- Dr Luis Jimena Quesada
Professor of Constitutional Law at the Universitat de València - Carlos Ortega Carballo
Legal Secretary of the European Court of Human Rights - Dr Cristóbal Borrero Moro
Professor of Financial and Tax Law of the Universitat de València - Joaquín Moreno Grau
Legal Secretary of the Court of Justice of the European Union - Dr Juan Martín Queralt
Professor of Financial and Tax Law at the Universitat de València
Multilevel protection of fundamental rights and its issues
Fundamental rights have a structural character in the Spanish legal system, which the Constitution proclaims are a pillar of international legal order, which also advocates for the protection of these fundamental rights. This has resulted in the integration and embodiment of this protection both in the European Union, a supranational organisation, and in the framework of the Agreement. The protection of fundamental rights is handled by a multilevel European system consisting of diverse sources that ascribes the interpretation and ultimate control to specific jurisdictional bodies, such as the European Court of Human Rights, the Court of Justice of the EU and the Constitutional Court, among others. Furthermore, this protection is prevalent in a variety of legal spaces. The application of European Union Law combined with the principles of primacy and direct effect creates areas within the Spanish legal system in which EU law is applied and other areas in which it is not.
The fundamental point is that these areas have completely different legal regimes. This creates a complex and delicate system for the protection of fundamental rights, which generates several legal issues. In other words, when it comes to determining the content of a fundamental right, the following questions must be asked: Is the mandating source the Charter, the Agreement, or the Constitution? Which jurisdictional body determines the protection? Do the principles of subsidiarity or primacy apply? What is the relevant regulation or the interpretation with respect to other catalogues of regulation, by reference or comparison? For example, the highest standard of protection criterion.
We are faced with a system of multilevel protection, which is precarious and poses challenges in relation to the principle of legal certainty and adherence to a unified legal order, particularly in light of EU law. For example, the principle of equality in the application of the law or the principle of a single procedure is relevant here. These elements require that the protection of fundamental rights in Spain be approached as a unified system. In other words, the key legal principles that define the content of fundamental rights must be fully developed, without gaps or contradictions, and guided by the principle of maximising the effectiveness of those rights.
1. Problems and practical application of multilevel protection
The problems of protecting fundamental rights as a result of multi-legal spaces are illustrated by a succinct case: a procedure for the applying taxes whose object is a harmonised tax, such as VAT, whereby the application of the EU Law comes into play; and a tax, which may be a corporate or personal income tax, outside the scope of the EU Law. The question is which content and which Charter, Constitution or Convention should protect the fundamental rights protected in this tax procedure. VAT would require the Charter, the others the Constitution.
Does this system comply with the principle of legal certainty and the principle of equality in the application of the law, subject to a single procedure? Although raised on a case-by-case basis, the Supreme Court asked the same question in a 2014 judgement dealing with an issue relating to the fundamental right to good administration. The Supreme Court questioned the scope of this fundamental right of the Charter, which brought the EU Law into play. The Supreme court defended its general application, notwithstanding Article 51 of the Charter, with the following explanation.
It is evident that it is challenging to implement a differentiated level of prosecution contingent on whether the EU Law is exercised by legal operators at a domestic level. The existence of multi-legal spaces gives rise to challenges in terms of the application and interpretation of fundamental rights. In 2020, the Supreme Court ruled on the respect for the right of defence, specifically full access to jurisdiction and the full range of means of challenge, in the context of an inspection procedure in which proceedings to determine the normal market value of related-party transactions are carried out in relation to companies. The question is raised as to whether the right to defence under Article 24 EC has been infringed. The Supreme Court resolves this by dirrectly applying the CJEU of 16 October 2019 relating to the harmonised VAT tax. In other words, the Charter is directly applied on the grounds that it is analogous. This justifies the osmosis between the different legal areas.
Most importantly, the Supreme Court has established that it is essential to guarantee the integrity of the full content of the fundamental right. This trend can also be seen in our Constitutional Court, which used a judgement of the CJEU in the VAT case (The STJUE of 17 December 2015) to resolve an appeal for defence relating to a personal income tax issue, in which the violation of Article 24 EC and, at the same time, the fundamental right to the protection of personal data of Article 18 EC was questioned. The issue was that evidence had been used in the criminal proceedings, which had subsequently been transferred for use in the administrative penalty proceedings, in order to be able to present the corresponding tax assessment to the AEAT.
The demand for defence is based on the premise that evidence used in criminal proceedings must not and cannot be transferred for its use in the administrative penalty proceedings. The Constitutional Court rejects this premise and applies the Charter’s higher standard of protection in matters of VAT, in matters of personal income tax under national law, on the basis that is important for the court to exercise judicial control over the evidence submitted to the administrative procedure. In order to set the standard for protection, it states that this judgment admits that the AEAT may use evidence in administrative proceedings that was previously used in criminal proceedings, provided that 3 situations are present:
- Procurement is respectful of rights and guarantees
- Use is provided for by law
- The judicial body in the course of the administrative proceedings has had access to the evidence and has been granted a hearing
2. Application of EU Law by the domestic courts
From another perspective, the CJEU itself addresses this issue, stating that, when national law uses EU Law to resolve domestic issues in order to avoid discrimination, i.e. when the principle of equality is used to mitigate the aforementioned osmosis between the multi-level protection of fundamental rights, it can be used to ensure a single procedure. The CJEU considers that it is competent to interpret what is a rule of the European Union applied internally in a matter of non-application of the EU Law, justifying this premise in order to guarantee identical treatment between internal situations and those regulated by EU Law.
In short, just as the principle of effectiveness acts as a messenger RNA to guarantee the effectiveness of EU Law and fundamental rights, the principle of legal certainty, equality in the application of the law, submission to a single procedure and a single legal system, and the interpretation of fundamental rights in accordance with the idea of their greater effectiveness, will require these principles to be made operational in order to overcome the problems arising in the domestic sphere with respect to the application of EU Law. Thus, the effective protection of fundamental rights will become a reality within the framework of a system with capital letters.
