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). 2 • 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 3 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 4 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.