Fundamental Rights in the European Union: The role of the Charter after the Lisbon Treaty


Author Francesca FERRARO

ABSTRACT: The European Union, like its Member States, has to comply with the principle of the rule of law and respect for fundamental rights when fulfilling the tasks set out in the Treaties. These legal obligations have been framed progressively by the case law of the European Court of Justice. The Court filled the gaps in the original Treaties, thus simultaneously ensuring the autonomy and consistency of the EU legal order and its relation with national constitutional orders. Since the entry into force of the Lisbon Treaty, these principles have also been expressly laid down in the Treaties and in the Charter of Fundamental Rights. Being part of the body of EU constitutional rules and principles, the Charter is binding upon the EU institutions when adopting new measures, as well as for Member States during implementation. The Charter is the point of reference, not only for the Court of Justice, but also for the EU legislature, especially when EU legislation gives specific expression to fundamental rights. Moreover, fundamental rights are also of relevance for EU legislation covering all the other areas of Union competence.

1. Introduction

The protection of fundamental rights was not explicitly included in the founding Treaties of the European Communities, which contained only a small number of articles that could have had a direct bearing on the protection of the rights of individuals. For example, in the EEC Treaty, the rules on the general prohibition on discrimination on grounds of nationality (Article 7), on the freedom of movement for workers (Article 48), on the freedom to provide services (Article 52), on improved working conditions and an improved standard of living for workers (Article 117), on equal pay for men and women (Article 119), and on the protection of persons and protection of rights (Article 220), may be considered to have had a such bearing.

An explicit reference to fundamental rights at Treaty level appeared only over 30 years later, with the entry into force of the Maastricht Treaty (1993). Indeed, according to Article F of the Treaty on European Union, the EU was obliged to: respect fundamental rights, as guaranteed by the European Convention on Human Rights and as they result from the constitutional traditions common to the Member States as general principles of Community law.

Since the entry into force of the Amsterdam Treaty (1999), and notably of the Lisbon Treaty (2009), protecting fundamental rights is a founding element of the European Union and an essential component of the development of the supranational European Area of Freedom, Security and Justice.

Under the Lisbon Treaty, the EU Charter of Fundamental Rights, originally solemnly proclaimed in Nice in 2000, has the same legal value as the Treaties. Even if it does not extend the competences of the Union, it gives them a new ‘soul’ by focusing on the rights of the individual with regard to all EU policies. The Charter draws on the European Convention on Human Rights (ECHR), the European Social Charter and other human-rights conventions, as well as the constitutional traditions common to the EU Member States, as stated in case law of the European Court of Justice. However, it also updates them by recognising new kinds of rights protecting individuals from new forms of abuses by public or private entities (such as the right to the protection of personal data and to good administration). The Charter is binding upon the EU institutions when enacting new measures, as well as for the Member States whenever they act within the scope of EU law.1

The Charter is the reference not only for the Court of Justice but also for EU law-making institutions, in particular the Commission, when launching new proposals which give ‘specific expression to fundamental rights’.2 This is the case with EU policies dealing with anti-discrimination, asylum, data protection, transparency, good administration, and procedural rights in civil and criminal proceedings. Nevertheless, fundamental rights (and the Charter) come into play in EU legislation in any other domain of EU competence, such as transport, competition, customs and border control. As these policies can also have an impact on the rights of citizens and other individuals, such as human dignity, privacy, the right to be heard and freedom of movement, EU and Member-State law should take the Charter into account when regulating these spheres.

An essential aspect of the EU’s fundamental rights policy will be the Union’s accession to the European Convention on Human Rights, which became obligatory under the Lisbon Treaty (Article 6(2) TEU).3 This would complement the system of protection of fundamental rights by conferring competence on the European Court of Human Rights to review EU measures while taking account of the Union’s specific legal order.

2. EU Fundamental rights prior to the Lisbon Treaty Continue reading

The EU’s Maternity Leave Directive: The Council secretly rejects the EP’s olive branch

30.3.15  The Council’s refusal to accept the EP’s olive branch and even start negotiations on a possible compromise (however unlikely that might be) is petty and vindictive

by Steve Peers, Professor of Law, University of Essex (Twitter: @StevePeers)

Back in 2008, the Commission proposed a modest amendment to the EU’s existing maternity leave Directive. The European Parliament amended the proposal so that there would be a significant extension in the duration and cost of maternity leave – namely 20 weeks on full pay. This attracted very little interest in the Council, and negotiations were deadlocked for years.

The incoming Commission in 2014 indicated that the EP and the Council had a few months to reopen negotiations on the proposal, or it would withdraw it. It appears that the EP then made some overtures to the Council to open negotiations to this end, although the documents setting out this willingness to negotiate (referred to in the Council document) do not seem to be publicly available.

According to the attached LIMITE document (obtained by Statewatch) large number of Member States in the Council have clearly rejected this willingness to negotiate, raising not only procedural objections against the creation of an ad hoc form of committee (although the Council endlessly creates new ad hoc negotiating bodies for its own purposes) but also substantive objections to holding any discussions at all with the EP on this issue. Presumably the proposal is now doomed – unless there is some last-minute new political initiative.

Frankly, no one comes out of this saga well.

Whether the EP’s far-reaching amendments were a good idea or not, it was obvious for years that the Council would never adopt them, and the EP waited until the eleventh hour before showing any sign of flexibility. Its principled rigidity will lead to less generous maternity for many women, who might have benefited from more modest amendments that could possibly have been agreed years ago.

For the Council, the refusal to accept the EP’s olive branch and even start negotiations on a possible compromise (however unlikely that might be) is petty and vindictive.

For the Commission, the offer to wait for the Council and the EP appears like a cynical passing of the buck, letting the co-legislators take the blame for the failure of the talks.

Why not take an active stance, suggesting possible compromise positions and expending some political effort in trying to bring the other institutions together?

And more broadly, the EU legislative process has failed here. Not just in the obvious sense that there is a failure to do a deal, or that the EP overplayed its hand to an almost cartoonish degree. It failed because of the skulking secrecy that infected the dying months of these (non-)negotiations.

As far I can see from its website, the EP’s women’s committee did not hold any public hearing on this proposal since the Commission issued its ultimatum. Its chair’s letter to the Council is not public (or at any event, it cannot be easily found). Surely this an important enough issue to engage the public? And the Council’s rejection of the EP’s apparent offer to negotiate is only ‘public’ because this document has been leaked.

The basic principles of democratic accountability mean that the Member States should account in public for their refusal to negotiate, and the EP should have disclosed its position and debated it in public. Perhaps the proposed changes to the maternity leave directive were doomed whatever happened – but they should have died with a public bang, not a squalid backroom whimper.



MARCH 31, 2015

The present contribution is a translated and somewhat simplified version of an article that appeared in German on 23 March 2015 in the Swiss legal online-journal Jusletter. The authors thank the Jusletter for their kind permission to republish the article and Markus Kern and the European Law Blog’s editorial team for valuable comments on earlier versions.

 Readers of this blog will nearly inevitably already have been confronted with this decision. The reactions to the Court’s Opinion have been vivid, to say the least. What did the Court say exactly on this draft agreement for accession to the ECHR? And is the current predominantly negative reaction (see for an exception here) justified? The main aim of the present post is to provide a concise summary of the Court’s findings, but also to provide some early assessment and criticism of the reactions on particular points. After a brief historical introduction to the context of the Opinion, we follow the sequence of analysis of the Court and thus examine in turn:

  • the arguments of the Court on the autonomy of the EU legal order;
  • the monopoly on dispute settlement established by Article 344 TFEU;
  • the co-respondent mechanism;
  • the procedure for the prior involvement of the CJEU and the specific characteristics of EU law concerning judicial review in matters of the Common Foreign and Security Policy (CFSP).

Short historical overview

The planned accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms (ECHR) pursues the objective of increasing the effectiveness and homogeneity of fundamental rights protection in Europe. The very idea of accession goes back to 1974, when France as the then last EU Member State ratified the ECHR and the German Bundesverfassungsgericht criticized the inadequate protection of fundamental rights in the European Economic Community in its well-known Solange I decision. While the Commission already favoured accession in 1979 and tried to convince the Council of its idea again in 1990, the latter only in 1994 asked the Court of Justice of the EU (CJEU) for a legal opinion. In its Opinion 2/94, however, the Court insisted that the Treaties lacked an appropriate legal basis for accession. With the Treaty of Lisbon, accession is now provided for in Article 6 (2) TEU. Consequently, on 4 June 2010 the Council gave a mandate to the Commission to start negotiations with the Council of Europe on accession of the EU to the ECHR. After the conclusion of negotiations the Commission now asked the Court for an Opinion on the draft agreement reached in the negotiations. The Opinion handed down by the Court in December 2014 was adequately designated as a veritable “Christmas bombshell”. Not only did the Court find a number of elements to criticize, as could already have been expected after the view delivered by Advocate General Kokott in June 2014. It eventually decided that the draft agreement was incompatible with the Treaties and developed a highly demanding reasoning rendering future accession quite a difficult task, as is subsequently set out in more detail.

The autonomy of EU law

The autonomy of EU law has been of constant high importance for the Court ever since its seminal decision in Van Gend en Loos. Following up on this case law, the Court also emphasizes with particular vigour the notion of autonomy in its opinion. Put shortly, the Court understands autonomy to signify that the EU may be a construction of international law, but that in its internal order its own rules displace the principles and mechanisms of international law.

In the Opinion, the Court notes, however, also the principal possibility of the EU and its organs to submit themselves via an international agreement to a binding interpretation of the latter by an external judicial organ (para 182, if not indicated otherwise all paragraph numbers refer to the Opinion of the Court). This principle is nonetheless limited in that the competences of the EU must not be affected in their essential character. In particular, ECHR organs must not be able to bind the EU to a particular interpretation of rules of EU law (paras 183-4).

In the Opinion, the CJEU finds three situations in which an accession of the EU to the ECHR based on the draft agreement could endanger the autonomy of EU law:

1.     The conflict between Art. 53 ECHR and Art. 53 Charter of Fundamental Rights

First, the Court holds that the draft agreement does not make Art. 53 ECHR compatible with Art. 53 Charter of Fundamental Rights. Both provisions foresee that the relevant instrument is not to be interpreted as to adversely affect fundamental rights standards already granted in other ways by the respective Member States. The Court sees therein the problem that EU Member States could be permitted by means of Art. 53 ECHR and in absence of a reconciling provision in the draft agreement to raise the level of protection of a fundamental right to the extent that the primacy, unity and effectiveness of EU law would be compromised (as already established in Melloni). The Court thus leaves room for renegotiation of the draft agreement in this respect so that its concerns can be met. It would thus have to be regulated that raising the level of protection of fundamental rights under the ECHR must neither affect the primacy of EU law for the EU Member States nor the unity and effectiveness of EU law (para 190).

However, this request will be hard to implement and appears to go beyond what is justified for two reasons, apart from the fact that the Court does not address to what extent the mentioned problems already exist with the current state of the law before an accession.

First, the Court requires that the European Court of Human Rights (ECtHR) effectively respects in its jurisprudence the CJEU’s findings in Melloni and thereby gives supremacy to the primacy, unity and effectiveness of EU law over fundamental rights protection under the ECHR. With this, the Court implies and requires that for the EU to accede to the ECHR for EU Member States within the scope of application of EU law only the Charter of Fundamental Rights is relevant, while the ECHR takes the backseat in terms of its substantive content. This would be comparable in effect to a reservation by a party state to the ECHR which requires that the interpretation of ECHR rights by the ECtHR must not go further than the national interpretation of fundamental rights. This appears to be extremely difficult to reconcile with the very object and purpose of the ECHR.

Second, the CJEU does not address at all Art. 52 (3) of the Charter according to which the rights granted in the Charter of Fundamental Rights which correspond to rights granted under the ECHR have the same content and scope as the latter. The ECHR operates thus as a source of knowledge on the minimum standard of protection of such fundamental rights which form part of EU primary law. There is, as a consequence, already a mechanism in EU law which reconciles the scope and content of fundamental rights in the Charter and the ECHR to a considerable extent. For most EU fundamental rights, the jurisprudence of the ECtHR is thus already relevant and binding. Within the scope of application of EU law national courts can already now apply higher standards of fundamental rights protection based on the ECHR and are obliged in cases of doubt to submit a question to the CJEU in the framework of a preliminary reference procedure. This again ensures that the Court has the last word on the standard of protection applicable in EU law.

2.     The requirement to check whether another Member State has observed fundamental rights under the ECHR

As a second problem the Court perceives a danger for the autonomy of EU law in the draft agreement because it may adversely affect the principle of mutual trust between the Member States concerning the respect of fundamental rights, which is in particular relevant in the Area of Freedom, Security and Justice (paras 191 ff.). The draft agreement provides according to the Court for an obligation of Member States to check the observance of all other party states even if they are EU Member States (para 194).

Indeed it can be taken as a fact that the mutual checking of observance of fundamental rights under the ECHR impairs the principle of mutual trust. The Court’s dicta, however, do not address that the relevant obligation already binds the EU Member States now. Furthermore, a more conciliatory argument could have been made at this point. Mutual checking of the observance of fundamental rights is typically required in the case law of the ECtHR where substantial violations of ECHR rights would be caused by the surrender of persons to another state – the framework of the Dublin system. A deviation from the principle of mutual trust in EU law is, however, typically only permitted in cases of extraordinary circumstances, which arguably requires a graver and more systematic violation of Convention rights. It is deplorable that the Court only recognises the divergence of standards in this matter as a problem without trying in any way to align EU law with the higher standard of protection given under the ECHR. It thereby sustained the principle of mutual trust practically at all costs.

3.     Requests for advisory opinions by national highest courts to the ECtHR on questions of principle

The third danger for the autonomy of EU law consists for the CJEU in the possibility granted by protocol n° 16 to the ECHR (currently not yet in force) for the highest courts of Member States to ask questions on the interpretation or application of fundamental rights to the ECtHR. The Court holds that although an accession of the EU to protocol n° 16 was not foreseen in the draft agreement, the ECHR would nonetheless become part of EU law, with the effect of the preliminary ruling procedure of Article 267 TFEU potentially loosing effectiveness. The highest courts of those Member States which ratified protocol n° 16 could also ask the ECtHR for advisory opinions falling within the scope of EU fundamental rights. Therefore, a mechanism is needed in the eyes of the Court to regulate the relationship between these two mechanisms and to ensure the autonomy and effectiveness of the preliminary ruling procedure (paras 196 ff.).

Indeed it cannot be excluded that the entry into force of protocol n° 16 may effectively have negative effects on the role of the CJEU. Nonetheless, it must be taken into account that the opinions handed down by the ECtHR are non-binding. Furthermore, as also the Advocate General found (AG view para 140), such negative effects would not be an effect of the accession of the EU to the ECHR. Even without such an accession EU Member States who ratified the protocol can ask advisory opinions from the ECtHR.

Contrary to the Court’s view, this problem already finds its solution in the Treaties. Based on Art. 267 (3) TFEU the courts of last instance of the Member States are obliged to submit EU law questions in the framework of a preliminary ruling procedure to the CJEU. This obligation enjoys clearly primacy over the obligations of Member States as parties to the ECHR as they could result from protocol n° 16 (see also AG view para 141). Should a Member States‘ court of last instance nonetheless submit a question within the scope of EU law to the ECtHR without being entitled to do so under the acte-clair-doctrine, proceedings for infringement of the Treaties could be engaged against that Member State based on Art. 258 f. TFEU.

The monopoly of dispute settlement under Art. 344 TFEU

The monopoly of dispute settlement maintained by the EU courts under Art. 344 TFEU obliges the Member States to settle disputes concerning the interpretation or application of the Treaties by no other means than the ones provided for in the latter and thereby strengthens the jurisdictional order of competences within the EU. Here, the Court sees a danger for this order. Art. 5 of the draft agreement provided that proceedings of the Member States before the CJEU ought not to be considered as proceedings in the sense of Art. 55 ECHR (para 201 ff.). Nonetheless, based on Art. 33 ECHR EU Member States would still have the possibility to start proceedings against other Member States or the EU itself. Even the mere existence of this possibility does not comply with Art. 344 TFEU in the eyes of the Court and would be incompatible with the latter provision’s exclusive character (paras 208 and 212). This tension can only be resolved by means of an express exclusion of the competence of the ECtHR under Art. 33 ECHT for disputes between EU Member States or between them and the EU which concern the application of the ECHR within the scope ratione materiae of EU law (para 213).

The CJEU thereby demands the inadmissibility of all state complaints in front of the ECtHR as far as the relevant provisions of the ECHR also fall within the scope of EU law and on the applicant and the respondent side there are Member States or the EU itself. This demand, however, is excessive for four reasons.

First, a demand for disconnection clauses (e.g. Art. 282 United Nations Convention on the Law of the Sea) contradicts the general praxis of international agreements to create an exception for the major part of parties excluding them from the dispute settlement procedure without opening this possibility for the other parties to the agreement (see also AG view para 115-6). It is highly likely that such an exception would meet little acceptance by the other member states of the Council of Europe and might render accession as provided for in Art. 6 (2) TEU difficult, if not impossible.

Second, this demand would simultaneously mean that numerous agreements already concluded by the EU are already now in contradiction to Art. 344 TFEU as they do not contain such exception provisions (see AG view para 117).

Third, in this case also EU Member States would find themselves under an obligation under Art. 351 (2) TFEU to amend a number of existing agreements. As soon as two or more EU Member States – as in the MOX Plant case – form parties to an agreement with a dispute settlement mechanism and provisions that overlap in substance with EU law, the monopoly of dispute settlement under Art. 344 TFEU would thus be endangered and the relevant agreement incompatible with the autonomy of EU law

Fourth, it remains questionable whether the autonomy of EU law must really be secured by imposing on non-Member States that they have to expressly guarantee the respect of the monopoly on dispute settlement of the CJEU within the EU in the provisions of an international agreement. The suggestion made by the Advocate General is more convincing in this regard. It should thus be sufficient to start infringement proceedings based on Art. 258 f. TFEU against EU Member States if they settle their disputes before other international instances (AG view, para 118). As an additional measure to ensure the practical effectiveness of Art. 344 TFEU EU Member States could be obliged before the accession of the EU to the ECHR to declare with binding force under international law that they will not engage proceedings under Art. 33 ECHR whose object of dispute falls within the material scope of EU law (AG view, para 120).

The co-respondent mechanism

Art. 3 of the draft agreement sets out the so-called co-respondent mechanism in which several member-states and/or the EU might have to respond jointly for a particular violation of the ECHR. Based on arguments of both respondent and co-respondent, this might allow the ECtHR to at least check some internal responsibilities in the EU. The first part of Art. 3 (7) provides that the respondent and the co-respondent are jointly responsible for a violation of the ECHR, which should prevent that the ECtHR has to decide based on EU law who is responsible for a particular violation (AG view, para 176). Based on the co-respondent mechanism the Union or an EU Member State can become full parties to proceedings with all corresponding rights and obligations whenever the examination of a violation of the ECHR implies also the scrutiny of a provision of EU law as to its compatibility with the ECHR. This is the case in particular where a violation would only have been avoided by means of a violation of EU law (paras 55 ff.). The draft agreement provides for two possibilities. Based on Art. 3 (5), the ECtHR can invite a party to the ECHR to become co-respondent or decide on a request to intervene as a co-respondent. In the latter case, the ECtHR has to verify whether the relevant requirements are plausibly fulfilled. The CJEU criticizes this point holding that it must be left to the EU and its Member States to examine whether the requirements for the co-respondent mechanism are met (para 220).

The mere invitation procedure fulfilled this condition according to the CJEU, as the invitation itself is not binding (para 221). Accordingly, a party could not be obliged to participate in proceedings (para 219); also, the EU and its Member States thereby retained the power to examine whether the material requirements were fulfilled – which necessarily included a decision based on EU law (para 220-1). For this purpose, it would be indispensable to apply the rules of EU law on the distribution of competences between the EU and the Member States and the criteria for accountability to the EU or the Member States (para 221).

In the case of a request to intervene as a co-respondent by either the EU or a Member State, however, the requesting party must provide arguments showing that the requirements are met (para 223). As a consequence, the Court would be called to examine not the arguments themselves in-depth, but nonetheless their plausibility (para 224). According to the CJEU, this is „liable“ to interfere with the division of powers between the EU and the Member States and thus inadmissible (para 225).

The Court’s approach appears highly restrictive in this context. Arguably, the intensity of review used by the ECtHR in all likelihood in this context will be rather low; moreover, no effectively binding interpretation of the distribution of powerstakes place.

As a further point of criticism the Court finds fault in the joint responsibility provided for in Art. 3 (7) of the draft agreement for the respondent and the co-respondent. This could lead to a Member State being held to be responsible together with the EU of a violation of a provision of the ECHR in respect of which said Member State has made a reservation (para 227). This would contradict protocol n° 8 to the Treaties which prescribes that the agreement on the accession of the EU to the ECHR has to ensure that nothing therein affects the particular situation of the Member States in relation to the ECHR, in particular in relation to reservations.

This argument similarly raises some questions. First, the EU can only become co-respondent in proceedings relevant to EU law when a Member State is respondent in front of the ECtHR. This is already excluded if there is a relevant reservation by that Member State. Second, neither will the ECtHR invite a Member State to intervene as co-respondent if there exists a relevant reservation by that Member State, nor will a Member State request to intervene in such a case. It therefore remains unclear how the joint responsibility mechanism is supposed to overrule in practice an existing valid reservation.

Finally, the CJEU criticizes – arguably correctly – that according to Art. 3 (7) of the draft agreement the ECtHR could decide based on the arguments of the respondent and the co-respondent, having sought the views of the applicant, that only one of the two is responsible for a violation. This would constitute again necessarily a decision based on EU law concerning the distribution of powers. As that decision is taken by the ECtHR, it could adversely affect this distribution (paras 230-1). This assessment would also remain the same if the ECtHR were to decide exclusively based on the arguments of the respondent and the co-respondent without hearing the applicant; even if by these means the ECtHR would merely „confirm“ an agreement reached by the respondent and the co-respondent on the distribution of responsibility, this would concern a question falling within the exclusive competence of the CJEU (para 234).

The procedure for the prior involvement of the CJEU

The procedure for the prior involvement of the CJEU provided for in Art. 3 (6) of the draft agreement intends to ensure that the Court obtains the opportunity and necessary time to examine the compatibility of provisions of EU law with the ECHR if it did not have a prior opportunity to do so. For the Court, this procedure is indispensable not only for reasons of subsidiarity as they result from the mechanism of supervision established by the ECHR, but also to ensure the proper functioning of the EU judicial system (para 236). For this purpose the CJEU holds that the question whether the Court had already ruled on a particular legal question necessarily had to be decided by an EU organ and in a manner binding for the ECtHR (para 238). Otherwise, the competence to interpret the jurisprudence of the CJEU would be transferred to the ECtHR (para 239). As a consequence, the Court finds that Art. 3 (6) of the draft agreement in its current form was incompatible with those principles, as it did not ensure that the EU was „fully and systematically“ informed in any case pending before the ECtHR, which was necessary to allow the competent institution to assess whether the prior involvement procedure had to be triggered (para 241). In particular, the ECtHR knows no systematic collection of all pending and received complaints as is by comparison the case for the CJEU in form of the Official Journal of the EU (see AG view, para 224). The argument about an indirect duty to inform imposed on the Member States based on the duty of loyal cooperation was also not taken up (see on these points AG view, para 227).

While this appears in principle convincing, the question arises whether the duty of full and  systematic information must necessarily be regulated in the accession agreement. Based on the duty of loyal cooperation of the Member States this problem could also be resolved within the EU in the form of a more concrete EU legal act.

At the same time, the CJEU finds fault in the interpretation given to Art. 3 (6) by the draft explanatory report; the report stated that the provision ought to mean that the CJEU would only examine the compatibility with ECHR with respect to the interpretation of primary law and the validity of secondary law, but not with respect to the interpretation of secondary law. Apparently matters of interpretation of secondary law could thus not be brought before the Court (para 242-3). It would violate the exclusive competence of the CJEU to interpret EU secondary law in a binding manner if as a consequence the ECtHR had to decide for itself on a plausible interpretation of secondary law in this context (para 246).

The Court’s analysis is certainly convincing in this respect. However, it can be criticized that a problem should be resolved at the international legal level of the accession agreement that is – at the end of the day – essentially an internal one of the EU legal order, namely the potential disrespect by national courts of the duty to refer EU law questions to the Court. In purely substantive terms the arguments of the Court are, however, correct. In theory, one could of course try to interpret the notion of “[a]ssessing the compatibility” broadly so that cases of interpreting EU secondary law would be included (see AG view, para 132). However, the draft explanatory report that according to the express will of its drafters enjoys the same authority as the draft agreement itself expressly casts doubt on such a reading (AG view, para 134). An amendment and clarification in a future draft agreement is thus indispensable (AG view, paras 133 and 135).

The Common Foreign and Security Policy

For the purposes of the Common Foreign and Security Policy (CFSP), the jurisdiction of the Court is limited in the Treaties to whether Art. 40 TEU has been respected and to the review of legality of certain decisions taken based on Art. 275 (2) TFEU, the latter concerning essentially legal actions brought against the legality of decisions on restrictive measures against natural and legal persons taken by the Council. The question becomes therefore to what extent the ECtHR can have jurisdiction to examine the compatibility of legal acts with the ECHR without the CJEU being able to express its views on such acts.

The Commission had argued that a systematic interpretation would be possible according to which the Court would have a sufficiently large jurisdiction. As a consequence of such an interpretation, all cases would be encompassed which could potentially form the basis of a complaint under the ECHR, which are annulment actions, but also actions in damages and preliminary ruling procedures engaged by national courts in the area of the CFSP. However, the Court had severe doubts in this regard, as it did not yet have the opportunity to address the extent of the limitations of its jurisdiction in the area of the CFSP (para 251). Because of the limitation of the CJEU‘s jurisdiction in the Treaties, according to the Court an accession based on the draft agreement would currently lead to a situation where the judicial control of the relevant acts or omissions of the EU with regard to their compatibility with the ECHR would be exclusively attributed to an organ external to the EU (para 255). As held in earlier jurisprudence, this would be inadmissible (para 256).

In merely dogmatic terms the Court is certainly correct in its interpretation of Art. 275 (2) TFEU. The interpretation suggested by the Commission is hardly convincing: The provision already systematically forms an exception from the rule that the CJEU has no jurisdiction. Furthermore, its wording only refers to annulment actions brought by individuals based on the conditions of Art. 263 (4) TFEU and not as suggested by the Commission to other kinds of proceedings (see AG view, para 89). By contrast, the fundamental rejection of giving jurisdiction to the ECtHR is less convincing as the rather short-hand answer given by the Court makes it appear. One can already note with curiosity that the Court here makes exclusive statements on jurisdiction, thereby extending its own exclusive jurisdiction to an area where – based on the Treaty – its own jurisdiction is expressly excluded.

A closer look at the area of the CFSP shows that one may regret from an integrationist perspective the decision taken by the drafters of the Lisbon Treaty (see AG view, paras 101-3); however, it must be accepted that they intentionally created a situation where the national courts take the place of the CJEU, which therefore also prevents the emergence of any problem of violation of the latter’s exclusive jurisdiction. From this perspective, accession to the ECHR would not be excluded (AG view, paras 101-3).

In the case of the CFSP the national courts replace the CJEU and have to ensure effective judicial protection of individuals also in the absence of the Court’s competence to make preliminary rulings and monopoly to annul EU law (AG view, para 102). The Court’s reasoning is hardly convincing in this regard, as problems of conflicting jurisprudence and dangers for the EU’s supranational structure cannot emerge when an international court is granted more far-reaching jurisdiction than the EU courts (AG view, para 193).

However, this has been explicitly taken into account by the drafters of the Lisbon Treaty when they regulated both the accession of the EU to the ECHR and the limited jurisdiction of the CJEU in CFSP matters in the Treaties (AG view, para 194). Also with regard to this point the Court’s reasoning appears thus to exceed what is dogmatically convincing, with the result that in an area where much could be gained by accession to the ECHR from the perspective of individuals in terms of judicial control, the Court finds it preferable that no one has jurisdiction to the ECHR being granted this privilege. What is more, the Court’s dicta seem to point in a direction where an interpretation of provisions of CFSP acts by the International Court of Justice in The Hague would appear problematic and Member States could accordingly see themselves threatened by infringement proceedings if they participate in such proceedings.


General evaluation:

The general reaction by the doctrine to Opinion 2/13 has been overwhelmingly negative. As a representative remark, it has been stated that in light of the overall objective of submitting the EU to an external system of judicial fundamental rights review, the Court’s findings seem to overemphasize the autonomy of the EU legal system and do not ask sufficiently what could be acceptable losses of autonomy indispensable to achieve the stated objective. Already the view of Advocate General Kokott demonstrates that a different solution would have been possible. Despite her criticism of a number of points in the draft agreement, the Advocate General suggested that the Court ought to avoid pronouncing the draft agreement incompatible with the Treaties, but instead hold that it was compatible if certain amendments were undertaken following the Court’s opinion (AG view, para 279). Before this background, one can legitimately ask whether the Court’s approach is justifiable in the light of Art. 6 (2) TEU which can certainly be read as encompassing a duty of best efforts towards accession of the EU to the ECHR. Instead of at least opting for a somewhat encouraging wording that could serve as a road map for the Commission, the Court, however, decided to hand down a no spread over nine pages.

How to move on?

The Opinion will generally render future accession highly difficult and delay it in addition, since already the negotiations of the draft agreement proved protracted and complex and since in the draft agreement suggestions by the CJEU which was represented in the relevant Council committee had already been taken into account.

A number of concrete proposals have been brought forward as a reaction to Opinion 2/13. Some argue thus that accession would make no longer sense under the conditions given by the CJEU, as this would not allow the creation of an effective external surveillance mechanism of EU action with regard to fundamental rights protection. Others propose an amendment of EU primary law – up to an open snub towards the Court. Politically, however, this appears highly difficult, as such an amendment would need to be comprehensive and tackle a number of points. A rather extreme suggestion calls openly for political disobedience against the CJEU: a protocol should be drafted that allows accession of the EU to the ECHR notwithstanding Opinion 2/13. A renegotiation of the draft agreement would behardly realistic given the notable unwillingness of negotiating partners such as Russia or Switzerland. Again others see the opinion as a welcome step that gives more time to the EU to develop its internal mechanisms for fundamental rights protection, in particular those based on the Charter of Fundamental Rights, before an external surveillance mechanism is installed. Another alternative proposalforesees an amendment of the Treaties which clarifies the status of the ECHR within EU law and upgrades it to ensure instead of an accession to the ECHR a more coherent observance of the ECHR acquis.

The perspective of the ECtHR

Some speculation has also arisen with regard to what changes for the ECtHR as a result of Opinion 2/13. In particular, one may wonder whether the Bosphoruspresumption developed in the ECtHR’s jurisprudence could now be questioned. Under this presumption, the ECtHR did not fully release EU Member States of their responsibility for having transferred their activities to the level of an international organisation like the EU, but established after a thorough investigation that the EU’s system of fundamental rights protection according to the state of the law at the time was appropriate in the sense of the ECHR. Early reactions from the ECtHR have already been interpreted as possible signs for a less close cooperation between the two courts in the future.

This post was co-authored with Benedikt Pirker


Do Facebook and the USA violate EU data protection law? The CJEU hearing in Schrems

Sunday, 29 March 2015
by Simon McGarr, solicitor at McGarr solicitors (*)

Last week, the CJEU held a hearing in the important case of Schrems v Data Protection Commissioner, which concerns a legal challenge brought by an Austrian law student to the transfers of his personal data to the USA by Facebook, on the grounds that his data would be subject to mass surveillance under US law, as revealed by Edward Snowden. His legal challenge was actually brought against the Irish data protection commissioner, who regulates such transfers pursuant to an agreement between the EU and the US known as the ‘Safe Harbour’ agreement. This agreement takes the form of a Decision of the European Commission made pursuant to the EU’s data protection Directive, which permits personal data to be transferred to the USA under certain conditions. He argued that the data protection authority has the obligation to suspend transfers due to breaches of data protection standards occurring in the USA. (For more detail on the background to the case, see the discussion of the original Irish judgment here).

The following summarises the arguments made at the hearing by the parties, including the intervening NGO Digital Rights Ireland, as well as several Member States, the European Parliament, the Commission and the European Data Protection Supervisor. It then sets out the question-and-answer session between the CJEU judges (and Advocate-General) and the parties. The next step in this important litigation will be the opinion of the Advocate-General, due June 24th.

Please note: these notes are presented for information purposes only. They are not an official record or a verbatim account of the hearing. They are based on rough contemporaneous notes and the arguments made at the hearing are paraphrased or compressed. Nothing here should be relied on for any legal or judicial purpose, and all the following is liable to transcription error.

Schrems v Data Protection Commissioner
Case C-362/14
M.V Skouris (president); M.K. Lenaerts (Vice President); M.A. Tizzano; Mme R. Silva de Lapuerta; M. T. Von Danwitz (Judge Rapporteur); M. S. Rodin; Mme K. Jurimae; M. A Rosas; M. E. Juhász; M. A. Borg Barthet; M. J. Malenovsky; M. D. Svaby; Mme M. Berger; M. F. Biltgen; M. C. Lycourgos; M. F. Biltgen
M. Y. Bot (Advocat General)

Max Schrems

Noel Travers SC for Mr. Schrems told the court that personal data in the US is subject to mass and indiscriminate mass surveillance. The DRI v Ireland case struck down the EU data retention directive, establishing a principle which applies a fortiori to this case. However, the court held that Data Retention did not affect the essence of the right under Article 8, as it concerned only metadata. The surveillance carried out in the US accesses the content of data as well as the metadata, and without judicial oversight. This interference is so serious that it does violate the essence of Article 8 rights, unlike the data retention directive. Mr. Travers held that the Safe Harbour decision is contrary to the Data Protection directive’s own stated purpose, and that it was accordingly invalid.
Answering the Court’s question as to whether the decision precludes an investigation by a Data Protection Authority (DPA) such as the Irish Data Protection Commissioner, he submitted that compliance with fundamental rights must be part of the implementation of any Directive. Accordingly, national authorities, when called upon in a complaint to investigate breaches must have the power to do so.
Article 25.6 of the data protection Directive allows for findings on adequacy regarding a third country “by reason of its domestic law or of the international commitments it has entered into”. The Safe Harbour Principles (SHPs) and FAQs are not a law or an international agreement under the meaning of the Vienna Convention. And the SHPs do not apply to US public bodies. The Safe Harbour Principles are set out in an annex to a Commission Decision, but that annex is subject to US courts for interpretation and for compliance. Where there is a requirement for compliance with law, it is with US law, not EU law.

Irish Data Protection Commissioner

For the Data Protection Commissioner, Mr. Paul Anthony McDermott said that with power must come limitations. All national regulators are firstly bound by domestic law. The Data Protection Commissioner is also bound by the Irish Constitutional division of powers. She cannot strike down laws, Directives or a Decision.
Mr. Schrems wanted to debate Safe Harbour in a general way- it wasn’t alleged then that Facebook was in breach of safe harbour or that his data was in danger. The Irish High Court had a limited Judicial Review challenge in front of it. Mr. Schrems didn’t challenge Safe Harbour, or the State, or EU law directly, and the Irish High Court declined the application by Digital Right Ireland to refer the validity of the Safe Harbour Decision to Luxembourg. Mr. McDermott asked the court to respect the parameters of the case.
Europe has decided to deal with the transfer of data to the US at a European level. The purpose of the Safe Harbour agreement is to reach a negotiated compromise. The words “negotiate”, “adapt” and “review” appear in the Decision. It is clear therefore that a degree of compromise is envisaged. Such matters are not to be dealt with in a court but, as they involve both legal and political issues, by diplomacy and realpolitik.
The Data Protection Commissioner can have regard to the EU Charter of Fundamental Rights when she’s balancing matters but it doesn’t trump everything. It doesn’t allow her to ignore domestic law or European law, Mr. McDermott concluded. Continue reading

Member States and the rule of law. Dealing with a breach of EU values


by Eva-Maria Alexandrova POPTCHEVA


The European Union is founded on values common to all Member States. These are supposed to ensure a level of homogeneity among Member States, while respecting their national identities, so facilitating the development of a European identity and their integration. Article 7 of the Treaty on European Union provides mechanisms to enforce EU values, based on a political decision by the Council with the participation of the Commission and Parliament. Such decisions are exempt from judicial review.

The current mechanism is said to be unusable due to the high thresholds needed to adopt a decision in the Council, as well as Member States’ political unwillingness to use it. Various new approaches have been proposed by academics and by political actors, from a new independent monitoring body — the ‘Copenhagen Commission’, through extending the mandate of the EU Fundamental Rights Agency (FRA), to introducing the possibility for the EU to suspend national measures suspected of infringing EU law.

The European Parliament launched the idea of a ‘European fundamental rights policy cycle’ with the cooperation of EU institutions, Member States and the FRA, as a ‘new Copenhagen mechanism’ to monitor the situation in Member States. This mechanism would incorporate an early-warning system, with ‘formal notices’ to Member States where a breach in the rule of law appears likely, before formal proceedings under Article 7, and a ‘freezing procedure’ for national measures infringing upon EU values.

In 2014, the Commission announced ‘A new EU framework to strengthen the Rule of Law’, with a structured dialogue between the Commission and the Member State concerned and Commission recommendations and follow-up. On an initiative of the Italian Presidency, the Council decided in December 2014 to hold an annual dialogue, in the General Affairs Council, on the ‘rule of law’ in Member States.

A Union of values 

EU values and national identity

The EU ‘values’ were enshrined in the Treaties only with the Treaty of Lisbon, replacing the previous, less extensive ‘principles’. However, it has been clear from the very beginnings of the Communities that, to succeed, the European integration process needs a common basis of values to secure a degree of homogeneity amongst the Member States.The EU values are supposed to be the basis for a common European ‘way of life’, facilitating integration towards a political, not just a ‘market’, Union. They support the development of a European identity, while ensuring the legitimacy of the EU as founded on democratic values. However, when it comes to detailed definitions of each of the values, there are few accepted unreservedly.

The EU values enjoy two-fold protection. First, since the 1993 Copenhagen European Council, they form part of the accession criteria for candidates for EU membership (Article 49(1) TEU). Second, Member States must, following their accession, observe and promote the EU values. Article 7 of the Treaty on European Union (TEU) establishes a procedure to sanction a Member State which does not uphold the values, through the suspension of membership rights. Moreover, the Union exports its values outside its territory, with the EU values underlying the international relations of the EU (Articles 21, 3(5), and 8 TEU).

On the other side of the coin are the national constitutional identities of Member States. According to Article 4(2) TEU, the Union must respect Member States’ national identities. This provision sets out a vision of a Union founded on values common to all Member States but which preserves the diversity of Member States’ political and organisational systems. This so called ‘constitutional individuality’ of the Member States can be reflected inter alia in state-organisational, cultural, including language, and historical heritage aspects.2 Hence, the common EU values represent limits to the diversity of Member States, reflected in their constitutional identities.

Some examples Continue reading

Within the Sound of Silence. Dangerous Liaisons between Detention and Citizenship under European Union Law

by Leandro Mancano (*)

Many scholars have recently pointed out the need to revise those European Union (EU) instruments adopted under the former ‘third pillar’. This urgency has only grown after the expiring of the transitional period, occurred 1st December 2014, which resulted in issues of legal uncertainty as to which kind of legal regime is to be applied to such instruments (whether the pre-Lisbon framework, the post Lisbon rules or a ‘middle-way’ solution). In this context, three EU law instruments on detention deserve particular attention: Council Framework Decision (FD) 2009/829/JHA on supervision measures; Council FD 2008/947/JHA on probation measures and alternative sanctions; Council FD 2008/909/JHA on mutual recognition of custodial sentences (also known as FD on the transfer of prisoners).

Firstly, the Commission has rebuked Member States at the outset of 2014, in light of the weak state of implementation of these instruments (1). After one year, such report has been followed by updated information about the state of play of the implementation of these FDs, which testify that many Member States have not fulfilled their obligation of transposition so far (2). This raises concerns especially if one considers that detention has been increasingly playing a major role throughout EU law, establishing a potentially dangerous liaison with EU citizenship.

As shown below, the risky factor lies in the circumstance that many cross references have made between EU criminal law and EU citizenship. However, such connections are surrounded with a sound of silence, as their meaning and outline have not been sufficiently clarified hitherto.

The basic assumption which EU citizenship brings with it is that every Union citizen is entitled to move and reside freely within the Union regardless of their nationality, and without requiring a link to the performance of an economic activity.This can be inferred from primary legislation (in particular Articles 18, 19 and 21 of the Treaty on the Functioning of the EU), as well as Directive 2004/38/EC (also known as ‘Citizenship Directive’). On the one hand, under Article 16 of the Directive Union citizens are granted the right of permanent residence in the host Member State after legally residing therein for a continuous period of five years. On the other, Article 28 states that: those Union citizens (or their family members) who have the right of permanent residence in the host Member State, may be subject to an expulsion measure so long as there are serious grounds of public policy or public security; Union citizens who have resided in the host Member State for ten years may not be expelled from the host Member State, unless imperative grounds of public security, as defined by Member States, justify the measure. The provision also applies to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for the same timeframe.

The intersections between EU citizenship and detention may be traced back to a threefold track. Continue reading

Another episode of the EU PNR saga: remarks of the national data protection authorities


Dear Mr Moraes,
Since the terrorist attacks in Paris and Copenhagen, the discussion on the possible introduction of an EU Passenger Name Records system (hereafter: EU PNR) has moved significantly forward, both in the Council and in the European Parliament. In particular, Mr Kirkhope, rapporteur on this issue, has presented an updated report on the Commission’s 2011 draft directive establishing an EU PNR to your Committee.
As stated early last month, the Article 29 Working Party (hereafter: the WP 29) is not in principle either in favour of or opposed to PNR data collection schemes  (See press release issued by the Article 29 Working Party on EU PNR on 5 February 2015), as long as they are compliant with the fundamental rights to respect for private life and to the protection of personal data.
However, considering the extent and indiscriminate nature of EU PNR data processing for the fight against terrorism and serious crime, the WP 29 believes that it is likely to seriously undermine the rights as set out in Articles 7 and 8 of the Charter of Fundamental Rights in the European Union.
In this regard, the Working Party acknowledges that there have been some improvements to the initial draft from a data protection perspective. Still, the Working Party wishes to urgently draw your attention to the following outstanding issues to ensure that the aforementioned fundamental rights are respected.
First, the necessity of an EU PNR scheme still has to be justified.  Precise argumentation and evidence are still lacking in that respect.   Further restrictions should also be made to ensure that the data processing is proportionate to the purpose pursued, in particular considering that the report now includes intra-EU flights in the data processing. Therefore, it is recommended that the data collection is limited with reference to specific criteria in order for the scheme to guarantee respect for individuals’ fundamental rights and to take the CJUE data retention judgment into account.  Besides this, the scope of the offences concerned should be further reduced and the retention period shortened and clearly justified.
In addition, a major error in the new Articles 10a and 12(1b) stemming from an apparent misunderstanding of the data protection authority’s role must be rectified in order to set the responsibilities of governments and data controllers.
Finally, the WP29 insists on the necessity to present as soon as possible a detailed evaluation of the efficiency of the PNR scheme. A sunset clause should also be inserted into the directive to assist in ensuring periodic review of the necessity of the system.

All these points will be developed in an appendix of this letter, as well as concrete modifications and improvements proposed to the text by the Working Party. I would be grateful if you would be so kind as to forward this letter to the members of your committee in order for them to take account of these views before the deadline for further amendments to the proposal. Naturally, the Working Party remains at your disposal for any clarification you would require and further input during the discussion on EU PNR.

Yours sincerely,
On behalf of the Article 29 Working Party,
Isabelle FALQUE-PIERROTIN Chairwoman

Appendix :
Demonstrating the necessity and ensuring the proportionality of the EU PNR scheme

Continue reading