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ABSTRACT
The principle of mutual trust has been a central pillar of the European integration project, first as a tool for market integration, and as the European Economic Community became the European Union, as a mechanism for a more wide ranging integration of the legal orders of the member states. The EU now has legislation in place which imposes obligations on member states to trust each other's civil and criminal justice systems, immigration and asylum law, and family law. But these obligations of trust imposed by EU law may conflict with obligations that member states have to secure the rights under the ECHR. Accession by the EU to the ECHR was supposed to resolve this conflict, but in its Opinion 2/13, the Court of Justice appeared to have dealt a fatal blow to this solution. This article explains the tension between the EU principle of mutual trust and the duty to secure ECHR rights. The article examines the most recent case law of the CJEU and the ECtHR in order to assess whether a resolution of this tension has been found, and whether the EU's accession to the ECHR will be possible.
Notes
1 Opinion 2/13 of the Full Court of 18 December 2014 on the agreement on accession to the ECHR, ECLI:EU:C:2014:2454.
2 i.e. Treaty on the Functioning of the European Union (TFEU) arts 67 and 81, in the area of freedom, security and justice (AFSJ)
3 See for the CJEU, Cases C-404/15 and C-659/15 Aranyosi and Caldararu, ECLI: EU:C:2016:198 and also Case C-217/15 Orsi (pending). See for the ECtHR Grand Chamber cases: Avotins v Latvia, ECtHR judgment of 23 May 2016; also A and B v Norway, ECtHR judgment of 15 November 2016.
4 For CJEU case law, see in particular Case C-217/15 Orsi (pending) and Case C-578/16 CK and others v Slovenia. For the ECtHR case law, see A and B v Norway, ECtHR judgment of 15 November 2016.
5 Valentin Jeutner, Irresolvable Norm Conflict in International Law: The Concept of Legal Dilemmas (OUP 2017).
6 The doctrine of directive effect was famously enunciated by the CJEU in 26/62 van Gend en Loos EU:C:1963:1, and the year after the CJEU affirmed the primacy of [EEC] law in 6/64 Costa v ENEL EU:C:1964:66. For a general introduction to the CJEU's approach to direct effect and primacy, see Allan Rosas and Lorna Armati, EU Constitutional Law: An Introduction, (2nd edn, Hart 2012) esp 66ff.
7 Case 11/70 Internationale Handelsgesellschaft [1970] EU:C:1970:114.
8 ibid [3].
9 ibid. It is worth noting that there was no mention of fundamental rights in the Treaty Establishing the EEC, nor any indication that the member states, when they signed the Treaty intended fundamental to be part of the EEC legal order. The statement that fundamental rights ‘in fact’ form part of the EEC legal order appears to have been a legal creation ex nihilo by the CJEU: see generally B de Witte, ‘The Role of the CJEU in Human Rights’ in P Alston, The EU and Human Rights (OUP, 1999) 864.
10 Although already in Internationale the CJEU accepted that the protection of those rights was ‘inspired by the constitutional traditions common to the member states’, nonetheless that protection must be ensured ‘within the framework of the structure and objectives of the Community’: 11/70 Internationale (n 7) [4].
11 E Gill-Pedro, ‘EU Fundamental Rights and National Democracies’ (Doctoral thesis, University of Lund 2016) 354. And this conflict has not been fully resolved. Although most national courts now implicitly or explicitly agree to respect the primacy of EU law, this is so long as (this line of litigations is termed ‘solange’, from the German ‘so long as’) the EU protects fundamental rights ‘which basically corresponds to the protection of basic rights’ demanded by the [national] constitution (BVerfGE 73, 339 (1986) (Solange II) 340). For an overview of the interaction between the German Federal Constitutional Court and the CJEU in respect of fundamental rights, see A Stone Sweet and K Stranz, ‘Rights Adjudication and Constitutional Pluralism in Germany and Europe’ in S Schmidt and D Kelemen, The Power of the European Court of Justice (Routledge 2014).
12 Matthews v United Kingdom (App No 24833/94), Judgment of 18 February 1999, [32].
13 ibid.
14 Case 222/84 Johnston EU:C:1986:206, [18].
15 Article F EU. The wording changed with the Lisbon treaty, and article 6(3) TEU now states that ‘fundamental rights, as guaranteed by the ECHR […] shall constitute general principles of EU law’.
16 EU Charter art 52(3).
17 For an overview of the differences of approach, see S Douglas-Scott, ‘The Court of Justice of the EU and the European Court of Human Rights after Lisbon’ in U Bernitz, S Weatherill and S de Vries (eds), The Protection of Fundamental Rights in the EU After Lisbon (Hart 2013).
18 In Bosphorus Hava Yollari v Ireland (App No 45036/98), Judgment of 30 June 2005.
19 And indeed, the Council of Europe, the body that oversees the operation of the Convention, is itself founded on principles of European cooperation.
20 Bosphorus (n 18) [156].
21 ibid [155].
22 ibid [165].
23 ibid [155]–[156].
24 For an earlier and influential critique, see J Coppel and A O’Neill, ‘European Court of Justice: Taking Rights Seriously’ (1992) 29 Common Market Law Review 669 (though see response to those criticism in N Lockhart and J Weiler, ‘Taking Rights Seriously: The European Court and its Fundamental Rights Jurisprudence’ (1995) 32 Common Market Law Review 579). For a more recent critique specifically in the context of mutual recognition provisions see L Besselink, ‘The Parameters of Constitutional Conflict after Melloni’ (2014) 39 European Law Review 531.
25 For an overview of the background to the accession question, see N-L Arold and others, The European Human Rights Culture: A Paradox of Human Rights Protection in Europe (Brill 2013) 219–27. See also P Gragl, The Accession of the EU to the European Convention on Human Rights (Hart 2013).
26 Commission of the EEC, ‘Memorandum on the Accession of the European Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms’, 2/79, COM (79) 210, 20 May 1979.
27 Opinion 2/94 of the Court (Full Court) of 28 March 1996, concerning the accession of the European Community to the ECHR.
28 See X Groussot and others, ‘Regulatory Trust in EU Free Movement Law: Adopting the Level of Protection of the Other?’ (2016) 1(3) European Papers 865.
29 Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein ECLI:EU:C:1979:42.
30 ibid.
31 T Marguery and T von Den Brink, ‘Mutual Recognition and Mutual Trust: Reinforcing EU Integration?’ (2016) 1(3) European Papers 861.
32 J Neyer, The Justification of Europe: A Political Theory of Supranational Integration (OUP 2012).
33 K Tuori, European Constitutionalism (CUP 2015).
34 Indeed it has been argued that the principle never quite lived up to its promise as a market integration mechanism, and has been rendered ’invisible’ in the case-law of the CJEU on free movement.
35 Examples of policy areas that fall within the AFSJ include the management of the European Union's external borders to judicial cooperation in civil and criminal matters and police cooperation. It also includes asylum and immigration policies and the fight against crime (terrorism, organised crime, cybercrime, sexual exploitation of children, trafficking in human beings, illegal drugs) (European Parliament, Fact Sheet on the AFSJ) (February 2017) at: http://www.europarl.europa.eu/atyourservice/en/displayFtu.html?ftuId=FTU_5.12.1.html) Last accessed 12 July 2017
36 See V. Mitsilegas, ‘The Symbiotic Relationship between Mutual Trust and Fundamental Rights in Europe's Area of Criminal Justice’ (2015) (Special Issue) New Journal of European Criminal Law.
37 T. Isiksel, Europe's Functional Constitution: A Theory of Constitutionalism Beyond the State (OUP, 2016).
38 F. Urbina, A Critique of Proportionality and Balancing (CUP, 2017).
39 A. Somek, Individualism. An Essay on the Authority of the European Union (OUP, 2007).
40 For a detailed account of this development, see V Mitsilegas, ‘The Constitutional Implications of Mutual Recognition in Criminal Matters in the EU’ (2006) 43 Common Market Law Review 1277.
41 OJ 2001, C 12/10.
42 ibid, Introduction.
43 AG Colomer Opinion in Joined Cases C-187/01 and 385/01 Criminal Proceedings against Hüseyin Gözütok and Klaus Brügge EU:C:2002:516, [124].
44 Elspeth Guild highlights a number of cases where national courts have quashed decisions to extradite on the basis that the conviction of the individual by another member state did not meet the standards of the executing state's defence rights, and argues that such cases show that ‘ … even among near neighbours who have a long history of cooperation, such confidence [in each other's judicial systems] is not always sustainable’: Elspeth Guild, ‘Crime and the EU's Constitutional Future in an Area of Freedom, Security, and Justice’ (2004) 10 European Law Journal 218, 227. Alegre and Leaf argued (in 2004) that ‘ … there is a long way to go before mutual recognition can be said to be based on a genuine mutual trust’: S Alegre and M Leaf, ‘Mutual Recognition in European Judicial Cooperation: A Step Too Far Too Soon?’ (2004) 10 European Law Journal 200, 201. Mitsilegas, ‘The Constitutional Implications’ (n 40) 1289, n59, points to debates in national parliaments and the press expressing concerns about the trustworthiness of other member state's judicial systems.
45 Terms such as ‘fairness’ are prime examples of what Gallie termed ‘essentially contested concepts’: WB Gallie, ‘Essentially Contested Concepts’ (1956) 56 Proceedings of the Aristotelian Society 167.
46 As article 52(1) states, any interferences with the rights protected in the Charter must be ‘provided for by law’. If a member state is to apply the principle of mutual recognition, and enforce a judicial decision of another member state against an individual, or forcible remove that individual to another member state in recognition of a warrant issued by that member state, it needs a legal basis that will allow it to do so.
47 L Halleskov Storgaard, ‘EU Law Autonomy versus European Fundamental Rights Protection: On Opinion 2/13 on EU Acccession to ECHR’ (2015) 15 Human Rights Law Review.
48 According to article 2 TEU: ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’
49 See Opinion 2/13 (n 1) [167].
50 ibid [167]–[168].
51 ibid [191].
52 ibid [193].
53 For a notable recent exposition of this understanding of mutual trust, see T Wischmeier, ‘Generating Trust through Law? Judicial Cooperation in the European Union and the Principle of Mutual Trust’ (2016) 17 German Law Journal 339.
54 See Robert Alexy, A Theory of Constitutional Rights (OUP 2010).
55 Case C-195/08 PPU Inga Rinau, [50]. This case is also relied on by Wischmeier (n 53). See also the Opinion of AG Bot in C–184/10 Mathilde Grasser v Freistaat Bayern, who at [43], rejects a particular interpretation of a Directive because ‘ … such a solution would destroy the mutual trust between Member States’, and the judgment of the Court in C-139/10 Prism Investments BV v Jaap Anne van der Meer, [27], where the CJEU observes that mutual trust ‘requires’ that judgments be recognised automatically.
56 Notice from the European Council on the Stockholm Programme on an Open and Secure Europe (2010) OJ C-115/01, p 10.
57 The instrumentality of the EU's commitment to fundamental rights is discussed in Gill-Pedro (n 11). See also Presidential Conclusions to Tampere European Council ‘ … in close connection with the AFSJ, the European Council has agreed on the [body] entrusted with drawing up a Charter of Fundamental Rights’.
58 Avotins (n 3) [133], where the court asserted ‘ … its repeated commitment to international and European cooperation’. However, as Judge Sajó pointed out in his dissenting opinion, such commitment is ‘ … a consideration that is not recognised among the Convention grounds for limitation of rights’.
59 See Dissenting Opinion of Judge Sajó in Avotins (n 3) [8].
60 Notice from the European Council on the Stockholm Programme on an Open and Secure Europe (2010) OJ C-115/01, p 5.
61 In the context of the recognition of foreign judgments in family courts, the CJEU has stated ‘It is that mutual trust which has enabled a compulsory system of jurisdiction to be established, which all the courts within the purview of Regulation No 2201/2003 are required to respect, and as a corollary the waiver by Member States of the right to apply their internal rules on recognition and enforcement of foreign judgments in favour of a simplified mechanism for the recognition and enforcement of decisions handed down in matters of parental responsibility’ (C-256/09 Bianca Purrucker v Guillermo Vallés Pérez, [72]).
62 See Tuori (n 33).
63 Case 6/64 Costa v. Enel, ECLI:EU:C:1964:66; Case C-105/03 Criminal proceedings against Maria Pupino ECLI:EU:C:2005:386; and Case C-402/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communitie ECLI:EU:C:2008:461.
64 6/64 Costa (n 63), in Grounds, [10].
65 C-105/03 Pupino (n 63) [44].
66 C-402/05 P Kadi (n 63) [282].
67 Case C-394/12 Shamso Abdullahi v Bundesasylamt ECLI:EU:C:2013:813.
68 ibid [53].
69 The court has not been entirely consistence in using the terminology of ‘mutual trust’ and ‘mutual confidence’. Here the principle of mutual confidence appears to be the same as that of mutual trust.
70 Case C-399/11 Stefano Melloni v Ministerio Fiscal, ECLI:EU:C:2013:107, [44] (emphasis added).
71 See also, where the CJEU stated that: ‘The EU legislature, in effect, considered that the court geographically close to the child's habitual residence is the court best placed to assess the measures to be taken in the interests of the child.’ So the fact that the EU has legislated on the matter, and determined what would be in the best interests of the child, is presented as evidence that such.
72 Case C-499/15 W, V v X, Judgment of 15 February 2017. See also the Opinion of AG Bot in C–404/15 and C–659/15 PPU Aranyosi and Căldărar EU:C:2016:140, [99], who stated that ‘ … in the “mutual recognition/mutual confidence’ relationship, the former imposes the latter on the Member States’. In other words, where the EU has legislated by requiring the mutual recognition of measures taken by other member states, then this imposes on the member states an obligation to trust.
73 C-499/15 W, V v X (n 72) [51].
74 Under art 24(2) of the Charter, a child has a fundamental right that all actions concerning her or him shall have that child's best interests as ‘a primary consideration’.
75 C-499/15 W, V v X (n 72) [51].
76 L Besselink, ‘General Report’ in J Lafranque (ed) The Protection of Fundamental Rights Post-Lisbon (Reports of the XXV FIDE Conference, Tallinn 2012) 118.
77 P Gragl, ‘A Giant Leap for European Human Rights? The Final Agreement on the European Union's Accession to the European Convention on Human Rights’ [2014] 51 CMLRev 13, 15.
78 GC Rodrigez Iglésiasm, ‘Reflections on the General Principles of Community Law’ (1999) CJLS 15.
79 As one of us pointed out, general principles of EU law orginate in, and are shaped by, the constitutional traditions of member states and by international law: Xavier Groussot, Creation, Development and Impact of the General Principles of Community Law (Lund 2005) 46.
80 G Butler, ‘A Political Decision Disguised as Legal Argument? Opinion 2/13 and European Union Accession to the European Convention on Human Rights’ (2015) Utrecht Journal of International and European Law 104; P Eeckhout ‘Opinion 2/13 on EU Accession to the ECHR and Judicial Dialogue: Autonomy or Autarky’ (2015) 38 Fordham Journal of Intl Law 955; L Besselink, ‘Acceding to the ECHR notwithstanding the Court of Justice Opinion 2/13’, VerfBlog, 23 December 2014 <www.verfassungsblog.de/accedingechr-notwithstanding-court-justice-opinion-213/>. For a more positive response see D Halberstam, ‘“It's the Autonomy, Stupid!” A Modest Defence of Opinion 2/13 on EU Accession to the ECHR, and the Way Forward’ (2015) 16 German Law Journal 105.
81 University of Cambridge Faculty of Law, ‘ECHR President Dean Spielmann speaks on accession of the EU to the ECHR’ Press Release of 16 March 2015 <www.law.cam.ac.uk/press/news/2015/03/echr-president-dean-spielmann-speaks-accession-eu-echr/3009> accessed 12 July 2017.
82 Butler, ‘A Political Decision’ (n 80).
83 For evidence of this damaged trust, see the Order of the German Federal Constitutional Court of 15 December 2015 (2 BvR 2735/14), in which the FCC asserted its authority to carry out ‘identity review’ of EU measures, in order to ensure that German Basic Rights were protected. As Peers noted, it does appear that the GCC is ‘ … sending a message to Luxembourg: it is not willing to buy’ the demands which the CJEU's interpretation of mutual trust imposes on it: S Peers, ‘The German Constitutional Court and the European Arrest Warrant: The Latest Twist in the Judicial Dialogue’, EU Law Analysis, blog entry, 27 January 2016 <http://eulawanalysis.blogspot.se/2016/01/the-german-constitutional-court-and.html> accessed 12 July 2017. See J Nowag, ‘EU Law, Constitutional Identity, and Human Dignity: A Toxic Mix? Bundesverfassungsgericht: Mr R’ (2016) 53 CMLRev 1441. See also the approach of the UK Supreme Court, who observed that the requirement to have trust in other member states did not displace the obligation to ensure that fundamental rights will in fact be protected in the other member state: R (on the application of EM (Eritrea)) v Secretary of State for the Home Department [2014] UKSC 12, [41].
84 C-404 and C-659/15 PPU Aranyosi and Caldararu (n 3) [78]–[83].
85 ibid [74].
86 C-399/11 Stefano Melloni v Ministerio Fiscal EU:C:2013:107.
87 C-404 and C-659/15 PPU Aranyosi and Caldararu (n 3) [78].
88 ibid [82].
89 ibid [83].
90 Case C-578/16 PPU CK and others v Slovenia EU:C:2017:127.
91 Regulation 04/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) [2013] OJ L-180/31 (the Dublin III Regulation).
92 C-578/16 PPU CK (n 90) [45].
93 ibid [83].
94 ibid [84].
95 V Mitsilegas, ‘Mutual Recognition, Mutual Trust and Fundamental Rights after Lisbon’ in V Mitsilegas, M Bergström and T Konstadinides (eds) Research Handbok on EU Criminal Law (Edward Elgar 2016) 148–68, 148.
96 Case C-428/15 Child Family Agency EU:C:2016:819.
97 Cases C-63/15 and C-155/15 Ghezelbach and Karim EU:C:2016:410.
98 See T Marguery, ‘Rebuttal of Mutual Trust and Mutual Recognition in Criminal Matters: Is “Exceptional” Enough?’ (2016) 1(3) European Papers 943.
99 See S Montaldo, ‘A New Crack in the Wall of Mutual Recognition and Mutual Trust: Ne Bis in Idem and the Notion of Final Decision Determining the Merits of the Case’ (2016) 1(3) European Papers 1183. See Case C-486/14 Kossowski ECLI:EU:C:2016:483; Case C-524/15 Menci (2017, order); Case C-217/15 Orsi (pending, see AG Campos Sanchez-Bordona); case ECtHR, A and B v Norway (GC, 15 November 2016) n 2.
100 See Case C-241/15 Bob-Dogi ECLI:EU:C:2016:385 and C-108/16 PPU Dworzecki ECLI:EU:C:2016:346, in these cases executing authorities have a greater responsibility. Trust not only in issuing authorities but also in executing authorities.
101 S Montaldo, ‘On a Collision Course! Mutual Recognition, Mutual Trust and the Protection of Fundamental Rights in the Recent Case-Law of the Court of Justice’ (2016) 1(3) European Papers 965.
102 Avotins (n 3) [114].
103 ibid [115].
104 See Opinion 2/13 (n 1) [255]–[257].
105 Case C-72/15 PJSC Rosneft Oil Company v Her Majesty's Treasury and Others EU:C:2017:236.
106 G Butler, ‘A Question of Jurisdiction: Article 267 TFEU Preliminary References of a CFSP Nature’ (2017) 2 European Papers 1. Yet, Court's assertion of its jurisdiction was not completely unqualified. Rather, it must be meet one of two conditions. The first condition that it may meet, is that it must relate to art 40 TEU on the Court having the jurisdiction to determine the boundary between CFSP and non-CFSP in its border-policing role. The second condition that the Court's allows for the assertion of its jurisdiction, is when it involves the legality of restrictive measures against natural or legal persons.
107 C-72/15 Rosneft (n 105) [81].
108 See Butler, ‘A Question of Jurisdiction’ (n 106).
109 Opinion of AG Wathlet in C-72/15 PJSC Rosneft Oil Company v Her Majesty's Treasury and Others EU:C:2016:381
110 Wischmeier (n 53) 336.
111 Case C-1/07 Weber, ECLI:EU:C:2015:333, [39].