Abstract
This article looks at the relationship between the European Court of Human Rights and the Court of Justice of the European Union after EU accession to the European Convention of Human Rights. It also examines the survival of the doctrine of “equivalent protection” which was expressed by the ECHR in Bosphorus decision –in previous, namely, historical situations- and is still valid today, after the accession.
Ιs the EU accession to the European Convention of Human Rights expected to ensure the much needed harmonized interpretation and application of the conventional text by the two European Courts? What will be the attitude of the ECJ to the ECHR? Will the expected changes have an impact on the effectiveness of the system of Human Rights in Europe which the two European Courts built in the pre-accession period to overcome operational constraints?
Since the applicant should first appeal to the judicial mechanism of Luxembourg and then to Strasbourg, the first’s interpretation may deviate from that the latter will then proceed[1]. The accession, therefore, does not eliminate the risk of conflicting decisions[2]. However, the EUCJ, knowing that there is possibility for review/ “threat” of cancellation of its decision by the ECHR, which on EU conviction induces the Court’s responsibility, may have even greater respect for Strasbourg’s case law. This is the reason why it is expected, adopting a more adjacent to Human Rights attitude in its jurisprudent, ECJ’s decisions may be even more detailed concerning their argument/ legal analysis on fundamental rights issues(Lock T., 2011). ECJ’s recent decision in Kadi case[3], gives an initial insight as to the developments which are about to follow.
To my mind, the most important question of all, and the one that should be answered, is whether the doctrine of “equivalent protection” which was expressed by the ECHR in Bosphorus decision[4] and is still valid today will survive after EU accession (Lock T., 2011; Besselink L., 2008).
This jurisprudence (while EU legal order provides an equivalent to the Convention’s system protection of fundamental rights, it is presumed that a state member has not failed to fulfill its contractual obligations in the case where it had no discretion in the application of secondary law) clearly assigns the privilege to EU legal system compared to others which, although they ensure human rights’ protection at a very high level, are still submitted in complete control by the ECHR[5]. This differentiated confrontation –the application of double standards Council of Europe’s member states, on the one hand, and those of the EU, on the other, is a recognition of the protection of Human Rights by the ECJ in the EU is of such high quality that the ECHR has the benefit of exercising its jurisdiction, exceptionally, where the protection is manifestly inadequate. After the powerful beginning of the EU Charter of Fundamental Rights, it would be argued that the protection provided by EU level, has improved even further. Consequently, the arguments which are in favor of abandoning the above presumption/ doctrine have fallen(Besselink L., 2008).
Yet, the real reason for the wording the presumption is elsewhere(ibid). It is recognized by the fact that EU state members are responsible for violations of the Convention committed by the EU itself, that, of course, is not bound by the conventional text and Strasbourg’s jurisprudence. In short, due to the absence of legal basis, the latter chose not to intervene in EU internal legal order.
Once the Union officially becomes part of the Convention it is obvious that the justification of the presumption and the consequent special treatment, which was developed in previous historical situations, will disappear. Being a party to the European Convention of Human Rights, thus will be able to be presented in the proceedings before the ECHR, even under the regime of the co-defendant, the Member States will not now be the only defendant. Moreover, ECJ decisions will be subjected to a thorough observation by the ECHR, as by this accession the EU will have agreed to the weighting of its Court of Justice relative to the Human Rights, with the one of the conventional system. Therefore, for the European Court of Justice, the ECJ would be a “national court” which will not require any further special treatment. This would also be opposed to the overall objective of the Draft Agreement on the Accession of the EU to the European Convention of Human Rights, which is none other than the EU equal treatment to the other States Parties to the Convention. In addition, it would cause the reaction of the latter, as mentioned, which even though they provide equivalent protection, they still continue to be subjected to rigorous examination/observation.
Probably, the judicial mechanism of Strasbourg, applying a distinction between internal/ national court (the national level and obligations of States Parties), on the one hand, and the International Court of Justice of Luxembourg operating within the EU legal order (the international level and EU obligations), on the other, will make a more flexible evaluation of the second -without implying a more lenient evaluation- on such basis that there is a sequential evaluation of the issues in the EU legal order-[6], which includes an international court, the ECJ. Clearly the ECHR wants the international / EU control. May hereafter be invoked by the provision of adequate and not of equivalent protection of Human Rights, thus overruling the findings of the earlier Bosphorus decision[7].
It is, therefore, for a stillborn/ non-viable, temporary lifetime decision. In the hypothetical case where Strasbourg, in a subsequent decision, adjudicates again the immunity of Luxembourg, by extending the Bosphorus approach in all EU measures, thus avoiding the consequences of accession, then the long-awaited establishment of relations between the two courts and the consequent possibility of an external audit to Union’s Court by Strasbourg will be considered irrelevant. So as to the european criteria not to be replaced by the ones of the European Union concerning the protection of fundamental rights, also in order to maintain the primacy of the contractual mechanism in this field, the submission of the ECJ in the European control is as ever imperative. But, Strasbourg currently reserves to answer this question so does the Draft; it has neither explicitly confirmed nor has rejected the doctrine of ‘equivalent protection’. We just have to wait the developments…
Missira G. Vassiliki
Postgraduate diploma in European Law and Policy (Jean Monnet Program) at Panteion University
Keywords: European Court of Human Rights; Court of Justice of the EU; EU accession; equivalent protection
REFERENCES
Besselink L. (2008), “The European Union and the European Convention on Human Rights: From Sovereign Immunity in Bosphorus to Full Scrutiny Under the Reform Treaty?”, Boerefijn I/ Goldschmidt J. (eds.), Changing Perceptions of Sovereignty and Human Rights, Essays in Honour of Cees Flinterman, Intersentia, Antwerp, pp. 295-309.
Lenaerts K. (1991), “Fundamental Rights to be Included in a Community Catalogue”, in ELR, 16: 367-390.
Lock T. (2011), “EU Accession to the ECHR: Consequences for the European Court of Justice”, Paper for EUSA Conference 2011, Boston, USA, 3 March 2011.
Pernice I. (2003), “Integrating the Charter of fundamental rights into the Constitution of the European Union: practical and theoretical propositions”, Columbia Journal of European Law, 10:5.
Toth A.G. (1997),“The European Union and Human Rights: the way forward”, 34:491-529.
[1] To avoid the occurrence of such conflicting decisions, the institutionalization of the possibility is suggested –with the establishment of liability autonomy issues would be affected- of the ECJ, to address preliminary questions to Strasbourg on the interpretation of contractual provisions (Toth A.G.,1997) for which there is either limited or does not exist at all relevant European jurisprudence (Lenaerts K., 1991; Pernice I., 2003). However, these thoughts are only suggestions, and such arrangement is not included in the estimations of the Draft.[CDDH-UE(2011)16, Final Version, “Draft explanatory report to the Agreement on the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms”, στο 8th working meeting of the CDDH informal working group on the Accession of the European Union to the European Convention on Human Rights (CDDH-EU) with the European Commission, Draft Legal Instruments on the Accession of the European Union to the European Convention on Human Rights, Strasbourg, 19 July 2011]. Furthermore, the European Parliament considers that there would not be appropriate relations between the two courts to be formalized by establishing preliminary proceedings before the ECHR.
[2] Although taking into consideration the Declaration No. 2 regarding art. 6 § 2 TEU which establishes the existence of a regular dialogue between the ECJ and the ECHR -that might be enhanced by the accession-, the cases which one of the two institutions intend to adopt a different interpretation of the Convention that adopted by the another are expected to decrease.
[3] ECJ, 3.9.2008, Yassin Abdullah Kadi & Yusuf and Al Barakaat International Foundation v. Council of the EU & EC Commission, C-402/05 P & C-415/05 P.
[4] §§155 and 156 CEDH, 30.6.2005, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sereti c/ Irlande, 45036/98.
[5] For example the Federal Constitutional Court of German.
[6] See for instance European Parliament resolution of 15 December 2010 on the situation of fundamental rights in the European Union (2009) – effective implementation after the entry into force of the Treaty of Lisbon (2009/2161(INI)), §17,§18,§25etc., through which it is clearly demonstrated that the EU Institutions attribute outstanding importance to the respect of the fundamental rights in the supervision of EU activities.
[7] This paragraph was written after discussion with Prof. Christos Rozakis, the President of the Administrative Tribunal of the Council of Europe and formerly, the first vice-president of the European Court of Human Rights.