The need to comply with the ECHR in matters falling within the field of application of EC/EU Law
The different status of the ECHR in the various Member States does not relieve the latter from the obligation to observe its provisions, as interpreted by the Strasbourg Court.
On the other hand, the primacy of EU law over conflicting national legislation, as applied by the competent (administrative and judicial) authorities, requires full compliance with the duties resulting thereof, including the respect of fundamental rights. But a breach of the ECHR by the EU cannot be reviewed by the European Court of Human Rights; even following the entry into force of the Lisbon Treaty, ‘external’ judicial control will operate only upon accession. This did not, however, prevent the ECtHR from assessing the admissibility of national provisions or practices originating in EC/EU law. If the Member States infringe the Convention while implementing EU law they may be held liable for what is essentially an EU action.
The repercussions on the relations between the three legal orders involved, and in particular on the dynamics which operate in cases involving the protection of human rights, are manifold and of great relevance. In the Member States of the Council of Europe and of the EU, the judiciary is bound to obey both systems with all the additional problems deriving from the distinct tasks respectively pursued, not to mention the lack of coordination between the two.
In order to have a better understanding of the complex relations between the national, supranational and international level it should prove useful to single out the various cases which can be brought before the different competent fora. As far as the Strasbourg Court jurisdiction is concerned, the two following scenarios must be considered:
(1) The Court decides cases involving violations of the ECHR by Member States, with no EU law component and
(2) The Court decides over actions involving EU law.
The first is the simplest and most classic situation. Here the Court is asked to decide on the compatibility of domestic legislation (e.g. a law prohibiting homosexual conduct) with the ECHR.49 The second situation is more complicated, and requires particular attention, since the solution envisaged by the Strasbourg Court may vary according to whether the violation is the result of an act directly attributable to a Member State or, on the contrary, is imputable solely to the EU.
So, in Cantoni50 the Court felt free to review a French law implementing the EC medicine directive (notwithstanding the verbatim transposition), 51 but found no violation of the ECHR. The same ratio was applied in Matthews, 52 where the Court considered that the content of the act in question53 was directly and solely attributable to the British government thus engaging the latter’s liability under Art.1 of the Convention for failing to secure the rights guaranteed by Art. 3 of Protocol No 1.54On the other hand, where the Member States have no discretion in deciding how to implement EU law, the Court will still claim jurisdiction over the case, but in establishing the legality of the measure in question it will apply the so-called ‘equivalent protection doctrine’. In other words, since the transfer of powers to an international organization such as the EC is not incompatible with the Convention, the State will be held liable only when within that organization fundamental rights do not receive an equivalent protection.55
Furthermore, in Bosphorus the Grand Chamber clarified that it will always be possible to rebut this presumption on a case by case basis.56 If the protection offered by the international organization appears to be ‘manifestly deficient’ with respect to the ECHR standard, the Court might declare the action admissible and try the case against all EU Member States, considered collectively responsible for the adoption of acts formally imputable to the EC or the EU.57 The fact remains that to date no such action has been declared admissible, either because the Court lacked competence ratione materiae58 or because the applicants were not deemed to be victims pursuant to Art. 34 ECHR.59
The European Court of Justice is also competent to hear cases involving breaches of human rights by Member States, but only when implementing EU law. In fact, unlike their colleagues in Strasbourg, EU judges have no jurisdiction over purely domestic situations concerning fundamental rights,60 nor can they (directly) hear claims by individuals against Member States.61 As argued by AG Poiares Maduro in Centro Europa 7, the ECJ is only entitled to “examine whether Member States provide the necessary level of protection in relation to fundamental rights in order to be able adequately to fulfil their other obligations as members of the Union.”62
What appears to be required here is some kind of nexus with EU law, the existence of a transnational situation capable of affecting the internalmarket63 or economic rights protected under the Treaty.64 Under the former treaties, whenever the State and its articulations transposed,65 implemented or applied,66 or derogated from67 EC law it was necessary to comply with fundamental rights, as general principles of Community law, guaranteed by the ECHR and resulting from their common constitutional traditions.
By virtue of the Pupino Segi, Pro Gestoras and Advocaten voor de Wereld this rule also applied to matters falling within the former third pillar. This ‘collateral effect’ of Art. 6 TEU allowed the Court to widen its jurisdiction on the respect of fundamental rights and ensure that Member States did not violate the Convention when acting within the scope of application of EU law. Although this undoubtedly favored compliance with the ECHR, it was “neither methodologically nor dogmatically convincing”.68 Reliance on the constitutional traditions common to the Member States was essential for the purposes of deepening market integration, but as time went on the ECJ started developing an autonomous supranational standard which can hardly be traced back to the national context.
According to the circumstances this was capable of determining, in concreto, a variation in the degree of protection offered under the domestic (constitutional) legal order depending on whether the situation at hand fell within the scope of application of EU law. On the one hand, the improvement of the (minimum) standard of protection offered by the Union by virtue of legislative or judicial activism forced the Member States to adjust.
In this sense the Kreil69 and Mangold70 precedents and their impact on the German legal order are most revealing. On the other hand, the ERT doctrine required Member States to comply “with the fundamental rights the observance of which is ensured by the Court”71 even when limiting fundamental freedoms on grounds of public policy, public morality, public security and public health, all domains which in principle fall within the latter’s exclusive competence.72 This centralisation of judicial control demonstrates the desire to guarantee compliance with fundamental rights in all situations falling within the scope of EU law, but placed a paramount responsibility on the ECJ; that of combining the national, supranational and international level of protection, while at the same time preserving the autonomy of the EU legal order and respecting the sharing of competences between the Union and the Member States.
The Court is required to keep in line with the ECHR not only in relation to national measures caught by EU law but also, and to the same extent, when appraising the action of the institutions and the lower courts.
Moreover, in order to avoid the resurgence of the counter-limits doctrine, fundamental freedoms must be enforced taking into the highest consideration national constitutional specificities. Concomitantly, though, the EUCJ shall ensure the uniform application of the law. The complex balancing operations it is called to perform can be associated with those of a federal constitutional Court, a mission which the Luxembourg judges have progressively become familiar with. On the one side, it was able to combine national constitutional sensitivities with the principles of primacy and uniform application of EC law.
In Omega, for instance, it accepted that the principle of human dignity enshrined in Art. 1 of the Grundgesetz, was capable of justifying a restriction to the (economic) fundamental freedoms guaranteed under the EC Treaty.73 Similarly, in Dynamic Medien it claimed that child protection, as protected under German law and guaranteed in Art. 24 (1) of the Charter, could restrict the free movement of goods.74 Moreover, since Pupino the Court has focused on coherence and sensibly avoided dealing with matters falling within the former third pillar in terms of primacy. By contrast, it insisted on the necessary cooperation with national Courts, including constitutional courts, which are increasingly aware of the importance of pluralism.75 In this sense, Maduro argued that: Any legal order (national and European) must respect the identity of the other legal orders; its identity must not be affirmed in a manner that either challenges the identity of the other legal orders or the pluralist conception of the European legal order itself.76
The willingness on the part of the ECJ to engage in a ‘constructive dialogue’ with national Courts can be appreciated in Advocaten voor deWereld where it claimed that the Framework-Decision on the European Arrest Warrant did not infringe the legality, equality and non-discrimination principles, and placed on the Member States the onus of guaranteeing fundamental rights protection when adopting the necessary implementing
measures.77 The same can be said with respect to the transposition of directives, and the implementation of the relevant domestic provisions, which may also presuppose “the need to strike a fair balance between the various fundamental rights protected by the Community legal order.” 78
Nonetheless, if “in judgements such as Pupino, Segi, Advocaten voor de Wereld the Court of Justice suggested that the EU was developing as a legal order, based on some common key principles, admittedly partly imported from the EC legal order,”79 more recent decisions, rendered in the wake of the entry into force of the Lisbon Treaty, reinforce the idea that fundamental rights protection is to be traced amongst the “constitutional principles of the EC Treaty”.80 However it may be, the abandonment of the pillar structure resulting from the new Treaties – albeit with notable exceptions in the Common Foreign and Security Policy – and the fact that the EU has replaced and succeeded the European Community seems to appease all doctrinal concern as to the reasons behind this apparent back-step in the process of affirming the unity of the EU legal order.
On the other hand, the ECJ strived to assume the garb of a Constitutional Court of the EU in balancing fundamental rights with fundamental freedoms. Nevertheless, the two are not placed on an equal footing, the former being “relegated” to legitimate derogations to the latter. If in Omega human dignity prevailed over the freedom to provide services and in Schmidberger81 a restriction on the free movement of goods was justified by virtue of the freedom of expression, in Laval82 and Viking83 then outcome was in favor of the relevant economic freedoms. With the exception of Schmidberger, where the Court affirmed that “the interests involved must be weighed having regard to all the circumstances of the case in order to determine whether a fair balance was struck between those interests,”84 all the other cases were decided viewing fundamental rights as legitimate limitations to the internal market freedoms.
The Viking and Laval judgments have been criticized for impinging on the protection of social rights, treating them as ‘second class’ fundamental rights even though they are part of the international obligations of the Member States under the ILO Convention 87.85 It could be argued that the more restrictive stance adopted in relation to collective bargaining with respect to other fundamental rights, such as human dignity and the freedom of expression, reveals (rectius, unveils) a certain deference towards the State as opposed to private action. Nevertheless, it is a matter of fact that the ECJ has consistently upgraded fundamental rights to their formal status, that of general principles of EC/EU law. As will be seen the situation is expected to change now that the Lisbon Treaty has finally become effective.
That being said, it should also be stressed that the quest for a uniform protection of fundamental rights by and throughout the Member States was not assisted by a comprehensive and effective enforcement apparatus. Leaving aside the special procedure laid down in Art. 7 TEU - strictly ‘political’ in nature and the more recent creation of the - Fundamental Rights Agency86 - without any cogent instrument of enforcement - compliance with fundamental rights was mainly assessed through the preliminary reference mechanism,87 allowing the ECJ, by interpreting the relevant Community provision, to indirectly scrutinize national legislation. This power of appraisal was nevertheless subject to the important limitations provided for in Art. 68 TEC 88 (visas, asylum, immigration and judicial cooperation in civil matters) and Art. 35 TEU (judicial cooperation in criminal matters).89 The situation has undergone significant changes with the reform Treaty: the merging of the Pillars, in fact, has resulted in a unified system of judicial protection (with the well known exceptions applicable to the Common Foreign and Security Policy).90
49. Appl. No 7525/76, Dudgeon v. UK, (1981) 4 EHRR 149.
50. Appl. No 17862/91, Cantoni v. France, (1996) Reports 1996-V ECHR.
51.Directive EEC 65/65,  OJ L 369/1.
52. Appl. No 24833/94, Matthews v. United Kingdom, (1999) Reports 1999-I. See further, H.G. Schemers, (1999) 36 Common Market Law Review 673.
53.Annex to the 1976 Act concerning direct elections of the European Parliament whereby the UK had excluded that the direct elections would apply to Gibraltar.
54.The international nature of the act in question was confirmed by the fact that, as primary law, it fell outside the ECJ’s jurisdiction
55. Appl. No 13258/87, M & Co v. FDR, (1990) 64 DR 138.
56. Appl. No 45036/98, Bosphorus v. Ireland, (2005) Reports 2005-VI, para 156.
57. Needless to say that with the entry into force of the Lisbon Treaty reference should be made to the EU solely.
58. Appl. No 51717/99, Guerin v. 15 Member States of the EU, (2000) unreported.
59. Appl. No 6422/02, Ségi et al. v. 15 Member States, (2002) Ser. A, 56.
60. Case C-299/95 Kremzow  ECR I-2629; Case C-328/04 Vajnai  ECR I-8577 and Case C-361/07 Polier  ECR I-
61. However, individuals can indirectly contest the compatibility of national legislation with EU law through the preliminary ruling mechanism (cf. in particular Art. 234 TEC, now 267 TFEU).
62. Opinion of 12 September 2007 in Case C-380/05 Centro Europa 7  ECR I-349, para 20. See also, Opinion delivered on 9 December 1992 by AG Jacobs in Case C-168/91 Konstantinidis  ECR I-1191, para 46.
63. And yet, the case law on Art. 18 EC (now 21 TEU) demonstrates that the Court is willing to demand full compliance with EU fundamental rights above and beyond the mentioned thresholds. See further E. Spaventa, ‘Seeing the woods despite the trees? On the scope of EU citizenship and its constitutional effects’, (2008) 45 Common Market Law Review 13; A. Trifonidou, ‘Reverse discrimination in purely internal situations: an incongruity in a citizens’ Europe’, (2008) 35 Legal Isuues of Economic Integration 43 and Editorial Comments, ‘Two-speed European citizenship? Can the Lisbon Treaty help close the gap?’ (2008) 45 Common Market Law Review 1. On the exclusion of the ECJ’s competence to rule on strictly internal situations, cf. a contrario, Case C-212/06 Government of Communauté française and Gouvernement wallon  ECR I-1683.
64. See e.g. Case C-159/90 Grogan  ECR I-468.
65. See e.g. Case 222/84 Johnston, n. 17 above.
66. See e.g. Case C-5/88 Wachauf  ECR 2609 and Case 292/97 Karlsson  ECR I-2737.
67. See e.g. Case C-260/89 ERT  ECR I-2925 and Case C-368/95 Familiapress  ECR I-3689.
68. P.M. Huber, ‘The unitary effect of the Community’s Fundamental rights: the ERT doctrine Needs to be revised’, (2008) 14 European Public Law 323, at 328.
69. Case C-285/98 Kreil  ECR I-69.
70. Case C-144/04 Mangold  ECR I-9981. Cf. A. Masson, C. Micheau, ‘The Werner Mangold case: an example of legal militancy’, (2007) 32 European Public Law 587; J.H. Jans, ‘The effects in national legal systems of the prohibition of discrimination on grounds of age as a general principle of Community law’, (2007) 3 Legal Issuesof European Integration 53 and A. Arnull, ‘Out with the old’, (2006) European Law Review 1.
71. Case C-260/89 ERT, n. 67 above, para 43.
72. See Art. 30 TEC (now Art. 36 TFEU), Art. 46 TEC (now Art. 52 TFEU) and Art. 55 TEC(now Art. 62 TFEU).
73. Case C-36/02 Omega  ECR I-9609. On the balancing of fundamental rights and freedoms in the case law of the ECJ, see further in this volume S. Curzon, ‘Chapter 8’.
74. Case C-244/06 Dynamic Medien  ECR I-505, para 41.
75. For further considerations on the necessary (and ongoing) dialogue between national constitutional courts and the ECJ, see J.H.H. Weiler, N.J.S. Lockhart, ‘Taking rights seriously: The European Court of Justice and its fundamental rights jurisprudence’, (1995) 32 Common Market Law Review 51; F.C. Mayer, ‘The European Constitution and the Courts’, in A. Von Bogdandy and J. Bast (eds.), Principles of European Constitutional Law (Hart Publishing, 2006) 281; T. Vandamme, ‘Prochain Arrêt: La Belgique! Explaining Recent Preliminary References of the Belgian Constitutional Court’, (2008) 4 European Constitutional Law Review 127; L.S. Rossi (2009) 46 Common Market Law Review 319; M. Bobek ‘Learning to talk: preliminary rulings, the courts of the new Member States and the Court of Justice, (2008) 45 Common Market Law Review 1611 and A. Tizzano, ‘Qualche riflessione sul contributo della Corte di Giustizia allo sviluppo del sistema comunitario’ (2009) 14 Il Diritto dell’Unione Europea 141, at 157 ff.
76. M. Poiares Maduro, ‘Contrapunctual law: Europe’s constitutional pluralism in action’, in N. Walker (ed.), Sovereignty in Transition (Oxford University Press, 2003) at 526. For a similar take on the juxtaposition of the national and EU legal orders, Cf. L. Besselink, A composite European Constitution (Europa Law Publishing, 2007). But, see contra I. Pernice, ‘Multilevel constitutionalism in the European Union’, (2002) 27 European Law Review 511.
77. Case C-303/05 Advocaten voor de Wereld  ECR I-3633.
78. Case C-275/06 Promusicae  ECR I- 271, para 68.
79. C. Hillion, R.A. Wessel, ‘Competence distribution in EU external relations afterECOWAS: clarification or continued fuzziness?’ (2009) 46 Common Market Law Review 551 at 556.
80. Joined cases C-402 and 415/05 P Kadi and Al Barakaat International Foundation  ECR I-6351, para 81. 81. Case C-112/00 Schmidberger  ECR I-5659.
82. Case C-341/05 Laval  ECR I-11767.
83. Case C-438/05 Viking  ECR I-10779.
84. Case C-112/00 Schmidberger, n. 81 above, para 81.
85. See in particular, T. Van Peijpe, ‘Collective labour law after Viking, Laval, Ruffert and Commission v Luxembourg’, (2009) 25 International Journal of Comparative Law 81 at 95, and J. Malmberg and T. Sigeman, ‘Industrial actions and EU economic freedoms: the autonomous collective bargaining model curtailed by the European Court of Justice (2008) 45 Common Market Law Review 1115 at 1130.
86. On the role of the Agency See Weidenfeld and Wessels, ‘The role of the new EU Fundamental Rights Agency: debating of the ‘sex of angels’ or improving Europe’s human rights performance?’ (2008) 33 European Law Review 385 and A. Von Bogdandyand J. Von Bernstorff, ‘The EU Fundamental Rights Agency within the European and International Human Rights Architecture: the Legal Framework and Some Unsettled Issues in a New Field of Administrative Law’, (2009) 46 Common Market Law Review 1035. In the context of administrative supervision, its should also be recalled that the violation of general principles of law and of the Charter is considered to amount to a case of maladministration. See J. Soderman, ‘The Convention, the Charter and the remedies’, Speech delivered on the 25 of February 2003 at the European Policy Centre in Brussels.
87. Art. 234 TEC (now Art. 267 TFEU).
88. See S. Peers, ‘The ECJ’s jurisdiction over EC immigration and asylum law: time for a change?, in H. Toner, E. Guild and A. Baldaccini (eds.), EU Immigration and Asylum Law and Policy (Hart Publishing, 2007), and Editorial Comments, ‘Preliminary rulings and the Area of Freedom Security and Justice (2007) 44 Common Market Law Review 1.
89. Cf. S. Peers, EU Justice and Home Affairs Law (Oxford University Press, 2006); S. Douglas-Scott, ‘Rule of Law in the EU-Putting the Security in the Area of Freedom Security and Justice, (2004) 29 European Law Review 219 and S. Peers, ‘Salvation outside the Church: judicial protection in the third pillar after the Pupino and Segi judgments’, (2007) 44 Common Market Law Review 883.
90. But cf. Protocol No 36 to the Lisbon Treaty. In particular, Art. 10 reads: “As a transitional measure, and with respect to acts of the Union in the field of police cooperation and judicial cooperation in criminal matters which have been adopted before the entry into force of the Treaty of Lisbon, the powers of the institutions shall be the following at the date of entry into force of that Treaty: the powers of the Commission under Article 258 of the Treaty on the Functioning of the European Union shall not be applicable and the powers of the Court of Justice of the European Union under Title VI of the Treaty on European Union, in the version in force before the entry into force of the Treaty of Lisbon, shall remain the same, including where they have been accepted under Article 35(2) of the said Treaty on European Union”. See further in this volume V. Bazzocchi, ‘Chapter 10’.