ECHR and the CJEU

• Date: 01 August 2015
• Year: 2015
• Author: Alexandros-Ioannis Kargopoulos
• Pages: 22

I. The Relationship Betweenthe Two European Courts

In general, the two European Courts have developed aharmonious and co-operative relationship.¹ Their relationship is not framed in an institutionalised context but is rather informal and structured “on a two-fold basis consisting of [an ambivalent] presumption of equivalent human rights protection and of an abstract legal commitment on the part of the CJEU to follow the jurisprudence of the ECtHR.”²

Since the judgements in Bosphorus³ and inM. & Co v Germany,⁴ the ECtHR has developed and maintained the “presumption of equivalent protection”as a necessary compromise to hear cases involving EU law as it lacks the legal basis to do so and as a matter of comity towards the CJEU’s jurisdiction.⁵ The presumption serves to exclude EU measures from scrutiny, save in exceptional cases where it is rebutted⁶ or where Member States enjoy a discretion in the implementation of EU law.⁷

Fundamental rights, as guaranteed by the ECHR, constitute general principles of the EU’s law, although the ECHR has not yet been formally incorporated into EU law.⁸ The Recital of the Charter “reaffirms the rights as they result...from the ECHR and from...the case-law of the ECtHR”and its wording almost verbatim resembles that of the ECHR. More importantly, under the “conformity” clause⁹ of Arti. 52(3) CFR, the CJEU is committed to abide by the ECHR standards and to follow the jurisprudence of the ECtHR in the interpretation of any corresponding Charter rights.¹⁰ The CJEU has consistently applied the jurisprudence of the ECtHR¹¹, and so far seems to confirmthe above reading of Art. 52(3) CFR.¹²

II. Variable Perceptions on Fundamental Rights Protection

Relevant caselaw on criminal matters however, reveals an insistence of the Luxembourg Court in deviating from Strasbourg caselaw in order to preserve the autonomy and effectiveness of EU legislative measures, even over human rights standards set by the ECtHR.¹³ Its approach in based on what the CJEU has emphatically and repeatedly stressed as “the particular characteristics of EU law,” which necessitate a differentiated interpretation and application of fundamental rights within the framework of EU law than in relation to rights flowing from the ECHR and other sources.¹⁴ Hence, according to the CJEU, the ECtHR should not be able “to call into question the CJEU’s findings in relation to the scope ratione materiae of EU law,” which could naturally include the interpretation of fundamental rights.¹⁵

Indeed, the ambit and interpretation of many individual CFR rights vary significantly from their ECHR equivalents. An example includes ne bis in idem under EU law,¹⁶ which, in contrast its Convention equivalent,¹⁷ is not taken to include “punitive” administrative proceedings.¹⁸

More importantly, mutual trust in the area of freedom, security and justice establishes an almost irrefutable presumption of fundamental rights compliance in order to bolster integration by precluding Member States from checking each other’s compliance with fundamental rights.¹⁹ For example, the CJEU has established that violations of fair trial guarantees could not be invoked as grounds for denying execution of the EAW,²⁰ while the ECtHR is following a different apporach in similar cases in which a violation of Art. 6 ECHR amounts to a “flagrant denial of justice.”²¹ In simple terms, mutual trust presupposes that, once the appropriate standard of fundamental rights protection has been set by the relevant EU secondary measure and the Charter, no other favourable derogations are permissible in favour of higher human rights standards, be it those defined by the ECtHR or by other international instruments, as this would run contrary to the primacy and effectiveness of EU law.²² Following this syllogism, in the Melloni case²³, the CJEU managed to render the safeguard clause of Art. 53 CFR devoid of any meaningful substance.²⁴

Additionally, Art. 52(1) CFR is another potential source of variable geometry in fundamental rights protection, since its literal interpretation renders redundant any distinction between “absolute” and “qualified” rights in the Charter and permits the EU legislator to impose restrictions on both types of rights to promote an “objective of the EU”²⁵ in favour of “security” and “efficiency” requirements.²⁶ Thus, Art. 52(1) CFR could well justify additional derogations or restrictions of fundamental rights than those considered legitimate by the Strasbourg jurisprudence as “necessary” in a democratic society,²⁷ notwithstanding that the ECtHR so far has been accepting derogations of fundamental rights for the benefit of European integration.²⁸

III. Clash of Competences

In the field of criminal matters, most tensions between the two Courts in the exercise of their competencescould arisein cases when an act or omission on the part of a Member State linked to a provision of EU secondary law allegedly infringes a fundamental right secured by both the Charter and the Convention.

In particular, the most striking overlaps and conflicts would arise in the context of the preliminary ruling procedure under EU law, which is described as “the keystone of the [EU] judicial system.”²⁹This procedure is the main avenue for the CJEU to address fundamental rights issues, given the lack of a remedy empowering individuals to resort directly to the CJEU for violations of fundamental rights and given the limited protection offered by all other available remedies.³⁰ Both remedies under the ECHR, that is, the individual action available to any person, NGO, or group of individuals for violations of their rights,³¹ but also the “preliminary-like” mechanism provided for by Protocol 16 of the ECHR (which would allow highest courts and tribunals to refer questions to the ECtHR for advisory opinions),³² could cause friction with the preliminary ruling procedure before the CJEU. This is particularly so in criminal matters, given their sensitivity regarding fundamental rights.

The main problem lies in the plausible scenario of a case being brought to the ECtHR even if the CJEU had not had the opportunity to examine the validity or the plausible interpretations of the EU act at issue in the light of the applicable fundamental right. Although, in principle, national courts of the last instance are obliged to refer a question regarding the interpretation of EU law to the CJEU, Art. 267 TFEU, which basically relies on voluntary cooperation between national judges and the CJEU,³³ allows for the above scenario to occur. This is as a preliminary reference to the CJEU could not be regarded as a “domestic remedy”that the applicant should have exhausted.³⁴ In such a case, however,

“if the ECtHR, in considering whether that law is consistent with the ECHR, had itself to provide a particular interpretation from among the plausible options, there would most certainly be a breach of the principle that the Court of Justice has exclusive jurisdiction over the definitive interpretation of EU law.”³⁵

It is, however, not assuredthat conflicts will be eliminated beforehand if national courts refer a preliminary question; even in such a case, the ruling of the CJEU would certainly not be binding for the ECtHR, which could result in a different outcome.³⁶ The ECtHR could thus, disregard the “particular traits” of EU law, thereby damaging its effectiveness and autonomy.

The outcome of all these scenarios would be puzzling in most regards. The lack of a prior ruling by the CJEU would preclude it from aligning EU law requirements of effectiveness and autnomy with fundamental rights guarantees in a manner that would alleviate the ECtHR from establishing a violation. It is also possible that, in the absence of a ruling by the CJEU, the ECtHR could deliver a judgement on the merits and not find a violationjustifying Member State action that may be contrary to higher and more elaborate EU law standards. In addition, a Member State found liable for violation of ECHR rights would be obliged to apply individual or general measures to redress the violation, contrary to EU law obligations.³⁷ This could occur even in cases in which the CJEU has already issued a judgement under the preliminary ruling procedure. Arts. 53 CFR and ECHR would also create further confusion, since Art. 53 ECHR essentially reserves the power of the states to lay down higher standards of fundamental rights protection, contrary to what the CJEU has ruled with regard to Art. 53 CFR.³⁸

The procedure of Protocol No. 16 could also circumvent the preliminary ruling procedure, as the national court may – intentionally or unintentionally – choose not to refer a question to the CJEU but instead resort directly to the ECtHR³⁹for an advisory opinion. In such a case, it is highly possible that the ECtHR, by abiding to its own standards, would issue a decision calling for lower safeguards than those provided for by existing EU law, which the national court may be inclined to follow.It is also possible that the ECtHR may request higher standards of human rights protection by disregarding “the particular characteristics of EU law”that call for a differentiated intepretation. Again, the different operation of Art. 53 CFR compared to Art. 53 ECHR may further exacerbatethe situation. It may well be true that an opinion sought under Protocol 16 is not binding on the referring highest court.⁴⁰ This, however, does not suffice to eliminate any friction, since such an opinion would certainly have an impact on national procedures. Given that the procedure under Protocol 16 does not relieve the referring court from its obligation to refer a preliminary question according to Art. 267 (3) TFEU, the referring court could find itself in the awkward position of having to decide to which European Court to refer the question, or it could even refer it to both Courts simultaneously! This obscure prospect will definitely not add to legal certainty and will most...