EUROPEAN UNION WORLD

Human rights in Europe is getting worse

Future Perspectives Arising from the Reform Treaty

  It appears useful here to try to assess the consequences of a legally binding Charter and of the future accession of the EU to the ECHR.

As far as the EU procedural law is concerned, it appears evident that individuals will be able to rely exclusively on Art. 47 CFR. This would mostlikely be the only relevant novelty, since – as was stated by the judgment Baustahlgewebe52 – the rights related to the right to a fair trial already receive protection within the EU legal order and the rules on access to justice will remain substantially unaltered.

And yet, some doubts could arise as to the institution individuals should turn to when seeking redress for the violation of the rights deriving from Art. 47 CFR and more precisely the damages deriving from an excessive duration of proceedings. In this regard it can be argued that when the proceeding in question concerns a case pending before the General Court53 the infringement will be brought before the EUCJ.54 In other words the

approach adopted in Baustahlgewebe would remain valid with the difference that individuals could base their appeal on Art. 47 CFR. By contrast, should the EUCJ be responsible for such a violation – judging in the case of appeal against a decision of the General Court or in a preliminary ruling procedure – it is suggested that the competent judge would be the General Court, addressed under Arts 26855 and 340 (2) TFEU,56 since this action is not reserved to the former Judge under Art. 51 of the Statute.

As to the accession to the ECHR, it is suggested that not all actions brought before ECtHR - which are admissible only after all internal remedies have been exhausted - would necessarily result in a condemnation of the EU. In fact, should cases concerning the violation of rights protected under the Convention reach the judges in Strasbourg, the latter would presumably (continue to) apply the well known Bosphorus precedent evaluating whether the protection of fundamental rights by EU Law can be considered to be – and to have been at the relevant time - “equivalent” to that guaranteed under the ECHR.57 Only in the event the required protection is deemed to be insufficient, a judgment against the EU legal system could be rendered, underlying the violation of the principles laid down in the ECHR, as interpreted by the European Court of Human Rights.

52. Case C-185/95P Baustahlgewebe, n. 33 above.

53. Under the Lisbon Treaty the CFI is referred to as the General Court (cf. Art. 19 TEU).

54. The General Court shall have jurisdiction to hear and determine actions and proceedings brought against decisions of the Civil Service Tribunal.

55. Cf. Art. 235 TEC.

56. Cf. Art. 288 TEC.

57. Appl. No 45036/98, Bosphorus v. Ireland [2005] 42 EHRR, para 155 and Cooperatieve Producentenorganisatie, n. 49 above.