Legally sophisticated authoritarians: the Hungarian Lex CEU

ORIGINAL PUBLISHED ON VERFASSUNGSBLOG

 (*)

On 28 March the Hungarian government tabled an amendment to the Act on National Higher Education in Parliament. Even though the draft is formulated in normative terms, the only targeted institution is the Central European University (CEU), founded by George Soros, one of the main enemies of the Viktor Orbán’s ‘illiberal state’. Michael Ignatieff, former professor of Harvard University’s John F. Kennedy School of Government, current president and rector of CEU assessed the draft as a discriminatory political vandalism, violating Hungarian academic freedom. Here I do not want to deal with the clear ideological and political motivations of the action of the current Hungarian Prime Minister, a that time liberal recipient of Soros’s financial support during his studies in Oxford three decades ago.

I want rather focus on the behavior of a contemporary authoritarian (or dictator, as Jean-Claude Juncker, the President of the European Commission once greeted him). As William Dobson argues is his book, The Dictator’s Learning Curve, “today’s dictators and authoritarians are far more sophisticated, savvy, and nimble that they once were”. They understand, as Orbán does, that in a globalized world the more brutal forms of intimidation are best replaced with more subtle forms of coercion. Therefore, they work in a more ambiguous spectrum that exists between democracy and authoritarianism, and from a distance, many of them look almost democratic, as the leader of Hungary, a Member State of the EU, does. Their constitutions, as the Fundamental Law of Hungary, often provide for a division of powers among the executive, the legislature, and the judiciary – at least on paper. They are also not particularly fearful of international organizations. Even a threat of foreign or international intervention and criticism can be a useful foil for stirring up nationalist passions and encouraging people to rally around the regime, as for Orbán, who claims to protect Hungary to became a colony of the EU. If necessary, they use the most refined European discourses, for instance about national constitutional identity, as the Orbán government did in order not to take part in any European efforts to solve the refugee and migration crisis. And as opposed to previous dictators of the old good times of totalitarian regimes, who just closed up organizations they did not like, without any scruples, today’s authoritarians take advantage of formalistic legal arguments against their enemies. The Russian authorities in the fall of 2016 revoked the educational license of the European University in St. Petersburg following unscheduled checks in the buildings referring to several violations against regulations, such as lack of fitness room and an information stand against alcoholism.

Similarly, the new draft law of the Hungarian government also uses legal tricks to force CEU to cease operation in Budapest. Such a clearly unacceptable requirement would be to open an additional campus in the State of New York. This wasn’t a condition in 1995, when CEU, holding a charter from the New York State Education Department, received its license to operate in Hungary from the Ministry of Culture and Education. Like other international universities chartered in the US, CEU does not maintain any academic or other programs in the United States. Moreover, in 2004 Hungary promulgated a special law on the establishment of Közép-európai Egyetem (KEE) as a Hungarian university, which was accredited by the Hungarian Accreditation Committee together with ten graduate and doctoral programs of the CEU as programs of KEE. Ever since the university has a dual legal entity, as KEE and CEU, but it is one university with only one campus, one academic staff, senate and rector, the latter appointed by the President of Hungary. According to the new law Hungarian universities could only deliver programs of European universities and not of countries from the OECD (including the US), therefore KEE, the Hungarian university could no longer deliver its single set program with CEU, which was allowed under the current law. 

The amendment if passed would make it impossible for CEU to continue its research and teaching activities, including its highly ranked comparative constitutional law LLM and SJD programs. This violates scientific freedom in Hungary, which on paper is still part of the Hungarian Fundamental Law. In the absence of an independent constitutional court in Hungary, the only domestic ‘remedy’ which one can imagine in an authoritarian regime is that the ‘wise leader’ graciously withdraws from his plan.

(*) Halmai, Gábor: Legally sophisticated authoritarians: the Hungarian Lex CEU, VerfBlog, 2017/3/31, http://verfassungsblog.de/legally-sophisticated-authoritarians-the-hungarian-lex-ceu/, DOI: https://dx.doi.org/10.17176/20170401-102552.

What is the point of minimum harmonization of fundamental rights? Some further reflections on the Achbita case.

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

Eleanor Spaventa, Director of the Durham European Law Institute and Professor of European Law, Law School, Durham University

Ronan McCrea has already provided a very thoughtful analysis of the headscarf cases; this contribution seeks to complement that analysis by focusing on two issues arising from the Achbita case: first of all, the structural problems with the ruling of the Court, both in terms of reasoning and for the lack of information provided; secondly, the more general implications of the ruling for fundamental rights protections and the notion of minimum harmonization in the EU context.

It might be recalled that in the Achbita case a Muslim woman was dismissed from her employer for refusing to remove her headscarf, contrary to the employer’s policy of neutrality, which included a ban on wearing religious symbols. The case then centred on the interpretation of the framework discrimination Directive (2000/78) which prohibits, inter alia, discrimination on grounds of religion. The Belgian and French Government (which had a direct interest because of the Bougnaoui case) intervened in favour of the employee, believing that the discrimination at issue was not justified (Achbita opinion, para 63). The Court, following the Opinion of AG Kokott, found that the rules at issue might constitute indirect discrimination; that the employer’s aim to allegedly maintain neutrality was a legitimate aim as it related to its freedom to conduct a business as protected by Article 16 Charter. It then indicated that the policy was proportionate, if applied with some caveats.

The reasoning of the Court – some structural deficiencies

The headscarf cases are of fundamental importance to the European Union and to all of its citizens, not only those who practice a non-dominant religion, and as such have been widely reported even outside of the EU. One might have expected the Court to engage with a more thorough analysis of the parties’ submissions and of the issues at stake. Instead, we have two very short rulings with very little detail. Just to give an important example – in both cases the French and the Belgian governments sided with the claimants, hence drawing a very important conceptual limit to the principle of laïcité which is justified, in this view, because of the very nature of the State and its duty of neutrality, a duty which cannot be extended to private parties (or if so only exceptionally). This important distinction is not discussed in the ruling, not are the views of the governments who would be directly affected by the rulings.

More importantly though, the fact that the arguments of the parties are not recalled has also more general consequences: as it has been noted by Bruno De Witte elsewhere, the fact that no hermeneutic alternative is provided might give the impression that no hermeneutic alternative is in fact possible, as if legal interpretation is simply a matter of discovering the true hidden meaning of a written text. This approach, not uncommon in civil law jurisdiction but more nuanced in constitutional cases, hides the fact that, especially in cases of constitutional significance, there is more than one legitimate interpretative path that could be chosen, which also reflect different policy alternatives. Interpretation then is also a choice between those different paths: a choice which is, of course, constrained by the relevant legal system and one that might be more or less persuasive.  The failure to acknowledge counter-arguments then results in rulings, like the ones here at issue and many others in sensitive areas, which are not only potentially unhelpful, but also close the door to more effective scrutiny of the reasons that lead the Court to follow a given interpretation.

In the same vein, the analysis of the discriminatory nature of these provisions is rather superficial. In particular, there is no thought given to the fact that contractual clauses allegedly protecting a principle of neutrality, might not only have a discriminatory effect against certain individuals, but might have important inter-sectional (or multiple) discriminatory effects. In other words, a rule banning religious symbols might in fact also have a more pronounced effect on people from a certain ethnic background or a certain gender. Equally disappointing, and in this writer’s opinion legally flawed, is the approach taken in relation to the finding of the potentially indirectly discriminatory effects of the rules at issue. Here, the Court requires the national courts to determine whether the ‘apparently neutral obligation [(not to wear religious symbols)] (…) results in fact in persons adhering to a particular religion or belief being put at a particular disadvantage.” (para 34, emphasis added).

There are two issues to be noted here: first of all, the Court remains silent as to what type of evidence of indirect discrimination is required, and by whom. In discrimination cases, burden of proof is crucial. This is recognised by the discrimination directives at EU level, including Directive 2000/78 which provides that if the claimant shows direct or indirect discrimination, then it is for the ‘respondent to prove that there has been no breach of the principle of non-discrimination’ (Article 10(1)). One would have expected then the Court of Justice to instruct the national court to require the defendants to discharge this duty with a certain rigour, also by means of statistical analysis of the effect of such policies on religious minorities. Yet, the Court does not even engage with this question.

Secondly, and not less important, the Court seems to imply that a rule that discriminates all religious people would not be problematic. For instance if, say, Muslims and Orthodox Jews were equally discriminated against, whilst non-religious persons were unaffected, then, based on the dicta of the Court, there would be no discrimination. This interpretation seems restrictive and not supported by the text of the directive (or the Charter) that refers to discrimination on grounds of religion in general. In any event, in discrimination cases it is crucial to identify the comparator, and the Court fails to do so clearly and to support its choice with sound legal arguments. But, beside these very important structural issues, the Achbita ruling raises other more technical as well as general issues, as to the extent to which the Court’s interpretation might affect the Member States’ discretion to provide more extensive protection that that provided for in the Directive.

Minimum harmonization and fundamental rights

Directive 2000/78 is intended only to set minimum standards, so that Member States can, if they so wish, provide for a more extensive protection. Indeed many Member States have done so by extending either the protected categories of people, or the field of application of the legislation, or both. In theory then, the Achbita ruling should not be seen as the last word in relation to the treatment of religious people at work. After all, if Belgium or France or any other country finds the ruling problematic, it can simply pass legislation prohibiting private employers from requiring religious neutrality from its employees, unless of course a specific dress code is necessary to ensure the health and safety of the worker or the public. Viewed in this way, and notwithstanding the structural problems identified above, the ruling seems very sensible: it is agnostic, in that it does not impose either model on Member States, allowing therefore a degree of variation in a very sensitive area, something which, as eloquently discussed in McCrea’s post, might not be a bad thing. After all, this is the same path that has been taken by the European Court of Human Rights.

However, things are slightly more complicated in the European Union context. In particular there is nothing in the ruling to indicate that the Directive sets only minimum standards so that it would be open to those Member States to go further in protecting people holding religious beliefs. And, more crucially, the Court, mirroring the opinion of Advocate General Kokott, refers to the EU Charter of Fundamental Rights when assessing the legitimacy of the justification put forward by the employer. In particular, it finds that the business’s wish to ‘project an image of neutrality (…) relates to the freedom to conduct a business that is recognised in Article 16 of the Charter and is, in principle, legitimate’.

The reference to the Charter, which indirectly frames the question as a clash of fundamental rights, is important because, in the EU context, when the Charter applies it sets the fundamental rights standard. In simpler terms this means that should a Member State wish to provide more extensive protection to ensure that employees are not discriminated on grounds of their religious belief, something that is allowed under Directive 2000/78, it might be prevented from doing so since, pursuant to the Achbitaruling, it would infringe the right to conduct a business as protected by the Charter. In this way, far from leaving the desired flexibility and discretion to the Member States, the Court sets the standard – employers have a fundamental right, albeit with some limitations, to limit the employees’ right not to be discriminated against. One might well ask then, much as it has been remarked in relation to the Alemo Herron case, what is the point of minimum harmonization directives if the upward discretion of the Member States is so curtailed.

Conclusions

The Court of Justice did not have an easy task in the Achbita case: it was pretty much a ‘damned if you do, damned if you don’t’ scenario. For sure, some of us would have liked the balance at issue to be tilted firmly in favour of religious minorities, especially given the growing evidence of attacks and discrimination against, particularly, Muslim women. The Court chose a different path and that is, of course, within its prerogatives. However, the way that path was trodden upon leaves many open questions both in relation to the way the result was achieved, and to the many questions it overlooks. What is most troubling is the implication that the freedom of Member States to provide greater protection towards minorities may, in principle, be constrained by the Court’s interpretation of the freedom to conduct a business.

Barnard & Peers: chapter 9, chapter 20

 

Headscarf bans at work: explaining the ECJ rulings

ORIGINAL PUBLISHED ON EU LAW ANALYSIS ON TUESDAY, 14 MARCH 2017

Professor Steve Peers

When can employers ban their staff from wearing headscarves? Today’s rulings of the ECJ have attracted a lot of attention, some of it confused. There have been previous posts on this blog about the background to the cases, and about the non-binding opinions of Advocates-General, and there will hopefully be further more analytical pieces about today’s judgments to come. But this post is a short explanation of the rulings to clear up any confusion.

Background

The EU has long had laws on sex discrimination, and discrimination regarding EU citizens on grounds of nationality. Since 2000, it has also had laws against race discrimination and also a ‘framework directive’ against discrimination at work on grounds of disability, age, sexual orientation or religion. The ECJ has often been called upon to rule on the first three of those grounds, but today’s two judgments (G4S v Achbita and Bougnaoui) are the first time it has been asked to rule on non-discrimination at work on religious grounds.

EU law does not generally apply to other aspects of religion, except that EU law on asylum applies to people who have been persecuted on religious grounds. So today’s judgments are not relevant as regards regulating religion in education, for instance.

It should also be noted that the European Convention on Human Rights (ECHR) protects the freedom of religion.  The European Court of Human Rights – a separate body – has previously ruled on how that freedom applies in the workplace, concluding that in some cases employers must allow employees who wish to wear religious symbols (see Eweida v UK, for example).

The rulings

The G4S ruling is the more significant of the two cases, in which the ECJ’s reasoning is most fully set out. First the Court rules that clothing worn for religious reasons is an aspect of religious belief. Then it concludes that there was no direct discrimination (ie discrimination purely on religious grounds) against Ms. Achbita, who was not allowed to wear a headscarf when dealing with customers, because her employer had a general ban on any employee display of religious or political belief.

Next, the ECJ ruled on whether there was any indirect discrimination (ie discrimination not on religious grounds, but which affected people of a particular religion more than others). Such discrimination can be ‘objectively justified by a legitimate aim…if the means of achieving that aim are appropriate and necessary.’ In the Court’s view, the national court which had asked the ECJ these questions should consider that an employer’s ‘neutrality’ policy regarding customers was ‘legitimate’, and was part of its ‘freedom to conduct a business’.

However, such as policy had to be ‘systematic’ and ‘undifferentiated’ as regards different beliefs. It also should be considered whether it was limited to those workers who ‘interact with customers’, and whether it would have been possible to reassign the employee to a different role without ‘visual contact’ with customers, without the employer taking on an extra burden.

In the second case, the Court ruled that employers could not discriminate due to a customer request that employees not wear a headscarf.  This was not ‘a genuine and determining occupational requirement’ that could justify reserving a job to those who did not wear headscarves.

Summary

The ECJ’s rulings must be applied by the two national courts that requested it to rule. They are also binding more generally on the courts of all 28 EU Member States.

In principle the rulings mean that employers may ban employees from wearing headscarves, but only in certain cases. First of all, the cases only concern customer-facing employees, on condition that the employer has a ‘neutrality’ policy. The ECJ was not asked to rule on other groups of employees, but its rulings indicate that it would be more difficult, if not impossible, to justify bans in those cases. Nor was it asked to clarify further what a ‘customer-facing’ employee is exactly.

A neutrality policy mean an employer also has to ban other religious or political symbols worn by customer-facing employees. So no kippas, no crucifixes, no turbans – and no icons of Richard Dawkins either. This could be rather awkward in light of the human rights case law referred to above, which says wearing crucifixes (for instance) is sometimes an aspect of an employee’s right to manifest her freedom of religion.

There is a thin line between saying that employee headscarves can’t be banned just because customers ask for it on the one hand, and allowing employers to ban such clothing in effect due to anticipation of customer reaction. In practice this might prove something of a legal fiction.

The bottom line is that today’s judgments do not constitute a ‘workplace headscarf ban’, but merely permit employers to establish such a ban – subject to limits which might prove difficult to comply with in practice.

 

The Mejiers Committee on the inter-parliamentary scrutiny of Europol

ORIGINAL PUBLISHED ON THE MEJIERS COMMITTE (*) PAGE  HERE

  1. Introducton

Article 88 TFEU provides for a unique form of scrutiny on the functioning of Europol. It lays down that the [regulations on Europol] shall also lay down the procedures for scrutiny of Europol’s activities by the European Parliament, together with national Parliaments.

Such a procedure is now laid down in Article 51 of the Europol Regulation (Regulation (EU) 2016/794), which provides for the establishment of a “specialized Joint Parliamentary Scrutiny Group (JPSG)”, which will play the central role in ensuring this scrutiny. The Europol Regulation shall apply from 1st of May 2017.

Article 51 of the Europol Regulation also closely relates to Protocol (1) of the Lisbon Treaty on the role of national parliaments in the EU. Article 9 of that protocol provides: “The European Parliament and national Parliaments shall together determine the organization and promotion of effective and regular inter-parliamentary cooperation within the Union.”

Article 51 (2) does not only lay down the basis for the political monitoring of Europol’s activities (the democratic perspective), but also stipulates that “in fulfilling its mission”, it should pay attention to the impact of the activities of Europol on the fundamental rights and freedoms of natural persons (the perspective of the rule of law).

The Meijers Committee takes the view that improving the inter-parliamentary scrutiny of Europol, with appropriate involvement of both the national and the European levels, will by itself enhance the attention being paid by Europol on the perspectives of democracy and the rule of law, and more in particular the fundamental rights protection. It will raise the alertness of Europol as concerns these perspectives.

Moreover, the scrutiny mechanism could pay specific attention to the fundamental rights protection within Europol. This is particularly important in view of the large amounts of – often sensitive – personal data processed by Europol and exchanged with national police authorities of Member States and also with authorities of third countries.

The implementation of Article 51 into practice is currently debated, e.g. in the inter-parliamentary committee of the European Parliament and national parliaments.1 As specified by Article 51 (1) of the Europol regulation, the organization and the rules of procedure of the JPSG shall be determined.

The Meijers Commitee wishes to engage in this debate and makes, in this note, recommendations on the organization and rules of procedure.

  1. Context

Continue reading

EU law and the ECHR: the Bosphorus presumption is still alive and kicking – the case of Avotiņš v. Latvia

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Stian Øby Johansen,

PhD fellow at the University of Oslo Faculty of Law*

Yesterday, 23 May 2016, the Grand Chamber of the European Court of Human Rights (ECtHR) delivered its judgment in the case of Avotiņš v. Latvia. This seems to be the ECtHR’s first detailed appraisal of the so-called Bosphorus presumption (the rule on the relationship between EU law and the ECHR) after the Court of Justice of the European Union (CJEU) in Opinion 2/13 rejected a draft agreement providing for the accession of the EU to the European Convention of Human Rights (ECHR). It also provides a first glimpse of how the ECtHR views the EU law principle of mutual trust, which has become particularly dear to the CJEU over the last couple of years.

THE BOSPHORUS PRESUMPTION AND OPINION 2/13

For the uninitiated: the Bosphorus presumption refers to a doctrine in the case-law of the ECtHR that goes back to the 2005 judgment in Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland. In that judgment the ECtHR first stated, in line with previous case-law, that member states of an international organization (such as the EU) are still liable under the ECHR for “all acts and omissions of its organs regardless of whether the act or omission in question was a consequence […] of the necessity to comply with international legal obligations” (Bosphorus para 153). It also recognized “the growing importance of international cooperation and of the consequent need to secure the proper functioning of international organisations” (Bosphorus para. 150). In an attempt to reconcile these two positions, the ECtHR established what is now known as theBosphorus presumption or the presumption of equivalent protection of ECHR rights by the EU, even though the EU is not a party to the ECHR:

  1. In the Court’s view, State action taken in compliance with such legal obligations is justified as long as the relevant organisation is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides […]. By “equivalent” the Court means “comparable”; any requirement that the organisation’s protection be “identical” could run counter to the interest of international cooperation pursued […]. However, any such finding of equivalence could not be final and would be susceptible to review in the light of any relevant change in fundamental rights protection.
  2. If such equivalent protection is considered to be provided by the organisation, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation.

However, any such presumption can be rebutted if, in the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly deficient.

Many have been curious about whether the ECtHR would modify the  Bosphorus  presumption following the rather belligerent rejection of EU accession to the ECHR by the CJEU in Opinion 2/13. In the foreword of the ECtHR’s 2015 Annual Report its President,  Guido Raimondi, indeed seemed to signal an interest in shaking things up (emphasis added):

The end of the year was also marked by the delivery on 18 December 2014 of the Court of Justice of the European Union’s (CJEU) eagerly awaited opinion on the draft agreement on the accession of the European Union to the European Convention on Human Rights. [T]he CJEU’s unfavourable opinion is a great disappointment. Let us not forget, however, that the principal victims will be those citizens whom this opinion (no. 2/13) deprives of the right to have acts of the European Union subjected to the same external scrutiny as regards respect for human rights as that which applies to each member State. More than ever, therefore, the onus will be on the Strasbourg Court to do what it can in cases before it to protect citizens from the negative effects of this situation.

Yet, in the ECtHR Grand Chamber judgment in the case of Avotiņš v. Latvia, it can clearly be seen that – spoiler alert – the Bosphorus presumption is still alive and kicking. Indeed, as I will show below, the ECtHR for the first time applies it to a case concerning obligations of mutual recognition under EU law. This is notable, since one of the main arguments the CJEU put forward in Opinion 2/13was that EU accession to the ECHR posed such a big threat to the principle of mutual trust that it would “upset the underlying balance of the EU and undermine the autonomy of EU law” (Opinion 2/13 para 194).

BACKGROUND TO THE CASE Continue reading

VERFASSUNGSBLOG :How to protect European Values in the Polish Constitutional Crisis

ORIGINAL PUBLISHED HERE (30/03/2016)

by  

The Polish crisis puts Europe to the test. It raises hard questions and requires fine answers. These are, in a nutshell, the points I made on the panel at the Berlin-Brandenburg Academy of Sciences and Humanities on March 14:

Is the Polish Development ‘Our’ Business?

In her talk before the EU Parliament, the Polish prime minister stressed that Poland is a sovereign country. She called to respect the current government’s democratic mandate. Indeed, sovereignty and democracy are fundamental values. Any interference from outside Poland requires strong grounds. I want to make a normative and a functional argument to state that the Polish development may indeed concern us—us, that is, the European citizens and the European institutions we have set up.

The normative argument is that the European Union organizes a community of states that profess allegiance to a set of fundamental values—among others, democracy, the rule of law, and human rights. These values are open-ended but not indeterminate. The question the Polish legislation raises is whether disrespecting decisions by the constitutional court and dismantling the separation of powers is covered by these values. To me, this cannot be: ‘democracy through law’ is what we stand for; the legal identity of the European project is that of a ‘community of law’. Hence, our own self-understanding is at stake.

The functional reason is that the European legal space presupposes mutual trust. European law operates on the presumption that all institutions are law-abiding. Otherwise, the legal edifice crumbles. When the presumption is rebutted, a systemic deficiency in the rule of law emerges that threatens the very existence of European law and integration. If a country defies its own constitutional court at the cost of constitutional crisis, how can we expect European law to be respected when it does not suit the government?

II. What Are the Instruments?

However, there is no reason to despair. Though there is no silver bullet, many instruments can convince the Polish government to follow European values. These are the Holy See, the United Nations, the OSCE, NATO, the Council of Europe, the European Union, and other states, all of which have their own instruments. Very few have been deployed so far. Currently, the most important are the Council of Europe’s Venice Commission opinion and the European Union’s rule of law framework. They support a dialogue with the Polish government and a European public debate on what went wrong and how to right the problem.

These instruments are not for the impatient. Of course, neither an opinion by the Venice Commission nor a recommendation of the EU Commission can force the Polish government to change its stance. Their potential also relies on the possibility of further steps, and much of the discussion is held up here. Many feel helpless because they view the Article 7 TEU mechanisms—including the freezing of payments—as totally impractical. Much of that is due to Manuel Barroso unwisely calling these mechanisms a ‘nuclear option’. That qualification stuck: today, anybody who proposes to use the Article 7 TEU mechanisms appears as irresponsible as someone who proposes to press the nuclear-weapons button. However, a sanction under Article 7 TEU does not devastate entire countries; actually, it supports basic values. It is an instrument like the others, legal and legitimate, an instrument that—as all others—needs to be deployed wisely.

Many also consider the Article 7 TEU mechanism impractical in the Polish case because its para 2 imposes a very high voting threshold. This position, however, overlooks at least two features. The first is that a first sanction falls under Article 7 para 1 TEU: the Council can make the determination by four fifths of its members, i.e., 22 Member States, that a Member State exhibits ‘a clear risk of a serious breach’. This determination is a sanction by itself; and this is why the Polish government wants to avoid it so much.

Moreover, even the threshold Article 7 para 2 TEU requires does not seem unrealistic. Of course, the leader of the Polish governing party is in close contact with the Hungarian prime minister. However, there is a big difference between the Hungarian and the Polish reforms: Hungary respected the formal rule of law, which is currently one of the core issues with Poland. Given the centrality of Europe being ‘a community of law’ and the help that the Hungarian governing party has received from its fellow members in the European People’s Party in the past, I see a realistic chance that even the current Hungarian government does not stand with the PiS government in undoing Europe; a possible abstention would not prevent a decision from being adopted.

III. How to Deploy the Instruments?

There are many instruments and many institutional actors. This can be a handicap because diverging strategies or uncoordinated statements may lead to reciprocal weakening. Here, inspiration can be taken from the 1990s when the Council of Europe and the European Union operated hand-in-hand in order to help the Central and Eastern European countries become constitutional democracies. The general division of labour, which proved successful, was that the Council of Europe (including its Venice Commission) set the substantive standards while the European Union added the compliance-‘pull’ through the prospect of membership. The Council of Europe is much less suspected of bullying, which provides legitimacy when it comes to formulating concrete standards on how to be a constitutional democracy.

For that reason, it seems important in the given case that all actors and in particular the EU rally behind the opinion of the Venice Commission of 11 March 2016. The EU does not need to define what is required from a Member State under Article 2 TEU, a very difficult exercise indeed, but can rely on what the Venice Commission asks for, in particular to respect the rule of law.

When deploying these instruments, it is important to do so in a dialogical way. One element of that is to stress that what is required is nothing other than to stand by Polish identity. The Polish constitution of 1791 is the first modern written constitution in Europe and a beacon of European constitutionalism. Though only 14 months in force, it proved an icon of Polish identity in the 123 years that Poland did not exist as a sovereign country, and was taught all those years by eminent scholars such as F. K. Kasparek or J. B Oczapowski. They embedded constitutionalism deeply into Polish identity. Polish administrative law—the rule of law limiting the executive— was even taught in German prison camps during World War II, for example by J. S. Langrod or F. Longchamps de Bérier. Indeed, few have fought for those European values as much as the Poles have done and certainly will continue to do so in the future.

A German version has been published in the Frankfurter Allgemeine Zeitung on March 31. 2016

Violence against women: what will be the impact of the EU signing the Istanbul Convention?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve Peers

The scourge of violence against women is a serious human rights abuse and the worst form of sex discrimination. Several years ago, the Council of Europe (a body different from the EU) drew up the Istanbul Convention on this issue. It came into force in 2014, and currently applies to 20 countries, including 12 EU Member States (for ratification details, see here). Today, the EU Commission proposed that the EUsign and then conclude the Convention. What practical impact will that have on violence against women?

If the EU does sign and conclude (ie ratify) the Treaty, it will be the second human rights treaty binding the Union. The first is the UN Convention on the Rights of Persons with Disabilities. While most attention has been focussed on the EU’s attempt to accede to the European Convention on Human Rights (ECHR), which was essentially thwarted by the EU’s Court of Justice (CJEU) in 2014 (as discussedhere), the EU’s capacity to sign up to other human rights treaties is also relevant. While the EU cannot sign up to older international human rights treaties, like the UN Covenants, because they are only open to States, newer treaties (like the Istanbul Convention) expressly provide for the EU to sign up to them – if it wishes.

Impact of EU ratification

Like many international treaties, the Istanbul Convention is a ‘mixed agreement’, meaning that (if the EU ratifies it), the treaty will bind both the Union and its Member States. EU ratification should have six main effects (I’ve updated this list from the previous post on the reasons why the EU should ratify).

First of all, the EU’s ratification of the Convention could provide encouragement to its Member States, as well as non-Member States of the EU, to ratify the Convention. It would increase the prominence of the Convention worldwide, perhaps inspiring changes to national law and regional treaty-making outside Europe. It should be noted that the treaty is open for signature to non-EU countries: the 19 Council of Europe countries not in the EU (8 of them have ratified it already), as well as the 4 non-European countries (plus the Holy See) which took part in drawing it up.

Do you live in a country which hasn’t ratified the Convention? You can sign up to a campaign for the UK to ratify the Convention here. Please let me know of any other campaigns in the UK or any other country, and I’ll list them with a link in an Annex to this post.

Secondly, ratification could, as regards this Convention at least, address the argument that the EU has ‘double standards’ as regards human rights, insisting that Member States, would-be EU Member States and associated countries should uphold human rights standards that the EU does not apply itself. If the EU is perfectly able to ratify the Istanbul Convention, but chooses not to, what moral authority does it have to urge any countries to do so?

Thirdly, ratification of the Convention should enhance its role in EU law, because it could more easily be used as a parameter for the interpretation and validity of EU legislation. While there’s no general EU criminal law on violence against women (on the case for such a law, see here), there are other relevant EU rules. In particular, the Commission proposal refers to EU free movement law, substantive EU criminal law relevant to violence against women, EU immigration and asylum law, and the EU law on crime victims’ rights, applicable from last autumn (on the content of the crime victims’ law, see discussion here). It should also mean that the Convention will already bind those EU Member States which had not yet ratified it, as regards those provisions within EU competence.The proposal is based on EU competence over victims’ rights, and would apply (if agreed) to every Member State covered by the crime victims’ law – meaning every EU country except Denmark.

In practical terms, that should mean that (for instance), EU law must be interpreted to mean victims receive a residence permit based on their personal situation, if the authorities consider it necessary (Article 59(3) of the Convention). That would apply to citizens of other Member States and their (EU or non-EU) family members, in all 27 Member States covered by the proposal. It would also apply to non-EU citizens in general, in the Member States which apply EU law on non-EU migration (ie the 25 Member States other than the UK, Ireland and Denmark, which have mostly opted out of such laws).  

For asylum cases, Article 60 of the Convention makes clear that gender-based violence is a ground of persecution. This is more explicit than the EU’s qualification Directive, which says that ‘gender-related aspects shall be given due consideration’, with further reference in its preamble to specific practices like genital mutilation. (Note that the UK and Ireland are covered by the first-phase qualification Directive, which has less precise wording on this issue; so the EU’s ratification of the Convention might have more influence in these countries).

As regards victims of domestic violence crimes (of any nationality and residence status), Chapter IV of the Convention, concerning support and protection, could in particular have an impact on the interpretation of the crime victims’ Directive in each Member State.

Fourth, since the CJEU will have jurisdiction to interpret those provisions of the Convention which fall within the scope of EU competence, this could promote a uniform interpretation of those provisions within the EU.  

Next, the relevant provisions of the Convention will be more enforceable if the EU ratifies it. While the CJEU ruled in the Z case that the UN Disabilities Convention did not have direct effect, and might rule the same as regards the Istanbul Convention, at least that Convention would have ‘indirect effect’ (ie the obligation to interpret EU law consistently with it), and the Commission could bring infringement actions against Member States which had not applied the Convention correctly, as regards issues within the scope of EU competence. Ensuring the enforceability of the Convention is all the more important since it does not provide for an individual complaint system.

Finally, ratification would subject the EU to outside monitoring as regards this issue, and avoid the awkward scenario of its Member States being monitored as regards issues within EU competence – meaning that the Convention’s monitoring body would in effect to some extent be monitoring whether EU Member States were complying with EU law.


Conclusion

For all the above reasons, the EU’s planned ratification can only be welcomed. It may not, by itself, prevent any act of violence from being committed, but it may accelerate a broader process of ratification (and corresponding national law reform) on this issue. And it may have the important practical impact of helping victims receive support or protection, particularly in the context of the law on crime victims, immigration or asylum.