Category Archives: New publications

Convention Control over the Application of Union Law by National Judges: the Case for a Wholistic Approach to Fundamental Rights

The main ideas developed in this new publication can be described as follows:

  1. In the vast majority of cases, the effects of EU fundamental rights are being felt at domestic level, as the result of the application of Union law by national courts. This application comes within the scope of the European Convention on Human Rights and can therefore give rise to scrutiny by the ECtHR, as illustrated by a well-established line of case-law.
  2. As a result, national judges must apply EU law in conformity with the Convention. They bear the brunt of any lack of consistency in the protection of fundamental rights, because it is at domestic level that these two sets of norms come together.
  3. Consequently, the consideration of the effects of EU fundamental rights cannot stop at the border of the EU legal system and ignore the impact of the Convention on the application of EU law at domestic level. A wholistic approach is required instead.
  4. Such a wholistic approach is designed to identify convergencies and divergencies between the Convention and Union law, and be clear about them, with a view to facilitating the job of national judges, who must ensure that the EU protection level does not fall below the Convention level.
  5. It is not accurate to assume general convergence between the Convention and Union law. The picture is much more differentiated, with areas offering a high level of convergence (e.g. procedural rights, judicial independence) and others not (e.g. ne bis in idem, European arrest warrant).
  6. Several divergencies are rooted in methodological discrepancies. Some have an impact on the level of protection offered by fundamental rights.
  7. That said, the Convention ensures only a common minimum protection level, thus allowing that level to be raised. Consequently, unlike a lower or unclear EU protection level, a higher EU protection level is not problematic from a Convention point of view.

Detailed explanations of these considerations can be found in the enclosed paper.

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The Recent Luxembourg Case-Law on Procedural Rights in Criminal Proceedings: Towards Greater Convergence with Strasbourg?

Criminal proceedings are an area characterised by an ever-increasing interplay between EU law and the Convention, not least as a result of the Directives on procedural rights in criminal proceedings, which cover a sizeable number of topics already regulated by Article 6 of the Convention on the right to a fair trial. This expanding overlap between EU law and the Convention resulting in two sets of regulations to be applied to the same domestic proceedings is a challenge for all concerned: lawyers, accused persons, victims, prosecutors, domestic judges, European judges.

In this context, the way in which the CJEU, in charge of authoritatively interpreting these Directives, goes about dealing with this challenge and the amount of coherence it thereby achieves with the Strasbourg case-law are highly relevant, not only for the lawyers, prosecutors and judges who have to handle these multiple legal sources, but also in terms of the efficiency of these procedural fundamental rights altogether, which should not be allowed to contradict each other, as this would weaken them.

These considerations and interrogations are at the heart of the short paper enclosed below.

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The Quest for Consistency between the EU and the European Convention on Human Rights

Last Tuesday it was my pleasure to participate in the seminar brilliantly organised and run by Prof. Jan Wouters and Prof. Pietro Franzina at the Università Cattolica del Sacro Cuore in Milan on the topic: “How strong is the European Union’s commitment to International Law?”.

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My own presentation was about “The Quest for Consistency between the EU and the European Convention on Human Rights”. It was built around the following five key findings.

1. Consistency between EU law and the European Convention on Human Rights (“Convention”) is needed not least because the domestic courts of the EU Member States are bound to comply with the Convention when applying EU law. Their compliance with the Convention can be assessed by the European Court of Human Rights in the context of an application under Article 34 of the Convention. This can give rise to the finding of a violation of the Convention (as in Bivolaru and Moldovan v. France). Thus, the domestic judges engage their responsibility under the Convention when applying EU law.

2. The EU legislature has developed an appropriate methodology designed to ensure the necessary consistency between EU law and the Convention, by establishing the latter as minimum protection level in the field of EU law. This is indeed the rationale of Article 52(3) of the EU-Charter on Fundamental Rights, of the non-regression clauses which can be found in several instruments of secondary legislation enshrining fundamental rights and, ultimately, of Article 6(2) TEU ordering the EU to accede to the Convention. Under this scheme, the Convention level can be raised but should not be lowered by EU law.

3. The implementation of this methodology by the EU courts gives rise to a mixed picture, though. It would indeed appear that the Convention is much more frequently used by the CJEU as a simple toolbox designed to fill gaps in EU legislation or jurisprudence (as, typically, in Spetsializirana prokuratura (trial of an absconded suspect)) than as a benchmark of the requisite minimum protection level sheltering domestic judges from breaching the Convention when applying EU law (as, typically, in HN).

4. Where the CJEU relies on the Convention, it often does so by using a terminology and/or a methodology which is not entirely similar to that of the Convention, but not entirely different either (as, typically, in bpost). This creates a kind of permanent ambivalence as to whether the duality of norms thus created also entails a duality of protection and, if so, in what sense. It is also ignoring the fact that contrary to EU law itself, domestic judges are not autonomous.

5. In such situations, domestic judges are left in the dark as to whether they can rely on the fact that they will not breach the Convention when applying CJEU standards (as they would actually do by applying, for instance, a test such as the one emerging from N.S. and Others).  A more general commitment by the CJEU to the benchmark function of the Convention established by the EU legislature would be most helpful here.

The Powerpoint presentation of my talk is enclosed below.

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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.

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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

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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.

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The European Public Prosecutor and the European Convention on Human Rights

The newly created European Public Prosecutor’s Office (EPPO) took up its duties in September 2020. The enclosed paper endeavours to examine to what extent its activity might come within the scope of the European Convention on Human Rights and the consequences thereof, for the EPPO itself and for the EU Member States.

The paper comes to the conclusion that the hybrid EPPO structure is operating under a hybrid set of fundamental rights, thus calling into question the well-established principle of the single set of norms applicable throughout criminal proceedings. Moreover, the system is characterized by a distortion of the commonly applied logical link between liability for violations of fundamental rights and control over the actions entailing those violations. EU Member States risk being held accountable under the Convention for actions on behalf of the EPPO which they did not fully control and which were subject to a different corpus of fundamental rights. The EU, for its part, takes the risk of seeing EPPO prosecutions being invalidated by domestic courts applying a Convention protection level which may be higher than the Union level.

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