Confusing the protection of human rights in Europe – Strasbourg v Luxembourg? Part 2.

Aidan O’Neill QC

In part 1 of this series of posts, EUtopia law examined the problems created by 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. This post evaluates possible solutions to this problem.

An opportunity for a possible resolution of the divergence problem arose following the 1996 decision of the Court in Bosphorus (C-84/95) where the CJEU held that the impounding of an aircraft by the Irish authorities acting under an EC regulation introduced to enforce UN sanctions against the former Yugoslavia did not contravene the respect for property rights recognised under EU law. The aircraft owners then took their case to the ECtHR. After a hearing, in which the European Commission was permitted to intervene as an interested party, the Strasbourg Grand Chamber pronounced judgment in June 2005. In its judgment in Bosphorus v Ireland (App no.45036/98) the ECtHR came to the same substantive result as the CJEU on the fundamental rights argument in holding that the detention and retention of the aircraft was indeed compatible with the State’s obligations under ECHR, art 1 Protocol 1. In reaching this decision the Strasbourg Court addressed and attempted to resolve the issue of the possibility of divergence between human rights interpretation and protection as between the two courts by applying a presumption that the CJEU offered equivalent fundamental rights protection to that afforded by the ECtHR and so that Member States could not be found to be in breach of the ECHR if and insofar as they were (properly implementing) EU law in accordance with the fundamental rights guarantees protected by the CJEU.

But this decision by the Strasbourg Court to avoid or lessen the possibility of conflict between the two European courts by giving full faith and credit to the fundamental rights judgments of the CJEU does not wholly, or indeed satisfactorily, resolve potential problems.   It remains the case that having adopted the language of the protection of fundamental rights, the CJEU has placed itself in a critical dilemma. If it interprets those rights in the context of the overall aims of the EU Treaties to promote ‘an ever closer union of the peoples of Europe’ by, among other things, establishing a single market, it is accused of down-grading real concern for individual human rights, both by subordinating them to the political aim of further European integration favoured by the central EU institutions, and by equating rights of respect and dignity owed to all human beings with the economic freedoms accorded to and exercised only by the commercially active and useful. If, however, the CJEU takes a broader view of the protection of fundamental rights divorced from any specific economic context, and presents itself as the protector of the rights of the individual European citizen against the excesses or failings of the Member States, it is then accused of ‘running wild’ and usurping a role which was never intended for it, particularly where the Member States’ constitutions embody values which are not wholly or accurately reflected in the ECHR or other international instruments for human rights protection from which the CJEU draws its inspiration.

Such publicly-expressed doubts over the legitimacy of the adoption of fundamental rights rhetoric by the CJEU, and general attacks on its perceived activism, have left the CJEU appearing to lack consistency in its approach to fundamental rights protection, appearing at times surprisingly progressive and other times unaccountably politically timid. The fact that, in contrast to the practice of the ECtHR, it does not permit dissenting opinions in its judgments, and produces, as a result, decisions which are the result of compromise of sometimes radically opposed views, cannot add to public confidence in the persuasive powers of its reasoning. The underlying suggestion has been that it would be better to leave the development of human rights to courts specifically designed to protect them, namely the Strasbourg-based ECtHR.

The Member States’ proposed resolution of this tension between Strasbourg and Luxembourg is to be found in the terms of Article 6(2) TEU which specifies that “the [European] Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.” And in its “Stockholm Programme” adopted on 11 December 2009, the European Council resolved to ensure the ‘rapid’ accession of the EU to the ECHR. The judges of the CJEU soon intervened in this debate stating that:

“In order to preserve this characteristic of the [European] Union’s system of judicial protection, the possibility must be avoided of the European Court of Human Rights being called on to decide on the conformity of an act of the Union with the Convention without the Court of Justice first having had an opportunity to give a definitive ruling on the point.”

The fundamental issue remains between the two courts as who shall be master. Almost two years on, the negotiations continue.  The question is, will there ever be sufficient political will across the EU and the Council of Europe to allow them to be satisfactorily concluded?

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