Author Archives: johan-callewaert

Two-step examination of potential violations of fundamental rights in the issuing Member State: towards “systemic or generalised” differences with Strasbourg?

The enclosed paper is a reaction to the recent Opinion by Advocate General de la Tour in the case of Puig Gordi and Others (C-158/21). This Opinion would indeed appear to touch on fundamental methodological issues with serious implications for the consistency of the protection of fundamental rights in the field of European arrest warrants.

The problem arises in connection with the so-called two-step examination prescribed by the CJEU in the context of the execution of European arrest warrants, when risks of violations of fundamental rights in the issuing Member State are being claimed to exist. This two-step examination basically consists of a general test followed by an individual test. Yet the Advocate General’s Opinion now suggests that in the absence of evidence under the general test of any “systemic or generalised” deficiencies in the protection of the right to a fair trial in the issuing Member State, an individual test should no longer be carried out. This, it is argued, would come down to autonomising the general test and letting it replace the individual test altogether, a development which would indeed raise some Convention-based concerns. These concerns and their implications are explained in greater detail in the enclosed paper.

Non bis in idem: between Menci and bpost – Judgment of the CJEU in the BV case

In the case of BV (C-570/20, 5.5.2022), the CJEU again ruled on the requirements of the non bis in idem principle (prohibition of double jeopardy) laid down in Article 50 of the EU-Charter on fundamental rights. The referring court in this case, the French Court of cassation, had doubts as to whether, basically, the French legislation allowing VAT-related offences to be punished through a combination of a financial administrative penalty of a criminal nature and a custodial sentence was precise enough to comply with the EU law requirements in this area.

What is somewhat surprising in this ruling, from a Convention point of view, is yet again an apparent lack of methodological coherence by the CJEU as regards the exceptions which can be made to the non bis in idem principle in respect of dual proceedings. Whereas the CJEU in its recent Grand Chamber ruling in the bpost case seemed willing to somewhat close the methodological gap between its own Menci jurisprudence and the Strasbourg A and B jurisprudence, the present judgment seems to take a step back in this respect, by not at all referring to either A and B or bpost and even seemingly ignoring the progress achieved by the latter in bringing some more coherence between the Strasbourg and Luxembourg case-law on this issue. All case-law references are indeed to the sole Menci case which, one could have thought, had been complemented or superseded by bpost in the meantime.

In concrete terms, whereas bpost took on board some of the Strasbourg criteria which in Menci had played no role, notably the fact that for a duplication of proceedings to be acceptable, the two sets of proceedings at stake had to be complementary in nature and form a “coherent whole” (§ 49), or indeed that there was to be a “sufficiently close connection in substance and time” between them (§ 53), in the present ruling these elements are completely left out of the enumeration made by the CJEU of the requirements to be fulfilled under Article 52(1) of the EU-Charter (§§ 30-36), despite their importance, as underlined both in bpost and A. and B.

Perhaps one should not read too much into the present judgment, bearing in mind that the focus in BV was on the precision of the dometsic legislation. The fact remains, though, that in an area which is already highly complex and has over the years been the subject of a succession of varying approaches, any additional confusion as to the applicable standards should preferably be avoided. From this perspective, a clear indication about the methodological continuity between bpost and BV would have been welcome, thus dispelling the – hopefully false – impression that Menci still looks like the leading case when it comes to dual proceedings in Luxembourg.

14th Meeting of the Negotiation Group on EU accession

The CDDH ad hoc negotiation group (“46+1”) on EU accession to the European Convention on Human Rights held its 14th meeting on 5-7 July 2022 with the participation of almost 90 delegates. The main results of the meeting were a tentative agreement on the issue concerning inter-party applications under Article 33 of the Convention, progress towards a possible solution to the issue concerning requests for an advisory opinion under Protocol No. 16, and clarification of issues relating to voting in the Committee of Ministers when supervising the implementation of judgments of the European Court of Human Rights.

National legislation on the resolution of credit institutions compatible with the right to property: judgment of the CJEU in the case of BPC Lux 2 and Others

In the case of BPC Lux 2 and Others (C-83/20, 5.5.2022), the CJEU examined the compatibility of Portuguese legislation on the resolution of credit institutions with the right to property protected by Article 17 of the EU-Charter of fundamental rights. It concluded that the legislation at issue was compatible with it.

The preliminary ruling is noteworthy in that for the interpretation of Article 17 the CJEU relied to a large extent on the Strasbourg methodology and case-law relating to Article 1 of Protocol No. 1 to the Convention, notably the “three distinct rules” approach developed by the ECHR (see §§ 37-44 and 56). This comes after a reminder about Article 52(3) of the EU-Charter the effect of which is to require that the case-law of the ECHR on Article 1 of Protocol No. 1 be taken into account as minimum protection level (§ 37).

The explanations relating to Article 17 of the EU-Charter indeed state that while the wording of Article 1 of Protocol No. 1 has been updated in Article 17 of the EU-Charter, “in accordance with Article 52(3), the meaning and scope of the right are the same as those of the right guaranteed by the ECHR and the limitations may not exceed those provided for there.”

Interestingly, though, when examining the lawfulness of the limitations imposed by the legislation at issue, notably its detrimental impact on shareholders and creditors, the CJEU applied Article 52(1) of the EU-Charter, which is the provision laying down the requirements to be fulfilled by limitations to the rights of the EU-Charter. It did so without subsequently addressing the question whether those criteria – or at least their effect in the present case – were meeting the Strasbourg minimum standards. The implicit conclusion from the CJEU’s silence on this issue seems to be that they were.

This conclusion could indeed find some support in the relevant Strasbourg case-law heavily relied on in the judgment, as well as in the use of a good deal of the conceptual framework emerging from it, including the consideration that because national authorities are better placed to assess the economic situation, they should enjoy a wide margin of appreciation (§ 55).

The right to a new trial following a conviction in absentia: judgment of the CJEU in the case of Spetsializirana prokuratura

In the case of Spetsializirana prokuratura (trial of an absconded suspect) (C-569/20, 19.5.2022) the CJEU applied Directive 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings on a situation arising from the fact that an accused in domestic criminal proceedings had absconded. The issue was whether under that Directive the accused could be tried in absentia and, if so, would be, after reappearing, entitled to a new trial or, alternatively, another legal remedy allowing a fresh determination of the merits of the case.

The judgment is already noteworthy in that it represents another contribution by the CJEU to the interpretation of one of the directives on procedural rights in criminal proceedings, the list of those contributions being still rather short (see, for another recent example, the judgment in the case of IS).

A further interesting feature of this case is certainly the fact that it confronted the CJEU with a situation not explicitly covered by Directive 2016/343, i. e. the situation created by an accused who may be considered to have waived the right to a new trial laid down in Article 9 of the Directive. The Directive indeed covers the situations whereby an absent suspect is either properly informed about the upcoming trial or represented by a mandated lawyer (Article 8(2)) or indeed cannot be located by the authorities (Article 8(4)). It does not, however, deal with a suspect who, while being informed of his or her trial, waives his or her right to be present at it.

In the absence of an explicit provision addressing that eventuality, the CJEU therefore engaged into an interpretation of Article 8(2) of the Directive – which sets out the circumstances under which a judgment in absentia does not give rise to a right to a retrial –, with a view to determining when there could be such a waiver and whether it came within the scope of that provision.

Interestingly, the CJEU thereby relied on the case-law of the ECtHR on the requirements to be fulfilled for a waiver of procedural rights to be compliant with Article 6 of the Convention (Sejdovic v. Italy, Vilches Coronado and Others v. Spain) and, more specifically, on the fact that such a waiver can be inferred from the circumstance that the summons to appear could not be served on an accused on account of a change of address which the accused failed to communicate to the competent authorities (Lena Atanasova v. Bulgaria). In light of that case-law, the CJEU concluded that:

“It is only where it is apparent from precise and objective indicia that the person concerned, while having been officially informed that he or she is accused of having committed a criminal offence, and therefore aware that he or she is going to be brought to trial, takes deliberate steps to avoid receiving officially the information regarding the date and place of the trial that that person may, subject however to the particular needs of the vulnerable persons referred to in recitals 42 and 43 of Directive 2016/343, be deemed to have been informed of the trial and to have voluntarily and unequivocally foregone exercise of the right to be present at it. The situation of such a person who received sufficient information to know that he or she was going to be brought to trial and, by deliberate acts and with the intention of evading justice, prevented the authorities from informing him or her officially of that trial in due time by means of the document referred to in paragraph 41 of the present judgment is thus covered by Article 8(2) of that directive. (§ 48, emphasis added)

According to the CJEU, it was for the referring court to examine, in the light of its interpretation of Article 8(2), whether the accused could be deemed to have, tacitly but unequivocally, waived his right to be present at his trial, in which case he would not be entitled to a new trial.

While the harmony thus being created between Luxembourg and Strasbourg on the issue at stake is of course a welcome development, this case also illustrates the risks involved in trying to codify a subject matter such as procedural fundamental rights, which is primarily the result of a dynamic case-law resulting from the application of Articles 6 of the Convention and 47-48 of the EU-Charter (right to a fair trial).

It is indeed a well-known fact that the Convention is a « living instrument » and is interpreted accordingly by the ECHR, with the consequence that its rights must on occasion be adapted to new situations and their requirements refined. Yet, the present case reveals that not only does Directive 2016/343 not address the waiver of one of the main rights laid down by it, but also that, for obvious chronological reasons, it could not take on board more recent case-law developments such as those resulting from the more recent ECHR judgments referred to by the CJEU. Against this background, the question arises whether such Directives are intended to be updated accordingly or whether they might gradually turn into static alternatives to a dynamic case-law (on this, see No more common understanding, at p. 27-28)?

13th Meeting of the Negotiation Group on EU accession

The CDDH ad hoc negotiation group (“46+1”)* on the EU accession to the European Convention on Human Rights held its 13th meeting on 10-13 May 2022. In total, more than 80 delegates participated in this meeting, which took place in hybrid format. The handling of interstate applications (Art. 33 of the Convention) and of requests for an advisory opinion (Protocol no. 16 to the Convention) post-accession, the voting rights in the Committee of Ministers of the Council of Europe as well as the Common Foreign and Security Policy were among the topics discussed.

(*) The name of the group has been changed from “47+1” to “46+1” following the cessation of the membership of the Russian Federation to the Council of Europe on 16 March 2022.

NO MORE COMMON UNDERSTANDING OF FUNDAMENTAL RIGHTS? About the looming fundamental rights patchwork in Europe and the chances for the current negotiations on EU-accession to the ECHR to help avoid it

The enclosed paper discusses the picture regarding the protection of fundamental rights in Europe today which increasingly looks like a patchwork, due to a lack of coordination at different levels. Developments reinforcing that picture include the emergence of different methodologies for the application of fundamental rights, Constitution-based challenges to European law by national Supreme Courts, codifications of existing case-law and the creation of so-called « hybrid » institutions.

The resulting complexity is a challenge for domestic courts, a threat to the confidence of citizens and detrimental to the fundamental rights themselves, their special role and authority being gradually eroded by a general relativism.

EU-accession could have an anti-patchwork effect and represent a chance for a general coordination of fundamental rights in Europe. Beyond making the Convention binding upon the EU, it would also have a pan-European (re)structuring effect by confirming the Convention as the minimum benchmark providing both the bedrock and the framework for all other national or European fundamental rights as well as for the necessary judicial dialogue on the latter.

Good progress has been achieved since the resumption of negotiations for EU-accession, justifying cautious optimism as to the possibility to find adequate solutions to the outstanding issues

“Non bis in idem” in dual proceedings: CJEU judgment in the bpost case

In the case of bpost (C-117/20, 22.3.2022) a Grand Chamber of the CJEU gave another ruling on the requirements of the non bis in idem principle (prohibition of double jeopardy), enshrined in Article 50 of the EU-Charter, when applied to dual proceedings concerning the same facts. In the present case, the company bpost was successively fined by two national authorities: first by the Belgian postal regulator, on account of discrimination against some of its clients, and subsequently by the Belgian competition authority, on grounds of abuse of a dominant position.

From a Convention point of view, the ruling is noteworthy in that it represents some evolution of the CJEU’s doctrine on the application of the non bis in idem principle to dual proceedings, i.e. a combination of administrative and/or criminal proceedings applied in respect of the same reprehensible conduct. To the extent that the administrative part of such dual proceedings is to be considered, by virtue of an autonomous interpretation, as criminal for the purposes of the Convention and/or the Charter, an issue about non bis in idem may indeed arise. Yet the methodological differences which existed between the Strasbourg and the Luxembourg approach in this field and resulted in different protection levels had given rise to some concerns (on this, see Do we still need Article 6(2) TEU?, at pp. 1707 et seq.).

In A and B v. Norway, the ECtHR upheld the ban on duplication of trial or punishment laid down in Article 4 of Protocol No. 7 to the Convention, but accepted that depending on the circumstances, some dual proceedings could be seen as complementing each other so as to form a single coherent whole not breaching that provision. This required that they be combined in an integrated manner, notably through a sufficiently close connection in substance and in time. By contrast, in Menci and two other cases decided on the same day, the CJEU accepted the possibility of a duality of criminal proceedings in certain circumstances, by considering such a duality as a limitation permitted under Article 52(1) of the EU-Charter.

This resulted in two different approaches to the same provision, based on criteria which partly overlap and partly differ from each another. While these different criteria did not necessarily appear mutually exclusive or incompatible, their coexistence nonetheless confronted the domestic courts, who may have to combine them, with a new source of complexity and legal uncertainty.

In the bpost case, while sticking to its own methodology based on Article 52(1) of the EU-Charter, the CJEU now took on board some of the Strasbourg criteria which it had previously ignored in Menci. It did so notably by referring to the notion of the “coherent whole” which, according to the ECtHR, the two sets of proceedings at stake must build in order for them to be complementary (A. and B., § 130) and by adding the requirement of a proximate timeframe to the relevant criteria for determining whether that is the case (§§ 51, 53 and 56). It now also relied on A. and B. in confirming its own case-law on the requirement that dual proceedings must be foreseeable and proportionate in their effects. Most significantly, the CJEU mentioned side by side, as the source of its relevant case-law, the Luxembourg judgment in Menci and the Strasbourg judgment in A. and B. (§§ 51 and 53), thereby suggesting that its case-law had a common basis. This is a significant move towards common standards, considerably facilitating the work of domestic courts.

Overall, there would therefore appear to be increasing convergence between Strasbourg and Luxembourg as regards the application of non bis in idem on dual proceedings, despite the remaining methodological differences. This, it is suggested, should hardly come as a surprise in light of the fact that, as recalled by the CJEU itself (§ 23), Article 50 of the EU-Charter, when applied within the same Member State, corresponds to Article 4 of Protocol No. 7 to the Convention and should therefore, by virtue of Article 52(3) of the EU-Charter, be given the same meaning and scope.

Risk of breach of the right to a tribunal established by law following the execution of a European arrest warrant: judgment of the CJEU in the case of Openbaar Ministerie (Tribunal established by law)

In the case of Openbaar Ministerie (Tribunal established by law in the issuing Member State) (joined cases C-562/21 PPU and C-563/21 PPU, 22.2.2022) the CJEU gave another ruling on the execution of a European arrest warrant (EAW) in the face of a (risk of a) breach of the right to a fair trial (Article 47(2) of the EU-Charter) in Poland. This time, the question asked by the executing judicial authority, the Amsterdam District Court, was about the consequences to be drawn from generalised deficiencies relating to the independence of the judiciary in that country.

In terms of the interaction between EU law and the European Convention on Human Rights, the picture resulting from the CJEU’s ruling is a contrasted one. On the one hand, as regards the requirements flowing from the right to an independent tribunal, the CJEU underscored the common ground existing between its own case-law and that of the European Court of Human Rights (§§ 56-57).

As a consequence, and probably for the first time, the CJEU considered that the case-law of the ECtHR finding a breach of the Convention requirements in respect of a tribunal established by law, by reason of the procedure for the appointment of judges, could be taken into account by the executing judicial authority for the purpose of establishing the existence of systemic or generalised deficiencies in the issuing Member State (§ 79). In the same vein, the CJEU considered of equal relevance in this context the case-law of the Polish Constitutional Tribunal challenging the primacy of EU law and the binding nature of the Convention, as well as the binding force of judgments of the CJEU and of the ECtHR (§ 80). In other words, and indeed very interestingly, in the CJEU’s opinion violations of the Convention seem to be part of the picture to be considered when assessing the existence of systemic or generalised deficiencies within the meaning of EU-law.

On the other hand, however, differences remain in terms of the methodology applied to the fundamental rights concerned in a case like this, with the CJEU confirming and further elaborating on the two-step examination required for the assessment of whether (the risk of) a breach of fundamental rights can justify an exception to the obligation to execute a EAW (on this issue, see also Openbaar Ministerie (Independence of the issuing judicial authority and The EAW under the Convention).

In this connection, the CJEU elaborated at great length on the need for systemic or generalised deficiencies to be individualised, i.e. for their impact on the personal situation of the person concerned to be duly demonstrated by that same person. This should be done on the basis of a several criteria which are enumerated by the CJEU but which at the same time would appear, in their combination, to be of a rather complex handling (§§ 84 et seq.). At this point, one may therefore ask whether taken together, the overall amount and the nature of the evidence required does not represent a standard of proof which in the end is higher than the one applied by the ECtHR. If so, this would result in lesser protection for the person concerned. In support of this rather strict approach, the CJEU referred to the preservation of the effectiveness of the EAW system (§§ 47 and 63), the fundamental rights of the victims of the offences concerned (§ 60) as well as the fight against impunity (§ 62).

By contrast, the ECtHR does not consider systemic or generalised deficiencies in the country of destination to be a precondition for a real and individual risk of a breach of the Convention in that country to be established (see, concerning Article 3 of the Convention, Bivolaru and Moldovan). This would seem to be in line with the well-established principle according to which the Court’s role is not to decide in abstracto whether the law is compatible with the Convention, but rather to verify whether the manner in which the law was applied in the particular circumstances of a case complied with the Convention (see, among many others, Denis and Irvine v. Belgium, § 195).

Yet, it is also true that under Article 6 of the Convention, only a flagrant breach of the right to a fair trial in the country of destination can stand in the way of a deportation (see Soering v. United Kingdom, Stapleton v. Ireland). However,  it would not appear too difficult to consider an established lack of independence of a court to amount to such a flagrant breach.

In the end, as the case of Bivolaru and Moldovan shows, should a decision to execute a EAW be challenged before the ECtHR, the latter will focus on the individual circumstances of the person concerned. Under this approach, the absence of (proof of) systemic or generalised deficiencies cannot dispense the national authorities from nonetheless examining the personal risk incurred in the event of a deportation of that person. In other words, such deficiencies are no obligatory starting point or requirement under the Convention.

Seen from this perspective, the position of the CJEU comes down to considering that only such risks can be relevant for the protection of fundamental rights in an extradition context which originate in systemic or generalised deficiencies. Yet, while such deficiencies are often likely to have an impact on individual situations, this would not appear to justify the conclusion that they represent the only possible source of relevant individual risks. As the Strasbourg case-law shows, such risks can indeed also have their roots, for example, in specific circumstances or, as the CJEU itself suggests, in statements made in the context of a specific case (§ 97).

The European arrest warrant under the European Convention on Human Rights

The enclosed paper discusses the landmark judgment of the European Court of Human Rights in the case of Bivolaru and Moldovan v. France, which deals with the execution of a European arrest warrant and provides a good illustration of the effects of the Convention liability of EU Member States for their implementation of EU law. These effects touch on such notions as cooperation, trust, complementarity, autonomy and responsibility.

The two European courts have been cooperating towards some convergence of the standards applicable to the handling of EAWs. The Bosphorus presumption and its application in Bivolaru and Moldovan show the amount of trust placed by the Strasbourg Court in the EU protection of fundamental rights in this area. To the extent that their standards of protection coincide, the Luxembourg and Strasbourg jurisdictions are complementary. However, the two protection systems remain autonomous, notably as regards the methodology applied to fundamental rights. Ultimately, the EU Member States engage their Convention responsibility for the execution by their domestic courts of any EAWs.