Category Archives: European Union

by | March 9, 2012 · 4:51 pm

Jeffrey Goldsworthy: Parliamentary Sovereignty’s Premature Obituary

At the end of a long review of my book Parliamentary Sovereignty, Contemporary Debates (CUP, 2010, hereafter PS), Vernon Bogdanor concludes that I have “suffered one of the worst fates that can befall a philosopher”: I have “become the prisoner of a doctrine” – that of parliamentary sovereignty (“Imprisoned by a Doctrine: The Modern Defence of Parliamentary Sovereignty” (2011) Oxford Journal of Legal Studies 179, hereinafter Bogdanor ). Apparently, self-imposed mental barriers prevent me from perceiving how the British constitution has changed.

What are Bogdanor’s reasons for this conclusion?

First, he puzzles over my claim that at present Parliament “cannot” limit its own substantive powers: is the impossibility a logical or contingent one? Since it cannot be a logical impossibility, he infers that I must mean that “it would be perfectly possible for Parliament to pass immutable laws but there are very good reasons why, as a matter of fact, it has never done so.” On this view, my “conception is a utilitarian one”, and is open to refutation “were it to be shown that the consequences would not necessarily be undesirable.” (Bogdanor,183) But this rests on a misunderstanding of my position. It is true that I believe there are good reasons of political morality for Parliament not being able to limit its own substantive powers, which I discuss in my book (PS, 7, 53-5, 116, 125-9).  But I maintain that Parliament cannot lawfully limit its own substantive powers, because there is currently a fundamental legal rule (a rule of recognition) to that effect, whose existence is constituted by its being generally accepted by legal officialdom. That rule can be changed, but only by a change in official consensus, and not by Parliament acting unilaterally (116, 137-8). That is what I mean by “cannot”.

Secondly, Bogdanor believes that Parliament’s sovereignty has been limited by the European Communities Act 1972 (“EC Act”) (Bogdanor, 182).  He acknowledges my suggested interpretation of the somewhat cryptic Factortame judgment, as construing the EC Act as imposing a kind of “manner and form” requirement that Parliament must use explicit language in order to legislate inconsistently with applicable EC law and with that Act (184). (He does not mention that I also offer two other, alternative interpretations of the judgment that are equally consistent with parliamentary sovereignty as I define it. (PS, 289-90, 296-8)) But he prefers the alternative view put forward by counsel in the Thoburn case, which he says “deserves more consideration than it has so far received.”(Bogdanor, 184)  According to this view, the EC Act altered Britain’s fundamental rule of recognition with the effect that Parliament cannot unilaterally derogate from EC law. Consequently, “national courts would have to apply EC law in preference to inconsistent national law”(185).  “If that is so”, he says, the EC Act limits Parliament’s substantive power. (186)

I freely acknowledge that this is a possible interpretation of the Factortame judgment, as I did in my book where I attributed it to Paul Craig (PS 287).  There, I said that if Parliament can legislate inconsistently with applicable EC laws only if it first enacts legislation withdrawing Britain from the EC, “then the EC Act would have subjected Parliament’s lawmaking power to a limitation of substance”, which “could not be explained in terms of a mere requirement as to the form of British legislation.” (287-8) However, I argued that this interpretation was implausible because “it is the business of the government and Parliament, not the courts, to decide whether or not Britain should abide by its treaty commitments.” (287) In other words, if Parliament were to pass a law that explicitly contradicts applicable EC law, but without withdrawing Britain from the EC, and therefore violates Britain’s treaty commitments, that would be its business, not the courts’. They do not have legal authority to enforce treaty commitments in the face of a statute to the contrary. Nor is there much evidence that, on this point, there has been the requisite change in official consensus for the rule of recognition to have changed, as Bogdanor suggests it has (Bogdanor, 184).  My argument then proceeded on that basis.

It is, of course, possible that the courts would take the opposite view, preferred by Bogdanor. But the fact that I offer reasons for disagreeing with a view that he thinks “deserves more consideration than it has so far received” (184) hardly suggests that I am imprisoned by a doctrine in the sense that I am unable to see beyond it. Nor does the fact that it is a possible view prove that it is the correct one, or that if Parliament’s substantive power have been limited in this respect they must be limitable in other respects as well (186). That is precisely what is in contention.

Thirdly, Bogdanor suggests that Parliament has also succeeded in limiting its substantive powers by enacting what he calls “binding” referendum requirements in s.1 of the Northern Ireland Act 1998 and ss.2-4 of the European Union Act  (‘EU Act’) (187-8). But neither of these referendum requirements strikes me as “binding” Parliament in the requisite sense. This is because they are not self-entrenched: they can be repealed or amended by ordinary legislation, without any referendum being held (PS, 144). I emphasized the importance of self-entrenchment in PS (at 144), and in my written evidence to the House of Commons European Scrutiny Committee, which Bogdanor refers to (The EU Bill and Parliamentary Sovereignty, HC 633-II (7 December 2010), Ev 31, para 10; Bogdanor, n38).  It might be argued that they are binding on Parliament until it repeals or amends them (Bogdanor, 189).  But that argument would invite two responses. First, if Parliament were to legislate inconsistently with these requirements – for example, by legislating for the ratification of a treaty covered by s. 2 EU Act without any referendum first being held as required by that section – it is very likely that the referendum requirement would be regarded as repealed pro tanto by implication. That conclusion follows from the principle established in McCawley v R [1920] AC 691 (PC). But say I am wrong about this, and the courts were to hold that Parliament must follow a two-step rather than a one-step procedure, and expressly amend or repeal such requirements before legislating inconsistently with them. My second response is that this would amount to a requirement that Parliament must expressly amend or repeal such requirements, rather than doing so by implication (through the enactment of inconsistent legislation). According to my theory, a requirement that Parliament must expressly repeal or amend a provision is merely a requirement as to form, and not as to substance. This is not a minor, incidental aspect of my theory: it is central to it, and is discussed at length in my book (PS 179-82, 195, 289-90). It forms part of my argument that the EC Act, as construed in Factortame, is consistent with parliamentary sovereignty. Thus, a referendum requirement is perfectly consistent with my conception of parliamentary sovereignty, provided that it is not self-entrenched and can therefore be repealed or amended, whether impliedly or expressly, by ordinary legislation.

Bogdanor continues his discussion of referendum requirements by confusing (as many British writers do) two different arguments that attempt to justify them, which in my book I distinguish: the manner and form argument, and the reconstitution argument (Bogdanor, 189-190; see PS, 139, 155-60, 167, 171-73 and 198-99). The reconstitution argument construes referendum requirements as changing Parliament’s composition, by making the electorate part of Parliament for particular purposes. That is quite different from arguing that Parliament has subjected itself to a requirement governing the procedures or forms by which it must legislate. Bogdanor argues against the reconstitution argument (as I do), but then seems to assume that he has refuted the manner and form argument (Bogdanor, 189-90). Then follow sweeping claims: that Parliament in the EU Act has partially renounced its sovereign power to legislate; that since it has done so on that topic, it could do so on others as well; and therefore that it could gradually bind itself to a whole new constitution. But as I have shown, all this rests on a misunderstanding of the extent to which Parliament has already been able to bind itself. In statutes like the Northern Ireland Act and the EU Act it has not bound its substantive powers in any constitutionally significant sense.

Fourthly, Bogdanor argues that the judges have limited Parliament’s powers: it cannot protect Ministers or public authorities from judicial review, by conferring unfettered discretions or enacting ouster clauses (191).  He asserts that Padfield and Anisminic make this “clear”, although he later says that “there is no case which allows one to confirm this interpretation.” (191, 192) I discuss Anisminic in my book, in a passage that Bogdanor does not mention (PS 285-6). All I can do is repeat what I said there: the House of Lords justified its decision on the orthodox ground of presumed legislative intention, and even if this was a “noble lie”, “the fact that a lie is felt to be required indicates that the judges themselves realise that their disobedience is, legally speaking, illicit” (PS, 286).

Fifthly, Bogdanor argues that if Parliament were to enact a statute subverting the foundations of the rule of law, it is possible that the judges would refuse to obey it. He refers to recent events and judicial statements (such as in the Jackson case) as possibly portending that outcome. It would shatter the official consensus on which (he and I both agree) the doctrine of parliamentary sovereignty has rested, and could lead to a constitutional crisis in which Parliament and the judges disagree about ultimate legal authority (Bogdanor, 193).  His conclusion is that, since the question of what Parliament “can” do depends on the reaction of the courts, and we cannot predict what their reaction would be, it is impossible to say that Parliament “can” enact such a statute (193, 194).

Here again, Bogdanor is confusing what Parliament “can” or “cannot” do in a practical sense, with what it can or cannot do in a legal sense. I would say the following, to any judges who think that if Parliament were to enact a statute subverting the rule of law, they should hold the statute to be invalid.

“There is no basis in the constitution as it currently stands for you to do this: the long accepted rule of recognition gives Parliament sovereign lawmaking power. Therefore, you would be attempting to bring about constitutional change, so that what Parliament can legally do today, it could no longer legally do.

You can attempt such a change, but you cannot plausibly claim legal authority to do so by invoking the theory of “common law constitutionalism” – the theory that parliamentary sovereignty is a doctrine of the common law, which the judges created and can therefore unilaterally modify or repudiate. I have refuted that theory, and judicial support for it in Jackson’s case (such as in the judgment of Lord Steyn) is therefore based on demonstrable falsehoods. Obiter dicta that can be shown to be false should be accorded no authority.

There is no other basis in the constitution for your claiming authority unilaterally to change the constitution in this way. That does not mean you cannot successfully initiate such a change, but it does mean that the political branches of government must be persuaded, inveigled, bamboozled, or bluffed into acquiescing in it. But what if they are not? What if they resent and resist your efforts to change the constitutional rules that were previously accepted, and take strong action to defeat it, possibly including the impeachment of ‘over-mighty judges’? That might be regrettable, but if you tear up the consensus that currently supports the fundamental rules of the system, you are hardly well placed to complain if it is replaced by a power struggle you are ill-equipped to win. In the absence of consensus, your own legal authority as well as Parliament’s would be up for grabs. (This passage is adapted from PS, 55)

 It might nevertheless be a good idea, before such a statute is enacted, for you to hint that you might refuse to obey it. The political branches may be just as concerned as you about the dangers of a constitutional crisis, and they might back down and decide not to enact it (as they did in 2003 when a sweeping ouster clause was withdrawn after protests by senior judges). But no matter how you couch such a threat, do not confuse in your own minds what would amount to judicial disobedience of the law, with the judicial exercise of constitutional authority. One of the practical restraints on Parliament’s exercise of lawmaking power is the possibility that it might not be obeyed. In an extraordinary case judges, like ordinary citizens, might be justified in disobeying a valid statute – and a fortiori, in hinting that they might disobey it. But it simply does not follow that it would be a good idea to abandon the doctrine of parliamentary sovereignty. What would replace it? A rule that the judges can subject Parliament’s authority to whatever limits they see fit (perhaps under the vague label “the rule of law”)? Remember that hard cases make bad laws. It would be better to retain the doctrine of parliamentary sovereignty, subject to the possibility of civil or even official disobedience in extraordinary situations, than to attempt to replace it with a rule of judicial supremacy capable of imposing fundamental constitutional changes on the nation.” (See also J. Goldsworthy, The Sovereignty of Parliament, History and Philosophy (OUP, 1999), 267-71)

Sixthly, Bogdanor argues that the concept of parliamentary sovereignty is of little value in analysing what Parliament can or cannot do. Indeed, the concept creates puzzles that would dissolve if it were abandoned (Bogdanor, 193-4).  He recommends that we simply ask what rules govern Parliament’s composition, powers and procedures; whether they impose formal or substantive limits on legislation; how they are determined; and how they can be changed. The concept of sovereignty, he claims, plays no constructive role in answering these questions (194).

It was one of the purposes of my book to answer most of these questions. It is not clear to me whether Bogdanor disagrees with my answers, or with the way I use the concept of parliamentary sovereignty in arriving at or expressing them. For example, I reject the theory of “common law constitutionalism”, and in his book The New British Constitution (Hart, 2009) he seems to agree with me (at 82-3).

I am extremely sceptical about Bogdanor’s claim that the doctrine of parliamentary sovereignty is now useless for theoretical or practical purposes. For centuries, it has been generally understood that Parliament has sovereign lawmaking authority. This meant that there were no substantive limits to its authority, and it could not subject itself to such limits except by abdicating its authority with respect to territories capable of being excised from its jurisdiction. On the other hand, there was some uncertainty about its ability to subject itself to binding rules as to the procedure for or the form of legislation. A crucial question is: to what extent have recent developments changed these understandings?

A minimalist approach to answering that question, which I favour, construes somewhat cryptic developments, such as the effect of the EC Act as interpreted in Factortame, as altering previous understandings only to the minimum extent that is necessary to accommodate those developments. Factortame can be construed as using the EC Act as a very strong rule for interpreting later statutes, or alternatively, as imposing a binding rule as to the form of later statutes (PS 287-98). The minimalist approach leaves intact as much of the previous understanding as possible, for a number of reasons. An established rule of recognition is constituted by a consensus among legal officials, which it would be dangerous to construe as having radically changed unless there is reasonably clear evidence of the change. To the extent that an established rule of recognition remains unchanged, there is greater certainty about the allocation of constitutional authority, compared with a fluid situation in which it is regarded as having been repudiated but not yet replaced by any clear alternative. Uncertainty about such matters is more likely to cause conflicts between the branches of government. In addition, both of the major theoretical alternatives to orthodox (“continuing”) parliamentary sovereignty (“self-embracing” parliamentary sovereignty, and common law constitutionalism), which authorise either Parliament or the Supreme Court unilaterally to limit Parliament’s substantive powers, could in principle lead to very undemocratic constitutional change (116, 137-140).

Alternatively, a maximalist approach of recent developments can be taken, according to which the doctrine of parliamentary sovereignty is now dead, if not yet buried. But if so, what has replaced it? The problem is that if Parliament is no longer sovereign, almost everything is up for grabs. Bogdanor’s suggestion that we simply ask what Parliament can and cannot now do strikes me as naive. There is no strong evidence that orthodox parliamentary sovereignty has been supplanted by either of the usual alternative theories. As previously noted, Bogdanor does not seem to embrace common law constitutionalism, the theory that it is up to the courts in developing “the common law” to decide what limits Parliament’s powers. Does he, then, embrace the theory of self-embracing sovereignty, the idea that Parliament can limit its own powers in any way it chooses? He would not, of course, approve of the term “sovereignty”, which he does not find useful. But he might still endorse the idea that Parliament has the power to limit its own powers (Bogdanor, 183), notwithstanding the dangers of that idea (PS, 116, 137-138).

Can Parliament – in the legal sense of “can” – limit its substantive powers, such as by enacting a fully binding, self-entrenched, referendum requirement? I say it cannot – unless the rule of recognition is changed. This is a possibility I discuss: indeed, I suggest that if a binding referendum requirement were enacted only after being itself approved in a referendum, this would help to justify and fortify a change in the rule of recognition (PS 139-140). As I put the point in my written evidence to the House of Commons European Scrutiny Committee (to which Bogdanor refers),

“To make it more likely that, in this scenario, the judges would enforce the earlier statute prohibiting the future enactment of legislation without a referendum first being held, that statute should itself be put to a referendum. The support of a majority of voters for such a referendum requirement would greatly add to the strength of the case in favour of its future enforcement notwithstanding Parliament’s later change of mind, indicated by its attempt to legislate without complying with that requirement. This is because obtaining the support of the voters for a requirement that their support be required in the future overcomes a principled objection to the imposition of a referendum requirement by ordinary legislation. The objection is this: if an earlier Parliament can use ordinary legislation to implement its preferred policies, why should a future Parliament not have the same liberty? To put it another way, why should the later Parliament be bound by the expression of a will that has no higher authority than its own will? This is the main justification of the orthodox view that Parliament cannot bind itself. But if a referendum requirement is enacted with the support of a majority of voters in a referendum, the objection is overcome. A future Parliament could then be said to be bound, not by an earlier will of no higher authority than its own will, but by an earlier will that does have such a higher authority – the expressed will of the people.” (The EU Bill and Parliamentary Sovereignty, HC 633-II (7 December 2010), Ev 31, para 11; Bogdanor, n38.)

 I am surprised to be accused of having argued myself into a blind alley – becoming imprisoned by the doctrine of parliamentary sovereignty – when I have suggested how, in this way, the doctrine could most legitimately and effectively be superseded. But, until a new constitutional settlement is clearly endorsed by the people, it would in my opinion be dangerously destabilizing to declare that parliamentary sovereignty is dead.

Jeffrey Goldsworthy is a Professor of Law at Monash University 

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by | March 6, 2012 · 12:39 pm

Arthur Dyevre: The Czech Ultra Vires Revolution: Isolated Accident or Omen of Judicial Armageddon?

On the face of things, the CCC’s judgment, by declaring an EU act, namely a ruling of the Court of Justice, ultra vires, constitutes a momentous and unprecedented display of judicial defiance. To my knowledge, no domestic court has ever taken this step before in a final judgment on the merits; and certainly not in so explicit a manner. In recounting the background of the case and the sequence of events that led to the CCC’s decision, Jan Komarek points to a number of intriguing aspects of the case. One, which has already been highlighted in connection with the Melki case, is the difficulty for the CJEU to avoid alienating domestic judges when it is dragged into domestic judicial politics by way of the preliminary ruling mechanism. Here, however, my primary interest is in the significance and implications of the CCC’s decision for the EU multi-level legal system. In a non-hierarchical court system, where courts at the upper echelon do not have the power to strike down the decisions of courts at the lower level, judicial cooperation appears to be essential to the effectiveness of the higher-level law. So, by defying the authority of the Court of Justice in such blatant fashion, the CCC’s judgment may be viewed as striking a terrible blow to the authority of EU law. Doomsayers may see it as the first event in a chain reaction that will ultimately bring down the whole constitutional edifice of EU law. From now on, every domestic judge will assume that she can safely ignore EU law whenever she sees fit. Still, while there is no gainsaying that judicial defiance at domestic level may potentially raise major problems, I would nonetheless suggest, borrowing insights from game theory and international relations, that this judgment is more likely to remain an isolated event. An all-out war with the CJEU is not in the long-term strategic interest of any domestic court. Hence there is a fairly good chance that, one way or another, the CCC will soon come to its senses and will repudiate a decision that seems to be driven by anger rather than by reason. If it wants to remain a player in the multi-level judicial game, the CCC should take a closer look at the German Federal Constitutional Court (GFCC), which has so far proved a more thoughtful strategic player in its relations with the CJEU.

Of Hawks, Doves and Chicken

Of the classical game forms found in the game-theoretic literature, the one that seems to best approximate the conflictual relations between the CJEU and national courts such as the GFCC and the CCC is the game of Chicken. Most people, presumably, know it from the classical presentation where two drivers head for the same single lane bridge from opposite ends, with the last to swerve counting as the winner. The same game, with the same payoff structure, is also known as the Hawk-Dove game. There two players compete over a resource and have to decide whether to fight (play Hawk) or to acquiesce (play Dove). For each player, the best outcome is, of course, when she plays Hawk and the other player plays Dove, while the worst outcome sees both players choosing to play Hawk. This game form has been widely used in international relations to analyse crisis situations. What strategy should a country adopt, knowing that it will incur severe losses if it acquiesces to the demands of its neighbour but knowing at the same time that a war would be even more costly? I see several reasons why this approach also constitutes an appropriate way to model judicial interactions in the EU legal system. First, jurisdiction is a rivalrous good. Assuming that courts want to expand – or at least preserve – their jurisdiction, courts on opposite sides of a jurisdictional dispute, like the two players in a Hawk-Dove game, have opposite institutional interests. When one court expands its jurisdiction, it normally does so at the other’s expense. (More powerful domestic courts have obviously more to lose, which would explain why the mighty GFCC has been at the forefront of the judicial resistance to integration.)

Second, analogous to the players in a Hawk-Dove game, the courts perceive, or should perceive, the disastrous consequences that would ensue, should both pursue a strategy of defiance. For the CJEU, a single case of overt non-compliance by an influential domestic court may set a dangerous precedent, damaging its authority as well as the effectiveness of EU law. But putting a threat of non-compliance to execution may attract problems to domestic courts, too.  A ruling that comes to be regarded as detrimental to the country’s interests and membership in the EU may trigger adverse political reactions. Legislators may decide to punish the unruly court by rolling back its jurisdiction, changing its rules of procedure, appointing new judges, etc. On that score, it is worth remembering that a group of respected German academic lawyers reacted to the GFCC’s ruling on the Lisbon Treaty – which stopped short of holding the Treaty unconstitutional but was nonetheless regarded as articulating a strongly Eurosceptic position – by calling on legislators to amend the Federal Constitutional Court Act (Bundesverfassunggerichtsgesetz). The proposed amendment would have required that the GFCC send a reference for a preliminary to the Court of Justice before entering any judgment on the ultra vires character of an EU act. Had it become law, the amendment would certainly have dealt a severe blow to the GFCC’s institutional standing. More generally, despite the growing anti-EU sentiment among their voters, government parties in the Member States, even the more Eurosceptic ones, usually agree about the fact of EU membership. This entails that domestic courts can ill-afford to make decisions that would imperil their country’s full membership in the supranational club. In my view, this fact places an upper limit on the level of defiance of domestic judges. The doctrines of direct effect and supremacy are now part – though not necessarily in the form expounded by the CJEU in its jurisprudence – of the “acquis communautaire”. Thus, unless the government parties wish to leave the EU, a court that blatantly defies it will face a political backlash. This is why the decision of the Czech constitutional judges looks daft. As the GFCC understood early on, going to war should always be the ultima ratio.

Bluff and Brinkmanship in the Judicial Cold War

In the situation we are concerned with, the courts’ strategic choice mirrors the one faced by the players in a Hawk-Dove game. Assuming that a constitutional crisis is a worse outcome than a jurisdictional loss, a domestic court’s best response to a dovish CJEU is hawkish judicial expansion or reassertion, but its best response to a hawkish Court of Justice is judicial restraint. Hence it is easy to see to that each court would ideally be the Hawk and have the other be the Dove. Yet strategic decision-making – again, as in the standard formulation of the Hawk-Dove game – is rendered difficult by the fact that the courts do not have a dominant strategy – i.e. a strategy that remains the best whatever strategy the other court happens to choose. This difficulty is further compounded by the iterative character of judicial interactions in the EU court system. We’re not dealing with a one-shot game but with repeated interactions.

Now, when we repeat a game indefinitely many different equilibriums are possible. But if the players are allowed to communicate about their future choices, they may be able to use communication so as to induce an equilibrium more favourable to their interests. A country’s leader may thus want to signal hawkishness and announce he is ready to go to war. Similarly, a court may hint that it is ready to risk a constitutional crisis to force the other to acquiesce to its jurisdictional demands. The resolve of the judges just as that of the leader may be impossible to establish with certainty. But credible enough the signal may well work. This I would argue is the game the GFCC has been playing ever since its first Solange decision. On numerous occasions, the German Court threatened to disapply EU legislation if found to be ultra-vires or to violate basic human rights. Yet it has never put its threat to execution. To many legal scholars, this is proof that the GFCC is a dog that barks but never bites. But in fact this may be a sign of its success in countering the CJEU’s activist impulses. Without ever setting aside a single EU act, the Karlsruhe court may have managed to set limits on the European Court’s jurisdictional expansion. Perhaps it was bluff all along (the judicial Hawk was in reality a judicial Dove). But if bluff it was, it seems to have worked, at least some of the time. The Court of Justice’s human rights jurisprudence is often presented as a response to Solange. The GFCC’s decision on the Lisbon treaty, meanwhile, invites comparison with the Cuban missile crisis. By designating its most Eurosceptic judge, Udo di Fabio, as rapporteur and by issuing an opinion with strong sovereigntist overtones, the GFCC may have successfully emulated President Kennedy’s cautious firmness with the Soviet Union. Having made its voice heard, the Honeywell ruling was then similar to the Kennedy’s decision to withdraw nuclear warheads from Turkey: a face-saving exit for the CJEU that would ease and bring tensions back to a more manageable level.

Conclusion

I do not mean to say that the GFCC is always a force for good in the EU legal system. Its role in the ongoing debt crisis, where it seems to serve as pre-commitment device for the German government in negotiations with other Member States (“We can’t accept this because our constitutional court will say no”), is, for my money, highly objectionable on normative grounds. So too is the declaration of its President, Andreas Vosskuhle, that the German Constitution “hardly admits of more integration”, whose subtext seems to be “We, the Court do not want to see more integration”. But this is not my point. Rather my point is that thoughtful domestic judges, even if they take a sceptic view of integration, should first seek negotiations with the judges in Luxembourg before even thinking about pressing the big red button. Those who fear a judicial Armageddon will find some comfort in experiments that have shown that the iterated Hawk-Dove game (in its Snowdrift variant) leads to consistently higher levels of human cooperation than other iterated games such as the iterated Prisoner’s Dilemma. As with superpowers during the Cold War, the threat of mutually assured destruction seems to provide human beings with a strong incentive to cooperate. Let’s hope judges are human beings too.

Arthur Dyevre is Senior Research Fellow at the Max Planck Institute for Comparative and International Public Law in Heidelberg

This post originally appeared in the Verfassungsblog, and is reposted here with thanks. 

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by | February 24, 2012 · 9:26 am

Patrick O’Brien: The European Fiscal Treaty: Constitutionalising ‘The Road to Serfdom’?

I start with a very old bad joke. A tourist is in Dublin, Ireland. In the midst of pondering the evident decline in the country’s fortunes (empty blocks of new apartments, growing anti-European sentiment, grizzled former bankers by the side of the road holding forlorn signs that read ‘will create dubious leveraged financial products for food’) she forgets herself and gets lost. Finding a friendly native she asks how to get to Grafton St. The bemused native responds: ‘Well, I wouldn’t start from here.’

I was reminded of this joke by the new European fiscal treaty.  The headline of the Treaty does two significant things. Firstly, it requires state parties to observe a balanced budget rule. Once the debt brake has come into full operation each state will be required in general to run their budgets in surplus or balance, and at a minimum to keep their structural deficit (that is, the amount of borrowing required to maintain their day to day operations – hospitals, schools and so on) below 0.5% of GDP. Secondly, the Treaty requires states to keep their overall government debt below 60% of GDP. Those who have exceeded this target are required to reduce their debt by one twentieth each year.

But these objectives are for the long term. Within the treaty there are exemptions for emergencies and severe economic downturns, so we must assume that these targets are not currently applicable to countries in trouble. In the medium term, each state will follow a tailored country-specific plan devised for it by the European Commission with which it must comply as it goes moves towards the twin 0.5%/60% targets. And in the short term, the state parties are required to enshrine these rules, together with a ‘correction mechanism’ in the event that the targets are not met, in domestic law within a year ‘through provisions of binding force and permanent character, preferably constitutional, or otherwise guaranteed to be fully respected and adhered to throughout the national budgetary processes.’ (Art. 3[2]). In the event that the signatories fail to meet their obligations the Treaty provides for enforcement procedures through the European Commission and the ECJ.

I have two points I want to make about the Treaty. The first is a specific one relating to Irish constitutional law.

Art. 3(2) is tailored to reduce the likelihood of a referendum in Ireland and later in the same paragraph we find the positive sounding but rather otiose: ‘This mechanism shall fully respect the prerogatives of national Parliaments’. But it is very difficult to see how a ‘binding and permanent budgetary rule’ can ‘fully respect the prerogatives of national Parliaments’. The two ideas are opposed. The whole point of the treaty and of the debt brake project is to deprive national Parliaments of some of their prerogatives: at present those prerogatives include the power to run consistent budget deficits. Under the Treaty the European Commission, ECJ and other member states will be empowered to discipline Parliaments that do so.

There is some debate in Ireland as to whether a referendum is constitutionally required and what exactly the case law means. The Crotty case requires a referendum in the event of significant unanticipated change to EU competences. The Fiscal Treaty is not an EU treaty but an international treaty (albeit one that makes liberal use of EU institutions for its administration and enforcement). Suffice to say that we are in uncharted territory. But conversely if a referendum is not held what status will the debt-brake legislation have? There is (normally) no intermediate status in Irish law between ordinary legislation and the constitution and so the legislation will not be constitutionalised, in the sense that the text of the constitution will not have been amended. It is possible that the legislation might have some form of soft-constitutional status, but Irish politics and law rely heavily on the written constitution (as opposed to constitutional conventions) and this would still leave it open to being struck down by a future court as unconstitutional, or to being amended by the legislature as it saw fit. If this state of affairs is compatible with the Treaty and if states other than Ireland can take a similarly loose attitude to ‘permanent’ and ‘constitutional’ is Art. 3(2) a dead letter before it is even ratified?

There is another possibility, although it is a rather convoluted one. Art. 26 of the Irish constitution provides for an abstract judicial review procedure whereby the President, if he is uncertain about the constitutionality of a piece of bill presented to him for signature, can refer the matter to the Supreme Court for determination. If new President Michael D Higgins were to trigger this procedure in respect of the debt brake the supporters of the Treaty might not be entirely disappointed. The (much criticised) quid pro quo of the Art. 26 procedure is that if the Supreme Court gives the bill a clean bill of health it is, in effect, immunised from further constitutional scrutiny in perpetuity. This may be the only way that relative permanence can be assured in the Irish constitutional system without a referendum.

On to my second point. Is the debt brake rule enshrined by the Fiscal Treaty likely to work?

Article 7 of the new Treaty creates a procedure permits a qualified majority of the parties to overrule the Commission’s proposed course of action. When Ireland broke the Stability and Growth Pact early in the last decade by permitting inflation to get too high it was disciplined. When France and Germany did so by running high budget deficits, they persuaded other member states to overrule the Commission and the Pact became a dead letter. On one view Article 7 could create one rule for the big countries and another for the small.

The experience of the Stability and Growth Pact (Mark I) parallels that with debt brakes more generally. These provisions work – like most constitutional rules – when there is broad political and legal acceptance that they should work. Debt rules feature in a majority of US state constitutions and seem in general to work relatively well. But the existence of a debt brake clause did not prevent California from effectively defaulting on some of its debt in 2009, when it issued IOUs to its employees instead of paying them. The US constitution contains a provision to the effect that federal debt shall not be questioned; however this did not prevent the US from effectively defaulting on some of its debt in the 1930s when it pulled out of the gold standard. Switzerland enacted a debt brake in 2000 which has proven reasonably successful, but that replaced a similar provision in the constitution that had become a dead letter. In Germany, the new debt brake rule brought in in 2009 replaced weaker economic rules in the Basic Law that had become ineffective.

Even in Germany, it seems, constitutional debt rules will work only when they work: when they become politically possible. In Greece, in Spain, in Ireland, in Portugal, in Italy these rules will work – well, only if they are accepted. But in political terms the Treaty starts in a very poor position. There is powerful popular opposition to austerity in most states and it seems unlikely that can outrun this for much longer than one electoral cycle (in Greece in particular, where there are elections due in April). Political opponents can pray some strong economic arguments in support of their position. When even The Economist and The Daily Telegraph – those radical lefties – begin editorialising the Keynesian line that European spending cuts have gone too far and have started to create a bigger problem than the one they were intended to solve, it is safe to assume that the policy is ripe for review.

The European project has muddled through with the thinnest veneer of democratic legitimacy since its foundation because it has never really had much direct effect on the lives of citizens. It has been a preoccupation of elites, with glamorous international meetings to enthral politicians and civil servants, and constitutional innovations to intrigue lawyers. For the general citizen it offered mostly harmless or positive things: relatively easy international travel and the occasional new road. Perceived negatives, like the transfer of jobs from wealthier to poorer EU states, were often too diffuse to attribute directly to the EU. But now the imprimatur of the EU is directly associated with cuts to healthcare, salaries and pensions, massive youth unemployment and in some cases perceived national humiliation. All of this without any medium term end in sight, and all to be enforced by the European Commission and the ECJ. It is far from clear that the EU’s shaky political and constitutional legitimacy are capable of bearing the burden that the Fiscal Treaty would place upon them. If the Fiscal Treaty survives its initial Irish battle, the dubious constitutional politics surrounding it suggest that it might not win the war.

‘Well’, as the man said, ‘I wouldn’t start from here.’

Patrick O’Brien is a Research Associate at the Constitution Unit, University College London. 

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by | February 22, 2012 · 4:59 pm

Jan Komarek: Playing With Matches: The Czech Constitutional Court’s Ultra Vires Revolution

When the Czech Constitutional Court (CCC) declared the CJEU’s judgment in C-399/09 Landtová “ultra vires”, one of my colleagues commented: “giving Solange into their hands was like to let children play with matches”. I am afraid it is the adequate description of the decision, which is difficult to explain in legal terms and which in my view has much more to do with the psychology of the Court and its individual judges, although other domestic actors, the Supreme Administrative Court and the Government, also played an important role.

I suspect many readers of this blog will have to check the CJEU’s website in order to know what Landtová case was about. From the point of view of EU law it was an ordinary case, decided by the Fourth Chamber, concerning the interpretation of Regulation No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (“the Regulation”). Only at a closer look one could reveal an interesting dimension to it: the Czech Supreme Administrative Court (the SAC) was challenging the CCC’s case law concerning special pension increments that the CCC ordered to be paid to the Czech citizens, who were affected by the dissolution of Czechoslovakia in 1992.

Background to the conflict between the CCC and SAC

After the dissolution the two succession countries had to establish who was going to be responsible for paying the pensions of Czechoslovak citizens. Article 20 of the Agreement concluded by the Czech and Slovak Republic (“the C-S Agreement”) stipulated that the applicable scheme and the authority with competence to grant such benefits would be determined by the State of residence of the employer at the time of dissolution. Some people, who may have not moved from the Czech part of the then Czechoslovak federation during their entire life (except for holidays, perhaps), but whose employer had residence in the Slovak part, therefore obtained their pension (or its proportion) from Slovakia. This led towards the end of 1990s to a series of disputes, since the pensions in Slovakia were significantly lower than those paid in the Czech Republic (now it is the contrary, at least for some categories of people). The CCC found this to violate the right to adequate material security in old age (firstly in the judgment of 3. 6. 2003, II. ÚS 405/02).

The SAC never accepted this case law and initiated a protracted conflict with the CCC: the decision commented here is in fact the 17th in the line, which concerns various aspects of the matter. The SAC argued, among other things, that the special increment was incompatible with EU law.

The first argument was based on the fact that the C-S Agreement became part of the Regulation, which contains in its Annex III provisions of social security conventions that remain applicable notwithstanding the general rule according to which the Regulation replaces such conventions. Article 20 of the C-S Agreement was included in this Annex and in the SAC’s view the CCC’s interpretation changed the meaning of this provision – now part of the Regulation – and affected the way in which the pension is calculated according to it.

The second argument was based on the discrimination created by the CCC decisions: in general, by virtue of the Regulation (and just mentioned Annex), Article 20 of the C-S Agreement applies not only to Czech and Slovak citizens, but to any EU citizen who is retiring after the Czech Republic’s accession to the EU and who had before the dissolution of Czechoslovakia worked there. The CCC’s judgments have, however, limited the special increment to the Czech citizens only – excluding all others.

The CJEU’s ruling in Landtová Case

The CCC rejected these arguments in its judgment of 20. 3. 2007, Pl. 4/06 – without having asked preliminary reference to the CJEU, although its ruling necessarily involved the interpretation of the Regulation. We should add here, that in another judgment of 12. 8. 2010, III.ÚS 1012/10, the CCC quashed the SAC decision to suspend the proceedings in another Slovak pensions case and to await the CJEU’s ruling in the Landtová Case. The CCC ruled that it “has already dealt with the SAC’s interpretation and application of European law in the matter, which constituted ratio decidendi of the judgment”. In other words, the CCC stated that its interpretation of the Regulation shall prevail in the case regardless of the outcome of the CJEU’s ruling, so to await its results violated the rights to a fair trial of the petitioner in question.

On the reference from the SAC, C-399/09 Landtová, the CJEU ruled that while the special increment did not violate the Regulation as such, “the documents before the Court show[ed] incontrovertibly that the [CCC’s] judgment discriminate[d], on the ground of nationality, between Czech nationals and the nationals of other Member States” (para. 43). It added that “no evidence capable of justifying such discrimination has been adduced before the Court” (para. 47).

This reflects the fact that the Czech Government submitted observations which openly admitted that the CCC’s case law was contrary to EU law – rightly criticized by the CCC as “unprecedented”. However, the CJEU wanted to “soften” the consequences of its ruling: the special increment could be maintained, but must be paid to all EU citizens. At the same time, the CJEU observed that “EU law does not, provided that the general principles of EU law are respected, preclude measures to re‑establish equal treatment by reducing the advantages of the persons previously favoured” (para. 53). It added, that “before such measures are adopted, there is no provision of EU law which requires that a category of persons who already benefit from supplementary social protection, such as that at issue in the main proceedings, should be deprived of it” (ibid.), stressing once again that the Czech Republic can adopt a solution that would satisfy both the requirements of EU law and the Czech Constitution as interpreted by the CCC.

The reaction to the Landtová ruling

The reaction of the Czech authorities, however, was not to the CCC’s pleasing. First, with a specific reference to the CJEU’s ruling the Parliament adopted an act which prospectively excluded the possibility of paying the special increment to everyone.

For the SAC the response of the CJEU was somewhat precarious. While the CJEU confirmed that it was right in considering the special increment unlawful, the former did not exclude that it can be granted to Mrs. Landtová. In the concrete case at hand the SAC was therefore supposed (or at least not prevented by EU law) to grant the increment to Mrs. Landtová.

Instead, the SAC came up with a different interpretation: because the CCC created the special increment in violation of EU law – and in particular the violation of its duty to refer preliminary question to the CJEU, its case law cannot be binding on the SAC, the SAC argued. In an ironic twist the SAC took advantage from the CCC’s ruling which found that such a violation would qualify as a breach of the constitutional right to the lawful judge (another irony lies in the fact that this ruling concerned a violation by the SAC…). The SAC challenged the CCC even further, stating that it of course did not undermine the CCC’s role as the final arbiter of constitutionality. But the only possibility for the CCC, the SAC stressed, would be to find that the relevant provisions of EU law violated the material core of the Constitution. The SAC therefore provoked the CCC to call revolution, if it wanted to stick to its case law.

When I saw this last SAC’s judgment I did not expect the CCC would do so. It did.

The CCC’s “ultra vires ruling”

The fact that a constitutional court of a Member State of the EU declared a judgment of the CJEU “ultra vires” is not something I would automatically condemn. I have always found presumptuous the writings that stressed the post-communist Member States’ courts’ need to “learn”, or which reacted to some of their judgments, which did not correspond to the CJEU’s orthodoxy, with suspicions concerning the competence of the respective judges, who were said to have “misunderstood” what it entailed to be the EU. The way in which the CCC justified its move, however, is most insulting – not only to the CJEU, whose accommodating gesture was returned by the CCC with a slap in the face, but to anybody who cares about the constitutional arrangements in the EU in general, and the Czech Republic’s place therein in particular.

The core argument put forward by the CCC was that the CJEU applied the Regulation to the legal relationships regulated by the C-S Agreement. In the CCC’s view the Annex to this Regulation lists the provisions of social security conventions which remain applicable differently from the Regulation. The CCC’s case law, creating a special pension increment based on Art. 20 of the C-S Agreement was among those provisions and the Regulation itself, in the CCC’s view provided for such differentiated treatment of Czech nationals.

Unfortunately (for the CCC), the Regulation emphasises that “save as provided in Annex III, the provisions of social security conventions which remain in force … shall apply to all persons to whom this Regulation applies”. Annex III then contains two lists of social security conventions and only those contained in part B of the Annex can provide for a differentiated treatment of certain categories of people”. Article 20 of the C-S Agreement is not amongst them; it cannot, therefore, establish differentiated treatment for certain categories of people.

Moreover, the Regulation of course cannot violate the provisions of the Treaties, including the prohibition on discrimination on the basis of nationality. Thus Regulation No. 647/2005, which amended the Annex, stresses in the fourth recital of its Preamble:

On the basis of the case-law relating to the relationships between Regulation (EEC) No 1408/71 and the provisions of bilateral social security agreements, it is necessary to review Annex III to that Regulation. … In addition, it is not appropriate to accept entries in part B except where exceptional and objective situations justify a derogation from Article 3(1) of that Regulation and from Articles 12, 39 and 42 of the Treaty.

This only confirms that the discrimination found by the CJEU could hardly be justified in case the relevant provision was not expressly mentioned in part B of Annex III (although the CJEU hinted at such a possibility, as mentioned above).

However, the CCC found the very application of the Regulation inappropriate. In its view, “the provisions of Annex III are from the point of view of EU law of declaratory nature only, they are not constitutive; the key consideration for the application of the Regulation is the nature of the legal relationships concerned, which must contain the so called foreign element”. This foreign element was lacking, according to the CCC, since “the periods of employment during the existence of Czechoslovakia cannot be viewed, retroactively, as periods of employment abroad”.

The key passage of the judgment, trying to explain why the CCC considered the CJEU’s ruling ultra vires is the following:

“Not to distinguish legal arrangements following from the dissolution of a state with a single social security system from the arrangements concerning the consequences for social security systems of the free movement of persons in the European Communities, or the European Union, amounts to the failure to respect the European history, it means to compare the incomparable. For this reason it is not possible to apply European law, ie. the Regulation, to the Czech citizens’ claims stemming from social security. Following the principle explicitly stated in its judgment [of 26. 11. 2008, Pl. ÚS 19/08, Lisbon Treaty I], it is not possible to do otherwise than to find in relation to the consequences of the [CJEU’s judgment in the Landtová Case] for similar cases that in its [the CJEU’s] case the situation where an act of an institution of the EU exceeded the competences transferred to the EU by virtue of Article 10a of the Czech Constitution occurred, that an act ultra vires was occurred”.

First, the CCC’s assertion that “the provisions of Annex III are from the point of view of EU law of declaratory nature only” is plainly wrong. In fact the CCC implies that the content of those provisions is to be determined autonomously from EU law – so that they can e.g. be “amended” by a ruling of a national constitutional court, such as the decisions of the CCC ordering the payment of a special increment to Czech citizens negatively affected by the application of Article 20 of the C-S agreement. The truth is that those provisions became part of the Regulation – providing for a special regime within the Regulation and their interpretation thus became a matter of EU law – where the final word lies with the CJEU, not the CCC. This relates to the second argument, already mentioned: that the CCC’s decisions, creating the special increment, established unequal treatment. As such, they would have to be listed in another part of Annex III – but they were not.

Such a misunderstanding could be perhaps understandable, if it did not lead to the finding of ultra vires ruling on the part of the CJEU. While the CCC ornamentally refers to the BVerfG’s rulings concerning the possibilities of its intervention, everybody who has ever had a look at these decisions would know that they are quite different – if only because the BVerfG suggested that it would firstly send a preliminary reference to the CJEU before finding its ruling ultra vires. As one of my colleagues commented on this, well-behaving people firstly try to talk to each other before pressing the trigger. Not the CCC.

Well, the CCC wanted to invent its own way of talking to the CJEU; instead of submitting a preliminary reference the Court sent a letter to the CJEU, where it wanted to explain its case law, as it saw that it was not be properly defended by the Government. The Registry, however, sent the letter back to the CCC, explaining that “according to what is established practice, the members of the CJEU do not exchange correspondence with third parties concerning the cases submitted to the CJEU”.

This apparently insulted the judges in Brno. The CCC “pointed to the deficits concerning the guarantees of the fair trial in the procedure in [the Landtová Case]”. In relation to its rejected letter the CCC “reminded that the CJEU regularly uses the institute of amici curiae in preliminary ruling procedure, in particular in relation to the Commission. in the situation when the ECJ was aware, that the Czech Republic as a party to the proceedings, acting through its government, which rejected the CCC’s opinion, which was the object of the CJEU’s assessment, it is impossible to see the CJEU’s finding that the CCC’s was a ‘third party’ in the case otherwise than a violation of the principle of audiatur et altera pars”.

Leaving aside a truly groundbreaking finding – also constitutional courts enjoy the guarantees of a fair trial! – the CCC demonstrated that it knew rather little about the relevant rules concerning preliminary ruling procedure, whereby the Commission (and the Member State Governments together with other institutions and also the parties to the case before the referring court) are invited to submit observations (Art. 23 of the CJEU’s Statute), no such provision is made for national courts and other institutions. Thus the CJEU’s rejection was fully in line with the rules which govern the procedure before it.

But there is another mystery: why did the CCC want to decapitate itself into the position of a party before the CJEU and complained about the latter’s rejection of its letter, if it had numerous possibilities of sending the reference to the CJEU, including in this case?

Consequences

In the Czech Republic only few people seem to have comprehended what the CCC did, except for the circles close to both courts involved and the Government. The CCC’s judgment contained other problematic elements which I did not have space to deal with (such as declaring the statute adopted by the legislature in response to the Landtová ruling “obsolete”, since the CCC did not have the competence to annul it in this case) and these will have to be discussed by the relevant actors.

One possibility I proposed on the Czech blog mentioned above was to await the change in the CCC’s composition, which is due in the course of this and the following year and try to postpone decisions in cases that deal with the same problem until this change. Some people suggest that the SAC should either simply ignore the CCC or to send another reference to the CJEU asking it on the effect of the CCC’s finding that the former’s ruling was ultra vires (what could the CJEU say?) It remains to be seen what (if anything) the reaction of the EU will be.

Jan Komarek is a lecturer in EU law at the London School of Economics and Political Science.

This post originally appeared in the Verfassungsblog, and is reposted here with thanks. 

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by | February 18, 2012 · 9:28 am

Armin von Bogdandy, Matthias Kottmann, Carlino Antpöhler, Johanna Dickschen, Simon Hentrei and Maja Smrkolj: A Rescue Package for EU Fundamental Rights – Illustrated with Reference to the Example of Media Freedom

Fundamental rights protection, once a side show, has become important for the EU, as proved by the newfound treaty recognition of the EU fundamental rights charter (CFREU), and the upcoming accession to the European Convention on Human Rights (ECHR). At the same time the fundamental rights situation in a considerable number of Member States is an increasing cause for concern. This has mostly been illustrated with reference to minorities and asylum seekers. However, recent reports of organizations like the Council of Europe, the OSCE and various NGOs have also highlighted serious problems with regard to media freedom, such as overt political influence, media concentration, disproportionate sanctions on journalists, misuse of counter-terrorism legislation against the press, deficient protection of journalistic sources and failure to investigate violence against reporters.

While the Union is supposed to promote fundamental rights around the world (Article 21 TEU) and intensely scrutinizes the respective situations in candidate countries (Article 49 TEU), there is scant action so far in case of serious fundamental rights violations in Member States. In this respect, the defense of the Union’s foundational values (Article 2 TEU) is largely left to national and international institutions. The Commission, which is supposed to be the ‘Guardian of the Treaties’, seems reluctant to fully protect fundamental rights and rather prefers to concentrate on less sensitive ‘technical’ issues of the internal market. The assertion that the scope of EU fundamental rights protection is strictly limited is omnipresent.

Such a restrictive approach has traditionally been explained by concerns for the constitutional identity of the Member States. As the respective experience undergone by the USA shows, central enforcement of one single set of fundamental rights against member state action bears the risk of centralization. For this reason, the Charter of Fundamental Rights does not generally apply to the Member States but only “when they are implementing Union law” (Article 51(1) CFREU). This does not mean that there is a legal vacuum beyond the Charter’s scope: According to Article 2 TEU the Member States are bound to “respect for human rights”. Enforcement of this obligation is subject to a political decision (Article 7 TEU). However, this mechanism has severe drawbacks. Firstly, by its very nature it involves considerations of political opportunity which arguably might lead to a habit of mutual indulgence amongst Member States governments: The prevailing unwillingness to initiate the Article 259 TFEU procedure can serve as an illustration. Secondly, the negative experience of the Haider affair has apparently led to a considerable inhibition threshold.

The lack of credible enforcement mechanisms not only undermines the Union’s legitimacy in the eyes of the individuals affected, it is also of systemic concern: A massive deterioration of fundamental rights protection in some Member States might eventually threaten fundaments of European integration, namely the principle of mutual confidence and the premise that the Union can rely on the functioning polities of the Member States. Democracy in the Union would be seriously affected if Union citizens were hampered in expressing their opinions in or informing themselves via independent media. It is not surprising that the Court of Justice of the European Union (CJEU) itself has searched for a way to ensure fundamental rights protection by stretching the “scope of Union law” in which EU fundamental rights apply to the Member States. This jurisprudence has however not offered a satisfactory solution: On the one hand it is far from addressing the most problematic situations, on the other hand it has sometimes transgressed the limits of what is doctrinally justifiable.

In this light we argue for an innovative approach to EU fundamental rights protection with regard to Member State action. Our proposal is to open up “respect for human rights” set out by Article 2 TEU for individual legal actions via Union citizenship. This might come as a surprise given that today – despite the famous opinion by AG Jacobs in Konstantinidis – citizenship and fundamental rights are usually treated as distinct concepts. There is, however, a close historic and teleological connection: Both discourses developed around the same period in reaction to the pressing legitimacy question. Citizenship and fundamental rights are therefore two mutually strengthening concepts which essentially pursue the very same objective, i.e. to bring the Union closer to the individual. In systematic terms this is also reflected in today’s positive law in that the Charter of Fundamental Rights not only contains the so-called citizens’ rights but also refers to citizenship as a whole (2nd consideration). Finally, if Union citizenship is to be taken seriously, it cannot be completely separated from fundamental rights questions: In theory it would seem odd to exclude the -literally- most fundamental rights in EU law (cf. Article 2 TEU) from the “fundamental status” of the citizen. In practice effective exercise of Union citizenship is often heavily dependent on fundamental rights.

Our doctrinal starting point is the “substance” of Union citizenship which the CJEU in Ruiz Zambrano has held to apply even to purely internal situations. According to the Court “Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union”. What emerges from this reasoning is that the CJEU views Union citizenship not only as a bunch of transnational free movement rights but as a truly “fundamental status” which the Union is called to protect against particularly serious encroachments. We argue that this rationale serves as a link between EU citizenship and fundamental rights: Even in purely internal situations the “substance” of Union citizenship precludes violations of fundamental rights that amount to emptying the “fundamental status” of its practical meaning.

How can one frame this in concreto? We propose that inspiration should be drawn from the German Federal Constitutional Court’s Solange-doctrine. As is well known, the Karlsruhe Court no longer exercises its competence to control EU secondary law as long as the Union ensures fundamental rights protection which is “essentially similar to the protection of fundamental rights required unconditionally by the Basic Law.” This is further defined by the requirement to “generally safeguard the essential content of fundamental rights” and operated as a presumption to be disproved by the claimant. We argue that this two-pronged test should be taken up by the CJEU and turned towards the Member States: Outside the Charter’s scope of application a Union citizen cannot rely on EU fundamental rights as long as it can be presumed that their respective essence is safeguarded in the Member State concerned. However, should this presumption be rebutted, the “substance” of Union citizenship – within the meaning of Ruiz Zambrano – comes into play. On this basis Union citizens can seek redress before national courts and the CJEU.

As regards the first prong, the essence of fundamental rights is set out in Article 2 TEU as one basic condition for the exercise of public authority in the European legal space, be it by the Union or by the Member States, and as such is not limited to the scope of the CFREU. Its content however is far more restricted than the full range of fundamental rights protection enshrined in Article 6 TEU and the CFREU. This can be drawn inductively from the jurisprudence of the ECtHR, the CJEU and national constitutional courts: With regard to media freedom it only precludes measures inhibiting political speech or debates on questions of public interest.

The second prong is based on the principles of subsidiarity and respect for national identities (Articles 4(2) and 5(1) TEU). In this light it can and should be assumed that the national systems of fundamental rights protection comply with their obligations arising out of Article 2 TEU. How can this presumption be rebutted? Not by simple and isolated fundamental rights infringements. Instead, one has to look for violations of the essence of fundamental rights which in number or seriousness account for systemic failure and are not remedied by an adequate response within the respective national system. Such violations not only put into question the basics of the European legal space but also deprive Union citizenship of its practical meaning. This threshold is not to be mistaken as instrumentalizing the individual for general purposes but seen as focusing on these cases which demand EU intervention. Further guidance for interpretation can be taken from the criterion of a “serious and persistent breach” in Article 7(2) TEU. Conceivable examples therefore include the refusal to abide by a final judgment of the ECtHR in a domain that touches upon the essence of fundamental rights, the defiance, bypassing or intimidating of domestic courts in such cases or intentional, reckless or evidently illicit conduct of highest state authorities.

Put into practice our proposal could then work as follows: If a national of a Member State feels that her rights have been violated she would turn to the national judge. In court she could rely on the domestic (and possibly ECHR) standard of fundamental rights protection. Outside the scope of the CFREU she could not invoke EU fundamental rights, nor could she rely on Union citizenship to claim a violation of Article 2 TEU unless the presumption of compliance was rebutted. However, in case of systemic violation of the essence of fundamental rights the “substance” of Union citizenship, within the meaning of Ruiz Zambrano, would be activated as a basis for her redress. First of all it would be up to the national court to establish the facts and to apply the respective provisions of Union law. Yet, according to Article 267 TFEU the latter would be enabled and, in a case of last instance, by and large obliged to refer to the CJEU for a preliminary ruling on the interpretation of Articles 2 TEU and 20 TFEU.

At this point one can already hear critics shout: “ultra vires”. Our proposal, they might argue, would breach the federal order of competences emphatically underscored in Article 51 CFREU. In our view however this criticism is not persuasive: Firstly, our proposal does not extend the scope of the CFREU beyond the limits of Article 51 but merely implies better enforcement of the essence of fundamental rights enshrined in Article 2 TEU. It is beyond question that the latter binds any exercise of public authority by the Member States and can be enforced by the EU under Article 7 TEU. Therefore our approach neither creates new and unexpected obligations for the Member States nor adds new competences for the Union as such; only the Organkompetenz of the CJEU, but not the Verbandskompetenz of the EU is affected.

Secondly, while the former Treaties have kept the EU’s foundational principles out of the reach of the CJEU the Lisbon Treaty subjects Article 2 TEU to the Court’s jurisdiction and thus to its mandate to ensure that “the law is observed” (Article 19(1) TEU). Our proposal would therefore not constitute an unwarranted arrogation of institutional powers but simply put flesh on what has already been laid down by the framers of the Treaties. It resembles the famous Van Gend en Loos line of jurisprudence inasmuch as it complements a centralized enforcement mechanism with “the vigilance of individuals concerned to protect their rights” and interjudicial cooperation. This not only has the well-known advantage of combining the interpretative rulings of the CJEU with the authority and enforceability of domestic court decisions. Arguably, it can also provide national judges with some backing from the side of Union law through the voice of the CJEU speaking on behalf of a Union founded on respect for human rights. Hence, one could say that our proposal ultimately aims at strengthening domestic courts in critical situations.

An extended version will be published in the Common Market Law Review.

This post originally appeared in the Verfassungsblog, and is reposted here with thanks. 

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by | January 19, 2012 · 8:11 am

Paul Yowell: EU Act 2011: Law and Politics

The European Union Act 2011, which received royal assent in July of last year, could have important implications for several aspects of the UK constitution, including the UK’s relationship with the EU, the understanding of parliamentary sovereignty, the question of ‘manner and form’ restraints on Parliament, and the role of public referenda in the UK. The Act and some of these questions were discussed on this site recently by Mike Gordon. My post will not address parliamentary sovereignty but will focus on precisely what triggers the Act’s requirement that certain changes to EU treaties must be approved by referendum in order to be ratified, and speculate on whether the Act played a role in David Cameron’s decision to veto proposed treaty changes at the EU summit in December.

The main purpose of the EU Act 2011 is to place a ‘referendum lock’ on any further transfers of power from the UK to the European Union. This is how the Conservative Party manifesto in the last election described the proposal that led to the Act. The Liberal Democrats acquiesced to this pledge in the coalition agreement, which promised ‘no further transfer of sovereignty or powers over the course of the next Parliament’, and to ‘amend the 1972 European Communities Act so that any proposed future treaty that transferred areas of power, or competences, would be subject to a referendum on that treaty’. The EU Act 2011, however, is worded not in terms of transfers of power but in terms of extension of the competence or objectives of the European Union and decrease in the voting power of the UK in certain situations, with an exception for treaty changes that do not apply to the UK. Section 2 of the Act provides generally that treaties amending or replacing existing EU treaties may not be ratified unless the public approves proposed changes in a referendum, and section 3 applies the same rule to ministerial approval under the simplified treaty revision procedure under TEU art. 48(6).  Section 4 describes several situations which trigger the referendum requirements of sections 2 and 3, including:

(a) the extension of the objectives of the EU as set out in Article 3 of TEU;

(b) the conferring on the EU of a new exclusive competence;

(c) the extension of an exclusive competence of the EU;

(d) the conferring on the EU of a new competence shared with the member States;

(e) the extension of any competence of the EU that is shared with the member States;

(f)  the extension of the competence of the EU in relation to—(i) the co-ordination of economic and employment policies, or (ii) common foreign and security policy;

(g) the conferring on the EU of a new competence to carry out actions to support, co-ordinate or supplement the actions of member States;

(h) the extension of a supporting, co-ordinating or supplementing competence of the EU;

(i)  the conferring on an EU institution or body of power to impose a requirement or obligation on the United Kingdom, or the removal of any limitation on any such power of an EU institution or body;

(j)  the conferring on an EU institution or body of new or extended power to impose sanctions on the United Kingdom;

(k) any amendment of a provision listed in Schedule 1 that removes a requirement that anything should be done unanimously, by consensus or by common accord …

Describing the Act as applying to transfer of power suggests a simultaneous increase of EU power and removal of UK power; but according to the terms of the Act itself, almost any extension of EU competence, including in areas of competence shared with the member states, is caught by section 4. The areas of shared competence include the internal market, economic and social cohesion, consumer protection, the environment, and other areas listed in TFEU art. 4.

Section 4(4) of the EU Act 2011 provides further that a treaty change ‘does not fall within this section merely because it involves one or more of the following—(a) the codification of practice under TEU or TFEU in relation to the previous exercise of an existing competence; (b) the making of any provision that applies only to member States other than the United Kingdom; (c) in the case of a treaty, the accession of a new member State’ (italics added). If any of the three conditions obtain, the treaty change is not sufficient to trigger the referendum requirement; however, a referendum would not necessarily be excluded in such a situation. Thus the government is not obliged to hold a referendum if it agrees to a change to the EU treaties that does not apply to the UK.

At the summit to deal with the crisis in the eurozone that was held December 7th-9th, EU leaders agreed to proposals to amend the treaties to adopt new rules and procedures promoting fiscal stability and discipline. These included more stringent limitations on sovereign debt and enhanced oversight and enforcement mechanisms, which give greater control over national budgets to Brussels; the fiscal discipline rules are obligatory for eurozone members and optional for other member states. But fiscal discipline is not all that was on the table. At the start of the summit on 7 December, Angela Merkel and Nicholas Sarkozy sent a joint letter to Herman von Rompuy, President of the European Council, outlining a plan that included new financial regulation and taxes. Calling for a ‘new common legal framework’ they stated:

‘We need to foster growth through greater competitiveness as well as greater convergence of economic policies at least amongst Euro Area Member States. To these aims, building on Article 136 and/or on enhanced cooperation, a new common legal framework, fully consistent with the internal market, should be established to allow for faster progress in specific areas such as:

• Financial regulation;

• Labor markets;

• Convergence and harmonization of corporate tax base and creation of a financial transaction tax …’

The agreement that EU leaders signed on 9 December did not explicitly mention regulation or taxes but referred to ‘enhanced governance’ to foster a ‘deeper integration in the internal market’:

‘The stability and integrity of the Economic and Monetary Union and of the European Union as a whole require the swift and vigorous implementation of the measures already agreed as well as further qualitative moves towards a genuine ‘fiscal stability union’ in the euro area. Alongside the single currency, a strong economic pillar is indispensable. It will rest on an enhanced governance to foster fiscal discipline and deeper integration in the internal market as well as stronger growth, enhanced competitiveness and social cohesion.’

It was reported that David Cameron’s chief demand at the summit negotiations was to protect Britain from new financial regulations and restore certain points of regulation to a unanimous voting rule. Under current rules, the financial transaction tax championed by Merkel and Sarkozy is subject to a unanimity rule, giving the UK a veto. Regulation, however, comes under the rule of qualified majority voting.

When his demand was not met, Cameron refused to agree to the treaties, exercising an effective veto, meaning that the proposed changes on fiscal discipline would have to proceed, at least for now, as an inter-governmental agreement rather than as part of the EU treaties. Eurosceptics hailed the veto as bold and prudent and rewarded Cameron with a bump in the polls. (The British public is in a sceptical mood; a recent YouGov survey found that 43% would vote to leave the EU and 36% would vote to stay.) Critics claimed that British diplomatic efforts at the summit lacked preparation and skill, and that Cameron’s veto will prove counter-productive. Under current voting rules Britain has had strong clout and has generally been able to prevent new regulations it opposed. Cameron’s move may usher in a new era in which Britain finds itself in a weakened bargaining position or frozen out of key discussions, as the result of anger at the veto of the treaty in a time of crisis. Sarkozy claimed that Cameron was trying to ‘create an offshore zone in the heart of Europe’. The Economist is broadly sympathetic with Cameron’s aim; a leader titled ‘Save the City’ and accompanying article argue that the greatest threat the City faces is from new regulation (both from Brussels and homegrown). But the magazine concludes that because of the self-defeating nature of the British veto, Cameron’s aim was not so much to protect the City as ‘to avoid having to sell a more integrated Europe to Tory Eurosceptics’.

I would like to venture a somewhat different explanation of Cameron’s veto that figures in the dynamics of the EU Act 2011. Let us suppose that The Economist’s diagnosis is correct: the best way to safeguard British interests with regard to regulation would have been to maintain its clout at the negotiating table; hence it would have been in Britain’s national interest to sign the treaty agreement at the summit’s end, and to reserve that possibility as part of a sound negotiating strategy. The treaty change may well have been a hard sell to Tory Eursceptics; 81 of them rebelled in a backbench motion in December calling for a referendum on Britain’s position in the EU.  But because of the EU Act 2011, Cameron may have been faced not only with persuading his backbench but with the prospect of a mandatory referendum. While the treaty changes regarding fiscal discipline did not apply to Britain, signing the summit agreement would have set in motion a process that could result in extension of EU regulatory power as called for by Merkel and Sarkozy. The documents reflecting Britain’s position at the summit are not public, so we do not know precisely what aspects of financial regulation Cameron was seeking to safeguard with his demand for unanimous voting, or exactly how he proposed to do so. But it seems possible that his demands would have been formulated with a view to avoid triggering the referendum requirement in the EU Act 2011. Such a referendum might well have ended in an embarrassing defeat for Cameron, given the public’s eurosceptic mood. Perhaps Cameron vetoed the treaty in part to avoid the possibility of a referendum under the Act.

Foreign Secretary William Hague is well-acquainted with the details of the Act. He proposed the idea behind it at the Conservative Party conference in 2010, and, when addressing the Commons at the time of the Eurosceptic rebellion, relied on the Act as the centerpiece in his argument against having a referendum on leaving the EU altogether. We can assume that Cameron’s team at the EU summit was monitoring negotiations and proposals for their potential to trigger the referendum requirement of the Act.

Whatever the accuracy of the above speculations about British national interests and Cameron’s motive for the veto, they serve to highlight a potential negative consequence of the EU Act 2011 raised during scrutiny by the House of Lords. Several Lords pointed out that the bill would tie British hands in treaty negotiations. The Act is very broadly phrased to catch virtually any extension of EU competence or objectives unless it applies only to states other than the UK. But the EU treaties already define EU competence and objectives in broad terms, and rely mainly on the principle of subsidiarity in TEU art. 5 to protect member state sovereignty. Given the complex institutional structure of the EU, and the detailed scheme of exclusive and shared competences, it might be in the British interest at a summit to agree to a treaty that nominally extends EU competence in a certain area but also includes restraints or institutional mechanisms that safeguard British concerns. The EU Act 2011, for better or worse, limits the power of leaders and diplomats in such a situation to make decisions and the promises that may be needed to secure concessions, and delegates authority to the people acting through a referendum.

    Paul Yowell is a Lecturer in Law at New College, Oxford. 

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by | January 12, 2012 · 4:42 pm

Mike Gordon: The European Union Act 2011

The European Union Act 2011 (EUA) is an unprecedented constitutional experiment.  This post will outline the two main innovations of the Act: (1) the section 18 ‘sovereignty’ clause; and (2) the scheme of ‘referendum locks’ introduced in sections 2, 3 and 6.  Three key questions raised by the EUA for UK constitutional lawyers will then be identified, and some tentative responses to these questions sketched.  The post draws on an article written in collaboration with my colleague Michael Dougan, which is to be published in the February 2012 edition of the European Law Review.

(1)  The ‘sovereignty’ clause

The provision contained in section 18 of the EUA was originally projected to be a ‘sovereignty’ clause, intended to reaffirm the sovereign character of the legislative power of the UK Parliament.  Yet the final text of the provision enacted in the EUA is no ‘sovereignty’ clause at all; instead, section 18 simply confirms the narrower point that the status of EU law within the UK is ultimately dependant on its continuing statutory basis.  In other words, section 18 maintains that EU law is effective and supreme over other domestic norms because an Act of Parliament, the European Communities Act 1972, makes it so.

(2)  The ‘referendum locks’

The ‘referendum locks’ introduced in sections 2, 3 and 6 of the EUA form part of a broader system of control over the making of various decisions related to the EU.  While the Act provides that some categories of decision must be approved by Act of Parliament (see e.g. section 7), and others merely subject to Parliamentary Approval (see e.g. section 10), the ‘referendum locks’ are the EUA’s most demanding control mechanism.

The locks provide that certain decisions can only be lawfully authorised by an Act of Parliament which makes the subsequent effectiveness of the decision contingent on whether it has been approved by a majority of the electorate voting in a referendum.  The range of situations in which the EUA requires a referendum to be held to authorise action to be taken in relation to the EU is remarkably broad.

Section 2 covers any treaty amending or replacing the existing EU Treaties, although a treaty which does not transfer power or competence from the UK to the EU, in accordance with section 4 of the EUA, will be exempt from the requirement that a referendum be held.  Section 3 covers changes to the existing EU Treaties made using the ‘simplified revision procedure’ under Article 48(6) TEU, although again, a referendum may not be required if the treaty is exempt from the criteria set out in section 4, such that power or competence is not transferred from the UK to the EU.  In relation to section 3 only, a significance test may also be applied in relation to some specific types of transfer of power or competence, with those that are not significant to the UK failing to attract a referendum under the Act.

Section 6, in contrast, sets out a series of trigger events, which will automatically require approval by Act of Parliament and at a referendum.  Most of these trigger events relate to changes in the EU’s voting rules – in particular, certain extensions of QMV – but a number of specific decisions which would significantly affect the UK-EU relationship (such as joining the euro, the removal of border controls under the Schengen Protocol, or participation in a European Public Prosecutor’s Office) would also attract a referendum under section 6.

Three Key Questions Raised by the EUA

The two elements of the EUA highlighted above clearly raise a number of important constitutional issues, for section 18 seeks to clarify the status of EU law within the UK, while the scheme of referendum locks contained within the Act purports to ensure that future transfers of power or competence to the EU from the UK will take effect subject to approval at a national referendum.  Yet there are three key questions which are worthy of particular attention.

 (i)   What is the impact of the EUA on the sovereignty of Parliament?

When the changes incorporated in the EUA were first proposed, it might have been thought that section 18 would have been of greater importance to our understanding of the current status of the doctrine of parliamentary sovereignty.  After all, section 18 was to be a ‘sovereignty’ clause, and could have required a range of interesting problems to be confronted.  Could a sovereign Parliament legislate to confirm its own sovereignty?  What practical effect would such a clause have on the courts and other constitutional actors?

Yet in its ultimate incarnation, section 18 raises few such issues; indeed it tells us little we did not already know from the famous judgment of Lord Bridge in Factortame (No. 2) [1991] 1 A.C. 603.  Section 18 implies that Parliament remains sovereign, for the domestic supremacy of EU law fundamentally depends on an Act of Parliament.  If this is the case, section 18 seems to invite us to infer, the supremacy, and indeed effectiveness, of EU law within the UK could be withdrawn by an Act of Parliament.  This is, however, far from revolutionary, and section 18 arguably therefore emerges as a useful reminder at best, and somewhat of a distraction at worst.

More controversial by far are the EUA’s referendum locks.  For here, it seems, is a Parliament moving away from Dicey’s constitutional orthodoxy, and attempting to bind its successors as to the manner and form of future legislation.  Whether the referendum locks will be viewed as legally binding ultimately depends on what perspective is taken:  those who follow Wade’s line that Parliament cannot alter the political fact of its sovereignty will believe such statutory conditions to be unenforceable, whereas those who are persuaded by Jennings and Heuston’s alternative understanding of legally unlimited legislative power may be convinced that Parliament has made a valid alteration to the future law-making process.

It is not easy to predict which view will prevail.  Nevertheless, the rhetoric surrounding the Act – in particular the very language of ‘locks’ – coupled with the failed attempt to insert a sunset clause into the legislation as it passed through the House of Lords (which implies that such a clause would have be needed to cause the referendum requirements to lapse) provides some evidence that the government may have induced Parliament to bind its successors to an altered future manner and form, even if this was not explicitly acknowledged.  Perhaps, then, the EUA can be seen as building on the decision of the House of Lords in Jackson [2005] UKHL 56, and confirming a modern shift to the manner and form understanding of parliamentary sovereignty.

Of course, even if this is accepted, it is crucial to note that the EUA’s referendum locks will only bind future Parliament’s for as long as they remain on the statute book.  These locks are in no sense entrenched, and could doubtlessly be expressly repealed in a future Act.  Nonetheless, the political cost of so doing may be high, due, for example, to the difficulties inherent in justifying to citizens the removal of legal rights to popular participation.  And it is for this reason that it will still be important to establish whether or not the EUA’s referendum locks can be reconciled with the sovereignty of Parliament; if they cannot, and the manner and form conception of the doctrine is rejected, the locks can be readily disregarded by future governments, as they will be impliedly repealed by any Act of Parliament authorising action in relation to the EU that the EUA would otherwise purport to control.  For a government to adopt such a strategy would be risky, creating considerable uncertainty pending the outcome of any legal challenge, while potentially appearing disingenuous to the public, and as such, it might be prudent for a manner and form understanding of the EUA to be embraced on pragmatic grounds.

(ii) What will be the impact of the EUA on the UK-EU relationship?

It is difficult to predict what impact the EUA will have on the relationship between the UK and the EU, but a number of factors suggest that this impact is not likely to be positive.  The system of referendum locks introduced by the EUA goes much further than any equivalent regime in any other Member State.  To some extent, then, the UK has set itself up as an exception in comparison to its fellow EU members, a fact which is unlikely to win the UK friends in Brussels if the effect of the locks is to obstruct future reform.  Such obstruction could occur through a failure to win a required referendum in relation to a specified revision of the EU Treaties, or a government simply refusing to agree to proposed changes to avoid even holding a referendum in the first place.

Indeed, while potentially disruptive to the EU, it is not hard to see why a future government would adopt such an attitude.  The EUA might require the holding of referendums on a range of esoteric issues (a referendum would need to be held, to give one example, to allow the Council to act by qualified majority, rather than unanimously, when making changes to the list of military products exempt from internal market provisions pursuant to Art 346 TFEU).  It would be very difficult even for well informed citizens to engage with such issues, and it is therefore possible that the outcome of the referendums would be determined by a smaller number of groups and individuals with strong preordained views about the EU.  Perhaps any such referendum would essentially morph into an ‘in-or-out’ referendum on the EU – a matter which, surprisingly, the Act does not provide for.

It thus remains to be seen whether the EUA will contribute to the UK becoming sidelined within the EU.  Yet with the government seemingly willing to veto revision of the EU Treaties even where the Act’s referendum locks would not have been legally engaged – as would appear to be the case in relation to the UK’s refusal to agree at the negotiations in Brussels in December 2011 to a revision of the EU Treaties to incorporate a ‘fiscal compact’ among other things – the EUA could well exacerbate the UK’s increasing isolation.

(iii)        What does the EUA tell us about the place of referendums in the UK constitution?

The EUA offers further evidence of the growing importance of referendums in the UK constitution.  Referendums are clearly a versatile democratic tool, having recently been used to give citizens an opportunity to determine whether to adopt the AV voting system for elections to the House of Commons (and simultaneously enabling a political disagreement between coalition partners to be bypassed), while a referendum of some kind on Scottish independence, effecting the right to self-determination, looms on the horizon.  In the EUA, in contrast, referendums are used as a ‘lock’, to inhibit the freedom of action of the government of the day in particular, but also to block the extension of the power and competence of the EU with respect to the UK (and perhaps even the expansion of the EU more generally).

The value and importance of the referendum as a constitutional device can thus be recognised, while nevertheless acknowledging genuine concerns about the use made of the mechanism in the EUA.  The scope of the EUA’s referendum locks can be criticised as excessive:  this could produce voter fatigue if frequent referendums are held on marginal issues.  If turnout to vote in such referendums is low, the legitimacy both of the actual decisions reached, and direct democracy more broadly, could be questioned.

Further, it is not altogether clear why the UK’s relationship with the EU is singled out for special treatment –  if referendums are to be guaranteed here, should they not also be guaranteed in relation to fundamental changes to the UK’s own internal constitutional arrangements?  While the focus on the UK-EU relationship can be explained by party political preoccupations, this does not mean it is justified.  Ultimately – as with all matters discussed in this post – it will take time to discern the impact of the EUA on UK constitutional practice relating to referendums.  Yet the fact that the EUA does not make good use of referendums should be seen as a flaw of the Act, and not of direct democracy itself.

 

Mike Gordon is a Lecturer in Law at Liverpool Law School, University of Liverpool

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by | September 10, 2011 · 11:38 am

Nick Barber: The Commission on the Human Rights Act and the European Court of Human Rights.

The Commission tasked with suggesting reforms to the structure of rights protection in the United Kingdom has sent a letter to the Government outlining its interim advice for reforming the European Court of Human Rights.

Drawing attention to the long delays experienced by litigants, and the heavy workload of the Court, the Commission suggests, amongst other things:

-              that the Government should seek to ensure that the European Court of Human Rights is called upon only to address those cases that raise serious questions affecting the interpretation or application of the Convention and serious issues of general importance;

-              the Government should seek to ensure the establishment of a new and effective screening mechanism that allows the Court to decline to deal with cases that do not raise a serious violation of the Convention;

-              the Government should seek to ensure that a programme of fundamental reform establishes agreement on appropriate objective and merit-based principles and rules, and adequate resources, for the selection of judicial candidates at the national level, and for the appointment process at the European level.

It has also sent a letter that surveys, more generally, the areas which it proposes to consider over the next month or so.  The reaction to, and context of, these letters is discussed in a post on the UK Human Rights Blog.

The Commission’s early focus on the European Court of Human Rights is unsurprising.  In its terms of reference, the Commission is required to advance proposals for reform that ‘incorporates and builds on all our obligations under the European Convention of Human Rights, [and] ensures that these rights continue to be enshrined in UK law’.  As both Mark Elliott and Roger Masterman have argued, this places a significant constraint on the latitude of the Commission.   It requires that the rights contained in European Convention on Human Rights are protected and, moreover, that effect is given to the interpretation of these rights provided by the European Court of Human Rights.

The interim proposals of the Commission appear to have two objectives.  First, and most explicitly, a desire to protect the Court by reducing the number of cases that it is required to hear.  Second, and perhaps more interestingly, a slight widening of the scope given to national courts to place their own interpretation on the rights contained in the Convention by excluding cases that do not raise ‘serious’ violations – though the meaning of ‘serious’ is unclear.

In its discussion of the role of the European Court of Human Rights, the Commission should, perhaps, have also addressed the tricky question of the interaction of domestic law, Convention law, and European Union law.  The coming into force of the EU Charter of Rights, discussed by Dorota Leczykiewicz last month, and the proposed accession of the European Union to the European Convention is likely to create a legal quagmire.

There are now three bills of rights – Human Rights Act, the European Convention on Human Rights, and the EU Charter of Rights – and three courts competing, in some areas at least, for supremacy in rights jurisprudence – the UK Supreme Court, the European Court of Human Rights, and the Court of Justice of the European Union.  The Human Rights Act and the European Convention are closely related – the Human Rights Act incorporates the Convention into domestic law – but they are different legal documents, and may be accorded different interpretations over time.  It is quite hard to see how this tangle of legal relationships will be worked through.   Though I am a constitutional lawyer rather than a specialist in human rights law or European law, I thought I might have a try at teasing out some of the connections.

First, a British statute that contained an element of European Law could be challenged in the British courts using the Human Rights Act and (probably) under the EU Charter of Rights.  These two documents contain different articulations of similar rights, and possess different legal force.  The British court should consider decisions of the European Court of Human Rights on the Convention in interpreting both of these documents.

Secondly, a litigant might persuade a British court to make a reference to the Court of Justice of the European Union.  The Court of Justice would, presumably, use the European Convention to interpret the Charter, and then apply the Charter to the piece of European Law that lay behind the British statute, and to the British statute itself.  The Court of Justice would also apply Convention rights directly to each of these instruments, as it regards Convention rights as part of the ‘general principles of European law’.

Thirdly, if the litigant was unhappy with the decision of the Court of Justice she could apply to the European Court of Human Rights for review of the decision.  The European Court of Human Rights would assess the compatibility of European Law with Convention Law.  It is unclear how the Court of Justice would respond to decisions of the European Court of Human Rights, especially if the decision ran contrary to the economic rights contained in the European Treaties.

Fourthly, the litigant might also apply for review by the European Court of Human Rights of domestic law.  The litigant could argue that the British courts’ interpretation of the Human Rights Act failed to protect her Convention rights, and/or that the British court’s adherence to the decision of the European Court of Justice on the application of the Charter, or the European Court of Justice’s interpretation of Convention rights, failed to protect her Convention rights.

I apologise for the complexity of the last few paragraphs – and I hope that specialists in human rights law and European law reading this blog will correct any errors I have made.  The point of the discussion was to show how convoluted rights protection risks becoming in the United Kingdom.  And, unless you are a practicing lawyer in need of work, this painful complexity is not something to be welcomed.  There is a strong argument to be made for simplicity in constitutional arrangements: the basic structures of legislation and rights protection should be easy to understand and clear.

It could be that, despite its limited terms of reference, the Commission should think more broadly about the role that international courts should play in our constitution, and the number of different bills of rights we need.  To steal a quip from another context, whilst one bill of rights shows caution, three suggests panic.

 

Nick Barber is a Fellow of Trinity College Oxford.

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by | August 4, 2011 · 1:08 pm

Dorota Leczykiewicz: The EU Charter of Fundamental Rights and its effects

The binding nature of the Charter

The life of the EU Charter of Fundamental Rights  began in December 2000 at the Nice European Council Summit, when the Charter was politically approved after having been solemnly proclaimed by the European Commission, the Parliament and the Council. For nine years the Charter lived only as a declaration. The Court of Justice of the EU referred to it on a few occasions, but its presence never actually affected the outcome of any case. The Charter was never used in a controversial manner and never with clear legal implications. As a result, human rights in the EU continued to be protected as unwritten ‘general principles of law’, presupposed to be common to constitutional traditions of the Member States of the EU or embodied in certain international instruments, the most important of which was the Strasbourg Convention for the Protection of Human Rights and Fundamental Freedoms. Consequently, in the UK the Strasbourg Convention had a double life – on the one hand, it was transposed by the Human Rights Act 1998, and on the other, it served as a source of ‘general principles’ of EU law, enforceable in UK courts in a manner envisaged by the European Communities Act 1972 and the doctrines of EU law.

The Treaty of Lisbon which entered into force on 1st December 2009 has changed the legal landscape of human rights protection in the EU. The amended Article 6(1) of the Treaty on the European Union states that:

The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.

The above statement is of course very ambiguous. On the one hand the Charter does not form part of the Treaties, but on the other it is attributed the same legal value as the Treaties. In that sense it should be regarded as part of ‘primary law’ of the EU with which EU legislation should be in compliance. Equally, the Charter should form part of the concept of ‘the Treaties’ as referred to by the European Communities Act 1972, now amended by the European Union (Amendment) Act 2008. This means that all rights to which the Charter gives rise to, if in accordance with EU law they are meant to be given legal effect, ‘shall be recognised and available in law, and be enforced, allowed and followed accordingly’ in the UK (s. 2(1) of the 1972 Act).

 

The UK/Polish Protocol to the Charter

However, the UK and Poland have decided to add a protocol to the Treaty of Lisbon which is intended to regulate the effects of the Charter within their domestic legal orders. Interestingly, the first article of that protocol stipulates that the Charter does not extend the ability to find inconsistency between UK and Polish laws and the Charter, a qualification that not only applies to Polish and UK courts, but also to the Court of Justice of the EU. The formulation of this article is a bit unfortunate. It does not specify in comparison with what the ability of the courts should not be extended. The EU Court has never had the formal competence to assess national laws and practices. In practice the EU Court reviews national provisions only indirectly, by interpreting the Treaties, the EU legislation, and now also the Charter. This power has not been taken away from the EU Court by the Protocol with respect to UK and Polish laws, and will undoubtedly be exercised by that Court if an opportunity arises. As for the consequences of finding incompatibility of domestic rules with EU law, as an implication of a particular interpretation of the Charter taken by the EU Court, these are specified by ‘general’ EU law. They can range from disapplication of the conflicting national rule (the so called Simmenthal effect, which English law has had the chance to feel quite dramatically in the Factortame case), through the alternation of traditional interpretation of national law to make its meaning compliant with EU law (the so called indirect effect), to application of EU norms in the place of conflicting provisions of national law. Because doctrines which lay down the above consequences pre-exist the Lisbon Treaty, their use by UK courts will not require any ‘extension’ of their ability to review domestic laws and practices. Other consequences of incompatibility of national laws with EU rights are regulated by the principle of ‘national procedural autonomy’, and, subject to the requirements of non-discrimination and practical possibility, remain within the province of national legal orders. In that regard the Charter only confirms the long-established principle of ‘effective judicial protection’ in the form of a right to an effective remedy (Article 47). Given the wording of Article 1(1) of the Protocol it would be difficult to maintain that it was this provision and its consequences for national autonomy with respect to remedies and procedures available to victims of EU rights violations, from which the UK and Poland wished to derogate.

What follows is that for all practical purposes Article 1(1) of the Protocol seems to be empty of content. Because reviewability of national laws and practices had never been regulated by the ‘written’ sources of EU law (the Treaties, protocols, etc.) and the Charter says nothing specifically about this issue, it may not affect the pre-existing unwritten systemic principles of EU law, and the Protocol which concerns only the Charter is equally unable to control the Charter’s consequences in that matter. For this reason the Charter is likely to have in the UK exactly the same force as any other EU act of primary law, and its practical effects will depend on the content of Charter provisions and the general doctrines of EU law.

From among the substantive provisions of the Charter, those included in Title IV entitled ‘Solidarity’ have received special attention of the UK and Polish governments. Section 2 of Article 1 of the Protocol states that ‘nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.’ Title IV contains inter alia such rights as the right to collective bargaining and action, to protection in the event of unjustified dismissal, to fair and just working conditions and to preventive health care. The Union also recognises in other provisions of this Title the prohibition of child labour, the protection of family life and the entitlement to social benefits.

The content of  Section 2 of Article 1 of the Protocol suggests that Title IV provisions in fact may possess the status of ‘justiciable rights’ in EU law and that only in the UK and Poland, due to the Protocol, they will be limited by the content of UK and Polish laws. Yet, the view that Title IV actually includes any provisions guaranteeing ‘rights’ is quite contentious. In order to understand this we need examine the classifications used in the Charter. In the Charter provisions are divided into two categories: those which contain ‘rights’ or ‘freedoms’, and those which contain only ‘principles’. According to ‘Explanations Relating to the Charter of Fundamental Rights’, in itself a document of a dubious legal force,  ‘principles’ are different from ‘rights’ in that they ‘do not (…) give rise to direct claims for positive action by the Union’s institutions or Member States authorities’. This suggests that only ‘rights’ and ‘freedoms’ should be used as grounds for domestic causes of action. According to Article 52(5) of the Charter, principles are ‘judicially cognisable’ only in the interpretation of the acts adopted by Union institutions in order to implement them and as grounds of review of their legality. It follows that ‘principles’ can not be used against the Member States unless the contested acts of national authorities fall within the scope of Union acts adopted to implement the ‘principles’. Thus, the classification of a Charter provision as possessing a ‘right’, rather than a mere ‘principle’, is of crucial significance for its effects in the laws of the Member States. If the EU Court finds that Title IV of the Charter contains not only ‘principles’ but also ‘rights’ (as suggested by ‘Explanations’) the UK/Polish Protocol could in fact operate to exclude some uses of the Charter before a UK court. Yet, neither the Charter, which uses the language of ‘judicial cognisability’, nor the Protocol, which employs the term ‘justiciability’, prevent the use of the Charter in the interpretation of EU acts, which may in turn affect interpretation of national law on matters covered by Title IV.

 

What the Charter does not say

The Charter does not deal with the relationship between the old methods of protecting human rights in the EU and the post-Lisbon arrangement. It is clear that the Charter does not supersede ‘general principles of law’ which have been protecting human rights in EU law since the early seventies. These ‘general principles’ remain a distinct category because of the wording of Article 6(3) TEU:

Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.

Thus, the more controversial extensions of EU law and its effects on national law when it comes to the domestic protection of human rights could still be carried out by means of the old concept of ‘general principles’. How far these could go could be seen in such cases as Johnston, Carpenter or Mangold. They can lead to inapplicability of domestic rules on evidence, restrict the Member States’ competence to deport third country nationals and require national courts to set aside conflicting national legislation in a purely horizontal situation. But ‘general principles’ have also some advantages for the Member States over those provided by the Charter. While the Charter says nothing on whether national governments can use its provisions to derogate from free movement provisions of the Treaty, it is an established doctrine of EU law that such use can be made of ‘general principles’ of fundamental rights (see Schmidberger and Omega Spielhallen, recently also Viking Line and Laval). Yet, it is only the general principles, and not the Charter provisions, which could be extended to apply also in horizontal situations (the Charter is addressed only to EU institutions and the Member States). So if anything we are likely to observe the subsumption of the new method into the old, and thereby the broadening of EU law claims on domestic protection of rights. Neither the Treaty or the Charter, which both apparently lay down that the Charter does not establish any new power or task for the EU, nor the UK/Polish Protocol will be able to prevent this expansion. Will UK courts because of the Charter have to take even more decisive steps in order to adapt UK laws to the rights first incorporated in the UK by the Human Rights Act? Much will depend on how the Charter and the obligations stemming from it for national courts will be interpreted by the Court of Justice of the EU. In substantive terms, EU human rights law should now approach the Strasbourg case law, leading to greater coherence in the standards of protection (Article 52(3) of the Charter). But the methods of enforcing EU rights in national courts are much sharper than those envisaged by the Human Rights Act for the Strasbourg Convention. This may encourage applicants to plead their human rights as ‘EU’ rather than ‘Convention’ rights, which will in turn increase the role of the Charter in domestic litigation.

 

Dr Dorota Leczykiewicz is Leverhulme Trust Early Career Fellow at the Faculty of Law and at Trinity College, University of Oxford.

Some of the issues discussed in the piece above are further elaborated upon in her two articles -“Effective Judicial Protection” of Human Rights After Lisbon (2010) 35 European Law Review 326-348, and The Charter of Fundamental Rights and Member States’ Derogations from Internal Market Obligations, forthcoming in PM Huber and K Ziegler (eds), The EU and National Constitutional Law (2011).

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