Concluding remarks:
Present Challenges and Future Directions

Jörg Polakiewicz[1]

Ladies and gentlemen, dear colleagues and friends,

We have had a day of rich and constructive debates.

I would like to thank all speakers and participants for their active contributions.

My intention is not to summarise today’s debates, which I found particularly rich and thought-provoking, nor to formulate conclusions around which participants would have to rally. Rather more modestly and more personally, allow me to highlight some of the points made during the day and to add occasionally a few personal observations based on my experience.

Europe’s system of fundamental rights protection is a ‘crowded house’.^[2] Citizens and judges are confronted with different legally binding texts to be applied simultaneously, partly with different standards, structures, terminology and qualifications. These are their own domestic law, including in most cases the national constitution’s fundamental rights catalogue, the European Convention on Human Rights (ECHR) and its protocols as well as EU law, in particular the EU Charter of Fundamental Rights.

How to best describe the resulting complexity? At the opening of the judicial year on 31 January 2014 in Strasbourg, Andreas Voßkuhle compared the delicate balance between the various institutions to a mobile, a kinetic sculpture consisting of an ensemble of balanced parts that can move but are connected by strings or wire.[3] Another metaphor uses the musical counterpoint, the relationship between voices that are interdependent harmonically and yet are independent in rhythm and contour.[4] In any case, the idea of a Kelsian-type hierarchical pyramid is generally rejected.

There is certainly a high degree of consensus among European and national constitutional and supreme courts. To give just one example, on 19 February 2013, the European Court of Human Rights (ECtHR) and the German Federal Constitutional Court recognised simultaneously, albeit with a different reasoning, adoption rights of same-sex couples. The ECtHR’s judgment in X and Others v. Austria[5] concerned the right of unmarried same-sex couples to second-parent adoption, while the Constitutional Court’s judgment concerned the bar on successive adoption by registered civil (same-sex) partners.[6] In fact, the Constitutional Court went further than the ECtHR, holding that the bar on successive adoption by registered civil partners violated the general principle of equality before the law (article 3 (1) Grundgesetz).

At the same time, the large degree of overlap between the various legal instruments occasionally generates competition, sometimes even tensions between their respective ultimate interpreters. Different approaches can be mutually enriching, as long as the various actors are conscious of their respective roles and base their interaction on a set of shared principles. The ultimate aim should be harmony and mutual enrichment for the benefit of individuals.

The report

We have heard a lot of praise for the excellent “Report on the Protection of Fundamental Rights in Europe”, which is both innovative in its empirical approach and containing a series of very practical policy recommendations. Allow me to add one more quote from a judge, André Potocki, which had the rare privilege to know both worlds, having served as judge at the EU court of first instance between 1995 and 2001. He gave this graphic description of the vision that Luxembourg judges have of their Strasbourg colleagues:

« Les juges de Strasbourg sont animés d’un humanisme généreux, potentiellement déstructurant pour le dynamisme de l'intégration européenne » (Strasbourg judges appear to be motivated by a generous humanism that is potentially destructive for the dynamism of European integration).

Many speakers insisted on the role of national courts and tribunals in human rights protection, a subject which is beyond the scope of the report. I would nevertheless like to make a few remarks about their crucial role. As the Secretary General recalled in Brighton, “effective human rights protection begins and ends at home. The meaning of the Court was never to take responsibility from national courts.”^[7]

Ensuring effective application of the ECHR – a shared responsibility between the ECtHR and national courts

It was a deliberate choice by the 47 member states of the Council of Europe to put the issue of domestic implementation of the ECHR at the top of the Declaration which was adopted at the High-Level Conference on the Future of the European Court of Human Rights in Brighton on 20 April 2012. The Declaration notably encouraged national courts and tribunals to take into account the Convention and the case-law of the Court.^[8]

A major challenge for the ECtHR is to define minimum standards while respecting the plurality of national and supranational fundamental rights provisions. When developing the Convention standards further, the ECtHR increases the level of acceptance by demonstrating respect for national diversity and ‘margins of appreciation’. Such an approach is particularly warranted in cases raising sensitive moral or ethical issues on which no European consensus has been reached. Examples in that respect are the judgments in the cases of Stübing, where the ECtHR held that the applicant’s conviction by the German courts for an incestuous relationship with his sister did not violate article 8 ECHR,[9] or Countryside Alliance, which did not condemn the various bans on fox hunting and the hunting of other wild mammals with dogs in the United Kingdom.[10]

From the most recent intergovernmental conferences on the future of the ECtHR, held in Izmir (2011) and Brighton (2012), a clear message emerged inviting the Court to show self-restraint over issues best dealt with by national courts and tribunals and democratically elected legislatures in the member states. The ECtHR should resist the ‘spider’s web temptation’, the temptation of pretending to build, on the basis of the ECHR, a complete legal system where the national legal orders and, in the future, the EU’s supranational legal order could feel ‘trapped’ or ‘cornered’.^[11] The subsidiarity principle and the margin of appreciation doctrine will in future be included in the Convention’s preamble.[12]

Sometimes described as being “slippery and elusive as an eel”, the margin of appreciation doctrine has been consistently applied by the ECtHR for more than forty years. And yet, the ECtHR faces a continuous challenge to come up with meaningful tests for Convention compatibility, in particular as regards the proportionality of restrictions and the weighing of competing rights against each other. Such tests are taken up by national constitutional and supreme courts not because of hierarchical superiority but because of their persuasive authority.

Strasbourg is not a court of fourth instance. It should be rather exceptionally that it substitutes its own weighing of different interests and rights at stake for that of highest national or, in future, that of the Luxembourg courts. At the Brighton Conference on the Future of the ECtHR, the contracting parties unanimously invited the ECtHR to declare complaints inadmissible where allegations of human rights violations have been duly considered by the competent domestic courts applying the rights guaranteed by the Convention in light of the Court’s well-established case-law.[13]

Fundamental rights entail choices as to the appropriate balance between the interests of individuals against those of other individuals or the community. Many rights require a sometimes complex balancing exercise, between the rights of one individual and the interests of other individuals, groups or the general public. National courts and tribunals are “by reason of their direct and continuous contact with the vital forces of their countries … in principle in a better position than the international judge to give an opinion on the exact content of Convention requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them.”[14]

A ‘race to the top’, seeking ever higher standards makes little sense in cases of competing human-rights interests which must be reconciled, such as freedom of expression versus privacy,^[15] the right to respect the decision to become (or not to become) a parent,^[16] or the property rights of landlords and tenants. Observing that striking the right balance is not always easy for a judge, Lady Hale of the British Supreme Court gave the following examples:[17]

“How, for example, is your average judge doing a list of possession actions in a busy county court to balance the convention right of a council tenant to be protected in her home, even though she has no right in our domestic law to be there, against the claims of all the other would-be tenants whose need is as great or greater than hers?[18] It was perhaps easier to balance the right of a Muslim school girl to manifest her religion by wearing a jilbab in defiance of carefully worked out school uniform regulations against the right of the other girls in the school not to be put under pressure to do the same against their will.[19]”

In multipolar rights-relations, extending the protection of one right or attaching more weight to it will inevitably have the consequence of restricting the right of others.

Finding the appropriate division of labour in the protection of Convention rights between national courts, national public authorities, and the ECtHR requires a rigorous theory of interpretation.^[20] It is the role of the ECtHR to interpret the often vague and general Convention provisions and to develop general principles on how to apply them in concrete cases. The ECtHR has a mandate under the Convention to define the nature and scope of Convention rights with universal application in the member states. As regards the definition of ‘torture’ under article 3 ECHR or ‘forced labour’ under article 4 ECHR, there is no genuine margin of appreciation, although there is on the question of whether or not the disputed conduct is compatible with them thus defined. However, when it comes to the weighing of rights against each other and public interests, different solutions may be tolerable in the context of different legal systems. It is for the ECtHR to ensure that the solutions found at national level remain within the ‘priority principles’ contained in the Convention itself.^[21]

In this context, it is worth emphasising that at national level the balancing between private rights of different parties is usually not the task of constitutional or specialised human rights courts, but a question of the proper application of domestic legislation by ordinary courts. It is therefore only reasonable if the ECtHR grants a certain margin of appreciation to domestic courts, which are best placed to fit the Convention rights into the broader domestic legal framework.[22]

The more the implementation of the Convention is devolved to the national authorities and courts, the better the ECtHR can focus on its role as the guardian of a common core human rights standard. The Court’s core business is to deliver judgments on cases raising serious human rights issues, according to his former president Sir Nicolas Bratza “cases which disclose grave problems of Convention compliance at national level, cases which take forward our understanding of human rights law, cases where the dignity and/or physical integrity of persons is at stake, cases which gauge the health of the rule of law and democracy in our societies.”[23]

At the same time, the margin of appreciation must not become a synonym for unfettered judicial deference which would leave national authorities without clear guidance as to the application of competing interests under the Convention. In that respect, I have some doubts about a judgment which is often cited as a good example of judicial self-restraint, the Grand Chamber judgment in Lautsi and Others v. Italy of 18 March 2011.[24] The Court framed the question whether crucifixes should be present in classrooms in the narrowest possible terms as an issue of compatibility only with the right of education and freedom of religion, without acknowledging the link with the principle of secularism.[25] In a judgment of 51 pages, the Court’s reasoning only consists of 20 short paragraphs which mention the margin of appreciation 8 times.[26] There are certainly very good reasons to conclude that decisions of such a sensitive nature are left to national authorities which are in principle in a better position than the international judge to give an opinion on the necessity of a restriction. From a specialised human rights court, one can expect a reasoning which gives substantial guidance to the national authorities as to general principles governing the weighing of the competing rights and interests in question.

The role of the Court of Justice of the European Union in fundamental rights protection

The CJEU has “evolved from being a tribunal concerned primarily with economic matters, to one with a much wider range of jurisdiction which is now explicitly tasked with enforcing human rights”.[27] It has developed an impressive body of fundamental rights case-law, starting well before the proclamation of the EU’s Charter of Fundamental Rights on 18 December 2000. Particularly important examples are the two recent judgments on data retention[28] and search engines (Google case).[29] Declaring EU legislation null and void for violation of privacy and data protection rights is a strong signal to the EU co-legislators, Council and European Parliament, that the Court takes fundamental rights and the principle of proportionality seriously.

CJEU case-law has in the past drawn extensively on the ECHR and the case-law of the ECtHR. At the same time, the court has consistently emphasised the autonomy and primacy of the EU’s legal system of human rights protection.^[30] In particular since the EU Charter became binding under EU law, there is a trend in the CJEU case-law to interpret fundamental rights increasingly in isolation from the jurisprudence emerging from other human rights instruments, including the ECHR.[31] The CJEU draws only sporadically on international human rights sources, insisting that it remains the final and authoritative of their meaning and impact within the EU.

As a matter of principle, it can be questioned whether it is appropriate to invoke the autonomy of any legal order when it comes to the protection of human rights.^[32] In any case, the ECHR and Union law being based on the same values of liberty and democracy, there should, at least at principle level, be no contradiction between EU and ECHR human rights law.

As the court of an autonomous supranational legal order, the CJEU’s very purpose is to ensure uniform application and interpretation throughout a quasi-federal Union of 28 member states. Such an endeavour is bound to raise concerns in an area so closely linked to national sovereignty as fundamental rights protection. National identities remain strong in Europe, in particular in the case of democracies which, due to their experience of totalitarism, have established strong constitutional courts. The main challenge for the CJEU is to successfully navigate between the Scylla of a dysfunctional Union and the Charybdis of fundamental rights-based centralisation.[33]

It was argued that the judgment in Åklagaren v Hans Åkerberg Fransson[34] swept like a storm through the mobile.[35] The CJEU held that the EU Charter applied wherever a state acts “within the scope of European law”, thus finding that it covered the issue whether Mr Fransson could at one and the same time be given an administrative fine and prosecuted for failing to comply with his duty to file a proper tax return. For the CJEU it was decisive that the tax in question, VAT, was a tax required under EU law, although the same issue would have arisen had it been a nationally based tax like income tax. In so holding, the CJEU disagreed with the submissions of the Commission and all governments that appeared before it (with the exception of Austria) as well as with the opinion of Advocate General Cruz Villalón.[36]

Other CJEU judgments, for example Schmidberger,[37] Omega,[38] Ilonka Sayn-Wittgenstein,[39] and more recently UPC Telekabel Wien GmbH[40] signal a more cautious approach, developing ideas quite similar to the margin of appreciation doctrine of the ECtHR. In the Omega case, the CJEU acknowledged explicitly the existence of a large margin due to cultural and societal differences in the member states. It held that the German measure banning the laser sport as a ‘human dignity’ measure and thus limiting ‘freedom of services’ within the EU, was justified and needed not to correspond to a conception shared by all member states as regards the precise way in which fundamental rights could be protected. This is entirely in line with the CJEU case-law regarding the use by member states of exceptions justifying restrictions to fundamental freedoms, which the CJEU regards as ‘implementing Union law’ and thus falling within the scope of application of the EU Charter.[41] In that way, the CJEU retains overall control over the uniform application of Union law while resolving potential clashes between jurisdictions through an agreement “to defer to one another’s decisions, provided those decisions respect mutually agreed essentials.”[42]

The accession of the EU to the Convention will reshape the institutional architecture. European laws and judgments will be subject to the ECtHR’s jurisdiction – an operation which its Dean Spielmann praised as a high point of modern Europe’s commitment to human rights.^[43] For accession to operate smoothly, it is again helpful to set the pyramid model aside and to focus on the mobile instead.[44] Becoming part of the Convention system should not be thought of in terms of hierarchy, but in terms of specialisation. The ECtHR will not acquire the authority to assess the validity or the correct interpretation of EU law in a binding manner. Instead, accession means no more – and no less – than external scrutiny of a specialised international human rights court, which will enhance the legitimacy and credibility of the European system of human rights protection as a whole.

After accession, the EU institutions, including the CJEU and the General Court, remain responsible for ensuring that the rights enshrined in the Convention are respected. As for the other Contracting Parties, supervision by the ECtHR will be subsidiary in character – a fact reflected, in particular, in the recognition of margins of appreciation.

The importance of judicial dialogue

Open dialogue between courts is essential to build the mutual trust without which any European project is bound to fail. The “Report on the Protection of Fundamental Rights in Europe” mentions numerous examples ranging from regular visits to informal exchanges during academic conferences. The Brighton declaration also highlights the importance of dialogue between the ECtHR and national courts and tribunals.

Dialogue is neither a one-way-street, nor does it operate merely through meetings between judges. Judges express their ideas primarily in judgments. This is why it is so important that jurisprudence developed by other jurisdictions is acknowledged, examined and either taken into account or distinguished. In the case of the ECtHR, the dialogue is directly visible in its judgments which regularly refer to and discuss the relevant case law of national and European courts. The ECtHR held that failure to provide reasons for refusing to submit a preliminary question to the CJEU amounted to a violation of article 6 (1) ECHR,^[45] which could be seen as directly enforcing EU law.^[46] In the case of the Luxembourg courts such dialogue is no less real, but less apparent. The succinct style of CJEU judgments on the other hand is less conducive to engage substantively with precedents from other jurisdictions. Fortunately the Advocate Generals’ opinions regularly discuss extensively such precedents. They are however neither binding nor decisive.

Conclusion

The European project will only remain credible if it rests on mutual respect and trust, good will and cooperation. For a mobile to work, the different parts of the system, not only the two courts on which our debates focused today, but also the European constitutional and supreme courts, have to go about their task with sensitivity in order to preserve the overall balance.

All this requires not only sincere dialogue and willingness to engage substantially and transparently with the arguments used by “other” courts, but also the recognition of certain common (minimum) standards which transcend both national and supranational legal orders.

I am convinced that EU accession to the ECHR will put in place the missing link in Europe’s system of fundamental rights protection, guaranteeing consistency between the approaches of the EU and the Council of Europe. Only the combination of making the EU Charter legally binding and acceding to the ECHR can ultimately ensure better protection for individuals, as well as legal certainty and coherence of standards all over Europe.

We heard a lot about common threats to human rights, resulting inter alia from the financial crisis, disproportionate measures taken in the fight against terrorism or new threats to privacy. To counter these threats, we need a common approach, even closer co-operation between the European Union and the Council of Europe. Based on our common values and standards, we must combine forces, while avoiding overlap and duplication.

« L’union fait la force. »

Thank you for your attention.