Lecture at Waseda University Tokyo, 14 March 2016

Jörg Polakiewicz

Professor at the Europainstitut of the University of Saarbrücken and  Director of Legal Advice and Public International Law (Legal Adviser), Council of Europe.[1]

Introduction

It’s an honor to be presenting at Waseda University in Tokyo. Thank you to Professor Koji Tonami and Professor Kaoru Obata for making this lecture possible.

I am consistently impressed by the comprehensive understanding of fundamental rights protection within Japan’s legal system. It’s a multifaceted landscape where citizens and legal professionals work with various binding legal texts, including domestic law, national constitutions, the European Convention on Human Rights (ECHR) and its protocols, and EU law, particularly the EU Charter of Fundamental Rights.

How can we best describe this complexity? German Federal Constitutional Court President Andreas Voßkuhle likened it to a mobile, with interconnected parts moving in balance. Another comparison is counterpoint music, where independent melodies harmonize. A hierarchical structure is not an accurate representation.

This diverse system provides unique opportunities for growth and synergy. It encourages competition between jurisdictions, leading to more robust protection for individuals. However, the overlap between instruments can cause tension between their interpreters. A shared set of values and principles is essential for different approaches to enrich one another.

As reflected in Japanese legal culture, the ultimate goal should be harmony and mutual advancement. Prince Shotoku’s (Shôtoku Taïshi - 聖徳太子) Seventeen-Article Constitution (Jushichijo Kenpo - 憲法十七条) from 604 AD states that “harmony should be valued and quarrels should be avoided.”

In practice, there is a high degree of consensus and active dialogue between European and national constitutional and supreme courts. A notable example is the simultaneous recognition of adoption rights for same-sex couples by the European Court of Human Rights (ECtHR) and the German Federal Constitutional Court. While their reasoning differed, both acknowledged the right of same-sex couples to adopt.

Today, I will focus on the roles of the ECtHR and the CJEU, exploring their interactions and the implications of EU accession to the ECHR.

European Court of Human Rights

The ECHR is an international treaty designed to safeguard fundamental rights, not a legal order like the European Union. Created to prevent a repeat of World War II atrocities, it now serves a broader purpose: to establish common European human rights law standards while respecting the diverse legal systems of its member states.

The success of the ECHR depends on the ECtHR’s ability to set minimum standards that all parties uphold. The ECtHR interprets broad Convention provisions and provides guidelines for their application.

Highly qualified judges are crucial for the ECtHR’s legitimacy and the consistent development of case law. These judges must possess extensive experience to gain the respect of their peers in national courts.

Significant improvements have been made to the judge selection process, including the establishment of an Advisory Panel of Experts. Despite these efforts, concerns remain about finding candidates who meet the high standards and undergo the rigorous selection process, which culminates in a political decision.

A key challenge for the ECtHR is setting these standards while respecting the diverse national and supranational rights provisions. The Court has been urged to exercise restraint and prioritize cases with significant human rights implications, leaving less impactful issues to national courts.

The upcoming Protocol no. 15 emphasizes the subsidiarity principle and margin of appreciation doctrine. This recognizes that states have primary responsibility for upholding rights, but are subject to the ECtHR’s oversight.

While the ECtHR’s role is to uphold a common standard, national authorities and courts are best positioned to implement the Convention locally. This necessitates a degree of deference from the ECtHR towards national legal interpretations, while still ensuring that those interpretations align with the Convention’s core principles.

By focusing on significant human rights cases and respecting national interpretations, the ECtHR can effectively safeguard a unified human rights framework.

Court of Justice of the European Union

The CJEU, while not explicitly a human rights court, has expanded its purview beyond economic matters to encompass human rights enforcement. The Court has established a significant body of fundamental rights case law, especially regarding data protection. Recent judgments, like those on data retention, search engines, and safe harbor, demonstrate that the CJEU takes fundamental rights and proportionality seriously. These rulings have also influenced the ECtHR’s stance on privacy protection, leading to stricter controls on mass surveillance.

While the CJEU often draws from ECHR case law, it increasingly emphasizes the EU Charter of Fundamental Rights as the primary source for human rights protection within the EU’s legal system. This approach risks isolating the CJEU from the cooperative dialogue among European and national courts.

The CJEU’s focus on the EU Charter, combined with its assertion of EU law primacy over national law, including constitutions, is facing growing resistance. National courts, including those in Germany and the UK, emphasize the importance of respecting national constitutional identity when facing conflicting EU law.

This resistance isn’t about nationalism, but rather about upholding national constitutional rights in areas where EU influence is expanding, such as asylum, data protection, and counter-terrorism. The CJEU’s approach risks creating two differing sets of rights standards within Europe, leading to legal uncertainty.

Early efforts to incorporate the EU Charter into treaties and facilitate the EU’s accession to the ECHR intended to prevent this duality. However, the CJEU’s Opinion 2/13, deeming the proposed accession agreement incompatible with EU law, has stalled this process.

How can Europe advocate for human rights globally if it struggles to harmonize its own systems?

EU accession to the ECHR – squaring the circle?

The CJEU’s Opinion 2/13, which deemed the EU’s accession agreement to the ECHR incompatible with EU law, has created significant obstacles. While some required amendments are technical, others, like the need to harmonize the EU Charter with the ECHR, raise fundamental issues. Despite support for EU accession to the ECHR, the path forward remains unclear.

The CJEU’s critique of the accession agreement as improvised and unprecedented is surprising. The agreement was meticulously crafted by experts from 47 states and the European Commission. The solutions reached were carefully balanced compromises, acknowledging the EU’s unique nature while preserving the ECHR’s core principles.

The CJEU, however, prioritizes the ‘unity, primacy, and effectiveness’ of EU law, as seen in its Melloni judgment, over the constitutional commitment to accession outlined in Article 6 (2) TEU. The Court’s insistence on limiting the application of Article 53 ECHR, which permits higher national protection standards, raises questions about its interpretation of EU law and member state powers.

The concept of ‘higher’ or ’lower’ levels of rights protection is itself debatable. Quantifying levels of protection within broadly-worded rights catalogs is difficult. Competing human rights interests, such as freedom of expression versus privacy, require careful balancing rather than a race to the top. A more practical approach, like the ‘practical reconciliation’ concept, seeks to find equilibrium between conflicting rights on a case-by-case basis.

A primary goal of EU accession is to ensure uniform human rights protection for individuals under both EU law and member state laws. The CJEU’s objection to the ECtHR’s involvement in justice and home affairs (JHA) is problematic, citing concerns about mutual trust and EU law autonomy. However, this argument overlooks the reality of human rights violations within EU member states and the role of fundamental rights in ensuring freedom, security, and justice within the EU.

Recent judgments, including the N.S. case and the EAW case, demonstrate that fundamental rights considerations are already relevant in JHA matters, regardless of accession. These cases highlight the need to balance mutual trust with individual rights protection. Excluding the ECtHR from JHA issues would be a significant setback in a critical area for human rights protection.

Conclusion

The purpose of fundamental rights is to empower individuals and protect their liberties, not to enforce uniformity. Europe’s multi-level rights protection system is designed to be complementary, not segregated by origin. Uniformity is neither achievable nor desirable in a Europe comprised of diverse states.

Instead, a consensus on fundamental rights, applicable to all, is crucial. This requires respect, trust, and cooperation between different actors in the system. Judicial dialogue, transparency, and the recognition of shared minimum standards are essential for achieving a balanced and effective system of human rights protection in Europe.

Barnard & Peers: chapter 9

[1] Any views expressed in this article are those of the author and do not necessarily reflect the official position of the Council of Europe.

[2] P. Cruz Villalón ‘Rights in Europe – The Crowded House’ King’s College London – Working Paper 2012.

[3] A. Voßkuhle ‘Pyramid or Mobile? – Human Rights Protection by the European Constitutional Courts’ Opening of the Judicial Year 2014 at the European Court of Human Rights Strasbourg, 31 January 2014.

[4] M.P. Maduro ‘Contrapunctual Law: Europe’s Constitutional Pluralism in Action’ in N. Walker (ed) Sovereignty in Transition (Oxford, Hart, 2003), 501-537.

[5] X. and Others v. Austria, judgment (GC) of 19 February 2013 (19010/07).

[6] BVerfG, 19 February 2013 - 1 BvL 1/11, 1 BvR 3247/09.

[7] ECHR, preamble para. 4.

[8] J.H.H. Weiler ‘Fundamental Rights and Fundamental Boundaries: On Standards and Values in the Protection of Human Rights’ (1995), reprinted in J. H. H. Weiler The Constitution of Europe: do the New Clothes Have an Emperor? And other essays on European integration (Cambridge University Press 1999), 107-116.

[9] CM/Res(2010)26 of 10 November 2010.

[10] M Bobek ‘Epilogue’ in: M. Bobek (ed.) Selecting Europe’s Judges - A Critical Review of the Appointment Procedures to the European Courts (Oxford University Press 2015), at 305.

[11] CDDH(2015)R84 of 11 December 2015, paragraphs 104 and 106.

[12] Cruz Villalón, op. cit. supra note 2, at 9-10.

[13] Article 1 of Protocol no. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms. The Protocol will enter into force once it has been ratified by all High Contracting Parties.

[14] For the NGO position, see Joint Preliminary Comments on the drafting of Protocols 15 and 16 to the ECHR, doc. DHGDR(2012)008. See comprehensively on the drafting process of Protocols nos. 15 and 16: D. Milner ‘Protocols no. 15 and 16 to the European Convention on Human Rights in the context of the perennial process of reform: a long and winding road’ 17 ZEuS 20 et seq. (2014).

[15] See Comment from the European Court of Human Rights on the proposed amendment to the Preamble of the ECHR, attached to a letter from the Court President to the CDDH Chairperson of 23/11/2012, doc. #4160804.

[16] Explanatory report to Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms (CETS 213), para. 7.

[17] See S. Greer The European Convention on Human Rights. Achievements, Problems and Prospects (Cambridge University Press 2006), in particular 193 et seq. and 323 et seq.

[18] Intervention before the Committee of Ministers, at the eve of the Brighton conference, on 23 February 2012.

[19] G. De Búrca ‘After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator?’ 20 Maastricht Journal of European and Comparative Law (2013) 168 (171).

[20] Cases C_‑404/15 Pál Aranyosi and C__‑659/15 PPU Robert Căldăraru_, opinion  of 3 March 2016, para. 175.

[21] Joined Cases C-293/12 and C-594/12, Digital Rights Ireland and Seitlinger and Others, 8 April 2014.

[22] Case C-131/12, Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (13 May 2014).

[23] Case C‑362/14, Schrems v Data Protection Commissioner, Digital Rights Ireland Ltd (6 October 2015).

[24]  Judgment of 4 December 2015, para. 270.

[25] K. Lenaerts ‘In Vielfalt geeint – Grundrechte als Basis des europäischen Integrationsprozesses’ 42 EuGRZ 353, at 354 (2015): „… handelt es sich bei der Charta um den Schatten des Unionsrechts. So wie ein Gegenstand die Konturen seines Schattens formt, bestimmt auch das Unionsrecht die ,Konturen‘ der Charta.“

[26] G. De Búrca op. cit. supra note 19, at 171.

[27] CJEU, C-601/15 PPU, J.N. v Staatsscecretaris van Veiligheid en Justitie (15 February 2016). See also J. Kokott & C. Sobotta ‘Protection of Fundamental Rights in the European Union: On the Relationship between EU Fundamental Rights, the European Convention and National Standards of Protection’ 34 Yearbook of European Law 60-73 (2015) who argue at 73 that the “jurisprudence of t__he EC__t__HR in Luxembourg has been, and continues to be, extremely important for the fundamental rights jurisprudence of the CJEU in Luxembourg. Strasbourg provides the most important guidance in this area, and there are very strong incentives for Luxembourg to avoid any potential disagreement on fundamental rights.“

[28] Case C-617/10, Åklagaren v. Åkerberg Fransson (26 February 2013), para. 44. See also C-571/10, Kamberaj (24 April 2012),  para. 62; C‑398/13 P, Inuit Tapiriit Kanatami/Commission, para. 45 (3 October 2013).

[29] Dhahbi v Italy, judgment of 8 April 2014 (no. 17120/09).

[30] Michaud v France, judgment of 6 December 2012 (no. 12323/11), para. 115.

[31] A. von Bogdandy ‘Protecting the essence of fundamental rights against EU Member states’ 49 Common Market Law Review, No. 2 April 2012, 519.

[32] See the references in J. Nergelius ‘The accession of the EU to the European Convention on Human Rights. A critical analysis of the Opinion of the European Court of Justice’ SIEPS 2015:3 (June 2015) and the German Federal Constitutional Court’s Order of 15 December 2015 - 2 BvR 2735/14, marginal note 47.

[33] HS2 Action Alliance Ltd, R v The Secretary of State for Transport & Anor [2014] UKSC 3 (22 January 2014) citing the German Federal Constitutional Court judgment of 24 April 2013 on the Counter-Terrorism Database Act, 1 BvR 1215/07, para 91: „Im Sinne eines kooperativen Miteinanders zwischen dem Bundesverfassungsgericht und dem Europäischen Gerichtshof … darf dieser Entscheidung keine Lesart unterlegt werden, nach der diese offensichtlich als Ultra-vires-Akt zu beurteilen wäre oder Schutz und Durchsetzung der mitgliedstaatlichen Grundrechte in einer Weise gefährdete …, dass dies die Identität der durch das Grundgesetz errichteten Verfassungsordnung in Frage stellte.“

[34] Ibid.

[35] Pham v Secretary of State for the Home Department [2015] UKSC 19 (25 March 2015).

[36] Order of 15 December 2015 - 2 BvR 2735/14.

[37] C-399/11 Stefano Melloni v Ministerio Fiscal (26 February 2013). See also C-206/13 Cruciano Siragusa v Regione Sicilia – Soprintendenza Beni Culturali e Ambientali di Palermo (6 March 2013).

[38] F. Kirchhof ‘Nationale Grundrechte und Unionsgrundrechte: Die Wiederkehr der Frage eines Anwendungsvorrangs unter anderer Perspektive’ (2014) Neue Zeitschrift für Verwaltungsrecht 1537-1541.

[39] Constitutional Court Judgment STC 26/2014 (13 February 2014).

[40] Cruz Villalón, op. cit. supra note 2, at 11

[41] Case C-36/02, Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I 09609.

[42] C-112/00, Schmidberger v Österreich, [2003] ECR I 05659; C-36/02, Omega Spielhallen, [2004] ECR I 09609; Case C-438/05 Viking [2007] ECR I-10779-10840; Case C- 341/05 Laval [2007] ECR I-11767-11894; Case C-208/09 Ilonka Sayn-Wittgenstein v. Landeshauptmann von Wien [2010] OJ 2011/C 63/06.

[43] C - 314/12, UPC Telekabel Wien GmbH (27 March 2014).

[44] C-390/12, Pfleger, Autoart (30 April 2014), para. 36.

[45] C. F. Sabel and O. Gerstenberg ‘Constitutionalising an Overlapping Consensus: The ECJ and the Emergence of a Coordinate Constitutional Order’ (2010) ELJ, 511 (512).

[46] See Committee of Ministers’ reply to Parliamentary Assembly Recommendation 1439 (2000), adopted on 31 May 2000 at the 711th meeting of the Ministers’ Deputies, HRLJ 2000, 188.

[47] H. G. Schermers ‘Editorial’ 35 Common Market Law Review 6 (1998).

[48] Opinion 2/13 (Full Court) (18 December 2014); this Opinion should be read together with the comprehensive ‘View’ of Advocate General J. Kokott (13 June 2014).

[49] The text of the draft accession agreement its explanatory report as well as related instruments had been agreed at negotiators’ level on 13 April 2013 and can be consulted at: . On background and initial stages of the negotiations see J. Polakiewicz ‘The European Union’s Accession to the European Convention on Human Rights’ in W. Meng/G. Ress/T. Stein Europäische Integration und Globalisierung (Nomos Baden-Baden 2011), 375-391.

[50] Intervention on 26 March 2015 in Brussels, at the ‘High-Level Conference on the Implementation of the European Convention on Human Rights: our shared responsibility’, Proceedings/Actes, at 28.

[51] Para. 177.

[52] J Malinovský ‘L’adhésion de l’U.E. a la Convention européenne des Droits de lHomme’119 RGDIP 705, at 739 (2015): “L’Accord d’adhésion constitue une oeuvre pleine d’improvisation, dépourvue de précédents en droit international, qui, partant, risque d’avoir des conséquences imprévisibles.”

[53] SHARES Briefing Paper – A New Framework for Allocating International Responsibility: the EU Accession to the European Convention on Human Rights (2014), at 18, available at www.sharesproject.nl.

[54] See Article 1 of Protocol No. 8 to the Treaty on the Functioning of the European Union.

[55] CJEU Opinion 2/13, para 189.

[56] Weiler op.cit. supra note 8.

[57] R. Dworkin Taking Rights Seriously (Harvard University Press 1977), 270.

[58] See A-M Widmann ‘Article 53: Undermining the Impact of the Charter of Fundamental Rights’ 8 Columbia Journal of European Law 342-358 (2002).

[59] See Caroline von Hannover v Germany, no. 59320/00, judgment of 24 June 2004; Von Hannover v Germany (no 2) [GC], nos. 40660/08 and 60641/08, judgment of 7 February 2012.

[60] See Evans v UK [GC], no. 6339/05, judgment of 10 April 2007, § 73: “The dilemma central to the present case is that it involves a conflict between the Article 8 rights of two private individuals: the applicant and J. Moreover, each person’s interest is entirely irreconcilable with the other’s, since if the applicant is permitted to use the embryos, J will be forced to become a father, whereas if J’s refusal or withdrawal of consent is upheld, the applicant will be denied the opportunity of becoming a genetic parent. In the difficult circumstances of this case, whatever solution the national authorities might adopt would result in the interests of one or the other parties to the IVF treatment being wholly frustrated.”

[61] K. Hesse Grundz__ü__ge des Verfassungsrechts der Bundesrepublik Deutschland (Müller, Heidelberg, 20th edition 1999), marginal note 75.

[62] CJEU Opinion 2/13, para. 194.

[63] On the following see already See J. Polakiewicz ‘EU law and the ECHR: Will the European Union’s accession square the circle?’ European Human Rights Law Review (2013), 592-605.

[64] ECtHR ‘Violations by Article and by State 2015’.

[65] Opinion of the European Union Agency for Fundamental Rights on the draft Directive regarding the European Investigation Order (February 2011).

[66] Joined cases C-411/10 and C-493/10 N.S. (2