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

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.


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