Opinion 2/13 on EU Accession to the ECHR: The CJEU as Humpty Dumpty

Aidan O’Neill QC

‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.’

‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’

‘The question is,’ said Humpty Dumpty, ‘which is to be master – that’s all.’

Lewis Carroll: Chapter 6 of Through the Looking Glass and what Alice found there (1871)


 

The Human Rights Gap in the EU

The European Court of Human Rights noted in Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij UA v Netherlands (2009) 48 EHRR SE18 (non-admissibility decision of the ECtHR, 20 January 2009):

“The European Community has separate legal personality as an international intergovernmental organisation (see Article 281 of the EC Treaty, quoted above). At present, the European Community is not a party to the Convention … The application is therefore incompatible with the provisions of the Convention ratione personae within the meaning of Article 35 § 3 of the Convention in so far as the applicant association’s complaints must be understood as directed against the European Community itself (see Confédération française démocratique du travail v The European Communities, alternatively: their Member States a) jointly and b) severally, no 8030/77, Commission decision of 10 July 1978, Decisions and Reports (DR) 13, p 235) and must be rejected pursuant to Article 35 § 4.

Although the European Court of Human Rights is thus prevented from deciding issues of EU law (Jeunesse v. France [2014] ECHR 12738/10 (Grand Chamber, 3 October 2014) at para 110) or from examining the procedure of the CJEU directly in the light of the requirements of the ECHR (notably Article 6(1) ECHR), the possibility for an indirect Strasbourg review of the Convention compatibility of the CJEU’s procedures arises from the degree to which the Strasbourg Court considers that the events complained of in any application engage the responsibility of all or any of the individual Member States which are also all contracting parties to the Council of Europe. This is, perhaps, a less than satisfactory solution, certainly for the Member States who might find themselves saddled with responsibility by the European Court of Human Rights for procedures and proceedings before the CJEU over which, as individual States, they have no direct control and little influence (see Boivin v France and 33 other Member States of the Council of Europe [2008] ECtHR 73250/01 (Fifth Section, 9 September 2008) and Connolly v 15 Member States of the European Union [2008] ECtHR 73274/01 (9 December 2008)) should the Strasbourg Court come to the view that the procedures of the CJEU did not provide ‘equivalent protection’ to that directly guaranteed under the Convention.

The Agreement on the Accession of the EU to the ECHR

After largely secret negotiations (see Case T-331/11 Besselink v. Council of the European Union 12 September [2013] ECR II-nyr [2014] 1 CMLR 28) negotiations between the two European (EU and Council of Europe) institutions on the accession of the EU to the ECHR successfully ended on 5 April 2013 and a concluded agreement was reached on how the EU – and EU law – could be integrated within the Strasbourg system for the protection of European human rights (See the Fifth Negotiation Meeting between the CDDH Ad Hoc Negotiation Group and the European Commission on the Accession of the European Union to the European Convention on Human Rights, Final Report to the CDDH, April 5, 2013, 47+1(2013)008, available here.

This agreement made provision to allow for the involvement of the EU institutions in all cases where an application to the Strasbourg court alleged that a provision of EU law is incompatible with the ECHR. In effect, the agreement setting up of some kind of “preliminary reference downward” from the Strasbourg Court to the CJEU, in applications from individuals complaining of an incompatibility between EU law and the ECHR, so as to allow the CJEU to exercise an “internal review” on the issue before the European Court of Human Rights exercises its “external review” under the Convention. Article 3(6) of Draft revised agreement on the accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms (June 2013) provided as follows:

“6. In proceedings to which the European Union is a co-respondent, if the Court of Justice of the European Union has not yet assessed the compatibility with the rights at issue defined in the Convention or in the protocols to which the European Union has acceded of the provision of European Union law as under paragraph 2 of this article, sufficient time shall be afforded for the Court of Justice of the European Union to make such an assessment, and thereafter for the parties to make observations to the Court. The European Union shall ensure that such assessment is made quickly so that the proceedings before the Court are not unduly delayed. The provisions of this paragraph shall not affect the powers of the Court.”

 In such proceedings contracting States to the ECHR were to have the same opportunity as member State of the EU to submit written observations to the Court of Justice on the proper disposal of the matter by the Luxembourg Court. The Draft declaration by the European Union to be made at the time of signature of the Accession Agreement.

“Upon its accession to the Convention, the European Union will ensure that:

a) it will request to become a co-respondent to the proceedings before the European Court of Human Rights or accept an invitation by the Court to that effect, where the conditions set out in Article 3, paragraph 2, of the Accession Agreement are met;

b) the High Contracting Parties to the Convention other than the member States of the European Union, which in a procedure under Article 267 of the Treaty on the Functioning of the European Union are entitled to submit statements of case or written observations to the Court of Justice of the European Union, be entitled, under the same conditions, to do so also in a procedure in which the Court of Justice of the European Union assesses the compatibility with the Convention of a provision of European Union law, in accordance with Article 3, paragraph 6, of the Accession Agreement.”

The subordination of the Court of Justice to the European Court of Human Rights?

It is clear that the intention of the parties to this agreement was to give the European Court of Human Rights jurisdiction in cases to which the EU is party so as to close the perceived human rights gap.   This means, of course, that the decision of the Strasbourg Court would become binding as a matter of international law on EU institutions, including the CJEU.

Going by its past case law, it was always clear that the Court of Justice would have a problem with any agreement which results in it being subordinated to any other court.   In its Opinion 1/91 Re a Draft Treaty on a European Economic Area [1991] ECR I-6079, the Court of Justice vetoed the establishment of an EEA court hierarchy to provide a system of judicial supervision over the whole EEA beyond the EU. The proposed new court structure consisted of an independent EEA Court, functionally integrated with the ECJ, and an EEA Court of First Instance. The new EEA courts were to consist of a number of judges from the ECJ and the CFI sitting together, with judges appointed from the various EFTA Member States. The Court of Justice found that such a system of judicial supervision proposed under the draft EEA Treaty was not lawful on the grounds, inter alia, that the proposed system of EEA courts might undermine the autonomy of the EU legal order in pursuing its own particular objectives, going so far as to claim (at paras 70–71):

“Article 238 of the EEC Treaty [now, after amendment, Art 218 TFEU] does not provide any basis for setting up a system of courts which conflicts with Article 164 of the EEC Treaty [now, after amendment, Art 19(1) TEU] and, more generally, with the very foundations of Community law. For the same reasons, an amendment of Article 238 in the way indicated by the Commission could not cure the incompatibility with Community law of the system of courts to be set up by the agreement.” (emphasis added).

 And in its Opinion 1/09 Re draft agreement on the European and Community Patents Court [2011] ECR I-1137 the Court of Justice states (at para 89):

“[T]he envisaged agreement, by conferring on an international court which is outside the institutional and judicial framework of the European Union an exclusive jurisdiction to hear a significant number of actions brought by individuals in the field of the Community patent and to interpret and apply European Union law in that field, would deprive courts of Member States of their powers in relation to the interpretation and application of European Union law and the Court of its powers to reply, by preliminary ruling, to questions referred by those courts and, consequently, would alter the essential character of the powers which the Treaties confer on the institutions of the European Union and on the Member States and which are indispensable to the preservation of the very nature of European Union law.   Consequently, the CJEU (Full Court) gives the following Opinion: the envisaged agreement creating a unified patent litigation system (currently called “European and Community Patents Court”) is not compatible with the provisions of the EU Treaty and the FEU Treaty.”

The decision in Opinion 2/13

A hearing before the CJEU seeking its Opinion on the compatibility of this draft agreement with the requirements of EU law was heard in Luxembourg in the first half of 2014.   In its Opinion 2/13 which was issued on 18 December 2014 the EU Court of Justice sitting as a Full Court has rejected the legal submissions of the Commission, the Council, the European Parliament and the 24 Member States who submitted observations to it (only Croatia, Luxembourg Malta Slovenia failed to take part in this procedure) and has ruled that

“the agreement on the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms is not compatible with Article 6(2) TEU or with Protocol (No 8) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms.”

The relevant Treaty provisions

The relevant Treaty provisions to this Opinion 2/13 are as follows:

Article 6(2) TEU

2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.

This provision was inserted into the Treaties by the Member States after the Court of Justice declared in its Opinion 2/94 Re Accession by the EU to the European Convention for the Protection of Human Rights and Fundamental Freedoms [1996] ECR I-1759 that it was not competent for the EU to accede to the ECHR without specific Treaty provision to this effect.

Against that background, Article 6(2) TEU might have been understood as a provision intended by the Member States, as Masters of the Treaties, to alter the constitutional law of the EU and to stipulate as a matter of law, contrary to the Court of Justice’s expressed concerns, that the accession of the EU to the ECHR (which all the Member States wished for) would not affect EU competences as defined in the Treaties.   Instead the Court of Justice appear to have interpreted Article 6(20 TEU more along the following lines:

“If, in the opinion of the Court of Justice, the accession of the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms shall affect the Union’s competences as defined in the Treaties, then the EU cannot accede to the ECHR.”

Article 51 TEU states that “The Protocols and Annexes to the Treaties shall form an integral part thereof.”   Protocol (No. 8) TEU on the EU’’s accession to the ECHR provides as follows

Article 1

The agreement relating to the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the ‘European Convention’) provided for in Article 6(2) of the Treaty on European Union shall make provision for preserving the specific characteristics of the Union and Union law, in particular with regard to:

(a) the specific arrangements for the Union’s possible participation in the control bodies of the European Convention;

(b) the mechanisms necessary to ensure that proceedings by non-Member States and individual applications are correctly addressed to Member States and/or the Union as appropriate.

 Article 2

The agreement referred to in Article 1 shall ensure that accession of the Union shall not affect the competences of the Union or the powers of its institutions. It shall ensure that nothing therein affects the situation of Member States in relation to the European Convention, in particular in relation to the Protocols thereto, measures taken by Member States derogating from the European Convention in accordance with Article 15 thereof and reservations to the European Convention made by Member States in accordance with Article 57 thereof.

Article 3

Nothing in the agreement referred to in Article 1 shall affect Article 344 of the Treaty on the Functioning of the European Union.

 Article 344 TFEU states:

“Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein.”

Again the Court of Justice in its Opinion 2/13 appears to have interpreted these provisions of Protocol No. 8 to mean that:

“If, in the opinion of the Court of Justice, any agreement relating to the accession of the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms authorises Member States to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than its final resolution by the “Court of Justice, then this does not provide a lawful basis for the EU to accede to the ECHR.

Conclusion

Effectively what we have in this Opinion 2/13 is a claim by the Court of Justice that it is Master of the Treaties and a declaration that it will refuse to recognise the lawfulness of any agreement among the Member States which might be threaten to displace the Court of Justice as the apex Court for the European Union.

The Opinion appears to be more about the Court of Justice’s fears about its constitutional position rather than about the closing of any gap in human rights protection in the EU.

The Court of Justice places great stress on the autonomy of EU law, but nowhere explains why that autonomy is threatened by the possibility of direct human rights review by the European Court of Human Rights of the action and inaction of all the EU institutions (including the CJEU) any more than the autonomy of the legal systems and constitutions of the existing contracting States of the Council of Europe is threatened or called into question by the fact that they operate under the ultimate jurisdiction supervision of the Strasbourg Court as the relevant regional international human rights court for Europe.

 Notoriously, Humpty Dumpty – after re-defining the questions asked of him as meaning essentially that they were about “which is to be master – that’s all” – had a great fall and could not be put back together again.     The Court of Justice, too, should remember that with hubris comes nemesis.

Opinion 2/13 on Accession of the EU to the ECHR – Luxembourg has spoken

Today, the CJEU has delivered a bombshell.  It has ruled that the draft agreement providing for the EU’s accession to the ECHR is incompatible with EU law.  Specifically, according to para 258 of the Opinion, it:

“is not compatible with Article 6(2) TEU or with Protocol No 8 EU in that:

–      it is liable adversely to affect the specific characteristics and the autonomy of EU law in so far it does not ensure coordination between Article 53 of the ECHR and Article 53 of the Charter, does not avert the risk that the principle of Member States’ mutual trust under EU law may be undermined, and makes no provision in respect of the relationship between the mechanism established by Protocol No 16 and the preliminary ruling procedure provided for in Article 267 TFEU;

–      it is liable to affect Article 344 TFEU in so far as it does not preclude the possibility of disputes between Member States or between Member States and the EU concerning the application of the ECHR within the scope ratione materiae of EU law being brought before the ECtHR;

–      it does not lay down arrangements for the operation of the co-respondent mechanism and the procedure for the prior involvement of the Court of Justice that enable the specific characteristics of the EU and EU law to be preserved; and

–      it fails to have regard to the specific characteristics of EU law with regard to the judicial review of acts, actions or omissions on the part of the EU in CFSP matters in that it entrusts the judicial review of some of those acts, actions or omissions exclusively to a non-EU body.”

It has already been described as an “exceptionally poor” judgment by Prof Steve Peers.  We have not yet had chance to digest it, but EUtopialaw will provide comment and analysis in the very near future.  Watch this space.

A Tale of Two Referendums

Aidan O’Neill QC

Reflecting on the French Revolution in the opening lines of A Tale of Two Cities, Charles Dickens wrote:

“It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way…”

This passage may serve equally well as a description of the competing claims that were made by the opposing sides in this year’s Scottish independence referendum.

The pro-independence campaign claimed that voting for an independent Scotland would open the way to the best of times, to the age of wisdom, to the epoch of (self)-belief, to the season of Light, to the spring of hope, in which Scots would have had everything before them and which would lead directly to an earthly (Caledonian) paradise.

The pro-union campaign, in response, struck a primarily negative note, seeming unable to find the words to sing the virtues of a British union continuing into the future.   Instead, they said that an independent Scotland would open the doors to the worst of times, that voting in favour of separation would be an act of foolishness and of self-delusion which the voters in Scotland would live to regret in a winter of despair, with nothing before them but a road paved with good intentions and broken dreams.

I fear that similarly competing and irreconcilable claims will be made by the opposing sides in the campaign around the anticipated referendum on the United Kingdom’s continuing membership of the European Union, following the coming general election.   Those wishing the UK to break from the EU will doubtless extol the mythic virtues and heroic vigour of Albion unbound. Those advocating the UK’s continued membership of the EU – like those who campaigned for Scotland’s to stay in the (British) Union – will find it difficult to articulate a positive vision of Europe which will resonate with (particularly English) voters and will, instead, fall back on emphasising the economic dangers and market uncertainties which will come with our “turning our back on Europe” and falling prey to those vices etymologically associated with island life: isolationism and insularity. Continue reading

Very private lives: “acceptable questioning” in sexual orientation asylum cases

Anita Davies

The CJEU’s judgment in the case of A, B and C is due by the end of the year. Ahead of the expected judgment, this post recaps the opinion handed down by Advocate General Sharpston in July.

In February 2014 The Guardian published details of the lines of questioning used by the UK Home Office in questioning gay and lesbian asylum seekers. The questions considered appropriate to ask vulnerable asylum seekers were shocking; including queries such as “what is it about men’s backsides that attracts you?”.

The Home Office’s prurient interest in the very private lives of asylum seekers has been attributed in part to the Supreme Court judgment in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31, where the Court found that asylum could not be refused on the basis that an individual would not face persecution due to their sexuality if they behaved with discretion when returned. The onus in questioning therefore shifted from conditions facing gay communities in the country of return to proving sexual orientation, resulting in the Home Office seeking to verify sexual orientation via intrusive questioning. Verifying sexual orientation in asylum claims is an issue that a number of EU states have sought to deal with, and Advocate General Sharpston’s opinion in ABC constitutes guidance as to what is considered acceptable questioning. However, as will be seen below, Sharpston’s opinion has to grapple with the central problem: how do you legally “verify” human sexuality? By its very nature sexuality is impossible to “prove” by reference to anything other than what an individual considers their sexuality to be.

  1. B and C were individuals who submitted asylum claims to the Netherlands authorities on the grounds of a well founded fear of being persecuted in their respective countries of origin because they were gay men. All were refused on the basis that their claims of sexual orientation were not “credible”. Two of the applicants had gone to some lengths to prove their sexual orientation: C had submitted a video depicting him performing sexual acts with a man, and A had been willing to submit to a test to prove that he was gay.

In her opinion, Advocate General Sharpston sought to set out some guidelines as to what was an appropriate method for assessing declared sexual orientation, and if the limits were different from the limits applied to an assessment of the credibility of other grounds of persecution. Sharpston recognised that an “individual’s sexual orientation is a complex matter, entwined inseparably with his identity, that falls within the private sphere of his life” [38], therefore, an applicant’s averred sexual orientation must always be the starting point in assessing a claim, however:

The competent national authorities are entitled to examine that element of his claim together with all other elements in order to assess whether he has a well-founded fear of persecution within the meaning of the Qualification Directive and the Geneva Convention.

It therefore follows ineluctably that applications for refugee status on the grounds of sexual orientation, like any other applications for refugee status, are subject to a process of assessment as required by Article 4 of the Qualification Directive. That assessment must, however, be carried out in a way that respects the individual’s rights as guaranteed by the Charter.” [48 -49]

Continue reading

Some comments on the UKAEL ‘Untying the Knot with Europe’ seminar

On 28 October 2014 the UK Association for European Law hosted a practitioners’ seminar: ‘Untying the knot with Europe: The legal implications of UK withdrawal from the EU‘. Topics covered included the legally complex and probably lengthy process of withdrawal from the EU involving disengagement from EU institutions and agencies, vested EU rights of individuals and companies, a review of UK legislation with an EU provenance, and settling the UK’s future relationship with the EU and the rest of the world.

Rhodri Thompson QC’s observations from the event are available in PDF here.

On really responsive rule-making? The EU-US Transatlantic Trade and Investment Partnership (TTIP) negotiations

Dr. Elaine Fahey

Senior Lecturer, The City Law School, City University London

The script

The EU and US have now completed six rounds of negotiations on the Transatlantic Trade and Investment Agreement (TTIP), the trade agreement under negotiation between the EU and US to cut trade barriers and ‘behind the borders’ barriers (technical regulations, standards, approvals) in a wide variety of sectors. It is touted as having the potential to become the global trade standard. Already, the epitaph is alleged to have been written on the Agreement. Yet while this misses the mark as to the theatre of global rule-making, on the other hand, scepticism is not unwarranted. It has at times appeared as an extraordinary experiment in rule-making1. TTIP harbours ambitions to grow as a living regulatory entity. It has become rife with controversy, for its secrecy, for its possible inclusion of the Investor Settlement Dispute Mechanism (ISDM) and its impact on EU regulatory standards. Some have even tried to stop the negotiations using EU law itself, in the form of a failed European Citizens Initiative.

The history of transatlantic relations is littered with many failed attempts to integrate EU and US legal order through mutual recognition, even in very limited fields. TTIP had been poised to shake up this dynamic. It has become an exercise in ‘really responsive rule-making’. However, many questions remain about international negotiations and the standard of what is and should be ‘really responsive EU rule-making’:- I reflect on its script, production process and the cast of actors.

The production process

Most EU-US rule-making processes in the past has been conducted firmly behind closed doors, in inscrutable so-called ‘Dialogues’, in a range of fields that many will never have heard of. They traditionally privileged industry. The TTIP negotiations have marked an enormous shift in EU-US rule-making. Continue reading

Cartel Damage Claims and the so-Called “Umbrella Pricing” Under EU Competition Law: The Kone Ruling of the CJEU

Jens-Olrik Murach and Pablo Figueroa

On June 5, 2014, the Court of Justice of the European Union (respectively, the “EU” and the “CJEU”) issued a Ruling in relation to so-called “umbrella pricing” cartel damage actions.  These claims refer to damages allegedly suffered due to the surcharge applied by non-cartelists who, independently and rationally, adapted to a price increase resulting from a cartel by increasing their own prices.

Pursuant to the Ruling of the CJEU in Case C-557/12 Kone (“Kone”), the Treaty on the Functioning of the European Union (“TFEU”) preempts the EU Member States from having in place domestic regulations which “categorically exclude” umbrella pricing claims deriving from breaches of EU Competition law.

I.   Background

In February 2007, the European Commission issued a Decision imposing fines on the members of an alleged cartel in the markets for lifts and escalators.  The members of the alleged cartel included the Finnish company Kone AG.

Relying on the “umbrella effect” of the cartel, ÖBB-Infrastruktur AG (“ÖBB”), a subsidiary of the Austrian Federal Railway, brought an action before the Austrian courts against the members of the alleged cartel, including Kone AG, claiming damages.  These damages would result from ÖBB buying from third party suppliers which were not a member of the cartel at a higher price than ÖBB would have paid but for the existence of that cartel, on the ground that those third undertakings benefited from the existence of the cartel in adapting their prices to the higher level (see Kone, at § 10).

ÖBB’s action was rejected by an Austrian Court of First Instance but it was upheld by the appellate Court.  The Austrian Supreme Court (“Oberster Gerichtshof“) asked the CJEU for a preliminary ruling on the issue of whether Article 101 TFEU (namely, the provision of EU law which prohibits anti-competitive agreements, the EU equivalent to § 1 Sherman Act) requires the recognition of “umbrella claims”.  This recognition would apparently be contrary to the requirements, applicable to damages claims under Austrian torts law, of “adequate causal link” between the conduct of the infringing entity and the injury and “unlawfulness”, that is, whether the provision infringed had as its object the protection of the interests of the injured person (see Kone, at § 13 to 15). Continue reading

Matteo Renzi, between the quest for “Europe’s soul” and the “assault of technocracy”

lindsethProf. Peter Lindseth

Two recent pieces in the FT (here and here) brought home the magnitude of the task currently confronting Italian Prime Minister Matteo Renzi as he seeks to reform a sclerotic domestic system and yet ward off complaints from supranational technocrats unsatisfied with the pace of change. The Renzi challenge can be seen as a case study in whether and to what extent charismatic political leadership in a national democracy can successfully achieve its goals in the face entrenched bureaucratic power both national and supranational. In that regard, readers may find of interest remarks I delivered last month at the Summer School on “Parliamentary Democracy in Europe” at the LUISS Guido Carli School of Government in Rome. My focus was Renzi’s recent speech before the European Parliament on 2 July 2014, viewed in relation to statements made before the Italian Chamber of Deputies and elsewhere around the same time. Renzi’s line of rhetoric on Europe—notably his quest for Europe’s “soul” and “the meaning of [its] life together”—provided a point of entry into a broader set of reflections on the current state of the integration process, its socio-political / socio-cultural underpinnings, as well as the challenge of reconciling (national) democracy and (largely but not exclusively supranational) technocracy. The full remarks can be found here (including citations), while below is an excerpt.

Renzi began [his speech of July 2d in Strasbourg] by offering congratulations to the members of the EP for their recent election. He spoke of the “great responsibility” of the EP to bring “trust and hope” (fiducia e speranza) to European institutions. But note what he did not say: He did not say that EP brought “democratic legitimacy” to European policy-making. He did say that it was “only right and politically just” for the European Council to respect “the results of the recent electoral campaign” and hence the EP’s “prerogatives” in the choice of the new Commission president. But he avoided using the language of EU “democracy” to describe this step.

Of course, I have no special access to the workings of Renzi’s mind. Nevertheless, I think it is fair to say that he deliberately avoided the language of democratic legitimation with regard to the EP. The prior week, in a speech before the Italian Chamber of Deputies, Renzi stated: “Those who imagine that the democratic ‘gap’ in Europe will be overcome simply by the appointment of Juncker as President of the European Commission are living on Mars.” In that earlier speech he went on to describe not only the low turnout in the European elections but also the significant percentage of the vote that went to parties hostile to the European project. From there he segued to a theme that would be central to his speech in Strasbourg the following week: “It is not enough to have a currency in common, or a President in common, or a source of funding in common.” Rather, what is needed is for Europe to “accept the idea that we have a destiny in common and values in common.” In his speech the following week before the EP, Renzi elaborated: “The real challenge confronting our continent is to find the soul of Europe, to find the profound meaning of our being together” (my emphasis).

Now I know as scholars we are not supposed to pay much attention to these sorts of rhetorical flourishes by politicians. Nevertheless, I found this entire line of discussion fascinating. Perhaps Renzi did not intend it but his reference to finding Europe’s “soul” and “the meaning of our being together” brought to mind a similar line of thinking in Ernest Renan’s famous 1882 lecture, “Qu’est-ce qu’une nation?” (“What is a Nation?”). According to Renan: “A nation is a soul, a spiritual principle…. [It is] the possession in common of a rich legacy of memories [but also] present-day consent, the desire to live together … [It is] a daily plebiscite ….” In speaking of the current ills afflicting the EU, did Renzi intentionally mean to invoke this paean to liberal nationalism of the nineteenth century? After all, isn’t European integration supposed to be a “post-national” project, something designed to transcend the legacy and evils of nationalism?

Perhaps Renzi was not invoking Renan specifically, but there is much in the speech to suggest that Renzi would like nothing less than for the integration project to emulate at least some aspects of nationalism. Most importantly, Renan associated nationalism with a “large-scale solidarity”—something that Renzi might love to see replicated on a European scale in response to the Eurozone crisis.

The clearest indication was Renzi’s invocation of the famously dismissive observation of Metternich to describe Italy in 1847, in which Metternich asserted that Italy was nothing more than “a geographical expression.” For Renzi, today’s Europeans must demonstrate that that Europe is something more than a “geographical expression.” According to Renzi: “There will be no space for Europe if we remain only a dot on Google Maps. We are a community, a people, we are not a geographical expression—to use the phrase applied to Italy by a great Austrian statesman of the nineteenth century” (Metternich was not specifically named). Continue reading

EU Commission President: Who and what did we actually vote for?

Christian Joerges and Florian Rödl

“How did we vote? Did we actually vote – or did the Volk simply roll the dice?”

Niklas Luhmann‘s sarcasm in the FAZ on October 22nd 1994 referred to the Bundestag elections of that same year. Back then, the black/yellow coalition narrowly won out over its red/green counterpart. Luhmann’s commentary is not only a pleasurable read – it also contains an analysis of surprising relevance for the electoral outcome of the 2014 European elections. Luhmann argued that the differences between the two coalition blocs were minimal. One reason for this was the fact that “politicians are no longer able to support political alternatives according to their preferences, due to constraints set by our economic system”. Fundamentally, this is not much different in contemporary Europe. Certainly the party landscape is larger, more diverse and more awkward than in Germany in 1994. However, even in this contested context, no party has a promising alternative when dealing for instance with the financial markets.

What was this most recent election about? One very prominent and popular manifesto from March 9th 2014 argued the election was about nothing less than the future of Europe itself. The novelty of “different candidates running for Commission President while also representing different models of Europe”, the election of so-called Spitzenkandidaten, is seen as a quantum leap for the Union.

Miguel Maduro, Bruno de Witte and Mattias Kumm, who have developed and publicly supported the idea of electing the Commission President by the European Parliament in their policy paper The Euro-Crisis and the Democratic Governance of the Euro: Legal and Political Issues of a Fiscal Crisis, put it somewhat differently. They did not speak of competing models. Instead, according to them the direct election of the Commission president would increase the political legitimacy of the Commission, thus strengthening the institution in its new role as European crisis manager. The control over national economic and fiscal policy would be democratically legitimated and thus more easily promoted and enforced. Accordingly, it would furnish functionalist technocrats with democratic legitimization.

This understanding of the Spitzenkandidaten would surely not have motivated the citizens of Europe, especially on the so-called European periphery, to participate in the election. In this respect the manifesto was both more attractive as well as more realistic. Nonetheless, the manifesto was not able to demonstrate that the leading candidates could be the personalization of its slogans. Socialist leading candidate Martin Schulz was supposed to represent the programme of an “’alternative Europe’, one in which the market is subjected to democratic rules”. When demonizing the political alternative of “’lesser Europe’, where the market subjugates democratic rules”, the manifesto had to refer to a politician not even on the ballot: David Cameron. For the manifesto, EPP candidate Jean-Claude Juncker, now Commission President-elect did not seem to stand for anything in particular. Continue reading

Access to the criminal case file: French example shows potential impact of Roadmap Directives

menottesJessica Finelle and Alex Tinsley

Yesterday, 2 June 2014, was the deadline for implementation of Directive 2012/13/EU on the right to information in criminal proceedings (‘the Directive’). This is the second of three directives adopted further to the 2009 Roadmap for strengthening procedural rights, the EU’s ambitious project to strengthen mutual trust between Member States’ judicial authorities by protecting criminal defence rights through EU law. The others were the Interpretation and Translation Directive, and the Access to a Lawyer Directive (together, the ‘Roadmap Directives’).

Designed to build upon the European Convention on Human Rights (‘ECHR’), these measures come full of promise: the citizen gets new, directly effective rights and the criminal court becomes a frontline enforcer EU law, potentially at the expense of inadequate national laws; the criminal judge can get help from Luxembourg, while the case is still live, lessening recourse to Strasbourg with the delayed justice this entails. That is the theory. To explore the potential impact on the ground, this post looks at the ongoing discussion surrounding access to the case file during garde à vue (police custody) in France.

Accès au dossier: the back story

Wind back to 2010. The European Court of Human Rights (‘ECtHR’) had given its important judgment in Salduz v. Turkey – establishing the right of access to a lawyer at the police station as an essential guarantee of Article 6 ECHR – and the Member States were scrambling to comply. The UK Supreme Court’s Cadder judgment found the Scottish system of police custody contrary to Salduz principles. In France, the Conseil Constitutionnel’s landmark ruling of 30 July 2010 found the garde à vue regime – whereby lawyers could not attend interrogations, despite the potential for suspects’ statements to be used against them later – unconstitutional. Urgent reforms followed in both jurisdictions.

For French lawyers, this was a watershed but only a first step. From their perspective, although they can now attend police interrogations, their presence remains somewhat ornamental. The relevant provision of the criminal procedure code (as in force until 1 June) entitled them to access the procès-verbal, the written record of the suspect being informed that they are in custody, the nature and time of the alleged offence, and their rights. But the underlying materials (e.g. the complaint, phone transcripts, testimonies, etc.) are unavailable. Without these, lawyers feel unable to advise clients usefully. Lawyers in Spain, who face the same problem, share their opinion.

The ECHR has not proved helpful in challenging this. The ECtHR had stated in its Dayanan judgment, shortly after Salduz, that the lawyer’s role at the police station involved a whole gamut of advisory and practical activities, and the brief Sapan judgment seemed to suggest explicitly that a lawyer needed to see the file to advise effectively. One brave court of appeal in Agen even followed this line in 2011, but the Cour de cassation was having none of it. And in a decision of 18 November 2011, the Conseil Constitutionnel confirmed that the new garde à vue regime was fine: police station proceedings were not part of the judicial process and did not call for equality of arms.

Nor does the arrested person derive much assistance from Article 5 ECHR. True, Article 5(4) entitles them to effective judicial review of detention; this challenge, as the ECtHR has often stated (para 124), should ensure ‘equality of arms’ and that means key documents need disclosing. But this applies only once the person is produced in court; in the shady confines of the police station – where confessions are so easily made and the outcome of a criminal case is often determined – it has no relevance.

Article 7(1) of the Directive

unlockedEnter Article 7(1) of the Directive. The idea is familiar: it requires Member States to provide a person deprived of liberty with access to documents essential for contesting the lawfulness of detention. But crucially, it speaks of a person ‘arrested or detained at any stage in criminal proceedings’. For the Paris Bar, it is obvious that this means an arrested person (or their lawyer) needs access to the police file before interrogation, so that they can contest the allegations – the grounds for their arrest – and advise the client on the best course of action.

Mobilising the defence

As with all Roadmap provisions, whether this one has an impact depends on the use made of it in practice. The Council of the EU, worn out from negotiating the measures, has emphasised the need for training to make them bite (para 12). Fair Trials International recently launched a project with five EU partners to train 240 defence lawyers across the EU with this in mind. National bars and defence associations, like the Asociación Libre de Abogados in Spain, are also organising themselves around these directives. Among them, the Paris Bar is in the maillot jaune. Continue reading