Freedom of Expression as a Common Constitutional Tradition in Europe

First used by the Court of Justice of the European Union (CJEU) in the judgment on the Internationale Handelsgesellschaft case and currently included in Article 6 of the Treaty on European Union, the term ‘constitutional traditions common to the Member States’ gets more and more attention. Reflection on what are the common constitutional traditions in Europe has never been more urgent than now.

For an overview of past and upcoming meetings of this project, please click here.

Quick Facts

Project Type: Report (Checklist)
Procedure: Regular
Adopted: CD 2018/2 (On Projects)
Project Period: February 2018
2022

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.

Click here to download the ELI Report on Freedom of Expression as a Common Constitutional Tradition in Europe

Project Reporters

  • Sabino Cassese
  • Mario Comba

Further Project Team Members

  • Piotr Bogdanowicz
  • Iain Cameron
  • Giacinto della Cananea
  • Marta Cartabia
  • Riccardo de Caria
  • Michele Graziadei
  • Andras Sajo
  • Guy Scoffoni

Advisory Committee

  • André Alen
  • Vittoria Barsotti
  • Martin Belov
  • Eva Maria Belser
  • Armin von Bogdandy
  • Remo Caponi
  • Piet Eeckhout
  • Anne Birgitte Gammeljord (Assessor)
  • Lord Lisvane
  • Christian Möllers
  • Paolo Passaglia
  • Fausto Pocar (Assessor)
  • Ornella Porchia
  • Daria de Pretis (Assessor)
  • Matthias Ruffert
  • Fredrik Sejersted
  • Michael Stolleis
  • Lord John Thomas (Assessor)
  • Wim Voermans
  • Bostjan Zalar
  • Ineta Ziemele

Members Consultative Committee

  • Arvind Babajee
  • Dragan Bataveljić
  • Vito Bumbaca
  • Moustapha Ebaid
  • Aroa Fandiño
  • Maria Filatova
  • Elena Mihaela Fodor
  • Stéphanie Laulhé Shaelou
  • Nicola Lupo
  • María José Martínez Iglesias
  • Jonathan McGowan
  • Manuel Peláez
  • Marieta Safta
  • Ana Stanič (Chair)
  • Andras Varga
  • Gabriela Varia
  • Gonzalo Villalta Puig
  • Veronica Williams
  • American Constitution Society (represented by Timothy Burns and Zinelle October)
  • Curia of Hungary (represented by András Patyi)
  • European Law Students Association (ELSA Austria, represented by Irena Ilić)
  • European Union of Judges in Commercial Matters (UEMC, represented by Rainer Sedelmayer)
  • University "Vasile Goldis" Arad-Romania (represented by Christian Alunaru)
  • University of Latvia (represented by Annija Karklina, Janis Pleps and Anita Rodina)

National Correspondents

  • Sanja Baric
  • Leonard Besselink
  • Piotr Bogdanowicz
  • Marianne Bruckmüller
  • Ciaran Burke
  • Iain Cameron
  • Josep Maria Castellà Andreu
  • Georgios Dimitropoulos
  • Philip Dimitrov
  • Achilleas Emilianides

National Correspondents

  • Madis Ernits
  • Federico Fabbrini
  • Joerg Fedtke
  • Christoph Grabenwarter
  • Martina Grochová
  • Stelios Koutnatzis
  • Daniella Lock
  • Matija Milos
  • Colm O’Cinneide
  • Fruzsina Orosz

National Correspondents

  • Paolo Passaglia
  • Catarina Santos Botelho
  • Guy Scoffoni
  • Kristaps Tamužs
  • Tomi Tuominen
  • Jan Velaers
  • Frederik Waage
  • Bostjan Zalar
  • Irina Zlătescu