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?”.

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.

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.

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.