Case C-399/11 Stefano Melloni, judgment of 26 February 2013

Key point

  • Pursuant to Article 53 of the EU Charter of Fundamental Rights, member states cannot invoke higher levels of fundamental rights protection than under EU law to restrict the application of EU law


  • S had fled bail after being sentenced in Italy and was recaptured under a European Arrest Warrant in Spain
  • He had been tried and sentenced to 10 years for fraudulent bankruptcy in absentia
  • Issue arose as to whether he was entitled to have his conviction reviewed upon arrest
  • Under Spanish constitutional law, the surrender of persons convicted in absentia is conditional on them being able to have their conviction reviewed as part of their right to a fair trial
  • However, an EU framework decision states that is not necessary if the subject of a European Arrest Warrant had been represented in absentia by lawyers in the trial
  • Article 53 states: ‘[n]othing 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 by Member States’ constitutions’
  • The Spanish Constitutional Tribunal referred the question of whether Article 53 permits the Spanish Constitution to provide greater rights protection than EU law


  • The EU Directive had primacy over Spanish Constitutional law
  • S is thus not entitled to have his conviction reviewed


  • An interpretation of Article 53 gives member states the right to apply a standard of protection under national constitution that is higher than that deriving from the Charter and give it primacy over EU law would undermine the principle of primacy of EU law by allowing a member state to disapply EU rules fully in compliance with the Charter
  • Where an EU law calls for national implementing measures, national courts remain free to apply national standards of human rights protections, provided that the level provided for by the Charter is not compromised and the principle of supremacy is not either
  • The Framework Decision is compatible with the Charter of Fundamental Rights