Akerberg and Melloni: what the Court said, did and may have left open

John Morijn

With Akerberg and Melloni the CJEU issued two important judgments on 26 February 2013. After a first post about Akerberg, in this second part John considers Melloni and the Court’s application of article 53 of the Charter of Fundamental Rights.

Melloni was about an Italian citizen whose extradition to Italy was ordered by a Spanish court in 1996. He fled while released on bail and so escaped surrender to the Italian authorities. In 1997 he was tried in absentia by an Italian court and sentenced to 10 years’ imprisonment for bankruptcy fraud. After resurfacing in Spain in 2008, Mr. Melloni was arrested by the police. At the constitutional court he challenged his impending surrender to il bel paese which in the meantime was based on a European Arrest Warrant (EAW), arguing it would violate his right under article 24(2) of the Spanish constitution not to be tried in absentia. The constitutional court, which had previously upheld a similar appeal under the first version of the EAW Framework Decision (FD) (2002/584) in a case concerning a request from Romanian authorities after an in absentia trial there, noted that the EU legislative arrangements had changed in the meantime. In particular,  FD 2009/299 had added wording (article 4a) to FD 2002/584 precisely on the point of under which conditions executing judicial authorities could refuse to execute an EAW if the person did not appear in person at the resulting in the decision. This led the constitutional court to ask, essentially, (1) whether the wording of article 4a (stating executing judicial authorities “may” refuse to execute an EAW issued, unless one of four scenarios is present) precludes national authorities from adding the condition that the conviction should be open tot review in the scenarios specified, (2) if yes, whether such preclusion would  actually be in line with articles 47 and 48(2) CFR, and (3) if so, whether article 53 CFR would then still allow for a higher national constitutional standard to be applied.  The Court answered the first two questions in the affirmative, relying in particular on its earlier ruling in Radu (see the previous EUtopia Law blog by Anita Davies here for convincing criticism of the Court’s approach). I will focus the discussion here on the article 53 CFR-point. Continue reading

Akerberg and Melloni: what the ECJ said, did and may have left open

John Morijn

In the first of two posts on the CJEU’s important recent judgments in Akerberg and Melloni, John considers the Akerberg case and in particular its interpretation of article 51(1) of the Charter of Fundamental Rights.

In dealing with Akerberg and Melloni in a coordinated way, the CJEU’s Grand Chamber took a conscious first step towards developing a general theory on how to apply the EU Charter of Fundamental Rights (CFR). First, it engaged with a long running debate about the Charter’s scope of application with regard to Member States’ actions, interpreting the article 51(1) CFR wording of “only when implementing Union law”. Second,  it interpreted article 53 CFR which states that “nothing in the CFR shall be interpreted as restricting or adversely affecting human rights … as recognised by [principally] the ECHR and by the Member States’ constitutions”.

Union law insiders will probably recognise an expansionist streak in the ECJ’s approach in the first case, Akerberg, to equate “implementing Union law” to “acting within its scope”. For (national) human rights law practioners less familiar with Union law’s subtleties and simply wondering when the now binding Charter and its sometimes higher human rights standards apply, the ECJ may have done little more than re-word the dilemma in Union law Babylonian. In the second case, Melloni, in an effort to protect its understanding of Union law, the ECJ turned the wording and rationale of article 53 CFR completely on its head, practically positioning the CFR as a maximum rather than a minimum standard of human rights protection. Both cases seem to leave room for interpretation, however, allowing details of the general theory to be ironed out in future cases. But perhaps the main message of 26 February 2013 is that the ECJ left no doubts about the institution in charge of any such future ironings out: itself. Continue reading

Gueye and Salmerón Sánchez: The ECJ side-stepping the Stockholm syndrome in domestic violence cases, and its implications

John Morijn

This post is partly based on a case comment published in the Dutch law journal European Human Rights Cases.

As far as cases with counterintuitive facts go, the references for a preliminary ruling in Gueye (C-489/09) and Salmerón Sánchez (C 1/10) of 15 September 2011 rank high. The ECJ was asked whether an obligation laid down in Spanish criminal law to impose an additional restraining order on convicted perpetrators of domestic violence was at odds with EU law, in particular articles 2, 3 and 8 of the Framework Decision (2001/220/JHA) on the standing of victims in criminal proceedings. Delicate detail: the victims – in a move reminiscent of victims’ extraordinary-events-induced bonding with perpetrators, the so-called Stockholm syndrome – had joined their loose-handed husbands in objecting to this approach in Spanish courts, asserting that the unconditional and uncompromising nature of the measure had the effect of violating their private and family life. The resulting judgement raised the interesting issue not only of whether EU law co-regulates how States should deal with Stockholm syndrome-type scenarios, but also how the Court applies the EU Fundamental Rights Charter and the ECHR underlying it.

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The EU Fundamental Rights Charter, the European Commission and the Council of Ministers: checking the ‘Charter checklists’. Part 2.

John Morijn

Therefore it is noteworthy and of potentially wider practical significance that the European Commission and the Council of Ministers have recently published documents and adopted conclusions about how they intend to make use of the Charter. In particular, each of them has drawn up its own Charter checklist. Although this is a step to be applauded in principle, since it may help give the Charter the permanent prominent place in Brussels and capitals it legally requires, each of these checklists may need some double-checking. Part 1 looked at the checklist of the Commission, Part 2 looks at the checklist of the Council.

Council

In response to the Commission Strategy, the Council adopted several conclusions. It announced that it will aim to ensure that legislative proposals cleared by it will be worthy of a ‘fundamental rights label’. It also developed guidelines on the ‘methodological steps to be taken to check fundamental rights compatibility at the Council’s preparatory bodies’, intended to ensure this for both the legislative proposals proposed at EU level as well as for Member States proposed amendments. The ‘efficacy’ of these methodological guidelines was rather prematurely underlined already just days after they were actually published. As far as relevant they read as follows:

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The EU Fundamental Rights Charter, the European Commission and the Council of Ministers: checking the ‘Charter checklists’. Part 1.

John Morijn

Upon entry into force of the Lisbon Treaty the EU Charter of Fundamental Rights became legally binding. EU institutions, agencies and bodies, as well as EU Member States when they implement Union law are now bound as a matter of Union law to comply with the Charter (art. 51). That this has been the situation since 1 December 2009 is clear to everybody. What consequences it will have in practice, particularly in EU legislative practice, is still largely an open question.

The transformation of the Charter from ‘new kid on the block’ to ‘new kit for the block’ is gradually shaping up, however. The Court of Justice now gives the Charter its place next to the other legal sources of human rights, such as the ECHR. This judicial use of the Charter has been regularly assessed. What has been happening with the Charter in Brussels and the capitals in the stages prior to judicial review is less clear. In fact it is far from unlikely that, particularly in the capitals, so far very little has been happening with the Charter. The ‘new kit’ requires some authoritative instructions regarding its modes d’emploi.

Therefore it is noteworthy and of potentially wider practical significance that the European Commission and the Council of Ministers have recently published documents and adopted conclusions about how they intend to make use of the Charter. In particular, each of them has drawn up its own Charter checklist. Although this is a step to be applauded in principle, since it may help give the Charter the permanent prominent place in Brussels and capitals it legally requires, each of these checklists may need some double-checking.

Continue reading