Human Rights Law in Europe

The Influence, Overlaps and Contradictions of the EU and the ECHR

Kanstantsin Dzehtsiarou, Theodore Konstadinides, Tobias Lock, Noreen O'Meara, Kanstantsin Dzehtsiarou, Theodore Konstadinides, Tobias Lock, Noreen O'Meara

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781135971939
• Edition: 1
• Topic: Jura
• Subtopic: Völkerrecht

This book provides analysis and critique of the dual protection of human rights in Europe by assessing the developing legal relationship between the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). The book offers a comprehensive consideration of the institutional framework, adjudicatory approaches, and the protection of material rights within the law of the European Union and the European Convention on Human Rights (ECHR). It particularly explores the involvement and participation of stakeholders in the functioning of the EU and the ECtHR, and asks how well the new legal model of 'the EU under the ECtHR' compares to current EU law, the ECHR and general international law.

Including contributions from leading scholars in the field, each chapter sets out specific case-studies that illustrate the tensions and synergies emergent from the EU-ECHR relationship. In so doing, the book highlights the overlap and dialectic between Europe's two primary international courts. The book will be of great interest to students and researchers of European Law and Human Rights.

Part I

Institutional relations between the EU, the ECHR and stakeholders

1 Introduction

Kanstantsin Dzehtsiarou and Tobias Lock

The first part of this book covers the relations between the institutions of the EU and the CoE, and in particular between the two European courts: the ECtHR and the CJEU. While both the EU and the CoE are built on the foundation of European unity¹ and all EU member states are also members of the CoE,² there exist hardly any formal relations between the two. In particular, the EU is neither a party of the CoE nor has it signed up to its most prominent feature, the ECHR. Relations between the two bodies are largely informal but also complex. In particular, the question of responsibility of the EU and its member states under the ECHR has given rise to an intricate set of case law.³ Moreover, the relationship is in constant flux. Not only is the case law prone to changes and refinement but the legal framework under which the CJEU and the ECtHR operate is changing, too. The entry into force of the Lisbon Treaty brought with it a binding Charter of Fundamental Rights (CFR), which the CJEU is bound to apply not only to Union action but also to the member states ‘when they are implementing Union law’.⁴ The impending accession of the EU to the ECHR, demanded by Article 6(2) TEU, will place the relationship on a new formal foundation.

Two themes are recurring in this part of the book: the first concerns the involvement and the participation of stakeholders in the functioning of the EU and the ECtHR; the second is related to how well the new legal model of ‘the EU under the ECtHR’ will fit the existing mould of EU law, the ECHR and general international law. These two themes are also central to the legitimacy and effectiveness of this new pan-European legal order.

The first theme reflects the discussion on the democratic deficit of the EU⁵ and the inherent democratic deficiency of judicial review.⁶ Involvement of the member state’s legislatures, civil society and institutions such as the Venice Commission can provide a response to those who criticise lack of democratic input in the European project.⁷ Both Petkova and Bode-Kirchhoff make a case for such broader involvement of the stakeholders in the decision-making process.

The second theme focuses on how comfortably the new arrangements between the EU and the CoE will integrate into the European and international legal orders. Both Tzevelekos and Gragl analyse this puzzling challenge in their respective chapters. It seems that consolidation of human rights standard setting under the ECtHR should prevent the creation of multiple fragmented and competing standards in Europe. It does not mean, however, that only the EU will be affected by accession; the ECtHR will also have to take into account close relations with the EU, which can become an increasingly important player in the area of human rights. As argued by Petkova, common standards adopted by the member states in the area of human rights⁸ are deployed by both ECtHR and the CJEU. If European consensus, for instance, is taken seriously by the ECtHR, the EU will become even more important in shaping consensus because 28 contracting parties to the ECHR are also EU member states and therefore the EU’s activities in the area of human rights have the potential to determine European consensus.⁹

Institutional interactions between the EU and the ECtHR are complex and multidimensional. This part of the book attempts to analyse some of the aspects of this interaction; it does not, however, aim to exhaust the field but rather provide an alternative narrative on how legal relations between these two pan-European institutions are usually conceptualised. The relations between the EU and the ECtHR are described through their interactions with other actors such as the UN Security Council,¹⁰ the Venice Commission¹¹ or the member states.¹² Indeed, the EU’s accession to the ECtHR will not only change the legal basis (or rather lack thereof) of interaction between the EU and the ECtHR but it will have a significant effect on other institutions involved. Having said that, relations between the ECtHR and CJEU are central to this part of the book.

In the absence of formal relations, the two European courts have found a modus vivendi. The CJEU tends to follow precedents set by the ECtHR on the fundamental rights guaranteed in the Charter, which correspond to the rights guaranteed in the Convention.¹³ The aim is to ensure a harmonious development of the protection of fundamental rights in Europe. Furthermore, this already anticipates full responsibility of the EU under the Convention. By bringing its own case law in line with that of the ECtHR, the CJEU tries to avoid conflicts that may lead to litigation in the ECtHR. Already before formal accession of the EU to the ECHR, most actions and omissions by the EU can be indirectly reviewed by the ECtHR under its Matthews decision, in which it explicitly held that the ‘Convention does not exclude the transfer of competences to international organisations provided that Convention rights continue to be “secured”. Member States’ responsibility therefore continues even after such a transfer.’¹⁴ The ECtHR subsequently narrowed this approach considerably by introducing the Bosphorus presumption, which states that EU member states are presumed to have complied with the Convention where they implemented their EU obligations stemming from EU law provided they had no discretion in the concrete case.¹⁵ This is because the ECtHR considers the Union legal order to provide a level of human rights protection equivalent to what the Convention requires. The presumption can only be rebutted in cases of a manifest deficit.

Vassilis Tzevelekos addresses the controversial question of why the presumption was introduced. He challenges the view held by many authors that the Bosporus presumption is an expression of comity between the ECtHR and the CJEU. Rather, he brings in the international dimension of Bosphorus, where a United Nations Security Council (UNSC) Resolution had been implemented by an EU Regulation, which had then been applied by member state authorities. Thus, Bosphorus was not so much about giving member states space for international legal cooperation ‘without creating excessive dilemmas of compliance’. In Tzevelekos’ eyes it is rather about the specific situation in which the ECtHR wished to avoid having to indirectly review a UNSC Resolution. As admitted by the author himself, this is one possible narrative of the Bosphorus doctrine. No matter which explanation one prefers, it is important to realise that the presumption is in principle applicable to all cases involving EU obligations where member states do not have any discretion.¹⁶ According to Tzevelekos’ reading of Bosphorus, this would have to be considered as a spillover effect rather than a primarily intended consequence of Bosphorus.

Bosphorus will certainly continue to haunt legal publications, in particular after the EU has formally acceded to the ECHR. After lengthy negotiations, the EU, its member states and the remaining parties to the CoE agreed on an accession treaty in early April 2013.¹⁷ Accession will allow individuals to direct cases against the EU, which will, of course, entail that the ECtHR reviews decisions rendered by the CJEU as to their compliance with the Convention. This will potentially create a new dynamic in the relationship between the two European courts. An almost arcane aspect of this relationship is discussed by Paul Gragl, who addresses intricate questions surrounding inter-party cases. While inter-party cases before the ECtHR do not occur very often, after accession they present a risk of creating a true jurisdictional conflict with the CJEU, which itself has exclusive jurisdiction over disputes between the member states of the EU. Gragl carefully points out how the accession agreement manages to resolve the jurisdictional conflict between the CJEU and the ECtHR in such matters. What is novel about Gragl’s approach is that he maintains that the exclusive jurisdiction of the CJEU does not prevent the ECtHR from carrying out a subsidiary review in inter-party cases. This would mean that once the CJEU has decided an inter-party case between two of its member states, the ECtHR would be able to decide on the same matter and second-guess the CJEU’s findings. If this reading of the draft agreement is correct, this consequence might not be welcomed by the CJEU and might provide it with a reason to declare the draft incompatible with the Convention. Like Tzevelekos, Gragl addresses the international dimension of the relationship between the CJEU and the ECtHR by asking whether the EU would be able to bring third countries before the ECtHR for violations of human rights. This would presuppose an EU competence to that ...