Fundamental rights and the federal equilibrium: Comparing the doctrines of incorporation in the USA and the EU

A. Taming the Union: The Bill of Rights before the XIV Amendment (1791–1868)

The American Constitution initially lacked a charter of rights: the constitution itself was considered a sufficient constraint on federal institutions. ¹⁷ The ratification process, however, showed that adding a bill of rights would be advisable at the very least to appease the anti-federalist opposition. ¹⁸ Anti-federalists did not trust the new federal government, considered far from citizens, subject to potential corruption and unaccountable. ¹⁹ They rather relied on the existing State governments. ²⁰ Moreover, the constitutions of the States were considered more secure: ‘the true barriers of our liberty in this country are our State-governments’, in the words of Thomas Jefferson (1811). ²¹ Consequently, 12 Amendments were eventually adopted by the 1st Congress, ten ratified by three fourths of the States, the first eight usually termed ‘the Bill of Rights’, but this instrument would not apply to States as no such need was perceived.

The proof of such limitation came in 1833 with Barron v. Baltimore, ²² one of Chief Justice Marshall's last legacies. ²³ The Bill of Rights was deemed not applicable to the States for three reasons: first, the States had their own peculiar charters; second, when the Constitution aimed at constraining States, it did so explicitly; lastly, because it was ‘universally understood’ that the Bill was conceived to secure against ‘encroachments of the general government, not against those of local governments’. Despite a few contrarians, who argued that the rights codified in the Bill were anyhow binding on the States via historical documents like the Magna Charta or the 1689 Bill of Rights, Barron settled the issue for the time being. ²⁴

The need for a change, however, would come soon. To begin with, technological innovations like trains and telegraphs made the government in Washington closer to citizens, more accountable and less threatening. ²⁵ Second, and most importantly, a deep constitutional transformation occurred after the Civil War. Between 1865 and 1870, the Republican Party pushed to pass three Amendments to secure the constitutional gains of the conflict and ensure to all Americans a minimum standard of protection for some basic rights (the so-called ‘Reconstruction Amendments’). Therefore, the XIII Amendment was passed in 1865 to end slavery; the XIV in 1868 to establish federal citizenship, due process of law and the equal protection of laws; and the XV in 1869 to guarantee equal voting rights. ²⁶ The American Constitution was decisively changed by these amendments, something close to a ‘second founding’, and such deep transformation would impact decisively on the process of incorporation. ²⁷

B. The XIV Amendment: The Privilege clause and the first incorporation of the Bill of Rights (1868–1897)

Among the Reconstruction Amendments, the XIV had a special role: it was the pivot to the incorporation (or, in the American jargon, to the ‘nationalization’) of the Bill of Rights. ²⁸ It was passed in 1868 fearing that, once readmitted, the Southern States would de facto resurrect slavery by means of discriminatory laws. Its first Section, whose text is recalled here, was therefore aimed at guaranteeing some basic constitutional rights in the face of such risk, exactly as the Civil Rights Act of 1866, discussed and approved in the same period. ²⁹

XIV Amendment

This section can be analytically split into four clauses. The first defines the conditions for the acquisition of American citizenship, namely ius soli and naturalization (Citizenship clause); the second, regarding the rights of US citizens, is the Privileges and Immunities clause; thirdly, the Due Process clause (‘nor shall […] without due process of law’). Finally, the Equal Protection Clause closes the section. The Privileges clause was modelled on Article 4 Section II of the Constitution (‘The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States’), while the Due Process clause recalled the V Amendment (‘nor shall any person […] be deprived of life, liberty, or property, without due process of law’).

As it is perfectly visible, the incorporation of the Bill of Rights was not explicit: nowhere does the text of the XIV Amendment extend the first eight Amendments to States. Such a result was reached through interpretation.

Was this a wanted outcome? Although this view has been criticized in the past, historical studies conducted since the Eighties seem to prove that the drafters of the XIV Amendment intended to incorporate the Bill of Rights via the Privileges clause. ³⁰ Other clauses contained in Section 1 such as the Due Process clause were comparatively less debated in the congressional deliberation. ³¹

The anxiety to entrench the privileges of American citizens was well motivated. To begin with, the 39th Congress was eager to overcome the Dred Scott judgment of the Supreme Court. ³² The judgment had established that slaves had no standing in court, for they were property, not citizens. ³³ For the Republicans controlling the 39th Congress, Dred Scott had to be overcome by constitutional amendment. ³⁴ Moreover, unionist Whites and the just-disenfranchised Blacks risked severe violations of their rights in the South: the constitutional entrenchment of the Bill of Rights would contribute to protect them against future legislation from revengeful Dixies. ³⁵ Thus, the Citizenship clause would confer citizenship to Blacks and the Privilege clause would entrench the constitutional rights of American citizens nationwide, tackling both problems.

Yet, no matter the exact will of the drafters, such would not be the destiny of Section 1. In the Slaughterhouses cases of 1873, the Supreme Court deprived the Privileges clause of this role. ³⁶ The Court argued that the Privileges clause had reverted the relation between State and federal citizenship: for decades, being an American had depended on primarily being a citizen of a State (Virginian, Illinoisan or any other); after 1868, an American resident would be Virginian or Illinoisan depending on residency but was primarily an American. The Privileges clause only referred to the rights specifically connected to the newly instituted federal citizenship, such as the right to transact with the federal government or to diplomatic protection, but nothing more.

As a result, after Slaughterhouses, the general picture was the following: Article IV Section II, on which the Privileges clause had been modelled, prevented the States from discriminating against the citizens of other States travelling on their soil by granting them the same rights as residents (‘The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States’); the new XIV Amendment's Privileges clause forbad States to violate rights connected to federal citizenship (‘No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States’); lastly, any violation of other rights by the State of residency was left to State regulation (purely internal situations). No general incorporation of the Bill of Rights into State law was allowed under this construction.

Slaughterhouses’ consequences spread for decades. Probably against the will of the 39th Congress, ³⁷ most constitutional rights would accordingly not be applicable to the States via the Privileges clause: ³⁸ purely internal situations remained under the sovereign powers of the States. For two decades, the expansion of federal rights was avoided, and State citizenship remained the main source of rights for Americans. ³⁹ However, the process of incorporation was not to be halted forever, and this time it would find a new legal basis in the Due Process clause.

C. Substantive due process: The second incorporation (1897–1953)

The notion of ‘due process’ dates back to Magna Carta itself, as a synonym of per legem terrae, ‘law of the land’. ⁴⁰ It had a prominent position in the modern reinvention of medieval legal instruments to the advantage of revolutionary struggles in England first and later in America, ⁴¹ and it was codified in various colonial declarations of rights. ⁴² During the 18th and 19th centuries it was predominantly interpreted as ‘procedural’ due process, a notion referring to the requirements to lawfully execute, imprison or fine individuals: persons had the right to access courts of law, to trial by jury, to notice and hearing and to prohibition of double jeopardy. ⁴³ Many of these guarantees were enlisted in the Bill of Rights in 1791. ⁴⁴ Such procedural understanding was explicitly asserted by the Supreme Court in 1856, in Murray's Lessee. ⁴⁵ At that point, just before the Civil War, the wording ‘due process of law’ belonged to the American Constitution only via the V Amendment.

Yet this procedural understanding was not meant to endure. Already in the late 18th century, cases in which either State clauses on the law of the land or the V Amendment were interpreted substantively appeared in a bunch of judgments. ⁴⁶ These grew in number in the following decades, mostly in cases concerning property rights. ⁴⁷

After the Reconstruction Amendments, the Supreme Court refused to use the Due Process clause to incorporate the Bill of Rights in Hurtado v. California of 1884, ⁴⁸ but then slowly started to give signs of a possible change of direction in cases concerning property rights. ⁴⁹ In 1896 such reasoning finally appeared in the ratio decidendi of the Supreme Court. In Missouri Pacific Railway Co, the Court stated that the Taking clause of the V Amendment applied to States via the XIV Due Process clause. ⁵⁰ One year later, this view was upheld and developed in Chicago, Burlington & Quincy Railroad Co: the exercise of eminent domain on the property of a railway company with the excessively low compensation of one dollar was judged incompatible with the Due Process clause, even though a fair procedure had been carried out. ⁵¹ The first substantive right had been incorporated, paving the way for the future inclusion of other clauses in the years to come.

It is worth noting that the first cases of incorporation were not seen favourably by the progressives of the time. Substantive due process concerned property. Therefore, companies were beneficiaries of incorporation: the broader wording of the Due Process clause (‘any person’) permitted an extension to companies that the more restrictive Privileges clause would have denied (‘any citizen’). ⁵² The Gilded era saw the struggle between political bodies willing to regulate the quickly expanding American economy and corporations reluctant to face restrictions, and the doctrine of incorporation was a valuable ally of the latter. ⁵³ Corporate lawyers bombarded the Court with hundreds such claims in the last years of the 19th century. ⁵⁴ Thus these cases had the same political supporters of Lochner v. New York, famously striking down the New York State limits on the maximum workload of workers to preserve the much-cherished freedom of contract. ⁵⁵ Substantive due process would indeed remain a barrier for progressive economic policies well into the Thirties, when it played a role in striking down the New Deal's regulatory transfer payments such as minimum wages or pensions. ⁵⁶

Ironically, however, a set of progressive decisions would eventually develop from this conservative jurisprudence. Indeed, Lochner itself had grounded the protection of freedom of contract in the XIV Amendment, but this time purporting to preserve the ‘liberty’ component in the formula ‘life, liberty and property’. ‘Liberty’, differently from ‘property’, covered a broader semantic spectrum. This shift from ‘property’, a relatively well-defined right, to the loose notion of ‘liberty’ made the substantive due process open to an indeterminate catalogue of rights, one potentially compatible with the political views of progressives. The breakthrough came in the early Twenties with Gitlow v. New York, the case which effectively detached the Due Process clause from its role of mere property's custodian: Justice Sanford stated in an obiter that the freedom of speech under the I Amendment was in principle protected against the States via the Due Process clause. ⁵⁷ One more right apart from the Taking clause had been incorporated.

Practically, this shift from vested rights only to more broadly incorporating ‘liberties’ translated into two questions. First, whether the entire Bill of Rights (total incorporation) or just part of it (selective incorporation) was binding on the States (did ‘liberty’ refer to the entire Bill or just to part of it?). Second, if a selective theory prevailed, which liberties would be incorporated based on the Due Process clause?

The first question had been already touched upon in Twining v. New Jersey of 1908, in which the Supreme Court adopted a theory of selective incorporation and denied the applicability of the exemption against self-incrimination of the V Amendment to the States. Specifically, federal rights constrained the States ‘[…] not because those rights are enumerated in the first eight Amendments, but because they are of such a nature that they are included in the conception of due process of law’. ⁵⁸

The second question forced the Supreme Court to tentatively develop a theory of selective incorporation. After a few attempts, ⁵⁹ the modern formula stabilized in Palko v. Connecticut (1937), which established a two-pronged test: on the one hand a reference to tradition, so that only liberties recognized in the legal history of the nation for a long time would be incorporated; on the other hand, that those rights were ‘implicit in the concept of ordered liberty’, that is, rights so essential that ‘neither liberty nor justice would exist if they were sacrificed’ and so fundamental that their missing protection would be ‘repugnant to the conscience of mankind’ and ‘so acute and shocking that our polity will not endure it’. ⁶⁰

To summarize, the crucial period from the end of the 19th century to the Fifties marked four changes in the history of American incorporation. First, it established the constitutional basis of incorporation in the Due Process rather than the Privileges clause of the XIV Amendment. Second, it interpreted ‘due process’ in a substantive rather than procedural manner. Third, it opted for a selective rather than total incorporation. Finally, it provided a working, if vague, theory of selective incorporation: only rights deeply rooted into the legal tradition of the country and implicit in the concept of ordered liberty would be nationalized.

D. The Warren Court and beyond: From selective to near-total incorporation (1953 onward)

The second half of the 20th century thus began with a theory of selective incorporation grounded in a substantive interpretation of the Due Process clause. While this was true on paper, the reality of constitutional practice was less flattering. De facto, still in the early Fifties only a few provisions of the Bill of Rights applied to the States: the Taking clause of the V Amendment and the I Amendment were fully incorporated (with the exception of the right to petition for the latter), while other rights were applied to the States only in cases of major violations, an issue which we will return to in a moment. ⁶¹ In the meanwhile, massive constitutional problems loomed over America in the form of a still largely segregated South, State-fostered religious practices in schools, (racially) malapportioned legislatures, McCarthyism and a vastly coercive criminal system. ⁶²

The following phase in the American process of incorporation coincided with an era in which these evils were partly eradicated with the contribution of the Supreme Court: this would vastly use the incorporation of federal rights to accomplish this task and issue landmark judgments which are still today milestones of American law. ⁶³

This transformative era is associated to Earl Warren's tenure as Chief Justice of the Supreme Court. Warren was appointed by Dwight D. Eisenhower as a moderate conservative in 1953 and confirmed by the Senate in 1954. ⁶⁴ Around him coalesced a liberal majority which dominated the Court in the Sixties. ⁶⁵

Brown v. Board of Education, on the desegregation public schools, is perhaps the most famous and momentous piece of the Warren Court's legacy, but it was based on the Equal Protection rather than on the Due Process clause of the XIV Amendment. ⁶⁶ A string of landmarks, however, was centred on the incorporation of federal rights. This was most notable in the field of criminal law and procedure, ⁶⁷ but the Court also incorporated rights in areas like interracial marriage. ⁶⁸ In another string of cases, the Warren Court completed the nationalization of the I Amendment by adding the right to petition in Edwards v. South Carolina and by interpreting more liberally the already incorporated clauses. ⁶⁹

Briefly, the Warren era marked a decisive step forth in the process of incorporation because of the width of the catalogue of incorporated rights: before the Warren era this was quite limited; after, it encompassed most of the Bill of Rights.

The years of the Warren Court also coincided with a crucial change in the depth of incorporation. Indeed, several judgments of the Warren Court established that an incorporated right would have the same scope and meaning when applied to the States as it had when referred to the federal government: what was incorporated was the exact same right, not a similar one. With the exception of the I Amendment and of the right to compensation against public seizure of property, this had not been true of the other rights, which were applied to the States only in case major or, to use the wording of Palko, conscience-shocking violations. ⁷⁰

The manifesto of this new approach was the opinion of Justice Brennan, perhaps the most influential element in the Warren Court besides the Chef Justice himself, in Ohio ex Rel. Eaton of 1960. ⁷¹ In the words of Brennan:

The classic debate on the import of the Fourteenth Amendment's Due Process Clause as to the applicability of the Bill of Rights to the States, we submit, does not even involve the theory that the matter is one for the judges to solve on an ad hoc basis, according to their overall reaction to particular cases […] It is not a license to the judiciary to administer a watered-down, subjective version of the individual guarantees of the Bill of Rights when state cases come before us.

In the end, Brennan's approach prevailed and the entire content of federal rights, not just their core, was incorporated. ⁷³ By the end of Warren's tenure as Chief Justice, the conscience-shocking component of the Palko test was buried. Thus, not only the Bill of Rights was at that point nearly totally incorporated (width), but also applicable to the States in the form it applied to the federal government (depth).

As a consequence, and to sum up on the Warren Court, it significantly extended the width of the Bill of Rights’ incorporation, yet also expanded its depth, applying to the States not just the core of the Bill of Rights’ guarantees, but their exact meaning as applied to the federal government.

Other cases of incorporation followed, stretching the history of American incorporation well into the 20th century and filling some of the remaining gaps, ⁷⁴ but the bulk of the job had been done by the Warren Court. At the time of writing in early 2024, 23 out of 29 Bill of Rights clauses have been incorporated. ⁷⁵ As a result, although the American incorporation is still selective, for all practical purposes it has evolved into a near-total one.

To sum up, the American incorporation was tormented: its constitutional basis shifted (from the Privilege to the Due Process clause), its political meaning changed (from conservative to progressive), its nature had to be decided (total or selective), its criterion had to be clarified (tradition and ordered liberty), its depth had to be assessed (core of the right or the exact same right). The overall result is a vast, quasi-total incorporation which was crucial to the unification of a nation, but the road to get there was bumpy and uneven.

A. From the early Seventies to the Maastricht Treaty: The birth of EU rights (1969–1993)

The European Communities were not initially endowed with a catalogue of fundamental rights. ⁷⁶ Truly, the European Political Community Treaty of 1952 would have made the European Convention on Human Rights (ECHR) an integral part of its body of law, but the French opposition to the treaty in 1954 curbed the fundamental rights dimension of European integration for the time being. ⁷⁷

By the end of the Sixties, however, the Court of Justice had elaborated a series of general principles which embodied autonomous European rights. It famously did so by borrowing from both the common constitutional traditions of the Member States and from the ECHR. ⁷⁸ To some extent, it did so to appease concerned national constitutional courts in some of the Member States. ⁷⁹

In Europe, as well as in America, one of the key problems with this ‘federal’ layer of rights was how to regulate its applicability to the Member States. Since the European bill of rights was the brainchild of the Court of Justice, the Court itself elaborated a doctrine of EU rights’ applicability.

To do that, the Court relied on the rationale of EU rights as general principles: they were developed in the first place to tame the new bureaucratic power in Brussels, far and unaccountable as the newly instituted federal government had been at the dawn of the American republic. Thus, general principles were surely applicable to the EU institutions from the beginning: reassuring the Member States against possible misconducts of the rising gouvernement des fonctionnaires was never in doubt. ⁸⁰

If and to what extent the Member States too were bound by EU rights was a different and more problematic question. Indeed, the States were already bound by their domestic constitutional rights, so that the application of the EU general principles on rights was initially seen as unnecessary.

A shift finally came with the seminal Wachauf judgment of 1989. In Wachauf, the Court of Justice extended the application of EU rights in the form of general principles to the Member States but introduced a limitation too: differently from the supranational institutions, the Member States were constrained only when implementing EU law. ⁸¹ The constitutional rationale lay in the need to ensure that supranational law did not simply escape legal constraints by delegating its application to the States. ⁸² In implementing EU law (or, at that time, EC law) these acted as the Union's executive branch, thus they had to be subject to the same constraints as any other executive: it was a theory of agency which underpinned Wachauf.

The Court further qualified the Wachauf doctrine two years later in ERT: ⁸³ norms in derogation of EU obligations would be allowed only if justified and interpreted in the light of general principles. ⁸⁴ The main result of ERT was the expansion of EU rights to cases of derogation from EU law. ⁸⁵ ERT's rationale remained debated: in derogating from EU law, States were not acting as the Union's agents as in Wachauf. Why, then, hold them accountable by applying EU rather than national rights? Some scholars seriously criticized the ERT doctrine, ⁸⁶ while others grounded it in the need to limit the damage that derogation from Union law may inflict to EU rights and obligations. ⁸⁷

Be that as it may, the upshot of the Wachauf-ERT cases was the incorporation of supranational rights in the Member States when they were implementing EU law or derogating from it.

B. The Maastricht Treaty and the thickening of EU rights (1993–1999)

As the early Nineties came, so did the Maastricht Treaty. Drafted in 1992 and ratified in 1993, Maastricht was in many ways a seismic shift, including its contribution to the protection of fundamental rights under EU law.

To begin with, it codified the previous case law of the Court of Justice by establishing in Article F(2) that ‘the Union shall guarantee fundamental rights’ as recognized in the ECHR and in the common constitutional traditions. ⁸⁸

What is perhaps less noticeable yet equally crucial is that the Maastricht Treaty had a decisive impact on fundamental rights’ protection in the EU for another reason as well. As Wachauf had clarified, the application of EU rights vis-à-vis its Member States depended on the existence of EU law to be implemented. This entails, in turn, that the material scope of EU competences heavily influenced the extent of EU rights’ incorporation: the thicker the regulation of rights in primary and secondary EU law, the larger their incorporation in the Member States. Maastricht, as well as the equally notable Amsterdam Treaty (1997–1999), expanded the competences of the Union considerably. ⁸⁹ To name a few examples, EU law saw harmonizing legislation in areas such as data protection, ⁹⁰ non-discrimination on the basis of gender, race, religion or disability, ⁹¹ migration and asylum ⁹² and cooperation in criminal matters, ⁹³ not to mention the establishment of a common EU citizenship on top of the nationalities of the Member States. ⁹⁴ This is not to say that the rationale of Wachauf and ERT was changed by the expansion of EU legislation of rights: implementation and derogation remained the legal limits to the incorporation of EU rights. However, a larger body of legislation to be implemented necessarily meant a larger application of EU rights too. The theoretical scope of EU rights was not expanding, but its practical reach was.

It is also worth recalling how most of this legislation was enacted in the form of directives, instruments conceived to allow the Member States a certain margin of manoeuvre when implementing EU law. ⁹⁵ This is telling of the ‘federal balance’ between the Union and its constituent units: the Member States were left with some leeway to preserve their national specificities. The very establishment in Maastricht of the principle of subsidiarity as a general norm for the exercise of EU legislative competences, commanding exercise of legislative power at the lowest level of government whenever possible, was another visible sign of this attitude. ⁹⁶

Finally, an additional result of this period was the establishment in the Amsterdam Treaty of a ‘suspension clause’ (Article 7), which set a procedure to deprive the Member States of their rights under the Treaties in case of serious and persistent violations of human rights, democracy or the rule of law. ⁹⁷ As the violation of EU rights by the Member States was one of the reasons to potentially impose sanctions on the latter, this clause, today transposed in Article 7 of the Treaty on the EU (TEU), had the potential to indirectly force them to respect EU rights whenever they acted, even beyond the cases of implementation of EU law. On paper, this may have been another form of incorporation. Its cumbersome mechanism of activation, requiring the unanimity of the other Member States, has, however, deprived it of practical significance. As in 2024, it remains a potential rather than actual mechanism of incorporation.

Briefly, the main takeaway of the second phase in terms of EU rights’ incorporation was the large expansion of legislation which followed Maastricht and Amsterdam, one which inevitably made the application of EU rights much wider in the Member States.

C. Codifying EU rights: From the Convention to Lisbon (1999–2010)

The following phase saw the drafting of the Charter of Fundamental Rights of the EU, the ‘bill of rights’ which largely codified the unwritten general principles elaborated by the Court of Justice. ⁹⁸ Initially the document was not to be binding but had a strong symbolic value nevertheless. ⁹⁹

From our perspective, three questions arose from the Charter: its scope of application, whether it included the ERT doctrine, and its potential impact on the system of EU competences.

The question of the scope of application was immediately perceived. The Secretariat of the Body which since 1999 drafted the Charter (later called the ‘Convention’) prepared a document on ‘horizontal’ questions concerning the perspective charter and already on 20 January 2000 specified that ‘[t]he Charter is intended to apply to the Union's institutions and not to activities of Member States which fall outside the scope of EC or EU legislation’. ¹⁰⁰ Formulations of this clause varied from draft to draft: ‘binding on the Member States only where the latter transpose or apply the law of the Union’, ‘when implementing Community law’, ‘exclusively within the framework of implementing Community law’, ‘within the scope of Union law’. ¹⁰¹ In the end, a strict formulation prevailed, stating that the provisions of the Charter would apply to the States ‘only when they are implementing Union law’. ¹⁰² This wording was eventually codified in the current version of Article 51(1). However, these differences must not be overemphasized: even when the wording was the quite wide ‘within the scope of Union law’, the Statements of reasons to the drafts barely changed and seemed to consistently use the wording ‘scope of Union law’ and ‘implementing Union law’ as equivalent to the Wachauf doctrine. ¹⁰³ The final explanations did the same. ¹⁰⁴

As a result, the shift from general principles to the Charter did not entail a substantial change in the scope of application of EU rights: the Wachauf doctrine became the content of Article 51(1) of the Charter. If anything, such limits became clearer and more visible. The interpretation of ‘implementation’ was then to be the crux of the following years: even though it was still not binding, the Charter was already perceived by some as a potentially federalizing device and much of this potential effect depended on the wider or narrower interpretation of Article 51(1). ¹⁰⁵

The second open issue was whether Article 51(1) did also codify the ERT doctrine: on the one hand, it is true that textually Article 51(1) only referred to the ‘implementation’ of EU law, not also to its derogation. This might have suggested an implicit repeal of the ERT doctrine and a codification of Wachauf only. ¹⁰⁶ On the other hand, there is textual evidence in the preparatory works to sustain the opposite. The information note of the Secretariat on ‘horizontal questions’ of 20 January 2000 clearly recalled both Wachauf and ERT: ¹⁰⁷

The Charter is intended to apply to the Union's institutions and not to activities of Member States which fall outside the scope of EC or EU legislation. This would be consistent with Court of Justice case-law, whereby Member States are bound to respect fundamental rights whenever they act within the scope of the Treaties for the purposes either of implementing Community (or EU) legislation or derogating from it (Judgment of 18 June 1991 in Case C-260/89, Elliniki Radiophonia Tiléorassi AE, ECR I-2925, par. 43)

Thirdly and finally, the Convention of 1999 addressed the relation between the Charter and the competences of the EU and solved it by adding a second paragraph to Article 51 to prevent any expansion of EU powers via the Charter:

This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties.

The juxtaposition of the second paragraph of Article 51 to the first shows another function of Article 51, namely ensuring an effective backstop to the expansion of EU powers. As we have seen, after Maastricht and then after Amsterdam, the body of rights-related EU legislation clearly grew. Limiting the incorporation of EU rights to cases of implementation, even if interpreted as the conjunction of the Wachauf and ERT cases, meant that single Charter clauses could not be used as autonomous legal bases to adopt new legislation. The EU powers would remain limited to those conferred in the Treaties and a ‘competence creep’, whereby the EU legislates on areas not strictly within the scope of its competences, would be avoided. ¹¹⁰ The final Explanations to the text of 2000 clearly stressed this point when referring to Article 51(2), ¹¹¹ and so did the explanations of previous versions of Article 51(2). ¹¹²

By looking slightly ahead to the debates at the Convention of 2002, which drafted the Constitutional Treaty and acted with the view of possibly giving a binding value to the Charter, further confirmation of this interpretation is available. The members of Convention of 2002 were even more explicit on the need to ensure that Article 51(2) did not entail any inadvertent extension of the competences of the Union. ¹¹³ Eventually, this led to a slight redrafting of Article 51(2), amended as follows:

This Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks defined in the other Parts of the Constitution.

The new version was even neater in curtailing any competence creep possibly based on the Charter.

To sum up, the overall picture one gets from the travaux préparatoires is that the Convention of 1999 had a twofold role. On the one hand, it codified both Wachauf and ERT in Article 51(1): the Charter was not to change the scope of application of EU rights designed by the Court of Justice in the previous years. On the other hand, however, the Convention of 1999, as well as that of 2002 on the Constitutional Treaty, clearly acted to prevent any expansion of the Union's competences via the Charter. An explicit backstop was therefore drafted and later reinforced in Article 51(2) CFR.

D. The Lisbon Treaty and beyond: A constitutional framework (2010 onward)

The next phase began with the entry into force of the Treaty of Lisbon in 2009, which introduced significant changes. Famously, Article 6(1) of the current TEU made the Charter binding ¹¹⁴ and this begun slowly replacing the general principles in the case law of the Court of Justice. ¹¹⁵ For our aims, however, we need to focus on a series of mechanisms which after Lisbon expanded further the incorporation of EU rights.

First, the same expansion of EU rights via legislation which was visible after Maastricht, followed Lisbon too. Areas like data protection, ¹¹⁶ audiovisual medias, ¹¹⁷ online speech, ¹¹⁸ asylum ¹¹⁹ and criminal proceedings ¹²⁰ were legislated upon at the EU level. In some cases, the usual form of the directive was abandoned in favour of the more invasive regulation. ¹²¹ By enlarging the areas materially governed by EU law, this inevitably extended the incorporation of EU rights too.

As a result, the post-Lisbon era (a) upheld and expanded the thick layer of rights-related EU legislation; (b) confirmed in Fransson and Melloni an expansive reading of EU rights’ scope of application, even when confronting national constitutional clauses; (c) showed how single Charter provisions could be applied beyond their scope of application if used to interpret Treaty provisions; and (d) exercised leverage on the Member States to act according to the Charter via rights-conditioned funds.

The upshot of the EU process of incorporation is of course a much larger application of EU standards on rights to the Member States than it used to be 30 years ago. The constitutional rationale of this expansion lay in the need to hold the Member States accountable when implementing EU law, a need made more pressing by the expansion of rights-related EU legislation. At the same time, the existence of Article 51 CFR as a backstop against the excessive expansion of the application of EU rights, as well as the failure of the mechanism of political oversight under Article 7 TEU, has fostered the recourse to creative solutions by both the Court of Justice (the reading of the Treaties in the light of the Charter) and the political institutions (financial conditionality). These new mechanisms were designed to tame what is perhaps the most dangerous crisis in the history of the EU from a constitutional perspective, namely the rule of law crisis, and to expand the application of EU rights as a countermeasure.