Case Comment: McCarthy (C-202/13) (Grand Chamber), 18th December 2014

Catherine Taroni

Context

This case was referred from the High Court R (on the application of McCarthy and ors.) v the Secretary of State for the Home Department [2012] EWHC 3368 (Admin), and considered the applicability of Directive 2004/38 to situations not traditionally falling within the concept of a Union citizen moving to another Member State, and derivative rights for third-country family members.

The O and B decision of the CJEU had addressed some issues in relation to the rights of TCN family members of EU citizens residing in their home Member State, and this case sought to address the issue of what can be required of third-country national family members of EU citizens entering the UK.

Facts

Mr McCarthy is a dual UK/Irish national, his wife is a Colombian national, and their daughter is also a dual UK/Irish national. Mr McCarthy has lived in Ireland for 52 years, only residing in the UK for six years, from 1967 – 1973. The family has lived in Marbella, Spain since May 2010 where they own a property; they also own a house in the UK, to which they regularly travel. Mrs McCarthy has to travel to Madrid to renew her family permit every time she wishes to travel to the UK with her family. She has been refused permission to board flights to the UK when she has presented her residence card without the family permit.

The Secretary of State for the Home Department issued guidance to carriers to discourage them from transporting TCNs who are not in possession of a residence permit issued by the UK authorities. Under section 40 of the Immigration and Asylum Act 1999, a carrier who fails to meet that requirement is required to pay a ‘charge’.

The Advocate General’s Opinion

AG Szpunar gave his Opinion on 20th May 2014, and argued that the provisions of Directive 2004/38 should apply by analogy to the current situation, which involved visits to the UK, where Mr McCarthy is a national, rather than to a Member State of which he was not a national. The Advocate General advised the Grand Chamber that the UK is in breach of free movement law in relation to the requirement of the family visa In addition to residence card, and that the UK’s Frontier Protocol did not give it an opt out in relation to restricting fundamental free movement principles. Continue reading

After Opinion 2/13: how to move on in Strasbourg and Brussels?

John Morijn

In its recent Opinion 2/13 the Luxembourg Court found that plans for the EU to accede to the ECHR are not compatible with Union law as it currently stands. This ruling has been critically received, including on this blog (see here (Lock), here (Besselink), here (Michl), here (Douglas-Scott), here (Peers) and here (O’Neill)). The immediate focus has been on how the Opinion should be evaluated as a matter of Union law and followed up inside the EU. To that effect it has been suggested that the draft accession treaty would need renegotiation, or that a text with Treaty status (a Protocol) should be added to the existing EU Treaty texts which would themselves be left intact. Are other options available too in Brussels, for example freezing accession ambitions for a while or changing existing Treaty texts?

Clearly, no matter what solution is eventually found, it will (once again) take years. This raises another important prior question: what is the Strasbourg Court likely to do until an EU accession solution 2.0, or any EU-internal alternative is in place? In particular, will Opinion 2/13, and its revealing reasoning for how the Luxembourg Court currently views the place of human rights protection in Union law and the leeway that Member States have in diverting from Union law if their ECHR obligations so require, have implications for the Strasbourg Court’s “EU approach” (see here and here for its own factsheets regarding its general approach and that in Dublin cases)? This contribution offers some first reflections on moving on in Strasbourg and Brussels.

The Opinion: first a step back

It is quite understandable that the Luxembourg Court’s ruling has met with considerable disappointment. It has been suggested that it has prioritised the protection of its own position over EU human rights protection. But, taking a step back, perhaps this time there was actually (also) a veritable case for “blaming Brussels” too. For were the instructions laid out in the Treaty and the Protocols sufficiently clear to begin with? Is it at heart at all possible to establish independent external judicial review, apparently for reason that human rights protection was felt not to be properly safeguarded in the existing set-up (article 6 TEU), without redistributing competences to the disadvantage of the Luxembourg Court (Protocol 8)? In other words, if the whole point of accession actually was to change something in the institutional design of the EU, the make-up of legal remedies and even the way in which Union law had been interpreted so far by the Luxembourg Court, why not state that more clearly from the outset? From that perspective the Opinion by the Court may be a reflection of the convoluted drafting of the EU accession instructions by the Herren der Verträge.

Looking at the state of affairs from another perspective, perhaps the fact that it is now “back to the drawing board” is also a unique second (or third) chance to ask the basic prior question of the Lisbon Treaty text: quite how can the application of an EU internal human rights document (the Charter) that the Luxembourg Court is under an obligation to apply, be combined with external judicial review by the Strasbourg Court of the EU’s (including the Luxembourg Court’s) performance with regard to the ECHR, if that ECHR and the way in which it is interpreted are themselves part (but only part) of the normative content of the Charter? This is not an easy one. A binding Charter and EU accession, it should be remembered in this context, were initially alternative solutions to “fill the EU human rights gap”. Only later did they become cumulative elements in the EU treaties, as a “solution” without a prior problem analysis justifying this double-headed approach. Yet, curiously, given the great stress accorded to EU accession so far their development has somehow remained unconnected. Additional instructions on how to dovetail their two separate logics may be unavoidable.

Then Opinion 2/13 itself. In fact, by the standards of any Court ruling, it offers a surprisingly candid, concise and (mostly) clear analysis. Some of us may not like what we read, and some cross-translation from Union law to human rights law expertise may be required to clarify its full significance, but it is extremely helpful for considering future directions in Strasbourg and Brussels. In particular the reasoning under the headings “preliminary considerations” (par. 153-177) and “the specific characteristics and the autonomy of EU law” (par. 179-200) is revealing in a number of different respects, including with regard to

  • the Court’s extension of its Melloni-reasoning to ECHR Member States’ freedom to go beyond what is required by ECHR minimum norms, as well as further (unstated) implications of this reasoning with regard to interpreting the Charter and the ECHR side-by-side, and
  • the Full Court’s approach to mutual trust in the EU in the light of EU Member States’ parallel ECHR commitments, and its reference to the 2011 Luxembourg Grand Chamber ruling in NS.

These two elements will be briefly highlighted below. I agree with Scheinin that in thinking about responses to the Court’s Opinion it seems more fruitful to consider these (and many other relevant) elements of the analysis rationally, in the light of the broader questions of post-Lisbon Union human rights protection architecture, rather than being stuck in disappointment for too long. Continue reading

Kaltoft – a step (in the wrong direction?) towards protection from weight discrimination under EU law

Dr Iyiola Solanke

Over the last two to three decades the prevalence of overweight and obese[1] people has become a major public health issue across countries, age-groups, class, race and ethnicity. As long ago as 2003, research estimated that 61% of Americans were overweight, and 20% were obese. In 2006, the OECD ranked Britain’s overweight and obesity rate (62%) as the worst in Europe and the third-worst in the world, behind Mexico (69.5%) and the U.S (67.3%). In 2008, more than 1.4 billion adults were overweight, including over 200 million obese men and nearly 300 obese million women. More than 40 million children under the age of five were overweight in 2011. Children and adults are getting fatter.

The rise in body size is a public health issue because of its cost: medical experts link numerous ailments to excess weight, such as diabetes, angina, osteoarthritis, stroke, gout, gall bladder disease, breast cancer, cancer of the colon and ovarian cancer. Overweight and obese people are said to be more prone to heart disease, stroke, high blood pressure, diabetes, chronic depression and many other life threatening conditions. An overweight child is likely to become an overweight adult. The cost to the public purse could be billions of pounds.

The CJEU has now confirmed that obesity is also a matter for equality law. EU law does not formally prohibit fattism – like other public health issues, this remains within the competence of the member states[2] – but in the first case of its kind, the CJEU decided that discrimination on the grounds of obesity can fall within the disability strand of the Equal Treatment Directive 2000/78. This was stated in answer to questions arising before a Danish court during a case concerning the weight of a childminder.

Kaltoft

Mr Kaltoft was hired by the Municipality of Billund in 1998 on a permanent contract as a childminder. He was obese at the time of his initial employment and, despite periods of weight loss, remained such throughout his 15 years in this post. From March 2010, he appeared to be under informal review, being visited by his boss and asked about his weight. During 2010, when the number of children in Billund fell, he was given fewer children to look after. That same year, he was chosen to be dismissed. When Kaltoft asked why he was the only childminder to be dismissed, he was told it was due to his decreased workload. Kaltoft was convinced that it had something to do with his weight.

His trade union brought an action before the District Court seeking compensation for him, arguing that he had been subjected to weight discrimination. The Danish court stayed proceedings to ask the CJ four questions, of which only the first and fourth were answered: whether it is contrary to EU law (for example Article 6 TEU on fundamental rights) for a public-sector employer to discriminate on grounds of obesity in the labour market; and whether obesity could be deemed to be a disability covered by Directive 2000/78/EC.

The first question was dealt with relatively swiftly: the Fourth Chamber of the Court of Justice did not emulate the boldness of the Grand Chamber in Mangold but citing Chacon Navas and Coleman declared that ‘EU law must be interpreted as not laying down a general principle of non-discrimination on grounds of obesity as such…’[40]. The Fourth Chamber then considered whether obesity is a disability. Its reasoning began from the purpose of Directive 2000/78: to set out a ‘general framework for combating discrimination, as regards employment and occupation, on any of the grounds referred to in that article, which include disability.’ It then noted the meaning of direct discrimination in this Directive and its scope of application – per Article 3(1)(c) it covers all persons in the public and private sectors, and all phases of employment including dismissals. Citing HK Danmark and Glatzel, where the CJ – taking inspiration from the EU ratification of the United Nations Convention on the Rights of Persons with Disabilities – stated that

53…the concept of ‘disability’ must be understood as referring to a limitation which results in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers

It concluded that in order to be compatible with Directive 2000/78, the concept of ‘disability’ a)‘must be understood as referring not only to the impossibility of exercising a professional activity, but also to a hindrance to the exercise of such an activity’ [54] and moreover that b) the concept had to be open-ended in relation to the ‘origin of the disability’ [55] – it could not be dependent upon ‘the extent to which the person may or may not have contributed to the onset of his disability.’ [56] Thus while obesity itself is not a ‘disability’ within the meaning of Directive 2000/78 [58], it decided that obesity could be covered by the concept of ‘disability’ in that Directive where

  1. ‘the obesity of the worker concerned entails a limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one, obesity can be covered by the concept of ‘disability’ within the meaning of Directive 2000/78.
  2. Such would be the case, in particular, if the obesity of the worker hindered his full and effective participation in professional life on an equal basis with other workers on account of reduced mobility or the onset, in that person, of medical conditions preventing him from carrying out his work or causing discomfort when carrying out his professional activity.

It was left for the Danish court to decide whether, despite the fact that he was able to work effectively for 15 years as a childminder, his obesity during his term of employment nonetheless limited Kaltoft in the way envisaged by the EU concept of ‘disability’. He would then have to prove that his dismissal was because of his obesity. Continue reading

Case C-364/13 – Patentability of embryonic stem cells and parthenotes: Inherently Uncertain?

plomerAurora Plomer

On 18th December 2014, the Grand Chamber of the CJEU revisited the scope of the moral exclusion on industrial and commercial uses of “human embryos” in Article 6(2) (c) in Directive 98/44/EC on the legal protection of biotechnological inventions (Biotech Directive) and held that the exclusion does not cover unfertilized human eggs produced by parthenogenesis (parthenotes).

The referral followed the refusal of the UKIPO to grant two national patents to International Stem Cell Corporation (‘ISCO’) [2013] EWHC 807 (Ch) on the ground that the patents fell within the definition of the term ‘human embryo’ adopted by the Grand Chamber in Brüstle (EU:C:2011:669) .     The first patent, GB0621068.6, entitled “Parthenogenetic activation of oocytes for the production of human embryonic stem cells” covered both the methods for producing pluripotent human stem cell lines from parthenogenetically-activated oocytes and the stem cell lines themselves.   The second application GB0621069.4 , entitled “Synthetic cornea from retinal stem cells” similarly included claims to methods and ‘product-by-process’. The UKIPO applied the Grand Chamber’s reasoning in Brustle that parthenotes were ‘capable of commencing the process of development of a human being just as an embryo created by fertilisation of an ovum can do so’ and therefore fell within the meaning of paragraph 36 of the judgment in Brüstle (C‑34/10, EU:C:2011:669). ISCO appealed on the grounds that, according to current scientific knowledge, mammalian parthenotes can never develop to term because, in contrast to a fertilised ovum they do not contain any paternal DNA, which is required for the development of extra-embryonic tissue (para 17). In this light, the High Court of Justice (England & Wales), Chancery Division (Patents Court), decided that the appeal “raised a question of considerable importance. What is meant by the term “human embryos” in Article 6(2)(c) of the Biotech Directive? In particular, what was meant by the CJEU in Brüstle by the expression “capable of commencing the process of development of a human being”? Does that contemplate the commencement of a process which must be capable of leading to a human being? Or does it contemplate the commencement of a process of development, even though the process cannot be completed, so that it is incapable of leading to a human being?” (At para. 3).

Continue reading

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

Review: EU Law and Integration: Twenty Years of Judicial Application of EU Law, José Luís Da Cruz Vilaça

Joelle Grogan, University of Oxford

EU Law and Integration is a collection of articles written by the author over the course of his eminent career as an academic, an Advocate General, the first President of the Court of First Instance (now the General Court), and now as a Judge at the Court of Justice of the European Union. Some of the contributed articles have been translated from their original language of publication, while others have been written with collaborators. Divided into sections broadly concerning EU constitutional law; the judicial structure of the EU; judicial protection of individuals; competition and state aid; and more general studies in law and economic integration in the EU, this volume has a very broad scope.

As a judge, and an academic, the author provides practical insight as well as keen analysis into the areas of the law upon which he focuses. Articles concerning the judicial architecture of the Union provide some of the most interesting reading in the volume. Writing the Foreword to the book, the Vice-President of the Court of Justice of the EU, Koen Lenaerts, aptly refers to this section as the ‘cornerstone’ of the volume. The author’s analysis of the problems facing the Court of First Instance in its first year has particular historical value and relevance, as he was the founding President of the Court. It is interesting to read – with hindsight – of the first struggles of the Court in terms of administration and the preparation of rules of procedure. The author’s rationalisation of the relatively long length of CFI judgments is illustrative of how the Court of First Instance viewed its duties with regard to the appellate jurisdiction of the Court of Justice. The concluding perspectives on the future of judicial architecture of the EU are also interesting as the author advocated incremental, rather than radical, changes in the judicial system, and the reader is sometimes left to wonder what conclusions he would make in light of the Lisbon Treaty reforms (and whether they were not reforms in name only), and the push towards judicial networking.

Seminal cases concerning economic integration feature prominently in the work, and readers are well advised to read the author’s consideration of the impact of the Pfizer case on the Precautionary Principle in EU law. The author illustrates the early caution show by the Courts which clearly advocated a prudential approach as regards determining the risks for human and animal health, and the environment. While the author acknowledges that this judicial approach probably did not pave the way to the ultimate systemic application of the principle, it did clearly foreshadow it. Readers, however, might be curious as to how the author would consider the Precautionary Principle’s current status under Article 191 TFEU, which does not feature in the republished 2004 article.

This absence of reference to the Lisbon Treaty reforms leads to an issue the reader may experience with this collection. Republished material can seem out-dated, especially in the fast-evolving European Union. Analysis and insight, while apt, would have benefitted in some articles from an updated account, or at least reference to the current situation. The cases analysed in this book, while seminal (for example Keck and Mithouard, Azores, and Alpine Investments) have had a new life in the courts which is not addressed by the book, leaving the reader at some points feeling as if they are missing part of the story. One further example of this is that ‘current case law’ of state aid relates to cases from, at the most recent, 2006. The absence of important reforms to the law over the last five years, most notably in light of Lisbon, also do not feature at all in the book, which can appear odd to the contemporary lawyer. Continue reading

Events: Human Rights Week 2014 at Matrix Chambers

Matrix is putting on two events in Human Rights Week (w/c 8th December) designed to celebrate Human Rights Day, held annually on the 10th December 2014 by the UN.

Tuesday 9 December, 6.30pm

‘Are international institutions and international law practices encouraging or stifling the private sector’s approach to diversity and female inclusivity?’

As part of a week-long, profession-wide series of events put together by The Law Society to celebrate Human Rights Day, Berwin Leighton Paisner (BLP) and Matrix Chambers invite you to a panel discussion by leading academics and legal and business professionals on gender and female inclusivity. Given the gender equality and inclusivity obligations in international treaties, such as the UN Charter, and the role of international institutions in underpinning international relations and many of these international law obligations, the lack of visible commitment or tangible progress concerning women is surprising. Are there lessons to be learnt from the private sector? If so, why?

The panel (including Matrix’s Karon Monaghan QC and Professor Christine Chinkin) will explore this topic by looking at the constitution and operation of a number of international institutions and international law practices, and current experience in the private sector.

There will also be an exhibition of photographs from PhotoVoice’s Voice of Freedom project, which supports women who have been trafficked to express themselves through photography, and to play an active role in campaigning against modern day slavery.

This event is taking place at BLP. For booking details, please visit the Law Society’s website.

Wednesday 10 December, 5pm

Twitter Q&A with Hugh Southey QC, ‘Should everyone be entitled to Human Rights?’ Get involved by following @MatrixChambers. Send your questions in advance to 1Marketing@matrixlaw.co.uk and we will be sure to get them answered for you.

For more information on other events taking place within the legal profession during Human Rights Week, please visit the Law Society website, and for more information on Human Rights Day, please visit the UN website.

 

EU Free Movement as a Legal Construction – not as Social Imagination

Daniel Thym

Monetary union demonstrates that some EU projects are realised without preparation for all eventualities. In the case of the euro, the financial crisis revealed lacunae in the field of economic and budgetary supervision, which the euro countries had to bridge through the introduction of new instruments. In the case of Union citizenship the legal gaps are less dramatic, but nonetheless visible – in particular with regard to access to social benefits for persons who do not work. It was these uncertainties that the European Court of Justice (ECJ) had to confront in the Dano judgment of last Tuesday. It opts for a surprisingly conventional solution, which abandons earlier attempts to conceive of Union citizenship as a projection sphere for political visions of a good life and just society.

The European Court of Justice as Legal Technician

A reminder of the debate about the Free Movement Directive demonstrates the absence of clear political guidance. Initially, the EU Commission had suggested to lay down explicitly that Union citizens who do not work should not have access to social benefits during the first five years of their stay in another EU country (Art. 21.2). It later abandoned the project after the ECJ had ruled in Grzelczyk that similar provisions on study grants do not pre-empt recourse to the Treaty guarantee of non-discrimination. As a result, the final version of the Free Movement Directive reiterated existing Treaty rules, whose precise bearing for people like Ms Dano remained unclear. Otherwise put, there was never a positive political agreement at EU level on the status of Union citizens who do not work. This shifted the responsibility upon judges to resolve open questions.

Judges in Luxembourg used this room for manoeuvre for progressive decisions on various occasions. Judgments such as Grzelczyk, Martínez Sala, Collins, Trojani, Bidar, Vatsouras and Ruiz Zambrano constitute the most ambitious and tantalising line of case law in recent memory. They are characterised by an attempt to breathe life into the abstract Treaty provisions on Union citizenship by granting equal access to social benefits for various categories of economically inactive citizens irrespective of the limits laid down in secondary legislation. It would have been possible for the Court to decide the Dano case differently under recourse to the argumentative arsenal of these judgments.

That did not happen. For more than a decade, the ECJ had ignored the arguments put forward by his most outspoken academic critic, Kay Hailbronner – but they now dominate its reasoning on why citizens like Ms Dano cannot claim social benefits. This presents us with a noteworthy shift of emphasis from a promise of equality inherent in EU citizenship towards the ‘limitations and conditions’, which primary law had always provided for (Art. 21.1 TFEU). Judges abandon the aspirational underpinning of the citizenship concept to the benefit of conventional doctrinal arguments such as the wording or the systematic structure. In short, the Court turns into a legal technician.

Anuscheh Farahat criticises the Court’s outcome and, yet, she follows a similar path as the ECJ, when she argues that the technical rules on inter-state social security coordination mandated a different outcome. It is not convincing to maintain that this specialised field of secondary law should have defined the answer, not least since doing so would have required the Court to disconnect the interpretation of the non-discrimination principle in Article 4 of Regulation (EC) Nr. 883/2004 from primary law. A fundamental question, such as this one, should be answered primarily on the basis of the EU Treaties and the citizenship concept – even by those who disagree with the Court’s conclusion.

It seems to me that the outcome of the Dano case is no coincidence. Judges in Luxembourg are not autistic and listen to the general political context. The Pringle judgment on the compatibility of the ESM Treaty with the rules on monetary union was a case in point – and the same held for the Förster ruling, in which the Court shied away from open conflict with the EU legislator, when it accepted a five-year waiting period for access to study grants for incoming EU students in line with the Free Movement Directive. The Grand Chamber deciding the Dano case will have considered potential implications of its judgment for the overall support for the integration project at a time, when eurosceptic political parties are on rise across the continent, not only in the United Kingdom. Continue reading