Sunday 13 March 2016

Europe’s multi-layered human rights protection system: challenges, opportunities and risks

Lecture at Waseda University Tokyo, 14 March 2016

Jörg Polakiewicz

Professor at the Europainstitut of the University of Saarbrücken and 
Director of Legal Advice and Public International Law (Legal Adviser), Council of Europe.[1]


It is a particular pleasure for me to speak today at the prestigious Waseda University in Tokyo to distinguished scholars from all over Japan. I would like to thank in particular Professor Koji Tonami and my old friend Professor Kaoru Obata without whose support my participation today would not have been possible.

Coming to Japan, I am always impressed by the depth and breadth of knowledge among you about our complex system of fundamental rights protection. It is a truly crowded house”.[2] Citizens and legal practitioners are confronted with different binding texts to be applied sometimes simultaneously, using different standards, structures, terminology and qualifications. These are domestic law, including in most cases the national constitution’s fundamental rights, 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, the President of the German Bundesverfassungsgericht, 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 should be rejected.

The variety of actors offers unique opportunities for mutual enrichment and synergies. It has been argued that competition between different jurisdictions is beneficial for the individual because the various actors tend to enhance protection rather than restricting it. At the same time, the large degree of overlap between the various legal instruments occasionally generates tensions between their respective ultimate interpreters. Different approaches are mutually enriching as long as the various actors are conscious of their respective roles and base their interaction on a set of shared principles and values.

As we can learn from ancestral Japanese legal culture, the ultimate aim should be harmony and mutual enrichment for the benefit of the individual. Already in 604 AD, Prince Shotoku’s (Shôtoku Taïshi - 聖徳太子) Seventeen-Article Constitution (Jushichijo Kenpo - 憲法十七条) declared that “harmony should be valued and quarrels should be avoided.

In practice, we indeed witness active dialogue and a high degree of consensus among European and highest 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 to some extent 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) of the Grundgesetz). 

In today’s intervention, I would like to share with you some thoughts about the respective roles of the ECtHR and the CJEU and their interaction. In that context, I shall also analyse the prospects of the most ambitious project to fully integrate the two systems, the accession by the EU to the ECHR following CJEU opinion 2/13.

European Court of Human Rights

The ECHR is an international treaty providing for the effective protection of a certain number of rights, not a legal order in the same sense as that of the European Union. The Convention came into existence as a means to bind Europe to fundamental principles with a view to deterring any recurrence of the horrors of the Second World War. However, today, more than sixty years later, its function cannot be reduced to that sole purpose. As a “first step for the collective enforcement of certain of the rights stated in the Universal Declaration”,[7] the ECHR 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.”[8]

The overall success of the Convention system depends on the ECtHR’s recognised authority to define common minimum standards which are effectively observed by all High Contracting Parties. 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 quality of judges is crucial for the ECtHR to enjoy such standing and for a consistent and rigorous development of its case law. Only judges with the necessary breadth and depth of professional experience can in the eyes of their pairs in supreme and constitutional courts provide the ECtHR with the required legitimacy to effectively exercise its functions under the Convention.

In recent years important measures have been taken to improve the (s)election process. Already in 2010, the Committee of Ministers created the Advisory Panel of Experts for Election as Judge to the ECtHR[9] and in 2012 it adopted Guidelines on the selection of candidates for the post of judge at the ECtHR. In 2015, the Parliamentary Assembly transformed its Sub-Committee on the Election of Judges into a full committee. The creation of the Panel was part of the implementation of the Interlaken Declaration of 19 February 2010 which had called on the High Contracting Parties to ensure “full satisfaction of the Convention’s criteria for office as a judge of the Court, including knowledge of public international law and of the national legal systems as well as proficiency in at least one official language.” The Panel addresses its views primarily to the High Contracting Parties and functions independently from the PACE. However, by providing that the Panel’s views are also transmitted to the PACE, resolution CM/Res(2010)26 makes it clear that the PACE and in particular its Committee on the Election of Judges should benefit from the Panel’s expertise to the fullest extent possible. Taking full account of the Panel’s views does not put into question the PACE’s prerogatives for the election of judges under the Convention. The Panel merely seeks to ensure that the PACE operates its choice among three candidates who all fulfil the requirements of article 21 (1) ECHR.

Despite these improvements, the (s)election process of ECtHR judges remains a matter of concern. As one academic has put it, “[t]he combination of high requirements, thorough testing and ultimately political decision has created a bit of a deadlock… The stated criteria and the profile of the candidates desired are out of the sync with the procedure that is supposed to lead to their identification.[10]

In December 2015, the Steering Committee for Human Rights (“CDDH”) which brings together governmental experts from all 47 member states, presented a report on the longer-term future of the ECHR system. The report highlights a possible review of the election procedure in general and national selection procedures in particular as issues for immediate follow-up.[11] This report is currently being considered by the Committee of Ministers which will have to decide what further measures may be required in this field.

A major challenge for the ECtHR is to define common minimum standards while respecting the plurality of national and supranational fundamental rights provisions. From the intergovernmental conferences on the future of the ECtHR, held in İzmir (2011), Brighton (2012) and Brussels (2015), 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 must 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”.[12]

Protocol no 15 introduces the subsidiarity principle and the margin of appreciation doctrine in the Convention’s preamble, using the following wording:

Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention. [13]

During the drafting process, the formulation chosen had been criticised by the ECtHR and NGOs.[14] In a letter dated 23 November 2012 addressed by the President of the Court to the Chairman of the CDDH, the ECtHR urged the CDDH to include the words “as developed in the Court’s case-law”, considering that without them, the formulation would be “incomplete as a reference to a concept that … varies widely in its relevance and consequence from one context to another …. The margin of appreciation is not … a given or a constant in every case.[15] Indeed, the ECtHR has held that that margin is virtually inexistent when it comes to certain non-derogable rights such as the right to life, prohibition of torture, prohibition of slavery and forced labour. Having carefully considered the ECtHR’s comments, CDDH decided nevertheless by consensus to retain the formulation and to amend only the explanatory report to reflect the ECtHR’s concerns, indicating that the preamble paragraph is “consistent with the doctrine of margin of appreciation as developed by the Court.[16] Eventually, both the ECtHR and the PACE gave positive opinions on the draft protocol.

In my view, there is indeed no contradiction in terms, maybe in emphasis between these two positions. The new preamble provision expressly recognises, in line with ECtHR case-law, that margin of appreciation in implementing the Convention goes hand in hand with European supervision. The ECtHR has consistently emphasised the duty to respect the rights as interpreted by the Court, while the new preamble provision refers to the margin that states enjoy when securing the rights effectively at national level. As regards torture and inhuman or degrading treatment or punishment, the Convention contains certainly an absolute prohibition, but some margin exists when it comes how to ensure that this prohibition is effectively secured, in law and practice. Article 3 ECHR does not impose a harmonised standard on how exactly to define torture in criminal law, on penalties or standards of proof.

Similarly, when it comes to the weighing of competing rights against each other and public interests, different solutions may be tolerable in the context of different legal systems. The ECtHR must not become a court of fourth instance substituting its evaluation of competing rights to that of national courts. In domestic law, 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. It is for the ECtHR to acknowledge the national courts’ margin of appreciation while ensuring that solutions found at national level remain within the ‘priority principles’ contained in the Convention itself.[17]

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 human rights standard. The Court’s core business is to deliver judgments on cases raising serious or new human rights issues, according to the ECtHR’s 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.[18]

Court of Justice of the European Union

While CJEU judges frequently declare in public lectures “we are not a fundamental rights court”, it is equally true that 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.[19] In a recent opinion regarding fundamental-rights guarantees in mutual recognition proceedings, Advocate General Yves Bot explicitly invited the CJEU to behave as a human rights court.[20]

The CJEU 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 recent judgments on data protection, such as data retention,[21] search engines (Google case)[22] and safe harbour (Schrems case).[23] Declaring EU legal acts 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 CJEU takes fundamental rights and the principle of proportionality seriously. Regarding privacy protection, the cross-fertilisation of the two European Courts is particularly visible. Following Schrems, the ECtHR adopted a similar reasoning in the Grand Chamber judgment Zakharov v Russia, outlawing mass surveillance systems in even more explicit terms: “… a system, such as the Russian one, which enables the secret services and the police to intercept directly the communications of each and every citizen without requiring them to show an interception authorisation to the communications service provider, or to anyone else, is particularly prone to abuse. The need for safeguards against arbitrariness and abuse appears therefore to be particularly great.[24]

CJEU fundamental rights’ 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. In particular since the EU Charter became binding under EU law, there is a trend in the CJEU case law to focus exclusively on the Charter. The CJEU’s President Koen Lenaerts described “the Charter as a shadow of Union law; as an object shapes the contours of his shadow, Union law defines the contours of the Charter.”[25]

The fact that the CJEU focuses on the EU Charter is as such not objectionable. It is after all the EU’s own fundamental rights catalogue. What can be objected to would be an approach to treat the EU Charter as the only source of fundamental rights within the EU’s legal order, to the exclusion of all other rights, be they of international or national origin. It has been observed that the CJEU interprets fundamental rights in isolation from the jurisprudence emerging from other human rights instruments, including the ECHR.[26] This is rather surprising given that the Charter itself prescribes that those Charter rights that correspond to rights guaranteed by the ECHR are to be given the same meaning and scope as those laid down by the ECHR (article 52 (3) of the Charter). It is encouraging that the CJEU reaffirmed these important principles in a recent judgment.[27]

The CJEU declines, however, to substantially enter into arguments drawn from the ECHR and the Strasbourg Court’s case-law, arguing that the ECHR “does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into European Union law. Consequently, European Union law does not govern the relations between the ECHR and the legal systems of the Member States, nor does it determine the conclusions to be drawn by a national court in the event of conflict between the rights guaranteed by that convention and a rule of national law.[28] This approach is in rather sharp contrast to the ECtHR’s endeavour to choose wherever possible an interpretation of the ECHR that is not only compatible with, but even conducive to a proper application of EU law by national authorities. The ECtHR held for example that failure to provide reasons for refusing to submit a preliminary question to the CJEU amounted to a violation of article 6 (1) ECHR[29] or refused to apply the presumption of equivalent protection where national courts failed to use the preliminary reference procedure.[30]

The CJEU faces a constant challenge to successfully navigate between the Scylla of a dysfunctional Union and the Charybdis of fundamental rights-based centralisation.[31] 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, the CJEU risks not only isolating itself from the ongoing cooperative dialogue between highest European and national courts and tribunals, but also provoking the latters’ resistance.

There is increasingly converging national case law emphasising the need for respect of constitutional identities in fundamental rights protection over conflicting Union law. Examples can be found in decisions of constitutional and supreme courts of Cyprus, the Czech Republic, Denmark, France, Germany, Ireland, Italy, Latvia, Poland and Spain.[32] 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.[33] 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.[34] 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.[35]

In a judgment of 15 December 2015, the Bundesverfassungsgericht applied these principles holding that effective fundamental rights protection under the Basic Law (“Grundgesetz” – “GG”) may require disrespect of EU law if this is indispensable to protect the constitutional identity guaranteed by article 79 (3) GG.[36] The applicant before the Bundesverfassungsgericht, an US citizen, had been sentenced to 30 years of imprisonment in Italy, in his absence and without proper notice or representation by a lawyer. The German Higher Regional Court (Oberlandesgericht) was prepared to allow his surrender from Germany to Italy, relying on a European arrest warrant (EAW) and considering it to be sufficient that a new evidentiary hearing for him in Italy is at least not impossible.

The case thus concerned fundamental rights guarantees in EAW procedures, the very same issue at the centre of the Melloni judgment in which the CJEU ruled that once the EU had adopted a common fundamental rights standard, EU member states would be no longer entitled to apply their own higher standards, even when provided for in the constitution, because this would undermine the ‘primacy, unity and effectiveness’ of EU law.[37]

Did member states ever intend to give such a far-reaching meaning to the EU Charter? The Charter itself contains no specific rule about which rights should have precedence in situations where Charter rights and rights guaranteed under national constitutions or the ECHR or national apply in parallel.[38] It is striking that even truly federal states like Austria, Germany, Switzerland or the United States of America tolerate some flexibility in terms of fundamental rights standards, without that being considered as a threat to the ‘primacy, unity and effectiveness’ of the respective federal constitution.

Insofar as the Bundesverfassungsgericht stresses that it will protect Germany’s constitutional identity, which it considers to be “integrationproof” (integrationsfest), even against conflicting EU law, it sends the clear message to the CJEU’s that it is not willing to accept unconditional precedence of EU law to the detriment of core constitutional guarantees. The Bundesverfassungsgericht’s decision is in line with the Spanish Constitutional Court’s decision in Melloni. The Spanish court eventually lowered the level of protection of the right to a fair trial, but on the grounds of constitutional law, highlighting that the CJEU judgment was merely “a very useful reference”, not a binding decision.[39] To some extent, the Bundesverfassungsgericht went even further than the Spanish Constitutional Court, relying not only on procedural, but also on substantial grounds, in this case the principle of individual guilt (Schuldprinzip). Under this principle, any criminal sanction presupposes that the offence and the offender’s guilt are proven in a procedure that complies with the applicable procedural rules. The principle of individual guilt is rooted in the guarantee of human dignity enshrined in article 1 (1) GG and must be guaranteed also in the context of EAW procedures.

The Bundesverfassungsgericht thus reaffirms, alongside many sister courts all over Europe, the role of constitutional courts in EU law matters, an attitude which should not be interpreted as a sign of nationalism. At a time when measures taken at EU level affect more than ever before human rights (for example in policy fields such as asylum, police cooperation, data protection, fight against terrorism, migration, or the euro), it would be paradoxical if those courts were to abdicate their role as guardians of the national constitution.

It seems that the CJEU is increasingly aware of the the federal temptation”, namely the temptation to use fundamental rights to transform substantially the Union and its legal order into a federal one by its own and only initiative.[40] Various CJEU judgments, for example Omega,[41] Ilonka Sayn-Wittgenstein[42] or UPC Telekabel Wien GmbH,[43] show respect for the plurality of constitutional systems in Europe, developing ideas quite similar to the ECtHR’s margin of appreciation doctrine. In the Omega case, the CJEU acknowledged explicitly the existence of a large discretion 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.[44] 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.[45]

The fact remains, however, that the mere existence of two different fundamental rights catalogues, to be interpreted by two distinct courts operating in very different contexts, risks undermining legal certainty. It may ultimately lead to the existence of two sets of standards in a Europe where membership in the EU and the Council of Europe increasingly overlaps. The words pronounced by the then President of the ECtHR Luzius Wildhaber on 7 March 2000 in front of the Committee of Ministers of the Council of Europe, encapsulated the prevailing concern at the time, namely “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.” The Committee of Ministers, on which all EU countries are represented, accepted this position unreservedly.[46]

Indeed, already then nobody had any doubts about the EU’s capacity to develop its own fundamental rights catalogue, going even further in some respects than protection offered under the ECHR. However, “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.[47]

This is why already the Laeken Declaration (2001) and the subsequent EU Convention (2001-2003) and Intergovernmental Conferences (2003 and 2007) established a junktim between the incorporation of the EU Charter into the Treaties and accession of the EU to the ECHR.

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

EU accession to the ECHR – squaring the circle?

Following the entry into force of the Lisbon treaty in December 2010, hopes for a rather speedy accession process were high. However, on 18 December 2014 the CJEU delivered Opinion 2/13[48] on the compatibility with EU law of the draft agreement on accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms.[49]. The CJEU concluded that the accession agreement is not compatible with EU law. While some amendments, required by the CJEU, are rather technical in nature and may be acceptable, others concern central issues such as the need to coordinate the EU Charter with the ECHR, EU legislation in the area of justice and home affairs (“JHA”) or the EU’s common foreign and security policy.

Though it is very encouraging to hear from the Vice-President of the European Commission that he “passionately believe[s] in the need for the European Union to accede to the Convention”,[50] it is equally true that so far the Commission has not been able to present concrete proposals for the way forward. Governmental experts from all 47 Council of Europe member states therefore concluded in December 2015 in their report on the longer-term future of the ECHR system, “[a]t this time, it remains to be seen when, how and if accession will be completed.”[51]

It is quite surprising to hear from a CJEU judge that “the accession agreement constitutes a full of improvisation work without any precedent in international law.[52] This agreement had been painstakingly negotiated and approved by experts from 47 European states and the European Commission who were fully aware of the EU and international law implications. Academic experts generally acknowledge that “[t]he provisions of the Draft Accession Agreement on attribution and responsibility are generally in line with the existing case law of the ECtHR and the work of the ILC on the topic of international responsibility.[53] Like in all international negotiations, the solutions eventually found were sometimes the result of difficult compromises, striking a fair balance between accommodating “the specific characteristics of the Union and Union law[54] and preserving the essential features of the Convention system, such as the authority and prerogatives of the ECtHR, the equal treatment of High Contracting Parties and, last but not least, the subsidiary nature of the protection mechanism. From the outset, there was agreement between all the negotiating parties that amendments and adaptations should be limited to what is strictly necessary for the purpose of the accession of the EU as a nonstate entity.

What is particularly striking in Opinion 2/13 is the absence of any argument referring to the constitutional significance of article 6 (2) TEU which after all formulates an obligation to accede. Instead, the CJEU confirms its previous case-law, in particular the above-mentioned Melloni judgment, insisting that ‘the unity, primacy and effectiveness of EU law’ must not be affected by the EU accession. As article 53 ECHR allows High Contracting Parties to the ECHR to apply higher standards of protection than those guaranteed by the ECHR, the CJEU requires “that provision should be coordinated with Article 53 of the Charter (…) so that the power granted to member states by Article 53 of the ECHR is limited — with respect to the rights recognised by the Charter that correspond to those guaranteed by the ECHR — to that which is necessary to ensure that the level of protection provided for by the Charter and the primacy, unity and effectiveness of EU law are not compromised.”[55] This assertion came as a surprise even for many EU lawyers because it is difficult to understand how ratification of the accession agreement can resurrect powers that EU member states have already lost under the EU treaties. Moreover, article 52 ECHR is not about powers or competences. It is a rule of construction that purports to limit the pre-emptive effect of the remaining provisions of the Convention. It does not grant the High Contracting Parties any right they did not already have prior to concluding the ECHR.

More fundamentally, the very utility of using the ‘high’ and ‘low’, maximal and minimal nomenclature can be questioned in the context of human rights protection.[56] Human rights entail choices as to the appropriate balance between the interests of individuals against those of other individuals or the community. The quantification of levels of protection based on generally worded provisions of fundamental rights catalogues proves often difficult. Ronald Dworkin observed pertinently that “it is very difficult to think of liberty as a commodity.[57] The clauses imply that human rights are quantifiable and may easily be assessed in terms of ‘maximum’ versus ‘minimum’ protection.[58]

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,[59] the right to respect the decision to become (or not to become) a parent,[60] or the right to property versus the right to strike. In such multipolar relations, extending the protection of one right or attaching more weight to it will inevitably have the consequence of restricting the right of others. Where competing rights are at stake, it should be considered to apply the concept of “practical reconciliation” (“praktische Konkordanz”), originally developed by the German constitutionalist, Konrad Hesse.[61] It seeks to strike a balance, trying to satisfy competing rights, so that the limitation on the one right is equal to the limitation on the other, taking into account the circumstances of each case.

One of the declared purposes of accession is to close the existing gaps in legal protection by giving European citizens the same protection vis-à-vis acts of the Union as they presently enjoy vis-à-vis all EU member states. In that context, the CJEU’s objection against the ECtHR’s human rights scrutiny in JHA’s matters appears particularly problematic. The CJEU argues that such scrutiny would be incompatible with the obligation of mutual trust between EU member states and accession liable to upset the underlying balance of the EU to undermine the autonomy of EU law.[62] This argumentation is questionable even from an EU law perspective.[63] While the ‘values’ of the EU – which are a condition for EU membership and disrespect of which can lead to suspension of a member state in serious cases – include human rights and the rule of law, there is no mention of the primacy of EU law, of mutual trust in JHA matters, or of divesting any international court from exercising jurisdiction over EU-related matters.

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 2015 alone, the ECtHR found 103 violations of article 3 ECHR by EU member states,  61 violations of article 5 ECHR, and  154 violations of article 6 ECHR.[64] 

Under the EU treaties, mutual recognition is merely a ‘principle’ to be used to facilitate judicial cooperation among EU member states. It should not be weighed against, or, even worse, used to escape compliance with legal obligations to respect fundamental rights under EU primary law. Respect for fundamental rights constitutes a key component of the area of freedom, security and justice, as explicitly foreseen by article 67 (1) TFEU. It is noteworthy that the EU’s own Fundamental Rights Agency advocates the use of fundamental rights-based refusal grounds in EU legislation providing for mutual recognition.[65] Even more significantly, in a recent JHA legal instrument, Directive 2014/41/EU on the European Investigation Order, non-compliance with fundamental rights was explicitly provided for as a refusal ground (article 11(1)(f)).

In the N.S. case, the CJEU was prepared to give precedence to fundamental rights over the obligations of member states to comply with the provisions of the Dublin II Regulation regarding the return of asylum seekers to their first country of entry into the EU. The CJEU recognised that member states must not return asylum seekers when systemic deficiencies in the asylum procedure and in the reception conditions of the country to which they would be returned result in a real risk of asylum seekers being subjected to inhuman or degrading treatment within the meaning of article 4 of the Charter.[66] As the ECtHR Grand chamber judgment in M.S.S. v Greece and Belgium eleven months earlier,[67] the CJEU found that there existed such systemic flaws in Greece.

It is highly significant that the Bundesverfassungsgericht reached in the EAW case the same conclusion as the ECtHR in Tarakhel,[68] namely that national authorities have a duty to ensure in every individual case that the rights of the requested person are respected.[69] For national constitutional and supreme courts, it is normal practice to review whether the unfettered application of ordinary legislation violates fundamental rights in individual cases. Where necessary, such legislation can be disregarded or given a restrictive interpretation in compliance with fundamental rights. This applies not only to cases of systemic or structural, but also to individual instances of human rights violations. Two cases currently pending before the CJEU again address the question to what extent fundamental rights may be opposed to requests for surrender under the EAW.[70] Let us hope that judicial dialogue will bear its fruits.

These judgments show at the same time that even without accession JHA issues are already before the ECtHR. The ECtHR will soon deliver a Grand Chamber judgment in a case concerning the recognition of civil judgments within the EU.[71] 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 indviduals concerned. Exempting JHA matters from the scope of the external control would be a cut-back of existing ECHR jurisdiction in one of the core areas where effective fundamental rights protection is most needed.


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. The European multilevel system of rights protection is composed of layers of protection, that complement each other, instead of layers that are neatly separated according to their origin (constitutional, EU or international). Uniformity 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 the rights of every human being, virtuous and unvirtuous alike. The European system 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 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.

Barnard & Peers: chapter 9

[1] Any views expressed in this article are those of the author and do not necessarily reflect the official position of the Council of Europe.
[2] P. Cruz Villalón ‘Rights in Europe – The Crowded House’ King’s College London – Working Paper 2012.
[3] A. Voßkuhle ‘Pyramid or Mobile? – Human Rights Protection by the European Constitutional Courts’ Opening of the Judicial Year 2014 at the European Court of Human Rights Strasbourg, 31 January 2014.
[4] M.P. Maduro ‘Contrapunctual Law: Europe's Constitutional Pluralism in Action’ in N. Walker (ed) Sovereignty in Transition (Oxford, Hart, 2003), 501-537.
[5] X. and Others v. Austria, judgment (GC) of 19 February 2013 (19010/07).
[6] BVerfG, 19 February 2013 - 1 BvL 1/11, 1 BvR 3247/09.
[7] ECHR, preamble para. 4.
[8] 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? And other essays on European integration (Cambridge University Press 1999), 107-116.
[9] CM/Res(2010)26 of 10 November 2010.
[10] M Bobek ‘Epilogue’ in: M. Bobek (ed.) Selecting Europe's Judges - A Critical Review of the Appointment Procedures to the European Courts (Oxford University Press 2015), at 305.
[11] CDDH(2015)R84 of 11 December 2015, paragraphs 104 and 106.
[12] Cruz Villalón, op. cit. supra note 2, at 9-10.
[13] Article 1 of Protocol no. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms. The Protocol will enter into force once it has been ratified by all High Contracting Parties.
[14] For the NGO position, see Joint Preliminary Comments on the drafting of Protocols 15 and 16 to the ECHR, doc. DHGDR(2012)008. See comprehensively on the drafting process of Protocols nos. 15 and 16: D. Milner ‘Protocols no. 15 and 16 to the European Convention on Human Rights in the context of the perennial process of reform: a long and winding road’ 17 ZEuS 20 et seq. (2014).
[15] See Comment from the European Court of Human Rights on the proposed amendment to the Preamble of the ECHR, attached to a letter from the Court President to the CDDH Chairperson of 23/11/2012, doc. #4160804.
[16] Explanatory report to Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms (CETS 213), para. 7.
[17] See S. Greer The European Convention on Human Rights. Achievements, Problems and Prospects (Cambridge University Press 2006), in particular 193 et seq. and 323 et seq.
[18] Intervention before the Committee of Ministers, at the eve of the Brighton conference, on 23 February 2012.
[19] 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).
[20] Cases C404/15 Pál Aranyosi and C659/15 PPU Robert Căldăraru, opinion  of 3 March 2016, para. 175.
[21] Joined Cases C-293/12 and C-594/12, Digital Rights Ireland and Seitlinger and Others, 8 April 2014.
[22] Case C-131/12, Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (13 May 2014).
[23] Case C362/14, Schrems v Data Protection Commissioner, Digital Rights Ireland Ltd (6 October 2015).
[24]  Judgment of 4 December 2015, para. 270.
[25] K. Lenaerts ‘In Vielfalt geeint – Grundrechte als Basis des europäischen Integrationsprozesses’ 42 EuGRZ 353, at 354 (2015): „… handelt es sich bei der Charta um den Schatten des Unionsrechts. So wie ein Gegenstand die Konturen seines Schattens formt, bestimmt auch das Unionsrecht die ,Konturen‘ der Charta.“
[26] G. De Búrca op. cit. supra note 19, at 171.
[27] CJEU, C-601/15 PPU, J.N. v Staatsscecretaris van Veiligheid en Justitie (15 February 2016). See also J. Kokott & C. Sobotta ‘Protection of Fundamental Rights in the European Union: On the Relationship between EU Fundamental Rights, the European Convention and National Standards of Protection’ 34 Yearbook of European Law 60-73 (2015) who argue at 73 that the “jurisprudence of the ECtHR in Luxembourg has been, and continues to be, extremely important for the fundamental rights jurisprudence of the CJEU in Luxembourg. Strasbourg provides the most important guidance in this area, and there are very strong incentives for Luxembourg to avoid any potential disagreement on fundamental rights.“
[28] Case C-617/10, Åklagaren v. Åkerberg Fransson (26 February 2013), para. 44. See also C-571/10, Kamberaj (24 April 2012),  para. 62; C398/13 P, Inuit Tapiriit Kanatami/Commission, para. 45 (3 October 2013).
[29] Dhahbi v Italy, judgment of 8 April 2014 (no. 17120/09).
[30] Michaud v France, judgment of 6 December 2012 (no. 12323/11), para. 115.
[31] A. von Bogdandy ‘Protecting the essence of fundamental rights against EU Member states’ 49 Common Market Law Review, No. 2 April 2012, 519.
[32] 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) and the German Federal Constitutional Court’s Order of 15 December 2015 - 2 BvR 2735/14, marginal note 47.
[33] 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.
[34] Ibid.
[35] Pham v Secretary of State for the Home Department [2015] UKSC 19 (25 March 2015).
[37] C-399/11 Stefano Melloni v Ministerio Fiscal (26 February 2013). See also C-206/13 Cruciano Siragusa v Regione Sicilia – Soprintendenza Beni Culturali e Ambientali di Palermo (6 March 2013).
[38] F. Kirchhof ‘Nationale Grundrechte und Unionsgrundrechte: Die Wiederkehr der Frage eines Anwendungsvorrangs unter anderer Perspektive’ (2014) Neue Zeitschrift für Verwaltungsrecht 1537-1541.
[40] Cruz Villalón, op. cit. supra note 2, at 11
[41] Case C-36/02, Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I 09609.
[42] C-112/00, Schmidberger v Österreich, [2003] ECR I 05659; C-36/02, Omega Spielhallen, [2004] ECR I 09609; Case C-438/05 Viking [2007] ECR I-10779-10840; Case C- 341/05 Laval [2007] ECR I-11767-11894; Case C-208/09 Ilonka Sayn-Wittgenstein v. Landeshauptmann von Wien [2010] OJ 2011/C 63/06.
[43] C - 314/12, UPC Telekabel Wien GmbH (27 March 2014).
[44] C-390/12, Pfleger, Autoart (30 April 2014), para. 36.
[45] C. F. Sabel and O. Gerstenberg ‘Constitutionalising an Overlapping Consensus: The ECJ and the Emergence of a Coordinate Constitutional Order’ (2010) ELJ, 511 (512).
[46] See Committee of Ministers’ reply to Parliamentary Assembly Recommendation 1439 (2000), adopted on 31 May 2000 at the 711th meeting of the Ministers’ Deputies, HRLJ 2000, 188.
[47] H. G. Schermers ‘Editorial’ 35 Common Market Law Review 6 (1998).
[48] Opinion 2/13 (Full Court) (18 December 2014); this Opinion should be read together with the comprehensive ‘View’ of Advocate General J. Kokott (13 June 2014).
[49] The text of the draft accession agreement its explanatory report as well as related instruments had been agreed at negotiators’ level on 13 April 2013 and can be consulted at: <>. On background and initial stages of the negotiations see J. Polakiewicz ‘The European Union’s Accession to the European Convention on Human Rights’ in W. Meng/G. Ress/T. Stein Europäische Integration und Globalisierung (Nomos Baden-Baden 2011), 375-391.
[50] Intervention on 26 March 2015 in Brussels, at the ‘High-Level Conference on the Implementation of the European Convention on Human Rights: our shared responsibility’, Proceedings/Actes, at 28.
[51] Para. 177.
[52] J Malinovský ‘L’adhésion de l’U.E. a la Convention européenne des Droits de lHomme’119 RGDIP 705, at 739 (2015): “L’Accord d’adhésion constitue une oeuvre pleine d’improvisation, dépourvue de précédents en droit international, qui, partant, risque d’avoir des conséquences imprévisibles.”
[53] SHARES Briefing Paper – A New Framework for Allocating International Responsibility: the EU Accession to the European Convention on Human Rights (2014), at 18, available at
[54] See Article 1 of Protocol No. 8 to the Treaty on the Functioning of the European Union.
[55] CJEU Opinion 2/13, para 189.
[56] Weiler op.cit. supra note 8.
[57] R. Dworkin Taking Rights Seriously (Harvard University Press 1977), 270.
[58] See A-M Widmann ‘Article 53: Undermining the Impact of the Charter of Fundamental Rights’ 8 Columbia Journal of European Law 342-358 (2002).
[59] See Caroline von Hannover v Germany, no. 59320/00, judgment of 24 June 2004; Von Hannover v Germany (no 2) [GC], nos. 40660/08 and 60641/08, judgment of 7 February 2012.
[60] See Evans v UK [GC], no. 6339/05, judgment of 10 April 2007, § 73: “The dilemma central to the present case is that it involves a conflict between the Article 8 rights of two private individuals: the applicant and J. Moreover, each person's interest is entirely irreconcilable with the other's, since if the applicant is permitted to use the embryos, J will be forced to become a father, whereas if J's refusal or withdrawal of consent is upheld, the applicant will be denied the opportunity of becoming a genetic parent. In the difficult circumstances of this case, whatever solution the national authorities might adopt would result in the interests of one or the other parties to the IVF treatment being wholly frustrated.”
[61] K. Hesse Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland (Müller, Heidelberg, 20th edition 1999), marginal note 75.
[62] CJEU Opinion 2/13, para. 194.
[63] On the following see already See J. Polakiewicz ‘EU law and the ECHR: Will the European Union’s accession square the circle?’ European Human Rights Law Review (2013), 592-605.
[66] Joined cases C-411/10 and C-493/10 N.S. (21 December 2011), para. 94.
[67] Application no 30696/09, judgment of 21 January 2011.
[68] Tarakhel v Switzerland, no. 29217/12, judgment of 4 November 2014.
[69] Order of 15 December 2015 - 2 BvR 2735/14, marginal note 110.
[70] Cases C404/15 Pál Aranyosi and C659/15 PPU Robert Căldăraru. Advocate General Y. Bot presented his opinion  on 3 March 2016.
[71]  Avotiņš v. Latvia (no. 17502/07), Chamber judgment of 25 February 2015. The Grand Chamber hearing took place on 8 April 2015 with the European Commission having been authorised in accordance with article 36 (2) ECHR to participate as a ‘third-party’.

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