Is it possible to reform the EU without amending the Treaties?

 

Steve Peers

 

The renegotiation of the UK’s membership of the European Union – or ‘EU reform’, if you prefer – is about to begin in earnest. But already several Member States have ruled out the prospect of amending the Treaties. Is it still possible to deliver a package of renegotiation or reform despite this?

 

It is, of course, possible to amend EU secondary legislation (or to credibly promise to do so) without a Treaty amendment. But there is always the risk that such legislation will not be amended after all as promised, or that the amendments will be overturned in future. So some have suggested the ‘Danish solution’: namely a decision of the EU Heads of State and Government, meeting within the European Council, which constitutes the EU’s response to the renegotiation request, probably in conjunction with amendments to EU secondary legislation.

 

Such Decisions have been adopted in the past, as regards Denmark and Ireland, in order to address the former Member State’s difficulties ratifying the Maastricht Treaty and the latter Member State’s difficulties ratifying the Treaty of Lisbon. In the latter case, the European Council (ie Member States’ Presidents and Prime Ministers) also agreed the broader legal and political context of this decision: the decision was ‘legally binding’, it did not constitute a Treaty amendment, and its content would be set out in a Protocol to be attached to the Treaties in future. Indeed, the latter protocol was subsequently signed and ratified as promised. The UK could be offered a similar commitment.

 

In order to indicate more clearly how the renegotiation would work, Annex I to this post suggest a possible wording for such a decision, based upon the 2009 Decision concerning Ireland, adapted to the Conservative party’s negotiating demands. (I’ve updated this from a previous post on this issue).

 

But I think it is possible to go further alongside this, and to make changes to EU secondary law which have a similar impact to a Treaty amendment. How would this work exactly? At the moment there is a separate Decision on voting rules in the Council. This provides that where a number of Member States falling short of the usual 'blocking minority' are outvoted, they can insist on a delay before the Council adopts its position. In fact this text was agreed as part of the Lisbon Treaty negotiations (it was a Polish ‘red line’) and set out originally as a Declaration to that Treaty. I believe that this text could be amended to deal with two UK concerns: (a) the position of the non-eurozone Member States as compared to the eurozone Member States; and (b) the very serious concerns of individual Member States about specific EU proposals on certain grounds, such as economic competitiveness or objections by national parliaments.

 

It wouldn’t be possible to amend the voting rules in the Council as such without a Treaty amendment. But amending this separate Decision could ensure a delay before a vote is taken. I believe it would also be possible to include rules on what happens if there is still no agreement after the delay – namely the use of ‘enhanced cooperation’ (some Member States going ahead without the others) if the disagreement still persists.  Again, only a Treaty amendment could require the Council to move to enhanced cooperation at this point. But it is possible for Member States to agree how they will vote in the Council, by means of a separate treaty. There is a precedent for this, in Article 7 of the ‘Fiscal Compact’ treaty between a group of Member States. (It’s understood that the Council legal service agreed that this was acceptable).

 

So in Annex II, I have suggested some amendments to this Council Decision, to address the UK’s two concerns. The issue of Member State voting is addressed in the parallel Decision of Heads of State and Government.

 

I believe that such an approach has a large number of advantages. First, it can be adopted by the Council, without needing the participation of the Commission or European Parliament, or approval by Member States. Second, Member States can secure the continued existence of this Decision by agreeing that it can only be amended following a unanimous vote. Third, it is possible to avoid the risk that, for these changes at least, the EU is offering a ‘post-dated cheque’. The Council could already adopt the Decision before the referendum vote, with the simple proviso that it will enter into force as soon as the UK notifies the Council that the UK public has voted to stay in the EU. Fourth, the changes will not be specific to the UK, so that other Member States also have a positive reason to approve these amendments. Fifth, the amendments could address both the concerns of business and other concerns as well. Sixth, any use of enhanced cooperation would still be subject to the rules in the Treaty, ie it could not discriminate between Member States or distort the internal market. So the interests of non-participating Member States would be respected.  

 

I have also suggested (in Annex III) an amendment to the Council’s rules of procedure dealing with the specific issue of reviewing CJEU judgments on EU secondary legislation, where a Member State has a particular concern about those judgments. Again, the issue of Member State voting is addressed in the parallel Decision of Heads of State and Government.

 

Finally, I’m not addressing in detail the key issue of ‘immigration’ within the EU, ie free movement of EU citizens, in this blog post. I will come back to that in the near future.

 

 

Annex I

 

The Heads of State or Government of the 28 Member States of the European Union, whose Governments are signatories of the Treaties,

 

Taking note of the concerns of the British people identified by the Prime Minister of the United Kingdom,

 

Desiring to address those concerns in conformity with the Treaties,

 

Having regard to the Conclusions of the European Council of [xx date 2016],

 

Have agreed on the following Decision:

 

Section A

Enlargement and the movement of persons

 

In every forthcoming enlargement of the European Union, the current Member States agree that the free movement of persons from a new Member State will be dependent on a unanimous decision of the Council, which will be taken at the latest once the income of the new Member State concerned is 75% of that of the other Member States of the European Union.

 

Section B

Free movement of persons and social benefits

 

The Heads of State and Government confirm that, in accordance with the jurisprudence of the Court of Justice of the European Union, Member States may deny benefits to nationals of other Member States who are not workers or self-employed persons.

 

[Further provisions addressing Cameron agenda]

 

Note: see the CJEU judgment in the Dano case, discussed here, as well as the Cameron proposals on EU free movement, discussed here.

 

Section C

Powers of national parliaments

 

The Heads of State and Government take note of the Commission’s firm commitment that, building upon the Protocols on national parliaments and on subsidiarity and proportionality attached to the Treaties, it will withdraw any proposal which is opposed by one-third of Member States’ parliaments.

 

Section D

Economic reform

 

The Heads of State and Government [make specific commitments as regards free trade agreements and amendments to EU legislation, or refer to such agreements and treaties which have already been agreed].  

 

Section E

Policing and criminal law

 

The Heads of State and Government reaffirm the United Kingdom’s sovereign power not to opt in to proposals for new legislation on criminal law or policing pursuant to the Protocols attached to the Treaties, and the provisions of the Treaties which require respect for the national identity and legal system of every Member State.

 

They confirm their strong support for the ongoing process of reform of the system established by the European Convention on Human Rights.

 

Note: if the process of ECHR reform is completed before the UK renegotiation of its EU membership, there could be a more specific commitment to give effect to the results of that process, for instance ratifying a new protocol to the ECHR.

 

Section F

Reduction of EU competences

 

The Heads of State and Government reaffirm that In accordance with Article 48 TEU, the competences conferred upon the Union can be reduced. In accordance with Articles 2 and 4 TFEU, the European Union can choose to exercise its competences less intensively in those areas where it shares competence with its Member States.

 

Note: this could be accompanied by specific commitments to repeal or reduce the scope of some existing EU legislation.

 

Section G

‘Ever Closer Union’

 

The Heads of State and Government confirm that the commitment in the Treaties to ‘ever closer union’ has no specific legal effect. It does not require that further competences be conferred upon the Union, or that the Union must exercise its existing competences. Nor, in accordance with Section D, does it constrain the Member States from adopting Treaty amendments which reduce the Union’s competences, or constrain the Union from choosing to exercise its competences less intensively.

 

The concept of ‘ever closer union’ allows for different paths of integration for different countries, allowing those who want to integrate to move ahead, while respecting the wish of those who do not want to deepen any further.

 

Note: the second paragraph is taken from the wording of the June 2014 European Council conclusions.

 

Section H

Economic and Monetary Union

 

The Heads of State and Government confirm that the reference to the euro as the single currency in the Treaties only means that the euro is the currency of some, not all, Member States. It does not in any way prejudice the Protocols which give the United Kingdom and Denmark the possibility of not adopting the euro, or alter the rules governing the extension of the euro to other Member States.

 

Section I

Member States’ voting in Council

 

In the event that Section 3 of the [decision on voting in Council] is applied, and agreement is not found within six months, the Heads of State and government undertake that they will not vote in favour of the proposed act. They may instead consider requesting the Commission to propose enhanced cooperation as regards the proposed act, in accordance with the Treaties. In that context, they agree that this constitutes a case of ‘last resort’ in accordance Article 20(2) TEU.

 

Member States undertake not to vote in favour of any amendment to the [decision on voting in Council] unless all Member States are in favour of that amendment.


Member States undertake to support a request by a Member State in accordance with [Article x] of the Council rules of procedure.

 

 

 

Annex II

Amendment to Council Decision on voting

 

(new) Section 3

Other provisions

 

Article 6a

 

If Members of the Council representing a qualified majority of Members not applying the euro as their currency, defined in accordance with Article 238(3)(b) TFEU, indicate their opposition to the Council adopting an act by qualified majority, on the grounds that it will discriminate against the financial services industry of those Member States, or create an obstacle to free movement of financial services from those Member States, the Council shall discuss the issue.

 

Article 6b

 

If any Member of the Council indicates its opposition to the Council adopting an act by qualified majority, on one or more of the following grounds:

 

(a)    the national parliament of that Member State has expressed serious concern that the proposed act would breach the principle of subsidiarity, in accordance with the Protocol on subsidiarity and proportionality;

(b)   the proposed act would not respect Member States’ national identity, in accordance with Article 4(2) TEU;

(c)    the proposed act would severely impact, in that Member State, upon the Union’s aims of creating a highly competitive social market economy, aiming at full employment and social progress, a high level of protection of the environment, or the promotion of scientific and technological advance, as set out in Article 3(2) TEU; or

(d)   the proposed act, in the field of social policy, would not take account, in that Member State, of the diversity of national practices, or the need to maintain economic competitiveness, set out in Article 151 TFEU, or would impose a constraint that would hold back the creation and development of small and medium-sized undertakings, or affect the fundamental principles or financial equilibrium of social security systems, as set out in Article 153 TFEU,

 

the Council shall discuss the issue.

 

Article 6c

 

Articles 5 and 6 shall apply to this section.

 

Note: Articles 5 and 6 provide for attempts to settle the dispute.

 

Annex III

Amendment to Council rules of procedure

 

Article x

 

If a Member State invokes concerns about a judgment of the Court of Justice of the European Union on EU secondary legislation, on the grounds set out in [Article 6b of the Decision on Council voting], then the Council will ask the Commission to report within six months on whether to propose a change to the legislation concerned.

 

Note: there could be a parallel change to the Commission’s rules of procedure, or an inter-institutional agreement on this point.

 

 

Barnard & Peers: chapter 2, chapter 5, chapter 13, chapter 25

Accountability and Defenestration: The Dalli Saga

 

Dr Marios Costa, Lecturer in Law, City University

The en bloc resignation of the Santer Commission in 1999, against a background of allegations of fraud, maladministration and chronic mismanagement, is still topical, almost two decades afterwards. The European Commission has long been criticised for its administrative inadequacies and for the structural deficiencies in the Union’s system of accountability. There have been a number of reports depicting the Commission as an institution suffering from structural and political irregularities. 

On 11 May 2015 the General Court gave a significant judgment on a legal challenge brought by the former EU health Commissioner, Mr John Dalli, against the Commission. Dalli argued that he was forced to resign, by the then President of the Commission, Jose Manuel Barroso, without given enough time to consider his legal rights. Rather paradoxically, the General Court ruled that Mr Dalli resigned voluntarily and dismissed the action as inadmissible.  

This judgment raises broader constitutional implications. With all due respect, the ruling comes as a surprise and fails to clarify issues in relation to the powers that can be lawfully exercised by the President of the Commission when he loses confidence in any of the members of his Commission. This commentary examines the appropriateness of the recent ruling and concludes that the General Court lost a rather rare opportunity to rule on significant aspects of the Treaty powers granted upon the President of the Commission to sack the individual Commissioners and as a result also fails to remedy the accountability deficits of the Commission.

Facts of the Case

Dalli, the former Maltese Commissioner, was accused of soliciting bribery for the amount of 60 million euro in exchange of seeking to influence future legislative proposals in favour of the tobacco maker Swedish Match. Following a complaint to the Commission from the latter, the EU’s Anti-Fraud Office (OLAF) initiated investigations into the serious bribery allegations. On 15 October 2012, OLAF sent its final report to the Commission highlighting that there was no conclusive evidence that the Commissioner was involved in requesting money from the tobacco manufacturer. Yet, there was some evidence confirming that Mr Dalli was at least aware of the fact that a Maltese entrepreneur was using his name for the purposes of getting financial benefits from the tobacco maker.

On 16 October 2012, Mr Dalli had a meeting with the President of the Commission where he was presented with two already drafted press releases by the Commission: one stating that Mr Dalli decided to resign ‘voluntarily’, whilst the other stated that Barroso requested him to resign by exercising his prerogative powers under Article 17(6) TEU. During their meeting, the President showed the covering letter of the OLAF’s report to Mr Dalli. Nevertheless, access to the full report was refused on the grounds that it was confidential. Towards the end of their meeting, the President made it clear that he was going to force the applicant to resign if he was not going to do so voluntarily. The applicant asked for at least 24 hours to consult a lawyer and to find out what his legal rights were. Barroso said that he could give him no more than 30 minutes. Mr Dalli chose to resign.  

Mr Dalli challenged the legality of the oral decision taken by Barroso to terminate his term of office as the EU Health Commissioner. The Court declared the action as inadmissible since there was no clarity in relation to the act whose annulment was sought. The Court could not distinguish whether Mr Dalli was seeking the annulment of the decision of the President to remove him from office pursuant to Articles 245 and 247 TFEU or the allegedly oral decision taken by Barroso to request Mr Dalli’s resignation under Article 17(6) TEU. In consequence, the action was dismissed as inadmissible.

Legal Framework on the Commissioners’ Accountability

The Treaty is not silent on the issue of Commission accountability.. Article 245(1) TFEU provides that ‘[t]he Members of the Commission shall refrain from any action incompatible with their duties’. Additionally, Article 245(2) TFEU covers the case of compulsory retirement of an individual Commissioner. It reads as follows:

The Members of the Commission may not, during their term of office, engage in any other occupation, whether gainful or not. […] they shall give a solemn undertaking that, both during and after their term of office, they will respect the[ir] obligations […] in particular their duty to behave with integrity and discretion as regards the acceptance […] of certain appointments or benefits.  In the event of any breach of these obligations, the Court of Justice may, […], rule that the Member concerned be, according to the circumstances, either compulsory retired in accordance with Article 247 or deprived of his right to a pension or other benefits in its stead.

Moreover, Article 247 TFEU, which contains the only reference to the personal liability of Commissioners, reads as follows:

If any Member of the Commission no longer fulfils the conditions required for the performance of his duties or if he has been guilty of serious misconduct, the Court of Justice may, on application by the Council acting by a simple majority or the Commission, compulsorily retire him.

Furthermore, Article 234 TFEU provides for another kind of responsibility which the Commission owes to the European Parliament (EP), the ‘censure’ motion, as follows:

If a motion of censure on the activities of the Commission is tabled before it, the EP [and] … is carried by a two-thirds majority of votes cast, representing a majority of the component Members of the EP, the Members of the Commission shall resign as a body.

Finally, pursuant to Article 17(6) TEU, ‘[a] member of the Commission shall resign if the President so requests’.    

Comment and Analysis 

The Dalli judgment is a lost opportunity by the Court to clarify the abovementioned provisions as regards accountability of the EU Commissioners. Surely, any failure by an individual Commissioner to meet the standards described in in Article 245 TFEU, as set out above, can lead to a significant damage of the public image of the Commission.  This is not a hypothetical observation if one looks at the events leading to the collective resignation of the Santer Commission and to the closely related Cresson judgment (Case C-432/04, Commission v Cresson, ECLI identifier: EU:C:2006:455). Consequently, one can understand the concerns of President Barroso to avoid repetition of the discredited Santer Commission in 1999. Barroso’s commitment to high standards of administration is perfectly legitimate. What is not legitimate, however, is the process that led to the resignation of Mr Dalli. Notably, the Commission can only succeed if individual Commissioners operate impartially and independently, without influence from external sources, whether national governments or private individuals and without engaging privately with stakeholders to achieve financial benefits. This is the only way for the Commission to gain confidence from other institutions as well as Member States and citizens.

The Commissioners must meet the highest standards not just on external matters, but on their conduct inside the Commission.  They should perform their duties without division or external influence due to their high ranking and experience in the political arena.  In particular, as already explained above, Article 245(1) TFEU requires Commissioners to be free from any external influence. This point is vital if the Commission is to stay independent of Member States or individuals. But let’s assume for a while that there was enough evidence that Mr Dalli obtained pecuniary advantages from the Swedish tobacco maker. Assume further that the OLAF report concluded that the Commissioner needs to be held accountable for infringing his duty to behave with integrity pursuant to Article 245 TFEU. Is the procedure that forced him to resign acceptable and does it respect the rule of law? Or does it confirm an exercise of abusive behaviour by the President? Forcing an individual Commissioner to resign without allowing him to consult a lawyer and without given the opportunity to see the OLAF report constitutes a manifest violation of his basic right to respond to the evidence against him. Any employment lawyer will agree that this behaviour is a classic case of constructive dismissal. Surely this is not something that can be justified, particularly if this comes from the President of the Commission, an institution supposedly entrusted with the duty to guard and ensure that the rule of law is duly respected.  

Conclusion

Unfortunately, the General Court did not clarify the system of accountability for the Commissioners’ actions. The Court rather simply decided to dismiss the action as inadmissible. Taking into account the OLAF report and also the factual background of the previously decided Cresson case one can realise that a lot of irregularities can take place within the Commission and there is a deficit of any meaningful notion of accountability of the Commission. The General Court has made a wrong decision in refraining to clarify what obligations are mandatory for EU Commissioners as set within the Treaty framework. Additionally, and most importantly, the judgment fails to set the boundaries of the prerogative powers of the Commission’s President to sack the members of his cabinet. Whether or not Commissioners can be held accountable for their decisions has been completely ignored in Dalli.

 

Barnard & Peers: chapter 3

A.T. v Luxembourg: the start of the EU-ECHR story on criminal defence rights

Alex Tinsley,  Legal & Policy Officer (Head of EU Office) at Fair Trials, based in Brussels. Twitter: @AlexLouisT

On 9 April 2015, the European Court of Human Rights (‘ECtHR’) gave judgment in A.T. v Luxembourg. The judgment, which will become final unless referred to the Grand Chamber, in finding a violation of Article 6 of the European Convention on Human Rights (ECHR), develops the principles established in the Salduz v Turkey. At the invitation of Fair Trials International, third party intervener, it also takes into account, for the first time, Directive 2013/48/EU on access to a lawyer in criminal proceedings (the ‘Access to a Lawyer Directive’), a possible indicator of future convergence in this area.

Background

The applicant, A.T. was questioned by police following surrender under a European Arrest Warrant (‘EAW’) (as to the cross-border aspect, see the post-script). On arrival, he demanded a lawyer. Police gave information (it is unclear what) which led him to accept to be questioned without one. He denied the offences. He was then questioned again before the investigating judge, with a lawyer present but (a) without having had the chance to talk with that lawyer beforehand and (b) without the lawyer having had sight of the case file prior to that questioning; again, he denied the offences.

A.T. argued that his defence rights had been breached as he had been denied access to a lawyer. The appeal court, and then the Court of Cassation, rejected this, essentially finding that he had agreed to be questioned without a lawyer and that no obligation arose to remedy any prejudice caused. With local remedies exhausted, A.T. applied to the ECtHR arguing a violation of Article 6 ECHR.

The legal territory: the Salduz principle

The case was decided by reference to the ECtHR’s 2008 judgment in Salduz v Turkey, which established that a person charged with a criminal offence has a right of access to a lawyer ‘as from the first interrogation by police’, and that the rights of the defence are irretrievably prejudiced if incriminating statements made in the absence of a lawyer are used for a conviction (para 55). There are, however, some unanswered questions about this principle, some of which are resolved here.

EU law in the mix

Salduz caused waves of litigation and reform in Europe, including in older EU Member States like the UK and France. Yet, significant problems remain in practice. This is the ECtHR’s summary of Fair Trials’ view on this in A.T. v Luxembourg: ‘many suspects encounter serious difficulties in the exercise of this right, in particular due to legal or practical restrictions on the right of access to a lawyer, a prevalence of supposed ‘waivers’ of the right whose reliability is questionable, and ineffective remedial action by the courts to repair violations’ (at 59).

With Member States required to cooperate on the basis of mutual trust, such concerns are problematic. So, in 2009, the EU adopted a ‘Roadmap’, a ste-by-step plan to adopt directives on key defence rights under the new legal basis of Article 82(2)(b) of the Treaty on the Functioning of the EU, in order to strengthen mutual trust. After Directive 2010/64/EU on the right to interpretation & translation and Directive 2012/13/EU on the right to information, came the Access to a Lawyer Directive (together, the ‘Roadmap Directives’), setting minimum standards on access to a lawyer.

These Directives mostly attempt to ‘codify’ ECtHR jurisprudence, but in doing so create new standards and – as for the issue at stake here – in some places may anticipate the case-law. This is significant. As Fair Trials argued in this case, the ECtHR can and does have regard to such measures when developing its case-law, so the presence of the Roadmap Directives raises significant possibility of cross-fertilisation between EU law and the ECHR. A.T. appears to be a first example of this.

The A.T. v Luxembourg judgment

You cannot waive a right that you do not have

The judgment clarifies that since there was in fact no legal right to a lawyer at the initial questioning – this was the case at the time in Luxembourg for the narrow category of persons questioned following surrender under a European Arrest Warrant (EAW) – the purported ‘waiver’ of that right was inoperative (at 71): you cannot waive an entitlement which the law does not confer upon you.

If access to a lawyer is denied, a remedy may be needed even in absence of a confession

That being established, the ECtHR found that the courts had infringed Article 6 ECHR by relying on the statements A.T. made in that context and not taking any remedial action to repair the prejudice caused by the restriction on A.T.’s right to a lawyer (at 72), e.g. excluding his statements (see 73).

It is worth noting, in that regard, that Luxembourg had argued that no violation of Article 6 arose because A.T. had denied the offences (see 55). The logic is that if you don’t confess, the absence of a lawyer does not make any difference. Fair Trials had argued for a more protective line (see 61). Relying on the Article 12 of the Access to a Lawyer Directive, which refers to ‘statements’, not simply confessions, we noted that a person might compromise themselves in other ways, e.g. saying too much or too little, speaking confusedly under pressure, damaging their credibility vis-à-vis other witnesses etc. (see the actual intervention, paragraph 41). The ECtHR followed this line, pointing out that A.T. had ‘changed his story’ during the proceedings and that his early statements, though denials of the allegations, were held against him in that way (at 72). This is a useful addition to a line of cases which had so far only dealt with mostly with total silence, flat denials or clear confessions.

Access to a lawyer includes a right to prior consultation before questioning

The judgment is, though perhaps most notable for its emphasis on the importance of a consultation between lawyer and client prior to questioning (at 86). This is a new development of the case-law, complementing Navone v. Monaco and other cases (79) establishing that there be should assistance during questioning. The legal assistance provided to A.T. during the questioning, without such a prior opportunity, was not ‘effective’ and so did not meet the requirements of Article 6 ECHR (at 89).

Roadmap aficionados will note that in so finding, the ECtHR took account of Article 3(3)(a) of the Access to a Lawyer Directive which articulates this requirement in black and white. This is the first time one of the Roadmap Directives has been referred to in the interpretation of the ECHR, and it raises questions as to possible convergence and how the ECtHR is going to react to rulings from the Court of Justice of the EU (‘CJEU’) on the Roadmap Directives (see comments below).

Access to the case file prior to questioning?

On one point, however, the ECtHR will have disappointed some people. Lawyers in Spain, France and Luxembourg in particular have been arguing for some time that legal assistance is not effective if the lawyer does not have access to the case file prior to questioning, in order to advise the client on an informed basis (more here). The A.T. case gave the ECtHR a chance to say whether such a right arose under the ECHR, and it – or this Chamber, at least – has taken a negative view.

What remains now on this point is Article 7(1) of Directive 2012/13/EU, requiring access to documents which are essential for challenging detention. The Paris bar reckons this is a key to the police case file prior to questioning (see their pleading). The conservative view, which seems closer to the text of the provision, sees this as relevant only to judicial review of detention, and it appears the ECtHR shares the view (see 80). But bearing in mind that (as in Luxembourg) the questioning may be done by a judge who also makes a first decision on detention, the broader view is credible. It seems likely that there will be further instalments in this particular discussion.

Disposal: ensure a fair (re)trial next time

Disinformation about human rights abounds, so it is worth reminding oneself what such an ECtHR judgment actually entails. A.T., accused of serious offences, does not now walk free. The ECtHR did not order his release (it cannot), or award damages. The Chamber, under ECtHR President Dean Spielmann, simply indicated that Luxembourg should give him a retrial compliant with Article 6 ECHR (97). Prosecutors had other evidence, besides the statements made without a lawyer, with which to prosecute, so their case is not lost. The retrial should simply be fair, in line with ECHR and EU norms.

Comments

Interaction between EU law and ECHR has looked unappealing of late. Not long ago, in Tarakhel v. Switzerland, found for the second time that execution of the EU’s ‘Dublin’ system for return of asylum-seekers to other Member States would infringe human rights protected by the ECHR. The CJEU, apparently miffed, then issued its alarming comments in Opinion 2/13, stating that, in obliging Member States to question each other’s compliance with human rights despite EU law obligations of mutual trust, the EU’s proposed accession to the ECHR would interfere with the EU legal order.

For 50 years, the CJEU has dealt with individuals invoking Treaty rights in order to defeat protectionist trade rules, enhance free movement and bring countries closer together in ever closer union. Now all of a sudden the countries are trying to cooperate in justice and home affairs, the individual is invoking rights to resist this, and the CJEU appears concerned. If one adopts this rationale, the issue can be confined to the cross-border sphere.

In the internal context, where cooperation interests are not at issue, a more progressive trajectory can be envisaged. When the CJEU’s Elgafaji judgment recognised that Article 15(c) of the Qualification Directive was intended to provide an additional layer of protection against refoulement for those escaping situations of indiscriminate violence, the ECtHR quickly responded in Sufi and Elmi v. UK that it was ‘not persuaded’ the standard under Article 3 ECHR was any lower, going a step further than it had in earlier cases. One can discern an element of upward competition here.

What will happen with the Roadmap Directives remains to be seen. The point decided in A.T. v Luxembourg – that one should have a chance to talk with one’s lawyer before being questioned – appears uncontroversial and would have been adopted anyway by the ECtHR. But nevertheless, it offers an example of EU law setting a standard, which the ECtHR then finds exists in the ECtHR too. It will, in that light, be interesting to see how the CJEU will treat new questions without obvious answers in the existing-case-law of the ECtHR, and what the reaction will be from Strasbroug.

The first case on the Roadmap Directives (Case C-216/14 Covaci) is pending, and the comments in the Advocate General Bot Opinion of 7 May 2015 are interesting from that perspective: these ‘minimal rules’ should be seen as ‘irreducable’ fundamentals (32); they should be approached expansively, as strengthening defence rights will strengthen judicial cooperation (33); and, while the Roadmap Direcives respect national legal cultures, national procedures will have to ensure their useful effect or face striking down by the national courts, with the CJEU on standby to give preliminary rulings (34). His conclusions on the specific case require a separate blog post, but this proposed interpretative logic is notable: it suggests, as we noted last year, that the counterpart to CJEU’s robust defence of mutual trust could be a robust approach to the Roadmap Directives designed to strengthen that trust. If the CJEU’s rulings are expansive, the ECtHR might then be slow to aim any lower, with consequent impact outside the EU. But here one goes further into the realm of speculation.

Of course, for anything to happen, lawyers need to put the issues before the courts. Working with the Legal Experts Advisory Panel (‘LEAP’), our pan-EU criminal law network, we offer free legal training, designed to share ideas across jurisdictions and encourage innovative litigation. The ECtHR listened to LEAP in A.T., and we can help in national cases too (see our comparative law opinions in cases before the Swedish Supreme Court (here) and Belgian Court of Cassation (here)). The idea is to participate in the developing EU-ECHR story and use it as an opportunity to improve defence rights across Europe. If you would like to get involved, contact Fair Trials’ Legal & Policy team.

Another version of this post appeared on the Fair Trials website.

Barnard & Peers: chapter 25

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