Impact of the Treaty of Lisbon on the Correlation between the Strasbourg and Luxembourg Courts

Transcription

1 Impact of the Treaty of Lisbon on the Correlation between the Strasbourg and Luxembourg Courts Daina Celma* 1. Introduction 2. The very beginning a road towards overlap of competences 3.1. Luxembourg development of fundamental rights case law 3.2. Strasbourg defining the approach 3. Before the Treaty of Lisbon from concurrence to coherence 3.1. Luxembourg in the 1990s no fundamental rights competence 3.2. Strasbourg in 1990s a member State can breach the ECHR by applying EC law 3.3. Luxembourg in 2000s fundamental rights in the core of the EC 3.4. Strasbourg in the 2000s the EC provides equivalent protection 3.5. Correlation before the Treaty of Lisbon 4. After the entry in force of the Treaty of Lisbon 4.1. Main changes in the EU s system of protection of fundamental rights 4.2. Legal significance of the Charter 4.3. EU s accession to the ECHR 5. Conclusion 1. Introduction The time when the European Court of Justice (ECJ) in Luxembourg and the European Court of Human Rights (ECtHR) in Strasbourg were considered to be two distinct bodies of two separate international organisations having completely different competences that might never overlap has long past. Since then, the two courts have gradually and carefully grown towards mutual recognition and respect. Primarily due to the ever expanding competences of the European Community (EC) they were forced to find a way to position themselves towards each other. Even though the mutual relationship between the two courts has been described with epithets of utmost complexity, 1 by now they have managed to reach a level of almost unique accordance. Entry into force of the Treaty of Lisbon marks a new stage in the relationship of the two courts. Apart from introducing a variety of significant institutional and structural changes in the functioning of the European Union, 2 the Treaty of Lisbon establishes a new fundamental * LLM. European Law, Constitutional Court of Republic of Latvia 1 E.g. Kafkian complexity in Douglas-Scott, S., A Tale of Two Courts: Luxembourg, Strasbourg and the Growing European Human Rights Acquis, Common Market Law Review, 43: , As the European Union has been called the European Communities, and also the European Community and the European Union at the same time, depending on competences referred to, the title relevant for the time period and competences will be used here. 1

2 rights 3 regime within that organisation. Most notably the Treaty of Lisbon affords binding force to the Charter of Fundamental Rights of the European Union (Charter) and provides for the EU s accession to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Interestingly this process almost entirely coincides with the entry into force of Protocol No. 14 to the ECHR that i.a. permits the EU s accession to the ECHR. Accordingly enactment of these two documents prescribes that the Strasbourg and the Luxembourg courts shall be merged into a single institutional system that assigns a particular role for each of them. Analysis of the development of these courts from being entirely distinct to the creation of this system, as well as the possible functioning of the system, is the topic of this essay. 2. The very beginning a road towards overlap of competences As Douglas-Scott has put it, once it seemed simple. There were two distinct European courts only one of which had a human rights jurisdiction. 4 Indeed, the ECtRH in Strasbourg was created in 1959 under the ECHR a Convention of the Council of Europe to ensure observance of the ECHR. As the ECHR and its Protocols dealt exclusively with human rights issues, the Strasbourg court established itself as the major human rights court in Europe. In contrast the ECJ in Luxembourg was set up in 1952 under the Treaty Establishing the European Coal and Steel Community in order to control implementation and application of that Treaty. Later its competence was extended to the European Economic Community and the European Atomic Energy Community. Accordingly, the Luxembourg court was created to monitor economic communities and the Treaties it was set to supervise did not even make mention of fundamental or human rights. Nevertheless, already in 1969 the Luxembourg court referred to the fundamental human rights enshrined in the general principles of Community law and protected by the Court. 5 Since then the Court has slowly but steadily increased the protection afforded to fundamental rights within the fields that fall in its competence Luxembourg development of fundamental rights case law At this stage of the development of the EC law the question of correlation between the Luxembourg and Strasbourg courts had not arisen yet. Instead the relationship between the ECJ and national courts was at stake. The ECJ stood as a guardian to the newly established principles of the direct effect and the supremacy of Community law, 6 whereas national courts appeared to be reluctant to these ideas and were expressing doubts as to the fundamental 3 It has been accepted that the term human rights stands mostly for international guarantees, whereas the term fundamental rights relates to domestic guarantees (von Bogdandy, A., von Bernstrorff, J., The EU Fundamental Rights Agency within the European and International Human Rights Architecture: The Legal Framework and Some Unsettled Issues in a Field of Administrative Law, Common Market Law Review, 46: , 2009), though in this essay differentiation is not always possible. Therefore at points the terms will be used interchangeably. 4 Douglas-Scott, S., A Tale of Two Courts: Luxembourg, Strasbourg and the Growing European Human Rights Acquis, Common Market Law Review, 43: , ECJ, judgment of 12 November 1969, case 29-69, Erich Stauder v City of Ulm Sozialamt, ECR 419, para 7. 6 ECJ, judgment of 5 February 1963, case 26-62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration, ECR 0001; ECJ, judgment of 15 July 1964, case 6/64, Flaminio Costa v E.N.E.L., ECR

3 rights observance within the EC. 7 The ECJ responded by advancing fundamental rights protection within the organisation. In this respect the judgment in Internationale Handelsgesellschaft 8 (1970) is considered to be seminal. 9 The ECJ was asked by a German court to assess whether a provision of Community Regulation corresponded to principles of German constitutional law. The German court considered that the primacy of supranational law must yield before the principles of German basic law. The ECJ responded that the law stemming from the EEC Treaty cannot, because of its very nature, be overridden by rules of national law, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question. However, the Court did not stop there. It continued by saying that an examination should be made as to whether an analogous guarantee inherent in Community law has been disregarded. The protection of fundamental rights, whilst inspired by the constitutional traditions common to the member states, must be ensured within the framework of structure and objectives of the Community. Nevertheless, after performing the aforementioned analysis the Court did not find a violation of fundamental rights. The next occasion for the ECJ to elaborate on that point was the case of Nold 10 (1974) where the Court was asked to annul a decision of the Commission as breaching i.a. fundamental rights. Even though the Court dismissed the action as unfounded, it reassured that it will safeguard fundamental rights and will not uphold a measure which is incompatible with them. 11 With this judgment the Court expressed its willingness to afford to fundamental rights a status of a genuine source of law. Moreover, in the hierarchy of sources of law, even though not mentioned in the primary law, they would rank above the secondary Community acts. Another interesting factor in Nold is that the Court, in relation to possible sources of inspiration in establishing the content of general principles of Community law, mentioned not only constitutional traditions of Member States but also international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories. 12 The Court did not mention any international treaty in particular, even though the applicant had directly referred to the ECHR. However, at that point in time not all Member States had ratified the ECHR yet. 13 In Ruliti (1975), after the respective ratification had occurred, the ECJ made an express reference to numerous articles of ECHR s in order to 7 The proverbial Solange I and Solange II judgments of German Constitutional Court should be noted here (judgment of 29 May 1974, BVerfGE 37, 2712 BvL 52/71 and judgment of 22 October 1986, BVerfGE 73, 3392 BvR 197/83). 8 ECJ, judgment of 17 December 1970, case 11-70, Internationale Handelsgesellschaft mbh v Einfuhrund Vorratsstelle für Getreide und Futtermittel, ECR For description see Tridimas T., The General Principles of EU law, 2nd ed., Oxford University Press, 2006, pp ECJ, judgment of 14 May 1974, case 4-73, J. Nold, Kohlen- und Baustoffgroßhandlung v Commission of the European Communities, ECR Ibid, para Ibid, para France was the last out of, by then, nine Member States to ratify the ECHR on 3 May 1974 (all the other Member States had ratified it in 50s). 3

4 borrow a mechanism of justification of infringement of rights when they are necessary in a democratic society. 14 On 5 April 1977 the European Parliament, the Council and the Commission adopted a Joint Declaration where they stressed the prime importance of the protection of fundamental rights, as derived in particular from the constitutions of the Member States and the ECHR. 15 In Johnston (1986) the Court used this Declaration as a reference point to come to the conclusion that the principles on which the ECHR is based must be taken into consideration in Community law. 16 Subsequently, in ERT (1991) the latter finding served as a basis for the frequently cited statement that the ECHR has a special significance in providing guidelines to the content of fundamental rights in the Community law. 17 From here onwards the ECJ continued relying on the ECHR in determining the content of the fundamental rights as general principles of Community law. At the same time the ECJ went on in advancing the role of fundamental rights within the Community legal order. For example, in Klensh (1986) the Court held that Community measures should be interpreted in a way that renders them consistent with the general principles of Community law. 18 Whereas in Weiser (1990), were such an interpretation was not possible, the Court rendered a provision of a Regulation invalid. 19 On two occasions, in Les Verts 20 (1986) and in Chernobyl 21 (1991), the Court was interpreting the primary law contra legem to ensure its compliance with rule of law and the right to fair trial. In addition, the Court positioned fundamental rights as capable of creating obligations towards Member States. First, Member States are obliged to apply Community rules in accordance with the requirements of protection of fundamental rights. 22 Second, also when derogating from Community law national measures have to be compatible with fundamental rights ECJ, judgment of 28 October 1975, case 36-75, Roland Rutili v Ministere de l intérieur, ECR 1219, para Joint Declaration by the European Parliament, the Council and the Commission", OJEC , No C 103, pp ECJ, judgment of 15 May 1986, case C-222/84, Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary, ECR 1651, para ECJ, judgment of 18 June 1991, case C-260/89, Elliniki Radiophonia Tiléorassi AE and Panellinia Omospondia Syllogon Prossopikou v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas and Nicolaos Avdellas and others, ECR I-2925, para ECJ, judgment of 25 November 1986, joined cases 201 and 202/85, Marthe Klensch and others v Secrétaire d'état à l'agriculture et à la Viticulture, ECR 3477, para ECJ, judgment of 14 June 1990, case C-37/89, Michel Weiser v Caisse nationale des barreaux français, ECR I ECJ, judgment of 23 April 1986, case 294/83, Parti écologiste "Les Verts" v European Parliament, ECR ECJ, judgment of 4 October 1991, case C-70/88, European Parliament v Council of the European Communities, ECR I ECJ, judgment of 13 July 1989, case 5/88, Hubert Wachauf v Bundesamt für Ernährung und Forstwirtschaft, ECR 2609, para ECJ, judgment of 18 June 1991, case C-260/89, Elliniki Radiophonia Tiléorassi AE and Panellinia Omospondia Syllogon Prossopikou v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas and Nicolaos Avdellas and others, ECR I-2925, para 43. 4

5 Quite early on the ECJ defined its limits of reviewing observance of fundamental rights. In Cinéthèque (1985) it stated that, although it is the duty of the Court to ensure observance of fundamental rights in the field of Community law, it does not have the power to examine the compatibility with the ECHR of national legislation which concerns an area which falls within the jurisdiction of the national legislator. 24 This approach was confirmed in Demirel (1987) 25 and has not changed since then. 26 On the other hand, in ERT (1991) the Court has stated that, where national rules do fall within the scope of Community law, the Court must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with the fundamental rights. 27 In the context of correlation between in the Strasbourg and Luxembourg courts it is interesting to mention the opinion of Advocate General Darmon in Orkem (1989). Even though he considered that the contested decision was in compliance with ECHR as interpreted by Strasbourg institutions, he deemed it important to note that the ECJ is using ECHR merely as a reference. Therefore it may adopt, with respect to provisions of the ECHR, an interpretation which does not coincide exactly with that given by the Strasbourg authorities. 28 The ECJ agreed that violation of the ECHR had not occurred, 29 though the point of mutual influence of the Courts started clarifying considerably later. When looking back to this stage of development of Community law it is commonly accepted that the fundamental rights protection within the Community was advanced primarily by the judiciary. 30 Indeed, the legislative activities in respect to fundamental rights had been mostly declarative. The next reference to the ECHR, following the previously mentioned Joint Declaration of 1977, was made it the preamble of the Single European Act (entered in force on 1 July 1987). Some attempts to harmonise fundamental rights regulation were made by adopting the Community Charter of the Fundamental Social Rights of Workers (signed on 9 December 1989), though it remained legally non-binding. 31 The position of the ECJ towards the ECHR was approved by Article 6 (then Article F) of Treaty on European Union (entered in force on 1 November 1993) stating that the Union shall respect fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member 24 ECJ, judgment of 11 July 1985, joined cases 60 and 61/84, Cinéthèque SA and others v Fédération nationale des cinémas français, ECR 2605, para ECJ, judgment of 30 September 1987, case 12/86, Meryem Demirel v Stadt Schwäbisch Gmünd, ECR 3719, para For more recent confirmation see: ECJ, order of 6 October 2005, case C-328/04, Criminal proceedings against Attila Vajnai, ECR I ECJ, judgment of 18 June 1991, case C-260/89 Elliniki Radiophonia Tiléorassi AE and Panellinia Omospondia Syllogon Prossopikou v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas and Nicolaos Avdellas and others, ECR I-2925, para ECJ, opinion of AG Orkem of 18 May 1989, case 374/87 Orkem v Commission of the European Communities, ECR 3283, paras ECJ, judgment of 18 October 1989, case 374/87 Orkem v Commission of the European Communities, ECR Douglas-Scott, S., A Tale of Two Courts: Luxembourg, Strasbourg and the Growing European Human Rights Acquis, Common Market Law Review, 43: , 2006; Harpaz, G., The European Court of Justice and its Relations with the European Court of Human Rights: the Quest for Enhanced Reliance, Coherence and Legitimacy, Common Market Law Review, 46: , The United Kingdom opposed to the Charter and acceded to it only in May

6 States, as general principles of Community law. However, irrespective of this pale legislative background the ECJ was criticised in legal literature for not approaching human rights seriously enough Strasbourg defining the approach Until 1998 individuals could not lodge their applications directly to the ECtHR. Instead they were supposed to apply to the European Commission of Human Rights (EComHR) who subsequently decided whether to refer the complaints to the ECtHR. All through the functioning of the EComHR, applications directed against the EC did not get through the EComHR scrutiny. In C.F.D.T. v the European Communities 33 (1978) the applicant complained about an act of the Council of the EC. EComHR held that this complaint lay outside its jurisdiction ratione personae in relation to all defendants: 1) in so far as the application was directed towards the EC, because the latter was not a Contracting Party to the ECHR; 2) in so far as the application was directed against "the Member States jointly", because the applicant had not defined what was meant by it and, therefore, the EComHR considered the complaint to still be directed towards the EC; and 3) in so far as the application was directed against each of the Member States severally since these States by taking part in the decision of the Council of the European Communities had not in the circumstances of the instant case exercised their jurisdiction within the meaning of Article 1 of the Convention 34 Hence the access to the Strasbourg institutions in cases that involve acts of the EC seemed to be blocked irrespective of the defendant indicated. This approach was confirmed also later 35 and did not differ from the one afforded to other international organisations. 36 In 1990 the EComHR faced an application (M. & Co. v Germany) that differed from C.F.D.T. v the European Communities as it was not directed towards an act of the EC but against a writ issued by German authorities for the execution of a judgment of the ECJ. 37 Here the issue was raised of whether German institutions are required to review legality of Community acts prior to their implementation. Germany expressed the opinion that a conclusion that they were would run counter to the generally accepted principle that the ECHR did not apply to the EC and that the ECHR would become binding for the EC only if it formally adhered to it. 32 Coppel, J., O Neill, A., The European Court of Justice: taking rights seriously?, Legal Studies, 12(2): , The latter prompted a more elaborate response on the topic: Weiler, J.H.H., Lockhart, N.J.S., Taking Rights Seriously Seriously: The European Court and its Fundamental Rights Jurisprudence Part I, Common Market Law Review, 32: 51-94, 1995; Weiler, J.H.H., Lockhart, N.J.S., Taking Rights Seriously Seriously: The European Court and its Fundamental Rights Jurisprudence Part II, Common Market Law Review, 32: , EComHR, decision of 10 July 1978, application No. 8030/77, Confedération Française Démocrtique du Travail v the European Communities. 34 Ibid, paras EComHR, decision of 19 January 1989, application No /88, Christiane Dufay v. European Communities. 36 See in relation to European Patent Office: EComHR, decision of 10 January 1994, application No /92, Karl Eckart Heinz against the Contracting States party to the European Patent Convention insofar as they are High Contracting Parties to the European Convention on Human Rights, i.e. Austria, Belgium, Denmark, France, Germany, Greece, Ireland, Italy, Liechtenstein, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland and the United Kingdom. 37 EComHR, decision of 9 February 1990, application No /87, M. & Co. v the Federal Republic of Germany. 6

7 The EComHR started by reiterating that it is not competent ratione personae to examine acts of the EC. Nevertheless, it considered that the German authorities had not acted quasi as Community organs. The Commission observed that the ECHR does not prohibit a Member State from transferring powers to international organisations, however, this transfer does not necessarily exclude a State's responsibility under the ECHR. Then the Commission continued with a statement that is now a notorious benchmark: Therefore the transfer of powers to an international organisation is not incompatible with the Convention provided that within that organisation fundamental rights will receive an equivalent protection. 38 When analysing whether the EC is an international organisation that affords an equivalent protection of fundamental rights, the Commission noted that its legal system not only secures fundamental rights but also provides for control of their observance. The fundamental rights case law developed by the ECJ was explicitly appreciated. In addition, the Commission showed tolerance towards the internal order of the EC by saying that it would be contrary to the very idea of transferring powers to an international organisation to hold the Member States responsible for examining in each individual case whether the ECHR was respected in the underlying proceedings. The Commission concluded that the application was inapplicable ratione materiae. This decision was a very important step in defining Strasbourg s attitude towards the EC. The application was not recognised inapplicable ratione personae and, in effect, it was said that the Member States cannot avoid ECHR liability by transferring competences to the EC. However, it was recognised that the EC is an international organisation providing equivalent protection of fundamental rights and, hence, Member States are relieved from obligation to review ECHR observance in each and every occasion. A separate note should be made about applications concerning elections of the European Parliament of the EC. In the 1970s and 1980s the EComHR received numerous complaints on this matter. The EComHR recognised that these raise the question of whether Article 3 of Protocol No. 1 covers also the right to vote in these elections. Nevertheless, it did not give an answer to this question as all these applications were declared inadmissible on different grounds. 39 However, already back then it felt the need to indicate that the possibility could not be excluded that developments in the structure of EC would require the protection of this Article to be extended also to the new representative organs partly assuming the powers and functions of national legislators Ibid, para 8 of part The Law. 39 EComHR, decision of 8 March 1979, application No. 8364/78, Kennedy Lindsay and others v the United Kingdom; EComHR, decision of 10 May 1979, application No. 8612/79, Alliance des Belges e la Communauté Européenne v Belgium; EComHR, decision of 9 December 1987, application No /84, Etienne Tete v France; EComHR, decision of 10 March 1988, application 11406/85, Marcel Fournier v France. 40 EComHR, decision of 8 March 1979, application No. 8364/78, Kennedy Lindsay and others v the United Kingdom, para 1. 7

8 In the late 80s the EComHR already worded it stronger. After stressing that prior obligations overrule posterior ones, it emphasised that this is particularly so when, as in the present case, the obligations in question have been assumed in a treaty (ECHR) whose guarantees affect the public order of Europe The EComHR concluded that It cannot therefore be accepted that by means of transfers of competence the High Contracting Parties may at the same time exclude matters normally covered by the Convention from the guarantees enshrined therein. 41 In addition, it may be noted that both Strasbourg institutions were occasionally referring to the ECJ s case law or to legislation of the EC in support to their decisions in the same way as to documents or practices of other international organisations. 42 As a more notable example of referencing, the case of Marckx v. Belgium 43 (1979) can be mentioned. There the ECtHR borrowed from the ECJ the doctrine of limitation of temporal effects of a court s judgments. 44 However, in Niemietz v Germany (1992) while deciding whether under Article 8 of the ECHR the notion of private life extends to activities of a professional or business nature and the notion of home includes business premises, the ECtHR ruled that they did without mentioning the judgment of the ECJ in Hoechst (1989) where the latter had come to the conclusion that they did not. Even though in legal literature this is mentioned as an example of inconsistency between the two Courts, 45 it is suggested here that it should not be perceived that way. In Hoechst the ECJ had to decide on a matter on which the ECtHR had not pronounced yet. Apparently it guessed wrong and, after the ECtHR had clarified the point, the ECJ adjusted its practice accordingly. 46 Summarising the relationship between the Strasbourg and Luxembourg institutions during the respective period it can be said that this was a time when the overlap of competences was emerging. For one, it was caused by the ECJ when expanding the application of fundamental rights within the Community legal order. Secondly, also the widening of Community competences played a role since that increased amount of cases where actions related with the European Communities were brought to Strasbourg. While the ECJ was boosting its fundamental rights protection (supposedly under the pressure of national constitutional courts), it remained protective of its own autonomy even though it afforded special significance to the ECHR, formally it referred to it only as to a source of inspiration. Meanwhile, 41 EComHR, decision of 9 December 1987, application No /84, Etienne Tete v France, para EComHR, report of 8 May 1984, applications Nos. 8543/79, 8674/79, 8675/79 and 8685/79, van Marle, van Zomeren, Flantua and de Bruijn v the Netherlands, para 57; EComHR, report of 18 December 1987, application No /83, Markt Intern Verlag GmbH and Klaus beermann v the Federal Republic of Germany, para ECtHR, judgment of 13 June 1979, application No. 6833/74, Marckx v Belgium, para 58; for a description see Jacobs pp , Douglas-Scott p Reflected in a case ECJ, judgment of 8 April 1976, case 43/75, Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena, ECR Douglas-Scott, S., A Tale of Two Courts: Luxembourg, Strasbourg and the Growing European Human Rights Acquis, Common Market Law Review, 43: , ECJ, judgment of 22 October 2002, case C-94/00, Roquette Frères SA v Directeur général de la concurrence, de la consommation et de la répression des fraudes, and Commission of the European Communities, ECR I-9011, see para 29 in particular. 8

9 the Strasbourg institutions were showing an affirming attitude towards the ECJ and the EC and were rejecting to review the claims directed towards Community institutions. 3. Before the Treaty of Lisbon - from concurrence to coherence The 1990s was an important period for the integration of Europe and advancement of human rights protection therein. Fall of the Berlin Wall and collapse of the Soviet Union permitted new territories to adhere to western values and numerous countries expressed their willingness to join both the Council of Europe and the European Union. In that time both of these institutions underwent significant changes. In 1993 the Treaty of Maastricht entered in force, thereby creating the European Union (EU), and already in 1999 the Treaty of Amsterdam followed enhancing the role of citizenship and the rights of individuals. In 1998 with the entrance in force of Protocol No. 11 to the ECHR the organs supervising observance of the ECHR were reformed dissolving the EComHR and establishing a permanent full time ECtHR. In addition to that, during this period some significant firsts occurred. In 1996 the ECJ made its first reference to the case law of the ECtHR. 47 In 1998 the ECJ for the first time found that an EU institution had violated fundamental rights. 48 In 1996 the ECJ rejected the idea that the European Community could, as Community law then stood, accede to the ECHR, 49 thus blocking the first attempts in this regard. Further, in 1999 the ECtHR for the first time found that a Member State had violated the ECHR by applying Community law. 50 The latter two events deserve some closer elaboration Luxembourg in the 1990s no fundamental rights competence In mid 1990s the ECJ was asked to deliver an opinion clarifying whether it would be compatible with the Treaty Establishing European Community (EC Treaty), if the EC were to accede to the ECHR. The question was referred even before commencing relevant negotiations and clarifying content of the envisaged agreement. The ECJ started its response by stating very categorically that no Treaty provision conferred on the EC institutions any general power to enact rules on human rights or to conclude international conventions in this field. Then it continued by assessing whether this competence could be derived from Article 235 EC Treaty (now Article 352 TFEU). The Court stressed that respect for fundamental rights was a condition of the lawfulness of Community acts. However, it proceeded by saying that the accession to the ECHR would substantially change the present structure of protection of fundamental rights as it would require the EC to enter into a distinct international institutional system. In addition, that would entail integration of all the ECHR provisions in the EC legal order. The Court concluded that these changes would be of a constitutional significance and, therefore, could be realised 47 ECJ, judgment of 30 April 1996, case 13/94, P v S and Cornwall County Council, ECR I-2143, para ECJ, judgment of 17 December 1998, case C-185/95, Baustahlgewebe GmbH v Commission of the European Communities, ECR I Though the consequences of this finding were nominal, as the Court concluded that the applicant company was fined correctly, only the length of the proceedings violated fair trial guarantees. Accordingly the fine of ECU was reduced to ECU ECJ, opinion of 28 March 1996, 2/94, accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms, ECR I ECtHR, judgment of 18 February 1999, application No /94, Matthews v. the United Kingdom. 9

10 only by way of a Treaty amendment. Accordingly the Court ruled that, as the Community law then stood, the EC had no competence to accede to the ECHR. This ruling prevented EC accession to the ECHR for at least 14 years. The Court s statement that no Treaty provision confers on the EC institutions any general power to enact rules on fundamental rights can be viewed together with the judgment in Grant (1998). 51 Here, the Court stated that, although respect for fundamental rights is a condition for the legality of Community acts, those rights cannot in themselves have the effect of extending the scope of Treaty provisions beyond the competences of the EC. 52 Thus the Court had been very clear on the fact that in the respective period of development of Community law fundamental rights could infer only negative obligations upon the EC institutions and Member States. Even though fundamental rights were regarded as sources of Community law, as they formed a part of general principles of law, they were not capable of creating positive obligations. This status of fundamental rights within Community legal order caused criticism in the legal literature and prompted a call for a human rights policy. 53 Certain fundamental rights competence was conferred upon the EC through Article 13 EC Treaty (now Article 19 TFEU) which was inserted by the Treaty of Amsterdam. On grounds of this provision numerous antidiscrimination directives were adopted. 54 As an important fundamental rights document the Charter of Fundamental Rights of the European Union should be mentioned. It was proclaimed by the European Parliament, the Council of Ministers and the European Commission on 7 December 2000, though it remained legally unbinding until the Treaty of Lisbon entered in force. Interestingly the first court to refer to the Charter was the ECtHR Strasbourg in the 1990s a Member state can breach the ECHR by applying EC law Meanwhile, Strasbourg institutions were seemingly shifting their position towards EC related behaviour. In Cantoni v France (1996) the applicant was charged according to national law implementing Community Directive. The ECtHR stated that the fact that national provision was based almost word for word on Community Directive did not remove it from the ambit of the 51 ECJ, judgment of 17 February 1998, case C-249/96, Lisa Jacqueline Grant v South-West Trains Ltd, ECR I Ibid, para Alston, P., Weiler, J.H.H., An Ever Closer Union in Need of a Human Rights Policy, European Journal of International Law, 9: , However, van Bogdandy was expressing scepticism about usefulness of placing fundamental rights in the core of the European Union (van Bognandy, A., The European Union as a Human Rights Organisation? Human Rights and the Core of the European Union, Common Market Law Review, 37: , 2000). 54 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180, , p ; Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, , p ; Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180, , p ; Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, , p ECtHR, judgment of 11 July 2002, application No /94, I. v the United Kingdom and ECtHR, judgment of 11 July 2002, application No /95, Christine Goodwin v the United Kingdom. 10

11 ECHR. 56 The Court did not find that the ECHR would have been breached, but the methodology it applied was significantly different. Unlike in M. & Co. v Germany, the Court did not say that the equivalent protection doctrine should be applied. Instead the Court pursued the regular manner of evaluation. Even though the Court did not elaborate on this matter, the difference between the two cases can be noticed. Cantoni v France dealt with the implementation of a directive that leaves comparatively wide discretion to Member States when compared to the obligation to issue a writ for execution of an ECJ s judgment. Besides, the complaint before the ECtHR was not brought about the national law itself but rather about charges initiated against the applicant. Hence, in Cantoni v France the complaints were more evidently attributable to national institutions than to the EC. The next important case concerning European Communities was Matthews v the United Kingdom (1999). 57 Here the Court, for the first and so far only time, found that a Member State applying Community law had violated ECHR. The case concerned the right to vote for the European Parliament in the territory of Gibraltar. In a way, this case can be considered a continuation to the previously described applications on the right to vote on the European Parliament s elections, which the Commission had rejected on different grounds. Here, the Court not only hold that Article 3 of Protocol No. 1 was applicable to an organ such as the European Parliament and that the latter had had, at the relevant time, the characteristics of a legislature in Gibraltar, but also elaborated on that the United Kingdom can be held responsible under the ECHR for the lack of these elections in Gibraltar. After repeating that acts of the EC as such cannot be challenged before the Court and that the ECHR does not preclude Member States from transferring competences to international organisations, provided that Convention rights continue to be secured, the Court continued by assessing the type of Community acts involved in the case. The Court noted that in the present case the alleged violation of the ECHR flowed from primary Community law and that all the acts involved constituted international instruments that were freely entered into by the United Kingdom. Moreover, the Court observed that the impugned acts 58 could not be challenged before the ECJ as they were not normal acts of the Community, but were treaties within the Community legal order. Therefore the United Kingdom was considered responsible ratione materiae under Article 1 of the ECHR. The suggestion that the United Kingdom may not have effective control over the state of affairs complained about was strictly rejected, as the United Kingdom s responsibility derived from it having entered itself into treaty commitments. 59 After having ruled on those matters the Court had no difficulty finding 56 ECtHR, judgment of 15 November 1996, application No /91, Cantoni v France, para ECtHR, judgment of 18 February 1999, application No /94, Matthews v the United Kingdom. 58 The Treaty of Maastricht and the Act Concerning the Election of the Representatives of the European Parliament by Direct Universal Suffrage of 20 September ECtHR, judgment of 18 February 1999, application No /94, Matthews v the United Kingdom, paras

12 violation of Article 3 or Protocol No. 1 as the residents of Gibraltar were completely deprived of elections and, hence, the very essence of the right to vote was denied. 60 This case was significant for couple of reasons. First, it clarified that the elections of the European Parliament do fall within the scope of Article 3 of Protocol No. 1 to the ECHR as it had assumed characteristics of a legislator. Second, for the first time it was found that a Member State had breached the ECHR by applying Community law. Moreover, that was the first time when violation of the ECHR was found to result from transfer of powers to an international organisation. 61 Nevertheless, in more recent literature it is suggested that this case cannot be said to serve as a strong precedent in relation to the ECtHR s expanded review of (secondary) Community law. 62 Indeed, Matthews v the United Kingdom can be distinguished from M. & Co. v Germany as it concerned primary Community law. The Court explicitly stressed the fact that these were treaty obligations the United Kingdom had freely undertaken and not EC acts originating within the EC internal legal order and that no review of the ECJ was available to the applicant. Even though the Court did not use the term of equivalent protection, it is evident that in this case no protection of the infringed rights existed. Interestingly, after the United Kingdom had complied with the judgment of the ECtHR and made the necessary legislative changes, the Kingdom of Spain brought a complaint against the United Kingdom in front of the ECJ. The Kingdom of Spain alleged that the United Kingdom had violated Community law by granting right to vote and to stand as candidates for the elections of the European Parliament to persons who are not citizens of the EU. The ECJ in its judgment of showed a great respect towards the ECHR obligations. After recalling that the United Kingdom had made the impugned changes in its legislation in order to comply with the judgment of the ECtHR, the ECJ concluded that no Treaty provision precluded the Member States from granting the right to vote and to stand as a candidate to certain persons who have close links to them, other than their own nationals or citizens of the Union resident in their territory Luxembourg in the 2000s fundamental rights in the core of the EC Not only this particular occasion, but also more generally the first decade of 2000s, can be characterised by the ECJ s growing deference towards ECtHR and fundamental rights observance. At the same time, the EC/EU continued to expand its fundamental rights system. 60 Ibid, paras On the same day, the ECtHR pronounced a judgment in the case Waite and Kennedy v. Germany where the proceedings originated from the conflict that arose within the European Space Agency institutions. Here the Court found no violation of Article 6 of the ECHR as the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention (see ECtHR, judgment of 18 February 1999, application No /94, Waite and Kennedy v Germany). 62 Kuhnert, K., Bosphorus Double Standards in European Human Rights Protection?, Utrecht Law Review, 2(2): , ECJ, judgment of 12 September 2006, case C-145/04, Kingdom of Spain v United Kingdom of Great Britain and Northern Ireland, ECR I Ibid, para

13 The establishment of the European Union Agency for Fundamental Rights can be mentioned as a notable example. 65 Schmidberger 66 (2003) exemplifies the development of the ECJ s approach towards situations where fundamental rights and fundamental freedoms collide. In Familiapress (1997) the ECJ had already recognised that maintenance of press diversity, which helps to safeguard freedom of expression, may constitute an overriding requirement justifying a restriction on free movement of goods. 67 In Schmidberger, however, these two concepts were balanced as equally ranking rights. In Schmidberger, Austrian authorities had permitted a demonstration that blocked the Brenner motorway (and transportation of goods through it) for more than 30 hours. Consequently, the ECJ had to reconcile the requirements of the protection of free movement of goods with those of freedom of expression and freedom of assembly. The Court recognised that protection of fundamental rights, in principle, justified restriction of the fundamental freedoms. Further, the Court pointed out that all the rights involved may be restricted, as compared to absolute fundamental rights like right to life and prohibition of torture. Under these considerations the interests involved had to be weighted with regards to all the circumstances of the case. 68 After assessing the facts of the case, the Court concluded that the national authorities were reasonably entitled, having regard to the wide discretion which must be accorded to them in the matter, to consider that the legitimate aim of that demonstration could not be achieved in the present case by measures less restrictive of intra-community trade. 69 This case has been considered important in defining the hierarchy between fundamental rights and fundamental freedoms. However, opinions as to the result in this respect differ. 70 It is 65 For description see: von Bogdandy, A., von Bernstorff, J., The EU Fundamental Rights Agency within the European and International Human Rights Architecture: The Legal Framework and Some unsettled Issues in a New Field of Administrative Law, Common Market Law Review, 46: , ECJ, judgment of 12 June 2003, case C-112/00, Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, ECR I ECJ, judgment of 26 June 1997, case C-368/95, Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v Heinrich Bauer Verlag, ECR I-3689, para ECJ, judgment of 12 June 2003, case C-112/00, Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich, ECR I-5659, paras Ibid, para Gonzales and Eeckhout have argued that the Court has accepted supremacy of fundamental rights as expressed in the ECHR over Community law (Gonzales, G., EC Fundamental Freedoms v Human Rights in the Case C-112/00 Eugen Schmidberger v Austria [2003] ECR I-5659, Legal Issues of Economic Integration, 31(3): , 2004; Eeckhout, P., Case note Case C-308/06, The Queen, on the application of Intertanko and Others v Secretary of State for Transport, judgment of the Court of Justice (Grand Chamber) of 3 June 2008, Common Market Law Review, 46: , 2009); Brown has pointed to the Court s unwillingness to make a statement as regards a hierarchy of norms and has blamed the Court for reining the fundamental freedoms in the principle of proportionality as a justification for restricting economic rights (Brown, C., Case note Case C-112/00, Eugen Schmidberger, Internationale Transporte und Planzüge v Austria, Judgment of 12 June 2003, Full Court, Common Market Law Review, 40: , 2003); Kombos has pointed that the ECJ s omission to locate fundamental rights and fundamental freedoms hierarchically can be explained by the difference of grounds on which their protection is based, he likewise suggested that any pre-emptive hierarchy would 13

14 noted here that, in its assessment, the ECJ used a methodology that was similar to that which the ECtHR adopts when two fundamental rights protected under the ECHR collide. 71 This might indicate, first, that the ECJ had been inspired by the ECtHR in that respect and, second, that it estimated the two rights in the particular case to be of an equal rank, or at least that a formal hierarchy amongst them does not need to be established. A case where the need to balance fundamental rights was taken even further was Tietosuojavaltuutettu 72 (2008). Here two fundamental rights protected in the ECHR collided within Community law. Under the Data Protection Directive 73 the right to privacy was secured, however, derogations for journalistic purposes were permitted. The Finish national court asked the ECJ to clarify this point thus making the ECJ to balance the protection of the right to privacy and freedom of expression a task typically pursued by the ECtHR. The ECJ left wide discretion to the national court to balance the two rights involved. It is suggested in legal literature that this approach can be compared with the case law of the ECtHR since the latter has held that Member States enjoy a broad margin of appreciation when fundamental rights are restricted in favour of other fundamental rights. 74 An important case in the development of fundamental rights protection within the EU was Pupino 75 (2005). Here, the Italian court doubted whether the national law that regulated enquiries of victims, and was to be applied in the criminal proceedings brought against Mrs Pupino, was compatible with a Framework Decision 76 adopted under Title VI (Police and Judicial Cooperation in Criminal Matters at that time third pillar) of the Treaty of European Union. The question referred to by the national court was in effect inquiring whether the Framework Decision required, in relation to particularly vulnerable victims, to use special procedures. The ECJ noted that none of the provisions of the Framework Decision laid down detailed rules in that respect, however, in the circumstances of the case achievement of the aims of the Framework Decision required that those procedures were used. 77 Then the Court flipped its approach and started estimating the interests of the accused person. It stated that the Framework Decision must be interpreted in such a way that fundamental rights are respected. Therefore, it is for the national court to ensure that Article 6 of the ECHR towards be unwise and over-simplistic (Kombos, C., Fundamental Rights and Fundamental Freedoms: A Symbiosis on the Basis of Subsidiarity, European Public Law, 12(3): , 2006). 71 See e.g. ECtHR, judgment of 24 June 2004, application No /00, Van Hannover v Germany, balancing respect for private life and freedom of expression. 72 ECJ, 16 December 2008, case C-73/07, Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy and Satamedia Oy, ECR I Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OJ L 281, , p Hins, W., Case note Case C-73/07, Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy and Satamedia Oy, judgment of the Grand Chamber of 16 December 2008, Common Market Law Review, 47: , 2010; the reference is made to the ECtHR, judgment of 29 April 1999, applications Nos /94, 28331/95 and 28443/95, Chassagnou and other v France, para ECJ, judgment of 16 June 2005, case C-105/03, Criminal proceedings against Maria Pupino, ECR I Council Framework Decision 2001/220/JHA of 13 March 2001 on the standing of victims in criminal proceedings, OJ 2001 L 82, p ECJ, judgment of 16 June 2005, case C-105/03, Criminal proceedings against Maria Pupino, ECR I-5285, paras

15 Mrs Pupino is respected while applying national provisions in the light of the requirements stemming from Framework Decision. 78 Amongst other things Pupino was important for, this judgment made it clear that fundamental right s obligations apply also to the third pillar. 79 In this respect, the ECJ referred explicitly to the ECHR and judgments of the ECtHR. Nonetheless, the ECJ left it entirely for the national court to exercise the balancing of the rights of the victims and of the accused. In light of the case law of the ECtHR analysed so far, it is likely that the final decision of the national court would fall under the ECtHR scrutiny as the national institutions would have exercised their discretion left in the EU law. The same applies also to the final decision of national institutions in the Tietosuojavaltuutettu case. The analysis of fundamental rights case law within the EC/EU would not be complete, if the case of Kadi 80 (2008) was not mentioned. Herein, the applicants were contesting Council Regulations freezing their funds. These regulations were, in turn, adapted to give effect to the Regulations of the United Nations (UN) Security Council. Unlike the Court of First Instance (CFI) the ECJ considered itself competent to review legality of the Council Regulations. Exactly the part of the judgment were the Court comes to the latter conclusion is of the highest importance for fundamental rights protection within the EC. The CFI had rejected the possibility to exercise a full review over the contested regulations, as that would amount to evaluation of regulations issued by the UN Security Council. Thus the CFI confined itself with verifying whether jus cogens norms were not breached. 81 The ECJ rejected this approach. It reiterated that the EC is based on the rule of law and reminded of the significance of fundamental rights within the internal order of the EC. Likewise the ECJ stressed that there are principles that form the very foundations of the Community legal order, protection of fundamental rights alongside with principles of liberty and democracy being part of them. Neither Article 307 EC Treaty nor any international agreement would permit challenges to those principles. As to the implications towards the UN system the ECJ stated that its review would apply merely to the EC act and that a basis for precluding judicial review of internal lawfulness of implementation measures cannot be derived from the Charter of the UN. Moreover, the ECJ admitted the superiority of the Charter of the UN over secondary Community law, yet denied that this superiority would extend to primary law, in particular to the general principles of which fundamental rights form a part. 82 Accordingly, the Court carried 78 Ibid, paras For analysis see Callewaert, J., The European Court of Human Rights and the Area of Freedom, Security and Justice, ERA Forum, 8: , ECJ, judgment of 3 September 2008, joined cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities, ECR I CFI, judgment of 21 September 2005, case No. T-315/01, Yassin Abdullah Kadi v Council of the European Union and Commission of the European Communities, ECR II ECJ, judgment of 3 September 2008, joined cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities, ECR I-6351, paras