The Cjeu Syllabus

Academic Year 2017-2018 European Legal Studies Department Professor: Judge Allan Rosas Assistant: Alexandros Liatsos

THE CJEU AND THE ECHR POST OPINION 2/13

SYLLABUS

Table of contents

1. Course Outline

2. Draft Revised Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms, Council of Europe document 47+1 (2013) 008 rev 2 (10 June 2013) (See PowerPoint presentation)

3. Opinion 2/13 of the European Court of Justice of 18 December 2014 on the compatibility of the draft accession agreement with the Treaties, EU:C:2014:2454

Further Reading “The CJEU and the ECHR post Opinion 2/13”

Judge Allan Rosas, European Court of Justice 16 and 17 February 2018 College of Europe, Bruges

Course Outline

1. How It All Began

• Case C-29/69 Stauder, EU:C:1969:57. Fundamental rights are among the general principles of Community law whose observance the Court ensures. • Inspiration is provided by the constitutional traditions common to the Member States (Case C-11/70 Internationale Handelsgesellschaft, EU:C:1970:114, and guidelines are provided by international treaties on which the Member States have collaborated or of which they are signatories (Case C-4/73 Nold, EU:C:1974:51).

2. Rapprochement between Luxembourg and Strasbourg

• No reference to ECHR in case-law: 1969 - 1974. • Case C-36/75 Rutili, EU:C:1975:137: France had become a Contracting Party to the ECHR. • ECHR has "special significance" (since the 1980s), but that does not exclude occasional reference to other human rights instruments. • This “special significance” has not prevented the ECJ form citing also other human rights instruments than the ECHR. • Article F/6(2) TEU, before the Treaty of Lisbon. • Case C-94/00 Roquette Frères, EU:C:2002:603: willingness to adjust case-law in the light of new Strasbourg case-law (cf. Joined Cases C-46/87 and C-227/88 Hoechst, EU:C:1989:337). • On 7 December 2000, the European Parliament, the Council and the Commission proclaimed the Charter of Fundamental Rights of the European Union. According to its preamble, the Charter reaffirms fundamental rights "as they result", inter alia, from the constitutional traditions and international obligations common to the Member States, the ECHR, the Social Charter of the Council of Europe and the case-law of the Court of Justice and the European Court of Human Rights (see also Case C-540/03 Parliament v Council, EU:C:2006:429). • Article 52(3) of the Charter of Fundamental Rights of the European Union: the meaning and scope of Charter rights which correspond to rights guaranteed under the ECHR shall be the same as those laid down in the Convention. • On the other hand, the ECHR does not constitute a legal instrument formally incorporated into EU law (see, eg, Case C-601/15 PPU J.N., EU:C:2016:84, paras 45- 46).

• Has the ECJ, in its post-Lisbon case-law, become more reluctant to cite the ECHR and Strasbourg case-law than was the case before the entry into force of the Charter of Fundamental Rights?

3. Strasbourg Asserts Control through the Back Door

• Case of Matthews v United Kingdom, Eur.C.H.R. Application n° 24883/94, judgment of 18 February 1999: Control of conformity with ECHR of EU primary law; compare Case C-145/04 Spain v United Kingdom, EU:C:2006:543. • Case of Bosphorus v Ireland, Eur.C.H.R., Application no 45036/98, judgment of 30 June 2005: Presumption of conformity with ECHR of EU secondary law and its national application. • Case of M.S.S. v Belgium and Greece, Eur.C.H.R., application no 30696/09, judgment of 21 January 2011; Case of Tarakhel v Switzerland, Eur.C.H.R., application no 29217/12, judgment of 4 November 2014: control of the conformity with the ECHR of the decision to return asylum-seekers to another EU Member State taken on the basis of regulation No 343/2003 (Dublin regulation). • Case of Michaud v France, Eur.C.H.R., application no 12323/11, judgment of 6 December 2012: Presumption of equivalent protection was not applicable (mainly because Article 267 TFEU had not been used). • Case of Vergauwen v Belgium, Eur.C.H.R., application no 4832/04, judgment of 10 April 2012; Case of Dhabi v Italy, Eur.C.H.R., application no 17120/09, judgment of 8 July 2014: violation of Article 6 because no reasoning presented for refusing to use Article 267 TFEU. • Case of Avotiņš v. Latvia, Eur.C.H.R, application n° 17502/07, judgment of 23 May 2016: a Latvian court’s decision to recognize and enforce a Cypriot court’s judgment, in accordance with EU Council Regulation n° 44/2001 (Brussels I), did not violate Article 6 ECHR (the Bosphorus presumption had not been rebutted).

4. Tension between Luxembourg and Strasbourg case law: mutual recognition as an example

• Return of asylum seekers to Member State responsible, according to the Dublin Regulation (“Dublin III”: Regulation N° 604/2013). See the cases of M.S.S. v Belgium and Greece, and Tarakhel v Switzerland referred to above; cf Joined Cases C-411/10 N.S and C-493/10 M.E., EU:C:2011:865 and Case C- 155/15 Karim, EU:C:2016:410.

• Mutual recognition and judicial cooperation in civil matters. Extensive ECJ case law relating, e.g., to the “Brussels I” Regulation (latest version Regulation No 1215/2012). See, e.g., case C-116/02 Gasser, EU:C:2003:657. For an interesting pending case see case C-34/17 Donnellan (oral hearing on 18 January 2018), relating to the possible right of the enforcing Member State to refuse the enforcement of an administrative fine of the applicant Member State for the alleged violations, in the latter State, of Article 47 of the

Charter of Fundamental Rights (Directive 2010/24/EU concerning mutual assistance for the recovery of claims relating to taxes, duties and other measures is silent on this point and does not even contain a ground of refusal relating to public policy; relevance of Eur.C.H.R case law?). According to the 3rd recital of Regulation No 1215/2012, the Union has set itself “the objective of maintaining and developing an area of freedom, security and justice, inter alia, by facilitating access to justice, in particular through the principle of mutual recognition of judicial and extra-judicial decisions in civil matters.” Many of the relevant instruments have abolished, restricted or simplified the need for a declaration of enforcement (exequatur) in the enforcing Member State. Cf case of Avotiņš v. Latvia, Eur.C.H.R, application n° 17502/07, judgment of 23 May 2016 (Grand Chamber), referred to above.

• Return of children unlawfully removed to another Member State (Regulation No 2201/2003, “Brussels II a”)

Case of Povse v Austria, Eur.C.H.R., application no 3890/11, decision of 18 June 2013: after the ECJ, in case C-211/10 PPU Povse, EU:C:2010:400, had ruled that a certified judgment of an Italian court ordering the return of a child had to be enforced in Austria, the Eur.C.H.R. held that an Austrian court’s decision ordering the child’s return was in compliance with EU Council Regulation No 2201/2003 (Brussels II a) and the ECJ judgment and declared a complaint against Austria inadmissible as manifestly unfounded. In case M. A. v Austria, Eur.C.H.R, application n° 4097/13, judgment of 15 January 2015, Austria was found to have violated Article 8 ECHR as the Austrian system had not enabled a swift return of the child to Italy. See e.a. also case of Severe v. Autria, Eur.C.H.R., application no 53661/15, judgment of 21 September 2017; case of Mansour Slovakia, Eur.C.H.R., application no 60399/15, judgment of 21 September 2017. Examples of ECJ judgments insisting on a speedy and effective return of the child: case C-195/08 PPU Rinau, EU:C:2008:406; Case C-403/09 PPU Detiček, EU:C:2009:810; Case C-491/10 PPU Aguirre Zarraga, EU:C:2010:828.

• European arrest warrant (framework decision 2002/584/JHA)

Case C-399/11 Melloni EU:C:2013:107 : strict observance of framework decision. Cf Joined cases C-404/15 and C-659/15 Aranyosi et Căldăraru EU:C:2016:198, where the Court recognized that there may be exceptional situations where a court in the requested Member State, after having sought to obtain information form the court in the requesting state which had issued the arrest warrant, must refuse to execute the warrant, if that would entail a violation of Article 4 of the Charter of Fundamental Rights.

Case of Castaño v. Belgium, Eur.C.H.R., application no 8351/17, pending (complaint against Belgium for not having executed Spanish arrest warrant)

5. EU Law and ECJ Case Law in the European Court of Human Rights

Examples of cases where the European Court of Human Rights has used developments in EU law as sources of inspiration:

• Case of Goodwin v United Kingdom, Eur.C.H.R., judgment of 11 July 2002

The European Court of Human Rights referred to the wording of Article 9 of the EU Charter of Fundamental Rights to back up its decision that the refusal to recognise a change of sex for the purposes of marriage constituted a violation of Article 12 of the European Convention; on the other hand, the ECJ in the above-mentioned Case C-117/01 K.B. referred to the judgment in Goodwin

• Case of Scoppola v Italy, Eur.H.C.R., judgment of 17 September 2009

The European Court of Human Rights referred to Article 49(1) of the EU Charter of Fundamental Rights and ECJ case law (Joined Cases C-387/02, C-391/02 and C-404/02 Berlusconi, EU:C:2005:270) when ruling that Article 7 ECHR provided for the principle of more lenient criminal law

• Case of Szabo and and Vissy v Hungary, Eur.H.C.R., judgment of 12 January 2016

The Court (paras 23,70,73) referred to Cases C-293/12 and C-594/12 Digital Rights Ireland and Others, EU:C:2014:238.

• Asylum law-related cases (paper by Allan Rosas)

6. EU Accession : General Developments

• Opinion 2/94 Accession to the European Convention on Human Rights, EU:C:1996:140. • Article 11-7(2) of the Draft Treaty establishing a Constitution for Europe, submitted by the European Convention: The Union "shall seek accession" to the ECHR. Article I-9(2) of the Treaty establishing a Constitution for Europe, signed on 29 October 2004 (OJ C 310, 16.12.2004): The Union "shall accede" to the ECHR. • Article 6(2) TEU, as amended by the Treaty of Lisbon: "The Union shall accede to the [ECHR]. Such accession shall not affect the Union's competences as defined in the Treaties." • Article 218(8) TFEU: The Council shall also act unanimously for the agreement on accession of the Union to the [ECHR]; the decision concluding this agreement shall enter into force after it has been approved by the Member States in accordance with their respective constitutional requirements"; according to Article 218(6) TFEU, the consent of the European Parliament is required for, inter alia, the agreement on Union accession to the ECHR. • Protocol No 8 relating to Article 6(2) [TEU] on the Accession of the Union to the [ECHR] annexed to the Treaties; Declaration No 2 on Article 6(2) [TEU] annexed to the Final Act of the Intergovernmental Conference. According to the Protocol, the accession agreement “shall make provision for preserving the specific characteristics of the Union and Union law”.

• Article 59(2) of the ECHR, as amended by Article 17 of Protocol No. 14 to the [ECHR], amending the control system of the Convention (entered into force in February 2010): "The European Union may accede to this Convention." • The set-up for negotiations between the EU and the CoE and the Convention States, the Commission mandate of July 2010-June 2011. • Draft agreement on the accession of the EU to the ECHR elaborated by a Council of Europe (CDDH-Steering Committee for Human Rights) – EU informal working group, June 2011.

• Further negotiations and discussions 2011-2013: Draft revised accession agreement agreed at negotiators’ level in April 2013, Fifth Negotiation Meeting between the CDDH Ad Hoc Negotiation Group and the European Commission, Council of Europe document 47+1 (2013) 008 rev 2 (10 June 2013).

• On 4 July 2013, the Commission, acting under Article 218 (11) TFEU requested an opinion of the ECJ as to whether the draft revised accession agreement is compatible with the Treaties.

7. EU Accession: Problems and Challenges in the Light of Opinion 2/13

• Main implications of EU accession as compared to the current situation (see paras 179- 181 of Opinion 2/13) • What would happen to the Bosphorus presumption? • Main characteristics of EU accession according to the 2013 draft accession agreement (Articles 1-2, 6-8 of draft agreement) • Main problem relating to the draft accession agreement as viewed by the ECJ in Opinion 2/13: A non-State entity (the EU) would adhere to the ECHR, and it would become a Contracting Party not by replacing, but alongside, its own Member States (“vertical” rather than “horizontal” relation to some of the other Contracting Parties). • Relation between Article 53 ECHR and Article 53 of the EU Charter of Fundamental Rights (paras184-190 of Opinion 2/13) • Mutual recognition and mutual trust: in Union law, the relations between the Member States differ from their relations with third States (paras 191-195 of Opinion 2/13) • Relation between Protocol No 16 of the ECHR (advisory opinions) and Article 267 TFEU (preliminary rulings) (paras 196-199 of Opinion 2/13) • Relations between Article 344 TFEU (monopoly of the Union Courts in the field of Union law), on the one hand, and Article 33 ECHR (inter-state complaints) with respect to the possibility of litigation before the Eur.C.H.R. between EU Member States (Article 5 of draft accession agreement and Article 55 ECHR) (paras 201-2014 of Opinion 2/13) • Co-respondent mechanism - The Eur.C.H.R. would decide on request to become co-respondent and thus on division of powers between the Union and its Member States and thus on the interpretation of Union law (Article 3(5) of the draft accession agreement, paras 222- 225 of Opinion 2/13) - Member State may become responsible for violation of ECHR even if it has entered a reservation to the provision concerned (Article 3(7) of the draft accession agreement, paras 226-228 of Opinion 2/13)

- The Eur.C.H.R. could decide to attribute responsibility to only one party (either the EU or a Member State) (Article 3(7) of the draft accession agreement and paras 229- 235) • Prior involvement of the ECJ - The Eur.C.H.R. could decide whether prior involvement is necessary and thus on the interpretation of the ECJ’s case law and there is no clause in the draft accession agreement requiring that in all cases before the Eur.C.H.R., the EU institutions are systematically informed (Articles 3(6) of the draft accession agreement, paras 238- 241 of Opinion 2/13) - The procedure would not apply to the interpretation of EU’s secondary law (Article 3(6) draft accession agreement, paras 242-247 of Opinion 2/13) • Lack of judicial review of certain CFSF matters: the Eur.C.H.R. but not the ECJ would have jurisdiction (Opinion 1/09; paras 249-257 of Opinion 2/13). But see cases C-439/13P Elitaliana v Eulex Kosovo EU:C:2015:753; C-455/14P H v Council and Commission EU:C:2016:569 and C-72/15 Rosneft EU:C:2017:236, where the ECJ established that it had jurisdiction, despite the CFSP context of the cases.

8. EU Accession to the ECHR: The Way Forward?