Ironies in Human Rights Protection in the EU: Pre‐Accession Conditionality and Post‐Accession Conundrums

• Date: 01 January 2009
• DOI: http://doi.org/10.1111/j.1468-0386.2008.00450.x
• Author: Anneli Albi
• Published date: 01 January 2009

Ironies in Human Rights Protection in the

EU: Pre-Accession Conditionality and

Post-Accession Conundrums

Anneli Albi*

Abstract: In the wake of the extensive scrutiny of the human rights credentials of the new

Member States under the EU pre-accession conditionality, which itself was riddled with

paradoxes, this article considers a rather unexpected irony thrown up by the accession of

these countries. It is that the post-communist constitutional courts, which have been

applauded for vigorous protection of fundamental rights after the fall of the Communist

regime that was marked by nihilism to rights, have come rather close to having to

downgrade the protection standards after accession, due to the new constraints of

supremacy of EC law. The article will consider the sugar market cases of the Hungarian

and Czech Constitutional Courts and of the Estonian Supreme Court, which appear to add

weight to the concerns that have been voiced in some older Member States about the

fundamental rights protection in the EU. Indeed such concerns were recently also

addressed in the concurring opinions to the Bosphorus judgment of the European Court of

Human Rights.

Introduction

A central hallmark of the 2004 and 2007 enlargements, whereby ten post-communist

countries along with Cyprus and Malta joined the EU, was the submission of the

candidate countries to an extensive scrutiny of their compliance with the EU’s human

rights and democracy conditionality. The conditionality aimed to entrench and

strengthen the process of democratisation, consolidate the rule of law and the protec-

tion of human rights, and improve the quality of public administration and the system

of justice in Central and Eastern Europe (CEE) after the fall of Communism. In so

doing, as Wojciech Sadurski has compellingly argued, the accession conditionality

yielded a ‘democracy dividend’ to the accession countries.1

* Senior Lecturer in EU Law, University of Kent (Canterbury, UK). The author would like to thank Xavier

Groussot, Catherine Dupré, Irmantas Jarukaitis and the participants of the workshops ‘Integration or

Absorption? Legal Discourses in the Enlarged Union’ (University of Hanover, 27–29 September 2006)

and ‘The General Principles of European Community Law’ (Stockholm, 23–25 March 2007) for their

comments. The usual disclaimer applies.

1W. Sadurski, ‘Accession’s Democracy Dividend: The Impact of the EU Enlargement upon Democracy in

the New Member States of Central and Eastern Europe’, (2004) 10 European Law Journal 371.

European Law Journal, Vol. 15, No. 1, January 2009, pp. 46–69.

© 2009 The Author

Journal compilation © 2009 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

The enlargement conditionality has been riddled with a number of paradoxes and

ironies, of which two in particular have become a commonplace in the literature.2The

f‌irst is the external–internal divide: the scope of the human rights monitoring with

regard to the candidate countries possessed no equivalent within the EU’s relations

with its Member States. The second irony closely follows on from the f‌irst: given that

the monitoring mechanisms are not available vis-à-vis the Member States, fears have

been expressed about a potential deterioration of the human rights record of these

countries after accession, especially in areas where the EU has ambivalent (if any)

competence, such as minority protection. The external–internal ‘bifurcation’3has

partly served as a catalyst to considerable advances in the Community’s system of

human rights protection, including the introduction of relevant Treaty Articles and the

elaboration of the Charter of Fundamental Rights.4The f‌irst section of this article will

consider the human rights conditionality and its paradoxes in more detail.

Certainly, the concerns about the human rights credentials of the new Member States

have not become ungrounded. Their continued relevance has been exemplif‌ied, for

example, by the vexed questions surrounding Estonia’s Russian-speaking minority in

the light of the riots prompted by the removal of the so-called ‘Bronze Soldier’ statute

from central Tallinn in April 2007, and by the continuously dire situation of the Roma

minority in Central European countries. While the post-accession human rights record

of the new Member States certainly warrants a more detailed audit, the main concern

for the article will be a rather unexpected irony thrown up by the accession of these

countries, to be explored in section II. It is that the post-communist constitutional

courts, which have been applauded for vigorous protection of fundamental rights after

the fall of the communist regime that was marked by nihilism to rights, have come

rather close to having to downgrade the protection standards after accession, due to the

new constraints of supremacy of EC law.5The section will begin by outlining the recent

sugar market decisions of the Hungarian Constitutional Court, the Estonian Supreme

Court and the Czech Constitutional Court, where the courts confronted diff‌iculties in

maintaining the pre-accession level of protection to fundamental rights and the prin-

ciples of legal certainty and legitimate expectations, with regard to measures that

implement EC law. The article will then turn to consider similar challenges encountered

by some older Member States, where certain divergences in the human rights protection

at the national and EU level have attracted attention, most notably in the course of the

Banana saga that unfolded in Germany in the 1990s. The French Conseil d’État’s recent

preliminary reference in Arcelor will be f‌lagged up as a potentially interesting case to

follow in this respect. Against this background, the subsequent section will explore the

Bosphorus judgment of the European Court of Human Rights, where seven judges in

their concurring opinions cautioned against the emergence of ‘double standards’ as

regards those areas where the States that have ratif‌ied the 1950 European Convention

for the Protection of Human Rights and Fundamental Freedoms (ECHR) are bound

2See, e.g., A. Williams, ‘Enlargement and Human Rights Conditionality’, (2000) 25 European Law

Review 601; B. De Witte, ‘The Impact of Enlargement on the Constitution of the European Union’, in

M. Cremona (ed.), The Enlargement of the European Union (Oxford University Press, 2003), at 240.

3A term borrowed from Williams, op cit n2supra, at 601.

4See in more detail G. De Burca, ‘Beyond the Charter: How Enlargement has Enlarged the Human Rights

Policy of the EU’, (2003–04) 27 Fordham International Law Journal 679.

5For this irony, see also A. Sajó, ‘Learning Co-operative Constitutionalism the Hard Way: The Hungarian

Constitutional Court Shying Away from EU Supremacy’, (2004) 2 Zeitschrift für Staats- und Europawis-

senschaften 351, at 371.

January 2009 Ironies in Human Rights Protection in the EU

© 2009 The Author 47

Journal compilation © 2009 Blackwell Publishing Ltd.