted to verify its powers” (STC 157/1988, of 15 September, Section 4). Article 78 of the EAC regulates the functions of the Síndic de Greuges and its relations with other similar institutions. Of its five sections, only the first has been challenged, specifically for attributing to the Síndic de Greuges the function of supervising regional administrative activity, in all areas, ‘on an exclusive basis’, since this exclusivity would make it impossible for the Ombudsman to 195. J. Sarrión Esteve, El reconocimiento y protección de los derechos y libertades en un mundo en transformación. ¿Hacia un nuevo paradigma constitucional?, op. cit., pp. 98-99. EU integration and fundamental rights protection / 105 act in an ‘ ‘ manner with regard to the Catalan Administration, thereby violating Article 54 of the Spanish Constitution. The supervisory function attributed to the Ombudsman by Article 54 of the Spanish Constitution aims to defend the rights included in Title I of the Constitution and is configured as one of the “guarantees of fundamental freedoms and rights” provided for in Chapter IV of that same title (Articles 53 and 54 of the Spanish Constitution). The fact that he exercises this function as a commissioner of the Spanish Parliament does not mean that the administrative activity over which he can exercise his powers is limited to that of the central government, to the exclusion of the regional administration. In the case of fundamental rights, the guarantees established in Articles 53 and 54 of the Spanish Constitution must apply to all public authorities, as they are binding on and subject to all of them, without exception. Just as the jurisdictional guarantee does not allow for any distinction in its application to the autonomous public power, both legislative and administrative, so too the extra-jurisdictional guarantee of the Ombudsman cannot be limited in its scope to the supervision of the central State Administration, but must include all public administrations in order to ensure the full coverage of the constitutional guarantees of rights with respect to all variables of public power. The “Administration” of Article 54 of the Spanish Constitution, like the “Administration” of Articles 103 and 106 of the Spanish Constitution, is therefore not the specific type of “central administration”, but rather the category that includes all public power other than legislation and jurisdiction. Hence, the exclusivity proclaimed by the statutory provision under examination infringes Article 54 of the Spanish Constitution. Consequently, we must declare that the phrase “exclusively” contained in Article 78.1 EAC is unconstitutional and null and void.” (STC 31/2010, of 28 July, section 33). 112 / Joaquín Sarrión Esteve Perhaps the most relevant is the Charter of Fundamental Rights of the European Union, which is the best instrument for guaranteeing the rights and freedoms it recognises. The Convention established to prepare a text for the Charter of Fundamental Rights presented the Charter in 2000, although it postponed its proclamation until the Nice European Council on 7 December 2000, where it was proclaimed, and from that moment on it became a reference and was taken into consideration by both the Court of Justice and legislative bodies, including the European Parliament and regional or national legislative bodies. The content of the Charter was incorporated into the draft Constitution for Europe, which ultimately failed. The text was adapted and updated, removing the adaptations that had been made for its inclusion in the draft Constitutional Treaty, and was solemnly proclaimed in Strasbourg on 12 December 2007, one day before the signing of the Treaty of Lisbon, with which it acquired legal force equivalent to that of a treaty, entering into force as such in December 2009. In Spain, the Organic Law 1/2008 of 30 July, ratifying the Treaty of Lisbon, formalises the publication of the Charter itself, providing in Article 2 that, in accordance with Article 10 of the Spanish Constitution and Article 1.8 of the Treaty of Lisbon, ‘the rules relating to fundamental rights and freedoms recognised by the Constitution shall be interpreted in accordance with the principles set out in the Charter’. 2, in accordance with the provisions of Article 10 of the Spanish Constitution and Article 1.8 of the Treaty of Lisbon, “the rules relating to fundamental rights and freedoms recognised by the Constitution shall also be interpreted in accordance with the provisions of the Charter of Fundamental Rights (...)”, reproducing the text. In terms of its structure and content, the Charter incorporates, considering its historical moment, rights that correspond to all generations, including civil and political rights, economic and social rights, as well as the latest generation of rights linked to biomedicine. EU integration and fundamental rights protection / 113 It is structured in a Preamble and seven chapters: Chapter I on Dignity (Articles 1 to 5), Chapter II on Freedoms (Articles 6 to 19), Chapter III on Equality (Articles 20 to 26), Chapter IV on Solidarity (Articles 27 to 38), Chapter V on Citizens’ rights (Articles 39-46), Chapter IV on Justice (Articles 47-50), and Chapter VII on General Provisions, applicable to the interpretation and application of the Charter (Articles 51-54). Chapter I, devoted to dignity, includes: human dignity (art. 1), the right to life (art. 2), the right to the integrity of the person (art. 3), the prohibition of torture and inhuman or degrading treatment or punishment (art. 4), and the prohibition of slavery and forced labour (art. 5). Chapter II, devoted to freedoms, includes: right to liberty and security (Art. 6), respect for private and family life (Art. 7), protection of personal data (Art. 8), the right to marry and the right to found a family (Art. 9), freedom of thought, conscience and religion (Art. 10), freedom of expression and information (Art. 11), freedom of assembly and association (Art. 12), freedom of the arts and sciences (Art. 13), the right to education (Art. 14), freedom to choose an occupation and right to engage in work (Art. 15), freedom to conduct a business (Art. 16), the right to property (Art. 17), the right to asylum (Art. 18), the protection in the event of removal, expulsion or extradition (Art. 19). Chapter III, devoted to equality, includes: equality before the law (Art. 20), non-discrimination (Art. 21), cultural, religious and linguistic diversity (Art. 22), equality between men and women (Art. 23), the rights of the child (Art. 24), the rights of the elderly (Art. 25), and the integration of persons with disabilities (Art. 26). Chapter IV, devoted to solidarity, includes: worker’s right to information and consultation within the undertaking (Art. 27), the right of collective bargaining and action (Art. 28), the right of access to placement services (Art. 29), protection in the event of unjustified dismissal (Art. 30), fair and just working conditions (Art. 31), the prohibition of child labour and protection of young people at work (Art. 32), family and professional 114 / Joaquín Sarrión Esteve life (Art. 33), social security and social assistance (Art. 34), health care (Art. 35), access to services of general economic interest (Art. 36), environmental protection (Art. 37), and consumer protection (Art. 38). Chapter V, devoted to citizens’ rights, includes: the right to vote and stand as a candidate at elections to the European Parliament (Art. 39), the right to vote and stand as a candidate in municipal elections (Art. 40), the right to good administration (Art. 41), the right of access to documents (Art. 42), the (European) Ombudsman (Art. 43), the right to petition (Art. 44), freedom of movement and residence (Art. 45), and diplomatic and consular protection (Art. 46). Chapter VI, devoted to justice, includes: the right to effective remedy and to a fair trial (Art. 47), the presumption of innocence and the right of defence (Art. 48), the principles of legality and proportionality of criminal offences and penalties (Art. 49), and the right not to be tried or punished twice in criminal proceedings for the same criminal offence (Art. 50). Chapter VII of the Charter is devoted to general provisions applicable to the interpretation and application of the Charter, including the scope of application (Art. 51), the scope and interpretation of rights and principles (Art. 52), the level of protection (Art. 53) and the prohibition of abuse of rights (Art. 54). We will focus on this chapter here. Article 51 regulates the scope of application of the Charter, stipulating that the provisions are addressed to the institutions, bodies and agencies of the Union, with due regard for the principle of subsidiarity, and to the Member States only when they are implementing Union law so that they “shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers.” (Art. 51(1)); and without extending the scope of EU law beyond the competences of the Union, creating any new competence or task for the Union, or modifying the competences or tasks defined in the Treaties, according to Art. 51(2) of the Charter. EU integration and fundamental rights protection / 115 Thus, Article 51(1) is binding on the institutions, bodies and agencies of the Union, as well as on the Member States. However, while for the institutions, bodies and agencies the binding nature is general in their actions (within the respect of the principle of subsidiarity) within the scope of EU law, for the Member States it is limited to when they “are implementing Union law”. This gave rise to some debate as to whether it should be interpreted strictly or broadly, considering that in other languages the references is to when they are “implementing EU law”. Taking into account the previous case law of the Court, we could infer that the interpretation would be broad and therefore not limited to national implementation or transposition rules, but to any rule falling within the scope of EU law. In Åkerberg Fransson (2013)198, the CJEU had the opportunity to rule on and resolve the existing doubts, clearly determining that the scope of application of the Charter with regard to Member States is not limited to national transposition rules, but is binding on Member States when they act within the scope of EU law, and will therefore bind the application of any national rule that falls within the scope of EU law, since the applicability of the latter also implies that of the fundamental rights guaranteed in the Charter. This is important because it means that the Charter of Fundamental Rights of the Union and, therefore, the rights cannot be applied beyond the scope of EU law, i.e. there must be an applicable provision of EU law that calls for the application of the Charter. However, once we have an applicable EU law provision, we are within that scope of application, and the Charter can have an interesting expansive force, given that the rights contained in the Charter are capable of having a direct, even horizontal, effect, and although the provision regulating the 198. Judgment of the Court of Justice of 26 February 2013, Åklagaren v Åkerberg Fransson, 617/10, EU:C:2013:105. 116 / Joaquín Sarrión Esteve matter may not per se have such an effect, it could achieve it through the application of the Charter. Likewise, and in relation to the limits and non-extension of competences (Article 51(2)), it is important to note that concerns about what the application of the Charter might entail led to the adoption of Protocol No 30 on the application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom, which reaffirms the limits of the Charter, which is incorporated as an annex to the Treaty on European Union and the Treaty on the Functioning of the EU, and which specifies that the Charter does not extend the jurisdiction of the Court of Justice of the European Union or any other court or tribunal of Poland or the United Kingdom to assess whether the laws, regulations or administrative provisions, practices or actions of Poland or the United Kingdom are incompatible with the fundamental rights, fundamental rights, freedoms and principles that it reaffirms (Art. 1(1)), and it is confirmed, in particular in relation to Chapter IV of the Charter (solidarity rights), that no rights are created that can be defended before the courts of Poland or the United Kingdom, unless they are provided for in their national legislation (Art. 1(2)); and that when the Charter refers to national legislation and practices, it shall only apply to Poland or the United Kingdom when the rights and principles contained therein have been recognised in the legislation or practices of those countries (Art. 2). Article 52 refers to the scope and interpretation of the rights guaranteed in the Charter. Article 52(1) establishes the protection of the essence of the rights contained in the Charter and the criteria for their limitation, providing that “ Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.” EU integration and fundamental rights protection / 117 It can be understood, in accordance with the case law of the Court of Justice, that restrictions on fundamental rights are permissible provided that they effectively meet objectives of general interest pursued by the Union and do not constitute, in the light of the objective pursued, a disproportionate and intolerable interference with the very essence of the right. Article 52(2) provides that “[r]ights recognised by this Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties”; and paragraph 3 states that “[i]n so far far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”; thus linking the rights contained in the Charter to the regime established for them when they are recognised in the Treaties; and to the Convention when they are recognised therein, so that their meaning and scope are the same as those of the Convention, at least as a minimum standard, with the possibility of granting more extensive protection in Union law. For its part, Article 52(4) provides that “[i]n so far as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions”, linking the interpretation of rights resulting from common constitutional traditions to those traditions. Article 52(5) provides that “The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.” This is a limitation on the exercise of rights that are established as principles and not as genuine rights in the Charter, which may only 118 / Joaquín Sarrión Esteve be applied through legislative and executive acts, and are also limited in terms of their enforceability before the courts, with regard to the interpretation and review of the legality of the very legislative and executive acts that implement them. And Article 52(6) establishes that “[f]ull account shall be taken of national laws and practices as specified in this Charter”; and Article 52(7) that the explanations drawn up to guide the interpretation of this Charter shall be given due consideration by the courts of the Union and of the Member States. For its part, the level of protection of rights is set out in Article 53 of the Charter of Fundamental Rights, which provides: “Nothing in this 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 international law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ constitution.” We can consider that the Charter assumes the existence of at least three levels of protection or standards: 1) Union law (EU standard); 2) International law and international conventions to which the EU or all Member States are party, in particular the ECHR (international or conventional standard); and 3) The constitutions of the Member States (constitutional, national or domestic standard). The words of the provision seems to suggest that the Charter cannot limit or infringe upon the rights recognised at these levels or standards, whether the EU standard (where, as we have seen, the Charter is not the only source), the international or conventional standard, or the constitutional standard; it is also true that it specifies or specifies in its respective scope of application, thus conditioning the protection of those rights to our being within the scope of application of the EU, international or conventional law, or the constitutions of the different EU integration and fundamental rights protection / 119 Member States. Even a significant sector of doctrine had argued that Article 53 of the Charter of Fundamental Rights of the European Union ( ) would constitute a non-regression clause or a cross-cutting clause, which would serve to legitimise a criterion in favour of the highest standard of protection, and consequently only the CDFUE protection standard would apply if it guaranteed a higher level of protection, failing which the higher standard (whether international or constitutional). However, it is limited by the CJEU in Melloni and, complementarily, in Åkerberg Fransson (2013)199 in the sense that national authorities and courts will be empowered to apply the national standard of protection of rights when EU law leaves room for its application and provided that it does not affect the level of the Charter or the primacy, unity and effectiveness of EU law. Otherwise, the possibility of applying the national standard would be excluded, and the standard of the Charter would have to be applied, with limited exceptions as, for example, the application of national (constitutional) identity principle. Nevertheless, the European Court of Justice opened the door to the development of a dialogue between courts or, as has been said, the resolution of disputes through preliminary rulings, avoiding possible constitutional (hard) conflicts, as shown in Taricco II (2017)200 concerning the principle that offences and penalties must be defined by law, and in Consob case (2021)201 concerning the right to remain silent in disciplinary proceedings, which has allowed the Court of Justice to be more flexible allowing the highest level of protection and the development of a more fluid dialogue between courts. It should also be noted that Article 52, as mentioned above, links the interpretation and scope of the rights in the Charter 199. Stefano Melloni (2013) and Åkerberg Fransson (2013), cit. 200. Judgment of the Court (Grand Chamber) of 5 December 2017, Criminal proceedings against M.A.S., M.B, C-42/17, ECLI:EU:C:2017:936. 201. Judgment of the Court of Justice (Grand Chamber) of 2 February 2021, Consob, C-481/19, EU:C:2021:84. 120 / Joaquín Sarrión Esteve that correspond to the ECHR or common constitutional traditions to those sources, but this is a separate issue. Finally, Article 54 of the Charter regulates the prohibition of abuse of rights, providing that: “Nothing in this Charter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Charter or at their limitation to a greater extent than is provided for herein.” 2. JURISDICTIONAL GUARANTEES OF RIGHTS AND FREEDOMS IN THE EU SUPRANATIONAL LEGAL FIELD We must start from the premise that, given the complex operation of European Union law, which, as an autonomous legal system, is integrated into the legal systems of the Member States, its correct application requires a complex jurisdictional system in which both the European Union’s own jurisdiction and the national jurisdictions of the Member States coexist; in other words, European Union jurisdiction is composed of a “hybrid judiciary”, as Sarmiento202 puts it, in which the Court of Justice of the European Union and the national courts share the jurisdictional function of applying and guaranteeing European Union law, although each within the exercise of its respective powers. It is therefore important to bear this in mind: both the Court of Justice of the European Union and the judges and courts of the Member States are part of the jurisdiction of the European Union and therefore exercise also jurisdictional guarantees for rights and freedoms derived from EU law. However, as we stud202. D. Sarmiento, El Derecho de la Unión Europea, 3rd edition, op. cit., p. 380. EU integration and fundamental rights protection / 121 ied before the jurisdictional guarantees in the internal level, here we will focus on the European level of this jurisdiction, without prejudice to also considering the specific position of the national judge as a judge of European Union law. The Court of Justice of the European Union is an institution that has not changed its nature as a judicial body since the establishment of the Court of Justice at the beginning of the former European Communities, which would act in accordance with the Treaties to exercise a judicial function in Community activity. However, it has undergone certain changes with the creation first of the Court of First Instance, the predecessor of the current General Court, and subsequently of the Jurisdictional Chambers preceding the Specialised Courts. As a specialised court, it is worth noting the existence of the Civil Service Tribunal until 1 September 2016, when it was integrated into the General Court, in accordance with Regulation 2015/2422 of the European Parliament and of the Council of 16 December 2015 (OJEU 24 December 2015). Recently, with effect from 1 September 2024, a change has been made whereby the General Court has assumed jurisdiction over preliminary rulings. It is important to consider and take into account the Rules and recommendations, available on the website of the Court of Justice of the EU: Statute of the Court of Justice of the European Union (1 September 2024), Rules of Procedure of the Court of Justice (1 September 2024), Recommendations to national courts on the submission of preliminary questions (1 October 2024), Practical instructions to parties on cases brought before the Court of Justice (1 September 2024)203. And also, on the website of the General Court, including the Statute of the Court of Justice of the European Union (1 September 2024), Rules of Procedure of the General Court (consolidated version, 1 September 2024), and Practical 203. https://curia.europa.eu/jcms/jcms/Jo2_7031/en/ 128 / Joaquín Sarrión Esteve 1) Preliminary ruling procedure on the validity and interpretation of EU law (Art. 267 TFEU) 2) Monitoring of violations of EU law by Member States through infringement proceedings (Articles 258-260 TFEU), or by EU institutions and bodies through actions for annulment (Articles 263 and 264 TFEU), actions for failure to act (Article 265 TFEU), and the plea of illegality (Article 277 TFEU) 3) Monitoring the non-contractual liability of the European Union (Article 268 TFEU) 4) Resolution of disputes between the European Union and officials and other servants in its service (Article 270 TFEU). 5) Advisory opinions on international agreements (Article 218(11) TFEU) 1) Preliminary ruling procedure on the validity and interpretation of EU law (Art. 267 TFEU) In accordance with the rules on the attribution of jurisdiction, we can distinguish between different types of proceedings, notably the preliminary ruling procedure on the validity and interpretation of Union law, governed by Articles 19.3. b) TEU and 267 TFEU. Article 19(3)(b) TEU provides that the CJEU shall rule in accordance with the Treaties at the request of national courts or tribunals, on the interpretation of Union law or on the validity of acts adopted by the institutions. Article 267 TFEU specifies the two types of preliminary rulings, on interpretation and on validity: “The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; EU integration and fundamental rights protection / 129 Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay. “ This regulation has been developed in the Statute of the Court of Justice of the European Union (of 13 December 2007 and in force since 1 December 2009, updated in 2024) annexed to the Treaty of Lisbon as Protocol No 3, in Articles 23 and 23bis, and in the Rules of Procedure of the Court of Justice, in force since 1 November 2012 (updated in 2024) in Articles 93 to 118; and has been clarified through the case law of the Court of Justice itself, which is summarised in the Recommendations to national courts on the submission of preliminary questions of the Court of Justice, which have just been updated in 2024, in the light of experience gained in applying the Regulation, the most recent case law, and the last reform. These recommendations are not binding but are intended to provide guidance to national courts on the form and effects of the procedure. Court of Justice. The Court of Justice has defined the concept of ‘court or tribunal’ for the purposes of preliminary rulings in a fairly broad manner, based on substantive rather than formal criteria and requiring, as elements, the legal origin of the body, its permanent nature, the compulsory nature of its jurisdiction, the adversarial nature of the proceedings, the application of legal rules (and not rules of equity) and its inde- 130 / Joaquín Sarrión Esteve pendence (see, for example, Vaasseng-Göbbels, 1966)207; rejecting in this regard arbitration tribunals (under private law) and any other tribunal whose constitution is due to the will of the parties to the dispute, or strictly administrative tribunals such as a court of auditors. It even admitted as such, for example, professional associations that had to adopt jurisdictional decisions, the Spanish Competition Court (Asociación Española de Banca Privada, 1992)208, or constitutional courts. However, although it also admitted economic-administrative courts, recent case law has denied them such consideration on the grounds that they lack independence (Banco Santander, 2019)209, and has also recently denied such consideration to a Greek competition court (Syfait and others, C-53/03, 2005)210. Therefore, it can be considered that the trend has evolved to become more restrictive. Jurisdiction to hear preliminary rulings. In general, this falls to the Court of Justice. In fact, until recently, the CJ always had jurisdiction to rule on such matters. However, as of 1 September 2024, the GC also has jurisdiction to hear preliminary rulings requested under Article 267 TFEU on the following matters (Article 50(b) of the Statute), which fall exclusively within one or more of the following specific areas: — the common system of value added tax (VAT) — excise duties; 207. Judgment of the Court of 30 June 1966, G. Vaassen-Göbbels (a widow) v Management of the Beambtenfonds voor het Mijnbedrijf, C-61/65, ECLI:EU:C:1966:39. 208. Judgment of the Court of 16 July 1992, Dirección General de Defensa de la Competencia v Asociación Española de Banca Privada and others, C-67/91, ECLI:EU:C:1992:330. 209. Judgment of the Court (Grand Chamber) of 21 January 2020, Proceedings brought by Banco de Santander SA, C-274/14, ECLI:EU:C:2020:17. 210. Judgment of the Court (Grand Chamber) of 31 May 2005, Synetairismos Farmakopoion Aitolias & Akarnanias (Syfait) and Others v GlaxoSmithKline plc and GlaxoSmithKline AEV, C-53/03, ECLI:EU:C:2005:333. EU integration and fundamental rights protection / 131 — the Customs Code; — the tariff classification of goods in the Combined Nomenclature; — compensation and assistance to passengers in the event of denied boarding or delay or cancellation of transport services; — the greenhouse gas emission allowance trading scheme. However, the Court of Justice will remain competent to hear requests for preliminary rulings raising independent questions of interpretation of primary law, public international law, the general principles of EU law or the Charter of Fundamental Rights of the European Union. Submission via the Court of Justice. Any request for a preliminary ruling based on Article 267 of the Treaty on the Functioning of the European Union shall be submitted to the Court of Justice. After verifying, as quickly as possible and in accordance with its Rules of Procedure, that the request for a preliminary ruling fall exclusively within one or more of the areas listed in the first paragraph of this article, the Court of Justice shall transfer that request to the General Court. Referral of the question for a preliminary ruling. In order to refer the question for a preliminary ruling, the CJEU requires that it be relevant, i.e. that it may influence or determine the outcome of the dispute. Furthermore, Article 267 TFEU distinguishes between courts of last instance (whose decisions are not subject to further judicial review under domestic law) and other courts. While courts of last instance are obliged to refer a question, other courts have the power to do so. However, the Court of Justice had the opportunity to clarify the obligation of courts of last instance through the doctrine of the “clarified act”, whereby such a request is not necessary when the Court 132 / Joaquín Sarrión Esteve of Justice has already had the opportunity to rule on the matter (Da Costa, 1963211; and Francovich and Bonifaci, 1991)212. It is also important to highlight the doctrine of the “clear act”, whereby when the correct application of EU law can be imposed with such clarity that it leaves no room for reasonable doubt as to how to resolve the issue, the national court may resolve it without referring it to the CJEU; but “before reaching this conclusion, the court must be convinced that the same evidence will also be accepted by the national courts of the other Member States and by the Court of Justice, so that only if these requirements are met may the national court refrain from referring the question to the Court and resolve it on its own responsibility” (Cilfit, 1982213). Specific features of preliminary rulings on validity. It should be noted that, as mentioned above, the CJEU has exclusive jurisdiction to declare the invalidity of a provision of Union law (FotoFrost, 1987214), so a national judge who considers that an EU provision may be invalid cannot proceed to resolve the matter directly, but must in all cases refer the question for a preliminary ruling on a mandatory basis; However, they do have the possibility of rejecting the grounds for invalidity invoked before them. The CJEU’s monopoly on declaring EU provisions invalid remains even if it has already 211. Judgment of the Court of 27 March 1963, Da Costa en Schaake NV, Jacob Meijer NV, Hoechst-Holland NV v Netherlands Inland Revenue Administration, joined cases 28-30/62, ECLI:EU:C:1963:6. 212. Judgment of the Court of 19 November 1991, Andrea Francovich and Danila Bonifaci and others v Italian Republic, joined cases C-6/90 and C-9/90, ECLI:EU:C:1991:428. 213. Judgment of the Court of Justice of 6 October 1982, CILFIT, C-283/81, EU:C:1982:335. 214. Judgment of the Court of 22 October 1987, Foto-Frost v Hauptzollamt Lübeck-Ost, C-314/85, ECLI:EU:C:1987:452. EU integration and fundamental rights protection / 133 declared equivalent provisions of another comparable rule to be invalid (Gaston Schul, 2005215). Also, in relation to questions of validity, and despite the fact that the Treaty does not establish anything in this regard, the CJEU has developed a broad doctrine which, based on the principle of legal certainty, denies the possibility of challenging the validity of an act of EU law to anyone who, having standing to bring a direct action, has not done so, since the act would have become final. The appeal must be one that is undoubtedly admissible. Thus, in the Venezia vuole vivere judgment (2011)216, this doctrine is applied in the sense that the possibility for a litigant to plead in national proceedings the invalidity of provisions contained in acts of the Union presupposes, of course, that he did not have the right to bring, under Article 230 EC, a direct action against those provisions, the consequences of which he must bear without having been able to seek their annulment (Ground 58). Preliminary ruling procedure before the Court of Justice. In accordance with Article 23 of the Statute, once the decision of the national court has been notified, the Registrar of the Court of Justice shall notify that decision to the parties to the proceedings, the Member States and the Commission, as well as to the institution, body or agency of the Union which adopted the act whose validity or interpretation is in question. Within two months of this last notification, the parties, the Member States, the Commission and, where appropriate, the institution, body or agency of the Union which adopted the act whose validity or interpretation is in question shall be entitled to submit written pleadings or observations to the Court of 215. Judgment of the Court (Grand Chamber) of 6 December 2005, Gaston Schul Douane-expediteur BV v Minister van Landbouw, Natuur en Voedselkwaliteit, C-461/03, ECLI:EU:C:2005:742 216. Judgment of the Court (Third Chamber) of 9 June 2011, Comitato «Venezia vuole vivere» (C-71/09 P), Hotel Cipriani Srl (C-73/09 P) and Società Italiana per il gas SpA (Italgas) (C-76/09 P) v European Commission, joined cases C-71/09 P, C-73/09 P and C-76/09 P, ECLI:EU:C:2011:368. 134 / Joaquín Sarrión Esteve Justice; as well as, where appropriate, to the States party to the Agreement on the European Economic Area other than the Member States, and to the EFTA Surveillance Authority provided for in that Agreement, which, within two months of the notification and provided that one of the areas of application of that Agreement is affected, may submit written pleadings or observations to the Court of Justice. Furthermore, where an agreement relating to a specific area concluded by the Council and one or more third States confers on those States the right to submit written pleadings or observations in the event that a court or tribunal of a Member State refers a question to the Court of Justice for a preliminary ruling affecting the area of application of that agreement, the decision of the national court or tribunal which made the reference shall also be notified to the third States concerned, which may submit written observations to the Court of Justice within two months of that notification. The CJ requires that, for preliminary questions to be admissible, the questions must arise in a real dispute, the questions must be related to the dispute, and they must be sufficiently reasoned (Telemarsicabruzzo, 1993217; Canal Satélite Digital, 2002218). Thus, where a preliminary question is identical to another on which the Court has already ruled, where the answer to such a question can be clearly deduced from the case law or does not give rise to any reasonable doubt, the CJ may decide at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, to give a reasoned order. (Art. 99 Rules of procedure of the CJ). The last paragraph of Article 267 TFEU incorporates, following the Treaty of Lisbon, the provision that the CJEU shall rule 217. Judgment of the Court of 26 January 1993, Telemarsicabruzzo SpA and Others v. Circostel, Ministero delle Poste e Telecomunicazioni and Ministero della Difesa, joined cases C-320/90, C-321/90 and C-322/90, ECLI:EU:C:1993:26. 218. Judgment of the Court of 22 January 2002, Canal Satélite Digital SL v Adminstración General del Estado, and Distribuidora de Televisión Digital SA (DTS), C-390/99, ECLI:EU:C:2002:34. EU integration and fundamental rights protection / 135 as soon as possible when a preliminary ruling is requested in a pending case concerning a person deprived of liberty (urgent preliminary ruling already included in the Protocol on the Statute of the CJEU by a Council Decision, in force since 1 March 2008). Effects. The effects of judgments resolving preliminary questions differ depending on whether they are judgments resolving questions of interpretation: res judicata effects binding on the national judge who raised the question, as well as on other bodies hearing the case, both judicial and administrative (administrative review of final acts? (Kühne and Heitz, 2004219), and general or erga omnes effects with regard to interpretation for the bodies of other Member States, both judicial and administrative; or questions of validity: general or erga omnes scope (requiring non-application, even if it remains in force until its amendment or repeal). They also have ex tunc, i.e. retroactive, effects, which in the case of questions of validity imply nullity as of right from the moment the rule enters into force (unless limited for reasons of legal certainty). 2) Control of violations of European Union law. — By Member States: infringement proceedings. This is an instrument that allows for the control of violations of EU law by Member States, initiated at the request of the Commission or another Member State. It refers to all obligations arising from the Treaties (Article 258 TFEU), and therefore all EU rules, international rules binding on the EU, and CJEU judgments, both with regard to actions and omissions by Member States. If the Commission considers that a Member State has failed to fulfil one of its obligations under the Treaties, it shall deliver a reasoned opinion on the matter, after giving the Member 219. Judgment of the Court of Justice of 13 January 2004, Kühne & Heitz, C-453/00, EU:C:2004:17 136 / Joaquín Sarrión Esteve State the opportunity to submit its observations (Article 258 TFEU). In addition, any Member State may bring an action before the Court of Justice if it considers that another Member State has failed to fulfil one of its obligations under the Treaties. Before a Member State brings an action against another Member State for an alleged failure to fulfil its obligations under the Treaties, it must refer the matter to the Commission. The Commission shall deliver a reasoned opinion after the States concerned have been given the opportunity to submit their observations in writing and orally in adversarial proceedings. If the Commission has not delivered its opinion within three months of the date of the request, the absence of an opinion shall not prevent the matter from being brought before the Court of Justice. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court (Article 259 TFEU). If the Court of Justice finds that a Member State has failed to fulfil one of its obligations under the Treaties, that State shall be obliged to take the necessary measures to comply with the judgment of the Court (Art. 260(1) TFEU). If the Commission considers that the Member State concerned has not taken the necessary measures to comply with the Court’s judgment, it may refer the matter to the Court of Justice, after giving that State the opportunity to submit its observations, and the Commission shall indicate the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. If the Court finds that the Member State concerned has failed to comply with its judgment, it may impose a lump sum or penalty payment on that Member State (Article 260(2) TFEU). Where the Commission has initiated proceedings under Article 258 TFEU, if the failure to comply relates to the obligation to provide information on the measures transposing a directive adopted under a legislative procedure, the Commission may, if it considers it appropriate, indicate the amount of the lump EU integration and fundamental rights protection / 137 sum or per diem penalty payment to be paid by that State, which it considers appropriate in the circumstances. If the Court finds that there has been a failure to fulfil an obligation, it may impose on the Member State concerned a lump sum or per diem penalty payment up to the amount indicated by the Commission. The obligation to pay shall take effect on the date specified in the judgment (Article 260(3) TFEU). — Review of legality (actions for annulment, actions for failure to act, and pleas of illegality) Action for annulment (Articles 263-264 TFEU). This is a mechanism that allows for the control of violations of Union law by EU institutions and bodies that are intended to produce legal effects vis-à-vis third parties, at the request of a Member State, the EP, the Council or the Commission, as well as the ECA, the ECB and the Committee of the Regions exclusively for the purpose of safeguarding their prerogatives; natural or legal persons against acts addressed to them or which affect them directly and individually, and against regulatory acts which affect them directly and which do not include implementing measures (Article 263 TFEU). Appeals must be lodged within two months of the publication of the act, its notification to the appellant or, failing that, from the day on which the appellant became aware of it (Art. 263 TFEU). If the appeal is well founded, the CJEU shall declare the contested act null and void, constituting a judgment with the force of res judicata and with erga omnes and ex tunc effect. However, the Court shall indicate, if it considers it necessary, those effects of the act declared void which must be considered definitive (Art. 264 TFEU). Action for failure to act (Art. 265 TFEU). This is a mechanism that allows for the control of the inactivity of EU institutions and bodies when they are obliged to act, at the request of Member States and other EU institutions, as well as natural and legal persons (in complaints) provided that they are the intended recipients of the act (or, according to the case law of the 144 / Joaquín Sarrión Esteve CJEU concluded that it was not compatible with the provisions of the TEU (Opinion of the CJEU of 18 December 2014, 2/13229). b) Refusal to refer a question for a preliminary ruling and effective judicial protection The Spanish Constitutional Court has held that the supremacy of the Constitution applies (not equivalent to primacy), and that the principle of primacy applies in the area of competence and non-application, not in the area of hierarchy and validity. Likewise, constitutional doctrine establishes that EU law does not have constitutional status, and that its application is the responsibility of ordinary judges (STC 21/1991, of 31 January). Therefore, it has traditionally established that, in principle, a conflict with internal rules does not acquire constitutional relevance (SSTC 252/1988, of 20 December, and also in SSTC 28/1991, of 14 February; 197/1996, of 28 November). However, since 2004, there has been a certain openness on the part of the Constitutional Court towards EU law, not only through the acceptance of the principle of primacy, albeit in the area of the principle of competence, in accordance with Constitutional Court Declaration 1/2004, of 13 December, in the sense that primacy is not asserted as hierarchical superiority but as an existential requirement of that law; but also because the Constitutional Court is open to the possibility of raising a preliminary question, as it did in ATC 86/2011, of 9 June), known as the Melloni case. 229. Opinion of the Court (Full Court) of 18 December 2014, Opinion pursuant to Article 218(11) TFEU - Draft international agreement - Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms - Compatibility of the draft agreement with the EU and FEU Treaties, Case Opinion 2/13, ECLI:EU:C:2014:2454. EU integration and fundamental rights protection / 145 Likewise, the Constitutional Court will begin to exercise control in the absence of a preliminary ruling by the ordinary courts: It upholds some appeals for protection in cases of violation of effective judicial protection and of a process with all guarantees (SSTC 58/2004, of 19 April (Second Chamber), for failure to apply a regional law in force, which establishes a tax surcharge, without raising a question of unconstitutionality or a preliminary ruling; 194/2006, of 19 June (Second Chamber), for failure to apply a current state tax law without raising a preliminary question. It does not grant it when the conditions set by the DUE itself are not met, STC 78/2010, of 20 October (Plenary Session), Community law was not applicable to the case “ratione loci or ratione materiae”, and therefore the preliminary ruling could not be considered appropriate. The exercise of constitutional control over the failure to raise a preliminary question seems to be more demanding when the result of the failure to raise the question implies the non-application of a domestic law (SSTC 58/2004, of 19 April; 194/2006, of 19 June; 78/2010, of 20 October), than when it leads to the application of the law (SSTC 27/2013, of 11 February; 212/2014, of 18 December; 99/2015, of 25 May). It should be noted that the relationship of precedence between questions of unconstitutionality and preliminary rulings is clear from the perspective of the Constitutional Court, since it understands that preference should be given to preliminary rulings, as it rejects questions of unconstitutionality if they are raised without a preliminary ruling having been raised when it was appropriate to do so (AATC 168/2016, of 4 October; and 202/2016, of 14 December). 146 / Joaquín Sarrión Esteve 3. INSTITUTIONS OF GUARANTEE IN THE EU SUPRANATIONAL LEGAL FIELD The institutional and organisational system of the European Union is made up of a series of entities or bodies. However, some of these are called ‘institutions’ and form the institutional framework of the EU because they are the most important. They are listed in Article 13(1) TEU and are the subject of Title III of the TEU: — The European Parliament — The European Council — The Council — The European Commission (Commission) — The Court of Justice of the European Union — The European Central Bank — The Court of Auditors The purpose of this institutional framework is to promote the values of the Union, pursue its objectives, defend its interests and those of its citizens and Member States, and ensure the consistency, effectiveness and continuity of its policies and actions (Art. 13(1) TEU). In this way, all institutions can, in some way, serve to protect rights and freedoms. It should be borne in mind that each institution will act within the limits of the powers conferred on it by the Treaties, in accordance with the procedures, conditions and objectives set out therein. Furthermore, the institutions shall cooperate loyally with each other (Art. 13(2) TEU). However, among the guaranteeing institutions, the European Parliament (parliamentary guarantee) and the Commission should be highlighted, given their functions. Subsequently, EU integration and fundamental rights protection / 147 among the other bodies and entities, the European Ombudsman should also be noted230 . a) The European Parliament. This is the institution that represents the citizens of the Union par excellence. It is one of the institutions that has evolved most towards greater representativeness and greater weight in the legislative process and decision-making and is today the key to representative democracy in the Union. Functions. It is responsible for exercising legislative and budgetary functions together with the Council; it is also entrusted with political control and advisory functions, under the conditions laid down in the Treaties; and it elects the President of the Commission (Art. 14(1) TEU). Composition. It is composed of representatives of the citizens of the Union. Its number shall not exceed seven hundred and fifty, plus the President. Furthermore, the representation of citizens shall be degressively proportional, with a minimum of six Members per Member State. No Member State shall be allocated more than ninety-six seats (Art. 14(2) TEU). Following the last elections, and for the period 2024-2029, there are 720 Members, and the distribution among the different Member States follows the principle of degressive proportionality: the most populous States have more seats than the least populous, but the latter have slightly more seats than they would have if we applied a principle of strict proportionality. The current distribution is as follows, after the Elections in 2024. 230. This is without prejudice to other entities or bodies which, although they do not have a guarantee function, may play a relevant role in the protection of fundamental rights. This would be the case, for example, of the European Union Agency for Fundamental Rights (FRA), which provides independent advice, through reports, to national and EU decision-makers, thereby contributing to the debate and development of policies and legislation in the field of fundamental rights, https://fra.europa.eu/es 148 / Joaquín Sarrión Esteve Germany 96 France 81 Italy 76 Spain 61 Poland 53 Romania 33 Netherlands 31 Belgium 22 Greece 21 Czech Republic 21 Sweden 21 Portugal 21 Hungary 21 Austria 20 Bulgaria 17 Denmark 15 Slovakia 15 Finland 15 Slovakia 15 Ireland 14 Croatia 12 Lithuania 11 Slovenia 9 Latvia 9 Estonia 7 Cyprus 6 Luxembourg 6 Malta 6 The distribution of seats and the list of MEPs can be found on the European Parliament’s website, https://www.europarl. europa.eu/meps/es/home. Election. With regard to the election of MEPs, the TEU stipulates that they shall be elected by universal, direct, free and secret suffrage for a term of five years (Article 14(3) TEU) and that the European Parliament shall elect its President and Bureau from among its Members (Article 14(5)). EU integration and fundamental rights protection / 149 In addition, the Act concerning the election of representatives to the European Parliament (AEEP) must be taken into account. In addition to establishing that the election shall be based on universal, free, direct and secret suffrage (Art. 1(3) AEEP), it provides that the system shall be proportional (Arts. 1.1, 2, and 8) and prohibits any person from voting more than once in elections to the European Parliament (Art. 9 AEEP), and although it leaves the choice of date and time to the Member States, this must be within the same period, beginning on Thursday morning and ending on the first Sunday thereafter (Art. 10(1) AEEP). Parliamentary oversight is exercised through various mechanisms, including political control over the European Commission. The EP is regularly informed by the President of the Commission, with whom it agrees on the legislative calendar. It also monitors how European Union policies are conducted. Each year, the Commission must present a general report on the activities of the Union and the development of EU policies (Art. 233 TEU), which, after examination, gives rise to a plenary debate. In addition, there are also sectoral reports on specific topics. The EP may make interpretations or ask questions, as well as set up committees of inquiry on specific topics of interest. It also participates in some appointments within the framework of the Union’s institutions. Through parliamentary control of the government, it can influence the protection of rights and freedoms through questions, interpellations and committees of inquiry. This guarantee is not only manifested at the state level, with the Spanish Parliament (Congress of Deputies and Senate) controlling the actions of the Spanish Government, but also at the regional level, through the control that the Assemblies of the respective Autonomous Communities exercise over regional governments or executives. 150 / Joaquín Sarrión Esteve b) European Commission The executive power, the government of the Union, is embodied in the European Commission. It is an institution regulated by Article 17 TEU and Articles 244-250 TFEU. Mission and functions. The Commission’s mission is to promote the general interest of the Union and to take appropriate initiatives to that end. It also ensures that the Treaties and the measures adopted by the institutions under them are applied. In this regard, the Commission has supervisory functions because it monitors the application of Union law under the control of the Court of Justice of the European Union (Article 17(1) TEU)231 ; thus, in ensuring the application of EU law, it is also responsible for ensuring respect for the rights and freedoms recognised in the Union’s legal system. It also has, as a general rule, exclusive legislative initiative, since “Union legislative acts may be adopted only on a proposal from the Commission, except where the Treaties provide otherwise” (in some cases, the Treaties allow for initiative by a group of Member States, or by the European Parliament, on the recommendation of the ECB or at the request of the Court of Justice, and there is also the case of popular legislative initiative); with the initiative in other cases falling to the Commission unless otherwise specified (Article 17(2) TEU). It is important to note that the general rule of the legislative procedure is initiative through a proposal from the Commission, which may amend it as long as there is no decision by the Council (which, on the other hand, may only amend it unanimously, except in the cases provided for in Article 293(1) TFEU). It is also responsible for implementing the budget and managing programmes, as well as for coordination, implementation and management functions, in accordance with the conditions 231. This control is not only applicable to Member States but can also be directed at individuals (Article 337 TFEU). EU integration and fundamental rights protection / 151 laid down in the Treaties (Art. 17(1) TEU). Each year, it submits the accounts for the financial year relating to the budget to the Parliament and the Council, together with a financial statement of the European Union (Art. 318 TFEU). He represents the Union externally, with the exception of the common foreign and security policy and in certain other cases provided for in the Treaties (Art. 17(1) TEU). Another function is to adopt the Union’s annual and multiannual programming initiatives with a view to reaching interinstitutional agreements (Art. 17(1) TEU). Composition and appointment. The Commission is composed of one national from each Member State, including its Chair and the High Representative. Although this provision was in force until 1 November 2014, and it was expected that the number of members would subsequently be adjusted to twothirds of the number of Member States, the door was left open for the European Council to decide otherwise, allowing for a greater number of Commissioners. In fact, Member States are often reluctant to lose their national member . The members of the Commission are selected from among the nationals of the Member States by means of a system of strictly equal rotation between the Member States, which takes into account the demographic and geographical diversity of the Member States as a whole, and which is established unanimously by the European Council (Art. 17(5) TEU). The Council, in agreement with the President-elect, adopts the list of other persons proposed for appointment as members of the Commission (Art. 17(7) TEU). The President, the High Representative of the Union for Foreign Affairs and Security Policy and the other members of the Commission shall be subject to a vote of approval by the European Parliament. Based on that approval, the Commission shall be appointed by the European Council, acting by a qualified majority (Art. 17(7) TEU). President. Following the elections to the European Parliament, and taking them into account, the European Council shall propose to the European Parliament, by a qualified major- 152 / Joaquín Sarrión Esteve ity, a candidate for the office of President of the Commission (Art. 17(7) TEU). The European Parliament shall elect the candidate by a majority of its members. If the candidate does not obtain the necessary majority, the European Council shall, within one month, propose a new candidate by a qualified majority, who shall be elected by the European Parliament by the same procedure (Art. 17(7) TEU). The President shall (a) define the guidelines under which the Commission shall perform its duties; b) determine the internal organisation of the Commission, ensuring the consistency, effectiveness and collegiality of its actions; and c) appoint Vice-Presidents, other than the High Representative of the Union for Foreign Affairs and Security Policy, from among the members of the Commission (Art. 17(5) TFEU). High Representative. Appointed by the European Council by a qualified majority, with the approval of the President of the Commission (Art. 18(1) TEU).232 This is undoubtedly an important figure within the Union, as he or she is in charge of the Union’s common foreign and security policy, contributes with his or her proposals to the development of that policy and implements it as the Council’s representative, acting in the same way in relation to the common security and defence policy (Art. 18(2) TEU). He or she holds the office of Vice-President of the Commission, is responsible for ensuring the consistency of the Union’s external action, and is responsible, within the Commission, for the Commission’s responsibilities in the field of external relations and for coordinating the other aspects of the Union’s external action (Art. 18(4) TEU). He also chairs the Foreign Affairs Council (Art. 18(3) TEU). Term of office and status. The Commission has a five-year term of office, and its members must be chosen based on their general competence and European commitment, from among 232. The European Council may terminate their term of office by the same procedure (Art. 18.1 TEU). EU integration and fundamental rights protection / 153 persons who offer full guarantees of independence (Art. 17(3) TEU). Independence is a very important feature of the Commission, which is why it is established that it shall exercise its responsibilities with complete independence and that its members shall neither seek nor take instructions from any government, institution, body or organisation (except as provided for in Art. 18(2) TEU for the High Representative), and shall refrain from any action incompatible with their duties or with the performance of their functions (Art. 17(3) TEU) or with the nature of their duties (Art. 245 TFEU). Member States shall respect this independence and shall not seek to influence them in the performance of their tasks (Article 245 TFEU). Furthermore, to guarantee their independence during their term of office, it is established that during that term, members of the Commission may not engage in any other professional activity, whether remunerated or not (Article 245 TFEU).233 Apart from periodic renewal and death, their termination of office is provided for by voluntary resignation or dismissal (Art. 246 TFEU). Although Art. 246 TFEU refers to voluntary resignation, Art. 17.6 TEU provides that a member of the Commission shall resign if the President so requests. Termination must occur due to failure to meet the conditions necessary for the performance of their duties or due to serious misconduct, by decision of the Court of Justice, at the request of the Council, by a simple majority, or of the European Commission (Art. 247 TFEU). 233. Article 245 adds that “When entering upon their duties they shall give a solemn undertaking that, both during and after their term of office, they will respect the obligations arising therefrom and in particular their duty to behave with integrity and discretion as regards the acceptance, after they have ceased to hold office, of certain appointments or benefits. In the event of any breach of these obligations, the Court of Justice may, on application by the Council acting by a simple majority or the Commission, rule that the Member concerned be, according to the circumstances, either compulsorily retired in accordance with Article 247 or deprived of his right to a pension or other benefits in its stead.”