ELI Report Freedom of Expression as a Common Constitutional Tradition in Europe

Background

The phrase ‘constitutional traditions common to the Member States’ (CCT) has been formulated by the Court of Justice of the European Union (CJEU) and has found its way into the Treaty of the European Union (TEU) and the Charter of Fundamental Rights of the European Union (CFR). The research on constitutional traditions common to Member States (art 6.3 TEU and art 52.4 CFR) is presently a highly topical question, needing a practical approach and involving collaboration between the ELI and EU Institutions. Up to now the CJEU has not engaged in an in-depth investigation of national jurisdictions to verify whether a constitutional tradition is common to Member States, mostly referring to the CFR or to the European Convention on Human Rights (ECHR). This has resulted in a welcomed strengthening of the judicial dialogue between the two highest judicial institutions in Europe (the CJEU and the European Court of Human Rights (ECtHR)). However, it has produced a ‘top-down’ approach, whereas a ‘bottom up’ approach would yield results perhaps more compatible with the intent of art 6.3 TEU.

Aim

In accordance with CD 2020/10, this project focused on freedom of expression in order to develop a prototype of a very thorough report that could be successfully applied to other fundamental rights in the future.

Outcome

The ELI Report provides the analysis with respect to several topics pertaining in this field, such as unprotected speech, minority rights, speech with a religious dimension, freedom of information and of the press and media pluralism, among others. The Report is the outcome of several Project Team meetings, conferences and seminars, during which the topic was discussed with experts, including ones from the Court of Justice of the European Union.

The Report is timely, as the checklist can be used to verify compliance with constitutional traditions common to the Member States in this field, and by way of contrast to understand some of the differences. In particular, as a practical tool, it can help legal practitioners to verify if a certain case or situation affecting freedom of expression can be placed inside or outside the boundaries of constitutional traditions, common to the Member States. This can also be used potentially in the context of implementing the rule of law as a condition to access to EU funds.