Journalists and politicians in the UK have often shown themselves to be ‘confused’ over the relationship between the EU law and the European Convention of Human Rights/Human Rights Act. This confusion has been particularly evident in punditry on cases raising the issue of possible deportation or expulsion from the UK of other EU nationals and prisoners’ voting rights. In a series of posts EUtopia law looks at the relationship between the CJEU and ECtHR more generally.
All the Member States of the European Union are also contracting States of the Council of Europe. This means that the States are subject, in matters of EU law, to the final jurisdiction of the Court of Justice of the European Union (“CJEU”) based in Luxembourg. In matters concerning fundamental rights, however, these same States are subject to the final jurisdiction of the European Court of Human Rights (“ECtHR”), based in Strasbourg. Of course EU law and fundamental rights readily overlap in many areas. In that event, which is the top court: Strasbourg or Luxembourg ?
The CJEU has held that the substantive fundamental rights provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) – which the Strasbourg court is tasked with interpreting and applying – themselves express and reflect existing general principles of EU law. And this line of CJEU case law is now reflected in the terms of Article 6(3) of the Treaty on European Union (“TEU”) which states that “fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law”. As general principles, the claims of fundamental rights are binding on the EU institutions, and on the Member States when acting within the sphere of EU law.
The CJEU has also been clear that EU law takes precedence over all other claims of international law and the decisions of other international tribunals (see Kadi & Al Barakaat International Foundation v Council and Commission (C-402/05 P & C-415/05 P) – compare, however, Kadi v Commission (T-85/09) at paras 115-21, at the time of writing on appeal to the CJEU as C-584/10). The CJEU holds itself out to be the European Supreme Court, finally and authoritatively interpreting – at least for the EU Member States – the provisions of the ECHR when its provisions arise within a field also covered by EU law. And the range of EU law is vast. Indeed the difficult thing within the contemporary legal systems of the EU Member States (including those of the United Kingdom) is to find an area of law which falls outside the ambit of EU law, rather than to define and delimit those areas which fall within it. The result of this CJEU jurisprudence is that, in relation to in fundamental rights issues falling within EU law, the Member States of the EU are to regard themselves are simultaneously bound by two different masters: both the CJEU (under and in terms of the EU Treaties) and the ECtHR (under and in terms of the ECHR).
But these two European courts do not always speak with the one voice. They have, in the past, diverged in their interpretation of such issues as: the existence and extent of the privilege against self-incrimination under ECHR, art 6(1); whether business premises are covered by the ECHR, art 8 right to respect for private life; whether the protections of ECHR, art 10 could be prayed in aid in relation to the dissemination of information relating to the availability of abortion in other States; and whether sexual orientation was a prohibited ground of discrimination under reference to ECHR, art 14.
This continued and continuing possibility for such divergence places the courts of the Member States in a difficult position. The existence of two distinct means of reference to fundamental rights, either under direct reference to the ECHR or under reference to the general principles of EU law, in fact exacerbates the possibility of conflict for national courts between competing fundamental rights considerations and interpretations.
In part 2 EUtopia law will look at the possible resolution of the divergence problem following the 1996 decision in Bosphurus (C-84/95).