The Future of Fundamental Rights Protection without accession

Contribution  by
Mr Jörg POLAKIEWICZ ^[1]

Director of Legal Advice and Public International Law
Council of Europe

***Introduction***

From the outset, I need to stress how painful an exercise it is for me to speak about the future of fundamental rights protection without accession. Not only have I always been convinced about the necessity and added value of accession, but I also spent almost three years of my professional life assisting member states and the European Union in formulating the draft accession agreement which was finalised, at negotiators’ level, on 5 April 2013.

As you all know, the CJEU concluded on 18 December 2014 that this draft accession agreement was incompatible with EU law. While I still remain optimistic that the CJEU’s objections will eventually be overcome, their nature and scope are of such magnitude that a future without accession is not a wholly unrealistic option, at least for some time.

I shall address this issue from different angles, that of individuals, the member states and their authorities, the CJEU itself as well as from the outside perspective of greater Europe.

Individuals (EU citizens and non-citizens)

Even without accession, individuals will continue to turn to national courts and, ultimately, to the ECtHR to vindicate their rights irrespective of whether and to what extent their cases raise questions under EU law. Under international law, EU member states remain collectively responsible for ensuring that transferred powers are exercised in conformity with the ECHR. The ECtHR has interpreted the “securing” of the Convention guarantees referred to in article 1 of the ECHR as applying comprehensively not only to the direct exercise of powers at national level but also to the exercise of transferred powers by supranational EU institutions.^[2]

The ECtHR thus exercises jurisdiction over national acts fully or partially determined by EU law. External supervision by the ECtHR applies to the transposition and execution of EU law by national authorities and courts. Even national laws which are, word by word, identical with EU directives can be referred to the Strasbourg Court.

The question as to whether it is also possible to bring before the ECtHR applications concerning the exercise of powers directly by EU institutions themselves has so far remained open. Without accession, such applications cannot be brought against the EU as such, but applications have been brought against the EU member states collectively. One example is the application by DSR-Senator Lines alleging that the imposition of fine by the European Commission had violated articles 6 and 13 of the ECHR. The CFI and the CJEU had rejected the applicants’ request for interim relief against the provisional execution of the fine, totalling 13.75 million euros.^[3] Although this case clearly concerned the direct application of Community law by EU bodies, the ECtHR referred the application to the EU member states’ governments in July 2000. It was however ultimately settled before the ECtHR could give its judgement.

At this year’s opening of the judicial year in Strasbourg, President Dean Spielmann declared:

“For my part, the important thing is to ensure that there is no legal vacuum in human rights protection on the Convention’s territory, whether the violation can be imputed to a State or to a supranational institution. Our Court will thus continue to assess whether State acts, whatever their origin, are compliant with the Convention, while the States are and will remain responsible for fulfilling their Convention obligations.”^[4]

Does this signal stricter scrutiny by Strasbourg? A radical move would be to abandon the Bosphorus presumption, arguing that in the light of opinion 2/13 with its insistence on the autonomy and primacy of EU law, equivalence of protection can no longer be presumed. But probably this is not even necessary. A mere application of the Bosphorus doctrine may suffice. So far the ECtHR has not in a single instance rebutted the Bosphorus presumption and found a violation attributable to the EU, evidently a sign of judicial self-restraint and deference to the CJEU.

Already when the Bosphorus judgment was delivered, various judges warned against the danger of double standards and called for vigilance. In their concurring opinion, they emphasised the risk of inequality between contracting states, reiterating “that this would ‘run counter to the aim, as expressed in the Preamble to the Convention, to achieve greater unity in the maintenance and further realisation of human rights.’”^[5]

Since opinion 2/13, such vigilance seems even more called for. The opinion gives the impression to be more concerned about the autonomy and primacy of EU law than about substantive rights. The CJEU applied the principle of absolute primacy to the EU Charter, not only in relation to ECHR rights but also to those guaranteed under national constitutions.

Did member states ever intend to give such a far-reaching meaning to the EU Charter? The Charter itself contains no specific rule (“Kollisionsregel”) about which rights should have precedence in situations where Charter rights and rights guaranteed under the ECHR or national constitutions apply in parallel.^[6] It is quite striking that even truly federal states like Austria, Germany, Switzerland or the USA tolerate some flexibility in terms of fundamental rights standards, without that being considered as a threat to the primacy, unity or effectiveness of the respective federal constitution.

The aim and purpose of fundamental rights is not to foster harmonisation or uniformity; they are about the empowerment of individuals and the protection of liberty primarily against state authorities. Uniformity in fundamental rights protection is neither required nor desirable in a Europe composed of nation states, each of which with its own distinctive traditions of fundamental rights protection.

What is required is consensus on certain minimum standards which apply to everybody by virtue of being human. They are not the rights of EU citizens, but the rights of every human being, virtuous and unvirtuous alike. European states agreed on those minimum standards back in 1950 when they adopted the ECHR which constitutes a common “shared view” of European human rights law, defining “the margin within which states may opt for different fundamental balances between government and individuals.”^[7]

It would be an illusion to think that fundamental rights protection by the Luxembourg courts can be a substitute for accession. In the first place, there is no individual complaints procedure before the Luxembourg courts equivalent in breadth or depth of scrutiny to the right of individual application under the ECHR.

Cases alleging that fundamental rights have been violated by primary Union law or the CJEU itself cannot be brought before the Luxembourg courts. Cases alleging that fundamental rights have been violated by primary Union law or the CJEU itself cannot be brought before the Luxembourg courts. While the conditions for the admissibility of actions against EU regulatory acts requiring no national implementation measures have been eased under the Lisbon treaty,^[8] for all other acts the Plaumann criteria still apply.^[9] Only if individuals prove both direct and individual concern, they will have an effective remedy before the Luxembourg courts.

Moreover, in the area of freedom, security and justice, where fundamental rights are very much at stake, certain restrictions have survived the entry into force of the Lisbon treaty which extended the CJEU’s jurisdiction to the former first third pillar. The CJEU still lacks the power to review the validity or proportionality of action taken by the police or other law enforcement agencies or the exercise of the responsibilities incumbent upon member states with regard to the maintenance of law and order and the safeguarding of internal security.^[10] The CJEU’s jurisdiction remains even more curtailed in the area of common foreign and security policy, which was precisely one of the reasons to declare the draft accession agreement incompatible with the EU treaties.^[11]

Accession to the ECHR would close such gaps in legal protection, thus making a significant contribution to strengthening human rights scrutiny within the EU’s legal order. Indeed, only accession can give European citizens the same protection vis-à-vis acts of the Union as they presently enjoy vis-à-vis all EU member states. It will reassure citizens that the EU, just like its member states, is not ‘above the law’ as far as human rights are concerned. It will also have the advantage of enabling the EU institutions to participate fully in Strasbourg proceedings, which are concerned, more and more often, with questions of EU law.

Member states and their authorities

Governments and judicial authorities are confronted with different legally binding texts on fundamental rights to be applied simultaneously, partly with different standards, structures, terminology and qualifications, being:

• their own domestic law, including in most cases the national constitution’s fundamental rights catalogue;
• the ECHR and its protocols;
• the EU Charter of Fundamental Rights.

When the Charter was being drafted, there was already talk about a ‘lawyers’ paradise’. The imaginative lawyer can build a whole practice out of allegedly inconsistent formulations or judicial interpretations – without necessarily ever having to establish that his or her client is an entity entitled to enjoy such rights, or indeed that they are central to the case under consideration. This is good news for lawyers, but not necessarily for their clients.

What makes the situation particularly complex is the fact that the different legal sources will have to be combined, as the legal systems concerned do not merely co-exist but overlap each other. In this context, domestic courts play a central role, not only as “Union courts of ordinary jurisdiction”, but also as “Convention courts of ordinary jurisdiction”, as it is for them to ensure in the first place that the rights of individuals are respected. “Domestic courts are the ultimate guardians of the fairness of proceedings.”^[12]

Without accession, national courts face a major challenge. Acting often in urgency, judges will have to identify in each individual case the applicable standards and accommodate the various legal sources which will exist wholly independently from each other. To quote a practitioner, “it is a demanding methodological task for a Supreme Court Justice to untangle the intricate and dynamic web of legal material that continuously are being spun within European law, layer by layer.”^[13] In the worst case, domestic authorities may be held responsible under the Convention for action that is imposed by EU law.

In that context, the Swedish Supreme Court’s recent practice is noteworthy. It requires Swedish courts to follow the CJEU’s interpretation of EU acts unless the application of a specific act in question would amount to a clear and obvious ECHR violation. The Supreme Court explained that the possibilities for Swedish courts to deviate from the CJEU case law are thus extremely limited, given that EU law must be supposed to meet ECHR standards.^[14]

While the provisions of the EU Charter on the relationship with the ECHR reflect the same understanding, opinion 2/13 has raised new questions. Take the example of mutual recognition and mutual trust, which according to the CJEU enjoy constitutional status under the EU treaties and must at all cost be shielded from interference by the ECtHR.

Various EU legal acts in the fields of immigration and asylum, cross-border criminal justice and cross-border matrimonial matters provide for the recognition of decisions taken by judicial authorities of other member states. They require quasi-automatic transfers of persons from one jurisdiction to another, without prior human rights scrutiny of either the merits or procedure leading up to the requesting judicial decision or the situation in the requesting state.

The underlying assumption that all EU member states comprehensively ensure respect for human rights needs a reality check. EU member states are not immune from being found in violation of even the core human rights such as article 3 ECHR, the prohibition of torture and inhuman and degrading treatment. In 2014 alone, the ECtHR found 111 violations of article 3 ECHR by EU member states, 73 violations of article 5 ECHR, and 183 violations of article 6 ECHR.^[15]

A recent illustration of the different approaches of the two courts is the ECtHR’s Tarakhel judgment,^[16] whose individualised assessment of the applicants’ situation contrasts with the CJEU’s defence of the Dublin system in the Abdullahi judgment.^[17] These judgments show at the same time that even without accession JHA issues are already before the ECtHR. The challenge to the conception of mutual trust in JHA matters could hardly become more severe than it already is. Rather on the contrary, accession and a strong co-respondent mechanism provide the possibility for comprehensive external scrutiny of the JHA system as a whole, with the active participation of protagonists from both the supranational and the national levels, thereby enhancing both trust in the various mutual recognition systems and human rights protection for the individuals concerned.

The CJEU

Without accession, the CJEU retains unfettered control over fundamental rights application within the scope of application of EU law. It can be expected that it will intensify its fundamental rights jurisprudence, if only to compensate for the lack of accession and in order to respond to critics who argue that it is more concerned about integration than fundamental rights.

Particularly important examples are the two recent judgments on data retention^[18] and search engines (Google case).^[19] Declaring EU legislation null and void for violation of privacy and data protection rights sent a strong signal to the EU co-legislators, Council and European Parliament, that the court takes fundamental rights and the principle of proportionality seriously.

However, while CJEU case-law has in the past drawn extensively on the ECHR and the case-law of the ECtHR, there is a trend in the CJEU case law, in particular since the EU Charter became binding, to interpret fundamental rights increasingly in isolation from the jurisprudence emerging from other human rights instruments, including the ECHR.^[20] The CJEU draws only sporadically on international human rights sources, insisting that it remains the final and authoritative arbiter of their meaning and impact within the EU. In the Google case, the CJEU recalled that EU legislation “must necessarily be interpreted in the light of fundamental rights, which according to settled case-law, form an integral part of the general principles of law whose observance the Court ensures and which are now set out in the Charter.”^[21]

This insistence on constitutional autonomy and separateness of the EU human rights system stands out against political developments since the fall of the Berlin wall, which, under the banner of human rights, have brought European countries well beyond the EU closer together than ever before. 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.^[22] It was therefore reassuring to hear vice-president Koen Lenaert’s intervention at the Brussels ECHR conference on 26 March 2015, emphasising “l’influence déterminante de cette jurisprudence [de la CEDH] sur les droits fondamentaux garantis au sein de l’Union européenne.”

The CJEU faces a constant challenge to successfully navigate between the Scylla of a dysfunctional Union and the Charybdis of fundamental rights-based centralisation.^[23] Developing even further its autonomous interpretation of fundamental rights, exclusively based on the EU Charter, while at the same time requiring EU member states to accept the primacy of EU law over national law, even non-directly effective secondary EU legislation over national constitutional law is likely to meet resistance not only from the ECtHR, but also from highest national courts and tribunals. There is already increasingly converging national case law emphasising the need for respect of constitutional identities in fundamental rights protection (notably in Cyprus, Denmark, Germany, Italy, Poland and Spain).^[24] For the first time in its history the UK Supreme Court mentioned explicitly (and in German!) the case law of the Bundesverfassungsgericht on the limits of European integration arguing that “a decision of the Court of Justice should not be read by a national court in a way that places in question the identity of the national constitutional order.“^[25] Rather than prescribing a harmonised approach, CJEU case law on fundamental rights “must be understood in the context of the cooperative relationship which exists between that Court and a national constitutional court such as the Bundesverfassungsgericht or a supreme court like this Court.“^[26] In a judgment of 25 March 2015, the Supreme Court added that “unless the Court of Justice has had conferred upon it under domestic law unlimited as well as unappealable power to determine and expand the scope of European law, irrespective of what the Member States clearly agreed, a domestic court must ultimately decide for itself what is consistent with its own domestic constitutional arrangements.”^[27]

I remain nevertheless convinced that, even without accession, courts and tribunals all over Europe will continue their constructive dialogue, applying and integrating harmoniously in their fundamental rights case law both ECHR standards and EU law. We must avoid a situation where judges will be faced with the dilemma that following the case law of one European court will expose them to condemnation by the other.

Greater Europe

Without accession, the credibility of the EU’s human rights policy will be at stake. There is a plain contradiction between the human rights commitments demanded from non-EU states, for instance in connection with pre-accession and association agreements, and the lack of any external scrutiny whatsoever of the Union’s own actions. Does it make sense to make ratification of the ECHR a condition for EU membership, when the EU itself and its legislation will remain exempt from supervision by the ECtHR?

The words pronounced by the then ECtHR president Luzius Wildhaber on 7 March 2000 in front of the Committee of Ministers of the Council of Europe remain fully valid today. He declared that it is of paramount importance “to avoid a situation in which there are alternative, competing and potentially conflicting systems of human rights protection both within the Union and in the greater Europe. The duplication of protection systems runs the risk of weakening the overall protection offered and undermining legal certainty in this field.”

Indeed, already then nobody had doubts about the EU’s capacity to develop its own fundamental rights catalogue, going further in some respects than protection offered under the ECHR. But, as the eminent Dutch jurist Henri G. Schermers observed, “for Europe as a whole … there would also be a considerable loss. Europe would be split with respect to human rights, most certainly to the detriment of the non-members of the Union.”^[28] This is why since the Laeken Declaration (2001), the EU convention (2001-2003) and subsequent intergovernmental conferences (2003 and 2007) established a junktim between the incorporation of the EU Charter into the treaties and accession to the ECHR.

Conclusions

With its political clout, the EU should strengthen common European mechanisms by ensuring effective political follow-up to their conclusions and recommendations.

Having instead parallel control and monitoring systems operating for the 28 countries of the European Union on the one hand, and for the 47 countries of the Council of Europe on the other, is not only a waste of taxpayers’ money, but also entails a real risk of creating new dividing lines in Europe in the human rights field, an area par excellence where Europe should be united by the same standards and values.

How can Europe be credible in its worldwide defence and promotion of human rights if it is not capable of keeping its own house in order?

[1] Director of Legal Advice and Public International Law (Legal Adviser), Council of Europe and Professor at the Europainstitut of the University of Saarbrücken. This contribution was written in a personal capacity and does not necessarily reflect the official position of the Council of Europe.

[2] Matthews v. the United Kingdom [GC], no. 24833/94

[3] Senator Lines GmbH v. Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom (dec.) [GC], no. 56672/00

[4] Solemn hearing for the opening of the judicial year of the European Court of Human Rights; Opening speech President Dean Spielmann Strasbourg, 30 January 2015, at <http://echr.coe.int/Documents/Speech_20150130_Solemn_Hearing_2015_ENG.pdf>

[5] Concurring opinion by judges Rozakis, Tulkens, Traja, Botoucharova, Zagrebelsky and Garlicki, citing Loizidou v. Turkey (preliminary objections), judgment of 23 March 1995, Series A no. 310, p. 28, § 77.

[6] Ferdinand Kirchhof ‘Nationale Grundrechte und Unionsgrundrechte: Die Wiederkehr der Frage eines Anwendungsvorrangs unter anderer Perspektive’ (2014) Neue Zeitschrift für Verwaltungsrecht 1537-1541.

[7] J H H Weiler ‘Fundamental Rights and Fundamental Boundaries: On Standards and Values in the Protection of Human Rights’ (1995), reprinted in J H H Weiler The Constitution of Europe: do the New Clothes Have an Emperor? (Cambridge University Press, 1999), 107-16.

[8] Article 263 TFEU.

[9] In Plaumann & Co. v. Commission, Case 25/62, 1963 E.C.R. 95, the CJEU required that in order to allow individuals to challenge a regulation, this regulation should affect them “by reason of certain attributes, which are particular to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually.” See also Greenpeace v. Commission, Case C-321/95 P, 1998 E.C.R. I-1651.

[10] Article 276 § 4, TFEU.

[11] For an interesting view how this obstacle to EU accession could be overcome without treaty change, see D Halberstam ‘Foreign Policy and the Luxembourg Court: How to Address a Key Roadblock to EU Accession to the ECHR’ (12 June 2015).

[12] Hermi v. Italy [GC], no. 18114/02, § 72, ECHR 2006 XII

[13] Justice A Bårdsen (Norwegian Supreme Court) ‘Fundamental Rights in EEA Law – The Perspective of a National Supreme Court Justice’ (12 June 2015), para. 26.

[14] Billerud case, NJA 2014,79.

[15] Violations by Article and by State – 2014

[16] Tarakhel v. Switzerland [GC], no. 29217/12, ECHR 2014

[17] Case C-394/12 Shamso Abdullahi v Bundesasylamt (10 December 2013).

[18] Joined Cases C-293/12 and C-594/12, Digital Rights Ireland and Seitlinger and Others (8 April 2014).

[19] Case C-131/12, Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (13 May 2014).

[20] G De Búrca ‘After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator?’ 20 Maastricht Journal of European and Comparative Law (2013) 168 (171); J Callewaert ‘L’adhésion de l’Union européenne à la CEDH: une question de cohérence’ 3 Cahiers du CeDIE (2013).

[21] Lautsi and Others v. Italy [GC], no. 30814/06, § 68, ECHR 2011[22] See the General Court’s critical remarks in Case T-85/09, Kadi v. Commission, judgment of 30 September 2010, paras. 119-121.

[23] A von Bogdandy ‘Protecting the essence of fundamental rights against EU Member states’ 49 Common Market Law Review, No. 2 April 2012, 519.

[24] See the references in J Nergelius ‘The accession of the EU to the European Convention on Human Rights. A critical analysis of the Opinion of the European Court of Justice’ SIEPS 2015:3 (June 2015).

[25] HS2 Action Alliance Ltd, R v The Secretary of State for Transport & Anor [2014] UKSC 3 (22 January 2014) citing the German Federal Constitutional Court judgment of 24 April 2013 on the Counter-Terrorism Database Act, 1 BvR 1215/07, para 91: „Im Sinne eines kooperativen Miteinanders zwischen dem Bundesverfassungsgericht und dem Europäischen Gerichtshof ... darf dieser Entscheidung keine Lesart unterlegt werden, nach der diese offensichtlich als Ultra-vires-Akt zu beurteilen wäre oder Schutz und Durchsetzung der mitgliedstaatlichen Grundrechte in einer Weise gefährdete ..., dass dies die Identität der durch das Grundgesetz errichteten Verfassungsordnung in Frage stellte.“

[26] Ibid.

[27] Pham v Secretary of State for the Home Department [2015] UKSC 19 (25 March 2015).

[28] H. G. Schermers ‘Guest Editorial: The new European Court of Human Rights’ 35 CMLR  (1998) 1, at 6.