The EU and Issues of Human Rights Protection: Same Solutions to More Acute Problems?

• Date: 01 March 2010
• DOI: http://doi.org/10.1111/j.1468-0386.2009.00501.x
• Author: Frederic Van Den Berghe
• Published date: 01 March 2010

eulj_501112..157

The EU and Issues of Human Rights

Protection: Same Solutions to More

Acute Problems?*¶

Frederic van den Berghe**

Abstract: Academic literature repeatedly calls for the EU’s accession to the Convention

for the Protection of Human Rights and Fundamental Freedoms 1950 (hereinafter Con-

vention1). Similarly, the Lisbon Treaty provides that the EU must accede to the Conven-

tion. [Correction made here after initial online publication.] This might seem odd as the

European Court of Justice (hereinafter ECJ2) has over the years developed abundant

case-law on human rights protection in the EU, and the EU has not so long ago adopted

a, albeit non-binding, catalogue of human rights (the Charter of Fundamental Rights of

the EU (hereinafter Charter)). But after all these years, cases, and Treaty amendments,

the EU is in fact going back to the ECJ’s 1996 landmark opinion which recommended the

EU’s formal accession to the Convention,3already proposed in 1979 by the Commission.4

One reason for this might be that, in the meantime, human rights issues have multiplied in

the application of EU law, especially in areas such as the Second and Third Pillars

where—at least initially—fewer human rights protection guarantees were foreseen.

* In view of the recent Czech signature marking approval by all the EU Member States of the Lisbon

Treaty, and its imminent entry into force, some parts of this article, especially section II B d), do not

reflect the current state of the law any longer. The author chose to keep them to evidence the changes

brought about by the Lisbon Treaty, which are referred to amongst others in footnotes 95, 108 and 212

as well as in the ECJ’s Press Release No 104/2009 of 30 November 2009.

** The author holds an LLM in International Legal Studies from New York University, an MA in European

Studies, Specialization Law, from the College of Europe and a postgraduate degree in International

Relations and Conflict Management from the KULeuven. He can be reached at fberghe@hotmail.com.

This article was written while the author was a recipient of a Fellowship of the Belgian American

Educational Foundation (BAEF). The author would like to thank the BAEF, whose financial support

made inter alia this article possible, as well as Nicolas Angelet, Jean d’Aspremont Lynden, Christopher

Boon, Kieran Bradley, Gráinne de Búrca, Andrew Fine, Matthias Kumm, Claudia Miller, Jules Stuyck

and Gerard van der Wal.

1Unless specified otherwise, any general reference to the Convention must be understood as including all

its Protocols which have entered into force.

2Unless specified otherwise, any general reference to the ECJ must be understood as including the Court

of First Instance.

3Opinion 2/94 on Accession by the Community to the Convention [1996] ECR I-1759.

4See the Memorandum on the accession of the European Communities to the Convention for the Protec-

tion of Human Rights and Fundamental Freedoms, adopted on 4 April 1979, EC Bulletin Supplement

2/79.

¶ This article was published online on Feb 12 2010. An error was subsequently identified. This notice is

included in the online version to indicate that the error has been rectified on Mar 31 2010.

European Law Journal, Vol. 16, No. 2, March 2010, pp. 112–157.

© 2010 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

I Introduction

Human rights protection in the EU is problematic on several counts. First, a number

of, rather minor, inconsistencies exist between the ECJ’s case-law and that of the

European Court of Human Rights (hereinafter Court of Human Rights5). Second, and

more importantly, five gaps in the EU’s human rights protection system raise concern.

These are: (i) the ECJ’s lack of jurisdiction over the European Treaties; (ii) the limited

standing before the ECJ under the First Pillar; (iii) the ECJ’s lack of jurisdiction under

the Second Pillar; (iv) the ECJ’s limited jurisdiction under the Third Pillar; and (v) the

absence of jurisdiction of the ECJ over situations falling outside the scope of Commu-

nity law. Two of these gaps, (i) and (v), touch on constitutional issues, two relate to the

expanded scope of EU powers, (iii) and (iv), and one concerns access to court, (ii).

Third, and more fundamentally, it is unclear whether the procedure before the ECJ

conforms to the Convention’s standards.

Several solutions have been proposed to the EU’s human rights conundrum. Besides

the above mentioned adoption of an EU catalogue of fundamental rights and formal

accession of the EU to the Convention, two less far-reaching solutions have been

suggested. These are the de facto accession of the EU to the Convention through the

establishment of the responsibility of Member States for acts of the EU, and the

continuation of the status quo, possibly with some improvements. Only the EU’s formal

accession to the Convention can satisfactorily address all the EU’s human rights

protection problems identified by this article.

II Issues of Human Rights Protection in the EU

A Inconsistencies between the ECJ’s and the Court of Human

Rights’ Case-Law

a) The Court of Human Rights’ and the ECJ’s Overlapping Jurisdictions:

Ambiguous National Measures

In order to assess whether inconsistencies exist between the Court of Human Rights’

and the ECJ’s case-law, it is first necessary to establish to what extent the jurisdiction

of both courts overlaps.6According to Article 32(1) of the Convention, ‘the jurisdiction

of the Court shall extend to...theinterpretation and application of the Convention

and the protocols thereto...’.Similarly, Article 220 of the Treaty establishing the

European Community (hereinafter EC) provides that ‘the Court of Justice...shall

ensure that in the interpretation and application of this Treaty the law is observed’.

While the Convention aims at protecting human rights and fundamental freedoms,

the EC’s objectives, as spelled out in Article 2 EC, are, broadly speaking, economic.

5Unless specified otherwise, any general reference to the Court of Human Rights must be understood as

including the European Commission of Human Rights. For the sake of convenience, reference is made only

to the application number and date of Court of Human Rights cases, and not to their official publication

in the Series A (until 1996) or the Reports (thereafter). Court of Human Rights cases are accessible on

HUDOC, at http://cmiskp.echr.coe.int/tkp197/search.asp?sessionid=6160010&skin=hudoc-en.

6While inconsistencies between the Court of Human Rights’ and the ECJ’s case-law will be most flagrant

where the jurisdiction of both courts overlaps, inconsistencies can also arise if the Court of Human Rights

and the ECJ, each within their own jurisdiction, interpret the same human right differently.

March 2010 The EU and Issues of Human Rights Protection

113

© 2010 Blackwell Publishing Ltd.

Thus, at first sight, there seems to be little prospect of overlapping ratione materiae

jurisdiction.

Indeed, as at first the European integration project was primarily an economic

enterprise, until the 1970s the issue of human rights protection was of marginal impor-

tance in Community law. This meant that where human rights were protected at

national level, the transfer of national competences to the Community could possibly

result in the elimination of human rights safeguards concerning these competences.

Consequently, the exercise by the Community of its powers was, at least in theory, not

subject to any European or national human rights standards.

In response to this gap, the ECJ has consistently held that ‘fundamental rights

form an integral part of the general principles of law’7it guarantees and that, for

that purpose, it draws inspiration from the Convention. However, this does not

imply that the Convention forms an integral part of the Community legal order.

Hence, an applicant ‘cannot directly invoke the Convention before the Community

courts’.8

One of the objectives of the Treaty on the European Union (hereinafter TEU) is ‘to

strengthen the protection of the rights and interests of the nationals of its Member

States through the introduction of a citizenship of the Union’.9Hence, the human rights

flowing from the citizenship of the EU, which are mentioned in Articles 17–22 EC,

constitute a possible intersection between the Court of Human Rights’ and the ECJ’s

jurisdictions. Moreover, Article 6(2) TEU provides that the EU shall respect funda-

mental rights, as guaranteed by the Convention, as general principles of Community

law. Article 46(d) TEU stipulates that the provisions of the EC Treaty concerning

the powers of the ECJ apply to Article 6(2) TEU, but only ‘with regard to action of the

institutions, insofar as the Court has jurisdiction under the Treaties’. As a result, the

Court of Human Rights as well as, albeit indirectly, the ECJ—in the framework of

both the EC Treaty and the TEU—are competent ratione materiae to interpret the

Convention.

Concerning ratione personae jurisdiction, while the Court of Human Rights is only

competent to rule on complaints against EU Member States, which are all party to the

Convention, the ECJ has jurisdiction over both EU Member States, provided their

measures fall within the scope of EU law, and EU institutions. Thus, the ECJ considers

a number of national measures to fall within the scope of EU law, and hence within its

ratione materiae jurisdiction, because of their close connection with EU law. However,

insofar as such national measures involve the exercise of a certain, albeit minimal,

degree of discretion by national authorities, the Court of Human Rights views them as

7Case C-36/02, Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundess-

tadt Bonn [2004] ECR I-9609, para 33. See also Case 11–70, Internationale Handelsgesellschaft mbH v

Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125, para 4; Case 4–73, J. Nold,

Kohlen- und Baustoffgroßhandlung v Commission [1974] ECR 491, para 13; Case 44/79, Liselotte Hauer v

Land Rheinland-Pfalz [1979] ECR 3727, para 15; Joined Cases 46/87 and 227/88, Hoechst AG v Commis-

sion [1989] ECR 2859, para 13; Case C-260/89, Elliniki Radiophonia Tiléorassi AE and Panellinia Omo-

spondia Syllogon Prossopikou v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas and Nicolaos Avdellas

and others [1991] ECR I-2925, para 41; Case C-305/05, OBFG and others [2007] ECR I-5305, para 29.

8Case T-112/98, Mannesmannröhren-Werke v Commission [2001] ECR II-729, para 75. See also Opinion of

Advocate General Trabucchi in Case 118/75, Lynne Watson and Alessandro Belmann [1976] ECR 1185 at

1207.

9Art 2 TEU.

European Law Journal Volume 16

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