Unfinished business: The European Charter of Fundamental Rights, the European Court of Justice and t

Unfinished business: The European Charter of Fundamental Rights, the European Court of Justice and the European Convention of Human Rights

Summary : Getting the relationship right between the European Court of Justice and the European Court of Human Rights is presented as a key issue for giving legal force to the Charter of Fundamental Rights argues Mathew Heim.

The UK House of Lords Select Committee Report on the European Charter of Fundamental Rights stated that ‘the relationship between the Charter and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is perhaps the most important issue in the debate on the proposed Charter’. However, this has not yet been resolved.

The relationship of the Charter to the ECHR naturally depends on its status. Overall, there are three possibilities for the Charter: it can remain a non-binding indication of existing EU rights; it can be made binding through incorporation into the EU Treaties; or the EU can accede to the ECHR. In any event, the relationship between the European Court of Justice in Luxembourg and European Court of Human Rights in Strasbourg is key, since any divergent interpretations of those ECHR rights in the Charter should be avoided, not only to prevent inconsistencies but also to prevent a clash of international legal systems.

The impact of the first and second options would depend on the existing system of fundamental rights protection by Luxembourg and on the current relationship between the two Courts. The key change in the relationship will come if the EU is allowed to become a party to the ECHR. This option opens up the possibility of direct jurisdictional links between the two Courts.

The European Court of Justice and Fundamental Rights Protection

Over the years, the Luxembourg Court has sought to fill a gap in legal protection by formulating its own doctrine of fundamental rights protection. It has been argued that this is due partly to the development of the EC from an economic system to a political system and partly to the expansion of EC competences, without the parallel expansion of judicial review mechanisms. It is also seen as an attempt to protect the supremacy of EC law, following a number of national constitutional courts stating that they would apply EC law only on the basis that it provides the equivalent fundamental rights protection of their constitutional traditions. Luxembourg’s fundamental rights doctrine is therefore of substantial importance to the EU.

Luxembourg has based much of this fundamental rights case law on the ECHR rights. These rights now form an integral part of the ‘general principles’ of EC law. The Member States have acknowledged Luxembourg’s pioneering action in incorporating these principles into the EU Treaty. However, the fact that this Treaty provision is not enforceable was an acceptance by the Member States that the development of fundamental rights protection should continue though ad hoc case law.

This also means that, until the Charter becomes binding, Luxembourg is not bound by the ECHR as such, but can see it as a persuasive instrument. Therefore, Luxembourg draws ‘inspiration’ and ‘guidance’ from the ECHR, which is of ‘special significance’. As a result it has applied the ECHR subjectively in the context of the EC legal system, partly due to policy objectives specific to the EC. Unless we see incorporation of the Charter, we can expect this situation to continue.

There have been a limited number of cases where it could be argued that Luxembourg has either misinterpreted the ECHR, applied a restrictive interpretation of the ECHR, ignored fundamental rights issues or not taken into account Strasbourg’s interpretation of the ECHR. While these cases are rare, they create an uncomfortable precedent. However, it is equally true t hat in certain cases Luxembourg has gone further than Strasbourg in providing fundamental rights protection.

The key point is that, while Luxembourg has demonstrated the ability to protect fundamental rights, it is for Strasbourg to interpret the ECHR and for Luxembourg to interpret the EU Treaties. The greater the overlap, the greater the possibility for serious constitutional conflict.

The European Court of Human Rights and EC Law

So far the relationship between the two Courts can generally be described as one of mutual respect and non-interference. Strasbourg has until recently shied away from reviewing acts in the EC sphere and has ruled inadmissible cases brought against the EC or Member States. However, two cases have demonstrated that (like certain EU Member States) Strasbourg will only respect the EU system so long as fundamental rights are effectively protected.

In the Cantoni judgement of 1997, Strasbourg held that a national provision could be in breach of the ECHR even if it was based almost word for word on an EC Directive. Strasbourg was in fact following a provision of customary international law that the signatories to a subsequent treaty must still abide by the obligations of an earlier one. This principle allowed Strasbourg to find in the Matthews case of 1999 that a gap in the human rights protection in the EU Treaties can be reviewed by Strasbourg. Clearly the two Courts are reinforcing their positions. The current non-binding status of the Charter complicates this situation.

Incorporation of the Charter into the Treaty on European Union

Incorporation goes to the heart of the nature of the EU. Not only is the Charter a constitutional document; its incorporation would also grant the EU extensive legal personality. The effect of this should be to reduce the inter-governmental elements of the EU. Full incorporation also implies that Luxembourg would exercise jurisdiction over all EU competencies, which exercise powers in relation to individuals. This brings into play policy areas such as immigration, asylum and police co-operation, which go to the core of fundamental rights.

Would an additional system be needed to protect Strasbourg’s interests and prevent divergent case law? It is unlikely that there would be major clashes between the two Courts. It is more likely, however, that Strasbourg would step in to redress the situation where either the Treaty or secondary legislation were inconsistent with the ECHR and where Luxembourg had either not ruled on the point, where it could not rule or where its remedies are not sufficient. In any event, Strasbourg will be forced to keep a watching brief on the application of ECHR rights in the EU context and we should expect Strasbourg to be more proactive (with the help of inventive litigants) in ensuring that the EU institutions give effect to the ECHR.

It is clear that incorporation would, amongst other things, require a reassessment of Luxembourg’s ability to review EU Treaty acts, which do not comply with the Charter, as well as reviewing possible remedies to ensure that the Charter rights are effective.

Furthermore, there are a number of procedural changes, which would need to be considered. It has been argued that existing procedures in Luxembourg are not appropriate to deal with fundamental rights cases. In fact, Luxembourg’s contribution to the IGC in 1995 raised the issue as to whether the standing rules for direct action against the EC institutions were sufficient to guarantee effective judicial protection against infringements of fundamental rights. It is notable that the rules for access to Luxembourg (‘direct or individual concern’) are far more restrictive than those in the Member States or even the definition of ‘victim’ used by the ECHR.

Luxembourg also questioned the length of Article 234 reference procedures in the context of fundamental rights. One option would be to set up a specific fast-track procedure on fundamental rights cases, possibly with an admissibility stage. The Spanish constitutional ‘amparo’procedure has been seen as a possible model.

Accession of the EU to the Council of Europe and the ECHR

The Council of Europe’s view is that the EU’s accession would not place Strasbourg ‘above’ Luxembourg, but would allow Luxembourg to fulfil the role of constitutional court. Therefore, before coming to Strasbourg for an interpretation on an ECHR point in EU law, Strasbourg litigants would have to exhaust all judicial avenues – including Luxembourg. However, the question remains whether Luxembourg would be able to continue interpreting ECHR rights in the EU context.

Due to the dissimilarities of the two systems (and the current lack of EU legal personality) formal relations between the two organisations will only be possible if the EU (not just the EC) is a party to the ECHR. There are a number of formal and informal ways to create a bridge between the Courts to address potential conflict:

• To institute a (two-way) preliminary rulings procedure on issues of interpretation or institute the ability to request opinions from either court on cases of particular difficulty or constitutional significance.
• Over and above the current informal visits, a system could be established to prevent conflicts. Informal co-operation could be improved to include informing the other Court of relevant cases and entering into dialogue on key points. This could be formalised by creating a core group made up of the Court Registrars and Presidents.
• There have been suggestions that a special EU panel be set up in Strasbourg, made up of a majority of judges from EU Member States, to rule on references or to provide an opinion to Luxembourg. This could be strengthened by appointing a EU judge in the ECHR for cases involving EU law.

All of these possibilities would need both the European Council and the Council of Europe to review and amend their judicial enforcement mechanisms; but all options are open.

Conclusion

The development of the Charter raises issues which go to the core of the EU’s evolution. However, the evolution of the EU does not take place in a vacuum – especially in the context of the Charter. It is clear that any institutional or procedural measure giving effect to the Charter must give national and EU courts clear jurisdiction on how it is to be applied and interpreted. But such a measure must also take into account the authority and jurisdiction of Strasbourg.

The different legal systems of the EU and the ECHR make it extremely difficult to devise an effective institutional bridging system to formally link the two Courts. In seeking to prevent inconsistency in the interpretation of ECHR rights one can certainly rely on the Courts to find effective informal means to resolve such situations. However, the relationship between the Courts is indicative of a greater problem, that of supremacy in interpretation. The mandate of either Court gives it the jurisdiction to rule on questions that profoundly affect the other’s political and legal system. This issue is primarily not one of inconsistency but of primacy of law and is of such political significance as to require close consideration by the Member States and EU institutions

Mathew Heim is a Brussels-based Barrister and Adviser in EU Affairs at the Public Affairs company APCO Europe. He writes in a personal capacity.

For more in-depth analysis, see The European Policy Centre’s Challenge Europe:

Building an area of freedom, security and justice.