Category Archives: New publications

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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