The EU Charter of Fundamental Rights: A Commentary 9781849468350

Citation preview

Foreword by Vassilios Skouris, President of the Court of Justice of the European Union The protection of fundamental rights in the European Union, as we know it today, is the result of an evolutionary process that lasted over five decades. In that respect, one cannot but emphatically point out the pioneering role of the ECJ. Early in the development of its jurisprudence, the ECJ sensed that the doctrines of supremacy and direct effect of Community law, as developed in the early landmark cases, could not hold their ground without being coupled with a system of judicial review of violations of fundamental rights. Notwithstanding the fact that the Treaties contained neither a Bill of Rights, nor even a legal basis for legislative initiatives in that field, the ECJ proceeded prudently by first asserting that fundamental human rights are enshrined in the general principles of Community law and protected by the Court and later on stating as sources of inspiration the common constitutional traditions of Member States and the international treaties to which they are signatories. Parallel to the evolution of the Court’s case-law on human rights, legislative developments moved towards the same direction, albeit at a slower pace. The Charter of Fundaments Rights of the European Union was the defining moment of this process not only because of its evident symbolic and substantial importance but also because of the unprecedented transparent political processes that led to its establishment. As a consequence, the fundamental rights of Europeans are better guaranteed now than ever before. Through a combination of EU and Council of Europe instruments, on the one hand, and national constitutions, on the other, the harmonious coexistence of these parallel systems of protection over several decades has made Europe a world leader in the application and enforcement of fundamental rights. This is a stunning achievement, and one that is not to be overlooked in the light of fresh challenges, such as the accession of the European Union to the ECHR. The Charter of Fundamental Rights undoubtedly brings transparency to fundamental rights protection. Prior to its promulgation, legal advisors were obliged to research the vast corpus of Court of Justice case law in order to determine whether a right they might be seeking to enforce existed as a fundamental principle guaranteed by the EU legal system, before they could even commence the task of assessing whether or not it might have been breached. Worse still, European citizens had no easily accessible instrument to which to turn, to inform them of the content of European Union fundamental rights, the guarantee of which they were entitled to expect. Both of these significant shortcomings have been cured by the advent of the Charter.

Foreword

This important book takes the process of bringing transparency to EU fundamental rights protection even further. As one of the first comprehensive commentaries on the Charter written in the English language, it will reach broad audiences both within and beyond the borders of Europe, and help facilitate the Charter’s implementation to a degree that has perhaps, to date, not yet been achieved. Its comprehensive article by article analysis explains simply and clearly how and when the Charter applies, while at the same time preserving the depth and integrity of the principles the Charter reflects. In addition to this, a series of essays by intellectual leaders in EU fundamental right scholarship including the Vice-President and Senior members of the Court of Justice adds a further dimension to the study. It is an invaluable resource for practitioners, academics, and indeed anyone who wishes to learn more about the enforcement and protection of fundamental rights in the European Union. I warmly recommend it. Luxembourg, February 2014

vi

Editors’ Preface Fundamental human rights. The phrase resonates in so many ways—historically, politically, socially, rhetorically and legally. The notion of inalienable rights, which inhere in human beings merely by reason of their humanity, and apply regardless of nationality, race, religion, sex, gender, sexual orientation, age, disability and other categories, is a crucial part of Europe’s history, and its emergence from its dark past of the early twentieth century. While originally the Council of Europe was the institutional context for the development of human rights in Europe, the EU became involved in human rights from at least the 1970s onwards. This initial development, however, was in the context of the CJEU’s jurisprudence, rather than in a single human rights instrument such as the Council of Europe’s Convention on Human Rights and Fundamental Freedoms, or European Social Charter. It was not until the late 1990s that the idea of a fundamental rights instrument for the EU was realised in practice. The Charter of Fundamental Rights of the European Union, which enshrines certain civil, political, social, economic and cultural rights in EU law, was given full legal effect by the entry into force of the Treaty of Lisbon on 1 December 2009. This brief description belies a long and convoluted journey which began with a decision of the European Council in 1999 to draw up a Charter of Fundamental Rights and resulted quite quickly in the publication of a first draft in 2000. By December 2000, the Charter had been enshrined in the Treaty of Nice. But between 2001 and 2004 the Charter became enmeshed in the ultimately unsuccessful effort to introduce an EU Constitutional Treaty, and by the end of 2004, with votes in the Netherlands and France having gone against the Constitutional Treaty, it appeared that the Charter would remain forever in legal limbo. Remarkably, it was revived by the Treaty of Lisbon, which at the same time provided for the accession of the EU to the European Convention on Human Rights. The rhetorical power of human rights is undeniable. But in this book, our focus is on their legal status. The idea that human beings have rights that are legally enforceable against institutions of public power (typically, institutions of government in a state) is one of the most powerful aspects of human rights. Human rights thus embody important constitutional principles, including the separation of powers and the independence of the judiciary. As the EU has taken on greater public authority, particularly in areas where its actions affect matters that profoundly relate to human beings (such as their freedoms, dignity and equality), the need for subjecting the EU’s decision-making to human rights review has become ever more pressing. Whatever doubts may have existed about the importance or legal status of the Charter during the early years of its gestation and infancy, there can be no doubt that it now plays this important role. Having come of age, the Charter now takes its place among the catalogue of international human rights instruments. Each of the general editors of this volume has long been concerned with understanding the Charter and we have all written, spoken and taught about it; in Angela’s case she has advised clients extensively about it and appeared as counsel in leading fundamental rights cases. In 2003, when the shape of the Charter was known but its ultimate fate remained unclear, two of us, Tammy and Jeff, writing in the Introduction to our book Economic and Social Rights under the EU Charter of Fundamental Rights (Oxford, Hart, 2003)

Editors’ Preface

wondered whether ‘the inclusion of economic and social rights in the Charter would signal a change of status of these values within the EU’s legal order?’ Only months later, Steve and Angela, writing in the Introduction to our book The EU Charter of Fundamental Rights: Politics, Law and Policy (Oxford, Hart, 2004) expressed the opinion that ‘the Charter seems set to play an increasingly pivotal role in the development of the complex legal and constitutional order of the European Union’. It turns out we were both right and wrong. Right because the Charter has assumed huge significance within the EU legal order, wrong perhaps in anticipating that the status of social rights would change quite so fundamentally. But as many of the commentaries in this book demonstrate, there have been significant changes, even in the field of social rights. What this Commentary demonstrates most emphatically, and to our great delight, is the depth of scholarship that has developed around the Charter. When we began this project we had hoped to assemble an expert team to help us; what became apparent very quickly was that we were able to attract many of the best and most interesting scholars currently at work in European law and human rights. It is with a suitable sense of awe that we now stand back and admire their craftsmanship and skill, and at the same time extend to them our sincerest and most heartfelt thanks. The Charter is a major part of the landscape of EU law, and our contributing authors have provided a sparkling examination of it. The book has more than 50 contributing authors, which means that our list of thank yous and acknowledgements is inevitably a long one. First and foremost we thank our authors, who without exception accepted our invitation to contribute without hesitation, and who have brought an infectious enthusiasm to the project. We cannot single out authors for individual praise, but we thank Elspeth Guild for putting at our disposal her firm’s office in London, where our first editorial planning meeting took place. We also thank President Skouris of the CJEU, who eagerly accepted our invitation to write the Foreword, and who has been an enthusiastic supporter of the project since its inception. We have leant heavily on our publisher, whose staff has been exemplary in their professionalism and skill; Rachel Turner, Mel Hamill, Tom Adams, Charlotte Austin and Hannah McAdams at Hart Publishing, as well as Christopher Long who copy edited the book, have all made signal and vital contributions. And without our editor Richard Hart embracing our vision for the project from the very beginning, we would never have realised it. Thank you. As this book hits the bookshelves, Richard and his partner Jane Parker will be leaving Hart Publishing; we wish them well in whatever they choose to do in future. We are very happy to have had the opportunity to work with them, and we offer this book as a farewell to two dedicated legal publishers. Finally, and with sincere apologies to anyone whose contribution we may have inadvertently overlooked, we thank our families and colleagues for their forbearance and support during the long and occasionally stressful process of hatching this gargantuan book. Tamara Hervey, Jeff Kenner, Steve Peers and Angela Ward Sheffield Nottingham Colchester Luxembourg January 2014 viii

List of Contributors Pekka Aalto is a Référendaire in the chambers of Advocate General Niilo Jääskinen at the Court of Justice of the European Union. Anthony Arnull is Barber Professor of Jurisprudence at Birmingham Law School, University of Birmingham. Diamond Ashiagbor is Professor of Labour Law at the School of Oriental and African Studies, University of London. Heli Askola is a Senior Lecturer at the Faculty of Law, Monash University. Catherine Barnard is Professor of European Law, Co-director of the Centre for European Legal Studies and Jean Monnet Chair of EU Law at Cambridge University. Mark Bell is Professor of Law at the University of Leicester. Alan Bogg is Professor of Labour Law at the University of Oxford with a Fellowship at Hertford College. Anne Charbord is a Consultant on Human Rights and a Guest Lecturer at the Vienna Master of Arts in Human Rights. Shazia Choudhry is a Reader in Law at Queen Mary, University of London. Rui Correia Gonçalves is a Senior Teaching Assistant and PhD Student at Birkbeck School of Law, University of London. Cathryn Costello is the Andrew W Mellon University Lecturer in International Human Rights and Refugee Law, at the Refugee Studies Centre, Oxford, and a Fellow of St Antony’s College. Paul Craig is Professor of English Law at the University of Oxford with a Fellowship at St John’s College. Rachael Craufurd Smith is Reader of European Union Law at the University of Edinburgh. Deirdre Curtin is Professor of European Law at the University of Amsterdam, the Netherlands. Olivier De Schutter is Professor of International Law at the Université Catholique de Louvain, Belgium. Eileen Denza was a Legal Counsellor, Foreign and Commonwealth Office, Council to the Committee, House of Lords and a Visiting Professor at University College London. Filip Dorssement is Professor of Labour Law at the Université Catholique de Louvain, Belgium.

List of Contributors

Catherine Dupré is a Senior Lecturer in Law at the University of Exeter. Michele Everson is Professor of Law at Birkbeck College, University of London. Gisella Gori is a Senior Political Advisor for Human Rights and Multilateral Issues at the Delegation of the European Union to the United States, EU External Action Service. Paul Gragl is a Lecturer in Law at Queen Mary, University of London. Kees Groenendijk is Professor Emeritus of Sociology of Law at Radboud University Nijmegen, the Netherlands. Elspeth Guild is Jean Monnet Professor ad personam at Queen Mary, University of London as well as at Radboud University Nijmegen, the Netherlands. José Antonio Gutiérrez-Fons is a Référendaire in the cabinet of Vice-President Koen Lenaerts at the Court of Justice of the European Union, and a Visiting Lecturer at the Universidad Autónoma de Madrid. Ian Harden is Secretary-General at the European Ombudsman’s Office. Maarten den Heijer is an Assistant Professor of International Law at the University of Amsterdam. Tamara Hervey is Head of the School of Law and Jean Monnet ad personam Professor of European Union Law at the University of Sheffield. Herwig CH Hofmann is Professor of European and Transnational Public Law and Jean Monnet Chair in the Centre for European Law at the Faculty of Law, Economics and Finance of the University of Luxembourg. Liisa Holopainen is a Legal Officer at the Unit for EU Litigation, Ministry for Foreign Affairs of Finland. Niilo Jääskinen is an Advocate General of the Court of Justice of the European Union. Jean-Paul Jacqué is Emeritus Professor at the University of Strasbourg and Honorary Director-General of the Council of the European Union. Jeff Kenner is Professor of European Law in the School of Law and the Human Rights Law Centre at the University of Nottingham. Lamin Khadar is a Researcher at the European University Institute in Florence, Italy. Claire Kilpatrick is Professor of International and European Labour and Social Law at the European University Institute in Florence, Italy. Herke Kranenborg is Affiliated Senior Researcher at the Institute for European Law of the Katholieke Universiteit Leuven, Belgium and a Member of the Legal Service of the European Commission. Ruth Lamont is Lecturer in Law at the University of Liverpool. Koen Lenaerts is Vice-President of the Court of Justice of the European Union and Professor of European Law at the University of Leuven, Belgium.

xl

List of Contributors

Mats Lindfelt is the Director of Research and Education at Åbo Akademi University, Finland. Gracia Marín Durán is a Lecturer in International Law at the University of Edinburgh. Ronan McCrea is Senior Lecturer in Law at University College London and Visiting Professor at the Central European University in Budapest, Hungary. Jean McHale is Professor of Health Care Law and Director for the Centre for Health Law, Science and Policy at Birmingham Law School, University of Birmingham. Joana Mendes is Associate Professor of European Law at the University of Amsterdam. Sabine Michalowski is Professor of Law at the University of Essex. Valsamis Mitsilegas is Head of the Department of Law, Professor of European Criminal Law and Director of the Criminal Justice Centre at Queen Mary, University of London. Violeta Moreno-Lax is a Lecturer in Law at Queen Mary, University of London. Elisa Morgera is Senior Lecturer at the University of Edinburgh. Hanns Peter Nehl is a Référendaire in the cabinet of Judge Viktor Kreuschitz at the EU General Court, Luxembourg. Manfred Nowak is Professor of International Law and Human Rights at the University of Vienna and Director of the Ludwig Boltzmann Institute of Human Rights, Vienna. Charlotte O’Brien is a Lecturer at the University of York. Colm O’Cinneide is a Reader in Law at University College London. Elina Paunio is a Référendaire in the cabinet of Advocate General Nils Wahl at the Court of Justice of the European Union, Luxembourg. Laurent Pech is Professor of European Law at Middlesex University London. Steve Peers is Professor of Law at the University of Essex. Sacha Prechal is Judge at the Court of Justice of the European Union and Professor of European Law at Utrecht University, the Netherlands. Allan Rosas is Visiting Professor at the College of Europe in Bruges and the University of Helsinki and a Judge of the Court of Justice of the European Union. Debbie Sayers runs the legal research consultancy Inter alia and is a member of the research panels at Interights and Matrix Chambers. Dagmar Schiek is Professor of EU Law, Jean Monnet ad personam Chair of EU Law and Policy and Director of the Centre for European Law and Legal Studies at the University of Leeds. Jo Shaw is the Salvesen Chair of European Institutions, Dean of Research and Deputy Head of the College of Humanities and Social Science, at the University of Edinburgh.

xli

List of Contributors

Dinah Shelton is Professor of International Law at George Washington University, Washington DC. Eleanor Spaventa is Professor of European Union Law at Durham University. Helen Stalford is a Professor of Law at the School of Law and Social Justice, University of Liverpool. Erika Szyszczak is a Barrister and Professor of Law at the University of Sussex. Gabriel N Toggenburg is Senior Legal Advisor in the Directorate of the European Union Agency for Fundamental Rights and Visiting Professor at the University of Graz. Jonathan Tomkin is a Barrister and a Member of the Legal Service of the European Commission. Paul Torremans is Professor of Intellectual Property Law at the School of Law, University of Nottingham. Jens Vedsted-Hansen is a Professor of Law in the School of Law at Aarhus University, Denmark. Angela Ward is a Référendaire in the chambers of Advocate General Jääskinen at the Court of Justice of the European Union, Luxembourg and a Visiting Professor at Birkbeck College, University of London. Steve Weatherill is the Jacques Delors Professor of European Law at the University of Oxford, with a Fellowship at Somerville College. Robin White is Emeritus Professor of Law at the University of Leicester, and a Judge in the Administrative Appeals Chamber of the Upper Tribunal. Elizabeth Wicks is a Professor of Human Rights Law at the University of Leicester. Daniel Wilsher is a Senior Lecturer in Law at the City Law School, City University London. Bruno de Witte is Professor of European Union Law at Maastricht University, the Netherlands and part-time Professor at the European University Institute, Florence, Italy. Ferdinand Wollenschläger is a Professor at the Faculty of Law, Augsburg University, where he holds a chair for Public Law, European Law and Public Economic Law. Lorna Woods is a Professor of Law at the University of Essex.

xlii

Article 1* Article 1 Human Dignity Human dignity is inviolable. It must be respected and protected.

Text of Explanatory Note on Article 1 The dignity of the human person is not only a fundamental right in itself but constitutes the real basis of fundamental rights. The 1948 Universal Declaration of Human Rights enshrined this principle in its preamble: ‘Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.’ It results that none of the rights laid down in this Charter may be used to harm the dignity of another person, and that the dignity of the human person is part of the substance of the rights laid down in this Charter. It must therefore be respected, even where a right is restricted.1

Select Bibliography M Borowsky, ‘Artikel 1’ in J Meyer (ed), Charta der Grundrechte der EU (Baden-Baden, Nomos, 2011) 94–121. G Braibant, La Charte de Droits Fondamentaux de l’Union Européenne, Témoignage et Commentaires (Paris, Seuil, 2001). L Burgogne-Larsen (ed), La dignité saisie par les juges (Brussels, Bruylant, 2010). J-Y Carlier and O De Schutter (eds), La Charte de Droits Fondamentaux de l’Union européenne. Son apport à la protection des droits de l’homme en Europe (Brussels, Bruylant, 2002). M Di Ciommo, Dignità umana e Stato costituzionale, la dignità umana nel costituzionalismo europeo, nella costituzione italiana e nelle giurisprudenze europee (Florence, Passigli Editore, 2010). C Dupré, ‘Dignité dans l’Europe constitutionnelle: entre inflation et contradictions’ in J Ziller (ed), L’Européanisation des droits constitutionnels à la lumière de la Constitution pour l’Europe (Paris, l’Harmattan, 2003) 121–35. ——, ‘Human Dignity in Europe: A Foundational Constitutional Principle’ 19 European Public Law (2013). European Commission for Democracy through Law, The Principle of Respect for Human Dignity (Strasbourg, Council of Europe Publishing, 1999).

* The author is grateful to Professor Ingolf Pernice for his invitation to spend July 2012 at the Grakov Center, University of Humboldt, Berlin, in order to research German materials necessary for this commentary. She also wishes to thank Andrea Ridolfi who very kindly helped her locate the Italian materials in the many libraries of the University La Sapienza (Rome, May 2011). Finally, thanks are due to Dr Stephen Skinner (University of Exeter) for his careful reading and checking of this text. 1 These explanations appear to be largely drawn from a statement by Roman Herzog on 15 June 2000, see Ph Wallau, Die Menschenwürde in der Grundrechtordnung der europäischen Union (Bonn, Bonn University Press, 2010) 57.

Part I – Commentary on the Articles of the EU Charter

P Grossi, ‘Dignità umana e libertà nella Carta dei Diritti Fondamentali dell’Unione Europea’ in M Siclari (ed), Contributi allo Studio della Carta dei Diritti Fondamentali dell’Unione Europea (Torino, G Giappichelli, 2003) 41–46. P Häberle, Europäische Verfassungslehre, 6th edn (Baden-Baden, Nomos, 2009) 286–329. HD Jarass, Charta der Grundrechte der EU (Munich, Beck, 2010) 37–41. J Jones, ‘“Common Constitutional Traditions”: Can the Meaning of Human Dignity under German Law Guide the European Court of Justice?’ (2004) Public Law 167. ——, ‘Human dignity in the EU Charter of Fundamental Rights and its Interpretation by the European Court of Justice’ (December 2012) 33 Liverpool Law Review 281. B Maurer, Le principe du respect de la dignité humaine et la Convention Européenne des Droits de l’Homme (Paris, La Documentation Française, 1999). M Olivetti, ‘Dignità Umana’ in R Bifulco et al (eds), L’Europa dei diritti, Commento alla Carta dei Diritti Fondamentali dell’ Unione Europea (Bologna, Il Mulino, 2001) 38–45. ——, ‘Article 1—Human Dignity ‘ in WBT Mock and G Demuro (eds), Human Rights in Europe, Commentary on the Charter of Fundamental Rights of the European Union (Durham, NC, North Carolina Academic Press, 2010) 3–11. N Rao, ‘Three Concepts of Human dignity in Constitutional Law’ (2011) 86 Notre Dame Law Review 222. S Rixen, ‘Die Würde und Integrität des Menschen’ in FSM Heselhaus and C Nowak (eds), Handbuch der Europäischen Grundrechte (Munich, Beck, 2006) 335–63. F Sacco, ‘Note sulla dignità umana nel diritto costituzionale europeo’ in SP Panunzio (ed), I diritti fondamentali e le Corti in Europa (Naples, Jovene Editore, 2005) 585–621. F Schorkopf, ‘Würde des Menschen’ in D Ehlers (ed), Europäische Grundrechte und Grundfreiheiten (Berlin, De Gruyter, 2009) 485–505. M Schwarz, ‘Die Menschenwürde als Ende der europäischen Wertegemeinschaft?’ (2011) 50 Der Staat 533. K Schwarzburg, Die Menschenwürde im Recht der europäischen Union (Baden-Baden, Nomos, 2012). Ph Wallau, Die Menschenwürde in der Grundrechtsordnung der Europäischen Union (Bonn, Bonn University Press, 2010).

A. Article 1 and the Scope of EU Law 01.01 Article 1 is potentially extremely far-reaching as, according to the preamble, it protects the central position of the individual in all the activities of the EU. Specific references to dignity in EU legislation reflect this wide scope and can in particular be found in relation to four types of issue. First, workers’ free movement legislation should take into account their ‘family life and dignity’, with special consideration of those family members who are not EU citizens.2 The second type of issues concerns the protection of minors with regard to European audiovisual and information services according to Directive

2 Directive 2004/38/EC of the European Parliament and of the Council, 29 April 2004, on the right of citizens of the EU and their family members to move and reside freely within the territory of the Member States.

4

Catherine Dupré

Art 1 – Human Dignity

2007/65/EC.3 Protection of minors’ dignity in this context may involve some restrictions to ‘audiovisual commercial communications’ and the Directive promotes self-regulation as the means to achieve this. The third type of issue involves minimum standards for the reception of asylum seekers in order to ‘ensure them a dignified standard of living and comparable living conditions in all Member States’ under the Reception conditions Directive (preamble, para 7).4 This Directive pays particular attention to issues such as residence, medical care, education and access to the labour market, with special protection granted to ‘vulnerable persons’ (Art 17) and minors (Art 18).5 The fourth type of issue concerns conditions of detention of third-country nationals. Directive 2008/115/EC on ‘common standards and procedures in Member States for returning illegally staying third-country nationals’ of 16 December 2008 explicitly requires that ‘third-country nationals in detention should be treated in a humane and dignified manner with respect for their fundamental rights’ (para 17, preamble). Central to this is the requirement that ‘detention shall take place as a rule in specialised detention facilities’ and that ‘third-country nationals in detention shall be kept separated from ordinary prisoners’ (Art 16.1). The new Directive laying down standards for the reception of applicants for international protection due to replace Directive 2003/9/EC (above) further pays particular attention to conditions of detention (Art 10).6 Overall references to ‘dignity’ or ‘dignified standards of living’ have been used to high- 01.02 light and protect vulnerable people, such as minors and asylum-seekers, by guaranteeing (as far as possible) that their ‘special needs’, such as medical treatment and processing of their applications, are met and that they can retain and regain their place within society (ie access to education and training, or access to the job market) and within their family. It is interesting to note that references to dignity were made even before the Charter became binding (as early as 2003 in the above Directive on reception conditions, and in the 2006 Recommendation on the audiovisual and on-line information service industry). One can only therefore assume that such references in EU secondary legislation will increase to reflect EU law-makers’ increased awareness of dignity. Moreover, the absence of specific references to dignity in EU legislation does not mean that the concept is irrelevant as the European Court of Justice has read dignity into various other directives: notably Council Directive 76/207/EEC on the implementation of the principle of equal

3 Council Directive 2007/65/EC of 11 December 2007 amends Council Directive 89/552/EEC and follows Council Recommendation of 24 September 1998 on the development of the competitiveness of the European audiovisual and information services (98/560/EC) and Recommendation of the European Parliament and the Council of 20 December 2006 on the protection of minors and human dignity (2006/952/EC). 4 Council Directive 2003/9/EC of 27 January 2003. On asylum-seekers see also Case C-411/10 NS v Secretary of State for the Home Department [2012] 2 CMLR 9, with a comment by J Buckley (2012) European Human Rights Law Review 205. 5 An amendment to this Directive was agreed, but had not come into force at the time of writing; the agreed version of the text is available at http://register.consilium.europa.eu/pdf/en/12/st14/st14654.en12. pdf, consulted on 9 January 2013. The new Directive aims to ensure that asylum seekers will be guaranteed ‘a dignified standard of living and comparable living conditions in all Member States’ (para 11); applicants in detention ‘should be treated with full respect for their dignity and their reception should be specifically designed to meet their needs in that situation’ (para 18). Under para 35, the preamble explicitly refers to the Charter and mentions Arts 1 and 4 in particular. Finally and importantly, while Member States can reduce or even withdraw material reception conditions for asylum seekers (under Art 20.1), they ‘shall under all circumstances ensure access to health care … and shall ensure a dignified standard of living for all applicants’ (Art 20.5). 6 See above n 5.

Catherine Dupré

5

Part I – Commentary on the Articles of the EU Charter

treatment for men and women as regards access to employment, vocational training and promotion, and working conditions;7 Directive 75/117/EEC on equal treatment for men and women;8 and Directive 98/44/EC on the legal protection of biotechnological inventions.9 This sample of legislation, ranging from biotechnological issues to asylumseekers’ protection and including protection against non-discrimination (on the ground of sex), reflects the versatility of the dignity concept and its actual and potential capacity to reach across a very wide range of EU’s activities and secondary legislation. 01.03 Article 1 EUCFR affects not only the interpretation and implementation of secondary legislation. Crucially, it also affects primary legislation in two ways. Firstly, Article 2 TEU as amended by the Lisbon Treaty (thereafter TEU) enshrines dignity as the first of its foundational values (together with ‘freedom, democracy, the rule of law and respect for human rights’). Secondly, Article 1 EUCFR may influence the Union’s external action under Article 21 TEU.10 As a result, Article 1 EUCFR, together with the whole of Title I, provide a more precise meaning for dignity as a foundational value under the Lisbon Treaty and set the benchmark for the Union’s commitment to human rights protection, both within the EU (under Article 6 TEU) and outside the EU in its dealings with third countries and international institutions. 01.04 Finally, under Article 51 EUCFR, dignity protection becomes relevant to Member States’ actions ‘with due regard to the principle of subsidiarity and to the Member States only when they are implementing Union law’. In this respect, all states are affected by the EUCFR, ie including Poland and the UK which had demanded that Protocol 30, concerning the legal effect of the Charter, be attached to the Treaties as a condition of their signing and ratifying the Lisbon Treaty. This was clarified by the CJEU, which held that Protocol 30 was not to be understood as an opt-out clause.11

B. Interrelationship of Article 1 with Other Provisions of the Charter 01.05 Article 1 EUCFR is clearly related to all the rights enshrined under Title I ‘Dignity’, namely the right to life (Art 2), the right to integrity of the person (Art 3), the prohibition of torture, inhuman and degrading treatment or punishment (Art 4), the prohibition of slavery, forced labour and human trafficking (Art 5). The Charter further identifies two groups of people, for whom special dignity protection is acknowledged. These are the elderly, who have ‘rights to lead a life of dignity and independence and to participate in

7

Case C-13/94 P v S and Cornwall County Council [1996] ECR I-2143. Case C-117/01 KB v National Health Service Pensions Agency, Secretary of State for Health [2004] ECR I-541. Case C-377/98 Kingdom of the Netherlands v European Parliament and Council of the European Union [2001] ECR I-7079. 10 Art 21.1: ‘The Union’s action on the international scene shall be guided by ... democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity.’ See K Schwarzburg, Die Menschenwürde im Recht der europäischen Union (Baden-Baden, Nomos, 2012), 325–34. 11 Case C-411/10 NS v Secretary of State for the Home Department, with a comment by J Buckley (2012) European Human Rights Law Review 205. 8

9

6

Catherine Dupré

Art 1 – Human Dignity

social and cultural life’ under Article 25,12 and workers, whose dignity is awarded special protection under Article 31, together with health and safety requirements. Moreover, due to the unique foundational importance of dignity (as reflected in the 01.06 preamble’s second paragraph, which echoes and develops Article 2 TEU (‘Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity’)), the other rights enshrined in the Charter can also be understood as flowing from human dignity. The explanations of the Charter make explicit that dignity ‘constitutes the real basis of fundamental rights’. As a result, selecting those rights which are more closely connected to it is not a straightforward operation. As dignity is generally understood as the freedom to shape one’s life, the Freedoms rights (under Title II) become connected and in particular dignity has often been associated with privacy (Art 7). Moreover, all rights included under the Equality title are most certainly connected to dignity; this flows from the equally shared humanity of human beings (regardless of their particular differences) and from the fact that the EU is a political and economic order founded on equality. Particularly relevant are perhaps the integration of persons with disabilities (Art 26), and the rights of the elderly under Article 25. Similarly, the Solidarity rights, notably the right to social assistance and social security (Art 34), and the right to health care (Art 35), are also connected to Article 1. Furthermore (as mentioned above) workers’ rights to health, safety and dignity are specifically listed under Article 31. Noteworthy in its connection to the dignity protection duty of Article 1 is Article 36, which guarantees access to services of general economic interest. Finally, as dignity is very much about placing individuals at the centre and protecting them in their relations with power, the Justice rights are also connected to Article 1, in particular the right to an effective remedy (Art 47), and the principles of legality and proportionality of criminal offences and penalties (Art 49). Lastly, two more points have to be noted with regard to the interrelationship of Article 1 01.07 with other Charter provisions. First, while dignity under Article 1 can be conceptually and normatively connected to all EUCFR rights, the need to establish these connections in order to protect these rights effectively may not arise for all of them. According to some, dignity has a subsidiary function, in that it becomes relevant in the absence of a more specific right.13 In practice, a tendency may develop whereby the CJEU (and the applicants) routinely refer to Article 1 EUCFR in addition to the specifically relevant right in order to emphasise the importance of their points. The connection to Article 1 could therefore become significant in strengthening the protection already offered by these rights, so as perhaps to extend it to situations or people not explicitly mentioned in the Charter. The second point to note is that, as dignity is ‘the real basis of fundamental rights’ (explanations above), it could lead to the ‘discovery’ of new rights, ie rights not listed in the EUCFR, so as to afford protection against breaches that could not be anticipated at the time of drafting the Charter. The drafting of Article 1 clearly allows for this possibility, as it presents human dignity in a distinct and separate way from

12 P De Hert and E Mantovani, ‘Specific Human Rights for Older Persons?’ (2011) European Human Rights Law Review 398. 13 M Olivetti, ‘Article 1—Dignity’ in WBT Mock and G Demuro (eds), Human Rights in Europe. Commentary on the Charter of Fundamental Rights of the European Union (Durham, NC, North Carolina Academic Press, 2010) 9.

Catherine Dupré

7

Part I – Commentary on the Articles of the EU Charter

the remaining Title I rights. This approach would be in line with some Member States’ practice and ECJ case law on dignity.

C. Sources of Article 1 01.08 While the UN Universal Declaration of Human Rights is explicitly referred to in the preamble of the Charter, the determinant influence on the drafting of Article 1 appears to have come from the Member States’ constitutions and (as discussed below) in particular from the German constitution.14

I. ECHR 01.09 As the ECHR does not contain an explicit dignity provision, it could not be used as a model or a source of inspiration for the drafting of Article 1 EUCR.15 The lack of a specific dignity provision has led to a diffuse protection of human dignity by the ECtHR, whereby almost every ECHR right can become dignity-related.16 Dignity has certainly been read into the absolute prohibitions of Articles 3 and 4 ECHR, and this case law could usefully be referred to by the CJEU in due course.17 The ECtHR case law therefore becomes relevant to understanding the ECHR dignity 01.10 concept. The ECtHR started relying on this concept in the 1970s, with the East African Asians v UK case containing one of the very first references to dignity, in relation to the prohibition against racial discrimination.18 An explicit statement of the ECtHR’s general commitment to dignity is more recent and can first be found in the so-called marital rape ruling, in which the Court emphasised that: ‘the very essence [of the ECHR] is respect for human dignity and human freedom.’19 Made at the end of the ruling, this reference can be understood as a clear indication that the commitment to dignity and freedom is guiding the ECtHR’s interpretation. In that particular case, the emphasis on dignity echoed ‘the essentially debasing character of rape’, from which the Court concluded that prosecuting a rapist husband under the UK common law could not be construed as a retroactive punishment under Article 7 ECHR. This dignity formula was subsequently used by the ECtHR, notably in the Pretty case, where the Court referred

14

On sources generally see: Ph Wallau above n 1, 49–118. Comprehensive accounts of the drafting process of Art 1 EUCFR were produced by M Borowsky, ‘Artikel 1’, in J Meyer (ed), Charta der Grundrechte der EU (Baden-Baden, Nomos, 2011), as well as Ph Wallau above n 1, 49–79. 16 B Maurer, Le principe de respect de la dignité humaine et la Convention Européenne des Droits de l’Homme (Paris, La documentation française, 1999); L Burgogne-Larsen (ed), La dignité saisie par les juges (Brussels, Bruylant, 2010) 55–78 and M Di Ciommo, Dignità umana e Stato costituzionale, la dignità umana nel costitzionalismo europeo, nella costituzione italiana e nelle giurisprudenze europee (Florence, Passigli Editore, 2010) 233–76. 17 See relevant chapters in this collection. 18 Precise dating is difficult here; the first case usually identified is that of the East African Asians v UK (1973) 3 EHRR 76: ‘the racial discrimination, to which the applicants have been publicly subjected by the application of … immigration legislation, constitutes an interference with their human dignity which … amounted to “degrading treatment” in the sense of Article 3 of the Convention.’ 19 SW v UK, 22 Nov 1995, 47/1994/494/576, para 44. 15

8

Catherine Dupré

Art 1 – Human Dignity

to it in connection to Article 8 and concluded that the decision to seek assisted suicide falls under the scope of this provision, as it affects the quality of the applicant’s life in the last stages of her illness.20 The significance of the dignity reference here was the shift of focus of Article 8 from privacy to quality of life. It has to be noted however that the ECtHR reference to dignity did not alter the formal hierarchy of ECHR rights, so that the right to life under Article 2 could not be interpreted as the right not to live. Overall, while the ECtHR formula is worded differently from Article 1 EUCFR, there seems to be a strong correlation between the ECtHR’s commitment to protecting human dignity and the protection duty under Article 1 EUCFR. Explicit commitment to dignity under the ECHR was confirmed in the preamble of 01.11 the Additional Protocol 13 concerning the abolition of the death penalty in all circumstances, which reads: ‘everyone’s right to life is a basic value in a democratic society and [that] the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings’ (emphasis added). As will be seen below, by the time this protocol was signed in 2002, the Council of Europe had already enshrined dignity in the specific context of the Oviedo Convention.

II. Council of Europe Treaties There are two Conventions through which the Council of Europe has sought to protect 01.12 human dignity. The Convention on Human Rights and Biomedicine signed at Oviedo in 1997 is the first CoE convention explicitly to enshrine dignity, under Article 1.1: ‘Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regards to the application of biology and medicine.’21 The Oviedo Convention does not define dignity more specifically, but it may be relevant to understanding the general meaning of Article 1 EUCFR. Generally, its emphasis on the ‘interests and welfare of human beings’ (Art 2) may help develop the notion of the central place of the individual, as referred in the EUCFR preamble. In particular, the whole Convention may become relevant for the interpretation of the right to physical and mental integrity under Article 3 EUCFR due to their linkage with biomedical issues. Secondly, in 2005 the Council of Europe adopted a Convention on the Action against 01.13 Trafficking in Human Beings (CETS, No 197), the main concern of which is ‘dignity and integrity of the human being’, as indicated in its preamble (second sentence).22 The

20 Pretty v UK, 29 July 2002 [65]: ‘The very essence of the Convention is respect for human dignity and human freedom. Without in any way negating the principle of sanctity of life protected under the Convention, the Court considers that it is under article 8 that notions of the quality of life take on significance.’ See also Van Kück v Germany, 12 June 2003 [69]: ‘The very essence of the Convention being respect for human dignity and human freedom, protection is given to the right of transsexuals to personal development and to physical integrity and moral security.’ 21 The Oviedo Convention has so far been ratified by Bulgaria, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Greece, Hungary, Latvia, Lithuania, Portugal, Romania, Slovakia, Slovenia and Spain, see http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=164&CM=8&DF=09/01/2013&CL=ENG. 22 This Convention has so far been ratified by Austria, Bulgaria, Cyprus, Denmark, Finland, France, Germany, Ireland, Italy, Latvia, Lithuania, Luxemburg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom. See http://conventions.coe.int/Treaty/Commun/ ChercheSig.asp?NT=197&CM=8&DF=09/01/2013&CL=ENG.

Catherine Dupré

9

Part I – Commentary on the Articles of the EU Charter

explanations of the Convention make it clear that ‘trafficking treats human beings as a commodity to be bought and sold’23 and the Convention considers that trafficking constitutes a violation of human dignity. The Convention pays particular attention to educational programmes for boys and girls about ‘the importance of gender equality and the dignity and integrity of every human being’ (Art 6.d), together with victims’ repatriation in ‘safety and dignity’ (Art 16.1–16.2). This Convention is obviously directly relevant to Article 5 EUCFR and emphasises similar dignity issues as EU law, ie its connection to equality, mental and physical integrity, vulnerability, freedom and decent living conditions.

III. UN Treaties 01.14 The protection of human dignity by international law is as diffuse as it is far-reaching, and only the main texts can be mentioned here.24 The preamble to the UN Universal Declaration of Human Rights 1948 is referred to in the explanation to the EUCFR, indicating that the EUCFR is espousing this spirit of international human rights law. The key dignity provisions of the Declaration are Article 1 (‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood’), Article 22 (‘Everyone, as a member of society has the right to social security and is entitled to realisation through national effort and international cooperation and in accordance with the organisation and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of this personality’) and Article 23(3) (‘Everyone who works has the right to just and favourable remuneration ensuring for himself and his family and existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.’). The Declaration never became binding but was influential on the drafting of subsequent conventions (such as the ECHR and the EUCFR), as well as Member States’ constitutions. The two International Covenants adopted in 1966 contain further specific references to human dignity. The 1966 International Covenant on Civil and Political Rights refers to dignity under Article 10 (‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.’) The 1966 International Covenant on Economic Social and Cultural Rights refers to dignity in relation to a right to education ‘directed at the full development of the human personality and the sense of its dignity’ under Article 13. Finally, the 1949 Geneva Conventions have a common Article 3, which protects the wounded and sick of armed forces in the field (I), the wounded, sick and shipwrecked of the armed forces at sea (II), prisoners of war (III) and civilian persons in time of war (IV) against ‘outrages upon personal dignity, in particular humiliating and degrading treatment’.25

23

Explanatory Report, p 27. P Carozza, ‘Human Dignity and Judicial Interpretation of Human Rights, A Reply’ (2008) 29 European Journal of International Law 831; P Capps, Human Dignity as the Foundations of International Law (Oxford, Hart Publishing, 2009); JA Frowein, ‘Human Dignity in International Law’, in D Kretzmer and E Klein (eds), The Concept of Human Dignity in Human Rights Discourse (The Hague, Kluwer Law International, 2002) 121. 25 See www.icrc.org/eng/war-and-law/treaties-customary-law/geneva-conventions/index.jsp. 24

10

Catherine Dupré

Art 1 – Human Dignity

The EUCFR echoes these international conventions in enshrining dignity in a 01.15 similarly prominent manner, with references to dignity in the preamble and in the first article. Moreover, all these texts emphasise the inherently human quality of dignity, as well as, importantly, its indivisibility: dignity is protected by both Covenants and in the EUCFR it embraces civil and political rights, as well as solidarity and labour rights. Moreover, the common picture that appears to arise out of these texts is that dignity is intended to acknowledge the vulnerability of humanity and to protect people accordingly, ie when they are old, deprived of their liberty and in the workplace. Finally and importantly, dignity is the foundation of the prohibition of torture together with a range of inhuman and degrading treatments.

IV. Relevant EU Law Chronologically, Article 1 of the Declaration on Fundamental Rights and Freedoms 01.16 adopted by the European Parliament on 12 April 1989 can be considered as the first formal ancestor of the EUCFR and was prepared ‘to supplement the Maastricht Treaty’ on the initiative of two MEPs. This Declaration constitutes the very first indication of the EU’s awareness of dignity’s importance and its attempt to protect it. Dignity was given a prominent position and was enshrined under Article 1, which reads: ‘Human dignity shall be inviolable’. This Declaration did not come into force, but the ECJ has created its own concept of dignity in few, but significant, rulings, which are briefly summarised below (under section D.I below).

V. Other Sources: National Constitutions Most EU Member States’ constitutions enshrine dignity, either in the opening section 01.17 on the general features of the constitution, or as the first (or second) provision in their fundamental rights sections.26 The German constitution is without doubt the constitution that has most explic- 01.18 itly influenced the drafting of Article 1 EUCFR, due to the repeated contributions of Roman Herzog (former president of the German Federal Constitutional Court and of the Federal Republic of Germany, and chairman of the Convention that drafted the Charter) to this effect, since the beginning of the drafting process.27 According to Herzog, dignity reflects the Union’s commitment to human rights protection and highlights the

26 In chronological order: Italy (Arts 3, 36 and 41); Germany (Art 1); Sweden (Arts 1 and 2), Greece (Art 2); Portugal (Arts 1, 13, 26 and 59); Spain (Art 10); Hungary (Art 54, 1989); Romania (Art 3); Slovenia (Arts 21 and 34); Estonia (Art 10); Slovakia (Arts 12 and 19); Lithuania (Arts 21 and 25); Czech Republic (Art 1 and Art 10 Charter); Latvia (Art 95); Belgium (Art 23); Poland (Art 30), Finland (Art 1). See M Borowsky above n 15, 95–102; C Dupré, ‘Dignité dans l’Europe constitutionnelle: entre inflation et contradictions’ in J Ziller (ed), L’européanisation des droits constitutionnels à la lumière de la constitution pour l’Europe (Paris, L’Harmattan, 2003), 121–35; European Commission for Democracy through Law (ed), The Principle of Respect for Human Dignity (Strasbourg, Council of Europe Publishing, 1999); and P Carozza, ‘Human Dignity in Constitutional Adjudication’ in T Ginsburg and R Dixon (eds), Comparative Constitutional Law (Cheltenham, Edward Elgar, 2011) 459. 27 M Borowsky above n 15, 104–10. See also: W Karl‘Die Rolle der Menschenwürde in der EU-Verfassungsdebatte’ in M Fisher (ed), Der Begriff der Menschenwürde (Frankfurt am Main, Peter Lang, 2005) 27.

Catherine Dupré

11

Part I – Commentary on the Articles of the EU Charter

centrality of human beings within the EU legal order (see the explanations). The dark past of Europe, with its concentration camps, colonial wars and slavery, was on the mind of many of the Convention members, as were the actual and potential threats to humanity resulting from bio- and information technology.28 For these reasons, it seemed clear to the drafters that dignity ought to be the most important of its fundamental rights in the Charter. The final phrasing of Article 1 EUCFR is however not a verbatim copy of its German counterpart.29 01.19 German constitutional case law has so far been the most influential source of inspiration for Advocates General in developing human dignity before and after the adoption of the EUCFR. This was very clear in the Opinion of AG Tesauro under the P v S and Cornwall case in 1996, with explicit references to German constitutional case law at paras 20 and 21. These references were omitted in the ECJ ruling, which however explicitly constructed discrimination on the ground of sex ‘as a failure to respect dignity and freedom’ (para 22). This reference was repeated and made explicit in the AG’s Opinion under K B v National Health Service Pensions Agency, Secretary of State for Health (para 77) and implicitly endorsed by the ECJ in its ruling, which again did not refer to German case law (but instead to the Goodwin v UK case, para 33). Although close reading and cross-referencing are necessary to identify this influence, German case law has thus quite clearly shaped the ECJ’s construction of human dignity in relation to sexual discrimination in these cases. More recently, German case law was also considered by AG Stix-Hackl in her Opinion under the Omega ruling. In her Opinion, the German understanding of dignity is included in the survey of ‘common constitutional traditions’ (paras 73–88). The ECJ acknowledged this (para 34), but constructed its own understanding of human dignity as a general principle of law and considered that the particular constitutional status and nature of human dignity in German constitutional law was ‘immaterial’ (para 34). With regards to the use of constitutional traditions common to the Member States, this ruling was significant as, while the ECJ was obviously being influenced by German law (due to the case originating in Germany, where dignity has a particular constitutional prominence), it explicitly detached its construction of this concept from its national source. It has to be noted that, in the Omega ruling, the ECJ chose to make no reference at all to Article 1 EUCR and based its construction of dignity solely on the constitutional traditions common to the Member States as presented in the comparative survey of the Advocate General. The CJEU has not delivered a ruling on Article 1 EUCR, and therefore the Court’s 01.20 attitude to German law and the constitutional traditions common to the Member States has not yet been clarified. The influence of German constitutional law—actual and potential—has however already been discussed.30 On the one hand, there is no reason

28

M Borowsky above n 15, 105. Art 1 German Constitution reads: ‘1. Human dignity is inviolable. To protect and to respect it shall be the duty of all state authority. 2. The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world. 3. The following basic rights shall bind the legislature, the executive and the judiciary as directly applicable law.’ 30 J Jones, ‘“Common Constitutional Traditions”: Can the Meaning of Human Dignity under German Law Guide the European Court of Justice?’ (2004) Public Law, 167; Ch Enders ‘Das Bekenntnis zur Menschenwürde im Bonner Grundgesetz—ein Hemmnis auf den Weg der Europäisierung?’ (2011) 59 Jahrbuch öffentlichen Rechts 245 and H Schulze-Fielitz, ‘Verfassungsvergleichung als Einbahnstraße? Zum Beispiel der Menschenwürde in der biomedizinischen Forschung’ in A Blankenagel et al (eds), Verfassung im Diskurs der Welt, Liber Amicorum für Peter Häberle (Tübingen, Mohr Siebeck, 2004) 355. 29

12

Catherine Dupré

Art 1 – Human Dignity

why the CJEU should cease to consider German case law when it has to interpret Article 1 EUCFR, particularly considering the similarity of both dignity provisions in the EU and in Germany. On the other hand, as the ECJ made clear in Omega, the EU legal order is not the same as the German constitutional order (or as that of any other Member State), and the CJEU has therefore to construct its own concept of fundamental rights in a way that fits with its own order. Beyond a similarly worded commitment to dignity protection, both legal orders are significantly different when it comes to context and normative requirements. Moreover, an over-emphasis on German law as a source of inspiration for the CJEU would considerably narrow down the scope of the common constitutional traditions with regards to human dignity, and may (rightly or wrongly) exclude most of them, therefore preventing the CJEU from considering the full range of these ‘traditions’. In practice, however, German constitutional law is likely to remain a very influential source of inspiration. This is so for a number of reasons, ranging from accessibility of German and non-German materials on dignity by the Advocates General and judges (linguistic issues and issues of actual availability of these materials in all the Member States); compounded by the diffuse dignity case law under the ECtHR, which makes it very difficult to identify all relevant ECHR case law on dignity. Under Article 52.4 EUCFR, ‘fundamental rights [resulting] from the constitutional 01.21 traditions common to the Member States … shall be interpreted in harmony with those traditions’. The need for the CJEU to develop a clear and persuasive comparative method is therefore becoming more pressing than ever.31 In this respect, human dignity—as it is enshrined in most constitutional orders across the EU—could become a powerful factor of integration, and the engine driving an EU system of human rights protection. However, depending on how the CJEU uses these different traditions, there is a risk that dignity might become a powerful locus of disagreement and controversy, with a potentially divisive impact.

D. Analysis I. General Remarks Until the coming into force of the Charter, human dignity had largely been a judge- 01.22 made concept, constructed on a rather ad hoc basis.32 The first use of dignity by the ECJ was in order to prevent discrimination against transsexuals in the workplace.33 After P was dismissed from her job as a manager at an educational establishment while

31 K Lenaerts, ‘Interlocking Legal Orders in the EU and Comparative Law’ (2003) 52 International and Comparative Law Quarterly 873 and C Dupré, ‘Globalisation and Judicial Reasoning: Building Blocks for a Method of Interpretation’ in A Halpin and V Roeben (eds), Theorising the Global Legal Order (Oxford, Hart Publishing, 2009) 107–25. 32 For longer developments see E Dubout, ‘La dignité dans la jurisprudence de la Cour de Justice des Communautés’ in L Burgogne-Larsen (ed), La dignité saisie par les juges en Europe (Brussels, Bruylant, 2010) 115; M Di Ciommo, above n 14, 197; M Rau and F Schorkopf, ‘Der EuGH und die Menschenwürde’ (2002) Neue Juristishe Wochenschrift 2448; and M Schwarz, ‘Die Menschenwürde als Ende der europäischen Gemeinschaft?’ (2011) Der Staat, 537–38. 33 Case C-13/94 P v S and Cornwall County Council, above n 7.

Catherine Dupré

13

Part I – Commentary on the Articles of the EU Charter

undergoing gender reassignment surgery, the ECJ was asked for its interpretation of the equal treatment directive. It held that its scope was ‘such as to apply to discrimination arising, as in this case, from the gender reassignment of the person concerned’ (para 20). In its conclusion, it emphasised that: ‘To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled, and which the Court has a duty to safeguard’ (para 22). As will be discussed above in more detail, this approach was inspired by a ruling of the German Federal Constitutional Court, referred to in the Opinion of AG Tesauro (para 20). 01.23 The second mention of human dignity is to be found in Kingdom of the Netherlands v European Parliament and Council of the European Union in 2001, and was prompted by the applicants.34 The Netherlands sought annulment of Directive 98/44/EC on the legal protection of biotechnological inventions, arguing that ‘the patentability of isolated parts of the human body [under the Directive] reduces human living matter to a means to an end and undermining human dignity. Moreover, the absence of a provision requiring verification of the consent of the donor or recipient of products obtained by biotechnological means undermines the right to self-determination’ (para 69). The ECJ rejected these arguments on two grounds: first it held that the Directive makes it impossible to patent the ‘human body at the various stages of its formation and development’ (para 71). Secondly, it emphasised that a number of processes could not be patented, as contrary to ‘ordre public and morality’ and explicitly noted that ‘all processes the use of which offend against human dignity are also excluded from patentability’ (para 76). In this ruling, the ECJ did not refer to the EUCFR, nor did it define human dignity. However it can be argued that it implicitly adopted the Netherlands’ approach by stating that ‘human living matter could not be reduced to a means to an end.’ 01.24 In its Omega ruling, the ECJ defined dignity both by implicitly turning to the concept’s common constitutional traditions, actively encouraged by the AG Stix-Hackl, and by detaching itself from them in order to establish a distinct EU concept of dignity.35 The question put to the ECJ was about whether it was acceptable under EU law to ban the laserdrome entertainment, provided by a UK firm established in Bonn on the grounds that it breached human dignity. This was not problematic under the German constitution, but the involvement of a UK firm raised the question of a tension between dignity protection on the one hand, and freedom of services and free movement of goods on the other. With reference to the AG’s Opinion, which contained quite a detailed comparative survey of dignity, the ECJ defined ‘respect for human dignity as a general principle of law’ (para 34). Making it clear that the particular status of dignity under the German constitution was ‘immaterial’, the ECJ concluded that the mock killing game was an affront to dignity and could lawfully be prohibited on this basis (para 41). In conclusion,

34 Case C-377/98, above n 9. For comments see K Frahm and J Gebauer, ‘Patent auf Leben? Der Luxemburger Gerichtshof und die Biopatent-Richtlinie’ (2002) EuropaRecht 78; TM Spranger (2002) Common Market Law Review 1147; and Ch Calliess, ‘Menschenwürde und Biotechnologie: Die EG Biopatent-Richtlinie auf dem Prüfstand des europäischen Verfassungsrechts’ (2002) Juristische Schulung 426. 35 Case C-36/02 Omega Spielhallen-und Automatenaufstellungs-GmbH v Oberbuergermeisterin der Bundesstadt Bonn [2004] ECR I-9609. J Morijn, ‘Balancing Fundamental Rights and Common Market Freedoms in Union Law: Schmidberger and Omega in the Light of the European Constitution’ (2006) European Law Journal 15. See also the commentary by T Ackermann, (2005) Common Market Law Review 1107.

14

Catherine Dupré

Art 1 – Human Dignity

the ECJ has so far explicitly relied on dignity in very few cases, where this argument has however played a decisive role in the outcome and interpretation of EU/EC law.36 Therefore, despite the Charter preamble’s claim only ‘to make those rights more vis- 01.25 ible’, it is the first time that human dignity has been formally codified at the EU level. Dignity is therefore a new word in the language of EU constitutionalism: it is a new foundational value (the first one under Article 2 TEU) and the first fundamental right under the Charter. Codification of dignity in the Charter therefore seems to reflect a new awareness of the importance of this right, a new concern for its possible breaches and, certainly and very clearly, a new and particularly strong commitment to protect and respect it in all aspects of its activities.37 The prominent place of dignity in the EU Charter (as under the Lisbon treaty) is typical of constitutional texts founding a new order and is in line with constitutional codification of dignity since WWII in Europe.38 In fact, it may not be a complete coincidence that the idea of a Human Rights Charter and the process of drafting it started in 1989 (with the European Parliament Declaration), the year the Berlin Wall came down, and re-started in 1999 (the Cologne summit), when people might have felt that Europe could never be safe enough from totalitarianism.39 The repetition of dignity in strategic places (preamble, Title I, Arts 1, 25 and 31) indicates that dignity could potentially have a very far-reaching transformative effect on EU law and its approach to human rights under the Lisbon Treaty. However, human dignity is also a notoriously difficult legal concept: its exact legal 01.26 nature is uncertain, its substantive meaning and scope in relation to human rights are disputed.40 Finally, it is often deployed in an attempt to resolve very sensitive issues which lack a clear political and social consensus, within Member States and across the EU, such as the legality of abortion, euthanasia, assisted suicide or certain uses of human embryonic cells.41

II. Scope of Application The scope of Article 1 is unusually wide due to the dual nature of dignity under the 01.27 EU Charter, ie both a right and ‘the real basis of fundamental rights’ (explanations, above). In conceptual terms this may not be an easy tension to reconcile. In practical terms, however, dignity’s dual legal nature under the Charter is likely to prove beneficial as it offers flexibility to protect human beings in the most appropriate way. Indeed,

36 Since the coming into force of the EUCFR, the CJEU has referred once to Art 1, but has not developed a meaning for this provision. The NS case is discussed below. 37 M Olivetti above n 13, 4. 38 C Dupré, ‘Human Dignity in Europe: A Foundational Constitutional Principle’ (2013) 19 European Public Law 319. 39 EO Eriksen, ‘Why a Constitutionalised Bill of Rights’ in EO Erisken, JE Fossum and AJ Menéndez (eds), The Chartering Europe, The European Charter of Fundamental Rights and its Constitutional Implications (Baden-Baden, Nomos, 2003) 48–70. 40 C McCrudden ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 European Journal of International Law 655; C O’Mahony, ‘There is no such thing as a right to dignity’ (2012) 10 International Journal of Constitutional Law 551. Generally, see: N Rao ‘Three Concepts of Human Dignity in Constitutional Law’ (2011) 86 Notre Dame Law Review 222. 41 M Borowsky, ‘Wertkonflikte in der Europäischen Union, eine Problemskizze’ in HJ Derra (ed), Freiheit, Sicherheit und Recht, Festschrift f. J Meyer zum 70. Geburtstag (Baden-Baden, Nomos, 2006), 49–69.

Catherine Dupré

15

Part I – Commentary on the Articles of the EU Charter

the Charter’s driving logic is a teleological one, as indicated in the preamble, namely ‘to place the individual at the heart of the EU activities’. As a result, alleged victims of human dignity breaches, as well as the CJEU, should always be able to rely on dignity regardless of whether dignity is at stake as a right or as the basis of rights. 01.28 What is clear under the Charter is that dignity is an exclusively human quality: it is explicitly qualified as ‘human’, and all the rights guaranteed under Title I protect the most essential attributes of humanity. Moreover, under Articles 25 and 31 the Charter confirms that dignity also applies to human beings in more routine situations, such as work and old age. Human dignity therefore does not apply to non-human entities, such as institutions, corporations or states. Indeed in this respect, the Charter (and Art 2 TEU) clearly indicates that the EU’s concern and priority is the person, and not the institutions (or the market economy). A combined reading of Article 2 TEU and Article 1 EU Charter therefore indicates that the development of the internal market has to be pursued with the interests of human beings at its heart. Finally, a very important point to note is that Article 1 protects all humans, regardless of nationality, i.e. whether or not they are EU citizens. This is of relevance in particular with regards to asylum-seekers, both in the way they are treated by Member States where they are seeking asylum and when Member States consider returning them to their country of entry, as recently confirmed by a ruling of the CJEU.42 It is also of relevance in relation to non-EU nationals outside the EU, who may be affected by the Union’s external action (as seen above). 01.29 Human dignity protects human beings while they are alive, and throughout their lives. The Charter contains no indication that dignity might extend after death and this will have to be clarified by case law. ECtHR case law does not extend human rights protection after death.43 However, the CJEU might want to follow the common constitutional traditions of Member States (Art 52.4), which extend dignity protection after death.44 End-of-life situations and the rights of the dying do fall into the general scope of Article 1 EUCFR, but it has to be noted that the Charter contains a number of specific provisions that may be more usefully relied on; these include Articles 2, 3, 4 and 35 EUCFR. These end-of-life situations have often led to controversy about the relevance and the use of the dignity argument in judicial reasoning. Under the EU Charter, however, the dual nature and scope of dignity may prove useful: while dignity (as a foundation of rights) acts as a powerful reminder of the ‘centrality of human beings’ in disputes that may involve complicated medical decisions or have financial dimensions and implications, the technical protection may be derived from the more specific rights enshrined in the Charter. This approach is in line with the logic adopted by the ECtHR under the Pretty ruling: the ECtHR used its dignity formula to highlight the importance of protecting human beings in Pretty’s situation, concluding that the denial of assisted suicide amounted to a breach of privacy (a restriction which the Court went on to find lawful under Art 8.2 ECHR).

42

Case C-411/10 NS, above n 4. Akpinar and Altun v Turkey App no 56760/00 [2007] ECHR 56760/00 (‘[H]uman quality is extinguished after death and, therefore prohibition on ill-treatment is no longer applicable to corpses’ (para 82)). 44 See the partly dissenting opinion of Justice Fura-Sandström under the Akpinar and Altun v Turkey case. 43

16

Catherine Dupré

Art 1 – Human Dignity

The protection of human dignity before birth is another notoriously difficult and 01.30 controversial issue.45 By way of clarification, a number of points can be noted. First, the phrasing of Article 1 (or of Art 2) does not refer to dignity (or life) before birth, a drafting which was adopted in some Member States’ constitutions. This was not an issue discussed during the Charter drafting process, but it can be inferred that the drafters sought to achieve consensus with their choice of wording, building into it a certain flexibility meant to avoid conflicts between those Member States where the constitution protects life before birth (and sometimes life since conception, as in Hungary since 201246) and those where the constitution protects dignity only after birth (which is most of them, if the legality of abortion may be used as an indicator). The ECtHR has been careful to leave options open, and in the Vo v France ruling, Article 2 ECHR protects the unborn life through positive obligations, and not by defining the foetus as an individual subject of rights.47 As the Grogan case illustrated48 and as argued by many, it will be difficult for the CJEU to maintain this status quo. Again, the dual nature of dignity together with the distinct Title I articles may prove useful in providing flexibility and consensus. At the core of these issues is the constitutional (and political) definition of humanity, and the many questions about its genetic dimension and the technological ability to engineer it in ways that were not possible before. While dignity, both as a right and as a discursive argument in judicial reasoning, has a role to play, it cannot substitute full democratic and political debates necessary to explore and decide on these matters. Finally, and importantly, the question of the scope of Article 1 raises the issue of whether 01.31 welfare entitlement can be derived from the duty to respect and protect human dignity. Several points converge in support of a positive approach to this.49 First, two principles are clearly enshrined in the Charter, namely the indivisibility of rights and the centrality given to the protection of human beings. Following this logic, human dignity would be deprived of its significance if it were used exclusively in relation to civil and political rights. In fact, the protection afforded by Title I rights focuses on the person as a whole, without distinguishing between the physical and mental dimensions of human beings (notably under Articles 3 and 4). The human being at the heart of the EUCFR is therefore not just an abstract individual.50 Secondly, human dignity is the source of all rights contained in the EUCFR, including therefore the ‘Solidarity rights’, social rights and welfare provisions.51 In particular, the recognition of a right to a minimum subsistence derived

45 D Kommers, ‘Autonomy, Dignity and Abortion’ in T Ginsburg and R Dixon (eds), Comparative Constitutional Law (Cheltenham, Edward Elgar, 2011) 441. 46 Notably under Art 40.3.3 of the Irish constitution, following the 1983 constitutional reform. See also the 2012 Hungarian Fundamental Law; C Dupré, ‘Human Dignity: Rhetoric, Protection and Instrumentalisation’ in GA Toth (ed), Constitution for a Disunited Nation, Hungary’s New Fundamental Law (Budapest, Central European University Press, 2012) 143–69. 47 Vo v France (8 July 2004). 48 Case C-159/90 The Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan [1991] ECR 4685. 49 B Klein Goldewigt, Dignity and Human Rights: The Implementation of Economic, Social and Cultural Rights (Antwerp, Interstentia, 2002); specifically, see K Schwarzburg above n 10, 135–50. 50 M Nussbaum, Creating Capabilities: The Human Development Approach (Belknapp, Harvard University Press, 2011); C Dupré, ‘Unlocking Human Dignity: Towards a Theory for the 21st Century’ (2009) 2 European Human Rights Law Review 190. 51 AJ Menéndez, ‘Rights to Solidarity’ in EO Eriksen, JE Fossum and AJ Menéndez (eds), The Chartering of Europe (Baden-Baden, Nomos, 2003) 178.

Catherine Dupré

17

Part I – Commentary on the Articles of the EU Charter

from human dignity forms part of the constitutional traditions common to the Member States.52 The ECtHR has recognised that minimum material provisions (e.g. food, access to a toilet, blankets, and clothes) have to be provided to prisoners in order to meet the standard of Article 3 ECHR.53 While there is some discussion about the exact legal nature of welfare provisions, in practice the Charter offers many possibilities for combining Article 1 with more specific provisions, such as Article 14 (education), Article 34 (social security and social assistance), Article 35 (health care), Article 36 (access to services of general economic interest) or Article 37 (environmental protection). Finally, there may well be some overwhelming democratic interest in strengthening the connections between dignity and welfare provision in the EU in order to address its ongoing and increasingly problematic democratic deficit and the sense of alienation that it may trigger in some Member States, particularly at the time of crisis.54

III. Specific Provisions (a) ‘Dignity’ 01.32 Dignity is one of the most difficult concepts to understand and to define in law. Intuitively and legally, it has to do with notions of (self-) respect, autonomy, privacy, integrity and self-determination. In a manner typical of human rights conventions, the EUCFR does not define ‘dignity’. As a result some scholars have suggested that dignity should remain conceptually open,55 so that it continues to be an ‘anthropological reservoir of meaning’ (anthropologisches Sinnreservoir),56 from which we can keep deriving new means of defining and protecting humanity. In this respect, the closest synonym to ‘human dignity’ offered by the Charter is perhaps the preamble phrase, ‘placing the individual at the heart of [EU] activities’. Immanuel Kant is the philosopher who has most influenced the construction of human dignity by constitutional lawyers in Europe,57 and his reflection on dignity and humanity has been received in law as the prohibition

52 M Borowsky above n 15, 111–12; C Bittner, ‘Case note—Human Dignity as a Matter of Legislative Consistency in an Ideal World: The Fundamental Right to Guarantee a Subsistence Minimum in the German Federal Constitutional Court’s Judgment of 9 February 2010’ (2011) 12 German Law Journal 1941. See also case No 509/02, of 19 December 2002 (plenary) of the Portuguese constitutional tribunal, translated in P Bon and D Maus (eds), Les grandes décisions des cours constitutionnelles européennes (Paris, Dalloz, 2008) 173. On the connections between Art 3 ECHR, human dignity and ‘rooflessness and cashlessness’ of asylum-seekers, see R (on the application of Adam) v Secretary of State for the Home Department [2006] HLR 10 [77]–[78]. 53 MS v UK (3 May 2012) [39] and [44]. See also Price v UK (10 July 2001). 54 This sense of alienation may be particularly strong in times of economic and financial crisis where the EU can be identified with a systematic reduction in the quality of life, access to basic welfare (eg health care, pensions, education, and unemployment benefits) and income reduction, and rather than its proclaimed commitment to human rights protection, to equality and to democracy. 55 F Sacco, ‘Note sulla dignità umana nel “diritto costituzionale europeo”’ in SP Panunzio (ed), I diritti fondamentali e le Corti in Europa (Naples, Jovene Editore, 2005) 596. 56 S Rixen, ‘Würde des Menschen als Fundament der Grundrechte’ in FSM Heselhaus and C Nowak (eds), Handbuch der Europäischen Grundrechte (Munich, CH Beck Verlag, 2006) 345; and P Häberle, Das Menschenbild im Verfassungsstaat, 4th edn (Berlin, Duncker und Humblot, 2005). 57 Kant is however not the only thinker of dignity: the work of Lassale (who was behind the drafting of Art 151 of the 1919 Weimar constitution) and of Proudhon (who connected the concepts of dignity and justice) have to be borne in mind; see CR Miguel, ‘Human Dignity: History of an Idea’ (2002) 50 Jarhbuch des öffentlichen Rechts 281.

18

Catherine Dupré

Art 1 – Human Dignity

on instrumentalisation or objectification of human beings and the instruction always to treat a person as an end in herself, not as a means.58 In the bioethics context, the Kantian injunction is at the heart of the Oviedo Convention, with the explicit prohibition that the ‘human body and its parts shall [not], as such, give rise to financial gain’ (Art 21). It is also at the heart of the ECHR and the EU Charter, notably with the prohibition on degrading and humiliating people, on reducing them to slaves, and, a more common occurrence and addition of the Charter under Article 3, the recognition of their (mental and physical) integrity. In EU law, human dignity has so far been granted four types of legal nature. 01.33 Chronologically, dignity was first recognised as a ‘general principle of law’ in the Omega ruling. As such, it acquired an objective dimension (as opposed to subjective, ie related to the applicant) and became part of the ‘public policy’ (see above). Secondly, as will be remembered, human dignity is the first foundational value of the EU under art 2 TEU. The last two legal natures of dignity flow from the EU Charter, according to which dignity is both a right and the foundation of all rights (see Explanations, above). The CJEU has not had the opportunity to interpret and implement these different legal identities of the concept of dignity. They are related in the sense that dignity as the first foundational value of the EU may be constructed as branching out in an objective direction (ie as a general principle of law following Omega) and in a subjective direction (ie as the foundation of subjective rights and the most important of all rights) under the Charter. These different natures may also be mutually supportive. For instance, in terms of constructing dignity under the Charter, dignity as the first foundational value can be used to strengthen Article 1 and to highlight the primacy of this right at the heart of EU law. These multiple identities may however also generate conflicts as has happened in some Member States, where an objective definition of dignity has conflicted with a subjective definition.59 (b) ‘Inviolable’ The term ‘inviolable’ is equally difficult to understand. It should not be understood 01.34 as a descriptive term, so as to avoid the misleading perception that the EU is a sort of paradise, where dignity can never be breached in practice. Due to the similarity of this phrasing with Article 1 German Basic Law, many German scholars have argued that the qualification of dignity as ‘inviolable’ implies that it is an absolute right (see below under ‘Limitations and derogations’). It might arguably be more helpful to understand dignity’s inviolability as the EU 01.35 commitment to do everything possible to avoid breaching human dignity. In this sense, dignity’s inviolability becomes the axiomatic foundation of the whole EU. In other words, the term ‘inviolable’ may be read as a twenty-first century equivalent of the ‘inalienable and sacred rights of Man’ of the 1789 French Declaration of the Rights of

58 Since G Dürig’s seminal paper: ‘Der Grundrechtssatz von der Menschenwürde’ (1956) 81 Archiv für Öffentliches Recht, 117. 59 M Lévinet, ‘Dignité contre dignité. L’épilogue de l’affaire du “lancer de nains” devant le comité des droits de l’homme des Nations Unies’ (2000) 55 Revue Trimestrielle des Droits de l’Homme 1024, and N Rao above n 40, 226.

Catherine Dupré

19

Part I – Commentary on the Articles of the EU Charter

Man and Citizen.60 The reference to inviolability places human beings at the top of the EU normative pyramid and prescribes that the power balance between human beings and the EU is tipped in favour of the former, so that none of the EU (economic and financial) activities may breach human dignity. Title I provides a list of specific rights to put this into practice and to prevent (and sanction) breaches of the core dimensions of humanity. Moreover, the Omega ruling has shown how in practice dignity could take priority over freedom of establishment, indicating how the EU may be able to re-focus its purposes and actions from a mainly economic to a political entity protecting human beings and their rights.61 (c) ‘Duty to Respect and Protect’ 01.36 This laconic statement masks a very complex debate and reality about the protection of dignity under the EU Charter.62 At a first reading, ‘respect and protect’ indicates the classic distinction in liberal democracy between a negative duty (not to interfere with dignity) and a positive duty (to take active steps to ensure that dignity is not breached). This distinction is developed in the core prohibitions under Title I EUCFR and in line with positive obligations imposed on Member States under the ECHR. 01.37 Moreover, the protection duty is very far-reaching. First, as indicated by the CJEU in the NS ruling of 2011, human beings are protected against potential breaches (not only actual breaches), and this duty has a clear preventive function in relation to torture, degrading and humiliating treatment.63 In this ruling the CJEU did not refer to the Article 1 duty of protection, but developed its interpretation following a similar logic: states have a (positive) duty to find out about the likely treatment of asylum-seekers in the country of entry; states also have a (negative) duty not to send asylum-seekers back to their country of entry if they are likely to suffer from treatment prohibited under Article 4 EUCFR. Secondly, the dignity protection duty is not limited to the EU territory, but reaches outside the EU. This flows from Article 21 TEU, which provides that the EU’s external action has to be guided by the principle of respect for human dignity.64 01.38 Finally, while Member States and the Union are explicitly identified as having prime responsibility for enforcing this duty under Article 52, it cannot be excluded that the protection duty also affects private parties (Drittwirkung).65 Three broad points support this. First is the ‘inviolability’ of dignity, i.e. the fact that human dignity would no longer be ‘inviolable’ if its violation by private parties could not be sanctioned. Secondly, all

60 ‘The Charter provides that ... human dignity should be intended as something of a “sanctuary” or, perhaps as a kind of “no man’s land” where outside powers—whether public or private—have no access’: M Olivetti above n 11, 8. 61 Generally, see AJ Menéndez, ‘Finalité through rights’ in EO Eriksen, JE Fossum and AJ Menéndez (eds), The Chartering of Europe (Baden-Baden, Nomos, 2003) 30–48 and CT Smith and T Fetzer, ‘The Uncertain Limits of the European Court of Justice’s Authority: Economic Freedom versus Human Dignity’ (2004) 10 Columbia Journal of European Law 445. 62 K Schwarzburg above n 10, 325–34; see also S Kühling, ‘Fundamental Rights’ in A von Bogdandy and J Bast (eds), Principles of European Constitutional Law (Oxford and Munich, Hart Publishing and CH Beck Verlag, 2010) 479–512. 63 Case C-411/10 NS, above n 4. 64 K Schwarzburg above n 10, 329. 65 M Olivetti above n 13, 10, and S Kühling above n 62, 496.

20

Catherine Dupré

Art 1 – Human Dignity

Title I rights, which can be understood as the core components of human dignity, also apply between private parties, who are certainly not exempted from the duty of respect and protection. Moreover, Article 31 specifically provides for a horizontal duty of protection between the worker and the employer in the context of the workplace. Finally, the foundational dimension of dignity under both Article 2 TEU and the EUCFR would be depleted of much of its substance if dignity had no impact on private relations. However, it is not clear whether fundamental rights have direct horizontal effect under the Charter.66 On the one hand, a strict reading of Article 51.1, which does not include a reference to private parties and of Article 52.2, which requires further implementation measures and restrictions, points to the lack of direct horizontal effect. On the other hand, the rights listed in the Charter are only ‘made more visible’ and when they have been found to have direct horizontal effect in case law (for instance), there is arguably no reason why they should stop having direct horizontal effect due to being codified under the Charter.

IV. Limitations and Derogations This question is related to the absolute or relative character of Article 1. In support of 01.39 the absolute character, ie human dignity falling outside the scope of Article 52, primarily is its ‘inviolable’ nature, literally taken to mean that it is not subject to limitations and derogations. Moreover, constructing dignity as relative would arguably undermine the very foundations of the EU and of the EUCFR rights, and the absolute character of dignity is corroborated by the absolute nature of the Title I rights.67 The advantages of considering dignity as absolute are twofold: this gives the EU and its rights the strongest possible foundation, sending out a very clear message about the EU’s political commitment towards human rights, both to Member States and internationally. In the hands of judges, an absolute concept of dignity could be used in extreme cases as a last resort (a sort of nuclear option in the absence of other relevant rights or in the event of a breach of the very essence of humanity and democracy). Such a self-restrained approach to dignity may be useful in focussing the concept’s uses in rare cases, thus preventing inflationary references in an apparently limitless set of circumstances. However, the absolute nature of dignity may also have disadvantages: it may lead to this concept’s crystallisation and make it very difficult (if not impossible) to question its meaning and scope, rendering any subsequent evolution of its meaning (and of the rights derived from it) difficult.68 It may also be so rarely used by judges as to be at risk of disappearing from their radar, and, in the worst-case scenario, acquiring paradoxically a mere declaratory status, without justiciable quality. Finally, interpreting dignity as absolute may

66 See for instance AG Trstenjak’s Opinion on Case C–282/10 Maribel Dominguez v Centre Informatique du Centre Ouest Atlantique and Préfet de la région Centre, 8 September 2010, paras 80–83. See also J Kokott and C Sobotta, ‘The Charter of Fundamental Rights of the European Union after Lisbon’ EUI Working Paper (2010/6) (Florence, Academy of European Law, 2010) 14. More generally see S Gardbaum ‘The ‘Horizontal Effect’ of Constitutional Rights’ (2004) 102 Michigan Law Review 387, 403–4. 67 F Schorkopf, ‘Würde des Menschen’ in D Ehlers (ed), Europäische Grundrechte und Grundfreiheiten (Berlin, De Gruyter, 2009) 490 and M Borowsky above n 15, 118. 68 Ch Enders above n 30 and Ch Möllers, ‘Democracy and Human Dignity: The Limits of a Moralized Conception of Rights in German Constitutional Law’ (2009) 42 Israel Law Review 416.

Catherine Dupré

21

Part I – Commentary on the Articles of the EU Charter

render integration dynamic more difficult and collide with Member States’ traditions where dignity is not always understood and protected as an absolute right or value. 01.40 On the other hand, dignity may be considered as being relative. This flows from a strict reading of Article 52, which does not explicitly exclude dignity from its scope of application. Dignity could therefore be restricted in compliance with this provision. One advantage of this option might be to encourage a more routine use of the concept, which could be instrumental in stimulating a new dignity-based rights culture and practice in the EU under the Lisbon Treaty. A second advantage might be in dedramatising dignity, together with the sensitive (even taboo) issues related to it (such as abortion, euthanasia, assisted suicide, uses of human embryos), and to mobilise the uses of dignity and its judicial language. It has to be noted that constructing dignity as relative does not necessarily trivialise it: human dignity remains the first foundational value of the EU, the source of all rights and the first and most important right under the EUCFR. Furthermore, under Article 52 dignity (like the other rights) may only be limited under a very strict set of requirements and circumstances. Importantly, its ‘essence’ may never be touched, so dignity remains ‘inviolable’. Furthermore Article 52.1 makes it very clear that ‘any limitation on the exercise of [human dignity] must be provided for by law and respect the essence of those rights and freedoms.’ This may be understood as an indication that dignity should always be considered by judges and should therefore become a standard step in their reasoning each time they are facing a human rights issue. Finally, a relative status of dignity under the EUCFR would be subject to the subsidiarity principle, making it possible for the absolute (constitutional) status of dignity in some Member States to continue to be enforced. The crux of the discussion on the relative/absolute status of dignity may lie in the 01.41 determination of its hierarchical position within the EU normative system. The relative status of dignity would not necessarily deprive it of its hierarchically superior position, guiding the interpretation and implementation of the Charter rights. In this respect, the novel hierarchical position of dignity under the Charter contrasts with the ECHR hierarchy of rights. Namely, whereas under the ECHR, the right to life is the first right, under the EUCFR it becomes the second right, i.e. after dignity. This is a significant change in the hierarchy of rights as so far established at the supranational level, and may particularly affect the interpretation and the protection of the right to life. While, as discussed above, this right retains its sacred status under Article 2 EUCFR (with the addition of the prohibition on the death penalty), it may now be interpreted in the light of Article 1 and be constructed as the right to live in dignity. This construction becomes relevant to end-of-life situations (although it should by no means be automatically equated with a pro-euthanasia stance). Moreover, as indicated under Article 25 EUCFR, the right to life with dignity has much more far-reaching implications,69 highlighting thus the fact the protection of dignity is the raison d’être of the whole Charter and the ultimate test of each of its specific rights, including the right to life. 01.42 A subtle and complex set of distinctions may be a suitable compromise for finding a way out of this conundrum, making the most of the multiple legal natures so far attributed to dignity under EU law. As a result, the relative/absolute status of dignity may vary

69 C Dupré, ‘Human Dignity and the Withdrawal of Medical Treatment: A Missed Opportunity?’ (2006) 6 European Human Rights Law Review 678.

22

Catherine Dupré

Art 1 – Human Dignity

with its legal nature. As a general principle, dignity is relative but can take priority over the fundamental freedoms (as per Omega). As the first foundational value it is absolute in order to ensure a strong basis from which subsequent EU law may not deviate. The same applies to dignity as the foundation of human rights. Finally, as a human right, dignity may be constructed as relative, but it is of course the first and most important of all rights. These finer distinctions may, however, remain largely academic as in practice the CJEU is likely to adopt a very cautious and possibly minimally casuistic approach.

V. Remedies A well-known paradox of the EUCFR under the Lisbon Treaty (and one of its shortcom- 01.43 ings) is that the Charter does not create any new remedies to render human rights fully effective.70 This is not to say, however, that human dignity breaches cannot be addressed by the CJEU. Remedies and sanctions for breaches of dignity stretch across the full span of EU provision in this respect, ie from interpretation issues (preliminary rulings) to sanctions under Article 7 EU Treaty. The most effective and routine remedy for dignity breaches is likely to be a reference 01.44 for a preliminary ruling under Article 267 TFEU. This is how most of the successful dignity cases were brought to the ECJ/CJEU (the P v S, KB, Omega and NS cases). This is how most future cases are likely to arise too, due to the necessity of clarifying the respective meanings of dignity under the EUCFR and Member States, particularly in those Member States where dignity is well embedded in the constitutional culture. Moreover, in terms of judicial uses, the argument of dignity has proved to be more effective as a hermeneutic tool, deployed by courts to clarify and—crucially—to transform the meaning of a range of legal provisions and human rights, as illustrated in ECJ dignity case law so far.71 Additionally, an action in annulment (under Article 263) for breach of dignity may be possible, particularly as the ‘institutions, bodies, offices and agencies of the Union’ are now bound by dignity under Article 51 EUCFR. This, however, may not be the easiest route for individuals to pursue as access to the CJEU is very restricted.72 In the absence of a specific EU remedy against human rights breaches, Member States are likely to offer a more effective and user-friendly route to address and redress dignity breaches.73 Judges, applicants and their lawyers will find in the EUCFR a welcome clarification of the supranational concept of dignity and its specific core rights under Title I. They might also combine these with the ECHR case law and be inspired by the ECtHR’s fluid and creative approach to dignity so far. Finally, considering the prime importance of dignity under both the Charter and the Lisbon Treaty (Art 2 TEU), the Article 7 sanction may well become relevant.74 ‘A clear risk of a serious breach’ of any of the rights protected under Title I may therefore trigger Article 7 proceedings. Overall 70 One option provided by the EU Treaty under Art 6.2 is that the EU becomes a member of the ECHR. While this would make it possible for alleged victims to sue the EU before the ECHR for breaches of the ECHR by the EU, this option still leaves no specific remedy against breaches of the EUCFR. W Weiss, ‘Human Rights in the EU: rethinking the role of the ECHR after Lisbon’ (2011) European Constitutional Law Review 64. 71 S Rixen highlights the ‘discourse structuring function of dignity’, above n 56, 348. 72 K Schwarzburg, above 10, 249–51. 73 W van Gerven, ‘Remedies for Infringements of Fundamental Rights’ (2004) 10 European Public Law 261. 74 Ph Wallau, above n 1, 177.

Catherine Dupré

23

Part I – Commentary on the Articles of the EU Charter

and as discussed above, any serious risk of removing the individual from the centre of the EU’s activities and concerns may become an Article 7 issue as a threat to its first foundational value (Art 2) and most emblematic right.

E. Evaluation 01.45 The codification of human dignity under Article 1 EUCFR has brought the EU’s commitment to human rights into line with that of most of its Member States and with ECHR case law. While the concept of dignity and its protection were not totally unknown to EU law, having been developed by the ECJ in few but significant cases, Article 1 provides a solid basis for human rights protection (both in practical and theoretical terms). Moreover, the Charter provides the first normative definition of dignity at the supranational level, as it includes under Title I all the core prohibitions on which post-WWII human rights were founded. In addition to this core definition, this study has shown that the Charter constructs a thick definition of human dignity. It confirms the essential role of dignity developed by the ECtHR by making it (in line with international law and Member States’ constitutionalism) the foundation of human rights. As such, dignity is tightly intertwined with the equality requirement (all human beings are equal in dignity and rights) and is an inherently human quality, which exclusively protects human beings. While the Charter does not bring a definitive answer to whether dignity protects all forms of humanity as well as all human beings (such as human embryos in utero and in vitro, embryonic cells, genetic make-up of human beings and future generations), its commitment to ‘place the individual at the heart of its activities’ provides both a timely codification of its human rights practice and a direction for future development of EU law under the Lisbon Treaty. Finally, the EUCFR concept of dignity protects the person as a whole, and not just specific types of rights (eg civil and political rights). In short, Article 1 contains most ingredients for an effective definition and protection 01.46 of the EU’s most important fundamental right and what is also its first foundational value. While the primacy of dignity under the Charter is not underpinned by a matching remedy before the CJEU, making it possible for the primary victims of dignity (and rights) breaches to access the Court, a number of domestic remedies are available to them, leading up (as the case may) to preliminary rulings, which have so far proved effective in protecting dignity. However, it is unfortunate that the coming into force of the Lisbon Treaty and its Charter has coincided with the worst economic and financial crisis of the EU since its creation. This has deprived the EU, its institutions, its Member States and its citizens of a precious time to familiarise themselves with the Charter and the new possibilities offered by the EU’s commitment to dignity as an ‘inviolable’ good, which has to be protected and respected in all circumstances. In the EU’s management of the crisis, little regard has so far been paid to human dignity, and individuals’ central place at the heart of the EU’s activities has arguably been exclusively occupied by considerations of financial and budgetary rigour, leading to paradoxical threats to (and possibly breaches of) what is under the under the Lisbon Treaty and the Charter the real ‘golden rule’ of the EU.

24

Catherine Dupré

Article 2 Article 2 Right to Life 1. Everyone has the right to life. 2. No one shall be condemned to the death penalty, or executed.

Text of Explanatory Note on Article 2 1. Paragraph 1 of this Article is based on the first sentence of Article 2(1) of the ECHR, which reads as follows: ‘1. Everyone’s right to life shall be protected by law …’ 2. The second sentence of the provision, which referred to the death penalty, was superseded by the entry into force of Article 1 of Protocol No 6 to the ECHR, which reads as follows: ‘The death penalty shall be abolished. No-one shall be condemned to such penalty or executed.’ Article 2(2) of the Charter is based on that provision. 3. The provisions of Article 2 of the Charter correspond to those of the above Articles of the ECHR and its Protocol. They have the same meaning and the same scope, in accordance with Article 52(3) of the Charter. Therefore, the ‘negative’ definitions appearing in the ECHR must be regarded as also forming part of the Charter: (a) Article 2(2) of the ECHR: ‘Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.’ (b) Article 2 of Protocol No 6 to the ECHR: ‘A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions …’

Select Bibliography R Hood and C Hoyle, The Death Penalty: A Worldwide Perspective, 4th edn (Oxford, Oxford University Press, 2008). D Korff, The Right to Life: A Guide to Implementation of Article 2 of the European Convention on Human Rights (Human Rights Handbook No 8) (Strasbourg, Council of Europe, 2006). B Mathieu, The Right to Life (Strasbourg, Council of Europe, 2006). A Plomer, ‘A Foetal Right to Life? The Case of Vo v France’ (2005) 5 Human Rights Law Reports 311. E Wicks, The Right to Life and Conflicting Interests (Oxford, Oxford University Press, 2010). ——, ‘A, B, C v Ireland: Abortion Law under the European Convention on Human Rights’ (2011) 11 Human Rights Law Reports 556. ——, ‘The Meaning of Life: Dignity and the Right to Life in International Human Rights Treaties’ (2012) 12 Human Rights Law Reports 199.

Part I – Commentary on the Articles of the EU Charter

J Yorke, ‘The Right to Life and Abolition of the Death Penalty in the Council of Europe’ (2009) 34 European Law Review 205. —— (ed), Orientations of the Right and Value of Life (Farnham, Ashgate, 2010).

A. Field of Application of Article 2 02.01 The right to life may be the right with the least obvious application to EU law. At a superficial level, it may appear that Union law does not directly engage with the right to life: it does not subject citizens to the death penalty, nor use lethal force in law enforcement, and nor do the Member States when implementing Union law. Nevertheless, the EU is increasingly extending its influence into fields with some relevance to the preservation of the right to life of EU citizens. First, there is the obvious field of criminal justice—which is the field in which the right to life is most commonly infringed under other treaties. The EU took its first tentative steps into the criminal justice arena when the Maastricht Treaty enabled judicial cooperation in criminal matters under the third pillar. The Lisbon Treaty increased the EU’s influence in this area by providing for a new legal framework for criminal legislation, while the Stockholm Programme1 now forms the agenda for EU justice and home affairs legislation from 2010 to the end of 2014. While not directly engaging the right to life, the EU’s involvement in matters of criminal justice and security will increase the potential for engagement with this right. In addition, the EU’s criminal law relations with third states may raise a particular issue in respect of states that have not abolished the death penalty. Secondly, the EU’s increasing involvement in issues of health care also has the clear 02.02 potential to engage right to life issues. In addition to the explicit obligation under the Treaty of Maastricht (Art 152) to ensure a high level of health protection in all Community policies and activities, the free movement provisions have also been utilised in the healthcare context to facilitate access to medical treatment, while the recent Patient’s Rights Directive2 explicitly aims to promote cooperation on healthcare and further facilitate access to cross-border healthcare.3 The right to receive medical treatment in another Member State has been recognised as an aspect of free movement to provide and receive services. The right to life may be of some relevance in respect of a right to receive life-sustaining treatment (or even, perhaps, in relation to a state’s obligation to provide life-sustaining treatment for a patient unable to provide consent). For example, the claim in Peerbooms, where a Dutch health insurance fund denied reimbursement of medical costs for a Dutch citizen in a coma who was referred to a specialist clinic in Austria, may have been strengthened if the patient’s right to life was a factor added to his right to receive services.4 The right to life could also, however, be used as a factor cautioning against access to medical services in another Member State, if the service

1 ‘The “Stockholm Programme”—An Open and Secure Europe Serving and Protecting Citizens’ [2010] OJ C115/1. 2 Directive 2011/24 on the application of patients’ rights in cross-border healthcare [2011] OJ L88/45. 3 For more information on freedom of services as regards healthcare, see TK Hervey and JV McHale, Health Law and the European Union (Cambridge, Cambridge University Press, 2004). 4 Case C-157/99 Geraets Smits v Stichting Ziekenfonds VGZ (2001) 62 BMLR 101.

26

Elizabeth Wicks

Art 2 – Right to Life

sought is assisted suicide or euthanasia.5 While such treatment might be regarded as a service to which the free movement provisions would generally apply,6 if it is regarded as contrary to the right to life (which is by no means certain) then EU law may no longer be in a position to facilitate access to such services, potentially justifying Member States restricting access to such services. Similar factors may be at play in respect of cross-border abortions. The European Court of Justice has confirmed in Society for the Protection of the Unborn (Ireland) Ltd v Grogan and others, that abortion is a service qualifying for free movement.7 In this case, however, the Court was reluctant to engage with the rights issues and rejected an argument that a prohibition on information relating to the availability of abortions in other states violated the freedom to provide and receive services due to the lack of a commercial element to the service provision in this case. Presumably if such a commercial element did exist, EU law would have been more substantively engaged by the facts of the case. Furthermore, it is potentially significant that arguments about the morality of abortion were held not to affect whether or not it is a service. So, because abortion is lawful in, for example, the UK, the Irish argument of its immorality is regarded as irrelevant to its protection under the EU’s free movement provisions. However, an obligation to respect the right to life might change that perspective if, and only if, the right is viewed as being engaged by the termination of a pregnancy. The controversial application of the right to life to a foetus will be considered below. A final potential field of application for the right to life within EU law is in the context of armed conflict. The EU has a Common Security and Defence Policy, and has ongoing military deployments in Bosnia and Herzegovina and Somalia.8 While there are difficult questions of jurisdiction, derogation and necessity to be settled before a death in conflict can engage the right to life (discussed below), the EU’s increased involvement in global matters may, alongside its increased involvement in the criminal justice and healthcare arenas, render the right to life a relevant and enforceable aspect of the Charter.

02.03

02.04

B. Interrelationship of Article 2 with Other Provisions of the Charter The right to life has a complex relationship with the concept of human dignity (Art 1), as reference to issues such as ‘dying with dignity’ illustrates. Article 1 of the Charter states that ‘Human dignity is inviolable. It must be respected and protected.’ As the Explanations make clear, dignity is a right in itself and also a basis for all fundamental

5 Voluntary active euthanasia is lawful, in strictly defined circumstances, in both the Netherlands and Belgium. It is prohibited in other Member States. 6 See S Michalowski, ‘Health Care Law’ in S Peers and A Ward (eds), The European Union Charter of Fundamental Rights (Oxford, Hart Publishing, 2004) 295–96. 7 Society for the Protection of the Unborn (Ireland) Ltd v Grogan and others [1991] ECR I-4703. See G de Búrca, ‘Fundamental Human Rights and the Reach of EC Law’ (1993) 13 Oxford Journal of Legal Studies 283; D Rossa Phelan, ‘Right to Life of the Unborn v Promotion of Trade in Services: The ECJ and the Normative Shaping of the EU’ [1992] 55 Modern Law Review 670. 8 www.consilium.europa.eu/eeas/security-defence/eu-operations?lang=en.

Elizabeth Wicks

27

02.05

Part I – Commentary on the Articles of the EU Charter

rights. As the basis of the right to life, it emphasises the significance of dignity in human life,9 and ensures that a focus on the economic and social context of life is not overlooked. As a right in itself, however, it may caution against the preservation of life in circumstances where the dignity of the individual is undermined. For example, a positive obligation under the right to life to preserve the life of a comatose patient may conflict with the obligation under the right to dignity to respect and protect human dignity at all times. The potential for conflict depends entirely upon the interpretation placed upon dignity; a controversial and ambiguous issue. Dignity can be viewed as either empowerment or constraint. It can sometimes reinforce a right of autonomy, and at other times limit it.10 It is when reinforcing autonomous choice that dignity may conflict with the right to life, but the concept has another side and thus it may strengthen the protection for human life under the Charter by precluding the limitation of the right to life in a manner that would violate the concept of human dignity. Thus, while the use of lethal force by the state is permitted when absolutely necessary in order to prevent unlawful violence, a shoot to kill policy that degrades the dignity in all human life might, perhaps, raise issues under Article 1. In such a way, the right to dignity could consolidate the right to life. The right to life might, in some circumstances, conflict with Article 4’s prohibition 02.06 of inhuman or degrading treatment or punishment. Due to Article 52(3), this right has the same meaning and scope as Article 3 ECHR which has conflicted with the right to life under the ECHR in cases involving the force-feeding of prisoners. For example, in X v FRG11 the European Commission of Human Rights was asked to consider the compatibility of the force-feeding of a prisoner with Article 3’s prohibition on degrading treatment. The Commission concluded that force-feeding would breach Article 3, but was required under Article 2’s protection for the right to life. The Commission utilised the concept of best interests in order to justify the life-saving intervention. Usually, however, and certainly in the non-custody scenario, it will not be reasonable (and therefore, as we shall see, not required under Article 2) for the state to take steps to save life which involve subjecting an individual to degrading treatment. In line with Article 1’s elevation of the principle of human dignity, the absolute nature of the prohibition on degrading treatment means it will usually triumph when pitted against the limited nature of the right to life. 02.07 As the provision of healthcare appears to be a particularly significant context in which the right to life might come into play in the EU context, it may also be worth noting the right’s potential connection to Article 35’s right of access to preventive health care and right to benefit from medical treatment. An expansive interpretation of the right to life would itself incorporate a (limited) right to access life-saving treatment. The limited nature of the positive obligations imposed by the right to life, however, and particularly the pragmatic recognition of the need to balance the provision of healthcare against the reality of limited resources, means that in practice it will be difficult to utilise Article 2 to gain access to treatment. Article 35 may provide a more effective

9 E Wicks, ‘The Meaning of Life: Dignity and the Right to Life in International Human Rights Treaties’ (2012) 12(2) Human Rights Law Review 199. 10 D Beyleveld and R Brownsword, Human Dignity in Bioethics and Biolaw (Oxford, Oxford University Press, 2001) 46. 11 X v FRG (1984) 7 EHRR 152.

28

Elizabeth Wicks

Art 2 – Right to Life

route for such an argument, although its wide-ranging limitation to ‘the conditions established by national laws and practices’ suggests it also may provide scant assistance to the EU citizen unable to obtain necessary but unaffordable life-preserving treatment. Finally in the healthcare context, Article 3’s explicit protection for the right to respect for physical and mental integrity and for free and informed consent of patients might bring it into conflict with a state’s positive obligation to preserve life in circumstances where consent is withheld. As with Article 4, however, it is unlikely that the limited positive obligations inherent in the right to life would outweigh the core negative obligations on states to respect a patient’s autonomy (at least while that patient retains mental capacity). Article 19(2) prohibits, inter alia, the removal, expulsion or extradition to a state where 02.08 there is a serious risk of being subjected to the death penalty. This supplements Article 2, which will also serve to prevent extradition from a European state to a state which still imposes the penalty (as discussed in more detail below).12

C. Sources of Article 2 Rights I. ECHR The explanations to the Charter clarify that the first paragraph of Article 2 is based upon the first sentence of Article 2(1) ECHR, which states that ‘Everyone’s right to life shall be protected by law’. While the ECHR terminology presupposes an existing right to life, one that is merely given legal recognition by this provision, the wording of Article 2 of the Charter accords the right to everyone. This different approach is unlikely to have much, if any, significance in practice. The second sentence of the ECHR’s protection of the right to life is omitted from Article 2 of the Charter, but this explicit prohibition on the intentional deprivation of life will be implicitly incorporated into the Charter by means of Article 52(3) (which ensures that the right to life in the Charter will have the same meaning and scope as the ECHR right to life on which it is based), as too will the permitted limitations on the right to life also contained in that sentence. These, as the explanations to the Charter specify, permit the deprivation of life when it results from the use of force which is no more than absolutely necessary in one of three criminal justice scenarios: in defence of any person from unlawful violence; to effect a lawful arrest or prevent escape; or to quell a riot or insurrection. The second paragraph of this provision is based upon Article 1 of Protocol No 6 to the ECHR, which abolishes the death penalty in times of peace. Protocol No 6 makes explicit provision for the lawful imposition of the death penalty in time of war or imminent threat of war (Art 2 of Protocol No 6). This limitation is, therefore, also regarded as forming part of the Charter due to Article 52(3). All Member States have also signed Protocol No 13 to the ECHR, which prohibits the death penalty in times of war (all but Poland have also ratified it). This additional protection is lacking from the Charter,

12 For further discussion of the relationship between Art 19(2) and Arts 2 and 4, see the chapter on Art 19 in this collection.

Elizabeth Wicks

29

02.09

02.10

Part I – Commentary on the Articles of the EU Charter

although Article 53 will ensure that those Member States bound by the higher standards of Protocol No 13 will remain so. Furthermore, it is at least arguable under Article 53 that, despite Poland’s lack of ratification, the less strict rule in the Charter should not be interpreted as adversely affecting the greater protection offered to the right to life in Europe by means of Protocol No 13. 02.11 The European Court of Human Rights has adopted an expansive interpretation of the right to life under the ECHR, extending its protection of human life by imposing positive, as well as negative, obligations upon contracting states. As Article 2 of the Charter is to be given the same meaning and scope as Article 2 of the ECHR, which, according to the explanations, includes the determination of these by the Strasbourg Court, the right to life under the Charter not only prohibits the intentional deprivation of life but also requires that reasonable steps are taken in order to safeguard lives.13

II. UN Treaties 02.12 The right to life is also protected in Article 6 of the International Covenant on Civil and Political Rights. Article 6(1) states that ‘Every human being has the inherent right to life. This life shall be protected by law. No one shall be arbitrarily deprived of his life.’ The main distinction between this protection of the right to life and that found in the ECHR, on which the Charter’s provision is based, is that the ICCPR’s prohibition on deprivation of life applies only to arbitrary deprivations. While this may, at first glance, appear to be a much more limited protection for life than the prohibition of all intentional deprivations of life under the ECHR, the case law of the Human Rights Committee has ensured that the content of the rights are almost identical, by introducing the concepts of proportionality and necessity into the permissible use of lethal force.14 The remainder of Article 6 provides detailed provisions relating to the permissible use of the death penalty, which are of no relevance within Europe where the death penalty is prohibited, at least during times of peace, due to Protocol No 6 to the ECHR.

III. Other Sources 02.13 The right to life also finds some, limited, protection under international humanitarian law (IHL). While human beings can be classified as legitimate military targets, the use of force against them must be proportionate and necessary. Furthermore, civilians are immune from direct attack.15 There is also some protection of civilians from indiscriminate attack, and the unsavoury concept of collateral damage is only acceptable if the numbers of civilian deaths are proportionate to the military aim sought.16 Intentional direct attacks on civilians, causing excessive loss of life to civilians in otherwise legitimate military attacks, and killing a combatant who has surrendered are also recognised

13

Osman v United Kingdom (1998) 29 EHRR 245; Reps 1998-VIII, para 115. Suarez de Guerrero v Colombia (Communication 45/1979). 15 Arts 51(2) and 52(1) Protocol I Geneva Conventions. The prohibition of the killing of civilians was confirmed by the International Court of Justice in the Nuclear Weapons case ((1996) ICJ Reps 226, 257). 16 ‘Excessive’ damage to civilians is expressly prohibited in Art 51(5)(b) Protocol I Geneva Conventions. 14

30

Elizabeth Wicks

Art 2 – Right to Life

as war crimes under the Rome Statute of the International Criminal Court 1998.17 The protection offered by this criminalisation of conduct during hostilities arguably goes further than the protection afforded by the right to life in human rights treaties due to the problematic issue of jurisdiction in respect of protecting the lives of the individuals of one state against the armed forces of another.18 The right to life has strong religious and philosophical roots, and a special value has traditionally been given to human life in all human societies. Most Member States include the right to life in their constitutions and, although there are some significant differences (particularly on the issue of whether the right applies pre-birth19), the basic prohibition on state killing of individuals is firmly rooted throughout Europe and beyond. In addition to constitutional declarations of the right to life, domestic implementation of the right can be seen through criminal law, with criminal prohibitions on the taking of life backed up by effective police forces and criminal justice systems. The civil law also plays a part (for example in the context of negligent deaths), as does wider social assistance, for example by means of social security payments and an accessible healthcare system. Protecting the life of those within its jurisdiction is one of the core responsibilities of all governments.

02.14

D. Analysis I. General Remarks Article 2 of the Charter protects the right to life in broad terms. As it has the same meaning and scope as Article 2 ECHR, it can confidently be asserted that the right includes both negative and positive obligations which will be imposed upon the institutions of the EU as well as Member States when implementing EU law. Intentional deprivations of life by these bodies will be prohibited unless they fall within one of the limited exceptions contained within Article 2 ECHR (and discussed below). Furthermore, these bodies will be required to take all appropriate steps to preserve human life. The death penalty is prohibited absolutely in peacetime, although its imposition in times of war remains somewhat ambiguous. These issues will now be considered in greater detail.

02.15

II. Scope of Application The question of the personal scope of the right to life protected in the ECHR remains ambiguous, six decades after its drafting. Article 2 ECHR extends the right to ‘everyone’, but it is unclear whether or not this includes a foetus. The European Court of Human

17

Art 8(2)(b)(i)–(vi). Bankovic v Belgium ECHR 2001-XII; Issa v Turkey App no 31821/96 (ECtHR, 16 November 2004); Al-Skeini v United Kingdom ECHR 2011 1093. 19 See, eg, Art 40(3)(3) Irish Constitution: ‘The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.’ By contrast, many Member States permit terminations of pregnancy within their laws, sometimes without the need for a justifying reason. 18

Elizabeth Wicks

31

02.16

Part I – Commentary on the Articles of the EU Charter

Rights (and previously the European Commission of Human Rights) has faced this precise question on a number of occasions, but has thus far declined to provide an unambiguous answer. In Vo v France, the Strasbourg Court had to decide whether the right to life of a foetus had been violated when a negligent act of a doctor, which fatally harmed the foetus, was not subject to criminal sanction. The Court, somewhat ingeniously, evaded the core issue, first, by concluding that it would be neither desirable nor possible to answer in the abstract whether an unborn child is given protection under Article 2 and, secondly, by concluding that it was also unnecessary to decide the issue on the facts of the case before it because, even if this foetus did have a right to life, it was not violated by the French laws which had provided civil, although not criminal, consequences for the harm. This consideration of the precise requirements of the right to life for a foetus without any prior conclusion on whether such a right exists has been subject to much criticism.20 More recently, in A, B, C v Ireland, the European Court of Human Rights recognised an emerging European consensus on the provision of lawful abortion beyond the ground of saving the life of the mother, although it continued to permit Ireland to benefit from a wide margin of appreciation which justified constitutional protection of the right to life of the foetus (subject only to the conflicting right to life of the mother).21 Despite a clear trend towards more liberal abortion laws in Europe, the right to life may yet provide some protection for the life of the unborn. While Member States remain divided on the issue, the European Court of Human Rights has chosen to defer to national priorities. Whether the Court will remain content in the future to abdicate its decision-making responsibility on this divisive issue remains open to doubt.22 02.17 In terms of jurisdictional scope, the key question in the context of the right to life is whether deaths during war or armed conflict engage the right. This will be a potentially significant issue in respect of the EU’s military deployments under its Common Security and Defence Policy, discussed above. Under Article 15 ECHR, the right to life is one of only four Convention rights described, at least in part, as non-derogable, meaning that even in times of war or public emergency, the right to life must be protected. Article 15(2) provides an exception to the general non-derogability of the right to life, however, in respect of ‘deaths resulting from lawful acts of war’. This does not mean, however, that all deaths resulting from lawful acts of war are an exception to the right to life under the ECHR. The phrase ‘deaths resulting from lawful acts of war’ is only contained within Article 15(2) as an exception to the general non-derogability of Article 2 and is, therefore, only engaged when a state party derogates. Without a formal notice of derogation, all intentional deaths caused by the state (and not otherwise excepted from the terms of Article 2) will remain violations of the right to life. No state party to the ECHR has

20 For example, Judge Rozakis (joined by four other judges) recognised that ‘reliance on the procedural guarantees of Article 2 to determine whether or not there has been a violation presupposes the prima facie applicability of that Article.’ See also A Plomer, ‘A Foetal Right to Life? The Case of Vo v France’ [2005] HRLR 311. 21 A, B, C v Ireland App no 25579/05, Merits (ECtHR, 16 December 2010). The constitutional protection of the right to travel abroad for an abortion was a crucial factor in the Court’s judgment. As has already been mentioned above, a comparable right to travel to other Member States for medical services, including abortion, can also be found in EU law. 22 See E Wicks, ‘A, B, C v Ireland: Abortion Law under the European Convention on Human Rights’ (2011) 11 Human Rights Law Review 556 for discussion.

32

Elizabeth Wicks

Art 2 – Right to Life

issued a notice of derogation in respect of Article 2 and so ‘deaths resulting from lawful acts of war’ appears to be an irrelevant consideration at present in Europe.23 A more significant restraint upon the application of the right to life to deaths during 02.18 armed conflict stems from the interpretation of the word ‘jurisdiction’ found within Article 1 ECHR. Under this provision, the right to life, and all other rights and freedoms, are required to be secured only to those within the contracting states’ jurisdiction. While the European Court of Human Rights has confirmed that the jurisdictional competence of a contracting state is ‘primarily territorial’,24 it has also recognised an extension of that obligation where ‘as a consequence of military action—whether lawful or unlawful—that state in practice exercises effective control of an area outside its national territory.’25 Thus, while deaths of foreign civilians caused by aerial bombing will not engage the right to life, a ground invasion followed by occupation may do so. In Al-Skeini v United Kingdom, the Court further developed its approach to extraterritorial jurisdiction. In this case, it was satisfied that the UK exercised ‘authority and control’ over south-east Iraq and was thus responsible for deaths caused by its security operations there.26 The right to life under the ECHR, and thus the Charter, therefore has the potential to extend beyond the boundaries of the Member States, and also to govern their behaviour beyond Europe if those states cause death during the course of military operations elsewhere in the world.

III. Specific Provisions The European Court of Human Rights views the right to life as ‘one of the most fundamental provisions in the Convention’ and therefore it considers that ‘its provisions must be strictly construed’.27 This means that the ‘absolutely necessary’ exception to the prohibition on intentional deprivations of life is regarded by the Court as ‘a stricter and more compelling test of necessity’ than is to be found in the other Convention Articles.28 In practice, this means that the force used by agents of the state must be strictly proportionate to the aim pursued. So, for example, while Article 2(2) permits the use of lethal force to effect a lawful arrest, the Court has held that it can never be absolutely necessary to use lethal force to arrest a non-violent suspect if he is posing no threat to life or limb, even if the failure to use lethal force will result in the suspect’s escape.29 When considering the use of lethal force in defence of unlawful violence, the Court will look not only at the actions directly responsible for the death but also at the planning and control of the police or military operation.30 An armed operation must be planned, controlled and conducted in a manner that reduces, as much as possible, the risk to life

23 Isayeva v Russia App no 57950/00 (ECtHR, 24 February 2005) provides an example of the enforcement of the right to life by the Strasbourg Court in respect of the use of heavy combat weapons on civilians during an armed conflict. . 24 Bankovic v Belgium ECHR 2001-XII para 59. 25 Issa v Turkey App no 31821/96 (ECtHR, 16 November 2004) para 69. 26 Al-Skeini v United Kingdom ECHR 2011, 1093. 27 McCann v United Kingdom (1995) 21 EHRR 97 [147]. 28 Ibid [149]. 29 Nachova v Bulgaria ECHR 2005-VII. 30 McCann (n 27).

Elizabeth Wicks

33

02.19

Part I – Commentary on the Articles of the EU Charter

of both the public and the suspect. The state is thereby given a greater responsibility than is an individual member of society who uses lethal force in self-defence: the state must do all that it reasonably can in order to avoid a risk to life developing through the course of its operation. In McCann, the UK was criticised for failing to do so during an armed operation that led to the shooting of three IRA suspects. Those in control of the operation failed to make sufficient allowances for the possibility that their intelligence assessments might be erroneous, and also failed to stop the threat at an earlier stage before any immediate threat to life could be perceived to exist. It was these failures that led the UK into actions incompatible with the right to life. 02.20 The Court has been far more tolerant, and thus Article 2 ECHR far more forgiving, of honest mistakes as to the absolute necessity of the use of lethal force. In cases where there is a genuine threat posed by the suspect but some doubt about whether lethal force was really necessary in order to counter that threat, a judgment made on the ground by trained individuals under significant pressure is unlikely to be found to violate Article 2. By contrast, however, if a mistake is made as to the very existence of a threat, then it is less likely that the honesty of the mistake could justify the state killing. This can be demonstrated by Gül v Turkey,31 where police officers opened fire on an unknown target behind a closed door in a residential apartment. While it was possible that the officers had mistaken the sound of the door bolt being drawn back for the sound of the occupant of the flat opening fire at them, their reaction of ‘opening fire with automatic weapons on an unseen target in a residential block inhabited by innocent civilians, women and children’ was, in the Court’s view ‘grossly disproportionate.’32 The Court unanimously found a violation of Article 2 in this case and was able to distinguish it from the earlier case of Andronicou and Constantinou v Cyprus,33 where it was held not to be disproportionate for the police to open fire at an identified hostage-taker who was known to be in possession of a gun and had already fired at an officer. It appears, therefore, that while a killing by a state agent that is not objectively necessary may escape sanction under Article 2 ECHR if based on an honest misjudgement as to what level of force will counter a known threat to life, a blatantly disproportionate reaction that is not linked to a genuine threat will not be regarded as ‘absolutely necessary’. 02.21 In terms of the positive obligation recognised by the European Court of Human Rights under Article 2 ECHR, this rests upon the interpretation of what is reasonable in all the circumstances. In Osman v United Kingdom,34 the Court held that Article 2(1) ‘enjoins the state not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction.’35 This means that state authorities must do all that could reasonably be expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge.36 The Court recognised, however, that this obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.37 Both

31 32 33 34 35 36 37

34

Gül v Turkey App no 22676/93 (ECtHR, 14 December 2000). Ibid, para. 82. Andronicou and Constantinou v Cyprus (1997) 25 EHRR 491; 1997-VI. Osman v United Kingdom (1998) 29 EHRR 245; Reps 1998-VIII. Ibid [115]. Ibid [116]. Ibid.

Elizabeth Wicks

Art 2 – Right to Life

limited resources and the state’s obligations to respect other rights may excuse the state from taking steps to preserve life. In Osman itself, concerning a failure by the police to prevent a death, the rights of the suspect to due process prevented any violation of Article 2, while the limited availability of resources to fund public healthcare has prevented the success of claims for the provision of particular medical treatments that could save life.38 However, the positive obligation element of the right to life remains a significant obligation on contracting states, and violations of it have been found in contexts as diverse as the absence of an effective criminal law regime in a region of Turkey,39 a failure to provide timely and adequate medical care to a prisoner in custody,40 and a failure to safeguard the public from the possibility of a lethal explosion at a hazardous waste site.41 The positive obligation to safeguard lives is an important development of the demands placed upon state authorities by the right to life and one that will doubtless be further developed in the future. One possible aspect for development in the EU context might be an obligation to use available EU instruments to prevent, investigate and prosecute crimes causing a loss of life, where there is a cross-border element involved. EU instruments of potential relevance in this context would include the EU mutual assistance convention,42 the European arrest warrant, the European Protection Order Directive,43 and the EU’s mutual assistance and extradition treaties with third states.44 The relationship between the right to life and the death penalty is a notoriously difficult one. Within Europe the trend towards complete abolition of the death penalty has occurred independently of the right to life. Thus, Article 2 ECHR continues to explicitly permit the imposition of the death penalty, while all contracting states to the Convention are legally obliged by Protocol No 6 to abolish the penalty in peacetime (and most are further obliged under Protocol No 13 to abolish it during times of war). Under Article 2 of the Charter, the death penalty is explicitly prohibited along the same lines as Protocol No 6. The only circumstances in which the death penalty could legitimately be imposed under the Charter is, therefore, during times of war or imminent threat of war. Due to the overwhelming majority of Member States ratifying Protocol No 13, however, it is to be hoped that the death penalty is a thing of the past within Europe. A more likely circumstance in which the death penalty issue may arise is in respect of extradition from a European state to a state which still imposes the penalty. The European Court of Human Rights has been willing to utilise Article 3 ECHR and its absolute, non-derogable, prohibition on inhuman or degrading punishment to prevent such extraditions.45 Interestingly it is not the imposition of the penalty itself that falls foul of this prohibition, but rather the circumstances surrounding the penalty, including

38

Pentiacova v Moldova (2005) 40 EHRR SE23. Mahmut Kaya v Turkey [2000] ECHR 129. 40 Augvelova v Bulgaria App no 38361/97 (Judgment of 13 June 2002). 41 Öneryildiz v Turkey [2004] ECHR 657; (2005) 41 EHRR 20. 42 Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union [2000] OJ C197. 43 Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the European protection order [2011] OJ L338/2. 44 See, eg, the Agreement on Mutual Legal Assistance between the European Union and the United States of America [2003] OJ L181/34 and the Agreement on Extradition between the European Union and the United States of America [2003] OJ L181/27. 45 Soering v United Kingdom (1989) 11 EHRR 439. 39

Elizabeth Wicks

35

02.22

Part I – Commentary on the Articles of the EU Charter

the so-called ‘death row phenomenon’: the mental anguish faced by the condemned prisoner while enduring a long wait for execution on death row. Furthermore, the imposition of the death penalty following an unfair trial will also infringe Article 3 and thus serve to prevent extradition.46

IV. Limitations and Derogations 02.23 Article 2 of the Charter corresponds to Article 2(1) and Protocol No 6 of the ECHR and therefore, in accordance with Article 52(3) of the Charter, has the same meaning and scope as those provisions. The limitations contained within Article 2(2) of the ECHR permitting the use of lethal force when ‘absolutely necessary’ for a number of law enforcement reasons, as discussed above, will limit the application of the Charter’s right to life. The Charter’s own limitation clause in Article 52(1) identifies many of the concepts at the heart of the European Court of Human Rights’ interpretation of the limitations to the right to life, such as legality, proportionality, necessity and the rights of others. To the extent that the ECHR limitations are stricter, they will take precedence due to the requirement that the Charter’s right to life have the same meaning and scope as that found in the ECHR on which it is based. However, to the extent that Article 52(1) imposes any greater restrictions upon the use of lethal force by the state, it might enable Union law to provide more extensive protection for the right to life (as explicitly envisaged in Article 52(3)). The requirement that any limitation must ‘respect the essence’ of the right to life is the only aspect that could perhaps achieve this. It should also be reiterated here that the Explanations to Article 1 make clear that human dignity must be respected even when a right is limited. Any intentional deprivations of life, therefore, must not infringe the idea of human dignity, even if they are regarded as absolutely necessary under the right to life. The Charter’s prohibition of the death penalty will similarly be limited by the excep02.24 tion contained within Protocol No 6 in respect of acts committed in time of war or of imminent threat of war. All Member States have signed Protocol No 13 to the ECHR, however, which also prohibits the death penalty in times of war. As suggested above, while Poland, alone amongst EU Member States (and candidate countries) has not yet ratified this Protocol, it is arguable that, due to Article 53 of the Charter, the less strict rule in the Charter should not be interpreted as adversely affecting the greater protection offered to the right to life in Europe by means of Protocol No 13. Thus, Article 2(2)’s prohibition of the death penalty may indeed be as absolute as it, at first glance, appears to be. The right to life is one of only four non-derogable rights within the ECHR, mean02.25 ing that it cannot be suspended even in times of war or public emergency. However, as noted above, there is a potentially significant exception to the general non-derogability of the right. Under Article 15(2), a contracting state may suspend the application of the right to life to ‘deaths resulting from lawful acts of war’. No European state has done so, however, and so the more complex legal issue of distinguishing lawful acts of war from those that are unlawful does not arise. It should also be noted that even if a notice of derogation was issued in respect of Article 2, it would need to satisfy the requirements

46

36

Ocalan v Turkey ECHR 2005-IV.

Elizabeth Wicks

Art 2 – Right to Life

of Article 15, including the requirement that the measures taken in response to the specified war or public emergency be ‘strictly required by the exigencies of the situation’. There is no general exception to the prohibition on intentional deprivations of life in times of war or public emergency under the ECHR or, therefore, the Charter. Finally, if the Member State wanted to derogate from its obligations pursuant to EU law, such a derogation would also have to be consistent with Article 347 TFEU.

V. Remedies The question of remedies in the context of the right to life is somewhat ironic as the person whose right to life has been violated is unlikely to be alive to benefit from any subsequent remedy. This is not inevitably the case, however, because the European Court of Human Rights has recognised the application of the right to life to the use of non-lethal force. In Makaratzis v Greece,47 the applicant was not killed during a pursuit by the police and there was no intention to kill him, but the degree and type of force used was held by the Strasbourg Court to engage Article 2. Although the use of potentially lethal force was held to be justified on the facts, the Greek authorities had not provided sufficient safeguards against arbitrariness, abuse of force and avoidable accident48 in order to avoid a real and immediate risk to life. A substantive violation of the right to life was, therefore, found by the Court despite the fact that nobody had died as a result of the police action. In this, admittedly rare, situation a remedy, such as compensation, can be provided directly to the victim whose life was put at risk. In cases where the violation of the right to life has resulted in a person’s death, it usually falls to the family to seek a remedy. Under the ECHR, the victim test for admissibility has often been satisfied by relatives of the deceased, and some have succeeded in obtaining compensation for the right’s infringement. A vital substantive aspect of the right to life under the ECHR, and other international documents,49 is the requirement of an effective investigation into killings and, crucially, disappearances. This element was first mentioned in McCann, where the Strasbourg Court established a duty upon contracting states to undertake effective investigations into killings on the basis that ‘a general legal prohibition of arbitrary killing by the agents of the State would be ineffective, in practice, if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities.’50 For this reason, the Court held that Article 2 requires by implication that there be some form of effective official investigation when individuals have been killed by agents of the state or otherwise. Subsequent cases determined that the requirement of an effective and independent investigation into deaths arising from the state’s use of force is all the more important when the precise circumstances of the death remain unclear,51 and that it is not confined to cases where it has already been

47

Makaratzis v Greece [2004] ECHR 694; (2005) 41 EHRR 49. Ibid [58]. 49 This obligation also exists under the ICCPR: Baboeram et al v Suriname (Communications 146, 148-154/1983); Herrera Rubio v Colombia (Communication 161/1983); Sanjuán Arévalo v Colombia (Communication 181/1984). 50 McCann (n 27) [161]. 51 Kaya v Turkey (1998) 28 EHRR 1; Reps 1998-I. 48

Elizabeth Wicks

37

02.26

02.27

Part I – Commentary on the Articles of the EU Charter

established that the death was caused by agents of the state. Furthermore, in Timurtas v Turkey52 the application of this requirement was confirmed as applying to a person who has disappeared. In these circumstances, the Court will also relax its evidential expectations so that ‘sufficient circumstantial evidence, based on concrete elements’ will suffice for a conclusion that an individual detained by the state must be presumed to have died in custody.53 The Court also made the significant observation that the prompt judicial intervention required by Article 5 of the ECHR may be crucial to the detection and prevention of life-threatening measures in violation of Article 2.54 02.28 Perhaps the most crucial remedial action of all, in the context of the right to life, is the prevention of death, and therefore the availability of interim measures has great relevance to the effective enforcement of the right. This issue has caused the Human Rights Committee, under the ICCPR, some concern. For example, in Paindiong v Philippines,55 the state executed the three authors of a complaint after receiving the HRC’s request to refrain from causing the death until the HRC had had the opportunity to consider the matter. The HRC responded by issuing a strong condemnation of the state’s actions, emphasising that the availability of interim measures is ‘essential to the Committee’s role’ and the flouting of such measures ‘undermines the protection of Covenant rights’.56 A similarly stringent approach must be adopted by the European manifestations of the right to life.

E. Evaluation 02.29 The right to life is admittedly not the most relevant of fundamental rights within the context of EU law. Nonetheless, as the EU expands its competencies and influence, it is important that this crucial right be adequately protected. While it might be assumed that the right to life is already sufficiently respected within Europe, the issues brought before the European Court of Human Rights over the last few decades illustrate that human life remains vulnerable to state abuse and neglect. The use of lethal force by law enforcement agencies, extradition of prisoners to non-European states where they may face the death penalty, military engagements, and the lack of adequate resources to save all possible lives are just some of the issues facing the governments of Europe. When these issues are coupled with ongoing differences of opinion as to the beginning and end of appropriate legal protection for human life (in the context particularly of abortion and assisted dying), it becomes apparent that the right to life remains a core protection for the people of Europe from their governments and its place in the Charter rightly confirms that it should also be at the heart of future development of the EU.

52

Timurtas v Turkey ECHR 2000-VI. Ibid [82]. 54 Ibid [89]. 55 Paindiong v Philippines (Communication 869/1999). 56 Ibid, para 5.4. Similar condemnation followed the execution by Trinidad and Tobago of the author of a pending communication in Ashley v Trinidad & Tobago (Communication 580/1994). 53

38

Elizabeth Wicks

Article 3 Article 3 Right to the Integrity of the Person 1. Everyone has the right to respect for his or her physical and mental integrity. 2. In the fields of medicine and biology, the following must be respected in particular: (a) the free and informed consent of the person concerned, according to the procedures laid down by law; (b) the prohibition of eugenic practices, in particular those aiming at the selection of persons; (c) the prohibition on making the human body and its parts as such a source of financial gain; (d) the prohibition of the reproductive cloning of human beings.

Text of Explanatory Note on Article 3 1. In its judgment of 9 October 2001 in Case C-377/98 Netherlands v European Parliament and Council [2001] ECR-I 7079, at grounds 70, 78 to 80, the Court of Justice confirmed that a fundamental right to human integrity is part of Union law and encompasses, in the context of medicine and biology, the free and informed consent of the donor and recipient. 2. The principles of Article 3 of the Charter are already included in the Convention on Human Rights and Biomedicine, adopted by the Council of Europe (ETS 164 and additional protocol ETS 168). The Charter does not set out to depart from those principles, and therefore prohibits only reproductive cloning. It neither authorises nor prohibits other forms of cloning. Thus it does not in any way prevent the legislature from prohibiting other forms of cloning. 3. The reference to eugenic practices, in particular those aiming at the selection of persons, relates to possible situations in which selection programmes are organised and implemented, involving campaigns for sterilisation, forced pregnancy, compulsory ethnic marriage among others, all acts deemed to be international crimes in the Statute of the International Criminal Court adopted in Rome on 17 July 1998 (see its Article 7(1)(g)).

Select Bibliography D Beyleveld and R Brownsword, Human Dignity in Bioethics and Biolaw (Oxford, OUP, 2001). R Brownsword, ‘Human Dignity, Ethical Pluralism, and the Regulation of Modern Biotechnologies’ in T Murphy (ed), New Technologies and Human Rights (Oxford, OUP, 2009) 19–84. A-M Farrell, ‘The Politics of Risk and EU Governance of Human Material’, (2009) 16 Maastricht Journal of European and Comparative Law 41. M Favale and A Plomer, ‘Fundamental Disjunctions in the EU Legal Order on Human Tissue, Cells and Advanced Regenerative Therapies’ (2009) 16 Maastricht Journal of European & Comparative Law 89. M Flear, A-M Farrell, T Hervey and T Murphy, ‘A European Law of New Health Technologies?’ in M Flear, A-M Farrell, T Hervey and T Murphy (eds), European Law and New Health Technologies (Oxford, OUP, 2013) 389–414.

Part I – Commentary on the Articles of the EU Charter

S Hennette-Vauchez, ‘Biomedicine and EU Law: Unlikely Encounters?’ (2011) 38 Legal Issues of Economic Integration 5. A Plomer, ‘After Brüstle: EU Accession to the ECHR and the Future of European Patent Law’ (2012) 2 Queen Mary Journal of Intellectual Property 110. JR Herrmann and B Toebes, ‘The European Union and Health and Human Rights’ (2011) European Human Rights Law Review 419. H Roscam Abbing, ‘Health Law: Facing the European Challenges’ (2010) 17 European Journal of Health Law 1–10. S Wheatley, ‘Human Rights and Human Dignity in the Resolution of Certain Ethical Questions in Biomedicine’ (2001) 3 European Human Rights Law Review 312.

A. Field of Application of Article 3 03.01 Article 3(1) guarantees physical and mental integrity without relating the concept of integrity to particular areas of life, while Article 3(2) makes special provision for integrity in the fields of medicine and biology. With regard to the protection and improvement of human health, according to Article 6 of the TFEU, the EU has the ‘competence to carry out actions to support, coordinate or supplement the actions of the Member States’. Article 9 of the TFEU provides that ‘In defining and implementing its policies and activities, the Union shall take into account requirements linked to the promotion of … a high level of … protection of human health.’ Public health issues may also incidentally arise in the context of a number of substantive policy areas in which the EU holds legislative powers, including consumer policy, environmental policy, and social policy. 03.02 The main provision defining the EU competence in the area of health is Article 168. Article 168(1) obliges the EU to ensure a high level of human health protection in the definition and implementation of all EU policies and activities. This means that EU activities in all areas, including, for example, the achievement of the internal market, should actively promote health protection and be ‘directed towards improving public health, preventing physical and mental illness and diseases, and obviating sources of danger to physical and mental health’. Article 168(2) stipulates that the EU can coordinate and support the activities of 03.03 the Member States in the areas mentioned in Article 168. Under Article 168(4)(a), the European Parliament and Council are given the power to adopt measures to set high standards of quality and safety of organs and substances of human origin, blood and blood derivatives. The Blood Safety Directive,1 for example, was based on this provision, as were the Human Tissue Directive2 and the Organ Safety Directive.3 Article 168(4)(c) provides competence for ‘measures setting high standards of quality and safety for medicinal products and devices for medical use’. However, measures taken under Article 168(4)

1 Directive 2002/98/EC setting standards of quality and safety for the collection, testing, processing, storage and distribution of human blood and blood components [2003] OJ L33 (based on former Art 152(4)(a)). 2 Directive 2004/23/EC on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells [2004] OJ L102 (based on former Art 152(4)(a)). 3 Directive 2010/45/EU on standards of quality and safety of human organs intended for transplantation [2010] OJ L207.

40

Sabine Michalowski

Art 3 – Right to the Integrity of the Person

‘shall not affect national provisions on the donation or medical use of organs and blood’ (Art 168(7)), as the competence regarding health policies and the organisation and delivery of health services and medical care lies primarily with the Member States. Health-related measures can also be based on the general competence of approxi- 03.04 mation of laws under Article 114 of the TFEU, if the absence of at least a certain level of harmonisation would adversely affect the functioning of the internal market.4 The Clinical Trials Directive,5 and the Advanced Therapy Regulation,6 for example, were adopted on this basis. The right to free movement of goods as well as the freedom to provide and receive 03.05 services and the freedom of establishment incidentally award healthcare-related rights, such as the right to be reimbursed by one’s health insurance scheme for medicinal products7 and medical treatment bought in another Member State,8 rights now protected by the Directive on the Application of Patients’ Rights in Cross-Border Healthcare9 which is based on both Articles 114 and 168 of the TFEU. The relevance of the right to physical and mental integrity as protected by Article 3 03.06 for areas of EU competence is not obvious at first sight. However, the ECJ stressed in Netherlands v European Parliament and Council that it has the power, ‘in its review of the compatibility of acts of the institutions with the general principles of Community [now EU] law, to ensure that the fundamental right to human dignity and integrity is observed.’10 The right to integrity thus pervades all areas of EU law and policy. Furthermore, the exercise of EU competence in the areas of medicine, biology and health provides some room, and in fact potentially a need, to integrate concerns related to the right to physical and mental integrity. In this respect it has been argued that ‘[r]emoving differences in the interpretation of individual and social human rights principles by health systems means that undue barriers to the EU free movement principles in health care are prevented.’11 This has found some reflection in the Directive on Cross-Border Healthcare. While it primarily aims at regulating the right to receive crossborder medical care, it incidentally touches upon matters of particular relevance in the context of Article 3 of the Charter when it refers in Recital 5 to the Council Conclusions on Common values and principles in European Union Health Systems12 which, in turn, mention consent to treatment as one of these values and principles. Moreover, some

4 See, eg, Case C-380/03 Germany v Parliament and Council [2006] ECR I-11573, para 37. See also H Roscam Abbing, ‘Health Law: Facing the European Challenges’ (2010) 17 European Journal of Health Law 1–10, 4. 5 Directive 2001/20/EC on the approximation of the laws, regulations and administrative provisions of the Member States relating to the implementation of good clinical practice in the conduct of clinical trials on medicinal products for human use [2001] OJ L121. 6 Regulation (EC) 1394/2007 on advanced therapy medicinal products and amending Directive 2001/83/ EC and Regulation (EC) No 726/2004 [2007] OJ L324. 7 Case C-120/95 Decker v Caisse de Maladie Employés Privés [1998] ECR I-1831. 8 Case C-158/96 Kohll v Union des Caisses de Maladie [1998] ECR I-1931; Case C-157/99 Geraets-Smits v Stichting Ziekenfonds VGZ (2001) 62 BMLR 101; Case C-368/98 Abdon Vanbraekel v Alliance Nationale des Mutualités Chrétiennes (ANMC) [2001] ECR I-5363. 9 Directive 2011/24/EU on the application of patients’ rights in cross-border healthcare [2011] OJ L88, Art 5, subject to the provisions in Chapter III of the Directive. 10 Case C-377/98 Netherlands v European Parliament and Council [2001] ECR-I 7079, 70. 11 Roscam Abbing (n 4) 9. 12 [2006] OJ C146/01.

Sabine Michalowski

41

Part I – Commentary on the Articles of the EU Charter

norms of EU law, such as the directives on biotechnological inventions,13 clinical trials, and tissue and organ quality and safety, seem to ‘directly aim at biomedical issues’,14 even though they are technically based on the various competency norms mentioned above. In particular the Directive on Biotechnological Inventions has even been described as ‘an instance of direct incorporation of ethics within EU law’,15 which is reflected in Recitals 16 and 37 to 45 to that directive. Indeed, it seems as if in certain highly sensitive areas, including the commercialisation of the human body and other matters dealt with by Article 3, there is a perceived need for the stipulation of some form of ethical consensus in order to promote the internal market.16 03.07 Article 3 can also become relevant with regard to EU measures that are designed to promote public health, or restrictions on freedom of movement imposed by Member States based on considerations of public health.17 In both scenarios, the rights guaranteed by Article 3 set limits to the possible restrictions on individual freedoms in the name of public health.18

B. Interrelationship of Article 3 with Other Provisions of the Charter 03.08 Under the ECHR, the right to physical and mental integrity is protected by Article 8(1) as part of the right to private life.19 Article 7 of the Charter, the right to respect for private and family life, is based on Article 8(1) of the ECHR and should therefore, according to the Explanatory Notes to the Charter,20 be given the same scope and interpretation. This could lead to considerable overlap between Articles 3 and 7 of the Charter, as both would seem to be involved where the right to physical and mental capacity is engaged. However, the inclusion of Article 3 in addition to Article 7 suggests that Article 3, rather than the more general provision of Article 7, kicks in where physical and mental integrity are at issue, particularly when this occurs in the context of medicine and biology. Given the close link between physical and mental integrity and health, Article 3 might to some extent overlap with Article 35, the right to health care, which incidentally protects physical and mental integrity by imposing a positive obligation on states to provide access to health care.

13 Directive 98/44/EC of the European Parliament and Council of the European Union of 6 July 1998 on the legal protection of biotechnological inventions [1998] OJ L213. 14 S Hennette-Vauchez, ‘Biomedicine and EU Law: Unlikely Encounters?’ (2011) 38 Legal Issues of Economic Integration 5, 9; see also M Favale and A Plomer, ‘Fundamental Disjunctions in the EU Legal Order on Human Tissue, Cells and Advanced Regenerative Therapies’ (2009) 16 Maastricht Journal of European & Comparative Law 89, 92–93. 15 Hennette-Vauchez (n 14) 18. 16 See also T Hervey and H Black, ‘The European Union and the Governance of Stem Cell Research’, (2005) 12 Maastricht Journal of European & Comparative Law 11, 47–48. For a discussion of a market-based approach to new health technologies see G Bache, M Flear and T Hervey, ‘The Defining Features of the European Union’s Approach to Regulating New Health Technologies’ in M Flear, A-M Farrell, T Hervey and T Murphy (eds), European Law and New Health Technologies (Oxford, OUP, 2013) 21–24. 17 See Arts 45(3) and 52 of the TFEU. 18 Roscam Abbing (n 4) 8. 19 X and Y v Netherlands Series A, No 91 (1985) [22]; Stubbings et al v UK (1997) 23 EHRR 213 [61]. 20 Charter 4471/00 Convent 48 of September 20, 2000.

42

Sabine Michalowski

Art 3 – Right to the Integrity of the Person

The practices expressly mentioned and outlawed in Article 3(2) of the Charter, ie 03.09 eugenic practices, using the human body for financial gain, and reproductive cloning, are closely related to the protection of dignity which is, in a more general form, guaranteed by Article 1. Article 3 might also, to some extent, overlap with Article 2, the right to life, which can be affected, for example, where an individual refuses to consent to lifesustaining medical treatment.21 Article 4, the right to be free from torture and inhuman and degrading treatment, may be engaged by behaviour that could also give rise to a violation of Article 3, for example where the provision of non-consensual medical treatment reaches a level of particular seriousness.22 A potential conflict between Article 3 and Articles 7 and 9 (the right to marry and found a family) could arise in the context of the prohibition of cloning, where reproductive cloning might be the only possibility to have a genetically related child.

C. Sources of Article 3 Rights I. ECHR Article 3 guarantees the right to physical and mental integrity which, according to the 03.10 European Court of Human Rights, forms part of the right to private life guaranteed by Article 8 of the ECHR.23

II. UN Treaties As stressed in the explanatory notes to Article 3, the prohibition of eugenic practices is 03.11 partly based on Article 7(1)(g) of the Rome Statute. To a limited extent, Article 3 finds a basis in Article 7 of the ICCPR which stipulates that ‘no 03.12 one shall be subjected without his free consent to medical or scientific experimentation’. To the extent that it applies to decisions related to reproductive health, Article 3 finds 03.13 some support in Article 16 of CEDAW which highlights women’s rights ‘to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights’.

III. Council of Europe Treaties The most important source of Article 3 is to be found in the Convention for the 03.14 Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine

21

X v Germany (1984) 7 EHRR 152. See, eg, VC v Slovakia App no 18968/07 (Decision of 8 November 2011) [118]–[120]. 23 Jehovah’s Witnesses v Russia App no 302/02 (Decision of 10 June 2010) [135]; see also Pretty v UK App no 2346/02 (Decision of 29 April 2002) [63]. 22

Sabine Michalowski

43

Part I – Commentary on the Articles of the EU Charter

1997 (Oviedo Convention).24 Of particular importance are Article 5 on consent, and Article 21 regarding the prohibition on the use of the human body for financial gain. The latter is reiterated in Article 21 of the Additional Protocol to the Convention on Human Rights and Biomedicine concerning Transplantation of Organs and Tissues of Human Origin.25 The Additional Protocol to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, on the Prohibition of Cloning Human Beings,26 provides the basis for the prohibition of reproductive cloning in Article 3. The Additional Protocol to the Convention on Human Rights and Biomedicine, concerning Genetic Testing for Health Purposes,27 highlights the importance of free and informed consent with regard to genetic testing (Art 9), and the Additional Protocol to the Convention on Human Rights and Biomedicine, concerning Biomedical Research28 emphasises it with regard to research (Art 14).

D. Analysis I. General Remarks 03.15 Usually, general human rights documents, ie those that do not specifically deal with the protection of individual rights in the particular context of biomedicine, tend to limit themselves to guaranteeing personal integrity implicitly, for example as part of the right to private life.29 The Charter, however, devotes a whole provision to the protection of physical and mental integrity. The general protection of physical and mental integrity guaranteed by Article 3(1) is complemented by Article 3(2) which grants express protection to integrity against particular risks to this right that could arise in the fields of medicine and biology. To this effect, Article 3(2) emphasises the need for free and informed consent, and prohibits eugenic practices, the commercialisation of the human body, and human reproductive cloning. 03.16 Despite the limited EU competence in the fields of medicine and biology, some of the issues addressed in Article 3(2) of the Charter have found their way into EU legislation. The consent requirement has, for example, been included in the Human Tissue Directive (Art 13), the Organ Safety Directive (Art 14), and the Clinical Trials Directive (Art 3(2)).

24 At the time of writing, the following states had not ratified the Oviedo Convention: Andorra, Armenia, Austria, Azerbaijan, Belgium, Germany, Ireland, Italy, Liechtenstein, Luxemburg, Malta, Monaco, Netherlands, Poland, Russia, Sweden, Ukraine and UK. 25 At the time of writing, it was ratified by Bulgaria, Croatia, Estonia, Finland, Georgia, Hungary, Iceland, Moldova, Montenegro, Slovenia, Switzerland and the former Yugoslav Republic of Macedonia. 26 At the time of writing, it was ratified by Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Finland, Georgia, Greece, Hungary, Iceland, Latvia, Lithuania, Moldova, Montenegro, Portugal, Romania, Slovakia, Slovenia, Spain, Switzerland and the former Yugoslav Republic of Macedonia. 27 At the time of writing, this Additional Protocol had not entered into force, as it had not obtained the five necessary ratifications, having only been ratified by Moldova, Montenegro and Slovenia. 28 At the time of writing, it was ratified by Bosnia Herzegovina, Bulgaria, Georgia, Hungary, Montenegro, Slovakia, Slovenia, and Turkey. 29 As in Art 8(1) of the ECHR.

44

Sabine Michalowski

Art 3 – Right to the Integrity of the Person

They all require consent but leave the details of how to regulate the procurement of free and informed consent to the Member States. The prohibition of using the human body for financial gain is reflected in the principle of altruism and voluntary and unpaid donations as expressed in Article 12 of the Human Tissue Directive, Article 20 of the Blood Safety Directive, Article 13 of the Organ Safety Directive and Recital 15 of the Advanced Therapy Regulation. The Clinical Trial Directive expresses a similar thought when prohibiting in Articles 4(d) and 5(d) financial incentives other than compensation for participation in clinical trials. The principle of the non-commodification of the human body has, in addition, been of importance in the context of the Directive on Biotechnological Inventions. Article 5 of that directive declares the unpatentability of the human body and Article 6(2)(c) states that to grant a patent for the use of human embryos for industrial or commercial purposes would be contrary to the ordre public or morality.30 The prohibition of cloning is endorsed by Article 6(2)(a) which declares patents of processes for the cloning of human beings to be against the ordre public and morality. The rights and principles protected under Article 3 of the Charter have thus influ- 03.17 enced EU legislation, and in areas of EU competence moreover set standards regarding the national implementation of the relevant directives in the Member States.

II. Scope of Application Whereas under the ECHR, the patient’s right to physical and mental integrity receives 03.18 only incidental protection under Article 8(1)31 and, in particularly severe cases, under Article 3,32 the Charter expressly recognises the right to integrity as a fundamental right, thereby highlighting its significance. To determine the scope of application of Article 3, the various rights and interests protected by that provision need to be distinguished. The right to physical and mental integrity as protected under Article 3(1) can be claimed by all individuals, from competent adults to incompetent adults and children. It is more difficult to establish who can invoke the protection granted by Article 3(2) of the Charter. The requirement of free and informed consent to medical procedures clearly protects competent adults, ie persons who can give such valid consent, against the imposition of medical procedures against their wishes. The Oviedo Convention, as well as the Clinical Trial Directive, suggest that the consent requirement also applies to incompetent individuals, as both documents contain provisions to protect the integrity of individuals who are not able to give free and informed consent, be it a mentally incompetent adult or a child lacking the necessary maturity.33 Their protection is achieved through the relevant national provisions governing the authorisation of medical procedures on their behalf, for example through the means of proxy consent.34 This suggests

30 For a discussion see Case C-34/10 Brüstle v Greenpeace eV [2012] All ER (EC) 809 (ECJ (Grand Chamber)). 31 X and Y v Netherlands (n 19) [22]; Stubbings et al v UK (1997) 23 EHRR 213 [61]. 32 See, eg, X v Denmark (1983) 32 DR 282; Herczigfalvy v Austria Series A, No 242-B [82]; Hurtado v Switzerland Series A, No 280 (1994) [74]; D v UK (1997) 24 EHRR 423 [53]. 33 See Arts 6 and 7 of the Oviedo Convention and Arts 3 to 5 of the Clinical Trials Directive. 34 See also Glass v UK App no 61827/00 (Decision of 9 March 2004) [70] and [72].

Sabine Michalowski

45

Part I – Commentary on the Articles of the EU Charter

that under the Charter, a violation of an incompetent individual’s right to integrity could, for example, be claimed where he/she was used as subject in clinical trials without the requisite proxy consent. 03.19 The remaining three scenarios mentioned in Article 3(2) are formulated as prohibitions rather than individual rights. It is therefore not immediately obvious whether they are primarily aimed at preventing certain practices, or also confer individual rights on those directly concerned and affected by them. In the context of human reproductive cloning, an individual right that could be affected is particularly difficult to conceive, as the prohibition of the practice as such hardly leaves room for the conception of individuals who could then claim to be victims of a violation. However, if cloning of human beings for reproductive purposes ever became a technical possibility, a violation of this prohibition that results in the birth of a person through this technique could potentially violate that individual’s Charter right under Article 3(2). The rights of the person whose genetic information was cloned might also be affected. Regarding the prohibition of eugenic practices and the commercialisation of the human body, it is easier to think of situations in which individuals may claim a violation, for example where they were subjected to sterilisation based on their ethnic origin or disabilities, or to trafficking in body parts or to having their consent induced by financial incentives.

III. Specific Provisions (a) The Meaning of Physical and Mental Integrity 03.20 Physical integrity relates to the right to be free from interferences with one’s body. This potentially includes a whole range of issues, from torture to physical invasions in the context of clinical trials or unwanted forms of medical treatment.35 According to the European Court of Human Rights, for the right to physical integrity of a mentally competent adult patient ‘to be meaningful, patients must have the right to make choices that accord with their own views and values, regardless of how irrational, unwise or imprudent such choices may appear.’36 This suggests that, in the context of EU health policies, healthy behaviour can be encouraged, but not imposed on the individual who chooses not to adopt it. Mental integrity refers to freedom from psychological pressure and the imposition of 03.21 mental suffering. The European Court of Human Rights touched upon the meaning of mental integrity in the case of Jalloh v Germany. That case concerned the administration of medication that causes a person to vomit, to a person suspected of having swallowed illegal drugs, without that person’s consent. The Court held that the imposition of such treatment by force in order to overcome the applicant’s resistance violated Article 3 of the Convention, because of the anxiety this must have caused him, and because of his ‘mental suffering while he waited for the emetics to take effect.’37 Thus, mental integrity seems to refer to mental suffering, anxiety, indignity and humiliation resulting from the

35 36 37

46

Jehovah’s Witnesses of Moscow v Russia (n 23) [135]; see also Pretty v UK (n 23) [63]. Jehovah’s Witnesses of Moscow v Russia (n 23) [136]. Jalloh v Germany App no 54810/00 (Decision of 1 July 2006) [79].

Sabine Michalowski

Art 3 – Right to the Integrity of the Person

forced administration of unwanted medical interventions or other forms of degrading treatment. In Dordevic v Croatia, the European Court of Human Rights referred to psychological integrity as being protected by the right to private life under Article 8 of the ECHR.38 Dordevic v Croatia clarifies that the right to integrity not only encompasses a negative 03.22 right to be free from state interference, but also a positive duty to guarantee the individual’s integrity, for example in the form of providing protection from interferences by others, in that case harassment over several years of a physically and mentally disabled man by children in his neighbourhood. (b) Requirement of Free and Informed Consent Under the ECHR the right to physical and mental integrity is regarded as part of the right to private life under Article 8(1) and is therefore closely linked to the right to autonomy.39 The right to integrity includes protection from compulsory medical treatment of competent patients which is achieved through the requirement of consent.40 With regard to incompetent individuals, the consent requirement is aimed at ensuring the existence of proxy consent prior to medical interventions. In Glass v UK, the European Court of Human Rights held in this respect that medical treatment of a minor without parental consent interfered with the minor’s right to private life, in particular in the form of the right to physical integrity.41 The express recognition of the principle of informed consent in the Charter confirms its fundamental importance in the area of medicine and biology, and sets a minimum standard for the applicable consent laws of the Member States. The close link between integrity and dignity becomes apparent here, as any conduct that interferes with a person’s integrity or sense of self-worth, such as medical treatment without consent, might be regarded as an attack on that person’s dignity.42 The principle of informed consent can, for example, become relevant in the context of the coordination of Member States’ policies on the prevention of disease or of incentive measures designed to protect and improve human health under Article 168. Such measures, for example in the context of the prevention of the spread of diseases like AIDS, will have to respect the principle of informed consent, so that compulsory measures violating the integrity of the person, such as mandatory testing, would in principle violate Article 3 of the Charter. The reference to ‘informed’ consent indicates the extent to which the individual concerned needs to be provided with information about the intervention at issue. This follows from Article 5 of the Oviedo Convention, which states that the ‘person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks’. Where the person is incompetent to consent, the information needs to be provided to the proxy-decision-maker (Art 6(4)

38

Dordevic v Croatia App no 41526/10 (Decision of 24 July 2012) [152]. Pretty v UK (n 23) [61]. 40 Jehovah’s Witnesses of Moscow v Russia (n 23) [135]. 41 Glass v UK (n 34) [70]. 42 David Feldman, ‘Human Dignity as a Legal Value—Part I’ (1999) Public Law 682–702, 685–86, and ‘Human Dignity as a Legal Value—Part II’ (2000) Public Law 61–76, 67–68. 39

Sabine Michalowski

47

03.23

03.24

03.25

03.26

Part I – Commentary on the Articles of the EU Charter

of the Oviedo Convention). While it is up to each Member State to regulate the details of the applicable consent procedures,43 some EU legislation specifies the informed consent requirement in particular areas. Article 13(2) of the Human Tissue Directive, for example, demands that ‘donors, their relatives or any persons granting authorisation on behalf of the donors are provided with all appropriate information’. This includes, according to the Annex to the Directive, the purpose and nature of the procurement and its consequences and risks. And Article 3(2)(d) of the Clinical Trials Directive requires that the trial subject or his/her legal representative give written consent after being informed of the nature, significance, implications and risks of the clinical trial.44 03.27 An interesting Strasbourg case shedding light on the scope of the informed consent requirement is that of VC v Slovakia45 concerning the sterilisation of a Roma woman in a Slovakian hospital. The woman had been in labour for several hours when she was told that she should have a sterilisation during her Caesarean section because future pregnancies would cause a serious risk to her own life and that of the future child. She was asked to sign a note indicating that she had requested a sterilisation, which she did. The applicant later alleged that she had not understood what a sterilisation was, that she had thought the procedure she had agreed to was life-saving, and that she had not been duly informed of the nature and implications of the procedure, or of potential alternatives. 03.28 The medical records produced by the hospital only showed a typed entry in the delivery notes that ‘Patient requests sterilisation’,46 but there was no indication that the applicant had been ‘fully informed about her health status, the proposed procedure and the alternatives to it’.47 The Court regarded this as incompatible with ‘the principles of respect for human dignity and human freedom embodied in the Convention and the requirement of informed consent laid down in … international documents’.48 To ask the applicant to make such a far-reaching decision ‘while she was in labour and shortly before performing a Caesarean section clearly did not permit her to take a decision of her own free will, after consideration of all the relevant issues and, as she may have wished, after having reflected on the implications and discussed the matter with her partner.’49 Stressing the fundamental importance of informed consent for any medical procedures to be carried out on a mentally competent woman, save in emergencies,50 the Court dismissed as paternalistic and untenable the Government’s arguments that the procedure was necessary at that point in time to prevent a future risk of life-threatening health complications because of the applicant’s failure to undergo regular checkups. It regarded the violation as sufficiently serious to find a violation of Article 3 of the ECHR, the right to be free from inhuman and degrading treatment,51 which

43 See, eg, Art 13(1) of the Human Tissue Directive which states that ‘[t]he procurement of human tissues or cells shall be authorised only after all mandatory consent or authorisation requirements in force in the Member State concerned have been met’; and Art 14 of the Directive on standards of quality and safety of human organs intended for transplantation. 44 See also Arts 28 to 32 of the Proposal for a Regulation on clinical trials on medicinal products for human use, and repealing Directive 2001/20/EC, COM (2012) 369, 17 July 2012. 45 VC v Slovakia App No 18968/07 (Decision of 8 November 2011). 46 Ibid [111]. 47 Ibid [112]. 48 Ibid [112]. 49 Ibid. 50 Ibid [110]. 51 Ibid [120].

48

Sabine Michalowski

Art 3 – Right to the Integrity of the Person

made a separate examination of a violation of the right to private life under Article 8(1) superfluous in so far as the alleged violation consisted in the sterilisation without her full and informed consent.52 This confirms that an invasion of the physical integrity of a competent person cannot 03.29 be justified in order to preserve that person’s health or life against his/her wishes.53 It also shows that the mere fact that a person signed a consent form does not necessarily mean that his/her right to integrity was not violated. Rather, such a result depends on whether the consent was effective, which requires that the person was given all the information necessary to make an informed decision, and that far-reaching non-emergency decisions are made in circumstances which allow for deliberation and for taking in and weighing all the relevant considerations. Problems regarding the adequacy of the provision of information and the use of tradi- 03.30 tional consent forms have recently been highlighted in an entirely different context, that of the use of nanomedicine. New technologies can raise particular problems regarding the requirement of informed consent because of the uncertainties in respect of the risks they pose. In its Opinion on the ethical aspects of nanomedicine, the European Group on Ethics in Science and New Technologies emphasises in this respect that: In view of the knowledge gaps, and the complexity of the matter, concerning the long-term effects of nanomedical diagnostic and therapeutic tools, it may be difficult to provide adequate information concerning a proposed diagnosis, prevention and therapy needed for informed consent.54

It concludes that ‘attempts to provide adequate and understandable information and 03.31 obtain consent … cannot exclusively be met by informed consent forms signed by patients’55 and suggests that research is needed ‘at national and European level to develop improved methods of providing information and obtaining consent’56 in the context of new technologies. (c) The Prohibition of Eugenic Practices According to the Explanatory Notes to the Charter, the prohibition of eugenic practices 03.32 ‘relates to possible situations in which selection programmes are organised and implemented, involving campaigns for sterilisation, forced pregnancy, compulsory ethnic marriage among others’. The listed prohibited practices have an obvious link with integrity, as they relate either to compulsory selection programmes based on eugenic considerations, or to campaigns which might affect the freedom of choice of the individuals concerned. Because of this, victims of such practices are already protected by the right to integrity in Article 3(1), and, to the extent that these practices involve medical procedures, eg in the case of sterilisations, by the requirement of informed consent set

52

Ibid [144]. See also Jehovah’s Witnesses of Moscow v Russia (n 23) [135], and Pretty v UK (n 23) [63]. 54 European Group on Ethics in Science and New Technologies to the European Commission, Opinion on the ethical aspects of nanomedicine, Opinion No 21, 17 January 2007, para 4.3.2. For further discussion see Jean McHale, ‘Nanomedicine and the EU: Some legal, ethical and regulatory challenges’, (2009) 16 Maastricht Journal of European and Comparative Law 65, 80–81. 55 Ibid, para 5.7. 56 Ibid. 53

Sabine Michalowski

49

Part I – Commentary on the Articles of the EU Charter

out in Article 3(2) of the Charter. The prohibition adds to the protection of the general right to physical and mental integrity the express condemnation of these practices in the fields of biology and medicine. This presumably means that consent to these practices which qualify as international crimes, either by a competent individual him/herself, or by a proxy in cases of incompetent persons, would be invalid. 03.33 Not all of the practices listed in Article 7(1)(g) of the Rome Statute and mentioned in the Explanatory Notes to the Charter relate to the fields of medicine and biology to which Article 3(2) of the Charter applies. For the purposes of Article 3, sterilisations might be the most relevant of these practices. Nevertheless, it is difficult to determine the exact scope of Article 3(2) of the Charter in this respect, as it is not clear what concept of eugenics it adopts. The term eugenics originally referred to activities that are directed at ‘improving’ the genetic stock of the human species,57 for example based on disability or ethnic origin. Nowadays it is frequently used in order to describe any decisions that are based on genetic abnormalities, whether or not the decisions were made in order to ‘improve’ the genetic design of the human species. Sterilisations of disabled women, for example, are often seen as having eugenic connotations,58 even though they will usually be justified as being necessary in the best interests of the woman concerned. A case shedding some light on the human rights implications of sterilisations for ethnic 03.34 reasons is the European Court of Human Rights decision in VC v Slovakia.59 In addition to the violation of Article 3 discussed above in the context of informed consent, the Court decided that the Government had violated its positive obligation under Article 8 ‘to secure through its legal system the rights guaranteed by that Article, by putting in place effective legal safeguards to protect the reproductive health of women of Roma origin in particular.’60 This was based on the Court’s evaluation of several reports before it that showed that the improper use of sterilisations in Slovakia ‘affected vulnerable individuals belonging to various ethnic groups … [and] that the Roma population of eastern Slovakia had been at particular risk’61 because of ‘negative attitudes towards the relatively high birth rate among the Roma compared to other parts of the population, often expressed as worries of an increased proportion of the population living on social benefits.’62 From the fact that ‘the entry in the “Medical history” part of the record of the appli03.35 cant’s pregnancy and delivery, under the sub-section entitled “Social and working conditions, especially during the pregnancy”, simply stated: “Patient is of Roma origin”’,63 the Court deduced ‘a certain mindset on the part of the medical staff as to the manner in which the medical situation of a Roma woman should be managed’.64 The Court criticised, in particular, the lack of a policy according to which ‘special care was to be … exercised to ensure that the full and informed consent of such a patient was obtained before any sterilisation was contemplated.’65 Nor was there sufficient indication that 57 Francis Galton, Inquiries into the Human Faculty and its Development (Bristol, Thoemmes Press, 1998) 24–25. 58 For a discussion see, eg, Sarah Bowers, ‘The Intellectually Impaired in Society: The Ethics and Implications of Sterilisation and Genetic Control’ (1997) UCL Jurisprudence Review 117. 59 VC v Slovakia (n 45). 60 Ibid [145]. 61 Ibid [146]. 62 Ibid. 63 Ibid [150]. 64 Ibid [151]. 65 Ibid.

50

Sabine Michalowski

Art 3 – Right to the Integrity of the Person

the patient’s interests were effectively guaranteed through her active involvement in the decision-making process. The Court concluded that ‘the absence at the relevant time of safeguards giving special consideration to the reproductive health of the applicant as a Roma woman resulted in a failure by the respondent State to comply with its positive obligation to secure to her a sufficient measure of protection enabling her to effectively enjoy her right to respect for her private and family life.’66 While it is not clear whether under the Charter this case would qualify as falling under 03.36 the prohibition of eugenic practices, it exemplifies the link between integrity, informed consent and the prohibition of eugenic practices. Even though the protection of women who are discriminated against based on ethnic considerations can to some extent be achieved through the right to integrity and the requirement of consent, the prohibition of eugenic practices might raise sensitivity to the particular issues that can come into play in the context of sterilisations, thereby adding another layer of protection in the form of policies that actively protect the integrity and decision-making abilities of members of vulnerable groups. (d) Prohibition on Making the Human Body and its Parts a Source of Financial Gain Article 3(2) contains another prohibition, that of making the human body and its parts 03.37 a source of financial gain. This principle is based on Article 21 of the Oviedo Convention which, according to the Explanatory Notes to that Convention, must be understood in the light of the principle of human dignity which would be adversely affected by the sale of body parts. Equitable compensation for expenses, for example in the case of organ or tissue donations, is, however, permitted. The principle of the non-commercialisation of the human body and its parts is also 03.38 reflected in several EU directives. The Organ Safety Directive in Article 13 requires that Member States ‘ensure that donations of organs from deceased and living donors are voluntary and unpaid’. Member States can compensate living donors for their expenses and loss of income related to the donation, but such compensation should be regulated in a manner that avoids creating financial incentives or benefits for a potential donor.67 Recital 19 justifies the principle of altruism for organ and tissue donations by highlighting the link between organ quality and safety and unpaid donations: Even if the process is developed in accordance with appropriate quality standards, a clinical history obtained from either a potential living donor or the relatives of a potential deceased donor who are seeking financial gain or are subjected to any kind of coercion might not be sufficiently accurate in terms of conditions and/or diseases potentially transmissible from donor to recipient.

In addition to organ quality and safety, Recital 19 indirectly relies on considerations of 03.39 dignity and integrity by citing Article 3(2) of the Charter and Article 21 of the Oviedo Convention as provisions that back the principle of the non-commercialisation of the human body.

66

Ibid [154]. For a discussion of this approach with further references to the academic debate see A-M Farrell, ‘Adding Value? EU Governance of Organ Donation and Transplantation’ (2010) 17 European Journal of Health Law 51, 72–73. 67

Sabine Michalowski

51

Part I – Commentary on the Articles of the EU Charter

03.40

The Human Tissue Directive states in Recital 18 that, ‘[a]s a matter of principle, tissue and cell application programmes should be founded on the philosophy of voluntary and unpaid donation’, the reason being that this ‘may contribute to high safety standards for tissues and cells and therefore to the protection of human health’ (Recital 19). While Recital 22 vows to respect the principles of the European Charter and to take account of the Oviedo Convention and its protocols, this is a general reference to the importance of these documents, not a particular reference to provisions regarding the noncommodification of the human body, as in the Organ Safety Directive. Unlike Article 13 of the Organ Safety Directive, Article 12(1) of the Human Tissue Directive uses aspirational rather than obligatory language when stating that Member States ‘shall endeavour to take the necessary measures to encourage voluntary and unpaid donations of human tissues and cells with a view to ensuring that, insofar as is possible, they are obtained from such donations’.68 Nevertheless, Article 12 immediately limits this potential discretion when continuing that, while Member States may define the conditions under which compensation may be granted to donors, such compensation must be ‘strictly limited to making good the expenses and inconveniences related to the donation’. The discretion thus points more towards potential imports of tissue from paid donors from outside of the EU than to opening the possibility of meeting the demand by providing financial incentives to donors that go beyond compensation. 03.41 Like the Human Tissue Directive, the Advanced Therapy Regulation69 which covers methods such as gene therapy, somatic cell therapy, and tissue engineering, emphasises in Recital 15 that, ‘as a matter of principle, human cells or tissues contained in advanced therapy medicinal products should be procured from voluntary and unpaid donation’ and justifies this with reference to the principle of solidarity as well as health and safety concerns. Unlike the Human Tissue Directive, the substantive provisions of the Regulation do not mention the principle of unpaid donations.70 03.42 The Blood Safety Directive also emphasises, in Recital 23, the importance of encouraging voluntary and unpaid donations, as they are ‘a factor which can contribute to high safety standards for blood and blood components and therefore to the protection of human health’. Like the Human Tissue Directive, it requires no more than that ‘Member States shall take the necessary measures to encourage voluntary and unpaid blood donations with a view to ensuring that blood and blood components are in so far as possible provided from such donations’ (Art 20). Unlike the Human Tissue Directive, however, no limitations as to the potential compensation of blood donors are included in the Directive, thereby allowing Member States to take different approaches regarding the award of financial incentives for blood donations.71 03.43 These different pieces of EU legislation have in common that they justify reliance on the principle of altruism primarily in order to enhance the quality and safety of donated organs, tissue and blood. The assumed link between altruism and the quality

68

See Favale and Plomer (n 14) 105–106. Regulation (EC) 1394/2007 on advanced therapy medicinal products and amending Directive 2001/83/ EC [2007] OJ L324. 70 For a discussion see Favale and Plomer (n 14) 110. 71 For a critical discussion see A-M Farrell, ‘Is the Gift Still Good? Examining the Politics and Regulation of Blood Safety in the European Union’ (2006) 14 Medical Law Review 155; and A-M Farrell, ‘The Politics of Risk and EU Governance of Human Material’ (2009) 16 Maastricht Journal of European and Comparative Law 41. 69

52

Sabine Michalowski

Art 3 – Right to the Integrity of the Person

and safety of donated material is strongly contested, as is the belief that it is impossible to guarantee the quality and safety of donated material through efficient control measures where donations are made for reasons of financial gain.72 However, even if the counter-arguments were to gain force, thereby challenging the main justification behind the principle of altruism adopted by the various directives, the prohibition in Article 3(2) of the Charter would prevent any policy change at EU level. Paid donations, even if not objectionable on safety and quality grounds, would still have to be prohibited based on considerations of dignity and integrity. Nevertheless, while the Charter determines the EU approach to the ethical questions underlying the principle of altruism and the non-commodification of the human body, the ethical values expressed in Article 3(2)(c) stand in contrast to ‘the reality of a thriving and lucrative European and, indeed, global market in human biological materials, such as blood and various types of tissue’.73 Given the unequivocal prohibition in Article 3(2) on making the human body the 03.44 source of financial gain, it is open to discussion whether the Blood Safety Directive, the Human Tissue Directive and the Advanced Therapy Medicinal Products Regulation are compatible with the Charter, as they only encourage, rather than require, that donations are unpaid. All would depend on how the line between financial gain—which is prohibited—and equitable compensation for expenses—which is acceptable according to the Explanatory Notes to the Oviedo Convention—is drawn. The Charter does not answer that question but any compensation beyond expenses would presumably violate Article 3(2)(c). In protecting integrity through a prohibition of making the human body and its 03.45 parts the source of financial gain, Article 3(2)(c) might protect the physical integrity of donors against harm from financially induced donations and recipients against the safety and quality issues that could potentially arise as a consequence, but such a protection comes at the cost of a sweeping denial of integrity in the form of autonomous decision-making in this respect. The prohibition offers protection to incompetent individuals from exploitation by unscrupulous proxies, but only in the form of commercialisation, not against being subjected to altruistic donations. Regarding competent individuals who might want to sell body parts, their integrity is already protected from exploitation through the requirement of informed consent. While it could be argued that consent to sell a body part will frequently not be free,74 this is a question that could be accommodated in the context of a thorough examination of whether, in any particular case, free consent was present.75 Health concerns for the donor and the recipient could be addressed through the same procedures that apply in the context of altruistic donations. The crucial issue of the right to integrity of the recipient, where demand cannot be 03.46 met through a system of altruistic donations, remains unaddressed. Indeed, it is not

72 For a critical analysis with further references to the academic discussion see, eg, Farrell (2006) (n 71) 160–62 in relation to blood donations. 73 M Flear, A-M Farrell, T Hervey and T Murphy, ‘A European Law of New Health Technologies?’ in M Flear, A-M Farrell, T Hervey and T Murphy (eds), European Law and New Health Technologies (Oxford, OUP, 2013) 389–414, 407. 74 For a discussion of this highly controversial issue see, eg, D Beyleveld and R Brownsword, Human Dignity in Bioethics and Biolaw (Oxford, OUP, 2001) 212–15. 75 See also T McConnell, Inalienable Rights (Oxford, OUP, 2000) 131; and N Duxbury, ‘Do Markets Degrade?’ (1996) 59 Modern Law Review 331–48, 345.

Sabine Michalowski

53

Part I – Commentary on the Articles of the EU Charter

clear whether the general prohibition in Article 3(2)(c) leaves room for balancing the individual interests at stake in any given case, as the provision seems to postulate a general policy required by human rights considerations, rather than an individual right that might be counterbalanced by the rights of others. 03.47 A different problem related to the non-commercialisation of the human body arises in the context of the Biotech Directive. According to Article 5(1), the human body and the simple discovery of one of its elements are not patentable. This changes, however, where ‘[a]n element [was] isolated from the human body or otherwise produced by means of a technical process’ (Art 5(2)). Article 6(1) states that inventions are considered ‘unpatentable where their commercial exploitation would be contrary to ordre public or morality, and Article 6(2)(c) specifically mentions the unpatentability, on that basis, of ‘uses of human embryos for industrial or commercial purposes’. Recital 16 stipulates that ‘patent law must be applied so as to respect the fundamental principles safeguarding the dignity and integrity of the person’, and Recital 42 excludes the patentability of ‘uses of human embryos for industrial or commercial purposes’ unless the relevant invention is ‘for therapeutic or diagnostic purposes which are applied to the human embryo and are useful to it’. The interpretation and scope of these prohibitions came to the test in Brüstle v 03.48 Greenpeace,76 a case about the patentability of an invention that involved the production of neural precursor cells which required the use of stem cells obtained from a human embryo at the blastocyst stage which would result in the destruction of the embryo. Upon reference by the German Federal Court of Justice, the ECJ had to decide how human embryo is defined under Article 6(2)(c), whether reference to the use of human embryos for industrial or commercial purposes in Article 6(2)(c) includes their use for research purposes; and, whether the exclusion of patentability applies to inventions whose purpose is not the use of a human embryo, but concerns a ‘product whose production necessitates the prior destruction of human embryos or a process … which requires a base material obtained by destruction of human embryos.’77 While the Advocate-General in his Opinion referred, inter alia, to Articles 1, 3(1) and 03.49 3(2)(c) of the Charter as relevant EU provisions, though without analysing their impact, the ECJ did not make any reference to the European Charter in Brüstle. Regarding the question of the scope of the non-commercialisation of the human body and its parts, the Court in Brüstle adopted a very extensive approach. First, regarding the question of how to define the point at which protection against commercialisation should be awarded, the ECJ acknowledged that ‘the definition of human embryo is a very sensitive social issue in many Member States, marked by their multiple traditions and value systems’,78 but held that the directive necessitated a uniform EU-wide interpretation of what is meant by human embryo.79 According to the ECJ, respect for human dignity as required by the context and aim of the directive demand a broad definition of human

76 For a case giving this provision an extensive interpretation see Case C-34/10 Brüstle v Greenpeace eV [2012] All ER (EC) 809 (ECJ (Grand Chamber)) [32] with reference to Recital 16 of the Directive. For an interesting discussion of the decision see Bache, Flear and Hervey (n 16) [32]–[34]. 77 Ibid [47]. 78 Ibid [30]. 79 Ibid [26].

54

Sabine Michalowski

Art 3 – Right to the Integrity of the Person

embryo80 which includes ‘any human ovum after fertilisation, any non-fertilised human ovum into which the cell nucleus from a mature human cell has been transplanted and any non-fertilised human ovum whose division and further development have been stimulated by parthenogenesis.’81 The ECJ answered the second question by deciding that ‘the exclusion from patent- 03.50 ability concerning the use of human embryos for industrial or commercial purposes in Article 6(2)(c) of the Directive also covers use for purposes of scientific research’82 because ‘the grant of a patent implies, in principle, its industrial or commercial application.’83 With regard to the final question, the ECJ gave the term ‘use for commercial and industrial purposes’ a far-reaching interpretation by extending the exclusion from patentability contained in Article 6(2)(c) to the use of human embryonic stem cells that were derived from the previous destruction of a human embryo, even where the destruction occurred long before the implementation of the invention.84 Unfortunately, the ECJ did not elaborate on what concept of dignity it relied on to come to this conclusion, nor did it establish the existence of a European consensus according to which the destruction of human embryos violates human dignity and therefore requires the denial of patenting rights for any downstream use of inventions that derive from such a destruction.85 As Article 3(2) of the Charter does not provide a specific definition of what is meant 03.51 by ‘the human body and its part’, it seems as if the broad approach adopted in Brüstle to the definition of human embryo as well as to its commercial and industrial use would be compatible with that provision, though by no means required. Indeed, according to Strasbourg jurisprudence which refers to the European Group of Ethics in Science and New Technologies’ view that ‘because of a lack of consensus, it would be inappropriate to impose one exclusive moral code’ on research on human embryos,86 a wide margin of appreciation exists regarding the question of when life begins and should be afforded protection.87 It is likely that a similar approach would be adopted under Article 3(2)(c) of the Charter thus leaving it to Member States whether or not to extend the prohibition of the commercialisation of the human body to the commercial use of cells derived from embryo destruction.

80 Ibid [34]. For a critical discussion of this approach and definition, see A Plomer, ‘After Brüstle: EU Accession to the ECHR and the Future of European Patent Law’ (2012) 2 Queen Mary Journal of Intellectual Property 110, 136–38; S Harmon, G Laurie and A Courtney, ‘Dignity, Plurality and Patentability: the Unfinished Story of Brustle v Greenpeace’ (2013) European Law Review 92, 95–98 and 100; T M Spranger, ‘Case C-34/10, Oliver Brüstle v. Greenpeace e.V., Judgment of the Court (Grand Chamber) of 18 October 2011’ (2012) 49 Common Market Law Review 1197, 1202 and 1206. 81 Bache, Flear and Hervey (n 16) [38]. 82 Brüstle v Greenpeace eV (n 76) [46]. 83 Ibid [41]. 84 Ibid [49]. 85 For a forceful critique of this part of the decision see, in particular, Plomer (n 80) 126 and 131–33. See also M Varju and J Sandor, ‘Patenting Stem Cells in Europe: the Challenge of Multiplicity in European Union Law’ (2012) 49 Common Market Law Review 1007–38, 1031–35. 86 European Group on Ethics in Science and New Technologies to the European Commission, Opinion on the ethical aspects of research involving the use of human embryo in the context of the 5th Framework Programme, Opinion No 12, 23 November 1998, para 2.4. 87 Vo v France (2005) 40 EHRR 12 [82]. See also Plomer (n 80) 126–28.

Sabine Michalowski

55

Part I – Commentary on the Articles of the EU Charter

(e) Prohibition of Human Reproductive Cloning 03.52 Reproductive cloning of a human being means that a human being will be created not from a fertilised egg combining the genetic material of the egg and the sperm providers, but from an egg the nucleus of which is replaced with the genetic material from another person’s cell. The resulting embryo would then only have the genetic make-up of the cloned person, ie would be genetically identical with another human being.88 The prohibition contained in Article 3(2)(d) of the Charter in this respect is based on the Additional Protocol to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, on the Prohibition of Cloning Human Beings. The Explanatory Notes to the Charter specifically emphasise that other forms of cloning are not affected by the prohibition. This leaves open the possibility of therapeutic cloning, ie cloning in order to create cells, tissue or organs that might be used for therapeutic purposes.89 The main reason why the Additional Protocol to the Oviedo Convention prohibits 03.53 human cloning is that it amounts to an instrumentalisation of the clone, which is regarded as contrary to human dignity. In addition, para 3 of the Explanatory Report to the Protocol specifies that cloning bears the danger of making it possible to predetermine the human genetic constitution, thus raising fears of the creation of ‘designer babies’. The Protocol further justifies the prohibition on the grounds that the technique might imply medical, psychological and social difficulties for all individuals involved. Human reproductive cloning is not yet a medical possibility, and its outright prohi03.54 bition might have the effect of making the development of the relevant technologies improbable. The EU’s negative attitude regarding reproductive cloning has, for example, found its way into the Union’s research framework programmes by excluding the provision of funding for research related to human reproductive cloning.90 Recital 40 and Article 6(2)(a) of the Biotech Directive declare human cloning to be against l’ordre public and morality and exclude it from patentability, thus further expressing not only rejection of this technique, but moreover discouraging its technical advancement. 03.55 The link between the prohibition of reproductive cloning and the right to physical and mental integrity is unclear, as it is not obvious whose right to physical or mental integrity could be affected by reproductive cloning. If it were the right of the person whose genetic material is being used for cloning, that right could effectively be protected by an informed consent requirement. To prohibit reproductive cloning, on the other hand, might violate rather than enhance integrity, as it deprives individuals of the possibility to resort to this technique, whatever the reasons why they might choose to do so if reproductive cloning ever became available (potential reasons varying from the impossibility otherwise to have a genetically related child, the wish to produce a genetic copy of oneself, or to

88 Apart from the mitochondrial DNA. For a detailed analysis of the technical, legal and ethical issues involved in cloning, see I Kennedy and A Grubb, Medical Law, 3rd edn (London, Butterworths, 2000) 1247–68. 89 Favale and Plomer (n 14) 102. For a discussion of therapeutic cloning see Hervey and Black (n 16). 90 See, eg, Art 6(2) of Decision 1982/2006/EC concerning the Seventh Framework Programme of the European Community for research, technological development and demonstration activities (2007-2013) [2006] OJ L412. For a discussion, see Hennette-Vauchez (n 14) 9; Favale and Plomer (n 14) 94.

56

Sabine Michalowski

Art 3 – Right to the Integrity of the Person

produce a genetic copy of someone else, for example to replace a lost relative or to create a compatible organ donor). If the prohibition of reproductive cloning aimed at protecting the rights of the child 03.56 that has not yet been conceived, this would pose several difficulties. First, it is problematic whether a person can have any rights prior to conception, and if so, whether such a right can be violated by being conceived. As the claim would then have to be based on being harmed by having been conceived through a prohibited technique, this might conflict with the strong views held in most, if not all, EU Member States against the idea that being alive can be regarded as harmful.91 Secondly, it is not clear which rights of the clone might potentially be affected. One 03.57 argument against cloning is related to the potential health risks this method poses to both the mother and the child. There is moreover widespread concern that being conceived through cloning might violate the dignity or autonomy of the clone who, as the argument goes, is treated as a means to an end, rather than as an end in him/herself, as he/she is created for a specific purpose.92 Furthermore, the genetic identity with another person is regarded as threatening the clone’s sense of uniqueness and individuality.93 This, of course, is highly controversial and more and more voices reject these arguments as being based on misconceived genetic determinism and on a problematic application of the ‘no one shall be treated merely as a means to an end’ formula, as it is not at all clear that the clone would be reduced to serving someone else’s purposes, rather than being valued as a human being with his/her own worth.94 Nevertheless, the inclusion of the prohibition of human reproductive cloning in 03.58 Article 3(2)(d) of the Charter means that at EU level, the ethical question has been clearly decided against reproductive cloning and the interests of the person who might want to resort to reproductive cloning in order to realise his/her reproductive rights.

IV. Limitations and Derogations As the protection of physical and mental integrity is based on the provisions of the 03.59 European Convention on Human Rights and Biomedicine, the right can, according to Article 26 of that Convention, be restricted in the interest of public safety, for the prevention of crime, for the protection of public health, or for the protection of the rights and freedoms of others. Comparable restrictions also apply based on Article 8(2) ECHR. According to Strasbourg jurisprudence, the right to integrity cannot be legitimately restricted on paternalistic grounds, ie in order to protect a competent 91 Such an approach has been rejected in wrongful life cases, that is cases in which a child that was born with severe disabilities claims compensation on the grounds that had the mother been adequately informed, she would not have conceived or would have aborted the child; see, eg, McKay and another v Essex Area Health Authority and another [1982] 2 All ER 771; BGHZ 86, 240; and the French legislation of 10 January 2002 on the subject, Assemblée nationale, proposition de loi relative à la solidarité nationale et à l’indemnisation des handicaps congénitaux. 92 See, eg, HFEA/HGAC, Cloning Issues in Reproduction Science and Medicine—A Consultation Document, 1998, para 4.5. 93 Ibid para 4.7. 94 For an excellent discussion see, eg, J Robertson, ‘Liberty, Identity and Human Cloning’ (1998) 76 Texas Law Review 1371; see also J Harris, Clones, Genes, and Immortality (Oxford, OUP, 1998) 26–37; Beyleveld and Brownsword (n 74) 158–64.

Sabine Michalowski

57

Part I – Commentary on the Articles of the EU Charter

individual against their own autonomous choices, even if they might put the person’s health at risk.95 Nevertheless, under the Charter this is clearly a possibility, given that the prohibitions listed in Article 3(b) to (d) limit the autonomous decision-making of the competent person in the relevant areas.

V. Remedies 03.60 Litigation because of a violation of Article 3(2)(a) might arise, for example, where the adequacy of the information is at issue in the context of informed consent. An EU citizen travelling to another Member State to receive medical treatment, for example, might rely on Article 3 if the information provided prior to the treatment did not meet the standards developed by the European Court of Human Rights in VC v Slovakia,96 because the person was not provided with all relevant information in order to make an informed decision, or because the person was not given the time and space that was necessary to make an informed choice. Another scenario in which the consent requirement might be violated is that of a person donating organs or tissue in a Member State which did not adequately implement the consent requirements contained in the Human Tissue Directive. 03.61 Regarding the principle of the non-commercialisation of the human body, it might be interesting to test whether its status as a Charter right or principle under Article 3(2)(c) would make it possible for individuals to challenge the violation of this right where they were, for example, induced by financial incentives to donate blood or eggs.97

E. Evaluation 03.62 Article 3 seems to be a two-edged sword. While it highlights the importance of the right to physical and mental integrity and of the principle of informed consent, the three prohibitions contained in Article 3(2), though formulated as if they were designed to shape and strengthen the individual right to physical and mental integrity in the areas of medicine and biology, in fact not only outlaw certain activities in the name of protecting individual integrity, but at the same time put limitations on the exercise of the individual right to integrity in order to serve an objective vision of human dignity. This tension becomes clearest in the context of Article 3(2)(c), the prohibition of 03.63 making the human body and its parts the source of financial gain. It seems as if the general prohibition of the sale of body parts aims less at the protection of the integrity of the individual whose body is at issue, than at condemning the commodification

95 See also Jehovah’s Witnesses of Moscow v Russia (n 23) [135], and Pretty v UK (n 23) [63]; VC v Slovakia (n 45) [113]–[114]. 96 Ibid. 97 For a comparable point regarding a repentant seller of an organ, see R O’Connell and S Gevers, ‘Fixed Points in a Changing Age? The Council of Europe, Human Rights, and the Regulation of New Health Technologies’ in M Flear, A-M Farrell, T Hervey and T Murphy (eds), European Law and New Health Technologies (Oxford, OUP, 2013) 46–69, 65.

58

Sabine Michalowski

Art 3 – Right to the Integrity of the Person

of the human body as an infringement of human dignity, regardless of whether the individual concerned has given free and informed consent.98 Indeed, the prohibition on the sale of body parts limits the autonomy of individuals wishing to be involved in such activities, instead of enhancing it. To override individual autonomy in the name of dignity reflects a particular, rather paternalistic, vision of human dignity,99 which is also apparent in the Oviedo Convention.100 Thus understood, human dignity protects the intrinsic worth of the individual as defined from an objective perspective, and/or the dignity of the human species as such,101 rather than reinforcing the autonomous person’s claim that his/her freely made choices be respected.102 The concept of dignity reflected in the prohibition of the commercialisation of body parts consequently seems to be based on the assumption that there is a need to limit individual choice in order to protect an objective societal definition of dignity, and autonomous individuals against their own autonomous actions. The Explanatory Notes to Article 3 do not address this obvious tension between 03.64 individual rights and universalised notions of human dignity. However, it seems fair to say that ‘in bioethical contexts, “human dignity” is … often appealed to by those who seek to prevent change’,103 and that the vision of human dignity underlying the prohibitions in Article 3(2) does not intend to promote individual rights, but rather aims at ‘asserting collective control over individual choice’.104 It then does not seem correct to characterise the prohibitions contained in Article 3(2) as modern,105 ultramodern106 or post-modern or third-generation107 rights, as they do not grant rights, but rather impose restrictions on the exercise of rights. That the drafters of the Charter have chosen to impose with unusual specificity 03.65 a particular vision of human dignity in the medical and biological context108 might be explained by a desire to declare a system of fundamental values that represents the European identity.109 Indeed, it seems as if the main aim behind the prohibitions contained in Article 3(2) of the Charter is to present certain values as so fundamental

98 In favour of such an approach see, eg, S Wheatley, ‘Human Rights and Human Dignity in the Resolution of Certain Ethical Questions in Biomedicine’, (2001) 3 European Human Rights Law Review 312, 323. 99 For a detailed discussion of what they call ‘human dignity as constraint’ see Beyleveld and Brownsword (n 74) 29–47. 100 See also Favale and Plomer (n 14) 99–101. 101 For a discussion in the context of the Oviedo Convention see O’Connell and Gevers (n 97) 67. 102 For a detailed discussion of what they call ‘human dignity as empowerment’, see Beyleveld and Brownsword (n 74) 9–28. 103 H Kuhse, ‘Is There a Tension between Autonomy and Dignity?’ in P Kemp, J Rendtorff and N Mattson Johansen (eds), Bioethics and Biolaw, vol II (Copenhagen, Rhodos International Science and Art Publishers and Centre for Ethics and Law, 2000) 61–74, 62. 104 Beyleveld and Brownsword (n 74) 44. 105 M Gijzen, ‘The Charter: A Milestone for Social Protection in Europe?’ (2001) 8 Maastricht Journal of European & Comparative Law 33–48, 41. 106 D Curtin and R van Ooik, ‘The Sting is Always in The Tail. The Personal Scope of Application of the EU Charter of Fundamental Rights’ (2001) 8 Maastricht Journal of European & Comparative Law 102–14, 104. 107 L Betten, ‘Current developments: Community Law. Human Rights’ (2001) 50 International Current Law Quarterly 690–701, 692. 108 AW Heringa and L Verhey, ‘The EU Charter: Text and Structure’ (2001) 8 Maastricht Journal of European & Comparative Law 11–32, 18. 109 Editorial Comments, ‘The EU Charter of Fundamental Rights still under Discussion’ (2001) 38 Common Market Law Review 1–6, 4.

Sabine Michalowski

59

Part I – Commentary on the Articles of the EU Charter

that they represent what the European Union stands for,110 and that every deviation from these values, even by autonomous individuals, threatens this consensus and with it the ethical foundations of the society the European Union has chosen to be. Reliance on the Oviedo Convention and the Additional Protocol on Human Reproductive Cloning as main authority for an expression of the values protected under Article 3(2) is, however, problematic, given that the documents have not been ratified by all of the EU Member States.

110

60

Beyleveld and Brownsword (n 74) 65.

Sabine Michalowski

Article 4 Article 4 Prohibition of Torture and Inhuman or Degrading Treatment or Punishment No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Text of Explanatory Note on Article 4 The right in Article 4 is the right guaranteed by Article 3 of the ECHR, which has the same wording: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ By virtue of Article 52(3) of the Charter, it therefore has the same meaning and the same scope as the ECHR Article.

Select Bibliography M Cherif Bassiouni (ed), International Criminal Law: Sources, Subjects, and Contents, 3rd edn (Leiden, Martinus Nijhoff Publishers 2008). S Carrera, M de Somer and B Petkova, The Court of Justice of the European Union as a Fundamental Rights Tribunal—Challenges for the Effective Delivery of Fundamental Rights in the Area of Freedom, Security and Justice (CEPS Paper in Liberty and Security, No 49/August 2012). Council of Europe, ‘Secretary General’s supplementary report under article 52 ECHR on the question of secret detention and transport of detainees suspected of terrorist acts, notably by or at the instigation of foreign agencies’ (2006) 13 SG/Inf, 14 June 2006. P van Dijk, F van Hoof, A van Rijn and L Zwaak, Theory and Practice of the European Convention on Human Rights, 4th edn (Antwerpen/Oxford, Martinus Nijhoff Publishers 2006). C Droege, ‘Transfers of Detainees: Legal Framework, Non-Refoulement And Contemporary Challenges’ (2008) 90 (871) International Review of the Red Cross 669–701. ——, ‘“In Truth the Leitmotiv”: The Prohibition of Torture and other Forms of Ill-Treatment in International Humanitarian Law’ (2007) 89 International Review of the Red Cross 515–41. EU Network of Independent Experts on Fundamental Rights, Opinion no 3/2006: The human rights responsibilities of the EU Member states in the context of the CIA activities in Europe (‘Extraordinary renditions’), 25 May 2006. European Parliament’s Committee on Civil Liberties, Justice and Home Affairs, ‘TIDP Temporary Committee’ set up on 15 December 2005 to investigate the alleged illegal transfer of detainees and the suspected existence of secret CIA detention facilities in the European Union and in candidate countries, Final Report (A6-0020/2007). European Parliament Resolution on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (2006/2200(INI))—14 February 2007. European Parliament, Directorate General for Internal Policies, Citizen’s Rights and Constitutional Affairs, Justice, Freedom and Security, Implementation of the EU Charter of Fundamental Rights and its impact on EU Home Affairs Agencies, Frontex, Europol and the European Asylum Support Office, Study 2011. MD Evans, ‘Getting to Grips with Torture’ (2002) 51 International and Comparative Law Quarterly 365–83. MD Evans and R Morgan, Preventing Torture: A Study of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (Oxford, Oxford University Press, 1998).

Part I – Commentary on the Articles of the EU Charter

J Abr Frowein and W Peukert, Europäische Menschenrechtskonvention, 3rd edn (Kehl am Rhein, NP Engel Verlag, 2009). M Gibney and S Skogly (eds), Universal Human Rights and Extraterritorial Obligations (Philadelphia, University of Pennsylvania Press, 2010). C Grabenwarter and K Pabel, Europäische Menschenrechtskonvention, 5th edn (Munich, CH Beck, 2012). DJ Harris, M O’Boyle and C Warbrick, Law of the European Convention on Human Rights (Oxford, Oxford University Press, 1995). JA Hessbruegge, ‘European Court of Human Rights Protects Migrants Against “Push Back” Operations on the High Seas’ (2012) 16 (14) ASIL Insights. Human Rights Watch, ‘The EU’s Dirty Hands: Frontex Involvement in the Treatment of Migrant Detainees in Greece’ (September 2011). ——, ‘No Guidelines on Empty “No Torture” Promises’ (3 April 2006). R Krammer, Menschenwürde und Art 3 EMRK (Salzburg, Jan Sramek Verlag, 2012). U Kriebaum, Folterprävention in Europa: Die Europäische Konvention zur Verhütung von Folter und enschlicher oder erniedrigender Behandlung oder Bestrafung (Vienna, Verlag Österreich, 2000). D Marty, Secret Detentions and Illegal Transfers of Detainees Involving Council of Europe Member States: Second Report (Doc 11302 rev, Committee on Legal Affairs and Human Rights/Council of Europe Parliamentary Assembly, 11 June 2007). M Milanovic, Extraterritorial Application of Human Rights Treaties (Oxford/New York, Oxford University Press, 2011). M Nowak, UN Covenant on Civil and Political Rights—CCPR Commentary, 2nd edn (Kehl, NP Engel Verlag, 2005). ——, ‘Challenges to the Absolute Nature of the Prohibition of Torture and Ill-Treatment’ (2005) Netherlands Quarterly of Human Rights 674–88. ——, ‘What Practices Constitute Torture?: US and UN Standards’ (2006) 28 Human Rights Quarterly 809–41. —— and R Janik, ‘Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ in A Clapham, P Gaeta and M Sassoli (eds), The 1949 Geneva Conventions A Commentary (Oxford, Oxford University Press, forthcoming). —— and E McArthur, The United Nations Convention against Torture—A Commentary (Oxford, Oxford University Press, 2008). Panel of Eminent Persons on the initiative of the Swiss Government on the occasion of the 60th anniversary of the Universal Declaration of Human Rights, ‘Protecting Dignity: An Agenda for Human Rights’, Geneva 2008 (Progress Report prepared by the Panel’s Rapporteur Manfred Nowak) 12 et seq. J Pictet, The Geneva Conventions of 12 August 1949: Commentary, Vol IV, Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva, International Committee of the Red Cross, 1958). NS Rodley, ‘The Definition(s) of Torture in International Law’ (2002) 55 Current Legal Problems 467–93. —— and M Pollard, The Treatment of Prisoners under International Law, 3rd edn (Oxford, Oxford University Press, 2011). P Ronchi, ‘The Borders of Human Rights’ (2012) 128 Law Quarterly Review 20, 23. C Ryngaert, ‘Clarifying the Extraterritorial Application of the European Convention on Human Rights’ (2012) 28 (74) Merkourios, Case Note, 57–60. W Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford, Oxford University Press, 2010). ——, ‘The Crime of Torture and the International Criminal Tribunals’ (2006) 55 Case Western Reserve Journal of International Law.

62

Manfred Nowak and Anne Charbord

Art 4 – Prohibition of Torture

——, The Abolition of the Death Penalty in International Law, 3rd edn (Cambridge, Cambridge University Press, 2003). H Tretter, ‘Kommentar zu Artikel 3 EMRK’ in K Korinek and M Holoubek (eds), Österreichisches Bundesverfassungsrecht, Teil III Grundrecht (Vienna, Springer, 2011). O Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn (Munich/Oxford, CH Beck/Hart, 2008). UN High Commissioner for Human Rights, Report of the United Nations High Commissioner for Human Rights on the Protection Of Human Rights And Fundamental Freedoms While Countering Terrorism (A/HRC/4/88). UN Special Rapporteur on Torture, Reports to the Commission on Human Rights (UN Doc E/ CN4/2006/6); To the Human Rights Council: UN Doc. A/HRC/7/3, UN Doc A/HRC/10/44/ Add.2, UN Doc A/HRC/10/44/Add 3, UN Doc A/HRC/13/39/Add 5; To the General Assembly: UN Doc A/64/215). UN, Joint Report Of Four Special Procedures On Secret Detention In The Fight Against Terrorism (UN Doc A/HRC/13/42).

A. Field of Application of Article 4 The scope of the prohibition of torture and inhuman or degrading treatment or 04.01 punishment enshrined in Article 4 of the European Charter of Fundamental Rights (hereinafter: EUCR) is defined in Article 51 EUCR. Article 4 EUCR is addressed to the institutions, bodies, offices and agencies of the Union, and to the Member States only when they are implementing European Union law. With the broadening of internal competencies in the areas of Justice and Home Affairs (JHA), including the development of an area of freedom, security and justice, and the broadening of external competencies in the EU’s Common Foreign and Security Policy (CFSP), the prohibition of torture, inhuman or degrading treatment or punishment is increasingly relevant for EU institutions, bodies and agencies. The area of JHA has an important impact on the lives of EU citizens. It covers areas 04.02 such as judicial cooperation in criminal matters, police cooperation and criminal law. The Treaty of Amsterdam and the Lisbon Treaty both developed the area of ‘freedom, security and justice’, further developed by the most recent Stockholm Programme,1 which increases EU competencies in the fields of internal security, terrorism, immigration, asylum and external border control. The treatment of individuals is key in all of these areas, which can provide grounds for the application of Article 4 EUCR. By way of example, the Common European Asylum System—and the‘Dublin Regulation’, 04.03 which determines the responsible Member State for examining an asylum application— is based on the presumption that respect for the human rights of asylum seekers, such as those relating to their treatment during the determination of their status— including any detention—applies equally in all EU Member States. Consequently, a violation of the absolute prohibition of torture, inhuman or degrading treatment or

1 Council of the European Union, 3 March 2010 5731/10, ‘The Stockholm Programme—An open and secure Europe serving and protecting citizens’. This programme builds on the Tampere and Hague Programmes and covers the years 2010 to 2014.

Manfred Nowak and Anne Charbord

63

Part I – Commentary on the Articles of the EU Charter

punishment in a Member State responsible for asylum applications could entail the responsibility, not only of that particular Member State, but also of any other Member State involved in sending asylum seekers there. Both the ECtHR and the CJEU have examined this issue, stating that the presumption of equivalent human rights protection was rebuttable, and that the strict application of the Dublin Regulation in cases where Member States knew about the risk of ill-treatment was incompatible with states’ human rights obligations.2 04.04 In order to assist Member States and EU institutions on JHA, a number of working parties and committees,3 as well as specialised bodies,4 have been set up. Those in charge of the areas of security, justice and freedom (Frontex, EASO and Europol) are especially exposed to liability under Article 4 EUCR. Broadly speaking, these agencies are to act as a platform for cooperation between Member States. However, their mandates allow for some flexibility in their scope of action,5 and it is not impossible to conceive of situations in which the line between ‘coordination’ and ‘conducting operations’ becomes blurred.6 In the case of a violation of Article 4 EUCR, the responsibility of the EU itself under the EUCR would be raised, as well as questions as to the respective responsibility of the EU agencies7 and the Member States involved.8 04.05 The Stockholm Programme focuses inter alia on police and judicial cooperation, asylum and illegal migration. The Programme includes, for example, the furthering of

2 See MSS v Belgium and Greece App no 30696/09 (ECtHR, 21 January 2011) and, Joined Cases C-411/10 and C-493/10, NS v Secretary of State for the Home Department and ME and Others v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform [2011] OJ C274/21 and OJ C13/18 (CJEU). 3 Eg the CATS (Coordinating Committee in the area of police and judicial cooperation in criminal matters), the Strategic Committee on Immigration, Frontiers and Asylum and the COSI (Committee on Internal Security). 4 These include Frontex (European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union), Europol (Law Enforcement Agency of the European Union), Eurojust (European Agency for the fight against serious organised crime) and EASO (European Asylum Support Office). 5 See European Parliament, Directorate General for Internal Policies, Citizen’s Rights and Constitutional Affairs, Justice, Freedom and Security, Implementation of the EU Charter of Fundamental Rights and its impact on EU Home Affairs Agencies, Frontex, Europol and the European Asylum Support Office, Study 2011. Key findings: ‘EU home affairs agencies have confirmed themselves as distinct forms of EU regulatory agency. Their scope of action and tasks are not fully predetermined and defined in their founding regulations, at times allowing for the flexible accommodation, and sometimes extension, of their competences to new domains on an ad hoc basis. The three agencies have been granted important operational tasks that go beyond mere “regulatory activities”. Yet their dominant framing as depoliticized “coordinators” or “facilitators” of Member State actions has increased their relative autonomy, in some cases preventing a proper democratic scrutiny of the nature and impact of their activities and evading questions of accountability, responsibility and liability in cases of alleged unlawful actions, including potential fundamental rights breaches and risks.’ Available at www.europarl.europa.eu/studies. See also S Carrera, M de Somer and B Petkova, ‘The Court of Justice of the European Union as a Fundamental Rights Tribunal—Challenges for the Effective Delivery of Fundamental Rights in the Area of Freedom, Security and Justice’, CEPS Paper in Liberty and Security, No 49/August 2012. 6 Eg Frontex joint operations and Rapid Border Intervention Teams (RABITs), Europol Joint Investigation Teams. Other cases could include funding or logistics provided for specific operations conducted by Member States, or the provision of personnel to carry out operations. 7 See Art 263 TFEU, which provides for a review of acts of EU agencies when they are intended to produce legal effects vis-à-vis third parties, thus allowing the Court to hold agencies accountable for violations of the Charter. 8 See in particular Art 80 TFEU which states that EU policies on border checks, asylum and immigration shall be governed by ‘the principle of solidarity and fair sharing of responsibility’ between the Member States.

64

Manfred Nowak and Anne Charbord

Art 4 – Prohibition of Torture

questions linked to the mutual recognition of evidence9 and the principle of mutual recognition in the area of detention, as well as a more effective European law enforcement cooperation and an examination of how operational police cooperation could be stepped up. In the area of migration and asylum, the Stockholm document refers to effective policies to combat illegal immigration (fully respecting the principle of non-refoulement), and highlights that focus should be placed on ‘assistance by the Commission, Frontex and Member States to Member States which face specific and disproportionate pressures to ensure the effectiveness of their return policies towards certain third countries’. It also refers ‘to increased practical cooperation between Member States, for instance by regular chartering of joint return flights, financed by Frontex’. In the same vein, the EU Counter-Terrorism Strategy, adopted on 30 November 2005,10 should be mentioned. This strategy has placed respect for human rights at its core11 and sets out objectives to inter alia pursue and investigate members of existing networks. While primary responsibility for achieving the objectives laid out in the Strategy rest with Member States, the EU has a role to play. This role can be limited to the sharing of best practices, but can also involve EU institutions providing ‘support’ to Member States in coordinating their policies12 such as in the area of border and transport security, and Frontex providing risk assessment as part of the effort to strengthen controls and surveillance at the EU’s external border.13 The Strategy also notes that the EU will support the efforts of Member States to disrupt terrorists by encouraging the exchange of information and intelligence between them, providing common analyses of the threat, and strengthening operational co-operation in law enforcement.14 The Strategy also highlights the European Arrest Warrant (EAW) and the European Evidence Warrant as important tools, and notes that Member States should improve further the practical cooperation and information exchange between police and judicial authorities. Joint Investigation Teams should be established where necessary for cross-border investigations.15 All of these very sensitive issues could potentially include a responsibility for the EU itself or its Member States in the implementation of EU Law with regard to Article 4 EUCR. The EAW is another measure that should be mentioned in this section since it could 04.06 give rise to Member States’ responsibility for violations of Article 4 EUCR.16 It is based on the reciprocal trust that human rights are equally protected in all states which use the EAW. This means, inter alia, ensuring that prison conditions and prison regimes do

9 The adoption of a European Evidence Warrant was already included in the EU Counter-Terrorism Strategy, adopted on 30 November 2005. 10 Council of the EU, 30 November 2005, 14469/4/05 REV 4. 11 Its key strategic objective is ‘[t]o combat terrorism globally while respecting human rights, and make Europe safer, allowing its citizens to live in an area of freedom, security and justice’. 12 EU Counter-Terrorism Strategy (n 10) para 15. 13 Ibid, para 16. 14 Ibid, para 23. 15 Ibid, para 25. 16 See Framework Decision 2002/584/JHA [2002] OJ L190, amended by Framework Decision 2009/299/ JHA [2009] OJ L81. It is any judicial decision issued by a Member State with a view to the arrest or surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution, executing a custodial sentence or executing a detention order. The Framework decision subjects it to human rights obligations: ‘This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6(3) of the Treaty on European Union.’

Manfred Nowak and Anne Charbord

65

Part I – Commentary on the Articles of the EU Charter

not amount to torture or to inhuman or degrading treatment or punishment, and that vulnerable populations are properly cared for in the requesting state. It is possible to draw inferences from the rulings on the common asylum system referred to earlier, and note that the presumption of equal protection should be equally rebuttable. In the case of an extradition where the sending state knew or ought to have known that conditions of detention in the requesting state could be in violation of Article 4 EUCR, the sending state would be itself in breach of the Charter.17 Other mutual recognition instruments, such as the principle of mutual recognition of judicial decisions and the transfer of prisoners within and between EU countries are also affected by the treatment of individuals, in particular detention conditions. Externally, respect for human rights features among the key objectives of the EU’s 04.07 CFSP, with the fight against torture and ill-treatment in prominent position. The EU has adopted guidelines, which provide practical guidance in contacts with third countries at all levels, as well as in multilateral human rights fora, in order to support and strengthen ongoing efforts to prevent and eradicate torture and other ill-treatment throughout the world.18 While the promotion of the absolute prohibition of torture and ill-treatment may be essential in the EU’s relationship with non-Member States and external partners, the EU is itself bound to respect this prohibition in all aspects of its CFSP. Two specific areas of the CFSP might be particularly relevant for the application 04.08 of Article 4 EUCR. The first area is that of EU involvement in multinational missions and EU operations. Current examples include the European Naval Force Somalia— Operation Atalanta, whose mandate includes powers to arrest, detain and transfer persons suspected of intending to commit, committing or having committed acts of piracy or armed robbery off the coast of Somalia.19 The second such operation is military operation Althea in Bosnia and Herzegovina, based on UN Security Council Resolution 1575 adopted under Chapter VII of the UN Charter.20 A further example is the EU Rule of Law Mission in Kosovo—EULEX,21 which assists, inter alia, Kosovo law enforcement agencies. Its mandate involves ‘monitoring, mentoring and advising,

17

See MSS v Belgium and Greece (n 2) and NS v Secretary of State for the Home Department (n 2). See Council of the European Union, ‘Guidelines to EU Policy towards third countries on torture and other cruel, inhuman or degrading treatment or punishment: An up-date of the Guidelines’, 20 March 2012, 6129/1/12 REV 1. 19 See Council Joint Action 2008/851/CFSP of 10 November 2008 on a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast. Art 2, which deals with the mandate, states that Atalanta shall (d) take the necessary measures, including the use of force, to deter, prevent and intervene in order to bring to an end acts of piracy and armed robbery which may be committed in the areas where it is present; and (e) in view of prosecutions potentially being brought by the relevant states under the conditions in Art 12, arrest, detain and transfer persons who have committed, or are suspected of having committed, acts of piracy or armed robbery in the areas where it is present and seize the vessels of the pirates or armed robbers or the vessels caught following an act of piracy or an armed robbery and which are in the hands of the pirates, as well as the goods on board; See also Art 12(2), which states that ‘No persons … may be transferred to a third State unless the conditions for the transfer have been agreed with that third State in a manner consistent with relevant international law, notably international law on human rights, in order to guarantee in particular that no one shall be subjected to the death penalty, to torture or to any cruel, inhuman or degrading treatment.’ 20 UN Security Council Resolution 1575 adopted under Chapter VII of the UN Charter authorised the deployment of an EU force in BiH to ensure continued compliance with the Dayton/Paris Peace Agreement and to contribute to a safe and secure environment in BiH. 21 Established pursuant to UN Security Council Resolution 1244 adopted under Chapter VII of the UN Charter. 18

66

Manfred Nowak and Anne Charbord

Art 4 – Prohibition of Torture

while retaining certain executive responsibilities’.22 In the context of police or military operations where individuals can be detained and detainees transferred, the absolute prohibition of torture and ill-treatment, as well as its corollary, the principle of nonrefoulement, apply. The ECtHR has recently specifically reaffirmed that a state is bound to respect the rights under the ECHR—the principle of non-refoulement relating to torture or ill-treatment—where the state has established effective control and authority outside its territory, including on the high seas.23 The second area to mention is the upgrading, with the Lisbon Treaty, of all former 04.09 European Commission Delegations into European Union Delegations, as part of the establishment of the European External Action Service. With this process, Union delegations, their staff and their property benefit from privileges and immunities equivalent to those enshrined in the Vienna Convention on Diplomatic Relations of 18 April 1961.24 Should a person take refuge in an EU delegation, the prohibition of refoulement relating to torture or ill-treatment should apply, as the key issue is not whether an international border has been crossed but whether there is a risk of ill-treatment.25

B. Interrelationship of Article 4 with Other Provisions of the Charter Torture constitutes one of the most direct and brutal attacks on the core of human 04.10 dignity and personal integrity. Torture aims at breaking the will of the victims and to degrade them to a powerless tool in the hands of the perpetrators. Whereas slavery dehumanises human beings de jure by taking away their recognition as a person before the law, torture dehumanises them de facto. No provision in international human rights law establishes a clearer link between the rights to human dignity and to the recognition of a legal status of human beings on the one hand and the prohibition of slavery and torture on the other hand than Article 5 of the African Charter on Human and Peoples’ Rights.26 While Articles 3 and 4 of the ECHR, which formed the basis for the provisions of Articles 4 and 5 EUCR, define the right to human dignity and personal integrity only in negative terms (prohibition of torture and slavery), other human rights treaties link these prohibitions to a positive human right. Article 5 of the American Convention on Human Rights (ACHR), eg, first recognises the human right to respect of the physical, mental and moral integrity of every person before it stipulates the prohibition of torture and the right of detainees to be treated with respect for the inherent dignity of the human person. Similarly, Article 10 of the International Covenant on Civil and Political

22

See Council Joint Action 2008/124/CFSP, 4 February 2008 on EULEX Kosovo, Art 2. See Hirsi Jamaa et al v Italy App no 27765/09 (ECtHR, 23 February 2012). 24 Art 5.6 Council Decision of 26 July 2010 establishing the organisation and functioning of the European External Action Service (2010/427/EU). 25 Several ECtHR cases support this position. See Al-Sadoon and Mufdhi v UK App no 61498/08 (25 March 2009) and Hirsi Jamaa et al v Italy (n 23). 26 Art 5 of the African Charter reads as follows: ‘Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.’ 23

Manfred Nowak and Anne Charbord

67

Part I – Commentary on the Articles of the EU Charter

Rights (CCPR) ensures that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. 04.11 Article 4 EUCR must, therefore, be interpreted in the context of all other human rights enlisted in the first chapter entitled ‘Dignity’. According to Article 1, human dignity is inviolable and must be respected and protected. The notion of dignity as the essential distinguishing feature between human beings and other creatures constitutes the fundamental philosophical idea underlying the concept of inalienable human rights as developed in the Age of Enlightenment. Philosophers like Immanuel Kant grounded the claim of human dignity and the uniqueness of human beings in human free will, in the capacity for moral choice and individual autonomy.27 In this sense, all human rights are based on the moral and philosophical foundation of human dignity, although the concept of human rights is much broader and not all violations of human rights constitute at the same time an attack on human dignity. By creating a chapter on dignity, the EUCR constitutes the first human rights instrument to attempt to define those rights that are most directly linked to the notion of human dignity. In addition to the significance of human dignity as a fundamental value underlying the very concept of human rights,28 Article 1 EUCR also recognises the right to human dignity as a separate human right with corresponding obligations of others. In this respect, Article 1 EUCR was inspired by both Article 1 of the Universal Declaration of Human Rights (UDHR) 194829 and Article 1 of the German Constitution (Grundgesetz) of 1949.30 The meaning of the right to human dignity as a separate human right can be interpreted as a reaction to the systematic denial of human dignity during the Nazi Holocaust and was further developed in the rich case law of the German Constitutional Court. The ECJ has since defined respect for human dignity as a general principle of law.31 04.12 The other rights in Chapter I of the EUCR, namely the right to life (Art 2), the right to the integrity of the person (Art 3) as well as the prohibition of torture (Art 4) and slavery (Art 5) directly follow from the inviolability of human dignity. The five rights enumerated in the chapter on dignity overlap with each other to some extent. Article 2(2) stipulates, eg, in the context of the right to life, that no one shall be condemned to the death penalty, or executed. But the absolute prohibition of the death penalty in fact derives more from the growing conviction in Europe and other parts of the world that capital punishment, similar to corporal punishment, constitutes an inhuman and degrading punishment, as prohibited by Article 4.32 Article 3 EUCR, which guarantees

27 Cf, eg, ‘Protecting Dignity: An Agenda for Human Rights’, prepared by a Panel of Eminent Persons on the initiative of the Swiss Government on the occasion of the 60th anniversary of the Universal Declaration of Human Rights, Geneva 2008 (Progress Report prepared by the Panel’s Rapporteur Manfred Nowak, 12 et seq). 28 See in this sense also, eg the Preambles to the UN Charter 1945 (‘to reaffirm faith in fundamental human rights, in the dignity and worth of the human person’) and to the Universal Declaration of Human Rights 1948 (‘Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’). 29 Art 1 UDHR: ‘All human beings are born free and equal in dignity and human rights. They are endowed with reason and conscience and should act towards another in a spirit of brotherhood.’ 30 Art 1(1) Grundgesetz: ‘Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.’ 31 See the commentary of Catherine Dupré on Art 1 above with further references. 32 The prohibition of capital punishment as the ultimate form of a cruel, inhuman or degrading punishment is, eg, underlined by Art 37(a) of the UN Convention on the Rights of the Child and a rich case law of domestic courts, most notably the South African Constitutional Court in S v Makwanyane and Another

68

Manfred Nowak and Anne Charbord

Art 4 – Prohibition of Torture

the right to physical and mental integrity of the person, primarily deals with threats to this right deriving from new scientific developments in the fields of medicine and biology which traditionally have been addressed in the context of the right not to be subjected to torture, cruel and inhuman treatment or punishment. For example, the prohibition of torture and other forms of ill-treatment in Article 7 of the CCPR explicitly includes the obligation that ‘no one shall be subjected without his free consent to medical or scientific experimentation’, which can also be found in Article 3(2) EUCR. This and other specific rights spelled out in Article 3(2) EUCR, such as the prohibition of eugenic practices, the prohibition on making the human body and its parts as such a source of financial gain, and the prohibition of the reproductive cloning of human beings correspond also to the European Convention on Human Rights and Biomedicine and its Additional Protocol on the Prohibition of Cloning Human Beings adopted by the Council of Europe in 1997 and 1998, respectively. Similarly, the prohibition of slavery, servitude, forced labour and other slavery-like practices, such as trafficking in human beings in Article 5 EUCR are closely related to the prohibition of torture and other forms of ill-treatment in Article 4. In certain ancient cultures, for example, testimonies of slaves were only valid before the courts if confirmed under torture. In certain cases, trafficking of human beings can amount to torture, inhuman or degrading treatment if the state fails to fulfil its due diligence and rehabilitation obligations in terms of the prevention of trafficking and the protection of individual victims.33 These close links between the different rights contained in Chapter I need to be taken into account when interpreting Article 4 EUCR. In addition to the rights contained in Chapter I entitled ‘Dignity’, other rights of the 04.13 EUCR also show a close relationship with the prohibition of torture and ill-treatment in Article 4. While the principle of non-refoulement has been developed by the ECtHR, the UN Human Rights Committee and other international treaty monitoring bodies on the basis of the prohibition of torture, Article 19(2) EUCR contains an explicit ‘right of non-refoulement’: ‘No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.’ Apart from reaffirming the close relationship between the prohibition of torture and the prohibition of the death penalty, this provision also makes clear that the prohibition of refoulement not only relates to the risk of torture, as explicitly provided for in Article 3 of the UN Convention against Torture, but goes beyond and also covers the risk of inhuman or degrading treatment or punishment, as developed in the jurisprudence of the ECtHR. Since torture constitutes a widely used method of persecution which often leads torture survivors to seek refuge

(CCT3/94) [1995] ZACC 3. The same holds true for the EU Guidelines on the death penalty (General Affairs Council of 16 June 2008), and the repeated calls by the UN General Assembly on its Member States to establish a moratorium on the death penalty: see GA Res A/RES/62/149 (adopted on 18 December 2007, by a vote of 99 in favour to 52 against, with 33 abstentions), A/RES/63/168 (adopted on 18 December 2008, by a vote of 104 in favour to 54 against, with 29 abstentions), A/RES/65/206 (adopted on 21 December 2010, by a vote of 108 in favour to 41 against, with 36 abstentions), A/RES/67/177 (adopted on 20 December 2012, by a vote of 111 votes in favour, with 41 votes against and 34 abstentions). 33 Cf, eg, the general report of the UN Special Rapporteur on Torture to the Human Rights Council of 15 January 2008 focusing on strengthening the protection of women from torture (UN Doc A/HRC/7/3, paras 56–58) and the report on his mission to the Republic of Moldova of 12 February 2009 (UN Doc A/ HRC/10/44/Add 3, para 52).

Manfred Nowak and Anne Charbord

69

Part I – Commentary on the Articles of the EU Charter

in another country, including Member States of the EU, there is also a causal link to the right to asylum in Article 18 EUCR. Certain groups, such as children, the elderly and persons with disabilities are particularly vulnerable to torture and other forms of illtreatment. The prohibition of torture and ill-treatment shall, therefore, be kept in mind when interpreting and applying specific human rights of such groups, as spelled out in Articles 24, 25, 26 and 32 EUCR. The aspiration of the Union, as stipulated in Article 25, to recognise and respect the rights of the elderly ‘to lead a life of dignity and independence’ may be applied, mutatis mutandis, to children and persons with disabilities.

C. Sources of Article 4 Rights I. ECHR 04.14 The wording of Article 4 EUCR is identical to Article 3 of the ECHR and the Explanations refer directly to this provision. As stipulated in Article 52(3) EUCR, the meaning and scope of the right not to be subjected to torture, inhuman or degrading treatment or punishment shall, therefore, be the same as in Article 3 ECHR. This means that the rich case law of the ECtHR and the former European Commission of Human Rights shall be the primary source of interpretation of the rights contained in Article 4 EUCR.34 This applies, inter alia, to the scope and definition of the different forms of ill-treatment and the absolute nature of their prohibition,35 including the absolute prohibition of corporal punishment,36 the duty to protect human beings from ill-treatment by private actors,37 the duty to investigate all allegations and suspicions of torture and ill-treatment,38 the duty to criminalise torture,39 the duty to exclude evidence extracted by torture,40 the duty to provide victims of torture with adequate reparation for the harm suffered41 and other positive obligations of states. The Strasbourg case law under

34 On the case law of the European Commission and Court of Human Rights see, eg, P van Dijk, F van Hoof, A van Rijn and L Zwaak, Theory and Practice of the European Convention on Human Rights, 4th edn (Antwerpen/Oxford, Martinus Nijhoff Publishers, 2006); DJ Harris, M O’Boyle and C Warbrick, Law of the European Convention on Human Rights (Oxford, Oxford University Press, 1995); J Abr Frowein and W Peukert, Europäische Menschenrechtskonvention, 3rd edn (Kehl am Rhein, NP Engel, 2009); C Grabenwarter and K Pabel, Europäische Menschenrechtskonvention, 5th edn (Munich, CH Beck, 2012); R Krammer, Menschenwürde und Art 3 EMRK (Salzburg, Jan Sramek Verlag, 2012); H Tretter, ‘Kommentar zu Artikel 3 EMRK’, in K Korinek and M Holoubek (eds), Österreichisches Bundesverfassungsrecht, Teil III Grundrecht (Vienna, Springer, 2011). 35 The Greek Case (Commission, 31 May 1968); Denmark v Greece App no 3321/67, Norway v Greece App no 3322/67, Sweden v Greece, App no 3323/67, Netherland v Greece App no 3344/67 (1969) 12 Yearbook of the European Convention on Human Rights; Ireland v UK, 18 January 1978, Series A, No 25; Aksoy v Turkey App no 21987/93 (18 December 1996); Aydin v Turkey App no 23178/94 (25 September 1997); Selmouni v France App no 25803/94 (28 July 1999); Ilhan v Turkey App no 22277/93 (27 June 2000). 36 Tyrer v UK App no 5856/72 (25 April 1978). 37 A v UK App no 25599/94 (23 September 1998); Osman v UK App no 23452/94 (28 October 1998); Pretty v UK App no 2346/02 (29 April 2002). 38 Ribitsch v Austria App no 18896/91 (4 December 1995); Assenov and Others v Bulgaria App no 24760/94 (28 October 1998); Labita v Italy App no 26772/95 (6 April 2000). 39 MC v Bulgaria App no 39272/98 (4 December 2003). 40 Jalloh v Germany App no 54810/00 (11 July 2006). 41 Assanidze v Georgia App no 71503/01 (8 April 2004).

70

Manfred Nowak and Anne Charbord

Art 4 – Prohibition of Torture

Article 3 ECHR also covers minimum conditions of detention,42 solitary confinement,43 incommunicado detention and enforced disappearance,44 the principle of non-refoulement in relation to expulsion and extradition,45 including diplomatic assurances,46 and extraterritorial obligations.47

II. UN Treaties The wording of Article 3 ECHR was inspired by Article 5 of the UDHR (1948) which 04.15 reads: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’. Whereas the reference to ‘cruel treatment or punishment’ was deleted in Article 3 ECHR, other universal and regional human rights treaties, including Article 7 of the CCPR (1966),48 Article 5(2) of the ACHR (1969), Article 5 of the African Charter on Human and Peoples’ Rights 1981, Articles 1 and 16 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT, 1984)49 and Article 8(1) of the Arab Charter on Human Rights (2004), follow the formulation in the Universal Declaration. In practice, however, there is little difference, as the meaning of cruel and inhuman treatment or punishment is more or less the same.50 In addition to the prohibition of torture, cruel, inhuman or degrading treatment or 04.16 punishment, Article 7 CCPR also stipulates that ‘no one shall be subjected without his free consent to medical or scientific experimentation’. This provision is further elaborated in Article 3 EUCR. Article 7 CCPR is also closely related to Article 10 CCPR, which guarantees that ‘all persons deprived of their liberty shall be treated with humanity and respect for the inherent dignity of the human person’. Article 10(3) further stipulates that the ‘penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation’. This specific provision on the minimum rights of detainees also includes the segregation of accused persons from convicted prisoners and the separation of juveniles from adults. The provisions of Articles 7 and 10 CCPR have been further interpreted by the UN Human Rights Committee in the state reporting procedure under Article 40 CCPR, including by

42 The Greek Case (n 35); Soering v UK App no 14038/88 (7 July 1989); Kudla v Poland App no 30210/96 (26 October 2000); Kalashnikov v Russia App no 47095/99 (15 July 2002); Van der Ven v the Netherlands App no 50901/99 (4 February 2003). 43 Rohde v Denmark App no 69332/01 (21 July 2005); Ramirez Sanchez v France App no 59450/00 (4 July 2006); Mathew v the Netherlands App no 24919/03 (29 September 2005). 44 Kurt v Turkey App no 24276/94 (25 May 1998). 45 Soering v UK (n 42); Cruz Varas and Others v Sweden App no 15576/89 (20 March 1991); D v UK 146/1996/767/964 (2 May 1997); Jabari v Turkey App no 40035/98 (11 July 2000); El Masri v ‘The Former Yugoslav Republic of Macedonia’ App no 39630/09 (13 December 2012). 46 Chahal v UK App no 22414/93 (15 November 1996); Mamatkulov and Askarov v Turkey App nos 46827/99, 46951/99 (4 February 2005); Saadi v Italy App no 37201/06 (28 February 2008); Othman (Abu Qatada) v UK App no 8139/09 (17 January 2012). 47 Al-Sadoon and Mufdhi v UK (n 25); Al-Skeini and others v UK App no 55721/07 (7 July 2012). 48 All EU Member States are a party to the CCPR. 49 All EU Member States are a party to CAT. 50 Cf M Nowak and E McArthur, The United Nations Convention Against Torture—A Commentary (Oxford, Oxford University Press, 2008) 558.

Manfred Nowak and Anne Charbord

71

Part I – Commentary on the Articles of the EU Charter

so-called General Comments,51 and in the individual complaints system in accordance with the first Optional Protocol to the CCPR 1966.52 Notwithstanding certain differences in the jurisprudence between Strasbourg and Geneva, the issues dealt with by the Human Rights Committee are very similar to those covered by the ECtHR. 04.17 The UN CAT has been elaborated in reaction to the systematic practice of torture in Latin America and other regions and contains a number of detailed provisions and positive obligations of states parties aimed at preventing torture and ill-treatment, at combating impunity and bringing the perpetrators of torture to justice and at providing victims of torture with an effective remedy and adequate reparation for the harm suffered. Article 1 CAT contains a legal definition of torture, which has been inspired by the case law of the former European Commission of Human Rights in the Greek Case53 and which is also increasingly used in the recent jurisprudence of the ECtHR. Article 2(2) CAT reaffirms the absolute nature of the prohibition of torture: ‘No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.’ Article 3 CAT contains an explicit prohibition of refoulement: ‘No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.’ The provisions of the Convention have been interpreted in the practice of the UN Committee against Torture in the State reporting procedure, the inquiry procedure and the individual complaints procedure in accordance with Articles 19, 20 and 22 CAT.54 04.18 In 2002, the Optional Protocol to the UN Convention against Torture (OPCAT) was adopted by the UN General Assembly.55 As the European Convention for the Prevention of Torture, it provides for a system of preventive visits to all places of detention, such as prisons, police lock-ups, military detention facilities, psychiatric hospitals and special detention facilities for minors, irregular migrants, drug-users etc. These visits are carried out by the UN Subcommittee on Prevention and by so-called National Preventive Mechanisms to be established by all states parties.56 Torture and other forms of ill-treatment, including corporal punishment, are also pro04.19 hibited in times of armed conflicts, whether international or non-international. Article 3 common to the four Geneva Conventions of 1949 reads as follows: each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction … To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in

51

See General Comments 7/16 (1982), 9/16 (1982), 20/44 (1992), 21/44 (1992). Cf M Nowak, UN Covenant on Civil and Political Rights—CCPR Commentary, 2nd edn (Kehl, NP Engel Verlag, 2005), 157 et seq, 241 et seq. 53 The Greek Case (n 35). 54 Cf Nowak and McArthur (n 50). 55 As at 7 March 2013, except for Latvia, Lithuania and Slovakia, all EU Member States had signed OPCAT. Apart from Belgium, Finland, Greece, Ireland and Italy, all signatories were parties, either through ratification or accession. 56 Cf Nowak and McArthur (n 50) 879 et seq. 52

72

Manfred Nowak and Anne Charbord

Art 4 – Prohibition of Torture

particular murder of all kinds, mutilation, cruel treatment and torture … (c) outrages upon personal dignity, in particular humiliating and degrading treatment.

Other provisions of international humanitarian law in this respect include Article 75(2) 04.20 of Additional Protocol I to the Geneva Conventions of 1977 relating to the Protection of Victims of International Armed Conflicts which stipulates that ‘murder, torture of all kinds, whether physical or mental; corporal punishment; and mutilation … are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents’.57 Grave breaches of the Geneva Conventions constitute war crimes which are subject to the jurisdiction of the International Criminal Court (ICC) and ad hoc international criminal tribunals. Article 8(2)(a)(ii) of the Rome Statute of the ICC58 mentions ‘torture or inhuman treatment, including biological experiments’ as an example of grave breaches and, consequently, war crimes within the jurisdiction of the ICC. Similarly, acts of ‘committing outrages upon personal dignity, in particular humiliating and degrading treatment’ are cited in Article 8(2)(b)(xxi) as examples of other serious violations of the laws and customs applicable in international armed conflict and, therefore, as war crimes subject to the ICC’s jurisdiction. With respect to non-international armed conflicts, the acts of ‘violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture’, as well as ‘outrages upon personal dignity, in particular humiliating and degrading treatment’, are to be considered as serious violations of common Article 3 of the four Geneva Conventions, thereby equally amounting to war crimes in accordance with Article 8(2) (c)(i) and (ii) of the Rome Statute. In addition to war crimes, the ICC is also competent to hold individual perpetrators 04.21 of crimes against humanity accountable, irrespective of whether these crimes have been committed in times of war or peace. The term ‘crimes against humanity’ is defined in Article 7(1) of the Rome Statute as ‘any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: … (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; … (i) Enforced disappearance of persons … (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health’. The legal definition of torture as a crime against humanity in Article 7(2)(e) of the Rome Statute is similar to the definition in Article 1 CAT.59

57 Cf J Pictet, The Geneva Conventions of 12 August 1949: Commentary, Vol IV, Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva, 1958); W Schabas, ‘The Crime of Torture and the International Criminal Tribunals’ (2006) 55 Case Western Reserve Journal of International Law 349–63; C Droege, ‘“In Truth the Leitmotiv”: The Prohibition of Torture and other Forms of Ill-Treatment in International Humanitarian Law’ (2007) 89 International Review of the Red Cross 515–41; M Nowak and R Janik, ‘Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ in A Clapham, P Gaeta and M Sassoli (eds), The 1949 Geneva Conventions. A Commentary (Oxford, Oxford University Press, forthcoming). 58 As of 7 March 2013, apart from Cyprus, all EU Member States are a party to the Rome Statute of the ICC. 59 See below, section D. On the Rome Statute see W Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford, Oxford University Press, 2010); M Cherif Bassiouni (ed), International Criminal Law: Sources, Subjects, and Contents, 3rd edn (Leiden, Martinus Nijhoff Publishers, 2008); O Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn (Munich/Oxford, CH Beck/Hart, 2008).

Manfred Nowak and Anne Charbord

73

Part I – Commentary on the Articles of the EU Charter

III. Council of Europe Treaties 04.22 In addition to the ECHR, the Council of Europe adopted other treaties related to the prohibition and prevention of torture and other forms of ill-treatment. The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1987) is the first treaty that established a system of preventive visits to places of detention. In accordance with Article 1, the European Committee for the Prevention of Torture (CPT)60 was established in 1989, consisting of a number of experts from all states parties (presently 47) with different professional backgrounds, including lawyers, doctors, psychologists, social workers etc: ‘The Committee shall, by means of visits, examine the treatment of persons deprived of their liberty with a view to strengthening, if necessary, the protection of such persons from torture and from inhuman or degrading treatment or punishment.’ On the basis of hundreds of regular and ad hoc visits to all Member States of the Council of Europe, the CPT has developed minimum standards of detention61 which are also taken into account by the ECtHR when interpreting Article 3 ECHR. 04.23 Other relevant Council of Europe treaties include the Convention on Human Rights and Biomedicine (1997),62 with two Optional Protocols, the Convention on Action against Trafficking in Human Beings (2005),63 the Convention on Preventing and Combatting Violence against Women and Domestic Violence (2011)64 and the Convention on the Protection of Children against Sexual Violence and Sexual Abuse (2007).65

D. Analysis I. General Remarks 04.24 The absolute prohibition of torture and of inhuman or degrading treatment or punishment—or the right to physical and spiritual integrity—enshrines one of the fundamental values of democratic societies.66 As such, it has taken on special status in the

60 All EU Member States are parties to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and to the CPT. 61 Cf MD Evans and R Morgan, Preventing Torture: A Study of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (Oxford, Oxford University Press, 1998); U Kriebaum, Folterprävention in Europa: Die Europäische Konvention zur Verhütung von Folter und un enschlicher oder erniedrigender Behandlung oder Bestrafung (Vienna, Verlag Österreich, 2000); European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), CPT Standards, available at www.cpt.coe.int/en/documents/eng-standards.pdf. 62 As at 7 March 2013, all EU Member States are parties except for Austria, Belgium, Germany, Ireland, Italy, Luxembourg, Malta, the Netherlands, Poland, Sweden and the UK. 63 As at 7 March 2013, all EU Member States are parties except for the Czech Republic, Estonia, Greece and Hungary. 64 This convention has not yet entered into force. 65 As at 7 March 2013, all EU Member States are a party to this convention except for Belgium, Cyprus, the Czech Republic, Estonia, Germany, Hungary, Ireland, Latvia, Lithuania, Poland, Slovakia, Slovenia, Sweden and the UK. 66 Soering v UK (n 42) para 88.

74

Manfred Nowak and Anne Charbord

Art 4 – Prohibition of Torture

protection of human rights under international law:67 it is one of the few absolute and non-derogable human rights, a standing shared only with the prohibition of slavery, slave trade, servitude, and the retroactive application of criminal law.68 It is considered as part of customary international law and ranks as jus cogens under international law, pursuant to article 53 VCLT.69 The particular severity of torture is also reflected in the fact that it is subject to universal criminal jurisdiction under the principle aut dedere aut judicare.70 Because the impact of torture is immensely traumatic on the individual who has suffered 04.25 it and because full restitution to the status before the infliction of severe mental or physical pain is not possible,71 much focus has been placed on prevention. Both at the international and at the European levels, external independent monitoring bodies have been set up to carry out unannounced and regular visits to places of detention.72 This is the most innovative and effective means to prevent torture and to generate timely and adequate responses to allegations of abuse and ill-treatment by law enforcement officials.73 Combating impunity is one of the key challenges of the fight against torture and 04.26 ill-treatment. Under international law, states have an obligation to take positive measures to protect individuals from acts of torture and ill-treatment,74 included those committed by private individuals,75 to investigate allegations76 and to bring suspected perpetrators to justice.77 The ECtHR has also clarified states’ obligations with regard to extraterritorial State action, also in an effort to combat impunity.78 As such, EU states have an obligation not only to respect the absolute prohibition 04.27 of torture, but also to fulfil and protect this right. Yet, despite the legal consecration of

67

M Nowak, CCPR Commentary (n 52) p 157. M Nowak, Special Rapporteur on Torture, UN Doc A/HRC/13/39/Add 5, para 40. 69 M Nowak, CCPR Commentary (n 52) pp 157–58. 70 See Art 5 CAT. 71 M Nowak, Special Rapporteur on Torture, UN Doc A/HRC/13/39/Add 5, para 173. 72 European Committee for the Prevention of Torture (CPT), whose mandate derives from European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 1987/89; the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT), established pursuant to the provisions of Optional Protocol to the Convention against Torture (OPCAT2002/06. See sections C.II and III, above. 73 M Nowak, Special Rapporteur on Torture, A/HRC/13/39/Add 5, para 157. 74 See Art 4 CAT: ‘1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. 2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature’. 75 ECtHR, A v UK (n 37) para 22: ‘The Court considers that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals.’ 76 ECtHR, Assenov and Others v Bulgaria (n 38) para 102 and Labita v Italy (n 38) para 131: ‘where an individual raises an arguable claim that he has been seriously ill-treated by the police or other agents of the state unlawfully and in breach of Article 3, that provision, read in conjunction with the state’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires that there should be an effective official investigation. The investigation should be capable of leading to the identification and punishment of those responsible’. Otherwise, ‘the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity’. 77 Ibid. 78 See section D.II, below, on the scope of application. 68

Manfred Nowak and Anne Charbord

75

Part I – Commentary on the Articles of the EU Charter

the prohibition of torture and ill-treatment and the comprehensive legal framework, in recent years many challenges have been brought to this absolute prohibition. In Europe, as in many parts of the world, these have been in relation to security. Two particular problematic issues can be highlighted in this context. The first is the fight against terrorism, where legal challenges have been brought to the absolute nature of the prohibition of non-refoulement before the ECtHR.79 The second is the issue of asylum, where two of the few and possibly most important cases that have been decided by the CJEU vis-à-vis Article 4 have dealt with the application of the EU’s asylum policy.80

II. Scope of Application 04.28 Regarding the material scope of application of Article 4 EUCR, the ECtHR has expressed clearly that ill-treatment must attain a minimum level of severity to fall within the scope of Article 3 ECHR. The threshold is relative, depending on the circumstances of the case,81 and the Court has clarified that certain acts which are currently falling outside the scope of Article 3 might in the future meet the required level of severity.82 All forms of physical and mental ill-treatment which fall within the scope of Article 3 are prohibited with equal force.83 The EUCR does not address the issue of its application ratione loci. It is nonetheless 04.29 a key question in the context of the EU’s overseas action, in particular where the EU contributes to multinational operations84 or has stand-alone missions, and EU delegations. International human rights bodies have held that human rights obligations apply not only to the territory of a country, but also abroad,85 when state authorities have the overall control over a territory86 or over an individual.87 This so-called ‘state agent authority and control’ model has also been the one largely adopted by the ECtHR.88

79

See section D.IV on limitations, below. NS and ME [No 2] and Case C-465/07 Elgafaji v Staatssecretaris van Justitie [2009] ECR I-921. 81 See eg Ireland v UK (n 35) para 162 and Soering v UK (n 42) para 100. 82 See Selmouni v France (n 35) para 101. 83 The material scope of application of Art 4 EUCR is largely dealt with in section D.III, below. One specific issue not dealt with in this chapter is that of the scope of application of non-refoulement as protected by Art 3 ECHR versus the principle of subsidiary protection under the EU’s Qualifying Directive. See Art 19 EUCR, below, and the CJEU case of Elgafaji v Staatssecretaris (n 80). 84 See C Droege, ‘Transfers of detainees: legal framework, non-refoulement and contemporary challenges’ (2008) 90 (871) International Review of the Red Cross, 669–701. 85 ICJ, Nuclear Weapons case, Advisory Opinion 8 July 1996, para 25; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion 9 July 2004, paras 106–11. 86 See Human Rights Committee, General Comment No 31, para 10. 87 Human Rights Committee, Lopez Burgos v Uruguay, 29 July 1981 UN Doc. CCPR/C/13/D/52/1979 and CAT Committee, Conclusions and Recommendations, United Kingdom, CAT/C/CR/33/3, para 4(b). 88 Overall control over a territory: see, eg: Loizidou v Turkey App no 15318/89 (ECtHR, 28 November 1996), in which the Court held that the responsibility of a contracting party could also arise when as a consequence of military action—whether lawful or unlawful—it exercises effective control of an area outside its national territory, para 52. Control over an individual: eg Issa v Turkey App no 31821/96 (ECtHR, 16 November 2004): ‘a State may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former State’s authority and control through its agents operating—whether lawfully or unlawfully—in the latter State’, para 71. 80

76

Manfred Nowak and Anne Charbord

Art 4 – Prohibition of Torture

In the 2001 Bankovic case,89 however, on the alleged violation of the right to life by NATO’s 1999 aerial bombardments in Serbia, the Court excluded the extraterritorial application of the ECHR by applying the limiting ‘spatial’ model of jurisdiction.90 In the recent case of Al-Skeini,91 which dealt with the killing of civilians by British troops during the British occupation of South East Iraq, the Grand Chamber tried to reconcile the two models. The Court stated that the deaths fell within state jurisdiction because the British troops were exercising authority and control as well as—in the specific and exceptional circumstances of the case—public powers in the Basra region.92 Thus, the Court largely followed the state agent authority and control model, while using the spatial model to mitigate and limit its impact.93 In the recent Grand Chamber case of Hirsi Jamaa,94 which dealt with a so-called ‘push back operation on the high sea’, Italian coast guards intercepted the boats of Somali and Eritrean nationals who tried to reach the coast of Italy from Libya, and returned them to Libyan authorities. The Court unanimously ruled that Italy had effective control and authority over the applicants on board its ship, and therefore Article 3 of the ECHR, and the principle of non-refoulement attached to it, applied. This case provides key guidance for the responsibility of the EU should individuals take refuge in EU delegations.95 Inapplication of Article 52(3) EUCR,96 the CJEU should adopt the same approach as 04.30 the ECtHR to allow a broad extraterritorial application of the Charter, within the scope of application of the EUCR, which in accordance to Article 51 EUCR is limited to EU law. In each case, the CJEU will therefore need to carefully examine whether the EU institutions, bodies or agencies operating abroad are implementing EU Law. In this context, the Charter would likely apply to EU delegations and missions. Regarding its application to Frontex or member States’ operations on the high seas, the CJEU would need to consider whether these specific actions are carried out in the pursuance of EU law, such

89 Bankovic and Others v Belgium and 16 Other Contracting States App no 52207/99 (ECtHR, Grand Chamber, 12 December 2001). 90 Ibid, para 80: ‘the Convention is a multi-lateral treaty operating ... in an essentially regional context and notably in the legal space … of the Contracting States. The [Federal Republic of Yugoslavia] clearly does not fall within this legal space. The Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States.’ 91 Al-Skeini and others v UK (n 47). 92 Ibid, paras 136–50. 93 For a discussion on this case, see C Ryngaert, ‘Clarifying the Extraterritorial Application of the European Convention on Human Rights’ (2012) 28 (74) Merkourios Case Note, 57–60 and P Ronchi, ‘The Borders of Human Rights’ (2012) 128 Law Quarterly Review 20, 23. See also critically M Milanovic, Extraterritorial Application of Human Rights Treaties (Oxford and New York, Oxford University Press, 2011); M Gibney and S Skogly (eds), Universal Human Rights and Extraterritorial Obligations (Philadelphia, University of Pennsylvania Press, 2010). 94 Hirsi Jamaa et al v Italy (n 23). See also the comment by JA Hessbruegge, ‘European Court of Human Rights Protects Migrants Against “Push Back” Operations on the High Seas’ (2012) 16 (14) ASIL Insights. 95 Embassy grounds may be compared to a ship on the high seas, as they constitute an area of almost exclusive jurisdiction outside the territory of the state to which the embassy belongs. See JA Hessbruegge (n 94). 96 ‘Insofar as the Charter contains rights which correspond to rights guaranteed by the [ECHR], the meaning and scope of those rights shall be the same as those laid down by the said Convention.’

Manfred Nowak and Anne Charbord

77

Part I – Commentary on the Articles of the EU Charter

as in the implementation of the EU’s border code,97 or the EU’s qualification directive, which does not have a territorial limitation.98 04.31 A broad approach to the extraterritorial application of the EUCR, similar to that of the ECtHR, would ensure that Article 53 EUCR99 is fully respected, and would avoid any divergence of application between the ECHR and the Charter regarding the application ratione loci of rights in Europe, as well as protection gaps for individuals. This would also ensure that the ECtHR continues to apply its Bosphorus doctrine.100 The CJEU may however wish to go even further and adopt a strict ‘State agent authority and control’ model, thereby closing the door to cases in which a state party can perpetrate human rights violations on the territory of another state which it could not perpetrate on its own territory. 04.32 Regarding the personal scope of application,101 in the context of the EU’s CFSP— either standalone EU missions or in the context of EU participation to broader NATOor UN- umbrella missions—a key question is that of attribution of responsibility. Should a violation of the absolute prohibition of torture and ill-treatment or a violation of the principle of non-refoulement take place in this context, is the troop- or policecontributing country responsible for the violation, the EU, the UN or a combination thereof?102 It should be noted at the outset that the principle of responsibility of international organisations for human rights violations is established under international law103 and that because of its nature in international law, the norm contained in Article 4 EUCR applies as much to Member States as to the EU and other organisations involved in multinational operations.104

97 See Regulation (EC) 562/2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) [2006] OJ L105/0001–32, which states in Art 3 that it shall apply to any person crossing the internal or external borders of Member States, without prejudice to the rights of refugees and persons requesting international protection, in particular as regards non-refoulement. 98 The Directive on Asylum procedure would likely not be the basis in EU law for such operations, as it states that it applies to all asylum applications made in the territory including at the border or in the transit zones of the Member States, and to the withdrawal of refugee status, and not in cases of requests for diplomatic or territorial asylum submitted to representations of Member States. See EU Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status, Art 3. 99 ‘Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognized, in their respective fields of Application, by Union law and international law and by international agreements to which the Union, the Community or all the Member States are party, including the [ECHR], and by Member States’ constitutions’. 100 According to this case law, the ECtHR does not review EU legislation based on a presumption of equivalent protection of human rights. See Bosphorus Hava Yollari Turizm ve Ticaret AS v Ireland App no 45036/98 (ECtHR, 30 June 2005). 101 For the horizontal effect of the prohibition, see section D.III(h), below.. 102 For a discussion on the issue of attribution, see C Droege, ‘Transfers of detainees: legal framework, nonrefoulement and contemporary challenges’ (n 84). 103 See Draft Articles on the Responsibility of International Organizations (DARIO), in Report of the International Law Commission on the Work of its Sixty-Third Session, UN Doc A/CN.4/L.778 (DARIO). 104 See ICJ, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion of 20 December 1980, para 37.

78

Manfred Nowak and Anne Charbord

Art 4 – Prohibition of Torture

International human rights bodies105 and international doctrine106 provide some 04.33 guidance. The ECtHR has also examined this question. In the Bosphorus case, it held, inter alia, that while a state was not prohibited by the Convention from transferring sovereign power to an international organisation in order to pursue cooperation in certain fields of activity, the state remained responsible for all acts and omissions of its organs, regardless of whether they were a consequence of the necessity to comply with international legal obligations.107 In the Grand Chamber case of Behrami and Saramati,108 the ECtHR found that the detention of individuals by national contingents, within KFOR mandate, could be attributed to the UN because ‘the UNSC retained ultimate authority and control and that effective command of the relevant operational matters was retained by NATO’. In the case of Al Jedda,109 which dealt with detention in Iraq by British forces, the Court came to a very different conclusion. It applied the test of ‘effective control’ contained in the ILC’s DARIO, and concluded that the applicant was within the authority and control of the United Kingdom throughout.110 In this case, the Court used the criteria developed in Behrami and Saramati (‘ultimate authority and control’) and the one developed by the ILC (‘effective control’). What is clear from these two cases is that the authorisation of the UN Security Council to carry out an operation will not be sufficient to attribute responsibility to the UN for acts carried out by other organisations or troop contributing countries. In light of the multitude of actors on the ground, and the complication due to the fact that they can have two competing chains of command, final attribution of responsibility will depend on a sober analysis of the mandate for the operation as well as facts on the ground, which will gravitate around the question of ‘effective control’. It cannot be excluded that the CJEU would recognise that responsibility be shared between two or more actors, even though the ECtHR has never addressed this question.111

105 The Human Rights Committee has stated that ‘a State party must respect the rights laid down in the Covenant to … those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peacekeeping or peace enforcement operation’, Human Rights Committee, General Comment No 31, CCPR/C/21/Rev 1/Add 13, para 10. 106 Art 7 (former Art 5) of the ILC DARIO states that ‘the conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct’. Art 8 may also be relevant: ‘The conduct of an organ or agent of an international organization shall be considered an act of that organization under international law if the organ or agent acts in an official capacity and within the overall functions of that organization, even if the conduct exceeds the authority of that organ or agent or contravenes instructions’ (n 103). 107 Bosphorus (n 100) para 152. For CJEU case law on this issue, see Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2008] ECR I-6351, paras 283–85. 108 Behrami v France App no 71412/01 and Saramati v France, Germany and Norway App no 78166/01 (ECtHR, Grand Chamber, 2 May 2007). 109 Al-Jedda v UK App no 27021/08 (ECtHR, 7 July 2011). 110 The UN Security Council had neither effective control nor ultimate authority and control over the acts and omissions of troops within the Multi-National Force and that the applicant’s detention was not, therefore, attributable to the UN. The internment took place within a detention facility controlled exclusively by British forces, and is therefore attributable to UK forces. Ibid, paras 84–85. 111 On all these issues, see C Droege, ‘Transfers of detainees: legal framework, non-refoulement and contemporary challenges’ (n 84).

Manfred Nowak and Anne Charbord

79

Part I – Commentary on the Articles of the EU Charter

III. Specific Provisions (a) Definition of Torture and other Forms of Ill-Treatment 04.34 Article 4 EUCR prohibits different forms of ill-treatment without defining them: torture as the most severe form of ill-treatment carrying a special stigma, followed by inhuman treatment and punishment, as well as degrading treatment and punishment as the least severe form. These notions can also be found with identical wording in Article 3 ECHR on which, according to the Explanations, Article 4 EUCR was modelled. Since both provisions are identical, Article 52(3) EUCR is applicable which stipulates that the meaning and scope of Article 4 shall be the same as in Article 3 ECHR. However, this provision ‘shall not prevent Union law providing more extensive protection’. Article 3 ECHR on its part is based on Article 5 UDHR which also includes the prohibition of cruel treatment and punishment and which formed the basis for Article 7 CCPR and similar provisions in other universal and regional human rights treaties. Article 1 CAT is the only provision in a human rights treaty containing a legal definition of the term ‘torture’. In Article 7(2)(e) ICC Statute we find a similar, but not identical definition of ‘torture’ as a crime against humanity. The other types of ill-treatment, ie cruel, inhuman and degrading treatment and punishment are, however, neither defined in Article 16 CAT nor in the Rome Statute. Since all these terms are based on Article 5 UDHR, since the UN definition in Article 1 CAT was based on the case law of the former European Commission of Human Rights in the Greek Case, and since the ECtHR in its recent jurisprudence increasingly refers to the definition in Article 1 CAT, relevant UN treaties will also be taken into account for the interpretation of these terms in Article 4 EUCR.112 04.35 In principle, we find in the literature and jurisprudence two different approaches of attempting to distinguish torture from other forms of ill-treatment: one was introduced by the former European Commission of Human Rights in the Greek Case113 and focuses on the purpose as the most important distinguishing element; the other one was introduced by the European Court of Human Rights in the Northern Ireland Case114 and considers the intensity of pain and suffering as the decisive criterion by introducing a kind of sliding scale of suffering, starting from degrading and humiliating treatment, via cruel and inhuman treatment, up to torture requiring very serious and cruel suffering of the victim. For various reasons, the approach of the European Commission, which was

112 It should be noted that para 8 of Council Regulation 1236/2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment, states: ‘it is considered appropriate to apply the definitions of torture and other cruel, inhuman or degrading treatment or punishment laid down in the 1984 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and in Resolution 3452 (XXX) of the General Assembly of the United Nations. These definitions should be interpreted taking into account the case law on the interpretation of the corresponding terms in the European Convention on Human Rights and in relevant texts adopted by the EU or its Member States.’ 113 The Greek Case, Commission (n 35) 186: ‘all torture must be inhuman and degrading treatment, and inhuman treatment also degrading. The notion of inhuman treatment covers at least such treatment as deliberately causes severe suffering, mental or physical, which, in the particular situation, is unjustifiable … Torture … has a purpose, such as the obtaining of information or confessions, or the infliction of punishment, and it is generally an aggravated form of inhuman treatment. Treatment or punishment of an individual may be said to be degrading if it grossly humiliates him before others or drives him to act against his will or conscience.’ 114 Ireland v United Kingdom App no 5310/71 (18 January 1978).

80

Manfred Nowak and Anne Charbord

Art 4 – Prohibition of Torture

used and further developed by the United Nations when defining torture in Article 1 CAT and which was further refined by the UN Committee against Torture and different UN Special Rapporteurs on Torture, seems to us the more convincing approach aimed at defining the different forms of ill-treatment.115 According to Article 1 CAT, the term ‘torture’ means 04.36 any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

For the purpose of crimes against humanity, as stipulated in Article 7(2)(e) of the Rome 04.37 Statute, ‘torture’ means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.

Comparing both UN definitions, the ICC definition lacks the elements of the purpose116 04.38 and of the involvement of a public official, but adds the element of the custody or direct control of the perpetrator over the victim. Using both definitions in light of the ordinary meaning of these terms, the following definitions of the different forms of illtreatment emerge: — Torture is the deliberate infliction of severe pain or suffering on a powerless person for a specific purpose. — Inhuman treatment or punishment is the infliction of severe pain or suffering when at least one of the qualifying criteria of torture (intention, purpose or powerlessness of the victim) is missing. — Degrading treatment or punishment is the infliction of pain or suffering in a particularly humiliating manner. The threshold of severe pain or suffering, whether physical or mental, applies to both 04.39 torture and inhuman treatment or punishment, whereas degrading treatment can be inflicted with a lower threshold of pain or suffering. Whether the threshold of pain or suffering required for degrading treatment/punishment or of severe pain or suffering

115 For the legal reasoning see NS Rodley, ‘The Definition(s) of Torture in International Law’ (2002) 55 Current Legal Problems 467–93; MD Evans, ‘Getting to Grips with Torture’ (2002) 51 International and Comparative Law Quarterly 365–83; N Rodley and M Pollard, The Treatment of Prisoners under International Law, 3rd edn (Oxford, Oxford University Press, 2011); M Nowak, ‘Challenges to the Absolute Nature of the Prohibition of Torture and Ill-Treatment’ (2005) 23 Netherlands Quarterly of Human Rights 674–88; Report of the Special Rapporteur on Torture of 23 December 2005, UN Doc E/CN.4/2006/6, para 39; Nowak and McArthur, CAT Commentary (n 50); M Nowak, ‘What Practices Constitute Torture?: US and UN Standards’ (2006) 28 Human Rights Quarterly 809–41. 116 In relation to torture as a war crime in Art 8 ICC Statute, the Elements of Crime has introduced the purpose element again. See International Criminal Court, Elements of Crimes, ICC-ASP/1/3(part II-B), adopted on 9 September 2002, available at www.icc-cpi.int/en_menus/icc/legal%20texts%20and%20tools/ Pages/legal%20tools.aspx.

Manfred Nowak and Anne Charbord

81

Part I – Commentary on the Articles of the EU Charter

04.40

04.41

04.42

04.43

required for inhuman treatment/suffering or torture is reached can only be assessed on a case by case basis taking into account both objective and subjective criteria, including the age, gender, religion and vulnerability of the victim. The requirement of intention means that torture can never be inflicted by negligence, gross negligence or recklessness. If a detainee is forgotten in a cell and slowly starves to death, the mental and physical suffering is extremely severe, but such treatment can never qualify as torture, because the elements of intention and purpose are missing. The classical and still most widely used purpose of torture is the extraction of a confession, which is later to be used as evidence in criminal or other proceedings. Intelligence agencies usually do not extract a confession, but use torture to extract relevant information on terrorist networks, future attacks or similar issues of their concern. Other purposes of torture mentioned in Article 1 CAT include intimidation, discrimination and punishment of the victim. The requirement of powerlessness means that the victim must be under the custody or other forms of direct control of the perpetrator, as required by Article 7(2)(e) ICC Statute. If the police inflict severe pain on a person by means of batons, tear gas or similar weapons for the purpose of self-defence, or of effecting the lawful arrest of a person, dispersing a violent demonstration or quelling a riot of persons who resist such measures by using violence themselves, such action can never be qualified as torture because the persons concerned are not (yet) under the custody or direct control of the police, ie they are not powerless. If the police conduct such law enforcement measures in a proportional manner, they do not even amount to any violation of the right to personal integrity or dignity even though extremely severe pain or suffering might have been inflicted. If the facts reveal excessive (non-proportional) use of force, these measures amount to inhuman treatment provided that the threshold of severe pain or suffering was reached, or to degrading treatment if pain or suffering was inflicted in a particularly humiliating manner. Once the person has been arrested, handcuffed and is lying on the street and, therefore, is under the control of the police and powerless, any further beatings and violence against him or her may amount to torture, provided that they reach the threshold of severe pain or suffering and are inflicted for a certain purpose, such as intimidation or punishment. The typical situation of torture occurs in an interrogation room, where the police clearly send the message to the victim that he or she is powerless and, therefore, should ‘cooperate’, ie tell them what they want to hear. The feeling of powerlessness is often underlined by specific measures, such as forced nudity, hooding, handcuffs and shackles, suspension in a painful and humiliating position, incommunicado detention etc. It is the deliberate infliction of severe pain or suffering on a person in such a vulnerable and powerless situation and the aim of breaking the will of the victim that lead us to use the word ‘torture’, with the special stigma attached to this particularly horrendous form of ill-treatment. Although Article 1 CAT requires the involvement of a public official, this element of the definition has lost much of its importance and was finally deleted in Article 7(2)(e) of the ICC Statute. Even in Article 1 CAT, mere consent or acquiescence by a public official or ‘other person acting in an official capacity’ is sufficient to satisfy the involvement of the State. If the police or prison guards force a detainee to torture another detainee, this would be a clear case of torture at the instigation of public officials. If private individuals, criminal gangs, rebels or terrorist organisations torture another individual, and the police watch them without intervening, this would be a typical case of torture by 82

Manfred Nowak and Anne Charbord

Art 4 – Prohibition of Torture

consent. But acquiescence can be interpreted in a fairly broad manner. If female genital mutilation (FGM) conducted by private individuals constitutes a routine traditional practice in a particular society, and the respective government takes no meaningful action to stop such practice, this can be interpreted as torture by acquiescence of public officials.117 This interpretation corresponds to the general requirement of the state obligation to protect human beings against torture, as required by the UN Human Rights Committee118 or in the jurisprudence of the ECtHR.119 Finally, the question arises as to what significance the ‘lawful sanctions clause’, con- 04.44 tained in both Article 1 CAT and Article 7(2)(e) ICC Statute, might still have today? A thorough analysis of this provision in light of its wording, its context, object and purpose as well as the travaux préparatoires reveal that it cannot be interpreted in any meaningful manner and must, therefore, be considered as obsolete.120 (b) Interrogation Techniques Amounting to Torture Torture is usually applied behind closed doors. Apart from certain practices, where tor- 04.45 ture is used for the purpose of intimidating, discriminating or punishing the victims, torture is applied as a method of ‘softening up’ detainees for the purpose of interrogating them. The vast majority of torture cases around the world occur in the context of criminal investigations. Persons suspected of having committed a crime are arrested by law enforcement bodies and brought to a police station for a first interrogation. If a suspect remains silent, or refuses to admit the crime they are suspected of, interrogators may resort to torture as a method of extracting a confession. As soon as the suspect signs a confession, torture usually stops and they are transferred from police custody to a pre-trial detention facility. Military or intelligence officers or special police forces investigating organised crime, corruption or terrorism are usually less interested in a confession than in extracting from detainees information relevant to their own work. Torture methods range from simple beatings with fists and batons, to the most 04.46 cruel forms of physical torture, such as electric shocks, burnings, suspension in painful positions, rape and other forms of sexual torture, waterboarding or mutilation, and to highly sophisticated methods of psychological torture, including sensory deprivation, forced nudity, prolonged solitary confinement, disorientation, sleep deprivation, threats and mock executions, exploitation of individual phobia, and exposure to constant noise or extreme temperatures.121

117 See, eg, the Report of the UN Special Rapporteur on Torture concerning women and torture, UN Doc A/HRC/13/39 (2010). 118 Human Rights Committee, General Comment 20, Art 7 (Forty-fourth session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/ GEN/1/Rev 1 (1994) 30. 119 A v UK (n 37); Osman v UK (n 37). 120 Cf Nowak and McArthur, CAT Commentary (n 50) 79 ff. 121 See UN Special Rapporteur on Torture, Global study of 5 February 2010, UN Doc A/HRC/13/39/Add.5, paras 50–57; Aksoy v Turkey (n 35); Aydin v Turkey (n 35); Selmouni v France (n 35); Cakici v Turkey App no 23657/94 (ECtHR, 8 July 1998); Dikme v Turkey App no 20869/92 (ECtHR, 11 July 2000); Ilascu v Moldavia and Russia App no 48787/99 (ECtHR, 8 July 2004); Corsacov v Moldavia App no 18944/02 (ECtHR, 4 April 2006); Mikheyev v Russia App no 77617/01 (ECtHR, 26 January 2006); Menesheva v Russia App no 59261/00 (ECtHR, 9 March 2006); Diri v Turkey App no 68351/01 (ECtHR, 31 July 2007); Maslova and Nalbandov v Russia App no 839/02 (ECtHR, 24 January 2008); Akulinin and Babich v Russia App no 5742/02 (ECtHR,

Manfred Nowak and Anne Charbord

83

Part I – Commentary on the Articles of the EU Charter

(c) Conditions of Detention Amounting to Inhuman or Degrading Treatment 04.47 Article 5 ECHR permits in certain cases (punishment by a court, pre-trial detention of criminal suspects, detention of aliens pending deportation etc) and under specific conditions deprivation of personal liberty. But detention does not imply that detainees lose other human rights and freedoms. In principle, detainees should be able to enjoy all other human rights and freedoms (eg the rights to life, education, health care, vote, privacy, freedom of expression and religion) in the same way as other human beings unless certain restrictions necessarily follow from the fact of being deprived of the right to personal liberty (eg restrictions of freedom of assembly). This ‘principle of normalisation’, as practised eg in the Danish prison system,122 derives from the general rule that limitations of human rights shall be applied restrictively, as underlined in Article 52(1) EUCR,123 from Article 10 CCPR, which stresses the reformation and social rehabilitation of prisoners as the essential aim of the penitentiary system, from rule 5 of the revised European Prison Rules and similar standards developed by the CPT124 and the UN Commission on Crime Prevention and Criminal Justice.125 04.48 Unfortunately, the reality in most countries, including in Europe, looks totally different. The UN Special Rapporteur on Torture has identified a global prison crisis.126 The CPT has published hundreds of reports in relation to Council of Europe Member States pointing out serious shortcomings in the respective prisons, pre-trial detention centres, police lock-ups, psychiatric hospitals, migration detention centres and other facilities where human beings are being detained. Often, detainees are deprived of effective access to food and medical care, the facilities are constantly overcrowded, in a deplorable physical state without adequate space, bedding, light, air, heating, sanitary facilities etc. At a certain point, these cumulative conditions of detention and violations of human rights reach a level of suffering that infringes upon the right to human dignity. In many cases, the UN Human Rights Committee has found a violation of the right of detainees under Article 10 CCPR to be treated with humanity and with respect for the inherent dignity of the human person.127

2 October 2008); Khadisov and Tsechoyev v Russia App no 21519/02 (ECtHR, 5 February 2009); Kopylov v Russia App no 3933/04 (ECtHR, 29 July 2010); Carabulea v Romania App no 45661/99 (ECtHR, 13 July 2010); Bekirski v Bulgaria App no 71420/01 (ECtHR, 2 September 2010); Gelayevy v Russia App no 20216/07 (ECtHR, 15 July 2010); Nechiporuk and Yonkalo v Ukraine App no 42310/04 (ECtHR, 21 April 2011). Cf eg Tretter (n 34) 109 ff; for the UN HRC cf several decisions against Uruguay, Bolivia, Colombia, Zaire, Equatorial Guinea, Libya and Georgia, in Nowak, CCPR Commentary (n 52) 161 ff. 122 Cf the report of the UN Special Rapporteur on Torture on his mission to Denmark of 18 February 2009, UN Doc A/HRC/10/44/Add.2. 123 See section D.IV, below. 124 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), CPT Standards, CPT/Inf/E (2002) 1 - Rev 2011, Section II—Prisons. 125 Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its Resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, UN Doc A/RES/43/173 (1988). 126 See Reports of the UN Special Rapporteur on Torture in UN Doc A/64/215 (3 August 2009), paras 38–60, A/HRC/13/39/Add.5 (5 February 2010), paras 229–37. 127 See Nowak, CCPR Commentary (n 52) 244 ff.

84

Manfred Nowak and Anne Charbord

Art 4 – Prohibition of Torture

Since the ECHR does not contain a similar human right of persons deprived of their 04.49 liberty or a general right to human dignity comparable to Article 1 EUCR, the ECtHR developed its jurisprudence in respect to the rights of detainees on the basis of Article 3 ECHR. In Kudla v Poland, the Court stated that the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance.128

In Kalashnikov v Russia and many subsequent judgments relating to a variety of 04.50 European States the Court used similar language.129 In an increasing number of judgments on conditions of detention, the ECtHR has 04.51 relied on reports of the CPT.130 In its case law, the Court attaches particular importance to the lack of medical treatment131 and to the vulnerability of certain groups, including persons with disabilities.132 The practice of weekly strip-searches in a Dutch highsecurity prison was considered as diminishing human dignity and constituting degrading treatment.133 The use of prolonged periods of solitary confinement may constitute inhuman treatment, although the ECtHR seems to be fairly reluctant to find respective violations of Article 3 ECHR.134 Prolonged periods of incommunicado detention and the enforced disappearance of persons amounts, however, to inhuman treatment or even torture.135

128

Kudla v Poland (n 42), para 94. Kalashnikov v Russia App no 47095/99 (ECtHR, 15 September 2002); Poltoratskij v Ukraine App no 38812/97 (ECtHR, 29 April 2003); Yankov v Bulgaria App no 1509/05 (ECtHR, 22 April 2003); Iorgov v Bulgaria App no 40653/98 (ECtHR, 11 March 2004); Alver v Estonia App no 64812/01 (ECtHR, 8 November 2005); Nevmerzhitsky v Ukraine App no 54825/00 (ECtHR, 5 April 2005); McGlinchey and Others v UK App no 50390/99 (ECtHR, 29 April 2003); Kadikis v Latvia App no 62393/00 (ECtHR, 4 May 2006); MSS v Belgium and Greece (n 2). 130 Aerts v Belgium App no 25357/94 (ECtHR, 30 July 1998); Dougoz v Greece App no 40907/98 (ECtHR, 6 March 2001); Tekin Yildiz v Turkey App no 22913 (ECtHR, 10 November 2005); Alver v Estonia (n 129); MSS v Belgium and Greece (n 2). 131 Ilhan v Turkey (n 35); Papon v France App no 54210/00 (ECtHR, 25 July 2002); Keenan v UK App no 27229/95 (ECtHR, 3 April 2001); Mouisel v France App no 67263/01 (ECtHR, 14 November 2002); McGlinchey and Others v UK (n 128); Hüseyin Yildirim v Turkey App no 2778/02 (ECtHR, 3 May 2007); Kucheruk v Ukraine App no 2570/04 (ECtHR, 6 September 2007); Paladi v Moldova App no 39806/05 (ECtHR, 10 March 2009); Denis Vasilyev v Russia App no 32704/04 (ECtHR, 17 December 2009); Rokosz v Poland App no 15952/09 (ECtHR, 27 July 2010); Logvinenko v Ukraine App no 13448/07 (ECtHR, 14 October 2010). 132 Herczegfalvy v Austria App no 10553/83 (ECtHR, 24 September 1992); Price v UK App no 33394/96 (ECtHR, 10 July 2001); Matencio v France App no 58749/00 (ECtHR, 15 January 2004). 133 Van der Ven v the Netherlands (n 42). 134 Cf Öcalan v Turkey (2005), Reps 2005-IV; Ramirez Sanchez v France (n 43); Rohde v Denmark App no 69332/01 (ECtHR, 21 July 2005); Messina v Italy App no 13803/88 (ECtHR, 26 February 1993); Erdem v Germany App no 38321/97 (ECtHR, 5 July 1999); Ilascu v Moldova and Russia (n 121). 135 Aksoy v Turkey (n 35); Kurt v Turkey (n 44); Lyanova and Aliyeva v Russia Apps nos 12713/02, 28440/03 (ECtHR, 2 October 2008). Whereas the ECtHR, however, only considers the relatives of disappeared persons as victims of a violation of Art 3 ECHR (see critically Tretter (n 34) 105 ff), UN treaty bodies also regard the disappeared persons themselves as victims: cf Nowak, CCPR Commentary (n 52) 175 ff; El-Megreisi v Libyan Arab Jamahiriya, UN Doc CCPR/C/50/D/440/1990 (1994); El Hassy v Libyan Arab Jamahiriya, UN Doc CCPR/C/91/D/1422/2005 (2007); Dev Bahadur Maharjan v Nepal, UN Doc CCPR/C/105/D/1863/2009 (2012). 129

Manfred Nowak and Anne Charbord

85

Part I – Commentary on the Articles of the EU Charter

(d) Excessive Use of Police Force Amounting to Inhuman or Degrading Treatment 04.52 While torture presupposes a situation where the victim is under the total control (usually custody) of the perpetrator, inhuman or degrading treatment can also occur outside detention if the security forces use excessive force when arresting a person, dissolving a public gathering, quelling a riot, acting in self-defence or in the defence of others against violent attacks. While most of the violations of Article 3 ECHR established by the ECtHR relate to detainees, the Court found inhuman and degrading treatment outside detention only in relatively few cases of excessive force during arrests136 or public gatherings.137 The Austrian Constitutional Court, on the other hand, has developed a rich jurisprudence under Article 3 ECHR in relation to excessive use of police force outside detention.138 (e) Inhuman or Degrading Punishment 04.53 The most obvious example of inhuman and degrading punishment is corporal punishment in all its forms, including as a judicial sentence or as disciplinary punishment in prisons, the military or schools. Already in 1978, the ECtHR had decided by means of a dynamic interpretation of Article 3 ECHR that birching of a juvenile as a traditional judicial punishment on the Isle of Man was no longer compatible with a modern understanding of human rights in Europe: in Tyrer v UK, the Court held that the ‘very nature of judicial corporal punishment is that it involves one human being inflicting physical violence on another human being. Furthermore it is institutionalized violence’, and ‘constituted an assault on precisely that which it is one of the main purposes of Article 3 to protect, namely a person’s dignity and physical integrity’.139 In 1982, the UN Human Rights Committee noted in a General Comment that the prohibitions of Article 7 CCPR ‘must extend to corporal punishment, including excessive chastisement as an educational or disciplinary measure’.140 In 2000, the Committee strongly confirmed this legal opinion unanimously in the landmark decision of Osbourne v Jamaica:141 ‘Irrespective of the nature of the crime that is to be punished, however brutal it may be, it is the firm opinion of the Committee that corporal punishment constitutes cruel, inhuman and degrading treatment or punishment contrary to Article 7 of the Covenant.’ This jurisprudence was later confirmed by the Inter-American Court of Human Rights,142 the UN Committee against Torture (despite the ‘lawful sanctions clause’ in

136 Denizci et al v Cyprus Apps nos 25316/94, 25317/94, 25318/94, 25319/94, 25320/94, 25321/94, 27207/95 (ECtHR, 23 May 2001); Berlinski v Poland Apps nos 27715/95, 30209/96 (ECtHR, 20 June 2002); Ahmet Özkan et al v Turkey App no 21689/93 (ECtHR, 6 April 2004). 137 Günaydin v Turkey App no 27526/95 (ECtHR, 13 October 2005); Iribarren Pinillos v Spain App no 36777/03 (ECtHR, 8 January 2009). 138 Cf Tretter (n 34) 79 ff; Krammer (n 34)143 ff. 139 Tyrer v UK (n 36), para 33. 140 HRC, General Comment 7/16, para 2. 141 HRC, Osbourne v Jamaica, No 759/1997, para 3.3. 142 Decision of 11 March 2005 in Winston Caesar v Trinidad and Tobago, Series C No 123.

86

Manfred Nowak and Anne Charbord

Art 4 – Prohibition of Torture

Article 1 CAT),143 various reports of UN Special Rapporteurs on Torture,144 and by the European Committee of Social Rights even in relation to corporal punishment of children within the home.145 Despite the fact that the ECtHR never arrived at the legal opinion that the death pen- 04.54 alty as such constitutes inhuman and degrading punishment,146 there can be no doubt that both the Council of Europe and the European Union consider capital punishment in all its forms as a violation of the right to human dignity.147 This trend towards abolition of the death penalty in Europe (with the exception of Belarus) is underlined by the sixth and 13th AP to the ECHR, adopted in 1983 and 2002 respectively, and by the absolute prohibition of the death penalty in Article 2(2) EUCR. These provisions have clearly superseded the provision of Article 2(1) ECHR, which had originally considered the death penalty as an exception to the protection of the right to life. Even if the ECtHR would still consider the death penalty as compatible with the ECHR, Article 52(3) EUCR would apply according to which this provision shall not prevent Union law providing more extensive protection. Life imprisonment without possibility of early release has been found by the ECtHR 04.55 in principle as a violation of Article 3 ECHR.148 In relation to children, this rule has been explicitly laid down in Article 37(a) CRC. Since Article 10(3) CCPR stipulates that the reformation and social rehabilitation of prisoners constitutes the essential aim of the penitentiary system, life imprisonment without the possibility of early release seems also to be in contravention of this provision. Imprisonment for a period which is out of proportion to the seriousness of the crime committed may, in exceptional cases, also constitute inhuman or degrading punishment.149 Depending on the circumstances, certain punishments of hard labour, internal exile, solitary confinement, ‘chain gangs’ and other forms of restraint may also be considered as inhuman or degrading punishment.150 (f) Obligations of the EU and its Member States to Respect the Prohibition of Torture and Ill-Treatment At first glance, the negative formulation of Article 4 EUCR151 underlines the negative 04.56 obligation to respect, ie not to interfere with this right. According to Article 51 EUCR

143

Cf Nowak and McArthur, CAT Commentary (n 50) 561 ff. Cf UN Doc E/CN.4/1993/26, para 593; E/CN.4/1997/7, para 8; A/60/316, para 28; A/HRC/13/39/Add.5, paras 209–228. 145 Cf eg the collective complaints of OMCT v Greece, Belgium and Ireland (Nos 17, 18 and 21/2003) finding violations of Art 17 of the European Social Charter. 146 Cf the case law of the ECtHR relating to the death penalty in Tretter (n 34) 156 et seq. But see, on the contrary eg the landmark 1995 judgment of the South African Constitutional Court in State v Makwanyane and Mchunu, Case No CCT/3/94. 147 On the universal trend towards abolition of capital punishment see, eg Nowak and McArthur, CAT Commentary (n 50) 564 ff; W Schabas, The Abolition of the Death Penalty in International Law, 3rd edn (Cambridge, Cambridge University Press, 2003). See also UN General Assembly Resolutions A/RES/62/149 (2007), A/RES/63/168 (2008), A/RES/65/206 (2010), A/RES/67/177 (2012). 148 Wynne v UK App no 67385/01 (ECtHR, 16 October 2003); Kafkaris v Cyprus App no 21906/04 (ECtHR, 12 February 2008); Einhorn v France App no 71555/01 (ECtHR, 16 October 2001); Léger v France App no 19324/02 ECtHR (11 April 2006). 149 V v UK App no 24888/94 (ECtHR, 16 December 1999). 150 Cf Nowak and McArthur, CAT Commentary (n 50) 566. 151 ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ 144

Manfred Nowak and Anne Charbord

87

Part I – Commentary on the Articles of the EU Charter

this prohibition is addressed to the institutions and bodies of the Union with due regard to the principle of subsidiarity and to the Member States only when they are implementing Union law. There are not many instances in which EU institutions and bodies are in a position of exercising power that might lead to cases of torture and other forms of ill-treatment as described above. 04.57 The broadening of EU competencies in the areas of justice and home affairs, including the development of an area of freedom, security and justice, as well as in the EU’s Common Foreign and Security Policy, has, however, rendered the prohibition of torture and ill-treatment increasingly relevant for EU institutions, bodies and agencies. While still rare, there are now cases where the EU can inter alia arrest and detain individuals, transfer detainees or remove foreigners from EU territory. This can be explicitly stated, as in the case of the European Naval Force Somalia, whose mandate includes the detention of suspected pirates with the aim of transfering them to competent authorities to be prosecuted. There is also a more complex situation, found mainly in the context of migration and border control, in which the EU’s home affairs agencies such as Frontex, EASO and Europol work together with Member States in implementing EU policies and regulations. The spotlight has mostly been on Frontex, whose role was enhanced in 2011152 in light of the EU objective to introduce integrated border management.153 Much criticism has arisen due to its often imprecise mandate,154 which can have the effect of blurring the responsibility for the conduct of operations between the Agency and the Member States.155 152 Amended in 2011: Regulation (EU) 1168/2011 amending Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union. 153 See Council Conclusions on Integrated Border Management, Justice and Home Affairs meeting 4–5 December 2006, which states that European border management includes ‘operational cooperation between Member States as coordinated by [Frontex]’. Frontex carries out operations on the EU’s land, sea and air borders, and its Regulation states that it ‘shall facilitate and render more effective the application of existing and future Union measures relating to the management of external borders’ by ‘ensuring the coordination of the actions of the Member States in the implementation of [Union measures relating to the management of external borders], thereby contributing to an efficient, high and uniform level of control on persons and of surveillance of the external borders of the Member States.’ Art 1 of amended Regulation (EC) 2007/2004. 154 Frontex sets up teams of joint border guards (Member States should contribute to these teams, as well as Frontex with border guards seconded by Member States to Frontex on a semi-permanent basis. The teams are under the supervision of a Frontex Coordination Officer) which ‘assist Member States in circumstances requiring increased technical or operational assistance’, and ‘provide Member States with the necessary support, including coordination and organization of joint return operations’. These teams also take part in RABITs (n 6). Frontex organises joint operations and pilot projects, and may itself initiate them in cooperation with the Member States concerned and in agreement with the host Member States. It should also be noted that the Regulation also places an important focus on fundamental freedoms, including by providing for a Fundamental Rights Strategy. See Regulation (EU) 1168/2011 amending Council Regulation (EC) 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union. 155 Frontex operations include joint return operations by air and maritime interception of vessels (eg HERA I, II, and III), which have been alleged to deter or stop migrants from crossing EU sea borders. In the context of the RABIT operation in Greece, it has been alleged that Frontex facilitated the transfer of migrants to detention centres in Greece which did not meet international standards (as later ruled by the ECtHR in the case of MSS). For more on the role of Frontex, see: Directorate General for Internal Policies, Citizen’s Rights and Constitutional Affairs, Justice, Freedom and Security, Implementation of the EU Charter of Fundamental Rights and its impact on EU Home Affairs Agencies, Frontex, Europol and the European Asylum Support Office; S Carrera, M de Somer and B Petkova, The Court of Justice of the European Union as a Fundamental Rights Tribunal—Challenges for the Effective Delivery of Fundamental Rights in the Area of Freedom, Security and Justice, CEPS Paper in Liberty and Security, No 49/August 2012; Human Rights Watch, The EU’s Dirty Hands: Frontex Involvement in the Treatment of Migrant Detainees in Greece, September 2011.

88

Manfred Nowak and Anne Charbord

Art 4 – Prohibition of Torture

Whether the mandate is explicit or not, EU agents may find themselves in situations 04.58 where they could directly engage in acts of torture or ill-treatment. The negative formulation of Article 4 is thus fully relevant, not only for Member States, but also for the EU and its agents. Indeed, in application of Article 51 EUCR, a violation of Article 4 EUCR could in principle engage the responsibility of the EU institutions themselves, of one of the EU agencies or bodies,156 of Member States, or a combination thereof.157 Finally, it should again be noted that in order to ensure the full applicability of Article 51, and to avoid any accountability vacuum, it will be essential for the CJEU to recognise the extraterritorial application of Article 4 EUCR.158 (g) Obligations of the EU and its Member States to Fulfil the Prohibition of Torture and Ill-Treatment Despite the negative formulation of the prohibition of torture and ill-treatment, all 04.59 human rights create corresponding positive obligations to fulfil such rights. A good example of a special treaty which only contains positive obligations to fulfil the prohibition of torture is CAT. In addition to the general duty of states parties under Articles 2(1) and 16(1) to take effective legislative, administrative, judicial or other measures to prevent acts of torture, cruel, inhuman or degrading treatment or punishment, the other provisions contain very specific obligations to criminalise torture (Art 4), to bring perpetrators of torture to justice in accordance with the principles of territorial, personal and universal jurisdiction (Arts 5–9), to train law enforcement personnel (Art 10), to systematically review interrogation methods and prison rules (Art 11), to conduct prompt and impartial investigations of every allegation or suspicion of torture or any other form of ill-treatment (Arts 12–13), to provide an effective remedy and adequate reparation to victims of torture (Art 14), and to exclude information and confessions extracted by torture as evidence in any legal proceedings (Art 15). In its case law on Article 3 ECHR, the ECtHR developed similar obligations of states 04.60 parties to fulfil the prohibition of torture and ill-treatment,159 above all to investigate all allegations and suspicions of torture,160 to enact and enforce proper legislation,161 to exclude evidence obtained by torture,162 to train personnel and provide procedural safeguards,163 and to grant redress and compensation to victims of torture.164 Consequently, EU institutions and bodies must also take positive measures to fulfil 04.61 the prohibition of torture and ill-treatment. The positive measures adopted by the EU should not duplicate the existing measures adopted by states. Rather, they should aim

156

See also Art 263 TFEU. For more on this discussion, see section D.II on the scope of personal application. 158 For more on this discussion, see section D.II on the scope of territorial application. 159 Cf APT/CEJIL, Torture in International Law—A guide to jurisprudence, 65 ff. 160 Ribitsch v Austria (n 38); Aksoy v Turkey (n 35); Assenov et al v Bulgaria (n 38); Labita v Italy (n 38); Salman v Turkey (2000), Stefan Iliev v Bulgaria App no 53121/99 (ECtHR, 10 May 2007). 161 MC v Bulgaria (n 39); A v UK (n 37); Macovei et al v Romania App no 5048/02 (ECtHR, 21 June 2007). 162 Jalloh v Germany App no 54810/00 (ECtHR, 11 July 2006). 163 Raninen v Finland App no 20972/92 (ECtHR, 16 December 1997); Nevmerzhitsky v Ukraine App no 54825/00 (ECtHR, 5 April 2005); Andronicou and Constantinou v Cyprus App no 25052/94 (ECtHR, 9 October 1997). 164 ECtHR, Assanidze v Georgia App no 71503/01 (ECtHR, 8 April 2004). 157

Manfred Nowak and Anne Charbord

89

Part I – Commentary on the Articles of the EU Charter

primarily at ensuring that there are no legal or accountability gaps or grey areas for violations of the absolute prohibition of torture and ill-treatment by EU institutions and bodies or by Member States when they are implementing Union law. These gaps and grey areas will likely mainly be found in domains of new EU competencies, some of which have already been identified in Part A. While situations where the agents of EU institutions or bodies have the power to violate the provisions of Article 4 EUCR are rare, situations in which no Member State can be found responsible are nonetheless conceivable. Should such a situation arise, given the legal nature of the prohibition of torture and ill-treatment and the gravity of the crime, it needs to be fully accounted for and the EU must ensure that accessible remedies for the victim exist. In order to ensure that the positive measures to be adopted by the EU cater to these various situations, it will be important to break down the complex responsibility attribution between the EU, its institutions, bodies and agencies, and those of Member States, bearing in mind that responsibility can be shared. It should be noted that key challenges here include the absence of full EU competencies in the field of criminal law,165 as well as the absence of independent EU bodies to investigate such crimes. A complex question is whether the EU could ‘criminalise torture’.166 The answer 04.62 would require a detailed examination of its competency to do so,167 as well as questions of added value and respect for the principle of subsidiarity, which are beyond the scope of this chapter. It can, however, be argued that common rules on how to ensure implementation of the prohibition of torture and ill-treatment with a requirement for criminal sanctions for respective violations could contribute to a more uniform enforcement of the prohibition across EU states, including the obligation to investigate and the level of sanction. They could also assist in ensuring accountability where EU agents are directly involved in acts of torture or ill-treatment, and that those who violate the prohibition of torture or ill-treatment do not hide behind borders or take advantage of the differences between legal systems to evade accountability. 04.63 Without being exhaustive, other positive measures that the EU could adopt include compulsory training on standards of detention, prison conditions, and even the treatment of individuals during interrogations where the EU and its agents are directly or indirectly in charge of arrests and detention of individuals. All EU agents involved directly or indirectly in the transfer of detainees or the transfer of individuals to third

165 With the entry into force of the Lisbon Treaty, the EU can adopt under Art 83 of the TFEU directives with minimum rules on EU criminal law for different crimes. Art 83(1) provides that measures can be adopted concerning a list of 10 explicitly listed offences, which include terrorism, trafficking in human beings, sexual exploitation of women and children, and organised crime. These merit an EU approach due to their particularly serious nature and cross-border dimension. Art 83(2) allows the establishment of ‘minimum rules with regard to the definition of criminal offences and sanctions if the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to a harmonisation measure’. This clause does not list specific crimes, but makes the fulfilment of certain legal criteria a precondition for the adoption of criminal law measures at EU level. Note that Denmark is not participating and that the United Kingdom and Ireland only participate in the adoption and application of specific instruments after a decision to ‘opt in’. For guidance on where the EU should adopt such measures, see Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies through criminal law’ COM/2011/0573 final. 166 Or ‘adopt a directive with minimum rules’ as provided for by Art 83(2) TFEU. 167 Key articles would include Arts 52(2) and 52(3) of the EUCR, Art 6 TEU and Art 83(2) TFEU.

90

Manfred Nowak and Anne Charbord

Art 4 – Prohibition of Torture

countries should also be trained on the absolute prohibition of refoulement.168 Finally, the EU might also need to address the issue of detention conditions. As we have already noted, detention conditions in Member States impact on a number of instruments developed by the EU, in particular those based on mutual trust in the area of freedom, security and justice. While detention conditions and prison management are largely the responsibility of Member States, the EU may have an interest in adopting minimum rules to address the serious shortcomings in prisons, pre-trial detention centres, police lock-ups, psychiatric hospitals, migration detention centres and other facilities identified earlier. (h) Obligations of the EU and its Member States to Protect Private Individuals from Torture and Ill-Treatment Finally, the prohibition of torture and ill-treatment, although primarily relating to 04.64 conduct by public officials as stated in Article 1 CAT, also creates obligations to protect human beings against similar conduct by private individuals. In A v UK, which involved the caning of a boy by his stepfather, the ECtHR held that Article 3 ECHR ‘requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals’.169 Based on Article 52(3) EUCR, this jurisprudence of the ECtHR also applies to the 04.65 EU. Within the scope of EU law, the EU has an obligation to take measures to prevent torture and ill-treatment from being committed by private individuals. Otherwise, the EU and its institutions could in theory be held responsible for not protecting individuals within their jurisdiction from treatment prohibited by Article 4 EUCR administered by non-state actors. One area where this might be particularly relevant is the so-called ‘Euro-crimes’,170 for which the EU can adopt minimum rules on EU criminal law according to Article 83 TFEU. These include terrorism, trafficking in human beings and sexual exploitation of women and children. These crimes often amount to treatment

168 Note that the Revised Frontex regulations provide that ‘all border guards and other personnel of the Member States who participate in the European Border Guard Teams, as well as the staff of the Agency, have received, prior to their participation in operational activities organised by the Agency, training in relevant Union and international law, including fundamental rights and access to international protection and guidelines for the purpose of identifying persons seeking protection and directing them towards the appropriate facilities’; ‘[t]he Agency shall establish and further develop common core curricula for the training of border guards and provide training at European level for instructors of the national border guards of Member States, including with regard to fundamental rights, access to international protection and relevant maritime law’; and ‘[t]he Agency should provide training, including on fundamental rights, access to international protection and access to asylum procedures, at European level, for instructors of the national border guards of Member States and additional training and seminars related to control and surveillance at the external borders and removal of third-country nationals illegally present in the Member States for officers of the competent national services’. 169 A v UK (n 37) para 22. See also Osman v UK (n 37); Z et al v UK App no 29392/95 (ECtHR, 10 May 2001); Mubilanzila Mayeka and Kaniki Mitunga v Belgium App no 13178/03 (ECtHR, 12 October 2006); Members of the Gldani Congregation of Jehovah’s Witnesses v Georgia App no 71156/01 (ECtHR, 3 May 2007). 170 These are crimes that necessitate an EU approach, due to their particularly serious nature and cross-border dimension, according to the Treaty itself. Most of the crimes are already covered by pre-Lisbon legislation, which is updated.

Manfred Nowak and Anne Charbord

91

Part I – Commentary on the Articles of the EU Charter

contrary to Article 4 EUCR committed by private individuals, which the EU has an obligation to prevent.

IV. Limitations and Derogations 04.66 One of the key aspects of the prohibition of torture is its absolute and non-derogable nature under international law. The absolute nature of the prohibition of torture means that it is not superseded by any other right or concern: it must be respected no matter the circumstances, and irrespective of the individual’s behaviour. This is clearly the case for Article 3 of the ECHR, as confirmed by the ECtHR.171 This absolute prohibition is also unambiguously stated in Article 2(2) of CAT and in Article 7 CCPR, as well as by international humanitarian law.172 This means that torture must not be balanced against national security interests or even the protection of other human rights. No limitations are permitted on the prohibition of torture.173 04.67 The prohibition of torture is also non-derogable under international law. Article 15(2) ECHR states that no derogation from Article 3 can be made even in time of war or other public emergency threatening the life of a nation. Article 2(2) CAT provides that no derogation can be made to the prohibition of torture even under circumstances such as war, threat of war, internal political instability or any other public emergency, while Article 4(2) CCPR makes clear that no derogation can be made even in times of emergency or armed conflict. 04.68 The Charter does not refer to the nature of Article 4 or to the possibility of derogating from it. However, based on Article 52(3) of the Charter, which states that the meaning and scope of Charter rights shall be the same as those laid down in the ECHR, Article 4 has to be interpreted as being both absolute and non-derogable.174 It should be highlighted that in the ECHR context, the prohibition of refoulement stems from Article 3 and, like the prohibition of torture, is absolute and applies irrespective of the victim’s

171 See Ireland v UK (n 114) para 163: ‘The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4 (P1, P4), Article 3 (art. 3) makes no provision for exceptions and, under Article 15 §2 (art. 15-2), there can be no derogation therefrom even in the event of a public emergency threatening the life of the nation.’ See also Soering (n 42) para 88. 172 Common Art 3 to all four 1949 Geneva Conventions, as well as Art 75(2) of the 1977 Protocol (I) Additional to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts. Finally, Art 31 of the Fourth Geneva Convention stipulates that ‘No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.’ 173 See Nowak, CCPR Commentary (n 52) 157, and Special Rapporteur on Torture, A/HRC/13/39/Add.5, para 41. 174 See also the explanations to Art 52(3) of the Charter: ‘Paragraph 3 is intended to ensure the necessary consistency between the Charter and the ECHR by establishing the rule that, in so far as the rights in the present Charter also correspond to rights guaranteed by the ECHR, the meaning and scope of those rights, including authorised limitations, are the same as those laid down by the ECHR. This means in particular that the legislator, in laying down limitations to those rights, must comply with the same standards as are fixed by the detailed limitation arrangements laid down in the ECHR, which are thus made applicable for the rights covered by this paragraph, without thereby adversely affecting the autonomy of Union law and of that of the Court of Justice of the European Union’; [2007] OJ C303/33. See also Case C-112/00 Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich [2003] ECR I-5659.

92

Manfred Nowak and Anne Charbord

Art 4 – Prohibition of Torture

conduct.175 Although the Charter has dedicated a separate article to this prohibition, Article 19,176 the absolute nature of non-refoulement, which comes from Article 3 ECHR, should apply to Article 19. Challenges have been brought to this absolute prohibition. In the European context, 04.69 these have mainly been in the area of security, justice and freedom. Both within and outside the EU framework, European states have been engaged in countering terrorism, a fundamental security challenge for many regions of the world. Without doubt, terrorism is a grave and legitimate concern, and states have an obligation to take measures to counter it. These measures must, however, always be lawful and comply with the international human rights framework. In their counter-terrorism policies, many states have tried to act outside the human rights framework, by placing the terrorism threat in the category of exceptional circumstances that require exceptional measures. Specific legal challenges have been brought to the absolute prohibition of refoule- 04.70 ment, inter alia by EU Member States. In 2005, in a case that was struck out by the ECtHR,177 the governments of Lithuania, Portugal, Slovakia and the UK intervened in order to require the ECtHR to review its jurisprudence on the absolute prohibition of refoulement.178 They argued that not doing so could force them to keep on their territory individuals suspected of or convicted of terrorism, without being able to try them, which posed a great risk to the community.179 In the case of Saadi v Italy, the governments of Italy and the UK both supported a position that would in effect have withdrawn the absolute nature of the prohibition of refoulement. This case allowed the ECtHR to reaffirm and clarify the absolute nature of the prohibition and refuse any ‘balancing act’ between the risk of torture on the one hand and the threat to national security on the other. The Court noted that the threat which terrorism presents to the community cannot call into question the absolute nature of Article 3.180 The Court recalled that since protection against the treatment prohibited by Article 3 is absolute, that provision imposes an obligation not to extradite or expel any person who, in the receiving country, would run a real risk of being subjected to such treatment. As the Court has repeatedly held, there can be no derogation from that rule. The conduct of the person concerned, however undesirable or dangerous, cannot be taken into account.181 Other challenges which have been brought to the absolute and non-derogable nature 04.71 of the prohibition of torture and refoulement include attempts to apply territorial limitations to these prohibitions. The Court’s developing jurisprudence on extraterritorial application has blocked these attempts.182

175 See Soering (n 42) and Chahal v UK (n 46). This has also been affirmed by the CAT Committee: see for example Concluding Observations, Canada, UN Doc CAT/C/CR/34/CAN, 7 July 2005; and the Human Rights Committee: see, for example, Concluding Observations, Canada, UN Doc CCPR/C/CAN/CO/5, 20 April 2006. 176 Art 19(2) EUCR: ‘No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.’ 177 Ramzy v Netherlands App no 25424/05 (ECtHR, 20 July 2010). 178 See Chahal v UK (n 46). 179 Observations of the governments of Lithuania, Portugal, Slovakia and the United Kingdom in the case of Ramzy v the Netherlands (n 177). 180 Saadi v Italy (n 46), para 137. 181 Ibid, para 138. 182 See section D.II, above.

Manfred Nowak and Anne Charbord

93

Part I – Commentary on the Articles of the EU Charter

The use of diplomatic assurances183 to deport or return terrorist suspects to countries where they would normally be at risk of torture is another means that has been used by States to circumvent the absolute prohibition of torture. At least one EU country has signed several such agreements,184 while the Council of Europe had discussed the possibility of developing minimum standards for their application.185 These agreements have also been severely criticised by human rights experts.186 Without clearly opposing them, the ECtHR has stated that the existence of these agreements does not absolve ‘the Court from the obligation to examine whether such assurances provided, in their practical application, a sufficient guarantee that the applicant would be protected against the risk of treatment prohibited by the Convention. The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time’.187 This has also been the position of the Human Rights Committee188 and the CAT Committee.189 In the recent more disturbing case of Othman (Abu Qatada) v UK,190 the ECtHR examined the diplomatic assurances received by the British government from the Jordanian government and concluded that despite the documented real risk of ill-treatment upon return without the assurances, these mitigated the risk so that ‘the applicant’s return to Jordan would not expose him to a real risk of ill-treatment’.191 For the first time in its history, however, the ECtHR accepted that there was a real risk that upon return he would be tried in breach of the absolute prohibition on the use of evidence obtained by torture, which constitutes a real risk of a flagrant denial of justice.192 04.73 It is in the period since 2001 that the absolute and non-derogable nature of the prohibition of torture was put into question for the first time since the existence of the United Nations, even in democratic states. It was for good philosophical and historical reasons that states agreed in the aftermath of the Nazi Holocaust that the prohibition of torture should be guaranteed under international human rights law, as one of the few absolute and non-derogable rights. History, including the recent context of the global ‘war on terror’, shows that putting into question the absolute prohibition of torture 04.72

183 These are agreements between two countries—the deporting country and the country of return, in which the country of return engages itself to refrain from torturing the individual returned. These agreements are also known as Memoranda of Understanding. For a full discussion, see the Report of the UN Special Rapporteur on Torture, A/HRC/13/39/Add.5 paras 240–43. 184 The UK has concluded general memoranda of understanding with third countries, such as Jordan, Libya, Lebanon and Algeria. See E/CN.4/2006/6, para 29; Nowak and McArthur (n 50) 216, fn 474. 185 This possibility gave rise to much criticism and was abandoned. See Human Rights Watch, ‘No Guidelines on Empty “No Torture” Promises’, 3 April 2006. 186 See Special Rapporteur on Torture, E/CN.4/2006/6, para 28–33; A/HRC/10/44/Add.2, paras 66–69 and UN High Commissioner for Human Rights, ‘Report of the United Nations High Commissioner for Human Rights on the protection of human rights and fundamental freedoms while countering terrorism’, A/ HRC/4/88, para 9. 187 See Saadi v Italy (n 46), para 148. 188 Mohammed Alzery v Sweden, CCPR/C/88/D/1416/2005, 10 November 2006. 189 Agiza v Sweden, CAT/C/34/D/233/2003, 20 May 2005. 190 Othman (Abu Qatada) v UK (n 46). 191 Ibid, paras 190–207. 192 The ECtHR noted that it ‘considers that the admission of torture evidence is manifestly contrary, not just to the provisions of Art 6, but to the most basic international standards of a fair trial. It would make the whole trial not only immoral and illegal, but also entirely unreliable in its outcome. It would, therefore, be a flagrant denial of justice if such evidence were admitted in a criminal trial’; para 267.

94

Manfred Nowak and Anne Charbord

Art 4 – Prohibition of Torture

means opening a Pandora’s Box. It will take many years until the global damage that was inflicted on the prohibition of torture193 as a rule of jus cogens is repaired.194

V. Remedies Article 47 of the EUCR provides for the right to an effective remedy and a fair trial 04.74 for anyone whose rights and freedoms guaranteed by the Union have been violated. Regarding the specific right to an effective remedy and full reparation for victims of torture, Article 14 CAT provides that each state party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, the victim’s dependants are entitled to compensation. The rights enshrined in Article 14 should be seen as a specific manifestation of the general right of victims of human rights violations to a remedy and adequate reparation, as laid down in various international and regional human rights treaties.195 In addition, Article 4 EUCR as developed by the ECtHR also contains in itself the right to have all allegations and suspicions of torture investigated,196 and the right to redress and compensation for victims of torture or ill-treatment.197 Where the violation of Article 4 EUCR occurs in the implementation by the Member State of EU law, the first point of contact for an individual will most likely continue to be national jurisdictions. However, with the increase of competencies of the EU in areas where violations of Article 4 are possible, and with the submission of these areas to the jurisdiction of the CJEU,198 it is very likely that the CJEU will face an increase of the number of cases dealing with alleged violations of the prohibition of torture and ill-treatment.199 It is worth

193 One particularly striking example is the issue of extraordinary rendition. According to UN, EU and Council of Europe investigations, European states have been complicit in rendition, notably by providing airspace and airports to rendition flights. See M Nowak, Special Rapporteur on Torture, UN Doc A/HRC/13/39/Add.5, paras 244–45 and the joint report of four special procedures on secret detention in the fight against terrorism, UN Doc A/HRC/13/42 (2010). See also D Marty, ‘Secret detentions and illegal transfers of detainees involving Council of Europe member States: second report’, Doc 11302 rev, Committee on Legal Affairs and Human Rights/Council of Europe Parliamentary Assembly, 11 June 2007; Council of Europe, ‘Secretary General’s supplementary report under article 52 ECHR on the question of secret detention and transport of detainees suspected of terrorist acts, notably by or at the instigation of foreign agencies’, SG/Inf(2006)13, 14 June 2006; EU Network of Independent Experts on Fundamental Rights, ‘Opinion n°3/2006: The human rights responsibilities of the EU Member states in the context of the CIA activities in Europe (“Extraordinary renditions”)’, 25 May 2006; as well as the work of the ‘TIDP Temporary Committee’ set up by European Parliament’s Committee on Civil Liberties, Justice and Home Affairs on 15 December 2005 to investigate the alleged illegal transfer of detainees and the suspected existence of secret CIA detention facilities in the European Union and in candidate countries, Final Report A6-0020/2007; and the European Parliament Resolution on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (2006/2200(INI)), 14 February 2007. 194 See M Nowak, Special Rapporteur on Torture, A/HRC/13/39/Add.5, para 45. 195 Eg Art 2(3) CCPR, Art 13 ECHR. See also ibid, paras 167–85. 196 Ribitsch v Austria (n 38); Aksoy v Turkey (n 35); Assenov et al v Bulgaria (n 38); Labita v Italy (n 38); Salman v Turkey (2000), Stefan Iliev v Bulgaria App no 53121/99 (ECtHR, 10 May 2007). 197 Assanidze v Georgia App no 71503/01 (ECtHR, 8 April 2004). 198 In particular migration, asylum and border control. See Art 67 TFEU. 199 See S Carrera, M de Somer and B Petkova, The Court of Justice of the European Union as a Fundamental Rights Tribunal—Challenges for the Effective Delivery of Fundamental Rights in the Area of Freedom, Security and Justice, CEPS Paper in Liberty and Security No 49, August 2012.

Manfred Nowak and Anne Charbord

95

Part I – Commentary on the Articles of the EU Charter

highlighting that the new competencies of the CJEU regarding fundamental rights have not brought a new procedure specific to fundamental rights, and that alleged victims of such violations access the CJEU through the general existing procedures. These have not been devised with victims of human rights violations in mind, and therefore do not cater to their needs particularly well.200 04.75 With regard to access to the Luxembourg jurisdiction by alleged victims of torture or ill-treatment, the first point to be made is that admissibility requirements for individuals can be an important impediment to actions being brought, as individual applicants must always prove that they are directly and individually affected by the measure in question.201 In addition, some actions before the Court are not particularly relevant in cases of human rights violations.202 Key actions will be actions for damages203 and the preliminary question procedure exercised through national judicial review.204 In the latter case, however, the decision to bring the case before the Luxembourg jurisdiction will largely depend on the national judge. An important novelty, however, is brought by Article 263 TFEU which provides that the CJEU ‘shall review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties’. This permits ‘home affairs’ agencies to be held accountable should they be found in violation of the EUCR.205 Another novelty is Article 267 TFEU, which states that should a preliminary question be raised on the interpretation of the Treaties or regarding the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union in a case pending before a court or tribunal of a Member State with regard to a person in custody, the CJEU shall act with the minimum of delay.206 In cases where there is a risk of refoulement, the CJEU should make full use of the interim measures at its disposal.207 04.76 The CJEU’s remedial action is also limited by its competencies. By way of examples, Article 276 TFEU provides that ‘[i]n exercising its powers regarding the provisions of Chapters 4 and 5 of Title V of Part Three relating to the area of freedom, security and justice, the [CJEU] shall have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law-enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security’. By way of further example, Frontex’s revised regulations provide that ‘the home Member State shall provide for appropriate disciplinary or other measures in accordance with

200 This is particularly problematic for allegations of torture where the alleged perpetrator is an EU agency or an EU agent. 201 Eg annulment procedures, Art 263 TFEU. 202 Eg action for failure to act, Art 265 TFEU. Note, however, that this procedure may be used to hold the EU bodies responsible for any failure to meet their positive obligations to fulfil and protect the right to personal integrity and human dignity. See sections D.III(g) and (h), above. 203 Art 340 TFEU: ‘In the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.’ 204 Art 267 TFEU. 205 S Carrera, M de Somer and B Petkova, The Court of Justice of the European Union (n 199). 206 Ibid. 207 For direct actions, see Art 83 of the Rules of Procedure. In the case of preliminary questions, the Court largely depends on national procedural options. For more on this topic, see S Carrera, M de Somer and B Petkova, The Court of Justice of the European Union (n 199).

96

Manfred Nowak and Anne Charbord

Art 4 – Prohibition of Torture

its national law in case of violations of fundamental rights or international protection obligations in the course of a joint operation or pilot project’. The challenge for the CJEU is to ensure that it can deliver the same level of protec- 04.77 tion as the ECtHR from both a substantive and a procedural point of view. It will have to overcome procedural and competency obstacles in an area where the growing competencies given to the EU and its agencies are not always explicit. Crucially, judicial protection of Article 4 EUCR implies, first, the ‘absorption’ of the large case law of the ECtHR,208 and, second, that individuals whose rights have been—or will be—violated have access to an effective remedy. On the first point, in two key Article 4 cases, the CJEU has followed the reasoning of the ECtHR on the substantive content of the prohibition of torture and ill-treatment.209 There are, however, still a number of issues that will constitute ‘test cases’ for the CJEU to prove that it can provide similar protection to the ECtHR, such as the extraterritorial application of the EUCR. Regarding the second point, key challenges include adequate access to the Court by the individual, with the possibility of full reparation, as well as the use of effective interim measures where there is a risk of irreparable harm to be caused to the individual. The Court will need to prove it is able to protect individuals and fulfil its enhanced fundamental rights role beyond questions of interpretation and legality.

E. Evaluation The prohibition of torture, inhuman or degrading treatment or punishment constitutes 04.78 the core of the human right to personal integrity and dignity. Since torture and slavery are considered as the most direct and brutal attacks on the very essence of human dignity, their prohibition under international law is absolute and non-derogable, even in times of war, terrorism and other threats to national security. As the formulation of Article 4 EUCR is identical to that of Article 3 ECHR, the rich case law of the ECtHR needs to be taken into account. In addition, the practice of other monitoring bodies, such as the CPT, the UN Human Rights Committee, the CAT Committee, the SPT and the UN Special Rapporteur on Torture provide important sources of interpretation. Apart from the obligation to respect the absolute prohibition of torture and other forms of ill-treatment, ie to refrain from practicing torture and ill-treatment, standard setting

208 As provided for in Art 52 EUCR. In the case of NS and ME (n 80), the CJEU followed the reasoning of the ECtHR in the case of MSS v Belgium and Greece (n 2), while in the case of Elgafaji (n 80), the CJEU reconciled EU legislation on subsidiary protection with ECtHR jurisprudence on non-refoulement. 209 In the case NS and ME (n 80), the CJEU examined ‘Dublin transfers’ from the UK and Ireland to Greece. Following the ECtHR in the case MSS (n 2), the CJEU noted that the presumption of compliance with fundamental rights by EU Member States is rebuttable where Art 4 is at risk of being violated. In Elgafaji (n 80), the CJEU dealt with the interpretation of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. In particular, the Court examined whether Art 15(c) of the Directive which grants subsidiary protection to civilians subject to ‘serious harm if returned to their country of residence’ because of ‘serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict’ corresponds to Art 3 of the ECHR, or if it provides supplementary protection.

Manfred Nowak and Anne Charbord

97

Part I – Commentary on the Articles of the EU Charter

and jurisprudence have also developed a broad range of positive obligations to fulfil this right and to protect individuals against violations by other private individuals, such as domestic violence against women and children. The broadening of EU competencies in the areas of justice and home affairs, includ04.79 ing the development of an area of freedom, security and justice, as well as in the EU’s CFSP has rendered the prohibition of torture and ill-treatment increasingly relevant for EU institutions, bodies and agencies. While still rare, there are cases where the EU can arrest and detain individuals, transfer detainees or remove foreigners from EU territory. In order to assist Member States and EU institutions on justice and home affairs, a number of working parties, coordinating committees and specialised bodies, such as Frontex, Europol, Eurojust and the EASO have been set up. Within the scope of activities of these bodies the line between mere coordination and conducting operations often becomes blurred and EU agencies themselves may be held responsible for violations of the prohibition of torture and ill-treatment, including the principle of non-refoulement. The ‘Dublin Regulation’, the EAW, the European Evidence Warrant, Europol joint investigation teams and similar tools of police and judicial cooperation are based on the reciprocal trust that the right to asylum and other human rights, including the right of detainees to be treated with dignity, are equally protected in different EU Member States. As the well-known cases of MSS, before the ECtHR, as well as NS and ME, before the CJEU show, this presumption is highly rebuttable and the transfer of asylum-seekers and detainees between EU Member States may amount to a violation of Articles 4, 18 and 19(2) EUCR. Within the framework of the CFSP, the most obvious examples, where EU institu04.80 tions may be held directly accountable for torture and ill-treatment, are EU police and military missions and operations, such as Operation Atalanta against piracy off the coast of Somalia, the military Operation Althea in Bosnia and Herzegovina, or the EULEX in Kosovo. As the ECtHR has emphasised in a number of judgments, most recently in Al-Skeini and Hirsi Jamaa, the ECHR must be applied extraterritorially whenever state authorities have the overall control over a territory or over an individual. This case law must, of course, also be applied to EU police and military missions, which have the explicit mandate to detain individuals. Since such missions often take place in the context of broader UN- or NATO-led peace operations, the difficult legal question arises as to who is accountable for a violation of Article 4 EUCR: the troop- or policecontributing country, the EU, NATO or the UN? The jurisprudence of the ECtHR in this respect, above all the controversial judgments in Behrami and Saramati as well as in Al Jedda, is far from clear, and the CJEU might be requested to clarify the responsibility of the EU in this respect. This leads to the equally important question of how victims of a violation of their 04.81 rights under Article 4 EUCR can hold the respective EU institutions, bodies and agencies directly accountable before the CJEU. Unfortunately, the new competencies of the CJEU regarding fundamental rights have not brought a new procedure specific to fundamental rights. As is well known, the traditional procedures under Articles 263, 265, 267 and 340 TFEU are not well equipped to provide victims of human rights violations with an effective remedy, as envisaged by Article 47 EUCR. This shortcoming can only be remedied by introducing an individual complaints mechanism, similar to the one before the ECtHR, into the TFEU or by an innovative case law of the CJEU. If the

98

Manfred Nowak and Anne Charbord

Art 4 – Prohibition of Torture

CJEU is not able to provide victims of torture and other forms of ill-treatment by EU institutions, bodies and agencies with an effective remedy, quick interim measures and adequate reparation for the harm suffered, victims might turn to the ECtHR as soon as the accession procedure of the EU to the ECHR has been completed. But the ECtHR will apply Article 3 ECHR rather than Article 4 EUCR, and an important chance to show that the protection of the EUCR might go beyond that of the ECHR will be missed.

Manfred Nowak and Anne Charbord

99

Article 5 Article 5 Prohibition of Slavery and Forced Labour 1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. Trafficking in human beings is prohibited.

Text of Explanatory Note on Article 5 1. The right in Article 5(1) and (2) corresponds to Article 4(1) and (2) of the ECHR, which has the same wording. It therefore has the same meaning and scope as the ECHR Article, by virtue of Article 52(3) of the Charter. Consequently: — no limitation may legitimately affect the right provided for in paragraph 1, — in paragraph 2, ‘forced or compulsory labour’ must be understood in the light of the ‘negative’ definitions contained in Article 4(3) of the ECHR: ‘For the purpose of this article the term “forced or compulsory labour” shall not include: (a)

any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention; (b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service; (c) any service exacted in case of an emergency or calamity threatening the life or wellbeing of the community; (d) any work or service which forms part of normal civic obligations.’ 2. Paragraph 3 stems directly from human dignity and takes account of recent developments in organised crime, such as the organisation of lucrative illegal immigration or sexual exploitation networks. The Annex to the Europol Convention contains the following definition which refers to trafficking for the purpose of sexual exploitation: ‘traffic in human beings: means subjection of a person to the real and illegal sway of other persons by using violence or menaces or by abuse of authority or intrigue with a view to the exploitation of prostitution, forms of sexual exploitation and assault of minors or trade in abandoned children’. Chapter VI of the Convention implementing the Schengen Agreement, which has been integrated into the Union’s acquis, in which the United Kingdom and Ireland participate, contains the following wording in Article 27(1) which refers to illegal immigration networks: ‘The Contracting Parties undertake to impose appropriate penalties on any person who, for financial gain, assists or tries to assist an alien to enter or reside within the territory of one of the Contracting Parties in breach of that Contracting Party’s laws on the entry and residence of aliens.’ On 19 July 2002, the Council adopted a framework decision on combating trafficking in human beings (OJ L 203, 1.8.2002, p. 1) whose Article 1 defines in detail the offences concerning trafficking in human beings for the purposes of labour exploitation or sexual exploitation, which the Member States must make punishable by virtue of that framework decision.

Part I – Commentary on the Articles of the EU Charter

Select Bibliography J Allain, ‘On the Curious Disappearance of Human Servitude from General International Law’ (2009) 11(2) Journal of the History of International Law 303. ——, ‘R v. Tang—Clarifying the Definition of Slavery in International Law’ (2009) 10(1) Melbourne Journal of International Law 246. ——, ‘The Definition of Slavery in International Law’ (2009) 52(2) Howard Law Journal 239. ——, ‘Rantsev v Cyprus and Russia: The European Court of Human Rights and Trafficking as Slavery’ (2010) 10(3) Human Rights Law Review 546. H Askola, Legal Responses to Trafficking in Women for Sexual Exploitation in the European Union (Oxford, Hart Publishing, 2007). ——, ‘Violence Against Women, Trafficking, and Migration in the European Union’ (2007) 13(2) European Law Journal 204. ——, ‘Illegal Migrants, Gender and Vulnerability: the Case of the EU’s Returns Directive’ (2010) 18(2) Feminist Legal Studies 159. MC Bassiouni, ‘Enslavement as an International Crime’ (1991) 23(2) New York University Journal of International Law and Politics 445. J Berman, ‘(Un)Popular Strangers and Crises (Un)Bounded: Discourses of Sex-Trafficking, the European Political Community and the Panicked State of the Modern State’ (2003) 9(1) European Journal of International Relations 37. ——, ‘Biopolitical Management, Economic Calculation and “Trafficked Women”’ (2010) 48(4) International Migration 84. P Craig, EU Administrative Law (Oxford, Oxford University Press, 2012). H Cullen, ‘Siliadin v France: Positive Obligations under Article 4 of the European Convention on Human Rights’ (2006) 6(3) Human Rights Law Review 585. MB Dembour and T Kelly (eds), Are Human Rights for Migrants? (Abingdon, Routledge, 2011). JN Ezeilo, Report of the Special Rapporteur on trafficking in persons, especially women and children, A/66/283 (2011). S Farrior, ‘Introductory Note to European Court of Human Rights: Rantsev v. Cyprus & Russia’ (2010) 49(2) International Legal Materials 415. A Gallagher, ‘Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling: A Preliminary Analysis’ (2001) 23(4) Human Rights Quarterly 975. ——, ‘Recent Legal Developments in the Field of Human Trafficking: A Critical Review of the 2005 European Convention and Related Instruments’ (2006) 8(2) European Journal of Migration and Law 163. ——, The International Law of Human Trafficking (Cambridge, Cambridge University Press, 2010). ——, The Right to an Effective Remedy for Victims of Trafficking in Persons: A Survey of International Law and Policy. Consultation of the United Nations Special Rapporteur on Trafficking in Persons, Especially Women and Children on the right to an effective remedy for trafficked persons (Bratislava, 2010). J Goodey, ‘Migration, Crime and Victimhood’ (2003) 5(4) Punishment and Society 415. GRETA (Group of Experts on Action against Trafficking in Human Beings), Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Cyprus (Strasbourg, GRETA, 2011). D Harris, M O’Boyle, and C Warbrick, Law of the European Convention on Human Rights, 2nd edn (Oxford, Oxford University Press, 2009). J Huysmans, ‘The European Union and the Securitization of Migration’ (2000) 38(5) Journal of Common Market Studies 751. International Labour Office, General Survey Concerning the Forced Labour Convention, 1930 (No 29), and the Abolition of Forced Labour Convention, 1957 (No 105) (Geneva, International Labour Office, 2007). 102

Heli Askola

Art 5 – Prohibition of Slavery and Forced Labour

MW Janis, RS Kay and AW Bradley, European Human Rights Law, 3rd edn (Oxford, Oxford University Press, 2008). J Orbie and O Babarinde, ‘The Social Dimension of Globalization and EU Development Policy: Promoting Core Labour Standards and Corporate Social Responsibility’ (2008) 30(3) Journal of European Integration 459. R Pati, ‘States’ positive obligations with respect to human trafficking: The European Court of Human Rights breaks new ground in Rantsev v. Cyprus and Russia’ (2011) 29(1) Boston University International Law Journal 79. S Peers, ‘Immigration, Asylum and the European Union Charter of Fundamental Rights’ (2001) 3(2) European Journal of Migration and Law 141. ——, ‘Legislative Update EU Immigration and Asylum Law 2010: Extension of Long-term Residence Rights and Amending the Law on Trafficking in Human Beings’ (2010) 13(2) European Journal of Migration and Law 201. R Piotrowicz, ‘Irregular Migration Networks: The Challenge Posed by People Traffickers to States and Human Rights’ in B Bogusz et al (eds), Irregular Migration and Human Rights: Theoretical, European and International Perspectives (Leiden, Martinus Nijhoff, 2004), 137–55. ——, ‘States’ Obligations under Human Rights Law towards Victims of Trafficking in Human Beings: Positive Developments in Positive Obligations’ (2012) 24(2) International Journal of Refugee Law 181. S Scarpa, Trafficking in Human Beings: Modern Slavery (Oxford, Oxford University Press, 2008). B Sullivan, ‘Trafficking in Women: Feminism and New International Law’ (2003) 5(1) International Feminist Journal of Politics 67. United Nations Office on Drugs and Crime, Global Report on Trafficking in Persons (Vienna, UNODC, 2009).

A. Field of Application of Article 5 Article 5 provides that no one shall be held in slavery or servitude or required to per- 05.01 form forced or compulsory labour and that trafficking in human beings is prohibited. In terms of the European Union measures implementing Article 5, the overwhelm- 05.02 ing focus is on the last limb concerning the prohibition of trafficking in human beings, where the EU has had some competence (as part of Justice and Home Affairs) since Maastricht. Under existing EU competence, trafficking in human beings is understood and targeted primarily as a serious form of crime with cross-border implications. Specific EU legislation on trafficking has been adopted, starting with a 1997 joint action, superseded in 2002 by the Framework Decision on Trafficking in Human Beings criminalising trafficking.1 This in turn was replaced by a directive in 2011.2 The 2011 Directive is supplemented by the 2004 Directive on residence permits to victims of trafficking who cooperate with authorities, which remains in force.3 Trafficking in human

1

Framework Decision 2002/629/JHA on combating trafficking in human beings [2002] OJ L203/1. Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA [2011] OJ L101/1. The deadline for transposition was April 2013. 3 Directive 2004/81/EC on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities [2004] OJ L261/19. 2

Heli Askola

103

Part I – Commentary on the Articles of the EU Charter

beings is, as well as serious crime, a multi-faceted phenomenon which also touches on various other policy areas, including violence against women, exploitation of children, the rights of victims of crime and the treatment of irregular migrants. The Commission adopted an EU Strategy towards the Eradication of Trafficking in Human Beings (2012–2016) in 2012. 05.03 The scope of Article 5 is significantly limited by Article 51 of the Charter. As per Article 51, Article 5 only applies to EU institutions and Member States when they are implementing Union law; nor does it establish any new powers for the Union. This is of course the reason why the Union’s role is largely limited to measures related to trafficking in human beings. Many of the measures relevant to Article 5 that relate to slavery, servitude and forced labour in particular fall mostly under Member State competence, unlike aspects of trafficking. Moreover, usually practices mentioned in Article 5 involve horizontal violations, that is, they are perpetrated by private individuals4—they are rarely vertical, committed by state (let alone EU) agents. However, recent case law has greatly developed the notion of positive obligations pertaining to the subject matter of Article 5, and this remains a fast-moving area. The EU context may thus in the future become more relevant not only with regard to trafficking but also slavery, servitude, forced and compulsory labour.

B. Interrelationship of Article 5 with Other Provisions of the Charter 05.04 Because of the evolving and multi-dimensional nature of slavery, servitude, forced and compulsory labour and trafficking, there is much cross-over between Article 5 and various other provisions of the Charter. To begin with, Article 5 is embedded in Chapter I of the Charter, under the heading ‘Dignity’, and the practices prohibited under Article 5 are typically considered to be violations of human dignity (Art 1).5 They are also linked to other articles in Chapter I, including the integrity of the person, especially the prohibition on making the human body a source of financial gain (Art 3) and prohibition of ill-treatment (Art 4). Slavery, servitude, forced labour and trafficking also touch on various ‘freedoms’ in 05.05 Chapter II, such as liberty and security of person (Art 6) and the right to engage in work, freedom to choose an occupation and equality of working conditions (Art 15). ‘Equality’ rights in Chapter III are also relevant: for instance, trafficking, in particular for sexual exploitation, is typically a gendered phenomenon related to a lack of equality between men and women (Art 23). Article 5 also has a link with the rights of the child when children are affected (Art 24). Chapter IV, Solidarity, connects Article 5 with workers’ rights, for instance the right to fair and just working conditions (Art 31)

4 Eg R Piotrowicz, ‘States’ Obligations under Human Rights Law towards Victims of Trafficking in Human Beings: Positive Developments in Positive Obligations’ (2012) 24(2) International Journal of Refugee Law 181, 186. 5 Dignity of the human person is often considered to be the basis of fundamental rights—eg the Universal Declaration of Human Rights (UDHR) speaks of ‘the inherent dignity’ of human beings as the ‘foundation of freedom, justice and peace in the world’ (preamble).

104

Heli Askola

Art 5 – Prohibition of Slavery and Forced Labour

and the prohibition of child labour and protection of young people at work (Art 32). Freedom of movement and of residence (Art 45) is also relevant as slavery, servitude, forced labour and trafficking typically entail restricting the freedom of movement of the persons targeted.

C. Sources of Rights under Article 5 There are numerous international and European treaties that inform the content of 05.06 Article 5. Most importantly, the wording of Article 5 is taken from Article 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).6 The only change is that Article 5 of the Charter leaves out paragraph 3 of Article 4 ECHR (which defines instances of work that shall not be deemed to constitute forced or compulsory labour, such as military service), and adds instead a new paragraph 3 on trafficking in human beings, which is now explicitly prohibited in a separate paragraph, yet grouped together in the same article as slavery, servitude and forced/ compulsory labour. International concerns over slavery, the slave trade, forced labour and trafficking (ini- 05.07 tially known as the ‘white slave traffic’) are long-standing, and international agreements on these topics pre-date the birth of the modern human rights movement by several decades (and by much longer than that, in the case of slavery and the slave trade). Several of these international agreements remain important regarding slavery, the slave trade and servitude7 and forced labour.8 The concepts of slavery, servitude and forced and compulsory labour should be interpreted in line with these treaties, as well as emerging case law from the European Court of Human Rights (ECtHR).9 With regard to trafficking in human beings, the older international instruments10 05.08 have been surpassed by more recent treaties, which are relevant for the interpretation of Article 5. The 2000 United Nations Trafficking Protocol (Palermo Protocol)11 gave

6 As discussed below (and also confirmed in the Explanations Relating to the Charter of Fundamental Rights, OJ C303/17), Art 52(3) of the Charter provides that insofar as the Charter contains rights which ‘correspond to rights guaranteed by’ the ECHR, the ‘meaning and scope of those rights shall be the same’ as in the ECHR. Union law can provide more extensive protection. 7 Convention to Suppress the Slave Trade and Slavery (Slavery Convention), 1926 (60 LNTS 253); Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 1956 (266 UNTS 40). 8 Forced Labour Convention 1930 (ILO Convention No 29, 39 UNTS 55); Abolition of Forced Labour Convention, 1957 (ILO Convention No 105, 320 UNTS 291). 9 See Art 52(3) of the Charter and Explanations Relating to the Charter of Fundamental Rights, [2007] OJ C303/17. 10 1904 International Agreement for the Suppression of the Slave Trade (1 LNTS 83); 1910 International Convention for the Suppression of White Slave Traffic (III LNTS 278); 1921 Convention for the Suppression of Traffic in Women and Children (9 LNTS 415); 1933 International Convention for the Suppression of the Traffic in Women of Full Age (150 LNTS 431); 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (96 UNTS 271). 11 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children supplementing United Nations Convention against Transnational Organized Crime, A/53/383, Annex II (Palermo Protocol). It entered into force on 25 December 2003 and has 155 parties (in May 2013), including the EU and all EU Member States but the Czech Republic.

Heli Askola

105

Part I – Commentary on the Articles of the EU Charter

impetus to the adoption of the first significant EU law measure, the 2002 Framework Decision, and greatly influenced its definition of trafficking. The 2005 Council of Europe Convention on Action Against Trafficking in Human Beings12 created a more detailed regional framework for tackling trafficking in Europe that further develops the Palermo Protocol’s three-pronged approach based on prosecution, protection of victims and prevention of trafficking. The ECtHR has made use of both instruments in the context of Article 4 ECHR. 05.09 Somewhat unsurprisingly, considering the limitations of Article 51, the Court of Justice of the European Union has not had much to say on Article 5. One can find occasional references to slavery, forced labour and trafficking in case law—for instance the fear of slavery was raised by the applicant in Samba Diouf but the case was about asylum procedures13 and the possible effect of slavery or forced labour on the system of generalised tariff preferences was mentioned in DuPont Teijin Films.14 As further case law on slavery, servitude, forced/compulsory labour and trafficking emerges, it seems possible that the Court of Justice will have to address Article 5.

D. Analysis I. General Remarks 05.10 It is the addition of Article 5(3), prohibiting trafficking in human beings, that explains much of the current political and legal purchase of Article 5. Trafficking in human beings has rapidly moved ‘to the mainstream of international political discourse’15 and this has not only resulted in rapid international and regional legal developments to address trafficking as a form of organised transnational criminal activity, but it has also revived almost-dormant debates regarding forced labour, servitude and slavery. Concerns over the subject matter of Article 5 have moved up the agenda since the 1990s, when widespread reporting of exploitative migration, especially cross-border trafficking of women and girls into prostitution (often talked about, somewhat misleadingly, in terms of ‘modern slavery’16) became a high-profile concern. Far from being eradicated, as

12 CETS No 197, ratified by 40 parties (in May 2013). All but three EU Member States have ratified it: the outsiders are the Czech Republic (which has not signed the Convention either), Estonia and Greece. On the Convention, see A Gallagher, ‘Recent Legal Developments in the Field of Human Trafficking: A Critical Review of the 2005 European Convention and Related Instruments’ (2006) 8(2) European Journal of Migration and Law 163. 13 Case C-69/10 Brahim Samba Diouf v Ministre du Travail, de l’Emploi et de l’Immigration, Judgment of 28 July 2011. 14 Case T-113/00 DuPont Teijin Films Luxembourg SA, Mitsubishi Polyester Film GmbH and Toray Plastics Europe SA v Commission of the European Communities [2002] ECR II-3681. 15 Gallagher (n 12) 163. 16 See for instance Scarpa, Trafficking in Human Beings: Modern Slavery (Oxford, Oxford University Press, 2008). On the gender dimensions and gender politics trafficking see eg B Sullivan, ‘Trafficking in Women: Feminism and New International Law’ (2003) 5(1) International Feminist Journal of Politics 67; J Berman, ‘(Un)Popular Strangers and Crises (Un)Bounded: Discourses of Sex-Trafficking, the European Political Community and the Panicked State of the Modern State’ (2003) 9(1) European Journal of International Relations 37.

106

Heli Askola

Art 5 – Prohibition of Slavery and Forced Labour

once thought, it has turned out that forced labour and trafficking and even slavery and servitude are persisting in the world, including in developed regions such as Europe.17 The European Union’s efforts to tackle trafficking (and, to a lesser degree, slavery and forced labour) should be seen in the context of growing concerns over irregular migration and transnational crime with which trafficking in human beings came to be associated.18 Migration became a political and security issue at the same time as the Europeanisation of migration policy took off in the aftermath of the Maastricht Treaty.19 The connections made between migration, crime and security have raised the profile of trafficking and other forms of exploitation of migrants but have not been as conducive to recognising the plight of individuals subjected to exploitation.20 The broader issues around Article 5 thus relate to the general tension between a rights-based approach to immigration and asylum and the desire of states ‘to control their borders and populations as an essential aspect of their sovereignty’.21

05.11

II. Scope of Application Entitled ‘Prohibition of slavery and forced labour’, Article 5 in fact covers (a) slavery and 05.12 servitude, (b) forced or compulsory labour, and (c) trafficking in human beings. Slavery is considered one of the most egregious human rights violations, involving control over a person that is akin to ownership. Servitude entails coercion that keeps someone performing labour. Forced/compulsory labour is work performed under constraints which fall short of servitude. Finally, trafficking is a more complex legal construction that aims to deal with not so much the exploitative end condition but the process that may lead to exploitation (including slavery, servitude and forced labour). As with much of the rest of the Charter, in principle Article 5 applies to all persons, 05.13 whether or not they are EU citizens, wherever Union law applies to their situation (often, though not always, victims of exploitative practices are third country nationals; migrants who are in an irregular situation can be particularly vulnerable to practices such as forced labour and trafficking). As Article 5 only applies vertically, that is, to EU institutions and Member States when they are implementing Union law, its scope is greatly limited, as mentioned above. Trafficking is the one area where there is a clear body of EU rules. These rules are now based on Article 79 of the Treaty on the Functioning of the European Union (TFEU) which gives the Union the competence to develop a common immigration policy aimed at ensuring, inter alia, ‘the prevention

17 See eg International Labour Office, General Survey concerning the Forced Labour Convention, 1930 (No 29), and the Abolition of Forced Labour Convention, 1957 (No 105) (Geneva, ILO, 2007); United Nations Office on Drugs and Crime, Global Report on Trafficking in Persons (UNODC, 2009). 18 Berman (n 16); H Askola, Legal Responses to Trafficking in Women for Sexual Exploitation in the European Union (Oxford, Hart Publishing, 2007); H Askola, ‘Violence Against Women, Trafficking, and Migration in the European Union’ (2007) 13(2) European Law Journal 204; J Berman, ‘Biopolitical Management, Economic Calculation and “Trafficked Women”’ (2010) 48(4) International Migration 84. 19 J Huysmans, ‘The European Union and the Securitization of Migration’ (2000) 38(5) Journal of Common Market Studies 751. 20 J Goodey, ‘Migration, Crime and Victimhood’ (2003) 5(4) Punishment and Society 415; Askola, ‘Violence Against Women’ (n 18). 21 S Peers, ‘Immigration, Asylum and the European Union Charter of Fundamental Rights’ (2001) 3(2) European Journal of Migration and Law 141.

Heli Askola

107

Part I – Commentary on the Articles of the EU Charter

of, and enhanced measures to combat, illegal immigration and trafficking in human beings’. The provision allows the Union to adopt measures to combat trafficking in persons, in particular women and children. Article 83 TFEU entails the power to establish minimum rules concerning the definition of criminal offences and sanctions regarding trafficking. 05.14 Unlike trafficking, slavery, servitude and forced and compulsory labour do not generally fall under EU competence (though tangential connections can be made). Nor has it been easy to draw the boundaries between slavery, servitude, forced labour and trafficking (moreover, slavery, servitude and forced labour have until recently attracted very little human rights case law22). However, because of increased awareness of trafficking, with which they are often linked, also slavery, servitude and forced labour are now experiencing renewed jurisprudential interest that has lead to rapid developments with regard to positive obligations, especially by the ECtHR. These developments are relevant both because they are finally bringing some clarity to the interrelationships between slavery, servitude, forced labour and trafficking and also because some of them may in time affect the EU even outside the well-established trafficking area.

III. Specific Provisions (a) ‘No one Shall be Held in Slavery or Servitude’ 05.15 The prohibition of slavery has a particular legal character. It is a rule of customary international law of jus cogens level (a peremptory norm from which no derogation is permitted) and a legal obligation erga omnes.23 ‘Slavery’ is defined in the 1926 Convention to Suppress the Slave Trade and Slavery24 as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’ (Art 1(1)). This definition of slavery covers both de jure (status) and de facto (condition) slavery.25 The 1926 Convention requires states to prevent and suppress the slave trade and to bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms. The 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery provides also for the abolition of practices ‘similar to’ slavery, that is, debt bondage, serfdom, servile marriage and exploitation of children and their labour (Art 1). These four servile statuses can overlap with slavery proper but are to be abolished independently of the prohibition of slavery.

22 MW Janis, RS Kay and AW Bradley, European Human Rights Law, 3rd edn (Oxford, Oxford University Press, 2008); D Harris, M O’Boyle and C Warbrick, Law of the European Convention on Human Rights, 2nd edn (Oxford, Oxford University Press, 2009). 23 See further MC Bassiouni, ‘Enslavement as an International Crime’ (1991) 23(2) New York University Journal of International Law and Politics 445. 24 Above n 7. 25 J Allain, ‘The Definition of Slavery in International Law’ (2009) 52(2) Howard Law Journal 239, 273. This definition was reproduced in substance in the Rome Statute of the International Criminal Court (2187 UNTS 90) regarding ‘enslavement’ as a crime against humanity—see Art 7 of the ICC Statute. ‘Enslavement’ is defined as ‘the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children’.

108

Heli Askola

Art 5 – Prohibition of Slavery and Forced Labour

‘Servitude’ is a slightly more difficult concept to pin down. The four instances of 05.16 servile practices that are ‘similar to slavery’ according to the 1956 Supplementary Convention, were originally conceived as institutions of ‘servitude’, which, apart from its link to practices that are ‘similar to slavery’, does not have an international instrument that defines it.26 Servitude is ‘human exploitation falling short of slavery’27 and less severe than slavery in that it does not require that powers attaching to ownership are exercised. Servitude is mentioned in the Universal Declaration of Human Rights (‘No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms’, Article 4 UDHR)28 and the International Covenant on Civil and Political Rights (ICCPR), which repeats the prohibition against slavery and the slave-trade as well as servitude (Art 8(1)–(2)). In Europe, Article 4 of the European Convention on Human Rights includes both slavery and servitude as non-derogable rights, but offers no definition for either concept. Until recently there was little case law to elucidate on these concepts but this is now 05.17 rapidly changing. The 2005 ECtHR case Siliadin v France29 involved a Togolese girl who been held as an unpaid live-in domestic worker in Paris for four years. Her passport was taken from her and she worked 15-hour days with no days off, was never paid and did not attend school. Her fear of deportation was used by her employers as a way of controlling her. The employers were initially convicted of ‘obtaining services without payment’, but not of the more serious charge of ‘subjecting someone to working and living conditions that are incompatible with human dignity by taking advantage of vulnerability or a state of dependence’. Even the first conviction was quashed on appeal, although the employers were required to pay civil damages. Before the ECtHR, the applicant’s argument was that France had failed in its positive obligation to have adequate criminal offences in place to protect the applicant from servitude and debt bondage, serfdom and exploitation of the children and their labour (as in the 1956 Convention) and forced labour.30 The ECtHR held that Article 4 had been violated, though not the prohibition against 05.18 slavery. The Court stated that ‘the evidence does not suggest that she was held in slavery in the proper sense, in other words that [the perpetrators] exercised a genuine right of legal ownership over her, thus reducing her to the status of an “object”.’31 As commentators have noted, the ECtHR’s take on slavery as classic ‘chattel slavery’32 is in contrast with the Appeals Chamber of the International Criminal Tribunal (ICTY) for the

26 J Allain, ‘On the Curious Disappearance of Human Servitude from General International Law’ (2009) 11(2) Journal of the History of International Law 303, 304. 27 Ibid. 28 About the links between the drafting of the 1956 Convention and the UDHR, see Allain, ‘Curious Disappearance’ (n 26). 29 Siliadin v France, App no 73316/01, ECHR 2005-VII. 30 Ibid paras 65, 90–102. 31 Ibid para 122. 32 See Allain, ‘Definition of Slavery’ (n 25) on why this statement is arguably not based on a sound logic. He argues that the 1926 Convention also covers de facto slavery, where someone is held in a condition of slavery (as opposed to having the status of a slave). See also The Queen v Tang (2008), HCA 39, Judgment of 28 August 2008, where the Australian High Court concluded that slavery covers both de jure and de facto slavery (and is therefore broader than the ECtHR’s take in Siliadin), though they did not endorse the very broad definition in Kunarac.

Heli Askola

109

Part I – Commentary on the Articles of the EU Charter

former Yugoslavia, which in the Kunarac33 case took the much broader view that contemporary forms of slavery go beyond chattel slavery.34 Instead the ECtHR found that the applicant’s situation involved both servitude and forced labour. Regarding servitude (about forced labour, see below the following section), the ECtHR relied (for instance) on the 1956 Convention. They argued that servitude ‘means an obligation to provide one’s services that is imposed by the use of coercion, and is to be linked with the concept of “slavery”’.35 It found that the applicant had been held in servitude because she was required to perform forced labour for ‘almost fifteen hours a day, seven days per week’, had not chosen to work for the perpetrators, was a minor as well as vulnerable and isolated and entirely at the perpetrators’ mercy; she was also afraid of arrest and had no freedom of movement or free time.36 05.19 Most interestingly, the ECtHR found that Article 4 entailed a positive dimension: a requirement for states to regulate and prevent the actions of private parties that may violate Article 4. States therefore have to implement criminal law provisions (as opposed to simply civil compensation) and guarantee effective prosecution of practices falling under Article 4.37 This is in order to provide effective deterrence against slavery and servitude and forced labour (these were not at the time explicitly criminalised under French law and gaps in legislation had resulted in insufficient penalisation of the applicant’s employers).38 While the ruling was generally welcomed, as Cullen notes, this case placed much (and perhaps too much) faith in the criminal law as the main remedy for human rights violations, ‘with the risk that states will ignore other obligations towards victims’.39 05.20 Soon after, the ECtHR was given a chance to revisit its jurisprudence in Rantsev v Cyprus and Russia40 and the Court took the opportunity to move away from its more narrow pronouncements on slavery in Siliadin and also to develop further its view on positive obligations under Article 4. Rantsev has been hailed as a ‘landmark’ judgment.41 The case concerned a 20-year-old Russian woman, Oxana Rantseva, who was trafficked from Russia to Cyprus (under a so-called ‘artiste’ visa scheme, generally known to be used for trafficking and controlling migrant women in prostitution in Cyprus). She was allegedly subjected to sexual exploitation in a cabaret, and died as a result of injuries sustained when she (apparently) jumped from a balcony in an attempt to escape her employers. A subsequent inquest in Cyprus, however, found there was no evidence that

33

Prosecutor v Kunarac, Kovac and Vukovic, IT-96–23 & 23/1, Judgment of 12 June 2002. See further H Cullen, ‘Siliadin v France: Positive Obligations under Article 4 of the European Convention on Human Rights’ (2006) 6(3) Human Rights Law Review 585, 592; J Allain, ‘R v. Tang—Clarifying the Definition of Slavery in International Law’ (2009) 10(1) Melbourne Journal of International Law 246, 246–47; Allain, ‘Definition of Slavery’ (n 25), 242–43. 35 Siliadin (n 29) para 124. 36 Siliadin (n 29) para 123–29. 37 Siliadin (n 29) para 112. 38 Note that this finding about France’s insufficient legislative and administrative framework was reconfirmed in the recent case of CN and V v France App no 67724/09 (Judgment 11 October 2012). The facts of the case are very similar to Siliadin, involving both servitude and forced labour. 39 Cullen, ‘Positive Obligations’ (n 34) 590. 40 Rantsev v Cyprus and Russia, App no 25965/04 (ECHR, 2010). 41 S Farrior, ‘Introductory note to European Court of Human Rights: Rantsev v. Cyprus & Russia’ (2010) 49(2) International Legal Materials 415, 417; R Pati, ‘States’ positive obligations with respect to human trafficking: The European Court of Human Rights breaks new ground in Rantsev v. Cyprus and Russia’ (2011) 29(1) Boston University International Law Journal 79, 82. 34

110

Heli Askola

Art 5 – Prohibition of Slavery and Forced Labour

suggested criminal liability of a third person for her death. The case was brought by her father, who argued there had been a violation of Article 2 (right to life), Article 3 (prohibition against torture), Article 5 (right to liberty) as well as of Article 4. Regarding trafficking and Article 4, the ECtHR stated that ‘the Court considers it 05.21 appropriate in the present case to examine the extent to which trafficking itself may be considered to run counter to the spirit and purpose of Article 4 of the Convention such as to fall within the scope of the guarantees offered by that Article without the need to assess which of the three types of proscribed conduct are engaged by the particular treatment in the case in question’ (emphasis added).42 The ECtHR then goes on to say trafficking in human beings clearly falls under Article 4,43 for which reason the case is also further examined under the section on trafficking (see below). Regarding positive obligations, the ECtHR elaborates much further on those and extends them to trafficking. Not only must states have in place criminal law measures to punish those who violate Article 4 (as per Siliadin), but they must take ‘operational measures to protect victims, or potential victims’44 and ‘put in place adequate measures regulating businesses often used as a cover for human trafficking. Furthermore, a State’s immigration rules must address relevant concerns relating to encouragement, facilitation or tolerance of trafficking’.45 ‘Impossible or disproportionate’ burdens should however not be imposed on the authorities.46 While Rantsev is not specifically about slavery and servitude, and thus does not elabo- 05.22 rate further on positive obligations regarding them, the current trend towards reading positive obligations into Article 4 generally has many consequences for EU Member States who are under a far greater obligation than initially thought to take action against human exploitation in its various forms. It could also have consequences for the Union, despite the apparent limitation in Article 51 of the Charter, in the context of the EU’s external relations. For instance, the Generalised System of Preferences (GSP) is one of the EU’s main instruments for promoting human rights and linking human and labour rights to trade policy. The GSP now allows for the withdrawal of preferences where beneficiary countries violate any of the relevant human rights conventions, one of which is the ICCPR.47 In extreme cases such a withdrawal might be considered more than merely ‘allowed’ with regard to states that practice or, more typically, tolerate slavery, servitude or, more commonly, forced labour contrary to Article 8 ICCPR (see below).48 Similarly, the fear of slavery that was raised by the applicant asylum seeker in Samba Diouf may be a harbinger of further asylum and immigration cases where the EU’s acquis in the area may be challenged as allowing for repatriation migrants into de facto circumstances of slavery or servitude (despite slavery formally being abolished in most countries).49

42

Rantsev (n 40) para 279. Ibid para 282. 44 Ibid para 286. 45 Ibid para 284. 46 Ibid para 287. 47 Regulation (EC) 980/2005 of 27 June 2005 applying a scheme of generalised tariff preferences [2005] OJ L169/1. See also the Annex to the GSP Regulation. 48 See J Orbie and O Babarinde, ‘The Social Dimension of Globalization and EU Development Policy: Promoting Core Labour Standards and Corporate Social Responsibility’ (2008) 30(3) Journal of European Integration 459, about human rights and trade/development policy. 49 See Samba Diouf, above n 13. 43

Heli Askola

111

Part I – Commentary on the Articles of the EU Charter

(b) ‘No one Shall be Required to Perform Forced or Compulsory Labour’ 05.23 Forced and compulsory labour, while serious, carry less condemnation than slavery or servitude, and often cover less permanent situations. The meaning of forced and compulsory labour harks back to the widely ratified conventions of the International Labour Organisation (ILO) on ‘forced labour’, the 1930 Forced Labour Convention (ILO Convention No 29) and the 1957 Abolition of Forced Labour Convention (ILO Convention No 105).50 Convention No 29 requires parties to ‘suppress the use of forced or compulsory labour in all its forms within the shortest possible period’ (Art 1). Article 2 defines forced or compulsory labour to mean ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’, that is, not freely chosen work. Article 2 also defines some instances that are not compulsory or forced labour.51 Convention No 105 supplements the 1930 Convention, incorporating further provisions on the abolition of certain forms of forced or compulsory labour—for instance when used as a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system (Art 1). 05.24 The prohibition against forced and compulsory labour in Article 5 must again be read in light of Article 4 of the European Convention on Human Rights, from where it has been copied. While prohibiting forced or compulsory labour in broad terms, the provision is not non-derogable and it provides, like Convention No 29, for instances that do not constitute such labour: (a) work required to be done in the ordinary course of detention or during conditional release from such detention; (b) any service of a military character or service exacted instead of compulsory military service; (c) service exacted in case of an emergency or calamity threatening the life or well-being of the community; (d) work or service which forms part of normal civic obligations. By virtue of Article 52(3) of the Charter, the meaning and scope of the Charter provision must be the same as in the ECHR. 05.25 Until recently, relatively few cases on forced and compulsory labour had been brought under Article 4 ECHR. One of these was Van der Mussele v Belgium, where a Belgian pupil avocat sought to argue that having to provide free lawyer’s services to indigent defendants was forced and compulsory labour. It was held that he had entered the profession knowing this might occasionally be required, it was part of the normal conditions of exercise of his profession, and part of ‘normal civic obligations’ allowed under Article 4(3).52 Work performed during detention has also given rise to unsuccessful attempts to raise violations of Article 4.53 More recently, in the above-mentioned 2005 case Siliadin, it was found that the applicant had been subjected to forced labour

50 Above n 8. Convention No 29 has been ratified by 177 countries, and Convention No 105 by 174 countries, including all EU Member States (May 2013). ILO also has two conventions on the abolition of child labour, C-138 Minimum Age Convention (1973) and C-182 Worst Forms of Child Labour Convention (1999). All four are so-called ‘core’ conventions of the ILO. 51 Compulsory military service, normal civic obligations, compulsory labour as a consequence of a conviction in a court of law, work performed in cases of emergency and minor communal services. 52 Van der Mussele v Belgium, App no 8919/80. See also Janis, Kay and Bradley (n 22) and Harris, O‘Boyle and Warbrick (n 22). 53 Van Droogenbroeck v Belgium, App no 7906/77. See International Labour Office, General Survey (n 17) for a discussion of work performed by prisoners.

112

Heli Askola

Art 5 – Prohibition of Slavery and Forced Labour

(as well as servitude). The Court relied on ILO Convention No 29, and said that considering her young age and her irregular immigration status, the applicant was performing ‘involuntary work exacted under the menace of any penalty’ (the penalty in this case being her fear of arrest because of her irregular status).54 More cases on migrant domestic work and the positive obligations of states have recently been decided. CN and V v France55 involved the failure of the French criminal justice system to protect the applicant who had had domestic labour extracted under the threat being returned to her country of origin. CN v United Kingdom56 turned on the UK’s failure to have in place specific criminalisation of servitude and forced labour. As discussed under the section on slavery and servitude, the expansion of posi- 05.26 tive obligations will have consequences for Member States and possibly also for the EU, though the implications regarding forced labour were not considered in detail in Siliadin or Rantsev. For instance, the Directive on employer sanctions,57 which prohibits the employment of illegally staying third country nationals, requires Member States to put in place mechanisms for third country nationals to claim any outstanding remuneration from their employers (Art 6). It must also be a criminal offence (not just an infringement) to employ persons in particularly exploitative working conditions or to employ victims of trafficking in human beings (Art 9). It remains to be seen whether these measures go far enough. Also the EU’s role as a norm exporter may again prove to be relevant in the context of development aid or the Generalised System of Preferences (and this is indeed more likely regarding forced labour, considering how much more widespread it is compared to slavery or servitude). GSP preferences can be withdrawn in circumstances including the practice of any form of forced labour as defined by ILO Conventions.58 In practice, GSP preferences have so far only been withdrawn once because of systematic use of forced labour, from Myanmar in 1997.59 (c) ‘Trafficking in Human Beings is Prohibited’ Trafficking in human beings is the most complex of the practices mentioned in Article 5. 05.27 Until 2000, there was no commonly accepted definition of trafficking, but the Palermo Protocol defined it as follows: ‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.60

54

On this see Siliadin (n 29) para 113–20. Above n 38. 56 CN v United Kingdom, App no 4239/08 (Judgment, 13 November 2012). 57 Directive 2009/52/EC providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals [2009] OJ L168/24. 58 The annex to the GPS Regulation mentions both Convention No 29 and Convention No 105. 59 The EU action followed action initiated by the ILO. The EU is, since September 2012, considering reinstating trade preferences to Myanmar. 60 Art 3(a) of the Palermo Protocol. 55

Heli Askola

113

Part I – Commentary on the Articles of the EU Charter

05.28 The definition of the Palermo Protocol comprises three elements—the ‘action’ (recruitment, transportation, transfer, harbouring or receipt of persons), the ‘means’ (threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of a position of vulnerability or of the giving or receiving of payments to person having control), and the ‘purpose’ (exploitation, including exploitation of prostitution, other sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, or the removal of organs). All three elements have to be made out in order for the activity in question to constitute human trafficking. Trafficking is thus a complex legal construction that goes beyond slavery, servitude and forced labour to target the processes that lead to an exploitative situation. An exploitative situation includes but is not limited to, slavery, servitude and forced labour, while sexual exploitation is commonly believed to be the most common end-purpose of trafficking.61 Regardless of its complexity, the definition has been hailed a milestone, and the Palermo Protocol as an important first step in addressing trafficking through a widespread consensus.62 Trafficking is in many ways more controversial than the other aspects of Article 5 of 05.29 the Charter, because it raises contested issues of sexual morality, gender relations and the treatment of irregular migrants who have been exploited as part of their migration journey. The Palermo Protocol is primarily a criminal justice instrument targeting trafficking as a form of organised crime, strengthening the law enforcement provisions related to trafficking. ‘Trafficking in human beings is prohibited’, as per Article 5 of the Charter, reflects the same emphasis, focusing on prohibition. Trafficked persons are, however, often vulnerable migrants with an irregular migration status in the destination country, making their situation precarious and their need for protection and assistance easily ignored by destination states.63 Trafficked migrants are often not recognised as victims of a serious crime, but detained as irregular (or smuggled) migrants, without access to assistance and services (for instance legal assistance and medical care), and then removed, sometimes to face potential harm from their traffickers. They can also be prosecuted for immigration violations or involvement in prostitution. However, the Palermo Protocol contains only ‘soft’ and mostly optional provisions to improve the protection of trafficked persons.64 In Europe, the adoption of the Palermo Protocol prompted further activity both by 05.30 the European Union and the Council of Europe. The EU’s Framework Decision of 2002 first criminalised trafficking at the EU level as a response to a generally perceived need to harmonise criminal definitions and sanctions.65 It did not, however, deal with protecting the rights of trafficked persons (and nor does Article 5 of the Charter mention

61 See eg United Nations Office on Drugs and Crime (n 17). On the controversies over ‘sexual exploitation’ in the definition, see A Gallagher, ‘Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling: A Preliminary Analysis’ (2001) 23(4) Human Rights Quarterly 975; Sullivan (n 16). 62 About the negotiations that lead to the compromise definition, see Gallagher (n 61). 63 MB Dembour and T Kelly (eds), Are Human Rights for Migrants? (Abingdon, Routledge, 2011). For an eloquent elaboration on the dual nature of the trafficked migrant as both a victim and a perpetrator, see Berman, ‘Biopolitical Management’ (n 18). 64 See Arts 6–8 of the Palermo Protocol; also Gallagher (n 61); R Piotrowicz, ‘Irregular Migration Networks: The Challenge Posed by People Traffickers to States and Human Rights’ in B Bogusz et al (eds), Irregular Migration and Human Rights: Theoretical, European and International Perspectives (Leiden, Martinus Nijhoff, 2004). 65 Above n 1.

114

Heli Askola

Art 5 – Prohibition of Slavery and Forced Labour

victims at all). The Framework Decision was followed by the 2004 Directive on shortterm residence permits to third country nationals who are victims of trafficking.66 This Directive aimed to encourage victims to cooperate with law enforcement authorities by providing some of them temporary residence permits and some assistance. Because of concerns that it would be used as a backdoor by irregular immigrants, it adopted a minimalist version of the national regimes already established in some Member States. It is not a victim protection measure and has been criticised for its low standards regarding the treatment of victims.67 The modest impact of the instrument even as an instrument of law enforcement has been acknowledged.68 The Council of Europe has sought to add value to the general criminal justice 05.31 cooperation framework through a more human rights sensitive approach. The 2005 Council of Europe Convention on Action Against Trafficking in Human Beings69 takes the Palermo Protocol’s definition as the starting point and builds on its criminal justice approach, but provides more attention to the protection of and assistance to victims through more generous and less discretionary provisions on the treatment of victims. The states are obliged, for instance, to ensure that they have a proper victim identification process in place, to provide basic assistance to victims and a 30-day ‘recovery and reflection period’ during which time trafficked persons will be given support and assistance and permitted to decide whether or not to cooperate with law enforcement.70 The Trafficking Convention also provides for a monitoring body established to supervise the implementation of the obligations of the Convention, Group of Experts on Action against Trafficking in Human Beings (GRETA).71 The Council of Europe activities aiming to shift the emphasis of anti-trafficking 05.32 action have recently prompted the EU to adopt a so-called Recast Trafficking Directive that replaces the 2002 Framework Decision.72 The Directive widens the definition of trafficking (to include begging, exploitation of criminal activities and removal of organs, Article 2), provides for increased sentences (Art 4), widens jurisdiction (Art 10) but also includes new provisions regarding victims of trafficking (Arts 8, 11–17).73 The influence of the Council of Europe Trafficking Convention is visible, for instance in the provisions on assistance and support for a trafficked persons not being conditional on the victim’s willingness to cooperate in the criminal investigation and on the establishment of identification procedures (Art 11). Many of the amendments on the position of trafficked persons, which now apply also to those Member States not party to the Council of Europe Convention, were adopted through pressure from the European Parliament.74

66

Above n 3. Piotrowicz (n 64); Gallagher (n 12); Askola, Legal Responses (n 18). 68 Report from the Commission to the European Parliament and the Council on the application of Directive 2004/81 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities, COM (2010) 493, 15 October 2010. 69 Above n 12. 70 See Arts 10–17 of the Convention. 71 See Arts 36–38 of the Convention. 72 Above n 2. 73 Some of these target child victims, while some are applicable to all trafficked persons. 74 S Peers, ‘Legislative Update EU Immigration and Asylum Law 2010: Extension of Long-term Residence Rights and Amending the Law on Trafficking in Human Beings’ (2010) 13(2) European Journal of Migration and Law 201. 67

Heli Askola

115

Part I – Commentary on the Articles of the EU Charter

While the EU’s approach is still focused on criminal justice, the Recast Directive constitutes an improvement. 05.33 However, as discussed above, the case of Rantsev v Cyprus and Russia has in some ways superseded some of the EU legislative developments. It will be remembered that in Rantsev the circumstances implied the trafficking for sexual exploitation of a young Russian woman to Cyprus. After she had run away from the cabaret where she had been working, she was found by her employers and taken to a police station (because her employer now wanted her deported so that he could replace her). The police found no immediate grounds to deport her, but instead of releasing her, they handed her over to the cabaret’s owner, who took her to an apartment belonging to an employee. She was later found dead below the balcony of the same apartment. The inquest in Cyprus found she had died as a result of injuries sustained when she jumped from the balcony. No third party involvement was investigated. 05.34 As mentioned above, the ECtHR found there was no need to discuss the concepts of slavery, servitude and forced/compulsory labour separately in these circumstances. It stated that ‘trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership. It treats human beings as commodities to be bought and sold and put to forced labour, often for little or no payment, usually in the sex industry but also elsewhere’.75 The teleological finding that ‘trafficking itself, within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention, falls within the scope of Article 4 of the Convention’76 allows the Court then to hold that states have positive obligations under Article 4 to combat trafficking and to elaborate on the measures states must take. These include, as above, a duty to penalise and prosecute but also to regulate businesses used as a cover for human trafficking, to address concerns relating to encouragement, facilitation or tolerance of trafficking via immigration rules, to protect victims or potential victims and to cooperate effectively with authorities of other states.77 Cyprus had inadequately protected Ms Rantseva while she was still alive and failed to punish those responsible for her exploitation and ill treatment;78 Russia too had failed to effectively investigate suspicions of trafficking.79 05.35 Despite its important ruling on positive obligations, the Court is conceptually unhelpful in conflating trafficking with the other aspects of Article 4 and not recognising that trafficking consists of action and means as well as (intended) exploitation.80 It is not established whether the facts would also sustain a claim of slavery and/or servitude and/ or forced labour. The blanket statement that Article 4 now covers trafficking also raises

75

Rantsev (n 40) para 281. Ibid para 282. 77 Ibid paras 284–89. The Court relied on both the Palermo Protocol and the 2005 Council of Europe Convention to support its findings. 78 Ibid paras 290–300. See GRETA, Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Cyprus (Strasbourg, GRETA, 2011) for the current measures taken by Cyprus, and their (in)adequacy. 79 Ibid paras 301–09. 80 Allain is critical of the Court’s approach, which he thinks ‘has muddied the waters as to where legal distinction should be made regarding various types of human exploitation’. J Allain, ‘Rantsev v Cyprus and Russia: The European Court of Human Rights and Trafficking as Slavery’ (2010) 10(3) Human Rights Law Review 546, 546. 76

116

Heli Askola

Art 5 – Prohibition of Slavery and Forced Labour

some doubt about the scope of the Court’s broad approach to states’ duties under Article 4. As Craig notes, ‘the line between prohibition and positive action can be a fine one’.81 What is clear is that Rantsev has significantly pushed the boundaries here, also potentially affecting EU measures in this area. ‘Trafficking in human beings is prohibited’, as per Article 5(3) of the Charter, implies a more narrow criminal justice approach—as in Siliadin—than that taken in Rantsev. Article 52(3) of the Charter provides that rights covered both in the Charter and the ECHR should be the same in ‘meaning and scope’. In Rantsev, trafficking is held to fall under Article 4 ECHR in general and the statement in Article 5(3) of the Charter cannot limit the scope of Article 4. If for instance the statement in Rantsev that ‘a State’s immigration rules must address relevant concerns relating to encouragement, facilitation or tolerance of trafficking’82 is taken seriously, it may pose a challenge to many EU Member States restrictive policies regarding immigration from outside the Member States and indeed to the EU’s own approach as well (see also below the next section).83 In some ways the approach in Rantsev, taken at face value, implies a small step 05.36 towards addressing a problem powerfully expressed by Gallagher: States are able to record relatively high and improving levels of conformity with international legal rules related to trafficking in large part because those rules, in the end, do not demand a great deal. They request but do not demand that States take positive action to address the root causes of trafficking, not least ‘the merciless Moloch of capitalism that fattens on underpaid labour.’ They acknowledge the link between trafficking and the labor migration that greases the wheels of the global economy without requiring States to provide individuals with safe and legal avenues through which to move. They affirm the principle of non-discrimination without insisting that the rules, attitudes, and practices that render women, children, and migrants most vulnerable to trafficking-related exploitation be immediately and comprehensively dismantled. It is currently possible for a State to find itself within the letter, if not the spirit, of its international legal obligations merely by criminalizing trafficking, diligently investigating cases that come to its attention, cooperating with other States when requested, and taking at least some measures to support and protect identified victims. While the present study has succeeded in fleshing out these basic obligations, they do not, even in expanded form, amount to terribly much.84

IV. Limitations and Derogations Some of the issues of limitations and derogations have been dealt with above, but for the sake of clarity this section briefly revisits the topic with reference to Articles 52 and 53 of the Charter. Article 52(1) requires that any derogations to Charter rights to fulfil the criteria of legality, proportionality and necessity. Article 52(2) provides that rights based on the Treaties shall be exercised under the conditions and within the limits defined by

81

P Craig, EU Administrative Law (Oxford, Oxford University Press, 2012), 467. Rantsev (n 40) para 284. 83 Note also that Art 79 TFEU allows policy to be adopted ‘for the prevention of, and enhanced measures to combat ... trafficking in human beings’. 84 A Gallagher, The International Law of Human Trafficking (Cambridge, Cambridge University Press, 2010), 501. See also Berman, ‘Biopolitical Management’ (n 18), who also unpacks the various ways in which the narrative of anti-trafficking is limiting. 82

Heli Askola

117

05.37

Part I – Commentary on the Articles of the EU Charter

those Treaties. Article 52(3) provides for the same ‘meaning and scope’ for ECHR rights which are also recognised in the Charter. Article 53 provides that nothing in the Charter shall be interpreted as restricting or adversely affecting human rights as recognised for instance in the ECHR. 05.38 The prohibition of slavery in Article 4 of the ECHR is absolute and the prohibitions against slavery and servitude are non-derogable and may not even be suspended during public emergencies. Because of Article 52(3), this will presumably be the case for the relevant parts of Article 5 of the Charter as well, regardless of Article 52(1).85 Regarding forced and compulsory labour, there are four categories of obligatory service which are permitted under Article 4(3) of the ECHR. Though these have been cut from Article 5 of the Charter, by virtue of Article 52(3) they will also apply to Article 5.86 It is unlikely that further limitations than those explicitly allowed by Article 4 ECHR would be justifiable under Article 52(1) with regard to forced or compulsory labour. 05.39 As to trafficking, the current situation is intriguing, as discussed above. Rantsev means that trafficking now falls under Article 4 ECHR, despite there being no reference to trafficking in Article 4 ECHR at all, and that a host of positive obligations apply. Article 5(3) of the Charter, on the other hand, says that ‘Trafficking in human beings is prohibited’, which entails, as discussed, arguably a more narrow (criminal justice) approach to trafficking that simply requires effective criminalisation. By virtue of Article 52(3) and Article 53 of the Charter it would seem that trafficking is now already included under Article 5 of the Charter regardless of the specific obligation in Article 5(3) and that the narrower statement of Article 5(3) of the Charter cannot limit the scope of Article 5, as it is derived from Article 4 ECHR. The current scope of the Treaty competence on trafficking is arguably somewhat wider than Article 5(3), so in line with Article 52(2), there is some scope to try to argue that effective prevention of trafficking requires more extensive measures than those currently adopted.

V. Remedies 05.40 The issue of remedies is difficult in the context of practices falling under Article 5, as has become particularly evident in connection with trafficking. Many of these issues also apply to slavery, servitude and forced labour, especially where victims of such practices are third country nationals who are in an irregular migration situation. It has become clear that trafficked persons (and other victims of exploitation) are rarely seen as victims and rarely receive adequate remedies.87 Despite the formal availability of (at least some) remedies, many trafficked persons are never identified, they often lack information about their rights and routine detention and removal of irregular migrants (in line with the so-called Returns Directive88) means accessing remedies can 85

Explanations Relating to the Charter of Fundamental Rights [2007] OJ C303/17. Ibid. 87 A Gallagher, The right to an effective remedy for victims of trafficking in persons: A Survey of International Law and Policy. Consultation of the United Nations Special Rapporteur on Trafficking in Persons, Especially Women and Children on the right to an effective remedy for trafficked persons (Bratislava, OHCHR, 2010), 15. 88 Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L348/98. About the directive, see H Askola, ‘Illegal Migrants, Gender and Vulnerability: the Case of the EU’s Returns Directive’ (2010) 18(2) Feminist Legal Studies 159. 86

118

Heli Askola

Art 5 – Prohibition of Slavery and Forced Labour

be very difficult, especially when persons are returned to their country of origin (some trafficked persons are also at risk of further human rights violations and re-trafficking after repatriation). Other contributing factors are inadequate legal frameworks and failure to provide victims with information about their rights, legal assistance and support.89 Therefore remedies need to be thought about not only in terms of restitution (for instance rehabilitation) and compensation (for instance from the offender), but in terms of whether a right to remain in the country of destination is a determining issue in terms of access to remedies. The most extensive instrument on remedies in the trafficking context is the Council 05.41 of Europe Convention (the Palermo Protocol, in contrast, is quite equivocal about remedies90). The Council of Europe Convention requires that victims have a right to monetary compensation from convicted traffickers in respect of both material injury (for instance medical costs) and non-material injury (for example suffering); it also requires states to take steps to guarantee the compensation of victims. Insofar as the ECtHR is using the Council of Europe Convention as its guideline on the treatment of victims and the scope of positive obligations, it makes the existing EU measures in this area—in particular the Directive on short-term residence permits91 but also the Directive on compensation of crime victims92 and the Directive establishing minimum standards on the rights, support and protection of victims of crime93—seem rather modest. The Recast Trafficking Directive will make some improvements in this regard, especially concerning child victims.94 However, considering the limits of European competence, regarding remedies, Rantsev will largely affect the Member States.

89 See generally JN Ezeilo, Report of the Special Rapporteur on trafficking in persons, especially women and children, A/66/283 (2011). 90 The Palermo Protocol has very few provisions on the treatment of victims and they remain largely discretionary—it merely requires, in Art 6, states eg to consider implementing measures to provide for the physical, psychological and social recovery of victims and to ensure that their domestic legal systems contain measures that offer victims of trafficking the possibility of obtaining compensation for damage suffered. 91 Above n 3. 92 Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims [2004] OJ L261/15. 93 Directive 2012/29/EU of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime [2012] OJ L 15/57. 94 Above n 2.

Heli Askola

119

Article 6 Article 6 Right to Liberty and Security Everyone has the right to liberty and security of the person.

Text of Explanatory Note on Article 6 The rights in Article 6 are the rights guaranteed by Article 5 of the ECHR, and in accordance with Article 52(3) of the Charter, they have the same meaning and scope. Consequently, the limitations which may legitimately be imposed on them may not exceed those permitted by the ECHR, in the wording of Article 5: ‘1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority of reasonable suspicion of having committed and offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.’ The rights enshrined in Article 6 must be respected particularly when the European Parliament and the Council adopt legislative acts in the area of judicial cooperation in criminal matters, on the basis of Articles 82, 83 and 85 of the Treaty on the Functioning of the European Union, notably to define common minimum provisions as regards the categorisation of offences and punishments and certain aspects of procedural law.

Part I – Commentary on the Articles of the EU Charter

Select Bibliography M Mancovei, The Right to Liberty and Security of the Person: a Guide to the Implementation of Article 5 of the European Convention on Human Rights, Human Rights Handbooks, No 5 (Strasbourg, Council of Europe Publishing, 2004). R Powell, ‘The right to security of person in European Court of Human Rights jurisprudence’ [2007] EHRLR 649. S Trechsel, Human Rights in Criminal Proceedings (Oxford, OUP, 2005). D Wilsher, Immigration Detention: History, Law, Politics (Cambridge, CUP, 2012).

A. Field of Application of Article 6 06.01 Under Article 51 of the Charter, Article 6 is addressed to the institutions of the EU but binds the Member States only when they are implementing Union law. For a long period following its inception, neither the law of the European Union nor its institutions had much relevance to the issue of liberty of the person. The fields covered by EU law were remote from the exercise of sovereign power in policing, security and immigration. Even when some competence in these fields was acquired, the Union proceeded outside the legal mainstream under the second pillar of the Maastricht Treaty. After, successively, the Amsterdam, Nice and Lisbon treaties, however, immigration, asylum and aspects of criminal justice have come to fall under both the ordinary legislative procedure and the jurisdiction of the Court of Justice. With the increasing integration of these functions provided for by the creation of the Area of Freedom, Security and Justice, there are now significant fields where the scope of Union law extends to matters that potentially engage Article 6. The Union itself has a number of institutions, which, whilst not physically engaged in arrest or detention, nevertheless direct policies and actions that may lead to such measures, particularly in relation to cross-border crime and the execution of the European Arrest Warrant. These include Eurojust, European Police Office (Europol), European Judicial Network, the putative European Public Prosecutor and the External Borders Agency (Frontex). Most importantly, Member States also now act to arrest and detain persons pursuant 06.02 to provisions of Union law, most obviously in the field of migration and asylum, but also during cooperation in criminal proceedings. The facilitation of the return of persons to other Member States to serve terms of imprisonment or to face potential detention under immigration powers depends upon mutual respect for detention regulations and practices. Whilst initiatives relating to arrest and detention at Council of Europe level have been long-standing, the EU has itself increased policies to harmonise such standards as cross-border cooperation has proceeded. Following adoption by the Council of the EU of a ‘Roadmap’1 for strengthening the rights of suspects, the European Council’s Stockholm programme in justice and home affairs made this an important goal of

1 Council of the EU, Resolution on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings [2009] OJ C295/1.

122

Daniel Wilsher

Art 6 – Right to Liberty and Security

policy.2 The Commission is also consulting on what further detention measures are needed to harmonise standards and facilitate prisoner returns.3 Finally, there has always been scope for the fundamental rights protection, now embodied in the Charter, to apply to migrant EU citizens and their family members who find themselves subject to detention in another Member State under the principle set out in Rutilli.4 This principle should extend to long-term resident non-EU citizens, who are increasingly integrated with Union citizens pursuant to EU secondary legislation. The specific instruments where Member States implement Union law pertinent to 06.03 Article 6 are increasingly numerous. In the criminal field, the most important measure is the Framework Decision on the European Arrest Warrant5 which authorises arrest and detention pending return of criminal suspects and those convicted of crimes to other Member States. Although not yet determined by the Court of Justice specifically in relation to detention, domestic proceedings regarding the European Arrest Warrant do engage the Charter.6 The Framework Decision on Mutual Recognition of Criminal Convictions requires that the Member State of residence take back and imprison those persons convicted and deprived of their liberty in other Member States.7 The Framework Decision on Supervision Orders8 provides a mechanism for mutual recognition of alternatives to custodial orders made in respect of non-residents who are prosecuted or convicted in other Member States. Pursuant to the Roadmap for strengthening procedural rights of suspects, two directives have been passed which create harmonised standards in relation to access to interpreting services and information for persons arrested pursuant to criminal proceedings and under the European Arrest Warrant.9 Finally, under the ne bis in idem provisions of the Schengen Implementing Convention (Arts 54–56), when a Member State proposes to sentence a defendant who has already been convicted for the same acts in another Member State, they must reduce the sentence to take account of time already served. In the field of migration there are also a great number of measures impinging upon 06.04 personal liberty. For Union citizens and their families of any nationality, the Citizens

2 European Council, ‘The Stockholm Programme—an open and secure Europe serving and protecting citizens’ [2010] OJ C115, 3.2.6, which stated that ‘efforts should be undertaken to strengthen mutual trust and render more efficient the principle of mutual recognition in the area of detention’. 3 European Commission, ‘Strengthening mutual trust in the European judicial area—a Green Paper on the application of EU criminal justice legislation in the field of detention’ COM (2011) 327 final. 4 Case C-36/75 Rutilli v Minstre de l’Intérieur [1975] ECR 1219. 5 Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States. 6 Case C-261/09 Gaetano Mantello ECR [2010] I-11477 and Case C-396/11 Ciprian Vasile Radu (Judgment of the Grand Chamber of 29 January 2013). 7 Framework Decision 2008/909/JHA on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of enforcement in the European Union [2008] OJ L327/27. 8 Framework Decision 2009/829/JHA on the application between Member States of the European Union, of the principle of mutal recognition too decisions on supervision as an alternative to provisional detention [2009] OJ L294/20. 9 Directive 2010/64 on the right to interpretation and translation in criminal proceedings [2010] OJ L280; Directive 2012/13 on the right to information in criminal proceedings [2012] OJ L142/1. A further Directive has been proposed on access to a lawyer for suspects and those subject to the EAW: COM (2011) 326(3) Proposal for a Directive on the right of access to a lawyer in criminal proceedings and the right to communicate upon arrest.

Daniel Wilsher

123

Part I – Commentary on the Articles of the EU Charter

Directive10 impliedly authorises detention pursuant to deportation or removal. In the field of asylum there are four measures pursuant to the Common European Asylum policy which bear upon personal liberty. The Asylum Reception Conditions Directive11 partially regulates freedom of movement and detention during the asylum procedure. The Dublin II Regulation12 determines the criteria for returning asylum-seekers to other Member States to consider their asylum claims and indirectly bears upon their rights pending such return. The Refugee Status Directive13 determines aspects of the recognition process for asylum-seekers and therefore impinges on their potential liability to detention during the procedure. This Directive also grants a right of free movement to those recognised as refugees or given subsidiary protection. Finally, the Asylum Procedures Directive governs appeal rights in refugee status determination, but also mentions detention.14 The asylum measures have been the subject of negotiation to amend them and important new provisions on detention have been inserted into the final drafts of the new Directive on Reception Conditions and the Dublin II Regulation.15 06.05 In relation to non-asylum migration measures, the most significant measure authorising detention is that in relation to irregular migrants under the Returns Directive,16 which creates a detailed legal code to ensure the removal of migrants in respect of whom a removal order has been made. There is also an implied power to use force in the Common Borders Code.17 The Long-residence Directive confers pow-

10 Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/ EEC and 93/96/EEC ([2004] OJ L158/77, and corrigenda [2004] OJ L229/35 and [2005] OJ L197/34). 11 Directive 2003/9/EC laying down minimum standards for the reception of asylum-seekers [2003] OJ L31/18. 12 Regulation (EC) 343/2001 of 18 February 2003 establishing the criteria and mechanisms for determining the Member States responsible for examining an asylum application lodged in one Member States by a third-country national [2003] OJ L50/1. 13 Directive 2011/95/EU on minimum standards for the qualification and status of third country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons who eligible for subsidiary protection and for the content of the protection granted [2011] OJ L337/9. In relation to the UK and Ireland, which did not opt in to the newer version, the old version applies: Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [2004] OJ L304/12, and corrigendum [2005] OJ L204/24. 14 Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status [2005] OJ L326/13, and corrigendum [2006] OJ L236/36. 15 Position of the Council at first reading with a view to the adoption of a Directive laying down standards for the reception of applicants for international protection (recast), 2008/0244 (COD), 14 December 2012. Position of the Council at first reading with a view to the adoption of a Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), 2008/0243 (COD), 14 December 2012. The Procedure Directive is also being renegotiated, but the proposals in relation to detention are limited to cross-referencing the grounds of detention to those in the proposed Reception Conditions. See European Commission, Amended proposal for a Directive of the European Parliament and of the Council on common procedures for granting and withdrawing international protection status, COM (2011) 319 final, Art 28. 16 Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L348/98. 17 Regulation 562/2006 of 15 March 2006 establishing a community Code on the rules governing the movement of persons across borders (Schengen Borders Code).

124

Daniel Wilsher

Art 6 – Right to Liberty and Security

ers of expulsion and/or withdrawal of residence permits on public policy grounds, and therefore impliedly authorises detention.18 Similar considerations apply to the Family Reunification Directive,19 which gives powers to expel third-country national family members.

B. Interrelationship of Article 6 with Other Provisions of the Charter The most obvious general point of contacts between Article 6 and other parts of the 06.06 Charter are in relation to Article 1, the obligation to respect and protect human dignity, and Article 4, the prohibition on torture and inhuman or degrading treatment or punishment. This is because, according to the jurisprudence of the European Court of Human Rights, as explained below, the conditions of detention themselves affect the legality of detention. The distinction between a restriction on liberty and a deprivation of liberty has yet to be explored in Union law. There are Charter provisions which are pertinent to this issue. Specifically for Union citizens, Article 45(1) grants the right to move and reside freely within the Member States. This provision must however be read in light of the Treaty restrictions on the free movement rights of EU citizens which do permit exclusion or deportation in certain cases. Ancillary detention is permitted in such cases. For non-EU citizens, Article 45(2) says that freedom of movement and residence may be granted, in accordance with the treaties, to such persons who are legally resident in a Member State. The Charter also acknowledges the right of asylum in Article 18 and this engages those aspects of refugee law which impinge upon detention. The prohibition on collective expulsion of aliens in Article 19(1) means that detention cannot be used for this purpose. The right of children to have their best interests made a primary consideration and to maintain contact with their parents, both of which are acknowledged in Article 24(2)(3), are relevant to detention practice. The common connection between arrest, detention and the rule of law, particularly 06.07 in the context of criminal prosecutions, means that the Charter provisions under the ‘Justice’ Chapter are also particularly relevant. Article 47 requires that persons whose rights are violated must have an effective remedy and a fair hearing within a reasonable time. Article 48 affirms the presumption of innocence for detainees who have been charged. Article 49 requires that no one should be punished without law. Article 50 prohibits double jeopardy. In applying this prohibition, regard must be had to the more detailed ne bis in idem rules of the Schengen Implementing Convention (Arts 54–56), which require time served already to be taken into account. Detainees may seek to invoke any of these Charter provisions to challenge aspects of their prosecution and thereby, in an ancillary manner, their detention. However, in general terms, detention is

18 Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents [2004] OJ L16/44 Arts 6, 12, 17 and 22 set out substantive and procedural protection against expulsion or deportation that mirrors some of the concepts found in relation to EU citizens. For a detailed analysis see S Peers, ‘Implementing Equality? The Directive on Long Term Resident Third Country Nationals’ [2004] 29(4) European Law Review 437. 19 Directive 2003/86/EC on the right to family reunification [2003] OJ L251/1.

Daniel Wilsher

125

Part I – Commentary on the Articles of the EU Charter

not unlawful retrospectively simply because the prosecution or conviction which led to it is subsequently withdrawn or quashed.

C. Sources of Article 6 Rights I. ECHR 06.08 Article 6 corresponds to Article 5 ECHR, and Article 52(3) Charter states that it must be read in a manner consistent with Article 5 ECHR. This means that only the specific justifications for detention that are listed are permitted under Article 6, not the broader public policy justifications implicit in Article 52 (see the explanations to the Charter). Article 3—the prohibition on torture and inhuman or degrading treatment—also informs the regulation of detention; conditions of detention that fall below appropriate standards for the detainee may also generate an infringement of Article 5. Article 2 to Protocol No 4 to the ECHR provides that ‘everyone lawfully’ within the territory of a state has the right to liberty of movement and choice of residence, subject only to necessary and proportionate restrictions. Thus alternative measures restrictive of liberty falling short of detention, such as reporting and residence requirements, are also subject to legal regulation under the Protocol. All Member States (except Greece and the United Kingdom) have ratified this Protocol; however, Article 45(1) of the Charter confers this right only upon all Union citizens. By contrast, under Article 45(2), third country nationals must be legally resident and Member States are given a discretion as to whether to grant such lawful residents this right. There is thus some scope for conflict between the Charter and the Protocol, despite the obvious common heritage. Article 4 Protocol No 4 provides a prohibition on the collective expulsion of aliens. This implicitly means that detention to effect collective deportation is also not permitted. Article 19(1) of the Charter clearly embodies this prohibition. The case law of the ECtHR on Article 5 ECHR is particularly pertinent. It is notable that the Strasbourg Court has, in respect of immigration and extradition cases at least, adopted a different approach to that followed by the Human Rights Committee in relation to Article 9 ICCPR.

II. UN Treaties 06.09 The embodiment of this most fundamental right is found in Article 9 Universal Declaration of Human Rights (UDHR): ‘No one shall be subjected to arbitrary arrest, detention or exile’. This is complemented by UDHR Article 13(1), which confirms that ‘Everyone has the right to freedom of movement and residence with the borders of each State.’ These basic ideas were developed in Article 9 International Covenant on Civil and Political Rights (ICCPR), and in particular Article 9(1): ‘Everyone has the rights to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.’ The interconnection with conditions of detention is made clear in Article 10 ICCPR—the right of all detained persons to be treated with humanity and respect for the inherent dignity of the human person, 126

Daniel Wilsher

Art 6 – Right to Liberty and Security

and the obligation to separate accused from convicted prisoners. Article 12 ICCPR confirms the right of all persons lawfully within the territory to freedom of movement. The jurisprudence of the Human Rights Committee on the ICCPR, arising in relation to individual complaints under Article 9, has been extensive and influential globally, if not in Europe.20 The mechanisms to combat torture and inhuman and degrading treatment in the 06.10 Convention Against Torture (CAT) are very pertinent to detention. The monitoring procedure set up by the Optional Protocol to the CAT provides for more detailed visits to detention centres. The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment 1988 provides a comprehensive code covering the due process rights of detainees whilst the conditions of detention are regulated by the Basic Principles for the Treatment of Prisoners 1990. Also important have been the monitoring reports and standard-setting by the UN Working Group on Arbitrary Detention, whose remit covers all the appropriate international instruments relating to liberty of the person.21 As regards the specific position of children, Article 3 Convention on the Rights of 06.11 the Child (CRC) confirms that in all actions concerning children, the best interests of the child shall be a primary consideration. This is given specific expression in Article 37 CRC, which sets out a prohibition on arbitrary detention of children but also that detention is to be used only as measure of last resort and for the shortest appropriate period of time.

III. Council of Europe Treaties Pursuant to Articles 1 and 2 European Convention for the Prevention of Torture and 06.12 Inhuman or Degrading Treatment or Punishment, there is an obligation on states to allow visits by monitors to all persons deprived of their liberty by a public authority. The monitoring reports of the European Committee for the Prevention of Torture are important indicators of evolving standards, both as regards due process and conditions of detention. They have been summarised into general standards.22 In relation to the development of human rights standards amongst Council of Europe members, both the Committee of Ministers and Parliamentary Assembly have issued important guidance in relation to detention. Most importantly, for those convicted of crimes or on remand pending trial, the European Prison Rules provide a very detailed set of standards of treatment and due process rights.23 For immigration and asylum detainees, important

20 See A Conte and R Burchill, Defining Civil and Political Rights: the Jurisprudence of the United Nations Human Rights Committee, 2nd edn (London, Ashgate, 2009). The crucial decision arose in A v Australia, Communication No 560/1993, UN Doc CCPR/C/59/D/560/1993 (30 April 1997), in which the Human Rights Committee concluded that immigration detention must be necessary and proportionate to meeting the needs of immigration control or public order. 21 For a summary of WGAD’s approach to the detention of immigrants and asylum-seekers, see Deliberation No 5, Report of WGAD, Commission on Human Rights, 56th Session, E/CN.4/2000.4. 22 Committee for the Prevention of Torture, The CPT Standards [CPT/Inf/E (2002) 1—Rev.2006]. 23 Council of Europe, Recommendation Rec (2006)2 of the Committee of Ministers to Member States on the European Prison Rules. For a detailed history see D van Zyl Smit and A Snacken, Principles of European Prison Law and Policy: Penology and Human Rights (Oxford, Oxford University Press, 2009).

Daniel Wilsher

127

Part I – Commentary on the Articles of the EU Charter

guidelines have also been issued.24 Similarly the European Commissioner for Human Rights has produced a number of important monitoring reports on individual countries’ detention practices.

IV. Other Sources 06.13 National constitutions all contain a prohibition on arbitrary detention in various forms, as this is one of the most well-established fundamental rights. The Convention Relating to the Status of Refugees (CSR) contains a number of important references to liberty of the person which pertinent to both asylum-seekers and those with full refugee status. Thus Article 9 confirms that states may take ‘provisional measures’ (including detention) essential to national security pending recognition of refugees. Under Article 26 CSR there is a right to freedom of movement for refugees lawfully in the territory of a state. Under Article 31 CSR (1) no penalties may be imposed on refugees unlawfully in the country of refuge coming directly on account of illegal entry and (2) restrictions on movement of such refugees must be necessary. Guidelines on detention of asylumseekers have been produced by the Executive Committee that oversees the CSR and by the United Nations High Commissioner for Refugees.25

D. Analysis I. General Remarks 06.14 A right to liberty is one of the oldest and most well-established within liberal societies. It has close links with the establishment of the rule of law in relation to the exercise of governmental power over civil society. As such, the right to liberty is better viewed as a right not to be detained arbitrarily. Originally this was conceived of solely in procedural terms: detention must follow due process of law. In modern human rights law, however, the right increasingly comprises both procedural and substantive components. The state is obliged to detain only according to transparent and clear legal authority, whilst the grounds of detention should generally be linked to sufficiently pressing goals of public policy to support removal of liberty. Furthermore, the conditions of detention themselves and their effects upon particular detainees have increasingly come to be evaluated against the nature of the state’s public policy goals using proportionality analysis.

24 Council of Europe, Recommendation Rec (2003)5 of the Committee of Ministers to Member States on measures of detention of asylum seekers. Committee of Ministers, Twenty guidelines on force return (2005). Parliamentary Assembly Recommendation 1547 (2002) Expulsion procedures in conformity with human rights and enforced with respect for safety and dignity. Parliamentary Assembly Resolution 1707 (2010) on detention of asylum-seekers and irregular migrants in Europe. Recommendation Rec (2003)5 was cited by the Court of Justice in Case C-61/11 PPU El Dridi [2011] 3 CMLR 6 [43]. 25 Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention (Geneva, UNHCR, 2012); UNHCR Executive Committee Conclusion No 44 (1986) Detention of Refugees and Asylum Seekers.

128

Daniel Wilsher

Art 6 – Right to Liberty and Security

The Union has increasingly come to adopt public policy goals which impinge upon personal liberty for their fulfilment. The most direct of these is in relation to asylum and border policy where the Union’s goal of preventing unlawful migration and secondary movements, particularly of asylum-seekers, within Europe has led to the imposition of common obligations, including detention powers. The Union has also expressed its own shared public policy in relation to the creation of criminal offences for conduct that has a trans-border element or impinges upon the fulfilment of Union policy goals. The final main area of Union activity is more about facilitation of Member States’ criminal justice policies through co-operation to render more rapid returns of suspected and convicted criminals in other Member States. Neither Advocates-General nor the Court of Justice has yet to render any direct opinion in which Article 6 was directly relied upon, despite giving several rulings in cases in which detention was in issue since the Charter’s ratification. These cases have all concerned non-EU citizens subject to migration control and the Court of Justice has adopted an approach looking at the overall legislative scheme governing expulsion and detention rather than follow an explicitly fundamental rights approach.26

06.15

06.16

II. Scope of Application (a) Relationship with Free Movement Law and Purely Internal Situations The right of EU citizens to move and reside freely within the Union pursuant to Articles 20 06.17 and 21 TFEU necessarily entails respect for the right to liberty and security of the person. This right is embodied in Article 45 of the Charter. The Court of Justice has often ruled against obstacles to such movement when imposed by Member States. In Oulane27 an EU citizen was present in another Member State with a temporary right of residence as a recipient of services.28 The European Court of Justice held that, whilst Member States could impose a penalty for failure to hold an identity document, ‘[d]etention and deportation based solely on the failure of the person concerned to comply with legalt formalities concerning the monitoring of aliens impair the very substance of the right of residence conferred directly by Community law and are manifestly disproportionate to the seriousness of the infringement’.29 The failure to comply with such rules did not constitute a threat to public policy or security.30 There had to be a core security justification

26

Case C-357/09 PPU Kadzoev [2009] ECR I-11189. Case C-215/03 Oulane (Judgment of 17 February 2005). 28 Specifically, at the relevant time he had a right to stay up to three months in order to receive services under Art 56 TFEU in addition to any rights derived from EU citizenship. The modalities of exercising this right, including the right to enter based upon presentation of an identity card or passport, were set out in Directive 73/148/EC on the removal of restrictions on the movement and stay of nationals of the Member States in relation to the establishment and receiving services. They now fall within Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. 29 Oulane (n 27) para 40 (emphasis added). 30 Ibid para 41. 27

Daniel Wilsher

129

Part I – Commentary on the Articles of the EU Charter

for detention such as that the migrant would commit criminal acts.31 Detention orders, like deportation, can be justified, but only based on the express deportation grounds of public policy, security or health set out in TFEU.32 06.18 For non-EU citizens, only those who have stayed for a qualifying period in a Member State and are long-residence acquire free movement rights under Union law. Whilst this confers powers of expulsion and/or withdrawal of residence permits on narrow public policy grounds, there is no mention of detention.33 There is only an oblique reference, in that Member States expelling a non-EU citizen ‘shall take all the appropriate measure to effectively implement it’.34 Similar considerations apply to the Family Reunification Directive.35 This gives rights to non-EU citizens to join and reside with their non-EU resident families in the Union.36 There are public policy exclusion and expulsion powers,37 but again there is no requirement to implement these orders by arrest and detention.38 The concept of obstacles to free movement may also have relevance for detention 06.19 pursuant to criminal offences under Article 5(1)(a) ECHR. The Court of Justice has been willing to rule that penalties which are disproportionate in their impact on the ability of EU citizens to exercise their freedom of movement may be in breach of EU law.39 Therefore any detention pursuant to such a sentence would have to cease although it seems unlikely that such detention would breach Article 5(1)(a) until the national criminal law had been declared in breach of EU law.40 For EU citizens imprisoned in their own Member State who have never crossed a border however, the orthodox position is that they are caught by the ‘purely internal situation’ rule and cannot rely upon free movement rights to challenge their criminal conviction.41

31 Ibid paras 9 and 11 state the facts in terms which indicate that a fear of absconding was the ground for detention, but the referring court did not put its questions on that basis. The ECJ found that ‘the questions referred are, however, based on the assumption that there was no genuine and serious threat to public policy’ (para 42). Any preventive detention would have to relate to crime serious enough to justify deportation under EU law. 32 Ibid para 41. 33 Arts 6, 12, 17 and 22 set out substantive and procedural protection against expulsion or deportation that mirrors some of the concepts found in relation to EU citizens. For a detailed analysis, see Peers, ‘Implementing Equality’ (n 18). 34 Art 22(3). 35 Directive 2003/86 [2003] OJ L251/12. 36 Art 6. 37 According to Recital 14, ‘public policy may cover a conviction for committing a serious crime’; and someone who ‘belongs to an association that supports terrorism, supports such an association or has extremist aspirations’ may fall within the ambit of public security and policy. 38 We can also mention the Students Directive, which provides common standards for admission of students from outside the Union, but no express discussion of detention powers in the Directive. Council Directive 2004/114/EC on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service [2004] OJ L375/12. 39 Case C-193/94 Skanavi and Chryssanthakopoulos [1996] ECR I-929. 40 See the principle in Benham v UK App no 19380/92 (Judgment of 10 June 1996), (1996) EHRR 293, that conviction and detention by courts of competent jurisdiction are valid in terms of Art 5(1)(a) (even though later quashed), in the absence of proof of acting ultra vires in terms of national law or bad faith, or other failure to attempt to apply the relevant national legal framework. 41 Case C-299/95 Kremzow v Austria [1997] ECR I-2629. It must be questioned now whether this principle has been altered by the case law on EU citizenship conferring rights to reside and move even upon those who have not left their own Member State. See Case C-34/09 Zambrano (Judgment of 8 March 2011).

130

Daniel Wilsher

Art 6 – Right to Liberty and Security

(b) Personal and Territorial Scope The right to liberty is one possessed by all natural persons, regardless of nationality or 06.20 immigration status. The geographical scope of the right may extend beyond the territorial waters of the Member States; to the extent that Union agencies and/or Member States engage in actions outside the borders of the Union which affect personal liberty, they may be bound by Article 6.42 The use of naval or coastguard operations against migrant smuggling vessels, which forms part of Union policy to combat illegal migration, may therefore engage Article 6 to the extent that physical restraint is exercised over individuals.43 Detentions that are conducted by the authorities of non-EU countries which border the Union would not ordinarily lead the Member States or the EU institutions to incur Article 6 obligations, even though the Union increasingly provides funds and training for border control operations to its neighbours.

III. Specific Provisions The explanatory notes on the Charter state that the rights in Article 6 have the same 06.21 meaning and scope as Article 5 ECHR. This extends therefore to both the meaning of ‘liberty and security of the person’ but also to the legitimate limitations that may be placed thereupon which are exhaustive and set out in Articles 5(1)(a)–(f) ECHR.44 The one area of doubt is imprisonment for debt, which is prohibited by Article 1 Protocol No 4 to the ECHR, but which is not referred to in the Charter or the explanatory text. It is assumed that this is an oversight and that this does limit further the scope of imprisonment in compliance with Article 6 of the Charter. The Court of Justice has not yet provided any interpretation of Article 5 ECHR either as part of the general principles of EU law, nor through the Charter.45 Because of this, the extensive Article 5 ECHR case law of the Strasbourg Court will remain the principal source of guidance on the meaning of Article 6 of the Charter. This section will not seek to reproduce all the Strasbourg case law, but rather to focus upon those areas that are of particular relevance as falling within the scope of Union law. (a) Definition of Deprivation of Liberty The reference to ‘liberty’ does not denote any broader concept of freedom in general but is merely a right not to be subjected to arbitrary bodily restraint. Furthermore, the 42 See Council Decision of 26 April 2010 (2010/252/EU) supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union [2010] OJ L111/20. Annex Rule 1.1 states that measures taken shall be conducted in accordance with fundamental rights. 43 Hirsi Jamaa v Italy App no 27765/09 (23 February 2012), which ruled that taking immigrants in naval vessels back to a third country constituted collective expulsion in breach of Art 4 Protocol 4 ECHR. 44 The exhaustive nature of Art 5(1) has been confirmed in Ireland v UK App no 5310/71 (Judgment of 18 January 1978), Rep 1978–25. This is confirmed by Art 52(3) of the Charter which expressly states that rights guaranteed by the Convention are to have the same meaning and scope when they appear in the Charter. 45 There is however a reference to the judgments of the ECtHR and other guidelines in relation to Art 5 from the Council of Europe institutions in El Dridi (n 24) [42]–[43].

Daniel Wilsher

131

06.22

Part I – Commentary on the Articles of the EU Charter

primary focus of Article 5 ECHR is upon regulating deprivation of liberty; ‘security’ of the person does not raise distinct considerations.46 The Strasbourg Court has distinguished restrictions on liberty, such as residence requirements, from deprivations of liberty amounting to an infringement of Article 5.47 The distinction is however one of fact and degree, and not kind, with the duration, conditions, effects and manner of detention being relevant, along with the particular type of detainee held. Thus confining soldiers to barracks was not a deprivation of liberty, whilst keeping them in locked cells was.48 The holding of asylum-seekers in airport transit facilities was examined in Amuur v France.49 The Court said that ‘such holding should not be prolonged excessively, otherwise there would be a risk of it turning a mere restriction on liberty—inevitable with a view to organising the practical details of the aliens’ repatriation or where he has requested asylum while his application for leave to enter the territory for that purpose is considered—into a deprivation of liberty.’50 In that case, holding the applicants in locked hotel rooms for several weeks was a deprivation of liberty. In Saadi v UK, asylumseekers were held in closed facilities permitting some degree of movement inside a perimeter for seven days to process their claims. This was also held to be a deprivation of liberty for Article 5(1) purposes.51

IV. Limitations and Derogations (a) Detention must be both Legal and Non-arbitrary 06.23 The concept of preventing arbitrariness in detention decisions is crucial to Article 5.52 This comprises both complying with national law regarding the substantive and procedural grounds for detention, but also complying with constraints imposed by Article 5 and its jurisprudence. The list of grounds permitting detention under Article 5(1) is thus exhaustive.53 It is vital to note however that there is no general requirement that detention must be ordered by a court. Whilst Article 5(4) requires that detainees have access to judicial review in all cases, only criminal suspects must be brought by the government before a court under Article 5(3). The main safeguard against arbitrariness therefore lies in ensuring that national laws and practices are sufficiently clear and

46 Bozano v France (1986) Series A no 111, (1987) 9 EHRR 297. Contrast with the broader approach of the Human Rights Committee in relation to Art 9 ICCPR in Communication No 195/1985, Delgado Paez v Colombia, 23 August 1990 (CCPR/C/39/D/195/1985) where it was held that the state was under an obligation to protect individuals threatened by death and other threats to personal security. 47 See Guzzardi v Italy (1980) 3 EHRR 333 and Engel v Netherlands (1976) 1 EHRR 647 in which the Court distinguished between a deprivation of liberty and a mere restriction on liberty which is now regulated by Art 2 Protocol No 4. 48 Engel v Netherlands (n 47). 49 Amuur v France (1996) 22 EHRR 533. 50 Ibid para 43. 51 See Saadi and Others v United Kingdom App no 13229/03 (11 July 2006) where detention in a military barracks which allowed movement within it but not beyond it was held to be caught by Art 5(1). See also Executive Committee of UNHCR, Standing Committee, ‘Detention of Asylum seekers and Refugees: the Framework, the Problem and Recommended Practice’ (15th meeting, 4 June 1999, EC/49/SC/CRP13) which confirms airport transit zones are places of detention. 52 Bazorkina v Russia App no 69481/01 (27 July 2006), (2008) 46 EHRR 261 [146]. 53 Ireland v UK (n 44).

132

Daniel Wilsher

Art 6 – Right to Liberty and Security

transparent that courts can assess the character and legality of detention rather than in judicial pre-authorisation.54 There is a positive obligation upon states to protect individuals against arbitrary detention where they are aware or ought to be aware that it is occurring.55 This is designed to ensure protection for those held by private actors such as hospitals and security firms which increasingly supplement state actors in management of prisons and detention centres. (b) Detention must be in Accordance with the Law The most basic requirement here is that detention be in ‘accordance with a procedure 06.24 prescribed by law’. This means first that substantial national rules governing the detention must be complied with.56 There is an unresolved question at present as regards which ‘law’ must be complied with: national or European Union law? Where there are two sets of standards, there is scope for confusion. This is particularly so with EU Directives which, according to Article 288 TFEU, should be implemented in national law but are sometimes incorrectly transposed or neglected altogether. It is thus not clear which norms should bind national officials for the purpose of Article 5. The principle of legal certainty suggests that detainees should be able to easily know the sources of law relied upon for their detention and the limitations upon this power. Nevertheless, it is submitted that, given the importance of the right in question, the rules most favourable to the preservation of liberty should be the ones that are binding on officials. This is increasingly important, because EU law now imposes time-limits upon detention under the Framework Directive on the European Arrest Warrant, the Returns Directive and the recast Dublin II Regulation. Depending upon the precise circumstances, it might be that a combination of domestic and EU norms should therefore be considered binding. Certainly, in relation to Article 3 ECHR at least, the European Court of Human Rights has found that breach of a Directive can contribute to creating liability.57 If the applicable law states that the detention power may only be exercised when 06.25 strictly necessary, failure to show how this condition was met renders the decision discordant with the law.58 The laws must be operated in good faith and must not involve, for example, the use of deception to induce persons to surrender themselves.59 Merely procedural errors will however not infringe the principle.60 More importantly, even if the national rules are complied with, the Convention requires these to meet minimum standards of clarity and accessibility. Thus when, in Amuur v France,61 the detention procedures were contained in an unpublished circular which was not available to lawyers or detainees and did not state clearly the limits upon detention nor the available judicial remedies, this was a breach. The detainee should have the reasons for detention

54

Bazorkina v Russia (n 52) [146]. Storck v Germany App no 61603/00 (16 June 2005), (2006) 43 EHRR 96. 56 Benham v UK (n 40); Riad and Idias v Belgium App nos 29787/03 and 29810/03, in which the authorities continued to detain after judicial orders to release had been made. 57 MSS v Belgium and Greece App no 30696/09 (21 January 2011) [263]. 58 Rusu v Austria App no 34082/02 (2 October 2008). 59 Conka v Belgium App no 51564/99 (5 February 2002), (2002) 34 EHRR 1298. 60 Mooren v Germany App no 11364/03 (9 July 2009). 61 Amuur v France (n 49). 55

Daniel Wilsher

133

Part I – Commentary on the Articles of the EU Charter

and remedies explained to them in their own language, be afforded access to an interpreter, and given the possibility to contact a lawyer.62 There must be a reasoned decision which shows how the detention is justified in terms of the national legal framework.63 Overall, the rules governing detention must enable the detainee to understand the basis for detention, the conditions upon its prolongation and provide predictable guidelines as to its exercise.64 (c) Imprisonment after Conviction by a Court 06.26 In its case law on Article 5(1)(a), the ECtHR has found that the crucial issue is that imprisonment follows conviction by an independent court, with power under domestic law to order the detention in question, which is separate from both the executive branch of government and the parties.65 The imprisonment may commence immediately upon conviction whilst an appeal is pending.66 The merits of the conviction are not examined by the ECtHR under Article 5.67 Indeed, time spent in detention is not rendered unlawful by the subsequent quashing of the conviction upon which it was based.68 The returning of convicted prisoners to detention after their release on license falls within Article 5(1)(a) so long as there is a sufficient connection between the original conviction and any new risk posed by the prisoner.69 The Strasbourg Court has approved preventive detention, following conviction by a court, where the sentencing court later rules that the prisoner’s release would be a danger to public security so long as the power is not one that was created to apply retrospectively to persons already convicted.70 06.27 Where a prisoner has been detained based upon a criminal conviction that breaches EU law, the position under Article 5(1)(a) is unresolved. Whilst subsequent quashing by a higher court does not normally render detention outwith Article 5(1)(a), different considerations may apply when a conviction breaches well-established EU law principles and therefore, arguably, a national court lacks jurisdiction to impose liability.71 The most important limits in general terms are those relating to Directives. Because these instruments normally require national implementation, there is a risk of legal uncertainty. The Court of Justice has therefore held that national courts must not use a Directive as the basis for imposing or worsening criminal liability that did not clearly arise under national law.72 Furthermore, EU measures must not found the basis for criminal liability which is imposed retrospectively.73

62

Conka v Belgium (n 59). Lokpo v Hungary App no 10816/10 (20 September 2011). 64 Baranowski v Poland App no 28358/95 (Judgment of 28 March 2000). 65 De Wilde, Ooms and Versyp (‘Vagrancy’) v Belgium App nos 2832/66, 2835/66 and 2899/66 (Judgment of 18 June 1971), Series A no 12. 66 Wemhoff v Germany App no 2122/64 (1968) Series A no 7, (1979–80) 1 EHRR 455. 67 Weeks v UK App no 9787/82 (1987), Series A no 254, (1988) 10 EHRR 293. 68 X v Austria App no 3245/67 (Judgment of 4 February 1969). 69 Stafford v UK App no 46295/9 (2002) 35 EHRR 1121. 70 Schmitz v Germany App no 30493/04 (Judgment of 9 June 2011). 71 Benham v UK (n 40) held that apart from lack of bona fides, conviction by a court of competent jurisdiction generally justifies detention under Art 5(1)(a). 72 Case C-80/86 Kopinghuis Nijmegen [1987] ECR 3969. 73 Case C-63/83 R v Kent Kirk [1984] ECR 2689. 63

134

Daniel Wilsher

Art 6 – Right to Liberty and Security

More specifically, recent decisions by the Court of Justice in relation to unlawful migra- 06.28 tion have limited the ability of Member States to impose criminal sanctions for immigration offences. The Court found that the administrative provisions in the Returns Directive must be complied with to secure speedy expulsions of non-EU citizens.74 Member States were not allowed to impose detention following criminal conviction for illegal stay before the administrative measures had been applied. This means that imposing liability for offences of failing to leave after a removal order had been served or illegal entry were in breach of Union law.75 Member States have the power to impose ‘penal sanctions’ under national law on irregular migrants only after the administrative measures have been applied and failed. A fine for illegal stay may be imposed, but not detention in lieu of payment, unless removal is not possible at that time.76 It is EU policy to ensure mutual recognition of criminal convictions and sentences by 06.29 the Member States to allow migrant prisoners convicted in one state to be returned to complete their sentences in their home states. This is facilitated by a Council Framework Decision.77 The compatibility of this with Article 5 ECHR, however, is unclear, because Member States adopt different approaches to early release. If the ‘competent court’ sentencing in the first Member State would have released a prisoner earlier than occurs in the home Member State, this would arguably render their continued detention unlawful. Finally, the existence of mutual recognition of Supervision Orders under the Framework Decision means that EU criminal courts should not impose a custodial sentence on a non-resident where a non-custodial sentence would be given to a resident. To do so would be discriminatory on grounds of nationality/residence, and would arguably breach Article 5 ECHR combined with Article 14 ECHR. It would also breach more general EU standards relating to free movement and the equal treatment of Union citizens under Articles 18 and 20 of the TFEU. This is because to imprison a person because they are non-resident indirectly discriminates on grounds of nationality. Whilst formerly the absence of a system of mutual recognition of non-custodial orders might have justified such discrimination, the new legislative framework means this can no longer be the case.78 (d) Detention for Non-compliance with a Lawful Court Order or to Secure Compliance with a Legal Obligation The first part of Article 5(1)(b) ECHR pertains to the process by which a court seeks to 06.30 secure the attendance of a witness at trial, or that a witness undergo a medical examination. Wilful failure to pay a tax could also support detention.79 Whilst Article 5(1)(b) on its face authorises detention to compel repayment of a contractual debt, Article 1 of the

74

El Dridi (n 24). Case C-329/11 Achughbabian [2012] 1 CMLR 52. 76 Case C-430/11 Md Sagor (Judgment of 6 December 2012). 77 Framework Decision 2008/909/JHA on the application of the principle of mutual recognition to judgments imposing sentences or measures involving deprivation of liberty [2008] OJ L327/27. 78 Case C-224/00 Commission v Italian Republic (Judgment of 19 March 2002) which confirmed that the absence of mutual recognition meant that non-residents could be subject to different measures relating to criminal penalties. 79 Benham v UK (n 40). 75

Daniel Wilsher

135

Part I – Commentary on the Articles of the EU Charter

Fourth Protocol to the Convention states that ‘No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation.’ The second part of Article 5(1)(b) is more controversial, because it allows a non-judicial body to detain a person to secure compliance with administrative or security operations. The classic example would be enforcing attendance for military service. The ECtHR has held that legal obligations entailing the risk of detention must be specific and should clearly state that liability to detention arises in such cases.80 Article 5(1)(b) does not entail a more general power to detain to prevent crime or threats to public order or safety. All such detention must conform to the principle of proportionality and thereby strike a reasonable balance between the fulfilling the legal obligation and the deprivation of liberty. This requires an examination of the object of the legal obligation, the characteristics of the person detained and the duration of detention.81 (e) Detention Pending Trial: the Arrest Period and the Remand Period 06.31 Article 5(1)(c) authorises and regulates detention pursuant to criminal proceedings from arrest through to trial and acquittal or conviction. It must be read with Article 5(3), which governs the arrest period and any remand in custody. The literal text of Article 5(1)(c) contemplates detention in three cases: (1) where there are reasonable grounds for suspecting that an offence has been committed, but also (2) when it is reasonably considered necessary to prevent the commission of an offence, or (3) to prevent someone fleeing having done so. Although this apparently permits preventive detention, case law has determined that the power to detain under Article 5(1)(c) generally arises only where there are reasonable grounds for suspecting that a specific offence has been committed. Only a concrete and specific threat can support preventive detention.82 Because most acts preparatory to the commission of serious crimes are themselves crimes, there is rarely a need to rely upon the preventive detention justification. Furthermore, in any event, the purpose of detention must be to bring the suspect to trial before the competent authority.83 06.32 Although Article 5(1)(c) does not itself impose a duty to use arrest as a last resort, national law often will require proof that arrest is necessary in order to investigate the suspected crime because of a risk of absconding. The arrest of a person should be effected on the basis of a warrant issued by a competent court, but in urgent cases police may arrest without a warrant. The standard of proof is that of ‘reasonable suspicion’ that an offence has been committed, which entails facts or information that would satisfy an objective observer.84 The appraisal of whether evidence meets this standard is generally for the national court to decide, subject only to oversight by the European Court

80

Lawless v Ireland App no 332/57 (Judgment of 1 July 1961), Series A no 3; Engel v Netherlands (n 47). Vasileva v Denmark App no 52792/99 (Judgment of 25 September 2003). 82 Guzzardi v Italy (n 47). It is still not finally settled as to whether the competent authority itself may order preventive detention instead of trial. 83 Lawless v Ireland (n 80). 84 Erdagoz v Turkey App no 21890/93 (Judgment of 22 October 1997). 81

136

Daniel Wilsher

Art 6 – Right to Liberty and Security

of Human Rights. In combating terrorism, a lighter evidential burden is imposed, but there must still be objective evidence of the commission of an offence.85 Whilst the initial grounds for arrest must conform to Article 5(1)(c), thereafter, con- 06.33 tinued detention must comply with Article 5(3), which requires both that a suspect be brought promptly before a judicial officer following arrest and thereafter tried within a reasonable time or released on bail pending trial. ‘Promptly’ does not mean a set period in all cases but in ordinary criminal cases, not involving national security, several days is the limit.86 Detention beyond this period is unlawful unless a derogation under Article 15 has been validly entered.87 Even in cases involving a derogation however, a period of two weeks in incommunicado detention was a breach of Article 5(3).88 The officer before whom the detainee is brought must be sufficiently independent of the prosecution process.89 Once the detainee has been brought before a judicial officer, there is a presumption 06.34 that they must be released on bail90 unless their detention pending trial is necessary. The case law goes beyond the text of Article 5(3), which appears to permit detention which is not necessary so long as the trial takes place within a reasonable time. Even where there is strong evidence that the accused has committed a serious offence, this does not in itself justify remand beyond a short period.91 Mandatory pre-trial detention is unlawful, as each case must be assessed individually.92 The Strasbourg Court has not given an exhaustive list of the grounds for remanding in custody but has thus far endorsed the use of pre-trial detention to prevent absconding, the commission of offences or interference with the trial processes.93 The national court must consider whether a risk of absconding can be avoided by bail or other restrictions94 and these must be tailored to the individual detainee’s financial situation rather than set at an excessive or fixed level.95 In the case of non-resident defendants, the possibility of imposing an EU Supervision Order must be considered as an alternative to custody, where there are concerns about absconding to another Member State. The substantive grounds for remand must be reviewed and justified on an ongoing 06.35 basis, even if the initial remand in custody was justified.96 Even where the substantive grounds for remand are adequate, the period of detention itself must also be reasonable which is assessed in view of all the circumstances of the case. The starting point is that detention infringes a fundamental right of a person presumed to be innocent, and the authorities therefore have to show that they acted with special diligence in bringing the

85

Fox, Campbell and Hartley v UK App no 37555/97 (Judgment of 16 October 2001). Brogan v United Kingdom (1988) Series A no 145-B, (1989) 11 EHRR 117. 87 Brannigan and McBride v United Kingdom (1993) Series A no 258-B, (1994) 17 EHRR 539. 88 Aksoy v Turkey App no 21987/93 (18 Decmeber 1996), (1997) 23 EHRR 553. 89 Assenov v Bulgaria App no 24760/94 (28 October 1998), (1998) 28 EHRR 652. 90 McKay v United Kingdom App no 543/03 (3 October 2006 [GC]), (2007) 44 EHRR 827. 91 Tomasi v France (1992) Series A no 241-A, (1993) 15 EHRR 1. 92 Caballero v United Kingdom App no 32819/96 (8 February 2000), (2000) 30 EHRR 643. 93 Barfuss v Czech Republic App no 35848/97 (31 July 2000), (2002) 34 EHRR 948; Assenov v Bulgaria (n 89); Wemhoff v Germany (n 66). 94 Wemhoff v Germany (n 66). 95 Punzelt v Czech Republic App no 31315/96 (25 April 2000), (2001) 33 EHRR 1159. 96 McKay v UK (n 90). 86

Daniel Wilsher

137

Part I – Commentary on the Articles of the EU Charter

case to trial.97 Where there have been significant periods of inactivity in the prosecution lasting months (sometimes resulting in pre-trial detention for several years), a violation of Article 5(3) has been found.98 06.36 In the EU context, there are wide variations in the rules and processes in the different Member States regarding pre-trial detention. These divergences are significant in the context of the European Arrest Warrant for two reasons. First, the possibility that a person surrendered will be subject to a long period of pre-trial detention may raise an issue of fundamental rights for the surrendering court. The European Council identified this as an obstacle to judicial cooperation in the Stockholm programme. Second, the availability of the European Arrest Warrant procedures means that there an alternative to pre-trial detention in cases where a suspect lives in another Member State. Previously, criminal courts might choose to detain pending trial (or impose a custodial sentence) simply because they feared that a person would abscond back to their home country and that ensuring their return to face trial (or their completion of a non-custodial sentence) would be difficult. Compliance with Article 5(3) ECHR would require that a court consider these less restrictive measures as an alternative to remand in custody. (f) Detention of Minors 06.37 Article 5(1)(d) permits detention of minors for the purpose of educational supervision or to bring them before a competent legal authority (usually the juvenile courts seized of non-criminal cases). It does however preclude detention under any other heading of Article 5 such as pursuant to criminal proceedings. The official age of majority varies between States. The concept of a ‘minor’ however has an autonomous meaning for Article 5(1)(d) purposes which is distinct from national law and is presently 18.99 Under the first limb, the detention must have genuine educational aspects in order to be lawful. Where a boy was detained in an adult prison, prior to placement, because no suitable juvenile institution would accept him immediately, there was a violation.100 This said, the concept of ‘educational supervision’ is flexible and not to be equated with traditional classroom teaching; the crucial issue is that a caring regime, including education elements, is provided. (g) Detention for the Purpose of Health or Social Protection 06.38 On a literal reading, Article 5(1)(e) permits detention of a wide group of persons without court order including drug addicts, alcoholics, the mentally ill and those with infectious diseases. In practice, the ECtHR has limited this wide power in several respects. First, it requires that detention be used only to protect the safety of either the detainee or the public.101 Second, such detention must only be used when necessary and no alternative

97 98 99 100 101

138

Wemhoff v Germany (n 66). Kauczor v Poland App no 45219/06 (3 February 2009); Pilla v Italy App no 64088/00 (2 March 2006). Koniarska v UK App no 33670/96 (admissibility decision of 12 October 2000). Bouamar v Belgium (1988) Series A no 129. Litwa v Poland App no 26629/95 (Judgment of 4 April 2000), (2011) 33 EHRR 1267.

Daniel Wilsher

Art 6 – Right to Liberty and Security

means for protecting the public less draconian than detention will suffice.102 Finally, the detention must strike a reasonable balance between the public interest and the liberty of the detainee. In the special case of person with mental illness, the Court has imposed more detailed guidance in the case of Winterwerp v Netherlands,103 where it said that mental illness must be established by objective medical evidence, that the condition must make detention necessary, that the detention must be justified on an ongoing basis and, later, that the place and conditions of detention must be suitable—a hospital or clinic, not a prison.104 (h) Detention for Immigration Control and Extradition Purposes The most important areas of Union competence and law-making impinging on liberty relate to immigration powers over non-EU citizens and the extradition of suspects and convicted criminals. Both these restrictions on liberty fall under the justification in Article 5(1)(f), and there is extensive Strasbourg case law interpreting this provision that will be set out below

06.39

(i) No Requirement that Detention be Necessary in Immigration Cases The Strasbourg Court has consistently contrasted Article 5(1)(f) with detention under 06.40 the other headings of Article 5(1) by ruling that detention need not be necessary and proportionate to secure the deportation or extradition of a detainee, nor to prevent their illegal entry.105 This also contrasts with remand pending prosecution, which requires a specific public policy reason, such as a risk of absconding, for continuing detention pursuant to Article 5(3).106 The basis for this distinction is that sovereign states have the right to control their borders and that aliens without permission to remain do not have the same general right to liberty as citizens. Instead of the usual proportionality test, the Strasbourg Court has therefore applied a test of arbitrariness to Article 5(1)(f) comprising four factors: to avoid being branded as arbitrary … such detention must be carried out in good faith; it must be closely connected to the purpose of preventing unauthorised entry of the person to the country; the place and conditions of detention should be appropriate, bearing in mind that ‘the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country’ ... and the length of the detention should not exceed that reasonably required for the purpose pursued.107

Thus in Saadi108 the applicant, who had entered illegally and then sought asylum, was not considered a flight risk but was held for seven days in a closed reception centre as part of the processing of his asylum claim. The Grand Chamber accepted that this 102

Enhorn v Sweden App no 56529/00 (Judgment of 25 January 2005), (2005) 41 EHRR 633. Winterwerp v Netherlands (1979) Series A no 33, (1979–80) 2 EHRR 387. 104 Aerts v Belgium App no 25357/94 (Judgment of 30 July 1998), (1999) 29 EHRR 50. 105 Chahal v UK App no 22414/93, (1997) 23 EHRR 413 [112]. 106 See Scott v Spain (1997) 24 EHRR 391; Caballero v UK (n 92) February 2000; Barfuss v Czech Republic (n 93). 107 Saadi v UK (n 51). 108 Saadi v UK (n 51) (Grand Chamber, Judgment of 29 January 2008). 103

Daniel Wilsher

139

06.41

Part I – Commentary on the Articles of the EU Charter

period of detention in relatively relaxed conditions with access to lawyers and interpreters did not breach Article 5(1)(f). It ruled that until a detainee had been given permission to enter or stay, such detention was sufficiently closely linked to the prevention of unauthorised entry even when a detainee had presented himself voluntarily to make an asylum claim. Detention of asylum-seekers for processing their claims, whilst not formally subject to different principles to those governing detention of immigrants generally, is likely to infringe Article 5(1)(f) if the conditions or the duration are significantly more restrictive of liberty than those in Saadi, in the absence of other special factors, such as a flight risk.109 06.42 Whilst enforcing European Union legislation relating to irregular migrants, the Court of Justice has held that Member States must have a brief but reasonable time110 to verify whether a third country national is an irregular migrant. During this time they must act with diligence and may detain the person concerned under the conditions provided for in national law. Once it has been established that the migrant has no right to remain on their territory they must issue a return order and proceed to enforce it. The object of that procedure is the physical transportation of the person concerned outside the Member State concerned111 and it should take place as soon as possible.112 06.43 In keeping with the factors set out in Saadi, the conditions of detention for minors and other vulnerable groups raise particular issues and may breach Article 5 (as a distinct ground to any breach under Article 3 ECHR). In Mubilanzila Mayeka and Kaniki Mitunga v Belgium,113 a five-year-old unaccompanied minor was detained for two months in a centre designed for adults. She was not assigned any specialist care, counselling or education. The Court found a breach of Article 3 and referred to the obligation of the state to enable effective protection to be provided, particularly to children and other vulnerable members of society, which should include reasonable measures to prevent ill-treatment of which the authorities have or ought to have knowledge.114 In the case of Muskhadziyeva v Belgium115 a family including four children aged between seven months and seven years were held together for one month in a closed detention centre designed for adults. In this case, the Court found a violation of Article 3 in respect of the children, despite the presence of their parents, because of the duration of detention, the age of the children, the medical evidence of psychological damage to one of them caused by ongoing detention, and because of persistent adverse reports on the centre by independent monitors.116 The Court also found a violation of Article 5(1)(f) in the case of the children because the means used, including the place and conditions of detention, were not closely linked to the objective of processing their cases.117 06.44 These cases reflect consideration of Article 37 UN Convention on the Rights of the Child, which requires that any detention ‘shall be used only as a measure of last resort

109 See Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-seekers and Alternatives to Detention (Geneva, UNHCR, 2012). 110 Achughbabian (n 75) [31]. 111 Ibid [37]. 112 Ibid [45]. 113 Mubilanzila Mayeka and Kaniki Mitunga v Belgium App no 13178/03 (12 October 2006). 114 Ibid [53]. 115 Muskhadziyeva v Belgium App no 41442/07 (19 January 2010). 116 Ibid [57]–[63]. 117 Ibid [73]–[75].

140

Daniel Wilsher

Art 6 – Right to Liberty and Security

and for the shortest appropriate period of time’, and Article 3, which requires that ‘the best interests of the child’ be the guiding standard for states parties. The Committee on the Rights of the Child said that unaccompanied children should not in general be detained, but where this was exceptionally necessary the underlying approach to such a programme should be ‘care’ and not ‘detention’.118 This has been extended by the UN Special Rapporteur on the Human Rights of Migrants, who said in 2009 that children should not be deprived of liberty as a sole consequence of their migratory status, and that unaccompanied migrant children should not be detained at all.119 (j) Duration of Detention in Immigration Cases The Strasbourg Court has recognised that detention could be indefinite under Article 06.45 5(1)(f) if a state were able to justify detention merely by showing that immigration or extradition proceedings remained ongoing. Instead a state must show that such proceedings are being pursued with ‘due diligence’.120 This requires a fact-specific examination of the steps taken by the authorities to process the proceedings, the complexity of the case and responsibility of the detainee for prolonging their detention. Long periods of detention have sometimes been found to be compliant with Article 5(1)(f). For example in Chahal, detention for six years in total, including periods of six and seven months waiting for initial and fresh decisions from the immigration authorities, was held not to be a violation because of the serious nature of the case and the complexity. By contrast, in another case, involving extradition, the Court ruled that delays of three and 10 months violated Article 5(1)(f).121 In Singh v Czech Republic,122 immigration detention of two and half years was criticised because it contained long periods of inactivity by the authorities when faced with practical obstacles to removal. Such obstacles to removal may require the detaining state to act ‘vigorously’ to secure travel documents or to negotiate with foreign states to satisfy the test.123 Expulsion must be a realistic prospect, to justify continued detention. Where a state 06.46 accepts that it cannot deport a person due to a legal or other obstacle that is not likely to be removed within a foreseeable period, then there is no justification for detention under Article 5(1)(f).124 In Mikolenko v Estonia125 the detainee had said at the outset he would not cooperate with documentation procedures and there was no readmission agreement with his country of nationality. The Court said that it must have become clear quite soon that expulsion attempts were bound to fail.126 The Strasbourg Court

118 General Comment No 6, ‘Treatment of Unaccompanied and Separated Children Outside their Country of Origin’, 1 September 2005, CRC/GC/2005/6 para 63. 119 Annual report of the Special Rapporteur for the Human Rights of Migrants, Jorge Bustamante, 14 May 2009 A/HRC/11/7 at para 106. 120 Kolompar v Belgium (1993) 16 EHRR 197. This can be seen as derived from the more general principle of effectiveness which is used by the Court in relation to all articles of the Convention. See for example Airey v Ireland (1979) 2 EHRR 305. 121 Quinn v France (1995) 21 EHRR 529. 122 Singh v Czech Republic App no 60538/00 (Judgment of 25 January 2005). 123 Raza v Bulgaria App no 31465/08 (11 February 2010). 124 A and others v United Kingdom App no 3455/05 (19 February 2009 [GC]), (2009) 49 EHRR 29. 125 Mikolenko v Estonia App no 10664/05 (Judgment of 8 October 2009). 126 Ibid para 64.

Daniel Wilsher

141

Part I – Commentary on the Articles of the EU Charter

found a breach due to the lack of a realistic prospect of his expulsion and the domestic authorities’ failure to conduct the proceedings with due diligence.127 The Court also noted that he had been released on bail eventually without incident and therefore the authorities had at their disposal measures other than the applicant’s protracted detention in the absence of any immediate prospect of his expulsion. This case suggests that the longer detention is prolonged, the greater the obligation to consider using alternative means such as release on bail, even if this was not required at the outset. (k) Discussion of EU Immigration and Asylum Measures Pertinent to Article 5(1)(f) ECHR 06.47 Measures taken by the European Union and their application by the Member States must comply with Article 6 of the Charter and the principles set out above in relation to Article 5(1)(f) ECHR. The following discussion considers some of the main EU measures in this context. (l) Immigration Measures 06.48 The common code128 on border movements sets out the rules governing non-EU citizens seeking to enter the Union at the border of any Member State.129 Persons not fulfilling the requirements for entry ‘shall be refused entry to the territories of the Member States’.130 Where this occurs, ‘border guards shall ensure that a third-country national refused entry does not enter the territory of the Member State concerned.’131 This authorises physical restraint in cases of resistance, but ‘any measures taken in the performance of [border guards’] duties shall be proportionate to the objectives pursued by such measures.’132 Guards must also not discriminate on specified grounds and must ‘fully respect human dignity’.133 These provisions permit detention. They may be consistent with Article 5(1)(f) ECHR in that they seek to prevent unlawful entry into the Union but they must be operated in accordance with the principles discussed above. (m) Detention of Resident Third Country Nationals 06.49 The Long-resident Directive confers powers of expulsion and/or withdrawal of residence permits on public policy grounds, and therefore impliedly authorises detention.134

127

Ibid para 68. Council Regulation 562/2006 establishing a community Code on the rules governing the movement of persons across borders (Schengen Borders Code). 129 The exceptions are refugees, asylum-seekers and those non-EU citizens benefiting from third-country agreements (Art 3). 130 Art 13(1). 131 Art 13(4) (emphasis added). 132 Art 6(1). 133 Art 6(1)(2). 134 Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents [2004] OJ L16/44. Arts 6, 12, 17 and 22 set out substantive and procedural protection against expulsion or deportation that mirrors some of the concepts found in relation to EU citizens. For a detailed analysis, see Peers, ‘Implementing Equality’ (n 18). 128

142

Daniel Wilsher

Art 6 – Right to Liberty and Security

Member States expelling a non-EU citizen ‘shall take all the appropriate measures to effectively implement it’.135 Similar considerations apply to the Family Reunification Directive,136 which gives rights to non-EU citizens to join and reside with their non-EU resident families in the Union.137 There are public policy exclusion and expulsion powers138 but again there is no requirement to implement these orders by arrest and detention.139 These implied powers of detention must be operated in a manner consistent with the principles discussed above. (n) Detention in Asylum Claims The EU measures bearing on the detention of asylum-seekers are not found in a single 06.50 instrument. The most important source is however the Reception Conditions Directive, which governs the treatment of all asylum-seekers from outside the EU during the processing of their claims and any appeals against refusal of asylum. It also covers fresh claims made subsequent to earlier claims being rejected.140 Whilst an asylum application or appeal against refusal of asylum are ongoing, this Directive applies, even where deportation or removal orders are in place. The Court of Justice has held that only when no such asylum application or appeal is on foot will the Returns Directive apply to regulate, inter alia, detention of irregular migrants.141 This unfortunately means that a detainee may fall in and out of the two detention regimes—pertaining to asylum and irregular migration—depending on whether they have an ongoing asylum claim. The present Reception Conditions Directive does not provide a clear and detailed code on detention of asylum-seekers, but the basic elements are discernible. Article 7(1) of the Directive (based on Article 31 of the Refugee Convention) confirms that asylum-seekers may move freely within the territory of the host Member State or within an area assigned to them. Their place of residence may be assigned on the basis of public interest, public order or the need for swift and efficient processing of claims. Under Article 7(3), detention is permissible where it proves necessary for ‘legal reasons or reasons of public order.’142 These reasons are not further defined but must be read in conformity with Article 6 of the Charter. Therefore, detention must only be imposed to prevent an immediate threat of the commission of a specific criminal offence or to prevent the

135

Art 22(3). Directive 2003/86/EC on the right to family reunification [2003] OJ L251/1. 137 Art 6. 138 Under Recital 14, ‘public policy may cover a conviction for committing a serious crime’, and public security and policy may include someone who ‘belongs to an association that supports terrorism, supports such an association or has extremist aspirations’. 139 We can also mention the Students Directive, which provides common standards for admission of students from outside the Union, but no express discussion of detention powers in the Directive. Directive 2004/114/EC on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service [2004] OJ L375/12. 140 See R (on the application of ZO (Somalia) and others) (Respondents) v Secretary of State for the Home Department (Appellants) [2010] UKSC 36 for a decision by the Supreme Court in the United Kingdom which was acte clair and not referred to the Court of Justice. 141 Kadzoev (n 26). 142 The Union legislature did not even use the term ‘detention’ and it only appears in the definitions section, where ‘detention’ is referred to as including confinement to a particular place (Art 2(k)). ‘Detention’ is thus a label applied to ‘confinement to a particular place’, which is authorised by Art 7 rather than, more logically, the other way around. 136

Daniel Wilsher

143

Part I – Commentary on the Articles of the EU Charter

effecting of an unlawful entry into the country in accordance with the principles in Saadi. In both cases, any detention must conform to the principles set out above regarding Articles 5(1)(b) and 5(1)(f) ECHR. 06.51 Under Article 18 of the Procedures Directive no one may be detained solely because they have made an asylum claim. Detention purely for administrative reasons in order to process a claim is not expressly authorised by the Reception Conditions Directive, but such a practice is compatible with Article 6 if the period is brief, in accordance with the Saadi decision. Saadi also held that the conditions of detention must take into account the vulnerable position of asylum-seekers. The Reception Conditions Directive requires that accommodation be specifically provided for this purpose (Art 14) unless exceptional circumstances apply (Art 14(8)) justifying a short period in non-suitable accommodation. Unaccompanied minors must be housed with relatives, foster carers or in accommodation centres that have special provision for minors (Article 19). For minors generally, there is an obligation to provide education (Article 10), but this may occur within an accommodation centre. Whilst there is no general obligation not to detain minors their best interests must be a primary consideration (Article 18). To comply with the case law on Article 5 ECHR, minors should not be detained for long, and only in facilities that are caring and educational in nature. The agreed revised Reception Conditions Directive goes much further in setting out 06.52 and regulating conditions for detention.143 It confirms the basic right to free movement within the territory.144 Detention must therefore be shown to be necessary, after an individual assessment has been made and when less coercive measures cannot be applied effectively, in order to: (a) verify identity or nationality; (b) determine an asylum claim where this would not otherwise be possible because of, in particular, a risk of absconding; (c) decide on an applicant’s right to enter the territory; (d) effect removal under the Returns Directive where there are reasonable grounds to believe that the application for international protection was made merely to delay or frustrate the return decision; (e) when national security or public order requires it; and (f) to fulfil the procedure for returns to another Member State under the Dublin II Convention. Even the revised Directive does not contain a maximum period of detention for all asylum-seekers, but this must be as short as possible, and accompanied by due diligence in procedures.145 It is arguable that where detention is purely administrative, as under headings (a) and (c), it must not exceed the short period of seven days that formed the benchmark in Saadi. Detention under (f) must be justified separately under the specific rules (and follow the time-limits) set out in the Dublin II Regulation (see below for discussion of the revised Regulation) which must be considered as lex specialis. It is not clear if detention under heading (d) must be viewed as occurring under the Reception Conditions Directive during the period when a protection claim made by a detainee is under consideration.146

143 Position of the Council at first reading with a view to the adoption of a Directive of the European Parliament and of the Council laying down standards for the reception of applicants for international protection (recast), 2008/0244 (COD), 14 December 2012. Arts 8–11. These provisions somewhat reflect elements of UNHCR Executive Committee Conclusion No 44 (1986) Detention of Refugees and Asylum Seekers. 144 Art 7. 145 Art 9(1). 146 The issues of uncertainty in relation to heading (d) arise because a basic right to freedom of movement attaches to all persons making a protection claim under both the old and revised Directives. A person who is validly detained under the Returns Directive when they make their protection claim is, in principle, entitled

144

Daniel Wilsher

Art 6 – Right to Liberty and Security

In general terms, detention may be ordered by judicial or administrative authorities. If authorised by an administrative body it must however be reviewed speedily ex officio and/or at the request of the detainee. This provision appears to permit Member States to choose not to require automatic judicial review so long as detainees can themselves initiate speedy proceedings. There must be reviews of detention as reasonable intervals, particularly when it is prolonged or new information bearing on its justification arises. The current Dublin II Regulation is silent on detention itself, as opposed to removal 06.53 to another EU Member State for processing, for which there is a detailed timetable. This contemplates removal occuring within six months in most cases. The Court of Justice has ruled that Member States are required to adhere to the obligation under the Reception Conditions even for persons whom they believe to be the responsibility of another Member State.147 This should therefore regulate their detention. The lack of a code to regulate detention during this period led the European Commission to proposed detailed amendments to the Regulation.148 The principle has been accepted by the legislature now, which has endorsed a much more comprehensive system. The new rules permit detention only when there is a significant risk of absconding, based upon an individual assessment. Detention must be proportional and used only when other non-custodial alternatives cannot be effectively applied.149 The duration of detention must be for as short as possible and due diligence must be shown in processing the return application. Most importantly, there are now time-limits on detention.150 Thus a take-charge or take-back request must be made within one month of the asylum application. The detainee must be released if this exceeded. A reply should be issued within two weeks by the requested Member State. Failure to do so means the request is deemed accepted. The transfer must occur within six weeks of this implied acceptance

to be released whilst their claim is ongoing, as their status is then governed by the Reception Conditions Directive. Certainly a fresh decision on the necessity of detention must be made. Time stops running for the purposes of the Returns Directive too. These matters were confirmed by the CJEU in Kadzoev in relation to the old Directive, which did not contain ground (d). One ground for detention under the Returns Directive is the existence of a risk of absconding, which can also support ongoing detention of persons with protection claims outstanding (see ground (b) above). The revised Reception Conditions Directive however goes further and authorises ongoing detention where the intention of the detainee in making the protection claim is believed to be to frustrate removal. This raises difficulties because it is difficult to judge why a protection claim is made; particularly until it has been considered on the merits, the motive for such a claim remains a matter of speculation. A risk of absconding forms a more legally certain basis for detention. A further uncertainty is that such a finding indicates that the protection claim is believed to be fraudulent. The implication is that ongoing detention following such a finding is then authorised by the Returns Directive (not the Reception Conditions Directive) even whilst the allegedly fraudulent claim is processed. This means that the time-limits under the Returns Directive will apply even whilst the asylum claim is ongoing. The ‘clock’ will only stop between the making of the protection claim and a finding that ground (d) applies. 147

Case C-179/11 Cimade v Ministere de l’Interieur (Judgment of 27 September 2012). Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or stateless person COM (2008) 820 final Art 27. 149 Position of the Council at first reading with a view to the adoption of a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), 2008/0243 (COD) Art 28. 150 Art 28(3). 148

Daniel Wilsher

145

Part I – Commentary on the Articles of the EU Charter

(or of the date of an express acceptance if earlier). The detainee must be released if this time-limit (in effect a maximum of 12 weeks) is breached. (o) Detention Pursuant to Expulsion under the Returns Directive 06.54 The most important Union law authorising detention is the Returns Directive. It provides a comprehensive system for regulating detention in all cases when a third-country national is found to be illegally present in the EU. This Directive also applies to asylumseekers whose claims have been rejected if they have no valid permission to stay and no asylum appeal ongoing.151 The Directive contains elements that go beyond the obligations set out by the Strasbourg Court under Article 5(1)(f). Thus a period allowing voluntary return must be considered before detention and expulsion are ordered unless there is a risk of absconding, the migrant’s stay was fraudulent or there is a risk to public policy or security (Art 7). Detention is only possible where there is a risk of absconding or the immigrant hampers the removal process (Art 15(1)). Detention must therefore be necessary to prepare or carry out the removal process. Detention must be for as short a period as possible and only maintained whilst removal arrangements are in progress and executive with due diligence. Detention must cease immediately when it appears that there is no longer a reasonable prospect of removal. Most importantly, the periods of detention are regulated explicitly limited under Article 15 which imposes time-limits of six months (Art 15(5)) (extendable by a further 12 months in cases of non-cooperation by the detainee or third countries (Art 15(6)). The Court of Justice considered these provisions in Kadzoev.152 The Court held that there is a reasonable prospect of removal only where it appears that the migrant will be admitted to a third country within the 18-month period provided for in Article 15(5) and (6).153 Thus, that period performs a double function: it is the limit on pre-removal detention and the benchmark for assessing whether there is a reasonable prospect of removal.154 This is however potentially inconsistent with the judgment in Mikolenko155 which held that where a detainee refuses from the outset to cooperate then there can be no realistic prospect of removal and the further detention is a breach of Article 5(1)(f). The judgment in Kadzoev however makes clear that detention under the Returns Directive cannot exceed the 18-month limit set in Article 15(6); where this is reached, the detained migrant must be released immediately, regardless of public order concerns, because the removal process is then at an end.

151

Kadzoev (n 26). Ibid, noted by G Cornelisse (2011) 48 Common Market Law Review 925. 153 Ibid [64]–[66]. 154 This contrasted with the approach of Advocate General Mazák, who emphasised that the Directive’s provisions on maximum limits of detention were an expression of the principle of proportionality, which is referred to in Recital 16. Finally, he took the view that ‘reasonable prospect of removal’ in Art 15(4) means ‘realistic prospect’ of carrying out the removal within a ‘reasonable time’. No such realistic prospect exists where it is unlikely that a third country will agree to admit the detained migrant in the ‘reasonably near future’, or where removal on the basis of a readmission agreement is not possible within a ‘reasonable period’. 155 Mikolenko (n 125). 152

146

Daniel Wilsher

Art 6 – Right to Liberty and Security

(p) Detention Pursuant to the European Arrest Warrant156 The expedited procedures under the Framework Decision on the European Arrest 06.55 Warrant must be viewed as a type of extradition proceedings and therefore subject to the same principles as set out above for Article 5(1)(f) ECHR. The issuing judicial authority in one Member State directs an arrest warrant at an executing judicial authority in another Member State with a view to securing the arrest and surrender of a requested person for the purpose of conducting a criminal prosecution or executing a custodial sentence or detention order.157 Recital 12 states that the Framework Decision ‘respects fundamental rights and observes the principles ... reflected in the Charter of Fundamental Rights of the European Union’. The Framework Decision itself does not however contain a detailed regulatory code on arrest and detention as distinct from the main proceedings. The main Article authorising arrest (Art 12) refers only to national law: When a person is arrested on the basis of a European arrest warrant, the executing judicial authority shall take a decision on whether the requested person should remain in detention, in accordance with the law of the executing Member State. The person may be released promptly at any time in conformity with the domestic law of the executing Member State, provided that the competent authority of the said Member State takes all the measures it deems necessary to prevent the person absconding.

Article 12 assumes that a person will be arrested at the outset and that only thereafter 06.56 will release be considered. This is not inconsistent with Article 5(1)(f) ECHR in so far as the arrest relates to a person ‘against whom action is being taken with a view to deportation or extradition’. Article 12 goes further than Article 5(1)(f) in suggesting that release may occur so long as measures to prevent absconding are taken. Other provisions in the Framework Decision relating to the main proceedings also provide procedural guarantees pertinent to Article 5 ECHR. Thus Article 11 provides the detainee with the right to know about the warrant and its contents and to be assisted by a lawyer and interpreter in accordance with national law. Compliance with Article 5(1)(f) would also require a separate reasoned decision on the reason for detention. The detainee ‘shall be heard by a judicial authority’ pending a decision on the execution of a European Arrest Warrant (Art 19). This provision does not however explicitly state that the detainee may challenge the legality of the detention itself as required by Article 5(4) ECHR. Where the real concern relates to issues of criminal procedure, rather than any specific complaint about the detention itself, the Court of Justice has held that the relevant right is not Article 5 ECHR (and Article 6 Charter), but rather the right to a fair trial (Charter Articles 47 and 48).158 The strict legal time-limits regarding the execution of European Arrest Warrants, if 06.57 complied with, meet the ‘due diligence’ test. Thus Article 17(3) requires a final decision on execution of the warrant to be made within 60 days after the arrest in most cases, or 10 days if the detainee consents to their surrender. This may be extended by

156 Framework Decision on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA). 157 Ibid Art 1(1). 158 Ciprian Vasile Radu (n 6).

Daniel Wilsher

147

Part I – Commentary on the Articles of the EU Charter

30 days only. Surrender must take place as soon as possible and in any event within 10 days of the final decision (Art 23(2)). This may only be extended by 10 days due to circumstances beyond the control of any of the Member States (Art 23(3)). Surrender may be suspended for serious humanitarian reasons but once these cease to exist a new date must be agreed and the surrender follow within 10 days of this date (Art 23(4)). Importantly, upon expiry of these time limits ‘if the person is still being held in custody he shall be released’ (Art 23(5)). Finally, the period of detention served in the executing Member States must be deducted from the sentence to be served in the issuing State (Art 26). 06.58 When a Member State has substantial grounds for believing that a person whom it returns to another Member State under the EAW may face detention which is in flagrant violation of Article 6 then arguably it should decline to surrender the suspect. There is no definitive ruling on this from either the Court of Justice or the European Court of Human Rights but it may be inferred from other decisions regarding fundamental rights and transfer of detainees.159 (q) The Right to be Informed of the Reasons for One’s Arrest 06.59 Under Article 5(2) everyone, not just criminal suspects, has the right to be told promptly in simple, non-technical language that he understands the essential legal and factual reasons for his arrest.160 The obligation is imposed so that a person may then seek to challenge their detention under Article 5(4). The information need not be a detailed as that required to be provided to a person facing a criminal charge under Article 6(3) (a) ECHR. The requirement that it be provided promptly does not mean it must all be given at the moment of arrest. What is required depends upon the specific features of each case. Thus an interrogation a few hours after arrest which revealed the reasons to the detainee was held to be compliant.161 Sometimes the reasons may be obvious to the detainee without her needing to be told, as in the case of a person who presented forged identity papers to the police and was arrested upon the discovery of the forgery.162 For detainees who do not speak the language of their place of arrest, interpreters must be provided promptly to enable the reasons to be given. These obligations now find some expression, at least in criminal cases, in Union law through the Directive on the Right to Information in Criminal Proceedings.163

159 Case C-411/10 NS v Secretary of State for the Home Department (Judgment of 21 December 2011) in which the Court of Justice ruled it breached the Charter to order removal to a Member State where a breach of Art 4 would occur. Mamatkulov and Askarov v Turkey App nos 46827/99 and 46951/99 (Judgment of 4 February 2005), 41 EHRR 494 (discussion in Joint Partly Dissenting Opinion of Judges Bratza, Bonello and Hedigan) and Othman v UK App no 8139/09 (Judgment of 17 January 2012) both conclude that expulsion to face a criminal trial which would be in flagrant violation of Art 6 ECHR is impermissible. See also as regards Art 5 ECHR itself, Drozd and Janousek v France and Belgium App no 12747/87 (Judgment of 26 June 1992) where a previous conviction in a third country in flagrant denial of justice would render detention pursuant to international cooperation arrangements unlawful. 160 Kerr v UK App no 40451/98 (admissibility decision of 7 December 1999). 161 Murray v UK (1994) Series A no 300-A, (1995) 19 EHRR 193. 162 Dikme v Turkey App no 20869/92 (Judgment of 11 July 2000). 163 Directive 2012/13 on the right to information in criminal proceedings [2012] OJ L142/1.

148

Daniel Wilsher

Art 6 – Right to Liberty and Security

(r) The Right to Test the Legality of Detention The basic right of habeas corpus is protected by Article 5(4) ECHR and applies to all 06.60 types of detainee, not simply criminal suspects. In principle however this is not a right to challenge all elements of fact and discretion supporting the detention. Rather it is the right to have a court review those elements that are essential to the detention being ‘lawful’.164 This is in contrast to the case of criminal suspects, where the court acting under Article 5(3) must be empowered to review whether there is sufficient evidence to give rise to a reasonable suspect that an offence has been committed. For those detained following conviction by a court under Article 5(1)(a), the original trial usually provides adequate safeguards with respect to Article 5(4).165 The main importance of Article 5(4) therefore lies in cases of administrative detention under Articles 5(1)(b), (d), (e) and (f). In fact, the European Court of Human Rights has decided that in the case of mental health patients detained, the reviewing court must ensure that the Winterwerp criteria (see above) are met and so its review power must be wider than just legality.166 The position of immigration detainees was left uncertain by the decision Chahal which found that the domestic court had been unable to comply with Article 5(4) because it could not see and assess for itself the national security evidence relied upon by the government to support detention. This may be explained on the basis that when the state justifies immigration detention based upon a substantive reason, such as public security or absconding risk, the reviewing court should have the power to enquire into the factual basis for the decision and not simply conduct a review of legality.167 The court must be independent and offer adequate procedural guarantees, but it 06.61 need not be part of the standard judicial machinery.168 The procedural requirements will vary according to the type of detention under challenge but equality of arms and the right to be heard are essential.169 An adversarial oral hearing is required in cases involving criminal suspects or where detention depends upon an assessment of the detainee’s dangerousness or likely conduct.170 Reviews must be available speedily both after the initial arrest and at reasonable intervals thereafter if the circumstances supporting detention vary over time. The proceedings must also be conducted with due diligence. In a simple case, an initial review should not have taken three weeks to hear, whilst in more complex cases where medical evidence must be gathered a longer period

164

E v Norway (1990) Series A no 181, (1990) 17 EHRR 30. But see Hussain v UK App no 21928/93 (Judgment of 21 February 1996) for an exception when the parole board had the power to recall into detention a prisoner released on license after the alleged commission of further offences. Its findings were reached unfairly and in breach of Art 5(4), because no oral hearing was held and the applicant did not have access to the file. Similar considerations arose when convicted juvenile prisoners were held at Her Majesty’s pleasure, Singh v UK App no 23389/93 (Judgment of 21 February 1996) or adults following completion of the punitive element of a life sentence, Stafford v UK (n 69). Here, where continued detention depended upon assessment of dangerousness, the parole board must hold procedurally fair hearings enabling the detainees to see the file and challenge witnesses. 166 H v UK App no 45508/99 (Judgment of 5 October 2004), (2005) 40 EHRR 761. 167 Chahal v UK (n 105). 168 Weeks v UK (n 67); Assenov v Bulgaria (n 89). 169 Niedbala v Poland App no 27915/95 (Judgment of 4 July 2000). 170 Wloch v Poland (Judgment of 19 October 2000), (2002) 34 EHRR 229. 165

Daniel Wilsher

149

Part I – Commentary on the Articles of the EU Charter

might be acceptable.171 Article 5 only requires automatic judicial review of detention in cases where a suspect is detained pursuant to criminal proceedings (see Art 5(1)(c) and Art 5(3)). However in Shamsa v Poland172 the Strasbourg Court said in an immigration case, strictly obiter, that ‘detention that goes beyond several days which has not been ordered by a court or judge or other person authorised to exercise judicial power cannot be considered “lawful” within the meaning of Article 5(1).’ The Court argued that this was implicit from a review of Article 5 and in particular Articles 5(4), 5(3) and 5(1)(c).

V. Remedies 06.62 Neither Article 6 nor other provisions of the Charter directly provide for remedies in relation to any breach of the right to liberty. The most obvious remedy for unlawful detention would be an order declaring the detention to be unlawful and ordering it to cease. Interpreting Article 6 in conformity with Article 5 ECHR would mean applying Article 5(4), which requires a court to order release in such circumstances. Beyond the remedy of release, Article 5(5) ECHR imposes an obligation to provide everyone who has been a victim of a breach of Articles 5(1)–(4) with compensation. This goes beyond the standard right to an effective remedy for the other Convention rights which is given by Article 13. This provision has not been the subject of extensive development through jurisprudence by the Strasbourg Court. The cases suggest that where national law rules prevent compensation being awarded where a breach of Article 5(1)–(4) ECHR has occurred, this amounts to a breach of Article 5(5).173 This rejection of a virtual immunity from suit does not amount to strict liability. Indeed the approach taken to damages for breaches of European Union law normally requires a breach to be sufficiently serious.174 It is therefore an open question as to how far the Court of Justice may adopt a test of strict or fault-based liability for unlawful detention or other breaches of Article 6.

E. Evaluation 06.63 The inclusion of the right to liberty in the Charter reflects its status as one of the most historically significant and well-established rights recognised by liberal democracies. Until recently, however, it might have been considered of doubtful relevance to the practice of European Union law because its core concerns were far removed from those of EU policy-making. This has begun to change in important ways with the expansion of Union competence and law-making into the areas of criminal justice and immigration. Given the trend towards the EU promoting cross-border cooperation between Member States in returning individuals to face detention, the diversity of national standards and processes will come under greater scrutiny. The scope of European Union law increas-

171

Baranowski v Poland (n 64). Over two months to obtain medical reports was however unacceptable. Shamsa v Poland App nos 45355/99 and 45357/99 (Judgment of 27 November 2003). 173 Fox, Campbell and Hartley v UK (n 85); Hood v United Kingdom App no 27267/95 (18 February 1999), (2000) 29 EHRR 365. 174 Case C-46/93 Brasserie du Pêcheur SA v Germany [1996] ECR I-1029. 172

150

Daniel Wilsher

Art 6 – Right to Liberty and Security

ingly covers the physical restraint of convicts, suspects and immigrants with a view to their extradition to other Member States or expulsion from the Union. Despite this wide range of EU legislation that now bears upon detention of individuals, Article 6 has yet to be the subject of any interpretation by the Court of Justice. There remains a tension between protecting the liberty of individuals and promoting the Union’s policies of mutual recognition in criminal justice and control of the external border in asylum and immigration. Whilst the jurisprudence of the Strasbourg Court is quite extensive in this field and, as interpreted by the Court of Justice, will have to form the basis for the protection of Article 6, the EU political institutions too have acknowledged that further legislation may be needed to ensure that personal liberty is adequately safeguarded within the Member States. The continuation of divergent prison and detention centre conditions, arrest and remand procedures and police conduct all pose obstacles to achieving that close cooperation that the Union seeks in this field.

Daniel Wilsher

151

Article 7 (Private Life, Home and Communications) Article 7 Respect for Private and Family Life Everyone has the right to respect for his or her private and family life, home and communications.

Text of Explanatory Note on Article 7 The rights guaranteed in Article 7 correspond to those guaranteed by Article 8 of the ECHR. To take account of developments in technology the word ‘correspondence’ has been replaced by ‘communications’. In accordance with Article 52(3), the meaning and scope of this right are the same as those of the corresponding article of the ECHR. Consequently, the limitations which may legitimately be imposed on this right are the same as those allowed by Article 8 of the ECHR: ‘1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

Select Bibliography LFM Besselink, ‘Respecting Constitutional Identity in the EU’ (2012) 49 Common Market Law Review 671–93. C Costello, ‘Courting Access to Asylum in Europe: Recent Supranational Jurisprudence Explored’ (2012) 12 Human Rights Law Review 287–339. P van Dijk, F van Hoof, A van Rijn and L Zwaak (eds), Theory and Practice of the European Convention on Human Rights, 4th edn (Antwerp, Intersentia, 2006). Jacobs, White, and Ovey, The European Convention on Human Rights (RCA White and Clare Ovey), 5th edn (Oxford, Oxford University Press, 2010). S Lieven, ‘Case Report on C-411/10, NS and C-493/10, ME and Others, 21 December 2011’ (2012) 14 European Journal of Migration and Law 223–38. P Lorenzen et al (eds), Den Europæiske Menneskerettighedskonvention [ECHR Commentary], 3rd edn (Copenhagen, DJØF Publishing, 2011) Commentary on Article 8: J Vedsted-Hansen. While the ‘family life’ aspects of Article 7 CFR are discussed in a separate chapter, there is a narrow and often inseparable link with those aspects of Article 7 concerning the protection of ‘private life, home and communications’. This is the case not least where migrants can argue that their removal would threaten both their private life and their family life. This chapter on the ‘private life’ aspects of Article 7 therefore overlaps to an extent with the separate chapter on the ‘family life’ aspects of the provision.

Part I – Commentary on the Articles of the EU Charter

A. Field of Application of Article 7 (Private Life, Home and Communications) 07.01A In addition to the ‘family life’ aspects of Article 7, discussed in the separate chapter on that issue, particular issues arise pertaining to the right to respect for the ‘private life, home and communications’ aspects of Article 7 CFR, and more generally regarding the protection of fundamental rights as a general principle of EU law, in the field of the competition rules providing for inspection and searches of the premises of private companies by EU or Member State competition authorities. While the broad interpretation of the notions of ‘private life’ and ‘home’ in Article 8 ECHR had already been established by the ECtHR, this interpretation was developed further so as to include legal persons claiming to have a ‘home’ in the meaning of Article 8 ECHR in the Société Colas Est judgment in 2002. The case was brought before the ECtHR by three companies whose offices had been searched by the French competition authorities. Referring to the textual meaning of the French term ‘domicile’ as established in the Niemietz judgment, and to the principle of dynamic interpretation in the light of present-day conditions, the Court considered that the time had come to hold that ‘in certain circumstances the rights guaranteed by Article 8 of the Convention may be construed as including the right to respect for a company’s registered office, branches or other business premises’.1 This interpretation of the term ‘home’ has been upheld in subsequent cases under Article 8 ECHR.2 This interpretation resulted in the adjustment of the ECJ’s practice, that had previ07.02A ously rejected the applicability of Article 8 ECHR on commercial premises.3 Against the background of the more recent ECtHR interpretation, the ECJ accepted the applicability of that provision on measures taken by state authorities in the business premises of companies, regardless of the fact that these are organised as legal persons.4 This has been reconfirmed in connection with the Charter, the Court stating that ‘the need for protection against arbitrary or disproportionate intervention by public authorities in the sphere of the private activities of any person, whether natural or legal, constitutes a general principle of EU law’, while also referring to Article 7 CFR.5

B. Interrelationship of Article 7 with Other Provisions of the Charter 07.03A In addition to the Charter provisions which interact with the ‘family life’ aspects of Article 7, discussed in the separate chapter on those aspects of Article 7 CFR, there

1 Société Colas Est and Others v France (ECtHR, Judgment 16 April 2002) [41]. See further comments on this line of ECtHR case law in section D.II(a) below. 2 Cf ECtHR judgments in Buck v Germany (28 April 2004) [31], Association for European Integration and Human Rights and Ekimdzhiev v Bulgaria (28 June 2007) [60], Bernh Larsen Holding AS and Others v Norway (14 March 2013), and Saint-Paul Luxembourg SA v Luxembourg (18 April 2013). 3 Cf Joined Cases 46/87 and 227/88 Hoechst AG v Commission (ECJ, Judgment 21 September 1989). 4 Case C-94/00 Roquette Frères (ECJ, Judgment 22 October 2002). 5 Case T-135/09 Nexans France SAS and Nexans SA v European Commission (CJEU, Judgment 14 November 2012 (GC)) [40].

154

Jens Vedsted-Hansen

Art 7 – Private Life, Home and Communications

are several Charter provisions which interact in particular with the ‘private life, home and communications’ aspects of that Article. Article 17 (right to property) may be of particular relevance to the protection of the home under Article 7. Furthermore, while Article 8 CFR deals specifically with the right to protection of personal data,6 this aspect of the protection of private life should also be mentioned in the context of Article 7 CFR. Both of these Charter provisions are based on Article 8 ECHR, and must therefore be interpreted consistently in accordance with their common Convention basis.7

C. Sources of Article 7 Rights In addition to Article 8 of the European Convention of Human Rights and the other 07.04A Council of Europe treaties referred to in the chapter on the ‘family life’ aspects of Article 7 CFR, Article 12 of the Universal Declaration of Human Rights (UDHR) recognises that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon honour and reputation, and Article 17 of the International Covenant on Civil and Political Rights (ICCPR) states that ‘no one shall be subjected to arbitrary or unlawful interference with privacy, family, home or correspondence, nor to unlawful attacks on honour and reputation’.

D. Analysis I. General Remarks As with the family life aspects of Article 7 CFR (see the separate chapter), this provision 07.05A of the Charter is addressed to the protection of the right to private life, home and communications within European Union law, and as such has general application to any field of EU law where these partly overlapping elements of the right may be affected. These aspects of Article 7 have also, like the ‘family life’ aspects, arguably led to an increase in the influence of the ECtHR’s case law with regard to its interpretation by the CJEU, and have a wide-ranging scope with application to a number of regulatory contexts. Again, since Article 7 CFR (like Art 8 ECHR) is a qualified right, any interference with the protected rights will be prohibited unless it falls within the limitations permitted by Article 52 CFR, in accordance with Article 8(2) ECHR.

II. Scope of Application Whereas the concept of private life has a separate meaning as an autonomous concept of 07.06A both ECHR and EU fundamental rights law, it is closely linked to the concepts of family life, home and communication. Thus, private life is to be considered as an overarching

6 7

See the commentary on Art 8 in this book. See further on data protection in the context of Art 7, below section D.III(f).

Jens Vedsted-Hansen

155

Part I – Commentary on the Articles of the EU Charter

concept in relation to the other rights elements under Article 8 ECHR8 and similarly in Article 7 CFR. Based on the ECtHR interpretation of the former provision, the concept of private life can be characterised as encompassing the physical, psychological and moral aspects of the personal integrity, identity and autonomy of individuals.9 Private Life 07.07A The precise meaning of private life, as distinguished from family life, home and communications, can be difficult to define in abstract terms, and the distinction will in practice often be of minor importance inasmuch as the general applicability of Article 8 ECHR or Article 7 CFR will be beyond doubt. Nonetheless, ECtHR judgments normally specify which of the four aspects under Article 8 ECHR are at stake in the individual case. In some instances this may be a matter for further elaboration in order to clarify the distinction for either practical or principled reasons, depending on the circumstances of the individual case. 07.08A An example with such principled implications is a case concerning same-sex relationships, which traditionally have been considered exclusively as a feature of private life, but not recognised as family life under Article 8 ECHR.10 This longstanding practice may in itself be seen as an illustration of the inseparability of family life and private life, given the historical and political circumstances underlying the traditional legal qualification of such intimate relationships. However, against the background of the ‘rapid evolution of social attitudes towards same-sex couples in European states’, as well as certain provisions of EU law reflecting a tendency to include same-sex couples in the notion of ‘family’, the ECtHR in 2010 considered it ‘artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy “family life” for the purposes of Article 8’. Consequently the relationship of a cohabiting same-sex couple living in a stable de facto partnership was held to fall within the notion of ‘family life’ under Article 8.11 In another case that dealt with the state’s positive obligation to provide for efficient procedures to establish paternity, in order to avoid leaving the child in a state of uncertainty concerning the biological truth about her personal identity and the legal relationship to the putative father, the Court held that, in the absence of such procedures, no family tie had been established between the child and the alleged father,

8 Cf P van Dijk, F van Hoof, A van Rijn and L Zwaak (eds), Theory and Practice of the European Convention on Human Rights, 4th edn (Antwerp, Intersentia, 2006) 664–65; Jacobs, White, and Ovey, The European Convention on Human Rights (RCA White and C Ovey), 5th edn (Oxford, Oxford University Press, 2010) 358–59; P Lorenzen et al, Den Europæiske Menneskerettighedskonvention [ECHR Commentary], 3rd edn (Copenhagen, DJØF Publishing, 2011) 649–53. 9 Cf van Dijk et al, ibid, p 665; Lorenzen et al, ibid, p 650. See, as significant examples, Pretty v United Kingdom (ECtHR, Judgment 29 April 2002) [61]; Christine Goodwin v United Kingdom (ECtHR, Judgment 11 July 2002 (GC)) [90]; Evans v United Kingdom (ECtHR, Judgment 10 April 2007 (GC)) [71]; and A, B and C v Ireland (ECtHR, Judgment 16 December 2010 (GC)) [212]. 10 Cf van Dijk et al (n 8) p 693; Jacobs, White, and Ovey (n 8) p 337. 11 Schalk and Kopf v Austria (ECtHR, Judgment 24 June 2010) [90]–[95]. As regards EU law developments, reference was made in para 26 of the judgment to Art 9 CFR, Art 4(3) of Directive 2003/86 on the right to family reunification, and Art 2(2) of Directive 2004/38 concerning the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States. Notably, an attempt to refer the case to the Grand Chamber of the ECtHR failed, according to a Panel decision of 22 November 2010. On this judgment, see Lorenzen et al (n 8) pp 707–08.

156

Jens Vedsted-Hansen

Art 7 – Private Life, Home and Communications

and the issue to be decided under Article 8 ECHR was therefore one pertaining to the child’s private life.12 In the Niemietz case concerning a police search of a lawyer’s office, the ECtHR defined 07.09A private life in more general terms, while emphasising that it was neither possible nor necessary to attempt an exhaustive definition of the notion of ‘private life’. However, the Court held that it would be too restrictive to limit the notion to an ‘inner circle’ in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.13

The Court further stated that there appeared to be no reason of principle why this 07.10A understanding of the notion of ‘private life’ should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world. This view is supported by the fact that … it is not always possible to distinguish clearly which of an individual’s activities form part of his professional or business life and which do not. Thus, especially in the case of a person exercising a liberal profession, his work in that context may form part and parcel of his life to such a degree that it becomes impossible to know in what capacity he is acting at a given moment of time.14

Home In line with this broad definition of private life, the ECtHR has interpreted the con- 07.11A cept of home as including premises used for professional or commercial purposes. In Niemietz the Court referred to the broader connotation of the term ‘domicile’ in the French language version of the Convention, and pointed to the fact that it may not always be possible to draw precise distinctions between private residences and commercial premises as regards activities related to a profession or business, or activities not so related. Furthermore, interpreting ‘private life’ and ‘home’ as including certain professional or business activities or premises was considered to be consonant with the essential object and purpose of Article 8 ECHR, namely to protect the individual against arbitrary interference by public authorities. At the same time, the Court indicated that such an interpretation would not unduly hamper the Contracting States as they would retain their entitlement to interfere in accordance with Article 8(2), and that entitlement ‘might well be more far-reaching where professional or business activities or premises were involved than would otherwise be the case’.15 A more recent case concerning police search of a law office had an EU law dimension, 07.12A in that the contested search had been carried out by the French police in a residence in France in which a Portuguese lawyer occasionally carried out his professional activities.

12 13 14 15

Mikulic v Croatia (ECtHR, Judgment 7 February 2002) [51]–[55]. Niemietz v Germany (ECtHR, Judgment 16 December 1992) [29]. Ibid [29]. Ibid [30]–[31]. See also Bernh Larsen Holding (n 2) [104].

Jens Vedsted-Hansen

157

Part I – Commentary on the Articles of the EU Charter

The fact that he was not formally registered as a lawyer permanently practising in France was held to be immaterial, since he had his main law office in another EU Member State, and the ECtHR found the search to be in violation of Article 8 ECHR due to the absence of procedural safeguards that are of crucial importance in case of searching of law offices.16 07.13A The above-mentioned judgments in which the ECtHR established its broad interpretation of the notions of ‘private life’ and ‘home’ concerned liberal professions such as practising lawyers. However, subsequent cases have developed the interpretation further so as to include also various kinds of legal persons claiming to have a ‘home’ in the meaning of Article 8 ECHR. 07.14A An important step towards clarification of the status of legal persons in this regard was taken in the Société Colas Est judgment in 2002. The case was brought before the ECtHR by three companies whose offices had been searched by the French competition authorities. Referring to the textual meaning of the term ‘domicile’ as established in the Niemietz judgment, and to the principle of dynamic interpretation in the light of present-day conditions, the Court considered that the time had come to hold that ‘in certain circumstances the rights guaranteed by Article 8 of the Convention may be construed as including the right to respect for a company’s registered office, branches or other business premises’. The Court further observed that ‘during a large-scale administrative investigation, officials from the DGCCRF went to the applicant companies’ head offices and branches in order to seize several thousand documents’.17 Considering that the scale of the operations that were conducted in order to prevent the disappearance or concealment of evidence of anti-competitive practices justified the impugned interference with the applicant companies’ right to respect for their premises, the Court stated that the relevant legislation and practice should nevertheless have afforded adequate and effective safeguards against abuse.18 In the absence of such safeguards the Court held that—‘even supposing that the entitlement to interfere may be more far-reaching where the business premises of a juristic person are concerned’—the impugned operations in the competition field could not be regarded as strictly proportionate to the legitimate aims pursued.19 Article 8 ECHR had therefore been violated by the search carried out. The interpretation of the term ‘home’ here adopted has been upheld in more recent cases concerning legal persons under Article 8.20 07.15A As regards EU law, this resulted in the adjustment of the ECJ’s practice that had previously, in the absence of ECtHR case law clarifying the interpretation of Article 8 ECHR in that respect, rejected the applicability of Article 8 on commercial premises.21 Against the background of the more recent interpretation of Article 8, in particular in Société Colas Est, the ECJ took a different position accepting the applicability of that provision on measures taken by state authorities in the business premises of companies, regardless

16

Xavier Da Silveira v France (ECtHR, Judgment 21 January 2010) [37]–[41]. Société Colas Est (n 1) [41]–[42]. 18 Ibid [48]. 19 Ibid [49]. 20 Cf ECtHR judgments in Buck (n 2) [31]; Association for European Integration and Human Rights and Ekimdzhiev (n 2) [60]; Bernh Larsen Holding AS (n 2); and Saint-Paul Luxembourg (n 2). 21 Cf Hoechst AG v Commission (n 3). 17

158

Jens Vedsted-Hansen

Art 7 – Private Life, Home and Communications

of the fact that these are organised as legal persons.22 The adjusted interpretation is equally valid to Article 7 CFR, as expressly stipulated in Article 52(3) CFR. This has been reconfirmed by the CJEU, stating that ‘the need for protection against arbitrary or disproportionate intervention by public authorities in the sphere of the private activities of any person, whether natural or legal, constitutes a general principle of EU law’, and referring in that connection to Article 7 CFR.23 Having restated this principle, the Court added in a subsequent case: As regards the determination of the scope of that principle in relation to the protection of business premises, the Court has held that regard must be had to the fact that the protection of private life provided for in Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms … and in Article 7 of the Charter of Fundamental Rights … must be respected and the protection of the home extended to cover business premises ….24

The expanding interpretation of Article 8 ECHR has nonetheless elucidated certain 07.16A conceptual limits of the material scope of protection of legal persons as regards the notions of ‘private life’ and ‘home’. Thus, an association or a company cannot as such claim protection under these terms against factual circumstances that can, by their very nature, only be suffered as interferences by physical persons. For instance, negative environmental impact on the premises of a company cannot be considered an infringement with the right to respect for the ‘home’ of that legal person because such interferences can be experienced by physical persons only. Consequently, in such circumstances, the legal person will be able to achieve victim status under Article 34 in respect of Article 8 ECHR exclusively on behalf of its employees or, for an association, its members.25 This signifies a potentially important distinction between legal and physical persons 07.17A in terms of the protection of the corresponding rights under Article 7 CFR. Arguably, distinguishing between the two types of beneficiaries of these Charter rights might have relatively stronger practical impact on the protection of domiciles and other private spheres of commercial companies in the Charter context than under Article 8 ECHR.

22

Roquette Frères (n 4). Nexans v Commission (n 5) [40]. 24 Case T-410/09 Almamet GmbH v European Commission (CJEU, Judgment 12 December 2012 (GC)) [23]. See also Case T-462/12 R Pilkington Group Ltd v European Commission (CJEU, Order 11 March 2013 (GC)) [44] (quoted below, section D.III(f)). 25 Cf Asselbourg and Others and Greenpeace Association-Luxembourg v Luxembourg (ECtHR, admissibility decision of 29 June 1999). In this case, the applicant non-governmental organisation and a number of physical persons complained of damage to the environment that ‘affected their quality of life and deprived them of the peaceful enjoyment of their homes (or of their registered office in the case of the association Greenpeace), in such a way as to infringe their right to respect for their private and family life’. The Court’s consideration that this association ‘cannot claim to be the victim of an infringement of the right to respect for its “home”, within the meaning of Article 8 of the Convention’ merely because it has its registered office close to the source of pollution, therefore appears to be equally valid to the notions of home, private life and family life under Article 8 ECHR. Cf the Court’s more general statement, with reference to the aforementioned decision, in admissibility decision of 7 February 2006, Michel Besseau et autre c France, concerning ‘nuisances ou de troubles qui ne peuvent être ressenties que par des personnes physiques’. See also admissibility decision of 10 July 2006, Sdruzeni Jihoceske Matky c République tchèque, in which the ECtHR noted that the applicant association was ‘une personne morale, qui ne saurait se prétendre victime d’une violation des droits personnels dont les titulaires ne peuvent être que les personnes physiques, tels les droits à la vie et à la santé. Elle ne saurait non plus invoquer le droit au respect de son “domicile”, au sens de l’article 8 de la Convention, du seul fait qu’elle a son siège près de la centrale qu’elle critique, lorsque l’atteinte à ce droit résulte de nuisances ou de troubles qui ne peuvent être ressentis que par des personnes physiques’. 23

Jens Vedsted-Hansen

159

Part I – Commentary on the Articles of the EU Charter

This seems to follow from to the requirement under Article 51 CFR of a link to the scope of EU law in order for Member States to be bound by the Charter, insofar as such link is likely to exist more frequently for legal persons in the context of EU law. 07.18A The relevance of this distinction between legal and physical persons can be illustrated by a CJEU case in which a preliminary ruling was sought concerning the validity of provisions of secondary EU law laying down an obligation to publish data relating to the beneficiaries of funds under the common EU agricultural policy. Here the Court held that ‘the right to respect for private life with regard to the processing of personal data, recognised by Articles 7 and 8 of the Charter, concerns any information relating to an identified or identifiable individual’ and that the limitations which may lawfully be imposed on the right to the protection of personal data correspond to those tolerated in relation to Article 8 ECHR.26 As regards the validity of two of the disputed provisions, the Court stated: It must be recalled, in the first place, that the publication required by Article 44a of Regulation No 1290/2005 and Regulation No 259/2008 implementing that article identifies by name all beneficiaries of aid from the EAGF and the EAFRD, among whom are both natural and legal persons. Having regard to the observations in paragraph 52 above, legal persons can claim the protection of Articles 7 and 8 of the Charter in relation to such identification only in so far as the official title of the legal person identifies one or more natural persons.27

07.19A The distinction between legal and natural persons was operationalised by the Court in declaring the disputed provisions of the two Regulations invalid in so far as, with regard to natural persons who are beneficiaries of EAGD and EAFRD aid, those provisions impose an obligation to publish personal data relating to each beneficiary without drawing a distinction based on relevant criteria, such as the periods during which those persons have received such aid, the frequency of such aid or the nature and amount thereof.28 To the contrary, with regard to legal persons ‘in so far as they may invoke the rights conferred by Articles 7 and 8 of the Charter’, the Court took the view that the obligation to publish following from the disputed EU provisions did not go beyond the limits imposed by compliance with the principle of proportionality. In this connection the Court made the following more general observation: The seriousness of the breach of the right to protection of personal data manifests itself in different ways for, on the one hand, legal persons and, on the other, natural persons. It is necessary to point out in this regard that legal persons are already subject to a more onerous obligation in respect of the publication of data relating to them. Furthermore, the obligation on the competent national authorities to examine, before the data in question are published and for each legal person which is a beneficiary of EAGF or EAFRD aid, whether the name of that person identifies natural persons would impose on those authorities an unreasonable administrative burden.29

07.20A The Court therefore held that the EU law provisions, the validity of which was questioned by the referring court, observed, in so far as they concern the publication of

26 Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen (CJEU, Judgment 9 November 2010 (GC)) [52]. 27 Ibid [53] (emphasis added). 28 Ibid [92]. 29 Ibid [87] (emphasis added).

160

Jens Vedsted-Hansen

Art 7 – Private Life, Home and Communications

data relating to legal persons, a fair balance in the consideration taken of the respective interests in issue.30 Communications The express right to respect for communications can be seen as a supplement to the 07.21A protection of private life and home. Indeed, in practice the protection of communications often overlaps with these other rights elements, in particular the right to respect for private life.31 In Article 7 CFR the term ‘communications’ has replaced the word ‘correspondence’ in Article 8 ECHR. As indicated in the CFR Explanation on Article 7, this is meant to take account of developments in technology. However, in the interpretation of Article 8 ECHR the ECtHR has a well-established practice of extending the scope of protection so as to cover any technical form of communication, including telephone calls and conversations, telegrams, telefaxes, communication by radio, email and other forms of internet communication.32 The protection extends whether or not the communication is still being processed or it has already been received and is stored by the addressee. Unsurprisingly, the protection of communications includes not only correspondence 07.22A of a personal or intimately ‘private’ nature between individual physical persons, but also correspondence with professional and commercial content.33 In addition, communications are protected regardless of the fact that they are being initiated, received or stored at the workplace.34

III. Specific Provisions (a) Union Citizenship Name and Personal Identity The identity of physical persons being one of the core aspects of private life as protected 07.23A by Article 8 ECHR, this concept in Article 7 CFR can be assumed to cover individual identity as well. The personal sphere connected to individuals’ identity includes the physical, psychological and social identity, consisting of such features as name, family origin, ethnic background, gender identification, sexual orientation and sexual life.35 Since a person’s name is not merely a matter of individual identity, but also linked 07.24A to the family of which she or he is a member, the ECtHR has often considered name

30

Ibid [88]. Cf Jacobs, White, and Ovey (n 8) p 361. 32 Ibid, p 360; van Dijk et al (n 8) pp 734–38. 33 Cf ECtHR judgments in Kopp v Switzerland (25 March 1998); Wieser and Bicos Beteiligungen GmbH v Austria (16 October 2007); and Iliya Stefanov v Bulgaria (22 May 2008), all concerning searches in law offices. 34 Cf ECtHR judgments in Halford v United Kingdom (25 June 1997); Copland v United Kingdom (3 April 2007); and Bernh Larsen Holding (n 2). 35 Dadouch v Malta (ECtHR, Judgment 20 July 2010) [47]. Cf van Dijk et al (n 8) pp 669–71, 677–80, 682–86; Jacobs, White, and Ovey (n 8) pp 377–87. 31

Jens Vedsted-Hansen

161

Part I – Commentary on the Articles of the EU Charter

issues under both of the notions of private life and family life as a ‘means of personal identification and of linking to a family’, thus reflecting the inseparability of these two notions.36 While society and the state have legitimate interests in regulating the usage of names, such public law aspects are in themselves well in line with the perception of private life as encompassing rights to establish and develop relations with other human beings, including in professional and commercial relations.37 07.25A The relevance of personal identity from the perspective of Article 7 CFR may seem rather limited, given that significant features of this aspect of private life cannot be said to have any relevant link to EU law as it stands today. Nonetheless, issues of personal identity appear to be of increasing relevance in the context of Union citizenship. Such a link between the Charter and the scope of EU law was accepted by the CJEU in a case concerning an Austrian national, resident in Germany, who had been precluded by the Austrian law on the abolition of the nobility from bearing the title of ‘Fürstin von’ that she had acquired in Germany by being adopted by a German national with a similar title of nobility. Challenging the correction of her name in the Austrian register of civil status, the Austrian national argued that the amendment of her surname which she had used continuously for 15 years constituted interference with her right to respect for family life guaranteed by Article 8 ECHR, and that the interference was with an established right acquired in good faith and therefore could not take place without a particular necessity to do so. 07.26A The Austrian administrative court referred to the CJEU the question whether Article 21 TFEU precludes Member States from refusing to recognise all the elements of the surname of a national as determined in another Member State in which that national resides, where that surname includes a title of nobility which is not permitted in the first Member State under its national law. As a preliminary observation the CJEU noted that although, as EU law stands at present, the rules governing a person’s surname and the use of titles of nobility are matters within the competence of the Member States, these states must nonetheless, when exercising that competence, comply with EU law.38 In this regard Article 21 TFEU was considered applicable to the applicant’s situation because she, in her capacity as Union citizen, had made use of the freedom to move and reside in another Member State than that of her nationality. The Court therefore found it necessary to examine in the light of this provision the refusal by the Austrian authorities to recognise all the elements of a surname obtained by means of adoption in Germany.39 07.27A Issues raised by conflicts of name legislation between Member States, due to differences between the law of a Member State of nationality and the Member State of actual residence, had been dealt with by the CJEU in previous cases on the basis of Articles

36 Burghartz v Switzerland (ECtHR, Judgment 22 February 1994) [24]. See also ECtHR judgments in Ünal Tekeli v Turkey (16 November 2004) [42]; and Daróczy v Hungary (1 July 2008) [26]. 37 Cf Ünal Tekeli (n 36) [42]: ‘Article 8 of the Convention does not contain any explicit provisions on names, but as a means of personal identification and of linking to a family, a person’s name nonetheless concerns his or her private and family life. The fact that there may exist a public interest in regulating the use of names is not sufficient to remove the question of a person’s name from the scope of private and family life, which has been construed as including, to a certain degree, the right to establish relationships with others.’ 38 Case C-208/09 Ilonka Sayn-Wittgenstein (CJEU, Judgment 22 December 2010) [38]. 39 Ibid [39], [42].

162

Jens Vedsted-Hansen

Art 7 – Private Life, Home and Communications

17 and 18 TEC on Union citizenship.40 As regards children with the nationality of two Member States, the Court had already held that a discrepancy in surnames is liable to cause serious inconvenience for those concerned at both professional and private levels resulting from, inter alia, difficulties in benefiting, in the Member State of which they are nationals, from the legal effects of diplomas or documents drawn up in the surname recognised in another Member State of which they are also nationals.

Such serious inconvenience could likewise arise where a child has only one single 07.28A nationality, because [i]t matters little in that regard whether the discrepancy in surnames is the result of the dual nationality of the persons concerned or of the fact that, in the State of birth and residence, the connecting factor for determination of a surname is residence whilst, in the State of which those persons are nationals, it is nationality.41

In the case of Sayn-Wittgenstein the CJEU included references to the Charter in its rea- 07.29A soning on the effects of conflicting name legislation, yet apparently with limited impact. The Court noted that a person’s name is a constituent element of his identity and of his private life, the protection of which is enshrined in Article 7 CFR and in Article 8 ECHR. Quoting the ECtHR interpretation, the CJEU stated that even though the latter provision does not refer to it explicitly, a person’s name ‘as a means of personal identification and a link to a family, none the less concerns his or her private and family life’.42 In line with its previous case law, the CJEU continued its examination on the basis of the Treaty provisions on Union citizenship by stating that national legislation which places certain nationals of the Member State concerned at a disadvantage simply because they have exercised their freedom to move and to reside in another Member State is a restriction on the freedoms conferred by Article 21 TFEU on every citizen of the Union. The Court further stated that obliging a person who has exercised his right to move and reside freely in the territory of another Member State to use a surname, in the Member State of which he is a national, which is different from that already conferred and registered in the Member State of birth and residence is liable to hamper the exercise of the right, established in Article 21 TFEU, to move and reside freely within the territory of the Member States.43

Against this background the CJEU held that for the applicant in the main proceedings, 07.30A ‘serious inconvenience’ would result from having to alter all the traces of a formal nature of the name ‘Fürstin von Sayn-Wittgenstein’ left in both the public and the private spheres, given that her official identity documents currently refer to her by a different name … Consequently, every time the applicant in the main proceedings, holding a passport in the name of ‘Sayn-Wittgenstein’, is obliged to prove her identity or her family name in Germany, her State of residence, she risks having to dispel suspicion of false declaration caused by the divergence between the corrected name which appears

40 ECJ judgments in Cases C-148/02 Garcia Avello (2 October 2003) and C-353/06 Grunkin and Paul (14 October 2008). While the Court made no mention of the CFR in these rulings, Advocate General Sharpston referred to Art 24 CFR as well as human rights treaty provisions on rights of children in her opinion of 24 April 2008 on Grunkin and Paul [9]. 41 Grunkin and Paul ibid [23]–[24]. 42 Ilonka Sayn-Wittgenstein (n 38) [52]. 43 Ibid [53]–[54], referring to Grunkin and Paul and other ECJ rulings.

Jens Vedsted-Hansen

163

Part I – Commentary on the Articles of the EU Charter

in her Austrian identity documents and the name which she has used for 15 years in her daily life, which was recognised in Austria until the correction in question and which is given in the documents drawn up in her regard in Germany, such as her driving licence.

07.31A As such difference in surnames is liable to give rise to doubts as to the person’s identity and the authenticity of the documents submitted, or the veracity of their content, the Court concluded that the refusal of the Austrian authorities to recognise all the elements of the surname of their national, as determined in Germany where she was residing and as entered for 15 years in the Austrian register of civil status, was a restriction on the freedoms conferred by Article 21 TFEU.44 07.32A This restriction was considered justified, however, since the law on the abolition of the nobility as an element of national identity, in the context of Austrian constitutional history, should be taken into account when striking a balance between legitimate interests and the right of free movement under EU law, and that justification was to be interpreted as reliance on public policy.45 In its consideration of the proportionality of the restriction, the Court referred to the principle of equal treatment as a general principle of EU law, enshrined in Article 20 CFR, and to Article 4(2) TEU concerning respect for the national identities of Member States, holding that there was no doubt that the objective underlying the abolition of the nobility, that of observing the principle of equal treatment, was compatible with EU law. Consequently, the CJEU considered the public policy grounds as being proportionate, and therefore not unjustifiably undermining the freedom to move and reside enjoyed by Union citizens.46 It may seem noteworthy that the protection of a person’s name as an element of identity and of private life as enshrined in Article 7 CFR was only rather sporadically mentioned as a preliminary point in the Court’s reasoning, while this Charter provision was generally absorbed by considerations of free movement for Union citizens under Article 21 TFEU. Admittedly, the Court did make further reference to the Charter in its final assessment of the proportionality of the restriction imposed by the national measure, yet here it referred to Article 20 CFR on equality before the law as a basis for justifying the public policy aim of abolishing the nobility. 07.33A A more recent CJEU ruling on conflicts of name legislation between Member States followed the pattern of reasoning applied in the above-mentioned case. The questions referred to the Court in this case derived from the refusal by Lithuanian authorities to amend the birth certificate and marriage certificate of a Lithuanian national and her Polish husband so as to comply with the spelling rules of the latter’s Member State of nationality. Recognising the importance attached to Union citizenship which is ‘intended to be the fundamental status of nationals of the Member States’, the Court again considered the situation to fall within the scope of EU law, as both of the applicant spouses had exercised their freedom to move and reside in Member States other than those of their origin, and Article 21 TFEU therefore constituted the relevant link between the Charter and EU law.47 Here again, the Court referred to Article 7 CFR and

44

Ibid [67]–[71]. Ibid [83]–[84]. See, on the constitutional aspects of the case, LFM Besselink, ‘Respecting Constitutional Identity in the EU’ (2012) 49 Common Market Law Review 671–93. 46 Ibid [89]–[95]. 47 Case C-391/09 Malgozata Runevic-Vardyn and Lukasz Pawel Wardyn (ECtHR, Judgment 12 May 2011) [60]–[65]. 45

164

Jens Vedsted-Hansen

Art 7 – Private Life, Home and Communications

Article 8 ECHR as a preliminary point,48 while basing its examination of the existence of a restriction on freedom of movement and residence and of the justification for such restriction primarily on Article 21 TFEU.49 Thus, the national authorities’ refusal to amend certificates of civil status was examined as a matter of restriction on freedom of movement and residence, rather than as one of interference with—or lack of action to respect—the right to respect for private and family life under Article 7 CFR. The Charter was again quoted in the context of the justification test, where Article 7 CFR was supplemented by Article 22 CFR on respect for cultural and linguistic diversity, along with Articles 3(3) and 4(2) TEU.50 Limitations on the Right of Residence Since one of the features of Union citizenship is the possibility of being subject to sur- 07.34A render under the European Arrest Warrant,51 the potential impact of the Charter may also be raised in connection with requests for such surrender. So far, however, the CJEU seems to have been reluctant to base the interpretation of the EAW Framework Decision on fundamental rights considerations. In a case concerning the request for surrender of a Romanian national residing in 07.35A Belgium, against whom an arrest warrant had been issued for the purpose of executing a sentence of four years’ imprisonment that had been passed against him in absentia in Romania, the Belgian court referred the question to the CJEU whether the EAW Framework Decision may be interpreted as meaning that the execution of an arrest warrant issued for the purpose of execution of a sentence imposed in absentia may be subject to the condition that the person concerned, if a national or resident of the executing Member State, should be returned to that Member State in order to serve there the sentence passed in a new trial organised in his presence in the issuing Member State.52 In other words, the question was whether the possibility to condition surrender on the return of the national or resident to the executing Member State also applies in a situation where surrender is sought for the purpose of retrial, or whether the right to serve a sentence in the Member State of residence or nationality can be derogated from in cases where retrial is sought in the issuing Member State upon a sentence passed in absentia. In answering this, the CJEU referred exclusively to the relevant provisions of the 07.36A EAW Framework Decision, indeed holding that the execution of an arrest warrant may be subject to such condition of return to serve the sentence in the executing Member State following retrial in the issuing Member State.53 In a rather different approach to the interpretation issue, the Advocate General had emphasised the need to interpret the Framework Decision in the light of fundamental rights, arguing that this has ‘become

48

Ibid [66]. Ibid [69]–[82] and [83]–[93], respectively. 50 Ibid [89], [86]. See the brief comment on this case in Besselink (n 45) p 680. 51 Framework Decision 2002/584 on the European arrest warrant and the surrender procedures between Member States, [2002] OJ L190/1. 52 Cf ibid, Art 5(3) taken together with Arts 4(6) and 5(1). 53 Case C-306/09 IB (CJEU, Judgment 21 October 2010) [48]–[61]. 49

Jens Vedsted-Hansen

165

Part I – Commentary on the Articles of the EU Charter

more imperative since the entry into force of the Charter of Fundamental Rights, Article 7 of which covers the right to private and family life’.54 07.37A The opposite situation occurred in a case concerning expulsion of a Greek national from Germany following a sentence of six years and six months’ imprisonment for illegal dealing in substantial quantities of narcotics as part of an organised group. While the questions referred to the CJEU concerned the interpretation of Directive 2004/38, the Court’s ruling on the concepts of ‘imperative grounds of public security’ and ‘serious grounds of public policy or public security’55 in relation to such criminal offences emphasised that account must be taken of the fundamental rights whose observance the Court ensures, insofar as reasons of public interest may be relied on to justify a national measure which is liable to obstruct the exercise of freedom of movement for persons only if the measure in question takes account of such rights, in particular the right to respect for private and family life as set forth in Article 7 CFR and Article 8 ECHR.56 This view was further explained by the Court with reference to the main criteria for assessing the proportionality of expulsion decisions as developed by the ECtHR under Article 8(2), concluding that in the case of a Union citizen who has lawfully spent most or even all of his childhood and youth in the host Member State, very good reasons would have to be put forward to justify the expulsion measure.57 (b) Family Reunification Family Members of Union Citizens 07.38A While the Charter of Fundamental Rights seems to have limited impact on the general delimitation of Union citizens’ residence rights under Directive 2004/38, one might expect it to be considered relevant to the interpretation of the specific Directive provisions dealing with the right of residence for family members of Union citizens, in particular those family members who are third-country nationals. As the right of residence for these family members in a Member State exists merely as a derivative of that of their Union citizen relative, such cases may raise issues concerning private and family life, as protected under Article 7 CFR, similar to the family reunification cases discussed below. Even here, however, the Charter has played only a marginal role as a source of reference in CJEU rulings. 07.39A An illustrative example is the Rahman case, in which the Court was asked to clarify the interpretation of Article 3(2) of Directive 2004/38 concerning Member States’ duty to facilitate entry and residence for relatives of Union citizens not falling within

54 Ibid (Opinion of 6 July 2010 of Advocate General Cruz Villallón) [44]. It was here further stated that ‘[u]ntil now the case-law of the Court of Justice on this issue has related very specifically to the free movement of persons but has not involved itself directly in the relationship between this right and judicial cooperation in criminal matters … Nevertheless, from 1 December 2009, it is imperative that Articles 4(6) and 5(3) of the Framework Decision should be interpreted in the light of Article 7 of the Charter.’ 55 Cf Art 28(3) and 28(2) of Directive 2004/38. 56 Case C-145/09 Land Baden-Württemberg v Panagiotis Tsakouridis (CJEU, Judgment 23 November 2010) [52]. Notably, in this case the Advocate General only referred to Art 45 CFR on the freedom of movement of persons, cf ibid (Opinion of 8 June 2010 of Advocate General Bot) [36]. 57 Ibid [53], referring to Maslov v Austria (ECtHR, Judgment 23 June 2008) [71]–[75].

166

Jens Vedsted-Hansen

Art 7 – Private Life, Home and Communications

the definition of family members in Article 2(2) of the Directive, who are nonetheless dependants or members of the household of the Union citizen.58 The Court’s ruling made no mention of the Charter of Fundamental Rights, despite the fact that the Advocate General had relied on the Charter in his examination of the questions raised concerning the interpretation of the Directive. The Advocate General here suggested that the margin of discretion accorded to Member States in connection with ‘facilitating’ the entry and residence of relatives under Article 3(2) of the Directive is limited in two ways: first, the national measure at issue must not have the effect of unjustifiably impeding the exercise by the Union citizen of his right of free movement and residence within the territory of the Member States.59 Second, the margin of discretion enjoyed by the Member States is limited by the obligation to respect the right to private and family life, enshrined in Article 7 CFR, which, by virtue of Article 6(1) TEU, has acquired the same legal value as the Treaties.60 As regards the latter source of limiting Member States’ discretion under Article 3(2) 07.40A of the Directive, the Advocate General pointed to the CJEU case law recognising the fundamental right to family life as forming part of the general principles of EU law.61 Thus, in the Metock judgment the Court stated that ‘if Union citizens were not allowed to lead a normal family life in the host Member State, the exercise of the freedoms they are guaranteed by the Treaty would be seriously obstructed’.62 Reference was also made by the Advocate General to the Dereci judgment in which the CJEU—observing that Article 7 CFR contains rights which correspond to those guaranteed by Article 8(1) ECHR, and that the meaning and scope of the former article are to be the same as those laid down by the latter article, as interpreted by the case law of the ECtHR—held that the referring court in that case had to examine whether the refusal of the right of residence of the applicants, who were non-Member State nationals and members of the family of a Union citizen, undermined the right to respect for private and family life.63 In his thorough examination of the fundamental rights aspects of the question 07.41A of interpretation of Directive 2004/38, the Advocate General further mentioned the ECtHR’s rulings that Article 8 ECHR does not guarantee foreign nationals ‘a right to choose the most suitable place to develop family life’, and does not impose on a state ‘a general obligation to respect immigrants’ choice of the country of their matrimonial residence and to authorise family reunion in its territory’. Nevertheless, the ECtHR has held that Article 8 ECHR may give rise to positive obligations inherent in effective respect for family life, meaning that a state is required to let a person enter its territory.64 On the basis of this interpretation, the CJEU has held that, while the ECHR does not guarantee the right of a foreign national to enter or to reside in a particular state, refusing to allow a person to enter or reside in a state where close members of his family

58 Case C-83/11 Secretary of State for the Home Department v Muhammad Sazzadur Rahman, Fazly Rabby Islam, and Mohibullah Rahman (CJEU, Judgment 5 September 2012). 59 Ibid (Opinion of 27 March 2012 of Advocate General Bot) [69]. 60 Ibid [70], further elaborated in [71]–[77]. 61 Ibid [71]. 62 Case C-127/08 Metock and Others v Minister for Justice, Equality and Law Reform (CJEU, Judgment 25 July 2008) [62]. 63 Case C-256/11 Dereci and Others v Bundesministerium für Inneres (CJEU, Judgment 15 November 2011) [70]–[72]. 64 Rahman (n 58) (Opinion of 27 March 2012 of Advocate General Bot) [72].

Jens Vedsted-Hansen

167

Part I – Commentary on the Articles of the EU Charter

are living may amount to an infringement of the right to respect for family life as guaranteed by Article 8(1) of the ECHR. Such an interference will, the Advocate General pointed out, infringe the ECHR if it does not meet the requirements of Article 8(2) according to which it must be in accordance with the law, motivated by one or more of the legitimate aims under that paragraph, and proportionate to the legitimate aim pursued.65 07.42A The combination of the right of residence attached to Union citizenship and the protection of private and family life, as implemented by EU law, may therefore effectively establish a right of residence for members of the family of the Union citizen. In the Advocate General’s opinion, this right need not be reserved for the closest family members. Whilst Article 8 ECHR guarantees only the exercise of the right to respect for an ‘existing’ family life, and whilst it has been held, in the specific area of entry, residence and removal of non-nationals, that the family had to be limited to the ‘core family’, the ECtHR nevertheless generally adopts a broad conception of family life, characterised by the presence of legal or factual elements pointing to the existence of a close personal relationship, which makes it possible to include, under certain circumstances, ties between grandparents and grandchildren or ties between brothers and sisters. Even de facto relationships lacking any blood ties have been regarded as constituting ‘family life’.66 Assuming that the principle of non-discrimination does not allow a family definition with ‘variable geometry’ depending on whether the members of the family of the Union citizen concerned are themselves Union citizens or nationals of a non-Member State, and that, when defining the scope of the fundamental right to private and family life, the notion of family also cannot vary according to the more or less strict definitions under the provisions of secondary law, the Advocate General concluded that the fundamental right to private and family life may, in principle, be relied on by all categories of persons mentioned in Article 3(2) of Directive 2004/38.67 07.43A Similar differences in the interpretive approach and the pattern of reasoning can be found in other significant CJEU rulings concerning the right of residence for family members of Union citizens. Thus, even while the reference for preliminary ruling in the Zambrano case made no mention of Article 7 CFR, it did include Articles 21, 24 and 34 CFR, and the applicant had been alleging infringement of Article 8 ECHR and Article 3 of ECHR Protocol 4 before the national court, the CJEU based its ruling in the case exclusively on Article 20 TFEU without any explicit examination of the possible impact of CFR provisions.68 The Advocate General, on the other hand, had referred to Articles 7 and 24 CFR and examined the fundamental right to family life under EU law.69 07.44A The subsequent CJEU case attempting to clarify the scope of the Zambrano doctrine on residence right for the third-country family members of Union citizens—in order not to deprive such citizens of the ‘genuine enjoyment of the substance of the rights

65 Ibid [73], referring to Case C-109/01 Hacene Akrich v Secretary of State for the Home Department (CJEU, Judgment 23 September 2003) [59]. 66 Ibid [74]–[75]. 67 Ibid [76]–[77]. 68 Case C-34/09 Ruiz Zambrano v Office national de l’employ (CJEU, Judgment 8 March 2011) [31], [35], [40]–[45]. 69 Ibid (Opinion of 30 September 2010 of Advocate General Sharpston) [61]–[66].

168

Jens Vedsted-Hansen

Art 7 – Private Life, Home and Communications

conferred by virtue of their status as citizens of the Union’70—took the same approach and examined the impact of Union citizenship merely on the basis of Article 20 TFEU. Having concluded on this aspect, the Court briefly discussed the right to respect for private and family life, referring to Articles 7 and 51 CFR and Article 8 ECHR, and made the following statement of more general relevance for the understanding of the interrelation between the Charter and the ECHR: Thus, in the present case, if the referring court considers, in the light of the circumstances of the disputes in the main proceedings, that the situation of the applicants in the main proceedings is covered by European Union law, it must examine whether the refusal of their right of residence undermines the right to respect for private and family life provided for in Article 7 of the Charter. On the other hand, if it takes the view that that situation is not covered by European Union law, it must undertake that examination in the light of Article 8(1) of the ECHR.71

The consideration of the third-country family members’ actual dependency on the 07.45A Union citizen, underlying the Court’s reasoning in such cases, was eloquently explained by the Advocate General who stated that they are ‘based on the premiss that “the substance of the rights attaching to the status of European Union citizen” within the meaning of the above-mentioned judgment in Ruiz Zambrano does not include the right to respect for family life enshrined in Article 7 of the Charter of Fundamental Rights of the European Union and in Article 8(1) of the ECHR.’72 The different approaches taken by the Advocate General and the Court are reflected 07.46A again in the CJEU ruling in Iida where the Court found no connection with EU law, and consequently held the Charter inapplicable with no specific discussion of the impact of Articles 7 and 24.73 The Advocate General, on the other hand, upon detailed examination reached the following interim conclusion: it must therefore be stated that, in the light of the fundamental rights guaranteed under Article 6(1) and (3) TEU, and in particular in the light of those enshrined in Articles 7 and 24 of the Charter of Fundamental Rights, a parent who has a right of custody and is a third-country national can, in order to maintain a personal relationship and direct parental contact on a regular basis, have a right of residence in the Member State of origin of his child who is a Union citizen under Articles 20 TFEU and 21 TFEU, if the child has moved from there to another Member State, exercising his right of free movement. For such a right of residence to exist, the denial thereof must have a restrictive effect on the child’s right to freedom of movement and must be regarded as amounting to a disproportionate interference with fundamental rights in the light of the abovementioned fundamental rights. This is a matter for assessment by the referring court.74

The case of O, S and L concerned more complex family configurations, involving not 07.47A only the third-country parent of a child holding Union citizenship, but in addition a second third-country parent and a third-country child born from the marriage of these two parents. Here the Court held that Article 20 TFEU must be interpreted as not precluding a Member State from refusing to grant a third-country national a residence

70 71 72 73 74

Ibid (Judgment 8 March 2011) [42]. Dereci (n 63) [72]. Ibid (Opinion of 29 September 2011 of Advocate General Mengozzi) [37]. Case C-40/11 Yoshikazu Iida v Stadt Ulm (CJEU, Judgment 8 November 2012) [78]–[80]. Ibid (Opinion of 15 May 2012 of Advocate General Trstenjak) [70]–[88].

Jens Vedsted-Hansen

169

Part I – Commentary on the Articles of the EU Charter

permit on the basis of family reunification where that national seeks to reside with his spouse, who is also a third-country national and resides lawfully in that Member State and is the mother of a child from a previous marriage who is a Union citizen, and with the child of their own marriage, who is also a third-country national, provided that such a refusal does not entail, for the Union citizen child concerned, the denial of the genuine enjoyment of the substance of the rights conferred by the status of citizen of the Union. The latter would be for the national court to ascertain, yet the CJEU added that this would be without prejudice to the question whether, on the basis of other criteria, inter alia by virtue of the right to the protection of family life, the right of residence of the third-country applicants could still be refused.75 Notably, this aspect of the case was decided by the Court without reference to the Charter, while Articles 7 and 24 CFR were mentioned subsequently in the judgment in connection with the interpretation of the Family Reunification Directive.76 07.48A In the more recent judgment pertaining to the scope of the Zambrano doctrine on residence rights for third-country family members of Union citizens, the referring court had, in addition to Article 20 TFEU, expressly asked whether the Charter rights, guarantees and obligations, in particular those under Articles 20, 21, 24, 33 and 34 CFR, confer a right to family reunification upon a sponsor who is a Union citizen. Despite the absence of reference to Article 7 CFR, the Court’s answer is of interest also in the context of the protection of private and family life under this provision. Upon holding that the refusal of residence right to the third-country family members would not have the effect of denying the applicant Union citizen the genuine enjoyment of the substance of the rights conferred by virtue of his status as citizen of the Union,77 the Court explained that to determine whether the refusal is a situation involving the implementation of EU law within the meaning of Article 51 CFR, it must be ascertained among other things whether the national legislation at issue is intended to implement a provision of European Union law, what the character of that legislation is, and whether it pursues objectives other than those covered by European Union law, even if it is capable of indirectly affecting that law, and also whether there are specific rules of European Union law on the matter or capable of affecting it.78 In the present case, the Court held as follows: While the Law on freedom of movement is indeed intended to implement European Union law, it is none the less the case that the situation of the applicants in the main proceedings is not governed by European Union law, since Mr Kreshnik Ymeraga cannot be regarded as a beneficiary of either Directive 2004/38 or, as regards the applications at issue in the main proceedings, Directive 2003/86, and the refusal to confer a right of residence on Mr Kreshnik Ymeraga’s family members does not have the effect of denying him the genuine enjoyment of the substance of the rights conferred by virtue of his status as citizen of the Union. In those circumstances, the Luxembourg authorities’ refusal to grant Mr Kreshnik Ymeraga’s family members a right of residence as family members of a Union citizen is not a situation

75 Cases C-356/11 and C-357/11 O, S v Maahanmuuttovirasto and Maahanmuuttovirasto v L (CJEU, Judgment 6 December 2012) [58]–[59]. 76 Ibid [75]–[80]. 77 Case C-87/12 Ymeraga v Ministre du Travail, de l’Emploi et de l’Immigration (CJEU, Judgment 8 May 2013) [39]. 78 Ibid [41].

170

Jens Vedsted-Hansen

Art 7 – Private Life, Home and Communications

involving the implementation of European Union law within the meaning of Article 51 of the Charter, so that its conformity with fundamental rights cannot be examined in the light of the rights established by the Charter.79

Family Members of Third-Country Nationals The first CJEU case concerning the Family Reunification Directive80 was initiated by the 07.49A European Parliament, seeking the annulment of certain provisions of this Directive on grounds of alleged incompatibility with human rights norms. Against this background, it came as no surprise that the Court included references to Article 7 CFR as well as Article 24 CFR in its ruling on the validity of the challenged provisions.81 Likewise, in his opinion on the case the Advocate General made rather extensive examination of human rights standards, in particular Article 8 ECHR and the identical Article 7 CFR.82 In its first preliminary ruling on the Family Reunification Directive in the Chakroun 07.50A case, the CJEU also referred to the Charter. This case concerned the interpretation of the resource requirement pursuant to Article 7(1)(c) of the Directive, more specifically the term ‘recourse to the social assistance system’ and, in that connection, whether the distinction between family relationships arising before or after the entry of the resident into the Member State was compatible with the Directive, in particular Article 2(d) setting out the definition of ‘family reunification’ for the purposes of this Directive. In answering the first question, the CJEU emphasised that Article 4 of the Directive imposes precise positive obligations on Member States with corresponding clearly defined individual rights, and that the requirement of stable and regular resources in Article 7(1) (c) must therefore be interpreted strictly and applied in a manner not undermining the effectiveness of the objective of the Directive.83 In that regard, the Court also quoted Recital 2 of the preamble, referring to Article 8 ECHR as well as the Charter, stating that the Directive must therefore be interpreted in the light of the fundamental rights and, more particularly, the right to respect for family life.84 As the concept of ‘social assistance system’ has its own independent meaning in EU law, the Court concluded that ‘social assistance’ in Article 7(1)(c) must be interpreted as referring to assistance which compensates for a lack of stable, regular and sufficient resources, and not as referring to assistance which enables exceptional or unforeseen needs to be addressed.85 As regards the distinction in Netherlands law between family reunification and family 07.51A formation, the Court referred to the wording of Article 2(d) of the Directive, Recital 6 of the preamble, and the travaux préparatoires of the Directive, all of which supported the finding that the rules in the Directive, except the specific provision in Article 9(2), apply both to what Netherlands legislation refers to as family formation and to preservation

79

Ibid [42]–[43] (emphasis added). Directive 2003/86 on the right to family reunification [2003] OJ L251/12. 81 Case C-540/03 European Parliament v Council of the European Union (CJEU, Judgment 27 June 2006) [38] and in particular [58]. 82 Ibid (Opinion of 8 September 2005 of Advocate General Kokott) [59]–[78], [102]–[105]. 83 Case C-578/08 Rhimou Chakroun v Minister van Buitenlandse Zaken (CJEU, Judgment 4 March 2010) [41], [43]. In this case, the opinion of Advocate General Sharpston did not include any references to the Charter. 84 Ibid [44]. 85 Ibid [45], [49]. 80

Jens Vedsted-Hansen

171

Part I – Commentary on the Articles of the EU Charter

of the family unit.86 Having established this meaning of the Directive, the Court added: ‘Furthermore, that interpretation is consistent with Article 8 of the ECHR and Article 7 of the Charter, which do not draw any distinction based on the circumstances in and time at which a family is constituted.’87 (c) Asylum 07.52A In its principled preliminary ruling from 2011 on the question of Member States’ obligation to apply the Dublin Regulation88 in accordance with the Charter of Fundamental Rights, the CJEU was requested to consider in particular Articles 1, 4, 18, 19 and 47 CFR, the Charter provisions most likely to have direct relevance to the examination of asylum applications.89 The Court stated in general terms that Article 3(2) of the Dublin Regulation grants Member States a discretionary power which forms an integral part of the Common European Asylum System, and that discretionary power must be exercised in accordance with the other provisions of the Regulation.90 As the discretionary power conferred on the Member States by Article 3(2) of the Regulation forms part of the mechanisms for determining the Member State responsible for an asylum application provided for under that regulation and, therefore, merely an element of the Common European Asylum System, the Court concluded that a Member State which exercises that discretionary power must be considered as implementing European Union law within the meaning of Article 51(1) of the Charter.91 07.53A The general principle thus confirmed by the CJEU must be considered equally valid to cases in which the Dublin Regulation is being applied to circumstances falling within the scope of Article 7 CFR, at least insofar as the ‘sovereignty clause’ in Article 3(2) of the Regulation is concerned. This question was raised before the CJEU in the subsequent case of K v Bundesasylamt,92 yet the Court did not find it necessary to rule on this specific question. The main proceedings concerned an asylum-seeker, K, who had made her first asylum application in Poland and who, without awaiting the conclusion of the examination of that application, subsequently left Poland and entered Austria irregularly in order to join one of her adult sons already enjoying refugee status there along with his spouse and their three children. As K lodged an asylum application in Austria, the Austrian asylum authorities requested Poland to take back K in accordance

86

Ibid [59]–[62]. Ibid [63]. 88 Regulation 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national [2003] OJ L50/1. 89 Joined Cases C-411/10 and C-493/10 NS v Secretary of State for Home Department and M and Others v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform (CJEU, Judgment 21 December 2011) [86], [94], [106], [113]–[115]. 90 Ibid [65]–[66]. 91 Ibid [68]. Notably, the Court essentially limited its examination to Art 4 CFR (ibid [70]–[108]), stating that Arts 1, 18 and 47 CFR did not lead to a different answer to the questions raised by the national courts (ibid [109]–[115]). See the thorough analysis of the CJEU ruling in Cathryn Costello, ‘Courting Access to Asylum in Europe: Recent Supranational Jurisprudence Explored’ (2012) 12 Human Rights Law Review 287–339, 324–35, esp 327–28, and Sophie Lieven’s Case Report in (2012) 14 European Journal of Migration and Law 223–38. 92 Case C-245/11 K v Bundesasylamt (CJEU, Judgment 6 November 2012). 87

172

Jens Vedsted-Hansen

Art 7 – Private Life, Home and Communications

with the Dublin Regulation, and Poland agreed to do so. Against that background, the Austrian asylum authorities rejected K’s asylum application, and K appealed that decision to the asylum court. Due to the fact that K’s daughter-in-law, already staying as a refugee in Austria, was 07.54A dependent on K because she had a newborn baby and was suffering from serious illness and handicap following a traumatic occurrence that had taken place in a third country, and K had become her confidante and had appropriate professional experience too, the Austrian asylum court considered that the ‘humanitarian clause’ in Article 15, or even Article 3(2) of the Regulation, should be taken into account in deciding whether Austria would be responsible for examining K’s asylum application. In that connection the asylum court considered that Article 15 as a lex specialis takes precedence over the general rules on the distribution of responsibility among Member States laid down in Articles 6–14 of the Regulation, and that the application of Article 3(2) is subsidiary to the application of Article 15 of the Regulation. Against the background of K’s family situation, the Austrian court referred two questions to the CJEU, one about the interpretation of Article 15 of the Regulation in such circumstances, and one about the interpretation of Article 3(2) in circumstances where the responsibility otherwise provided for by the criteria in the Dublin Regulation will result in an infringement of Article 3 or Article 8 ECHR, and Article 4 or Article 7 CFR, as well as the delimitation of the notions of ‘inhuman treatment’ and ‘family’ in these provisions of the ECHR and the CFR. As regards the first question, the CJEU ruled that in circumstances such as those in 07.55A the main proceedings, Article 15(2) of the Dublin Regulation must be interpreted as meaning that a Member State which is not responsible for examining an application for asylum pursuant to the general criteria laid down in the Regulation becomes so responsible. It is for the Member State which has become responsible within the meaning of that Regulation to assume the obligations which go along with that responsibility, and it must inform in that respect the Member State previously responsible, in the actual case Poland. The Court further stated that this interpretation of Article 15(2) also applies where the Member State which was responsible pursuant to the general criteria in the Regulation did not make a request in that regard, in accordance with the procedure prescribed by the second sentence of Article 15(1). In the light of this interpretation of Article 15(2) of the Regulation, the CJEU held it unnecessary to rule on the second question concerning Article 3(2).93 However, the Advocate General had made a proposal for an answer to this question 07.56A as well, confirming that the interpretation adopted in the 2011 ruling mentioned above is also valid to the circumstances of K’s application for asylum. Thus, in the same manner as a Member State’s decision to examine an asylum application under Article 3(2) of the Dublin Regulation is a national measure implementing that Regulation, meaning that the Member State must comply with the provisions of the Charter of Fundamental Rights pursuant to Article 51 CFR, this reasoning is also applicable to the ‘humanitarian clause’ in Article 15 of the Regulation. As a result of this obligation to comply with the Charter, Member States may under certain circumstances be under a duty to exercise their right to examine an asylum application for humanitarian reasons according to Article 15 of the Regulation, if it is established that there would otherwise be a serious

93

Ibid [54]–[55].

Jens Vedsted-Hansen

173

Part I – Commentary on the Articles of the EU Charter

risk of unduly restricting the asylum-seeker’s rights under the Charter.94 The Advocate General further considered that the relationship between K and her grandchildren might fall within the concept of ‘family life’ in Article 7 CFR since the existence of family life is not contingent on cohabitation, so that the transfer of K as an asylum-seeker to Poland might constitute interference with her right to respect for family life as protected by Article 7 CFR.95 In the Advocate General’s opinion, the definition of ‘family life’ as established in the ECtHR case law under Article 8 ECHR should be considered equally relevant to Article 7 CFR.96 07.57A In a more recent preliminary ruling concerning the permissibility of transfer of unaccompanied minor asylum-seekers to another Member State under the Dublin Regulation, the CJEU referred specifically to Article 24 CFR in conjunction with the relevant provisions of the Regulation.97 While the relevance of Article 24 CFR as lex specialis seems quite obvious in such circumstances, issues of respect for private life under Article 7 CFR could arguably have been raised as well, yet the latter provision was examined neither by the Court nor by the Advocate General. (d) Protection of Victims in Criminal Proceedings 07.58A Since issues pertaining to national law enforcement are only to a limited extent covered by EU law, the Charter of Fundamental Rights will not normally affect decisions taken and procedures followed by national authorities in this area. This can be illustrated by the joined cases Gueye and Sánchez98 concerning two Spanish men who had been convicted of crimes of domestic violence and whose sentences in that connection included, among other penalties, an ancillary penalty consisting of the prohibition of being within a certain distance of their victims or having any contact with them for a period of 17 and 16 months, respectively. Within a relatively short time after the imposition of these ancillary penalties the two offenders had resumed living together with their respective victims, apparently at the request of those victims, and the pending domestic cases dealt with the additional criminal charges due to their failure to comply with the ancillary penalties. In these proceedings the women concerned declared that they had themselves, consciously and voluntarily, decided to resume cohabitation with the offenders. Against that background, the domestic court referred some questions to the CJEU in order to ascertain whether the Framework Decision on the standing of victims in criminal proceedings99 must be interpreted as precluding the mandatory imposition of an injunction to stay away for a minimum period, as prescribed by an ancillary penalty under the criminal law of a Member State, on persons who commit crimes of violence within

94 Ibid (Opinion of 27 June 2012 of Advocate General Trstenjak) [63]–[65], referring to NS and ME (n 89) (author’s translation, as the opinion is not available in English). 95 Ibid [74]. 96 Ibid [92]. In this connection the Advocate General referred to Case C-400/10 PPU J McB v LE (CJEU, Judgment 5 October 2010) [53]. 97 Case C-648/11 MA, BT and DA v Secretary of State for the Home Department (CJEU, Judgment 6 June 2013) esp [56]–[60]. 98 Joined Cases C-483/09 and C-1/10 Magatte Gueye and Valentín Salmerón Sánchez (CJEU, Judgment 15 September 2011). 99 Framework Decision 2001/220 on the standing of victims in criminal proceedings [2001] OJ L82/1.

174

Jens Vedsted-Hansen

Art 7 – Private Life, Home and Communications

the family, even when the victims of those persons oppose the application of such a penalty. In the proceedings before the CJEU the possible infringement of Article 7 CFR was 07.59A raised by the Commission, holding that the obligation on Member States contained in Article 2(1) of the Framework Decision to recognise the rights of victims in criminal proceedings also means that the Member States must safeguard all rights under the Charter of Fundamental Rights, among which in particular Article 7 on the right to respect for private and family life was relevant in this case. The Advocate General agreed that the Framework Decision must of course be interpreted in such a way that fundamental rights are respected … However, this can only apply within the limits of its objective scope … [T]he victims’ fundamental rights could be affected in the present cases. Nevertheless, this finding cannot lead to the Framework Decision acquiring a content which it does not have.

07.60A

The Advocate General further held that the question does not arise either as to the interpretation of Article 51(1) of the Charter of Fundamental Rights, which determines its scope. Pursuant to that provision, the Charter applies to the Member States ‘only when they are implementing Union law’. It has not yet been conclusively clarified whether this should be understood restrictively or comprehensively means all cases in which a national provision comes within the field of application of EU law … Since the Framework Decision is only concerned with the criminal proceedings aspects of victim protection and not the penalties to be imposed on the offender, the facts of the present case do not come within the scope of the Framework Decision and therefore EU law.100

In the Advocate General’s view, therefore, the Court did not have jurisdiction to exam- 07.61A ine whether or to what extent the provisions of Spanish criminal law concerning the imposition of an injunction to stay away from the victim for domestic violence offences are compatible with fundamental rights, for instance the duty to respect private and family life. The examination of the fundamental rights of the persons concerned would instead remain the task of the national constitutional court or the European Court of Human Rights.101 The CJEU largely adhered to the Advocate General’s opinion, stating that the 07.62A Framework Decision, as regards its structure and content, takes the form of a general declaration, in Article 2, of the main objectives which are to be achieved for the protection of victims and the specification, in the following articles, of various rights which are principally procedural and which victims must be able to exercise during the criminal proceedings. The Court further held that the provisions of the Framework Decision ‘must be interpreted in such a way that fundamental rights, including in particular the right to respect for family and private life, as stated in Article 7 of the Charter of Fundamental Rights of the European Union, are respected’.102 However, as the obligations laid down in Article 2(1) of the Framework Decision are intended to ensure that a victim can effectively and adequately take part in the criminal proceedings, this does

100 Magatte Gueye and Valentín Salmerón Sánchez (n 98) (Opinion of 12 May 2011 of Advocate General Kokott) [75]–[78]. 101 Ibid [79]. 102 Ibid [54]–[55].

Jens Vedsted-Hansen

175

Part I – Commentary on the Articles of the EU Charter

not in the Court’s interpretation imply that a mandatory injunction to stay away cannot be imposed contrary to the wishes of the victim.103 07.63A While finding more generally that the Framework Decision must be interpreted as not precluding the mandatory imposition of an injunction to stay away for a minimum period on persons who commit crimes of violence within the family, even when the victims of those crimes oppose the application of such an ancillary penalty, the Court also stated: it is clear that the fact that it is mandatory to impose an injunction to stay away in accordance with the substantive law at issue in the main proceedings does not, per se, fall within the scope of the Framework Decision and, accordingly, it cannot, in any event, be assessed in the light of the provisions of the Charter of Fundamental Rights of the European Union.104

(e) Protection of the Environment 07.64A Although it is beyond doubt that Article 8 ECHR can, in certain circumstances, impose on states an obligation to protect individuals against environmental disturbances, especially pollution of air and noise,105 this dimension of respect for private life, family life and home has so far only been the basis of little case law in the context of Article 7 CFR. The limited potential of Article 7 CFR in this regard can be illustrated by the infringement proceedings, where the Commission alleged Austria to have failed to fulfil its obligations under Articles 28 and 29 TEC by prohibiting lorries of over 7.5 tonnes carrying certain goods from using a motorway section in the Inn Valley. The Austrian government invoked its obligation to ensure respect for the private and family life of citizens, enshrined in Article 7 of the Charter and Article 8(2) ECHR, including the right to be protected against harm to health and the quality of life, and argued that a fair balance had been struck between the interests involved, in accordance with the line of case law from the CJEU, thus justifying the prohibition.106 This, however, was not accepted by the Court as justification of the traffic prohibi07.65A tion, which was regarded as constituting a measure with equivalent effect to quantitative restrictions on the free movement of goods.107 While overriding requirements of protection of the environment can justify such national measures, the Court emphasised that this would only be so if the measures are suitable for securing the attainment of that objective, and do not go beyond what is necessary for attaining it.108 The Court further stated that, before adopting a measure ‘so radical as a total traffic ban on a section of motorway constituting a vital route of communication between certain Member States’, the Austrian authorities were under a duty to examine carefully the possibility of using

103

Ibid [56]. Ibid [69]–[70]. 105 Cf van Dijk et al (n 8) pp 725–30; Jacobs, White, and Ovey (n 8) pp 394–97. 106 Case C-28/09 European Commission v Republic of Austria (CJEU, Judgment 21 December 2011 (GC)) [83], [118]. 107 Ibid [117]. 108 Ibid [125]. In that connection, the Court made further reference to the objectives of the protection of health and of environmental protection laid down in Arts 2 and 3 TEC and in Arts 35 and 37 CFR; cf ibid [120]–[121]. 104

176

Jens Vedsted-Hansen

Art 7 – Private Life, Home and Communications

measures less restrictive of freedom of movement.109 On this basis, the Court concluded that it had not been shown that the two principal alternative measures put forward by the Commission as measures less restrictive of the free movement of goods were not appropriate, and Austria had therefore not fulfilled its obligations under Articles 28 and 29 TEC.110 (f) Data Protection Article 8 CFR deals specifically with the right to protection of personal data and will be 07.66A discussed elsewhere in this book,111 yet it seems relevant to briefly mention this aspect of the protection of private life in the context of Article 7 CFR as well. As confirmed by the official explanation on Article 8 CFR,112 this provision is based on Article 8 ECHR, hence it must be interpreted in a manner consistent with Article 7 CFR in accordance with the common Convention basis of the two Charter provisions. This interpretive approach was reflected in a CJEU preliminary ruling concerning the 07.67A validity of secondary EU law provisions laying down an obligation on Member States to publish data relating to the beneficiaries of funds under the common EU agricultural policy. Here the Court referred to both Article 7 and Article 8 CFR, stating that the fundamental right recognised in the latter provision is ‘closely connected with the right to respect of private life expressed in Article 7 of the Charter.’113 The Court further held that ‘the right to respect for private life with regard to the processing of personal data, recognised by Articles 7 and 8 of the Charter, concerns any information relating to an identified or identifiable individual’, and that the limitations which may lawfully be imposed on the right to the protection of personal data correspond to those tolerated in relation to Article 8 ECHR.114 Against this background, the CJEU examined the existence of an interference with 07.68A ‘the rights recognised by Articles 7 and 8 of the Charter’115 and of the justification of ‘the interference with the rights recognised by Articles 7 and 8 of the Charter’.116 The Court emphasised in this connection the necessity to bear in mind that the EU institutions are obliged to balance, before disclosing information relating to a natural person, the European Union’s interest in guaranteeing the transparency of its actions and the infringement of the rights recognised by Articles 7 and 8 of the Charter. No automatic priority can be conferred on the objective of transparency over the right to protection of personal data.117

109

Ibid [140]. Ibid [148]–[151]. 111 See generally on Art 8 CFR, the commentary on Art 8 in this book. 112 Explanations relating to the Charter of Fundamental Rights [2007] OJ C303/20. 113 Volker und Markus Schecke and Eifert (n 26) [47]. A similar approach was taken in the opinion of 17 June 2010 of Advocate General Sharpston, stating on ‘The rights to privacy and the protection of personal data’ that ‘[t]wo separate rights are here invoked: a classic right (protection of privacy under Article 8 ECHR) and a more modern right (the data protection provisions of Convention No 108). In Charter terms, similar rights are identified respectively in Articles 7 and 8. The Court has recognised the close link between the fundamental rights to privacy and the right to data protection’ (ibid [71]). 114 Ibid [52]. 115 Ibid [56]–[64]. 116 Ibid [65]–[89]. 117 Ibid [85]. 110

Jens Vedsted-Hansen

177

Part I – Commentary on the Articles of the EU Charter

07.69A In conclusion, the Court declared the disputed provisions of two Regulations invalid in so far as, with regard to natural persons who are beneficiaries of EAGD and EAFRD aid, those provisions impose an obligation to publish personal data relating to each beneficiary without drawing a distinction based on relevant criteria such as the periods during which those persons have received such aid, the frequency of such aid or the nature and amount thereof.118 As a consequence of this CJEU ruling, the Commission has prepared a modified proposal on the publication of information on beneficiaries of EU agricultural funds.119 07.70A Another regulatory area that is likely to raise issues of data protection and confidential treatment of information is that of competition law, where publication of Commission decisions concerning cartels may disclose information allegedly covered by business secrecy. In this area both Article 7 and Article 8 CFR seem to be applied, as illustrated in the Pilkington case where the applicant invoked the duty to protect personal data under Article 8 CFR, and the General Court based its ruling on considerations of Article 7 CFR as well as Article 8 ECHR and Article 339 TFEU.120 The General Court referred to the latter provision as conferring a fundamental right to protection of professional secrecy, and made the following statement: As the Court of Justice has recognised in its judgment in Case C-450/06 Varec … referring to the case-law of the European Court of Human Rights (‘ECHR’), it may be necessary to prohibit the disclosure of certain information which is classified as confidential, in order to protect the fundamental right of an undertaking to respect for its private life, enshrined in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms … and in Article 7 of the Charter, it being made clear that the concept of ‘private life’ cannot be interpreted in such a way that the commercial activity of a legal person is excluded. Moreover, the Court of Justice added that it had already acknowledged that the protection of business secrets is a general principle and that the undertaking concerned might suffer ‘extremely serious damage’ if there were improper communication of certain information.121

07.71A Notably, in the order on the appeal brought by the Commission, the CJEU upheld the General Court’s ruling as regards the duty to protect secret information, despite the finding that the President of the General Court had erred in law in considering that the alleged breach of the applicant’s fundamental right to protection of professional secrecy, enshrined in Article 339 TFEU and Article 8 CFR, and of that company’s right to an effective judicial remedy, enshrined in Article 6 ECHR and Article 47 CFR, were in themselves sufficient for the purpose of establishing the likelihood of serious and irreparable harm in the particular circumstances of the case.122 Thus, referring to Article

118 Ibid [92]. See, on the Court’s significantly different assessment of the mandatory publication of data concerning legal persons, above section D.II(a). 119 Amendment to the Commission proposal COM (2011) 628 final/2 for a Regulation on the financing, management and monitoring of the common agricultural policy, COM (2012) 551 final. Cf report of 8 May 2013 from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘2012 Report on the Application of the EU Charter of Fundamental Rights,’ COM (2013) 271 final, p 6. For further developments, see the commentary on Art 52 in this volume. 120 Pilkington (n 24) [9], [31], [39], [44]–[50], respectively. 121 Ibid [44]. 122 Case C-278/13 European Commission v Pilkington Ltd (CJEU, Order 10 September 2013 (Vice-President of the Court)) [44].

178

Jens Vedsted-Hansen

Art 7 – Private Life, Home and Communications

8 CFR rather than to Article 7 CFR, the Court considered that the condition relating to urgency was satisfied in the case, since it had been established to the requisite legal standard that the applicant was likely to suffer serious and irreparable harm.123 The CJEU referred to both of the two Charter provisions in combination in a prelimi- 07.72A nary ruling concerning the interpretation of the EU Data Protection Directive.124 It was here emphasised that the balancing of the opposing rights and interests as required by this Directive must take account of ‘the significance of the data subject’s rights arising from Articles 7 and 8 of the Charter’.125 In this regard the Court observed that, unlike the processing of data appearing in public sources, the processing of data appearing in non-public sources necessarily implies that information relating to the data subject’s private life will thereafter be known by the data controller and, as the case may be, by the third party or parties to whom the data are disclosed. This ‘more serious infringement of the data subject’s rights enshrined in Articles 7 and 8 of the Charter’ must be properly taken into account by being balanced against the legitimate interest pursued by the data controller or by the third party or parties to whom the data are disclosed.126 Similarly, in a ruling on an infringement action according to Article 260 TFEU the 07.73A CJEU noted that the Data Retention Directive127 seeks in particular to ensure full compliance with citizens’ fundamental rights to respect for private life and communications and to the protection of their personal data ‘as enshrined in Articles 7 and 8 of the Charter’.128 While the CJEU has thus demonstrated, as a matter of principle, the need to interpret Article 8 CFR on data protection in accordance with the general right to respect for private life under Article 7 CFR by way of the combined application of both provisions, in other parts of the case law concerning data protection issues the Court has based its rulings rather on the examination of Article 8 CFR alone.129

IV. Limitations and Derogations According to Article 52 CFR, any limitation on the exercise of the rights and freedoms 07.74A recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. This

123

Ibid [59]. Directive 95/46 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281/31. 125 Joined Cases C-468/10 and C-469/10 Asociación Nacional de Establecimientos Financieros de Crédito (ASNEF) and Federación de Comercio Electrónico y Marketing Directo (FECEMD) v Administración del Estado (CJEU, Judgment 24 November 2011) [40]. 126 Ibid [45]. 127 Directive 2006/24 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks [2006] OJ L105/54. 128 Case C-270/11 European Commission v Kingdom of Sweden (CJEU, Judgment 30 May 2013) [48]. 129 See, for instance, CJEU judgments in Cases C-543/09 Deutsche Telekom AG v Bundesrepublik Deutschland (5 May 2011) [49], [52], [53], [66] and C-614/10 European Commission v Republic of Austria (16 October 2012 (GC)) [36]. However, the opinion of 17 February 2011 of Advocate General Trstenjak on the former case, C-543/09 [128], included reference to Arts 7 and 8 CFR in common. 124

Jens Vedsted-Hansen

179

Part I – Commentary on the Articles of the EU Charter

approach to limitations of the rights protected by Article 7 CFR is somewhat different from that laid down in Article 8(2) ECHR, specifying the requirements of the legal basis for the interference, understood to require both accessibility and precision of the legal basis, as well as those of legitimate aim and proportionality of such interference. Whereas the interpretation and application of Article 8 ECHR established by the ECtHR undoubtedly has implications for the meaning and scope of the rights under Article 7 CFR, as stipulated by Article 52(3) CFR,130 the CJEU may be expected to tend to apply the more flexible approach to the examination of limitations that apparently follows from Article 52(1) CFR. Since such an approach to judicial review would seem to be well in line with the Court’s method of testing restrictions or barriers to the exercise of freedoms under EU law, this will not necessarily result in less strict review of limitations of Charter rights than what might follow from the formally more structured assessment of interferences under Article 8(2) ECHR. This is the more so due to the margin of appreciation that is often, and perhaps increasingly, being granted to respondent states by the ECtHR in Article 8 cases. 07.75A The regulatory areas examined in section D.III seem to indicate that the CJEU is often prepared to accept the reasons invoked by Member States for the limitation of Charter rights. This may, on the other hand, to some extent be balanced by the fact that the CJEU appears to more readily qualify such limitations as ‘interferences’ with the exercise of fundamental rights protected by Article 7 CFR, whereas the ECtHR in important areas under Article 8 ECHR would tend to rather examine the issues subject to review as matters of positive state obligations, in some instances possibly resulting in a considerable margin of appreciation being granted to the respondent state.

V. Remedies 07.76A A significant impact of Article 7 CFR, as regards the existence and contents of remedies against Member State measures affecting fundamental rights, stems from the right under Article 47 CFR to an effective remedy before a tribunal for everyone whose rights and freedoms as guaranteed by EU law are violated. In line with Article 13 ECHR, this provision is to be understood as protecting not only actual victims of a violation of a Charter right, but any physical or legal person who has an ‘arguable claim’ of a violation. 07.77A Within the regulatory areas protected by Article 7 CFR, the Charter right to an effective remedy is of particular importance to persons who claim residence rights in accordance with EU law, either the Treaty provisions on Union citizenship or secondary legislation concerning third-country nationals. This is due to the specific requirement in Article 47 CFR that the remedy must include a fair and public hearing within a reasonable time by an independent and impartial tribunal, just as this provision imposes on Member States the duty to provide legal aid to those lacking sufficient resources insofar as such aid is necessary to ensure effective access to justice. These requirements have apparent similarities with those laid down in Article 6 ECHR which generally, however, do not apply to cases concerning residence rights for non-nationals. Thus, the Charter essentially extends ‘fair trial’ requirements similar to those protected by the ECHR to

130

180

See generally on Art 52 CFR, the commentary on Art 52 in this book.

Jens Vedsted-Hansen

Art 7 – Private Life, Home and Communications

cases that have previously not been encompassed by such standards. As an illustration of the practical impact of this Charter protection, it could be mentioned that the recently adopted Dublin III Regulation includes a provision stipulating that applicants for international protection shall have an effective remedy, in the form of appeal or review, in fact and in law, against a transfer decision, before a court or tribunal.131 In addition, it is stipulated that this remedy shall have some form of suspensive effect,132 just as there must be access to legal assistance for the persons concerned.133

E. Evaluation Although the CJEU systematically puts emphasis on fundamental rights, not least those 07.78A protected by Article 7 CFR, in the various regulatory areas where they have actual or potential impact, thereby providing significant contributions to the interpretation of this Charter provision and to the delimitation of its scope of applicability according to Article 51 CFR, there are quite striking differences in the interpretive approach taken and the pattern of reasoning presented by the Court and the Advocate General. As illustrated in the case law concerning family members of Union citizens discussed in section D.III(b), the Advocate General appeared more inclined towards examining the Charter issues of potential relevance, while the Court often examined the impact of Union citizenship merely on the basis of Article 20 TFEU. The difference may obviously in some instances be explained by the simple fact that 07.79A the Advocate General’s examination made it clear that no fundamental rights issue could be raised under the Charter. This is reflected in the Court’s statement on the interrelation between the Charter and the ECHR in the Dereci case. It was here explained that if the referring court considers that the situation in the main proceedings is covered by EU law—and only then—it will have to examine whether the refusal of right of residence undermines the right to respect for private and family life provided for in Article 7 CFR, whereas, if it takes the view that that situation is not covered by EU law, then it must undertake that examination in the light of Article 8(1) ECHR.134 At the same time, however, this points to a significant limitation of the scope of 07.80A applicability of Article 7 CFR as regards the consideration of third-country family members’ residence rights derived from dependency on the Union citizen. As explained by the Advocate General in the Dereci case, the Court’s reasoning in such cases is likely to be based on the underlying premise that ‘the substance of the rights attaching to the status of European Union citizen’ does not include the right to respect for family life enshrined in Article 7 CFR and in Article 8(1) of the ECHR.135 Even while the latter 131 Cf Art 27 of Regulation 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person [2013] OJ L180/31. Cf above, section D.III(c) on the fundamental rights issues that may arise under the Dublin Regulation. 132 Ibid, Art 27(3). 133 Ibid, Art 27(5). 134 Dereci (n 63) [72] (quoted above, section D.III(b)). 135 Ibid (Opinion of 29 September 2011 of Advocate General Mengozzi) [37] (quoted above, section D.III(b)).

Jens Vedsted-Hansen

181

Part I – Commentary on the Articles of the EU Charter

part of the statement may perhaps be questionable, the point made regarding the limited scope of Article 7 CFR seems to be persuasive. This will probably have particular impact in those cases on residence rights for third-country family members that raise complex issues of assessing the scope and contents of ‘genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union’.136 The Court’s approach essentially means that either the Union citizen and his or her family members will be protected by Article 20 TFEU as well as Article 7 CFR, or they will be considered as excluded from the scope of EU law altogether and consequently referred to the potentially more limited protection of the right to family reunification under Article 8 ECHR. The possible tendency towards differing attention being paid to the Charter of 07.81A Fundamental Rights by the Advocate General and the CJEU can be further illustrated by a case concerning a different, yet somehow related part of EU law pertaining to thirdcountry nationals. In a preliminary ruling concerning the interpretation of Regulation 1931/2006 on local border traffic at the external borders of Member States, the Court examined the questions referred by the national court without making any mention of Article 7 CFR or any other Charter provisions, notwithstanding the fact that it accepted the purpose of the Regulation, derogating from the Schengen Borders Code, as being to enable the residents of the border areas concerned—while taking account of local, current and historical realities—to cross the external land borders of the EU for ‘legitimate economic, social, cultural or family reasons’ and to do so easily and frequently, even regularly.137 To the contrary, the Advocate General had quite extensively discussed the application and impact of Article 7 CFR and Article 8 ECHR in the context of the questions raised about the interpretation of the Regulation.138 07.82A The wide scope of application of Article 8 ECHR already established in the ECtHR case law, as well as the inseparability of the four rights elements under this provision, seem to be reflected in the interpretation and application of Article 7 CFR. This is not only the case insofar as physical persons are concerned, but is bound to have potentially important influence on the practical impact of this Charter provision in a variety of legal situations of special relevance to legal persons, not least due to the fact that this category of beneficiaries of the Charter rights is occurring quite frequently within the area of commercial activities that are often particularly affected by EU law.

136

Ruiz Zambrano (n 68) [42]. Case C-254/11 Oskar Shomodi (CJEU, Judgment 21 March 2013) [24]. 138 Ibid (Opinion of 6 December 2012 of Advocate General Cruz Villalón) [72]–[78]. As a matter of comparison, it can be noted that in a case concerning the interpretation of the Return Directive 2008/115, Case C-534/11 Mehmet Arslan, neither the CJEU judgment of 30 May 2013 nor the opinion of Advocate General Wathelet made any reference to the Charter of Fundamental Rights. 137

182

Jens Vedsted-Hansen

Article 7 (Family Life Aspects) Article 7 Right to Respect for Private and Family Life Everyone has the right to respect for his or her private and family life, home and communications.

Text of Explanatory Note on Article 7 The rights guaranteed in Article 7 correspond to those guaranteed by Article 8 of the ECHR. To take account of developments in technology the word ‘correspondence’ has been replaced by ‘communications’. In accordance with Article 52(3), the meaning and scope of this right are the same as those of the corresponding article of the ECHR. Consequently, the limitations which may legitimately be imposed on this right are the same as those allowed by Article 8 of the ECHR: ‘1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’ This chapter will concern itself with the family life aspects of Article 7 only.

Select Bibliography R Caracciolo di Torella, ‘The changing shape of the “European family” and fundamental rights’ (2002) 27 European Law Review 80. S Choudhry and J Herring, European Human Rights and Family Law (Oxford, Hart Publishing, 2010). C McGlynn, ‘Families and the European Charter of Fundamental Rights: progressive change or entrenching the status quo?’ (2001) 26 European Law Review 582. ——, Families and the European Union: Law, Politics and Pluralism (Cambridge, CUP, 2006). H Stalford, Children and the European Union: Rights, Welfare and Accountability (Oxford, Hart Publishing, 2012). H Toner, Partnership Rights, Free Movement and EU Law (Oxford, Hart Publishing, 2004).

A. Field of Application of Article 7 The concept of ‘family life’ or any rights to it within EU law has been evolving over 07.01B a number of years, on an ad hoc basis and in a number of overlapping areas of EU

Part I – Commentary on the Articles of the EU Charter

competence such as the free movement of workers,1 social security and pensions,2 and equal treatment in employment between women and men.3 What is particularly noteworthy about these developments is that they have taken place without any formal reference being made to families within the treaties and in the absence of the formation of a specific competence in the family law field. They have also taken place, it would seem, without any specific intention of introducing EU family-related provisions, emerging instead as a subsidiary and inevitable consequence to the successful functioning of the EU internal market and the necessary political integration that that has entailed. As a result, there exists a whole raft of both soft law and binding measures which are neither comprehensive nor coherent but have, regardless, resulted in a steady increase in the regulation of families and therefore of ‘family life’ by the European Union. There has, however, been some acknowledgment of these developments and the need to monitor EU policies and provisions which concern families. The setting up and funding of the European Alliance for Families,4 through which the EU hopes to engender more familyfriendly policies, is intended as an instrument to foster cooperation and fruitful learning within the European Union, and thus represents a significant shift towards the development and monitoring of EU-wide policies concerning the family. The potential reach of Article 7 is wide-ranging and as a result it would be impossible to examine each possible area of application in this Chapter. However, three overlapping zones of application within EU law can be identified as having particular potential to trigger the application of Article 7, and these will be examined in turn.

I. Gender Equality 07.02B The first zone is that of gender equality,5 which, because it is based on the equal-pay principle (set out in Art 141 of the Treaty on the Functioning of the European Union), is an official policy priority of the European Union. In addition, according to Article 8 of that Treaty, equality between women and men is a fundamental principle of the EU to be promoted through all EU activities. As a result, a comprehensive legislative framework for promoting gender equality has been created, entailing the adoption of 13 Directives in the field of equal treatment covering access to work, goods and services, training, promotion and working conditions, including equal pay and social security benefits.6 Of these provisions, a number have directly impacted upon families and

1 K Lundström, ‘Family life and the freedom of movement of workers in the European Union’ (1996) 10 International Journal of Law, Policy and the Family 250. 2 D Ackers, Senior Citizenship? Retirement, Migration and Welfare in the European Union (Bristol, Policy Press, 2002). 3 O’Leary, ‘Resolution by the Court of Justice of disputes affecting family life’, in Hervey and O’Keeffe (eds), Sex Equality in the European Union (Chichester, Wiley, 1996). 4 See http://europa.eu/familyalliance/about/index_en.htm. 5 See also the chapters of this commentary on Art 23 (equality between women and men) and Art 33 (family and professional life) which overlap with the family life aspects of Art 7. 6 See the commentary on Art 20 (right to equality before the law).

184

Shazia Choudhry

Art 7 – Family Life Aspects

‘family life’: equal pay,7 equal treatment,8 parental leave9 and maternity rights10 and the protection from discrimination relating to sexual orientation.11 In terms of policy, since 1996 the Commission has followed a dual approach to gender equality, namely specific actions plus gender mainstreaming.12 The first comprehensive policy framework was adopted in 200013 and was followed in 2006 by the Roadmap for equality between women and men.14 The Roadmap identified key actions in six priority areas: equal economic independence for women and men; reconciliation of private and professional life; equal representation in decision-making; eradication of all forms of gender-related violence; elimination of gender stereotypes; promotion of gender equality in external and development policies, for the period 2006–10; and setting out ways to improve governance of gender equality policies. A further affirmation of the Commission’s commitment to equality between women 07.03B and men came in 2010 when it adopted the ‘Women’s Charter’15 which identifies five principles that will underpin actions during this Commission’s term of office:16 equal economic independence; equal pay for equal work and work of equal value; equality in decision-making; dignity, integrity and the end of gender-based violence; and gender equality beyond the Union. The inclusion of the ending of gender-based violence in this Charter

7 See for example, Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) [2006] OJ L204/23. 8 Ibid. 9 See the Parental Leave Directive (2010/18/EU) [2010] OJ L68/13, which states that male and female workers have individual entitlement to parental leave. 10 See the Maternity Leave (or Pregnant Workers) Directive (Council Directive 92/85/EEC). It provides provisional measures to protect workers who have recently given birth or are breastfeeding against the risks related to chemical, physical and biological agents. Additionally, the Directive contains specific provisions regarding night work, maternity leave, pre-natal examinations, employment rights, and protection against discriminatory dismissal [1992] OJ L348. On the potential link between this Directive and Art 7 of the Charter, see the opinion of 26 September 2013 in Case C-167/12 CD, pending. 11 In establishing a general framework for equal treatment in employment and occupation, Council Directive 2000/78/EC [2000] OJ L303 prohibits discrimination on the grounds of sexual orientation. It goes some way towards reversing the consequences of the decision of the European Court of Justice that EC law did not prohibit such discrimination on the grounds that sexual orientation discrimination was outside EU competence (see Case C-249/96 Grant v South-West Trains [1998] ECR I-621). The decision was widely criticised for retreating from the principle of prohibiting discrimination based on sex, established in the earlier CJEU decision in Case C-13/94 P v S and Cornwall County Council [1996] ECR I-2143. Although not in effect for consideration in the Grant case, the Treaty of Amsterdam provided that the Union could ‘take appropriate action to combat discrimination based on … sexual orientation’ (Art 13). This was pointed out by the CJEU in its judgment, implying that the fundamental right at issue in Grant could have been protected in the event of Art 13 conferring EU competence. Council Directive 2000/78 now accomplishes this purpose. See also the commentary on Art 20 (the non-discrimination clause of the Charter). 12 ‘Incorporating equal opportunities for women and men into all Community policies and activities’, COM (96) 67. The EU monitors and promotes gender mainstreaming, and it tackles the gender pay gap explicitly through such initiatives as the analysis of current legislation in order to urge the Member States to implement existing legislation on the provision of information about equality measures and to raise awareness about existing laws (Commission Staff Working Document, Background Document Accompanying the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions Strategy for Equality between Women and Men 2010–2015, COM (2010) 491; SEC(2010) 1079). Gender equality is also promoted with the financial support from the European Social Fund. 13 ‘Towards a Community Framework Strategy on Gender Equality (2001–2005)’, COM (2000) 335. 14 ‘A Roadmap for Equality between Women and Men 2006–2010’, COM (2006) 92. 15 ‘A Strengthened Commitment to Equality between Women and Men’, COM (2010) 78. 16 The Strategy for the period 2010–2015 ‘Strategy for Equality between Men and Women’, COM (2010) 49, is to implement the Women’s Charter.

Shazia Choudhry

185

Part I – Commentary on the Articles of the EU Charter

is further evidence of an increasing and relatively new commitment to an issue which has a particularly significant impact upon family life.17 The first concrete step in this direction came as part of the Stockholm programme which sets out the European Union’s priorities for the area of justice, freedom and security for the period 2010–14.18 The Directive on the European Protection Order,19 passed within the competence created by Article 82(1) of the TFEU, provides that judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions. The Directive also enables anyone protected under criminal law in one EU state to apply for similar protection if they move to another Member State, and will apply to victims or possible victims who need protection ‘against a criminal act of another person which may, in any way, endanger his life, physical, psychological and sexual integrity … as well as his dignity or personal liberty’. Such acts could include harassment, abduction, stalking and ‘other forms of indirect coercion’ and should be of significant benefit to victims of domestic violence. However, the effectiveness of a measure which is based upon mutual recognition rather than harmonisation has been questioned, and particularly so when the available research has demonstrated that there is an insufficient level of uniformity amongst protection measures across Member States.20 A minimum level of harmonisation of laws in this area may thus be necessary to fully realise the Directive’s potential.21 A further and important step towards the eradication of gender-based violence was the adoption on 18 May 2011 of a package of measures22 aimed at strengthening the rights of victims of crime, and which recognised the gender dimension to victims’ rights. In its communication on ‘Strengthening victims’ rights in the EU’ the Commission noted that Women are particularly exposed to hidden and unreported forms of violence. The Council of Europe estimates that 20–25% of European women experience physical acts of violence at least once during their adult lives, 12–15% find themselves in a relationship of domestic abuse, and more than 10% suffer sexual violence.23

07.04B These concerns led to the passage of the Council of Europe’s Convention on preventing and combating violence against women and domestic violence,24 discussed below. The communication goes on to identify victims of gender-based violence as being

17 It will also have a significant impact upon child victims of domestic violence. EU provisions discussed in this chapter will thus have an indirect impact upon children when being applied to adult carers who are victims of domestic violence; however, children may also apply for protection orders in their own right within some Member States, and that protection will also be capable of recognition under the European Protection Order. For specific detail on EU provision on child protection, see the commentary on Art 24 in this volume. 18 Building on the achievements of its predecessors, the Tampere and Hague programmes, it aims to meet future challenges and further strengthen the area of justice, freedom and security with actions focusing on the interests and needs of citizens. The programme provided that there should be mutual recognition for all types of judgments and decisions of a judicial nature, which may be either criminal or administrative. 19 Directive 2011/99/EU on the European protection order [2011] OJ L338/2. 20 See S van der Aa, ‘Protection Orders in the European Member States: Where Do We Stand and Where Do We Go from Here?’ (2012) 18 (2) European Journal on Criminal Policy & Research 183. 21 Ibid. 22 Proposal for a Directive of the European Parliament and the Council establishing minimum standards on the rights, support and protection of victims of crime, COM (2011) 275 final. 23 ‘Strengthening victims’ rights in the EU’, COM (2011) 0274. 24 Open for signature by the Member States of the Council of Europe, the non-Member States which have participated in its elaboration and the European Union, in Istanbul on 11 May 2011. In order to enter into force the Convention requires 10 ratifications, including at least eight Member States of the Council of Europe. Ratified to date by Albania, Italy, Montenegro, Portugal and Turkey.

186

Shazia Choudhry

Art 7 – Family Life Aspects

particularly vulnerable, and the need to ensure the safety and protection of individuals who are exposed to repeat violence by the same perpetrator as being of the utmost importance. To facilitate this, the Commission made it clear that crucial protection such as restraining and protection orders obtained on behalf of victims should be transferable to another EU Member State if the victim moves or travels there. The package therefore consisted of a proposal for a horizontal Directive25 establishing minimum standards on the rights, support and protection of victims of crime replacing the 2001 Framework Decision;26 a proposal for a Regulation on the mutual recognition of civil law protection measures27 (complementing the Directive on the European Protection Order) and a Communication28 setting out the Commission’s position on actions in relation to victims of crime. Actions to prevent and combat all forms of violence against children, young people and women have also been pursued under the Daphne III programme,29 which aims to contribute to the prevention of, and the fight against, all forms of violence occurring in the public or the private domain against children, young people and women, by taking preventive measures and by providing support and protection for victims and groups at risk. The large number of acts of violence among young people has also led the Commission to include the objective of combating violence against women in projects under the ‘Youth in action’ programme.30

II. Children’s Rights The second zone of application is that of children’s rights complemented by EU policies 07.05B on social exclusion and the closely related aim of the eradication of child poverty within the EU. The basis of EU competence in these related areas can be found in Article 3 of the Treaty on European Union31 (TEU) which states that the Union ‘shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between men and women, solidarity between generations and protection of the rights of the child.’ Furthermore, children who are nationals of a Member State are also citizens under Article 20(1) Treaty on the Functioning of European Union32 (TFEU) and are thus able to rely on the ensuing rights of European citizenship. There is also a considerable amount of ‘soft law’ in this area, for example, the articulation of the importance

25 The Directive, 2012/29/EU, ‘Establishing minimum standards on the rights, support and protection of victims of crime’, was adopted on 4 October 2012, [2012] OJ L315/57. 26 Framework Decision on the Standing of Victims in Criminal Proceedings [2001] OJ L82/1. 27 ‘Proposal for a Regulation of the European Parliament and the Council on mutual recognition of protection measures in civil matters’, COM (2011) 276. This text was adopted by the JHA Council as Regulation 606/ 2013, [2013] OJ L181/4. This Regulation will ensure that victims of domestic violence who benefit from a protection measure taken in one Member State are provided with the same level of protection in other Member States (as regards civil law) should they move or travel there. Such protection should be awarded without the victim having to go through additional procedures. 28 ‘Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies’, COM (2011) 573 final. 29 Decision No 779/2007/EC establishing for the period 2007–13 a specific programme to prevent and combat violence against children, young people and women and to protect victims and groups at risk (Daphne III programme) as part of the General Programme Fundamental Rights and Justice. 30 Decision No 1719/2006/EC establishing the ‘Youth in Action’ programme for the period 2007 to 2013. 31 [2010] OJ C83/13. 32 [2010] OJ C83/47.

Shazia Choudhry

187

Part I – Commentary on the Articles of the EU Charter

of the reduction of child poverty as an important EU objective, since ‘despite overall progress in the labour market, this figure (at 19% the risk of poverty among children in the EU is higher than that of the general population) has remained unchanged since 2000.’33 The EU has also addressed child health and development, as described in the WHO European strategy for child and adolescent health and development. Furthermore, the European Commission has stated that the best means of overcoming child poverty is by ‘addressing the issue on all fronts and striking the appropriate balance between targeting the family and the child in its own right. This entails combining strategies to increase parents’ access and attachment to employment with enabling services and with income support that minimise the risk of creating trap effects’34 Hence, the EU advises all of its Member States to apply a balanced policy mix. However, as with family life, the Union’s competence over children and children’s rights appears to be very limited in terms of direct references in the Treaty,35 and any extension of competence in this area has been incidental to other policy aims. Nonetheless, the impact of such provisions on the lives of children has been significant.36 In a recent recognition of the importance of this area the Commission has set up the ‘EU Agenda on the Rights of the Child’37 and created an inventory of how EU law affected children’s rights. In doing so it identified the policy area and associated competence in the EU Treaties, the rights in the Charter and in the UN Convention on the Rights of the Child 1990.38 The following policy areas were identified as having a direct impact upon children: asylum and migration;39 child health, safety and welfare;40 child poverty and social exclusion;41 child labour;42 children’s participation; civil justice and family law matters;43 education;44 environment;

33 Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions—Proposal for the Joint Report on social protection and social inclusion 2008, COM (2008) 42 final. 34 Ibid. 35 See the commentary on Art 24. 36 Ibid. 37 ‘Communication from the Commission—An EU Agenda for the Rights of the Child’, COM (2011) 60 final. 38 Commission Staff Working Document ‘Preliminary Inventory of EU Actions Affecting Children’s Rights’ SEC (2006) 889. 39 See for example Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77. 40 See for example Directive 2009/48 on the safety of toys [2009] OJ L170/1, based on Art 95 EC (now Art 114 TFEU). 41 See the OMC (Open Method of Coordination) on Social Protection and Social Exclusion, established under the European Platform against Poverty and Social Exclusion launched in 2010. Policies established under this platform specifically refer to the eradication of child poverty. 42 See the Directive 94/33/EC on the Protection of Young People at Work [1994] OJ L216/12. The Directive was based on Art 118a EEC (now Art 153 TFEU). 43 See for example, Regulation 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility [2003] OJ L338; Regulation 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations [2009] OJ L7/1; Directive 2008/52 on certain aspects of mediation in civil and commercial matters [2008] OJ L136/3, and in general H Stalford, ‘Brussels II and Beyond: A Better Deal for Children in the European Union?’ in K Boele-Woeki (ed), Perspectives for the Unification and Harmonisation of Family Law in Europe (Antwerp, Intersentia, 2003). 44 In the Strategic framework of the Education and Training 2010 programme, the Member States committed themselves to reducing the school drop-out rate in the EU to a maximum of 10 per cent by 2010. See the European Commission, Manuscript from the Commission: ‘Joint Report on Social Protection and Social Inclusion’. Brussels, Directorate, General for Employment, Social Affairs and Equal Opportunities, 2008.

188

Shazia Choudhry

Art 7 – Family Life Aspects

media and internet;45 non-discrimination; and violence against children.46 There are areas of EU law where children have been addressed directly, despite a generic competence base; each of these areas is examined specifically in the commentary on Article 24 of the Charter. Two areas in particular need to be specifically addressed in this chapter. The first area 07.06B concerns the regulation of cross-border family law and the development of private international law rules on jurisdiction and the recognition and enforcement of judgments in family law matters.47 Increased migration within the EU has resulted in an increase in cross-border family law disputes, which has had significant implications for national legal regimes that are left to ensure that the contact and residence of the children of parents living in different Member States is effectively regulated. The most significant legislative instrument in this area is Brussels II Revised,48 which regulates the jurisdiction and recognition and enforcement of divorce and parental responsibility judgments, and also provides additional measures to tackle parental child abduction between the Member States. However, as Lamont notes,49 despite initially excluding some children from the scope of the original Regulation and failing to specifically identify children’s interests,50 Brussels II Revised nonetheless incorporates specific reference to children’s rights51 and the need for decisions to be taken in the child’s best interests and for the child to be heard in proceedings which affect them.52 Since Brussels II Revised, two further steps have been taken: a Regulation governing the cross-border enforcement of maintenance obligations arising from family relationships, including maintenance for children, was adopted in 200953 and the adoption of a Directive to encourage crossborder mediation of disputes.54 Both instruments will have a significant impact upon families caught in a cross-border dispute, although it should be remembered that it is still the national court that takes the substantive decision in relation to the child’s future welfare and the interaction between national family law and European law.

45 See the Report from the Commission on Protecting Children in the Digital World, COM (2011) 556 final. See J Savirimuthu, ‘The EU, Online Child Safety and Media Literacy’ (2011) 19 International Journal of Children’s Rights 547. 46 See for example the specific reference in Art 83(1) TFEU to serious crime including the trafficking and sexual exploitation of women and children, and Directive 2011/36 on preventing and combating trafficking in human beings and protecting its victims [2011] OJ L101/1, which includes specific support for children and takes account of their particular vulnerabilities as a victim of trafficking. The more extensive nature of the obligations towards children contained in the Directive stem from Arts 82(2) and Art 83(1) TFEU and the direct reference to crimes against children as an aspect of the competence base in the Treaty. 47 Art 81 TFEU. 48 Regulation 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility [2003] OJ L338. 49 See the commentary on Art 24 of the Charter. 50 Regulation 1347/2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses [2000] OJ L160/190. 51 See H Stalford, ‘Brussels II and Beyond: A Better Deal for Children in the European Union?’ in BoeleWoeki (ed), Perspectives for the Unification and Harmonisation of Family Law in Europe (Antwerp, Intersentia, 2003). 52 In the rules on jurisdiction under Art 12; and in relation to international child abduction under Art 11(2). 53 Regulation 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations [2009] OJ L7/1. 54 Directive 2008/52 on certain aspects of mediation in civil and commercial matters [2008] OJ L136/3.

Shazia Choudhry

189

Part I – Commentary on the Articles of the EU Charter

III. Free Movement, Immigration and Asylum 07.07B The second area affecting children concerns freedom of movement, immigration, family reunification and asylum, which is also the third and final identifiable zone of potential application of Article 7. This zone has had significant impact upon the family life of both children and adults and will thus be dealt with together.55 The first category to consider is EU citizens and their family members’ rights to move freely and reside within the territory of the Member States. Free movement of persons constitutes one of the fundamental freedoms of the internal market. In addition, citizenship of the Union confers a primary and individual right to move and reside freely on the territory of the Union, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect (Art 18 of the EU Treaty). Such limitations and conditions are to be found in the Directive on the right of citizens of the Union to move and reside freely within the Member States,56 which brought together the piecemeal measures found in the complex body of legislation that had previously governed this area and introduced a number of rights for EU citizens and their family members who may or may not be EU citizens themselves. First, the Directive includes the right for all union citizens to enter another Member State for less than three months by virtue of having an identity card or valid passport. Family members who do not have the nationality of a Member State enjoy the same rights as the citizen whom they have accompanied.57 The right of residence for more than three months is, however, subject to certain conditions,58 but once those conditions are satisfied, family members of the citizen will obtain the right to remain without satisfying the conditions on an individual basis. Second, the Directive confers a right of permanent residence in the host Member State after a five-year period of uninterrupted legal residence, provided that an expulsion decision has not been enforced against them. The same rule applies to family members who are not nationals of a Member State and who have lived with a Union citizen for five years. The right of permanent residence is lost only in the event of more than two successive years’ absence from the host Member State. Third and finally, Union citizens qualifying for the right of residence or the right of permanent residence and the members of their family also benefit from equal treatment with host-country nationals in the areas covered by the Treaty. However, the host Member State is not obliged to grant entitlement to social security during the first three months of residence to persons other than employed or selfemployed workers and the members of their family.59 There are, however, restrictions

55

For specific detail on how this issue has affected children see the commentary on Art 24. European Parliament and Council Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77, amending Regulation (EEC) 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/ EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC. 57 They may be subject to a short-stay visa requirement under Regulation (EC) 539/2001. Residence permits will be deemed equivalent to short-stay visas. 58 They must either be engaged in economic activity (on an employed or self-employed basis) or have sufficient resources and sickness insurance to ensure that they do not become a burden on the social services of the host Member State during their stay; or be a family member of a Union citizen who falls into one of the above categories. The Member States may not specify a minimum amount which they deem sufficient, but they must take account of personal circumstances. 59 Equally, host Member States are not required, prior to the acquisition of the permanent right of residence, to grant maintenance aid for studies, including for vocational training, in the form of grants or loans to 56

190

Shazia Choudhry

Art 7 – Family Life Aspects

on the right of entry and the right of residence on grounds of public policy, public security or public health, but these are the only grounds upon which Union citizens or members of their family may be expelled from the host Member State. Furthermore, any measures taken which affect freedom of movement and residence must comply with the proportionality principle and be based exclusively on the personal conduct of the individual concerned. Such conduct must represent a sufficiently serious and present threat which affects the fundamental interests of the state. Previous criminal convictions do not automatically justify expulsion.60 The implications for the family life of the individual against whom such measures are being taken are obvious, and as a result the Directive provides for the assessment a number of factors before an expulsion decision can be taken. These include the period for which the individual concerned has been resident, his or her age, degree of integration and family situation in the host Member State and links with the country of origin. Only in exceptional circumstances and for overriding considerations of public security, can expulsion orders be served on a Union citizen if he has resided in the host country for ten years or if he is a minor. Lifelong exclusion orders cannot be issued under any circumstances and individuals who are subject to exclusion orders can apply for the situation to be reviewed after three years. The Directive also makes provision for a series of procedural guarantees and for the abuse of rights or fraud, such as marriages of convenience in which case Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by the Directive. In terms of immigration, the EU has been developing a common immigration policy 07.08B for Europe since 1999. The competence to create EU-wide immigration and visa rules61 derives from Title V of Part Three of the Treaty on the Functioning of the European Union62 and its creation of the area of freedom, security and justice.63 There are now in existence common rules that allow citizens of countries outside the EU to work or study in an EU country, that allow citizens of countries outside the EU who are staying legally in an EU country to bring their families to live with them and/or to become long-term residents, as well as shared visa policies that enable non-EU citizens to travel freely for up to three months within Europe’s single travel zone, the Schengen area.64 However, it is the right to family reunification that has proved to be the biggest source of immigration into the EU over the past 20 years and without which family life would prove to be impossible for the majority of immigrants. The main legislative provision

these same persons. Family members, irrespective of their nationality, will be entitled to engage in economic activity on an employed or self-employed basis. 60 See the commentary on Art 19 of the Charter for further detail on the right to protection from removal, expulsion and extradition. 61 EU-wide immigration rules generally apply in 24 of the EU’s 27 countries. Denmark does not apply EU-wide rules which relate to immigration, visa and asylum policies, and Ireland and the United Kingdom choose, on a case-by-case basis, whether or not to adopt EU rules on immigration, visa and asylum policies. 62 See c 2 policies on border checks, asylum and immigration Art 77–80. 63 Which is based on the Tampere (1999–2004), Hague (2004–09) and Stockholm (2010–14) programmes. 64 The concept of free movement of persons came about with the signing of the Schengen Agreement in 1985 and the subsequent Schengen Convention in 1990, which initiated the abolition of border controls between participating countries. Being part of the EU legal and institutional framework, Schengen cooperation has gradually been extended to include most EU Member States as well as some non-EU countries.

Shazia Choudhry

191

Part I – Commentary on the Articles of the EU Charter

in this area is the Directive on the right to family reunification65 which determines the conditions under which family reunification is granted, as well as the rights of the family members concerned.66 On the basis of this Directive, legally residing non-EU nationals can bring their spouse, under-age children and the children of their spouse to the EU state in which they are residing. EU states may also authorise reunification with an unmarried partner, adult dependent children, or dependent older relatives. Once in the EU, eligible family members receive a residence permit and obtain access to education, employment and to vocational training on the same basis as other non-EU nationals; after a maximum of five years of residence, family members may apply for autonomous status, if the family links still exist. However, the right to family reunification is also subject to respect for public order and public security, and EU states may also choose to impose other conditions such as the requirement for a non-EU national to have adequate accommodation, sufficient resources and health insurance, and may impose a qualifying period of no more than two years. Family reunification can also be refused for spouses who are under 21 years of age. Moreover, polygamy is not recognised; only one spouse can benefit from the right to family reunification. EU states may also ask third country nationals to comply with integration measures. The potential application of Article 7 of the Charter is thus substantial and has been confirmed by the European Court of Justice,67 which has stated that EU states must apply the Directive’s rules in a manner consistent with the protection of fundamental rights, notably regarding family life and the principle of the best interests of the child. However, the effects of the Directive are yet to be realised. The first report on the implementation68 of the Directive, issued in October 2008, has shown a low impact, partly due to the degree of discretion given to EU states when setting certain requirements. In terms of future policy, both the European Pact on Immigration and Asylum69 and the Stockholm Programme70 have identified family reunification as an issue where EU policies should be further developed, with a particular focus on integration measures and in November 2011, the European Commission launched a broad consultation on family reunification71 in order to assess whether any policy follow-up is necessary. 07.09B Finally, asylum is a fundamental right, and according to the 1951 Geneva Convention on the protection of refugees, granting it is an international obligation.72 With this in mind, the EU states have committed to establishing a Common European Asylum

65

Directive 2003/86/EC on the right to family reunification [2003] OJ L251/12. The 17th and 18th recitals in the preamble to the directive explain that, in accordance with (i) the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and to the Treaty establishing the European Community, and without prejudice to Art 4 of this Protocol, and (ii) the Protocol on the position of Denmark annexed to those Treaties, these Member States did not participate in the adoption of the Directive and are not bound by or subject to its application. 67 Case C-540/03 European Parliament v Council [2006] ECR I-05769 [25]. 68 Report from the Commission to the European Parliament and the Council on the Application of Directive 2003/86/EC on the Right to Family Reunification COM (2008) 610 final. 69 Of 24 September 2008, not published but available at http://europa.eu/legislation_summaries/justice_ freedom_security/free_movement_of_persons_asylum_immigration/jl0038_en.htm. 70 ‘The Stockholm Programme—An open and secure Europe serving and protecting citizens’ [2010] OJ C115/8. 71 Green Paper on the right to family reunification of third-country nationals living in the European Union (Directive 2003/86/EC) COM (2011) 735 final. 72 The core Treaty provision pertaining to asylum is Art 78 TFEU on the common asylum policy. See the commentary on Art 18 (right to asylum) for further detail. 66

192

Shazia Choudhry

Art 7 – Family Life Aspects

System by 2012 and to that end, between 1999 and 2005, several legislative measures harmonising common minimum standards for asylum were adopted. Three of the most important measures on asylum state that the principles recognised by the Charter of Fundamental Rights of the European Union will be observed,73 specifically define the term ‘family members’,74 and thus have significant potential for interpretation under Article 7 of the Charter. The Directive on Reception Conditions for Asylum-seekers75 states that if applicants are provided with housing, Member States shall take appropriate measures to maintain as far as possible family unity as present within their territory76 and that they are assured of the protection of their family life.77 The Directive on Qualifications for Becoming a Refugee or a Beneficiary of Subsidiary Protection Status states that Member States shall ensure that family unity can be maintained, and makes provision for the family members of the refugee or person with subsidiary protection who do not individually qualify for refugee status to receive certain benefits.78 Finally, the ‘Dublin’ Regulation determines which EU state is responsible for examining an asylum application. Recital 6 states that family unity should be preserved in so far as this is compatible with the other objectives pursued by establishing criteria and mechanisms for determining the Member State responsible for examining an asylum application. The Regulation also establishes a hierarchy of criteria on which EU Member States should examine the application for asylum, and places the principle of family unity as the first criterion to be followed.79

B. Interrelationship of Article 7 with Other Provisions of the Charter The reference to ‘family life’ within Article 7 is not limited by specific reference to a 07.10B context, and as such has the potential to apply to any situation within the scope of EU competence which impacts upon family life. There will, however, be a number of other Charter provisions which will overlap and interact with the ‘family life’ aspect of Article 7. The most obvious is Article 24, which concerns the rights of children who as family members will also have a separate claim to family life themselves. These claims may,

73 Recital 5 of Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum-seekers; Recital 16 of Directive 2011/95/EU of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted; Recital 15 of the Dublin Regulation, Regulation 343/2003 [2003] OJ L50/1, to be replaced by Reg 604/2013 [2013] OJ L180/31 from 1 January 2014. 74 Art 2(d) of Directive 2003/9/EC, Art 2(j) of Directive 2011/95/EU; Art 2(i) of the Dublin Regulation 343/2003. 75 Directive 2003/9, to be replaced by Directive 2013/32/EU [2013] OJ L180/60 from July 2015. 76 Art 8 of the Directive. 77 Art 14 of the Directive. 78 Arts 23 and 24 of the Directive. 79 The EU state responsible for examining the application is the one where the applicant has a member of his/her family legally present. See Arts 6, 7 and 8 of the Regulation. Art 14 makes further provision where several members of the same family submit an application to one Member State and the application of the criteria would lead to their separation.

Shazia Choudhry

193

Part I – Commentary on the Articles of the EU Charter

however, conflict with claims made by other family members (who may be adults or children themselves) and the interests of the state. Where such conflicts exist, a difficult balancing exercise must take place to ascertain how such disputes are decided and it is here that the interrelationship with the other Charter provisions can be seen. First, Article 24 states that in any action taken by public authorities or private institutions the best interests of the child must be a primary consideration, which may sometimes result in either those interests being elevated above those of an adult or of the state.80 An example of the former case would be where there are allegations of violence and abuse against a family member in which case the positive obligations which should arise from Articles 2 (right to life), 3 (right to integrity of the person) and 4 (obligation to prohibit torture, inhuman and degrading treatment) will be of particular relevance. An example of the latter would be where there is a threat of removal, expulsion or extradition, or a request for asylum, and here Articles 18 and 19 would also need to be considered. Other articles will be of relevance according to the subject matter of the claim. Thus, any claims for family life which concern gender equality may also require a consideration of the impact of Articles 9 (right to marry and found a family), 21 (non-discrimination), 23 (equality between men and women) and 33 (the legal, social and economic protection of the family). Claims which concern the way family life is conducted may also require, depending upon the subject matter, a consideration of Articles 10 (freedom of thought, conscience and religion), 14 (right to education), 17 (right to property), 22 (cultural, linguistic and religious diversity), 25 (rights of the elderly), 26 (integration of persons with disabilities), 34 (social security and assistance), 35 (healthcare) and 45 (right to freedom of movement and residence).

C. Sources of Article 7 Rights

I. ECHR 07.11B The explanations to the Charter state that the rights guaranteed in Article 7 correspond to those guaranteed by Article 8 of the ECHR.81 Furthermore, in accordance with Article 52(3) of the Charter, the meaning and scope of this right are the same as those of the corresponding article of the ECHR. Article 8 of the ECHR is a qualified right; the rights contained in the first paragraph may be justifiably interfered with on the basis of the limitations set out in the second paragraph. The article has four components: privacy, family life, home and correspondence. As a result, a wide array of case law has emanated from its provisions and there have been particularly significant developments in respect of the notion of family life within the context of a number of areas of the law, some

80 See S Choudhry and H Fenwick, ‘Clashing rights, the Welfare of the Child and the Human Rights Act 1998’ (2005) 25 Oxford Journal of Legal Studies 453–92, on how the ECHR conducts this exercise. 81 Except the word ‘correspondence’ has been replaced by ‘communications’.

194

Shazia Choudhry

Art 7 – Family Life Aspects

of which will be directly referable to the areas of EU competence outlined previously. In addition, as Ovey and White82 note, since each right is reinforced by its context, the grouping together of these four rights within the same article further strengthens the protection given by it. The requirement to provide ‘respect’ for private and family life, home and correspondence has reinforced the development of positive obligations under the Article because it requires Member States to take positive action, rather than to simply refrain from interfering with the rights protected. Positive obligations upon Member States may also arise with respect to protecting an individual against interferences by another individual. As a result, a rich and substantive amount of case law has been built up by the European Court of Human Rights regarding the scope and application of Article 8, which can be drawn on with regard to the interpretation of Article 7 of the Charter. However, it is important to remember that the jurisprudence of the European Court of Human Rights (ECtHR) represents the minimum level of protection under Article 7; Article 52(3) of the Charter also states that the interpretation of the meaning and scope of the ECHR rights shall not prevent European Union law from ‘providing more extensive protection’. These issues will be explored further in the sections below.

II. Council of Europe Treaties There are a number of Conventions through which the Council of Europe has sought 07.12B to protect aspects of family life about which certain points can be made. First, is how the creation of a number of Conventions has demonstrated, over a series of decades, the increase in awareness of the rights of children and perhaps the concomitant need to make up for the lack of specificity of these rights within the European Convention of Human Rights. There are a number of Conventions in this area. The Convention on the Adoption of Children83 ensures that national law on the protection of children applies not only to adoptions of children from the parties but also to those of children from other states, and contains a core of essential provisions on adoption practice which each party undertakes to incorporate in its legislation, and a list of supplementary provisions to which parties are free to give effect. Thus, under the Convention’s essential provisions, adoption must be granted by a judicial or administrative authority, the decision to authorise the adoption of a child must be freely accepted by the parents and the adoption must be in the interest of the child. In some cases the Council of Europe has been ahead of the ECtHR; the object of the rules embodied in the Convention on the Legal Status of Children born out of Wedlock,84 is to bring their legal status into line with that of children born within wedlock, and thereby to contribute to the harmonisation

82 C Ovey and R White, The European Convention on Human Rights, Jacobs and White, 4th edn (Oxford, OUP, 2006) 241–42. 83 Open for signature by the Member States of the Council of Europe, in Strasbourg, on 24 April 1967. Entered into force: 26 April 1968. It has been ratified by Austria, Czech Republic, Denmark, Germany, Greece, Ireland, Italy, Latvia, Liechtenstein, Malta, Norway, Poland, Portugal, Romania, Sweden, Switzerland, the Former Yugoslav Republic of Macedonia and the UK. 84 Open for signature by the Member States of the Council of Europe, in Strasbourg, on 15 October 1975. Entered into force: 11 August 1978. Ratified by Albania, Austria, Azerbaijan, Cyprus, Czech Republic, Denmark, Georgia, Greece, Ireland, Latvia, Liechtenstein, Lithuania, Luxembourg, Moldova, Norway, Poland, Portugal, Romania, Sweden, Switzerland, the Former Yugoslav Republic of Macedonia, Ukraine and the UK.

Shazia Choudhry

195

Part I – Commentary on the Articles of the EU Charter

of the relevant legislation of parties,85 something that the ECtHR subsequently ruled was a requirement of the ECHR.86 The Convention’s main provisions therefore relate to paternal and maternal affiliation, recognition, denial and contesting of paternity, the assignment of parental responsibilities, and children’s succession rights. Procedural protection has also been provided to children who are required to be removed from one state to another in the form of the Convention on the repatriation of minors87 which applies to minors in the territory of a Contracting State whose repatriation is requested by another Contracting State for one of a number of specified reasons.88 The Convention also applies to the repatriation of minors whose presence in its territory a Contracting State deems to be incompatible with its own interests or with the interests of the minors concerned, provided that its legislation authorises the removal of the minor from its territory. Finally, the right of children to be involved in legal processes that concern them and for their views to be taken into consideration have also been recognised. The Convention on the Exercise of Children’s Rights89 which aims to protect the best interests of children by providing a number of procedural measures to allow children to exercise their rights and sets up a Standing Committee to keep under review problems relating to the Convention. Thus, the Convention includes measures which aim to promote the rights of the children, in particular in family proceedings before judicial authorities. As a result, the Convention states that children should be allowed to exercise their rights (for example, the right to be informed and the right to express their views), either themselves or through other persons or bodies. Among the types of family proceedings of special interest for children that are listed are those concerning custody, residence, access, questions of parentage, legitimacy, adoption, legal guardianship, administration of property of children, care procedures, removal or restriction of parental responsibilities, protection from cruel or degrading treatment and medical treatment.90 07.13B Second, the Conventions have served to reflect changes in attitudes across Member States and to ensure the removal of provisions that conflict with the case law of the ECtHR. Both points can be illustrated by the Convention on the Adoption of Children

85 However, as not all parties are able to achieve this objective immediately, the Convention provides for a system of reservations enabling parties to work towards it gradually. Reservations may be made in respect of a maximum of three of the nine articles entailing an obligation, but such reservations are valid for a maximum of five years, after which they have to be reconsidered. 86 See Marckx v Belgium App no 6833/74 (13 June 1979). 87 Open for signature by the Member States of the Council of Europe, in The Hague, on 28 May 1970. The Convention will enter into force after the deposit of the third instrument of ratification. 88 These are: the presence of the minor in the territory of the requested state is against the will of the person or persons having parental authority in respect of him; or the presence of the minor in the territory of the requested state is incompatible with a measure of protection or re-education taken in respect of him by the competent authorities of the requesting state; or the presence of the minor is necessary in the territory of the requesting state because of the institution of proceedings there with a view to taking measures of protection and re-education in respect of him. 89 Open for signature by the Member States of the Council of Europe and the non-Member States which have participated in its elaboration, in Strasbourg, on 25 January 1996. Entered into force: 1 July 2000. Ratified by Albania, Austria, Croatia, Cyprus, Czech Republic, Finland, France, Germany, Greece, Italy, Latvia, Montenegro, Poland, Slovenia, the Former Yugoslav Republic of Macedonia, Turkey and the Ukraine. 90 Furthermore, each party is required to specify at least three categories of family proceedings to which this Convention is to apply. The Convention is also intended to facilitate the implementation by parties of the United Nations Convention on the Rights of the Child.

196

Shazia Choudhry

Art 7 – Family Life Aspects

(Revised),91 which was created in order to take account of social and legal developments and to ensure that the existing Convention (outlined earlier) is in keeping with the European Convention on Human Rights. New provisions introduced by the Convention include the requirement for the father’s consent in all cases and that the child’s consent is necessary if the child has sufficient understanding to give it. Significantly, the Convention is also extended to include heterosexual unmarried couples who have entered into a registered partnership in states which recognise that institution, and leaves states free to extend adoptions to homosexual couples and same-sex couples living together in a stable relationship. The new Convention also strikes a better balance between adopted children’s right to know their identity and the right of the biological parents to remain anonymous. Third, the Conventions reflect the consequences of migration and the impact this 07.14B can have upon families that have separated. Practical protection is provided by the Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children92 which protects custody and access rights in international situations and provides for free, prompt, non-bureaucratic assistance from central authorities designated by each party in discovering the whereabouts and restoring custody of a child improperly removed.93 The Convention deals with various situations and offers specific solutions. For instance, if application is made within six months of the improper removal of a child, restoration of custody is to be immediate and subject to no condition other than the establishment of certain facts.94 The Convention on Contact concerning Children95 concerns two issues which have 07.15B caused increasing disquiet to Member States. The first relates to the issue of contact with children and the possible restrictions thereto when these are considered necessary in the best interests of the child. The second is the inherent problems with respect to the exercise of contact which have given rise to significant disputes in many countries. Disputes relating to contact are often long and difficult for the parties concerned and raise problems as regards making, modifying and enforcing court orders relating to

91 Open for signature by the Member States of the Council of Europe and the non-Member States which have participated in its elaboration, in Strasbourg, on 27 November 2008. Entered into force: 1 September 2011. Ratified by Denmark, Finland, Netherlands, Norway, Romania, Spain and the Ukraine. 92 Open for signature by the Member States of the Council of Europe, in Luxembourg, on 20 May 1980. Entered into force: 1 September 1983. All Member States have ratified this Convention except: Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Croatia, Georgia, Monaco, Russia, San Marino and Slovenia. 93 Application for the restoration of custody of a child may be made directly either to a court or to the central authorities of any party concerned. Central authorities are required to assist the applicants in their action; to discover the whereabouts of the child; to avoid, in particular by any necessary provisional measures, prejudice to the interests of the child or of the applicant; to secure the recognition or enforcement of the custody decision; and to secure the delivery of the child to the applicant where enforcement is granted. 94 These are: that the child was improperly removed, that the child and both parents had as their sole nationality the nationality of the state in which the decision on custody was made and that, in addition, the child had his habitual residence in that state; or that the child has not been repatriated after the exercise of access abroad, in violation of the conditions governing exercise of the right of access. If these conditions are not met but the application is lodged within the six-month time-limit, restoration of custody is subject to stricter conditions. Once the six-month time-limit has expired, restoration of custody is subject to more numerous conditions, since the child may already be integrated into a different environment. 95 Open for signature by the Member States of the Council of Europe, the non-Member States which have participated in its elaboration and the European Union, in Strasbourg, on 15 May 2003. Entered into force: 1 September 2005. Ratified by Albania, Bosnia and Herzegovina, Croatia, Czech Republic, Romania, San Marino, Turkey and Ukraine.

Shazia Choudhry

197

Part I – Commentary on the Articles of the EU Charter

contact in addition to the difficulties created by geographical separation, which brings with it the application of different legal systems, different languages as well as cultural differences. The aim of the Convention is therefore to improve certain aspects of the right of national and transfrontier contact and, in particular, to specify and reinforce the basic right of children and their parents to maintain contact on a regular basis as elucidated by the European Court of Human Rights.96 In this respect, the object of the Convention is to determine the general principles to be applied to contact orders, as well as to fix appropriate safeguards and guarantees to ensure the proper exercise of such contact and the immediate return of children at the end of the period of contact. It establishes cooperation between all the bodies and authorities concerned with contact orders and reinforces the implementation of relevant existing international legal instruments in this field.97 07.16B Finally, the Conventions can serve to illustrate, as with the rights of children, the recognition of a new area of concern across Member States and a concomitant commitment to providing the cross-border protection of the relevant rights where required. The new landmark Convention on preventing and combating violence against women and domestic violence98 which although yet to enter into force is nonetheless a significant illustration of this point, as it opens the path for creating a legal framework at pan-European level to protect women against all forms of violence, and prevent, prosecute and eliminate violence against women and domestic violence. It also establishes a specific monitoring mechanism in order to ensure effective implementation of its provisions by the parties.

III. UN Treaties 07.17B International law recognises the fact that the family plays an essential and central role in human society. The family is perceived to be ‘the natural and fundamental group unit of society and is entitled to protection by society and the State.’99 As a result, the right to family life has been recognised as a fundamental right in international law and is enunciated in all major international instruments and conventions.100 First and foremost is

96 According to the case-law of the European Court of Human Rights ‘“respect” for a family life … implies an obligation for the State to act in a manner calculated to allow these ties to develop normally.’ (Scozzari and Giunta v Italy (2000) Series A [221]). This right may be extended, if necessary, to include contact between a child and other persons than his or her parents, in particular when the child has family ties with such a person. 97 The Convention also addresses non-Member States of the Council of Europe and will therefore also be open to their accession to this Convention. 98 Open for signature by the Member States of the Council of Europe, the non-Member States which have participated in its elaboration and the European Union, in Istanbul on 11 May 2011. In order to enter into force the Convention requires 10 ratifications, including at least eight Member States of the Council of Europe. Ratified by Albania, Italy, Montenegro, Portugal and Turkey. 99 Universal Declaration of Human Rights, GA Res 217A, UN GAOR, 3d Sess, Part 1, Art 16(3), at 74, UN Doc A/810 (1948). 100 See International Covenant on Civil and Political Rights 1966, Art 23(1) (reiterating that which is stated in the Universal Declaration of Human Rights); see also International Covenant on Economic, Social and Cultural Rights 1966 providing that ‘[t]he States Parties to the present Covenant recognize that ... [t]he widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society’). For similar sentiments, see the Declaration on Social Progress and Development, GA

198

Shazia Choudhry

Art 7 – Family Life Aspects

Article 16 of the Universal Declaration of Human Rights101 (UDHR), upholding the family as the natural and fundamental unit in society. It establishes the right of men and women to marry and found a family; their equal rights as to the marriage, and that consent to marriage should be freely given. As a resolution, the UDHR is not itself formally legally binding, however, it has established important principles and values which have been elaborated in later legally binding UN treaties, recommendations and resolutions.102 These include: Article 10 of the International Covenant on Economic, Social and Cultural Rights,103 which reiterates some basic rights concerning family life and then goes on to establish further rights of pregnant mothers to maternity leave and social security; Article 23 of the International Covenant on Civil and Political Rights104 (ICCPR), which guarantees the right to a family; the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with special reference to Foster Placement and Adoption Nationally and Internationally,105 which provides important guidelines for the fostering and adoption, including inter-country adoptions of children who lack appropriate parental care; and the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages,106 which reiterates the right to full consent and also requires states to establish a minimum age for marriage, as does the Recommendation on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages.107 There are also a number of UN population and development documents, including the 1994 Conference on Population and

Res 2542, UN GAOR, 24th Sess, Supp No 30, at 49, UN Doc A/7630 (1969) (stating that the family is ‘[a] basic unit of society and the natural environment for the growth and well-being of all its members, particularly children and youth’). Similar provisions may be found in various regional conventions, such as: American Declaration of the Rights and Duties of Man, 2 May 1948, OAS Res XXX, adopted by the Ninth International Conference of American States (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser L V/II 82 doc 6 rev 1 at 17 (1992) (Art VI: ‘Every person has the right to establish a family, the basic element of society, and to receive protection thereof ’); American Convention on Human Rights, 22 Nov 1969, Art 17(1), 9 ILM 673, 680 (‘The family is the natural and fundamental group unit of society and is entitled to protection by society and the state’); Banjul Charter on Human and Peoples’ Rights, 27 June 1981, Art 18(1), 21 ILM 58, 61 (‘The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical and moral health.’). 101 The Universal Declaration of Human Rights (1948) (Art 16) was adopted by the United Nations General Assembly in 1948. General Assembly res 217A (III), 10 December 1948. 102 Moreover, a number of its provisions have become part of customary international law. 103 The International Covenant on Economic, Social and Cultural Rights (1966) (Art 10) was adopted by the General Assembly in December 1966 and entered into force in 1976. Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966. Entered into force 23 March 1976, in accordance with Art 49. It elaborates the principles laid out in UDHR and is legally binding on all states who have signed and ratified its provisions. 104 The International Covenant on Civil and Political Rights elaborates the principles laid out in UDHR and is legally binding on all states who have signed and ratified its provisions. Art 23 states: ‘1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. 2. The right of men and women of marriageable age to marry and to found a family shall be recognized. 3. No marriage shall be entered into without the free and full consent of the intending spouses. 4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.’ Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966. Entered into force 23 March 1976, in accordance with Art 49. 105 Adopted by General Assembly resolution 41/85 of 3 December 1986. 106 521 UNTS 231. Entered into force 9 December 1964. 107 GA res 2018 (XX), 20 UN GAOR Supp (No 14) at 36, UN Doc A/60141 (1965).

Shazia Choudhry

199

Part I – Commentary on the Articles of the EU Charter

Development Programme of Action, the 1968 Tehran Declaration and the 1985 Fourth World Conference in Beijing which all contain provisions regarding the rights of individuals to family planning. Finally, there are a number of UN treaties relating to specific categories of persons which can also be used to protect the right to family. For refugees, there is Article 12 of the Convention Relating to the Status of Refugees,108 which includes guidelines and principles established under the auspices of the UN High Commissioner for Refugees strengthening provisions regarding refugee rights of the family. For women, there is the Convention on the Elimination of All Forms of Discrimination against Women,109 which includes provisions on marriage and nationality (Art 9), equality and consent, rights and responsibilities within marriage, family planning, guardianship and adoption, women’s right to choose a family name, a profession and an occupation, ownership and property, minimum age for marriage, and compulsory registration of marriages (Art 16). For children, there is the Convention on the Rights of the Child,110 which addresses their rights concerning their separation from parents (Art 9), family reunification (Art 10 and 22) and measures for children lacking parental care (Art 20, 21). Finally, for migrant workers there is the International Convention on the Protection of the Rights of all Migrants Workers and Members of their Families,111 the most recent of the main UN human rights treaties, which entered into force on 1 July 2003. The Convention explicitly refers to migrant workers and ‘members of their family’, defined as ‘persons married to migrant workers or having with them a relationship that, according to applicable law, produces effects equivalent to marriage, as well as their dependent children and other dependent persons who are recognised as members of the family by applicable legislation or applicable bilateral or multilateral agreements between the States concerned’ (Art 4). The treaty recognises that ‘the family is the natural and fundamental group unit of society and is entitled to protection by society and the State, shall take appropriate measures to ensure the protection of the unity of the families of migrant workers’. States are also expected to facilitate family reunification, and the treaty stipulates that states ‘shall favourably consider granting equal treatment, as set forth in paragraph 2 of the present article, to other family members of migrant workers’ (Art 44). Members of the families of migrant workers shall enjoy equality of treatment with nationals with regard to access to education, social and health services and participation in cultural life. States also have to facilitate integration of children of migrant workers in the local school system, particularly in respect of teaching them the local language and the mother tongue and culture (Art 45). Finally the treaty stipulates that in the case of the death of a migrant worker or dissolution of marriage, the state of employment shall favourably consider granting family members of that migrant worker residing in that state authorisation to stay (Art 50).

108 Adopted on 28 July 1951 by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons convened under General Assembly resolution 429 (V) of 14 December 1950. Entered into force 22 April 1954, in accordance with Art 43. 109 Opened for signature and ratification by General Assembly resolution 640 (VII) of 20 December 1952. Entered into force 7 July 1954, in accordance with Art VI. 110 Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989. Entered into force 2 September 1990, in accordance with Art 49. 111 Adopted by General Assembly resolution 45/158 of 18 December 1990. Entered into force 1 July 2003.

200

Shazia Choudhry

Art 7 – Family Life Aspects

D. Analysis I. General Remarks Article 7 is addressed to the protection of the right to family life within European law, 07.18B and as such has general application to any field of EU law where family life may be affected. Furthermore, the fact that it replicates Article 8 of the ECHR, has arguably led to an increase in the influence of the ECtHR’s case law with regard to its interpretation by the ECJ,112 the case law of which has, in turn, had some effect upon the reasoning of the ECtHR with respect to Article 8.113 Thus, the CJEU has applied Article 8 ECHR in a number of judgments to emphasise the obligation on national authorities to take into account the right to family life and respect of proportionality,114 and correspondingly Strasbourg has referred to the treatment of transsexuals by the CJEU in considering their Article 8 rights.115 The CJEU has also specifically endorsed the view that the interpretation of Article 7 of the Charter should be the same as the interpretation of Article 8 of the ECHR.116 The similarity between Article 8 of the ECHR and Article 7 of the Charter also means that a number of matters may be confidently asserted. First, the scope of the family life aspects of Article 7, as with Article 8 of the ECHR, is wideranging and its application will be relevant to a number of overlapping contexts. The well-established case law of the ECtHR in this area has already served as an important source in its application in certain areas and may thus also therefore serve as a good illustration of the potential future scope of Article 7 in others. Second, Article 7, as with Article 8, will include both negative and positive obligations which will be imposed upon the institutions of the EU as well as Member States when implementing EU law. Third, Article 7, as with Article 8, is a qualified right; thus any interference with family life will be prohibited unless it falls within the exceptions contained within it. These issues will now be considered in greater detail.

112 McGlynn argued, prior to the Charter coming into effect, that although the Court of Justice had referred to Art 8 of the ECHR, it had done so with little effect. See C McGlynn, Families and the European Union: Law, Politics and Pluralism (Cambridge, CUP, 2006) 19. 113 Some authors see this as evidence of a remarkable level of convergence between the two legal orders in certain areas. See S Morano-Foadi and S Andreadakis, ‘The convergence of the European legal system in the treatment of third country nationals in Europe: the ECJ and ECtHR jurisprudence’ (2011) 22(4) European Journal of International Law 1071–88 and F Jacobs, ‘The European Convention on Human Rights, the EU Charter of Fundamental Rights and the European Court of Justice: The Impact of European Union Accession to the European Convention on Human Rights’, available at: www.ecln.net/elements/conferences/book_berlin/jacobs.pdf, p 292. 114 In relation to family members of EU citizens, see Case C-60/00 Carpenter [2002] ECR I-6279; Case C-109/01 Akrich [2003] ECR I-9607; Joined Cases C-482/01 and C-493/01 Orfanopoulos and Oliveri [2004] ECR I-5257; and Case C-127/08 Metock v Minister for Justice, Equality and Law Reform [2008] ECR I-6241. 115 See Goodwin v UK (1996) 22 EHRR 123, in which the ECtHR referred to the CJEU’s judgment in Case C-13/94 P v S and Cornwall County Council [1996] ECR I-2143. 116 Case C-400/10 J McB v LE [2010] ECR I-8965 and Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke and Eifert [2010] ECR I-11063.

Shazia Choudhry

201

Part I – Commentary on the Articles of the EU Charter

II. Scope of Application 07.19B The precise scope of the application of Article 7 will essentially turn upon the interpretation of two issues: what is meant by ‘family life’, and to whom this right will apply. These issues have formed the subject of much discussion amongst academics, policy makers and legislators over the last few decades due to a number of significant changes to family forms and the changes in legal status that they have brought about. Families can now be found in a variety of forms, including the purely biological, the adoptive, the foster and the step where a change in the definition of parenthood which has moved beyond the purely biological towards recognition of the psychological bond between a child and her carer, which may sometimes be strong enough to trump the former. This rise in the importance of psychological parenthood has also arguably been responsible for the increase in the status and rights of same-sex and transgender parents and wider family members such as grandparents, who are increasingly playing an important role in the care of children. 07.20B The way in which family life is conducted has also changed. The impact of immigration and migration has been significant and has resulted in family life being conducted within a variety of different social, cultural and religious contexts all of which are regularly being taken into account in law and policy making and the adjudication of family law proceedings. The diverse nature of families and family life is reflected across the Member States, however, due to differences in national experiences and understandings of these concepts it is clear that a lack of consensus remains as to what is meant by family life and to whom the right can apply. This has meant, in Strasbourg’s case, that a wider margin of appreciation is often given in cases concerning family life which relate to particularly sensitive or moral issues and where there is an insufficient consensus across Member States to find that a breach of Article 8 has occurred.117 This has had inevitable implications for the way in which the ECtHR has approached the question of how to define family life and to whom it can apply. 07.21B An examination of the relevant Strasbourg jurisprudence reveals that when looking at the question of whether family life has been established, the ECtHR will first consider the form of the family and, as such, considers whether it corresponds to what it has referred to as ‘a conventional family based unit’, which will consist of a heterosexual married couple who may or may not have children. Such families are automatically accorded family life and thus placed at the top of an evidentiary hierarchy, where nothing more is required to demonstrate family life. It is also clear that there is no requirement for members of such units to continue to live together118 or remain married, as family life will be in existence by virtue of fulfilling this norm. It is no surprise therefore that the ECtHR has been charged with privileging the traditional or ‘ideal’ family form; however, this is something about which the ECtHR has been unapologetic. The ECtHR has often reiterated that marriage confers a ‘special status’ upon those who enter into it, something which is quite obviously underscored by the protection of the right to

117 As an example, this was the reason why breaches were not found to have occurred for a number of years with respect to the inability of transsexuals to marry (see Cossey v the United Kingdom (1990) 13 EHRR 622 [38]–[40]; Sheffield and Horsham v the United Kingdom (1998) 27 EHRR 163 [57]–[61] and X, Y and Z v the United Kingdom (1997) 24 EHRR 143 [44], [52]. 118 Abdulaziz et al v UK (1985) 7 EHRR 471.

202

Shazia Choudhry

Art 7 – Family Life Aspects

marry as a separate article within the convention itself.119 However, its stance must also be explained as a reflection of the continuing privileging of it by most, if not all, of the contracting states. In other words, this is an inevitable consequence of the operation of the margin of appreciation by a supranational court.120 Although problematic, what is often obscured in such discussions is the fact that by 07.22B privileging marriage in this manner the court is demonstrating what is arguably the real focus of the court: to ascertain the intention to create family life. As a result, marriage represents, in purely evidential terms, the ultimate evidence of the intention to create family life. One advantage that appears to have emerged from this approach is that other, similar, public and legal undertakings such as civil partnerships could also be afforded the same treatment121 and family life, as with married couples, could arise in relation to any children either born or adopted within a civil partnership. With respect to family forms outside of either marriage or a civil partnership, it is fair to say that the court will adopt a somewhat functional test of whether they will constitute family life which, again, demonstrates a certain preoccupation with the intention behind the arrangements. It should also be noted that this functional approach has been facilitated by the Court’s recognition of the changes in family form and structure that have occurred over the years, made possible by the evolutive and dynamic nature of the Convention. Thus, an unmarried couple may establish family life if certain factors are present,122 such as whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means.123 These factors have also been used to extend the concept of family life from unmarried couples who have children to others. Thus, family life was found to be in existence in relation to a transsexual father and his child born as a result of AID,124 an uncle and nephew,125 and a grandparent and grandchild.126 At the same time, the lack of existence of such factors has been applied to hold against the establishment of family life, and thus it will not be held to be in existence by the mere donation of sperm127 or in relation to stillborn children.128 The existence or non-existence of ‘family life’ has thus become, in essence, a question of fact depending upon what the ECtHR has referred to as ‘the real existence in practice of close personal ties’,129 and to a certain extent reflects a recognition of the psychological parent over the biological. Nonetheless it is clear that when examining whether family life is in existence the ECtHR will first consider

119 See Shackell v UK App no 45851/99 (27 April 2000) where the Court held that the difference of treatment for the purposes of the grant of social security benefits, between an unmarried applicant who had a long-term relationship with the deceased, and a widow in the same situation, was justified, marriage remaining an institution that was widely accepted as conferring a particular status on those who entered it. 120 See R Bernhardt, ‘The Convention and Domestic Law’ in R St J Macdonald, F Matxcher and H Petzold (eds), The European System for the Protection of Human Rights (Dordrecht, Martinus Nijhoff, 1993) 123. 121 See Choudhry and Herring, European Human Rights and Family Law (Oxford, Hart Publishing, 2010) ch 4 on marriage for further details of this approach. 122 Lebbink v the Netherlands (2005) 40 EHRR 18. 123 Kroon v the Netherlands (1995) 19 EHRR 263. 124 X, Y and Z v the United Kingdom (1997) 24 EHRR 143. 125 Boyle v UK (1994) 19 EHRR 179. 126 L v Finland Application [2000] 2 FLR 118. 127 M v the Netherlands (1993) 74 DR 120. 128 Znamenskaya v Russia (2007) 44 EHRR 15. 129 K and T v Finland (2000) 31 EHRR 18.

Shazia Choudhry

203

Part I – Commentary on the Articles of the EU Charter

whether there is evidence of an intention to create family life by virtue of form before moving to function. A married couple will thus have established family life with each other and with any of their children and any other forms of relationship will, in essence, have to satisfy the ‘function’ test. 07.23B The Strasbourg Court’s approach to same-sex relationships, however, has recently shifted significantly. Historically, the ECtHR chose to find that adverse treatment on the basis of an individual’s sexual orientation was unjustifiable in relation to the respect for private life rather than family life.130 In addition, there were a number of decisions131 concerning same-sex relationships where the ECtHR declined to find that the Article 8 right to family life had even been engaged.132 However, in a decision in 2010 it chose to specifically address the issue of whether a same-sex relationship could constitute ‘family life’ within the meaning of Article 8. In Schalk and Kopf v Austria133 two same-sex applicants alleged a breach of their Article 12 and Article 14 (in conjunction with Art 8) rights by the failure of the Austrian state to make provision for same-sex marriage. Although no breach was ultimately found,134 the ECtHR nonetheless took the opportunity to address its previous case law on this point and declare that due to a rapid evolution of attitudes towards same-sex couples in the Member States, which had in turn led to a considerable number of those states affording legal recognition to such couples, it was ‘artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy “family life” for the purposes of Article 8.’ Consequently, the facts of the present case were capable of falling within the notion of both ‘private’ and ‘family’ life within the meaning of Article 8.135 Of particular note is the reference to the provisions of two EU Directives with respect to same-sex couples: the Family Reunification and the Free Movement Directive, part of the ‘growing tendency to include same-sex couples in the notion of “family”.’136 Strasbourg’s approach to the status of same-sex individuals in relation to children with 07.24B whom they do not have a biological link has also gone through a similar shift. In Fretté v France137 the ECtHR found that the refusal to allow a gay man to adopt a child because of his sexual orientation did not constitute a breach of his right to private life under Article 8 taken in conjunction with Article 14, rather than his ‘family’ life. A wide margin of appreciation was applied due to ‘the delicate issues raised in the case’, which touched on areas where there was little common ground amongst the Member States. Although some movement did occur on the issue of same-sex adoption in EB v France,138 where the ECtHR found, by a small majority, that a refusal to allow an individual in a same sex

130 These cases concerned, for example, the criminal prohibition of consensual, private same-sex sexual activity: Dudgeon v UK (1982) 4 EHRR 149; Norris v Ireland (1991) 13 EHRR 186, and prohibitions on same-sex relationships within the military: ADT v UK [2000] 2 FLR 697 [38]; Sutherland v UK (1997) 24 EHRR 22 [57]. 131 Estevez v Spain App no 56501/00 (10 May 2001). Even in Karner v Austria [2003] 2FLR 623 [33] note that the Court did not find it necessary to determine the notions of ‘private life’ or ‘family life’, because it considered that, in any event, the applicant’s complaint related to the manner in which the alleged difference in treatment adversely affected the enjoyment of his right to respect for his home guaranteed under Art 8. 132 Smith and Grady v UK (n 67); Lustig-Prean and Beckett v UK (1999) 29 EHRR 548. 133 Schalk and Kopf v Austria App no 30141/04 (24 June 2010). 134 See the discussion of this case in the commentary on Art 9. 135 Schalk and Kopf (n 133) [91]–[95]. 136 Ibid [93]. 137 Fretté v France (2004) 38 EHRR 21. 138 EB v France App no 43546/02 (22 January 2008).

204

Shazia Choudhry

Art 7 – Family Life Aspects

relationship to adopt a child as a single person did constitute a breach of both her Article 8 and 14 rights. However, it should be noted that the claim was made in relation to sexual orientation discrimination rather than the family life of the applicant. As a result the claim was made on the private life aspects of Article 8 only.139 Any inroads made in EB have arguably been cancelled out by the very recent decision of Gas and Dubois v France,140 where the ECtHR seems to have switched back to a more restrictive stance upon the issue. The case concerned the refusal of an applicant’s request for the adoption of the child of her same-sex partner with whom she had entered into a civil partnership, which was not found to be a breach of either Article 14 or Article 8. However, in doing so the ECtHR concentrated its reasoning on Article 14 and barely acknowledged the case law on this area concerning Article 8, making no statement upon which aspect of Article 8 they were referring to when finding that no breach of it had occurred. However, in a very recent decision the ECtHR specifically addressed the question of whether the relationship between a same-sex couple and a child could come within the meaning of ‘family life’ for the purposes of Article 8, although it was careful to distinguish the facts from those of Gas and Dubois.141 In X and Others v Austria142 two women who live in a stable homosexual relationship 07.25B complained about the Austrian courts’ refusal to grant one of the partners the right to adopt the son of the other partner without severing the mother’s legal ties with the child (second-parent adoption). In its consideration of Article 8, the ECtHR reiterated that the relationship of a cohabiting same-sex couple living in a stable de facto relationship falls within the notion of ‘family life’, just as the relationship of a different-sex couple in the same situation would, citing both Schalk and Kopf and Gas and Dubois v France in support.143 However, what should be noted is that the reference to Gas and Dubois v France is to its admissibility decision,144 rather than its more recent judgment. This was presumably because it was only in the former that the Court had decided that the relationship between two women who were living together having entered into a civil partnership, and the child conceived by one of them by means of assisted reproduction but being brought up by both of them, constituted ‘family life’ within the meaning of Article 8 of the Convention, whereas in the latter no reference was made to this point at all. As a result, the ECtHR found that the relationship between all three applicants amounted to ‘family life’ within the meaning of Article 8 of the Convention. This was due to the following reasons: the fact that the first and third applicants in the present case formed a stable same-sex couple; that they had been cohabiting for many years; the second applicant shared their home and his mother and her partner cared for him jointly.145

139 In distinguishing the case from Fretté, the Court reiterated that differences based on sexual orientation required particularly serious reasons by way of justification but, nonetheless, found that, in this case, no such reasons had been advanced by the Government. Further, although Art 8 did not imply such a right, given that French law allowed single persons to adopt, thereby opening up the possibility of adoption by a single homosexual such as the applicant, the refusal of EB’s adoption application had been based on discriminatory grounds. 140 Gas and Dubois v France App no 25951/07 (15 March 2012). 141 See the discussion of this case in the commentary on Art 9. 142 X and Others v Austria App no 19010/07 (Judgment 19 February 2013). 143 Ibid [95]. 144 App no 25951/07 (31 August 2010). 145 See the discussion of this case in the commentary on Art 9 for details on the outcome.

Shazia Choudhry

205

Part I – Commentary on the Articles of the EU Charter

07.26B

What must be remembered, however, is that a finding that a same-sex relationship is capable of coming within the notion of family life will not necessarily translate into a finding that a breach of Article 8 and/or Article 14 has occurred. It may still be difficult to establish that the alleged discrimination is unjustified, due to the Court’s general policy of protection of the traditional family and the child’s best interests. Thus, in X and Others v Austria, although the Court found that a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 had occurred on account of the difference in treatment of the applicants in comparison with unmarried differentsex couples in which one partner wished to adopt the other partner’s child, it also found that no violation of Article 14 taken in conjunction with Article 8 was found when the applicants’ situation was compared with that of a married couple in which one spouse wished to adopt the other spouse’s child. Further, although in Karner v Austria,146 the ECtHR found that the narrow interpretation of the relevant Rent Act which had prevented a surviving partner of a same-sex couple from taking over a tenancy was a breach of his Article 8 and Article 14 rights, it also stated that ‘the protection of the family in the traditional sense’,147 even in cases concerning differences of treatment based on sexual orientation, may, in appropriate circumstances, be a weighty and legitimate enough reason which would justify a difference in treatment. In sum, the application of a wide margin of appreciation where any such discrimination is founded on the belief that it is necessary to protect the conventional family form and the interests of children, may hinder the chances of a successful claim under the family life aspects of Article 8. Nonetheless, while there may be a privileging of marriage with respect to the 07.27B engagement of family life under Article 8(1),148 any difference in treatment towards children which is rooted in family form will fail to satisfy the Article 8(2) test. Both the ECtHR and the Council of Europe149 have demonstrated their commitment to the equal treatment of children born within and outside of marriage which is, in turn, in line with a number of international and regional instruments,150 all of which prohibit discrimination on the grounds of birth. Thus, in Marcks v Belgium151 the ECtHR held that although it was not a requirement of Article 8 that a child or parent be entitled to a share in the estate, or for a parent to leave property in a certain way, it would constitute a breach of their Article 8 and Article 14 rights if any such provision discriminated between legitimate and illegitimate children. Thus, once family life has been established, the ECtHR makes no distinction between the legitimate and illegitimate family, and prohibits discrimination grounded on birth.

146

Karner v Austria App no 40016/98 (24 July 2003). Ibid [41]. 148 The ECtHR has held on a number of occasions and over a variety of contexts that differences in treatment between married and unmarried couples can be justified if there is a rational basis for doing so, and a wider margin of appreciation will be accorded—eg McMichael v UK (1995) 20 EHRR 205 and Saucedo Gomez v Spain App no 33784/94 (26 January 1999). 149 In accordance with the European Convention on the Legal Status of Children Born Out of Wedlock, 15 October 1975—see also the Committee of Ministers Policy referred to in Marcks v Belgium (1979) 2 EHRR 330. 150 Art 2 of the UN Convention on the Rights of the Child, Art 2.1 of the International Covenant of Civil and Political Rights, and Art 21 of the European Charter of Fundamental Rights. 151 Marcks (n 135) and Johnston v Ireland App no 9697/82 (18 December 1986). 147

206

Shazia Choudhry

Art 7 – Family Life Aspects

Given that Article 52(3) of the Charter states that insofar as the Charter contains rights 07.28B which correspond to rights guaranteed by the ECHR ‘the meaning and scope of those rights shall be the same as those laid down by the said Convention’, there is more than a reasonable prospect of the CJEU interpreting the question of family life under Article 7 of the Charter in the same way. However, it must also be recalled that the Charter further states that this ‘shall not prevent Union law providing more extensive protection.’ As a result the CJEU must follow existing ECHR interpretations of the meaning of family life and to whom it applies; however, it is free to go beyond this interpretation and increase the scope and application of Article 7 if a greater level of protection is desired. The CJEU’s approach to Article 7 will now be examined in the next section.

III. Specific Provisions The definition of the family, and who is included within it, are questions that have 07.29B arisen within a variety of different contexts within EU law. However, it is community legislation and case law within the fields of free movement, migration, immigration and asylum which have proved to be the best source of identifying how these questions have been answered. Two particular issues have emerged: the treatment of cohabiting heterosexual couples, and the treatment of same-sex couples, both of which have implications for the EU’s approach towards not only the family but also towards gender equality. (a) The Married Heterosexual Norm A number of commentators152 have identified a certain privileging of the traditional, 07.30B married and heterosexual family by both the political and judicial institutions of the EU. Two judgments in particular are cited by commentators as evidence of EU’s bias towards the heterosexual family. In Grant v South West Trains153 the Court’s refusal to extend the scope of Article 141 EC and the Equal Pay Directive to cover discrimination on the grounds of sexual orientation meant that same-sex couples could not qualify for the payment of employees’ family benefits, and in D and Sweden v Council154 the CJEU held that same-sex relationships, even if legally registered under national laws, remained distinct from marriage and could not be treated in the same way as marriage.155 The position, however, has since been rectified by the CJEU under Directive 2000/78156 which prohibits such discrimination on the grounds of sexual orientation.157 152 See TK Hervey, ‘Migration workers and their families in the European Union: the pervasive ideology of community law’ in J Shaw and G More (eds), New Legal Dynamics of European Union (Oxford, Clarendon Press, 1995) 91, 106, and C McGlynn, ‘A Family Law for the European Union? in J Shaw (ed), Social Law and Policy in an Evolving European Union (Oxford, Hart Publishing, 2000) 223, 240, 241, amongst others. 153 Case C-249/96 Grant v South West Trains [1998] ECR I-621. 154 Case T-264/97 D and Sweden v Council [1999] ECR II-1. 155 Ibid [26], [37]. 156 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16–22. 157 See the judgments in Case C-267/06 Maruko v Versorgungsanstalt der deutschen Bühnen [2008] ECR I-1757 and Case C-147/08 Jürgen Römer v Freie und Hansestadt Hamburg [2011] ECR I-3591. The CJEU confirmed the principle that in all EU Member States where marriage is reserved for different-sex partners and a separate registered partnership law for same-sex couples exists, employment-related payments such as

Shazia Choudhry

207

Part I – Commentary on the Articles of the EU Charter

In contrast, the act of marriage has always, even if withdrawn from, conferred privileges not only upon the spouses of EU citizens but also their descendants. In Baumbast and R v Secretary of State for the Home Department158 the CJEU adjudged that the children of a citizen of the European Union who resided in a Member State on the basis of their parent’s rights of residence as a migrant worker in that Member State were entitled to continue that residence regardless of the fact that the parents of the children had meanwhile divorced and the fact that only one parent was a citizen of the European Union. The position was updated to include registered partnerships with the passage of the Directive on the right of citizens of the Union to move and reside freely within Member States159 (the Free Movement Directive): Article 18 provides that the dissolution of a marriage or registered partnership will not necessarily result in the loss of the right to residence.160 Furthermore, any right of residence will be preserved up to the point of dissolution. As a result, parties in a state of separation, even with the intention to divorce at a later date, can still qualify for a right of residence as a family member on the basis of the Directive.161 07.31B This is in stark contrast to the position on cohabitants (both heterosexual and homosexual). The position was set out in the late 1980s CJEU in Netherlands v Reed,162 where the CJEU held that a ‘spouse’, for the purpose of the grant of free movement ‘family rights,’ is to be limited to married persons, and does not therefore include cohabitees, either heterosexual or homosexual. Nearly two decades later the EU failed to take the opportunity to equalise the position between cohabitees and married couples on joining their partners with the passage of the Free Movement Directive,163 although it did introduce a route whereby it is at least possible for cohabitants to obtain the right of residence on the basis of their partner’s free movement rights. If a cohabiting couple has not formalised their relationship by entering into a registered partnership they will fall under the rules on unregistered partnerships which, under the Free Movement Directive, obliges Member States to ‘facilitate entry and residence’ to unregistered partners who are in a ‘durable relationship’.164

benefits under pension plans must be equal for same-sex registered partners and married partners. Difference of treatment between registered partners and married partners constitutes direct discrimination on the ground of sexual orientation. 158 Case C-413/99 Baumbast and R v Secretary of State for the Home Department (Judgment 17 September 2002) Where they satisfy the conditions laid down in Arts 12(2) and 13(2) of that Directive, which require that the persons concerned can, among other conditions, show, before acquiring the right of permanent residence, that they themselves satisfy the same conditions as those referred to in Art 7(1)(a), (b) or (d) of that Directive. For a very recent appraisal of the case law on this point see Advocate General Bot’s Opinion of 15 January 2013 in Case C-529/11 Alarape and Tijani (Judgment 8 May 2013). 159 Directive 2004/38 [2004] OJ L158/77. 160 It provides that in the event of the death or departure of the Union citizen, divorce, annulment of the marriage or termination of a registered partnership, the members of his family can acquire the right of permanent residence after residing legally for a period of five consecutive years in the host Member State. 161 Case 267/83 Aissatou Diatta v Land Berlin [1985] ECR 567. This case was seen by a number of commentators to imply that the rights of a migrant worker’s spouse may be extinguished on divorce, but Art 18 of Directive 2004/38 later clarified that this would not necessarily be the case. See L Ackers, Shifting Spaces—women, citizenship and migration within the European Union (Bristol, Policy Press, 1998). See also the discussion concerning the applicability of these provisions to separated couples in the CJEU judgment Case C-40/11 Yoshikazu Iida v Stadt Ulm (Third Chamber, Judgment 8 November 2012) below. 162 Case 59/85 Netherlands v Reed [1986] ECR 1283. 163 Directive 2004/38, which partly repealed Regulation 1612/68 upon which this case had been decided. 164 Art 3(2).

208

Shazia Choudhry

Art 7 – Family Life Aspects

This applies equally to couples of the opposite sex and to same-sex couples for whom 07.32B the position has also not been equalised. Thus, if a same-sex couple is married in their home state and the host state recognises the validity of same-sex marriages, then the individual will have the right of a spouse, under the Free Movement Directive, to join their partner.165 If the couple has entered into a registered partnership in their home state then an individual may be able to join their partner in the host state as if they were a spouse. If the host state’s national law treats registered partnerships as equivalent to marriage, then an individual has the right to join their partner as if they were a spouse.166 If the host state does not treat registered partnerships as equivalent to marriage then the couple will fall under the rules on unregistered partners in a ‘durable relationship’. EU law therefore places no obligation on Member States to allow or recognise registered partnerships. This is quite clearly different to the concrete right to join their partner enjoyed by a spouse, who, unlike cohabitant couples, is not required to provide evidence that their relationship is ‘durable’, and unlike same-sex couples is not subject to the additional uncertainty of how each Member State chooses to view them. Demonstrating the durability of a relationship for these purposes is a question of fact. The Free Movement Directive provides that the Member State concerned shall ‘undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.’ In practice this has resulted in most Member States requiring a minimum period of living together and their intention to live together permanently.167 Thus, despite some inroads, it can be said that marriage is still accorded a privileged 07.33B status by the EU; however, the manner in which this occurs is arguably less consistent than before. Although, there are similar provisions in the Family Reunification Directive168 which sets out that Member States may authorise the entry of unmarried partners with whom the sponsor is in a duly attested stable long-term relationship, and registered partners provided certain conditions are met, spouses are, on the face of it, in exactly the same position.169 This was confirmed in the first case in which the CJEU was asked to specifically consider the compatibility of EU legislation with Article 7 of the Charter. In European Parliament v Council of the European Union,170 no less than the European Parliament sought the annulment of various parts of the Family Reunification Directive on the basis that they did not respect the right to family life and the right to nondiscrimination. After a comprehensive review of ECtHR case law, the CJEU found that although the right to family life included the right to family reunification,171 Article 7

165 Currently the following Member States: Belgium, the Netherlands, Spain, Norway, Portugal, Denmark, France and Sweden enable same-sex couples to be legally married. However, 10 Member States (Estonia, Greece, Italy, Latvia, Lithuania, Malta, Poland, Portugal, Slovakia, Slovenia) do not recognise the validity of same-sex marriages. In these states same-sex spouses will probably not be recognised as ‘spouses’. 166 10 Member States allow registered partnerships that have effects equivalent to marriage: Austria, Czech Republic, Denmark, Finland, Germany, Hungary, Ireland, Luxembourg, Romania, Slovenia and the UK, although the latter has recently passed legislation to allow for same-sex marriage. 167 The UK for example requires a minimum period of two years or more living together in a relationship ‘akin to marriage’. See reg 6 of the 2006 Immigration Regulations. 168 Council Directive 2003/86/EC [2013] OJ L251/12, see Art 4(3). 169 Set out in c IV of the Directive. 170 Case C-540/03 European Parliament v Council of the European Union [2006] ECR I-5769. 171 The CJEU also confirmed that the provisions must be read in conjunction with the obligation to have regard to the child’s best interests, recognised in Art 24(2) of the Charter, and taking account of the need, expressed in Art 24(3), for a child to maintain on a regular basis a personal relationship with both his or her parents.

Shazia Choudhry

209

Part I – Commentary on the Articles of the EU Charter

did not, however, create an individual right of entry for family members, but rather an opportunity of entry which is subject to the margin of appreciation as applied by individual Member States. However, although spouses are not accorded privileged status in terms of the opportunity to enter, privileging nonetheless occurs in the process; unlike cohabitants, spouses are not required to provide any evidence of the stability or length of their relationship. This clear difference in treatment in the directive was further compounded by the failure on the part of the European Parliament to even raise this as an issue as part of the discrimination claim,172 which at best could be seen as evidence of ambivalence towards the issue or at worst, as evidence of an intention to continue the privileging of marriage within EU law. The provisions on asylum are similar in the requirement upon cohabitants to provide 07.34B evidence of stability but different in the additional requirement of comparable treatment by individual Member States. Thus, the Directive on Reception Conditions for Asylum-seekers includes unmarried partners in a stable relationship within the definition of family members, but only where ‘the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens’.173 Although the Directive does not refer to same-sex couples specifically, it is presumed that this leaves individual Member States free to interpret the provisions relating to unmarried partners as equally applicable to them. The same definition is given in the Directive on Qualifications for Becoming a Refugee or a Beneficiary of Subsidiary Protection Status174 and in the Directive on Asylum Procedures of the Dublin Regulation.175 A clear hierarchy has thus been established within these fields of competence with regard to cohabitants (which may include same-sex couples who may be married or in a registered partnership). At the top are those coming within the Family Reunification Directive in sharing the dubious status of holding the equality of opportunity to enter a Member State with spouses. In the middle are those cohabitants who come within the Free Movement Directive who do not have an equal right of residence with spouses but who have the possibility of acquiring it, provided an evidential hurdle is cleared. Finally at the bottom are those cohabitants who come within the various asylum provisions who have to clear two evidentiary hurdles in order to access the same benefits as spouses. 07.35B Ultimately, the clearest point which emerges from this analysis is that, regardless of which category they are in, cohabitants continue to be at the bottom of the EU family tree by virtue of the requirement to produce some kind of evidence concerning the stability and nature of their relationship in order to access any of the opportunities available within these areas of EU competence.176 An argument could thus certainly be made concerning the incompatibility of the definitions of family members contained within these provisions with regard to not only Article 7 but a number of the other fundamental rights contained in the Charter; however, in doing so it is clear that current Strasbourg case law concerning Article 8 cannot be relied upon. This is ostensibly due to the fact that the provisions referred to appear very much to be in line with Strasbourg’s approach in

172 173 174 175 176

210

The Commission raised issues concerning the treatment of minor children in the Directive alone. Art 1(d) of Directive 2003/9 of 27 January 2003. Art 2(j) of Directive 2011/95 of 13 December 2011. Art 2(i) of Regulation 343/2003 of 18 February 2003. See the discussion concerning Case C-400/10 J McB v LE [2010] ECR I-8965 below.

Shazia Choudhry

Art 7 – Family Life Aspects

placing form over function as a means of determining who has access to the protection afforded to a ‘family member.’ Strasbourg has, as outlined in the above section, consistently accorded marriage a special status by virtue of it being sufficient evidence alone of the requisite level of stability of a couple and their intention to remain together. All other relationships outside of marriage are subjected, in essence, to an examination of its functions to ascertain whether family life is sufficiently in existence to warrant the label of ‘family member’ and thereby access the benefits this status may bestow. Thus, if any claim concerning the compatibility of these provisions with the Charter 07.36B were to succeed, it would require the CJEU to go beyond the interpretation of the fundamental rights involved as currently provided for by the ECtHR. In addition, being able to claim the right to family life is just one part of the process and does not guarantee that any breach of it will be upheld. Article 7, like Article 8 of the ECHR, is a qualified right. As a result, once the applicability of the article has been established the court must then examine whether any of the specified limitations set out in Article 8(2) apply before a breach of the right can be found. Furthermore, in assessing any limitations both the principles of proportionality and the margin of appreciation will be applied. However, it is the latter principle that has proved to be of particular importance in cases concerning family life before the ECtHR where its approach has been to accord a wide margin of appreciation to areas that are particularly sensitive to national opinion.177 If the CJEU follows the approach of the ECtHR with regard to such areas then, even if family life is found, a wide margin of appreciation may be applied and the likelihood of a breach being found may be low. It is thus somewhat unsurprising that although there are now a number of judgments specifically concerning claims made in relation to Article 7 of the Charter none have yet raised the compatibility of the definitions of ‘family members’ within these provisions. Cases have instead been concerned with various attempts to subject the exercise of the rights of family members to procedural restrictions and conditions (examined in the next section) and whether the subject at issue concerns the implementation of EU law. The CJEU’s approach to the latter is particularly crucial when it is recalled that the Charter will only apply to areas where EU law is being implemented. Thus, even if an individual is able to establish family life and come within the protection of Article 7 of the Charter, any such protection can only be triggered if the subject matter of the claim lies within the scope of EU law. (b) The Scope of EU Law and Citizenship The importance of whether the subject matter of the claim lies within the scope of EU 07.37B law has been made evident in a series of recent cases concerning the rights conferred by the status of citizenship, particularly the right to move to and reside in any Member State (Art 21 TFEU) and the derivative right of residence which may be granted to the caregiver of a citizen who is a dependent child.178 Traditionally, a cross-border element has been necessary for any of these rights and the application of EU law to be triggered, and until the decision in Ruiz Zambrano179 the absence of this element would 177 See S Choudhry and J Herring, European Human Rights and Family Law (Oxford, Hart publishing, 2010) ch 1. 178 Case C-200/02 Chen [2004] ECR I-9925. 179 Case C-34/09 Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm) [2011] ECR I-1177.

Shazia Choudhry

211

Part I – Commentary on the Articles of the EU Charter

have resulted in the situation being regarded as a purely internal one, to be regulated by national law. The case itself concerned Mr and Mrs. Zambrano, Colombian nationals who had come to Belgium and applied for asylum and had their applications denied. Two of the Zambranos’ children were, however, born in Belgium and were granted Belgian nationality. At various points in time, Belgian authorities had rejected Mr and Mrs Zambrano’s applications for residence permits and had denied Mr Zambrano unemployment benefits on grounds that he had been employed without a work permit. Mr Zambrano challenged these decisions, arguing that he enjoyed a right to residence and access to employment directly by virtue of the EC Treaty or, at the very least, that he enjoyed the derived right of residence, recognised in by the CJEU in Chen for the ascendants of a minor child who is a national of a Member State and that, therefore, he was exempt from the obligation to hold a work permit. In a landmark decision, the CJEU held that Article 20 of the TFEU precludes a 07.38B Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the ‘genuine enjoyment of the substance of the rights’180 attaching to the status of European Union citizen. Thus, even wholly internal situations could seemingly be brought within the scope of EU law, provided the genuine enjoyment of the substance of citizenship rights test could be satisfied. Had this position been maintained, the reach of not only the Free Movement Directive but also the applicability of the Charter would significantly have been increased; however, the precise scope of the Zambrano exception was revisited by the CJEU in two further cases which re-emphasised the requirement for a cross-border element. 07.39B In McCarthy181 a dual UK and Irish national who had not resided in another Member State sought to rely on EU law in order to secure a right of residence for her Jamaican husband. McCarthy had never been in a position of employment, was not self-sufficient and relied on social welfare benefits. Following her marriage to Mr McCarthy, a Jamaican national without a right of residence in the UK, she applied for and received an Irish passport. Relying on her status as an Irish citizen resident in the UK, she sought a right of residence in the UK as an EU citizen based on the Free Movement Directive, and at the same time Mr McCarthy sought a right of residence as the spouse of an EU national. Mrs McCarthy’s request was refused on the grounds that she did not qualify for permanent residence under the Directive because she was not a worker, a self-employed person, nor a person of sufficient independent means, and after a number of appeals the Supreme Court of the United Kingdom requested a preliminary ruling on an interpretation of the Directive from the CJEU. This time the CJEU held that the Directive was inapplicable, as it only applied to situations where a Union citizen has moved to another Member State and concerned the conditions of residence of a Union citizen in another Member State. As a national of the UK Mrs McCarthy’s residence there

180 181

212

Ibid [42]. Case C-434/09 Shirley McCarthy v Secretary of State for the Home Department [2011] ECR I-3375.

Shazia Choudhry

Art 7 – Family Life Aspects

could not be subject to conditions; Article 21 TFEU182 could also not be relied upon. The CJEU was careful to distinguish the case from its ruling in Zambrano; the fact that Mrs McCarthy had never exercised her right of free movement did not necessarily preclude her relying on her status as a Union citizen. Nonetheless, no element of the situation of Mrs McCarthy, as described by the national court, indicated that the national measure at issue in the main proceedings had the effect of depriving her of the genuine enjoyment of the substance of the rights associated with her status as a Union citizen, or of impeding the exercise of her right to move and reside freely within the territory of the Member States, in accordance with Article 21 TFEU. As a result, in contrast with Zambrano, the national measure at issue in the main proceedings did not have the effect of obliging Mrs McCarthy to leave the territory of the European Union. The situation was therefore held not to be governed by EU law, and as a consequence Mr McCarthy did not enjoy a right of residence under EU law. In Dereci183 the question was whether several Austrian citizens, who had also not 07.40B exercised their right to free movement, could rely on EU law in order to obtain a right of residence for their relatives. The Court adopted the same position as in McCarthy, further clarifying that the Zambrano exception ‘refers to situations in which the Union citizen has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole.’184 Whether this would be the case in the particular situation at hand is, ultimately, for the national court to assess; but the fact that family reunification may appear ‘desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union’185 is, the Court stated, not enough in itself to bring an otherwise internal situation within the scope of EU law. As a result, this judgment, while preserving the Zambrano exception has significantly narrowed it to cases of absolute dependence of the citizen on a third country national,186 such as the relationship of a caregiver to a child, which, it also seems from the more recent cases of O, S v Maahanmuuttovirasto187 and Maahanmuuttovirasto v L188 cannot include a step-parent. In the joined cases of O, S v Maahanmuuttovirasto189 and Maahanmuuttovirasto v 07.41B 190 L Advocate General Bot considered whether a third-country national could claim a derivative right of residence from his stepchild (a Union citizen), and the exact scope of the application of the Zambrano principles within this context. He advised that the

182 Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties, and by the measures adopted to give them effect. 183 Case C-256/11 Murat Deveci, Vishaka Heiml, Alban Kokollari, Izunna Emmanuel Maduike, Dragica Stevic v Bundesministerium für Innere (Judgment 15 November 2011). 184 Ibid [66]. 185 Ibid [68]. 186 See A Hinarejos, ‘Citizenship of the EU: clarifying “genuine enjoyment of the substance” of citizenship rights’ (2012) 71(2) Cambridge Law Journal 279–82, amongst others, for an analysis of these cases, and D Kochenov, ‘The essence of EU citizenship emerging from the last ten years of academic debate: beyond the cherry blossoms and the moon?’ (2013) 62(1) International & Comparative Law Quarterly 97–136, for a recent consideration of their implications for EU citizenship. 187 Joined Cases C-356/11 and C-357/11 O, S v Maahanmuuttovirasto and Maahanmuuttovirasto v L (Judgment 6 December 2012). 188 Ibid. 189 Ibid. 190 Ibid.

Shazia Choudhry

213

Part I – Commentary on the Articles of the EU Charter

Zambrano exception applied only to ‘situations in which the Union citizen has no other choice but to follow the person concerned, whose right of residence has been refused, because he is in that person’s care and thus entirely dependent on that person to ensure his maintenance and provide for his own needs.’191 This would not therefore include ‘third-country nationals who exercise no responsibility, either parental or financial, over the Union citizen.’192 The CJEU seems to have followed this approach in holding that Article 20 TFEU must be interpreted as not precluding a Member State from refusing to grant a third-country national a residence permit on the basis of family reunification where that national seeks to reside with his spouse, who is also a third-country national and resides lawfully in that Member State and is the mother of a child from a previous marriage to a Union citizen, and with the child of their own marriage, who is also a third-country national. However, this was subject to the caveat that such a refusal does not entail, for the Union citizen concerned, the denial of the genuine enjoyment of the substance of the rights conferred by the status of citizen of the Union as confirmed by Zambrano.193 This question was a matter for the national court to establish, and when making that assessment, the national court must take into account whether the mothers of the Union citizens hold permanent residence permits in the Member State in question, so that, in law, there is no obligation either for them, or for the Union citizens dependent on them, to leave that Member State or the European Union as a whole. Although the CJEU stated that all the circumstances of the case must be taken into account, it also approved the opinion of the Advocate General that it is the relationship of dependency between the Union citizen who is a minor and the third country national who is refused a right of residence that is liable to jeopardise the effectiveness of Union citizenship, since it is that dependency that would lead to the Union citizen being obliged, in fact, to leave not only the territory of the Member State of which he is a national but also that of the European Union as a whole, as a consequence of such a refusal.’194 What is particularly noteworthy about this judgment is that despite the fact the case clearly centred on arguments pertaining to the family life of the applicants there was a complete lack of reference to Article 7 of the Charter in its discussion of the questions put before the Court. Curiously, however, the applicability of Articles 7 and 24 was discussed in relation to the interpretation of the Reunification Directive which was not the subject of the specific questions put before it.195

07.42B The decision in Dereci has thus confirmed the restricted reach of the Charter within this context; it is only those citizens who are able to fit into the rather narrow criterion specified who will be able to additionally claim the protection of Article 7. Those citizens who fall outside of the criterion but who, nevertheless, have just as compelling claims to family life, will not.196 These cases have also served to demonstrate the irony of the

191

Ibid [44]. Ibid [45]. 193 Ibid [41]. 194 Ibid [56]. 195 Ibid [75]–[80]. 196 The right to family life was specifically considered by the Court, but only insofar as making the point ‘if the referring court considers, in the light of the circumstances of the disputes in the main proceedings, that the situation of the applicants in the main proceedings is covered by European Union law, it must examine whether the refusal of their right of residence undermines the right to respect for private and family life provided for in Article 7 of the Charter. On the other hand, if it takes the view that that situation is not covered by European Union law, it must undertake that examination in the light of Article 8(1) of the ECHR.’ 192

214

Shazia Choudhry

Art 7 – Family Life Aspects

limitations imposed by Article 51(1) of the Charter in that in those situations in which reliance upon a fundamental rights argument would be most needed, Article 7 will not, at the moment, bind Member States, and when Article 7 is applicable it will be redundant in light of an infringement of citizenship rights already having been established.197 (c) The Scope of EU Law—Domestic Violence The commitment to the eradication of domestic violence has been stated in a num- 07.43B ber of EU policy documents and with the provision of funding outlined above. The application of fundamental rights to such situations has been acknowledged for some time amongst those working within the field and in particular by feminist and human rights activists.198 The human rights claims involved in situations involving domestic violence have also been considered by the ECHR in a number of recent cases where the applicability of Articles 2, 3 and 8 has been confirmed with respect to the threat to life, the threat of torturous and degrading and humiliating treatment, and the impact upon the family life of the victims. However, all these cases involved victims who made clear their desire to end the relationship with the perpetrator and were seeking protection from the state in doing so. Those familiar with the field will also know that these cases are complex and often involve victims choosing to return to their violent partners even after instigating proceedings against them. Various explanations for this behaviour, ranging from Stockholm Syndrome to learned helplessness, have been offered in the literature, and fierce debates continue as to whether the autonomy of the victim in withdrawing her cooperation from prosecution of the perpetrator should be respected, or whether the interests of society in condemning such behaviour is sufficient to override the wishes of the victim.199 This particular issue is yet to be brought before the ECtHR, although it has been posited that where Member States do continue with prosecutions in such cases it would be justifiable and proportionate to do so.200 In Sanchez,201 the CJEU was presented with an opportunity to rule on this exact issue. 07.44B Two men having been convicted for domestic violence had also had imposed upon them an ancillary penalty which prohibited any contact with the respective victims, the partners of the perpetrators, for a period of more than one year. At the request of the partners, both men resumed cohabitation with their partners after some days and were convicted for contempt of court. The appeals court decided to refer to the CJEU as to compatibility of the national provisions at issue with the Framework Decision on the Standing of Victims in Criminal Proceedings.202 The CJEU found that Articles 2, 3 and 8

Unfortunately, the Court left the issue of whether the current situation falls within the scope of EU law to be determined by the referring court—see ibid [70]–[72]. 197 A Lansbergen, Case Summary and Comment: Case C-256/11, Dereci and others v Bundesministerium für Inneres at http://eudo citizenship.eu/docs/Dereci%20Case%20Summary%20and%20Comment.pdf. 198 See S Choudhry and J Herring, ‘Righting Domestic Violence’ (2006) 2 (20) International Journal of Law, Policy and the Family 1–25. 199 See S Choudhry, ‘Contact, Domestic Violence and the ECHR’ [2012] Current Legal Issues, for a review of this literature. 200 Ibid—within the context of child contact. 201 Opinion of Advocate General in Joined Cases C-483/09 and C-1/10 Criminal proceedings against Magatte Gueye and Valentín Salmerón Sánchez [2011] ECR I-8263. 202 Council Framework Decision 2001/220/JHA of 15 March 2001.

Shazia Choudhry

215

Part I – Commentary on the Articles of the EU Charter

of Framework Decision must be interpreted as not precluding the mandatory imposition of an injunction to stay away for a minimum period, provided for as an ancillary penalty by the criminal law of a Member State, on persons who commit crimes of violence within the family, even when the victims of those crimes oppose the application of such a penalty. 07.45B The outcome of this case should have been a victory for those activists seeking confirmation that states are entitled to override victims’ wishes in the interests of wider society without fear of acting contrary to their right to family life. However, the CJEU completely sidestepped the entire issue by following the opinion of the Advocate General in ruling that the Spanish court’s questions essentially related to substantive criminal law, since they concerned the legality and proportionality of a minimum sentence with regard to the crime of domestic violence, and that the Framework Decision was aimed exclusively at harmonising the approach to be taken toward victims in criminal procedure.203 As a result of this reasoning, it held that any fundamental rights issue raised in this respect for the victim was outside the scope of the fundamental rights laid down in the Charter204 and concluded that the issue of an obligatory additional restraining order in the case of domestic violence, and its possible implications on victims, was outside the scope of EU law. This line of reasoning is not only disappointing from the point of view of failing to 07.46B take advantage of the opportunity to make visible the EU’s commitment to the eradication of gender-based violence but it is also seemingly flawed. Not only did the judgment itself fail to refer to the Charter but, in addition, the opinion of the Advocate General paid scant attention to the existing ECtHR case law on this area by failing to engage with the argument from Spain that its stance on the issue was based on this case law, referring instead in just one footnote to a single ECtHR judgment.205 Furthermore, there was no justification or assessment of the relevant ECtHR case law in either the judgment or the Opinion as to the distinction made between the applicability of the Charter to substantive criminal law and not to criminal procedure.

IV. Limitations and Derogations 07.47B Article 7 of the Charter does not contain the equivalent of the limitation clause seen in Article 8(2) ECHR. However, the explanatory text to Article 7 of the Charter makes it clear that the rights it provides are intended to be subject to the limitations set out in Article 8(2) ECHR.206 Limits on the right to family life can, under the terms of Article 8(2) ECHR, be limited only if the limitations are ‘prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health of morals, or the protection of the rights and freedoms of others’.207 These limitations have generated a significant amount of case law and, in certain contexts; have allowed for a finding that the breach of family life has been justified. Given that Article 7 of the Charter is intended to mirror the protection given by Article 8 ECHR, these

203 204 205 206 207

216

Ibid [50]–[51]. Ibid [69]. The AG referred to the case of Opuz v Turkey App no 33401/02 (09 June 2009) in ibid fn 13. See also the explanations to Art 52(3) of the Charter. European Convention on Human Rights, Art 8(2).

Shazia Choudhry

Art 7 – Family Life Aspects

limitations are likely to be important in the interpretation of when a breach of family life can be upheld under EU law. (a) Citizenship and Migration Claims with regard to the breach of family life are often made in respect of decisions by 07.48B Member States concerning the conferral of the right to reside or migrate to a Member State, and the expulsion of individuals from Member States. Under the ECHR, the main point to note at the outset is that protection is provided for all people under Article 8, irrespective of nationality or citizenship. Once an individual has established that they are able to claim family life, the central question for the ECtHR is then whether the state’s refusal of leave to enter, remain or expel deprives the applicant of the opportunity to benefit from his right and whether this deprivation is a proportionate response to the legitimate aim being pursued. In making this assessment, the Court must also ensure that a fair balance has been struck between the rights of the individual and the interests of the community. The key question in deciding whether the refusal constitutes an interference with the right to respect for family life, which must then be justified by the state, is whether or not there are obstacles to conducting family life abroad. This may involve the citizen having to be exiled from his or her own state, but if this is assessed as not being unreasonable, the ECtHR will consider that there has been no interference and so uphold the state’s decision. In contrast, under EU law, a person seeking protection from a refusal of leave to enter 07.49B or remain or expulsion is subject to different treatment according to his/her nationality/citizenship status, and this has, it has been argued, created a stratification of rights between different people living within the EU.208 At the top are Union citizens and their family members who are afforded enhanced protection by virtue of the right to free movement legislation, and at the bottom are third-country nationals with no connection with EU citizens, who acquire EU rights through a variety of instruments209 based on Article 79 TFEU (ex Art 63(3) TEC, as amended) and who are afforded lesser protection from expulsion. Although this fundamental difference in protection has not in itself been challenged under Article 7 the CJEU has, nonetheless, reiterated the need to consider the impact upon the right to family life when Member States wish to make use of the derogations contained in these instruments. The CJEU has thus applied the case law under Article 8 ECHR in a number of judgments210 concerning the status of family members of EU citizens to emphasise the obligation on national authorities to take into account the right to family life and respect of proportionality and this has continued since the Charter has entered into force.

208 S Morano-Foadi and S Andreadaksi, ‘The convergence of the European legal system in the treatment of third country nationals in Europe: the ECJ and ECtHR jurisprudence’ (2011) 22(4) European Journal of International Law 1071–88. 209 Such as the Family Reunification Directive (Dir 2003/86, [2003] OJ L251/12); the Students and Researchers Directives (Dir 2004/114, [2004] OJ L375/12 and Dir 2005/71, [2005] OJ L289/15); and the Returns Directive (Dir 2008/115, [2008] OJ L348/98). 210 Case C-60/00 Carpenter v Secretary of State for the Home Department [2002] ECR I-6279; Case C-109/01 Secretary of State for the Home Department v Akrich [2003] ECR I-9607; Joined Cases C-482/01 and C-493/01, Georgios Orfanopoulos and Others and Raffaele Oliveri v Land Baden-Württemberg [2004] ECR I-5257; Case C-127/08 Blaise Baheten Metock and Others v Minister for Justice, Equality and Law Reform [2008] ECR I-6241.

Shazia Choudhry

217

Part I – Commentary on the Articles of the EU Charter

Iida v Stadt Ulm211 concerned a Japanese applicant resident in Germany and the basis of his marriage to a German citizen. The wife, with their child, moved to Austria but the parents had joint custody of the child, who regularly visited her father. The case concerned the refusal of the German authorities to provide him with a right of residence, based on being a family member of a Union citizen. The Advocate General found that, although an applicant could not derive a right of residence in the Member State of origin from the Free Movement Directive when the Union citizen had moved to another Member State, a parent who has custody rights and is a third-country national may, in order to maintain a personal relationship and direct parental contact on a regular basis, have a right of residence in the Member State of origin of his child who is a Union citizen under Articles 20 and 21 TFEU, if the child, exercising his or her right of free movement, has moved from there to another Member State. In order for such a right of residence to exist, the denial thereof must have a restrictive effect on the child’s right of free movement and must be regarded as constituting a disproportionate interference with Articles 7 and 24 of the Charter. 07.51B Rahman212 concerned the interpretation of Articles 3(2) and 10(2) of Directive 2004/38/EC and, in particular, what the obligation to ‘facilitate’, in accordance with national legislation for the entry and residence of ‘any other family members’ who are dependants of a Union citizen, entails. The Advocate General clarified that, unlike family members under Article 2(2), members of the extended family as defined in Article 3(2) do not have a right to entry and residence into a Member State. He considered that although the facilitation obligation is formulated in general terms, this did not mean that Member States have unfettered freedom to facilitate, as they wish, entry and residence for persons coming within the scope of that provision. In his opinion, the ‘margin of discretion accorded to the Member States’ on this matter is limited in two ways. First, in application of the criterion developed in previous cases,213 the national 07.52B measure at issue must not have the effect of unjustifiably impeding the exercise by the Union citizen of his right of free movement and residence within the territory of the Member States by, for example, forcing the Union citizen to leave the territory of the host Member State, or even to leave the territory of the European Union altogether. Second, by the obligation to respect the right to private and family life, enshrined in Article 7 of the Charter, the meaning and scope of which the CJEU has held should be the same as those laid down by Article 8 of the ECHR. As a result, ‘the combination of the right of residence attached to Union citizenship and protection of private and family life, as implemented by EU law, may therefore effectively establish a right of residence for members of the family of the Union citizen.’214 What is noteworthy, however, is that 07.50B

211 Case C-40/11 Yoshikazu Iida v Stadt Ulm AG (CJEU, Opinion of Advocate General, Judgment 8 November 2012). 212 Case C-83/11 Secretary of State for the Home Department v Muhammad Sazzadur Rahman, Fazly Rabby Islam, and Mohibullah Rahman (CJEU, Judgment 5 September 2012). 213 Case C-353/06 Grunkin and Paul [2008] I-7639 and Case C-208/09 Sayn-Wittgenstein [2010] ECR I-13693; Case C-148/02 Carlos Garcia Avello v Belgian State [2003] ECR I-11613; and set out in Case C-434/09 Shirley McCarthy v Secretary of State for the Home Department [2011] ECR I-3375. 214 Rahman (n 212) [74]. See also Case C-145/09 Land Baden-Württemberg v Panagiotis Tsakouridis [2010] ECR I-11979, in which the CJEU emphasised the importance of Art 7 of the Charter when considering the expulsion of a union citizen under the provisions of the Free Movement Directive.

218

Shazia Choudhry

Art 7 – Family Life Aspects

despite this reliance upon the provisions of the Charter in the interpretation of the Directive, the CJEU failed to make any mention of it in its subsequent ruling.215 The Charter has also been used to limit the ‘margin of manoeuvre’ that Member 07.53B States have with regard to the conditions that they may impose under Article 7 of the family reunification directive upon the sponsor concerning the stability and regularity of their resources. In Chakroun,216 the CJEU found that since authorisation of family reunification is the general rule, the faculty provided for in Article 7(1)(c) must be interpreted strictly. Furthermore, it found that the margin for manoeuvre which the Member States are recognised as having must not be used by them in a manner which would undermine the objective of the Directive, which is to promote family reunification, and the effectiveness thereof. The provisions of the Directive, particularly Article 7(1)(c), must be interpreted in the light of the fundamental rights and, more particularly, in the light of the right to respect for family life enshrined in both the ECHR and the Charter. In this case this mean that the Netherlands could not require the sponsor, in cases of family formation, to have resources equivalent to 120 per cent of the minimum wage. (b) Other Procedural Protection Interferences in the right to family life can occur in other contexts where EU law is 07.54B being implemented. Where such interferences occur, the question under Article 7 of the Charter, as with Article 8 of the ECHR, remains the same. Can such interference be justified with reference to one of the legitimate aims, and is the response of the Member State a proportionate response to the aim being pursued? J MCB v LE217 concerned an unmarried Irish couple. On their separation, the mother left the Member State of the last habitual residence of the family (Ireland), taking the common children, for whom she had sole parental responsibility, with her to UK. In the course of proceedings instituted by the father in Ireland to enforce the return of the children, the question referred to the CJEU was whether Article 2(11) of Council Regulation 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial and parental responsibility matters precluded a Member State from requiring by its law that the father of a child who is not married to the mother shall have obtained an order of a court of competent jurisdiction granting him custody in order to qualify as having ‘custody rights’ which render the removal of that child from its country of habitual residence wrongful for the purposes of Article 2(11) of that Regulation. The Court found that it did not and, moreover, that such a requirement was not con- 07.55B trary to Article 7 of the Charter. This finding was based upon specific case law on this point from the ECtHR where the child of an unmarried couple was taken to another state by its mother, who was the only person with parental responsibility for that child. In that regard, that Court had ruled, that national legislation granting, by operation of law, parental responsibility for such a child solely to the child’s mother is not contrary

215 Rahman (n 212). This judgment clarified that, unlike family members under Art 2(2), members of the extended family as defined in Art 3(2) do not have a right to entry and residence into a Member State. However, the Court specified the procedural requirements that Member States need to adhere to if they are to comply with the requirements of the Citizenship Directive. 216 Case C-578/08 Rhimou Chakroun v Minister van Buitenlandse Zaken [2010 ] ECR I-01839. 217 Case C-400/10 J McB v LE [2010] ECR I-8965.

Shazia Choudhry

219

Part I – Commentary on the Articles of the EU Charter

to Article 8 of the ECHR, interpreted in the light of the 1980 Hague Convention, provided that it permits the child’s father, not vested with parental responsibility, to ask the national court with jurisdiction to vary the award of that responsibility.218 The ‘interference’ with the unmarried father’s right to family life in requiring him to first obtain an order of custody from the Irish courts was therefore justifiable and proportionate to the aim being pursued.

V. Remedies 07.56B Given the diverse fields of law to which family life can be applied, the applicable remedies are likely to depend on the context of the case. In some cases, Article 7 may be invoked as a ground for judicial review of a legislative act such as the Family Reunification Directive, in which case the remedy could be the annulment of the legislative act, or an element thereof. Other cases are likely to concern the denial of a benefit to a specific individual, such as a right of residence, where the remedy may entail a reconsideration of the original decision, rather than an annulment of the underpinning legal act. What has become clear from cases concerning both Article 7 and Article 8 is that significant latitude is given to Member States with regard to the interpretation and implementation of the guarantees contained. Both the ECtHR and the CJEU have often left the substantive decision to national courts, choosing instead to provide guidance as to the principles that govern the applicability of the Articles. This has been particularly evident with regard to cases concerning migration and citizenship where the proportionality tests can be very fact dependent and where some latitude has been given to Member States within the legislative provisions themselves with regard to the implementation of what are often politically sensitive issues. That is not to say that national courts are given an unfettered discretion. The CJEU has also made it clear in cases such as Chakroun that the latitude or margin will be narrowed in cases where a strict applicability of the terms is indicated by the legislative provisions themselves.

E. Evaluation 07.57B The inclusion of the right to family life in the Charter is significant when it is recalled that family law has not generally been acknowledged as being within the specific competence of EU law. As a result, it indicates a clear commitment to acknowledging the ever-increasing and often indirect impact upon the family life of EU and non-EU citizens of EU law. The CJEU has stated on a number of occasions that the scope and interpretation of the right to family life under Article 7 of the Charter will be the same as that under Article 8 of the ECHR, which will no doubt lead to an increase in the pervasive influence of the Strasbourg jurisprudence in this area which, in contexts such as migration, has clarified the importance of ensuring that any measures that

218 Guichard v France ECHR 2003-X 714; see also, to that effect, Balbontin v United Kingdom App no 39067/97 (14 September 1999).

220

Shazia Choudhry

Art 7 – Family Life Aspects

interfere with family life must be proportionate and justifiable. In other contexts, such as maintaining a hierarchy of relationships capable of coming within the definition of family life, it may not. The real challenge therefore lies in the CJEU’s willingness to go further than Strasbourg in its interpretation of the guarantees contained in Article 7, as allowed for by Article 51 of the Charter. To date, there appears to be little evidence that this will occur, save for the opening up of a possibility of a same-sex couple being able to claim family life under the Family Reunification Directive, in Rahman. Moreover, there is some evidence of a more restrictive approach to the question of family life; the joined cases of O, S v Maahanmuuttovirasto219 and Maahanmuuttovirasto v L220 demonstrate a rather restrictive view of family life in reducing the status of step-parent to the question of responsibility and resources and ignoring the importance of the psychological bond with the child. Fundamental to this challenge, however, has to be the CJEU’s approach to the applicability of the Charter. The development of EU family law and policies are particularly dependent upon and sensitive to interpretations regarding the scope of EU law when it is recalled that this is an area that is outside of a specific EU competence. The opportunity presented by the inclusion of the right to family life in Article 7 of the Charter can only be fully realised therefore if the Charter is found to be applicable. The rather restrictive position taken by the CJEU with regard to the applicability of the Charter and, therefore, Article 7, to questions concerning citizenship and domestic violence is therefore concerning, and appears to contradict the often-stated commitment to guaranteeing the values contained within it.

219 Joined Cases C-356/11 and C-357/11 O, S v Maahanmuuttovirasto and Maahanmuuttovirasto v L (Judgment 6 December 2012). 220 Ibid.

Shazia Choudhry

221

Article 8* Article 8 Protection of Personal Data 1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to control by an independent authority.

Text of Explanatory Note on Article 8 This Article has been based on Article 286 of the EC Treaty and Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data1 as well as on Article 8 of the ECHR and on the Council of Europe Convention of 28 January 1981 for the protection of individuals with regard to automatic processing of personal data, which has been ratified by all the Member States.2 Article 286 of the EC Treaty is now replaced by Article 16 TFEU and Article 39 TEU. Reference is also made to Regulation (EC) No 45/2001 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data.3 The above-mentioned Directive and Regulation contain conditions and limitations for the exercise of the right to the protection of personal data.

Select Bibliography PW Carey, Data Protection—A Practical Guide to UK and EU Law (Oxford, Oxford University Press, 2009). S Gurthwirth (ed), Reinventing Data Protection? (Berlin, Springer, 2009). H Hijmans and A Scirocco, ‘Shortcomings in EU data protection in the third and the second pillars. Can the Lisbon Treaty be expected to help?’ [2009] Common Market Law Review 1485–1525. HR Kranenborg and LFM Verhey, Wet bescherming persoonsgegevens in Europees perspectief (Deventer, Kluwer, 2011). C Kuner, European Data Protection Law—Corporate Compliance and Regulation (Oxford, Oxford University Press, 2007). P Oliver, ‘The protection of privacy in the economic sphere before the European Court of Justice’ [2009] Common Market Law Review 1443–83. B Siemen, Datenschutz als europäische Grundrecht (Berlin, Duncker & Humblot, 2006).

* The author wishes to thank Chris Docksey and Hielke Hijmans for their valuable comments on a previous version of this chapter. The views expressed in this contribution reflect the author’s personal opinion. 1 [1995] OJ L281/31. 2 See Convention of 28 January 1981 of the Council of Europe for the protection of individuals with regard to automatic processing of personal data, ETS 108. 3 [2001] OJ L8/1.

Part I – Commentary on the Articles of the EU Charter

A. Field of Application of Article 8 08.01 It follows from Article 51 of the Charter that the limits to the field of application of the right to data protection are defined by the Treaties. When looking at the Treaties, as well as the areas covered in secondary legislation on data protection, it can safely be concluded that Article 8 has an exceptionally broad field of application. 08.02 Before turning to the EU competences as laid down in the current treaties and the scope of secondary legislation based thereon, the situation before the entry into force of the Lisbon Treaty will be briefly sketched. Knowledge of this part of history enables the reader to understand the important steps taken in this area in the past years as well as to understand the nature and shortcoming of the current body of secondary legislation.

I. EU Competence on Data Protection before the Entry into Force of the Lisbon Treaty 08.03 Before the entry into force of the Lisbon Treaty, there was no explicit legal basis for the adoption of data protection rules in the former first pillar area. Only Article 286 EC Treaty contained a reference to data protection, declaring all existing Community Acts applicable to the Community institutions and bodies. Such existing Acts were the general data protection Directive 95/46/EC, as well as the complementary Directive 2002/58/EC on privacy and electronic communications.4 These Acts were based on the general harmonisation clause for the internal market, Article 95 EC Treaty (now Art 114 TFEU). This legal basis is reflected in the objective of both instruments, namely to protect the right to privacy with respect to the processing of personal data as well as the free movement of personal data.5 A third data protection Directive adopted on the basis of Article 95 EC Treaty was Directive 2006/24/EC on the retention of communications data.6 08.04 Despite the declaration in Article 286 EC Treaty, an additional regulation was adopted in 2001 containing data protection rules for the Community institutions and bodies, Regulation 45/2001. This Regulation transposed the provisions of Directive 95/46/EC to the EU level and established, as required by the second paragraph of Article 286 EC Treaty, the European Data Protection Supervisor (EDPS) as an independent supervisory authority responsible for monitoring the application of the rules by the Community institutions and bodies. EU bodies established on the basis of the former second and third pillar either were not subject to EU rules on data protection, or had their own specific data protection rules (such as Europol and Eurojust). 08.05 No legal basis for the adoption of data protection rules was foreseen in the former second pillar, the common foreign and security policy. 08.06 For police and judicial cooperation in criminal matters (the former third pillar area), a legal basis was provided in the former EU Treaty to take common action including the processing and exchange of personal data subject to ‘appropriate provisions on the

4 5 6

224

[2002] OJ L201/37 as amended by Directive 2009/136/EC [2009] OJ L337/11. See Recital 3 and Art 1 of Directive 95/46/EC. [2006] OJ L105/54.

Herke Kranenborg

Art 8 – Protection of Personal Data

protection of personal data’ (see Art 30(1)(b) of the former EU Treaty). This led to the adoption of data protection rules for specific data processing operations, such as the exchange of data under the Prüm Decision and the Swedish Initiative, the creation of large-scale databases (e.g. the Visa Information System (VIS), the Schengen Information System (SIS) and Eurodac) or the rules on data protection for Europol and Eurojust.7 A more overarching instrument on data protection for the area of police and judicial 08.07 cooperation in criminal matters was adopted in 2008, Framework Decision 2008/977/ JHA.8 Although indeed overarching, the Framework Decision had some substantive carve-outs. It excluded from its scope data processing operations in the Member States with no cross-border element (domestic data processing). Also the specific acts adopted under the former third pillar, as just mentioned, fell outside the scope of the Framework Decision.9 Domestic processing of personal data for law enforcement activities remained subject to the national law of the relevant Member State, which still had to comply with the Council of Europe Convention on data protection (Convention 108) and the requirements under Article 8 ECHR.10

II. EU Competence on Data Protection after the Entry into Force of the Lisbon Treaty The entry into force of the Lisbon Treaty led to considerable changes in the basic legal architecture of the right to data protection in the EU. The Charter of Fundamental rights became legally binding and the right to data protection was also explicitly recognised in the Treaties. The right can be found in Article 16 TFEU and is also referred to in Article 39 TEU. Article 16 TFEU grants everyone the right to the protection of personal data concerning them and constitutes the new, self-standing legal basis for EU rules relating to the protection of individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data. Article 16 TFEU in fact covers all areas of EU law, including the area of police and judicial cooperation in criminal matters.11 Article 39 TEU states that in accordance with Article 16 TFEU, data protection rules shall also be adopted for the common foreign and security policy laid down in Chapter 2

7 The Prüm Decision refers to Council Decision 2008/615/JHA [2008] OJ L210/1, the Swedish initiative refers to Framework Decision 2006/960/JHA [2006] OJ L386/89. The VIS is based on Regulation 810/2009 [2009] OJ L243/1. The second generation SIS (SIS II) is based on Regulation 1987/2006 [2006] OJ L381/4 and Council Decision 2007/533/JHA [2007] OJ L205/63. Council Regulation 2725/2000 [2000] OJ L316/1 established Eurodac. For Europol, see Council Decision 2009/371/JHA [2009] OJ L121/37, and for Eurojust, Council Decision 2009/426/JHA [2008] OJ L138/14. 8 [2008] OJ L350/60. 9 At the time of adoption of Framework Decision 2008/977/JHA the rules for Europol were laid down in the Europol Convention [1995] OJ C316/1. 10 Above n 2. See further sections C.i and C.iii below. 11 Although Declaration 21 to the Lisbon Treaty states that specific rules on the protection of personal data and the free movement of such data in the fields of judicial cooperation in criminal matters and police cooperation based on Art 16 TFEU may prove necessary because of the specific nature of these fields. See [2008] OJ C115/345.

Herke Kranenborg

225

08.08

08.09

08.10

Part I – Commentary on the Articles of the EU Charter

08.11

08.12

08.13

08.14

TEU. Article 39 TEU only derogates from Article 16 TFEU as regards the legislative procedure. Instead of the ordinary legislative procedure, which is foreseen in Article 16 TFEU, a decision for the common foreign and security policy shall be adopted by the Council only. Both Article 16 TFEU and 39 TEU state that compliance with the data protection rules shall be subject to the control of independent authorities. This is the only substantial element of both Articles. Unlike Article 8 of the Charter, no further substance is given to the right to data protection in the two provisions. Article 16 TFEU requires the EU legislator to at least fill the gaps in what is actually a patchwork of secondary data protection rules, especially in the area of police and judicial cooperation in criminal matters. The direct influence of the entry into force of the Lisbon Treaty on the existing body of secondary EU law on data protection is relatively limited.12 Only the scope of Regulation 45/2001 has in practice been expanded to also cover EU agencies and bodies established on the basis of the former EU Treaty, with the exceptions of such bodies, like Europol and Eurojust, which have a specific data protection regime in place.13 With the introduction of Article 16 TFEU covering all EU areas, the former pillar structure no longer forms an obstacle to the adoption of a single EU instrument on data protection. Such an approach would make sense since, although some specific provisions for certain policy areas, such a police and judicial cooperation, may still be needed, the basic principles of data protection are the same in all policy areas. It would offer an occasion to simplify the current patchwork of EU data protection legislation. However, such an approach is perhaps a bit too ambitious and politically unrealistic, as practice has already shown. In November 2010, the European Commission announced the modernisation of the EU data protection rules and expressed the ambition to ensure a comprehensive approach.14 On 25 January 2012, the Commission proposed two selfstanding instruments: a Regulation to replace the general data protection Directive 95/46/EC and a Directive replacing Framework Decision 2008/977/JHA extending its scope to domestic processing as well.15 All specific rules already in place (based either on the former first or third pillar) were left untouched for the time being.16 The choice for two self-standing instruments and the choice for actually maintaining the current patchwork of specific rules have been criticised by the data protection community for failing to achieve more comprehensiveness.17 However, in light of achieving more comprehensiveness, the choice of a Regulation instead of a Directive has been welcomed as well as the extension of the scope of the proposed Directive to also cover domestic

12 However, see the comments on the binding nature of the Charter of Fundamental Rights in section D.i below. 13 Above n 7. 14 See Communication of 4 November 2010, COM (2010) 609. 15 See COM (2012) 11 and COM (2012) 10. See for more information on the reform of the EU framework on data protection http://ec.europa.eu/justice/data-protection/review/index_en.htm. 16 The two proposals were accompanied by a Communication (COM (2012) 9). In a footnote of this Communication, alignment of specific and sectoral instruments is announced for at a later stage, see p 4, fn 14. No data protection rules are announced for the common foreign and security policy on the basis of Art 39 TEU. 17 See EDPS Opinion of 7 March 2012, to be found at www.edps.europa.eu >> ‘Consultation’ >> ‘Opinions’ and Opinion 1/2012 of the Article 29 Working Party of 23 March 2012, to be found at http://ec.europa.eu/ justice/data-protection/article-29/index_en.htm >> ‘Documentation’.

226

Herke Kranenborg

Art 8 – Protection of Personal Data

processing.18 Throughout the current chapter, the substantive changes proposed in the two instruments will be discussed where relevant.

III. The Scope of Application of Secondary Legislation In terms of competence, the power to adopt rules on data protection nowadays covers all areas of EU law. When looking at the current body of secondary legislation, a large part of this competence has already been materialised. With the Lisbon Treaty in place this will only expand further, as the most prominent gaps (domestic processing for law enforcement purposes and data protection for the common foreign and security policy) should normally also be covered by secondary legislation in the years to come. The scope of application of the secondary legislation will be further discussed in section D.II. However, one element should be highlighted in the current section, as it further underpins the statement that the scope of application of the right to data protection is exceptionally broad. From an internal market perspective, the Court of Justice has interpreted the scope of application of the data protection rules as laid down in Directive 95/46/EC in a very broad manner. In the first case before the Court of Justice on Directive 95/46/EC, in 2003, the Court was asked to clarify the applicability of the Directive.19 It concerned a case in which Austrian public undertakings, Österreichischer Rundfunk and others, refused to communicate certain personal data of their employees to the Austrian Court of Auditors for control. It was argued that the situation did not fall within the scope of Directive 95/46/EC, an internal market instrument, since the objective of the control by the Austrian Court of Auditors served a public interest and because the control did not obstruct the free movement of workers between Member States. In its ruling the Court considered that recourse to the internal market legal basis did not presuppose the existence of an actual link with free movement between Member States in every situation referred to by the measure founded on that basis.20 According to the Court, the applicability of Directive 95/46/EC could not depend on whether specific situations have a sufficient link with the exercise of the free movement of, in this case, workers. According to the Court, a contrary interpretation could make the limits of the field of application of the Directive particularly unsure and uncertain.21 With this ruling, the Court ‘saved’ the Directive from becoming a piece of legislation which would be very complicated to apply in practice. It would indeed have become almost impossible to draw a clear line between what would and what would not have been covered by the Directive. However, the ruling is quite far-reaching. AG Kokott, when reflecting on the scope of Directive 95/46/EC in the Satamedia case, concluded, with reference to the Court ruling in Österreichischer Rundfunk, that the broad scope of Directive 95/46/EC ‘reaches almost beyond the establishment of the internal market’.22 She underlined that Directive 95/46/EC covers purely domestic operations and that

18 19 20 21 22

Ibid. Case C-465/00 Österreichischer Rundfunk [2003] ECR I-4989. Ibid [41]. Ibid [42]. Case C-73/07 Satamedia [2008] ECR I-9831 [53] (conclusion of AG Kokott).

Herke Kranenborg

227

08.15

08.16

08.17

08.18

08.19

Part I – Commentary on the Articles of the EU Charter

where the Directive is to be applied, the protection of cross-border activities is the exception.23 08.20 The proposed successor of Directive 95/46/EC, the new Regulation referred to above, would no longer be a classical internal market instrument, being based on the selfstanding legal basis contained in Article 16 TFEU. A reference to ‘the free movement of data’ can still be found in Article 16 TFEU, which might imply the need for a crossborder element. However, there is no doubt that the new Regulation would also have the same broad scope of application.

B. Interrelationship of Article 8 with Other Provisions of the Charter I. Article 7 (Right to Respect for Private and Family Life) (a) The Difference between Privacy and Data Protection 08.21 The roots of the right to data protection lie in the right to privacy. Therefore, Article 8 is closely linked to Article 7 of the Charter, which enshrines the right to respect for private and family life, home and communications. For an international human rights instrument, the Charter is unique in recognising the right to data protection as a right separate from the right to privacy. For instance, the right to data protection as such cannot be found in the ECHR. Like Article 7 of the Charter, Article 8 ECHR recognises the right to respect for private 08.22 and family life, his home and his correspondence. In the 1970s the question emerged within the Council of Europe as to whether the right to privacy was capable of addressing the challenges posed by the technological developments of that time, in particular the introduction of the computer. This finally led to the adoption in 1981 of a separate Convention on data protection, the aforementioned Convention 108, which entered into force in 1985.24 Despite the existence of Convention 108, Article 8 ECHR still played an important role 08.23 in the area of data protection. In its case law under Article 8 ECHR, the ECtHR departed from the classical interpretation of privacy protection (‘the right to be left alone’) and developed a much broader notion of privacy. In particular when personal data was used in the law enforcement area, the Court insisted on the presence of safeguards against abuse. From the substantial body of case law, a non-exhaustive list of requirements can be derived which reflects several of the requirements contained in Convention 108.25 In 1997, the ECtHR made an explicit link between Article 8 ECHR and Convention 108 in its ruling in Z v Finland.26

23 24 25 26

228

Ibid [52]. Above n 2. See further section C.i below. Z v Finland App no 22009/93 (ECtHR, 25 February 1997), RJD 1997-I [95].

Herke Kranenborg

Art 8 – Protection of Personal Data

There is an ongoing debate in legal literature on the actual difference between the right to privacy and the right to data protection. A conceptual link between both rights was made through the introduction of the notion of informational self-determination, which implies control over one’s own personal information. Some assume data protection ensures informational self-determination, and subsequently argue that privacy is in fact a right to informational self-determination and thus equals data protection. Back in 1970, Westin stated that ‘[p]rivacy is the claim of individuals … to determine for themselves when, how, and to what extent information about them is communicated to others’.27 However, the notion of informational self-determination, which has German roots (informationelle selbstbestimmung), is not how data protection is generally considered in the Council of Europe and the EU.28 Informational self-determination implies that consent to data processing is the key notion for lawful data processing. However, in Convention 108, the notion of consent does not play a prominent role.29 In the EU secondary legislation on data protection, consent is more important, but only one of the grounds for legitimate processing.30 The EU data protection rules look beyond consent only and create a system of checks and balances which ensures lawful processing also without asking the consent of the person involved. It is precisely this system of checks and balances which was envisaged with the introduction of a separate right to data protection in the Charter. The proposal to formulate it as a right to informational self-determination was rejected.31 In that respect, the explanations clearly state that Article 8 is, amongst others, based on Convention 108 and Directive 95/46/EC. Contrary to most other rights in the Charter, Article 8 contains several specifications which reflect several key elements of the system of checks and balances. Amongst these specifications is the condition that personal data must be processed on the basis of the consent of the person concerned, or some other legitimate basis laid down by law.32 The right to privacy and the right to data protection are closely linked, but should not be seen as one and the same right. The inclusion of a separate right to data protection in the Charter confirms and reflects the elaborated and conclusive system of checks and balances which ensures lawful processing of personal data.

08.24

08.25

08.26

08.27

(b) Privacy and Data Protection in the Case Law of the Court of Justice In several cases, the Court of Justice expressed itself on the right to privacy in relation 08.28 to the right to data protection, or the secondary rules on data protection. Read together, this case law does not reveal a clear approach on the matter.

27

AF Westin, Privacy and Freedom (New York, Atheneum, 1970). See on this notion M Albers, Informationelle Selbstbestimmung (Baden-Baden, Nomos, 2005). 29 The notion of consent only appears in Art 15(3) of the Convention in relation to the provision of assistance to data subjects resident abroad. 30 See eg Art 7 Directive 95/46/EC; see also section D.iii(b) below. 31 See speech of P Hustinx (EDPS) of 10 May 2012, ‘The EU Data Protection reform: New fundamental rights guarantees’, to be found at www.edps.europa.eu >> ‘Publications’ >> ‘Speeches’, p 4. 32 See on the relationship between this particular condition in Art 8 and Art 52(1) of the Charter also section D.iv(a) and (b) below. 28

Herke Kranenborg

229

Part I – Commentary on the Articles of the EU Charter

08.29

In the aforementioned ruling in Österreichischer Rundfunk, the Court first assessed extensively, ‘for the purpose of applying Directive 95/46/EC’, whether the issue at stake provided for an interference with private life, and if so, whether that interference was justified from the point of view of Article 8 ECHR.33 The Court considered that if there were a breach of Article 8 ECHR, the requirements of Directive 95/46/EC would also not be satisfied.34 However, the Court did not clarify what should be done if the conclusion was reached that Article 8 ECHR would not be breached. Should an additional assessment still follow under the specific data protection rules? It could have answered this question in the Bavarian Lager ruling of 2010, in which the 08.30 interpretation of Article 4(1)(b) of Regulation 1049/2001 on public access to documents was at stake.35 According to this provision, access to a document should be refused if it would undermine the protection of ‘the privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data’ (in this case Regulation 45/2001). It was argued that this provision required a first assessment under the right to privacy before turning to the specific data protection rules. However, in its assessment the Court moved immediately to Regulation 45/2001 and decided the case on the basis of those rules. No substantive analysis under Article 8 ECHR or Article 7 of the Charter was made. Actually, after Österreichischer Rundfunk, the Court of Justice has never again made 08.31 such a substantive preliminary assessment under Article 8 ECHR or Article 7 of the Charter. For instance in the Huber ruling of 2008, no reference was made to Article 8 ECHR at all, while, with a view to the facts (it concerned a German register of foreign nationals), the case would have lend itself for applying the logic of the Österreichischer Rundfunk approach.36 Only the Civil Service Tribunal in V v Parliament made an extensive analysis under Article 8 ECHR. However, this assessment was made almost separately from the assessment under the relevant data protection rules (Regulation 45/2001).37 The Civil Service Tribunal drew two self-standing conclusions as to the breach of Article 8 ECHR and the breach of the provisions of Regulation 45/2001. The right to privacy and the right to data protection were also considered in the 08.32 Schecke ruling of 2010. This concerned the validity of EU law requiring the publication of names and some further details about beneficiaries of agricultural funds.38 The Court assessed the validity of the EU law in light of the right to privacy and the right to data protection, without further reference, at least in its assessment, to secondary EU legislation on data protection. Interestingly enough, when assessing the situation, the Court repeatedly referred to Articles 7 and 8 of the Charter in the same breath, seeming to disregard the different nature of both rights. In fact, the considerations of the Court come close to an understanding of the right to data protection as a right to informational self-determination. This is particularly apparent when the Court considered the situation under the general justification clause for limitations of the rights

33

See Österreichischer Rundfunk (n 19) [72]. Ibid [91]. 35 Case C-28/08P Bavarian Lager v Commission [2010] ECR I-6055. Regulation 1049/2001 is published in [2001] OJ L145/43. See on this issue also section B.V below. 36 Case C-524/06 Huber [2008] ECR I-9705. 37 Case F-46/09 V v Parliament (CST, 5 July 2011). 38 Joined Cases C-92/09 and C-93/09 Volker and Markus Schecke [2010] ECR I-11063. 34

230

Herke Kranenborg

Art 8 – Protection of Personal Data

of the Charter, Article 52(1). The discussion will therefore be continued in section D.IV below.

II. Article 11 (Freedom of Expression and Information) The right to freedom of expression (Art 11 of the Charter) is about imparting and receiving information. The right to data protection has a dual relationship with this right. On the one hand, data protection rules aim to reach a harmonised level of data protection ensuring the free flow of information, including in the context of the freedom of expression. On the other hand, data protection rules might require a restriction of the freedom of expression. In that respect, there is an obvious tension between the two rights. A balance between the underlying interests of both rights should be found. Too much room to process data under the heading of the freedom of expression might render data protection meaningless. And to the opposite, as AG Kokott also stated in her opinion in the Satamedia case, a strict application of the data protection rules could substantially limit freedom of expression.39 The potential conflict between both rights has been explicitly recognised in the general data protection Directive 95/46/EC, by creating an obligation under Article 9 for Member States to provide for exemptions or derogations when necessary to reconcile the right to privacy with the rules governing freedom of expression. The scope of this provision was clarified by the Court of Justice in the Satamedia ruling of 2008, which will be discussed in greater details in section D.IV(d).40 In the Lindqvist ruling of 2003, the Court of Justice was asked whether, despite the existence of Article 9, the provisions of Directive 95/46/EC as such brought about a restriction which conflicted with the general principle of freedom of expression.41 Lindqvist concerned the publication by a private person of certain personal data of others on an Internet website. The Court did not consider that Directive 95/46/EC as such would restrict the freedom of expression. It considered that it was for the national authorities and courts responsible for applying the implementing national law in such a way as to ensure a fair balance between the rights and interests in question, including fundamental rights.42 The interaction between privacy and the freedom of expression has led to a substantive body of case law under the ECHR. Although often not caught in actual data protection wording, this case law is guiding for the Member States when trying to achieve the right balance between the various interests under Article 9 of Directive 95/46/EC. When reconciling the two rights, the ECtHR has paid particular attention to the public status of the persons involved. According to the ECtHR, a person who has entered the public arena, such as a politician, has to accept a greater degree of tolerance regarding the publication of information about them.43 However, public figures, especially if they did not deliberately chose to be in the public arena, are not unprotected. In Von Hannover v Germany, which concerned the publication of pictures of Princess Caroline of Monaco,

39 40 41 42 43

See Opinion of AG Kokott in Case C-73/07 (n 22) [43]. Case C-73/07 Satamedia [2008] ECR I-9831. Case C-101/01 Lindqvist [2003] ECR I-12971 [72]. Ibid [90]. See eg Lingens v Austria App no 9815/82 (ECtHR, 8 July 1986) A-103 [42].

Herke Kranenborg

231

08.33

08.34

08.35

08.36

Part I – Commentary on the Articles of the EU Charter

the ECtHR considered that anyone, even if they are known to the general public, must be able to enjoy a ‘legitimate expectation’ of protection of their private life.44 08.37 In balancing the two fundamental rights at stake, the ECtHR paid specific attention to whether the publication of personal information contributed to a debate of general interest.45 What constitutes a subject of general interest depends on the circumstances of the case. In this respect the ECtHR has recognised the existence of such an interest not only where the publication concerned political issues or crimes, but also where it concerned sporting issues or performing artists.46 However, the rumoured marital difficulties of a president, or the financial problems of a famous singer, were not deemed to be matters of general interest.47

III. Article 17 (Right to Property) and Article 47 (Right to an Effective Remedy and to a Fair Trial) 08.38 Although it is the only other fundamental right explicitly referred to in the general data protection Directive 95/46/EC, the right to freedom of expression is not the only right which might come into conflict with the right to data protection. On the contrary, as AG Kokott concluded in her opinion in the Satamedia ruling, the situation of a conflict between different fundamental rights is a ‘characteristic’ of the interpretation of Directive 95/46/EC.48 08.39 Potential conflicts with the right to property (Art 17) and the right to an effective remedy and to a fair trial (Art 47) were discussed in Promusicae and Scarlet Extended.49 Both cases dealt with the issue of file sharing which supposedly infringed copyrights. The question was how the rights of the intellectual property holders should be weighed against the right to personal data protection of the persons sharing the information, with the Internet Service Provider (ISP) standing in the middle of both. 08.40 In Promusicae, the Court of Justice concluded that EU law does not require the Member States to lay down an obligation on ISPs to communicate personal data in order to ensure effective protection of copyright in the context of civil proceedings.50 The Court underlined that when transposing the relevant Directives and interpreting the national law implementing the Directives, Member States should take care to rely on an interpretation which allows a fair balance to be struck between the various fundamental rights involved.51 08.41 The Promusicae ruling implies that an obligation on ISPs to communicate personal data of its costumers is also not forbidden by EU law. In Bonnier Audio, the Court indeed

44

Von Hannover v Germany App no 59320/00 (ECtHR, 24 June 2004) [69]. Ibid [60]–[65]. 46 See Von Hannover v Germany (No 2) App no 40660/08 (ECtHR, 7 February 2012) [109]. 47 Ibid. 48 See Opinion of AG Kokott in Case C-73/07 (n 22) [44]. 49 Case C-275/06 Promusicae [2008] ECR I-00271 and Case C-70/10 Scarlet Extended (CJEU, 24 November 2011). 50 The EU law referred to is Directive 2000/31/EC on electronic Commerce [2000] OJ L178/1, Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OJ L167/10, Directive 2004/48/EC on the enforcement of intellectual property rights [2004] OJ L157/45 read in conjunction with the ePrivacy Directive 2002/58/EC (n 4). 51 Promusicae (n 49) [70]. 45

232

Herke Kranenborg

Art 8 – Protection of Personal Data

considered that the obligation to communicate personal data to private persons in civil proceedings, under the conditions set out in the Swedish law, was likely, in principle, to ensure a fair balance between the protection of IP rights and the protection of personal data.52 However, it follows from Scarlet Extended that ISPs cannot be obliged to introduce a system for filtering all electronic communications passing through its network, as a preventive measure aimed at blocking the transfer of files which are shared in breach of copyright.53 The Court considered that such a monitoring system would infringe, inter alia, the right to data protection of the costumers.54 These cases, but also the Satamedia ruling referred to in section B.II, show that the 08.42 Court takes a very cautious approach when it is confronted with a national situation in which two fundamental rights collide. Where possible, it leaves it to the national court to strike the balance, without giving much substantive guidance. In Promusicae and Satamedia the Court even gave a very broad or flexible interpretation of the law in order to prevent any substantive decision. In Promusicae, it gave an extensive reading of the provision in the ePrivacy Directive which allows for the restriction of the scope of certain rights and obligations provided for in the Directive.55 And in Satamedia, the Court gave a very broad interpretation of Article 9 of Directive 95/46/EC on the reconciliation of data protection requirements with the freedom of expression.56

IV. Article 21 (Prohibition of Discrimination) The right to data protection has been linked to the prohibition of discrimination, which 08.43 in the Charter is enshrined in Article 21. The automated processing of personal data easily allows the categorisation of individuals, which might lead to stigmatisation and discriminatory action. In the Explanatory Report to Convention 108, non-discrimination is mentioned as one of the fundamental rights the enjoyment of which might be adversely affected by an unfettered exercise of the freedom to process information.57 Data protection was dealt with by the Court of Justice in connection with non- 08.44 discrimination in the Huber ruling of 2008.58 This concerned a German central register of foreign nationals in which all foreign nationals were registered. No distinction was made between nationals from other EU Member States and nationals from outside the EU. No comparable register existed for German citizens. The Court agreed with Mr Huber, who was an Austrian citizen, that, as regards foreign nationals being citizens from other EU Member States, this constituted an unjustified discrimination between EU citizens. This decision was based on Article 12 of the EC Treaty (now Art 18 TFEU). No reference was made to the Charter.

52

Case C-461/10 Bonnier Audio AB (CJEU, 19 April 2012) [57]–[60]. Scarlet Extended (n 49) [54]. 54 Ibid [50]. See also Case C-360/10 SABAM (CJEU, 16 February 2012). See in relation to this subject also P Van Eecke, ‘Online service providers and liability: A plea for a balanced approach’ [2011] Common Market Law Review 1455–1502. 55 Art 15 of Directive 2002/58/EC (n 4); Promusicae (n 49) [53]. 56 See on Satamedia also section D.iv(d) below. 57 See Pt 25 of the Explanatory Memorandum, ETS 108. 58 See Huber (n 36) [75]–[77]. 53

Herke Kranenborg

233

Part I – Commentary on the Articles of the EU Charter

V. Article 42 (Right of Access to Documents) 08.45 Another example of a situation of two conflicting rights enshrined in the Charter, but than at the level of the EU, can be found in the Bavarian Lager ruling.59 The Court had to rule on the tension between the right to data protection and the right of access to documents held by EU institutions, bodies, offices and agencies, as enshrined in Article 42 of the Charter.60 08.46 The case concerned a request for public access (on the basis of Regulation 1049/2001) to the minutes of a Commission meeting which contained the names of EU officials, national civil servants and business representatives. The Commission refused to disclose the names of the persons who, after consultation, were opposed to the disclosure. These persons were in fact the business representatives. The Commission relied on Article 4(1)(b) of Regulation 1049/2001, which determines that access to a document should be refused if it would undermine the protection of ‘the privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data’ (in this case Regulation 45/2001). 08.47 Bavarian Lager, supported by the EDPS, argued that this provision required a first assessment under the right to privacy before turning to the specific data protection rules. Such an assessment would lead to the conclusion that the right of privacy of the individuals concerned would not be undermined by the disclosure. The Commission, on the other hand, argued that the provision should be seen as a direct referral to Regulation 45/2001. When applying Regulation 45/2001, and its Article 8 in particular, the person requesting access to the documents should establish the necessity of the public disclosure, which Bavarian Lager had not done since, for a request for public access to documents, the applicant does not have to state reasons.61 08.48 The Court followed the reasoning of the Commission: since the requester had not provided any express and legitimate justification or any convincing argument in order to demonstrate the necessity for those personal data to be transferred to him, the Commission had not been able to weigh up the various interests of the parties concerned.62 08.49 The Bavarian Lager ruling left the question unanswered when the threshold of establishing the necessity of the public disclosure of certain personal data would be met.63 The General Court dealt with the matter in several rulings. In Dennekamp, which concerned a request by a journalist for the names of the Members of the European Parliament who were joining an additional pension scheme, the Court established a high threshold and decided that the necessity was not established.64

59

Bavarian Lager (n 35). See on the relation between EU rules on public access and data protection, HR Kranenborg, ‘Access to documents and data protection in the European Union—On the public nature of personal data’ [2008] Common Market Law Review 1079–1114. 61 See Art 6(1) of Regulation 1049/2001. 62 Bavarian Lager (n 35) [78]. 63 See on this issue the EDPS Additional Background Paper of 24 March 2011 on public access to documents containing personal data after the Bavarian Lager ruling, to be found at www.edps.europa.eu >> ‘Consultation’ >> ‘Papers’. 64 Case T-82/11 Dennekamp v European Parliament (GC, 23 November 2011). See also Case T-190/10 Egan and Hacket v European Parliament (GC, 28 March 2012). 60

234

Herke Kranenborg

Art 8 – Protection of Personal Data

C. Sources of Article 8 I. ECHR Article 52(3) of the Charter states that the meaning and scope of a Charter right corresponding to a right in the ECHR shall be the same as those laid down by the ECHR. In that respect, it is clear that Article 7 of the Charter corresponds to Article 8 ECHR. With regard to Article 8 of the Charter, the relation with Article 8 ECHR is more complicated. The explanations state that Article 8 is based, amongst others, on Article 8 ECHR. However, as the description in section B.I has shown, the inclusion of a right to data protection in the Charter separate from the right to privacy confirms and reflects the elaborated and conclusive system of checks and balances which ensures lawful processing. In that respect, as the explanations state, Article 8 is also based on Convention 108 and Directive 95/46/EC. The case law of the ECtHR under Article 8 ECHR is obviously relevant when applying the right to data protection, but not necessarily conclusive when assessing whether a situation is compliant with that Charter right. Article 52 will be further discussed in section D.IV. As mentioned, a non-exhaustive list of requirements under Article 8 ECHR can be derived from the Court’s case law which corresponds to several of the specific requirements of the right to data protection, as elaborated in Convention 108. Since the relevant case law of the ECtHR is quite voluminous, below only some main elements of the case law will be highlighted. In the Niemietz ruling of 1992, the ECtHR gave a broad interpretation to the notion of private life.65 It considered that the notion was not restricted to an ‘inner circle’ in which an individual may live his own personal life.66 The Court saw no reason to exclude activities of a professional or business nature from the notion of private life.67 With this ruling, the Court to a large extent aligned the scope of privacy with the scope of the data protection rules, which do not distinguish between private or professional data. Both areas of law were brought even closer when the Court in Amann considered that ‘the storing by a public authority of information relating to an individual’s private life amounts to an interference within the meaning of Article 8 [ECHR]’.68 Article 8(2) ECHR requires that an interference with the right to respect for private life is (1) in accordance with the law, (2) serves a legitimate purpose and (3) is necessary in a democratic society. As to the first condition, it is established case law that the law must be adequately accessible and foreseeable, which means that it is formulated with sufficient precision to enable the individual to regulate his conduct.69 These requirements have been particularly important in cases in which the Court assessed the justification of secret measures of

65

Niemietz v Germany App no 13710/88 (ECtHR, 16 December 1992) A-251-B. Ibid [29]. 67 Ibid. 68 Amann v Switzerland App no 27798/95 (ECtHR, 16 February 2000), RJD 2000-I [65]. 69 See eg S and Marper v United Kingdom App nos 30562/04 and 30566/04 (ECtHR, 4 December 2008), RJD 2008 [95]. 66

Herke Kranenborg

235

08.50

08.51

08.52

08.53

08.54

Part I – Commentary on the Articles of the EU Charter

surveillance.70 The Court has considered that foreseeability in this context ‘cannot mean that an individual should be able to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly’.71 However, according to the Court in Weber and Saravia, the ‘domestic law should be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measure’.72 08.55 As to the second and third condition, it is established case law that ‘an interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduces by the national authorities to justify it are “relevant and sufficient”’.73 Domestic law must afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees of Article 8 ECHR.74 In S and Marper, the Court underlined that the need for such safeguards is all the greater where the protection of personal data undergoing automatic processing is concerned, not least when such data are used for police purposes.75 According to the Court ‘the domestic law should notably ensure that such data are relevant and not excessive in relation to the purposes for which they are stored; and preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored’.76 08.56 The case law of the Court shows that many elements can play a role when the Court assesses whether the collection, storage and/or use of information relating to the private life of individuals complies with the above requirements. The Court has taken into account the nature of the data,77 the privacy expectation of the person concerned,78 the possible control mechanisms given to the person concerned (the right of access to the data),79 the presence of independent oversight mechanisms,80 whether security measures have been put in place,81 and more. No exhaustive list can be given, as the Court’s analysis is based on a case-by-case approach.

II. UN Treaties 08.57 The right to privacy can be found in Article 12 of the Universal Declaration of Human Rights (1948): ‘[n]o one shall be subjected to arbitrary interference with his privacy,

70 See eg Weber and Saravia v Germany (admissibility) App no 54934/00 (ECtHR, 29 June 2006) [93]–[95] and Liberty v United Kingdom App no 58243/00 (ECtHR, 1 July 2008) [62]. 71 Weber and Saravia v Germany, ibid [93]. 72 Ibid. 73 See eg S and Marper v United Kingdom (n 69) [101. 74 Ibid para 103. 75 Ibid. 76 Ibid. 77 See eg Z v Finland (n 26). 78 See eg Krone Verlag GmbH v Austria App no 34315/96 (ECtHR, 26 February 2002). See also Von Hannover v Germany (n 44). 79 See eg Leander v Sweden App no 9248/81 (ECtHR, 26 March 1987) A-116 and Gaskin v United Kingdom App no 10454/83 (ECtHR, 7 July 1989) A-160 [49]. 80 See eg Klass v Germany App no 5029/71 (ECtHR, 6 September 1978) A-28 [50]. 81 See eg I v Finland App no 20511/03 (ECtHR, 17 July 2008) [38]–[40].

236

Herke Kranenborg

Art 8 – Protection of Personal Data

family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks’. The right is also enshrined in the International Covenant on Civil and Political 08.58 Rights 1966 (ICCPR), which has been ratified by all EU Member States. Article 17 states that ‘[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks’. In General Comment No 16, the Human Right Committee (HRC) elaborated on the 08.59 right enshrined in Article 17 ICCPR.82 It stated, inter alia, that: [e]ffective measures have to be taken by States to ensure that information concerning a person’s private life does not reach the hands of persons who are not authorized by law to receive, process and use it, and is never used for purposes incompatible with the Covenant. In order to have the most effective protection of his private life, every individual should have the right to ascertain in an intelligible form, whether, and if so, what personal data is stored in automatic data files, and for what purposes. Every individual should also be able to ascertain which public authorises or private individuals or bodies control or may control their files. If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law, every individual should have the right to request rectification or elimination.83

Most of the decisions of the HRC following complaints brought under Article 17 ICCPR 08.60 dealt with more classical private and family life issues. There are a few decisions with explicit reference to the protection of personal data. In Sayadi ea v Belgium, for instance, the applicants complained about the inclusion of their names and contact details on UN sanctions lists, which were available to everyone on the Internet.84 The HRC found a violation of Article 17 ICCPR. The dissemination of personal information about the applicants constituted an attack on their honour and reputation, in view of the negative association that some persons could make between the applicants’ names and the title of the sanctions list.85 The names were transmitted to the UN Sanctions Committee by the Belgium government while the outcome of a criminal investigation against these persons was still unknown. After the investigation was dismissed, the names were not removed from the list for which the HRC held the Belgium government responsible.86 In Van Hulst v The Netherlands the complaint concerned the allegedly unlawful 08.61 retention of tapped telephone conversations the applicant had with his lawyer.87 As to the data protection part of the claim, the HRC stated that the right to privacy implies that every individual should have the right to request rectification or elimination of incorrect personal data in files controlled by public authorities.88 However, in the case at hand, it considered the separate storage of the recordings of the applicant’s conversations not unreasonable.

82 83 84 85 86 87 88

CCPR, General Comment No 16, adopted on 8 April 1988 during the 32nd session. Ibid Pt 10. CCPR, Communication No 1472/2006, CCPR/C/94/D/1472/2006, views adopted on 22 October 2008. Ibid Pt 10.12. Ibid Pt 10.13. CCPR, Communication No 903/2000, CCPR/C/82/D/903/2000, views adopted on 1 November 2004. Ibid Pt 7.9.

Herke Kranenborg

237

Part I – Commentary on the Articles of the EU Charter

III. Council of Europe Treaties 08.62 It has already been mentioned that in 1981 the Council of Europe Convention 108 was adopted for the protection of individuals with regard to automatic processing of personal data. The Convention aims ‘to secure in the territory of each Party for every individual, whatever his nationality or residence, respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him’.89 The Convention introduced definitions of several key notions, such as ‘personal data’, ‘automatic processing’ and ‘controller of the file’ and provided the basic principles for data processing, gave rules on the transborder flow of data between the parties and on a system of mutual assistance.90 The Additional Protocol, adopted in 2001, added provisions on the establishment of independent supervisory bodies and introduced rules on the transfer of data to third countries.91 All EU Member States have ratified Convention 108. Twenty-five Member States have 08.63 signed the Additional Protocol, out of which 20 have actually ratified it.92 For the EU Member States the more detailed Directive 95/46/EC has diminished the importance of Convention 108. For the law enforcement sector, the Convention plays a role in situations which are not covered by Framework Decision 2008/977/JHA.93 As with the EU secondary legislation on data protection, Convention 108 and the 08.64 Additional Protocol are under revision. The two procedures to modernise the rules run in parallel. To prevent any inconsistencies, the European Commission is actively participating in the revision process of Convention 108.94 Following the entry into force of Convention 108 in 1985, the Committee of Ministers 08.65 adopted a list of recommendations on a variety of specific data processing situations. It adopted, inter alia, recommendations which dealt with the protection of personal data for social security purposes, the protection of personal data in the area of telecommunication services or the protection of privacy on the Internet.95 For the police sector, Recommendation No R(87)15 regulating the use of personal data in the police sector played an important role.

IV. Organisation for Economic Cooperation and Development 08.66 On 23 September 1980, the Organisation for Economic Cooperation and Development (OECD) adopted Guidelines on the protection of privacy and transborder flows of

89

See Art 1 of Convention 108. See respectively Art 2, cc II, III and IV of Convention 108. 91 Additional Protocol to Convention 108 of 8 November 2001 regarding supervisory authorities and transborder data flows, ETS 181. 92 Malta and Slovenia have not signed the Additional Protocol. Belgium, Denmark, Greece, Italy and the United Kingdom have signed Additional Protocol 181, but had not ratified it at the moment of writing. 93 See also section A.i above. 94 More information on the modernisation of Convention 108 can be found at www.coe.int >> ‘Rule of Law’ >> ‘Data Protection’. 95 See respectively Recommendation No R(86)1 of 23 January 1986, Recommendation No R(95)4 of 7 February 1995 and Recommendation No R(99)5 of 23 February 1999. A full list of relevant recommendations can be found at www.coe.int >> ‘Rule of Law’ >> ‘Data Protection’. 90

238

Herke Kranenborg

Art 8 – Protection of Personal Data

personal data.96 These Guidelines were developed in parallel with Convention 108 of the Council of Europe, and contain many comparable elements. For instance, the definitions of ‘personal data’ and ‘data controller’ given in both instruments are essentially the same.97 Also, most of the principles defined in Convention 108, such as the purpose limitation principle, and the data quality principle, can in substance be found in the Guidelines as well. Differences between both instruments concern the binding nature of Convention 108, the specific attention paid in Convention 108 to sensitive data and the limitation of the scope of Convention 108 to automated data processing only.98 The two subjects which were added to Convention 108 by the Additional Protocol, namely the establishment of supervisory authorities and the rules on third country transfers, were not contained in the Guidelines. Due to the adoption of Convention 108 and, later on, the EU legislation on data pro- 08.67 tection, the Guidelines were mainly directly relevant for the non-European Members of the OECD. The Canadian Personal Information Protection and Electronic Documents Act, for instance, incorporated the Guidelines with only minor changes.99 As with the EU secondary legislation on data protection, Convention 108 and the 08.68 Additional Protocol, the OECD Guidelines have been under review as well.100 On 11 July 2013, the new guidelines were adopted.101

D. Analysis I. General Remarks The substantive and fragmentary body of secondary EU law relating to data protection 08.69 makes it a complicated legal area. As shown in section A, the separation between the different EU policy areas in the former pillar structure has left its traces. ‘Cross-pillar’ issues emerged especially in the area of data protection, causing uncertainty about the correct EU competence and applicable rules. This mainly concerned the use by law enforcement authorities of personal data collected by private entities for commercial purposes, such as passenger name records (PNR), bank transfer data (the SWIFT case) and telephone data (data retention). These issues led to political and legal debates regarding the correct legal basis of secondary legislation.

96 The guidelines can be found on the OECD website: www.oecd.org >> ‘Internet’ >> ‘Internet economy’. The OECD has 34 members, of which 21 are EU Member States. Bulgaria, Cyprus, Latvia, Lithuania, Malta and Romania are not member of the OECD. The other OECD Members are: Australia, Canada, Chile, Iceland, Israel, Japan, Korea, Mexico, New Zealand, Norway, Switzerland, Turkey and the United States. The European Commission takes part in the work of the OECD as provided by the Supplementary Protocol to the Convention on the OECD of 14 December 1960. 97 Compare Art 1(a) and (b) of the Guidelines with Art 2(a) and (d) of Convention 108. 98 Although a party may decide to apply the Convention also to non-automated processing, see Art 3(2) (c) of Convention 108. See further OECD Paper, ‘Thirty years after the OECD Privacy Guidelines’ (2011), to be found at www.oecd.org >> ‘Internet’ >> ‘Internet economy’ >> ‘Publications and Documents’ ch 2. 99 OECD Paper, ibid p 4. 100 More information can be found at www.oecd.org >> ‘Internet’ >> “Internet economy’ >> ‘Information security and privacy’ >> ‘Overview of OECD work and privacy guidelines’. 101 Ibid.

Herke Kranenborg

239

Part I – Commentary on the Articles of the EU Charter

08.70

08.71

08.72

08.73

08.74

With regard to the (first) PNR agreement with the US, and Directive 2006/24/EC on data retention, the Court of Justice had to express itself on the correct legal basis of these instruments: either a basis in the former EC Treaty (internal market) or a basis in the former EU Treaty (law enforcement).102 The Court came to two different conclusions: the PNR should have had its legal basis in the former third pillar, while the data retention Directive was rightly based on the former first pillar. The difference was mainly due to the fact that contrary to the PNR agreement, the data retention Directive did not contain any specific provisions on when and how the stored data should be provided to the competent authorities in the Member States. The combined reading of both rulings shows that it is difficult to determine the predominant policy area for such measures. Advocate-General Bot in his Opinion in the case on the data retention Directive referred to the ‘artificial distinction’ in law between the private sector processing of data and the processing by law enforcement authorities in these situations.103 He stated that ‘although it is regrettable, the constitutional architecture consisting of three pillars nevertheless requires that the areas of action be split up’.104 One would think that by abolishing the pillar structure, the Lisbon Treaty has done away with these complications. However, the traces of the former pillar structure are still visible in the secondary data protection legislation and, when looking at the proposed reform of the EU data protection framework, will continue to be so for, perhaps, the next decades. Despite the single legal basis in Article 16 TFEU for secondary legislation on data protection, the Commission proposed two self-standing instruments, one on data protection in general and one for data protection in the law enforcement area.105 It does not create a clear legal framework for situations like PNR, SWIFT and data retention which trigger the applicability of the two instruments.106 The distinction between EU policy areas and competences can also be seen in the data protection rules applicable to the EU institutions, bodies and agencies. Since the entry into force of the Lisbon Treaty, Regulation 45/2001 applies to all EU institutions and bodies except for the former third-pillar bodies Europol and Eurojust which have their own rules and oversight mechanisms. This situation should be simplified when the Commission will consider proposals to revise Regulation 45/2001, which has been left untouched for the time being. The continued patchwork of secondary legislation, particularly in the law enforcement area, prompts the question what role Article 8 of the Charter could play as the overarching fundamental right, recognised also in the TEU and the TFEU. Article 8 of the Charter contains several specifications of what the right to data protection entails. As stated, these specific elements reflect several key elements of the system of checks and balances existing under the heading of the right to data protection. Article 8 lifts these elements to the primary EU law level. In that respect, Article 8 could have direct effect and could be used to ensure that throughout the patchwork of EU legislation on data

102 See respectively Joined Cases C-317/04 and C-318/04 Parliament v Council and Commission [2006] ECR I-4721 and Case C-301/06 Ireland v Parliament and Council [2009] ECR I-00593. 103 See Opinion of AG Bot in Ireland v Parliament and Council (n 102) [108]. 104 Ibid. 105 See also section A.II. 106 See on this issue H Hijmans and A Scirocco, ‘Shortcomings in EU data protection in the third and the second pillars. Can the Lisbon Treaty be expected to help?’ [2009] Common Market Law Review 1485–1525.

240

Herke Kranenborg

Art 8 – Protection of Personal Data

protection these elements are upheld. Secondary legislation, in as far as it is in conflict with these specifications and does not comply with conditions for justified limitations under Article 52 (see however section D.IV below), could be annulled by the Court of Justice. The Court has already shown its willingness to annul (parts of) secondary legislation because of a breach of the right to data protection as enshrined in the Charter.107

II. Scope of Application The scope of application of Article 8 has already been described in terms of EU policy areas it may cover. However, analysing the scope of application of the right to data protection also requires a more detailed assessment. The secondary EU legislation defines the territorial, material and personal scope of the right to data protection for the policy area covered by the instrument. It would go too far to discuss all the EU instruments on data protection in detail. Below, the analysis concentrates mainly on the most prominent EU instrument on data protection, namely Directive 95/46/EC.

08.75

(a) Territorial Scope—Under Pressure because of Internet Data protection is perhaps one of the clearest examples of how Internet challenges the 08.76 legal boundaries between the EU and the rest of the world. In an Internet environment, for instance by use of cloud computing services, it is not always easy to determine where personal data is actually processed and subsequently to define which law is applicable. And even if the applicability of the law is established, it might be difficult to enforce such law. Against this background, the rules on the applicability of the national law imple- 08.77 menting Directive 95/46/EC seem to be outdated. The basic rule in Article 4 is that the national law applies when processing is carried out in the context of the activities of an establishment of the controller (which is the person responsible for the data processing) on the territory of the Member State, or when such law applies by virtue of international public law.108 It is added that if the controller is not established on EU territory but makes use of equipment situated on the territory of a Member State, the rules also apply, unless the equipment is only used for transit purposes.109 Certain data processing activities on the Internet, such as storage of data in the cloud, might not necessarily fulfil one of these criteria, while the general sense is that such activities should be covered by national data protection law implementing the Directive.110 More guidance can be expected from the Court of Justice, who has been asked to explain Article 4 of Directive 95/46/EC in relation to activities of Google, a US-based company, which affected individuals in Spain.111

107

Volker and Markus Schecke (n 38), see also section D.IV(b) below. Art 4(1)(a) and (b) of Directive 95/46/EC. 109 Art 4(1)(c) of Directive 95/46/EC. 110 See Opinion 8/2010 of the Article 29 Working Party of 16 December 2010, to be found at http:// ec.europa.eu/justice/data-protection/article-29/index_en.htm >> ‘Documentation’. 111 Case C-131/12 Google Spain, SL, Google Inc (still pending). See the opinion of AG Jääskinen of 25 June 2013. 108

Herke Kranenborg

241

Part I – Commentary on the Articles of the EU Charter

08.78

08.79

08.80

08.81

08.82

The proposal for a new Regulation which is supposed to replace Directive 95/46/EC attempts to clarify the scope of the data protection rules. The Regulation, which will be directly applicable in the Member States, applies also to a controller who is not established in the EU, if the processing is related to the offering of goods and services to data subjects residing in the Union or the monitoring of their behaviour.112 The transfer of personal data from an EU Member State to a third country is fully covered by Directive 95/46/EC. In principle, such a transfer may only take place if the third country ensures an adequate level of data protection.113 Under Directive 95/46/EC, the European Commission has been granted the power to adopt so-called adequacy decisions in which it declares a third country officially adequate. This power has led to a modest list of such decisions.114 Often these decisions are taken after certain assurances are made in the third country concerned. In this respect, Directive 95/46/EC has an indirect extraterritorial effect. In particular cases, a transfer is still possible without an adequate level in the country.115 Internet also put this third country transfer system under pressure. In the Lindqvist case, the person involved was not only charged for having published personal data of others on a website without a legitimate ground, but also for transferring the data to a third country by putting the data on the Internet.116 The Court was asked whether this was a correct reading of the Directive. In order to prevent the third country rules in Directive 95/46/EC from largely blocking the use of the Internet (in effect, all third countries connected to the Internet should then be checked for the adequacy of their data protection rules before anything could be put on the Internet), the Court considered that third country transfer rules in the Directive only referred to a direct transfer. Between Ms Lindqvist putting personal data on an Internet page and the person actually visiting the page and ‘receiving’ the personal data, were several steps, to be taken by hosting and internet service providers, so no direct transfer had taken place.117 Only four months after the ruling in Österreichischer Rundfunk, as described in section A.III, the Court again had to save the effêt utile of the Directive, but the solution was very weak: somewhere in the line of events which led to the communication of data between Ms Lindqvist and the recipient in a third country, there had been a direct transfer of personal data between an actor from the EU and actors in third countries connected to Internet. However, as the Court underlined, the question in the Lindqvist case did not concern the activities carried out by the hosting providers.118 In the proposed Regulation the problem in Lindqvist has not been addressed. The Lindqvist ruling asks for a clear definition of what constitutes a transfer, however, such a definition has not been provided.

112

Art 3(2) of the proposed Regulation (n 15). Art 25(1) of Directive 95/46/EC. For the law enforcement sector see Art 13(1)(d) Framework Decision 2008/977/JHA. See also the Additional Protocol to Convention 108. 114 Countries on the list are Andorra, Argentina, Australia, Canada, Switzerland, Faeroe Islands, Guernsey, Israel, Isle of Man and Jersey. See http://ec.europa.eu/justice/data-protection/document/internationaltransfers/adequacy/index_en.htm. 115 See Art 26 of Directive 95/46/EC. 116 Lindqvist (n 41). 117 Ibid [61] and [69]. 118 Ibid [62]. 113

242

Herke Kranenborg

Art 8 – Protection of Personal Data

(b) Material Scope The material scope of Directive 95/46/EC is defined in Article 3. It describes in a positive manner what is covered by the Directive (Art 3(1)) and in a negative manner what is not covered by it (Art 3(2)). What is covered is all processing of personal data wholly or partly by automatic means, and processing otherwise than by automatic means of personal data which form part of a filing system or are intended to form part of a filing system. What is not covered is processing of personal data in the course of an activity which falls outside the scope of the former first pillar area, or data processed by a natural person in the course of a purely personal or household activity.

08.83

What is covered? To understand the positive description of what is covered by the Directive, a further 08.84 clarification of several notions used in Article 3 is needed. These are: ‘personal data’, ‘processing’ and ‘filing system’. All three notions are defined in Article 2 of the Directive. Personal data is ‘any information relating to an identified or identifiable natural 08.85 person’.119 ‘Any information’ is truly any information: it is not restricted to ‘private’ information or to information carried on a certain medium. In Satamedia, the Court of Justice made clear that also information which is made publicly available is still covered by the notion of ‘personal data’.120 The information should relate to a person, which is also broadly interpreted. For instance, it might also include information about an object, such as the value of a house, as long as the information relates to an identified or identifiable natural person. The addition of identifiable makes the notion of ‘personal data’ particularly wide. Even if the identity of the person is not directly know, one can speak about personal data if there are still ways to identify the person. Recital 26 of Directive 95/46/EC states that to determine whether a person is identifiable, account should be taken of all the means likely reasonably to be used either by the controller or by any other person. The last requirement, that it should be a natural person, means that data about deceased persons or legal persons are not considered personal data.121 Despite the wide definition of personal data, there can be discussion whether certain 08.86 information qualifies as personal data. For instance, there has been a debate whether an IP address falls within the ambit of the notion. One could doubt whether such is the case, since the computer to which an IP address is assigned, is not necessarily used by the person who is actually subscribed to the Internet. This can be the case in a private home situation, but happens continuously in, for instance, an Internet café. The Working Party 29 (an EU advisory body which consists of all data protection authorities of the EU Member States and the EDPS) concluded that even if some IP addresses cannot lead to the identification of a natural person, ISPs should, unless they are in a position

119 Art 2(a) of Directive 95/46/EC. See on the notion of ‘personal data’ Opinion 4/2007 of the Art 29 Working Party of 20 June 2007, to be found at http://ec.europa.eu/justice/data-protection/article-29/index_ en.htm >> ‘Documentation’. 120 Satamedia (n 40) [35]–[37]. 121 See however section D.II(c) on the personal scope below.

Herke Kranenborg

243

Part I – Commentary on the Articles of the EU Charter

08.87

08.88

08.89

08.90

to distinguish with absolute certainty that the data corresponds to users that cannot be identified, treat all IP information as personal data, ‘to be on the safe side’.122 Another example, taken from the case law of the ECtHR, concerns fingerprints. The former European Commission for Human Rights of the Council of Europe had decided that the mere retention of fingerprints by police authorities did not amount to an interference with the private life of the persons concerned as they did not contain any subjective appreciations which called for refutation.123 In S and Marper, the ECtHR reviewed the issue and considered that fingerprint records did constitute personal data.124 According to the Court, ‘the retention of fingerprints on the authorities’ records in connection with an identified or identifiable individual may in itself give rise, notwithstanding their objective and irrefutable character, to important private-life concerns’.125 The second notion, processing of personal data, concerns all activities done with personal data from the moment of collection to the moment of erasure. According to the definition in Article 2(b) of Directive 95/46/EC, processing constitutes ‘any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction’. The list is long, but not exhaustive. Reference is made to processing ‘whether or not by automatic means’. This links to the description of the scope of Directive 95/46/EC in Article 3(1). Processing not by automatic means also constitutes processing, but the Directive only applies if such (purely) manual processing concerns data which is part or intended to be part of a filing system. Such a filing system, the third notion distinguished above, is ‘any structured set of personal data which are accessible according to specific criteria’.126 Recital 27 of Directive 95/46/EC makes clear that manual processing in unstructured files should not be covered by the Directive. The Directive applies when the files are structured according to specific criteria relating to individuals allowing easy access to the personal data. Excluding the purely manual and unstructured processing of personal data reflects the roots of data protection: the introduction of the computer which made it possible to easily structure and search personal data. The manual processing exclusion seems to be more and more outdated. Yet, in the context of a case on the public disclosure upon request of personal data in official documents, the Bavarian Lager case, AG Sharpston made creative use of this exception to justify the disclosure of the names of the business representatives in the minutes of the meeting.127 However, the Court did not follow the Advocate-General in this respect.

122

See Opinion 4/2007 (n 119) p 17. Kinnunen v Finland App no 24950/94 (EcomHR, 15 May 1996). S and Marper (n 69) [81]. This conclusion was taken over by the Court of Justice in Case C-291/12 Michael Schwarz (CJEU, 17 October 2013). 125 Ibid [85]. 126 Art 2(c) of Directive 95/46/EC. 127 See Case C-28/08P Bavarian Lager v Commission [2010] ECR I-6055 (AG Sharpston, Opinion) esp Pt VII.A. 123 124

244

Herke Kranenborg

Art 8 – Protection of Personal Data

What is not covered? The second exclusion mentioned in Article 3(2) of the Directive concerns data processed by a natural person in the course of a purely personal or household activity.128 The exception has been used to argue the non-applicability of the Directive for situations which have no link with the internal market.129 This was the case in Lindqvist, in which the person involved was a volunteer for the Swedish Church, who made a website containing practical information for persons preparing for confirmation. This information included a brief description of colleague volunteers and their contact details. In the case before the Court of Justice, it was argued that Ms Lindqvist’s activities were essentially not economic, but charitable and religious.130 The Court, however, repeated its considerations from the Österreichischer Rundfunk ruling, stating that no actual link with free movement between Member States was required.131 Since charitable and religious activities were not mentioned in Article 3(2), the Court considered that such activities were not excluded from the scope of the Directive.132 Also the household exception did not apply to the activities of Ms Lindqvist. The Court referred to Recital 12 of Directive 95/46/EC, which gives as examples processing activities which are exclusively personal or domestic, correspondence and the holding of records of addresses.133 According to the Court the exception relates only to activities which are carried out in the course of the private or family life of individuals, which was clearly not the case with the processing of personal data consisting in the publication on the Internet which made those data accessible to an indefinite number of people.134 The household exception played a role when defining the different data protection responsibilities of all actors involved in online social networks, such as Facebook and LinkedIn. In an Opinion on this issue, the Article 29 Working Party concluded that users of such social networks were in the first place data subject, but in the second place also processing personal data of others. In principle, the Article 29 Working Party considered such processing activities by users as falling within the scope of the household exemption.135 However, under certain circumstances the activities of a user could extend beyond a purely personal or household activity, for instance if the social network is used as a collaboration platform for an association or a company.136 The Article 29 Working Party entered a sliding scale when it stated that a high number of contacts could be an indication that the household exception does not apply.137 The question of course is where to draw the line. It should be underlined that the provider of a social network service cannot invoke the exemption.138 128 The scope of Directive 95/46/EC in relation to the former pillar structure has been discussed in section A above. 129 See also section A.III above. 130 Lindqvist (n 41) [38]. 131 Ibid [40]–[42]. See section A.III above. 132 Ibid [44]–[45]. 133 Ibid [46]. 134 Ibid [47]. 135 See Opinion 5/2009 of the Article 29 Working Party of 12 June 2009, to be found at http://ec.europa. eu/justice/data-protection/article-29/index_en.htm >> ‘Documentation’, p 5. 136 Ibid p 6. 137 Ibid. 138 Similar questions come up in relation to cloud computing. See the EDPS Opinion of 16 November 2012, to be found at www.edps.europa.eu >> ‘Consultation’ >> ‘Opinions’.

Herke Kranenborg

245

08.91 08.92

08.93

08.94

Part I – Commentary on the Articles of the EU Charter

08.95

When drawing up the proposed new Regulation, the Commission has tried to change the household exception in light of developments such as online social networks, but it finally kept the current language of the exception. It only added the condition that the natural person should have no gainful interest.139 (c) Personal Scope

08.96 Every data subject, ie every identified or identifiable natural person to whom information relates, can invoke her or his rights under the Directive. As said, legal persons cannot be considered data subjects, and cannot invoke any rights under Directive 95/46/EC. Under the earlier mentioned Directive 2002/58/EC on privacy and electronic communications (the ‘ePrivacy Directive’), this is different.140 The ePrivacy Directive complements Directive 95/45/EC for the telecom sector. Moreover, it provides for protection of the legitimate interests of subscribers who are legal persons.141 For instance, the spamming of legal persons should also be based on their prior consent.142 In that respect, the ePrivacy Directive goes beyond the personal scope of Directive 95/46/EC. In Recital 12 it is underlined that the ePrivacy Directive does not oblige the Member States to also extend the application of Directive 95/46/EC to the protection of the legitimate interests of legal persons.143 Another key actor when talking about data protection is the controller, which is any 08.97 natural or legal person, public authority, agency or any other body responsible for compliance with the data protection rules.144 The controller is the person who, alone or jointly with others, determines the purposes and the means of the processing of personal data. The controller should be distinguished from the processor, who is the natural or legal 08.98 person who processes personal data on behalf of the controller.145 In such a situation, the controller remains responsible. It is important, especially for the data subject, to be clear who is the controller, as the proper addressee in the event that data protection rights are not complied with. In practice, however, it is often difficult to determine who the controller is. Complicated legal business constellations, the outsourcing of processing activities and technological separation of different parts of a processing operation, may lead to a jungle within which it is hard to define who the controller is.146 Furthermore, in some situations it seems unjustified not to put any responsibility on the processor. Often, the processor does decide about the technical means to be used for the processing.147

139 See Art 2(2)(d) of the proposed Regulation (n 15). In the leaked draft version of the proposal (to be found at www.statewatch.org/eu-dp.htm), reference was made to an indefinite group of persons, see Art 2(5)(d). See on this point also the EDPS opinion of 7 March 2012 (n 17) pts 90–93. 140 Above n 4. 141 Art 1(2) of Directive 2002/58/EC. 142 Art 13(1) of Directive 2002/58/EC. 143 It should be noted that Convention 108 indicates the possibility for parties to apply the Convention also to legal persons, see Art 3(2)(b) of Convention 108. 144 Art 2(d) of Directive 95/46/EC. 145 Art 2(e) of Directive 95/46/EC. 146 See Opinion 1/2010 of the Article 29 Working Party of 16 February 2010 on the concept of ‘controller’ and ‘processor’, to be found at http://ec.europa.eu/justice/data-protection/article-29/index_en.htm >> ‘Documentation’. 147 See on this the EDPS Opinion of 16 November 2012 (n 138) section IV.2.

246

Herke Kranenborg

Art 8 – Protection of Personal Data

In the newly propose Regulation, both notions reappear.148 A separate chapter is fore- 08.99 seen for controllers and processors, which provides some further clarifications on the responsibilities of the processor.149 For instance, it is stated that a processor shall be considered controller if it processes the data other than as instructed by the controller.150

III. Specific Provisions Article 8 contains several specifications of what the right to data protection entails. 08.100 As stated in the explanations to the Charter, Article 8 is based on Convention 108 and Directive 95/46/EC. Both instruments contain further specifications and details. The overview given in this section will be restricted to a relatively general and selective description of the different (groups of) provisions contained in the data protection rules, especially Directive 95/46/EC. Special attention is paid to provisions on which the Court of Justice has expressed itself. (a) Data Quality Article 6 of Directive 95/46/EC contains several requirements on the quality of the 08.101 data processed. Although referred to as ‘data quality’, the requirements can to a certain extent also be seen as an expression of the general principle of necessity. According to Article 6(1) of Directive 95/46/EC, personal data must be: a) processed fairly and lawfully; b) collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes; c) adequate, relevant and not excessive in relation to the purposes for which they are collected and/or further processed; d) accurate and, where necessary, kept up to date; e) kept in a form with permits identification of the data subjects for no longer than is necessary for the purposes for which the data were collected or for which they are further processed. One of the specifications in Article 8 of the Charter can be found in this provision 08.102 as well, namely that data must be processed for specified purposes (see under (b)). However, the Directive goes a bit further and expresses more explicitly what is known as the purpose limitation principle, or the finality principle: the data should not be further processed in a way that is incompatible with those purposes. This principle constitutes one of the cornerstones of data protection. However, the purpose limitation principle is not absolute, as will be shown when discussing the possible derogations under section D.IV below. Besides, the Directive creates some room to manoeuvre, by stating that further use of the data is allowed if it is compatible with the initial purpose.

148 149 150

Arts 4(5) and 4(6) of the proposed Regulation (n 15). See c IV of the proposed Regulation. Art 26(4) of the proposed Regulation.

Herke Kranenborg

247

Part I – Commentary on the Articles of the EU Charter

08.103

The issue of ‘compatible use’ is subject to debate and has led to differences between the Member States. Directive 95/46/EC does not provide substantive guidance on how to define the compatibility of further processing. Only further processing of personal data for historical, statistical or scientific purposes is explicitly mentioned as not being incompatible, provided that Member States have appropriate safeguards in place.151 In the newly proposed Regulation on data protection the notion of ‘compatible use’ reappears, again without further clarification.152 In some national legislation compatible use has been further clarified. The Dutch Data 08.104 Protection Act states that the following elements should be taken into account by the controller when assessing whether further use is compatible with the initial purpose: — — — — —

the relationship between the purpose of the intended processing and the purpose for which the data have been obtained; the nature of the data concerned; the consequences of the intended processing for the data subject; the manner in which the data have been obtained; and the extent to which appropriate guarantees have been put in place with respect to the data subject.153

08.105 According to the Belgian Data Protection Act, account must be taken of all relevant factors, in particular the reasonable expectations of the data subject and the applicable legal and regulatory provisions.154 Article 6(e) of Directive 95/46/EC requires the deletion or anonymisation of per08.106 sonal data once identification is no longer necessary for the purposes for which the data are processed. What constitutes a necessary and reasonable retention period can only be established with a view to the circumstances of a specific case. For the telecommunications sector this has been particularised in the ePrivacy Directive. Traffic data, which is data processed for the purpose of the conveyance of a communication on an electronic communications network or for the billing thereof, must be deleted or anonymised when the data is no longer necessary for the purpose of the transmission of a communication.155 Data kept for billing purposes is permissible only up to the end of the period during which the bill may lawfully be challenged or payment pursued.156 Location data may be kept longer for marketing purposes, but only with the consent of the subscriber, which can be withdrawn at any time.157 The obligation to delete or anonymise can be derogated from in national legislation 08.107 under the restrictions laid down in Article 15 of the ePrivacy Directive. Since several Member States required telecom operators to store their traffic and location data for, in some cases, several years for law enforcement purposes, Directive 2006/24/EC (the data retention Directive) was adopted to harmonise this obligation.158 The Directive requires

151 152 153 154 155 156 157 158

248

Art 6(1)(b) of Directive 95/46/EC. See Art 5(b) of the proposed Regulation. See Art 9(2) of the Dutch Data Protection Act. See Art 4(1)(2) of the Belgian Data Protection Act. Arts 2(b) and 6(1) of Directive 2002/58/EC. Art 6(2) of Directive 2002/58/EC. Art 6(3) of Directive 2002/58/EC. Above n 6.

Herke Kranenborg

Art 8 – Protection of Personal Data

that, with the exception of the content of communications, data be kept for a period to be decided by the national legislator, of between six months and two years. The data retention Directive has been criticised for its excessive intrusion into the private life of all citizens. The EDPS called the Directive ‘the most privacy invasive measure ever adopted by the EU in terms of scale and the number of people it affects’.159 Due to the privacy concerns in several Member States, such as Austria and Sweden, 08.108 the implementation of the Directive was problematic. After expiry of the implementation deadline, the Commission started infringement procedures, which led the Court of Justice to conclude that both countries had failed to implement the Directive.160 As Sweden still failed to transpose the Directive, the Commission started a second procedure, asking the Court to order Sweden to pay a daily penalty of almost EUR 41,000.161 In March 2012, the Swedish Parliament adopted the measures transposing the Directive, which entered into force on 1 May 2012. The Commission subsequently withdrew its recommendation for a daily penalty, but still recommended the Court to impose a lump sum penalty to Sweden. Finally, the Court ordered Sweden to make a lumpsum payment of EUR 3,000,000. In other Member States, Germany, Romania, the Czech Republic and Cyprus, the 08.109 Directive was implemented but later on annulled by the highest national court. In Germany, no new law was adopted, due to diverging opinions on the conformity of data retention with fundamental rights. In the subsequent infringement action before the Court, Germany invoked the argument that the Directive could not be implemented without infringing the right to privacy.162 At the time of writing, the case was still pending. However, the German argument will most likely be rejected, as a comparable reasoning had already been set aside by the Court in the previous case against Austria. In that respect, more could be expected from the preliminary rulings asked for by the High Court of Ireland and the Austrian Constitutional Court.163 In both cases, the Court is explicitly asked to decide on the validity of the data retention Directive in light of the right to privacy in Article 8 of the Charter. However, the Court finds itself in a precarious situation. If it declares the Directive invalid because of non-conformity with the Charter, it can hardly justify still condemning Germany for failing to implement it. (b) Legitimate Grounds for Processing Article 8 of the Charter indicates that data must be processed on the basis of the consent of the person concerned or some other legitimate basis laid down by law. As stated, by providing legitimate grounds for data processing other than the consent of

159 See speech of P Hustinx (EDPS) of 3 December 2010, ‘The moment of truth for the Data Retention Directive’, to be found at www.edps.europa.eu >> ‘Publications’ >> ‘Speeches’, p 1. See also the EDPS Opinion of 31 May 2011 on the Evaluation report from the Commission on the Data Retention Directive, to be found at www.edps.europa.eu >> ‘Consultation’ >> ‘Opinions’. 160 Case C-189/09 Commission v Austria [2010] ECR I-00099 and Case C-185/09 Commission v Sweden [2010] ECR I-00014. The same conclusion was drawn with regard to Greece and Ireland: Case C-211/09 Commission v Greece [2009] ECR I-00204 and Case C-202/09 Commission v Ireland [2009] ECR I-00203. 161 Case C-270/11 Commission v Sweden (CJEU, 30 May 2013). 162 Case C-329/12 Commission v Germany (still pending). 163 Case C-293/12 Digital Rights Ireland (still pending) and Case C-594/12 Kärntner Landesregierung and others (still pending).

Herke Kranenborg

249

08.110

Part I – Commentary on the Articles of the EU Charter

the data subject, Article 8 goes beyond what has been described as informational selfdetermination.164 Article 7 of Directive 95/46/EC contains a further elaboration of the legitimate grounds. The list of grounds is exhaustive and restrictive.165 The legitimate grounds are: a) b) c) d) e)

the unambiguously given consent of the data subject; the performance of a contract to which the data subject is party; compliance with a legal obligation; the protection of the vital interest of the data subject; the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; f) the legitimate interests pursued by the controller or the third party to whom the data are disclosed, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject. 08.111 For all grounds, except for the consent of the data subject, it is explicitly stated that the data processing should be necessary. Data processing on the basis of the consent of the data subject should still comply with, for instance, the requirements on data quality. 08.112 Convention 108 does not contain a similar list of legitimate grounds for processing. Even the consent of the data subject is not mentioned as ground for legitimate processing.166 In the current revision process of Convention 108, the intention is to include a reference to the consent given by the data subject and to list other possible legitimate grounds for processing.167 In the newly proposed EU Regulation, the list of grounds basically remains the same, although there are some changes, especially regarding Article 7(f) of Directive 95/46/EC, as will be shown below.168 The further analysis below will be restricted to some particular issues relating to the 08.113 legitimate grounds for processing. Consent 08.114 The unambiguous consent of the data subject constitutes a legitimate basis of the processing of personal data. Unambiguous means that the procedure to give consent must leave no doubt as to the data subject’s intention to deliver consent.169 But what constitutes ‘consent’? The notion is defined as ‘any freely given specific and 08.115 informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed’.170 In an elaborate opinion, the Article 29 Working Party has divided this definition into pieces and analysed it element-byelement.171 164

See section B.I above. Joined Cases C-468/10 and C-469/10 ASNEF and FECEMD (CJEU, 24 November 2011) [30]. 166 As already mentioned in section B.I (n 29), the notion of consent only appears in Art 15(3) of the Convention in relation to the provision of assistance to data subjects resident abroad. 167 Information on the modernisation of Convention 108 can be found on the website referred to in n 94 above. 168 Art 6 of the proposed Regulation. 169 See Opinion 15/2011 of the Article 29 Working Party of 13 July 2011 on the definition of consent, to be found at http://ec.europa.eu/justice/data-protection/article-29/index_en.htm >> ‘Documentation’, p 21. 170 Art 2(h) of Directive 95/46/EC. 171 See Opinion 15/2011 (n 169). 165

250

Herke Kranenborg

Art 8 – Protection of Personal Data

The reference to an indication of the wishes signifying the agreement of the data subject, points in the direction of an action being needed from the data subject. This excludes an understanding of consent based on the inactiveness of the data subject. The indication of the wishes signifying the agreement should furthermore be freely given, which means that the data subject should have a real, free choice. Consent is not a valid basis in situations in which the data subject is under pressure, risks adverse effects by giving consent, or if there is a clear imbalance between the data subject and the controller.172 The consent must be specific and informed. This excludes blanket consent: consent should relate to the specified purpose of the processing. The data subject should furthermore be well informed. This links to the transparency requirements to which the controller is subject (see below). The data subject should have a full understanding of the facts and implications of giving consent.173 In the case of sensitive data (see below), only the explicit consent of the data subject can legitimise the processing of such data.174 This addition leads to a more restrictive understanding of the possible actions of the data subject that indicate the wish signifying the agreement. Normally this should be done in writing, but in certain circumstances it can also be done orally.175 In the ePrivacy Directive, consent has the same definition as in Directive 95/46/EC. However, contrary to Directive 95/46/EC, the ePrivacy Directive explicitly foresees the possibility for the data subject to withdraw consent at any time. This possibility is necessarily restricted in time: data processing previously based on the consent of the data subject is still legitimate.176 However, for the continuation of the processing, another legitimate ground should be found, otherwise the data processing has to be terminated and the data deleted. In the proposed Regulation on data protection, the conditions for consent to be valid have been strengthened. Implicit consent, through an interpretation of certain behaviour, is excluded. The amended definition requires an explicit indication in all cases, clarifying this further by stating that this should be done ‘either by a statement or by a clear affirmative action’.177 A new provision is included specifically dedicated to the conditions for consent. The controller bears the burden of proof for the data subject’s consent and the data subject, in line with the current ePrivacy Directive, is given the right to withdraw her or his consent at any time.178 Furthermore, it is added that consent does not provide a legal basis if there is a significant imbalance between the position of the data subject and the controller.179

08.116

08.117

08.118

08.119

Necessity The grounds mentioned in Article 7(b)–(f) all require that the data processing must be necessary. In the Huber ruling, the Court of Justice expressed itself on the concept of 172 173 174 175 176 177 178 179

Ibid p 12. Ibid p 19. Art 8(2)(a) of Directive 95/46/EC. See Opinion 15/2011 (n 169), p 25. Ibid p 33. Art 4(8) of the proposed Regulation. Art 7(1) and (3) of the proposed Regulation. Art 7(4) of the proposed Regulation.

Herke Kranenborg

251

08.120

Part I – Commentary on the Articles of the EU Charter

‘necessity’.180 Huber was a preliminary ruling about the legality of a German centralised register of foreign nationals. The register was set up for the purpose of the application of national legislation relating to the right of residence. The ground for the data processing in the register was found in Article 7(e). The question was whether the (centralised) processing was necessary. The Court considered that the concept of necessity laid down by Article 7(e) of Directive 95/46/EC ‘has its own independent meaning in Community law’.181 08.121 Subsequently, the Court considered that the register could be necessary if (1) it only contained the data which were necessary for the application of the legislation and (2) its centralised nature enabled that legislation to be more effectively applied.182 The first condition could also have been brought under Article 6(1)(c) of Directive 95/46/EC as regards the data quality, however, the Court made no reference to this provision. The second condition used by the Court is questionable. It is precisely the effectiveness of data processing which makes a measure more invasive. A more effective application of legislation as such is insufficient for establishing the necessity of a measure. There might be other equally effective means which are less intrusive. The obligation to consider less intrusive means was precisely what was underlined by the Court in the Schecke ruling when applying the more general requirement of necessity.183 The Schecke ruling will be further discussed in section D.IV below. The Legitimate Interests of the Controller 08.122 Article 7(f) of Directive 95/46/EC contains a ground for processing for the legitimate interests of the controller or the third party to which the data are disclosed. This has turned out to be an important residual category in practice, especially for the private sector. Although the impact on the rights to privacy and data protection of the data subject should already be taken into account when assessing the necessity of the processing, the legislator decided to explicitly underline this element in Article 7(f). The Court of Justice in the ASNEF ruling considered that the provision therefore contains two cumulative conditions, of which the second one requires a balancing of the opposing rights and interests concerned. The balancing depends on the individual circumstances of the particular case in the context of which the controller must take account of the significance of the data subject’s rights arising from Articles 7 and 8 of the Charter.184 In the ASNEF ruling the Court considered that Article 7(f) had direct effect and set 08.123 aside Spanish legislation adding further conditions to the ground.185 Under Spanish law the data could only be processed on the basis of that ground if the data appeared in public sources. According to the Court this limited the scope of the ground in a way contrary to Directive 95/46/EC.186

180

Huber (n 36). Ibid [52]. 182 Ibid [66]. As discussed in section B.IV, the Court concluded that the inclusion also of EU citizens not being German nationals in the register was contrary to the prohibition of discrimination on grounds of nationality, as laid down in Art 12 of the former EC Treaty, see ibid [81]. 183 Volker und Markus Schecke (n 38). 184 ASNEF and FECEMD (n 165) [39]–[40]. 185 Ibid paras [51]–[55]. 186 Ibid [49]. 181

252

Herke Kranenborg

Art 8 – Protection of Personal Data

It could be questioned whether public authorities should have been enabled to invoke 08.124 the ground of Article 7(f). The legitimate ground for their processing activities is in principle covered by Article 7(c) (compliance with a legal obligation) and Article 7(e) (the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller). The reason for rejecting Article 7(f) as a legitimate ground for the public sector could be found in the unequal relationship between the controller (the public authority) and the data subject. Still, the provision has been used in some Member States, for instance, to justify the disclosure of certain personal data documents held by public authorities which had to comply with the fundamental right of public access to documents.187 In the new Regulation on data protection the proposal is to exclude public authorities 08.125 from the scope of the ground for the processing of data for the purposes of the legitimate interests pursued by a controller.188 (c) Sensitive Data Data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership and data concerning health or sex life are considered to be of a particular sensitive nature requiring stricter protection. This is not reflected in Article 8 of the Charter, but can be found in Convention 108 and the EU secondary legislation on data protection which contains specific rules for the processing of so-called special categories of data.189 In Recital 33 of Directive 95/46/EC these data are referred to as data which are capable by their nature of infringing fundamental freedoms or privacy. The ECtHR has confirmed the special nature of medical data: ‘[t]he protection of personal data, in particular medical data, is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life’.190 The processing of such sensitive data is in principle prohibited. However, there are several grounds on which processing still can take place. This list, contained in Article 8(2) of Directive 95/46/EC, is more restrictive than the one in Article 7. For instance, the prohibition is lifted if, as already explained, a data subject explicitly consents to the processing and the ground of Article 7(f) does not reappear. Member States have some discretion as they can add further grounds to this list, for reasons of substantial public interest and subject to suitable safeguards.191 A separate exemption to the prohibition is made for processing of data relating to health. Processing of such data is possible if it is required ‘for the purposes of preventive medicine, medical diagnosis, the provision of care or treatment or the management of health-care services and where those data are processed by a health professional subject … to the obligation of professional secrecy or by another person subject to an equivalent obligation of secrecy’.192

187 See Opinion 5/2001 of the Art 29 Working Party of 17 May 2001, to be found at http://ec.europa.eu/ justice/data-protection/article-29/index_en.htm >> ‘Documentation’. 188 Art 6(1)(f) of the proposed Regulation. 189 See Art 6 of Convention 108 and Art 8 of Directive 95/46/EC. See also Art 6 of Framework Decision 2008/977/JHA. 190 I v Finland (n 81) [38]. 191 Art 8(4) of Directive 95/46/EC. 192 Art 8(3) of Directive 95/46/EC.

Herke Kranenborg

253

08.126

08.127

Part I – Commentary on the Articles of the EU Charter

08.128

Especially in relation to health data processing, there are big differences between Member State legislation. These differences in law can hamper cross-border scientific research or the cross-border exchange of health data. The use of ICT applications in the healthcare sector is growing rapidly and changes the traditional centralised health data management by the national practitioner or the hospital. It also changes the relationship between patient and healthcare provider, which becomes less exclusive and more remote. The further development of eHealth requires a European approach, but due to the limited EU competence in the health area, it is difficult to get to such a harmonised approach.193 Still, common data protection rules for this area which are more detailed than the current ones could at least facilitate the development of compatible and reliable eHealth systems.194 Clarity could be given about the requirement of consent in this area, and the allocation of responsibilities.195 The newly proposed Regulation provides some further details in this area, especially 08.129 as regards the purposes for which health data may be used, but fails to provide further specifications.196 (d) Transparency 08.130 Clarity about what is going to happen, is happening, or has happened with personal data is crucial for the person concerned. Without such clarity the data subject’s right to, for instance, object or have the data rectified (see below) would become superfluous. Being well informed was discussed earlier, in the context of the consent of the data subject as a legal ground for processing. The transparency of the data processing is part of what constitutes fair processing, as referred to in Article 8 of the Charter. Directive 95/46/EC puts the obligation on the controller to inform the data subject 08.131 before engaging in the processing of her or his personal data.197 This obligation is the proactive counterpart of the reactive right of access to personal data of the data subject (see below). Together they materialise and elaborate the general principle of transparency. However, the obligation on the one hand and the right on the other hand are not communicating vessels. In Rijkeboer, the Court of Justice made clear that the active provision of information by the controller at the moment of collection does not reduce the obligation placed on the controller to give a data subject access to the information when he or she invokes his or her right of access.198 According to Directive 95/46/EC, the controller should provide the data subject at 08.132 least with the identity of the controller, the purpose of the processing, and any further information, if necessary to ensure fair processing, such as the recipients of the data, whether replies to questions are obligatory, as well as the possible consequences of failure to reply and the existence of the right of access and the right to rectify personal data.199

193

Arts 4(2)(k), 6(a) and 168 TFEU. See HR Kranenborg, ‘eHealth en privacy: welke rol voor de Europese Unie?’ [2011] Computerrecht 292–99. 195 See EDPS Opinion of 7 March 2012 (n 17) pts 298–99. 196 Ibid. See Art 81 of the proposed Regulation. See EDPS opinion of 7 March 2012, ibid pts 293–99. 197 See Arts 10 and 11 of Directive 95/46/EC. 198 Case C-553/07 Rijkeboer [2009] ECR I-3889 [69]. 199 See Arts 10 and 11 of Directive 95/46/EC. 194

254

Herke Kranenborg

Art 8 – Protection of Personal Data

The right of access to one’s own personal data is contained in Article 8 of the Charter 08.133 and has long since been recognised by the ECtHR as an element of the right to privacy under Article 8 ECHR.200 The right of access can be invoked by the data subject at any time. In Directive 95/46/EC, the data subject can acquire from the controller without constraint at reasonable intervals and without excessive delay or expense confirmation as to whether his or her personal data is processed, the purposes of the processing, the categories of data concerned and the recipients of the data.201 He or she can further require the communication in an intelligible form of the data undergoing processing, and obtain knowledge of the logic involved in any automatic processing.202 In the Rijkeboer ruling, the question was asked whether an individual’s right of access 08.134 concerning the recipients of the data and the content of the data communicated could be limited in time for a period of one year. In the Netherlands, information about who receives information from local authority personal records was deleted after one year. Local authority personal records contain basic registration data (such as personal identity number, civil status, nationality etc) about inhabitants. The Court distinguished between the personal data as such (the ‘basis data’) and a 08.135 second category of data which relates to what has happened with the basic data, for instance, to whom the data has been sent. The Court considered that, although the Directive was not explicit on this, the right to access to information must necessarily relate to the past.203 The Court considered that the length of time the basic data are stored may constitute a useful parameter for determining the storage period for the second category of data.204 However, in Rijkeboer, the basic data were stored for a very long time. The Court considered that the data subject’s interest in having access to the information may diminish in time in certain cases, and that the storage of such data for a long time could constitute an excessive burden on the controller.205 A time-limit should be fixed for the storage of the second category of data which constitutes a fair balance between the interest of the data subject and the burden for the controller.206 In the Rijkeboer case, the Court considered one year too short a storage period, which did not constitute a fair balance.207 Although the outcome of the ruling might be considered reasonable, the reasoning of 08.136 the Court relies on a rather creative interpretation of Directive 95/46/EC. In some provisions, an obligation on the controllers can be lifted if it constitutes a disproportionate effort. This is, for instance, the case with the duty to inform third parties to which the data has been disclosed when the data has been rectified.208 Although no such explicit reference is made in relation to the right of access, the Court still considers these references in the other provisions to justify the application of that exception also.

200

See Leander v Sweden (n 79) and Gaskin v United Kingdom (n 79). Art 12(a) of Directive 95/46/EC. 202 Ibid. The extent to which the right entails a right to have a copy of the data undergoing processing is subject to a preliminary ruling in Case C-372/12 M and S (still pending). 203 CJEU, Rijkeboer (n 198) [54]. 204 Ibid [58]. 205 Ibid [59]. 206 Ibid [64]. 207 Ibid [66]. 208 Art 12(c) of Directive 95/46/EC; see furthermore Arts 11(2) and 17. See also section D.III(e) below on the right to be forgotten. 201

Herke Kranenborg

255

Part I – Commentary on the Articles of the EU Charter

08.137

The duty to inform the data subject and the right of access to one’s own personal data can be limited under the general derogation clause (Art 13 in Directive 95/46/EC). Especially in the law enforcement sector these elaborations of the transparency principle are under pressure. It goes without saying that prior information to the data subject can undermine an investigation. Framework Decision 2008/977 contains a weak transparency regime, which is mainly to be determined by national law. This national law should comply with Article 8 ECHR. In its case law, the ECtHR has made clear in this context that lack of ‘live’ transparency should be compensated by clear and detailed rules to which the performance of secret investigations are subject.209 There should furthermore be additional guarantees in place. For instance, in Leander v Sweden, the ECtHR accepted a restriction of the right of access under Article 8(2), inter alia, because there was independent control.210 (e) Further Rights of the Data Subject

08.138 According to the Court of Justice in Rijkeboer, the right of access, as just discussed, is necessary to enable the data subject to exercise the other rights enshrined in Directive 95/46/EC or to instigate judicial remedies.211 In Article 8 of the Charter, only one of these other rights has been mentioned, namely 08.139 the right to have data rectified. Directive 95/46/EC adds to this the right to have the data erased or blocked when the processing does not comply with the provisions of the Directive.212 Moreover, the data subject has the right to object to the processing of his or her personal data at any time on compelling legitimate grounds.213 If the objection is justified, the processing may no longer include the data. Another right laid down in the Directive is the right not to be subject to automated 08.140 individual decisions.214 Decisions which have a legal effect for the data subject or significantly affect her or him may not be based solely on automated processing of data intended to evaluate certain personal aspects relating to the data subject, such as the performance at work, creditworthiness, reliability etc. In other words, the computer should not take over from a human being. The provision is relevant for the growing trend of profiling people. In the proposed Regulation the notion of ‘profiling’ is explicitly introduced. Although 08.141 no definition is provided, a separate provision states that every natural person shall have the right not to be subject to profiling, however, with some exceptions, for instance if the profiling is expressly authorised by a Union or Member State law which also lays down suitable measures to safeguard the data subject’s legitimate interests.215 As mentioned, the data subject has the right to obtain from the controller the notifi08.142 cation to third parties to whom the data have been disclosed of any rectification, erasure

209

See section C.I above and Weber and Saravia v Germany (n 71). Leander v Sweden (n 79). 211 Rijkeboer (n 198) [51]–[52]. The judicial remedies will be discussed in section V below. 212 See Art 12(b) of Directive 95/46/EC. 213 Art 14 of Directive 95/46/EC. 214 Art 15 of Directive 95/46/EC. 215 See Art 20 of the proposed Regulation. See also Art 9 of the proposed Directive for the law enforcement sector. 210

256

Herke Kranenborg

Art 8 – Protection of Personal Data

or blocking unless this proves impossible or involves a disproportionate effort.216 In the proposed Regulation this right has been developed into a ‘right to be forgotten’.217 The right to be forgotten, which was supposed to provide the data subject with a tool to avoid or remedy the spreading of personal data in the online environment, created controversy, especially before the final proposal was tabled.218 The provision foresees that the controller which has made the personal data public should take all reasonable steps to inform third parties which are processing such data, that a data subject requests them to erase any links to, or copy or replication of that personal data. In the current Internet environment the feasibility of this right could be questioned. (f) Independent Supervisory Authorities: Essential Components of Data Protection Article 8(3) of the Charter states that compliance with data protection rules shall be 08.143 subject to control by an independent authority. The requirement of oversight by an independent authority can also be found in Article 39 TEU and Article 16(2) TFEU. Article 8 is the only provision in the Charter which specifically requires oversight of the right by an independent authority. The idea that such supervisory authorities are actually necessary for the proper 08.144 functioning of the right has developed gradually. In Convention 108, the establishment of independent supervisory authorities was not foreseen. Only with the Additional Protocol 181 in 2001 was the provision of one or more authorities made obligatory for ensuring compliance with the national law giving effect to Convention 108.219 According to Recital 62 of Directive 95/46/EC, the existence of independent super- 08.145 visory authorities constitutes an ‘essential component’ of the protection of individuals with regard to the processing of personal data. This statement has twice been repeated by the Court of Justice in two rulings in which it had to rule on the alleged lack of independence of supervisory authorities in Germany (at Länder level) and Austria.220 In both cases the Court considered the existence of independent supervisory authorities an essential component of data protection. In the first ruling, Commission v Germany, reference was made only to Recital 62 of Directive 95/46/EC.221 In the second ruling, Commission v Austria, the Court did not directly refer to the recital, but linked the consideration to Article 28(1) of Directive 95/46/EC, Article 8(3) of the Charter and Article 16(2) TFEU.222 By doing so, the Court underlined that the consideration that independent supervisory authorities are an essential component of the right to data protection is not something that comes from the level of secondary law, but is part of primary EU law, including the Charter.

216

Art 12(c) of Directive 95/46/EC. Art 17 of the proposed Regulation. 218 The provision was put in stronger terms in the leaked draft version of the proposal. See Art 15 of the leaked version (n 139). 219 See Art 1(1) of the Additional Protocol 181. See also Art 25 of Framework Decision 2008/977/JHA. 220 Case C-518/07 Commission v Germany [2010] ECR I-1885 and Case C-614/10 Commission v Austria (CJEU, 16 October 2012). 221 Commission v Germany, ibid [23]. 222 Commission v Austria (n 220) [36]–[37]. 217

Herke Kranenborg

257

Part I – Commentary on the Articles of the EU Charter

08.146

In both cases the Commission questioned the independence of the supervisory authorities. In Germany it concerned the authorities at Länder level which supervised the processing of personal data outside the public sector. These authorities were subject to state scrutiny and therefore not independent from the public sector. However, according to the German government, the fact that these authorities were independent vis-àvis the actors they supervised, was sufficient.223 In the Austrian case the independence of the federal data protection authority was at stake. There were several practical links between the authority and the Federal Chancellery which the authority was supposed to supervise. However, in the Austrian law it was clearly stated that the Members of the authority were not bound by instructions of any kind in the performance of their duties.224 In Commission v Germany the Court presented a wide interpretation to the notion of 08.147 complete independence: [it] precludes not only any influence exercised by the supervised bodies, but also any directions or any other external influence, whether direct or indirect, which could call into question the performance by those authorities of their task.225

The Court added that the authorities ‘should remain above any suspicion of partiality’.226 In the German case, and also in the Austrian case, the situation did not fulfil these requirements. In Commission v Austria, the Court underlined that the wording ‘with complete independence’ should be given an autonomous interpretation, independent from the notion of independence explained in the Court’s case law under the preliminary rulings procedure.227 It follows from Article 28 of Directive 95/46/EC and Article 1(2) of Additional 08.149 Protocol 181 that supervisory authorities should have the power of investigation (eg to have access to the data) and intervention (eg ordering blocking, erasure or destruction of data) and should be able to engage in legal proceedings or bring violations of data protection rules to the attention of judicial authorities. Furthermore, supervisory authorities should hear claims lodged by any person or by an association representing that person. Next to their supervisory role, authorities should be consulted when administrative measures or regulation relating to data protection are drawn up. The way in which the supervisory authorities are set up in the different Member States shows a wide variety, not only in terms of independence, as discussed, but also in terms of nomination procedures, actual powers and tasks, and resources.228 08.148

223

Commission v Germany (n 220) [16]. Commission v Austria (n 220) [42]. 225 Commission v Germany (n 220) [30]. 226 Ibid [36]. 227 Commission v Austria (n 220) [40]. 228 See the Report of the Fundamental Rights Agency of May 2010 on the roles of national data protection authorities, to be found at http://fra.europa.eu/en/theme/data-protection-privacy. A third infringement case was pending at the moment of writing concerning the conditions for the dismissal of a person being president of a supervisory authority: Case C-288/12 Commission v Hungary. As a consequence of a change in the Hungarian Constitution, the Hungarian data protection ombudsman was replaced by a new data protection authority. The president of the data protection ombudsman was not reappointed as president of the new authority, while his term of office had not expired. The Commission argued that this was contrary to the requirement of independence. 224

258

Herke Kranenborg

Art 8 – Protection of Personal Data

As explained, all supervisory authorities of the EU Member States are grouped in a Working Party which advises the European Commission. This is based on Article 29 of Directive 95/46/EC, and therefore called the Article 29 Working Party. Also the EDPS, which is the supervisory body established on the basis of Regulation 45/2001 for the EU institutions and bodies, is member of the Article 29 Working Party.229 In the proposed Regulation on data protection the position of independent supervisory authorities is strengthened. A list of detailed requirements is provided in Articles 47 to 49, which should ensure the independence of the authorities in line with the ruling in Commission v Germany. New is the mandatory power for supervisory authorities to impose administrative sanctions.230 Since the 27 national laws on data protection are supposed to be replaced by a single Regulation, the proposal is to have a consistency mechanism in place. Supervisory authorities should cooperate with each other and the Commission through this mechanism. To this end, the Article 29 Working Party will be transformed into the European Data Protection Board (EDPB), whose secretariat will be provided by the EDPS. The EDPB will constitute the overarching body through which the consistent application of the new Regulation should be ensured. The particular role of the Commission in the consistency mechanism has been criticised.231 The possibility to directly intervene in a national situation, as provided for in Article 62(1)(a), is seen as prejudicing the independence of the data protection authorities.232

08.150

08.151

IV. Limitations and Derogations (a) Relationship between Articles 7, 8 and 52 Article 52 of the Charter addresses the possible limitations on the exercise of the rights and freedoms of the Charter. According to Article 52(1), any limitation must be provided for by law and respect the essence of the rights and freedoms. That a limitation should be provided for by law is in fact a repetition of the specification in Article 8(2) that the data processing, if not based on the consent of the person concerned, should have a basis in law. This is a bit peculiar: Article 52(1) states that the condition in Article 8(2) that data processing must be based on the consent or a legitimate basis laid down by law may be limited, but only if this is provided for by law (and complies with the other conditions of Article 52(1)). This particularity is caused by the fact that in the Charter, contrary to the ECHR, the limitation clause of the relative rights is not included in each individual provision, but detached from all and applied in a horizontal manner. Although this might work well for many rights enshrined in the Charter, such as the right to privacy in Article 7 of the Charter, it does not for the right to data protection. The right to data protection, as already referred to in section B.I, constitutes the heading of a set of rights and

229 See on the EDPS in greater details H Hijmans, ‘The European data protection supervisor: the institutions of the EC controlled by an independent authority’ [2006] Common Market Law Review 1313–42. 230 See Art 79 of the proposed Regulation. 231 See the EDPS Opinion of 7 March 2012 (n 17) pts 248–55 and Opinion 1/2012 of the Art 29 Working Party (n 17) p 20. 232 Ibid.

Herke Kranenborg

259

08.152

08.153

Part I – Commentary on the Articles of the EU Charter

obligations and limitations of these, which are put together as an elaborate system of checks and balances. Therefore, one cannot actually speak about a limitation of the right to data protection as such which could be justified under the conditions of Article 52(1). It seems that this point has been overlooked when the Charter was drafted. 08.154 Applying a general limitation clause as foreseen in Article 52(1) on the right to data protection as such would only work if the right would be construed as a right to informational self-determination, as described in section B.I above. Any processing of personal data without the consent of the data subject should then be justified in accordance with Article 52(1). However, this would disregard the difference between the right to privacy in Article 7 and the right to data protection in Article 8. Furthermore, as explained, it was not the idea to create a right to informational self-determination when a separate right to data protection was inserted in the Charter, which, as follows from the explanations, was moreover based on Directive 95/46/EC. 08.155 It is also due to this particular nature of the right to data protection that Article 8 ECHR and the way in which it has been interpreted by the ECtHR do not provide conclusive guidance on the meaning and scope of Article 8 of the Charter. In that respect, Article 52(3) of the Charter does not ‘remedy’ the particular relation between Article 8 and Article 52(1) of the Charter.233 (b) Point of View of the Court of Justice 08.156 The Court of Justice dealt with Articles 7, 8 and 52 of the Charter in the Schecke ruling.234 The case concerned the validity of EU law requiring the publication of names of recipients of agricultural funds. 08.157 As to the distinction between Articles 7 and 8, the Court’s approach is best illustrated in the concluding consideration of the preliminary observations: the right to respect for private life with regard to the processing of personal data, recognised by Article 7 and 8 of the Charter, concerns any information relating to an identified or identifiable individual … and the limitations which may lawfully be imposed on the right to the protection of personal data correspond to those tolerated in relation to Article 8 [ECHR].235

08.158 The Court took Articles 7 and 8 together and applied a classical fundamental rights approach to the right to data protection as applied by the ECtHR under Article 8 ECHR. In this respect, the Court referred to Article 52(3), but when actually assessing the matter the Court only concentrated on Article 52(1). The Court considered: Since the publication of data by name relating to the beneficiaries concerned and the precise amounts received by them from the [EU funds] constitutes an interference, as regards those beneficiaries, with the rights recognised by Articles 7 and 8 of the Charter, and since such processing of personal data is not based on the consent of those beneficiaries, it is necessary to examine whether the interference is justified having regard to Article 52(1) of the Charter.236

233 234 235 236

260

See also section C.I above. Volker and Markus Schecke (n 38). Ibid [52]. Ibid [64].

Herke Kranenborg

Art 8 – Protection of Personal Data

The Court referred to the consent of the beneficiaries but ignored the addition in Article 8(2) of the Charter that processing must be based on consent or some other legitimate basis laid down by law.237 The approach of the Court, taking Articles 7 and 8 of the Charter together and concentrating on the lack of consent of the beneficiaries for moving to an assessment under Article 52(1), comes close to an understanding of the right to data protection as a right of informational self-determination, which, as explained, would be contrary to the intention of the legislator. When assessing whether the publication fulfilled the conditions of Article 52(1), the Court did not include any secondary EU legislation on data protection in its analysis. Yet, reference could have been made to Directive 95/46/EC, and also to Regulation 45/2001, since the contested instruments were regulations adopted by the Commission and the Council.238 An analysis of these rules would have offered a possibility of explaining the particular relationship between Articles 7, 8 and 52 of the Charter. The Court could have acknowledged that the secondary legislation elaborates the specificities of the right to data protection, offering possibilities for processing which are consistent with the Charter, including Article 52. The situation could subsequently have been assessed under the secondary legislation, compliance with which ensures that data processing does not breach the right to privacy. Under Directive 95/46/EC, the legal ground for disclosing the data would be the necessity for compliance with a legal obligation (to be transparent) as provided for in Article 7(c). The necessity of the measure would furthermore have to be assessed in light of the data quality principle in Article 6 of the Directive which requires that data should be adequate, relevant and not excessive in relation to the purpose for which they are collected and further processed (see section D.III(a) above). The analysis to be made under the principle of necessity would in the end be similar to the current analysis in the Schecke ruling and would have led to the same (fully satisfactory) conclusion.239 By ignoring part of the text of Article 8 of the Charter and the relevant secondary legislation, and by assessing the matter under Article 52(1), the Court perhaps took a too fundamental approach. It might be that the Court felt more comfortable in staying close to the classical assessment of a justification of a limitation of the right to privacy, as developed by the ECtHR under Article 8 ECHR. However, by doing so, the Court disregarded the fact that the right to data protection in the Charter has a nature which is different from the right to privacy and goes beyond informational self-determination. In its later ASNEF ruling, the approach of the Court was more in the direction just explained. The Court recalled the first consideration quoted above, but instead of referring to the limitations which may lawfully be imposed on the right to the protection of personal data which correspond to those tolerated in relation to Article 8 ECHR, it considered: ‘it follows from Articles 8(2) and 52(1) of the Charter that, under certain conditions, limitations may be imposed on that right’.240 After that consideration, the Court turned to an analysis of Article 7(f) of Directive 95/46/EC. Of course, the Court was explicitly asked to explain the scope of this provision, and therefore had to

237

Earlier in the ruling, in para 49 the Court referred to both grounds for processing. Although this might raise another interesting issue, for the sake of clarity, Directive 95/46/EC is taken as point of reference. 239 Volker and Markus Schecke (n 38) [74]. 240 ASNEF and FECEMD (n 165) [42]. 238

Herke Kranenborg

261

08.159

08.160

08.161

08.162

08.163

Part I – Commentary on the Articles of the EU Charter

assess Directive 95/46/EC. But still it is noteworthy that the involvement of secondary legislation in the analysis let to the change in language as just described.241 08.164 In the Schwarz ruling, which concerned the conformity with Articles 7 and 8 of the Charter of the requirement in Council Regulation 2252/2004 to include fingerprints in passports and travel documents, the Court was a bit more explicit on the relation between Article 8(2) and Article 52(1) of the Charter.242 It first considered that the persons applying for passports cannot be deemed to have consented to that processing.243 Next, it assessed whether the processing of fingerprints could be justified on the basis of some other legitimate basis laid down by law, the requirement in Article 8(2) of the Charter.244 However, to see whether such was the case, the Court moved again to the classical assessment under Article 52(1) without any reference to the secondary legislation on data protection.245 (c) Exemptions and Derogations for the Freedom of Expression 08.165 Article 9 of Directive 95/46/EC is specifically dedicated to the freedom of expression. A strict application of the data protection rules could substantially limit the freedom of expression.246 This would do no justice to the equal importance of both fundamental rights as recognised in the Charter. Member States are allowed to provide for exemptions or derogations from several, but not all, chapters of Directive 95/46/EC, ‘if processing of personal data is carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression’. No exceptions and derogations are possible with regard to the chapter on judicial remedies, liability and sanctions.247 The Court of Justice dealt with this provision in Satamedia, which concerned the fur08.166 ther commercial distribution by newspaper or SMS of personal data about income taxes paid which was already made public by the government. Although Article 9 contains some limiting wording (‘solely for journalistic purposes’ and ‘only if they are necessary to’), the Court gave a very broad interpretation to the provision. It considered that the fact that the publication of data within the public domain is done for profit-making purposes does not preclude such publication being considered as an activity undertaken solely for journalistic purposes.248 Moreover, activities can be classified as journalistic if their object is the disclosure to the public of information, opinions or ideas, irrespective

241 In this respect, the following cases, which were still pending at the moment of writing, might be relevant as well: Case C-291/12 Schwarz, and Cases C-446/12 to C-449/12 Willems ao These cases concern the conformity with Arts 7 and 8 of the Charter of the requirement in Art 1(2) of Council Regulation 2252/2004, as amended by Regulation 444/2009 [2009] OJ L142/1, to include fingerprints in passports and travel documents. 242 See Schwarz (n 124). Similar questions were raised in Cases C-446/12 to C-449/12 Willems and Others (still pending). Council Regulation 2252/2004 [2004] LOJ 385/1 as amended by Regulation 444/2009 [2009] OJ L142/1. 243 Schwarz (n 124) [32]. 244 Ibid [33]. 245 Ibid [34]. 246 See the quote from AG Kokott referred to in n 39. 247 See c III of Directive 95/46/EC. 248 CJEU, Satamedia (n 40) [59].

262

Herke Kranenborg

Art 8 – Protection of Personal Data

of the medium which is used to transmit them.249 Member States are hereby left a wide margin of appreciation to reconcile both fundamental rights.

V. Remedies Whereas Convention 108 in Article 10 requires the establishment of appropriate sanctions and remedies for violations of provisions of national law giving effect to the basic principles of data protection, the secondary EU legislation is much more concrete and reflects what is required in Article 47 of the Charter. In Article 22 of Directive 95/46/EC it is stated that every person should have the right to a judicial remedy for any breach of the rights guaranteed to him or her by the national law implementing the Directive.250 For the EU level, it is stated in Article 32(1) of Regulation 45/2001 that the Court of Justice has jurisdiction to hear all disputes which relate to the provisions of the Regulation, including claims for damages.251 Without prejudice to any judicial remedies, data subjects may also rely on administrative remedies, for instance before the supervisory authority. Article 22 of Directive 95/46/EC refers to any administrative remedy for which provision may be made, inter alia before the supervisory authority. In this respect, Regulation 45/2001 is more explicit where it states, in Article 32(2), that any data subject may lodge a complaint with the EDPS if he or she considers that his or her data protection rights have been infringed by an EU institution or body. Directive 95/46/EC is rather general about the action to be taken by the national supervisory authority upon a complaint. This, together with the wide variety in the powers and resources granted to the supervisory authorities, has led to different approaches in the Member States.252 The Directive does not entail a clear obligation on the supervisory authority to actually investigate a complaint. In Article 28(4) it is stated that each supervisory authority shall hear claims concerning the protection of the data subject rights in regard to the processing of personal data. According to the same provision, the person concerned must be informed about the outcome of the claim. Again, Regulation 45/2001 is more explicit. The EDPS shall hear and investigate complaints, and inform the data subject of the outcome within a reasonable period.253 Complaints of unfair data processing can in many cases also be brought before the national Ombudsman. In these situations, an overlap exists between the competences of both the data protection supervisory authority and the Ombudsman. At EU level, the EDPS and the European Ombudsman have signed a Memorandum of Understanding in order to avoid duplication and inconsistent application of the data protection rules.254 In the proposed Regulation, the chapter on remedies, liabilities and sanctions is further elaborated.255 The chapter starts with granting every data subject a right to complaint 249

Ibid [61]. See for a similar provision, Art 20 of Framework Decision 2008/977/JHA. 251 A claim for damage was awarded by the General Court in Case T-259/03 Nikolaou v Commission [2007] ECR II-00099. 252 See also section D.III(f) above. 253 See Art 46(a) of Regulation 45/2001. 254 [2007] OJ C27/21. 255 See c VIII of the proposed Regulation (n 15). 250

Herke Kranenborg

263

08.167

08.168

08.169

08.170

08.171

Part I – Commentary on the Articles of the EU Charter

with a supervisory authority.256 In the provision listing the duties of the supervisory authority, it is laid down that the authority shall hear and, ‘to the extent appropriate’, investigate the matter and inform the data subject within a reasonable period.257 Supervisory authorities should furthermore provide electronic complaint forms.258 08.172 A remarkable proposal in relation to remedies is that a data subject who is concerned by a decision of a supervisory authority in another Member State may request the supervisory authority in his or her own Member State to bring proceedings on his or her behalf against the competent supervisory authority in that other Member State.259 The Article 29 Working Party as well as the EDPS were opposed to this proposal, arguing that it could have ‘counterproductive consequences in terms of enhancing trust and cooperation between supervisory authorities’.260

E. Evaluation 08.173 With the ongoing technological developments and the increasing use of information (communication) technologies throughout the private and public sectors, sound and effective protection of personal data is becoming more and more important. The cross-border flow of information, including personal data, has exploded in the past two decades, and calls for an international approach on how to protect such data. Differences between states in the way in which data is protected might seriously hamper the new economy from further expanding. At the level of the EU, the growing importance of the right to data protection and the need to having adequate, harmonised rules on data protection has clearly been reflected in the Lisbon Treaty, with the introduction of specific provisions on data protection in Article 16 TFEU and Article 39 TEU. The EU now has competence to adopt rules on data protection in all EU policy areas. The self-standing legal basis for EU legislation on data protection in Article 16 TFEU 08.174 offers the opportunity to create an overarching framework for data protection which is not linked to particular EU policy areas. The current patchwork of data protection legislation could be simplified and made more comprehensive. However, as follows from the proposals tabled by the Commission in January 2012, such an overarching approach is not envisaged. Therefore, it seems that the traces of the former pillar structure will remain visible in this area for the next few decades. It will in any event already be difficult enough to have the two proposals adopted. At 08.175 the moment of writing, the proposed Directive on data protection for the law enforcement sector seems to be heading towards a brick wall in the Council. The idea that domestic processing also would be covered by the EU legislation faces great opposition. The proposed Regulation clearly triggers more enthusiasm. However, there are some important obstacles to overcome. Opinions are divided on the choice for a Regulation

256

See Art 73(1) of the proposed Regulation. See Art 52(1)(b) of the proposed Regulation. 258 See Art 52(4) of the proposed Regulation. 259 See Art 74(4) of the proposed Regulation. 260 EDPS opinion of 7 March 2012 (n 17) pt 266; see also Opinion 1/2012 of the Art 29 Working Party (n 17) p 25. 257

264

Herke Kranenborg

Art 8 – Protection of Personal Data

instead of a Directive, on how to further reduce the administrative burden created by the data protection rules, on the fact that the proposed Regulation covers both private and public sector data processing and on the role of the European Data Protection Board, to mention just a few. Both proposals constitute a huge legislative project, which will take political will from all sides to actually be successful. Yet, everybody seems to agree in general that updated rules on data protection are needed. Amidst all this, the right to data protection, as enshrined in Article 8 of the Charter, has its own role to play. As explained, the right to data protection constitutes the heading of a set of rights and obligations and limitations to these which are put together as an elaborated system of checks and balances. This makes the right to data protection different from the right to privacy, and gives it a nature which goes beyond informational self-determination. Several key elements of the system of checks and balances are reflected in Article 8 of the Charter. Within the current patchwork of secondary legislation existing particularly in the area of police and judicial cooperation in criminal matters, Article 8 serves as assurance that at least the key elements contained in it will be upheld.

Herke Kranenborg

265

08.176

Article 9 Article 9 Right to Marry and Right to Found a Family The right to marry and to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.

Text of Explanatory Note on Article 9 This Article is based on Article 12 of the ECHR, which reads as follows: ‘Men and women of marriageable age have the right to marry and to found a family according to the national laws governing the exercising of this right.’ The wording of the Article has been modernised to cover cases in which national legislation recognises arrangements other than marriage for founding a family. This Article neither prohibits nor imposes the granting of the status of marriage to unions between people of the same sex. This right is thus similar to that afforded by the ECHR, but its scope may be wider when national legislation so provides.

Select Bibliography S Choudhry and J Herring, European Human Rights and Family Law (Oxford, Hart Publishing, 2010). TK Hervey, ‘The Right to Health in European Union Law’, in TK Hervey and J Kenner (eds), Economic and Social Rights Under the EU Charter of Fundamental Rights: A Legal Perspective (Oxford, Hart Publishing, 2003). ——, ‘We Don’t See a Connection: “The Right to Health” in the EU Charter and European Social Charter’, in G de Búrca and B de Witte (eds), Social Rights in Europe (Oxford, Oxford University Press, 2005). —— and J McHale, Health Law and the European Union (Cambridge, Cambridge University Press, 2004). J McHale, ‘Fundamental Rights and Health Care’, in E Mossialis et al, Health Systems Governance in Europe, European Observatory on Health Systems and Policies (Cambridge, Cambridge University Press, 2010). H Stalford, Children and the European Union: Rights, Welfare and Accountability (Oxford, Hart Publishing, 2012).

A. Field of Application of Article 9 Marriage and the formation of a family are areas which are without a specific com- 09.01 petence in EU law. However, as with other areas concerning family life,1 this has not

1 See the chapter on Art 7 (family life) for a comprehensive review of the development of a European Union family law and policy.

Part I – Commentary on the Articles of the EU Charter

prevented an indirect development of these concepts within areas of other relevant and often overlapping competences. There are three such areas which have had particular relevance to the right to marry and found a family. 09.02 The first area is equal treatment and freedom from discrimination. The principle of equal treatment constitutes a fundamental value of the European Union, and in pursuance of this Article 19 of the Treaty on the Functioning of the European Union, introduced as Article 13 EC by the Treaty of Amsterdam, extended the grounds on which discrimination is prohibited to sex, racial or ethnic origin, religion or belief, disability, age and sexual orientation. Consequently, two new EU Directives were enacted in the area of non-discrimination: the Racial Equality Directive2 and the Employment Equality Directive.3 However, protection against discrimination on grounds of sexual orientation is only provided by the Employment Equality Directive in the area of employment and work.4 Steps have also been taken with regard to discrimination based on gender identity; the revision of the 1976 Equal Treatment Directive in 20025 made it clear that discrimination linked to a transgender person’s identity or to the process of gender reassignment would henceforth be in breach of that Directive, and the adoption of the so-called ‘Recast Directive’ (2006/54/EC)6 consolidated these provisions further by taking into account the Court of Justice of the European Union’s jurisprudence on gender identity, which affirmed that equal treatment legislation in matters of employment and occupation, on equal pay and social security benefits, is applicable to transgender people. In addition, the Court pronounced that equal treatment for transgender people has to be applied on the basis of the acquired gender after a gender reassignment, and not the sex given at birth.7 09.03 Future action has also been provided for; Article 10 TFEU states that in ‘defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.’ To date, there have been a number of policy and funding commitments within the field. First, there was the Community Action Programme

2 Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180. 3 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303. The Directive prohibits discrimination on grounds of religion and belief, age, disability and sexual orientation, and covers the fields of employment and occupation, vocational training, and membership of employer and employee organisations. 4 It is nonetheless very significant in that it effectively reversed the consequences of the decision of the European Court of Justice that EC law did not prohibit such discrimination on the grounds that sexual orientation discrimination was outside EU competence (see Case C-249/96 Grant v South-West Trains [1998] ECR I-621. 5 See Recital 3 of Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (text with EEA relevance) [2002] OJ L269/15–20 which introduced an explicit reference to discrimination based on ‘gender reassignment’. This is the first explicit mention of gender reassignment by an EU Directive, although it does not feature in the operative part of the legislation. 6 Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation [2006] OJ L204/23–36. 7 See Case C-13/94 P v S and Cornwall County Council [1994] ECR I-02143; Case C-117/01 KB v National Health Service Pensions Agency [2004] ECR I-541; Case C-423/04 Sarah Margaret Richards v Secretary of State for Work and Pensions [2006] ECR I-3585.

268

Shazia Choudhry

Art 9 – Right to Marry and Right to Found a Family

to Combat Discrimination,8 involving the expenditure of EUR100 million over the period 2001 to 2006, to fight discrimination in a number of areas, including sexual orientation. Following on from this, the Commission’s 2008 Communication on ‘Non-discrimination and equal opportunities: A renewed commitment’9 established the framework for the Commission to carry out different activities aiming to fight against discrimination10 on different grounds, including sexual orientation. In pursuance of this it has launched the PROGRESS programme11 which will run from 2007 to 2013 with a budget of €743 million. The aim of the programme is to provide financial support for the implementation of the European Union’s objectives in the field of employment and social affairs, diversity and combating discrimination is one of the five fields of specified activity. On 2 July 2008, the European Commission proposed a Directive12 that would ban discrimination on the grounds of age, disability, religion or belief and sexual orientation in all areas of EU competence. The proposed Directive, if adopted, will extend protection from discrimination to the areas of social protection, social advantages, and access to goods and services and would eliminate the hierarchy of rights that currently exists in the EU by giving the listed grounds the same protections guaranteed under the Race Directive. In addition, the Charter of Fundamental Rights of the European Union, as enacted by the Treaty of Lisbon on 1 December 2009, includes in Article 21(1) a general prohibition of ‘any discrimination based on any ground, such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation’. Finally, in terms of gender identity, the European Parliament adopted a landmark resolution in June 2010, the ‘Figueiredo report’,13 calling for an inclusive EU gender equality strategy, specifically addressing issues linked to gender identity. The second area of application is the cross-border recognition of marriages, partner- 09.04 ships and parenthood (adoption, fostering and parental responsibility) and the impact this has upon the free movement of EU citizens and third country nationals in addition to general EU immigration and asylum policy. The most significant legislative instrument

8 Council Decision 2000/750/EC establishing a Community action programme to combat discrimination (2001 to 2006) [2000] OJ L303. 9 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions—Non-discrimination and equal opportunities: A renewed commitment (SEC(2008) 2172)/COM (2008) 0420. 10 The Commission is using the ‘Non-discrimination and diversity’ strand of the PROGRESS programme to finance projects carried out in the 27 EU countries and other participating countries (eg Turkey, Serbia, FYROM, and Croatia) (now 28 countries, with Croatia joining the EU in July 2013). Its aim is to support national authorities in: developing their national policy to combat discrimination and promote equality beyond legislation; fostering the dissemination of information on EU and national policy and legislation in the anti-discrimination field; identifying best practices which may be transferable to other participating countries and implementing more effectively their legislation on non-discrimination adopted following the Racial Equality Directive and the Employment Framework Directive. 11 Decision No 1672/2006/EC establishing a Community Programme for Employment and Social Solidarity—PROGRESS [2006] OJ L315. (See amending act(s)). 12 Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation, COM (2008) 426 final. 13 European Parliament resolution of 17 June 2010 on assessment of the results of the 2006–2010 Roadmap for Equality between women and men, and forward-looking recommendations (2009/2242(INI)).

Shazia Choudhry

269

Part I – Commentary on the Articles of the EU Charter

with regard to cross-border recognition is Brussels II Revised,14 which regulates the jurisdiction and recognition and enforcement of divorce and parental responsibility judgments, and also provides additional measures to tackle parental child abduction between the Member States. Brussels II Revised also incorporates specific reference to children’s rights15 and the need for decisions to be taken in the child’s best interests and for the child to be heard in proceedings which affect them.16 Since Brussels II Revised, two further steps have been taken: a Regulation governing the cross-border enforcement of maintenance obligations arising from family relationships, including maintenance for children was adopted in 200917 and the adoption of a Directive to encourage crossborder mediation of disputes.18 Both instruments will have a significant impact upon families caught in a cross-border dispute, although it should be remembered that it is still the national court that takes the substantive decision in relation to the child’s future welfare and the interaction between national family law and European law. 09.05 There are also a number of legislative instruments of relevance within the fields of migration, immigration and asylum. These directives and the rights that are bestowed by them are essentially categorised by the residential status of the person within EU law.19 It is within these Directives that we find reference to certain conditions which have been implied into the right to marry by a range of national and international legal sources, despite the lack of reference to them within Article 9 of the Charter or Article 12 of the ECHR. These conditions refer to two main areas of concern. The first is the need to ensure that marriage is only entered into by parties who have achieved a sufficient level of physical and emotional maturity. The second is the need to ensure that both parties have given their full and free consent to the marriage. These issues have been a matter of international concern for some time but have become increasingly relevant as part of the fight against the rise in human trafficking, particularly of girls and women.20 As a result, Article 4 of the Council Directive 2003/86/EC on the Right to Family Reunification states that Member States may require ‘in order to prevent forced marriages’ and to ‘ensure better integration’ the sponsor and his/her spouse to be of a ‘minimum age’, before the spouse is ‘able to join him/her’. Sham marriages, which are entered into solely for immigration purposes are also a concern. Accordingly, Article 16 of the Family Reunification Directive states that Member States may reject an application for entry and residence for the purpose of family reunification, or withdraw or refuse to renew the family member’s residence permits, where it is shown that: ‘the

14 Regulation 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility [2003] OJ L338. 15 See H Stalford, ‘Brussels II and Beyond: A Better Deal for Children in the European Union?’, in K BoeleWoeki (ed), Perspectives for the Unification and Harmonisation of Family Law in Europe (Antwerp, Intersentia, 2003). 16 In the rules on jurisdiction under Art 12; and in relation to international child abduction under Art 11(2). 17 Regulation 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations [2009] OJ L7/1. 18 Directive 2008/52 on certain aspects of mediation in civil and commercial matters OJ L136/3. 19 See the chapter on Art 7 (family life) for a full discussion of this area and the relevant Directives. 20 The EU has taken significant action within this area. See its pages at http://europa.eu/legislation_ summaries/justice_freedom_security/fight_against_trafficking_in_human_beings/ for further details.

270

Shazia Choudhry

Art 9 – Right to Marry and Right to Found a Family

marriage, partnership or adoption was contracted for the sole purpose of enabling the person concerned to enter or reside in a Member State’.21 The third area of application is the regulation of health services, which will be of 09.06 particular relevance to the right to found a family in terms of access to reproductive treatment and services. The primary responsibility for the organisation and delivery of healthcare is to a large extent left to each Member State. However, the scope of operation of the European Union in the area of health has been significantly expanded by the adoption of the Lisbon Treaty, which contains a number of provisions which form the legal basis for both current and future EU action in this area. Article 4 of the TFEU sets out the areas in which the EU shares competence with Member States; one such area is ‘common safety concerns in public health matters’. Article 6 TFEU sets out the areas in which the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States; one such area is the ‘protection and improvement of human health’. Finally, Articles 9 and 168 TFEU state that the EU shall take into account the protection of human health when defining and implementing all of its policies and activities and provide the legal scope for protecting people from health threats and disease, for promoting healthy lifestyles and helping national authorities in the European Union cooperate on health issues. In terms of policy, the European Union’s strategy for protecting and improving 09.07 human health is chiefly implemented through the Commission’s health programmes— currently the Programme of Community action22 in the field of public health 2008–13 and followed the first Programme of Community action in the field of public health (2003–08) which financed over 300 projects and other actions. In terms of future action, a legislative proposal for a new Health for Growth Programme23 was adopted by the European Commission on 9 November 2011. The new programme will run from 2014 until 2020, with a proposed budget of €446 million, and aims to support and complement the work of Member States to achieve the following four objectives: developing innovative and sustainable health systems; increasing access to better and safer healthcare for citizens; promoting health and preventing disease; and protecting citizens from cross-border health threats. Public health is a wide-ranging area which, as the EU Portal on Public Health 09.08 demonstrates,24 covers a range of issues and categories of persons. In terms of the right to found a family, however, it is EU action concerning cross-border health care services which is of particular relevance. There are two main legislative bases which require consideration. The first is with regard to the coordination of social security. The EU rules, contained in Regulations (EC) 883/200425 and (EC) 987/200926 contain a system of coordination for persons who move within the EU. The rules were extended in 2003 to cover all third-country nationals legally resident in the EU and ‘in a situation which is not confined in all respects within a single Member State’. Further, Regulation (EU)

21 22 23 24 25 26

See Case C-109/01 Hacene Akrich [2003] ECR I-9607 [57]. Available at http://ec.europa.eu/health/programme/policy/2008–2013/index_en.htm. COM (2011) 709 final—http://ec.europa.eu/health/programme/docs/prop_prog2014_en.pdf. http://ec.europa.eu/health-eu/index_en.htm. [2004] OJ L166. [2009] OJ L284.

Shazia Choudhry

271

Part I – Commentary on the Articles of the EU Charter

1231/201027 provides in effect a ‘bridge’ that allows all third-country nationals legally resident in one EU country, but featuring a cross-border element of some sort with another EU country, to benefit from the EU coordination rules. This covers practical issues such as enjoying the same rights as EU citizens to receive all necessary medical care during a temporary stay in another Member State (an entitlement evidenced by the European Health Insurance Card) which may be relevant for those citizens who require medical treatment and services when accessing reproductive services abroad. 09.09 The second basis is the combined effect of the freedom to provide services (Art 56 of the TFEU) and the freedom of movement (Art 48 of the TFEU) within the EU. These articles formed the basis of a number of successful attempts28 at the CJEU at enforcing the right of patients to travel abroad to access healthcare services, which led to the passage of Directive 2011/24/EU29 on the application of patients’ rights in cross-border healthcare. The Directive applies to individual patients who decide to seek healthcare in a Member State other than the Member State of affiliation. It does not apply, however, to services in the field of long-term care; allocation of and access to organs for the purpose of organ transplants and public vaccination programmes against infectious diseases. Member States are under a number of obligations under the Directive. First, to ensure that the healthcare providers on their territory apply the same scale of fees for healthcare for patients from other Member States, as for domestic patients in a comparable medical situation.30 Second, the Member State of affiliation must ensure the costs incurred by an insured person who receives cross-border healthcare are reimbursed, if the healthcare in question is among the benefits to which the insured person is entitled in the Member State of affiliation.31 Third, the Member State of affiliation can determine the healthcare for which an insured person is entitled to assumption of costs and the level of assumption of those costs, regardless of where the healthcare is provided.32 Finally, the Member State of affiliation can also prescribe a list of the categories of healthcare that require prior authorisation of the cross-border treatment.33 Member States must adopt the necessary laws, regulations and administrative provisions by 25 October 2013. 09.10 Accessing medical treatment and services for reproduction across the EU will also raise issues concerning the free movement of goods, notably the movement of cells and tissues. This has also necessitated legislation in order to protect public health and to prevent the transmission of infectious diseases by human cells and tissues

27 [2010] OJ L344/1. The United Kingdom continues to be bound by and subject to the application of the previous Regulation (EC) 859/2003. Denmark is not bound by or subject to the application of Regulation (EU) 1231/2010, nor of Regulation (EC) 859/2003. The EEA states and Switzerland do not apply either Regulation. 28 Case C-158/96 Raymond Kohll v Union des caisses de maladie (Kohll) [1998] ECR I-1931; Case C-120/95 Nicolas Decker v Caisse de maladie des employés privés (Decker) [1998] ECR I-1831; Case C-157/99 BSM Geraets-Smits v Stichting Ziekenfonds VGZ and HTM Peerbooms v Stichting CZ Groep Zorgverzekeringen (Smits and Peerbooms) [2001] ECR I-5473; Case C-385/99 VG Müller-Fauré v Onderlinge Waarborgmaatschappij OZ Zorgverzekeringen UA and EEM van Riet v Onderlinge Waarborgmaatschappij ZAO Zorgverzekeringen (MüllerFauré) [2003] ECR I-4509; Case C-372/04, The Queen, ex p Yvonne Watts v Bedford Primary Care Trust and Secretary of State for Health [2006] ECR I-4325. 29 Directive 2011/24/EU on the application of patients’ rights in cross-border healthcare [2011] L88/45. 30 Art 4, para 4. 31 Art 7, para 1. 32 Art 7, para 3. 33 Art 8.

272

Shazia Choudhry

Art 9 – Right to Marry and Right to Found a Family

used for therapeutic purposes. The European Union Tissues and Cells Directives (EUTCD) introduced common safety and quality standards for human tissues and cells across the European Union. The purpose of the Directives was to facilitate safer and easier exchange of tissues and cells (including human eggs and sperm) between Member States and to improve safety standards for European citizens. The European Tissues and Cells Directive or the Parent Directive (Directive 2004/23/EC)34 concerns standards for donation, procurement and testing, processing, preservation, storage and distribution. The First Technical Directive (Directive 2006/17/EC)35 covers donation, procurement and testing. The Second Technical Directive (Directive 2006/86/EC)36 covers standards for traceability, notification of serious adverse reactions and events, and requirements for coding processing, preservation, storage and distribution.

B. Interrelationship of Article 9 with Other Provisions of the Charter The reference to marriage and the founding of family within Article 9 is without a spe- 09.11 cific context and as such has the potential to apply to any situation within the scope of EU competence which impacts upon these areas. There will, however, be a number of other Charter provisions which will overlap and interact with Article 9. In terms of the right to marry the most obvious is Article 7, which concerns the right to private and family life. This is because its equivalent under the ECHR, Article 8, has been claimed in addition and in conjunction with the right to marry under Article 12 ECHR. The concepts of both private and family life as developed by the ECtHR have thus been of particular relevance to transgender and same-sex individuals seeking the right not only to marry but also to preserve their rights of privacy and family life—to a mixed degree of success, depending upon the context of the claims.37 There are also a number of other articles within the Charter which will carry additional weight in the making of such arguments: the right to dignity under Article 1, the right to equality under the law (Art 20), the right to equality between men and women under Article 23 and the right to freedom from discrimination under Article 22. In terms of the right to found a family, Article 7 will again be of particular signifi- 09.12 cance, given that this right includes areas of the law concerning procreation and reproductive rights as well as adoption. Claims made concerning the ability to adopt will also draw in Article 24, which concerns the rights of the child, who will also have a separate claim to family life under Article 7. Here, a potential conflict may arise between the

34 Directive 2004/23/EC on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells [2004] OJ L102/48. 35 Directive 2006/17/EC implementing Directive 2004/23/EC as regards certain technical requirements for the donation, procurement and testing of human tissues and cells [2006] OJ L38/40. 36 Directive 2006/86/EC implementing Directive 2004/23/EC as regards traceability requirements, notification of serious adverse reactions and events and certain technical requirements for the coding, processing, preservation, storage and distribution of human tissues and cells [2006] OJ L294/32. 37 Claims by transgender applicants have been successful with regard to the right to marry, but less so with regards to the parenting aspect of family life. Similarly, claims by same-sex applicants have been more successful under the privacy elements of Art 8 of the ECHR than the family life aspect.

Shazia Choudhry

273

Part I – Commentary on the Articles of the EU Charter

interests of the child and that of the state which must ensure that children are placed for adoption with appropriate adoptive parents. The interpretation of ‘appropriate’ within this context has resulted in a number of conflicts in some Member States, where same-sex and single parents have been deemed to be unsuitable candidates for adoption. Additional claims by these individuals may also be made under Article 1 (dignity) and Article 21 (non-discrimination). Claims made concerning reproductive rights may also engage Article 3 (right to integrity), Article 35 (right to healthcare) and Article 45 (freedom of movement and residence). As with the right to marry, Strasbourg jurisprudence in relation to the corresponding articles under the ECHR (particularly Art 8) will be of particular relevance.

C. Sources of Article 24 Rights I. ECHR 09.13 The Explanations to the Charter state that Article 9 is based upon Article 12 of the ECHR, which reads as follows: ‘Men and women of marriageable age have the right to marry and to found a family according to the national laws governing the exercising of this right.’ 09.14 The Explanations go on to state that the wording of the article has been modernised to cover cases in which national legislation recognises arrangements other than marriage for founding a family. Specifically, Article 9 neither prohibits nor imposes the granting of the status of marriage to unions between people of the same sex. In addition, by its use of the wording ‘these rights’, Article 9 of the Charter approaches the rights contained—the right to found a family and the right to marry—as two different and separate rights, which implies that a causal connection between the two is not required. These rights are thus similar to that afforded by the ECHR, but their scope may be wider when national legislation so provides. However, it is also clear from the wording of Article 52(3) of the Charter38 that the principles established by the ECtHR in relation to the corresponding ECHR article: Article 12 will serve as a guide to the minimum level of protection that can be realised. Article 12 secures the fundamental right of a man and woman to marry and to found 09.15 a family, however, the right to divorce cannot be derived from it.39 The terms of the article also makes it clear that the right is subject to the national laws of the Contracting States. This is not to say, however, that the right will be subject to any national law. The ECtHR has held on a number of occasions that any limitations set by national laws must not restrict or reduce the right in such a way or to such an extent that the very essence of

38 Which sets out that the meaning and scope of Charter rights are the same as those of the corresponding article of the ECHR. 39 Johnston v Ireland (1987) 9 EHRR 203 [52], where the Court concluded that the travaux préparatoires disclosed no intention to include in Art 12 any guarantee of a right to have the ties of marriage dissolved by divorce.

274

Shazia Choudhry

Art 9 – Right to Marry and Right to Found a Family

the right is impaired.40 The role of national law is therefore to ‘govern the exercise of the right’41 and this will include rules relating to the formalities of marriage, such as notice and licensing and more substantive rules on matters such as capacity, consanguinity and consent. National law may also introduce prohibitions on the basis that they are necessary to protect the interests of the wider society such as the prohibition of bigamous and polygamous marriages. Any such restrictions must, however, be in pursuit of a legitimate aim and must be proportionate; the very essence of the right must be retained. Thus, in B v UK42 the Court held that where an applicant could only exercise her right to marry her father-in-law by the passage of a private Act of Parliament, the impediment placed on such marriages served no useful purpose of public policy. The inconsistency between the stated aims of the incapacity and the waiver applied in some cases not only undermined the rationality and logic of the measure, but also served to reduce the significance that the Court would otherwise attach to the legislature’s consideration of the matter.43 The Court has also made it clear that any temporary prohibitions upon the right to marry, even if the legitimate aim being advanced is to protect the institution of marriage, will constitute a breach of the right. In F v Switzerland,44 a three-year prohibition on the applicant’s ability to remarry was thus determined to have affected the very essence of the right and was therefore held to be disproportionate to the legitimate aim being pursued. The question to be asked in any claim brought under Article 12 is therefore, whether 09.16 the alleged restriction restricts or reduces the right in such a way or to such an extent that the very essence of the right is impaired, so as to be disproportionate to any legitimate aim pursued. Before answering this question, however, the Court, will first determine the extent, if any, of the margin of appreciation that it is to apply. The Court has often acknowledged that exercising the right to marry will often engage issues of social and legal policy and has indicated that it will be slow to intervene where the reason for introducing the restriction is justified on these grounds. It has also stated that ‘given the sensitive moral choices concerned and the importance to be attached in particular to the protection of children and the fostering of secure family environments’, it ‘must not rush to substitute its own judgment in place of the authorities who are best placed to assess and respond to the needs of society’.45 The application of these principles by the ECtHR is evidenced in a number of different areas which will be examined in later sections.

II. Council of Europe Treaties There are a number of Conventions which are relevant to the right to marry and found 09.17 a family. First, there is the European Convention on Social and Medical Assistance,46

40

Rees v the United Kingdom (1987) 9 EHRR 56 [50]; F v Switzerland (1988) 10 EHRR 411 [32]. Hamer v UK (1979) 4 EHRR 139 [60]. 42 B v UK (2005) 42 EHRR 195. 43 Ibid [40]. 44 F v Switzerland (1987) ECHR 32. 45 B and L v UK (2006) 42 EHRR 11. 46 Opened for signature on 11 December 1953 and entered into force 1 July 1954. Ratified by Belgium, Denmark, Estonia, France, Germany, Greece, Iceland, Ireland, Italy, Luxembourg, Malta, Netherlands, Norway, Portugal, Spain, Sweden, Turkey and the United Kingdom. 41

Shazia Choudhry

275

Part I – Commentary on the Articles of the EU Charter

which may be of assistance to those seeking fertility and pregnancy-related treatment. Under this Convention, parties undertake to ensure that the nationals of other parties, who are lawfully present in their territory and who are without sufficient resources, are entitled to the same social and medical assistance as their own nationals. A further Protocol47 opened in Strasbourg for signature by the Members of the Council of Europe who have signed the principal agreement extended the benefit of the provisions of the Convention to refugees. 09.18 In terms of adoption, the Convention on the Adoption of Children48 ensures that national law on the protection of children applies not only to adoptions of children from the parties, but also to those of children from other states, and contains a core of essential provisions on adoption practice which each party undertakes to incorporate in its legislation, and a list of supplementary provisions to which parties are free to give effect. Thus, under the Convention’s essential provisions, adoption must be granted by a judicial or administrative authority, the decision to authorise the adoption of a child must be freely accepted by the parents and the adoption must be in the interest of the child. Further, the Convention on the Adoption of Children (Revised)49 was created in order to take account of social and legal developments and to ensure that the existing Convention (outlined earlier) is in keeping with the European Convention on Human Rights. Significantly, the Convention is also extended to include heterosexual unmarried couples who have entered into a registered partnership in states which recognise that institution and leaves states free to extend adoptions to homosexual couples and samesex couples living together in a stable relationship. In terms of marriage, in 2005 the Council of Europe adopted a resolution50 on forced 09.19 marriages and child marriages. The resolution defines forced marriage as the ‘union of two persons at least one of whom has not given their full and free consent to the marriage’,51 and child marriage as the ‘union of two persons at least one of whom is under 18 years of age’.52 It urges states to ratify relevant international treaties, comply with the Council of Europe Committee of Ministers’ Recommendation (2002) on the protection of women against violence, set the minimum age for marriage at 18 years, and consider criminalising acts of forced marriage. Although not yet in force, the new landmark Convention on preventing and combating violence against women and domestic violence53 is a further illustration of the Council’s commitment to combating two issues of particular relevance to the rights contained in Article 9 of the Charter.

47

ETS No 014A. Open for signature by the Member States of the Council of Europe, in Strasbourg, on 24 April 1967. Entry into force: 26 April 1968. It has been ratified by Austria, Czech Republic, Denmark, Germany, Greece, Ireland, Italy, Latvia, Liechtenstein, Malta, Norway, Poland, Portugal, Romania, Sweden, Switzerland, the Former Yugoslav Republic of Macedonia and the UK. 49 Open for signature by the Member States of the Council of Europe and the non-Member States which have participated in its elaboration, in Strasbourg, on 27 November 2008. Entry into force: 1 September 2011. Ratified by Denmark, Finland, Netherlands, Norway, Romania, Spain and the Ukraine. 50 Resolution 1468(2005). 51 Ibid para 4. 52 Ibid para 7. 53 Open for signature by the Member States of the Council of Europe, the non-Member States which have participated in its elaboration and the European Union, in Istanbul on 11 May 2011. In order to enter into force the Convention requires 10 ratifications, including at least eight Member States of the Council of Europe. So far the following Member States have ratified it: Albania, Italy, Montenegro, Portugal and Turkey. 48

276

Shazia Choudhry

Art 9 – Right to Marry and Right to Found a Family

Article 37 of the Convention requires parties to take the necessary legislative or other measures to ensure that the intentional conduct of forcing an adult or a child to enter into a marriage is criminalised and to ensure that the intentional conduct of luring an adult or a child to the territory of a party or state other than the one she or he resides in with the purpose of forcing this adult or child to enter into a marriage is also criminalised. Article 39 requires parties to take the necessary legislative or other measures to ensure that the following intentional conducts are criminalised: (a) performing an abortion on a woman without her prior and informed consent; (b) performing surgery which has the purpose or effect of terminating a woman’s capacity to naturally reproduce without her prior and informed consent or understanding of the procedure.

III. UN Treaties International law recognises the fact that the family plays an essential and central role 09.20 in human society. The family is perceived to be ‘the natural and fundamental group unit of society and is entitled to protection by society and the State’,54 and therefore the right of all to marry and found a family is protected in human rights law. However, perhaps in recognition of the many diverse forms of families and marriages that exist, a particular form of family unit has not been specified within international human rights law. The right of same-sex couples to marry can, nonetheless, be implied from a number of provisions concerning the right to marry and have a family, the right to equality and freedom from discrimination. Article 16 of the Universal Declaration of Human Rights55 (UDHR) upholds family as the natural and fundamental unit in society and recognises the right to equality and non-discrimination (Art 2). It also establishes the right of men and women to marry and found a family; their equal rights as to the marriage, and that consent to marriage should be freely given. As a resolution, the UDHR, it is not itself formally legally binding, however, it has established important principles and values which have been elaborated in later legally binding UN treaties, recommendations and resolutions.56 This includes Article 23(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR),57 which recognises the ‘right of men and women of marriageable age to marry and found a family.’ Furthermore, the right to equality and non-discrimination is a cross-cutting issue of concern in different UN human rights instruments, such as Articles 2 and 26 of the International Covenant on Civil and Political Rights, Article 2(2) ICESCR, Article 2 Convention on the Rights of the Child, Article 7 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and Article 5 of the Convention on

54 Universal Declaration of Human Rights, GA Res 217A, UN GAOR, 3d Sess, Part 1, Art 16(3), 74, UN Doc A/810 (1948) (hereinafter Universal Declaration of Human Rights). 55 The Universal Declaration of Human Rights (1948) (Art 16) was adopted by the United Nations General Assembly in 1948. General Assembly res 217A (III), 10 December 1948. 56 Moreover, a number of its provisions have become part of customary international law. 57 The International Covenant on Economic, Social and Cultural Rights (1966) was adopted by the General Assembly in December 1966 and entered into force in 1976 in accordance with Art 49 It elaborates the principles laid out in UDHR and is legally binding on all states who have signed and ratified its provisions.

Shazia Choudhry

277

Part I – Commentary on the Articles of the EU Charter

09.21

09.22

09.23

the Rights of Persons with Disabilities. In addition, one of two major UN human rights treaties explicitly established to prohibit discrimination is on the ground of gender: the Convention to Eliminate All Forms of Discrimination Against Women. In terms of forced marriage, a number of international human rights treaties make it clear that no marriage should be entered into unless consent is freely given by the intending spouses. The forced marriage of girls under 18 is an area of particular concern. The Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages58 reiterates the right to full consent and also requires states to establish a minimum age for marriage as does the Recommendation on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages.59 However, the Convention itself does not stipulate a minimum age, nor does the UN Convention on the Rights of the Child, which defines a child as any person under 18 but allows states to specify their own age limits for different matters under national law. In terms of the right to found a family, the right of individuals to freely determine the number and spacing of their children has been recognised in a number of UN population and development documents including the 1994 Conference on Population and Development Programme of Action, the 1968 Tehran Declaration and the 1985 Fourth World Conference in Beijing, which all contain provisions regarding the rights of individuals to family planning However, the right has not been enshrined in a legally binding human rights treaty, and the whole issue of family planning remains a controversial one for a variety of reasons. Nevertheless, some work has been done in relation to adoption and fostering. Article 23 of the International Covenant on Civil and Political Rights60 (ICCPR) which guarantees the right to a family; the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with special reference to Foster Placement and Adoption Nationally and Internationally61 which provides important guidelines for the fostering and adoption, including inter-country adoptions of children who lack appropriate parental care. Finally, there are a number of UN treaties relating to specific categories of persons which cover a range of issues relevant to Article 9. For refugees, there is Article 12 of the Convention Relating to the Status of Refugees,62 which includes guidelines and principles established under the auspices of the UN High Commissioner for Refugees to strengthen provisions regarding refugee rights to family. For women, there is the

58

521 UNTS 231, entered into force 9 December 1964. GA res 2018 (XX), 20 UN GAOR Supp (No 14), 36, UN Doc A/60141 (1965). 60 The International Covenant on Civil and Political Rights elaborates the principles laid out in UDHR and is legally binding on all states who have signed and ratified its provisions. Art 23 states: ‘1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. 2. The right of men and women of marriageable age to marry and to found a family shall be recognized. 3. No marriage shall be entered into without the free and full consent of the intending spouses. 4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.’ Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976, in accordance with Art 49. 61 Adopted by General Assembly resolution 41/85 of 3 December 1986. 62 Adopted on 28 July 1951 by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons convened under General Assembly resolution 429(V) of 14 December 1950. Entry into force 22 April 1954, in accordance with Art 43. 59

278

Shazia Choudhry

Art 9 – Right to Marry and Right to Found a Family

Convention on the Elimination of All Forms of Discrimination against Women,63 which includes provisions on marriage and nationality (Art 9), equality and consent, rights and responsibilities within marriage, family planning, guardianship and adoption, women’s right to choose a family name, a profession and an occupation, ownership and property, minimum age for marriage, and compulsory registration of marriages (Art 16). Finally, for migrant workers there is the International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families,64 which is the most recent of the main UN human rights treaties, entering into force on 1 July 2003. The Convention explicitly refers to migrant workers and ‘members of their family’ and states that they shall enjoy equality of treatment with nationals with regard to access to education, social and health services and participation in cultural life.

D. Analysis I. General Remarks Article 9 is addressed to the protection of the rights to marry and found a family 09.24 within European Union law, and as such has general application to any field of EU law where these rights may be affected. It should also be noted that Article 9 of the Charter approaches the rights at stake, ie the right to found a family and the right to marry, as two different and separate rights, suggesting that the former is not necessarily connected with the latter. It appears from the wording, ie, the usage of the plural form ‘these rights’, that a disconnection between the right to marry and to found a family has been envisaged. In other words, a marriage does not necessarily imply procreation. This in itself signals a broader approach to Article 9 compared to eg Article 16 of the UDHR, Article 12 of the ECHR and Article 23 of the ICCPR. The similarity between Article 12 of the ECHR and Article 9 of the Charter also 09.25 means that a number of matters may be confidently asserted. First, the scope of Article 9, as with Article 12 of the ECHR, is wide-ranging and its application will be relevant to a number of overlapping contexts. The well-established case law of the European Court of Human Rights (ECtHR) in this area has already served as an important source in its application in certain areas and may thus also therefore serve as a good illustration of the potential future scope of Article 9 in others. Second, Article 9 as with Article 12 will include both negative and positive obligations which will be imposed upon the institutions of the EU as well as Member States when implementing EU law. Finally, as with Article 8 of the ECtHR, Article 9 has the potential to be utilised in claims which raise issues of a particularly sensitive or moral nature and/or upon which there is an insufficient consensus across Member States. As a result, a wide margin of appreciation has

63 Opened for signature and ratification by General Assembly resolution 640(VII) of 20 December 1952, entry into force 7 July 1954, in accordance with Art VI. 64 Adopted by General Assembly resolution 45/158 of 18 December 1990, entered into force on 1 July 2003.

Shazia Choudhry

279

Part I – Commentary on the Articles of the EU Charter

often been accorded in such cases by the ECtHR.65 These issues will now be considered in greater detail.

II. Scope of Application 09.26 There have been a number of CJEU judgments that have dealt indirectly with some of the issues that have arisen under Article 12 of the ECHR—most notably, transgender and same sex rights within the field of gender and sexual orientation discrimination and the right to reproductive treatment within the field of free movement of goods and services. Nonetheless, the CJEU has yet to hear a claim based specifically on Article 9 of the Charter. As a result, the scope of application of Article 9 is, at least at present, largely dependent upon the case law emanating from Article 12 of the ECHR and to a certain extent from Article 8 ECHR (the right to private and family life) which has had an interdependent effect upon the interpretation of certain areas which fall within the scope of both articles. These areas have included transsexual rights, same-sex couples rights and the right to adoption. The scope of Article 12 has been fairly wide-ranging and a number of issues have arisen with respect to the two rights contained within it, some of which are interrelated. In terms of the right to marry these have included: the rights of transsexuals to marry; whether same-sex couples should be afforded the right; and, generally, under what circumstances is it permissible to restrict the right (eg prisoners, cultural and religious issues and immigration). Although the right to found a family would engage a number of issues such as the right to procreation and the right to adoption, cases on these areas have utilised Article 8 (the right to family life) as the main basis of the claim. These issues serve to reflect the changing nature of families and relationships and the impact of migration and immigration across Member States; however, they also demonstrate the difference in national responses and attitudes in certain areas of particular sensitivity upon which a sufficient degree of consensus is yet to emerge. As a result a larger degree of latitude may be given to Member States on such matters. These issues will be considered in detail in the next section.

III. Specific Provisions (a) The Right to Marry Transgender Rights 09.27 One of the most significant consequences for transgender individuals in Member States that do not yet legally recognise gender change is their inability to marry as their chosen gender. In addition, official records may continue to record the person as being of his or her original gender, causing difficulties and embarrassment. Such difficulties engage 65 As an example, this was the reason why breaches were not found to have occurred for a number of years with respect to the inability of transsexuals to marry (see Cossey v the United Kingdom (1990) 13 EHRR 622 [38]–[40]; Sheffield and Horsham v the United Kingdom (1998) 27 EHRR 163 [57]–[61] and X, Y and Z v the United Kingdom (1997) 24 EHHR 143 [44], [52]).

280

Shazia Choudhry

Art 9 – Right to Marry and Right to Found a Family

Articles 8, 12 and 14 of the ECHR, and as a result a number of challenges were taken to the ECtHR in respect of these provisions. However, in a series of cases decided between 1986 and 199866 the ECtHR applied a wide margin of appreciation, albeit by a steadily narrowing majority, to find that, although the legislation that was being challenged engaged the right to respect for private life under ECHR Article 8 and the right to marry under Article 12, no breach of either of these articles had occurred because of the lack of a European consensus on the matter.67 The Court thus found that the attachment to the traditional concept of marriage which underpins Article 12 provided sufficient reason for the continued adoption by the respondent state of biological criteria for determining a person’s sex for the purposes of marriage. Consequently, this was considered a matter encompassed within the power of the Contracting States to regulate by national law the exercise of the right to marry. Nevertheless, in each case that came before it, it became progressively clear that the Court recognised that some form of consensus amongst member states was steadily growing68 and in 2002, in two landmark decisions, the ECtHR reversed its previous decisions and substantially narrowed the margin of appreciation that it had previously applied. In Goodwin v UK 69 and I v UK 70 two transgender applicants sought a declaration that their Article 8 and 12 rights had been violated. In its judgment in favour of the applicants the ECtHR considered that the terms used 09.28 by Article 12 which referred to the right of a man and woman to marry no longer had to be understood as determining gender by purely biological criteria. In that context, the Court noted that there had been major social changes in the institution of marriage since the adoption of the Convention. Furthermore, it referred to Article 9 of the Charter of Fundamental Rights of the European Union, which departed from the wording of Article 12.71 The Court also noted that there was widespread acceptance of the marriage of transsexuals in their assigned gender. As a result the Court found that the impossibility for a post-operative transsexual to marry in her assigned gender violated Article 12 of the Convention. Two further cases are also of interest in the present context: Parry v the United Kingdom72 and R and F v the United Kingdom.73 In both cases the applicants were a married couple, consisting of a woman and a male-to-female postoperative transsexual. They complained under Article 12 of the Convention that they were required to end their marriage if the second applicant wished to obtain full legal recognition of her change of gender. Here the ECtHR dismissed that complaint as being manifestly ill-founded. It noted that domestic law only permitted marriage between persons of opposite gender, whether such gender derived from attribution at birth or from a gender recognition procedure, while same-sex marriages were not permitted. Similarly, Article 12 enshrined the traditional concept of marriage as being between a

66

Rees v the United Kingdom (n 40); Cossey v the United Kingdom (n 65); Sheffield and Horsham (n 65). See the discussion of this case law in Choudhry and Herring, European Human Rights and Family Law (Oxford, Hart publishing, 2010). 68 The only area in which the ECtHR was willing to find a violation was in relation to countries where people were required to carry identity cards and to produce them to officials on request, or as a condition for obtaining access to public benefits. See B v France [1992] 2 FLR 249. 69 Goodwin (2002) 35 EHRR 18. 70 I [2002] 3 FCR 613. 71 At para 100. 72 Parry v UK App no 42971/05 (28 November 2006). 73 R and F v UK App no 35748/05 (28 November 2006). 67

Shazia Choudhry

281

Part I – Commentary on the Articles of the EU Charter

man and a woman. The Court acknowledged that a number of Contracting States had extended marriage to same-sex partners, but went on to say that this reflected their own vision of the role of marriage in their societies, and did not flow from an interpretation of the fundamental right as laid down by the Contracting States in the Convention in 1950. The Court thus concluded that it fell within the state’s margin of appreciation to regulate the effects of the change of gender on pre-existing marriages. In addition it considered that, should they choose to divorce in order to allow the transsexual partner to obtain full gender recognition, the fact that the applicants had the possibility to enter into a civil partnership contributed to the proportionality of the gender recognition regime complained of. Nonetheless, following the decision of the European Court of Human Rights in 09.29 Goodwin v UK, there should no longer be any legal restrictions in the Member States on transgender persons marrying a person of the opposite-sex. Moreover, given that Article 9 of the Charter does not specify the sex to which the right will apply, any claims made with regard to the recognition of transgender marriage are stronger as compared to Article 12 of the ECHR. This is because a good deal of the arguments against transgender rights to marry cited at the ECtHR centred on the requirement in Article 12 for a ‘man and a woman’ to marry and found a family, and the implications this held for same-sex marriage. The ECHR case law also implies that there are no grounds for other EU Member States to refuse to recognise such marriages. There are, however, situations where transgender persons cannot marry their partners within some Member States. This is clearly the case for transgender persons with a gay or lesbian sexual orientation. Another situation is where gender identity is not yet fully recognised within national law. In addition, some states make gender recognition conditional upon undergoing gender reassignment surgery. According to the Commissioner for Human Rights of the Council of Europe74 these practices run counter to the principle of respect for the physical integrity of the person, in particular because transgender people appear to be the only group in Europe subject to legally prescribed, state-enforced sterilisation. It also raises issues with regard to Article 3 of the Charter of Fundamental Rights on the right to the integrity of the person.75 Where transgender persons consequently find themselves within unmarried partnerships, then the rules on unmarried partners will apply. These issues raise a number of concerns with regard to the freedom of movement of transgender individuals seeking to marry or have their relationship officially recognised in Member States who have not adequately implemented the established jurisprudence of the ECHR. Clearly, if the result is a difference in treatment with regard to access to social security benefits, employment, occupation and equal pay such treatment could also fall foul of the ‘Recast Directive’. These claims are now further bolstered by the Charter, specifically Article 9 as well as the right to private and family life under Article 7. They will also engage the right to dignity (Art 1), the right to equality under

74 See Issue paper on Human Rights and Gender identity or the Commissioner for Human Rights of the Council of Europe, CommDH/IssuePaper(2009)2. 75 The Austrian Administrative High Court and the Federal Supreme Court of Germany have ruled that mandatory surgery cannot be a prerequisite for gender change. After the Constitutional Court ruled against the case (VfGH 29.09.2008, B 411/08, B 412/08), the Administrative High Court made the legal change possible in 2009 (VwGH 27.2. 2009). BVerfG, 1 BvL 3/03 (6 December 2005).

282

Shazia Choudhry

Art 9 – Right to Marry and Right to Found a Family

the law (Art 20), the right to equality between men and women (Art 23) and the right to freedom from discrimination (Art 22). Same-sex Marriage The ECtHR has taken a rather conservative view on this issue by according a wide 09.30 margin of appreciation to claims made under the Article 12 seeking the recognition of same-sex marriage. As a result, it has made it clear that the right to marriage that is protected by the article is marriage between two people of the opposite sex.76 In Goodwin77 the Court noted that that the findings in the cases of Rees,78 Cossey,79 and Sheffield and Horsham80 were ‘based variously on the reasoning that the right to marry referred to traditional marriage between persons of opposite biological sex’.81 This stance has been maintained in relation to claims brought by transgender individuals who did not wish to either go through the process of remarriage82 or full gender reassignment83 to achieve legal recognition of their new gender on the basis that to do so would effectively allow same sex marriage through the back door. More recently, in the case of Schalk and Kopf v Austria84 the Court specifically confirmed that states are not obliged to ensure the right to marry to homosexual couples. Here, the applicants, a same-sex couple, wished to marry; however, under domestic law a marriage could only be concluded between persons of opposite sex. Following their subsequent constitutional complaint, the Constitutional Court held that neither the Austrian Constitution nor the European Convention required that the concept of marriage, which was geared to the possibility of parenthood, should be extended to relationships of a different kind, and that the protection of same-sex relationships under the Convention did not give rise to an obligation to change the law on marriage. Subsequently, the Registered Partnership Act entered into force in Austria, aiming to provide same-sex couples with a formal mechanism for recognising and giving legal effect to their relationships. While the Act provided registered partners with many of the same rights and obligations as spouses, some differences remained, in particular registered partners were unable to adopt or undergo artificial insemination. Nonetheless, although the ECtHR conceded that the applicants’ relationship fell within the notion of family life, it nonetheless concluded that Article 12 did not impose an obligation on states to grant same-sex couples access to marriage. Further, it noted that despite the emerging tendency to recognise same-sex partnerships legally, this area should still be regarded as one of evolving rights with no established consensus, where states enjoyed a margin of appreciation in the timing of the introduction of legislative changes. As a result, the Court ruled that there was no violation of Article 12

76

Rees v the United Kingdom (n 40); Cossey v the United Kingdom (n 65); Sheffield and Horsham (n 65). Goodwin (n 69). 78 Rees v the United Kingdom (n 40). 79 Cossey v the United Kingdom (n 65). 80 Sheffield and Horsham (n 65). 81 Goodwin (n 69) [97]. 82 Parry v UK (n 72). See also R and F v UK (n 73), decided on the same day with very similar facts and the same outcome. 83 L v Lithuania (2008) 46 EHRR 22. 84 Schalk and Kopf v Austria App no 30141/04 (24 June 2010). 77

Shazia Choudhry

283

Part I – Commentary on the Articles of the EU Charter

(right to marry), Article 14 (prohibition of discrimination) or Article 8 (right to respect for private and family life) of the ECHR. 09.31 In terms of the Charter however, Article 9, as the ECtHR noted in Schalk and Kopf,85 unlike Article 12 of the ECHR, is gender-neutral; it does not specify that marriage has to take place between a man and a woman. As a result, Article 9 allows for the argument that there is no obstacle to recognise same-sex relationships in the context of marriage.86 Indeed, as noted in the previous section, this particular feature of Article 9 was cited by the ECtHR in support of the recognition of the transgender applicants’ right to marry in Goodwin v UK.87 The difference between the two provisions is significant for two reasons. First, because it means that the scope of Article 9 is wider than that of Article 12, in that it may be extended to include same-sex marriages if allowed for by national legislation. Second, and more crucially, it provides a good basis for the CJEU to go further than the current ECtHR position in extending the protection of Article 9 to include the requirement to recognise same-sex marriage regardless of national legislation. (b) The Right to Found a Family Procreation—Access to Reproductive Services and Technology 09.32 Both the ECtHR and the CJEU are yet to decide a case brought specifically in this area which is based upon Article 12 of the ECHR and Article 9 of the Charter. Nonetheless, this does not preclude the interpretation of the right to include the right of access to new reproductive technologies to assist in the foundation of a family, particularly within the context of EU citizens who are increasingly willing to undergo fertility treatment and/or procure donated sperm and eggs outside of their home Member State. Moreover there is the question of who pays for such goods and services—the patient or the home Member State. Quite predictably, practice differs across Member States, with some guaranteeing access to treatment for reproductive services paid for in full or part by the state, and others who provide no state-funded treatment of this nature. Furthermore, some countries restrict access to reproductive services on the basis of regulations designed to allocate resources according to perceived need and chances of success (the existence of other children and age being factors against treatment) or on ethical and moral considerations (such as sexual orientation or gender identity). The latter question is to a large extent answered by the Directive on the Application of Patients’ Rights in Cross-Border Healthcare (detailed above). Although it gives EU citizens the right to obtain from abroad any care not requiring a hospital stay without advance authorisation, where in-patient care or certain specialised investigations are involved, Member States may create a system of prior authorisation to enable them to manage patient flows and avoid threats to the financial and operational sustainability of their health systems. In both cases, patients will only be entitled to reimbursement under this Directive up to what would have been paid for if the care was provided at home. Nonetheless the Directive clearly benefits

85

At para 60. At para 60. The court also went on to say however that ‘as matters stand, the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State’ paragraph 61. 87 Goodwin v the United Kingdom and I v the United Kingdom (2002) 35 EHRR 18 [101]. 86

284

Shazia Choudhry

Art 9 – Right to Marry and Right to Found a Family

those individuals who have the means to pay upfront for medical treatment and who seek to avoid delays in the provision of that treatment in the home Member State. Within the context of reproductive services, delay can have a crucial effect to the efficacy of the treatment and although the ability to move to another Member State to avoid such delays is thus a clear benefit of the Directive, one must also consider the inherent inequality that is implied; only those who have the resources to travel and pay for such treatment are fully able to exercise the free movement rights anticipated by the Directive.88 Combined with Article 9, the non-discrimination principle contained in Article 21 of the Charter could thus become of relevance when addressing matters relating to the equality of access to healthcare services referred to in the right to healthcare contained in Article 35.89 In terms of ethical and moral conditions of treatment, these can be avoided either 09.33 by travel to a Member State that does not have such conditions, or in the case of an EU citizen who has moved from a more liberal funding environment to a more conservative one by challenging the difference in treatment. In both cases EU legislation concerning the free movement of goods and services will be activated.90 The ability to access healthcare services that may be prohibited or unavailable in a patient’s home Member State was first established in The Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan. In this case the CJEU considered that an abortion was capable of being within the meaning of a service for the purposes of the EC Treaty when performed legally in the Member State in question. This decision went on to provide the basis for other related challenges. In R v Human Fertilisation and Embryology Authority, Ex p Blood,91 a woman wished to challenge, using her rights of free movement, the refusal of the British Human Fertilisation and Embryology Authority to allow her to export the sperm of her deceased husband to another Member State in order to instigate fertility treatment. The refusal was based on the fact that she had not, as required by English law at the time, obtained written consent from her husband prior to his death. It was found, however, that under Articles 59 and 60 of the EC Treaty that Diane Blood had a directly enforceable right to receive medical treatment in another EU state, and in light of the Court of Appeal’s decision the Human Fertilisation and Embryology Authority (HFEA) granted an export licence for Mrs Blood to be treated in Belgium. Future challenges based on differences in treatment, particularly in relation to same-sex couples can thus be envisaged and it is here that the provisions of the Charter may be of relevance in

88 D Da Costa Leite Borges, ‘Making sense of human rights in the context of European Union health-care policy: individualist and communitarian views’ (2011) 7(3) International Journal of Law in Context 335–56. 89 Although the reference to established national laws and practices in Art 35 may appear to limit the scope of the provision, it has been argued that the article could still be used in the future by individuals travelling to another Member State to receive treatment and then claiming reimbursement of such claims. See McHale, ‘Fundamental Rights and Health Care’, in E Mossialis et al, Health Systems Governance in Europe, European Observatory on Health Systems and Policies (Cambridge, Cambridge University Press, 2010) 282–314, 303 and her argument in relation to AG Opinion (Ruiz-Jarabo Colomer) in Case C-444/05 Stamatelaki v NPDD Organismos Asfaliseos Eleftheron Epangelmation (OAEE) [2007] ECR I-3185. 90 The right to shop around for healthcare services including those that are prohibited or otherwise unavailable in a patient’s home country was established in Case C-159/90 The Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan (4 October 1991) [21], which established that a controversial medical procedure (in this case an abortion) had the status of a service within the meaning of the EC Treaty when performed legally in the Member State in question. 91 R v Human Fertilisation and Embryology Authority, Ex p Blood [1997] 2 All ER 687.

Shazia Choudhry

285

Part I – Commentary on the Articles of the EU Charter

bolstering the arguments, most notably Article 9, Article 21 (non-discrimination) and Article 35 (right to healthcare services). Adoption 09.34 The right to adopt a child, who is not the natural child of the person concerned, is not per se included in Article 9 of the Charter. It is also not provided for by the Convention.92 However, in a series of cases concerning claims made under Article 8 of the ECHR, the ECtHR appears to be developing the right to equal access to the right to adopt which may in turn be useful for the development of the scope of the right to found a family contained in Article 9 of the Charter. In Fretté v France93 the Court found that the refusal to allow a gay man to adopt a child because of his sexual orientation did not constitute a breach of his right to private life under Article 8 taken in conjunction with Article 14. A wide margin of appreciation was applied due to ‘the delicate issues raised in the case’, which touched on areas where there was little common ground amongst the Member States. Although some movement did occur on the issue of same-sex adoption in EB v France,94 where the ECtHR found, by a small majority, that a refusal tp permit an individual who was in a same-sex relationship to adopt a child as a single person was a breach of both her Article 8 and Article 14 rights, it was in relation to their approach to sexual orientation discrimination rather than the family life of the applicant, who did not help matters by basing her claim on the private life aspects of Article 8.95 Any inroads made in EB appeared to have been cancelled out by the decision in Gas and Dubois v France,96 where the Court seems to have switched back to a more restrictive stance regarding the issue. The case concerned the refusal of an applicant’s request for the adoption of the child of her same-sex partner with whom she had entered into a civil partnership which was not found to be a breach of either Article 14 or Article 8. Of particular note are the Court’s comments concerning the status of the civil partnership and the apparent lack of weight it held. Not only did the Court reaffirm the fact that marriage confers a ‘special status’, but also that ‘where a State chooses to provide same-sex couples with an alternative means of recognition, it enjoys a certain margin of appreciation as regards the exact status conferred.’97 In this case the margin was clearly very wide. However, in a very recent decision the ECtHR adopted a more liberal position, although it was careful to distinguish the facts from those of Gas and Dubois. In X and Others v Austria98 two women who lived in a stable homosexual relationship 09.35 complained about the Austrian courts’ refusal to grant one of the partners the right to adopt the son of the other partner without severing the mother’s legal ties with the child

92

See X v Belgium and the Netherlands App no 6482/74 (Commission decision of 10 July 1975, DR 7) 75. Fretté v France (2004) 38 EHRR 21. 94 EB v France App no 43546/02 (22 January 2008). 95 In distinguishing the case from Fretté the Court reiterated that differences based on sexual orientation required particularly serious reasons by way of justification but, nonetheless, found that, in this case, no such reasons had been advanced by the Government. Further, although Art 8 did not imply such a right, given that French law allowed single persons to adopt, thereby opening up the possibility of adoption by a single homosexual such as the applicant, the refusal of EB’s adoption application had been based on discriminatory grounds. 96 Gas and Dubois v France App no 25951/07 (15 March 2012). 97 Ibid 66. 98 X and Others v Austria App no 19010/07 (19 February 2013). 93

286

Shazia Choudhry

Art 9 – Right to Marry and Right to Found a Family

(second-parent adoption). The Court found that the difference in treatment between the applicants and an unmarried heterosexual couple in which one partner sought to adopt the other partner’s child had been based on the first and third applicants’ sexual orientation. No convincing reasons had been advanced to show that such difference in treatment was necessary for the protection of the family or for the protection of the interests of the child. At the same time, the Court underlined that the Convention did not oblige states to extend the right to second-parent adoption to unmarried couples. Furthermore, the case was to be distinguished from Gas and Dubois v France, in which the Court had found that there was no difference of treatment based on sexual orientation between an unmarried different-sex couple and a same-sex couple as, under French law, second-parent adoption was not open to any unmarried couple, whether they be homosexual or heterosexual. Accordingly, the Court found that a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 had occurred on account of the difference in treatment of the applicants in comparison with unmarried different-sex couples in which one partner wished to adopt the other partner’s child. However, no violation of Article 14 taken in conjunction with Article 8 was found when the applicants’ situation was compared with that of a married couple in which one spouse wished to adopt the other spouse’s child.

IV. Limitations and Derogations Article 9 of the Charter as with Article 12 of the ECHR does not contain a specific 09.36 limitation clause; however, as noted above, the terms of the article refer to the fact that the right is subject to the national laws of the Contracting States. National law may thus introduce prohibitions on the basis that they are necessary to protect the interests of the wider society. However, as the jurisprudence of the ECtHR has made clear, any limitations set by national laws must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired, and must be in pursuit of a legitimate aim and must be proportionate. There are two main areas which may be of particular significance as far as EU law is concerned. Immigration The first point to note about the right to marry within the context of immigration is 09.37 that it concerns the right to form a marital relationship and a family, and as such is quite distinct from the right to respect for family life, which relates to families seeking immigration authorisation on the basis of a family relationship. Potential areas of difficulty arise in relation to national laws passed by Member States aimed at combating the phenomenon of sham marriages or marriages of convenience ostensibly entered into for the purposes of circumventing immigration rules. Closely related to this issue are concerns about forced and arranged marriages and the distinction that should be made between the two. The EU has also taken action, and as noted above, Articles 4 and 16 of the Family Reunification Directive 2003/86/EC99 allow

99

Directive 2003/86/EC on the right to family reunification, [2003] OJ L251/12.

Shazia Choudhry

287

Part I – Commentary on the Articles of the EU Charter

for Member States to take certain action against forced and sham marriages. Further, Article 35 of the Free Movement Directive 2004/38100 allows Member States to take ‘measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience’, but only if the measures are ‘proportionate’ and pass ‘the procedural safeguards provided for in Articles 30 and 31’. 09.38 There is just one case on this issue from the ECtHR, and none emanating from the Charter. In O’Donoghue v United Kingdom, the Court considered whether the Certificate of Approval scheme in the UK, which required those subject to immigration control to obtain a certificate from the Home Office before they were permitted to get married, was consistent with the Convention. The case concerned the impediments to contracting a marriage (and thus forming a family) that were imposed by the UK. The restriction was imposed by the immigration authorities on the right to marry itself, and was not a rule about the immigration consequences that might flow from the marriage. Prior to 2009, this scheme required the payment of a £295 fee, and at no time was the scheme ever applied to individuals getting married in the Church of England. The applicants claimed that they were prevented from getting married for two years, first because Mr Iwu, a Nigerian national with discretionary leave to remain in the UK, did not meet the requirements of the scheme until 2007, and then because they could not afford to pay the £295 fee. The ECtHR found a violation of Article 12, on the basis that even though the imposition of reasonable conditions on a foreign national’s ability to marry would not be a violation of Article 12, the UK scheme did violate Article 12 as the periods of time involved in the process and the fee charged were not reasonable. The scheme was not rationally connected to the stated aim of reducing the incidence of sham marriages, since when deciding whether to issue the required certificate, the determinative test was only the immigration status of the individual applicant, and no enquiries were made to establish the genuineness of the marriage. Further, they found a violation of Article 14 in conjunction with Article 12, given the less favourable treatment of those not willing and able to marry in the Church of England; and moreover, a violation of Article 14 in conjunction with Article 9, given the difference in treatment of those not willing and able to marry in the Church of England. Member States must therefore be careful that any schemes designed to combat sham marriages are consistent with the approach of the ECtHR under Article 12. Cultural and Religious Issues 09.39 The ECtHR has established a number of principles with respect to restrictions imposed on the form of marriage. Firstly, the obligation to contract a marriage in accordance with forms prescribed by law rather than a particular religious ritual is not a refusal of the right to marry.101 This principle has also been applied to marriages

100 European Parliament and Council Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77, amending Regulation (EEC) 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/ EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC. 101 X v Federal Republic of Germany App no 6167/73 (18 December 1974).

288

Shazia Choudhry

Art 9 – Right to Marry and Right to Found a Family

conducted according to cultural rites.102 A claim made in conjunction with Article 9 ECHR is also likely to fail due to the fact that the court has held that under that article marriage cannot be considered simply as a form of expression of thought, conscience or religion but is governed by the specific provisions of Article 12.103 The question of whether a polygamous marriage is compatible with the Convention has not, however, been dealt with as an aspect of Article 12 due to the fact that the one case that has been considered concerned an application for the right of entry for a polygamous wife, and the claim related to her right to respect for family life.104 In Bibi v the UK105 the applicant’s mother had been denied permission to enter the UK due to the fact that she was the first of two women who had married the applicant’s father. Section 2 of the Immigration Act 1988 provided that a woman would not be granted a certificate of entitlement to the right of abode, on the basis of a polygamous marriage, if another woman had already been admitted to the UK as the wife of the same husband. The second wife of the applicant’s father had already settled in the UK. The applicant therefore complained of an infringement of her right to respect for family life and alleged that the refusal to allow her mother to enter the UK as her father’s wife discriminated on the grounds of sex, in that it allowed the husband to choose the wife who shall join him in the UK. Although the ECtHR dealt with the claim under Article 8, some of their reasoning for rejecting the claim could foreseeably be applied to any future claims under Article 12: the interference with the applicant’s right to family life created by the refusal of entry to the UK was in accordance with the law, which was intended to prevent the formation of polygamous households, the practice of polygamy being deemed unacceptable to the majority of people who live in the UK.106 Further, a wide margin of appreciation would generally be accorded to a state concerning its immigration policy in establishing an immigration policy on the basis of family ties; Contracting States cannot be required to give full recognition to polygamous marriages which are in conflict with their own legal order.107 As a result, it is unlikely that any claims made under Article 9 (or indeed Art 7) of the Charter concerning the legal recognition of polygamous marriages will succeed. This is particularly so given that legislative provision that has been made against such recognition by the EU in the Family Reunification Directive.108

102

Hopic and Hopic-Destanova v the Netherlands App no 13158/87 (13 August 1987). Janis Khan v UK App no 11579/85 (7 July 1986). 104 Khan v the UK App no 19628/92 (29 June 1992) did consider this specifically from the point of view of Art 12 with respect to a husband seeking the permission to enter for his second wife; however, the claim was deemed inadmissible for reasons concerning the time-limit for the submission of the application. The substantive claims under Arts 8 and 12 were not dealt with. 105 Bibi v the UK App no 19628/92 (29 June 1992). 106 Ibid [1]. The Commission noted that for centuries it has been an offence in the UK, by virtue of the criminal law on bigamy, to contract a marriage with more than one woman at a time on UK territory. 107 Referring to Alilouch El Abasse v the Netherlands App no 14501/89 (6 December 1992) [1]. 108 Directive 2003/86/EC on the right to family reunification [2003] OJ L251/12 Art 4(4). See also Recital 11 in the preamble, which states, ‘The right to family reunification should be exercised in proper compliance with the values and principles recognised by the Member States, in particular with respect to the rights of women and of children; such compliance justifies the possible taking of restrictive measures against applications for family reunification of polygamous households.’ 103

Shazia Choudhry

289

Part I – Commentary on the Articles of the EU Charter

V. Remedies 09.40 Given the diverse fields of law to which the right to marry and found a family can be applied, the applicable remedies are likely to depend on the context of the case. In some cases, Article 9 may be invoked as a ground for judicial review of a legislative act, in which case the remedy could be the annulment of the legislative act, or an element thereof. Other cases are likely to concern the denial of a benefit to a specific individual where the remedy may entail a reconsideration of the original decision, rather than an annulment of the underpinning legal act. What has become clear from cases concerning both Article 9 of the Charter and Article 12 ECHR is that significant latitude is given to Member States with regard to the interpretation and implementation of the guarantees contained. Both the ECtHR and the CJEU have often left the substantive decision to national courts, choosing instead to provide guidance as to the principles that govern the applicability of the Articles. This has been particularly evident with regard to cases concerning same-sex couples, where the proportionality tests can be very fact-dependent and where some latitude has been given to Member States within the legislative provisions themselves with regard to the implementation of what are often politically sensitive issues. That is not to say that national courts are given an unfettered discretion. The ECtHR has also made it clear in cases such as Goodwin that the latitude or margin will be narrowed in cases where a European consensus has clearly emerged on the issue.

E. Evaluation 09.41 The inclusion of the rights to marry and found a family in the Charter is significant when it is recalled that family law has not generally been acknowledged as being within the specific competence of EU law. As a result, it indicates a clear commitment to acknowledging the ever-increasing and often indirect impact upon these areas of family life of both EU and non-EU citizens of EU law. The lack of specific cases on Article 9 with regard to the CJEU is unfortunate, but it is perhaps quite predictable that the CJEU will, as it has done with Article 7, make clear that the scope and interpretation of the right to family life under Article 9 of the Charter will be the same as that under Article 12 of the ECHR, which will no doubt lead to an increase in the pervasive influence of the Strasbourg jurisprudence in this area. The real challenge therefore lies in the CJEU’s willingness, when the opportunity arises, to go further than Strasbourg in its interpretation of the guarantees contained in Article 9 as allowed for by Article 52 of the Charter.

290

Shazia Choudhry

Article 10 Article 10 Right to Freedom of Thought, Conscience and Religion 1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance. 2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.

Text of Explanatory Note on Article 10 The right guaranteed in paragraph 1 corresponds to the right guaranteed in Article 9 of the ECHR and, in accordance with Article 52(3) of the Charter, has the same meaning and scope. Limitations must therefore respect Article 9(2) of the Convention, which reads as follows: ‘Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’ The right guaranteed in paragraph 2 corresponds to national constitutional traditions and to the development of national legislation on this issue.

Select Bibliography There is an extensive literature on the European Convention on Human Rights, but the literature on EU law and religion is in its infancy. N Doe, Law and Religion in Europe (Oxford and New York, Oxford University Press, 2012). C Evans, Freedom of Religion under the European Convention on Human Rights (Oxford and New York, Oxford University Press, 2001). M Evans, Religious Liberty and International Law in Europe (Cambridge, Cambridge University Press, 1997). R McCrea, Religion and the Public Order of the European Union (Oxford and New York, Oxford University Press, 2010). G Robbers (ed), State and Church in the European Union, 2nd edn (Baden-Baden, Nomos, 2005).

A. Field of Application of Article 10 Article 10 does not provide the Union with a roaming mandate to ensure the protec- 10.01 tion of freedom of thought, conscience and religion. As Article 51(2) notes, the Charter ‘does not establish any new power or task for the Community or the Union, or modify

Part I – Commentary on the Articles of the EU Charter

the powers and tasks defined by the Treaties.’1 Of course, this does not mean that the Union’s Fundamental Rights Agency may not concern itself with the protection of freedom of conscience and religion in the Member States, or that violations of religious freedom outside of the field of application of EU law may not be part of a general enquiry into whether a state is in ‘serious and persistent breach’ of fundamental rights for the purposes of having its Treaty rights suspended under Article 7 of the Treaty on European Union.2 Nevertheless, in common with the other provisions of the Charter, Article 10’s function is to act as a constraint on the Union in the exercise of its powers and functions. Article 10 binds ‘the institutions of the Union’ as well as the Member States ‘only when they are implementing EU law’.3 This means that in matters such as its dealings with the staff of its institutions and 10.02 in passing legislation, the European Union must ensure adequate respect for rights of thought, conscience and religion. It also means that EU legislation will be interpreted so as to ensure protection of this right, something that is of particular relevance to matters such as anti-discrimination legislation4 and provisions regarding working time5 and animal slaughter,6 all of which can impact on religious practices. In addition, Member States, in implementing EU legislation and carrying out Treaty obligations, will be obliged to respect freedom of conscience and religion. Any derogations by Member States from, for example, the rights of free movement granted by the Treaty’s free movement provisions will have to be exercised so as not to impact unduly on religious freedom. 10.03 While the Union has long been bound to respect religious freedom as part of the ‘general principles of law’7 created by the Court of Justice to protect fundamental rights in the pre-Charter era, in the past the religious freedom aspect was rather underplayed in judgments in cases where individuals or organisations sought to exercise free movement rights for religious purposes. Cases such as Steymann,8 which analysed the free movement of persons in the context of the choice of an individual to move to reside in a religious community, and Eglise scientologie,9 which assessed the compatibility of legislation restricting the financial transactions carried out by the Church of Scientology, were both decided without explicit reference to the right to religious freedom. The presence of an explicit commitment to protecting religious freedom in the Charter may encourage litigators and judges to give greater emphasis to this issue in future cases. This does not mean that such cases would necessarily be decided differently, and in 2012 when the Court explicitly referred to Article 10 in interpreting legislation on the right to

1

Charter of Fundamental Rights of the European Union [2000] OJ C364/01. Ibid Art 51(1). 3 Ibid Art 52(1). 4 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16–22. 5 Council Directive 93/104/EC concerning certain aspects of the organisation of working time [1993] OJ L307/18–24. 6 Council Directive 93/119/EC on the protection of animals at the time of slaughter or killing [1993] OJ L340/21–34. 7 See Case 36/75 Rutili v Minstre de l’Interieur [1975] ECR 1219; Case C-260/89 ERT [1991] ECR I-2925. 8 Case 196/87 Steymann v Staatsecretaris van Justitie [1988] ECR 6159. 9 Case C-54/99 Association Eglise de scientology de Paris and Scientology International Reserves Trust v The Prime Minister [2000] ECR I-5475. 2

292

Ronan McCrea

Art 10 – Freedom of Thought, Conscience and Religion

asylum in Y and Z,10 its ruling turned on the wording of the directive in question, rather than Article 10 itself. As will be discussed below, the right protected by Article 10 is one that can be restricted in a number of circumstances. However, it is likely that religious freedom will figure more prominently than before. Many of the limitations on the right to freedom of thought, conscience and religion 10.04 that will apply to Article 10 will arise from the jurisprudence of the European Court of Human Rights (ECtHR). The explanatory text provided in relation to Article 10 that is quoted above, makes it clear that it is intended to have ‘the same meaning and scope’ as Article 9 ECHR. The jurisprudence of the Strasbourg Court will therefore have a key influence on the development of Article 10 within EU law.

B. Interrelationship of Article 10 with Other Provisions of the Charter The rights protected by Article 10 have a complex and at times competitive relationship 10.05 to other articles of the Charter. This is because religious freedom involves actions such as thinking, speaking and associating with others that involve other fundamental rights. Freedom of conscience and religion involves the right to express one’s religious beliefs (freedom of expression, Art 11), the right to associate with other believers and form religious organisations (freedom of association, Art 12), the right to develop a personal religious identity (the right to privacy, Art 7). Freedom of religion may also involve claims to protection from discrimination on grounds of religion (rights to equal treatment and freedom from discrimination, Articles 20 and 21). Perhaps more importantly, religious freedom has a more directly competitive rela- 10.06 tionship with other fundamental rights than is the case for many of the rights protected by the Charter. Daniel O’Connell, who led the movement for Catholic Emancipation in Ireland in the nineteenth century, is reputed to have said that freedom is not a finite resource, and that increasing the freedom of others enhances rather than depletes one’s own stock.11 However, in the case of freedom of conscience and religion, the right of one person to follow their religious practices is often in direct conflict with the right of another to be spared such practices or to follow their own beliefs.

I. Religious Freedom and Free Expression The two most prominent examples of rights with which freedom of conscience and 10.07 religion may clash are the right to freedom of expression (guaranteed by Art 11 of the Charter) and freedom from discrimination (Arts 20 and 21). Under the case law of the European Court of Human Rights (which, as noted above, will have a heavy influence on the meaning given to the Charter by the CJEU), the right to freedom of religion

10

Joined Cases C-71/11 and C-99/11 Y and Z (Grand Chamber, Judgment of 5 September 2012). Senator David Norris, Seanad Eireann, Debates 7 July 2010 http://debates.oireachtas.ie/seanad/2010/07/07/ 00007.asp. 11

Ronan McCrea

293

Part I – Commentary on the Articles of the EU Charter

has been relied upon as a reason to restrict freedom of expression. In Otto Preminger v Austria,12 the ECtHR upheld the banning of a film deemed offensive to Christians, on the basis that: Those who choose to exercise the freedom to manifest their religion, irrespective of whether they do so as members of a religious majority or a minority, cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith. However, the manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the State, notably its responsibility to ensure the peaceful enjoyment of the right guaranteed under Article 9 to the holders of those beliefs and doctrines. Indeed, in extreme cases the effect of particular methods of opposing or denying religious beliefs can be such as to inhibit those who hold such beliefs from exercising their freedom to hold and express them.13

10.08 The Court went on to hold that the seizure of the film was justified, as: the Austrian authorities acted to ensure religious peace in that region and to prevent that some people should feel the object of attacks on their religious beliefs in an unwarranted and offensive manner. It is in the first place for the national authorities, who are better placed than the international judge, to assess the need for such a measure in the light of the situation obtaining locally at a given time. In all the circumstances of the present case, the Court does not consider that the Austrian authorities can be regarded as having overstepped their margin of appreciation in this respect.14

10.09 This idea that the protection of freedom of religion may justify restriction of speech offensive to religions was followed by the Court in Wingrove v UK15 and IA v Turkey.16 It has been an extremely controversial issue, made more so by the tensions surrounding the publication of cartoons of the Prophet Mohammed in a Danish newspaper in 2006, and other controversies such as the saga surrounding the death sentence pronounced on the author Salman Rushdie. In IA v Turkey, three of the seven judges voted to abandon the reasoning in Otto 10.10 Preminger, on the grounds that it was based on an excessively timid and limited conception of free expression. In the United Kingdom in R (Green) v City of Westminster Magistrates’ Court17 two judges of the Administrative Court also cast doubt on the validity of such reasoning in dismissing an application to prosecute the producer of an allegedly blasphemous opera, arguing that ‘it does not seem to us that insulting a man’s religious beliefs, deeply held though they are likely to be, will normally amount to an infringement of his Article 9 rights since his right to hold to and to practise his religion is generally unaffected by such insults.’18 10.11 Nevertheless, as matters stand, under the jurisprudence of the Strasbourg Court, freedom of religion can function as a restriction on free expression rights in the case of expression deemed very offensive and gratuitously insulting to religious beliefs. Unless

12 13 14 15 16 17 18

294

Otto Preminger Institut v Austria (1994) 19 EHRR 34. Ibid [47]. Ibid [56]. Wingrove v United Kingdom (1996) 24 EHRR 1. IA v Turkey App no 42571/98 (Judgment of 13 September 2005). R (Green) v City of Westminster Magistrates’ Court [2007] EWHC 2785 (Admin). Ibid [17].

Ronan McCrea

Art 10 – Freedom of Thought, Conscience and Religion

there is a significant change in the case law in this regard, there is a significant likelihood that Article 10 would serve to restrict the protection of free expression provided by Article 11 should a case arise within the field of application of EU law.

II. Discrimination on Grounds of Religion A second notable point of conflict between the right of freedom of conscience and religion 10.12 guaranteed by Article 10 and other Charter rights is in the area of non-discrimination and equal treatment (Arts 20 and 21). In some ways, rights to religious freedom and freedom from discrimination can be mutually reinforcing. As Maduro AG pointed out in Coleman v Attridge Law (in an Opinion on the question of discrimination on grounds of disability), anti-discrimination laws are aimed to a significant degree at protecting the dignity and autonomy of individuals with protected characteristics.19 Religion is such a characteristic under EU legislation prohibiting discrimination on grounds of religion in the area of employment (Directive 2000/78).20 This Directive enhances religious freedom by ensuring that individuals will not be disadvantaged on the basis of their faith thus enhancing their ability them to choose their faith for themselves. It prohibits both direct discrimination (‘where one person is treated less favourably than another is, has been or would be treated in a comparable situation [on grounds of religion] or belief ’)21 and indirect discrimination (‘where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief … at a particular disadvantage compared with other persons’).22 Indirect discrimination that can be ‘objectively justified by a legitimate aim and [where] the means of achieving that aim are appropriate and necessary’ is not prohibited.23 By requiring that ‘apparently neutral’ practices that place individuals of a particular religion or belief at a disadvantage be objectively justified, EU law requires a degree of active facilitation of religious choices. This approach can be seen as embodying the Charter’s commitment to freedom of religion and belief as encompassing the commitment of Articles 20 and 21 to non-discrimination. It is notable that the approach of EU legislation in this regard goes significantly beyond 10.13 what were, for a long time, the requirements of the jurisprudence of the Strasbourg institutions, which repeatedly held that Article 9 ECHR did not require active facilitation of religious beliefs in the workplace.24 Given the Charter’s commitment to ensuring congruence between the meaning given to Article 9 ECHR and Article 10 of the Charter, it seemed likely that Directive 2000/78 may have gone beyond the requirements of the Charter in relation to protecting religious freedom in the workplace. However, the recent decision in Eweida and Others v United Kingdom25 appears to herald a change of approach. In this case, the Strasbourg Court held that Article 9 does in fact require 19

Case C-303/06 Coleman v Attridge Law [2008] ECR I-5603, Opinion of Advocate General Maduro. n 4 above. 21 Ibid Art 2(2)(a). 22 Ibid Art 2(2) (b). 23 Ibid Art 2(2)(b)(i). 24 Stedman v United Kingdom (1997) 23 EHRR CD 168; Ahmad v United Kingdom (1982) 4 EHRR 126. 25 Eweida and Others v United Kingdom App nos 48420/10, 59842/10, 51671/10 and 36516/10 (Judgment of 15 January 2013). 20

Ronan McCrea

295

Part I – Commentary on the Articles of the EU Charter

balancing between the right to express one’s faith or to follow one’s beliefs at work, and the rights and interests of others, though on the facts it rejected the claim to accommodation in three of the four claims. Two of the claims were dismissed on the basis that a policy requiring employees to serve all customers irrespective of sexual orientation was a legitimate restriction of religious freedom, as it sought to protect the right to freedom from discrimination. A third claim fell on the basis that hospital managers were in a better position than the Court to decide whether concerns around safety and infection risk justified the refusal of permission to a nurse to wear a cross on a chain around her neck. The fourth claim succeeded on the basis that the employer, who had refused to allow an employee to wear a crucifix over her uniform, had not shown any impact on its corporate image, allowed other religious symbols and had subsequently changed its policy, thereby showing that it had never been necessary to refuse permission to wear the crucifix.26 Thus, while the Court’s approach has changed and has brought the position under the ECHR closer to that under EU law, employers retain significant scope to regulate religious expression or actions in the workplace if they can be shown to impinge on the rights of others or legitimate interests of the employer. 10.14 Importantly, religious organisations and individuals have not simply claimed protection from discrimination, they have, in certain instances, also claimed the right to discriminate in the name of religious freedom. Religious employers have claimed a collective right to religious autonomy that they claim should override the individual religious autonomy of employees in certain circumstances. This has not merely encompassed the right to ensure religious offices are filled by those committed to the faith in question or doctrinally capable of holding such offices (as in the case of the all-male nature of the priesthood of the Roman Catholic Church). Religious organisations claim a broader right of collective autonomy under which they are to be permitted to operate organisations with significant secular functions, such as schools and hospitals, in line with their ‘ethos’, notwithstanding that such an ethos may require them to discriminate against employees on grounds such as sexual orientation. EU law permits, but does not require, Member States to give limited exemptions 10.15 for organisations ‘the ethos of which is based on religion or belief ’ allowing them to discriminate on grounds of religion ‘where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos.’27 Such organisations may also ‘require individuals working for them to act in good faith and with loyalty to the organisation’s ethos’.28 As these exemptions are not mandatory but can been granted by Member States if 10.16 they so choose, they cannot be seen as representing the consensus view of the extent of collective religious freedom under EU law, but rather reflect the diversity of Member State approaches in this area as well as the Union’s commitment to respecting Member State autonomy in these matters. While Article 9 ECHR, and therefore Article 10 of the Charter, do require Member States to respect the internal autonomy of religious

26 For a fuller analysis of this decision, see R McCrea, ‘Strasbourg Judgment in Eweida and Others v United Kingdom’ UK Const L Blog (16 January 2013), available at http://ukconstitutionallaw.org. 27 n 4 above Art 4(2). 28 Ibid.

296

Ronan McCrea

Art 10 – Freedom of Thought, Conscience and Religion

bodies,29 the extent to which the right to freedom of belief requires exemptions from generally applicable laws outside of purely religious functions is limited, and Member States have significant leeway in balancing the clashing rights to individual freedom of religion of employees and the right of employees to equal treatment, on the one hand, and the collective religious freedom of religious employers reflected in a claim to be entitled to require employees to follow the teachings of their religious employer. The tension between freedom of religion and belief and anti-discrimination is also 10.17 seen at an individual level. Religious individuals have claimed that the duty not to discriminate in the provision of services is itself a discriminatory infringement of their right to freedom of religion. In Eweida and others v United Kingdom, as noted above, two claimants seeking exemptions from anti-discrimination policies (a Christian registrar disciplined for refusing to register same-sex civil unions, and second involving a sex therapist dismissed for refusing to counsel same-sex couples) lost their challenges to their dismissal before the Strasbourg Court. The applicants in both cases relied on the fact that the relevant service could have been provided by colleagues while their opponents stressed the moral significance of discriminatory acts beyond deprivation of the relevant service.30 As will be discussed below, the European Court of Human Rights has generally been unsympathetic to individual claims for exemption from generally applicable laws,31 and Directive 2000/78 specifically envisages the restriction of the duty to facilitate the religious identity of employees on the basis of the protection of the rights and freedoms of others.32 In addition to anti-discrimination rights, the right of employers to conduct their 10.18 business is a further element which can be taken into account in order to place limits on facilitation of individual religious freedom in the workplace. Article 16 of the Charter protects the ‘freedom to conduct a business in accordance with Community law and national laws’. This limitation was recognised in EU anti-discrimination law long before the Charter. In the Prais case,33 the Court of Justice had found that an employer’s duty to facilitate religion could extend only to a duty to take ‘reasonable steps’ to avoid setting a day for recruitment examinations that clashed with religious obligations. In other areas of anti-discrimination law the Court of Justice has cited the need to avoid placing ‘an intolerable burden on employers’34 to limit a duty to justify difference in pay between employees, while ‘justifiable operational reasons’35 were invoked to limit the duty to facilitate employees in their taking of parental leave. Thus, as I have written elsewhere, the Court has been willing ‘to circumscribe rights to equal treatment and the facilitation

29

Hasan and Chaush v Bulgaria (2002) 34 EHRR 1339. For a debate on the significance of discriminatory acts in the absence of the deprivation of service to any individual victim, see J Rozenburg, ‘Religious Beliefs Should Be Respected When Rights Are Not Impeded’ Law Society Gazette, 30 August 2012 (www.lawgazette.co.uk/opinion/joshua-rozenberg/religious-beliefsshould-be-respected-when-rights-are-not-impeded) and R McCrea, ‘Discriminatory Acts Have a Moral Significance’ Law Society Gazette, 6 September 2012 (www.lawgazette.co.uk/opinion/comment/discriminatoryacts-have-a-moral-significance). 31 Pichon and Sajous v France App no 49853/99 (Decision of 2 October 2001). 32 n 4 above Art 2(5). 33 Case 130/75 Prais v Council (Judgment of 27 October 1976). 34 Case C-17/05 BF Cadman v Health and Safety Executive [2006] ECR I-9583 (AGO). 35 Case C-116/06 Sari Kiiski v Tampereen kaupinki [2007] ECR I-7643 (AGO). 30

Ronan McCrea

297

Part I – Commentary on the Articles of the EU Charter

of individual identities in order to protect the ability of enterprises to operate efficiently within a competitive economy’.36 The recognition of a right to conduct business within the Charter confirms this element of the caselaw of the Court of Justice and is consistent with the decision of the Strasbourg Court in Eweida where the Court recognised commercial interests such as the need to present a particular corporate image as a legitimate reason to restrict religious expression in the workplace (albeit that in Ms Eweida’s case, the restriction was held to be disproportionate). 10.19 Finally, the jurisprudence of the Strasbourg Court indicates that certain limits on religious influence over law are required by the liberal democratic nature of the Convention. In Refah Partisi v Turkey the Court held that the dissolution of a political party that was held to desire to establish a theocracy was consistent with the ECHR on the basis that theocracy was inconsistent with the liberal democratic system of government envisaged by the Convention.37 Such a limitation is consistent with the wording of Article 9(2) ECHR which notes that religious freedom can be restricted when ‘necessary in a democratic society … for the protection of public order … or the rights and freedoms of others’. A similar commitment to some limitation on religious influence over law and politics has been seen in EU law in the Charter’s commitment to liberal democracy and the ECHR,38 in the preamble to the Lisbon Treaty which speaks of the ‘cultural, religious and humanist heritage of Europe’ and Directive 2000/78 which largely repeats the limitations set out in Article 9(2) ECHR. The process of accession of new members also reflects this commitment, with applicant states having been required to decriminalise homosexuality,39 to refrain from criminalising adultery40 and to accept ‘democratic secularism’.41 Therefore, religiously motivated actions that aim at undermining the secular nature of the legal and political systems are likely to fall outside the protection of the Charter. The significance of these limitations is considered in more detail below.

C. Sources of Article 10 Rights 10.20 Freedom of conscience and religion is well recognised as a fundamental right and can be found in almost all of the major human rights instruments. Article 18 of the Universal Declaration of Human Rights,42 Article 18 of the International Covenant on Civil and

36 See R McCrea, Religion and the Public Order of the European Union (Oxford and New York, Oxford University Press, 2010) 155. 37 Refah Partisi v Turkey (2003) 37 EHRR 1. 38 n 1 above, preamble. 39 n 36 above, pp 202–05. 40 Ibid pp 205–208. 41 Ibid p 182. 42 Art 18 of the Universal Declaration of Human Rights reads: ‘Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.’

298

Ronan McCrea

Art 10 – Freedom of Thought, Conscience and Religion

Political Rights43 and Article 1 of the United National Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief 44 all endorse freedom of religion and conscience in remarkably similar terms to Article 10 of the Charter. The Refugee Convention recognises persecution on religious grounds as a basis for asylum (Article 1).45 However, as noted above, by far the greatest source of law for Article 10 of the Charter 10.21 is Article 9 of the ECHR and the jurisprudence of the ECtHR related to it. The explanatory text that accompanies the Charter, as we have seen, makes it clear that Article 10 is intended to have the same meaning as Article 9. Furthermore, given the importance attached by the CJEU to the ECHR in determining the content of the ‘general principles of law’ which have been a feature of the Court of Justice’s jurisprudence for over 40 years and which continue to constitute an element of EU fundamental rights, the Convention’s approach to freedom of conscience and religion will be a major determinant of the content of Article 10 of the Charter. Finally, EU legislation may also be relevant to the rights protected by Article 10. Such 10.22 legislation does not amend or qualify the text of Article 10 but may provide a background of norms which may inform the meaning attributed to the Article by the Court of Justice.

D. Analysis I. General Remarks The fact that the meaning of Article 10 will largely be determined by the jurisprudence of the ECtHR in relation to Article 9 ECHR should not prove problematic for the CJEU, which has a limited pre-existing case law in the area of freedom of conscience 43 Art 18 of the International Covenant on Civil and Political Rights reads: ‘1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.’ 44 Art 1 of the United National Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief reads: ‘Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have a religion or whatever belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice or teaching.’ 45 Art 1 of the Refugee Convention gives the right to asylum to anyone who, ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.’

Ronan McCrea

299

10.23

Part I – Commentary on the Articles of the EU Charter

to reconcile with the Charter, and whose general principles of law have always relied heavily on Strasbourg case law.46 The only area where there has been scope to distinguish between the limited EU caselaw in this area and Strasbourg’s Article 9 ECHR jurisprudence is in relation to the issue of positive duties. There are hints in the CJEU decision in Prais v Council47 that EU fundamental rights norms are more sympathetic to requiring some active facilitation of religious freedom in areas such as employment. However, the Prais decision is by no means clear on this point, so the scope for divergence may be limited. In this case, the Court was faced with a challenge by an individual who could not take a recruitment exam, as it fell on a religious holiday. The Court concluded that ‘Insofar as the Defendant, if informed of the difficulty [of taking the exam on that day] would have been obliged to take reasonable steps to avoid fixing for a test a date which would make it impossible for a person of a particular religious faith to undergo the test, it can be said that the Defendant in the present was not informed of the unsuitability of certain days until the date for the test had been fixed, and the Defendant was in his discretion entitled to refuse to fix a different date.’48 The judgement is unclear as to whether it was merely desirable for the defendant to change the date if informed in good time, or whether this was an obligation. EU anti-discrimination legislation in relation to religion in employment (which had not been enacted at the time of the Prais litigation) now means that employers are under an obligation to facilitate individuals in this way, but whether EU fundamental rights law requires this remains an open question. In any event, the recent decision in Eweida lessens the scope for any difference between Strasbourg and Luxembourg in this regard.

II. Scope of Application 10.24 As its wording makes clear, Article 10 applies to thought, conscience and religion. Non-religious viewpoints are therefore also covered. The Strasbourg institutions have recognised beliefs such as pacifism,49 veganism50 and opposition to abortion51 as coming within the ambit for Article 9 ECHR, provided that they ‘attain a certain level of cogency seriousness, cohesion and importance.’52 This broad approach was confirmed in the CJEU decision in Y and Z, which noted the broad definition given to the concept of religion in the Directive regulating asylum.53 10.25 Article 10 also covers acts of manifestation of religion and belief as well as the simple holding of beliefs. In Y and Z the CJEU refused to hold that restriction of the manifestation of religious belief was necessarily less severe than interference with the right to hold a belief.54 As with all provisions of the Charter, and as already noted, Article 10 binds the institutions of the Union and Member States when they are implementing or

46 47 48 49 50 51 52 53 54

300

n 7 above. n 33 above. Ibid [19]. Arrowsmith v United Kingdom App no 7050/75 (1978) 19 DR 5. H v United Kingdom (1993) 16 EHRR 44. Knudsen v Norway (1986) 8 EHRR 45. Campbell and Cosans v United Kingdom (1982) 4 EHRR 293 [36]. n 10 above. Ibid.

Ronan McCrea

Art 10 – Freedom of Thought, Conscience and Religion

derogating from EU law but does not confer new competence on the Union in the area of religious freedom.

III. Specific Provisions According to established case law of the ECtHR, the right to freedom of religion and conscience covers two distinct rights: an almost absolute right to protection of a forum internum, within which people must be free to choose their own belief, and a limited right to manifest such beliefs and a more qualified right to manifest such religious beliefs. Article 10 fits into a growing EU legal presence in religious matters. It may impact on the interpretation of Treaty provisions such as those in Article 17 of the Lisbon Treaty, which provides that the Union ‘respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States’ and which undertakes to maintain a structured dialogue with churches and ‘philosophical and non-confessional organisations’.55 It will certainly be taken into account in interpreting legislation that touches on religious rights. As noted above, anti-discrimination law is relevant in this regard. The decision of the Court of Justice in Coleman v Attridge Law,56 that the prohibition on discrimination on grounds of disability covers a situation where someone who is not disabled is discriminated against on grounds of association with a disabled person means that, in terms of EU law, discrimination on grounds of association with a person of a particular faith or on the grounds of erroneous perception that someone is of a particular faith is likely to fall within EU anti-discrimination law. Beyond anti-discrimination, the Union has also enacted law in areas such as animal welfare (in relation to religious slaughter)57 and broadcasting (in relation to restrictions on discriminatory broadcasts and advertising during the broadcast of religious services) that relate to religious activities. Finally, Article 10 contains a specific provision relating to the right to conscientious exemption ‘in accordance with national laws’. Although the Court of Justice has been willing to intervene to impose compliance with equality norms in the military context,58 the Union generally does not have jurisdiction over matters such as national defence so this provision may be of limited impact.

10.26

10.27

10.28

10.29

10.30

IV. Limitations and Derogations (a) Forum Internum and Manifestation Article 10 of the Charter does not contain the equivalent of the limitation clause seen in Article 9(2) ECHR. However, the explanatory text makes it clear that the rights it provides are intended to be subject to the limitations set out in Article 9(2).

55 56 57 58

Treaty on the Functioning of the European Union [2008] OJ C115/47, Art 17. n 19 above. n 6 above. Case C-285/98 Kreil v Germany [2000] ECR I-69.

Ronan McCrea

301

10.31

Part I – Commentary on the Articles of the EU Charter

10.32

The right to hold a belief has generally been regarded as absolute. This does not mean that adverse consequences may not, in limited circumstances flow from the fact that an individual holds particular beliefs. The CJEU has found59 and EU policy guidelines envisage,60 that Member States may make citizenship or residence conditional on migrants satisfying integration tests, and some Member States have refused citizenship or residence, on the basis that the individual in question holds beliefs that are inconsistent with values such as gender equality.61 10.33 However, although the Charter distinguishes between the right to hold and the right to manifest beliefs, the CJEU has not viewed the right to manifest religious belief as being of lesser importance. In the Y and Z decision, the Court of Justice explicitly considered Article 10 for the first time. It was faced with a reference from a German court dealing with the case of Muslims from the Ahmadiyya sect, who claimed they would be persecuted if they publicly followed their faith in Pakistan. The German Court requested an interpretation of the notion of ‘persecution’ in relation to Council Directive 2004/83/ EC which, inter alia, sets down minimum standards in relation to asylum.62 It asked whether only interference with the ‘core area’ of religious freedom, rather than all acts that would violate Article 9 ECHR, constitutes such persecution and if so, whether public manifestation of a religious faith could fall within such a core. The Court declined to divide freedom of religion into core and non-core areas. This, it said, would be inconsistent with the broad definition of religion given by the Directive, which covered ‘the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief ’.63 Accordingly, the Court decided that interference with the manifestation of religious freedom, as well as the ‘forum internum’ of private belief could, if appropriately severe, constitute persecution for the purposes of the directive. The Charter did not play a major role in this case, as the Court’s conclusion was driven more by the wording of the relevant directive than Article 10(1). It is however, notable that the judgment explicitly states that Article 10(1) of the Charter ‘corresponds to Article 9 ECHR’64 and that freedom of religion is ‘one of the foundations of a democratic society’, a ‘basic human right’; but nevertheless a right that could be restricted, all of which is very much in line with existing Strasbourg case law. Although its decision in X and Y shows that the CJEU views manifestation as key to 10.34 religious freedom, the Strasbourg Court has made it clear that manifestation of religion and belief can be restricted to a significant degree. Limits on the broader right to manifest (rather than merely to hold) religious beliefs can, under the terms of Article 9(2) ECHR, be limited if the limitations are ‘prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health of

59

Case C-540/03 Parliament v Council [2006] ECR I-5769. n 36 above, ch 6 pp 224–27. 61 Ibid pp 237–53. See also Conseil d’Etat, Decision 286798, Faiza M, available at: www.conseil-etat.fr/fr/ selection-de-decisions-du-conseil-d-etat/analyse-n286798-mme-m.html. 62 Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or Stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [2004] OJ L304/12; addendum [2005] OJ L204/24. 63 n 10 above. 64 Ibid. 60

302

Ronan McCrea

Art 10 – Freedom of Thought, Conscience and Religion

morals, or the protection of the rights and freedoms of others’.65 These limitations have inspired a growing case law which grants significant latitude to states to restrict manifestation of religious belief in particular contexts. Given that Article 10 of the Charter is intended to mirror the protection given by Article 9 ECHR, these limitations are likely to be important in the interpretation of religious freedom under EU law. The main limitations seen in the jurisprudence of the Strasbourg institutions are as follows. (b) A Largely Private Right The ECtHR has been willing to accept significant restriction of religious freedom in 10.35 public contexts. In Arrowsmith v UK the European Commission of Human Rights stated that ‘Article 9 does not give individuals the right to behave in the public sphere in compliance with all of the demands of their religion or belief.’ This statement has been repeated on several occasions by the Court.66 Limitations on religion or belief that were ‘generally applicable and neutral’67 have been repeatedly upheld. In C v UK the Commission rejected the claim of a Quaker who objected to being required to pay income tax which might be used for purposes inconsistent with his pacifist beliefs. It held that ‘Article 9 primarily protects the sphere of personal beliefs and creeds’ and that ‘it does not always guarantee the right to behave in the public sphere in a way which is dictated by such a belief ’. It went on to conclude that there was no violation of the Convention as, inter alia, the legislation ‘applies neutrally and generally in the public sphere’.68 Challenges to taxation arrangements, the compulsory vaccination of farm animals69 and mandatory voting70 have been upheld on a similar basis. These cases all involved consideration of a clash between the needs of the state in public matters such as regulation of the market, taxation and the political sphere, with the religious beliefs and practices of individuals who enter into such areas as consumers, producers or citizens. In each case the ECtHR upheld the right of the state to interfere with individual religious identities in order to ensure that the attainment of government goals in these areas would not be compromised and refused to require states to provide to religious beliefs, protections not given to other beliefs or opinions. (c) A Duty Actively to Facilitate? The Court’s view that, apart from circumstances where the state in some way imposes a particular religion on individuals in public contexts such as state schools71 or the legislature,72 individual religious freedom is a right that is largely restricted to the private

65

European Convention on Human Rights, Art 9(2). n 49 above. 67 Chappell v UK App no 12587/86 (1987) 53 DR 146. 68 Ibid. 69 X v Netherlands App no 1068/61. 70 X v Austria App no 1718/62. 71 Folgero v Norway (2007) 46 EHRR 1147. However, as discussed below in Lautsi v Italy App no 30814/06 (Grand Chamber, Decision of 18 March 2011), the state has significant leeway to maintain religiously specific traditional symbols provided that their presence does not amount to indoctrination. 72 Buscarini v San Marino (1999) 30 EHRR 208. 66

Ronan McCrea

303

10.36

Part I – Commentary on the Articles of the EU Charter

sphere and which does not generally provide an entitlement to special accommodation beyond this sphere, was also seen in its characterisation of religion as a purely voluntary matter whose adherents can be taken to have waived their right to adhere fully to their religion when they leave the private and personal arena. In Ahmad v UK73 for example, the case of a Muslim teacher who was refused time off by his employer to attend mosque on Fridays, failed partly on the basis that he had agreed to such limitations on his freedom of religion when he had accepted a contract of employment, which did not provide for time off on Fridays. In Stedman v UK74 no violation of the Article 9 was found in the case of an applicant who refused to work on Sundays. on the basis that she was free to leave her employment, while in the case of Karaduman v Turkey,75 as noted above, the applicant’s decision to attend a university whose regulations forbade the wearing of headscarves was seen by the court as having constituted agreement to waive her right to wear the garment while being photographed for her university ID card. As discussed above, this line of case law was abandoned by the Court in Eweida v United Kingdom, where the judgment noted that the Court had not held that the right to resign was sufficient in relation to free expression or free association rights, and that ‘Given the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.’76 Thus it may be necessary to accommodate religious freedom, but such accommodation may be restricted in order to respect other rights and interests such as the right to be free from discrimination or the right to run a business. 10.37 The Court’s previous failure to require Member States to provide protection for the right to have one’s religious practices accommodated in areas such as employment did bring the risk that the religious practices of adherents of majority religions would receive greater protection, given that social and economic life is, for historical reasons, likely to be arranged around their practices (with for example holidays covering the Christmas period and the weekly rest period covering Sundays in mainly Christian countries). However, in such circumstances, the greater ability of adherents to particular faiths to adhere to their religion in public is not a result of the Court granting them more extensive protection of their religious freedom but reflects the fact that, due to the cultural influence of their faith on the cultural norms and structures of individual states, there is no clash between the needs of their faith and collective norms and structures. In such circumstances the issue of protection of religious freedom and Article 9 (ECHR) rights simply does not arise. Were collective norms and structures to evolve in ways which clashed with the needs of adherents to a historically dominant faith, such adherents would not, before the Eweida decision, have been able to rely on Article 9 for more extensive protection than is currently provided to religious minorities by the Court. This did not mean that minority religions received less protection under Article 9,

73 74 75 76

304

n 24 above. Stedman v UK (1997) 23 EHRR CD 168. Karaduman v Turkey App no 16278/90 (1993) 74 DR 74. Eweida n 25 above [83].

Ronan McCrea

Art 10 – Freedom of Thought, Conscience and Religion

but did mean that Article 9 was limited in its ability to compensate for the fact that minority religions are less likely to be able to influence the formation of communal norms and may therefore need to rely on fundamental rights protections to a greater degree to achieve equal protection of their religious liberty. In any event, even without the recent change of course by the Strasbourg Court in 10.38 Eweida, EU legislation, (Directive 2000/78), by prohibiting indirect discrimination on religious grounds (if it cannot be objectively justified), ensures that, in the area of employment at least, an element of active facilitation will be required by EU even though it is legislative provision rather than Article 10 of the Charter that brings this about. (d) Exemptions from Generally Applicable Duties While EU legislation and, following the decision in Ewieda, Article 9 ECHR, may both 10.39 require some active facilitation of religious belief in the workplace, such facilitation is limited by the need to protect the rights and freedoms of others and by the need to carry out the fundamental duties of the post in question. Indeed Directive 2000/78 mirrors the restrictions in Article 9(2) ECHR to a significant degree, stating that the Directive is ‘without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.’ The Court of Human Rights sees the need to protect public order and the rights of 10.40 others as justifying a refusal to exempt religious employees from duties that clash with their religious convictions. Thus, in Pichon and Sajous v France,77 the conviction of pharmacists who refused on religious grounds to supply contraceptives that had been lawfully prescribed was upheld on the basis of the need to take account of both health policy and the rights and freedoms of others. Similarly in Eweida,78 the disciplining of a registrar who refused to carry out same-sex civil partnerships due to a religiously based disapproval of homosexuality was upheld by the Strasbourg Court, on the basis that the importance of protecting individuals from discrimination meant that her employer was entitled to require staff to provide services on a non-discriminatory basis. It should be noted that, as mentioned above, Directive 2000/78 allows states to 10.41 exempt ‘churches and other public or private organisations, the ethos of which is based on religion or belief ’,79 from anti-discrimination norms to a limited degree, in that it permits discrimination in order to protect their ‘ethos’. However, this right is one that Member States are permitted but not required to give, and is one that results from legislation rather than fundamental rights norms. Certainly the internal autonomy of religious institutions recognised by the Strasbourg Court would require states not to force, for example the Roman Catholic Church to employ females or non-Catholics as priests. The protection provided by Article 9 ECHR, and therefore in all likelihood Article 10 of the Charter, would not, however, extend to requiring that broader exemptions

77

n 31 above. See Eweida, n 25 above. The decision in Eweida covered four cases. The case relating to the registrar was known in the UK litigation as Ladele v London Borough of Islington [2009] EWCA Civ 1357. 79 n 4 above, Art 4(2). 78

Ronan McCrea

305

Part I – Commentary on the Articles of the EU Charter

be granted to cover all kinds of employees of religious bodies. Indeed, the European Commission has threatened the United Kingdom with legal action for failing to restrict such exemptions to situations where there is a ‘genuine and determining occupational requirement’.80 (e) Secularism and Limits on Religion in Public Institutions 10.42 Though it sees religious freedom as one of the most important freedoms,81 the Strasbourg Court has also seen politically ambitious religion as a threat to liberal democracy and has been willing to restrict religious freedom on that basis. In Refah Partisi v Turkey,82 the Court upheld the dissolution of a political party that was alleged to aim at the introduction of a theocratic regime in Turkey. The Court held that theocracy was incompatible with the Convention, and that states were justified in taking restrictive measures to prevent it. Such an approach is consistent with that of EU institutions which have insisted, in the context of the enlargement process, that limitation on the political and legal influence of religion is a requirement of membership of the Union.83 10.43 Though it firmly rejects theocracy and politically dominant religion, the Court has given a relatively free hand to states in terms of the regulation of religious symbols in public institutions. National education systems have been a major area of litigation in this regard. In Dahlab v Switzerland 84 the Court upheld the refusal to allow a teacher to wear a headscarf, on the basis that the state was entitled to seek to ensure the neutrality of the education system. Even more controversially, in Sahin v Turkey,85 it upheld the right of the state to refuse a university student the right to wear a headscarf, on grounds of the possible pressure that this might place on other students. On the other hand, in Lautsi v Italy 86 the Grand Chamber of the Court permitted the display of a crucifix in Italian state schools on the basis that this was simply a passive symbol whose presence was a cultural tradition. Thus states appear to be free to maintain symbols whose presence is seen as ‘passive’, part of ‘cultural tradition’ and therefore non-indoctrinating. States are also free to remove religious symbols entirely from the educational context, including by preventing staff and students from wearing religious symbols. There are limits to state discretion, however. Mandatory courses in Norway and Turkey that were held to promote the truth of a particular faith were held to violate the Convention. Beyond the educational sphere, in Buscarini v San Marino87 the Court held that San Marino was not entitled to retain a traditional oath that required legislators to swear ‘on the Holy Gospels’ in order to take up their seats. Thus, the Court recognises the legitimacy of the desire to ensure religiously neutral state institutions, and recognises exclusion of religious symbols from state contexts as a legitimate means to pursue such

80 Procedure no 2007/2362 of 31 January 2008, which was supplemented by Reasoned Opinion IP/09/1620 of 29 October 2009. 81 Thlimmenos v Greece (2000) 31 EHRR 411. 82 n 37 above. 83 n 36 above, ch 6. 84 Dahlab v Switzerland App no 42393/98 (Decision of 15 February 2001). 85 Sahin v Turkey (2005) 41 EHRR 8. 86 n 71 above. 87 n 72 above.

306

Ronan McCrea

Art 10 – Freedom of Thought, Conscience and Religion

neutrality. On the other hand it leaves states free to retain religiously specific cultural traditions and symbols, provided that by doing so they do not slip into indoctrination in favour or a particular faith, or endorse, through state institutions, the truth claims of a particular faith. To summarise, Article 9 ECHR envisages, and therefore Article 10 is likely to provide, 10.44 that beyond the private sphere, states have a relatively wide discretion in restricting religiously motivated actions in non-private contexts such as schools and the workplace. There is little EU case law in relation to freedom of religion and conscience, but EU legislation used to go beyond the requirements of Article 9 ECHR in important aspects, most notably in providing for a degree of active facilitation of religious identities in the workplace, but this difference has decreased, in the light of recent Strasbourg jurisprudence.

V. Remedies The question of remedies and Article 10 is most likely to arise in relation to the interpretation of national legislation implementing EU law in areas such as employment discrimination. Member States have long been constrained to respect the fundamental rights reflected in the Union’s general principles of law in implementing and derogating from EU law.88 The Charter reinforces this obligation. There is also the possibility that EU secondary legislation may be found to breach Article 10 and may therefore be void but, given that EU legislation as it stands exceeds the level of protection of religious freedom required by Article 9 ECHR, this is, for the moment, an unlikely eventuality.

10.45

E. Evaluation Article 10, like Article 9 ECHR, begins with the words ‘Everyone has the right …’, thus 10.46 reflecting the fact that the protection of freedom of thought conscience and religion under the Charter oriented towards protecting a largely individual right, albeit that it can be exercised in community with others and by collective institutional means. The grouping of ‘thought, conscience and religion’ together reflect the predominant Western view of religion as a matter of individual belief, rather than a matter of behaviour and following a certain way of life.89 There is, of course, nothing wrong with the fundamental rights documents of a community of European states reflecting predominant European ideas of religion, and such cultural conceptions of religion may reflect deep moral norms in relation to what it is that is morally valuable about religious freedom. This may, however, mean that religions whose formative cultural influences are nonEuropean, may struggle to fit their claims into the structures of Article 10 to a greater degree.

88

See Case C-260/89 ERT [1991] ECR I-2925. See W Cantwell Smith, The Meaning and the End of Religion (New York, Macmillan, 1963) chs 2 and 3, which state that the notion of religion, let alone the primacy of particular beliefs as opposed to a religious way of life, is alien outside traditional European religions. 89

Ronan McCrea

307

Part I – Commentary on the Articles of the EU Charter

10.47

Furthermore, Article 10 is linked to a broader network of individual autonomy rights in matters such as privacy (Art 7), freedom of expression (Art 11) and freedom of association (Art 12), all of which reflect the Union’s stated desire to place ‘the individual at the heart of its activities’.90 Thus the commitment in Article 10 is part of a wider commitment to individual autonomy and which values religious freedom as a means through which individuals can construct their own identity and come to their own conclusions on fundamental matters.91 This is a very secular view of religion, which, as I have written elsewhere, sees it as worthy of protection only ‘insofar as our commitment to human autonomy compels us to ensure that all items are on the “menu” in the cultural and philosophical restaurant.’92 Such a view is in some ways inconsistent with the collective claims of many religions which, as Delacoura notes, draw strength from ‘socialisation, worship and the existence of taboos’93 and which have had a very complex and conflicted relationship to individual autonomy over the centuries. 10.48 This emphasis on religious freedom as an element of individual autonomy is reflected in the fact that the main right protected by Article 9 ECHR and Article 10 of the Charter is one of private, individual autonomy. Religious freedom beyond the personal and private zone is, to a significant degree, a zero-sum game where more freedom for one party results directly in less religious freedom for another. Thus, European fundamental rights norms have been willing to give states a relatively free hand to restrict religious freedom in public contexts in order to balance it against other rights such as freedom from discrimination. 10.49 Such norms have also been informed by the centrality of the separation between religion, state and law to the democratic, popular sovereignty-based constitutional order of European states and have therefore been equally willing to permit states to restrict religious expression in state contexts. Certainly, increasing regulation of religious dress outside state contexts represents a challenge to a secular system based on distinguishing between the state and private arenas. Whether such laws will be upheld by European institutions remains to be seen.94 In relation to restrictions on religious expression in the workplace, EU anti-discrimination legislation may provide a promising basis for challenges to restrictions on religious expression at work. Though heavily focused on individual autonomy in religious matters, European fun10.50 damental rights norms are also underpinned by significant recognition of the cultural importance of religion for European states. Particular religious traditions have had formative influences on national identity and national symbols and freedom of religion has not been held to require states to remove religiously specific cultural symbols from public contexts. EU anti-discrimination legislation also permits Member States to facilitate the continued role of religious institutions in areas such as education and healthcare by disapplying some anti-discrimination laws to their employment practices.

90

n 1 above, Preamble. For liberal defences of religious freedom see J Raz, The Morality of Freedom (Oxford, Clarendon Press, 1988) 396, J Rawls, A Theory of Justice (Cambridge MA, Harvard University Press, 1971) 17–22 and R Dworkin, Taking Rights Seriously (Cambridge MA, Harvard University Press, 1977) 272–73. 92 n 36 above, p 111. 93 K Dalacoura, Islam, Liberalism and Human Rights: Implications for International Relations (London, IB Tauris, 1998) 11. 94 For a discussion of the likelihood of the French ban on face-covering in public surviving review before the ECtHR, see R McCrea, ‘The Veil Ban and European Law’ (2013) 13(1) Human Rights Law Review 57–99. 91

308

Ronan McCrea

Art 10 – Freedom of Thought, Conscience and Religion

While some may regret the failure of EU law to take a strong stand either in favour of institutional religious autonomy or against discrimination in the workplace, European institutions, particularly judicial institutions, simply do not have the democratic legitimacy to impose sweeping changes on relationships between state and particular faiths in an area as sensitive as this so a degree of pragmatic compromise and tolerance of divergent approaches amongst Member States is inevitable. As the case law of the ECtHR currently stands, Article 9 may also be invoked to restrict 10.51 mockery of religion. Whether the CJEU will give a similar interpretation to Article 10 of the Charter is unclear. The Article 9 jurisprudence was heavily criticised by three of the seven judges in IA v Turkey and by the English and Welsh Administrative Court in R (Green) v City of Westminster Magistrates’ Court. The pointed questioning, in judgment in the latter case of precisely how mockery of someone’s faith interferes with an individual’s right to hold the beliefs that were being mocked, has much force. In any event, given the restricted field of application of EU law, it is more likely that such conflicts will be determined in Strasbourg rather than Luxembourg.

F. Conclusion Though the Article 9 ECHR jurisprudence has been criticised for an overly timid approach to religious freedom, the authors of the Charter made the decision that the protection of the fundamental right to freedom of thought, conscience and religion in EU law should follow the approach of the Strasbourg Court. Therefore, Article 10 is likely to play a role in reinforcing an existing model of European relationships between the individual, the state, religion and the law. It will protect individual private religiosity but recognises that religious freedom can negatively impact on the rights of others and therefore can be limited in areas outside the private sphere. EU legislation may well bring about greater pressure to facilitate a greater degree of religious expression in the workplace but the leeway given by Strasbourg to Member States to limit religious expression in state contexts and to limit religious actions that impact negatively on the rights of others is unlikely to be disturbed by the Charter.

Ronan McCrea

309

10.52

Article 11 Article 11 Freedom of Expression and Information 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. 2. The freedom and pluralism of the media shall be respected.

Text of Explanatory Note on Article 11 Article 11 corresponds to Article 10 of the European Convention on Human Rights, which reads as follows: ‘1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for the maintaining the authority and impartiality of the judiciary.’ Pursuant to Article 52(3) of the Charter, the meaning and scope of this right are the same as those guaranteed by the ECHR. The limitations which may be imposed on it may therefore not exceed those provided for in Article 10(2) of the Convention, without prejudice to any restrictions which the competition law of the Union may impose on Member States’ right to introduce the licensing arrangements referred to in the third sentence of Article 10(1) of the ECHR. Paragraph 2 of this Article spells out the consequences of paragraph 1 regarding freedom of the media. It is based in particular on Court of Justice case-law regarding television, particularly in Case C-288/89 (Judgment of 25 July 1991, Stichting Collective Antennevoorziening Gouda and others [1991] ECR I-4007), and on the Protocol on the system of public broadcasting in the Member States annexed to the EC Treaty and now to the Treaties, and on Council Directive 89/552/EC (particularly its seventeenth recital).

Select Bibliography E Barendt, Freedom of Speech, 2nd edn (Oxford, Oxford University Press, 2005). P Cavaliere, ‘An Easter egg in the Charter of Fundamental Rights: the European Union and the rising right to pluralism’ (2012) 2 International Journal of Public Law & Policy 357. R Craufurd Smith, Broadcasting Law and Fundamental Rights (Oxford, Clarendon Press, 1997). A Hagen Meyer, ‘Nutrient profiles: advertising ban violates the law of the European Union’ (2012) 7 European Food and Feed Law Review 62–73.

Part I – Commentary on the Articles of the EU Charter

D Jancic, ‘The European political order and internet piracy: accidental or paradigmatic constitution-shaping?’ (2010) 6 European Constitutional Law Review 430. SR Mehta, ‘Sir Thomas’ blushes: protecting parliamentary immunity in modern parliamentary democracies’ (2012) European Human Rights Law Review 309. J Morijn, ‘Balancing Fundamental Rights and Common Market Freedoms in Union Law: Schmidberger and Omega in the Light of the European Constitution’ (2006) 12 European Law Journal 15. H Randall, ‘Commercial Speech under the European Convention on Human Rights: Subordinate or Equal?’ (2006) Human Rights Law Review 53. JP Sluijs, ‘From Competition to Freedom of Expression: Introducing Article 10 ECHR in the European Network Neutrality Debate’ (2012) Human Rights Law Review 509. Ad van Loon, ‘Freedom versus Access Rights in a European Context’ in CT Marsden (ed), Regulating the Global Information Society (Abingdon, Routledge, 2000). L Woods, ‘Freedom of Expression in the European Union’ (2006) 12 European Public Law 371.

A. Field of Application of Article 11 11.01 The text of Article 11 refers to freedom of expression ‘regardless of frontiers’. While this cross-border element parallels the four Treaty freedoms, particularly Article 56 TFEU, the concern with cross border flows of information is not unique to the EU. The main human rights texts all refer to a right irrespective of borders.1 11.02 The Explanations link Article 11 to the CJEU’s jurisprudence on general principles, supporting an interpretation of scope in similar terms.2 In ERT, which concerned a broadcasting monopoly, the Court reiterated that it would only have jurisdiction to undertake a human rights review within the scope of EU law.3 Although crucial, the boundary between EU law and national law (internal situation) is uncertain. The case law on freedom of expression demonstrates a broad interpretation of the scope of EU law. First, the area constituting derogation has been held to fall within its sphere.4 1 Association Ekin v France App no 30882/96, Reports of Judgments and Decisions 2001-VIII concerning the prohibition in France of a book on the historical, cultural, linguistic and socio-political aspects of the Basque conflict. Relevant French law permitted the banning of foreign books. Apart from the width of the term, ‘foreign’, this law appeared to be in direct conflict with the actual wording Art 10(1) ECHR. See also Art 19(2) ICCPR. 2 For an argument that the terms of Art 51 EUCFR should not detract from the pre-existing case law see eg K Lenaerts. and JA Gutiérrez-Fons, ‘ The constitutional allocation of powers and general principals of EU law’ (2010) 47 Common Market Law Review 1629, 1658–60. 3 Case C-260/89 Elliniki Radiophonia Tileorassi AE (ERT) v Dimotiki Etairia Pliroforissis [1991] ECR I-2925 [42]–[43]. The explanations to the EUCFR state that Art 51 follows this line of case law, though some commentators have suggested that there are differences: NN Shuibhne, ‘Margins of appreciation: national values, fundamental rights and EC free movement law’ (2009) European Law Review 230, 242. Case C-617/10 Åklagaren v Hans Åkerberg Fransson (Judgment 26 February 2013) reiterates the link between Art 51(1) EUCFR and ERT [19], adopting a broad approach to the scope of EU law [28], in contrast to the suggestions of the Advocate General. 4 See eg Case C-112/00 Schmidberger [2003] ECR I-5659; Case C-368/95 Vereinigte Familiapress Zeitungsverlags-und Vertriebs GmbH v Heinrich Bauer Verlag [1997] ECR I-3689. Other commentators have suggested that once a derogation has been established, the matter should fall outside EU law: see eg FG Jacobs, ‘Human Rights in the European Union: The Role of the Court of Justice’ (2001) 26(4) European Law Review 331, 337. Case C-71/02 Karner [2004] ECR I-3025 is potentially broader, as it concerned a national measure

312

Lorna Woods

Art 11 – Freedom of Expression and Information

Second, a generous approach has been taken as to when the criteria for EU law’s application are satisfied.5 There are some exceptions. In Grogan the Court took a strict line on the existence of a service within the meaning of Article 56 TFEU.6 Grogan may be a case limited to its facts; it concerned information on the termination of pregnancies, a politically sensitive question in the Member State concerned.7 Beyond this, Member States’ regulatory structures and attempts to support public service will be reviewed by reference to EU competition and free movement law, thus falling within EU law even as regards matters that are state responsibility. The obligation to respect freedom of expression also applies to the EU institutions, including their relationship with their employees.8 EU legislation must be interpreted in the light of general principles9 and legislation enacted at EU level, such as the Audiovisual Media Services Directive (AVMSD)10 and the e-Commerce Directive,11 specifically note the need to respect freedom of expression.12 While the AVMSD only partially harmonises the field, remaining national regulation falls within the scope of EU law as such regulation cannot constitute a secondary control on free movement.13 Member States’ implementation of directives likewise falls within the scope of EU law and, indeed, it is here that the difficulties often arise.14

which benefitted from the ‘Keck exception’; J Kühling, ‘Fundamental Rights’ in A von Bogdandy and J Bast (eds), Principles of European Constitutional Law, 2nd edn (Oxford, Hart publishing, 2010) 500. For a review see: H Kaila, ‘The Scope of Application of the Charter of Fundamental Rights of the European Union in the Member States’, in P Cardonnel, A Rosas and N Wahl (eds), Constitutionalising the EU Judicial System. Essays in Honour of Pernilla Lindh (Oxford, Hart publishing, 2012). 5 On the free movement case law generally, see J Morijn, ‘Balancing fundamental rights and common market freedoms in union law: Schmidberger and Omega in the light of the European constitution’ (2006) 12 European Law Journal 15 6 Case C-159/90 Society for the Protection of Unborn Children (SPUC) v Grogan [1991] ECR I-4685. 7 The Court’s reasoning was criticised: contrast approach by ECtHR in Open Door Counselling Ltd v Ireland Series A/246 (1992) 14 EHRR CD 131. 8 Case C-274/99P Connolly v Commission [2001] ECR I-1611; and as a means of protection: Case C-163/10 Patriciello [2012] 1 CMLR 11 concerning parliamentary immunity. 9 Case C-101/01 Bodil Lindqvist [2003] ECR I-12971 [87]. 10 Council Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) [2010] OJ L95/1 (AVMSD), formerly the Television without Frontiers Directive, Directive 89/552/EC. 11 Directive 2000/31, e-Commerce Directive [2000] OJ L178/1, Recital 9. 12 Recitals 48 and 55 AVMSD (n 10). 13 Joined Cases C-34–36/95 Konsumentombudsmannen v De Agostini (Svenska) Förlag AB (C-34/95) and TV-Shop i Sverige AB (C-35/95 and C-36/95) [1997] ECR I-3843; Joined Cases C-244/10 and C-245/10 Mesopotamia Broadcast A/S METV (C-244/10) and Roj TV A/S (C-245/10) v Bundesrepublik Deutschland (Judgment 22 September 2011). 14 See discussion in Case C-101/01 Lindqvist (n 9) [82]–[87] and views of the Advocate General in Case C-283/11 Sky Österreich GmbH v Österreichischer Rundfunk (Judgment 22 January 2013), regarding the different balancing to take place at Member State level and EU level.

Lorna Woods

313

Part I – Commentary on the Articles of the EU Charter

B. Interrelationship of Article 11 with Other Provisions of the Charter 11.03 Freedom of expression is closely linked to Article 10 which protects freedom of thought, conscience and religion, as well as Article 12 on freedom of assembly and of association.15 Article 13 protects freedom of the arts and the sciences16 separately, though in many systems this freedom is part of freedom of expression. Likewise, Article 22 on cultural religious and linguistic diversity17 can be seen as a specific manifestation of expression. The right to receive information creates links with two further rights: Article 36 on access to services of general economic interest18 (as regards public service broadcasting and, arguably, access to the Internet); and Article 42 Right of Access to Documents. Operating more in tension with freedom of expression are: respect for private and family life (Art 7); Article 8 on the protection of personal data;19 and the somewhat unusual right to protection of intellectual property (Art 17).20 Cultural rights can be seen as giving rights to specific groups; the same can be said of Article 24, which provides for the rights of the child.21

C. Sources of Article 11 Rights I. ECHR 11.04 As stated in the Explanations, Article 11 EUCFR corresponds to Article 10 ECHR. Article 10 has been broadly interpreted. For example, the role of the press and the significance of media pluralism have been recognised, and the impact of the last sentence of Article 10(1) ECHR, which could have allowed wide regulation of the media by the

15 The Strasbourg Court has held freedom of association must be understood in the light of freedom of expression and freedom of belief: United Communist Party of Turkey (1998) 26 EHRR 121 [42]. 16 Müller v Switzerland App no 10737/84 Series A/133, (1991) 13 EHRR 212. This case concerning an artist’s exhibition was brought under Art 10 ECHR, as there is no separate arts and sciences right in the ECHR. See generally, E Barendt, Academic Freedom and the Law (Oxford, Hart publishing, 2010) 17. 17 See eg Case C-134/10 Commission v Belgium (must carry obligation) (Judgment 3 March 2011); Case C-368/95 Familiapress (n 4). 18 The Explanations refer specifically to the Protocol on Public Service Broadcasting. 19 See eg Case C-101/01 Lindqvist (n 9) and, more recently, Case C-293/12 Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources, Minister for Justice, Equality and Law Reform, The Commissioner of the Garda Síochána, Ireland and the Attorney General (11 June 2012) on, inter alia, whether Directive 2006/24/EC is compatible with freedom of expression. The ‘media exception’ may be particularly relevant in the context of freedom of expression cases: C-73/07 Tietosuojavaltuutettu v Satakunnan Markkinaporssi Oy et Satamedia Oy [2008] ECR I-9831 [52]–[56]. 20 C-283/11 Sky (n 14)—claimed right to short reporting infringed right to property, although based on need to ensure viewer access to news; Case C-145/10 Painer v Standard VerlagsGmbH, Axel Springer AG, Süddeutsche Zeitung GmbH, Spiegel-Verlag Rudolf Augstein GmbH & Co KG, Verlag M DuMont Schauberg Expedition der Kölnischen Zeitung GmbH & Co KG (Judgment 1 December 2011) [134]—reproduction of a photograph without consent. 21 Case C-224/06 Dynamic Medien Medien Vertriebs GmbH v Avides Media AG [2008] ECR I-505.

314

Lorna Woods

Art 11 – Freedom of Expression and Information

state, limited.22 Once a situation falls within the scope of freedom of expression, the Strasbourg Court follows a set framework of analysis. The first stage asks whether there has been a restriction of the right, the second considers justification. The ECHR is distinctive by comparison both to other international human rights 11.05 standards (see ICCPR below) and Article 11 EUCFR in that it has a relatively lengthy list of exceptions. The impact of this is limited: these exceptions do not have automatic priority over freedom of expression23 but must be weighed on the facts according to criteria set down in Article 10(2) ECHR. Article 10(2) provides three conditions for the limitation of rights in Article 10(1) ECHR: the interference is prescribed by law; it aims to achieve a legitimate objective (identified in Article 10(2) ECHR, or is a licensing regime under the last sentence of Article 10(1) ECHR); and the interference is necessary in a democratic society.24 Additionally, Article 14 ECHR, which protects against discrimination, requires any exception to be applied in a non-discriminatory manner.25 All Member States have ratified the ECHR, but there are reservations in relation to 11.06 Article 10. Malta deposited a reservation specifying that its code of conduct for public officers precludes such officers from taking an active part in political discussions or other political activity during working hours or on official premises. Spain further declared that its system of broadcasting licensing was compatible with the last sentence of Article 10(1) ECHR.

II. UN Treaties (a) International Convention on Civil and Political Rights 11.07

Article 19 ICCPR specifies: 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.

22 Groppera Radio AG and Others v Switzerland App no 10890/84 Series A/173 (28 March 1990): ‘the purpose of the third sentence of Article 10(1) of the Convention is to make it clear that states are permitted to control by a licensing system the way in which broadcasting is organised in their territories, particularly in its technical aspects. It does not, however, provide that licensing measures shall not otherwise be subject to the requirements of Article 10(2), for that would lead to a result contrary to the object and purpose of Article 10 taken as a whole’. 23 E Barendt, Freedom of Speech, 2nd edn (Oxford, Oxford University Press, 2005) 65. 24 Noted in Case C-368/95 Familiapress (n 4) [24]–[26]. 25 Donaldson v UK App no 56975/09 (2011) 53 EHRR 14. See similarly Art 2(1) ICCPR.

Lorna Woods

315

Part I – Commentary on the Articles of the EU Charter

11.08 Additionally, Article 20 ICCPR prohibits propaganda for war (Art 20(1)) or hate speech (Art 20(2)). 11.09 The Human Rights Committee (HRC)26 has recently issued General Comment 34 on Article 19,27 an extensive document summarising the HRC’s approach and emphasising freedom of speech as a ‘meta-right’, essential for the exercise of other rights and forming a cornerstone of democracy.28 As well as containing negative obligations, states parties are required to ensure that the rights contained in Article 19 are given effect in the domestic law of the state; states may thus be subject to positive obligations. States must ensure that persons are protected from acts by private persons or entities that would impair the enjoyment of Article 19. The General Comment gives the example of the new media: signatory states should foster access to these means of communication.29 Article 19(2) ICCPR protects all forms of expression and the means of their dissemination, including the non-verbal, and the subject matter is irrelevant—commercial speech as well as political speech is in principle protected, although the rights cannot be held by a corporation.30 While there are exceptions to the freedom of expression, the General Comment emphasises that these are to be interpreted restrictively. Note the relationship between Article 19(3) and hate speech prohibited under Article 20; Article 20 is treated as lex specialis in respect of Article 19(3) and must therefore also satisfy the proportionality requirements.31 It is possible for speech to be taken outside Article 19 by reference to the abuse of rights doctrine under Article 5 ICCPR. 11.10 All Member States of the EU (including Croatia) have ratified the ICCPR,32 though a number of them have lodged reservations to ensure that neither Article 19 nor Article 20 ICCPR conflicts with the requirements of Article 10 ECHR (see Austria, Belgium, France and Germany). Italy entered a reservation in relation to the licensing of radio and television in relation to Article 19(3) ICCPR; Luxembourg and the Netherlands also had concerns about licensing, albeit in relation to Article 19(2) ICCPR. Malta entered reservations parallel to those it entered regarding Article 10 ECHR and political activities of public officers; it also entered a reservation regarding political activities of aliens. 11.11 A number of states have had concerns about the application of Article 20 ICCPR, and have sought to limit it.33 Thus both Belgium and Luxembourg declared that they did not consider themselves obliged to enact legislation in the field covered by Article 20(1) ICCPR, and that Article 20 ICCPR as a whole would be applied taking into account the

26 Established under Art 28 ICCPR, but as the ECJ recognised in Case C-249/96 Grant v South West Trains Ltd [1998] ECR I-621, the HRC is not a court and its findings have no binding force in law. They are however persuasive as it is the sole body authorised to give authoritative interpretations of the ICCPR. 27 General Comment No 34 on Art 19, adopted during the 102nd session (2011). 28 This fundamental status has been long recognised within the UN. In its first session, the UN General Assembly adopted Resolution 59(I) stating ‘Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United Nations is consecrated’. 29 General Comment No 34 (n 27) [15]. 30 Communication 360/1989 A Newspaper Company v Trinidad and Tobago and Communication 361/1989 A Publication and a Printing Corporation v Trinidad and Tobago. 31 General Comment 34 (n 27) [48] and [50]–[52]. 32 The ECJ recognised the ICCPR as a basis for general principles quite early—see for example Case 374/87 Orkem v Commission [1989] ECR 3285. 33 See variously the reservation entered by Denmark, Finland, France, Ireland, Malta, the Netherlands and the United Kingdom.

316

Lorna Woods

Art 11 – Freedom of Expression and Information

rights to freedom of thought and religion, freedom of opinion and freedom of assembly and association. (b) Convention on the Rights of the Child The 1989 Convention on the Rights of the Child (CRC), which all Member States have 11.12 ratified, also contains rights pertaining to freedom of expression, in Articles 13, 17, 30 and 31. Article 13 CRC specifies that a child’s freedom of expression ‘shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice’.34 The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) for respect of the rights or reputations of others; or (b) for the protection of national security or of public order (ordre public), or of public health or morals. While this text mirrors Article 19(3) ICCPR, there is no mention of Article 20 ICCPR 11.13 issues. The exceptions here and in Article 19(3) ICCPR are possibly narrower than those found in Article 10 ECHR. Further, the idea of a child’s choice in Article 13(1) is not subject to express age limitation (or parental control35), unlike the other provisions. Article 17(e) suggests the need for age rating systems and UNICEF guidance on the scope of Article 13 CRC states that the right of the child is limited by the consideration that ‘the information is not damaging to them or others’.36 Unsurprisingly, some Member States have entered reservations to ensure compatibility with Article 10 ECHR.37 11.14 Article 17 CRC further provides that: States Parties recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. To this end, States Parties shall: (a) Encourage the mass media to disseminate information and material of social and cultural benefit to the child and in accordance with the spirit of Article 29; (b) Encourage international co-operation in the production, exchange and dissemination of such information and material from a diversity of cultural, national and international sources; (c) Encourage the production and dissemination of children’s books; (d) Encourage the mass media to have particular regard to the linguistic needs of the child who belongs to a minority group or who is indigenous; (e) Encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind the provisions of Articles 13 and 18 [parental responsibilities].

34 Case C-244/06 Dynamic Medien (n 21) [AG88]; Case C-540/03 Parliament v Council [2006] ECR I-5769 [37]. 35 See reservation entered by Poland. 36 UNICEF, Rights under the Convention on the Rights of the Child, available at http://www.unicef.org/ crc/files/Rights_overview.pdf. 37 Austria, Belgium.

Lorna Woods

317

Part I – Commentary on the Articles of the EU Charter

11.15 Subsequent provisions reaffirm these elements by providing for the right of the child to participate in (age-appropriate) cultural life, and to use his or her own language.38 Note that this is a positive obligation imposed on the signatory states, rather than constituting an obligation as against the media. Nonetheless, some reservations have been entered regarding the freedom of the press (and the media generally).39 (c) UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions 11.16 This Convention aims to promote respect and dialogue between cultures.40 Article 2 specifies that cultural diversity is predicated on respect for human rights, specifically freedom of expression. Accepting the principle of equality of all cultures, states are nonetheless permitted to adopt measures aimed at protecting and promoting the diversity of cultural expressions within its territory. A qualified obligation was imposed to create an atmosphere in which cultural diversity could, broadly speaking, flourish— both in terms of creating and accessing cultural expressions. An international fund was established under the Convention.

III. Council of Europe Treaties 11.17 There are a number of CoE treaties which affect freedom of expression. The Convention on Transfrontier Television is the ‘sister’ Convention to the Audiovisual Media Services Directive (see below), although it has not been updated recently. Additionally, two conventions address the expressive rights of those who form part of minority groups: the Framework Convention for the Protection of National Minorities, and the European Charter for Regional or Minority Languages. The Convention on Cybercrime is relevant as far as pornographic speech is concerned (Art 9, child pornography) and also terrorism and hate speech in its protocol.

IV. Other Sources (a) EU 11.18 Directive 2010/13/EU, the Audiovisual Media Services Directive (codified version) (AVMSD) provides minimum harmonisation of national legislation of all audiovisual media, both traditional TV broadcasts and on-demand services, with particular relevance to commercial communications. It also identifies certain content (eg hate speech) which is to be prohibited.

38

Arts 30 and 31 CRC. By Austria. 40 Council Decision 2006/515/EC of 18.5.2006 Annex 2 specifies: ‘the Community is bound by the Convention and will ensure its implementation.’ The EU’s first quadriennial report under the Convention was published in 2012: http://ec.europa.eu/culture/our-policy-development/documents/ec-staff-workingdoc_en.pdf. 39

318

Lorna Woods

Art 11 – Freedom of Expression and Information

Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) establishes harmonised rules on matters such as the transparency and information requirements for online service providers, commercial communications, electronic contracts and limitations of liability of intermediary service providers. It is this latter element that is potentially very significant for online free speech. The Framework Decision on racism and xenophobia41 seeks to ensure that racism and xenophobia are punishable by effective, proportionate and dissuasive criminal penalties in the Member States of the European Union. Similarly, the Framework Decision on Terrorism42 seeks alignment between the national rules of the various Member States. The Decision defines the terrorist offences and lays down the penalties that Member States must incorporate in their national legislation. The offences include public provocation to commit a terrorist offence and thus potentially affect freedom of expression. Comparably, Directive 2011/93/EU on Combating the Sexual Abuse and Sexual Exploitation of Children and Child Pornography,43 establishes minimum rules in the EU concerning the definition of criminal offences and sanctions in the area of sexual abuse and sexual exploitation of children, in this context specifically child pornography.

11.19

11.20

(b) Council of Europe While the Council of Europe has agreed a number of recommendations which affect all 11.21 contexts of speech (eg Recommendation (97) 20 on Hate Speech), a number affect the media specifically, such as Recommendation 2007(2) of the Committee of Ministers of the Council of Europe on Media Pluralism and Diversity of Media Content. Moreover, the Council of Europe has carried out a significant amount of work on the interrelationship between human rights—specifically freedom of expression—and new media. A non-exhaustive list comprises: Recommendation CM/Rec(2012)3 of the Committee of Ministers to Member States on the protection of human rights with regard to search engines; Recommendation CM/Rec(2008)6 of the Committee of Ministers to Member States on measures to promote the respect for freedom of expression and information with regard to Internet filters; Recommendation CM/Rec(2007)16 of the Committee of Ministers to Member States on measures to promote the public service value of the Internet.

41 Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law [2008] OJ L328/55. 42 Council Framework Decision 2008/919/JHA amending Framework Decision 2002/475/JHA on Combating Terrorism, [2008] OJ L330/21. 43 Directive 2011/93/EU on Combating the Sexual Abuse and Sexual Exploitation of Children and Child Pornography (replacing Council Framework Decision 2004/68/JHA) [2012] OJ L26/1. (Note in some documents this directive is shown as 2011/92/EU, which is an error: see Corrigendum to Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA [2012] OJ L18/7).

Lorna Woods

319

Part I – Commentary on the Articles of the EU Charter

D. Analysis I. General Remarks 11.22 Freedom of expression is of fundamental importance, both in terms of an individual’s development and with respect to democratic society. This importance has been recognised in the jurisprudence of the Strasbourg Court in particular, whose views the CJEU has in general terms adopted.44 So, freedom of expression ‘[enables] expression to be given to opinions which differ from those held at an official level’.45 The Court has also accepted the significance of the press/journalist in terms of functioning as a ‘watchdog’.46 Nonetheless, freedom of expression is not an unlimited right. Thus, a number of pieces of EU law limit freedom of expression in the public interest. Examples are the Audiovisual Media Service Directive, the Framework Decision on Combating Terrorism, the Framework Decision on racism and xenophobia, the Child Pornography Directive, and even the e-Commerce Directive, which permits a take-down system in, for example, the context of copyright enforcement. 11.23 Freedom of expression has been recognised as a general principle of EU law by the CJEU, specifically as understood by Article 10 ECHR.47 Bringing the relationships between the different versions of freedom of expression full circle, and underlining their interconnectedness, the CJEU’s general principles jurisprudence has referred to the jurisprudence of the Strasbourg Court. These three strands of case law seem, from the perspective of the Charter and its explanations, to be similar.48 11.24 While freedom of expression as a general principle, Article 10 ECHR and consequently Article 11 EUCFR protect the rights of claimants’ freedom of expression, the subject matter of the cases has tended to be different under the Convention and within the EU. Many of the Strasbourg cases have dealt with issues such as defamation and privacy, subjects which tend to fall outside EU law. Before the CJEU, the vast majority of cases have dealt with the media sector. As such, many of the cases involve commercial speech (especially advertising), and illustrate the tensions between commercial freedom and public interest regulation and even (media) freedom of speech and regulation in the general interest.49

44 Case C-316/09 MSD Sharp & Dohme GmbH v Merckle GmbH (Judgment 5 May 2011) [AG76], and case law cited. 45 Case C-340/00 P Commission v Cwik [2001] ECR I-10269 [22]. 46 Case C-421/07 Damgaard [2009] ECR I-2629 [AG81], citing The Observer and The Guardian v United Kingdom Series A/216 (1991) [59]. 47 Case C-260/89 ERT (n 3) [41]; Case C-219/91 Ter Voort [1992] ECR I-5485 [35]. 48 For a general review, see L Woods, ‘Freedom of Expression in the European Union’ (2006) 12 European Public Law 371, though note developments since then. On problems regarding the displacement of unwritten general principles by the Charter see eg: Editorial comments, ‘The scope of application of the general principles of Union law: An ever expanding Union?’ (2010) 47 Common Market Law Review 1589, 1595; K Lenaerts and JA Gutierrez-Fons, ‘The Constitutional Allocation of Powers and General Principles of EU Law’ (n 2) 1658–60. On this relationship in the context of Art 8 ECHR see Case C-40/11 Yoshikazu Iida v City of Ulm (Judgment 8 November 2012). 49 Case C-368/95 Familiapress (n 4); Case C-283/11 Sky (n 14).

320

Lorna Woods

Art 11 – Freedom of Expression and Information

II. Scope of Application Freedom of speech may be exercised by individuals50 and legal persons (and in this 11.25 there is a difference in approach between the ECHR and EUCFR on the one hand, and the ICCPR on the other). It is unlikely that the Charter would permit a state to distinguish between categories of person and the level of free speech that they each have,51 a consideration important in a Union seeking to encourage free movement. Individuals working for the institutions, whether as politicians or civil servants, may in principle benefit from freedom of expression, including the right to comment on the activities of the Union. The CJEU has followed the Strasbourg Court’s lead in this, including the proviso that officials may be subject to some limitations depending on the nature of their duties.52 The ECHR requires that claimants be a victim; actio popularis are not permitted.53 The Luxembourg Courts have not ruled on this issue, but rules of standing (both from national courts relating to a preliminary ruling reference, or the rules for judicial review at EU level) are likely to limit claimants. There have been no cases dealing with the territorial scope of the rights but circum- 11.26 stances might arise in which those who are based outside the EU might seek to rely on Article 11 EUCFR: for example, companies seeking information with regard to competition enforcement proceedings, or individuals or companies challenging decisions taken under secondary Union legislation, such as AVMSD or the Information Society Directive.54 In these cases, the body against whom the right is relied fall within EU law.55 Although Article 11 EUCFR refers to the right of expression, it does not define what 11.27 is meant by ‘expression’. From other human rights systems, ‘expression’ covers a range of forms (for example, action),56 not just speech. It includes the right not to speak.57 Freedom of expression covers ‘not only the substance of the ideas and information expressed but also the form in which they are conveyed’.58 It applies whether the communication is effected orally or in written, printed or electronic form.59 Bloggers and other forms of social media are protected.60 In L’Oreal v eBay, the listings uploaded by users to eBay’s marketplace were communications with Article 11 EUCFR (and Article 10 50

Eg Case C-219/91 Ter Voort (n 47). D Feldman, ‘Content Neutrality’ in Loveland (ed.) Importing the First Amendment: freedom of speech and expression in Britain, Europe and the USA (Oxford, Hart publishing, 1998 147). 52 Case C-274/99P Connolly v Commission (n 8). 53 Altug Taner Akcam v Turkey App no 27520/07 (Judgment 25 October 2011): a concrete interference is not required, but the claimant must be directly affected by the impugned measure. This is not understood in the same way as the same phrase in EU law. The ICCPR also excludes class actions. 54 AVMSD (n 10); Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OJ L167. 55 Note also the general difficulties regarding ‘communication freedoms’ in the context of the Internet and conflict of laws: Joined Cases C-509/09 and C-161/10 eDate Advertising GmbH v X (C-509/09) and Olivier Martinez and Robert Martinez v Société MGN Ltd (C-161/10) (Judgment 25 October 2011), Opinion of Advocate General Cruz Villalón. 56 Hashman and Harrup v UK App no 25594/94, Reports of Judgments and Decisions 1999-VIII, (2000) EHRR 24, who disrupted a hunt by blowing a horn and hallooing. 57 Young, James and Webster v UK Report 14 December 1979, B.39 (1984), p 48; K v Austria Report of 13 October 1992, A.255-B, p 38. 58 De Haes and Gijsels v Belgium App no 7/1996/626/809/1996/626 (Judgment 24 February 1997) [48] 59 Case C-316/09 MSD Sharp & Dohme GmbH (n 44) [AG81]. 60 Yildirim v Turkey App no 3111/10 (Judgment 18 December 2012); Delphi AS v Estonia App no 64569/09 (Judgment 10 October 2013). 51

Lorna Woods

321

Part I – Commentary on the Articles of the EU Charter

ECHR).61 The European Court of Human Rights in the Pirate Bay decision,62 which concerned a claim by those providing a file-sharing site and who specifically disassociated themselves from the content shared, reiterated both the importance of the Internet and the fact that ‘Article 10 applies not only to the content of the information but also to the means of transmission or reception’. So Article 10 seemingly applies to those providing software and services as well as infrastructure. 11.28 As regards content, Advocate General Cruz Villalón noted in eDate that the content of freedom of expression, although recognised by the EU courts, has been delineated more specifically under Article 10.63 Thus Article 11 EUCFR will be similarly a broad right.64 Freedom of expression covers political, cultural and artistic speech as well as commercial communications;65 the frivolous and humorous, as well as the serious. It ‘gives everyone the right to express opinions, however questionable or shocking, minority or extravagant they may be’.66 The right protects unpopular or offensive speech, including that expressed in strong terms, save to the extent that such speech falls foul of restrictions on hate speech or incitement to violence,67 where it may be excluded from the scope of protection in the interests of protecting tolerance and pluralism.68 Of course, any such speech may be subject to limitation, provided the terms of Article 52(3) EUCFR are respected. As noted, expression has been divided into a range of categories: political speech, artistic speech and commercial speech—though the boundaries between these categories may be difficult to determine.69 The boundary has significance because although commercial speech is protected expression, it typically attracts a lower level of protection than other forms of expression in that states enjoy a greater margin of appreciation in determining limits to it (see below).70 11.29 Article 11 EUCFR covers the right to hold opinion, as do Article 10 ECHR and Article 19 ICCPR. ‘Opinion’ is an ambiguous word, and the Strasbourg Court has not attempted a definition. It may be contrasted with facts (see below), but it may also refer to one’s

61 Case C-324/09 L’Oréal SA, Lancôme parfums et beauté & Cie, Laboratoire Garnier & Cie and L’Oréal (UK) Ltd v eBay International AG, eBay Europe SARL, eBay (UK) Ltd [AG49] and [AG157]. 62 Pirate Bay: Neij and Sunde Kolisoppi v Sweden App no 40397/12 (Decision 13 March 2013). 63 Case C-509/09 eDate (n 55). 64 Case C-163/10 Patriciello (n 8). 65 Advocate General Alber in Case C-71/02 Karner (n 4) [AG75], Case C-376/98 Germany v Parliament and Council [2000] ECR I-8419 and European Court of Human Rights: Markt Intern Verlag GmbH and Klaus Beermann v Germany (20 November 1989) Series A, No 165, [25] and [26], and Casado Coca v Spain (24 February 1994) Series A, No 285-A, [35] and [36]. 66 Handyside v UK App no 5493/72 (Judgment 7 December 1976); Leander v Sweden App no 9248/81 (Judgment 26 March 1987), (1987) 9 EHRR 433; Bladet Tromsø and Stensaas v Norway App no 21980/93 (Judgment 29 May 1999), Reports of Judgments and Decisions 1999-III; Feldek v Slovakia App no 32686/96 (Judgment 12 July 2001), Reports of Judgments and Decisions 2001-VIII. 67 Eg Sürek v Turkey (No 3), App no 24735/94 (Judgment 8 July 1999); Lehideux and Isorni v France, Reports of Judgments and Decisions 1998-VII, [53]; Joined Cases C-244/10 and C-245/10 Mesopotamia Broadcast (n 13) [AG68]. Note also Council Decision on racism and xenophobia (n 41). 68 See eg Handyside (n 66); Sunday Times v United Kingdom (No 1) App no 6538/74 (1979) 2 EHRR 245; Lingens v Austria App no 9815/82 (Judgment 8 July 1986), (1986) 8 EHRR 407; De Haes and Gijsels v Belgium (n 58); Dalban v Romania App no 28114/95 (Judgment 28 September 1999), Reports of Judgments and Decisions 1999-VI. Note some recent concerns about the Court’s approach in the face of terrorism: eg S Sottiaux, ‘Leroy v France: apology of terrorism and the malaise of the European Court of Human Rights’ free speech jurisprudence’ (2009) EHRLR 415. 69 Casado Coca v Spain (n 65) [35]; Case C-421/07 Damgaard (n 46). 70 Markt Intern Verlag (n 65); Case C-249/09 Novo Nordisk AS v Ravimiamet (Judgment 5 May 2011) [AG50]; Patriciello (n 8) [35].

322

Lorna Woods

Art 11 – Freedom of Expression and Information

internal processes and the right to think, including the right to change one’s mind for whatever reasons. Following General Comment 34, this freedom of opinion cannot be limited.71 Any attempt to indoctrinate, force or coerce people into holding or not holding certain opinions is impermissible.72 It has been suggested that state propaganda or onesided reporting in government-controlled media could therefore constitute a violation of this aspect of freedom of expression.73 All forms of opinion are protected, whether of a political, scientific, historic, moral or religious nature. Internal freedom is absolute.74 Opinion also protects the expression of unproven assertions, views or appraisals, irrespective of their quality, although such expression may be limited (see D.IV below). Indeed, protection is in principle drawn broadly, so as to cover indisputable and disputable; correct and incorrect. In the case of a statement of fact, the Strasbourg Court acknowledged that it is possible to prove the truth of the facts, which is excluded in cases of value judgments.75 Thus, a requirement to prove opinions itself infringes freedom of speech.76 Of course, the boundary between the fact and opinion is not clear-cut.77 The right protected by Article 11(1) EUCFR, like its counterparts, is double-sided, 11.30 in that as well as providing for a speaker’s right, it also creates an audience’s right—a right to receive information.78 This right is generally limited to the information that a speaker wishes to make available,79 although in recent cases the Court has not always included this proviso.80 Save for some specific rights to seek public information,81 especially as regards bodies which have a ‘watchdog’ role,82 it does not constitute a right to force someone to speak.83 The right to receive information or the audience’s right is of significance in the context of media regulation (see further section D.III below) and in terms of advertising and the ability to make informed choices (see section E below).

71

HRC Communication No 550/93, Faurisson v France, Views adopted on 8 November 1996. Kjeldsen (1979–80) 1 EHRR 711 [53]; HRC Communication No 878/1999, Kang v Republic of Korea, Views adopted on 15 July 2003. 73 T Marauhn, ‘Freedom of Expression, Freedom of Assembly and Association’ in Ehlers (ed), European Fundamental Rights and Freedoms (Berlin, De Gruyter Recht, 2007) 99 [4]. 74 General Comment 34 (n 27) [5]. 75 Bladet Tromsø (n 66) [65]. 76 Feldek (n 66) [75]; Case C-200/07 Alfonso Luigi Marra v Eduardo De Gregorio and Antonio Clemente [2008] ECR I-7929 (concerning a leaflet issued by a Member of the European Parliament containing insulting remarks) AG’s opinion. 77 Scharsach and News Verlagsgesellschaft v Austria (Judgment 13 November 2003), Reports of Judgments and Decisions 2003-XI [40]. 78 Case C-477/10 P Commission v Agrofert Holding as (Judgment 28 June 2012); see in the context of Art 19, Mavlanov and Sa’di v Uzbekistan Communication No 1334/2004 (UN Doc CCPR/C/95/D/1334/2004), 19 March 2009. 79 On the sorts of sources, see T Marauhn, ‘Freedom of Expression, Freedom of Assembly and Association’ (n 73) 100 [10]. 80 See eg Advocate General in Case C-283/11 Sky (n 14). See also commentary on Article 42 EUCFR. 81 Case C-139/07P Commission v Technische Glaswerke Ilmenau, AG’s Opinion; see Art 42 EUCFR and see General Comment 34 (n 27) [18]. As regards the ECHR, the Court has held that individuals are entitled to health-related information under Art 8 ECHR: Guerra v Italy App no 14967/89, Reports of Judgments and Decisions 1998-I, no 64. Under the Convention for the Elimination of Discrimination against Women (CEDAW), the CEDAW Committee has suggested that women should be entitled to information about sexual health: CEDAW General Recommendation No 24: Women and Health. 82 The ECHR jurisprudence has developed in this regard: Kenedi v Hungary App No 31475/05 (Judgment 26 May 2009); Youth Initiative for Human Rights v Serbia App No 48135/06 (Judgment 25 June 2013). 83 Leander (n 66). Note some of the directives dealing with distance selling and with the Internet do require certain information to be given in the interests of consumer protection and transparency; Art 6 Directive 2000/31 (n 11). 72

Lorna Woods

323

Part I – Commentary on the Articles of the EU Charter

11.31

Linked to discussions about the right to receive information, is a different aspect of the freedom of expression: the right to access infrastructure or dissemination networks. This aspect was first recognised in Autronic by the Strasbourg Court and by the CJEU in de Coster.84 More recently, in Kabel Deutschland concerning broadcasters’ access to telecommunications networks, the CJEU commented, ‘it is appropriate to stress the importance of the fundamental freedom to receive information of which the recipients are end-users and which the Member States must guarantee’.85 Here the right is that of the audience, not of the media, though the applicant in the case is the media company. By contrast, in the Pirate Bay decision, the Strasbourg Court did not identify whose rights were being affected by taking down the Pirate Bay site. It argued that ‘any restriction imposed on the means necessarily interferes with the right to receive and impart information’.86 11.32 The main emphasis in the case law under Article 10 ECHR has been on the negative obligations; that is, stopping states from interfering with private actors’ freedom of expression. Article 10 gives rise to positive obligations too. The jurisprudence in this area was originally based on Article 1 ECHR, a provision for which there is no direct equivalent in the Charter, but is not now so tethered. The Strasbourg Court has noted that Article 10 can be invoked before the Court, not only in vertical relations but also in horizontal ones, and that a court decision in a conflict between private parties is also considered as a measure of the state.87 To determine whether positive rights might arise, the court will consider the kind of expression rights at stake; their capability to contribute to public debate; the nature and scope of restrictions on those rights; the ability of alternative venues for expression; and the weight of countervailing rights of others or the public.88 This fair balance approach is different from the application of a ‘three-stage’ test (see section D.IV below) typically undertaken with regard to negative obligations and it may lead to a less consistent line of cases. Applying these considerations in Appleby, the Court rejected the claim by campaigners of a right to a forum on privately owned (but publicly accessible) land.89 Examples of positive obligations include rights against dismissal,90 including for trade union activities,91 protection from violence;92 and a failure on the part of state authorities to ensure that journalists could access their workplace.93 These are all examples of a form of positive obligation according to which the state is under an obligation to take action to prevent private actors from interfering with the exercise of freedom of expression by others. Another aspect of a positive obligation is when the state

84 Autronic AG v Switzerland (Judgment 22 May 1990), Series A/178, p 23 [47]; Case C-17/00 de Coster v Collège des bourgmestre et échevins de Watermael [2001] ECR I-9445. 85 Case C-336/07 Kabel Deutschland Vertrieb und Service GmbH & Co KG v Niedersächsische Landesmedienanstalt für privaten Rundfunk [2008] ECR I-889 [33]. See similarly, General Comment 34, (n 27) [15]. 86 Pirate Bay (n 62). 87 Palomo Sánchez and Others v Spain App no 28955/06 [GC (Judgment 12 September 2011) [60]. 88 Appleby v UK App no 44306/98, Reports of Judgments and Decisions 2000-III, [42]–[43] and [47]–[49]. 89 Ibid; cf Women on Waves v Portugal App no 31276/05 (Judgment 3 February 2009). 90 Fuentes Bobo v Spain App no 39293/98 (Judgment 29 February 2000) [38]. 91 Palomo Sánchez (n 87) [60]—though no violation on the facts of this case. 92 Özgür Gündem v Turkey App no 23144/93, Reports of Judgments and Decisions 2000-III [42]–[43]; Dink v Turkey App no 2668/07 (Judgment 14 September 2010) [137]. 93 Frasil˘ a and Ciocirlan v Romania App no 25329/03 (Judgment 10 May 2012).

324

Lorna Woods

Art 11 – Freedom of Expression and Information

is required to put in place measures to achieve certain goals.94 This positive obligation may also be used to justify freedom of access to government information.95 The rights derived from this form of positive obligation may be broad. Within the case law, there is a developing strand of jurisprudence which, given the role of the media in the functioning of democracy, emphasises the need for states to take action to ensure a pluralistic media ecology (see section E below) and which is implicit in the ECJ’s comments on access to infrastructure already noted.96 The CJEU’s approach may be influenced by the Strasbourg Court’s development of positive obligations, or be based on Article 11(2) EUCFR: indeed, the idea of pluralism and positive obligations are interconnected. The scope of what constitutes an interference with freedom of expression is wide and is 11.33 closely linked to the question of determining who is a victim under the Article 10 case law.97 It would cover injunctions and bans, blocking and filtering98 as well as take-down notices. Licensing and ownership requirements would also be caught.99 More subtle or indirect forms of restriction include distributed denial-of-service attacks,100 company registration or structural requirements,101 intellectual property rights102 and advertising rules limiting the products that may be advertised, the timing or frequency of advertising. Regulation in general, requirements for compulsory membership of professional associations, or registration of titles each constitutes interference though they may be capable of justification.103 Cases of interference have been found where individuals have modified their behaviour as a result of the impugned legislation, or because they are of a class of persons who risk being directly affected by it.104 Sanctions for speech may have a chilling effect, even where a person has been acquitted.105 Since the meaning of expression and restriction is so broad, the main emphasis in the case law has been on the limits and exceptions to the right.

III. Specific Provisions Perhaps the most distinctive element of Article 11 EUCFR, and one that distinguishes 11.34 in structure from Article 10 ECHR, is the provision expressly dealing with the media: Article 11(2). This makes the media freedoms independent of the general right to

94 For one categorisation of positive obligations see eg A Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Oxford, Hart publishing, 2002) 225–27. 95 Társaság A Szabadságjogokért v Hungary, App no 37374/05 (Judgment 14 April 2009). 96 Centro Europa 7 Srl and Di Stefano v Italy App no 38433/09 (Judgment 7 June 2012); Case C-336/07 Kabel Deutschland (n 85). 97 Altug Taner Akcam v Turkey (n 53) [67]. 98 See eg Recommendation CM/Rec(2008)6 of the Committee of Ministers to Member States on measures to promote the respect for freedom of expression and information with regard to Internet filters. 99 See in the context of Art 19 ICCPR, Mavlanov and Sa’di v Uzbekistan Communication No 1334/2004 (UN Doc CCPR/C/95/D/1334/2004), 19 March 2009. 100 Declaration of the Committee of Ministers on the protection of freedom of expression and freedom of assembly and association with regard to privately operated Internet platforms and online service providers, Adopted by the Committee of Ministers on 7 December 2011 at the 1129th meeting of the Ministers’ Deputies. 101 Case C-288/89 Stichting Collectieve Antennevoorziening Gouda v Commissariaat voor de Media [1991] ECR I-4007. 102 See eg Case C-283/11 Sky (n 14). 103 General Comment 34 (n 27). 104 Open Door (n 7). 105 Association Ekin (n 1); and Aktan v Turkey App no 20863/02 (Judgment 23 September 2008) [27]–[28].

Lorna Woods

325

Part I – Commentary on the Articles of the EU Charter

freedom of expression, though given technological developments and the rise of user generated content, the boundary between the two may be difficult to define in practice. There is to date no complete definition of the media in EU law (as opposed to the definitions in the AVMSD,106 which aims at identifying certain sections of the media). Article 11(2) states two things: first, that the media shall enjoy freedom of expression; and, secondly, that Member States must ensure media pluralism. While the former does not imply the latter, pluralism does imply media freedom. It can therefore been seen as recognising the institution of the media and the important role that the media can play in a democracy. It is, however, not yet clear whether media pluralism should be viewed as an independent right seen as imposing positive obligations on the state. The Explanations tie Article 11(2) to the CJEU’s general principles jurisprudence and 11.35 the case of Gouda,107 one of a number of cases considering state regulation of the broadcast media and the right of entities to broadcast across borders. This reference emphasises the distinction between the Charter and the ECHR, and reminds us of the economic aspect of the media (and services jurisprudence in particular). In Gouda, a group of cable operators challenged the Dutch limitations on the broadcast of advertising. The Court’s starting point was the freedom to provide services. It determined that the Dutch rules constituted a restriction on that freedom, so the question was justification, and it was here that the need to protect media pluralism was put forward. The Court accepted the principle, but on the facts held the measure disproportionate. Licensing and control of access to frequencies is thus permissible in principle, but must be proportionate and achieved by a transparent and non-discriminatory process.108 This is in line with Article 10(1) ECHR, which specifically recognises the possibility of licensing media operators, although such licensing should be in the public interest and subject to the requirements of Article 10(2) ECHR (see section D. IV).109 A licensing procedure implies a possibility of sanctions; this is permissible under Article 10 provided Article 10(2) is respected.110 11.36 The Explanations also refer to the Television without Frontiers Directive (now AVMSD). It provides for partial,111 minimum harmonisation of broadcast media regulation (now including some on-line services), and specifically includes some restrictions on speech (hate speech; speech injurious of minors and some commercial speech). It also contains positive obligations, which can also impinge on broadcasters’ editorial choices, though these quotas are binding only insofar as practicable. Article 11(2) therefore implicitly accepts the need for some media regulation. Provisions of the AVMSD constitute restrictions on the freedom of speech and should therefore be interpreted restrictively.112 Although regulation tends to be regarded as a restriction on freedom

106

Directive 2010/13/EU Audiovisual Media Services Directive (n 10) Article 1. Gouda (n 101). 108 Case C-380/05 Centro Europe 7 [2008] ECR I-349. 109 See for example Informationsverein Lentia App nos 13914/88, 15041/89, 15717/89, 15779/89, 17207/90 (1993) 17 EHRR 93; Glas Nadezhda EOOD and Elenkov v Bulgaria App no 38743/97 (Judgment 11 October 2007), Reports of Judgments and Decisions 2002-IX; Meltex Ltd and Mesrop Movsesyan v Armenia App no 28341/95 (Judgment 17 June 2008), Reports of Judgments and Decisions 2000-V; Centro 7 (n 96) (ECHR). 110 Sigma Radio Television Ltd v Cyprus App nos 32181/04 and 35122/05 (Judgment 21 July 2011). 111 Joined Cases C-34/95 to C-36/95 De Agostini and TV-Shop (n 13) [26]; Case C-244/10 Mesopotamia Broadcast METV (n 13) [34]. 112 Case C-244/10 Mesopotamia Broadcast (n 13) [AG 51]. Note in previous cases concerning the advertising rules in the Television without Frontiers Directive (the predecessor to the AVMSD), AG Jacobs suggested that such provisions should be interpreted restrictively in the interests of commercial freedom. 107

326

Lorna Woods

Art 11 – Freedom of Expression and Information

of expression, it may be necessary to ensure that a wide range of content is universally available, thus supporting pluralism and respecting the potential audience’s rights to receive (or to seek) information. This point is implicitly recognised by the reference to the Protocol on Public Service Broadcasting113 in the Explanations. Any regulation is, however, limited by reference to proportionality and cannot constitute discriminatory treatment.114 The Court has accepted the principle of pluralism in other media too; Familiapress concerned measures to support pluralism in the context of magazines.115 Presumably its approach would apply across all (professional) media. The extent of the states’ positive obligations is discussed below.

IV. Limits and Derogations In general terms, the provisions permitting restrictions are interpreted restrictively, 11.37 although any assessment will take into account the type of speech and its context.116 Borrowing from the approach of the Strasbourg Court, the first stage of any assessment is whether the restriction (in relation to a negative obligation) is for a legitimate aim as identified in the EUCFR. Article 52(1) EUCFR limits the scope of Article 11, but its general structure is different from Article 10 ECHR. The authors of the Charter have chosen a general exception, whereas Article 10(2) ECHR identifies specified categories of permitted exceptions. The Explanations in relation to Article 52(3) expressly state that Article 52(3) operates to limit Article 11. This raises the question of whether the ‘general interest’ grounds referred to in Article 52(3) are the same as for Article 10(2) ECHR.117 While the ECJ has defined the overriding interests for the Treaty freedoms as an open class, it is suggested that acceptable grounds in relation to Article 11 EUCFR cannot be wider than those in Article 10(2) ECHR, given the terms of Article 52(3) EUCFR and the clear wording of the Explanations in relation to Article 52(3). Areas in which there is EU regulation restricting speech (eg prohibitions on child pornography or the regulation of advertising) are likely to fall within the public interest grounds described by Article 10(2) ECHR, and consequently Article 52(3) EUCFR. The adjective ‘necessary’ involves, for the purposes of Article 10(2) ECHR, two ele- 11.38 ments. First there must be a ‘pressing social need’ and, secondly, although ‘[t]he contracting states have a certain margin of appreciation in assessing whether such a need exists’, the interference must be ‘proportionate to the legitimate aim pursued’ and ‘the reasons adduced by the national authorities to justify it’ must be ‘relevant and sufficient’.118 The centrality of the proportionality evaluation has been restated by the ECJ.119 The level of review may vary as the margin of appreciation will be wider in some cases

113

Protocol 27 On The System of Public Broadcasting in the Member States, Recital 1. See Art 10(1) ECHR, last sentence and case law thereon: Murphy v Ireland App no 44179/98 (Judgment 10 July 2003), Reports of Judgments and Decisions 2003-IX; United Christian Broadcasters v UK App no 38743/97 (Decision 7 December 2000); Centro Europe 7 (n 96). 115 Case C-368/95 Familiapress (n 4). 116 Sunday Times (n 68); Patriciello (n 8) [34]. 117 General Comment 34 in relation to Art 19(3) suggests that the limitations on various rights are based on different grounds and that they are not interchangeable: (n 27) [22]. 118 Observer and Guardian (n 46), accepted in Case C-274/99P Connolly (n 8). 119 Case C-71/02 Karner (n 4): note impact of fact that matter concerned advertising [51]. 114

Lorna Woods

327

Part I – Commentary on the Articles of the EU Charter

(e.g. moral and commercial) than others (political speech and speech relating to the public sphere).120 Matters of public concern or public interest include: public hearings within Article 6(1) ECHR; the public interest in the transparency of political life; information on the ideas, attitudes or conduct of prominent politicians, or possibly even the behaviour of leading industrialists; as well as a public debate which is actually being conducted.121 Note that the European systems have dealt with some cases of hate speech and Holocaust denial as an abuse of rights under Article 17 ECHR rather than dealing with it under the derogation provision, though the distinction between hate speech and ‘challenging’ speech on a matter of public interest is a fine one.122 11.39 The requirement that a restriction be prescribed by law implies a certain qualitative assessment. A norm must be ‘formulated with sufficient precision to enable the citizen to regulate his conduct … [and] … to foresee … the consequences which a given action may entail’.123 Absolute certainty is not required.124 Usually a law in the EU context will be a written document, but given the coverage of EU law, it may also include unwritten sources (such as the common law), provided they are sufficiently precise.125 The Court has constantly stated that a law has to be public, accessible, predictable and foreseeable and must not leave the authorities implementing the law with too much latitude.126 Thus in Gaweda, the Strasbourg Court held that a provision which gave the national courts the power to refuse registration of a periodical if it were ‘in conflict with reality’ was ‘not formulated with sufficient precision to enable the applicant to regulate his conduct’.127 Too much discretion cannot be allowed to administrative or judicial bodies with delegated power.128 Even in cases relating to national security or the fight against organised crime, the wording of the law must still be sufficiently clear so as to give individuals an adequate indication of the legal conduct and the consequences of acting unlawfully.129 11.40 The second element is an assessment of proportionality. Proportionality is essentially a test of the means chosen to achieve the ends taking into account the importance of

120 Thorgeirson v Iceland Series A/239 (25 June 1992) [64]; approved Case C-200/07 Alfonso Luigi Marra v Eduardo De Gregorio and Antonio Clemente [2008] ECR I-7929 [AG36]. 121 Case C-73/07 Satamedia (n 19) [AG73], citing News Verlags GmbH & Co KG App no 31457/96, Reports of Judgments and Decisions 2000-I [56]; Editions Plon App no 58148/00, Reports of Judgments and Decisions 2004-IV [44]; Stoll App no 69698/01 (Judgment 10 December 2007) [122]; Lingens App no 9815/82, Series A/103 [42]. 122 Case C-245/10 Mesopotamia Broadcast (n 13); Witzch v Germany App no 7485/03 (Decision 13 December 2005); Erbakan v Turkey App no 59405/00 (Decision 6 July 2006); cf Féret v Belgium App no 15615/07 (Judgment 16 July 2009). See further below. 123 Sunday Times (n 68) [49]. 124 Ibid. 125 Sunday Times (n 68); Groppera (n 22); Autronic (n 84); cf Hashman and Harrup (n 56) concerning the scope of conduct contra bonos mores. 126 Petra v Romania App no 27273/95 (23 September 1998), Reports of Judgments and Decisions 1998-VII, no 92. A similar approach is taken by the HRC: Communication No 578/1994, de Groot v The Netherlands, Views adopted on 14 July 1995. 127 Gaweda v Poland App no 26229/95 (Judgment 14 March 2002), Reports of Judgments and Decisions 2002-II. Presumably such rules could now (given the accession of Poland to the EU) be considered for compatibility with Arts 49 and 56 TFEU. 128 See similarly The Word ‘Laws’ in Article 30 of the American Convention on Human Rights, Advisory Opinion OC-6/86 of 9 May 1986, Series A, No 6; Concluding Observations on Kyrgyzstan’s Initial Report, 24 July 2000, CCPR/CO/69/KGZ [21]. 129 Leander (n 66).

328

Lorna Woods

Art 11 – Freedom of Expression and Information

any countervailing interests.130 In the Strasbourg cases, the level of review will depend on the extent of the state’s margin of appreciation.131 The margin of appreciation is justified on the basis that ‘the national authorities are in principle in a better position that the international judge’ to assess the issue and in particular the necessity of that restriction.132 The margin of appreciation doctrine may be seen as a mechanism for reconciling the universalism of human rights protection with the cultural variances between signatory states, and it has been described as a form of subsidiarity.133 Within the Strasbourg doctrine, the issue of margin of appreciation is therefore dealt with before any proportionality assessment. As noted, the margin varies depending on the content of the speech. Political speech is the most protected, with states enjoying a limited margin of appreciation;134 by contrast the Strasbourg Court has tended to be deferential to states’ judgments regarding obscene or blasphemous expression, often resulting in practice in a low level of protection for artistic speech. If we see artistic speech as falling in the ‘second rank’ of protection in the Strasbourg Court’s hierarchy of values, then commercial speech (advertising) occupies the third rank.135 Despite its likely political significance, cases pertaining to national emergency136 and national security will enjoy a wide margin of appreciation.137 The effect of this is that the Court will allow states more freedom of choice about the necessity for a restriction where there is a wide margin of appreciation, subject the Court’s formulation of the outer edges of acceptability; where the margin of appreciation is narrow, states have less freedom. So for the former, the test is formulated in terms such as ‘not unreasonable’,138 whereas for the latter the test is the absolute certainty that the measures were necessary.139 While the EU courts have not explained the need for a margin of appreciation doc- 11.41 trine, they have referred to the doctrine, as can be seen in Dynamic Medien.140 There the ECJ noted that the conception of the rights of the child might vary on a cultural basis giving Member States a definite margin of discretion.141 In other cases the Court does not discuss the point. As we will see in section E, the CJEU’s approach in its case law is not consistent as to whether there is a margin of appreciation and, insofar as the Strasbourg Court might be seen to have a justification for the use of the doctrine,

130 The debate about the different formulations of proportionality as a cross-cutting principle has been well discussed elsewhere. 131 TA O’Donnell, ‘The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights’ (1982) 4 Human Rights Quarterly 474, 475. See eg for a review: AT Yutaka, The Margin Of Appreciation Doctrine And The Principle Of Proportionality In The Jurisprudence Of The ECHR (Antwerp, Intersentia, 2002); Y Arai-Takahati, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Antwerp, Intersentia, 2004). 132 Handyside (n 66) [48]. 133 R Clayton and H Tomlinson, The Law of Human Rights (Oxford, Oxford University Press, 2000) 285. 134 Sunday Times (n 68); Jersild v Denmark Series A/298 (1994) 19 EHRR 1; Thorgeirson v Iceland App no 13778/88 Series A/239 (1992) 14 EHRR 843. 135 Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights, 2nd edn (Oxford, Oxford University Press, 2009). 136 Art 15 ECHR, though the Court might draw this category narrowly. 137 Contrast Zana v Turkey App no 18954/91 (1999) 27 EHRR 667 [60]–[62] and Surek and Ozdemir v Turkey App no 23927/94 (1999) 27 EHRR 667. 138 Otto Preminger Institut v Austria App no 13470/87 Series A/295 A (Judgment 20 September 1994). 139 Sunday Times (n 68). 140 Case C-244/06 Dynamic Medien (n 21). 141 Ibid [43]–[45].

Lorna Woods

329

Part I – Commentary on the Articles of the EU Charter

the ECJ’s decisions do not seem to incorporate that justification. The focus is on the question of proportionality. 11.42 So, the factual situation will affect the final determination.142 One factor that the Court of Human Rights has taken into account is the severity of the interference, as can be seen in the Open Door case.143 There the blanket nature of the prohibition on expression was a factor in a finding of a violation.144 Although the Court has tended to view prior restraint as a serious restriction, the Strasbourg court has not always found it disproportionate, nor even subjected such restraints to serious scrutiny.145 In the ECHR case of Yildirim, however, a blocking order that was very wide was held to be disproportionate.146 The CJEU has taken a similar approach.147 In L’Oréal v eBay the Advocate General noted the importance of procedural due process in ensuring that a take-down notice system did not unnecessarily curb the freedom of expression of Internet users.148 It is also impossible to state that in carrying out the proportionality analysis one right will automatically have priority over another. In Satamedia, for example, the ECJ noted that it is not possible to give automatic priority to freedom of expression over data protection and privacy. Even fundamental rights do not have automatic priority over other societal interests.149

V. Remedies 11.43 Freedom of expression is most likely to arise in the context of a shield, for example in the context of prosecutions for not complying with advertising regulations or in relation to take-down notices. As a sword, freedom of expression may most clearly arise in the context of access to information. Attempts to use freedom of expression to challenge regulatory regimes (such as must-carry obligations, or the short reporting rules) have met with limited success. In general terms the CJEU has accepted the principle of regulation and has focussed instead on proportionality on the relevant measures.

142 Contrast Vajnai v Hungary App no 33629/06 (2010) 50 EHRR 44 and Donaldson v UK (n 25), both concerning the wearing of political symbols. In Vajnai, there was no evidence of a risk of public order and the symbol could bear a multitude of meanings; in Donaldson, the symbol was inextricably linked to the conflict in Northern Ireland, so its public display could be inherently divisive and had frequently exacerbated existing tensions in Northern Ireland; further, the ban was limited in scope to serving prisoners outside their cells. 143 Open Door (n 7). 144 Ibid [73], though the nature of the information would also have been a factor. See similarly, Campbell v UK App no 13590/88 Series A/233 (Judgment 25 March 1992); Vereinigung Demokratischer Soldaten Osterreichs und Gubi v Austria App no 15153/89 Series A/302 (Judgment 19 December 1994). 145 Muller (n 16), Otto-Preminger (n 138) as cases of artistic speech. 146 Yildirim (n 60). 147 See also Case C-314/12 UPC Telekabel Wien, pending, concerning inter alia the feasibility and proportionality of blocking measures. 148 Case C-324/09 L’Oréal SA v eBay (n 61) [AG155]–[AG159]. The Court did not address the point. 149 Case C-37/07 Satamedia (n 19).

330

Lorna Woods

Art 11 – Freedom of Expression and Information

E. Evaluation The right to freedom of expression in Article 11 is a broad one and, despite the differ- 11.44 ence in structure between Article 11 EUCFR and Article 10 ECHR, both provisions seem to have a similar scope. As noted, ‘expression’ is a broad term and has been interpreted dynamically, in particular taking account of changes in technology. This can be seen in the Strasbourg Court’s approach to the introduction of satellite technology150 and more recently in the opinions of Advocates General dealing with the Internet. Against this background, Advocate General Kokott suggested that the freedom should be understood, ‘in the sense of freedom of communication’.151 The idea that the different aspects of the right to freedom of expression should be understood together, as indivisible elements of the communicative process is not new, but it does raise questions as to the types of right included in Article 11. According to Advocate General Trstenjak in MSD Sharpe, there is a separate right to transmit information (this is specifically mentioned in Art 11(1) EUCFR, 2nd sentence), a view which Advocate General Kokott also supported. Further, there have also been suggestions that—particularly in the context of the developments in communications technologies—there should be a formal recognition of the right to communicate. Such a right would be broader than the traditional negative conception of freedom of expression and it would encompass not only the right to receive but some of the obligations developed as positive obligations under freedom of expression (in some jurisdictions), for example pluralism.152 In this context, freedom of expression seen as a communicative right ties in to cultural rights and rights relating to minority languages as well as to the need for a plural media. As yet, there has been no formal recognition by the courts of this argument. The suggestion that the right to freedom of expression includes a transmission right 11.45 is a novelty (although arguably based on cases such as Autronic), and it is not clear what the Advocates General mean by this. We see references to a right to transmit particularly in the context of the Inter-American system,153 where individuals have the right to transmit their own thoughts and expression. Otherwise, transmission can be seen in the context of broadcasters, who have exercised editorial discretion in putting together channels.154 There has been debate about the extent to which content providers have the right of access to third parties’ airtime (and similarly the right to reply).155 By contrast,

150

Autronic (n 84). Case C-37/07 Satamedia (n 19) [38]. See eg J d’Arcy, ‘Direct broadcast satellites and the right to communicate’ (1969) 118 European Broadcasting Union Review 14–18 and more recently Article XIX, Statement on the right to communicate by Article 19 global campaign for free expression (Document WSIS/PC-2/CONTR/95-E) 14 February 2003 available at: www.itu.int/dms_pub/itu-s/md/03/wsispc2/c/S03-WSISPC2-C-0095!!PDF-E.pdf. The scope and desirability of such a right is still debated. 153 Eg Annual Report of the Inter-American Commission on Human Rights (1981) p 121. 154 Note the reasoning of the Human Rights Commission in the much-criticised De Geïllustreerde Pers NV v The Netherlands, European Commission of Human Rights 6 July 1976, European Commission of Human Rights Decisions & Reports 1976 (Vol 8), 5 and also France 2 v France App no 30262/96 (European Commission of Human Rights, 15 January 1997). The ECJ avoided discussing these issues in its judgment. 155 E Barendt, Broadcasting Law: A Comparative Study (Oxford, Clarendon Press, 1994) Ch 2. 151 152

Lorna Woods

331

Part I – Commentary on the Articles of the EU Charter

the distribution network does not seem to have had a free-standing right;156 insofar as it is protected, it is protected as part of the content provider’s right.157 Similarly, while publishers and galleries share the responsibility of the author, and are therefore protected by the right,158 is the same true of the means by which those works are transported? The Advocates General emphasise that it covers not just the right to express one’s own ideas but also ‘the transmission of third-party ideas and information’.159 This perhaps reflects the idea of the right to transmit being seen in the context of terms and conditions applying to websites, and where it seems to be intended as a catch-all activity to cover copying and re-use of material. As such, it parallels the views of the Strasbourg Court in the Pirate Bay decision. In such an instance, the right would, where appropriate, be weighed again intellectual property rights.160 11.46 The new technologies also raise the question of whether there is a separate right to seek information or to search. Article 10 ECHR and Article 11 EUCFR are silent about the right to seek; Article 19 ICCPR expressly mentions it. There are two linked issues. The first concerns surveillance. As is the case with library records, the freedom to seek information will be impinged upon where the details of individuals’ searches are recorded. There would be a chilling effect, potentially limiting individuals’ choices about information sought. This issue has been recognised, but it is mainly considered in the context of privacy and data protection.161 While the ECJ recognised in SABAM that a filtering system may infringe the service users’ ‘freedom to receive or impart information’,162 it did not elaborate on this point. Indeed, since the case relies heavily on another copyright enforcement case, Scarlet Extended, it may be argued that the Court had another concern in mind: that the filtering software would censor legal content.163 Given the context of the cases, content filtering for the purposes of copyright enforcement, it is unsurprising that the issue was not addressed. The existence and scope of a right to seek remain open questions. Seeing monitoring of content as a freedom of expression issue would also support the argument for neutrality in traffic management terms.164 In both these instances, the entity being obliged to respect rights claims could be a private actor. This then brings us into the uncertain realm of states’ positive obligations.

156 This argument was made in the context of a First Amendment challenge to the FCC’s attempt to bring in net neutrality rules: Verizon Communications Inc v Federal Communications Commission (D C Cir, No 11-1355, 14 January 2014). On net neutrality, see n 164. 157 See eg Güdeno˘ glu v Turkey App no 42599/08 (Judgment 29 January 2013). 158 Eg Öztürk v Turkey App no 22479/93 (Judgment 28 September 1999) [49]. 159 Case C-316/09 MSD Sharp (n 44) [AG81]. No authority is given for this proposition. 160 Ashby Donald App no 36769/08 (Judgment 10 January 2013); Pirate Bay decision (n 62). 161 See Directive 2002/58 e-Privacy Directive [2002] OJ L201/37 as amended. The concern is not limited to Internet searches and cookies, but could cover other types of surveillance and other forms of transmission network. For a review of the law relating to broadcasters, see Walden and Woods ‘Broadcasting Privacy’ (2011) 3 Journal of Media Law 117. 162 Case C-360/10 Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog NV (Judgment 16 February 2012) [48]. 163 Case C-70/10 Scarlet Extended v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM (Judgment 24 November 2011) [52]. This reasoning is worrying as it seems to suggest that the freedom of expression finds its limit in ‘lawful communications’. 164 ‘Net neutrality’ is the principle that all content on the Internet should be treated equally by carriers and that they should not prioritise some content (eg faster transmission) nor discriminate against other content, for example by charging differentially, whether on the basis of user, content, site, platform, application, type of attached equipment, or mode of communication.

332

Lorna Woods

Art 11 – Freedom of Expression and Information

The second aspect concerns the neutrality or accuracy of search engine results. Some 11.47 commentators have suggested that search engines should be regulated to ensure that the results are not skewed by political or commercial motives. Presumably, even if the search engine operator were deemed to have expression rights, such rights would be outweighed by audience rights not to be misled. In the context of broadcasting, electronic programme guides are regulated so that access to places on the electronic programme guide (EPG) is allocated on non-discriminatory terms. While the right to seek information has been recognised,165 it has yet to be fully delineated. Although Article 11 EUCFR grants a broad scope of protection, it does not protect 11.48 speech that abuses Convention rights. The Advocate General in Mesopotamia Broadcast stated that: the freedom of expression guaranteed in Article 11 of the Charter ceases to operate when the message infringes other principles and fundamental rights recognised by the Charter, such as the protection of human dignity and the principle of non-discrimination.166

This suggests hate speech may be dealt with as an abuse of rights (Art 17 ECHR, Art 54 EUCFR), but it is not clear when instances of hate speech should be dealt with as abuse of rights or under the derogation from free speech.167 Note that in the decisions of the European Commission on Human Rights, many claims brought challenging states’ licensing decisions were declared inadmissible. For example, Cable Music Europe168 concerned the prohibition of retransmission of channels via the Dutch cable network. The Commission ruled that the protection of a pluralist non-commercial system pursued the legitimate aim of protecting the rights of others. In some instances, claims where broadcasters have sought to play the system have likewise been dismissed, although Article 17 ECHR was not invoked. Thus, in MN v Spain169 a local broadcast licence was refused. The Commission noted that the applicant was trying to develop a network of local licences to create a nationwide operation. Likewise, in Groppera, a broadcaster which had located itself on the Italian side of the Swiss border to avoid the Swiss regulatory regime and was broadcasting back to Switzerland could not claim the protection of Article 10.170 While Article 10 rights were engaged, the Swiss authorities had not exceeded their margin of appreciation in taking action against the broadcaster. Whether such cases are manifestly unfounded, or constitute justified interferences with Article 10, the end point is clear. Such deliberate attempts to avoid the regulatory system have not found protection under Article 10 ECHR.171

165 Art 10 ECHR contains no specific right to seek information, but cf Art 19 ICCPR and see Council of Europe, Recommendation CM/Rec (2012)3 of the Committee of Ministers to Member States on the protection of human rights with regard to search engines. It is implicit in the right to access documents: Art 42 EUCFR. 166 Case C-245/10 Mesopotamia Broadcast (n 13) [AG68]. 167 IA v Turkey App no 42571/98 (Judgment 13 September 2005), Reports of Judgments and Decisions 2005-VIII but cf Aydin Tatlav v Turkey App no 50692/99 (Judgment 2 May 2006). 168 Cable Music Europe Ltd v The Netherlands App no 18033/91 (Decision 29 November 1993); see similarly X SA v The Netherlands App no 21472/93 (Decision 11 January 1994) DR76, 129. 169 MN v Spain App no 18353/91 (Decision 6 July 1993). 170 Groppera (n 22). 171 On the right of the state to prevent circumvention of regulatory systems, see eg also Radio 24 AG, S, W and A v Switzerland App no 10799/84 (Decision 17 May 1984) DR37, 236; X v UK (Radio Caroline) App no 8266/78 (Decision 4 December 1978) DR16, 190.

Lorna Woods

333

11.49

11.50

Part I – Commentary on the Articles of the EU Charter

What is the approach of the CJEU likely to be? The individualistic aspect of freedom of expression, that is the freedom of expression claim of would-be broadcasters, runs in the same direction as the free movement of services in the case of cross border broadcasting. EU protection of freedom of expression therefore favours speech as a commercial activity (as distinct from commercial communications), and it is only in rare cases that the CJEU has been prepared to find that such behaviour is abusive of free movement rights. The Court has however been prepared to find that the restriction of free movement has constituted an overriding public interest objective, albeit one subject to a proportionality review. These cases have all concerned the licensing of the service, rather than constituting 11.52 restrictions on particular content itself. The Court made this point, for example, in Groppera: it was not the content but the avoidance of the regulatory system that was problematic. The Court has accepted regimes may affect content and has been prepared to uphold those systems provided the systems aimed at a public interest objective and were applied in a non-discriminatory manner. The majority of the cases concerned advertising restrictions (specifically the quantity of advertising), although the issue of impartiality and political advertising has arisen.172 Even in Brind, which concerned a ban of televised interviews with members of a terrorist organisation, it was argued that the content itself was unaffected; instead the prohibition affected form.173 In Murphy, the prohibition on religious advertising was accepted as justified, though in this case the fact that other forms of venues for advertising remained available was a factor that the Court took into account.174 The EU also accepts that some content restrictions might be imposed: the AVMSD sets minimum standards essentially precluding hate speech and seeking to protect minors. While Member States may impose higher standards on broadcasters established within their respective jurisdictions, the scope for preventing incoming transmissions, legal in another Member State, is limited175 despite Member States’ discretion in assessing morality and cultural mores.176 Licensing is permissible as regards the broadcaster or a body seeking to re-transmit; 11.53 the right to receive cannot be subject to licensing requirements. Nonetheless, early decisions rejected complaints about the unauthorised installation of receiving aerials and satellite dishes.177 Despite the consistency of this approach, it is questionable whether the CJEU would follow this line. In de Coster, the Court found a tax on the installation of satellite dishes to infringe the free movement of services (trans-frontier satellite television services), and the Advocate General in his opinion made some fairly generic statements about the importance of freedom of expression in support of this position. Moreover, the European Court itself has recognised that in some circumstances a 11.51

172 RJ Huggett v UK App no 24744/94 (Decision 28 June 1995) DR82, 98; Sc X and the Association of Y v UK App no 4515/70 (Decision 12 July 1971) yearbook 14, 538. Note Animal Defenders International v UK App no 48876/08 (Judgment 22 April 2013). 173 Brind v UK App no 18714/94 (9 May 1994) DR 77, 42. 174 Murphy v Ireland App no 44179/98 (Judgment 10 July 2003), Reports of Judgments and Decisions 2003-IX. 175 Art 2a AVMSD (n 10). 176 See eg EFTA Court Case E-8/97 TV Sverige 1000 v Norway [1998] EFTA Court Report 68; Case C-245/10 Mesopotamia Broadcast (n 13). 177 B v Germany App no 10462/83 (15 March 1984) DR 37, 155; Aebi v Switzerland App no 10248/83 DR 41, 141; L Schwarz v Luxembourg App no 25183/94 (12 April 1996); and J van der Auwera v Belgium App no 30401/96 (21 May 1997).

334

Lorna Woods

Art 11 – Freedom of Expression and Information

satellite dish is essential to accessing certain forms of information not readily available otherwise.178 Article 11(2) EUCFR can be seen as giving specific expression to a positive obliga- 11.54 tion on the state regarding pluralism of the media. The extent of this obligation is unclear. The requirement to ‘safeguard’ can be seen in a number of ways. Does it require Member States to protect the level of pluralism that already exists, or is it an instruction to improve the level of pluralism? Further, pluralism can also be seen as relating to content diversity (internal pluralism), which might be related to pluralism in society in general, and that relating to the market structure (external pluralism). Content quotas and support for public service broadcasting support content diversity but have not typically been seen as constituting rights to freedom of expression. Indeed, they may rather have been seen as restrictions that needed to be justified,179 though that position might now be changing. In Lentia, the European Court of Human Rights accepted that the audience has a right to receive a wide range of information and that the state is the ultimate guarantor of media pluralism,180 though the extent of any consequent obligations was not clear.181 Meltex reaffirmed that, in licensing decisions, states could not be arbitrary,182 but in Manole the Court went further.183 The case concerned the state broadcaster in Moldova, which was effectively the main source of Moldovan news on television. Employees were laid off, and complained of state interference in editorial decisions. The Court found a violation of Article 10 ECHR. Reaffirming the state’s positive obligations, it held that there was: a duty on the State to ensure, first, that the public has access through television and radio to impartial and accurate information and a range of opinion and comment, reflecting inter alia the diversity of political outlook within the country.184

While the choice of mechanisms might remain with the state, the end point to be 11.55 achieved has been set by the European Court of Human Rights. In Manole, the complainants were the affected media workers. The Court’s approach raises the question of whether individual may claim rights to specific content. Khursid Mustafa concerned the right to access satellite television when a private landlord required tenants to remove a satellite dish under the tenancy agreement.185 The Court observed in particular that the satellite dish enabled the applicants, an immigrant family who wished to maintain contact with the culture and language of their country of origin, to receive television programmes in Arabic and Farsi. This case confirms that the right to receive information is not limited to news supply, but it also implies a degree of specificity in the content to be available. It also suggests that as well as being required to put in place public systems, states may be required to intervene in horizontal relationships. 178 Khurshid Mustafa et Tarzibachi v Sweden App no 23883/06 (Judgment 16 December 2008), discussed below. 179 Eg Groppera Radio AG (n 22). 180 Lentia (n 109). 181 R Craufurd Smith, Broadcasting Law and Fundamental Rights (Oxford, Clarendon Press, 1997) 179–80, 196; Case C-353/89 Commission v Netherlands [1991] ECR I-4069 [29]; Case C-288/89 Gouda (n 101); Case C-148/91 Verenigen Veronica Omroep Organisatie v Commissariat voor de Media [1993] ECR I-487. 182 Meltex (n 109). 183 Manole and Others v Moldova App no 13936/02 (Judgment 17 September 2009). 184 Ibid [100]. See also [107]. 185 Khurshid Mustafa (n 178).

Lorna Woods

335

Part I – Commentary on the Articles of the EU Charter

11.56

The position in Khursid Mustafa is still a far cry from stating that there is a right to particular information. Further, the manner in which this affects the EU is unclear. The recent Sky case186 concerned the right to short reporting provided in the AVMSD. Article 15 AVMSD provides that, for the purpose of short news reports, any broadcaster established in the European Union may access footage of events of high interest to the public which are transmitted on an exclusive basis by another broadcaster. They have a choice of footage and pay only the additional costs to the exclusive right holder. Sky challenged this provision on the basis of intellectual property and the right to carry on a business. The ECJ held that these rights, albeit recognised in the Charter, could be restricted for legitimate aims. In determining such legitimate aims, the Court recognised two aspects of freedom of expression: the fundamental freedom to receive information, guaranteed under Article 11(1) EUCFR, and the promotion of pluralism of the media in the production and programming of information under Article 11(2).187 This case, while it emphasises that some information may be more significant that others, is primarily concerned with ensuring a plurality of sources for newsworthy information at least. Beyond the AVMSD, Article 11(2) EUCFR and the case law of the ECJ recognise the space for Member States to regulate for media pluralism,188 but the EU courts have not to date expressed an obligation on the Member States so to do. Furthermore, despite the recognition of the importance of state support for content pluralism, within the EU any such measures are still checked for compliance with competition, state aid and free movement rules.189 11.57 The European Court of Human Rights has used pluralism in the context of structural questions too. Licensing can be used to control both the number and nature of those participating in the media environment. Indeed, the Court has been used to challenge state media monopolies.190 In this parallels with the ECJ’s case law on free movement of services and competition can be seen. In ERT, for example, the Greek broadcasting monopoly was unacceptable both in the context of freedom to provide services but also in the context of ensuring a range of voices could be available.191 Commentators concerned about pluralism192 have expressed concern about the concentration of media undertakings, but so far there has been no binding expression of the idea that states must take action on this basis. As well as concern about content plurality, with the privatisation of terrestrial and 11.58 telecommunications-based transmission networks as well as the development through private companies of new platforms, there is concern that these operators may act as gatekeepers, posing a threat to access to information and in some instances, the right to express oneself (increasingly important in the age of social networking). As noted,

186

Case C-283/11 Sky (n 14). Ibid [51]–[52]. 188 Case C-353/89 Commission v Netherlands (n 181) [29]; Case C-288/89 Gouda (n 101); Case C-148/91 Veronica (n 181) and in the context of magazines: Case C-368/95 Familiapress (n 4). 189 See eg Commission, Communication from the Commission on the Application of State Aid Rules to Public Service Broadcasting [2009] OJ C257/1; Case E 4/2008, Sweden, Aid to the press; Case C-199/06 Centre d’exportation du livre français (CELF) and Ministre de la Culture et de la Communication v Société internationale de diffusion et d’édition (SIDE) [2008] ECR I-469. 190 Lentia (n 109); Radio ABC v Austria App no 19736/9220 (20 October 1997), Reports of Judgments and Decisions 1997-VI 53. See similarly General Comment 34 (n 27) [40]. 191 Case C-260/89 ERT (n 3). 192 See eg Council of Europe Media Diversity in Europe, December 2002, H/APMD (2003)1; Final Report of the High Level Group on Media Freedom and Pluralism, 21 January 2013, available: http://ec.europa.eu/digitalagenda/en/high-level-group-media-freedom-and-pluralism. 187

336

Lorna Woods

Art 11 – Freedom of Expression and Information

the Strasbourg Court has recognised the importance of access to infrastructure. Indeed, Khurshid Mustafa can be read as recognising the importance of a particular type of infrastructure.193 Further, the significance of the Internet as a source of a wide range of content has been accepted by the Council of Europe194 and consequently that net neutrality is important to ensure freedom of expression.195 The extent of any positive obligations here is uncertain. The EU remains on the whole in an economic mind-set. The telecommunications regime does contain provisions for telecommunications access and universal service, and the recitals to the telecoms directives acknowledge Article 10 ECHR. In the cases relating to the telecommunications infrastructure and the must-carry obligations, though, the CJEU has preferred to rule without basing its determination on freedom of expression.196 Beyond media regulation, another area subject to freedom of expression-based chal- 11.59 lenges in the EU is advertising regulation, introduced in the interests of consumer welfare (including in the case of some products their physical well-being). We have noted that commercial speech benefits from a lower level of protection, perhaps because it is not easy to apply any of the classical arguments for freedom of expression to commercial communications.197 It is this approach that leaves room for the regulation of advertising, including the limitation of the advertising of some products and the frequency of advertising on television.198 Nonetheless, there are some difficulty boundaries to draw. While we might accept that overblown claims about the efficacy of a product have little value, can we be sure that there is no informative value to all communications, some of which might allow the members of the audience to make informed choices? The Court, or at least its Advocates General, suggested that, particularly in the context of medicines and supplements, there is a boundary between advertising (lower-value speech) and information (higher value speech).199 Here replicating the manufacturer’s information sheet about a drug without amendment was not advertising by the distributor; it served an informative (and potentially important) function. For the Advocate General, in drawing this boundary between information and advertising, one of the factors to take into account was the way the material was presented. ‘Pushing’ material seems more likely to make it advertising. Thus, the determination is not just about content of speech, but also the audience’s mode in accessing that information: active (and implicitly in critical/ analytical mode) versus passive (uncritical). This parallels the concerns underpinning consumer protection rules. As in that context, the question is where to draw the line.

193 See n 178. Contrast Tele 1 Privatfernsehgesellschaft mbH v Austria App no 32240/96 (Judgment 21 September 2000) [39]–[40] in which the Court determined that access to cable infrastructure was equivalent to a terrestrial frequency. Note this case concerned the content provider’s right, not that of the audience, and the Court based its conclusion on the fact ‘that almost all households receiving television in Vienna have the possibility to be connected to the cable net’ and that cable was therefore a viable alternative. 194 Recommendation CM/Rec(2007)16 of the Committee of Ministers to Member States on measures to promote the public service value of the Internet. 195 Council of Europe, Declaration of the Committee of Ministers on network neutrality [6]. 196 Case C-250/06 UPC Belgium and Others (Judgment 3 March 2011); Case C-154/09 Commission v Portugal [2010] ECR I-127. 197 Barendt Free Speech (n 23) pp 399–406. 198 See AVMSD (n 10). 199 Case C-316/09 MSD Sharp (n 44) [AG59], and see views of the Court [47]–[48]. Regarding ECHR see Hertel v Switzerland App no 25181/94 (Judgment 25 August 1998), Publications of the ECHR, Reports 1998-VI.

Lorna Woods

337

Part I – Commentary on the Articles of the EU Charter

Here, the assumption was that information, at least in this context, was to be interpreted broadly, protecting the distributor’s speech right. Other boundary problems can arise in the context of political advertising and political speech.200 Should limitations on the content of advertising be applied equally to such advertisements given the value to the audience, and to the public sphere? Should it make a difference whether that speech is information or advertising? 11.60 One key difference between Article 11 and Article 10 is that Article 10(2) ECHR refers to the fact that the exercise of freedom of expression carries with it duties and responsibilities, a qualification which is also found in the comparable provision in the ICCPR, Article 19(3). This does not mean that there are certain categories of rightsholders subject to special duties. Nonetheless, the Strasbourg Court’s reasoning has been influenced by the context in which expression has taken place, for example the position of public servants,201 judges202 and soldiers.203 This has also influenced the Court of Justice in its balancing of interests.204 Even for these categories of individuals, absolute and unlimited fidelity or confidentiality requirements would violate Article 10 ECHR205 and 11 EUCFR. While rights may be limited, there is an irreducible core that should not be infringed.206 This point is express in the terms of the EUCFR. 11.61 It is rare for an international court to strike down a national rule on the basis that it does not seek to achieve a legitimate, public interest objective. Rather, assessments of acceptability tend to focus on the derogation from the right, and particularly the proportionality of the measure. As we have seen in the Strasbourg jurisprudence, the Court’s approach is influenced by the margin of appreciation. It remains uncertain whether the EU courts ascribe the same meaning to margin of appreciation as thet Strasbourg Court does.207 In United Pan-Europe Communications Belgium, the CJEU assessed the Member States as having a wide margin of appreciation, but then imposed a strict process requirement for the award of a benefit, the ‘must-carry’ status.208 In other cases, the CJEU has not mentioned the margin of appreciation at all, or carried

200

Verein gegen Tierfabriken Schweiz (VgT) v Switzerland App no 24699/94 (Judgment 28 June 2001). Rommelfanger v Germany App no 12242/86 (Judgment 6 September 1989) (1989) 62 D & R 151— church as employer; Vogt v Germany App no 17851/91 Series A/323 (1996) 21 EHRR 205—teacher. 202 Wille v Liechtenstein App no 28396/95 (Judgment 28 October 1999), ECHR Reports 1999-VII. 203 Engel v Netherlands App nos 5100/71, 5101/71, 5102/71, 5354/72, 5370/72 (Judgment 8 June 1976); Hadjianastassiou v Greece App no 12945/87 (Judgment 16 December 1992) Series A/252 and cf Vereinigung Demokratischer Soldaten Österreichs (n 144). 204 Case C-274/99P Connolly (n 8). 205 Note, however the rather worrying decision of the Strasbourg Court in Nenkova-Lalova v Bulgaria App no 35745/05 (Judgment 11 December 2012), request for Grand Chamber hearing pending, which concerned an employment dispute regarding a journalist’s dismissal from the Bulgarian public broadcaster BNR. The BNR journalist complained that her dismissal, ostensibly on technical grounds regarding the way she had hosted one of her shows, had been a punishment for having exposed corruption in the political elite during one of her programmes. The European Court in a split decision accepted that Nenkova-Lalova’s dismissal was based on her wilful disregard of an editorial decision concerning an issue of the internal organisation of the BNR, and that the three-stage test in Art 10(2) was satisfied. 206 E Orücü, ‘The Core of Human Rights and Freedoms: the Limit of Limits’ in Campbell et al (eds), Human Rights: From Rhetoric to Reality (Oxford, Basil Blackwell, 1986). 207 See formulation in Case C-112/00 Schmidberger (n 4) [82]; Case C-250/08 United Pan-Europe Communications Belgium [2007] ECR I-11135 [44]–[45]; Case C-244/06 Dynamic Medien (n 21). 208 Case C-250/08 United Pan-Europe Communications (n 207) [46]–[49], but contrast Case C-134/10 Belgian Must Carry Obligation (n 17) [53] concerning the criteria for awarding ‘must-carry’ status under Directive 2002/22/EC, Art 31, in which the Court referred to ‘margin of discretion’. 201

338

Lorna Woods

Art 11 – Freedom of Expression and Information

out a thorough review of the proportionality of the measure.209 In the case of Painer,210 which concerned the need to balance copyright with users’ freedom of expression, the CJEU dismissed the issue by saying that a fair balance had been struck between the rights in the drafting of the provision in question,211 which allowed use of the work provided the author was attributed. Of course, proportionality is assessed differently when the legislative choices rather than Member States’ legislation, is in issue.212 In this context, questions have been raised about the level of protection awarded to 11.62 rights found within the scope of protection under general principles, especially where they run contrary to Treaty freedoms.213 In Schmidberger, the Court had to balance the right of free movement against the right of environmental protesters to free movement. It did so on the basis that neither right was unlimited, and that a balancing exercise should be carried out. This balancing exercise was a form of extended proportionality review which led to the CJEU finding in favour of the state’s decision to allow the protest. Unfortunately, the CJEU has not been consistent in its approach to proportionality. Commentators have argued that its case-law could be understood as describing the relationship between human rights protection and the four freedoms in three different ways: that fundamental rights protection constitutes a ground of public policy within the Treaty derogation from free movement; that protection of human rights is an overriding interest of public interest; or constitutes a third independent ground of restriction of Treaty freedoms.214 Further, its approach to proportionality is unclear. These analyses start from the assumption that the scope of the free movement right (and equally any other obligation in the EU treaties) are determined before any human rights considerations come in to play and in many cases the Court will seek to come to an answer without invoking human rights. The Strasbourg Court would see the position from the other side of the glass, so the ongoing debate remains whether the courts will end up in the same place.

209 See eg Case C-479/04 Laserdisken ApS v Kulturministeriet [2006] ECR I-8089 [62]–[65], although the Advocate-General notes this in passing [AG70]. 210 Case C-145/10 Painer (n 20) [134]–[135]. 211 Art 5(3)(d) of Directive 2001/29. 212 Case C-283/11 Sky (n 14) [50]. 213 L Woods, ‘Freedom of Expression in the European Union’ (2006) 12 European Public Law 371. 214 J Morijn, ‘Balancing Fundamental Rights and Common Market Freedoms in Union Law: Schmidberger and Omega in the Light of the European Constitution’ (n 5); V Hatzopoulos, Regulating Services in the European Union (Oxford, Oxford University Press, 2012) pp 163–66.

Lorna Woods

339

Article 12(1) Article 12(1) Freedom of Assembly and of Association 1. Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.

Text of Explanatory Note on Article 12(1) Paragraph 1 of this Article corresponds to Article 11 of the ECHR, which reads as follows: ‘1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.’ The meaning of the provisions of paragraph 1 is the same as that of the ECHR, but their scope is wider since they apply at all levels including European level. In accordance with Article 52(3) of the Charter, limitations on that right may not exceed those considered legitimate by virtue of Article 11(2) of the ECHR. 2. This right is also based on Article 11 of the Community Charter of the Fundamental Social Rights of Workers. 3. Paragraph 2 of this Article corresponds to Article 191 of the Treaty establishing the European Community.

Select Bibliography B Bercusson, ‘Freedom of assembly and of association’, in B Bercusson (ed), European Labour Law and the EU Charter of Fundamental Rights (Baden-Baden, Nomos, 2006) 133–69. G Braibant, La Charte des droits fondamentaux de l’Union européenne (Paris, Seuil, 2001) 122–27. A Carillon, Les sources européennes des droits de l’Homme salarié (Brussels, Bruylant, 2006). M Craven, The International Covenant on Economic, Social and Cultural Rights (Oxford, Clarendon Press, 1995) 248–86. C Fenwick, ‘Minimum Obligations with respect to Article 8 of the International Covenant on Economic, Social and Cultural Rights’, in A Chapman and S Russel (eds), Core Obligations: Building a Framework for Economic, Social and Cultural Rights (Antwerp, Intersentia, 2002) 53–86. F Dorssemont, ‘The right to form and join Trade Unions for the Protection of his interests under Article 11 ECHR’ (2010) 1 European Labour Law Journal 185–235.

Part I – Commentary on the Articles of the EU Charter

AW Heringa and F Van Hoof, ‘Freedom of association and assembly’, in P Van Dijk, F van Hoof, A Van Rijn and L Zwaak (eds), Theory and Practice of the European Convention on Human Rights (Antwerp, Intersentia, 2006) 817–40. C La Hovary, Les droits fondamentaux au travail (Paris, PUF, 2009) 59–74. P Lorber, ‘Labour Law’, in S Peers and A Ward (eds), The EU Charter of Fundamental Rights (Oxford, Hart publishing, 2004) 211–30. V Mantouvalou, ‘Is there a human right not to be a union Member? Labour rights under the European Convention on Human Rights’, in C Fenwick and T Novitz, Human Rights at Work (Oxford, Hart Publishing, 2010) 439–62. B Ryan, ‘The Charter and Collective Labour Law’, in T Hervey and J Kenner, Economic and Social Rights (Oxford, Hart publishing, 2003), 67–90. F Sudre, Droit européen et international des droits de l’homme, (Paris, PUF, 2011) 608–32.

A. Field of Application of Article 12(1) 12(1).01 According to Article 51, the Charter is addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity, and to the Member States only when they are implementing Union law. The most immediate application of the Charter for the institutions and the bodies of the Union relates to the issue of the freedom of association of workers employed by these institutions as well as to the issue of political parties at Union level. Both issues are of no immediate relevance to Member States. They have an internal dimension, as they are related to industrial relations within the institutions of the European Union, or relate to the political functioning of those institutions. They relate to ‘organic’ or institutional EU law, as opposed to material EU law. Both issues are situated at a European level. 12(1).02 In this respect, it is worthwhile recalling that Regulation (EEC) 31,1 (EAEC) 11, laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community, which dates back to 1962, recognised freedom of association to the benefit of the staff members of the major European institutions. The European Central Bank is not covered by these Regulations. The Conditions of Employment for Staff (1998) which have been adopted by the Governing Council of the ECB are mute on the issue of freedom of association. A decade of a single-channel system of industrial relations at the ECB dominated by the presence of an elected staff committee was followed by the introduction of a legal framework (Guiding Principles, 2008) adopted by the Governing Council for the recognition of information sharing and consultation with trade unions at the European Central Bank. Soon after the adoption of the Framework, a Memorandum of Understanding was concluded between the European Central Bank and International and European Public Services Organisation. In sum, the legal framework for industrial relations has been transformed over a decade from a single-channel system (staff committee) into a dual-channel system (staff committee and trade unions).

1

342

[1962] OJ P45/1385.

Filip Dorssemont

Art 12(1) – Freedom of Assembly and of Association

As far as the relevance of Article 12(1) for the issue of material EU law and its implementation by the Member States is concerned, the practical relevance of Article 12(1) seems to be severely limited due to the formal exclusion of the issue of ‘the right of association’ from the competences in the field of social policy. However, this impression must be mitigated, for four reasons. First, there are limits to the exclusion. The exclusion of the ‘right of association’ in Article 153 TFEU needs to be situated in the social policy context. The ‘right of association’ is excluded simultaneously with the right to strike and the right to impose lockouts. It is my view that ‘the right of association’ in Article 153 has no generic meaning. It ought to be restricted to the topical issue of the right of employees and employers to organise. Indeed, judged otherwise, an exclusion of the generic issue of the right of association from a title dedicated to social policy would be ill-considered. In other words, the exclusion extends neither to ‘civic’ and ‘political’ matters in the meaning of the Charter, nor in my view to ‘commercial’ or ‘economic’ matters. However, insofar as the right of association for the defence of workers’ or employers’ interests is at stake, the exclusion cannot be circumvented by having recourse to competences defined in other policy titles of the TFEU. In a well know opinion to the Laval case, Advocate General Mengozzi stated that ‘If the effectiveness of Article 137(5) EC is to be upheld, the Community institutions could not of course resort to other legal bases in the Treaty in order to adopt measures designed to approximate the laws of the Member States in this field.’2 Secondly, the exclusion in my view neither precludes nor invalidates legislative intervention which is merely indirectly related to trade union issues. By way of comparison, it has been argued that the exclusion of pay does not prevent the prohibition of unequal treatment in the field of pay as a competence in the field of social policy.3 In the same vein, it can be argued that the exclusion does not prevent combating unequal treatment in the field of trade union matters. In fact, a number of legislative interventions seek to combat discrimination in trade union matters. The oldest example dates back to 1968—Regulation 1612/68, which guaranteed free movement of workers. This Regulation has since been repealed, but integrated as Article 8 of Regulation 492/20114 on the free movement of workers. A worker who is a national of a Member State and who is employed in the territory of another Member State shall enjoy equality of treatment as regards membership of trade unions and the exercise of rights attaching thereto. This provision does not impinge upon the autonomy of trade unions to draft internal rules regarding membership. These rules should however be applied without any nationality based discrimination of a worker moving freely from one Member State to another. The scope of trade union rights would seem to be a matter of the law of individual Member States. Nevertheless, a hard core of trade union rights is identified. Thus trade union rights need to include the right to vote and to be eligible for the administration or management posts of a trade union. The approach of trade union rights is purely internal. It does not extend to rights related to the promotion and defence of workers’ interests at all. The fact that the collective dimension is being disregarded is

2 Opinion of P Mengozzi related to Case C-341/05 Laval [2007] ECR I-11779 [58]. In the same vein: T Novitz, International and European Protection of the Right to Strike (Oxford, Oxford University Press, 2003) 162. 3 See P Rodière, Traité de droit social de l’Union européenne (Paris, LGDJ, 2008) 32. 4 Regulation 492/2011 on freedom of movement of workers within the Union [2011] OJ L141.

Filip Dorssemont

343

12(1).03

12(1).04

12(1).05

12(1).06

Part I – Commentary on the Articles of the EU Charter

12(1).07

12(1).08

12(1).09

12(1).10

coherent with the main focus of the Regulation, which is about the right of an individual exercising his freedom of movement. The Race Directive 2000/435 as well as the Framework Equal Treatment Directive 2000/786 apply in relation to ‘membership of and involvement in an organisation of workers or employers or any organisation whose members carry on a particular profession, including the benefits provided by such organisations’. The perspective adopted continues to be internal. The right to organise does not seem to relate to trade union action in defence of workers’ or employers’ interests. Thirdly, as evidenced by the infamous Viking and Laval cases, the mere fact that a fundamental right is being excluded in Article 137(5) TCE (Art 153(5)) from the competences does not generate an ‘immunity’ from other conflicting EU principles, eg from (fundamental) economic freedoms. However, in assessing the impact of those economic freedoms on the right to organise, fundamental rights as recognised by the Charter will have to be taken into account by the Court of Justice as well as by domestic jurisdictions upholding EU law. In fact, the Court of Justice as well as the Advocates General referred to the Charter in both cases which were related to a conflict between economic freedoms and the right to take collective action as guaranteed by the Charter.7 In sum, though neither the TFEU nor the Charter provide a legal basis for a legislative competence, the right to association is relevant for the material scope of EU law. As a fundamental principle of EU law, it will need to be taken into account in the application and interpretation of material primary and secondary EU law. Fourthly, irrespective of the exclusion of the right of association in Article 153, Article 12(1) continues to be fully relevant, due to its recognition of the freedom of peaceful assembly. Though Article 153 excludes the right to strike from the EU competences under the Social Policy Title, it does not exclude the freedom of peaceful assembly. The latter concept might serve as an expedient to construe a legislative competence related to peaceful assembly in defence of workers’ or employees’ interests. The latter could hardly be disputed in the case of the exercise of the freedom of assembly outside working hours. It might be more problematic in the case of the exercise of the freedom of assembly during working hours which coincides with a strike. The ECtHR has in recent case law related to Article 11 preferred to construe such strikes primarily or even exclusively as an issue of the freedom of assembly rather than as an issue of trade union freedom.8 However, the recognition of the freedom of assembly is irrelevant to assess the issue of competence. Article 51 indeed states that the Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.

5

[2000] OJ L180. [2000] OJ L303. 7 See Case C-341/05 Laval [2007] ECR I-11779 [90]; (see especially the opinion of AG Mengozzi, delivered on 23 May 2007 [69]–[73]) and Case C-438/05 Viking [2007] ECR I 10779 [43]. 8 Karaçay v Turkey App no 6615/03 (ECtHR, 27 March 2007); Urcan and others App nos 23018/04, 23034/04, 23042/04, 23071/04, 23073/04, 23081/04, 23086/04, 23091/04, 23094/04, 23444/04 and 23676/04 (ECtHR, 17 July 2008); Saime Özcan v Turkeye App no 2953/04 (ECtHR, 15 September 2009); Kaya and Seyhan v Turkey App no 30946/04 (ECtHR, 15 September 2009); and Dilek and others v Turkey App nos 74611/01, 26876/02 and 27628/0257 (ECtHR, 28 April 2008). 6

344

Filip Dorssemont

Art 12(1) – Freedom of Assembly and of Association

The freedom of association and the freedom of assembly are intertwined with the 12(1).11 right to take collective action. Since the first are declared outside Title IV of the Charter, these rights can be used to circumvent the exclusion of the rights of Title IV in the Protocol on the application of the Charter of fundamental rights in the European Union to Poland and the United Kingdom.

B. Interrelationship of Article 12(1) with Other Provisions of the Charter As is evidenced by the case law of the ECtHR, it is artificial to dissociate the freedom 12(1).12 of (trade union) association from the exercise of the freedom of expression. For this reason, Article 12(1) of the Charter is intertwined with Article 11. In some recent cases which are indeed related to trade union action in defence of workers’ interests, the Court has sought to interpret alleged violations of Article 10 (freedom of expression) ‘in the light’ of Article 119 Trade union actions indeed tend to defend and promote workers’ interests based upon profound convictions related to social justice. Trade union action is about pushing demands. It necessarily expresses an opinion. In older cases, the ECtHR has protected the negative freedom of association by interpreting Article 11 in the light of Article 10. It argued that trade union membership might be related to explicit political and ideological visions upon which a trade union has been founded.10 Compulsory membership can constitute an interference with the freedom of expression. The nexus between the freedom of expression and the freedom of association is evidenced by the fact that both have been introduced in the Charter under the heading ‘Freedom’, whereas rights which are explicitly related to the defence of workers’ and employers’ interests have been introduced under the heading ‘Solidarity’. The conceptual nexus between the freedom of association and the freedom of collec- 12(1).13 tive bargaining and of the right to collective action has been developed progressively by the Court on European Human Rights. Hence, there is a conceptual link between Article 12(1) and Article 28 of the Charter. In the very first case related to the freedom of trade union association (in 1975), the ECtHR ruled that the phrase ‘for the protection of his interests’ was not redundant.11 The idea that trade unions should have means to protect the interests of their members has been reiterated ever since, in constant case law.12 As a matter of principle, the Court recognised that the telos of the right to organise could be used to develop corollary rights which are essential or necessarily inherent to the right to organise. Restrictions to corollary rights which are essential to the freedom of association need to pass the test of Article 11(2). It has thus recognised the right to be heard as well as the freedom of collective bargaining as essential trade union

9

See eg Palomo Sánchez and others v Spain App no 28955/06 (ECtHR, 12 September 2011). Young, James and Webster v United Kingdom App no 7601/76 and 7806/77 (ECtHR, 13 August 1981); and Sørensen and Rasmussen v Denmark App nos 52562/99 and 52620/99 (ECtHR, 11 January 2006). 11 National Union of Belgian Police App no 4464/70 (ECtHR, 27 October 1975), Series A, 19. 12 See Wilson and Palmer App nos 30668/96, 30671/96, 30678/96, 30668/96 (ECtHR, 2 July 2002), ECHR 2002-V [42]; Enerji Yapi-Yol Sen App no 68959/01 (ECtHR, 21 April 2009) [24]; Demir and Baykara ECHR 2008-II [141]. 10

Filip Dorssemont

345

Part I – Commentary on the Articles of the EU Charter

prerogatives.13 Though denying that the right to take collective action is such an essential means, it did consider that this right could not be dissociated from the right to organise in Enerji.14 Though it is difficult to understand how a right which is interwoven with the right to organise does not strike its essence, the right to collective action falls within the ambit of Article 11 ECHR. Restrictions to the right to take collective action need to pass the test of Article 11(2) ECHR. 12(1).14 The need to build on such a teleological interpretation of Article 12 of the Charter in order to recognise the freedom of collective bargaining as well as the right to take collective action is less stringent under the Charter. Both freedoms indeed have been recognised in Article 28 of the Charter. For three reasons such a teleological interpretation still makes sense. First, the recognition of the freedom of collective bargaining as well as of the right to take collective action is much more ambiguous than the recognition of the freedom of association. Indeed, Article 28 does not recognise both freedoms ‘as such’. The proclamation has been solely made ‘in accordance with Union law and national laws and practices’. A similar clause of ‘accordance’ has not been reiterated in Article 12(1) of the Charter. If taken literally, this means that there is no substantive limit to the restrictions that could be imposed on the basis of Union law and national laws and practices. Formally speaking, these restrictions do not even constitute external restrictions to the rights granted under the Charter. Union law and national law define the extent to which the freedom of collective bargaining and the right to take collective action have been recognised under the Charter. In other words, the formula amounts to the imposition of internal restriction of a semantic nature. This technique has been adopted in the formulation of several rights of the Charter (Arts 14, 16, 18, 30, 34, 45). In my view, such an interpretation needs to be reconciled with the canon of interpretation enshrined in Article 52 of the Charter. This indeed obliges the institutions and the Member States to which the Charter is addressed to interpret ‘rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention’. Furthermore, the meaning of the latter needs to be defined in a way which is consistent with the case law of the Strasbourg Court. In the Preamble, the Charter is indeed qualified as a reaffirmation of the rights as they result from inter alia the ECHR and the case law of the Court of Justice. In an important explanation related to Article 52, the Presidium has highlighted that: The meaning and the scope of the guaranteed rights are determined not only by the text of those instruments, but also by the case law of the European Court of Human Rights and by the Court of Justice of the European Communities.

12(1).15 Secondly, though the Charter is more prolific in the formulation of fundamental workers’ rights as opposed to the ECHR, in many perspectives it does not reach the level of protection advocated in specialised international instruments related to economic, social and cultural rights. Thus, a right to co-determination, or to a fair or just remuneration, has not been recognised, despite the fact that the EU is competent in that field. Insofar as

13 See National Union of Belgian Police App no 4464/70 (ECtHR, 27 October 1975), Series A, 19 and Wilson and Palmer App nos 30668/96, 30671/96, 30678/96, 30668/96 (ECtHR, 2 July 2002). 14 Enerji Yapi-Yol Sen App no 68959/01 (ECtHR, 21 April 2009).

346

Filip Dorssemont

Art 12(1) – Freedom of Assembly and of Association

those rights could be construed as an issue of the right of association for the protection of workers’ interests, Article 12(1) as a general norm could prove to have an added value. Thirdly, the phrase ‘for the protection of his interest’ has not been reiterated in Article 12(1).16 24 of the Staff Regulations. This provisions only states: ‘Officials shall be entitled to exercise the right of association; they may in particular be members of trade unions or staff associations of European officials.’ The provision is mute on the telos of such a right. Furthermore, with the exception of the ECB, the staff regulations of the EU institutions are mute on the issue of the right to strike. This loophole is partially remedied by agreements which have been concluded with trade unions active at EU institutions. Some of these agreements concluded with the European Commission and the European Parliament regulate recourse to strike action. These agreements refrain from formally recognising a right to strike. In fact the ‘s’ word is meticulously avoided, in favour of more descriptive formulas, such as ‘collective refusal to work’ or ‘work stoppage’. In so far as Article 12 is applicable in political matters and highlights the quintes- 12(1).17 sential role of political parties at Union level in contributing to express the political will of the citizens of the Union, a nexus with the issue of citizenship is obvious. Articles 39 and 40 which relate to a right to vote and stand as a candidate at the European as well as municipal elections, illustrate the various levels at which the freedom of association can and needs to be protected and promoted.

C. Sources of Article 12(1) Rights Though the Explanation only refers to the ECHR and the Community Charter of the 12(1).18 Fundamental Social Rights of Workers as a source of inspiration, the freedom of association has been recognised in human rights charters of both civil and political rights as well as in charters of economic, social and cultural rights. Whereas the first type of charters pay tribute to the freedom of association in a generic way first, illustrated by a reference to trade union freedom, the latter are solely devoted to the right to organise of workers and employers. For a more detailed and elaborated codification of the principles of the freedom of association, two ILO Conventions (nos 87 and 98) are paramount.15 As a general rule, instruments related to civil and political rights are ambiguous in determining whether the right to organise also extends to employers and their organisations. The exclusive use of the semantics ‘trade union’ (syndicat) contributes to such ambiguity. International instruments related to civil and political rights also enshrine the freedom of peaceful assembly, contrary to instruments related to economic, social and cultural rights.

I. Council of Europe Treaties Article 12 of the Charter is very reminiscent of Article 11 of the European Convention 12(1).19 on Human Rights. It integrates the recognition of the freedom of peaceful assembly and the freedom of association into one provision. Furthermore, it illustrates the generic

15

See in this respect: C La Hovary, Les droits fondamentaux au travail (Paris, PUF, 2009) 59–74.

Filip Dorssemont

347

Part I – Commentary on the Articles of the EU Charter

recognition of the freedom of association by reference to the right to form and join trade unions for the protection of one’s interests. However, the scope of the provision of the Charter differs in so far as it enumerates other matters than trade union matters. Furthermore, it also indicates another type of association in an explicit way, ie political parties. Another difference relates to the fact that the European Convention explicitly allows lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state. 12(1).20 The Revised European Social Charter is mute on the issue of peaceful assembly. Article 5 of the Revised European Social Charter contains an elaborate provision dealing with the ‘the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations’. It provides leeway to the contracting parties to determine the extent to which the guarantees of Article 5 will apply to the police and the armed forces. The revised European Social Charter recognises the freedom of collective bargaining for trade unions, employers and their organisations and the right to take collective action for employers and workers in a distinct provision.16

II. UN Treaties 12(1).21 The ICCPR recognises the right of peaceful assembly (Art 21) and the right to freedom of association (Art 22) in two distinct provisions. It illustrates a generic recognition of the freedom of association, by reference to the (individual) right to form and join trade unions for the protection of the individual’s interests. The ICESCR is mute on the issue of peaceful assembly. Article 8 recognises a right of everyone to form trade unions and join the trade union of choice, subject only to the rules of the organisation concerned, for the promotion and protection of his economic and social interests. Article 8 explicitly does not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the state. The ICESCR has integrated a set of trade union rights as well as the right to strike into one and the same provision. It does not formally pretend that the right to call for a strike is an exclusive trade union prerogative. It is mute on the freedom of collective bargaining, which is considered to be a classical trade union prerogative in many Member States. The latter could be considered to fall within the ambit of the collective right of trade unions to function freely.17 Article 8 contains a safeguard or non-regression clause to the benefit of the Convention no 87 concerning Freedom of Association and Protection of the Right to Organise.

16

See Art 6 of the Revised European Social Charter. M Craven, The International Covenant on Economic, Social and Cultural Rights (Oxford, Clarendon Press, 1995) 275–77 and C Fenwick, ‘Minimum Obligations with respect to Article 8 of the International Covenant on Economic, Social and Cultural Rights’, in A Chapman and S Russel (eds), Core Obligations: Building a Framework for Economic, Social and Cultural Rights (Antwerp, Intersentia, 2002) 65–66. 17

348

Filip Dorssemont

Art 12(1) – Freedom of Assembly and of Association

III. Other Sources As elucidated by the Explanation of the Presidium, the drafting of Article 12 has been ‘also’ based on Article 11 of the Community Charter of Fundamental workers’ rights. The latter is mute on the issue of peaceful assembly. It attributes the right of association to employers and workers in order to constitute professional organisations or trade unions of their choice for the defence of their economic and social interests. Unlike the Charter of Nice, the Community Charter is explicit in its recognition of the negative right to organise. Other provisions of the Community Charter make reference to the right to negotiate and conclude collective agreements under the conditions laid down by national legislation and practice, as well as to the right to have recourse to collective action in the event of a conflict of interests. This right also includes the right to strike. The Community Charter provides leeway to the internal legal order of the Member States to determine under which conditions and to what extent the trade union rights apply to the armed forces, the police and the civil service. The most specialised and elaborate instruments related to the right to organise are two ILO Conventions, nos 87 and 98, which were adopted in the aftermath of the Second World War. Both conventions refer in their title to the concept of the freedom of association and or the right to organise. Neither one of these concepts has been defined in an abstract way, but both conventions contain elaborate rules on the issue. Both conventions have been monitored by a specialised supervisory bodies of the ILO, the Freedom of Association Committee, which ever since 1951 has dealt with cases of alleged violation of the freedom of Association. Last but not least, both the freedom of association as well as the freedom of assembly are common to (written) constitutional traditions of the Member States. Some Member States (eg the Netherlands and Belgium) have neglected to modernise their constitutions so as to safeguard the right to form and join trade unions. However, an interpretation of these constitutions as a living instrument might be sufficient means to interpret such a generic recognition in a more specific way.

12(1).22

12(1).23

12(1).24

12(1).25

12(1).26

D. Analysis I. General Remarks Article 12 deals with two separate issues. The first relates to the right to freedom of 12(1).27 peaceful assembly. The second is elaborated in much more detail. It relates to the freedom of association. The right to freedom of association is recognised at all levels and in various matters, 12(1).28 some of which are spelled out. The levels refer to geographical level, whereas the matters are intertwined with the ambit wherein the objectives of an association can be situated. In this respect, it is worthwhile to indicate that according to the Explanation, the added value of Article 12 of the Charter would reside in its ‘wider scope’, since it would indeed apply at ‘all levels, including the European level’. The precise scope of this explication Filip Dorssemont

349

Part I – Commentary on the Articles of the EU Charter

seems to suggest that the ECHR would only apply at a national level. In my view, this interpretation needs to be mitigated. Insofar as a violation of Convention rights would occur at transnational level, involving a liability of various contracting parties to the European Convention on Human Rights, no objection exists to a combined responsibility of several Member States. The Rantsev case18 pays witness to such an approach, accepting a combined responsibility on the of both Russia as well as Cyprus for the transnational trafficking of women between those countries.

II. Scope of Application (a) The Freedom of Peaceful Assembly 12(1).29 The freedom of peaceful assembly has been given scant attention. However, the formulation does not deviate from the summary character of provisions in other human rights charters. In the ECHR as in the ICCPR, the freedom of assembly is covered on the condition that it is ‘peaceful’. The prohibition of an assembly which cannot be considered ‘peaceful’ will not constitute a restriction of the fundamental right. It simply falls outside the ambit of the Charter. In other words, there is no means to exercise the freedom of assembly in a way which is not peaceful. Such an act cannot be considered as the exercise of a fundamental right. A similar conceptual problem arises while defining the notion of collective action under Article 28 of the Charter. Despite the fact that the Presidium’s explanations do not provide much guidance, it is reasonable to suggest that only peaceful collective actions are covered by that provision. Thus, the ILO Freedom of Association Committee has always taken a favourable stance vis-à-vis alternative modes of collective action as long as they continue to have a pacific character.19 The ECtHR has scrutinised to what extent a contracting party could have reasonably 12(1).30 disqualified an assembly as being peaceful.20 It recognises that contracting parties have a broad margin of appreciation to assess whether a demonstration could affect public safety and order. Furthermore, the Court has imposed a positive obligation on contracting parties to ensure that the freedom of assembly can be exercised in a peaceful way. Thus, public authorities are required to take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully. Thus, participants should be protected against physical assault by their opponents. The broadest way to interpret the notion of peacefulness, is in my view a nega12(1).31 tive approach. An assembly ceases to have a peaceful character, in case of recourse to violence against third parties or against private property. Such an approach generates the subsequent question how to define ‘violence’. Thus, the question arises of whether acts which physically ‘block’ others and restrict their ‘freedom’ without recourse to physical assaults or without fear of intimidation can be considered to be peaceful. In

18

Rantsev v Cyprus and Russia App No 25965/04 (ECtHR, 7 January 2010). See Freedom of Association, 5th edn (Geneva, ILO, 2006) www.ilo.org/wcmsp5/groups/public/---ed_ norm/---normes/documents/publication/wcms_090632.pdf (no 545). 20 See AW Heringa and F Van Hoof, ‘Freedom of association and assembly’, in P Van Dijk, F van Hoof, A Van Rijn and L Zwaak (eds), Theory and Practice of the European Convention on Human Rights (Antwerp, Intersentia, 2006) 821. 19

350

Filip Dorssemont

Art 12(1) – Freedom of Assembly and of Association

my view, they are not per se violent. They might constitute peaceful resistance. A typical example was a sit-in on a public road which interfered with access to an American army base. Such forms of action used to be seen by the Commission of Human Rights as an expression of the freedom of peaceful assembly.21 In Barraco v France the ECtHR ruled that a collective action organised by a drivers’ 12(1).32 union fell within the ambit of the right to peaceful assembly. In the facts of the case, a truck driver participated in a so-called ‘snail operation’ (operation escargot), obstructing completely the traffic on the public highway by driving slowly and stopping.22 The CJEU ruling in Schmidberger23 may be pointed to by analogy. In that ruling, the 12(1).33 European Court of Justice accepted the Austrian government’s reliance on freedom of peaceful assembly as a ground for restricting the free movement of goods. Several environmental activists in that case had blocked the Brenner Pass. A goods carrier invoked the free movement of goods to hold the Austrian state liable for damage suffered by it. In contrast to Schmidberger, the French government did not attempt to invoke its duty to respect the freedom of peaceful assembly in the landmark case Spanish Strawberries. In this infraction procedure, the Commission criticised the failure of the French authorities to repress actions for over a decade by French farmers against carriers of imported fruit and vegetables.24 The Commission argued that the obligation to ensure the free movement of goods required a Member State to take all necessary and proportionate measures in order to prevent the free movement of agricultural products from being obstructed by criminal acts of private individuals. It was claimed that these products had been ‘dumped’ on the French market. The actions concerned have been described as ‘the interception of lorries transporting such products in France and the destruction of their loads, violence against lorry drivers, threats against French supermarkets selling agricultural products originating in other Member States, and the damaging of those goods when on display in shops in France’. The Court in fact qualified these acts as violent. It ruled that state liability under the free movement of goods was also triggered where a Member State abstains from adopting the measures required in order to deal with obstacles to the free movement of goods which are not caused by the state. The principle that Member States could be held liable for their refusal to act againt 12(1).34 private citizens creating an obstacle to the free movement of goods was codified in the subsequent Monti Regulation 2679/98.25 The Council was seemingly aware of the

21 X v Federal Republic of Germany App no 13079/87 (Commission of Human Rights, 6 March 1989), Decisions and Reports (DR) 60, 256. 22 Barraco v France App no 31684/05 (ECtHR, 5 March 2009). The Court assessed that a criminal prosecution against one of the drivers participating could be considered to be justified in view of the fact that there was a legitimate goal (protection of public order and of the rights and freedoms of others) and that the restriction could be considered to be ‘necessary in a democratic society’. See also Lörcher, who argues that this judgment amounts to the recognition of the strike in order to participate in a manifestation (das recht auf Proteststreik). In this respect: K Lörcher, ‘Internationalen Rechtsgrundlagen des Streikrechts’, in W Däubler (ed), Arbeitskampfrecht (Baden-Baden, Nomos, 2011) 178. 23 Case C-112/00 Eugen Schmidberger, Internationale Transporte und Planzüge v Republic of Austria (CJEU, 12 June 2003), Reports of Cases 2003 I-05659. For a commentary on this decision, see: F Dorssemont, ‘“Met de vlam in de pijp …” Vrijheid van vergadering en meningsuiting, recht op collectieve actie versus vrij verkeer: primaat of belangenafweging?’ [2004] Arbeidsrechtelijke annotaties 77–93. 24 Case C-265/95 Commission v France (Spanish Strawberries) [1997] ECR I-6959. 25 Council Regulation (EC) 2679/98 on the functioning of the internal market in relation to the free movement of goods among the Member States [1998] OJ L337.

Filip Dorssemont

351

Part I – Commentary on the Articles of the EU Charter

12(1).35

12(1).36

12(1).37

12(1).38

12(1).39

12(1).40

12(1).41

essential difference between the actions of the French farmers, and collective actions of workers. The guerrilla techniques of the French farmers could not be related to a right to collective action, for two reasons. First, the French farmers engaged in violence against property, and to a lesser extent against persons. Secondly, the collective action was not an action by workers, but rather by entrepreneurs. Thus the Monti Regulation limited the doctrine developed in Spanish Strawberries. It did not aim to clarify. but to correct. The regulation sought to immunise in an explicit and unconditional manner ‘the exercise of fundamental rights as recognised in Member States, including the right or freedom to strike’. It specified that these rights ‘also include the right or freedom to take other actions covered by the specific industrial relations systems in Member States’. In the aftermath of a Viking and Laval, the Commission drafted a proposal ‘on the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services’.26 Despite the fact that the Commission has since decided to withdraw this proposal, a comparison between the two safeguard clauses is worthwhile. At first sight, Article 1 of the draft proposal seems to repeat the immunisation mechanism of the Monti Regulation, albeit in a literal manner. The formula is even more specific. Contrary to the Monti Regulation, however, the draft proposal explicitly states that ‘the right to negotiate, conclude and enforce collective agreements and to take collective action in accordance with national law and practices’ is not affected. This clarification is extremely helpful, due to the often neglected impact of the Viking and Laval judgments in the field of collective bargaining. In both cases, the collective actions are inextricably linked with the freedom of collective bargaining. In Viking the International Transport Workers’ Federation had blacklisted a particular shipowner. In view of the Flag of Convenience campaign, the ITF had urged its members to exercise their negative freedom of collective bargaining in a concerted way. With the exception of the union of the country from which the ships were financially controlled, members were called upon not to conclude collective agreements with the Finnish shipowner. The economic benefit of an establishment of the shipowner in Estonia would be lost. The shipowner sought after all to sign a collective agreement with an Estonian union, to be applied to the crew of the Rosella. In Laval, another kind of boycott was undertaken. The collective action was undertaken in order to force a Latvian subcontractor to accede to a Swedish collective agreement. Unfortunately, the CJEU did not examine whether the freedom of collective bargaining was a general principle of European law that had to be weighed against economic freedoms. It only considered the right to collective action.

26 COM (2012) 130. G Orlandini, ‘La proposta di regolamento Monti II ed il diritto di sciopero nell’Europa post-Lisbona’ (thesis, University of Siena) www.europeanrights.eu/public/commenti/Monti_II_final. pdf 16–17. N Bruun, Andreas Bücker, Filip Dorssemont ‘Balancing Fundamental Social Rights and Economic Freedoms: Can the Monti II Initiative Solve the EU Dilemma?’ (2012) 28 (3) International Journal of Comparative Labour Law and Industrial Relations 279–306; M Rocca, ‘The proposal for a (so-called) Monti II Regulation on the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services’ [2012] European Labour Law Journal.

352

Filip Dorssemont

Art 12(1) – Freedom of Assembly and of Association

The draft proposal affirms in a subsequent provision that the rights to collective action and collective bargaining are however limited by the freedom of establishment and the freedom to provide services. The immunisation is therefore deficient and unconvincing. The observation that economic freedoms are limited by the right to collective action seems to be the spoonful of sugar to help the medicine go down. The idea that economic freedoms and fundamental rights are mutually restrictive was expressed previously by Advocate General Trstenjak in her Opinion in Commission v Germany.27 The CJEU did not adopt such a formula, which was clearly inspired by the intention to silence the criticism that Viking and Laval had generated. The more broadly the term ‘peaceful’ is interpreted, the more the notion of ‘peaceful assembly’ may be used as a means to exert pressure on employers. In this respect, a sit-in on the public highway or before an entrance gate to a company can be considered to fall within the ambit of ‘peaceful assembly’. Despite the fact that the European Social Charter explicitly refers to the notion of ‘collective action’, the European Committee on Social Rights (ECSR) until now has not given much guidance on the peaceful character of those actions.28 A recent collective complaint procedure introduced by the Belgian trade unions and ETUC was aimed at clarifying the question as to what extent the right to take collective action involves a right to picket, and to what extent this allows trade unions to block the entrance of a plant.29 The Committee provided some guidance as to the extent of the right to take collective action under Article 6 RESC. It held that ‘Article 6§4 of the Revised Charter encompasses not only the right to withholding of work but also other relevant means, inter alia, the right to picketing. Both these components deserve consequently a comparable degree of protection.’30 The Committee did not define the precise scope of the right to picketing, seeming to suggest that this cannot be reduced to a mere exercise of the freedom of assembly and of expression. However, picketing procedures ‘operating in such a way as to infringe the rights of non-strikers, through for example the use intimidation or violence’ fall outside the ambit of Article 6 RESC. This approach did not extend to a consideration of whether picketing actions blocking access to enterprises without having recourse to intimidation or violence fall per se beyond the scope of the RESC. The French language version, however, makes it

27 See Opinion of AG Trstenjak with regard to Case C-271/08 Commission v German Republic [2010] Reports of Cases I-07091. 28 See F Dorssemont, ‘La (non) conformité du droit belge relative à l’action collective par rapport à la Charte sociale européenne’ in P Humblet, Actualités du dialogue social et du droit de grève (Waterloo, Kluwer, 2009) and S Evju ‘The right to collective action under the European Social Charter’ (2011) (3) European Labour Law Journal 201–203. 29 See decision of the ECSR related to Collective Complaint No 59/2009 European Trade Union Confederation (ETUC)/Centrale Générale des Syndicats Libéraux de Belgique (CGSLB)/Confédération des Syndicats chrétiens de Belgique (CSC)/Fédération Générale du Travail de Belgique (FGTB) v Belgium www.coe.int/t/dghl/monitoring/ socialcharter/Complaints/CC59Merits_en.pdf. For commentary, see F Dorssemont, ‘Libres propos sur la légitimité des requêtes unilatérales contre l’exercice du droit à l’action collective à la lumière de la Décision du Comité européen des droits sociaux (Réclamation collective no 59/2009)’ in PP Vangehuchten and Y Ficher (eds), Actions orphélines et voies de recours en droit social (Limal, Anthémis, 2012) 129–48 and P Lyon-Caen, ‘La décision du 13 septembre 2011 du Comité européen des droits sociaux à la lumière de la jurisprudence des organes de contrôle de l’O.I.T.’, in PP Vangehuchten and Y Ficher (eds), Actions orphélines et voies de recours en droit social (Limal, Anthémis, 2012) 121–29. 30 http://www.coe.int/t/dghl/monitoring/socialcharter/Complaints/CC59Merits_en.pdf.

Filip Dorssemont

353

12(1).42

12(1).43

12(1).44

12(1).45

12(1).46

Part I – Commentary on the Articles of the EU Charter

clear31 that collective actions do not just have to infringe the rights of non-strikers, but also have to make use of ‘intimidation or violence’ in order to fall outside the RESC. Furthermore, the Committee did not state that these action need to be ‘peaceful in nature’. It only stated that they should not be violent, ie based on the use of intimidation or violence. 12(1).47 Since obstructive physical blockades without the use of violence fall within the scope of the freedom of assembly, these actions will need to be taken into account, in the case of workers’ protest which conflicts with fundamental economic freedoms. (b) Freedom of Association 12(1).48 In view of the fact that the maintenance of public order is an exclusive competence of the Member States, the recognition of the freedom of assembly will rarely be relevant to the European institutions or to the Member States in implementing EU law. The freedom of association has the potential to be of a much greater relevance. Thus, the case law of the CJEU is not entirely mute on this issue. Prior to the adoption of the Charter, the freedom of association was recognised as a general principle of EU law in the highprofile Bosman case.32 The argument was invoked by a federation of football clubs, to restrict the freedom of movement of workers. Whereas a football player, Bosman, argued that the internal rules laid down by the federation to which his club was affiliated restricted his freedom to move within the European Union as a worker, the Belgian federation concerned argued that a judicial scrutiny of those provisions in the light of that freedom would unduly restrict its own freedom of association. The Court ruled that the freedom of association had to be recognised as a general principle of EU law since it was enshrined within the ECHR and resulted from common constitutional traditions. 12(1).49 The fact that the Court felt obliged to recognise the freedom of association, suggests that it recognises a link between that freedom and the issue of the internal autonomy of these associations in laying down rules. However, the Court did consider that the rules laid down by such associations could not be ‘seen as necessary to ensure enjoyment of that freedom by those associations, by the clubs or by their players, nor can they be seen as an inevitable result thereof ’.33 This recital was sufficient to reject the argument. 12(1).50 The precise meaning of this recital is somewhat puzzling. The approach of the Court seems to prefigure its posterior ruling in Albany. In Albany, the Court ruled that ‘certain restrictions of competition are inherent in collective agreements between organisations of employers and workers’.34 The Court tried to prevent this conflict in nuce by declaring that collective agreements did not fall within the scope of the competition rules. One might argue that according to the Court, in Bosman such an inherent contradiction between competition rules and freedom of association did not exist.

31 ‘… de nature à porter atteinte à la liberté des non-grévistes, par l’utilisation d’intimidations ou de violences, l’interdiction de ces modalités de mise en œuvre ne saurait être considérée comme contraire au droit de grève reconnu à l’article 6§4.’ www.coe.int/t/dghl/monitoring/socialcharter/Complaints/CC59Merits_fr.pdf. 32 Case C-415/93 Union royale belge des sociétés de Football association and others v Bosman and others [1995] ECR I-4921. 33 Ibid [79]–[80]. 34 Case C-67/96 Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie, ECR I-5751 [59].

354

Filip Dorssemont

Art 12(1) – Freedom of Assembly and of Association

If internal autonomy with regard to transfers of football players was indeed a necessary precondition for the effective enjoyment of the freedom of associations, an inherent contradiction would certainly exist. The reference to the absence of necessity and inevitability is similar to the Court’s posterior analysis of the conflict between the right to collective action and the fundamental freedoms of establishment in the posterior Viking case. In Viking both the Court as well as the Advocate General rejected the idea that there was an ‘inherent contradiction’ between the right to take collective action and the freedom of establishment. The Court stated that ‘it cannot be considered that it is inherent in the very exercise of trade union rights and the right to take collective action that those fundamental freedoms will be prejudiced to a certain degree’.35 In the same vein AG Maduro, denying the analogy with Albany, declared that ‘the provisions on establishment and the freedom to provide services are by no means irreconcilable with the protection of fundamental rights or with the attainment of the Community’s social policy objectives’.36 Given the fact that the Court considered the rules related to free movement to be applicable in the absence of such a contradiction, a balancing exercise would have been a coherent way to proceed in Bosman. This was the way the Court proceeded in the Viking case. However, in Bosman the Court refused to examine whether the restriction to the free movement of workers could be justified by the respect for the internal autonomy of professional organisations, and whether such a restriction was indeed proportionate. The so-called Albany immunity only relates to genuine collective agreements between both sides of industry. Agreements concluded between federations of agricultural trade unions of farmers and slaughterers will fall outside that immunity. They do not relate to measures for improving conditions of work and employment Though the conclusion of such agreements is related to the defence of the interest of the members, the Court did not accept that Article 12 of the Charter could be used to circumvent, or even restrict the competition rules established by the TFEU. Though the Court did recognise that these federations could legitimately defend the interests of their members, it ruled that they could not ‘in the present case plead the freedom of association in trade unions to justify specific actions which are contrary to Article 81(1)EC’.37 In sum, the reasoning of the Court seems to suggestion that the ‘freedom of association’ as recognised in the Charter has no impact either on the application of competition rules or on freedom of movement rules. No balancing seems to have taken place. This approach is mirrored by the approach the EU legislator adopts to collective agreements which might contain discriminatory clauses. These clauses need to be considered null and void. In a recent case, the Court has ruled in fact that the freedom of collective bargaining as enshrined in Article 28 of the Charter needs to be exercised in conformity with secondary EU law. Hence, it cannot be invoked to mitigate the application of the Framework Directive 2000/78.38

35

Case C-438/05 Viking [2007] ECR I 10779 [52]. Opinion of AG Maduro in C-438/05 Viking [2007] ECR I 10784 [23]. 37 Cases T-217/03 and T-245/03 Fédération nationale de la coopération bétail and viande (FNCBV), Fédération nationale des syndicats d’exploitants agricoles (FNSEA), Fédération nationale bovine (FNB), Fédération nationale des producteurs de lait (FNPL), Jeunes agriculteurs (JA) v Commission [2006] ECR II-5000 [101]. 38 Joined Cases C-297/10 Sabine Hennigs v Eisenbahn-Bundesamt and C-298/10 Land Berlin v Alexander Mai (CJEU, 8 September 2011). 36

Filip Dorssemont

355

12(1).51

12(1).52

12(1).53

12(1).54

Part I – Commentary on the Articles of the EU Charter

12(1).55

The recognition of the freedom of association in the Bosman case has no immediate relation to trade unions. The federations concerned were no trade unions organising workers but were more akin to employers’ organisations. The instruments which were scrutinised primarily created obligations among employers in case of transfer of ‘workers’. In sum, the case has no bearing on the issue of the right to organise in a context of industrial relations, ie the right to trade union association. On the other hand, AG Jacobs in Albany did consider a more specific right to form and join trade unions to be a general principle of EC law.39 The AG based that reasoning on the principles laid down in the Bosman and Maurissen judgments. Since the latter is a staff case, it is hazardous to state that the Court was in fact developing ‘general’ principles of EC law. 12(1).56 The only immediate tribute to the freedom of association in the context of industrial relations was made in the Werhof case.40 The Court construed that the freedom of association entailed a negative right of employers not to organise. Furthermore, it ruled that such a right was at stake, insofar as employers were being forced to apply employment conditions enshrined in a collective agreement signed by an employers’ organisations to which they were not affiliated. The judgment may be criticised in so far as the Court pretends that Gustafsson41 would warrant the thesis that an obligation to apply a collective agreement to which he is not a party would affect an employer’s negative freedom to organise.42 In fact, a closer reading of Gustafsson reveals quite the opposite. The reasoning of the Court could in fact turn out to be dramatic in view of the obligation of a foreign service-provider to apply collective agreements which were made generally applicable. 12(1).57 In Viking and Laval the Court also reiterated the idea that freedom of association is recognised as a general principle, though both cases deal with the right to have recourse to collective action. The reference to the freedom of association suggests that there is conceptual link between the right to take collective action and the freedom of association. It would be hazardous to state that the Court considers this link to be an exclusive one. In other words, the Court did not necessarily adopt an organic view on the right to take collective action, nor did it suggest that wildcat strikes organised outside a trade union would not be protected as a general principle. The judgments are mute on this issue. 12(1).58 Article 12 recognises the freedom of association in both a generic and a specific way. The specific way relates to political, trade union and civic matters. Despite the fact that trade union matters are being mentioned, the provision seems to be repetitive where it also clarifies that this ‘implies the right of everyone to form and to join trade unions for the protection his interests’. This impression should be mitigated. The more elaborate formula regarding ‘trade unions’ indicates an objective. The Court of Human Rights has indicated that these words are not redundant.43 On the basis of this formula, the Court has recognised a state obligation to have recourse to means which enable trade unions

39 Joined opinion of AG Jacobs delivered on 28 January 1999 in Case C-67/96 Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie, reference for a preliminary ruling: Kantongerecht Arnhem— Netherlands, [139]. 40 Case C-499/04 Hans Werhof v Freeway Traffic Systems GmbH & Co KG (CJEU, 9 March 2006). 41 Gustafsson v Sweden App no 15573/89 (ECtHR, 28 March 1996). 42 Case C-499/04 Hans Werhof v Freeway Traffic Systems GmbH & Co KG (CJEU, 9 March 2006) [33]. 43 National Union of Belgian Police v Belgium App no 4464/70 (ECtHR, 27 October 1975).

356

Filip Dorssemont

Art 12(1) – Freedom of Assembly and of Association

to effectively protect the interests of their members. This teleological formula has not been repeated to the benefit of political organisations or in the context of associations versed in ‘civic’ matters. The reference to trade unions inevitably raises the question whether employers associations can qualify as trade unions in the meaning of Article 12(1). In an interesting commentary, Bercusson44 has shown that the French language version of trade union matters (‘le domaine syndical’) could apply to employers’ associations. Insofar as these associations cannot be construed as ‘trade unions’ (syndicats), they can be considered as associations active in the field of trade union matters. Though such an interpretation makes sense, it does not alter the question whether ‘employers’ associations’ can be qualified as trade unions in the meaning of the last part of the provision. The question is relevant, insofar as the teleological coda might serve as a tool for a progressive development of the content of the recognition. In the past, the Court of Human Rights has adopted a pragmatic attitude. It could be argued that the issue of whether an association in the meaning of Article 11 constitutes a ‘trade union’ is irrelevant. Such a group will fall within the scope of Article 11 ECHR. This definitional issue has been dealt with explicitly in only one decision, Sigurjónsson,45 in which the question arose as to whether an association (Frami), to which taxi drivers had to belong to obtain a government licence, could be regarded as a trade union. The Icelandic government did not agree with this characterisation. At issue in this case was whether, based on a statutory provision, Iceland could make granting a licence to drive a taxi dependent on prior membership in Frami. The statutory provision created a pre-entry closed shop. The government assumed that ‘trade unions’ concerned worker organisations which defended the interests of their members in conflicts with their employer. Frami, the organisation in dispute, consisted primarily of persons working independently without staff. The Court refused to clarify the definitional scope of the term ‘trade union’. It commented that Frami could in all respects be characterised as an association. It considered ‘that it was not necessary to decide whether Frami’ could also be regarded as a trade union, ‘since the right to form and join trade unions in that provision is an aspect of a wider right to freedom of association rather than a separate right.’46 This approach is based, however, on the unproven assumption that the protection conferred by the right to organise lacks specificity. Insofar as the ECtHR attaches certain corollary rights to the right to organise which are not inherent in freedom of association, the importance of the definition remains intact. In the case concerned, the Court only had to deal with the individual dimension of the right to organise. In my view, the issue of specific corollary rights is more likely to come into play with regard to cases dealing with the collective dimension of the right to organise. At present, the case law of the Court does not provide a decisive indication of how to solve the scope of the notion ‘trade union’. The use of the terms ‘trade union’ and ‘syndicat’ in the official French and English versions of the European Convention gives

44 B Bercusson, ‘Freedom of assembly and of association’, in B Bercusson (ed), European Labour Law and the EU Charter of Fundamental Rights (Baden-Baden, Nomos, 2006) 162. 45 Sigurdur Sigurjónsson v Iceland App no 16130/90 (ECtHR, 30 June 1993). 46 Ibid [32].

Filip Dorssemont

357

12(1).59

12(1).60

12(1).61

12(1).62

12(1).63

Part I – Commentary on the Articles of the EU Charter

12(1).64

12(1).65

12(1).66

12(1).67

rise to the question of whether these terms embrace employers’ organisations too. If the answer is affirmative, this implies that these terms have an autonomous significance. The term ‘syndicat’ in the French Waldeck-Rousseau Act covers people engaging in a profession (une profession).47 This description makes the use of this legal framework accessible only to those employers who themselves engage in a profession. Traditional employer organisations are not organised in the form of ‘syndicats’, but of ‘associations’. The ‘association’ is governed by a different legal framework. Employers’ organisations cannot in any way be characterised as ‘trade unions’ within the meaning of Article 1 of the British Trade Union and Labour Relations Consolidation Act (‘TULRCA’). They are not associations consisting wholly or mainly of workers. In my view, it is worthwhile to interpret the notion of trade unions under Article 11 of the European Convention in a way which is consistent with the scope ratione personae of the right to organise in more specialised international instruments. ILO Convention No 87 (1948) defines workers’ and employers’ organisations within the meaning of the Convention as ‘any organisation of workers or of employers for furthering and defending the interests of workers or of employers’. Employers are unambiguously included within the scope of the right to organise. Article 5 of the Revised European Social Charter expressly applies to employers and workers alike. Like the European Convention, Article 8 of the ICESCR does not make clear who holds the right to organise. In at least two cases, the Court has considered Article 11 of the European Convention to be applicable to employers who claimed that they had been put under an illegitimate pressure to join an employers’ organisation. In Gustafsson48 and Kellermann,49 the references to the right to organise were implicitly applied to employers arguing that their freedom not to join an employers’ organisation was being curtailed. The employers in these cases were being pressured through collective actions to become parties to a collective bargaining agreement. Neither employer was a member of the employer organisation which had signed the industrywide collective bargaining agreement. Becoming a party to the agreement did not imply any obligation to join these organisations. The Court expressly took into account the state’s discretionary authority to shape systems of collective bargaining in deciding that this form of pressure did not represent a restriction of the negative freedom of association. The state’s authority to regulate collective actions tended to increase the scope of collective bargaining agreements. It was deemed a ‘social and political issue’ with a ‘sensitive character’. It is my view that the Court was aware that it had to deal with an issue of the freedom of association in the field of industrial relations. In this respect, it acknowledged that the case raised sensitive social and political issues ‘in achieving a proper balance between the competing interests’ and that there was ‘a wide degree of divergence between the domestic systems in the particular area under consideration’.50 Thus, it can be argued that the Court was perfectly aware that it was dealing with the

47 See Art L411-2, Code du Travail. For a commentary, see: R Brichet, Associations et syndicats (Paris, Litec, 1992) 444–51. 48 Gustafsson v Sweden App no 15573/89 (ECtHR, 25 April 1996). See L Schut, ‘De cao als spin in het web: het recht om geen cao af te sluiten valt niet onder artikel 11 EVRM’ [1998] NCJM Bulletin, 18–36. 49 AB Kurt Kellermann v Sweden App no 41579/98 (ECtHR, 1 July 2003). 50 Gustafsson v Sweden App no 15573/89 (ECtHR, 25 April 1996) [45].

358

Filip Dorssemont

Art 12(1) – Freedom of Assembly and of Association

right of employers to join a ‘trade union’ in the meaning of Article 11 of the Convention. In my view, Article 14 of the Convention constitutes a compelling reason to recognise the right to organise to employers and workers alike. The association in the field of civic matters tends to honour the role of non-govern- 12(1).68 mental organisations.51 These organisations need to be situated within civil society. The distinction with political parties is self-evident. The distinction with trade unions is unfortunate, since the latter include some of the oldest non-governmental organisations. The former Constitutional Treaty did contain an interesting article which enshrined a right to democratic participation for representative associations and civil society. This principle of participatory democracy was held to be a cornerstone of the democratic life of the Union.52

III. Limitations and Derogations As indicated previously, in some of the cases, the freedom of association has been 12(1).69 invoked in vein by the parties in the procedure in order to restrict or exclude the application of competition rules and free movement rules. Despite a formal tribute to the freedom of association, no ‘genuine’ balancing has taken place. One might argue that in these cases, the freedom of association is being restricted to a hard core of forming and joining an association. Parties were unable to argue that they could shield their internal autonomy of their capacity to conclude agreements from competition or free movement rules. In Schmidberger53 the Austrian state argued that ecological activists blocking the 12(1).70 Brenner Motorway on a Friday were exercising a right to freedom of peaceful assembly as well the freedom of expression. In this case, the Court balanced the conflicting rights at stake. Hence, they could successfully invoke a right to freedom of assembly and to freedom of expression. It claimed that the obligation of the Austrian state to uphold these rights justified a restriction to the free movement of goods. The Court recognised that the freedom of assembly (and of expression) constituted 12(1).71 general principles of EU law. It recognised a need to reconcile ‘the requirements of the protection of fundamental rights in the Community with those arising from a fundamental freedom enshrined in the Treaty and, more particularly, the question of the respective scope of freedom of expression and freedom of assembly guaranteed by Articles 10 and 11 of the ECHR, and of the free movement of goods, where the former are relied upon as justification for a restriction of the latter’.54

51

See G Braibant, La Charte des droits fondamentaux de l’Union européenne (Paris, Seuil, 2001) 124. Art I-47: The principle of participatory democracy 1. The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action. 2. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society. 3. The Commission shall carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent. 53 Case C-112/00 Eugen Schmidberger, Internationale Transporte und Planzüge v Republic of Austria (CJEU, 12 June 2003), Reports of Cases 2003 I-05659. 54 Ibid [77]. 52

Filip Dorssemont

359

Part I – Commentary on the Articles of the EU Charter

12(1).72

In casu, the application of the proportionality test proved to be beneficial to the Austrian state. It was not held liable for authorising its citizens to exercise their freedom of assembly. Despite the positive outcome of the case for the Austrian state, and implicitly for the ecological activists concerned, the reasoning of the Court is far from unproblematic. In fact, it is not even without contradictions. A close scrutiny of the balancing operation reveals to what extent the free movement of goods did actually restrict the exercise of the right to the freedom of assembly. 12(1).73 The Court meticulously scrutinised the circumstances of the case in order to assess ‘whether a fair balance was struck between those interests’,55 despite the fact that it recognised a broad margin of discretion. 12(1).74 The Court appears to urge Member States to submit the exercise of the freedom of assembly to a preliminary request addressed to the administrative authorities. The Court has insisted frequently that the interference with the free movement of goods was limited in time and space. It considered that the circumstances characterising it are clearly distinguishable from the situation in the case giving rise to the judgment in Spanish Strawberries. It also seemed to impose a duty on the state to adopt various administrative and supporting measures in order to limit as far as possible the disruption to road traffic. 12(1).75 By far the most problematic part of the judgment relates to the fact that the professed objective of the demonstration has been taken into account, despite a previous consideration stating that ‘the specific aims of the demonstration are not in themselves material in legal proceedings such as those instituted by Schmidberger’56. Despite this seemingly deferential attitude towards the autonomy of activists in defining the objectives and the goals of their demonstration, the Court continues by insisting on the fact that the activists manifested an opinion which it considered to be of importance to society. The Court then insisted that the purpose of the demonstration was not to restrict trade in goods of a particular type, or from a particular source. In sum, the Court seems to outlaw the exercise of the freedom of assembly and of expression, if it seeks to contest the economic foundations of the Common Market. This impression is only mitigated by the subsequent consideration that the French farmers in Spanish Strawberries not only attempted to prevent the movement of goods by demonstrating, but that they also acted to achieve this goal by a policy of physical obstruction and destruction of goods in transit to or through France. In this respect, it is worthwhile to point out a striking difference with the collective actions at stake in Viking and Laval. The collective actions of the French farmers did obstruct the free movement of goods in a direct manner, whereas the impact of the collective actions on the freedom to provide services was much more indirect. These actions only restricted the freedom to provide services by means of a collective agreement that the collective action sought to prevent (Viking) or to achieve (Laval).

IV. Remedies 12(1).76 The issue of remedies with regard to the freedom of association and assembly is difficult to grasp from an EU law perspective. First, EU directives in the field of labour law seldom

55 56

360

Ibid [81]. Ibid [66].

Filip Dorssemont

Art 12(1) – Freedom of Assembly and of Association

provide sanctions. Secondly, there is in fact no specific competence for the EU legislator to legislate on the issue of the freedom of assembly, whereas the issue of the freedom of association (in the field of social policy) has been excluded. The case law of the ECtHR provides a useful insight into what the obligation of the state to ensure the freedom of association might entail in the field of sanctions. Hower, the Charter does not oblige the Member States to provide these sanctions in their domestic legal order. This case law is relevant to the obligations of the EU institutions in regard of their staff. The issue of ‘remedies’ of violations of the freedom of association and assembly, including the right to organise, cannot be addressed in a general manner. Many factors complicate a generic response to the question of the appropriate remedies. First, the potential infringers of these rights can be state actors as well as private actors. On the victim side, individuals and/or or collective actors might appear. Another issue to be considered might be the potential difficulty to identify the economic damages which might stem from such violations. Thus, it is impossible to calculate which benefits might have sprung from an effective enjoyment of the right to organise for the defence of workers’ interests in case of a violation. As far as the freedom of assembly is concerned, the most common restriction to the right to organise relates to the obligation to request an approval from an administrative authority to organise a demonstration. It seems essential that a refusal to authorise a demonstration could be challenged in summary proceedings. Judged otherwise, such a preventive restriction of the freedom of peaceful assembly seems to be illusory. It is vital that some fundamental rights can be exercised within a timeframe that is relevant. As far as the right to organise is concerned, the individual dimension needs to be distinguished from the collective dimension. Whereas the individual dimension affects a citizen wishing to join or not to join a trade union, the collective dimension refers to rights of the members taken collectively, or to prerogatives of the trade union (or employers’ association). A refusal to recruit a worker or a dismissal of a worker for reasons of his affiliation to an association might constitute an act of discrimination. In Danilenkov, the ECtHR qualified employers’ practices of union-busting directed against a union’s membership as an act of discrimination. The Court stated:

12(1).77

12(1).78 12(1).79

12(1).80

12(1).81

12(1).82

The wording of Article 11 explicitly refers to the right of ‘everybody’, and this provision obviously includes a right not to be discriminated against for choosing to avail oneself of the right to be protected by trade union, also given that Article 14 formed an integral part of each of the Articles laying down rights and freedoms whatever their nature [see National Union of Belgian Police, cited above (n 43) at para 44]. Thus the totality of the measures implemented to safeguard the guarantees of Article 11 should include protection against discrimination on the ground of trade union membership which, according to the Freedom of Association Committee, constitutes one of the most serious violations of freedom of association capable to jeopardise the very existence of a trade union.57

In casu the Court had to examine a range of union-busting practices committed by 12(1).83 the Kaliningrad Commercial Seaport Co Ltd against dockers affiliated to a trade union called DUR. The union had organised a strike over pay, working conditions and health and life insurance. The employer decided to assign some DUR members to reserve teams, which were not performing at full capacity. As a result, the earnings of these 57

Danilenkov and others v Russia App no 67336/01 (ECtHR, 30 July 2009) [123].

Filip Dorssemont

361

Part I – Commentary on the Articles of the EU Charter

12(1).84

12(1).85

12(1).86

12(1).87

dockers were substantially reduced. The DUR officials ceased to be involved in monitoring the exams related to health and safety regulations. As a result, a disproportionate number of DUR members failed to pass these exams. Some DUR members were made subject to disciplinary sanctions that were proved to be unjustified. After an attempt failed to make some DUR members collectively redundant, they were transferred to part-time jobs. The trade union had to cope with an alarming drop in membership. Danilenkov has introduced the notion of anti-union discrimination. This notion provides prospects for more judicial activism in the field of violations of the positive freedom of association. These violations often raise an issue of equal treatment of a busted union in respect of other trade unions which are treated more favourably. The refusal to recruit organised workers, the discrimination against workers during their employment and the dismissal of organised workers because of their union membership are the most classic examples of this. The Digest of the Freedom of Association Committee of the ILO condemns ‘sanctions against workers because they attempt to constitute organizations’.58 It describes anti-union discrimination as one of the most serious violations of freedom of association. It contains an extensive chapter on ‘the protection againt anti-union discrimination’, which describes a whole range of sanctions in the field of employment (at the moment of hiring, during employment and at the moment of dismissal).59 The Digest has rightly pointed out the difficulty for workers to furnish proof of an act of anti-union discrimination of which they have been the victim.60 Some managerial decisions which adversely affect the employment relation of unionised workers or trade union leaders can be presented as falling within the margin of appreciation which is inherent in the exercise of the managerial prerogative to manage human resources or to conduct the business. In this respect the Digest recalls ‘the full importance of Article 3 of Convention no 98’, which provides that ‘machinery appropriate to national conditions shall be established where necessary to ensure respect for the right to organize’. It is unclear to what extent this vague provision warrants a reversal of the burden of proof, once the alleged victim is able to establish facts from which it may be presumed that there has been a case of anti-union discrimination.61 The Danilenkvov judgment suggests that a criminal provision prohibiting unionbusting might be counterproductive. Though this highlights the need of civil sanctions combatting discrimination, no requirement of a reversal of the burden of proof is being proposed. Some of the Russian judges had denied their competence in the matter, holding that the existence of discrimination could be established in criminal proceedings only, due to the existence of a criminal prohibition on anti-union discrimination. This required the victims of an alleged anti-union discrimination to prove a direct intent ‘beyond a reasonable doubt’ on the part of one of the company’s key managers to discriminate against the trade-union members. Furthermore, the Court observed that the victims of discrimination only have a minor role in the institution and conduct of criminal procedures.

58 International Labour Office, Freedom of Association, Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO (Geneva, 2006) no 338. 59 Ibid nos 769–854. 60 Ibid no 819. 61 In this respect, see per analogiam Articles of EC Directives 2000/43 and 2000/78.

362

Filip Dorssemont

Art 12(1) – Freedom of Assembly and of Association

The concept of discrimination could urge the Court in future to accept a reversal 12(1).88 of the burden of proof, once some facts indicate that there is a strong presumption that the exercise of the managerial prerogative could have been inspired by an intent to discriminate. Such a reversal of the burden of proof would force management to show in more detail that the contested practices can indeed be justified by the proper conduct of their business and that the choice of the workers affected by these practices was not related to their affiliation. In Danilenkov, the Court only indicated that it would be wrong to exclude the enforcement of a prohibition against discrimination through civil procedures and to require the proof ‘beyond doubt’ of a direct intent to discriminate.62 It did not state that these civil procedure ought to allow a reversal of the burden of proof. In the recent Aguilera Jiménez case, the Court had to assess whether the stante pede dismissal of some unionised workers who had published a satirical cartoon in a union magazine featuring a human resources manager and two of their colleagues in a compromising position could constitute a violation of the freedom of expression as well as of the freedom of association. The Court refused to accept that the decision interfered with the freedom of association, insofar as the plaintiffs were unable to establish sufficient indications that their dismissal was retaliatory (une acte de représailles) in view of their membership of a trade union. Hence, the Court seemed to have upheld a judgment of the Spanish Constitutional Court in the same dispute. The Spanish Constitutional Court indeed required that the plaintiffs were able to provide sufficient indications of a direct intention to restrict the freedom of trade union association.63 The request of a ‘direct intention’ is troublesome, if applied to discrimination disputes. It seems to refer to a ‘subjective’ element, which is extremely difficult to prove. In sum, the difference between the formula applied by the Court in Aguilera Jiménez and the ‘proof beyond a reasonable doubt of a direct intent beyond’ which the Court disapproved of in Danilenkov is very shallow. It is to be regretted that the Court did not examine whether there were sufficient indications that the dismissal was ‘objectively’ related to the exercise of trade union freedom. Thus, it was beyond doubt that the cartoon was part of a trade union magazine and that its publication was indeed related to a dispute between the trade union and the employer. In a more recent judgment, the Court had to rule on a dismissal case concerning a 12(1).89 member of the British National Party, whose affiliation became apparent once he was a candidate in the municipal elections.64 Despite the fact that this judgment is unlikely to find great favour among many trade union activists, it can be construed as a judgment advocating a genuine reversal of the burden of proof in the case of discrimination in the field of the freedom of association. The employer, who was a subcontractor working for the municipality in transporting disabled people who were primarily Asian, summarily terminated the agreement on the ground that its continuation might entail ‘potential health and safety risks as the applicant’s continued employment would give rise to considerable anxiety among passengers and their carers’ It also invoked a concern for its reputation and the economic risk of a loss of its contract with Bradford City Council.

62

Danilenkov and others v Russia App no 67336/01 (ECtHR, 30 July 2009) [143]. Aguilera Jiménez and others v Spain App nos 28389/06, 28955/06, 28957/06, 28959/06, 28961/06 and 28964/06 (ECtHR, 8 December 2009) [11] and [39]. 64 Readfurn v United Kingdom App no 47335/06 (ECtHR, 12 November 2012). 63

Filip Dorssemont

363

Part I – Commentary on the Articles of the EU Charter

12(1).90

Though the Court did show some consideration for the concern of the employer that the ‘applicant’s membership of the BNP could have impacted upon Serco’s provision of services to Bradford City Council, especially as the majority of service users were vulnerable persons of Asian origin’, it objected to the absence of a recourse under UK law to challenge the dismissal as being unfair. In the case concerned, such a remedy was not available due to the lack of sufficient seniority (less than one year). 12(1).91 The Court considered in this respect that ‘a claim for unfair dismissal under the 1996 Act would be an appropriate domestic remedy for a person dismissed on account of his political beliefs or affiliations. Once such a claim is lodged with the Employment Tribunal, it falls to the employer to demonstrate that there was a “substantial reason” for the dismissal.’65 12(1).92 In sum, the Court seems to insist on a specific remedy to combat discrimination on account of political beliefs or affiliations. The remedy it is suggesting allows the plaintiff to ask compensation for unfair dismissal and provides him with the opportunity to reverse the burden of proof. There is no reason why the Court’s approach could not be extrapolated to discrimination on account of non-political beliefs, such as trade union convictions. 12(1).93 In Belgium and Italy, a victim of discrimination on the basis of trade union membership is not required to establish the exact amount of the damages. He or she can request a fixed amount of compensation provided by law. This technique might be a further means to alleviate the procedural burden of the victim of a discrimination.

E. Evaluation 12(1).94 In view of the comprehensive character of the Charter combining so-called civil and political, as well as so-called economic, social and cultural rights, the Convention drafting the Charter was confronted with a choice. It could have taken inspiration from the instruments related to civil and political rights or from those related to economic, social and cultural rights, or it could have tried to combine the best of both worlds. The Convention decided to align Article 12 to the formula of Article 11 of the ECHR, disregarding to some extent the more specific provisions related to the right to organise. Furthermore, in an alleged need to ‘modernise’ the formula of Article 11 of the ECHR, other associations than trade unions have been referred to in an implicit or explicit way. The latter should not necessarily amount to a ‘devaluation’ of the right to organise, nor should it be an obstacle to attribute specific attributes related to the freedom of association to the sole benefit of trade unions. The most important of these attributes, ie means to protect workers’ interests, have been consecrated in their own right in Article 28 of the Charter. Hence, the need to ‘codify’ the hard core of the case law of the Strasbourg Court related to the right to organise was not urgent. The fact remains that the Charter does not integrate the negative dimension of the freedom of association, which was progressively developed in the case law of the Strasbourg Court. Bercusson has pointed out that Article 52(3) of the Charter generates a conceptual hurdle in interpreting this omission. 65

364

Ibid [50].

Filip Dorssemont

Art 12(1) – Freedom of Assembly and of Association

Insofar as this Article invites the interpreter to interpret the Charter in line with the ECHR and the subsequent case law, it can be argued that the negative freedom of association is enshrined in Article 11 of the Charter. Insofar as the absence of the negative freedom of association can be considered as constituting a more extensive protection, the case law of the ECtHR related to the negative freedom of association could actually be circumvented or disregarded.66 In my view, the Convention has missed an opportunity to define the objectives of trade union membership in a more explicit way. In more specific instruments, the objectives are set in a more specific or a more ambitious way.67 Thus, the nature of the interests at stake is described explicitly and broadly as ‘social and economic interests’. Furthermore, trade unions are presented as being ‘in the offensive’. They do not just ‘protect’ or ‘defend’, they ‘promote and further’ interests. Furthermore, the (partial) alignment on more specific instruments would have helped to clarify beyond doubt that the more specific formula is applicable to employers’ associations in the field of industrial relations. In my view, the Charter provision has the potential to be relevant in those fields where EU law has in fact regulated associations. These fields basically relate to company law. In this respect, there is a huge gap between the matters which are being mentioned (political, trade union and civic) on the one hand, and the acquis of secondary EU law which relates to economic matters. Whether the abstract recognition of the freedom of association will be helpful in overcoming the jurisdictional restrictions to the freedom of collective bargaining and the right to have recourse to take collective action is questionable. The recognition of the right to take collective action did not prevent the Court from restricting the right to take collective action in a way which, according to the ILO CEACR, is at odds with ILO standards. Nor did the subsequent recognition of the freedom of collective bargaining in Commission v Germany induce the Court to abandon its application of the proportionality test. In my view, the prospects of a potential impact might change if the European Union were indeed to accede to the European Convention on Human Rights, and if the Strasbourg Court applied the canon of interpretation set forward in Demir and Baykara. The latter would impel the Strasbourg Court to reject restrictions to the right to take collective action which are incompatible with international standards. Finally the formal recognition of the freedom of association has the potential to become relevant in a near future for the benefit of the employees of the European institutions. The protection of the individual freedom to form and join trade unions will not be sufficient to improve industrial relations at the level of EU institutions. A progressive development of other corollary rights is needed. This inevitably requires the collaboration of at least one European institution which is an employer as well, to develop the substance of the freedom of association to the staff of European institution. The prospects that the Court of Justice (Civil Service Tribunal) might indeed play such

66 B Bercusson, ‘Freedom of assembly and of association’, in B Bercusson (ed), European Labour Law and the EU Charter of Fundamental Rights (Baden-Baden, Nomos, 2006) 161. 67 See Art 5, Revised ESC (‘for the protection of their economic and social interests’); Art 8, ICESCR (‘for the promotion and protection of his economic and social interests’); Art 10, ILO Convention No 87 (‘for furthering and defending the interests of workers or employers’).

Filip Dorssemont

365

12(1).95

12(1).96

12(1).97

12(1).98

Part I – Commentary on the Articles of the EU Charter

a role seem poor, to judge by the recent case of M Heath v BCE.68 The Civil Service Tribunal was asked to rule on the implications of Article 28 of the Charter for the way a pension reform was conducted at the ECB. The case was brought to the Tribunal by a retired employee of the ECB, who challenged the annual adjustment of his retirement benefits for the year 2010. The ECB argued that the absence of a bargaining procedure did not deprive the employees of their right under Article 11 of the ECHR to form and join trade unions. Furthermore, it recalled that the Strasbourg Court did not prevent exemptions applicable to civil servants, such as the employees of the ECB. 12(1).99 The Civil Service Tribunal ruled that neither Article 28 of the Charter nor Article 11 ECHR provides an obligation to conclude a collective agreement, nor to introduce a bargaining procedure. The Tribunal paid a formal tribute to Article 6(2) of the European Social Charter (ESC), which enshrines an obligation ‘to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements’. According to the Tribunal this obligation does not entail an obligation to introduce a bargaining procedure. It was construed as a provision merely ‘encouraging’ such procedures. Nor could such an obligation according to the Court be deduced from Article 11 ECHR.69

68

Case F-121/10M Heath v BCE (CJEU, 29 September 2011) [110]–[23]. See in this respect: F Dorssemont, ‘The Constitutional Court of Justice and the right of collective bargaining: Timeo Danaos et dona ferentes Part II’, in Liber amicorum (Bari, Caucci editore, 2012) 109–14. 69

366

Filip Dorssemont

Article 12(2) Article 12(2) Freedom of Assembly and of Association 1. … 2. Political parties at Union level contribute to expressing the political will of the citizens of the Union.

Text of Explanatory Note on Article 12(2) 1. … 2. … 3. Paragraph 2 of this Article corresponds to Article 10(4) of the Treaty on European Union.

Select Bibliography L Bardi et al, ‘How to Create a Transnational Party System’, Study for the European Parliament, European Parliament, Policy Department C, Citizens’ Rights and Constitutional Affairs (2010) (Doc No PE 425.623). S Day, ‘Between “Containment” and “Transnationalization” – Where next for the Europarties?’ (2013) Acta Politica advance online publication, 4 October 2013; doi:10.1057/ap.2013.23. S Hix, and C Lord, Political Parties in the European Union (Basingstoke, Macmillan, 1997). T Jansen and S Hecke, At Europe’s Service: The Origins and Evolution of the European People’s Party (Berlin, Springer, 2011). K Johansson, ‘The Emergence of Political Parties at European Level: Integration Unaccomplished’, in L Pehrson, L Oxelheim, S Gustavsson (eds), How Unified Is the European Union? European Integration Between Visions and Popular Legitimacy (Berlin and Heidelberg, Springer, 2009). S Lightfoot, Europeanizing Social Democracy?: the Rise of the Party of the European Socialists (New York, Routledge, 2005). A Maurer, M Jopp, M McGinley, R Parkes et al, ‘Feasibility of a Future European Statute of European Political Parties: Legal framework and desirable provisions’, Study for the European Parliament, European Parliament, Policy Department C, Citizens’ Rights and Constitutional Affairs (2007) (Doc No PE 393.249). F Molenaar, ‘The Development of European Standards on Political Parties and their Regulation’ (2010) Working Paper Series on the Legal Regulation of Political Parties, No 4. J Shaw and S Day, ‘Developing Political Parties in the European Union: Towards a European Party Statute?’, in K Ewing and S Issacharoff (eds), Party Funding and Campaign Financing in International Perspective (Oxford, Hart Publishing, 2006). ——, ‘The Evolution of Europe’s Transnational Political Parties in the Era of European Citizenship’, in T Börzel and R Cichowski (eds), The State of the European Union, Vol VI: Law, Politics, and Society (Oxford, Oxford University Press, 2003). S Van Hecke, ‘Do Transnational Party Federations Matter? (and Why Should We Care?)’ (2010) 6(3) Journal of Contemporary European Research 395–411.

Part I – Commentary on the Articles of the EU Charter

A. Field of Application of Article 12(2) 12(2).01 Article 12(2) CFR is a declaratory and framework provision setting out a political vision. As such, its legal effect is bound to be limited. Thus far, the provision has yet to be interpreted in the CJEU, and the wording of the provision, prima facie, creates no discernible rights or obligations for individuals or public authorities. However, the provision does arguably have normative force for the institutions, bodies, offices and agencies of the Union and, of course, for the political parties at Union level1 themselves, through its commitment to a particular political vision.

B. Interrelationship of Article 12(2) with Other Provisions of the Charter 12(2).02 Article 12(2) CFR is closely related to Article 11 CFR on freedom of expression, and Article 12(1) CFR on freedom of assembly and association. The European Commission summarised the nature of this relationship in the following way: The right to freedom of association at all levels, for example in political and civic matters, and the right to freedom of expression, which includes the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers, are fundamental rights of every citizen of the Union. It is therefore in the interests of the citizens of the European Union that a European representative democracy can flourish. Truly transnational European political parties and political foundations are key to articulating the voices of the citizens at European level.2

12(2).03 Furthermore, Article 12(2) CFR is also closely related to Article 39 CFR which provides citizens of the Union with the right to vote and to stand as candidates at elections to the European Parliament in the Member State in which they reside, under the same conditions as nationals of that state.

C. Sources of Article 12(2) Rights 12(2).04 Article 12(2) CFR is in most respects unique to the European Union and to the project of European integration. In that context, it is hard to regard it as having any specific roots in international law. However, given that, as has already been noted, the provision is 1 The so-called European political parties (or ‘Euro-parties’) within the European Union are transnational federations of national/regional parties, organised as autonomous or semi-autonomous entities at the European level. See J Shaw and S Day, ‘Developing Political Parties in the European Union: Towards a European Party Statute?’, in K Ewing and S Issacharoff (eds), Party Funding and Campaign Financing in International Perspective (Oxford, Hart Publishing, 2006) and J Shaw and S Day, ‘The Evolution of Europe’s Transnational Political Parties in the Era of European Citizenship’, in T Börzel and R Cichowski (eds), The State of the European Union, Vol VI: Law, Politics, and Society (Oxford, Oxford University Press, 2003). 2 Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on the statute and funding of European political parties and European political foundations’ COM (2012) 499.

368

Jo Shaw and Lamin Khadar

Art 12(2) – Freedom of Assembly and of Association

conceptually linked to the rights of citizens of the Union to vote and stand as a candidate in European elections and to the freedoms of expression, association and assembly, it will be useful to note the relevant international and regional human rights law sources.

I. ECHR Article 10 of the European Convention of Human Rights (ECHR) (1950) provides that: 12(2).05 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

12(2).06

Article 11 ECHR provides that: 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or the administration of the State.

Article 3, Protocol 13 ECHR provides that:

12(2).07

The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

II. UN Treaties 12(2).08

Article 21 of the Universal Declaration of Human Rights (1948) provides that: 1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. 2. Everyone has the right of equal access to public service in his country.

3

Protocol 1 was signed in Paris on 20 March 1952.

Jo Shaw and Lamin Khadar

369

Part I – Commentary on the Articles of the EU Charter

3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. [Emphasis added.]

12(2).09 Article 25 of the International Covenant on Civil and Political Rights (1966) provides that: Every citizen shall have the right and the opportunity […] without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country. [Emphasis added.]

III. Other Sources 12(2).10 As we have already noted, Article 12(2) is unique to the European Union context, and indeed the key sources for this provision are to be found in the EU Treaties themselves. Article 10(4) TEU provides that: Political parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union.

12(2).11 Article 224 TFEU provides that: The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, by means of regulations, shall lay down the regulations governing political parties at European level referred to in Article 10(4) of the Treaty on European Union and in particular the rules regarding their funding.

12(2).12 Another key legal source, to be discussed in more detail below, from which Article 12(2) CFR indirectly takes inspiration is Article 21(1) of the Basic Law for the Federal Republic of Germany (the German Constitution), which provides that: Political parties shall participate in the formation of the political will of the people. They may be freely established. Their internal organisation must conform to democratic principles. They must publicly account for their assets and for the sources and use of their funds.

D. Analysis I. General Remarks 12(2).13 The gradual constitutionalisation of Euro-parties in the context of European integration was initiated by a limited legal recognition of their (envisioned) role at the European level in the 1992 Treaty of Maastricht, along with embryonic references to democracy 370

Jo Shaw and Lamin Khadar

Art 12(2) – Freedom of Assembly and of Association

as a founding principle of the European Union in the case law.4 In its earliest iteration, what is now Article 10(4) TFEU appeared as Article 138a TEC: Political parties at European level are important as a factor for integration within the Union. They contribute to forming a European awareness and to expressing the political will of the citizens of the Union.

The emphasis in this first iteration is on the role that it is anticipated Euro-parties will 12(2).14 play in the European integration process, not only in expressing the will of citizens of the Union but, perhaps more importantly at this stage of the EU’s development, in helping to foster a European political conscience. It is apparent, then, that from the very outset this was a provision that emerged out of a distinct historical process (European integration), which cannot usefully be understood outside of that context. The general view is that Article 138a found its way into the Treaty as a result of pressure 12(2).15 applied jointly by the leaders of the three party federations which were in existence at the time (the European People’s Party, the Confederation of Socialist Parties of the European Communities, and the Federation of European Liberals and Democrats).5 Certainly, there was a joint initiative by these parties to secure some form of legal recognition of the role they felt they played within the Union and on the basis of a meeting of the Secretary Generals of the three parties, a joint press release was issued on 12 December 1990 which stated that: Since their foundation in the mid-1970s, the European People’s Party and the Confederation of Social Democratic Parties in the European Community, and also the Federation of European Liberals and Democrats, have all in their own way made major contributions to European integration … [A]ll three European parties or federations of parties stress their common responsibility for the proper functioning of democracy and for the success of the European Union … They take it as read that, without parties to express the political will of the citizens, there is no democracy! This holds good at all levels of political representation, and logically for the European Community as well, and above all for the European Union.6

On the back of the press release, a joint letter was sent from the chairs of Euro-parties 12(2).16 to the presidents of the European Council, the Council of Ministers, the European Parliament and the European Commission, calling for the inclusion, in the Treaty of Maastricht, of a provision on the role of Euro-parties in shaping political consensus and political will.7 The first draft of the provision, as proposed by the Euro-parties, was in the following form: European Parties are essential to integration within the Union. They are integral to building consensus and expressing the political will of the citizens of the Union. European parties are the federative associations of national parties with a presence in the majority of EU Member States,

4 See Case 138/79 Roquette Frères v Council of the European Union [1980] ECR 03333; Case 294/83 Parti Ecologiste ‘Les Verts’ v European Parliament [1986] ECR 01339; and Case T-135/96 Union Européenne de l’artisinat et des petites et moyennes enterprises (UEAPME) v Council of the European Union [1998] ECR II-02335. 5 See D Dinan, Ever Closer Union (Basingstoke, Palgrave Macmillan, 2005), S Lightfoot, Europeanizing Social Democracy?: the Rise of the Party of the European Socialists (New York, Routledge, 2005) and S Hix and C Lord, Political Parties in the European Union (Basingstoke, Macmillan, 1997). 6 See partially reproduced in T Jansen and SV Hecke, At Europe’s Service: The Origins and Evolution of the European People’s Party (Berlin, Springer, 2011) 190. 7 Ibid 191.

Jo Shaw and Lamin Khadar

371

Part I – Commentary on the Articles of the EU Charter

sharing the same aims and political direction, and forming a single group in the European Parliament. They must give a public account of where their funding comes from.

12(2).17 This draft was based largely on Article 21(1) of the German Constitution (set out above) which, Jansen and Hecke have suggested, illustrates that the role envisioned for Euro-parties by the drafters was essentially the same as that of political parties in the national context.8 Ultimately, the definition of ‘European parties’ included in the draft provision was dropped, leaving only the rather broad declaratory statement that became Article 138a. Jansen and Hecke suggest that the final provision that made it into the Treaty, ‘articulated the recognition that if the further unification of Europe were to be successful and a transnational system of government were to be effective, then the further development of European party structures would be necessary’.9 12(2).18 The Euro-parties also hoped that the provision could serve another purpose; the Euro-parties existed in a condition of legal uncertainty in that they had no formal legal status and could not employ personnel, execute contracts or issue receipts for donations. It was for this reason that for a long time the Euro-parties merely ‘piggy-backed’ upon the party groups in the European Parliament, even though in some respects the party alignment differs between the two. Some of the EP groups have in the past been coalitions of several Euro-parties. It was therefore hoped that a constitutional recognition of the role and function of the parties would serve as a legal base for efforts of the parties to secure formal legal status. However, despite efforts made to broaden the scope of Article 138a in the years following its introduction, no further legal developments were made in this respect until the Treaty of Nice in 2000. With the Treaty of Nice came the introduction of a legal basis for the regulation of Euro-parties; the following provision was added to Article 191 TEC: The Council … shall lay down the regulations governing political parties at European level and in particular the rules regarding their funding.

12(2).19 This addition created a political and legal opportunity structure for the creation of European-level regulation and recognition of Euro-parties and complemented the process of constitionalisation with what has been described as the beginning of a process of ‘institutionalisation’.10 The changes to Article 191 TEC quickly produced concrete results, and in 2003 the European Parliament and Council adopted Regulation 2004/200311 on regulations governing political parties at European level and rules governing their funding. The Regulation defines a political party at European level as a body with members that are either citizens gathered together in the form of a political party, or political parties which together form an alliance. Under the terms of the Regulation, financing is granted to the Euro-parties under the EU budget on the condition that they are incorporated as separate legal entities with registered offices in the Member State in which they are incorporated (most Euro-parties are currently registered under

8

Ibid. Ibid 194. 10 J Shaw and S Day, ‘The Evolution of Europe’s Transnational Political Parties in the Era of European Citizenship’, in T Börzel and R Cichowski (eds), The State of the European Union, Vol VI: Law, Politics, and Society (Oxford, Oxford University Press, 2003) 151. 11 Regulation (EC) 2004/2003 on the regulations governing political parties at European level and the rules regarding their funding [2003] OJ L297/1. 9

372

Jo Shaw and Lamin Khadar

Art 12(2) – Freedom of Assembly and of Association

Belgian law as non-profit-making associations). Moreover, Euro-parties are required to demonstrate that they are represented or have been voted for in at least one quarter of the Member States and that they conform to certain basic requirements, such as having a statute, a set of principles, and a political programme.12 The adoption of this measure, although relatively modest in its effects and achievements, did at least bring to an end the considerable legal uncertainty described above. In 2005, under the terms of Article 12 of the Regulation, the Parliament adopted a 12(2).20 non-legislative Resolution (2005/2224),13 in which it noted that further development of a democratic EU that was ‘close to its citizens’ was a precondition for public support for European integration and that deeper reflection on the future of Europe required a ‘comprehensive dialogue with its citizens, and political parties at European level must play a key role in this dialogue’.14 The Resolution called for a ‘genuine European party statute’ establishing the rights and obligations of Euro-parties and enabling them to attain a legal personality based on Community law. The Resolution also noted that there was a ‘gulf between many members of the public and the European institutions’, and one of the reasons for this was that there had been ‘inadequate political communication or information about European policy’. The Resolution also urged that ‘political parties at European level must take on a further role than solely that of umbrella organisations and become active proponents of European policy options’, and moreover, that Euro-parties were ‘a key element in the process of forming and voicing European public opinion’.15 There was then, the emergence of a discernible emphasis on dialogue ie not only on the 12(2).21 role that Euro-parties should play in expressing the will of EU citizens, but also on the role they should play in communicating EU policy to the citizens. The emphasis is a reflection of the concerns about widespread negative sentiment towards the EU on the back of the failed Constitutional Treaty referendums in France and the Netherlands (which had taken place just a few months prior to the Resolution). Indeed, the Commission, also stirred by the failed referendums, had just launched its ‘Plan D for Democracy, Dialogue and Debate’, in order to promote a dialogue with European citizens.16 The Resolution ultimately resulted in Regulation 1524/200717 (amending Regulation 12(2).22 2004/2003), and in a feasibility study for a European party statute.18 The new Regulation altered the rules with respect to funding in respect of certain details and entitled European political foundations19 to qualify for financing under the EU budget.

12 To be precise, they must show that they have either received, in at least one quarter of the Member States, at least 3 per cent of the votes cast in each of those Member States at the most recent European Parliament election or that they are represented, in at least one quarter of Member States, by Members of the European Parliament or in the national Parliaments or regional Parliaments or in the regional assemblies. 13 European Parliament resolution on European political parties (2005/2224). 14 Ibid. 15 Ibid. 16 K Johansson, ‘The Emergence of Political Parties at European Level: Integration Unaccomplished’, in L Pehrson, L Oxelheim, S Gustavsson (eds), How Unified Is the European Union? European Integration Between Visions and Popular Legitimacy (Berlin and Heidelberg, Springer, 2009) 170. 17 Regulation (EC) No 1524/2007 [2007] OJ L343. 18 A Maurer, M Jopp, M McGinley, R Parkes et al, ‘Feasibility of a Future European Statute of European Political Parties: Legal framework and desirable provisions’, Study for the European Parliament, European Parliament, Policy Department C, Citizens’ Rights and Constitutional Affairs (2007) (Doc No PE 393.249). 19 Ie research and advocacy organisations which are usually close to, but independent from, a Euro-party.

Jo Shaw and Lamin Khadar

373

Part I – Commentary on the Articles of the EU Charter

Meanwhile, the feasibility study concluded that Article 191 TEC (relevant parts now in Article 224 TFEU) could operate as a legal basis for the establishment of a European party statute and suggested the adoption of a Regulation to that end.20 Although no such Regulation has been adopted to date, recent developments to be discussed below suggest it may not be far off. 12(2).23 The 2007 Lisbon Treaty divided the earlier provision into two parts, ie Article 10(4) TEU and Article 224 TFEU,21 and the sentence on Euro-parties being ‘important as a factor for integration within the Union’ was dropped. It is not apparent why this occurred or if it is of any significance. However, one possibility is that it was a further consequence of the failed Constitutional Treaty referendums in France and the Netherlands and the dampening of the Federalist spirit. On the other hand, Article 10(4) TEU could now be seen as part of a stronger focus on democracy within the post-Lisbon Treaties. 12(2).24 In the years following the Lisbon Treaty the debate around the institutional development of Euro-parties has revolved around two main issues. On the one hand, calls for a European party statute have refused to subside and on the other hand there have been increasing calls for the development of transnational party lists. Recent developments, however, suggest that the likelihood of a European party statute may be greater than that of transnational party lists. 12(2).25 In September 2012, triggered inter alia by another Resolution adopted by the Parliament under Article 12 of Regulation 2004/2003,22 the Commission adopted a proposal for a regulation (replacing Regulation 2004/2003) which would, primarily, provide for a universal legal status for Euro-parties and foundations under EU law.23 However, it remains to be seen whether the Parliament and the Council will agree to adopt the proposed regulation and whether the proposal will be amended in the process. However, if adopted, this proposal would finally lead to the much-vaunted single European legal status for transnational political parties.

20

See Maurer, Jopp, McGinley, Parkes et al (n 18) 10. This peculiar arrangement was a consequence of the political deliberation process which climaxed with the shelving of ‘Treaty establishing a Constitution for Europe’. The first draft of the Constitution only mentioned that ‘Political parties at European level contribute to forming a European awareness and to expressing the political will of the citizens of the Union.’ Although Members of the European Parliament made numerous requests to change the wording of the provision to reflect Art 191 in its entirety (and even to supplement it with new wording regarding internal party democracy), the Chairman of the Praesidium determined that the inclusion of any further text should be left to the Member States themselves. Ultimately, the second paragraph of Art 191 TEC was included in the Constitution, but separately from the first paragraph, under the institutional provisions section. The Treaty of Lisbon kept the two separate provisions rather than consolidating them and this resulted in Art 10 TEU and Art 224 TFEU. See n 10 pp 31 and 32. 22 European Parliament resolution on the application of Regulation (EC) 2004/2003 on the regulations governing political parties at European level and the rules regarding their funding (2010/2201), based on the Giannakou Report for the Committee on Constitutional Affairs, A7-62/2011. 23 The proposal also sets out a further condition for access to EU funding: that Euro-parties are represented in the European Parliament by at least one of their members. This tying of funding to electoral performance is apparently intended to be an incentive for Euro-parties to ‘fully participate in European democratic life at the highest level’. See Qs & As: Commission proposal on the statute and funding of European political parties and European political foundations (MEMO/12/660), 12 September 2012, available from www.europa. eu. The proposal is also summarised for a meeting of the European Scrutiny Select Committee of the UK Parliament: www.publications.parliament.uk/pa/cm201213/cmselect/cmeuleg/86-xix/8604.htm. In April 2013, the Committee on Constitutional Affairs tabled a report recommending the Parliament to amend the Commission proposal in a few key respects (especially in relation to the democratic governance requirements parties are to be subject to), however, at the time of publishing, six months later, the report is still awaiting first reading in the Parliament. See report of the Committee on Constitutional Affairs (A7-0140/2013). 21

374

Jo Shaw and Lamin Khadar

Art 12(2) – Freedom of Assembly and of Association

Meanwhile, the calls for transnational party lists have not managed, thus far, to make 12(2).26 it to the plenary session in the Parliament. Proponents of transnational party lists would like to see the introduction of a single EU-wide constituency for 25 MEPs, in addition to the existing nationally or regionally drawn constituencies. However, despite support for this proposal which has been spearheaded by Andrew Duff MEP in the Committee on Constitutional Affairs, on two separate occasions, most recently in March 2012, the proposal was withdrawn from the plenary agenda by the party groups, on one occasion because there was a misunderstanding on the part of MEPs as to the effects of the proposal, and on another occasion because the groups feared it would not be passed.24 The stumbling blocks appear to be opposition from eurosceptic national parties and fears that transnational election lists might create two classes of MEP and weaken the influence of smaller member states in the Parliament by effectively diluting their representation.25

II. Scope of Application (a) Legal Scope As already indicated, Article 12(2) CFR is merely declaratory in nature and has no legal 12(2).27 effect.

III. Detailed Analysis (a) Normative Scope While Article 12(2) has no scope in a legal sense, it would not be inappropriate to sug- 12(2).28 gest that is has some normative scope both for the institutions and for the Euro-parties. Article 12(2) is essentially a statement of intent and as such represents a promise to be fulfilled at some future point in time. However, the scope of such a normative obligation is very much open to debate. Shaw and Day adopt a three-fold typology which is helpful here to understand the 12(2).29 various possible perspectives on the normative content of Article 12(2).26 A first perspective views the EU as an intergovernmental rather than transnational project, and the Euro-parties as forums for the pursuance of bi/multi-lateral relations. From this

24

C Brand, ‘MEPs delay vote on trans-national list’, 11 March 2012, available at www.europeanvoice.com. Ibid. 26 J Shaw and S Day, ‘Developing Political Parties in the European Union: Towards a European Party Statute?’, in K Ewing and S Issacharoff (eds), Party Funding and Campaign Financing in International Perspective (Oxford, Hart Publishing, 2006) 301. Day has also recently used the two-fold typology of ‘idealists’ and ‘realists’ to categorise views on the extent to which the developmental potential of the Europarties (created by the legal framework discussed above) should translate into actual development. See S Day, ‘Between ‘Containment’ and ‘Transnationalization’ – Where next for the Europarties?’ (2013) Acta Politica advance online publication, 4 October 2013; doi:10.1057/ap.2013.23. 25

Jo Shaw and Lamin Khadar

375

Part I – Commentary on the Articles of the EU Charter

12(2).30

12(2).31

12(2).32

12(2).33

12(2).34

perspective the major function of Euro-parties should be to pursue and facilitate the goals of their national party members.27 A second perspective views Euro-parties as ‘value added meta networks with a political and organisational reach’ within the context of an emerging transnational institutional framework. From this perspective the major function of Euro-parties should be to ease cooperation between national parties by way of coalition-building and lobbying so as to better influence law and policy. The Euro-parties would step in to perform the jobs that national parties, acting alone, would not be able to undertake.28 A final perspective is the somewhat idealistic and federalist vision that has already been discussed above, which views Euro-parties as representative vehicles for an emerging European polity, apostles of European integration and two-way conduits for both EU policy and citizens’ sentiment. As Shaw and Day suggest, ‘[e]ach of these visions of the Euro-party can be seen as valid projections of the hopes, aspirations and indeed intentions of some of those working within the framework of Euro-parties.’29 Nevertheless, it is not clear that Euro-parties are empirically able to live up to any of these typologies at present.30 Johansson argues that on the basis of Regulations 2004/2003 and 1524/2007, the life of the Euro-parties has recently entered a new phase in that, thanks to the increased funding available to them, they are becoming more autonomous in relation to both their national member parties and their respective groups in the European Parliament and that they are no longer merely ‘umbrella organisations’ for national parties.31 But both Johansson and Van Hecke suggest that the ability of Euro-parties truly to impact upon EU policy remains yet to be proved.32 Nevertheless, Johansson suggests that when taken together, the recent constitutional and institutional changes indicate the increasing relevance of Euro-parties.33 He argues that, since the Treaty of Maastricht, acting in their self-interest with the ‘aim of enhancing their own standing in the political system of the Union’ the Euro-parties have seized opportunities and in ‘piecemeal and incremental fashion’ increased their regulation.34 While it may be clear that regulation has increased (albeit from a complete absence of regulation prior to 2004, to the modest regulation that is in place today), it will require more than just legal tinkering if the Euro-parties are to one day, in the words of the Commission, ‘articulate the voices of the citizens at European level’. And as Bardi et al say, ‘A transnational party system requires more than simply the presence of transnational parties.’35 It also requires real societal cohesion, which cannot be engineered by law.

27

Ibid. Ibid. 29 Ibid. 30 See S Van Hecke, ‘Do Transnational Party Federations Matter? (... and Why Should We Care?)’ (2010) 6(3) Journal of Contemporary European Research 395–411. 31 See Johansson (n 16) 174. 32 Ibid, and Van Hecke (n 30). 33 See Johansson (n 16) 173. 34 Ibid. 35 L Bardi et al, ‘How to create a transnational party system’, Study for the European Parliament, European Parliament, Policy Department C, Citizens’ Rights and Constitutional Affairs (2010) (Doc No PE 425.623). 28

376

Jo Shaw and Lamin Khadar

Art 12(2) – Freedom of Assembly and of Association

IV. Limitations and Derogations Article 12(2) CFR is merely declaratory in nature and has no legal effect. There are, 12(2).35 therefore, no limitations or derogations.

V. Remedies Article 12(2) CFR is merely declaratory in nature and has no legal effect. There are, 12(2).36 therefore, no remedies for breach.

E. Evaluation Looking over the history of the legal developments of the Treaty provisions on which 12(2).37 Article 12(2) CFR is based, one is left with the impression that although there have been a number of constitutionalising and institutionalising legal developments in the decade since Article 138a first appeared via the Treaty of Maastricht, these developments are at best preparatory in nature, in light of the rather grand aims expressed at various points by the Parliament and the Commission. At worst they are merely cosmetic and create expectations that cannot be met. Perhaps these legal developments are laying the groundwork for Euro-parties one day to play a significant role in European polity formation and will help to establish Euro-parties as a crucial link between the citizens of the Union and its institutions, or perhaps these legal developments are merely skirting around the issue and in their modesty reflect a lack of political will, exacerbated by the failed constitutional referenda and more recently the debt crisis. Indeed, given the rather sombre political and economic climate of recent times, it 12(2).38 seems unlikely that Euro-parties will live up to the third vision of the three-fold typology articulated above any time soon. All the same, what it empirically means for Europarties to ‘contribute to expressing the political will of the citizens of the Union’ is yet to be determined, and only time will tell.

Jo Shaw and Lamin Khadar

377

Article 13 Article 13 Freedom of the Arts and Sciences The arts and scientific research shall be free of constraint. Academic freedom shall be respected.

Text of Explanatory Note on Article 13 This right is deduced primarily from the right to freedom of thought and expression. It is to be exercised having regard to Article 1 and may be subject to the limitations authorised by Article 10 of the ECHR.1

Select Bibliography E Barendt, Academic Freedom and the Law: A Comparative Study (Oxford, Hart Publishing, 2010). AR Chapman, ‘Towards an Understanding of the Right to Enjoy the Benefits of Scientific Progress and Its Applications’ (2009) 8 Journal of Human Rights 1–36. TA Faunce, ‘Will international human rights subsume medical ethics? Intersections in the UNESCO Universal Bioethics Declaration’ (2005) 31 Journal of Medical Ethics 173–78. T Karran, ‘Academic freedom in Europe: time for a Magna Charta?’ (2009) 22(2) Higher Education Policy 163–89. ——, ‘Academic freedom in Europe: reviewing UNESCO’s recommendation’ (2009) 57(2) British Journal of Educational Studies 191–215. E Tritsmans, ‘Warning! You’ll be shocked! Dealing with offensive art: Erotic art and hate art in translation perspective’, in B Demarsin et al (eds), Art and Law (Oxford, Hart Publishing, 2008) ch 3. UK House of Lords EU Select Committee, ‘The Treaty of Lisbon: An Impact Assessment, 10th Report’, Session 2007–8, HL Paper 6. J Vrielink, P Lemmens, S Parmentier and the LERU Working Group on Human Rights, ‘Academic Freedom as a Fundamental Right’, December 2010. J Wyndham, ‘Scientific freedom: What do human rights have to do with it?’ (2010) June University Values.

A. Field of Application of Article 13 Article 13 covers three distinct but related concepts: artistic, scientific and academic 13.01 freedom. Artistic and scientific freedom must be exercised free from constraint, whereas academic freedom is to be respected. There is no explanation in Article 13 for the variation in the wording of Member States’ obligations, and it is arguable that the distinction is intended to indicate that academic freedom is non-justiciable. 1

[2007] OJ C303/17.

Part I – Commentary on the Articles of the EU Charter

The freedoms in Article 13 are not defined and the European Convention on Human Rights (ECHR) contains no such provision. It has been suggested that Article 13 is a new type of right, but it is difficult to reach this conclusion without further clarification as to its content.2 The Explanations to the Charter confirm these freedoms are primarily deduced from the freedoms of thought and expression, and that they are subject to the limitations set out in Article 10 of the ECHR. They must also be exercised consistently with Article 1 of the Charter which sets out the right to human dignity. This suggests that Article 13 merely reinforces a specific set of free expression rights whose scope is not intended to extend beyond the European Court of Human Rights’ (ECtHR) jurisprudence relating to those freedoms. 13.03 The ECtHR has considered artistic, scientific and academic freedom within the scope of Article 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression). The rights can be seen as concomitant freedoms, but they may also have to be balanced directly against each other: one person’s freedom to express themselves may outrage another’s freedom of belief or religion. The case law from the ECtHR confirms that clear responsibilities accompany the right to express one’s opinion, and that the state may act to protect the beliefs of others.3 Care must also be taken to ensure that religious values are not used to suppress artistic, scientific and academic freedoms. Consequently, it is clear that the freedoms in Article 13 are not without limit.4 13.04 Article 51 of the Charter confirms that its rights and freedoms apply primarily to the institutions and bodies of the Union, and that it is binding on Member States ‘only when they are implementing Union law’. In other words, purely domestic issues will not be affected by the Charter. However, the Explanations to the Charter confirm it is binding on the Member States when they act within ‘the scope of Union law’, which reflects the pre-existing position in relation to Member States’ obligations to respect fundamental rights.5 Any concern about possible contradiction between these two phrases has been resolved by the Court of Justice of the EU, which held in the case of Åklagaren v Hans Åkerberg Fransson, that Article 51(1) of the Charter ‘confirms the Court’s case law relating to the extent to which actions of the Member States must comply with the requirements flowing from the fundamental rights guaranteed in the legal order of the European Union’.6 13.05 Article 13 has not been considered in the Commission’s first three Annual Reports on the Charter.7 However, regard may have to be paid to the freedoms set out in Article 13 when the Union acts in a variety of areas. For example, when considering broadcasting regulation or the freedom of the internet, when criminalising particular types of speech, when legislating to protect intellectual property rights or personal data, and when 13.02

2 UK House of Lords EU Select Committee, ‘The Treaty of Lisbon: An Impact Assessment, 10th Report’, Session 2007–8, HL Paper 6 [5.44]–[5.47]. 3 Wingrove v United Kingdom (1997) 24 EHRR 1 [52]. 4 Chassagnou v France App no 25088/94 (ECtHR, Judgment of 29 April 1999). 5 See, eg, Case 5/88 Wachauf [1989] ECR 2609. 6 Case C-617/10 Åklagaren v Hans Åkerberg Fransson (26 February 2013) [18]. 7 Commission Annual Reports on the Application of the EU Charter of Fundamental Rights 2010, 2011 and 2012.

380

Debbie Sayers

Art 13 – Freedom of the Arts and Sciences

taking action on the funding of scientific research, the conduct of clinical trials or the free movement of knowledge.

B. Interrelationship of Article 13 with Other Provisions of the Charter The freedoms outlined in Article 13 could interact with a variety of other Charter rights 13.06 and freedoms. For example: (i)

Article 1—The right to human dignity. Article 13 is described as being specifically restricted by the need to be exercised ‘having regard’ for Article 1. (ii) Article 3—The right to the integrity of the person. It contains specific restrictions applicable to the fields of medicine and biology such as the need for free and informed consent. It also prohibits making the human body and its parts a source of financial gain.8 This reflects the Council of Europe’s Convention on Human Rights and Biomedicine. (iii) Article 7—Respect for private and family life. For example, the right to privacy can encompass questions of personal autonomy and the physical and psychological integrity of the individual which could be engaged by the scientific research. (iv) Article 8—Protection of personal data. Data protection laws may restrain academic research.9 (v) Article 10—Freedom of thought. (vi) Article 11—Freedom of expression. (vii) Article 14—Right to education. This is connected to academic freedom in relation to the right to teach and to be taught. It also fosters social inclusion and personal fulfilment of the citizens.10 (viii) Article 17—Right to property in relation to intellectual property. This may protect academic and scientific research and works of art. Intellectual property may also place limits on artistic expression. (ix) Article 22—Cultural religious and linguistic diversity. For example, artistic works afford the opportunity to take part in cultural, political and social exchanges.11 (x) Article 36—Access to services of general economic interest. This could relate to access to the Internet, and restrictions on access could impinge upon freedom of expression.

8

See Case C-377/98 Netherlands v European Parliament and Council [2001] ECR-I 7079. See D Erdos, ‘Freedom of Expression Turned on its Head? Academic Social Research and Journalism in the European Union’s Privacy Framework’, Oxford Legal Studies Research Paper No 53/2011. 10 See Council Conclusions of 11 May 2010 on the social dimension of education and training [2010] OJ C135/02. 11 Müller v Switzerland (1991) 13 EHRR 212. 9

Debbie Sayers

381

Part I – Commentary on the Articles of the EU Charter

C. Sources of Article 13 Rights I. ECHR 13.07

13.08

The ECtHR has ruled that freedom of expression constitutes ‘one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man.’12 Even speech and actions which shock, offend or disturb are protected.13 Article 10 protects freedom of expression. It confirms: (1)

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

13.09

The ECHR also protects freedom of thought in Article 9. (1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, and to manifest his religion or belief, in worship, teaching, practice and observance; (2) Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

13.10 13.11

Thus, Articles 9 and 10 are qualified rights which can be limited only by prescribed restrictions.14 The ECHR contains no specific provision on the freedom of scientific research, or the arts or on academic freedom. However, the ECtHR has confirmed that Article 10 is broad enough to cover these freedoms.15 In relation to artistic freedom, the ECtHR will consider the medium involved, the audience and the impact of the work when looking at whether any interference is legitimate. Similarly, although academic freedom is not explicitly provided for in the ECHR, the ECtHR has considered issues regarding

12

Handyside v UK (1976) 1 EHRR 737 [49]. Ibid. 14 Art 17 ECHR may also restrict the operation of freedom of expression as it provides that no one may use the rights guaranteed by the Convention to seek the abolition or limitation of rights guaranteed in the Convention. Thus individuals cannot rely on a human right to undermine the human rights of others, for example with speech that incites racial violence. 15 Müller (n 11) [27]. 13

382

Debbie Sayers

Art 13 – Freedom of the Arts and Sciences

freedom of expression under Article 10.16 The ECtHR has also considered the right to freedom of expression in the context of scientific research.17

II. UN Treaties (a) Artistic Freedom Article 27 of the Universal Declaration of Human Rights (UNDHR) 1948 provides 13.12 that: 1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share scientific advancement and its benefits. 2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Article 19(2) of the UN International Covenant on Civil and Political Rights (ICCPR) 13.13 makes specific reference to artistic expression by guaranteeing the right to: seek, receive and impart information and ideas of all kinds … in the form of art or through any other media of his choice.

Article 19(3) confirms:

13.14

The exercise of the rights … carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.18

The Human Rights Committee (HRC) has considered the application of restrictions on 13.15 this right.19 In Hak-Chul Shin v Republic of Korea, the HRC found a violation of Article 19 where an artist’s painting was confiscated by the government on the grounds that it contravened a national security law as an ‘enemy-benefiting expression’.20 The HRC confirmed that freedom of expression protected ideas imparted ‘in the form of art’ and restrictions had to be interpreted narrowly. The state must clearly justify how the particular work of art could be restricted under Article 19(3). The HRC has also issued General Comments on Freedom of Expression. General 13.16 Comment No 10 deals with restrictions on the right under Article 19(3).21 General Comment No 34 sets out the Committee’s approach to the right and highlights it as a cornerstone of democracy.22 Additionally, the Special Rapporteur in the field of cultural rights devoted her annual report to the Human Rights Council, in June 2013, to the issue of ‘the right to artistic freedom’.

16

Taner Akçam v Turkey App no 27520/07 (ECtHR, Judgment of 25 October 2011). Hertel v Switzerland App no 25181/94 (ECtHR, Judgment of 25 August 1998). 18 Additionally, Art 20 ICCPR prohibits propaganda for war (Art 20(1)) and hate speech in Art 20(2). 19 Dynamic Medien Vertriebs GmbH v Avides Media AG [2008] ECR-I 505. The Court confirmed it will take account of such international instruments when applying the general principles of Community law. 20 Communication No 926/2000 (UN Human Rights Committee), 6 March 2004. 21 General Comment No 10 on Freedom of expression, Article 19, 29 June 1983. 22 General Comment No 34 on Article 19, adopted during the 102nd session (2011) [28]. 17

Debbie Sayers

383

Part I – Commentary on the Articles of the EU Charter

13.17

Artistic freedom of expression is also addressed in Article 15 of the UN International Covenant on Economic, Social and Cultural Rights (ICESCR), which is discussed below. 13.18 All Member States have ratified the ICCPR. (b) Scientific Freedom 13.19 Article 27 of the UNDHR guarantees the right to share in the benefits of scientific advancement but it does not create a right to scientific freedom as such. 13.20 In relation to freedom of the sciences, Article 15 of the ICESCR confirms that state parties recognise the right of everyone: (a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its applications; (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

13.21 Furthermore, 1. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture. 2. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity. 3. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.

13.22 The ICESR contains so-called non-justiciable human rights although its optional protocol has recently become operational after receiving the requisite number of ratifications. Its rights are to be achieved progressively.23 All EU Member States have ratified or acceded to the ICESCR. 13.23 Article 15 effectively repeats the language of Article 27 of the UNDHR, but Wyndham has noted that: What the language of Article 15 potentially adds to the traditional framework is three-fold: first, the specific focus on scientific research demonstrates the value placed on science, when conducted responsibly, as contributing to human rights; secondly, the focus on science also provides a rallying point to unite the global scientific community when faced with common threats and challenges; and, finally, the broad reference to ‘freedom indispensable for scientific research’ has potentially wider-ranging applications than the human rights traditionally relied upon by the scientific community.24

13.24 The Committee on the ICESCR has adopted a General Comment on Article 15(1)(c), the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

23

General Comment No 3 on the nature of States parties obligations in Article 2(1), 14 December 1990. J Wyndham, ‘Scientific freedom: What do human rights have to do with it?’ (2010) June University Values. See also GJ Benston, ‘Government Constraints on Political, Artistic, and Commercial Speech’ (1987–88) 20 Connecticut Law Review 303. 24

384

Debbie Sayers

Art 13 – Freedom of the Arts and Sciences

This confirms that ‘[t]he right … derives from the inherent dignity and worth of all persons.’25 However, it should be noted that, at the international level, there also are restrictions 13.25 on scientific freedom to safeguard humanity and human dignity. For example, Article 7 ICCPR prohibits the carrying out of scientific or medical experimentation on human beings without their consent. The UN has also produced soft law aimed at protecting people against the misuse of medical and biological advances. For example, the UN Declaration on the Human Genome and Human Rights (the Declaration of Manila) 1981 prohibits human cloning.26 It confirms that ‘freedom of research, which is necessary for the progress of knowledge is part of freedom of thought’.27 The Declaration confirms the individual’s right to respect for their dignity regardless of their genetic characteristics and it includes principles on prior-informed consent, confidentiality of data, and protection of public health. Additionally, an International Declaration on Human Genetic Data was agreed on 16 October 2003. It sets out rules for the collection, use and storage of human genetic data and provides a universal framework of principles and procedures to guide States in the formulation of their legislation, policies or other instruments in the field of bioethics. Finally, a Universal Declaration on Bioethics and Human Rights of 19 October 2005 aims to provide a comprehensive framework of principles to ensure that biomedical activities are in conformity with international human rights law.28 (c) Academic Freedom Academic freedom is included as part of the guarantee of free speech under Article 19 13.26 ICCPR. In Faurisson v France, the HRC refused to find a violation following a complaint by a university professor who had given a magazine interview in which he expressed doubt on the use of gas chambers for murder at Auschwitz. He was prosecuted under the ‘Gayssot Act’ (which makes it a criminal offence to question the findings of the Nuremberg Military Tribunal). The HRC held that this did not restrict his freedom of expression and academic freedom, because he had been convicted for violating the rights and reputations of others. The Committee refused to offer protection to someone who, ‘under the guise of historical research’, made accusations that falsified and distorted the facts that occurred during the Second World War.29 Such statements were capable of strengthening anti-semitic feelings.30 Academic freedom is also integral to the protection of the right to education. The right 13.27 to education is enshrined in numerous international instruments, particularly, Articles 13 and 14 of the ICESCR. The Committee on ICESCR has adopted a General Comment on the right to education confirming that it ‘can only be enjoyed if accompanied by the 25

General Comment No 17 (2005), 12 January 2006 [1]. Art 11. 27 Art 12(b). 28 See TA Faunce, ‘Will international human rights subsume medical ethics? Intersections in the UNESCO Universal Bioethics Declaration’ (2005) 31 Journal of Medical Ethics 173–78; R Andorno, ‘Global bioethics at UNESCO: in defence of the Universal Declaration on Bioethics and Human Rights’ (2007) 33 Journal of Medical Ethics 150–54. 29 Faurisson v France, Communication No 550/1993, 8 November 1996 [7.6]. 30 Ibid. 26

Debbie Sayers

385

Part I – Commentary on the Articles of the EU Charter

academic freedom of staff and students’ and that ‘staff and students in higher education are especially vulnerable to political and other pressures which undermine academic freedom’.31 13.28 However, the primary source of the definition of academic freedom at international level is UNESCO’s Recommendation concerning the Status of Higher Education Teaching Personnel.32 The Recommendation is not binding, but it reflects a measure of international consensus on the meaning of the term. It specifies a range of parameters which are deemed important to creating academic freedom: freedom of expression is only one of these parameters. They include: Institutional autonomy.33 Universities, academic departments, etc, have the right to preserve and promote the principles of academic freedom in the conduct of both internal and external affairs. (ii) Individual rights and freedoms.34 These rights are linked to freedom of opinion, freedom of speech and expression and freedom of association. This has been said to include35 the freedom to study, the freedom to teach, and the freedom of research and information. These freedoms should include the right to information and the right to protect that information.36 It is possible that conflict may arise between individual and institutional autonomy. (iii) The protection provided by the state. The UNESCO Recommendation specifically refers to avoiding ‘untoward political pressures, which could undermine academic freedom’ due to the ‘vulnerability of the academic community’. States may also have to take steps to protect freedom of speech and intellectual property rights. (i)

13.29 The UNESCO Recommendation also deals with self-governance and collegiality, the duties and responsibilities of academics and the safeguarding of tenure. 13.30 A study by the LERU Working Group on Human Rights has looked in detail at the scope of academic freedom as a fundamental right.37 It noted that many European constitutions may protect the right to academic freedom at an individual or institutional level, or both. They may also set out the state’s obligations in respect of promoting the freedom.38 Another study has noted that many countries in Europe do not meet the UNESCO Recommendation’s standards.39 Its soft-law status and a ‘creeping managerialism’ within universities are said to prevent the genuine development of academic

31

General Comment 13 (1999) on the right to education at [38]. UNESCO Recommendation concerning the status of Higher Education Teaching Personnel, 11 November 1999. For further discussion, see T Karran, ‘Academic freedom in Europe: reviewing UNESCO’s recommendation’ (2009) 57(2) British Journal of Educational Studies 191–215. 33 Ibid [17]. 34 Ibid [27]. 35 See detailed discussion in J Vrielink, P Lemmens, S Parmentier and the LERU Working Group on Human Rights, ‘Academic Freedom as a Fundamental Right’, December 2010. 36 See Goodwin v United Kingdom (1996) 22 EHRR 123 in relation to a journalist’s right to protect information, and Gillberg v Sweden [2012] ECHR 569 [122], which considered this in respect of an academic’s freedom of expression. 37 Vrielink, Lemmens, Parmentier (n 35). 38 Ibid. 39 Karran (n 32). 32

386

Debbie Sayers

Art 13 – Freedom of the Arts and Sciences

freedom.40 These developments have led Barnett to conclude that ‘academic freedom is not taken away; rather, the opportunities for its realisation are reduced’.41

III. Council of Europe Treaties In respect of scientific freedom, the Council of Europe has issued Recommendations which 13.31 place limits on the acceptable scope of scientific research: for example, Recommendation 1100 (1989) on the use of human embryos and foetuses in scientific research, and Recommendation No R (90) 3 of the Committee of Ministers to Member States concerning medical research on human beings. It has also agreed a Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (the Oviedo Convention).42 Its Explanatory Report notes that ‘[s]cience, with its new complexity and extensive ramifications … presents a dark side or a bright side according to how it is used.’43 The Convention was drafted to ensure that the ‘beneficial side prevails’. It contains general principles preventing the infringement of human rights and dignity. It reinforces the freedom of scientific research subject to the provisions of the Convention and other legal provisions to ensure the protection of the dignity of human beings.44 The Convention has four protocols: the Additional Protocol to the Convention on 13.32 Human Rights and Biomedicine concerning Transplantation of Organs and Tissues of Human Origin;45 the Aditional Protocol to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, on the Prohibition of Cloning Human Beings;46 the Additional Protocol to the Convention on Human Rights and Biomedicine, concerning Genetic Testing for Health Purposes;47 and the Additional Protocol to the Convention on Human Rights and Biomedicine, concerning Biomedical Research.48 In respect of academic freedom, the Committee of Ministers adopted, in 2000, a 13.33 Recommendation underlining aspects of academic freedom in academic research.49 The Parliamentary Assembly also adopted a Recommendation in 2006 requesting that

40

Ibid. R Barnett, Higher Education: A Critical Business (Buckingham, Open University Press, 2007). 42 ETS No 164. This has been ratified by the following EU Member States: Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Greece, Hungary, Latvia, Lithuania, Portugal, Romania, Slovakia, Slovenia and Spain. See R Andorno, ‘The Oviedo Convention: A European Legal Framework at the Intersection of Human Rights and Health Law’ (2005) 2 Journal of International Biotechnology Law 133–43. 43 Para 2. 44 See for example, Arts 15 and 16 of the Convention. This provision is mirrored in Art 3 of the Charter in so far as it addresses the protection of persons submitting to scientific research. 45 ETS No 186. This has been ratified by the following EU Member States: Bulgaria, Croatia, Estonia, Finland, Hungary and Slovenia. 46 ETS No 168. This has been ratified by the following EU Member States: Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Finland, Greece, Hungary, Latvia, Lithuania, Portugal, Romania, Slovakia, Slovenia and Spain. 47 ETS No 203. This has been signed by Finland, France and Luxembourg and ratified by Slovenia. 48 ETS No 195. This has been ratified by the following EU Member States: Bulgaria, Hungary, Slovakia and Slovenia. 49 Recommendation R (2000) 8 of the Committee of Ministers of 30 March 2000 on the research mission of universities. 41

Debbie Sayers

387

Part I – Commentary on the Articles of the EU Charter

the Committee of Ministers ‘strengthen its work on academic freedom and university autonomy as a fundamental requirement of any democratic society’.50 This is known as the Council of Europe Declaration on Academic Freedom.51 The Council of Europe has also agreed the following Conventions which touch upon aspects of academic freedom: the European Convention on the Equivalence of Diplomas leading to Admission to Universities;52 the European Convention on the Academic Recognition of University Qualifications;53 the European Convention on the General Equivalence of Periods of University Study;54 and the Convention on the Recognition of Qualifications concerning Higher Education in the European Region.55 13.34 Finally, the Parliamentary Assembly issued Resolution 1510 (2006) on 28 June 2006 in relation to freedom of expression and respect for religious beliefs. It confirms that ‘the culture of critical dispute and artistic freedom has a long tradition in Europe and is considered as positive and even necessary for individual and social progress’.56

IV. Other Sources 13.35 Internationally, countries vary in the constitutional protection they offer these freedoms. For example, in Canada and the United States, there is no specific constitutional safeguard so protection rests, as with the ECHR, with the protections for freedom of thought and expression.57 Other countries expressly recognise freedom of research and teaching and the freedom of arts and science. For instance, Article 5 of the German Constitution states that ‘Art and science, research and teaching are free’; Article 33 of the Italian Constitution establishes that ‘The arts and sciences as well as their teaching are free’, and Article 59 of the Slovenian Constitution states that ‘Freedom of scientific research and artistic endeavor shall be guaranteed.’58 13.36 Other relevant provisions in international documents include the Declaration of Helsinki of the World Medical Association of 1964, which provides a set of ethical principles regarding human experimentation. The EU has also established a European Group on Ethics in Science and New Technologies (EGE) to examine ethical questions arising from science and new technologies and issue opinions to the European Commission in connection with the preparation and interpretation of Community

50 Recommendation 1762 (2006) of the Parliamentary Assembly of 30 June 2006 on ‘Academic Freedom and University Autonomy’. 51 This was referred to in the case of Sorguc v Turkey App no 17089/03 (ECtHR, Judgment of 23 June 2009). 52 ETS No 015. This has been not yet been ratified by the following EU Member States: Bulgaria, Estonia and Hungary. 53 ETS No 032. This has not yet been ratified by the following EU Member States: Bulgaria, Cyprus, Estonia, Greece, Hungary, Latvia, Lithuania and Luxembourg. 54 ETS No 138. This has been ratified by the following EU Member States: Austria, Cyprus, Finland, France, Germany, Ireland, Italy, Malta, Netherlands, Poland, Romania and Sweden. 55 ETS No 165. This has not yet been ratified by Greece. 56 At [9]. See also Council of Europe Recommendation CM/Rec (2011) on a new notion of media which considers artistic expression as a media objective. 57 The First Amendment to the Constitution in the US and Article 2 of the Canadian Charter of Rights and Freedoms. 58 See Vrielink, Lemmens, Parmentier (n 35); Karran (n 32).

388

Debbie Sayers

Art 13 – Freedom of the Arts and Sciences

legislation or policies. The EU has also produced Directives in the area of clinical trials, for example the Clinical Trials Directive 2001/20/EC (which is soon to be updated).59

D. Analysis I. General Remarks The freedoms set out in Article 13 form part of the so-called ‘free market’ of ideas, facili- 13.37 tating the self-development and fulfilment of the individual. They may be seen as collective as well as individual freedoms, promoting the development of democracy and the cultural health of society.60 These freedoms enable individuals to research, to question, to challenge and to provoke. They are rooted in the idea of personal moral autonomy, and an absence of constraint can enhance their realisation. In this way, Article 13 can be seen as a manifestation of the long-established rights 13.38 of freedom of thought, speech and expression. Such fundamental rights have been recognised in the jurisprudence of the Court of Justice as part of the general principles of Union law.61 The Court of Justice has held that freedom of expression is particularly important because it ‘[enables] expression to be given to opinions which differ from those held at an official level’.62 However, although, the Court has considered cases concerning freedom of expression (see chapter commentary on Article 11), it has not explicitly considered the freedoms of the arts and scientific research or explored the concept of academic freedom. Such freedoms remain undefined at EU level and it is not yet clear whether Article 13 13.39 consists of anything more than specifically enumerated aspects of the right to freedom of expression. Article 13 has not been considered by the Commission in its Annual Reviews of the Charter but, in a borderless internal market, it is likely its freedoms may be engaged by Union activity. For example, broadcasting or publication of art across borders is a fact of life with the internet: constraints on the content of the internet may engage different elements of Article 13. The Bologna Process and the work of the EU in building a European area of research will inevitably require reliance on consistent standards relating to academic freedom.63 Similarly, scientific research may be subject to commercial pressures or it may be highly contentious and require both EU protection and restriction. It will also be important to note the capacity of these freedoms to be engaged by the assertion or protection of other rights and freedoms in the Charter.64

59 [2001] OJ L121/34. See also the Commission Proposal for a Regulation of the European Parliament and of the Council on clinical trials on medicinal products for human use, and repealing Directive 2001/20/EC COM (2012) 369 final. 60 The concept was developed by JS Mill, ‘On Liberty’, 1859, although he did not use the term. 61 Case C-260/89 ERT [1991] ECR 2925 [41]. 62 Case C-340/00 P Commission v Cwik [2001] ECR I-10269 [22]. 63 The Bologna Process represents an attempt by European countries to ensure comparability in the standards and quality of higher education qualifications. 64 See for example, the Opinion of the European Union Agency for Fundamental Rights on the proposed data protection reform package, FRA Opinion—2/2012, October 2012.

Debbie Sayers

389

Part I – Commentary on the Articles of the EU Charter

13.40

Finally, it has been contended that the freedoms in Article 13 may be ‘of a different nature’ to the rights set out elsewhere in the Charter.65 The Charter distinguishes between rights and principles. Principles, it asserts, ‘only give rise to rights to the extent that they are implemented by national law or, in those areas where there is such competence, by Community law’.66 Under Article 52(5) principles are ‘judicially cognisable only in the interpretation of such acts and in the ruling on their legality’. They do not give rise to direct claims for positive action by the Union’s institutions or Member States authorities. If the freedoms in Article 13 are intended to create a new form of protection beyond traditional notions of freedom of expression then it is possible that they will be considered declaratory principles and will be justiciable only for interpretative purposes.

II. Scope of Application 13.41 It has been noted that the freedoms in Article 13 are not defined, but the term ‘the arts’ implies a broader range of disciplines than visual art and will undoubtedly include literature and the performing arts, for example music, dance, theatre, and film. The scope of artistic expression has been reasonably well defined by the ECtHR and it entails consideration of the duties of the person exercising the right, the freedoms of others and the nature of the margin of appreciation allowed to each state. This is discussed in more detail in the next section. 13.42 Article 13 also prohibits restraints on scientific research. This carries negative and positive obligations. The term scientific research is not defined but the freedom arises from the importance of the ‘free market’ of ideas in which the truth should prevail.67 Just as we may question the nature of art, we can also question the term science. One definition is that ‘science [is] … knowledge that is testable and refutable, in all fields of inquiry, including social sciences, and encompassing all research’.68 This is why scientific knowledge attracts special protection. The freedom to carry out scientific research may have a direct impact on individuals and, in this way, it engages other rights. This is most likely to occur in the case of biological and genetic research where it may conflict with moral conceptions of the right to life or the dignity or integrity of human beings. 13.43 Academic freedom may be given a restrictive or broad scope. It may mean little more than freedom of academic expression or it may include elements set out in the UNESCO Recommendation. 13.44 In terms of the application of these rights in the EU, there is little in the form of guidance save for Court of Justice cases concerning freedom of expression in the commercial context.69 The freedoms under Article 13 are broad and will be engaged, under

65

House of Lords Select Committee on the European Union, Session 2007–08, 26 February 2008 [5.16]. Paper by the Rt Hon Lord Goldsmith QC presented to the Heinrich Böll Stiftung, 24 February 2001 ‘A Charter of Rights, Freedoms and Principles’ [34]. 67 AR Chapman, ‘Towards an Understanding of the Right to Enjoy the Benefits of Scientific Progress and Its Applications’ (2009) 8 Journal of Human Rights 1–36. 68 See the Report of the Special Rapporteur in the field of cultural rights, Farida Shaheed, ‘The right to enjoy the benefits of scientific progress and its applications’, A/HRC/20/26, 14.5.12 [24]. 69 See Professor Woods’ commentary on Art 11. 66

390

Debbie Sayers

Art 13 – Freedom of the Arts and Sciences

Article 51, by action at the Union level and implementing acts of Member States acting within the scope of those laws. The expression of these freedoms may be engaged by action aimed at protecting other 13.45 rights. For example, the European Parliament recently debated a motion which called on the EU to impose some limitations on pornography in the media of the 27 Member States (‘A motion eliminating gender stereotypes in the EU’).70 The contentious parts of the motion were rejected before it was passed, but this type of measure can potentially engage Article 13 if it places limits on material falling within the scope of the freedom of artistic expression.71 Additionally, data protection and intellectual property rights legislation may also engage Article 13. The freedoms set out in Article 13 would appear to be capable of exercise by individu- 13.46 als and legal persons.72 It is also possible that the right will have territorial implications in the sense of those wishing to publish their opinions across different forms of media from outside the EU.73

III. Specific Provisions The stated aim of Article 13 is to free the arts and scientific research from restraint and 13.47 to respect academic freedom. However, it is clear that these freedoms may be restrained in specifically enumerated circumstances. Thus, the extent of any freedom will depend as much on the acceptable limits that can be placed upon it as the nature of the act itself. (a) Freedom of the Arts We have noted that the term ‘the arts’ is not defined in the Charter or its Explanations, 13.48 but that it can be considered to include all forms of artistic expression including, film, music, theatre as well as visual art. This is certainly the approach taken by the ECtHR. The Strasbourg Court has not defined ‘artistic expression’, nor has it distinguished between its different forms. Its primary focus has been to assess the legitimacy of restraints upon it. In such cases, the clash of interests between those wishing to impart information and those receiving it has had to be finely balanced and, as always in matters of morality, the ECtHR offers state parties a wide margin of appreciation. For example, in Müller v Switzerland, Müller organised an art exhibition at which 13.49 he exhibited paintings which were deemed obscene by the Swiss courts.74 He was convicted and fined and his paintings were confiscated. The ECtHR considered whether the interference pursued a legitimate aim to meet a ‘pressing social need’. It concluded that there had been no violation of Article 10 ECHR. There was no uniform conception of

70 Motion for a European Parliament Resolution on eliminating gender stereotypes in the EU (2012/2116(INI)) 6 December 2012. 71 The rejected parts of the report were paras 7, 14, the second part of 17, 18, 19, 41 and 51, and Recitals K and P. 72 For example, Case C-219/91 Ter Voort [1992] ECR I-5485. See Professor Woods’ commentary on Art 11. 73 See Professor Woods’ commentary on Art 11. 74 Müller (n 11).

Debbie Sayers

391

Part I – Commentary on the Articles of the EU Charter

public morals in Europe, so the Swiss courts had not been unreasonable to uphold the conviction and the fine. The duties and responsibilities to be exercised by those who have freedom of expression also had to be considered and the Court took note of the fact that the exhibition was open, and promoted, to all. The margin of appreciation was an important determining factor in finding no violation. 13.50 Similarly, in Wingrove v UK, a case concerning an allegedly blasphemous video, the ECtHR held that the state was in a better position to judge the line between freedom of expression and the protection of morals. The state was permitted a wide margin of appreciation and no breach of Article 10 was found.75 The ECtHR held that: A wider margin of appreciation is generally available to the Contracting States when regulating freedom of expression in relation to matters liable to offend intimate personal convictions within the sphere of morals or, especially, religion. Moreover, as in the field of morals, and perhaps to an even greater degree, there is no uniform European conception of the requirements of ‘the protection of the rights of others’ in relation to attacks on their religious convictions. What is likely to cause substantial offence to persons of a particular religious persuasion will vary significantly from time to time and from place to place, especially in an era characterised by an ever growing array of faiths and denominations. By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements with regard to the rights of others as well as on the ‘necessity’ of a ‘restriction’ intended to protect from such material those whose deepest feelings and convictions would be seriously offended.76

13.51 However, in Karatas v Turkey, the ECtHR found a violation of Article 10 in a case concerning a Turkish national of Kurdish origin who had published a collection of poems entitled ‘The song of rebellion’.77 He was accused of disseminating separatist propaganda and sentenced to imprisonment. Copies of the poem were confiscated. The Court noted the narrow scope under Article 10(2) for restrictions on freedom of expression which touched upon political debate on matters of public interest. This was because governments had to be subject to the close scrutiny of public opinion. It was permissible for states to regulate the expressions of opinion to protect public order against the incitement of violence and a wide margin of appreciation permitted in this regard. However, the ECtHR also noted that the form of the expression in this case was artistic and that it worked through a medium, poetry, which had a limited audience. This reduced the potential impact of these views on national security or public order. Further, the Court concluded that the aggressive tone of the poems was less a call to violence than an expression of deep distress.78 The Court concluded that the penalty was disproportionate to the aims being pursed. It noted: ‘Article 10 includes freedom of artistic expression—notably within freedom to receive and impart information and ideas—which affords the opportunity to take part in the public exchange of cultural, political and social information and ideas of all kinds ... [I]t must be remembered that

75

Wingrove (n 3). Ibid [58]. See also Otto Preminger-Institut v Austria [1994] ECHR 26 where the ECtHR held that the state party was entitled to balance the applicant’s freedom of expression with ‘the protection of the rights of others’, namely the right to respect for religious feelings, and it concluded that the Austrian authorities did not exceed their margin of appreciation. 77 Karatas v Turkey [1999] ECHR 47. 78 Ibid at [52]. 76

392

Debbie Sayers

Art 13 – Freedom of the Arts and Sciences

Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed.’79 In Vereinigung Bildender Künstler v Austria, the ECtHR also considered the form of 13.52 artistic expression when determining whether the constraint upon it was lawful.80 The Austrian courts granted an injunction against the exhibition of a painting by OttoMuhl, which depicted various public figures (including Mother Theresa) and several political figures in graphic sexual positions. This was permitted by the Austrian courts on the grounds that the painting was a debasement of the applicant’s public standing. The ECtHR held that the aim of the interference was purely the protection of an individual’s rights rather than public morals as the government claimed. It also noted that the caricature-like nature of the painting suggested that it was both artistic expression and social commentary. The court injunction was not time limited and left the directors of the galleries unable to exhibit the painting. It was, therefore, disproportionate to the aim pursued, and unnecessary in a democratic society. Consequently, any attempt to restrict forms of expression in broadcast or other media 13.53 will have to pay due regard to the impact of the restraint on the arts, bearing in mind the purpose and lawfulness of the restraint and the nature of the medium used. (b) Freedom of Scientific Research The Explanations to the Charter link the protection of scientific research to freedom 13.54 of thought and expression in the ECHR. The term ‘scientific research’ is not defined further. The EU has defined ‘research’ as ‘creative work undertaken on a systematic basis in 13.55 order to increase the stock of knowledge, including knowledge of man, culture and society, and the use of this stock of knowledge to devise new applications’.81 Research can lead to innovation and this is also an area where the Union has been active.82 Innovation is ‘the ability to take new ideas and translate them into commercial outcomes by using new processes, products or services in a way that is better and faster than the competition’ and in this way research directly feeds into social and economic development.83 Knowledge can be shared through education and training linking both scientific research and academic freedom. There are several areas where the need to protect scientific freedom may be engaged 13.56 by EU action. For example, Article 179(1) TFEU confirms that ‘the Union shall have the objective of strengthening its scientific and technological bases by achieving a European research area in which researchers, scientific knowledge and technology circulate freely, and encouraging it to become more competitive, including in its industry, while promoting all the research activities deemed necessary by virtue of other Chapters of the

79

Karatas v Turkey (n 77) [49]. See also Alinak v Turkey No 40287/98, ECHR Judgment of 29 March

2005. 80

Vereinigung Bildender Künstler v Austria [2008] 47 EHRR 5. Art 2 of the Council Directive on a specific procedure for admitting third-country nationals for the purposes of scientific research [2005] OJ L289/15. 82 Commission Communication, ‘Reviewing Community innovation policy in a changing world’, COM (2009) 442 final. 83 Nedis and Byler, ‘Creating a National Innovation Framework’ (2009) April Science Progress. 81

Debbie Sayers

393

Part I – Commentary on the Articles of the EU Charter

Treaties’. The free movement of knowledge has been called the ‘fifth freedom’ of the Union and aims to reduce the obstacles to the cross-border mobility of researchers.84 The Commission has also adopted a European Charter for Researchers and a Code of Conduct for their recruitment. 85 13.57 Further, the Europe 2020 strategy identifies three key drivers for growth, to be implemented through concrete actions at EU and national levels.86 This includes smart growth (fostering knowledge, innovation, education and digital society). Two of these flagship initiatives are specifically linked to education and training. In relation to the funding of scientific research, ‘Horizon 2020’ sets the rules for EU funding until 2020.87 This includes establishing ethical principles for the funding of human embryonic stem cell research.88 Research in this sensitive area has also been considered by the Court of Justice in the case of Oliver Brüstle v Greenpeace, where the Court ruled that patent protection for inventions based on human embryonic stem cells was forbidden in the EU because the destruction of human embryos for scientific research violated the principle of respect for human dignity.89 Decisions not to fund specific types of scientific research may constitute constraints on scientific freedom. The Explanations confirm that, despite the wording of Article 13, scientific freedom can be restrained. The ECtHR has not explicitly carved out a right to scientific freedom but, in the case of Hertel v Switzerland, it considered restraints on freedom of expression in the context of scientific research.90 In this case, the Court found that an injunction on the publication of the work of a scientific researcher who made claims about the safety of microwave ovens would have a disproportionate impact and would constitute the effective censoring of the his work. (c) Academic Freedom 13.58 The US Supreme Court has held that ‘academic freedom … is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.’91 13.59 Article 13 requires ‘respect’ for academic freedom without further definition of the term or explanation of the distinction in the state’s obligations. It is clear, however, that academic freedom could involve matters which relate to artistic expression and scientific research. The Explanations state that these freedoms arise from freedom of expression and freedom of thought but international commitments suggest that, in the case of academic freedom, they may come to mean more than that.

84 Commission Communication, ‘Better careers and more mobility: a European partnership for researchers’ COM (2008) 317 final. 85 The Charter gives researchers the same rights and obligations wherever they may work and aims at increasing transparency and openness in recruitment processes. Member states have no obligation to implement it. 86 COM (2010) 2020. 87 COM (2011) 809 final. 88 Art 16. 89 Case C-34/10 Oliver Brüstle v Greenpeace (18 October 2011). 90 Hertel (n 17). 91 Keyishian v Board of Regents of the University of New York 385 US 589 (1967).

394

Debbie Sayers

Art 13 – Freedom of the Arts and Sciences

The principle of university autonomy and academic freedom is well-established in Europe, and universities have committed themselves to respecting those freedoms under the Magna Charta Universitatum of 1988. Member States also have a variety ways of achieving this and academic freedom may be protected by national constitutions as an individual or a collective right, or both.92 Academic freedom is not only a good in itself, it has wider societal benefits. It makes it possible for universities to serve the common good of society through research and through disseminating knowledge and understanding, and through fostering independent thinking and expression in academic staff and students.93 Consequently, internationally, academic freedom is viewed as a collective and individual freedom and academic freedom under Article 13 should be seen in this wider European context. However, despite the widespread agreement on the importance of academic freedom, the right is not defined and there is little clarity on its substance. This is important as it has been said ‘[b]efore one can defend academic freedom … it must be defined’.94 In view of the very general wording of Article 13, and the limited description in the Explanations, the notion of academic freedom remains open to interpretation. This is all the more so, given the current absence of a body of jurisprudence providing further guidance. This may make the freedom non-justiciable, and Bentley concludes that ‘Article 13 of the Charter of Fundamental Rights of the EU simply states that academic freedom shall be respected. Therefore, it does not possess the level of specificity suitable for court decisions.’ 95 The clearest articulation of academic freedom comes from its overlap with freedom of expression.96 If, academic freedom is to seen simply as an articulation of free speech rights, it could be argued that academic freedom of speech and expression attracts a specific weight because of the importance attributed to academic opinion. However, this increased protection will only apply if it is used ‘in an appropriately academic manner’.97 Academic freedom can, therefore, not be invoked as a justification for verbally abusing or defaming people and it ‘does not amount to an unlimited freedom of the academics to speak openly on any subject’.98 The ECtHR case law shows a high level of protection for ‘academic speech’ in relation to matters of public interest, but it is not unfettered and is subject to quality controls. Speech falling outside an academic’s field of expertise is not covered and Article 10 ECHR will not provide protection for hate speech, including Holocaust denial.99 The ECtHR has confirmed that academic freedom extends beyond freedom to speak on their topic of expertise to freedom to speak about the university system. In Sorguc v

92 Vrielink, Lemmens, Parmentier (n 35). The report appraises the variety of national constitutional protections. 93 See also G Boulton and C Lucas, What are universities for? (Leuven, LERU, 2008). 94 B Rajagopal, ‘Academic freedom as a human right’ (2003) 3 Academe 25. 95 Bentley, ‘Academic Freedom and the Law’, summary of the International Law Discussion Group meeting held at Chatham House on Wednesday, 8 December 2010, p 7. 96 Taner Akçam v Turkey (n 16). 97 R Barrow, ‘Academic Freedom: Its Nature, Extent and Value’ (2009) British Journal of Educational Studies, 180–181. 98 E Barendt, ‘Academic Freedom and the Law’, summary of the International Law Discussion Group meeting held at Chatham House on Wednesday, 8 December 2010, p 2. 99 Garaudy v France App no 65831/01 (ECtHR, Judgment of 24 June 2003).

Debbie Sayers

395

13.60

13.61

13.62

13.63

Part I – Commentary on the Articles of the EU Charter

Turkey, the applicant, in a conference paper, criticised the system for the appointment and promotion of academics at his university.100 An assistant professor brought civil proceedings for compensation against him, claiming this was an attack on his reputation. Sorguc was fined. The Court held that he had raised an opinion of importance on which he had some evidence and had not named the individual. It specifically cited the Council of Europe’s Declaration on Academic Freedom in finding a violation and held ‘the importance of academic freedom, which comprises the academics’ freedom to express freely their opinion about the institution or system in which they work and freedom to distribute knowledge and truth without restriction’.101 13.64 The distinctive and important nature of academic writing was noted in Sapan v Turkey.102 In this case, the applicant published a book on the emergence of stardom as a phenomenon in Turkey. It was partly based on his doctoral thesis, and featured a wellknown pop singer. The singer complained that this was an infringement of his image and personality rights. An order that the book be seized was eventually lifted after two years and eight months, but the singer’s damages claim was allowed to proceed. The ECtHR saw the book as a serious academic analysis of the social phenomenon of stardom using scientific methods which could not be compared with the tabloid press or gossip columns. It held that there were no relevant or sufficient reasons to justify the seizure of the book, and that Article 10 had been violated. Similarly, in Cox v Turkey, an American university lecturer was banned from re-entering Turkey on the ground that she would undermine ‘national security’ after expressing opinions on Kurdish and Armenian questions.103 The Court found a violation of Article 10 because of the social importance of academics being allowed to express their expert opinions. 13.65 The ECtHR has also found that protection of academic freedom will also lead to a requirement to provide procedural safeguards for professors and lecturers on dismissal.104 13.66 However, it should be noted that a limited articulation of academic freedom is not universally agreed. Barendt argues that academic freedom is not just a special version of free speech.105 It includes forms of activity beyond speech, comprising of: individual claims to academic freedom which include the freedom of expression; claims by academic institutions to institutional autonomy; and the claim of individual academics to participate in university government.106 It also engages both personal rights and professional responsibilities. These protections are also set out in UNESCO’s Recommendation, but will they be read into Article 13? This would take the freedom beyond the protection of freedom of expression to engage issues of autonomy and institutional governance.

100

Sorguc v Turkey (n 51). Ibid [35]. 102 Sapan v Turkey App no 44102/04 (ECtHR, Judgment of 18 June 2010). 103 Cox v Turkey App no 2933/03 (ECtHR, Judgment of 20 May 2010). 104 Lombardi Vallauri v Italy App no 39128/05 (ECtHR, Judgment of 20 October 2009). 105 E Barendt, Academic Freedom and the Law: A Comparative Study (Oxford, Hart Publishing, 2010) ch 1. See also T Karran, ‘Academic Freedom in Europe: Time for a Magna Charta?’ (2009) 22(2) Higher Education Policy 163–89. This sets out a working definition of academic freedom which goes beyond freedom of expression to specify the rights, duties and limitations inherent in the concept. 106 Barendt, ibid, p 10. 101

396

Debbie Sayers

Art 13 – Freedom of the Arts and Sciences

IV. Limitations and Derogations The Explanations to the Charter confirm that the freedoms set out in Article 13 are to be 13.67 exercised having regard to Article 1, and may be subject to the limitations authorised by Article 10 of the ECHR. Article 1 of the Charter concerns respect for human dignity, and is particularly pertinent in relation to scientific research. Thus, for example, research in the field of life sciences will be restricted by the need to ensure respect for human life and human dignity, usually by following rigorous ethical principles.107 Article 10(2) ECHR enumerates specific, permissible restrictions which constitute lawful interference with artistic, academic or scientific freedom of expression. For example, the interference must be: — prescribed by law: a law has to be public, accessible, predictable and foreseeable; — necessary: this means it must comply with a ‘pressing social need’;108 — in pursuit of a legitimate aim: this means the aims specified in Article 10(2): (i) the interests of national security, territorial integrity or public safety; (ii) the prevention of disorder or crime; (iii) the protection of health or morals; (iv) the protection of the reputation or rights of others; (v) preventing the disclosure of information received in confidence; or (vi) maintaining the authority and impartiality of the judiciary; — and proportionate: the Court will consider whether a measure is proportionate to its aim or whether it can be achieved by less intrusive measures.109 The Court will also consider whether the interference falls within the margin of appre- 13.68 ciation. This is a method of balancing national interests in a supranational organisation by deferring to democratically elected decision-makers. The margin will be wider in areas concerning morals and the Court will consider if it was ‘possible to find in the domestic law of the various Contracting States a uniform European conception of morals.’110 Thus, it will rarely interfere with domestic laws which relate to questions of public decency and morality if there is no European consensus on the issue.111 The Court of Justice has similarly concluded, in relation to Article 11 of the Charter, 13.69 that the right to freedom of expression carries limits, asserting that ‘the discretion enjoyed by the national authorities in determining the balance to be struck between freedom of expression and [public interest] objectives varies for each of the goals justifying restrictions on that freedom and depends on the nature of the activities in question. When the exercise of the freedom does not contribute to a discussion of public interest and, in addition, arises in a context in which the Member States have a certain amount of discretion, review is limited to an examination of the reasonableness and proportionality of the interference.’112

107 Report of the European Group on Ethics in Science and New Technologies, 15 July 2000; www.europarl. europa.eu/charter/civil/pdf/con233_en.pdf. 108 Handyside (n 12). 109 Lingens v Austria (1986) 8 EHRR 407. 110 Handyside (n 12) [49]. 111 See Müller (n 11), Otto-Preminger Institute v Austria (1994) 13 EHRR 34, and Wingrove (n 3). 112 Case C-421/07 Damgaard (2 April 2009) [27].

Debbie Sayers

397

Part I – Commentary on the Articles of the EU Charter

13.70

Additionally, artistic, scientific and academic freedom may be protected by intellectual property laws but they may also be limited by them. For example, in L’Oréal SA v eBay International, the Opinion of AG Jääskinen noted that ‘[in] so far as the legal protection of trade-marks with a reputation as brands is enhanced it becomes more and more important to ensure that freedom of expression relating to parody, artistic expression and critique of consumerism and mockery of life styles related to it is not unduly hampered.’113

V. Remedies 13.71 The Charter protects individuals and legal entities against actions by the EU institutions that are not in conformity with fundamental rights. Article 47 of the Charter confirms that ‘[e]veryone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article’. Remedies sought will depend on the subject matter of the case and the nature of the interference but could include removal of injunctions, damages or a request for a state to take positive action to protect freedoms. 13.72 However, in terms of seeking a remedy, it should be noted that rights and principles are treated differently within the Charter. This reflects the customary division between those rights which are considered binding and justiciable at international law and those which are considered largely aspirational.114 The Charter does not identify which of its provisions are rights, which are freedoms and which are principles, and this is a difficult distinction to discern. The Explanations to Article 52(5) also remark that, in some cases, an Article of the Charter may contain both elements of a right and of a principle. This distinction may be important, because principles ‘do not give rise to direct claims for positive action by the Union’s institutions or Member States authorities’.115 Their scope of application is set out in Article 52(5) which says that they ‘may be implemented by legislative and executive acts taken by institutions … of the Union and by acts of the Member States when they are implementing Union law … They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality’. Thus, although ‘principles do not, therefore, of themselves give rise to directly enforceable rights, they may influence the Court of Justice (or domestic court) when interpreting the nature and extent of rights afforded by Union law or by national legislation implementing Union law’.116 13.73 If any of the freedoms in Article 13 are considered to be principles, they will be justiciable only as an aid to interpretation, or in any ruling on the legality of the legislative or executive acts implementing them, unless they are transposed into domestic law.

113

Opinion of AG Jääskinen Case C-324/09 L’Oréal SA v eBay International (9 December 2010) [48]. This is reflected in the division of social, economic and cultural rights and civil and political rights in the ICCPR and the ICESCR, and between the ECHR and the Social Charter on the Council of Europe context. 115 C Hilson, ‘Rights and Principles in EU Law: A Distinction without Foundation?’ (2008) 15(2) Maastricht Journal of European and Comparative Law 193–215. 116 House of Lords EU Select Committee, The Treaty of Lisbon: an impact assessment, 10th Report 2007–08, HL62-I [5.20]; NM de Sadeleer, ‘Enforcing EUCHR Principles and Fundamental Rights in Environmental Cases’ (2012) 81 Nordic Journal of International Law 39–74. 114

398

Debbie Sayers

Art 13 – Freedom of the Arts and Sciences

E. Evaluation Article 13 protects specific types of free expression rights that EU Member States have deemed particularly significant. In Handyside v United Kingdom, the ECtHR noted that ‘freedom of expression … is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population’.117 The right to free expression would be meaningless if it only protected popular or publicly acceptable expression and the protection in Article 13 is essentially aimed at forms of expression which can be simultaneously contentious and vital to the common good. However, the freedoms under Article 13 are not unlimited and Article 10 provides that their exercise ‘carries with it duties and responsibilities’.118 They are also subject to the enumerated limitations under Article 10(2) which are aimed at protecting the ‘greater good’. This makes the limits of protection difficult to discern as any determination on a restriction invariably entails a moral judgement: as Tritsmans contends ‘one man’s art is another man’s vulgarity; art can edify or even heal but it has also the power to enrage’119 The protection of potentially unpopular, shocking and publicly contentious forms of expression allows these freedoms to contribute the ‘exchange of ideas and opinions which is essential for a democratic society’.120 The need to protect the arts and scientific research from constraint emanates from their social, political and cultural importance. For example, artists may produce work which has a social and political purpose beyond aesthetics and, as a consequence, there ‘is a deeper ground on which the protection of art is based, emphasising the intrinsic value of art. Indeed it seems that in some indefinable, almost visceral sense, we know that artistic expression is of special significance to mankind’.121 Similarly, scientific freedom may drive progress and societal change and may lead us to question fundamentally what we know about ourselves and the world we live in. Like academic research, it has a value beyond free expression: it may work globally, provoking political, ethical and religious debate around academic opinions and activities and their worth to society. All these freedoms may conflict with deep-seated religious beliefs or moral ideologies; they may challenge orthodoxies and threaten the status quo. This is both a cause for concern and a reflection of their inherent value and it makes the extent of permissible restrictions difficult to determine. The ECtHR has, through the margin of appreciation, largely left complex judgments on moral issues to state parties. It remains to be seen whether the Court of Justice will be more willing to set Union-wide standards on such issues, should the need arise. However, although Article 13 is new in the sense that it articulates these freedoms for the

117

Handyside (n 12) [49]. See Wingrove (n 3) [52]. 119 E Tritsmans, ‘Warning! You’ll be shocked! Dealing with offensive art: Erotic art and hate art in translation perspective’, in B Demarsin et al (eds), Art and Law (Oxford, Hart Publishing, 2008) ch 3, p 66. 120 Vereinigung Bildender Künstler (n 80) [26]. 121 S Kurzweg, ‘Live Art and the Audience: Toward a Speaker-Focused Freedom of Expression’ (1999) 34 Harvard Civil Rights-Civil Liberties Law Review 437. 118

Debbie Sayers

399

13.74

13.75

13.76

13.77

Part I – Commentary on the Articles of the EU Charter

first time within the European context as a specific set of rights, it is explicitly defined as arising out of the existing rights of freedom of expression and speech. It is, therefore, difficult to determine whether Article 13 will add anything to the existing rights of freedom of expression and freedom of thought. Will it serve simply as a reinforcement of the state’s positive and negative obligations in respect of these freedoms, or will aspects of these freedoms be articulated more broadly? The Court of Justice has yet to establish the scope of these freedoms, or the method of balancing them with other fundamental liberties, and it is difficult to envisage that these the freedoms will be interpreted any differently in an EU context. The Explanations suggest that they will not, and the declaration in Article 1 and Recital 6 of Protocol 30 to the Lisbon Treaty confirms that the Charter ‘reaffirms’ the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles. However, even if these freedoms simply represent a more specific articulation of certain elements of the right to free expression, they will undoubtedly require the balancing of these freedoms against other individual and collective rights. It remains to be seen what form this may take within the EU where the scope for the application of the right under Article 51 may be fairly limited.

400

Debbie Sayers

Article 14* Article 14 Right to Education 1. Everyone has the right to education and to have access to vocational and continuing training. 2. This right includes the possibility to receive free compulsory education. 3. The freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance with the national laws governing the exercise of such freedom and right.

Text of Explanatory Note on Article 14 1. This Article is based on the common constitutional traditions of Member States and on Article 2 of the Protocol 1 (hereinafter Article 2P1) to the ECHR, which reads as follows: ‘No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.’ It was considered useful to extend this Article to access to vocational and continuing training (see point 15 of the Community Charter of the Fundamental Social Rights of Workers and Article 10 of the Social Charter) and to add the principle of free compulsory education. As it is worded, the latter principle merely implies that, as regards compulsory education, each child has the possibility of attending an establishment which offers free education. It does not require all establishments which provide education or vocational and continuing training, in particular private ones, to be free of charge. Nor does it exclude certain specific forms of education having to be paid for, if the State takes measures to grant financial compensation. In so far as the Charter applies to the Union, this means that in its training policies the Union must respect free compulsory education, but this does not, of course, create new powers. Regarding the right of parents, it must be interpreted in conjunction with the provisions of Article 24. 2. Freedom to found public or private educational establishments is guaranteed as one of the aspects of freedom to conduct a business but it is limited by respect for democratic principles and is exercised in accordance with the arrangements defined by national legislation.

Select Bibliography G Demuro, ‘Article 14’, in WBT Mock (ed), Human Rights in Europe: Commentary on the Charter of Fundamental Rights of the European Union (Durham, NC, Carolina Academic Press, 2008) 88.

* The author is currently Senior Political Adviser at the European Union Delegation to the United States. The opinions expressed in this chapter are those of the author and do not necessarily reflect those of the institution mentioned above.

Part I – Commentary on the Articles of the EU Charter

G Gori, ‘Towards an EU right to education’, European Monographs 28, (Kluwer International, 2001). S O’Leary, ‘The relationship between Community citizenship and the protection of fundamental rights in Community law’ (1995) 32 Common Market Law Review 154. ——, ‘Equal treatment and EU citizens: A new chapter on cross-border educational mobility and access to student financial assistance’ (2009) 34 European Law Review August. D Kochenov and R Plender, ‘EU citizenship: from an incipient form to an incipient substance? The discovery of the Treaty text’ (2012) European Law Review 4.

A. Field of Application of Article 14 14.01 Differently from the right to life or the right to liberty and security, any examination of the field of application of Article 14 requires taking into account, first, that the right to education has a meaning and a scope specific to the EU context, since it draws its origin from economic integration, in particular the freedom of movement of workers and the right not to be discriminated against on the basis of nationality. This provision also draws its origin from the freedom of establishment and to provide services, and, more recently, European Union citizenship. Against this background and through a piecemeal approach, the Court of Justice has developed in a string of case law a whole range of individual educational rights which have been partially consolidated by subsequent treaty amendments1 and secondary legislation2 and are now also enshrined in Article 14 of the Charter. The emergence of a European citizenship and the evolution of the right to free movement and residence for EU nationals have reinforced this development. Additionally, rules concerning third country nationals, including as regards access to education, have been progressively refined. 14.02 While only vocational training3 and not education was contemplated in the EEC treaty, the Court started to build a Community competence in the subject-matter by providing equal educational and training rights to migrant workers and their family members. Regulation 1612/68 on the free movement of workers4 provided for the right to vocational training for migrant workers themselves (Art 7) and for access to education and training for their family members (Art 12). Through the combined application of these provisions and the right of migrant workers to equal treatment as regards social

1 Consolidation occurred with the Maastricht Treaty, which introduced Arts 126 and 127, Education, vocational training and youth, subsequently renumbered as Arts 165 and 166, Education, vocational training, youth and sport, in the 2010 consolidated version of the Treaty on the Functioning of the European Union. 2 Directive 93/96 EEC on Students Residence [1993] OJ L317/59, as repealed by Directive 2004/38 EC on the right of citizens of the Union and their family members to move and reside freely within the territories of the Member States [2004] OJ L158/77. 3 The wording of Art 128 EEC was quite vague: ‘The Council shall, acting on a proposal from the Commission and after consulting the Economic and Social Committee, lay down general principles for implementing a common vocational training policy capable of contributing to the harmonious development both of national economies and of the Common Market’. 4 The basic measures employed by the Court have been Art 12 of the EEC Treaty and EEC Regulation 1612/68 on the free movement of workers ([1968] OJ L257/2), in particular its Art 12. This Regulation has been repealed by Regulation (EU) 492/2011 on freedom of movement for workers within the Union [2011] OJ L141/1. The new text has codified the relevant case law; however, the articles relevant to this analysis have not undergone substantive changes. Art 12 has become Art 10.

402

Gisella Gori

Art 14 – Right to Education

benefits (para 2 of Art 7) the Court was able to affirm that children of migrant workers were entitled to equal treatment with the nationals of the host Member State not only as regards access to education, but also with respect to all facilities provided to facilitate educational attendance, which included admission fees and maintenance grants.5 When subsequently presented with a series of cases, mainly preliminary rulings, concerning equal access to education and vocational training by EU nationals, including as regards fees and maintenance grants, the Court generally followed a twofold track—whether the applicant qualified as a worker or just as a student. On the one hand, the line of jurisprudence concerning the status of worker shows how generously the Court interpreted Article 39 TEC (currently Art 45 TFEU) and the secondary legislation applicable in order to guarantee equal treatment including as regards social benefits. The extensive interpretation of the retention of the status of worker and the link between the previous working activity and the studies engaged were the basic criteria referred to by the Court in its case law.6 The Gravier case, on the other hand, inaugurated a line of jurisprudence which pro- 14.03 vided EU nationals moving only for study purposes with a right to equal treatment as regards access to education and vocational training to the exclusion of maintenance grants. By applying the general principle of non-discrimination on the ground of nationality (Art 12 TEC, currently Art 18 TFEU) to the extensive interpretation of Article 128 EEC (currently Art 166 TFEU) as providing a competence sufficient to lay down a vocational training policy,7 the Court was able to recognise for students an equal right of access to education. Therefore, the imposition of higher registration fees on Community nationals was held to constitute discrimination on grounds of nationality and thereby contrary to the Treaty. Higher education was then deemed to fall under the notion of vocational training to the extent that it prepares the student for an occupation.8 Finally, the right of residence for students followed as a direct corollary of the right 14.04 of access to education, since the latter was senseless if the individual was not permitted to live in the country where the education was provided.9 Directive 93/96 on the right of residence of students codified this right. That Directive has since been repealed by

5 Cases 9/74 Casagrande [1974] ECR 773; 235/87 Matteucci [1988] ECR 5589; C-3/90 Bernini [1992] ECR I-1071; C-308/89 Di Leo [1990] ECR I-4185; and 389/87 and 390/87 GBC Echternach and A Moritz [1989] ECR 723. 6 The Court included trainee teachers and part-time worker with a pay lower than the minimum income as long as the activity was effective, genuine and not merely ancillary to the studies to be engaged (Cases 53/81 Levin [1982] ECR 1035; 66/85 Lawrie-Blum [1986] ECR 2121; 39/86 Lair [1988] ECR 3161; and 197/86 Brown [1988] ECR 3205). 7 The content of Arts 126 and 127 EC Treaty represented, at the time of the Maastricht Treaty, the transposition of the Court of Justice acquis communautaire concerning the material extension of Community education and vocational training policies starting from Art 128 EEC. Arts 126 and 127 (currently Arts 165 and 166 TFEU), in fact, provided a clear-cut legal basis for a whole range of activities carried out on the basis of the Court of Justice case law, for example as regards higher education. However, while legitimising a competence developed by the Court, the institutionalisation allowed the Member States to impose their vision on how the European Union was to deal with education and vocational training activities. EU competencies are just complementary to those of the Member States, which latter remain fully responsible for the content and organisation of their education and vocational training systems. EU institutions are deemed to only enhance and support the Member States’ cooperation. 8 Cases 293/83 Gravier [1985] ECR 593 and 24/86 Blaizot [1988] ECR 379 [15]–[20]. The Court has reaffirmed that both higher education and university education constitute vocational training in Case C-147/03 Commission v Austria [2005] ECR I-5969. 9 Case C-295/90 European Parliament v Council [1992] ECR I-4915 [15].

Gisella Gori

403

Part I – Commentary on the Articles of the EU Charter

Directive 2004/38, which establishes the following conditions students must fulfil to enjoy the right of residence for more than three months (Art 7): (i) be enrolled at a private or public establishment for the principal purpose of following a course of study, including vocational training; (ii) have comprehensive sickness insurance; (iii) have sufficient resources for themselves and their families not to become a burden on the social assistance system of the host Member State. 14.05 The notion of European Union citizenship (Art 17 TEC) and its interpretation as ‘the fundamental status of nationals of the Member States enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality’10 has provided a new impetus for the development of educational rights in the EU context. EU citizenship was not meant to extend the material scope of the Treaty and Article 18 TEC (currently Art 21 TFEU) reiterated that the rights of movement and residence of EU citizens are subject to the limitations and conditions laid down not only by the Treaty, but also by secondary legislation. However, in a series of cases dealing with students’ equal access to higher education, and equal treatment as regards social benefits and maintenance grants, the Court used the notion of citizenship to extend the material scope of educational rights of students. Once again this happened through the combined application of EU citizenship and Article 18 TFEU (direct and indirect discrimination on the ground of nationality). When dealing with restrictions to access to higher education, such as additional requirements imposed to holders of foreign diplomas or numerus clausus applying to non-resident students,11 the Court held that the opportunity for students coming from other Member States to gain access to higher education ‘constitutes the very essence of the principle of free movement of students guaranteed by the Treaty’. Therefore, students may rely on Articles 18 (nondiscrimination) and 21 TFEU (European citizenship) to move and reside freely on the territory of the host Member State. These provisions also preclude any measures which even indirectly discriminate and restrict access to education of EU citizens coming from other Member States, unless these measures are objectively justified and proportionate to the aim pursued. 14.06 In the cases dealing with students’ equal treatment as regards to non-contributory social benefits (Grzelczyk), and maintenance grants (Bidar), the Court of Justice affirmed that as EU citizens and lawful residents in another Member States, students were entitled not to be discriminated against on grounds of nationality, to the extent that these areas fell under the material scope of the Treaty.12 The Court found this to be the case on the basis of the Treaty provisions on education and vocational training, as well as, if

10

Case 147/03 (n 8) [45], which continues: ‘subject to such exceptions as explicitly provided for’. Respectively, Case 147/03 (n 8), and Case C-73/08 Bressol and others [2012] ECR I-2735. The former dealt with additional qualifications requirements imposed by Austria upon non-nationals seeking access to a specific higher or university course, which the Court of Justice did not find justified. In Bressol, Belgian legislation had restricted the number of non-resident students who might enrol (numerus clausus) for the first time in medical and paramedical courses. Being a preliminary ruling, the Court concluded that it was for the competent national authorities to assess in depth whether the legislation was justified in light of the objective of protection of public health. 12 See Case C-184/99 Grzelcczyk [2001] ECR I-6193 concerning a French national who had worked parttime in Belgium during the first three years of his university studies. After a maintenance grant was withdrawn from him by reason of his nationality, he applied for the minimex, a non-contributory social benefit. See also Case C-209/03 Bidar [2005] ECR I-2119 concerning a French citizen who applied for a maintenance grant in the UK. 11

404

Gisella Gori

Art 14 – Right to Education

relevant, secondary legislation, that is Directive 93/36 as subsequently repealed by Directive 2004/38. Directive 93/96 subjected the recognition of a right of residence for economically inactive students to the conditions relating to the possession of sufficient resources and medical insurance coverage.13 It also explicitly established no right to maintenance grants. Article 24(2) of Directive 2004/38 made equal treatment for maintenance grants subject to the acquisition of permanent residence.14 In both the Grzelczyk and Bidar cases the Court founded its reasoning on the Treaty articles relating to free movement of EU citizens and non-discrimination, and eluded the secondary law provisions’ application: in the former case because Directive 93/96 did not explicitly preclude students from accessing non-contributory social benefits; in the latter because Directive 2004/38 was adopted but not yet transposed. This allowed the Court some flexibility to interpret the notion of permanent residence in Bidar. While it considered that maintenance loans or grants could only be provided to students showing a certain degree of integration in the society of the host Member State, it decided that three-year long lawful residence coupled with the fact that the applicant had received a substantial part of his secondary education in that same state were sufficient to provide him with the right to equal treatment as regards maintenance grants. In subsequent case law, the Court of Justice has consistently reiterated its interpreta- 14.07 tion of Articles 18 and 21 TFEU as providing students with the right to free movement and equal access to education, but it also clarified the scope of this equal treatment in relation to maintenance loans or grants. In the Förster case,15 the Court reiterated that students may rely on Article 18 TFEU with regard to social benefits or maintenance grant in the state where they have resided lawfully for a certain period. However, by reference to Article 24(2) of Directive 2004/38, which was by then fully in force, it considered that the five-year requirement was legitimate to ensure that the student has attained a certain level of integration in the Member State in question.16 In so doing, the Court seemed to give priority to secondary legislation over Treaty provisions ruling in favour of a ‘blanket requirement’, ie the five-year residence, which in previous case law relating to the same provisions had appeared to be unlawful.17 However, subsequently, the Court has clarified its reading of Article 24 of Directive 2004/38 by interpreting its paragraph 1 as ‘merely a specific expression’ of Article 18 TFEU, and requiring its paragraph 2, which provides for derogation to the principle of non-discrimination, ‘to be interpreted

13 Social security of students is also regulated by Regulation 1408/71 as repealed by Regulation (EC) 883/2004 on the coordination of social security systems [2004] OJ L166/1. 14 Art 24(2) of Directive 2004/38 reads: ‘By way of derogation from paragraph 1, the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence, or, where appropriate the longer period provided in Article 14(4)(b), nor shall it be obliged, prior to the acquisition of the right to permanent residence, to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status and members of their families.’ 15 Case C-158/07 Förster v Hoofdirectie van der Informatie Beheer Groep [2008] ECR I-8507. 16 The Förster case concerned a German national settled in the Netherlands. While pending the transposition of the Directive at issue, the Dutch government issued a policy rule imposing a five-year residence requirement in order for students to become entitled to maintenance grants. The Court also drew a distinction with the Bidar ruling by making reference to the fact that the UK legislation imposed not only a residence requirement, but also the status of ‘settled person’. However, this legislation also precluded the possibility of students acquiring such status while studying, and this independently from their degree of integration in society. 17 See S O’Leary, ‘Equal treatment and EU citizens: A new chapter on cross-border educational mobility and access to student financial assistance’ (2009) 34 European Law Review August.

Gisella Gori

405

Part I – Commentary on the Articles of the EU Charter

narrowly’18 and in accordance with the related Treaty provisions.19 When applied to maintenance loans or grants, this interpretation allowed the Court to conclude that reduced transport fares granted to students represent aid to maintenance, but do not fall under Article 24(2), since the latter only cover ‘student grants or student loans’. Having ruled out that considering reduced transport fares a family benefit consisted in indirect discrimination against students who move to Austria only for study purposes, the Court affirmed that enrolment in a public or private establishment for the principal purpose of following a course of study, including vocational training, was a sufficient proof of a genuine link of integration of the student in the host Member State. 14.08 To a lesser extent than free movement provisions, the evolution of the right to education in the EU context is also linked to the Treaty provisions relating to freedom of establishment and freedom of providing and receiving services. With market integration the ultimate goal, the Court extended to Community nationals the right recognised by Member States to their own citizens to establish private schools. In an early case, Humbel, the Court did not openly recognise education as a service, but such a conclusion could be inferred from the Court’s affirmation that public education could not be considered a service for the purpose of Article 49 TEC (currently Art 56 TFEU), because it was not provided for remuneration.20 Subsequent case law endorsed this conclusion: inasmuch as education is provided for remuneration, it may be defined as a service, and Articles 43 TEC (freedom of establishment, currently Art 49 TFEU) and 49 (freedom to provide services) apply. This implies that Community nationals may not be hindered from establishing private schools or carrying out activities concerning private teaching in other Member States.21 Additional case law relative to the freedom of establishment concerned the recognition of qualifications.22 14.09 Finally, several pieces of legislation have reorganised the right of access to education for third country nationals, either family member of a European Union citizen or moving independently. Third country nationals who are family members of EU citizens and who are resident or permanent residents (after five years of residence) are entitled to equal treatment as regard access to education, including grant maintenance for studies and vocational training.23 Third-country nationals who wish to move and reside in a Member State for educational purposes fall under Council Directive 2004/114/EC, which defines the conditions of admission of third-country nationals for the purposes of study, pupil exchange, unremunerated training or voluntary service beyond three months’ duration.24 The criteria for admission of students are the availability of adequate resources for studying, staying and return travel costs and admission to an education establishment, including payment of fees, and prior knowledge of the language.

18 Case C-75/11 Commission v Austria (4 October 2012). The case concerned reduced transport fares for Austrian students, which in principle are granted only to students whose parents are in receipts of family allowances. 19 Joined Cases C-22/08 and 23/08 Vatsouras and Koupatantze [2009] ECR I-4585 [44]. 20 Case 263/86 Humbel [1988] ECR 5371. 21 Case 147/86 Commission v Greece [1988] ECR 1637 [9] and [10]. 22 Case 2/74 Reyners v Belgian State [1974] ECR 631. 23 Art 24 of Directive 2004/38 EC (n 3). 24 Council Directive 2004/114/EC on the conditions of admission of third country nationals for the purposes of study, pupil exchange, unremunerated training or voluntary service [2004] OJ L375/12. The Commission has proposed a revised directive on this issue (COM (2013) 151).

406

Gisella Gori

Art 14 – Right to Education

Students can also move from one Member State to another to pursue further studies, though it is required that these are related. Also, third country nationals who have been residing continuously and legally during five years in a Member State—though not for studying or vocational training purposes—and may become permanent residents, enjoy equal treatment with EU nationals as regards, inter alia, education and vocational training, as well as social benefits and social assistance.25 Migrant workers, third-country nationals’ family members, and third-country nationals who have obtained or who are seeking international protection are also entitled to education.26 At first glance, issues pertaining to the right to education, such as freedom of teach- 14.10 ing and freedom to be taught, covered by paragraph 3 of Article 14, seem unconnected with the exercise of free movement and migration of EU citizens. Accordingly, in this regard the impact of the Charter in practice would appear remote. However, as will be demonstrated in section D, these components of the right to education are connected, though more loosely, with EU law, in particular through the application of the principle of non-discrimination.

B. Interrelationship of Article 14 with Other Provisions of the Charter Considering how the right of access to education and vocational training has evolved in 14.11 the EU, Article 14 interacts with the other Charter provisions which lay out the foundation of the notion of free movement and non discrimination for EU nationals. Thus, it is linked to Article 45 (freedom of movement and residence for EU citizens) and, as also mentioned by the official Explanations, to Article 15 (freedom to choose an occupation and right to engage in work) as far as vocational training is concerned. Article 21 (nondiscrimination) is also relevant since it prohibits any discrimination based on various grounds, eg sex, race, ethnic or social origin, religion or belief, age or sexual orientation, and on the basis of nationality.27 While equal treatment for Member States nationals has been pivotal for the emergence of education rights in the EU context, discrimination on other grounds than nationality is also relevant. Secondary EU anti-discrimination legislation prohibits discrimination as regards access to vocational training and education on

25 Council Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents [2004] OJ L16/44) Art 11(1)(b). Art 4(2) of the Directive provides that periods of residence for study purposes or vocational training only count for half for the purpose of fulfilling the five-year requirement. 26 Directive 2003/86 ([2003] OJ L251/12) Art 14(1)(a) (family reunion); Directive 2011/98 ([2011] OJ L344/1) Art 12(1)(c) (migrant workers); Directive 2009/50 ([2009] OJ L155/17) Art 14(1)(c) (highly skilled workers); Directive 2011/95 ([2011] OJ L337/9) Art 27 (refugees and beneficiaries of subsidiary protection); Directive 2001/55 ([2001] OJ L212/12) Art 14 (temporary protection); and Directive 2003/9 ([2003] OJ L31/18) Arts 10 and 14 (asylum-seekers). The latter Directive has recently been replaced: see Arts 14 and 16 of Directive 2013/33 ([2013] OJ L180/96). 27 Art 21 of the Charter reads: ‘1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. 2. Within the scope of application of the treaties and without prejudice to any of their specific provisions, any discrimination on ground of nationality shall be prohibited.’

Gisella Gori

407

Part I – Commentary on the Articles of the EU Charter

the basis of some of the grounds mentioned by Article 21, thereby creating new venues for vindicating the right of access to education.28 14.12 Paragraph 2 of Article 34 (social security and social assistance) is also relevant, to the extent that much of the recent litigation defining the scope of the equal right to access to study assistance for nationals of other EU Member States relies on the evolution of EU secondary legislation, as well as national law and practices relating to freedom of movement. The consolidation by Directive 2004/38 of the five-year residence requirement and the application of the notion of ‘habitual residence’ is a case in point (Förster). Finally, Article 14 also interacts with Article 10 (freedom of thought, conscience, and religion) and Article 24 (the rights of the child).

C. Sources of Article 14 Rights I. ECHR 14.13 According to the ‘correspondence’ rule established by Article 52(3) of the Charter, when the rights of the latter instrument correspond to those provided by the ECHR, their meaning and scope, including (according to the explanations to the Charter) any limitation, are the same. In practice this means that the meaning and scope of Article 14 cannot be ‘less’ than the meaning of Article 2 of Protocol 1, as defined not only by the Convention itself but also (according to the explanations to the Charter) by the case law of the European Court of Human Rights. The aim of Article 52(3) is at the same time to provide a ‘lower’ benchmark which cannot be breached without preventing the Union from providing a broader protection of any fundamental right. The Explanations to Article 52 to the Charter at point 2 indicates that correspondence while clarifying that the scope of Article 14 is broader as a result of the inclusion of vocational training.29 Although prima facie paragraph 1 of Article 2 Protocol 1 ECHR (hereinafter 2P1) 14.14 would appear to be a freedom right (‘No person shall be denied the right to education’), it has been held by the European Court of Human Rights to provide the right of everyone under the jurisdiction of the state to be granted equal access to the existing education institutions.30 In the Strasbourg Court’s opinion, the negative formulation of 28 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation ([2000] OJ L303/16) prohibits discrimination in access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience (Art 3(b)) on grounds of religion and belief, disability, age or sexual orientation. Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin ([2000] OJ L180/22) prohibits discrimination as regards both vocational training defined as in the previous Directive, but also education (Art 3(b) and (g)) on the grounds of racial and ethnic origin. Directive 2006/54 ([2006] OJ L204/23) prohibits sex discrimination as regards vocational training (Arts 1(a) and 14(1)(b)). 29 Explanations to Art 52 reads: ‘Articles where the meaning is the same as the corresponding Articles of the ECHR, but where the scope is wider: … Article 14(1) corresponds to Article 2 of the Protocol to the ECHR, but its scope is extended to cover access to vocational and continuing training, Article 14(3) corresponds to Article 2 of the Protocol to the ECHR as regards the rights of parents’. 30 Case relating to certain aspects of the laws on the use of languages in the education in Belgium v Belgium [Belgian linguistic case] (ECtHR, Judgment of 23 July 1968), A Series no 6. This jurisprudence was reiterated inter alia by Leyla Sahin v Turkey App no 44774/98 (Judgment of 10 November 2005) [GC]; Orsus and others v Croatia App no 15766/03 (Judgment of 16 March 2010) [GC].

408

Gisella Gori

Art 14 – Right to Education

the first paragraph of Article 2P1 ‘indicates that the Contracting parties would not be required to establish at their own expenses, or to subsidise education of any particular type or at any particular level’. In other words, this provision is not interpreted as meaning that parents can require the state to provide a particular form of education.31 Nonetheless, Article 2P1 carries a positive obligation for the state, since access to the existing institutions implies, on the one hand, the existence and the maintenance of a minimum education provided by the state, and, on the other hand, that the state must afford effective access to these institutions once they exist.32 Such an interpretation of the Convention is necessary to ensure that the rights it protects are ‘practical and effective, not theoretical and illusory’.33 The ECtHR case law has further defined the material scope of the right to education. 14.15 Access concerns all level of education, the ECtHR having recently confirmed that higher education is included in the right to equal access to the existing institutions.34 But the state is entitled to set entry conditions, such as the previous achievement of a certain level of education, admission examinations, numerus clausus (Belgian linguistic case), and even fees on the basis of the education level.35 These measures, however, must be justified by the limited availability of places and be non-discriminatory. The right to education also implies the corollary right of having the qualifications obtained recognised in the host state, and it may not be denied as a consequence of the application of the second sentence of Article 2P1.36 The Court thus considered the first paragraph of Article 2 to be predominant on the second, since ‘it is onto this fundamental right [to education] that is grafted the right of parents to respect for their religious and philosophical convictions’.37 Finally, the right of access must be non-discriminatory, as it results from the combined application of Article 2P1 and Article 14 of the ECHR. The ECHR applies to everyone under the state’s jurisdiction; however, early case law 14.16 restricted the personal scope of Article 2P1. In the Foreign students case, the former European Commission on Human Rights denied that Article 2 granted individuals a right to challenge the refusal of an extension of their resident permits.38 The Commission held that unless returning to the home country threatens other fundamental human rights protected by the Convention, Article 2 does not limit the power of states to decide who resides on their territory. It thus can be concluded, as a corollary, that foreigners cannot claim admittance to a contracting party in order to receive education only on the basis of Article 2. What this provision ensures is the right to equal access once the individual is granted the right to reside in the country on the basis of national laws, thus making it a ‘static right’. Recent case law reiterated this approach when affirming that

31

Leyla Sahin ibid [135]. Ponomaryovi v Bulgaria App no 5335/05 (Judgment of 21 June 2011) [49]. 33 Leyla Sahin (n 30) [136]. 34 Ibid [137]–[142], where other several cases are quoted. 35 In Ponomaryovi the ECtHR considers to fall within the state’s margin of appreciation the possibility of imposing fees for higher education. 36 In the Campbell and Cosans case (Judgment of 25 February 1982, A Series no 48), the young Cosan was denied his right to education because of his parents’ refusal to accept corporal punishments as a disciplinary measure, the reason why he was suspended. 37 Decision, Danish sex education case, B Series no 21 [53]. 38 Foreign Students App no 7671/76 (Decision of 19 May 1977), DR 9, 185. The case in exam never reached the Court. 32

Gisella Gori

409

Part I – Commentary on the Articles of the EU Charter

the imposition of fees to attend secondary education to non-nationals on account of their nationality and immigration status was not justified. The applicants inadvertently found themselves in the situation of aliens lacking permanent residence permits, and the authorities did not take into account their degree of integration in the society.39 14.17 The second paragraph of Article 2P1 entails freedom of education in its ‘freedom to be taught’ dimension since it guarantees the freedom of parents to have their children receive the education and teaching which accords with their religious and philosophical convictions. At the same time it imposes the positive obligation on the contracting parties to respect, when exercising the functions they assume in that area, this right of the parents. However, the Court allows the state a wide margin of appreciation in determining the steps which are necessary to ensure compliance with the Convention, with due regard to the resources of the individuals and of the community. In a string of case law relating to the place of religion in school curricula,40 the most recent being that concerning the compatibility with the requirement of Article 2P1 of the crucifix in Italian state-school rooms,41 the Court has reiterated that Article 2P1 is the lex specialis in relation to Article 9 (freedom of thought, conscience, and religion) and has defined the scope of this margin of appreciation. In the opinion of the Court, the state remains competent for the content of teaching and the curricula, which may include education or knowledge of a directly or indirectly religious or philosophical kind, as well as for the organisation of the school environment. However, since paragraph 2 of Article 2P1 aims at safeguarding the possibility of pluralism in education, ‘it requires the State, in exercising its functions with regards to education and teaching, to take care that information or knowledge, included in the curriculum, is conveyed in an objective, critical, and pluralistic manner’.42 Accordingly, the limit to the state’s margin of appreciation consists in the prohibition to pursue any proselytism or indoctrination that might be considered as encroaching upon parents’ religious and philosophical convictions. Thus, the Court has considered as falling within the margin of appreciation of the state the fact that a Norwegian syllabus and a Turkish syllabus devoted a larger share to Christianity or Islam, due to the relevance of each religion in those countries. Similarly, the presence of the crucifix in class in Italy was not deemed to go beyond this margin, since it is a passive symbol not deemed to influence children to the same extent as teaching; it was not attached to any compulsory teaching of Christianity; and arrangements were provided by state schools for other religions.43 14.18 Finally, paragraph 2 of Article 2P1 is deemed to apply also to private schools to the extent that the Commission affirmed that it prohibits a state from preventing parents from arranging the education of their children outside the state school system.44 While

39

Ponomaryovi (n 32) [63]. Kjeldsen, Busk Madsen and Pedersen v Denmark (Judgment 7 December 1976), Series A no 23 [50]–[53]; Folgerø and others v Norway [GC] App no 15472/02, ECHR 2007-VIII; Hasan and Eylem Zengin v Turkey App no 1448/04, ECHR 2007-XI [84]. 41 Lautsi and others v Italy App no 30814/06 (Judgment of 18 April 2001). 42 Folgerø (n 40) [85]. 43 While in Lautsi the Court found no violation of Art 2P1, in the Folgerø case it held that this provision was violated by reason of the fact that notwithstanding the many arrangements put in place, Norway did not take sufficient care to ensure that the information and knowledge included in the curriculum was conveyed in an objective, critical and pluralistic manner for the purposes of Art 2P1. 44 Decision, Danish sex education case, B Series no 21 [53]. 40

410

Gisella Gori

Art 14 – Right to Education

the doctrine is not unanimous on this point, it is clear that the Court excluded that the state could ensure compliance with paragraph 2 by allowing a private system to exist, and contributing financially to it.45

II. UN Treaties The Universal Declaration of Human Rights (Art 26 of UDHR), the International 14.19 Covenant on Economic, Social and Cultural Rights (Art 13 of the CESCR), and the Convention on the rights of Children (Arts 28 and 29 of the CDC) provide for the right to education. Although all these provisions encompass a notion of the right to education meant as freedom of education,46 they focus on its relevance as a social and positive right. Article 13 CESCR best expresses the social dimension of the right to education when it affirms that the right for everyone to receive education implies the obligation of states ‘to develop and maintain a system of schools and other education institutions in order to provide education to everybody, if possible, free of charge’.47 The General Comments relating to these provisions develop further this social dimension of the right to education.48 The reason why the international notion of the right to education is more progressive is due to the open programmatic character of these instruments and their softer mechanisms of protection. However, this same protection is at the origin of the weaker impact that the UN conventions have had on the domestic legal order in comparison with other international instruments, such as the ECHR and the TEU.

45

Kjeldsen, Busk Madsen and Pedersen v Denmark (n 40). Art 13(4), for example, reads: ‘No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.’ 47 Art 13 reads: ‘1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace. 2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right: (a) Primary education shall be compulsory and available free to all; (b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education; (c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education; (d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education; (e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.’ 48 See, for example, General Comment 11 (1999), Committee on Economic, Social, and Cultural rights, which affirms ‘free of charge’ to be an unequivocal requirement for primary education, although the states parties are under the obligation of a progressive implementation. 46

Gisella Gori

411

Part I – Commentary on the Articles of the EU Charter

III. Council of Europe Treaties 14.20 The revised European Social Charter has completed the pre-existing provisions on vocational guidance and training (currently Arts 9 and 10) with the provision of a general right to education in Article 17 which deals with the right of children and young persons to social, legal, and economic protection.49 Article 17(1) guarantees the right to education for all children, which means the establishment and maintenance of sufficient and adequate institutions and services for the purpose of education.50 This has been interpreted as implying that primary and secondary education must be free of charge, accessible and effective.51 Equal access is to be guaranteed for all children, including those belonging to vulnerable groups, if needed through special measures. Similarly to the evolution in the EU context, the European Committee of Social Rights, which is the body devoted to assess the conformity of national laws and practice to the Charter, interpreted the provisions concerning vocational training (Arts 9 and 10) as including not only secondary vocational education, but also university and non-university higher education ‘as far as they provide students with the knowledge and skills necessary to exercise a profession’.52 The European Social Charter guarantees equal access to vocational training, which implies (i) abolishing or reducing any fee or other educational cost which represents financial obstacles for some students; and (ii) granting financial assistance either universally, or subject to a means test, or awarded on the basis of merit. Financial assistance, which may take the form of scholarships or loans at preferential interest rates, must at least be available for those in need and shall be adequate. Finally, equal access to vocational training, including equal treatment as regards financial assistance, must be guaranteed to non-nationals. Under the Charter, this means that no length of residence is required from students and trainees residing in any capacity, or having authority to reside in reason of their ties with persons lawfully residing on the territory of the Party where they start the training.53

49 The Revised European Social Charter entered into force in 1999 and is gradually replacing the initial 1961 Social Charter. The Revised version has been currently ratified by 32 (Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Cyprus, Estonia, Finland, France, Georgia, Hungary, Ireland, Italy, Lithuania, Malta, Moldova, Montenegro, Netherlands, Norway, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Sweden, the Former Yugoslav Republic of Macedonia, Turkey, Ukraine) of the 47 Council of Europe Member States. However, another 11 Member States are still bound by the 1961 version, thereby bringing the total number of ratifications to 43 (Croatia, Czech Republic, Denmark, Germany, Greece, Iceland, Latvia, Luxembourg, Poland, Spain, United Kingdom). 50 Art 17(1)(a) reads: ‘to ensure that children and young persons, taking account of the rights and duties of their parents, have the care, the assistance, the education and the training they need, in particular by providing for the establishment or maintenance of institutions and services sufficient and adequate for this purpose’. 51 Council of Europe, ‘The right to education under the European Social Charter’, www.coe.int/t/dGHl/ monitoring/Socialcharter/Theme%20factsheets/FactsheetEducation_en.pdf. 52 ECSR Conclusions 2003, France, p 131. 53 ECSR, Conclusions 2008, Vol 1, France, p 325. France has been found not to be in conformity with the Charter because of a length of residence requirement imposed to applicants.

412

Gisella Gori

Art 14 – Right to Education

IV. Other Sources When defining the scope and meaning of the rights contained in the Charter, Article 14.21 52(4) makes reference to the constitutional traditions of the Member States, which have represented one of the sources the European Court of Justice made use of when building its doctrine for the protection of fundamental rights. The Explanations to the Charter underline that the reference to the Member States’ constitutional traditions, however, shall not be held to be the ‘common lowest denominator’, but rather that the Charter’s rights must be interpreted ‘in a way offering a higher standard of protection which is adequate for the law of the Union and in harmony with the common constitutional traditions’. It can be safely affirmed that all the EU Member States’ constitutions provide for a 14.22 right to education comprising an individual right to education and freedom of education.54 The former consists in the right which everyone enjoys to receive free basic education and be granted equal access to all levels of education. Freedom of education further separates into freedom of teaching and freedom to be taught, the latter of which encompasses the freedom of parents and students to choose the education most suitable to their personal convictions. Although differently classified in the different European constitutional traditions (self-executing individual right, droit de créance (FR), diritto soggettivo a prestazione (IT), derecho a dimension prestacional (SP)), the right to education may be considered an individual right only to the extent that it is recognised as the duty of the state to implement it. Government intervention is necessary for this right to become effective and consequently enforceable in courts. This applies also to those constitutional clauses that, by employing the formula ‘everyone has the right to education’, seem to imply its immediate applicability. At compulsory school level the individual right to education means free compul- 14.23 sory primary and lower secondary education provided by the public system. While public authorities are under the duty to provide this education, they are not obliged to satisfy any citizens’ demands for specific education, but to put in place a system compatible with their resources. The provision of state education does not prevent private schools from being established; however, the state cannot rely on the existence of a private sector to remain inactive. In many Member States free primary or compulsory schooling means not only the right of access without charge, but also the provision of what is necessary to children to ensure that education is effective (eg educational materials, food, transportation). As regards upper secondary education and higher education, states generally recognise the right to equal access. This means that states not only are not obliged to satisfy any demand for higher education, but they may also impose fees, limit the offer of education and, accordingly, restrict access on the basis

54 The following analysis is based on constitutional provisions and related case law of a non-exhaustive list of Member States. As a consequence of different constitutional traditions, some constitutions contain very long provisions detailing the right to education (eg Belgium—Art 24, Italy—Art 34, the Netherlands—Art 23, Portugal—Art 74 and Spain—Art 27). Others contain a very short provision which is expanded through legislation (eg Denmark—Art 76, Finland—Sec 13, France, Ireland—Art 42). Due to the fact that the United Kingdom does not have a written constitution, the right to education is in substance statutory.

Gisella Gori

413

Part I – Commentary on the Articles of the EU Charter

of legitimate reasons (numerus clausus), subject however to the condition of providing equality of access. 14.24 Freedom of education consists of freedom of teaching and the freedom to be taught. The former means that teaching must be neutral and not ideologically oriented by the state. This ‘classical’ freedom presupposes a state’s non-interference once the education system has been established and organised through legislative and regulatory power, though it is to be presumed that this implies respect for democratic principles. Freedom to be taught means that pupils and those who care for them, generally their parents, must be free to choose a different education system more suitable to their religious of philosophical convictions than the public should they so wish. This brings along the related freedom to set up private education institutions reflecting these convictions.55 Practically, the state shall leave parents free to educate their children at home or in private schools. Moreover, this choice can be effective only to the extent that it is not influenced by other factors, such as the cost or the availability of services (food, transportation). This shifts the focus on private schooling which presupposes the state’s intervention in terms of provision of a legal framework and, at times, subsidies. These two conditions are necessary for a private school sector to run in parallel with the public system. However, while the state can impose rules that the private sector must comply with in order to be officially recognised and financially supported, it remains responsible for ensuring that private schools respect the basic patterns of public education and the democratic principles. 14.25 The above definitions correspond to what is constitutionally guaranteed in several Member States and what also represents the backbone of the interpretation given to right to education provided by Article 2P1 of the ECHR examined above.

D. Analysis I. General Remarks 14.26 While when analysing Article 14 of the Charter a comparison with Article 2 Protocol 1 of the ECHR is needed, any interpretation of this Charter provision must also take into consideration: (i) the original evolution of a ‘right to education’ proper to the EU legal context as a consequence of the free movement of workers first and European Union citizens afterwards; (ii) the fact that the rights guaranteed by the Charter which are ‘based on’ the Treaties are to be exercised under the conditions and limits imposed by the Treaties (Art 52(2)); and (iii) the transnational nature of the EU right to education, which also brings along some limits to its enjoyment. The combined effect of these three factors is fundamental to understanding the impact that the Charter may have as regards educational rights. The fundamental rights recognised by the Charter are relevant for EU citizens, to the extent that these rights fall within the competence

55 Belgian and Spanish case law are particularly exhaustive on this composite nature of freedom of education. See, respectively, Cour d’Arbitrage, Decision no 18/93, (1993) AIJC 254, and STC 13/2/81, BJC Sistematizada, 1982–1, 29.

414

Gisella Gori

Art 14 – Right to Education

of the Union so that the institutions can take action, which may need further implementation by the Member States. The EU (or rather the Community at the time) has progressively developed a competence to carry out action in the fields of education and vocational training as a consequence of market integration. This competence has been built up step-by-step by the Court of Justice, first, to cover as many situations as possible to facilitate the integration of migrant workers and their families;56 and, second, to include Community nationals moving only for study purposes. Free movement of these students was also justified from the perspective of studies being a preparatory step for their future economic activity.57 However, the strict legal framework imposed on these competences when they have been institutionalised by the Member States in the Maastricht Treaty is the direct consequence of their ‘spill-over’ evolution from economic integration. Indeed to prevent this spill-over from continuing, EU competences, as provided by Articles 165 and 166 TFEU, are, on the one hand, limited since they are merely complementary to those of the Member States, which remain fully responsible for the content and the organisation of their education and vocational training systems.58 On the other hand, economic integration is no longer the engine for development it has been in the past. However, EU citizenship, which meanwhile has become the ‘fundamental status’ enabling equal treatment of EU nationals, has replaced economic integration. Since the consolidation of the Community competences has excluded individual education and training rights from the scope of the new articles, the areas of EU and Member States’ action which may still impact on the right to education are those related to EU citizenship and free movement, as demonstrated by the most recent case law of the Court of Justice.59 This brings in the third factor mentioned above, that is the ‘transnational’ nature 14.27 of the right to education in the EU context. While ‘the rights in question originate at national level’,60 they apply cross-border in reason of the EU legal order and the application of the principle of equal treatment. Member States remain the providers of education, since the EU legal order will most probably never entail such a role for the EU institutions. However, the EU legal order allows EU citizens moving to another Member State to enjoy the same right to education that this state provides to its own citizens. Thus, EU citizens may claim a right to equal access to education in any Member State as a consequence of the prohibition against direct or indirect discrimination on the basis of nationality or other grounds, such as race or ethnicity, age, sexual orientation, etc, imposed by EU law. Therefore, free movement, with all conditions and limitations set

56 In the Casagrande case (n 5), the Court affirmed: ‘Although educational and training policy is not as such included in the spheres which the treaty has entrusted to the Community institutions, it does not follow that the exercise of powers transferred to the Community is in some way limited if it is of such a nature as to affect the measures taken in the execution of a policy such as that of education and training’. 57 In the Gravier case (n 8), the Court affirmed: ‘access to vocational training is in particular likely to promote free movement of persons throughout the Community, by enabling them to obtain a qualification in the Member State where they intend to work’. 58 Case C-73/08 Bressol (n 11) EU action is mainly directed to develop cooperation activities, such as the mobility programmes and exchange of information and experience. 59 Case C-75/11 Commission v Austria (n 18). 60 S O’Leary, ‘The relationship between Community citizenship and the protection of fundamental rights in Community law’ (1995) 32 Common Market Law Review 154.

Gisella Gori

415

Part I – Commentary on the Articles of the EU Charter

by the treaties remains a pre-condition to enjoyment of these rights. In light of Article 52(2), this may imply a limited impact for the Charter.

II. Scope of Application 14.28 In view of the preceding remarks, it follows that the right to education assumes a specific meaning in the EU legal order. On the one hand, as foreseen in the Explanations, Article 14 is based on Article 2P1 and reflects the constitutional traditions of the Member States; but, on the other hand, it is also based on the EU law in reason of its evolution in the EU legal order. Accordingly, if Article 14’s material and personal scope largely overlaps with Article 2P1 ECHR and its case law, it also differs in several aspects. 14.29 As regards the material scope, Article 14 and Article 2P1 ECHR share common features: they both encompass a right to education consisting of an individual right of equal access to all levels of education and to the existing institutions. The respect of the state’s power and duty to organise the education system may be implied from Article 2P1,61 and is explicitly affirmed by Articles 165 and 166 TFEU and reiterated by the Court of Justice case law.62 However, Article 14 also represents the consolidation of the right to education for EU citizens developed in the context of free movement. Accordingly, ‘when exercising the [organisation] power, Member States must comply with European Union law, in particular the provisions on the freedom to move and reside within the territory of the Member States’, and when they guarantee equal access they must comply with the principle of non-discrimination (direct and indirect) on the basis of nationality.63 This implies that, as regards equal treatment for access to education, Article 14 goes beyond what is provided by the ECHR, by reason of the goal of integration which presides over the development of this right in the EU context. Similarly, and as noted in the Explanations, as regards freedom of education under its dimension of freedom to establish private schools, the material scope of Article 14 goes well beyond the Convention through the combined application of the principles regulating freedom of establishment and to provide services, and non-discrimination for nationals of other Member States. However, as regards the respect of the religious and philosophical conviction of parents, which pertains to the organisation of the education system, there is so far no example of involvement of the Court of Justice. It may nonetheless be advanced that such a case could reach the EU jurisdiction in the context of the free movement of a EU citizen claiming that the education system of another Member State to which he/she, or her children, have gained access to, does not respect his/her religious or philosophical convictions. Differences are more visible with respect to the personal scope of these provisions. 14.30 The ECHR applies to all persons under the jurisdiction of the state, and this includes both nationals and non-nationals. Often applications to the ECtHR are introduced

61 The Strasbourg Court’s case law however has openly recognised the role of the state as organiser of the education system; see recently Ponomaryovi (n 32). 62 Case C-73/08 Bressol (n 11) [28]: ‘it should be recalled that whilst European Union law does not detract from the power of the Member States as regards the organizations of their education systems and of vocational training pursuant to Articles 165(1) and 166(1) TFEU’. 63 Case C-73/08 Bressol (n 11) [28]–[29].

416

Gisella Gori

Art 14 – Right to Education

against a state party by its own nationals when they still feel that their human rights have been prejudiced notwithstanding the exhaustion of all internal remedies. However, the personal scope of the Convention is ‘static’ in the sense that Article 2P1 may be invoked only by those people already under the jurisdiction, irrespective of them being nationals or aliens and of the kind of relationship they have with the state. Thus, the Convention does not extend to cover the process of acquiring a status under the jurisdiction of the country.64 Moreover, the state remains sovereign to define who is under its jurisdiction and, as regards access to education, the Court has implied this to require being legally resident. Therefore, Article 2P1 does not allow transnational mobility for study purposes: equal chances to participate to education are provided only once nationals or non-nationals are in the same position. The EU, however, presupposes a cross-border dimension for the right to education 14.31 to become operative. Individual rights are provided by the Member State to which the EU citizen has moved: this implies not only to be non-nationals but also to hold the nationality of a Member State and fulfil certain conditions in order for a right of residence in the host country to be recognised (Directive 2004/38).65 Third-country nationals can also be granted access under certain conditions. Moreover, for a more enhanced equal access, additional lawful residence requirements must be met. Thus, from this perspective it may be argued that the Article 2P1’s personal scope is wider because it also includes residing third country nationals who are not entitled to full equal treatment under EU law.66 Nonetheless, the dynamic approach to individual rights of the EU goes further, as regards substance, than the ECHR system. The EU legal order implies a concept of trans-nationality which overcomes the boundaries of states and obliges all Member States to grant to EU citizens, without discretion, the same protection they afford to their own citizens. Enhanced lawful residence requirements come into play when it is a question of 14.32 access to financial assistance or non-contributory social benefits. The case law described in section A demonstrates that the Court of Justice is ready to continue to substantiate a right to education providing for equal treatment on the basis of the EU Treaty provisions on EU citizenship and free movement and a flexible approach to the interpretation of secondary legislation implementing these provisions.67 The more open interpretation of the ‘permanent residence’ requirement of Article 24 of Directive 2004/38 in Bidar was tightened in Förster. In the former case, the Court considered the national requirement of ‘permanent residence’ to be satisfied by the student’s degree of integration in the society as resulting from the three-year long lawful residence and the fact that the applicant had received a substantial part of his secondary education in that same state. In the latter case, a pre-set ‘five years residence’ criterion provided by secondary legislation was held

64

Some case law relative to Art 8 ECHR seems however to contradict this. These are the requirements: (i) to be enrolled at a private or public establishment for the principal purpose of following a course of study, including vocational training; (ii) to have comprehensive sickness insurance; (iii) to have sufficient resources for themselves and their families not to become a burden on the social assistance system of the host Member State. 66 See the EU legislation concerning third country nationals’ access to education, referred to in section A above. 67 In Case C-73/08 Bressol (n 11) [33] the Court affirmed: ‘Students … may rely on the right enshrined in Articles 18 and 21 TFEU to move and reside freely within the territory of a Member State, without being subject to direct or indirect discrimination on the basis of nationality’. 65

Gisella Gori

417

Part I – Commentary on the Articles of the EU Charter

a reasonable and certain requirement to gain access to maintenance grants. However, the Court has subsequently struck the balance between treaty provisions and secondary legislation in favour of the former, thereby reaffirming the predominance of citizenship and free movement to ensure equal treatment for students.68 14.33 Finally, the scope of Article 14 is defined by Article 51(1), which horizontally restraints the Charter’s application to the action of: (i) the institutions and bodies of the Union, and (ii) the Member States ‘only when they are implementing Union law’. Institutional action can only remotely infringe this right since the right to education in the EU legal context exists primarily as a transnational right and the Member States retain intact their competence as providers of education. Institutions’ action, nonetheless, can infringe this right indirectly in case of legislation regulating free movement and residence in the following two circumstances: (i) when the legislation in question is contrary to the current meaning of this right in the EU context; and (ii) when the legislation in question goes against the Court of Justice’s case law relating to financial assistance for students (an area which is more developed under EU law). From this perspective, the Förster case could be looked at as a ‘missed opportunity’ for the Court to reaffirm its criterion of ‘a certain degree of integration in the society’ to prevail over the clear-cut five-year long residence requirement imposed by Directive 2004/38. 14.34 Member States’ action can more easily infringe the right to education when transposing or derogating from EU law related to freedom of movement and residence in a way that is contrary to the body of case law examined above.

III. Specific Provisions 14.35 Article 52(3) of the Charter provides for the overall coherence between the two instruments protecting fundamental rights, that is the ECHR and the Charter itself. In accordance with this provision, when the Charter rights correspond to ECHR provisions, ‘the meaning and scope of those rights shall be the same as those laid down by the same Convention’. Article 52(3) aims at providing, at the same time, a ‘lower’ benchmark which cannot be breached without preventing the Union from providing a broader protection of any fundamental right. The Explanations to Article 52 to the Charter at point 2 indicate that correspondence while clarifying that the scope of Article 14 is broader as a result of the inclusion of vocational training.69 The positive formulation of paragraph 1 in comparison with Article 2P1 ECHR 14.36 does not make a difference, since the ECtHR has interpreted the Convention provision as entailing a positive individual right to access to the education provided by the States parties to the Convention. Article 14 reflects Article 2P1 and also codifies the jurisprudential evolution of the EU rights to education elaborated taking as a starting point the right of migrant workers and their family to equal treatment and culminating

68 In Case C-75/11 Commission v Austria (n 18) the Court held that Art 24(1) of Directive 2004/08 specifies Art 18 TFEU. 69 The Explanations to Art 52 read: ‘Articles where the meaning is the same as the corresponding Articles of the ECHR, but where the scope is wider … Article 14(1) corresponds to Article 2 of the Protocol to the ECHR, but its scope is extended to cover access to vocational and continuing training, Article 14(3) corresponds to Article 2 of the Protocol to the ECHR as regards the rights of parents’.

418

Gisella Gori

Art 14 – Right to Education

with students’ freedom of movement inasmuch as EU citizens through the extensive interpretation of vocational training. In a nutshell, the material scope of the EU right to education, currently, consists of (i) the right to access to education and vocational training, ie the right to study, train and research in another country of the EU under the same conditions as the nationals of the host country; (ii) the right of residence in that country, at least, for the length of the study course; and (iii) ancillary social rights, such as social security cover and certain social benefits, maintenance aid and maintenance grants. The provision of educational services in another Member State is also contemplated, as well as the establishment of private schools. Thus, as allowed by Article 52(3), Article 14 provides for a more extensive protection 14.37 pertaining to the specific nature of the EU integration process and not only with regard to vocational trining as mentioned in the Explanations. More precisely, paragraphs 1 and 2 mean that, when moving to another Member States, EU citizens enjoy the right to receive free basic compulsory education and to be granted equal access to all level of education. In the words of the Court of Justice, ‘the opportunity to gain equal access to [higher] education represents the very essence of the principle of free movement for students’.70 The Gravier jurisprudence explains why access to vocational training is contemplated by paragraph 1, while the progressive recognition of equal treatment as regards fees, maintenance grants, and other measures facilitating attendance explains paragraph 2’s reference to the possibility of free compulsory education. Paragraph 3 of Article 14 provides for freedom of education. While the component 14.38 of this freedom related to the possibility of running private schools without discrimination has been recognised in the EU context, the reference to the respect for the religious and philosophical convictions of parents is innovative. As abundantly demonstrated by the ECtHR case law, this respect touches the core of any education system since it relates to its organisation. The fact that the EU itself cannot deal with such dimension of education, because it does not have the competence to do so, explains the reason for making reference to national laws governing the issue. Indeed, Article 51(2) of the Charter explicitly excludes that this document enlarges the EU’s competences. This does not exclude however that the Court could, one day, be called upon to decide about the respect of educational choices of EU citizens in a host Member State in terms of non-discrimination.

IV. Limitations and Derogations The overarching limitation to the interpretation of the right to education provided by 14.39 Article 14 follows from Article 52 of the Charter. The right to education in fact falls under the scope of both paragraphs 2 and 3 of that provision: Article 14 corresponds prima facie to Article 2P1 of the Convention, but, because of its evolution in the EU legal order, to the extent that it is linked to the free movement of EU citizens, it is also a right which is ‘based on the Community Treaties and the Treaty on European Union’. It follows from this ‘double nature’ that the right to education must be exercised ‘under the conditions and within the limits defined by those Treaties’. It has been amply

70

Case C-73/08 Bressol (n 11) [79].

Gisella Gori

419

Part I – Commentary on the Articles of the EU Charter

demonstrated in the previous paragraphs what these conditions and limits are. More specifically, the actual limitations applicable to the right to education for EU nationals follow from the residence restrictions imposed by the secondary legislation, in particular Directive 2004/38 (see section A). 14.40 As a rule, freedom of movement of EU citizens may be derogated when justified on grounds of public policy, public security, and public health and the derogatory measures must be appropriate, proportional to the goal to achieve, and comply with the fundamental rights of the individual subject to them.71 The Court of Justice has applied its traditional doctrine also to the free movement of students in relation to equal access to higher education and vocational training. When considering national legislation restricting access, the Court has affirmed that these restrictions must be ‘limited to what is necessary in order to obtain the objectives pursued and must allow sufficiently wide access by the students to higher education’.72 In the Bressol case, Belgium claimed that an influx of students from other Member States was deemed to put at risk the quality of the training and the long-term quality of the health system. The Court concluded that the Belgian legislation imposing restrictions on the enrolment for the first time of nonresident students in medical and paramedical courses was incompatible with Articles 18 and 21 TFEU unless justified by the objective of protection of public health.73 14.41 The Court of Justice, on the contrary, has not recognised as applicable to teachers any derogation to freedom of movement of workers in reason of participation to employment in the public service. Starting from the status of trainee-teacher, the Court has progressively affirmed that the provisions of free movement of workers cover all kinds of teaching activities.74 According to the Court, employment in the public service means ‘those posts which involve direct or indirect participation in the exercise of powers conferred by public law and in the discharge of functions whose purpose is to safeguard the general interest of the State or of other public authorities and which therefore requires a special relationship of allegiance to the State on the part of persons occupying them and reciprocity and duties which form the foundation of the bond of nationality’.75 Teaching activities would not fall under this definition.

V. Remedies 14.42 Most of the evolution of the EU’s competence in relation to education and vocational training has occurred through the case law of the Court of Justice via preliminary rulings or inter-institutional litigation. Thus, the EU offers an indirect protection of

71 See Cases: 36/75 Rutili [1975] ECR 1219; C-260/89 ERT [1991] ECR I-2925; and C-368/95 Familiapress v Bauer [1997] ECR I-3689. 72 Case C-73/08 Bressol (n 11) [79]. 73 The Court analysed at length the arguments presented by the Belgian government, thereby providing detailed guidelines to the national court as to how to strike the balance between the two competing objectives. 74 See Cases: 66/85 Lawrie-Blum v Land Baden-Wurttemberg [1986] ECR 2121; 33/88 Allué and Coonan v Universitá degli Studi di Venezia [1989] ECR 1612 (university foreign language assistants); C-4/91 Bleis v Ministère de l’Education Nationale [1991] ECR I-5627 (secondary school teacher); and C-290/94 Commission v Greece [1996] ECR I-3285 (all teaching activities). 75 Case Lawrie-Blum (n 74) [27].

420

Gisella Gori

Art 14 – Right to Education

the right to education because it is for the national court to deal with any national proceeding and refer an issue to the EU Court in the form of a preliminary ruling. It is also for the national jurisdiction to take the final decision. Therefore, it may be assumed that litigation on national legislation implementing treaty provisions or secondary legislation dealing with the equal access to education and vocational training before the Court of Justice would continue to be the main venue for redress. From this perspective the Charter does not provide an additional remedy because it applies to the action of the EU institutions and bodies and to the Member States when implementing EU law. Given the fact that competence to provide education remains with the states, and that the EU competences in this respect are limited to favouring cooperation, Article 14 would become relevant mainly in litigation concerning freedom of movement and equal treatment, most probably in combination with Article 45 of the Charter.

E. Evaluation Since the drafters of the Charter have been particularly careful in laying down clear 14.43 limitations to the potential impact of the Charter by way of reference to the existing conditions and limits defined by the treaties (Art 52(2), where the Charter rights are based on the Treaties), the legal framework of the EU notion of the right to education has been determined from the outset. While in the past the Court of Justice did not refer to the right to education as a general principle of Community law to ensure its protection in the EU legal order, but rather protected it within the scope of free movement, it could now do so because the Charter represents the binding catalogue of EU fundamental rights. However, as witnessed by case law following the entry into force of the Lisbon Treaty,76 the Court of Justice is rather continuing to afford protection of the right to education in connection with the likewise fundamental freedoms of free movement and residence of EU citizens. Thus, the Charter does not challenge how the right to education has been, and may continue to be protected in the EU context. It is the state which must establish an education system, make it accessible to everyone, and ensure the enforceability of the right to education. The EU legal order recognises this state power and ensures the equality of treatment for EU citizens with respect to access to the national education systems and to the related benefits. However, if the state were to remain inactive, the EU would be powerless since the organisation of education lies outside its competence as foreseen in Articles 165 and 166 TFEU. Nonetheless, qualifying the educational rights as developed in the EU context as com- 14.44 posing a fundamental right to education for EU citizens advances the recognition of the relevance of European integration to the individuals. Even if it does not add substance to the right itself, it stand to witness that the integration process has made it possible for EU citizens, through the principle of equal treatment, to enjoy rights otherwise beyond their reach. It is fairly safe to conclude that no major developments will occur as a consequence 14.45 of the Charter in respect of the right to education. The Charter could rather help with 76

Case C-75/11 Commission v Austria (n 18).

Gisella Gori

421

Part I – Commentary on the Articles of the EU Charter

the refinement of the so-called ‘ancillary rights’ to the right to education, such as equal access to social benefits, maintenance aid and grants, etc. As it is the case in general for the catalogue of rights provided by the Charter, Article 14, alone or in combination with Article 45, could serve the role of providing an additional legal benchmark against which to check EU institutions’ legislation and Member States’ related implementation to guarantee equal access to education and training. It is surprising that the Court has not seized the occasion of the first post-Lisbon case dealing with education to recognise this role for Article 14.

422

Gisella Gori

Article 15 Article 15 Freedom to Choose an Occupation and Right to Engage in Work 1. Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation. 2. Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State. 3. Nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union.

Text of Explanatory Note on Article 15 Freedom to choose an occupation, as enshrined in Article 15(1), is recognised in Court of Justice case law (see inter alia judgment of 14 May 1974, Case 4/73 Nold [1974] ECR 491, paragraphs 12 to 14 of the grounds; judgment of 13 December 1979, Case 44/79 Hauer [1979] ECR 3727; judgment of 8 October 1986, Case 234/85 Keller [1986] ECR 2897, paragraph 8 of the grounds). This paragraph also draws upon Article 1(2) of the European Social Charter, which was signed on 18 October 1961 and has been ratified by all the Member States, and on point 4 of the Community Charter of the Fundamental Social Rights of Workers of 9 December 1989. The expression ‘working conditions’ is to be understood in the sense of Article 156 of the Treaty on the Functioning of the European Union. Paragraph 2 deals with the three freedoms guaranteed by Articles 26, 45, 49 and 56 of the Treaty on the Functioning of the European Union, namely freedom of movement for workers, freedom of establishment and freedom to provide services. Paragraph 3 has been based on Article 153(1)(g) of the Treaty on the Functioning of the European Union, and on Article 19(4) of the European Social Charter signed on 18 October 1961 and ratified by all the Member States. Article 52(2) of the Charter is therefore applicable. The question of recruitment of seamen having the nationality of third States for the crews of vessels flying the flag of a Member State of the Union is governed by Union law and national legislation and practice.

Select Bibliography P Alston, ‘The General Comments of the UN Committee on Economic, Social and Cultural Rights’ (2010) 104 Proceedings of the Annual Meeting (The American Society International Law) 4–7. D Ashiagbor, ‘The Right to Work’ in G de Búrca and B de Witte (eds), Social Rights in Europe (Oxford, OUP, 2005). ——, The European Employment Strategy: Labour Market Regulation and New Governance (Oxford, OUP, 2005). M Bell, ‘Walking in the Same Direction? The Contribution of the European Social Charter and the European Union to Combating Discrimination’ in G de Búrca and B de Witte (eds), Social Rights in Europe (Oxford, OUP, 2005).

Part I – Commentary on the Articles of the EU Charter

M Craven, The International Covenant on Economic, Social and Cultural Rights: A perspective on its development (Oxford, Clarendon Press, 1998). J Elster, ‘Self-realization in Work and Politics: the Marxist Conception of the Good Life’ (1986) Social Philosophy & Policy 97–126. ——, ‘Is there (or should there be) a right to work?’ in A Gutmann (ed), Democracy and the Welfare State (Princeton, Princeton University Press, 1988). B Hepple, ‘A Right to Work?’ (1981) 10(1) Industrial Law Journal 65–83. D Little, ‘Job Elster’ in W Samuels (ed), New Horizons in Economic Thought: Appraisals of Leading Economists (Cheltenham, Edward Elgar Publishing, 1992). S Marks and A Clapham, International Human Rights Lexicon (Oxford, OUP, 2005) ch 28: Work. G Mundlak, ‘The right to work: Linking human rights and employment policy’ (2007) 146(3–4) International Labour Review 189–215. B Stråth, ‘The Concept of Work in the Construction of Community’ in B Stråth (ed), After Full Employment: European Discourses on Work and Flexibility (Brussels, PIE-Peter Lang, 2000). A Supiot et al, Beyond Employment: Changes in Work and the Future of Labour Law in Europe (Oxford, OUP, 2001).

A. Article 15 and the Scope of EU Law 15.01 The freedom to choose an occupation and the right to engage in work find a ready application within EU law. As the Explanations acknowledge, from its earliest jurisprudence in which the Court sought to reassure national courts that the fundamental rights contained in national constitutions were also protected within the Community legal order, the Court has affirmed that EU law respects the right freely to choose and practice one’s trade or profession—initially in the context of the right to the free pursuit of business or economic activity.1 However, the Court also acknowledged in Nold that, within the Community legal order, such rights freely to choose and practice one’s trade or profession should, if necessary, be subject to limits justified by the overall objectives pursued by the Community, on condition that the substance of the rights is untouched.2 15.02 These early cases highlight the application of the right now enshrined in Article 15 to constrain Community legislative and administrative action, granting individuals a right which was enforceable as against institutions of the Community. This is exemplified in Hauer,3 in which it was argued that the prohibition on new vine plantings imposed by Commission regulation infringed the applicant’s fundamental freedom to pursue her occupation as a wine-grower; and in Keller, where it was argued that Council Regulations limiting the terminology which German producers could use to describe their table wines were incompatible with the freedom to pursue their trade, guaranteed in the Grundgesetz (the German Basic Law).4 15.03 However, Article 15 has a supplementary field of application: it interacts with the ‘personal’ freedoms which are so central to the internal market, and are now contained

1 2 3 4

424

Case 4/73 Nold [1974] ECR 491 [12]–[14]. Ibid. Case 44/79 Hauer [1979] ECR 3727 [31]–[32]. Case 234/85 Keller [1986] ECR 2897 [8].

Diamond Ashiagbor

Art 15 – Freedom to Choose an Occupation

in Articles 26, 45, 49 and 56 of the Treaty on the Functioning of the European Union— freedom of movement for workers, freedom of establishment and freedom to provide services. These two dimensions of the right to work can be seen in the way in which the sepa- 15.04 rate sub-sections of Article 15 are addressed to different beneficiaries. First, the broadest manifestation of the right to work, enjoyed by ‘everyone’, is the right to engage in work and to pursue a freely chosen occupation (Art 15(1)). In addition, for EU citizens, this right also entails the more specific freedom to engage in cross-border economic activity as a worker, self-employed person or service provider, conferred by the TFEU and reflected in Article 15(2). The Court of Justice has long used the terminology of ‘fundamental’ to refer to the economic freedoms; with Article 15(2) these freedoms are now also conceptualised as fundamental rights. So, a defining feature of the right to work in Article 15 is that it very much reinforces the freedom of EU citizens, as natural persons or in the guise of a legal person, to be economically active across the territory of EU Member States. In contrast, the right of third country nationals to work and to choose an occupa- 15.05 tion does not encompass rights to free movement between Member States. However, as Article 15(3) makes clear, their human rights also have a specifically EU dimension in that, once they acquire authorisation to work within a Member State, they are to be granted equivalent treatment to EU citizens in respect of their working conditions.

B. Interrelationship of Article 15 with Other Provisions of the Charter The freedom to choose, which is at the heart of Article 15, encapsulates a right to self- 15.06 determination when it comes to one’s economic activities. Accordingly, Article 15 most clearly resonates with Article 1 of the Charter, on human dignity, in keeping with the argument that self-realisation through work is an integral part of self-respect.5 The right to work links to the concept of dignity in another sense: that the content of the work must be dignified or decent. Related to this notion of choice and self-determination is Article 5 of the Charter, which prohibits slavery and forced labour: the compulsion to engage in labour, or the condition of servitude would be egregious breaches of the principle in Article 15. Equally, Article 15 also resonates strongly with Article 16 of the Charter, which pro- 15.07 tects freedom to conduct a business—and indeed, both Articles are based on case law in which the Court recognised the freedom to exercise an economic or commercial activity.6 As noted above, a defining feature of the right to work in Article 15 is that it supplements cross-border rights conferred by primary and secondary EU law. So Article 15(2) restates the ‘economic freedoms’ conferred by the TFEU on EU citizens who are economically active.7 In addition, Article 15 can be seen as complementing Article 45

5 6 7

See discussion in section D below. Nold (n 1). Ie freedom of movement for workers, freedom of establishment and freedom to provide services.

Diamond Ashiagbor

425

Part I – Commentary on the Articles of the EU Charter

of the Charter, which restates Article 21 TFEU to confer on every EU citizen the right to move and reside freely within the territory of the Member States. According to the Court, a logical component of this right of citizens to move freely is that they also enjoy a right to work: in Collins, the Court noted that EU citizens are entitled to equal treatment with nationals not only in respect of access to work, but also with regard to the social and tax advantages associated with such employment.8 Related to this, a right to work is conferred on family members of EU citizens who have the right of residence in a Member State.9 15.08 However, the right to work encompasses more than freedom from coercion or freedom of occupation. The right to work in the broader sense entails a more positive dimension— the right to have work (which suggests a concomitant duty on the state or on employers to provide work) and rights in work or at work such that the work is dignified or decent, what one might think of as the job security and ‘fair working conditions’ aspect of the right to work. As the UN Committee on Economic, Social and Cultural Rights asserts: Work as specified in article 6 of the Covenant [the International Covenant on Economic, Social and Cultural Rights] must be decent work. This is work that respects the fundamental rights of the human person as well as the rights of workers in terms of conditions of work safety and remuneration.10

15.09 If one considers Article 15 as enshrining a right to be economically active in the labour market, then it presupposes a right to access employment without being arbitrarily excluded, and a right not to be deprived of work without some form of due process. Hence, we can see Article 15 interacting also with the articles of the Charter dealing with non-discrimination rights, and with protection from unjustified dismissal. With regard to non-discrimination in employment, there is already a long tradition—as seen in the interpretation of the European Social Charter—linking prohibition of discrimination in respect of access to employment with the overall right to engage in work and to pursue a freely chosen occupation. The Preamble to the original European Social Charter of 1961 provides that ‘the enjoyment of social rights should be secured without discrimination on grounds of race, colour, sex, religion, political opinion, national extraction or social origin’. However, prior to the revision of the European Social Charter in 1996, it lacked an express prohibition of discrimination in employment. Accordingly, the European Committee of Social Rights sought to interpret the right to earn one’s living in a freely chosen occupation (Article 1(2) ESC) also as a mechanism to enable it to assess the extent to which a state combated sex discrimination in employment. Given that discrimination would prevent the free choice of occupation, states were held to be under a duty to prohibit discrimination.11 15.10 However, following the introduction of a horizontal commitment to non-discrimination and specific anti-discrimination provisions in the Revised European Social Charter

8

Case C-138/02 Collins [2004] ECR I-2703. Art 23 of Directive 2004/58/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (Corrected version) [2004] OJ L229/35. 10 UN Committee on Economic, Social and Cultural Rights: General Comment No 18, The Right to Work, adopted 24 November 2005, E/C.12/GC/18 6 February 2006; para 7. 11 Cases 117/76 and 16/77 Ruckdeschel v Council [1977] ECR 1753, Rec 7 of judgment. See M Bell, ‘Walking in the Same Direction? The Contribution of the European Social Charter and the European Union to Combating Discrimination’ in G de Búrca and B de Witte (eds), Social Rights in Europe (Oxford, OUP, 2005). 9

426

Diamond Ashiagbor

Art 15 – Freedom to Choose an Occupation

(Arts 20 and 27 Revised ESC), the European Committee of Social Rights modified its approach such that for States which had ratified both ESC Articles 1(2) and 20 it would no longer deal with discrimination based on sex under Article 1(2) but, more logically, under Article 20 of the Revised European Social Charter.12 A similar linkage between non-discrimination and the right to work can be seen in the 15.11 context of the EU Charter, and in particular with regard to Articles 21 and 23 of Title III on Equality. Article 21 specifies the grounds on which discrimination is prohibited, providing for an open-ended list of protected grounds by using the formulation ‘Any discrimination based on any ground such as …’. Article 23, with a focus solely on gender equality, makes clear the wide scope of the equality guarantee, extending the gender equality guarantee to ‘all areas’ including employment, work and pay. Related to the right to work, must surely come the recognition of the importance of 15.12 respecting rights in work or at work. Indeed, as will be seen below, Article 23(1) of the Universal Declaration of Human Rights juxtaposes the right to work, to free choice of employment with the right to just and favourable conditions of work and to protection against unemployment, treating these rights as inter-dependent. Similarly, the failure to protect workers against unlawful dismissal could well amount to a breach of Article 15. The right to protection from unjustified dismissal in Article 30 of the Charter is a provision which can be seen as a necessary corollary of the right to work, in two respects: first, dismissal deprives an individual of the ability to exercise their freely chosen occupation; second, dismissal without good cause diminishes the quality of the chosen work. Article 15 also chimes with Article 32 of the Charter on the prohibition of child 15.13 labour and protection of young people at work: the two provisions are mutually reinforcing, although they approach the same issue in different ways. Article 32 is motivated by a concern to protect children from economic exploitation, whilst Article 15 focuses on work being freely chosen. In the same way that slavery or forced labour would be an anathema to the right to work, so the exposure of children to work which is likely to interfere with their development or physical or mental health, or which is exploitative economically, would likewise run contrary to the principles underpinning Article 15.

C. Sources of Article 15 Rights I. European Social Charter The European Convention makes no express reference to the right to work, in contrast 15.14 to the Council of Europe’s other human rights instrument, the European Social Charter, where the right to work is prominently featured in Article 1. Indeed, as the Explanations note, Article 15 draws upon Article 1(2) of the European Social Charter, which states that the Contracting Parties undertake ‘to protect effectively the right of the worker to earn his living in an occupation freely entered upon’. But it is significant that the EU Charter roots Article 15 within the freedom, recognised in Article 1(2) ESC, to choose

12 D Ashiagbor, ‘The Right to Work’ in G de Búrca and B de Witte (eds), Social Rights in Europe (Oxford, OUP, 2005) 252–53.

Diamond Ashiagbor

427

Part I – Commentary on the Articles of the EU Charter

one’s economic activities, rather than in the other ESC subsections which locate the right to work in the idea of access to, and availability of, work. So, the most prominent dimension of the ESC’s understanding of the right to work—namely, the right to have work made available, implying a duty on the state to provide work—is missing from the EU’s version of this right.13 15.15 Indeed, whilst the Article 15 right to work is deliberately not directed at any particular duty-holder (‘Everyone has a right to engage in work …’), in contrast the chapeau to Article 1 ESC refers to the Contracting Parties, underlining that it is the duty of states to ensure realisation of the right to work. Article 1(1) of the European Social Charter refers to the obligation on the state to maintain ‘as high and stable a level of employment as possible, with a view to the attainment of full employment’; and Articles 1(3) and 1(4) provide for the state’s duties in respect of ‘free employment services’ for all workers, and with regard to provision of vocational guidance, training and rehabilitation.14 The European Committee of Social Rights has deemed the right to work to be of 15.16 ‘fundamental importance’ since the effective exercise of several essential rights contained in the European Social Charter—rights to just conditions of work, to safe and healthy working conditions, to fair remuneration and to organise and bargain collectively—is ‘inconceivable unless the right to work is guaranteed first’.15 Although the focus in the ESC is on making work available for those who are seeking it, in interpreting the obligation imposed on states, the European Committee of Social Rights has been careful not to equate the right to work with a duty on states to guarantee a job for everyone who wants one.16 Rather, the Committee understands the objective of full employment in Article 1(1) as requiring states to adopt a coherent employment policy which aspires to full employment. Accordingly, even ‘a large increase in the rate of unemployment would not prevent the Committee from concluding that the Charter was being satisfied, so long as a substantial effort is made to improve the labour market situation’.17 15.17 In time, the European Committee of Social Rights has come to the more nuanced assessment that it is not possible to judge states’ compliance with Article 1(1) ESC solely by reference to unemployment statistics. What is called for is for states to supply information on a greater range of unemployment, employment and labour market policy indicators18—a move towards governance by guideline, an indicator-based method of evaluating compliance with Article 1(1) ESC which strongly echoes the evolution of the EU employment strategy.19 Thus, the focus in the European Social Charter on the right to work as placing states under an obligation to implement active labour market policies and to strive towards full employment is mirrored in EU employment policy and the Lisbon agenda, rather than in the Charter or within human rights discourse.

13 The understanding of the right to work in the ILO adopts a similar approach to that found in the European Social Charter; see below. 14 See Ashiagbor, in this volume, on Art 29 right of access to placement services. 15 Council of Europe, European Committee of Social Rights, Conclusion I (First supervision cycle, 1969–70, Denmark, Germany, Italy, Ireland, Sweden, Norway, United Kingdom), 13. 16 Council of Europe, European Social Charter: A Short Guide, 2000, 119. 17 Council of Europe, European Committee of Social Rights, Conclusions III, (1973, Austria, Cyprus, Denmark, France, Germany, Ireland, Italy, Norway, Sweden, United Kingdom) 3. 18 Council of Europe, European Committee of Social Rights, Conclusions XIV-1 (1998) 33–34. 19 See D Ashiagbor, The European Employment Strategy: Labour Market Regulation and New Governance (Oxford, OUP, 2005).

428

Diamond Ashiagbor

Art 15 – Freedom to Choose an Occupation

II. UN Treaties Article 23(1) of the Universal Declaration of Human Rights provides that ‘Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.’ Several UN legal instruments recognise the right to work as a fundamental right. In particular, Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), deals with this right arguably more comprehensively than any other instrument. There is a range of jurisprudence, offering guidance in the construction of the right to work, including the Draft Optional Protocol to the ICESCR,20 and the General Comment on the right to work.21 The UN Committee on Economic, Social and Cultural Rights issued a General Comment on Article 6 of the ICESCR on the right to work. Whilst not legally binding, the General Comments issued by the Committee carry ‘considerable legal weight’.22 As Alston notes, the Committee seeks to maximise the value of its General Comments by making them ‘relatively detailed, closely aligned to the text of the Covenant, and overtly interpretative’,23 with Article 6 being interpreted as ‘laying down specific legal obligations rather than a simple philosophical principle’.24 As Mundlak notes,25 the General Comment emphasises ‘relatively non-controversial claims’, interpreting the right to require the prohibition of slavery, identifying the right with the prohibition of labour market discrimination, and also placing the right in the context of ‘active’ labour market institutions.26 In addition, the right to work is recognised in the following UN instruments: — Article 8 paragraph 3(a) of the International Covenant on Civil and Political Civil Rights (ICCPR); — Article 5 paragraph (e)(i) of the International Convention on the Elimination of All Forms of Racial Discrimination; — Article 11 paragraph 1(a) of the Convention on the Elimination of All Forms of Discrimination against Women; — Article 32 of the Convention on the Rights of the Child; and — Articles 11, 25, 26, 40, 52 and 54 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

20 Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights and the Report of the open-ended working group to consider options regarding the elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. 21 UN Committee on Economic, Social and Cultural Rights, General Comment No 18, The Right to Work, adopted 24 November 2005, E/C.12/GC/18 6 February 2006. See G Mundlak, ‘The right to work: Linking human rights and employment policy’ (2007) 146(3–4) International Labour Review 189–215. 22 M Craven, The International Covenant on Economic, Social and Cultural Rights: A perspective on its development (Oxford, Clarendon Press, 1998) 91. 23 P Alston, ‘The General Comments of the UN Committee on Economic, Social and Cultural Rights’ (2010) 104 Proceedings of the Annual Meeting (The American Society International Law) 4–7. 24 UN Committee on Economic, Social and Cultural Rights, General Comment No 18 (n 21), p 2. 25 Mundlak (n 21). 26 For further analysis of the right to work in the context of employment policy, see Ashiagbor (n 12).

Diamond Ashiagbor

429

15.18

15.19

15.20

15.21

15.22

Part I – Commentary on the Articles of the EU Charter

III. Other Sources 15.23 A number of regional instruments recognise the right to work in its general dimension, including, as already discussed, the European Social Charter of 1961 and the Revised European Social Charter of 1996 (Part II, Art 1); the African Charter on Human and Peoples’ Rights (Art 15); and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Art 6). All these instruments affirm the principle that respect for the right to work imposes on states parties an obligation to take measures aimed at the realisation of full employment.27 15.24 Article 15 of the African Charter focuses on the right to work ‘under equitable and satisfactory conditions’, and to receive equal pay for equal work, whilst the Additional Protocol to the American Convention talks of the right to work as including ‘the opportunity to secure the means for living a dignified and decent existence by performing a freely elected or accepted lawful activity’. The latter instrument in particular highlights the notion of the right to work as an essential means for realising other human rights, and as inherent and integral to human dignity.

D. Analysis I. General Remarks 15.25 Is the right to work an economic freedom or an obligation of the state? Or is the right to work better conceived as an inseparable part of human dignity, allowing individuals to attain self-realisation, on the basis that meaningful work is a prerequisite for self-respect?28 15.26 Article 1(1) of the European Social Charter would have it that the right to work is best understood as an obligation of the state (to maintain a high and stable level of employment); whilst Article 1(2) highlights the economic freedom aspect (the right of the worker to earn his or her living). And it is Article 1(2) ESC on which Article 15 of the EU Charter is based. Whilst recognising the economic freedom aspect of the right to work, much of the interpretative focus of the European Social Charter has been on the right in the context of the obligation of the state to provide work, and of the struggle for full employment. In contrast, Article 15 of the EU Charter makes no mention of full employment or the duty of the state to provide employment; the core of the right to work in is located in the freedom to earn a living in a freely chosen occupation,29 coupled with the free movement rights granted to those who are also EU citizens. 15.27 What is clear is that the right to work as contained in Article 15 has a relatively narrow theoretical base and justification, when compared with the way in which the right to work is recognised in ILO, Council of Europe or UN instruments. Whilst Article

27

UN Committee on Economic, Social and Cultural Rights, General Comment No 18 (n 21). D Little, ‘Job Elster’ in W Samuels (ed), New Horizons in Economic Thought: Appraisals of Leading Economists (Cheltenham, Edward Elgar Publishing, 1992). 29 Ashiagbor (n 12), 242. 28

430

Diamond Ashiagbor

Art 15 – Freedom to Choose an Occupation

15 places emphasis primarily on one dimension of the right to work—the freedom to engage in a freely chosen occupation, the economic freedoms of market actors/EU citizens and some third country nationals—elsewhere, there is a clearer articulation of a number of distinct but interdependent elements of the right to work. The UN Committee on Economic, Social and Cultural Rights identifies three elements: availability, accessibility and acceptability/quality of work. By availability, is understood the need for states to have in place specialised services to assist and support individuals to find employment: this much is reflected in Articles 1(3) and 1(4) of the ESC which place an obligation on contracting parties to establish or maintain free employment services, and systems of vocational guidance or training. Accessibility of work requires measures to prohibit discrimination in entry to the labour market or particular jobs; whilst acceptability and quality speak to the need to guarantee just and favourable working conditions.30 The focus on the availability of work in the European Social Charter is equally central 15.28 to ILO Convention No 122, Employment Policy (1964), Article 1(2) of which similarly locates the right to work in the context of overcoming unemployment, aspiring towards full employment, and the duty on states to maintain an employment policy which strives to make work available for those seeking it. All of these dimensions are underpinned, within the ILO and the UN, by an emphasis on the intrinsic value of work to the individual in much the way that Jon Elster would recognise, namely, as a means to self-realisation.31 One example is the Preamble to ILO Convention No 168, which emphasises: the importance of work and productive employment in any society not only because of the resources which they create for the community, but also because of the income which they bring to workers, the social role which they confer and the feeling of self-esteem which workers derive from them.32

II. Scope of Application The right to work is addressed to ‘Everyone’, a more generous personal scope than 15.29 other rights connected to the right to work: for example, the right to protection against unjustified dismissal in Article 30 is addressed to ‘Every worker’, as is the right in Article 31(2) to limits on working hours and to annual leave. The breadth of the main provision, in Article 15(1) is reinforced by the more particular specification of beneficiaries in Articles 15(2) and 15(3): explicit mention is made of the rights of third country nationals authorised to work in the territories of the Member States to working conditions which are equivalent to those of citizens of the Union. Thus the related right to equal treatment in work enjoys a narrower personal scope than the basic right to work.

30

UN Committee on Economic, Social and Cultural Rights, General Comment No 18 (n 21), para 12. J Elster, ‘Is there (or should there be) a right to work?’ in A Gutmann (ed), Democracy and the Welfare State (Princeton, Princeton University Press, 1988); J Elster, ‘Self-realization in Work and Politics: the Marxist Conception of the Good Life’ (1986) Social Philosophy & Policy 97–126. 32 ILO Convention 168, Employment Promotion and Protection against Unemployment Convention, 1988. 31

Diamond Ashiagbor

431

Part I – Commentary on the Articles of the EU Charter

And, as can be expected from EU internal market and citizenship law, only EU citizens have the economic freedom to operate as workers, self-employed persons, to exercise the right of establishment or to provide services in any Member State. 15.30 Article 52(3) of the Charter provides that in so far as the Charter contains rights which correspond to rights guaranteed by the European Convention of Human Rights, the meaning and scope of those rights shall be the same as those laid down by the ECHR. The other international statements of rights on which the Charter draws in its preamble, including the European Social Charter, do not benefit from a similar interpretive provision. Bob Hepple argues, by analogy with the respect granted to the jurisprudence of the European Court of Human Rights, that interpretations by the European Committee of Social Rights under the ESC should be of at least persuasive value.33

III. Specific Provisions 15.31 As the Explanations make clear, Article 15(3) is based on Article 153(g) TFEU, which empowers the Union to support and complement the activities of Member States with regard to conditions of employment for third country nationals legally residing in Union territory. 15.32 Article 15(3) recognises the right to work of third country nationals, but does so in a way that this right is potentially constrained. First, third country nationals’ rights are recognised to the extent that they are authorised to work in the territories of the Members States. In other words, Article 15(3) does not change the legal position of third country nationals in terms of rights of access to national labour markets or free movement within the EU.34 To do so would have had the effect of extending EU competence—modifying the powers of the Union, contrary to the restriction in Article 51(2) of the EU Charter.35 Furthermore, Article 52(2) of the EU Charter is applicable: rights recognised by the Charter for which provision is made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties.

33

B Hepple, ‘The EU Charter of Fundamental Rights’ (2001) 30(2) Industrial Law Journal 225–31, 226. There is no single treaty base granting rights to third country nationals (TCNs), although Art 79 TFEU refers to the development of a common immigration policy, which would encompass conditions of entry and residence and the rights of third-country nationals residing legally in a Member State. It is arguable, though, that rights to freedom of movement for TCNs have been granted principally as an instrument for the achievement of free movement for EU citizens: see S Iglesias Sánchez, ‘Free Movement of Third Country Nationals in the European Union? Main Features, Deficiencies and Challenges of the new Mobility Rights in the Area of Freedom, Security and Justice’ (2009) European Law Journal, 791–805. 35 More recently, free-movement rights have been granted to certain categories of third-country nationals (long-term residents, students, researchers and highly-qualified migrants) by secondary Union legislation: Directive 2003/109 concerning the status of third-country nationals who are long-term residents [2004] OJ L16/44; Directive 2004/114 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service [2004] OJ L375/12; Directive 2005/71 on a specific procedure for admitting third-country nationals for the purposes of scientific research [2005] OJ L289/15; Directive 2009/50 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment [2009] OJ L155/17. Now see also Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-country nationals for the purposes of research, studies, pupil exchange, remunerated and unremunerated training, voluntary service and au pairing [Recast] Brussels, COM (2013) 151 final. For an analysis of the secondary legislation, see A Wiesbrock, ‘Free Movement of Third-Country Nationals in the European Union: The Illusion of Inclusion’ (2010) European Law Review 455–75. 34

432

Diamond Ashiagbor

Art 15 – Freedom to Choose an Occupation

Second, third-country nationals are granted entitlement to equivalent, not equal, work- 15.33 ing conditions to those of citizens of the Union. At first sight, therefore, Article 15 does not extend the principle of equal treatment to third country nationals with regard to rights at work. As the Explanatory Document confirms, ‘working conditions’, for this purpose, are to be understood in the sense of Article 156 TFEU. This suggests an exclusion of a right to fair remuneration, since Article 153(5) TFEU puts pay outside the competence of Union social policy. Having said that, it is clear from elsewhere in the Charter that third country nationals 15.34 are entitled to protection against unjustified dismissal (Art 30), to working conditions which respect their health, safety and dignity (Art 31(1)) and to limits on maximum working hours, rest periods and annual leave (Art 31(2)) since these rights apply to ‘every worker’. Furthermore, the Explanations also note that Article 15(3) has been based on Article 19(4) of the European Social Charter. Article 19 ESC deals broadly with the right of migrant workers and their families to protection and assistance; with Article 19(4) more specifically and expressly requiring that Contracting Parties secure for migrant workers lawfully within their territories ‘treatment not less favourable than that of their own nationals’ with regard to remuneration and other working conditions; trade union membership and the benefits of collective bargaining.

IV. Limitations and Derogations Article 15 does not contain any express limitations on the right to work, although it is 15.35 of course subject to the final provisions of the Charter, in particular, the pronouncement in Article 52(1) that any limitation on the exercise of the rights and freedoms in the Charter must be ‘be provided for by law and respect the essence of those rights and freedoms’, and also subject to the principle of proportionality. As made clear in some of the earliest of the Court’s human rights jurisprudence, rights freely to choose and practice one’s trade or profession can, if necessary, be restricted: such rights may be subject to limitations laid down in accordance with the public interest or subject to limits justified by the overall objectives pursued by the Union, on condition that the substance of these rights is left untouched.36 By analogy with recent case law on Article 16 of the Charter on the freedom to conduct a business, it is arguable that the Article 15 right to work can be restricted but that any interference with this right, as with the freedom to conduct a business, must be ‘confined within precise limits’.37 In the Sky Osterreich case, the Court held that the freedom to conduct a business, on which Sky sought to rely, ‘is not absolute, but must be viewed in relation to its social function’,38 such that restrictions on the freedom to conduct a business are justified in light of the public interest, in particular the fundamental freedom to receive information and the promotion of media pluralism. By analogy, therefore, proportionate restrictions on the right to work can be justified by reference to other rights and freedoms recognised in the Charter.

36 37 38

Nold (n 1) [12]–[14]. Case C-283/11 Sky Osterreich (Sky Austria) v ORF (22 January 2013) [61]. Ibid [45].

Diamond Ashiagbor

433

Part I – Commentary on the Articles of the EU Charter

V. Remedies 15.36 How should the right to work, prevalent in so many human rights instruments, be enforced? To talk meaningfully about remedies, one needs to clarify, as Hepple does, against whom this right can meaningfully be enforced: the state; the employer, or other workers and trade unions.39 15.37 Those instruments, such as Article 1(1) ESC and the ILO Employment Policy Convention No 122, which premise the right to work on overcoming unemployment, promoting full employment, and making work available, arguably cannot be the subject of individual rights but, according to Hepple, fall purely within the realm of social policy.40 15.38 Even if not individually justiciable, is there merit in a state-backed right to work? Jon Elster, reflecting on the value of meaningful work for self respect—the importance of self-realisation through work—contemplates a legally enforceable right to work as embedded in the modern welfare state.41 Ultimately, however, Elster rejects such a role for the state, arguing that the necessary state subsidy for such work would undermine the satisfaction and self-respect that one could derive from it.42 15.39 In addition, though, states also have a duty to protect the right of individuals to freely enter a chosen profession—a duty which can be enforced on the individual level, as can be seen through litigation such as that brought in Nold, Hauer or Keller. 15.40 As the UN Committee reminds us, like all human rights, the right to work imposes three types or levels of obligations on states parties: the obligations to respect, protect and fulfil.43 The obligation to respect the right to work requires states parties to refrain from interfering directly or indirectly with the enjoyment of that right. The obligation to protect requires states parties to take measures that prevent third parties—such as employers or trade unions—from interfering with the enjoyment of the right to work. It is under this rubric that one can consider the issue of the job security, ‘fair working conditions’ aspect or decent work aspect of the right to work. The obligation on states to protect the right to work requires measures to prevent the violation of the right by individuals, groups (eg trade unions) and corporations. With regard to trade unions, the language of a ‘right to work’ is used in the US, almost uniquely, to refer to state legislation which restricts ‘union security’ ie closed shop agreements, such that non-members of trade unions can obtain and remain in employment whilst remaining non-members.44

39

B Hepple, ‘A Right to Work?’ (1981) 10(1) Industrial Law Journal, 65–83. Ibid, 70. 41 J Elster, ‘Is there (or should there be) a right to work?’ in Amy Gutmann (ed), Democracy and the Welfare State (Princeton, Princeton University Press, 1988). 42 Ibid, 74. See also Little (n 28). 43 UN Committee on Economic, Social and Cultural Rights, General Comment No 18 (n 21), para 22. 44 See Hepple (n 39). S 14(b) of the National Labour Relations Act gave individual states in the US the right to outlaw union security agreements. 40

434

Diamond Ashiagbor

Art 15 – Freedom to Choose an Occupation

E. Evaluation Human rights instruments which recognise the ‘right to work’ rarely interrogate or 15.41 question what is meant by ‘work’. ‘Work’ can pose a challenge to human rights norms, which are mostly concerned with positive goods: rights to equality, to freedom of expression, to education, to vote. However, work is not an uncomplicated good. It may be seen as an (undesirable and onerous) necessity for the sake of survival. As Bo Stråth points out: work is replete with negative connotations. Work is tantamount to pain, drudgery, sweat and hardship. Work as exploitation was at the core of the identity that formed the working class. It was something to be emancipated from. ‘Work’, as a mobilising concept in the organisation of society, is thus ambiguous and contradictory.45

Yet, insofar as work is freely chosen or accepted, it is also acknowledged in human rights 15.42 instruments as contributing to an individual’s development, self-esteem, and recognition within the community.46 Article 6 of the International Covenant on Economic, Social and Cultural Rights rec- 15.43 ognises the right to work as including ‘the right of everyone to the opportunity to gain his living by work which he freely chooses or accept’. Article 11 of the ICESCR, however, recognises the right of all ‘to an adequate standard of living … including adequate food, clothing and housing, and to the continuous improvement of living conditions’. If Article 11 seeks to secure the conditions for an individual’s survival without the need for work, then Article 6 must be concerned not with the output of work as such (an adequate standard of living) but with the process—the right to earn such a standard of living. This notion, of the right to earn one’s way, to pursue one’s chosen occupation, and to find meaning in one’s own labour, finds an echo in Article 15(1) of the Charter— and also in Article 15(2) which, for EU citizens, grants a freedom to be economically active across national borders. The Charter’s understanding of ‘work’ is still very much rooted in work as economic 15.44 activity. There is the potential, however, as illustrated in other human rights instruments such as the ICESCR, to develop work as a human rights standard as more than a means to attain an adequate standard of living, more than wage labour or professional activity.

45 B Stråth, ‘The Concept of Work in the Construction of Community’ in B Stråth (ed), After Full Employment: European Discourses on Work and Flexibility (Brussels, PIE-Peter Lang, 2000). Stråth provides a fascinating analysis of how the ambiguity inherent in the concept of work is reflected in the language: ‘labour’ and ‘work’; ‘Arbeit’ and ‘Werk’; ‘travail’ and ‘oeuvre’; ‘ponos’ and ‘ergon’. 46 UN Committee on Economic, Social and Cultural Rights, General Comment No 18 (n 21), para 1.

Diamond Ashiagbor

435

Article 16 Article 16 Freedom to Conduct a Business The freedom to conduct a business in accordance with Community law and national laws and practices is recognised.

Text of Explanatory Note on Article 16 This Article is based on Court of Justice case-law which has recognised freedom to exercise an economic or commercial activity (see judgments of 14 May 1974, Case 4/73 Nold [1974] ECR 491, paragraph 14 of the grounds, and of 27 September 1979, Case 230–78 SpA Eridiana and others [1979] ECR 2749, paragraphs 20 and 31 of the grounds) and freedom of contract (see inter alia Sukkerfabriken Nykøbing judgment, Case 151/78 [1979] ECR 1, paragraph 19 of the grounds, and judgment of 5 October 1999, C-240/97 Spain v Commission [1999] ECR I-6571, paragraph 99 of the grounds) and Article 119(1) and (3) of the Treaty on the Functioning of the European Union, which recognises free competition. Of course, this right is to be exercised with respect for Union law and national legislation. It may be subject to the limitations provided for in Article 52(1) of the Charter.

Select Bibliography B Bercusson, ‘The Trade Union Movement and the European Union: Judgment Day’ (2007) 13 European Law Journal 279. LFM Besselink, ‘The Protection of Fundamental Rights post-Lisbon: The Interaction between the EU Charter of Fundamental Rights, the European Convention on Human Rights (ECHR) and National Constitutions’ (General Report at the XXV FIDE [Fédération Internationale pour le Droit Européen] Congress, Tallinn, 31 May 2012) 19 www.fide2012.eu/index.php?doc_id=94. M Everson, ‘The Legacy of the Market Citizen’ in J Shaw and G More (eds), New Legal Dynamics of European Union (Oxford, Clarendon Press, 1995). Goldsmith, ‘A Charter of Rights, Freedoms and Principles’ (2001) 38 Common Market Law Review 1201, 1212. X Groussot, L Pech and G Thor Petursson, ‘The Scope of Application of EU Fundamental Rights on Member States’ Action: In Search of Certainty in EU Adjudication’, Eric Stein Working Paper No 1/2011 (Prague, Czech Society for European and Comparative Law, 2011) 2 www.ericsteinpapers.eu/images/doc/eswp-2011–01-groussot.pdf. Ch Joerges and F Rödl, ‘Informal Politics, Formalised Law and the “Social Deficit” of European Integration: Reflections after the Judgments of the ECJ in Viking and Laval’ (2009) 15 European Law Journal 1. Ch Joerges, ‘What is Left of the Integration through Law Project? A Reconstruction in ConflictsLaw Perspectives’ in S Kadelbach (ed), Legal Cultures, Legal Transfer, and Legal Pluralism (Frankfurt, Campus, forthcoming). H Schwier, Der Schutz der ‘Unternehmerische Freiheit’ nach Artikel 16 der Charta der Grundrechte der Europäischen Union (Frankfurt am Main, Peter Lang, 2012). D Spielmann, ‘Article 16—Liberté d’Entreprise’ in EU Network of Independent Experts on Fundamental Rights (eds), Commentary of The Charter of Fundamental Rights of the European

Part I – Commentary on the Articles of the EU Charter

Union (June 2006) 158 http://ec.europa.eu/justice/fundamental-rights/files/networkcommentaryfinal_en.pdf. A Supiot, ‘A legal perspective on the economic crisis of 2008’ (2010) 149 International Labour Review 151. G Treitel, The Law of Contract (London, Sweet & Maxwell, 2007). A Tryfonidou, ‘Further steps on the road to convergence among the market freedoms’ (2010) 35 European Law Review 36. A Wigger, Competition for Competitiveness: The Politics of the Transformation of the EU Competition Regime (Amsterdam, Rozenberg Publishers, 2008).

A. Field of Application 16.01 The inclusion of Article 16, or an express commitment to ‘the freedom to conduct a business’, within the European Union’s Charter of Fundamental Rights is highly controversial, and understandably so.1 Article 16 is sourced, not from amongst the positive norms of an existing canon of international law, in which it is noticeable only by its absence; instead, it is drawn from the ‘constitutional traditions’ of the EU Member States,2 where it most commonly finds an implied place by virtue of its judicial extrapolation from constitutionally secured rights to property and to work. Article 16 of the Charter is accordingly intimately connected with the more usually expressed constitutional norms of the ‘freedom to work’ (Art 15) and the ‘right to property’ (Art 17). It is however, also vitally distanced from them. Just like rights to work and to property, Article 16 may be reducible to a fundamental right of dignity (Art 1 EUCFR),3 whereby human self-expression and self-sustenance is assured by means of secured pursuit of economic activity. At the same time, however, and far beyond core, or ‘existential’, rights of freedom to conclude a contract, or to initiate economic activity, the freedom to conduct a business, in its broader performative character, is one which also recognises the existence and impact of an ‘entrepreneurial’ element within human affairs. It thus may also imply a far deeper, and constitutionally secured, commitment to the maintenance of a specified form of political economy, or a distinct form of economic and social organisation. 16.02 Such a constitutional commitment was clearly expressed within the complex series of provisions of the Weimar Constitution of 1919 (Arts 151–56), which included the first express modern normative dedication ‘to individual economic freedom’ (Art 151, para 1, sentence 1). Vitally, Articles 151–56 concomitantly established a social-economic order within Germany, which was secured by Weimar’s Economic Constitution.4 Within this constellation, a ‘principled obligation’ to secure economic freedom contrasted starkly with the Constitution’s ‘subjective rights’ to, for example, religious freedom, and determined that the conduct of business within the nascent republic would be unfolded

1 See ‘The Future Status of the EU Charter of Fundamental Rights’ (Session 2002–03, 6th Report, HL Paper 48). 2 Case 4/73 Nold [1974] ECR 491 [13]. 3 The freedom to conduct business is located within the Chapter of the Charter on Human Dignity. 4 Henning Schwier, Der Schutz der ‘Unternehmerische Freiheit’ nach Artikel 16 der Charta der Grundrechte der Europäischen Union (Frankfurt am Main, Peter Lang, 2012).

438

Michele Everson and Rui Correia Gonçalves

Art 16 – Freedom to Conduct a Business

within a legislative, rather than judicially driven, programme. The Constitution did not allow for unfettered pursuit of entrepreneurial goals by means of the establishment of ‘individual economic freedom’ as a subjective right. Instead, the legislative programme prescribed by the Constitution provided for the balancing of business freedoms, property rights and labour interests within a ‘socialised economy’.5 Seen in this light, the vital questions to be asked with regard to the character and 16.03 extent of Article 16 of the Charter of Fundamental Rights must therefore be, first, does the freedom now extend beyond an existential function, as laid down by the European Court of Justice in its seminal Nold jurisprudence? Second, is the freedom to be viewed as a ‘subjective right’, asserting and securing the unrestricted entrepreneurial spirit of the individual European? Or, alternatively, is the freedom to conduct business under Article 16 to be understood better as a principle forming a part of a far wider European Union commitment to a specific from of social-economic organisation and, if so, which one? Given the European Union’s enduring commitment to establishment of an internal European market, or a ‘highly competitive social market economy, aiming at full employment and social progress’ (Art 3(3) TFEU), the answers to these questions might, at first glance, appear simple. Just as in Weimar, the complex of rights in the Charter continues to seek to hold the Union to its own principled commitment to establish an economic and social order that balances labour and production interests within its long-standing system of ‘embedded liberalism’.6 Nevertheless, the unique formulation of Article 16 within the Charter, or one which 16.04 demands that the ‘freedom to conduct a business’ is exercised ‘in accordance with Union law and national law and practices’, both reveals the high level of political compromise that has accompanied and dictated the form of its inclusion within the Charter, and hints at continuing discord within the member states, and between the member states and the Union about the exact nature of Europe’s Economic Constitution, as well as its relationship with Europe’s social order. In the terms of this analysis, the sphere of application of Article 16 within European law must accordingly be treated in two distinct ways: On the one hand, and with due regard to the vital place of individual economic freedom within the founding human rights jurisprudence of the ECJ, Article 16 can and must be examined as an ‘economically neutral’ legal instrument, or simple human right, closely related to rights of property and work, and securing, at its settled core, the existential status of the individual European, or her economic opportunity within the ‘marketplace’, broadly defined. On the other hand, however, and taking the understanding of the European Parliament as a template for its institutional reach,7 Article 16 may also be seen as an organisational principle, or a re-affirmation, and integral part of the EU’s effort to establish a post-national political economy, or its own Economic Constitution.

5

Ibid. A Wigger, Competition for Competitiveness: The Politics of the Transformation of the EU Competition Regime (Amsterdam, Rozenberg Publishers, 2008) 151 ff. 7 D Spielmann, ‘Article 16—Liberté d’Entreprise’ in EU Network of Independent Experts on Fundamental Rights (eds), Commentary of The Charter of Fundamental Rights of the European Union (June 2006) 158, http:// ec.europa.eu/justice/fundamental-rights/files/networkcommentaryfinal_en.pdf. 6

Michele Everson and Rui Correia Gonçalves

439

Part I – Commentary on the Articles of the EU Charter

I. Freedom to Conduct a Business as a Human Right 16.05 Strikingly, the construction of the freedom to conduct a business as a primary human right coincides with the birth of human rights law within the European legal order as a whole. In its Nold judgment of 1974, the ECJ first confirmed its famous recognition in Stauder,8 that, to the degree that human rights may be derived from the constitutional traditions of the Member States, they will also form a part of the European legal order; and did so, in this case, with specific reference to fundamental freedoms to work, and to engage in commerce and other professional activities.9 Once again reflecting the close relationship of business freedom with rights to property and work, the Court of Justice subsequently unfolded the freedom within a formulation designed to secure the human dignity of individual Europeans within the marketplace by guaranteeing, first, their freedom to engage in commerce, and secondly, their contractual autonomy. 16.06 Confirming Nold in the subsequent case of SpA Edriana,10 the Court expressly recognised that a guarantee for the exercise of economic activity was a fundamental right, whose protection formed a part of the general Community interest.11 Subsequently, protection was extended to the maintenance of the market position of commercial actors, as well as to the process of private economic planning.12 In turn, however, contractual freedom was also drawn within the ambit of the freedom to conduct business; albeit initially so, only within the negative formulation of the ECJ in the case of Sukkerfabriken Nykøbing.13 Dismissing a preliminary reference questioning the discretion allowed to the Member States in the matter of the award of European sugar production quotas, the Court nevertheless directly addressed the claimant’s plea that they had thereby suffered unwarranted intrusion into their private autonomy, or freedom to contract with their sugar suppliers. In the opinion of the Court, European legal measures restrictive of contractual freedom would only be admissible where they gave explicit authority to a specified public authority to intervene into private contractual relations, and further where they also stipulated the exact forms and procedures to be followed in such cases.14 This implicit recognition for a right to private autonomy and contractual freedom was subsequently concretised in the Court’s annulment of a European Commission Decision, made within the ambit of European agricultural guarantees, itself nullifying Spanish government aid to agricultural concerns, on the basis that pre-dated contracts designed to bring individual producers within the temporal limits of the scheme were ‘fraudulent.’ For the Court, the designation of the contracts as fraudulent was an intrusion into the private autonomy and contractual freedom of market actors, which might only be undertaken in the light of an express authority to do so, laid down clearly in a European legal instrument.15

8

Case 29/69 Stauder v City of Ulm [1969] ECR 419. Nold (n 2) [14]. 10 Case 230–78 SpA Eridiana and others [1979] ECR 2749. 11 See Schwier (n 4) p 96. 12 Case C-280/93 Germany v Council [1994] ECR I-4973 and Joined Cases 63 and 147/84 Finsider v Commission [1985] ECR 2857. 13 Case 151/78 Sukkerfabriken Nykøbing [1979] ECR 1. 14 See Schwier (n 4) 105. 15 Case C-240/97 Spain v Commission [1999] ECR I-6571 [99]. 9

440

Michele Everson and Rui Correia Gonçalves

Art 16 – Freedom to Conduct a Business

II. Freedom to Conduct a Business as an Element of the European Economic Constitution Although never a classical fundamental right, in the sense, say, of religious freedom, the 16.07 freedom to conduct a business, as a corollary to rights to property and work, may, at least since the eighteenth century, or the ‘Scottish Enlightenment’ led by Adam Smith, be argued to form an (implicit) core guarantee for individuals seeking to secure their existence within the ongoing historical effort to overcome feudalism, and to establish and to defend an autonomous sphere of market exchange from unjustifiable state intrusion. And, in these ‘existential’ terms, the field of application of Article 16 is a wide one indeed, applying, in principle, to all of the commercial and contractual activities of individual Europeans within the Union, to the exact degree that these activities can and may be restricted by European law. Equally, however, the emergence of an explicit guarantee for individual economic freedom within the Charter is also indelibly marked by the constitutional history of the twentieth century, and its efforts to establish specific forms of national political economy, and, as such, may also be viewed as reaffirmation of the Union’s core mission to re-establish a concept of political economy beyond the boundaries of the nation state. Support for this assertion may be found in the European Parliament’s Commentary 16.08 on the Charter. In this analysis, the primary limitation placed upon the personal exercise of Article 16 by Article 52(1) of the Charter is the European common interest expressed within the, then, Article 4 of the European Union Treaty: ‘qui insiste certes sur le principe d’une économique de marché où la concurrence est libre’, and which commits the member states and the institutions of the European Union to ‘l’instauration d’une politique économique fondée sur l’êtroite coordination des politiques économiques des Etats membres, sur le marché intérieur et sur la definition d’objectifs communs, et conduit conformément au respect du principe d’une économie ouverte où la concurrence est libre.’16 Concomitantly a limitation on the boundless exercise of the economic freedom of the indi- 16.09 vidual European, as well as a constituting of the European political economy, these underlying integrative principles of the Union—now reproduced, in vitally modified form, in Article 3(3) of the Treaty for European Union (see below)—accordingly describe the forms of business conduct that might be exercised within Europe’s Economic Constitution. In this view, the core essence of the freedom to conduct business is one of a general principle of economic autonomy that unfolds within the prescribed contours of the legal-economic institutions of the European Economic Constitution. In the terms of the cited Commentary, the primary legal vehicles of Europe’s Economic Constitution which pertain to Article 16 are therefore: — —

European competition law (Arts 101 and 102), as well as legislative provisions of European competition policy;17 state aids law (Arts 107 and 108 TFEU);

16

See, above, n 7. Most importantly, the 2004 ‘Reform Package’—Council Regulation 1/2003 on the implementation of the rules on competition essentially altered the way in which anticompetitive conduct, such as cartels and other restrictive business practices, were prosecuted in the EU. The longstanding centralised administrative ex ante notification regime for commercial intercompany agreements was abolished, and replaced with a decentralised ex post private enforcement regime. Second, the Merger Regulation 4064/89 was replaced by the Merger Regulation 139/2004, which entailed a revision of the substantive measurement used for the assessment of mergers. Furthermore, it allocated more investigatory powers to the Commission. 17

Michele Everson and Rui Correia Gonçalves

441

Part I – Commentary on the Articles of the EU Charter

— the free movement of goods (Art 30 TFEU); — the ‘four freedoms’ of work, establishment, services and capital (Arts 45, 49, 56 and 63 TFEU), together with legislative programmes of liberalisation designed to give them effect.18 16.10 Accordingly, in this field of principled application within the European Economic Constitution, the vital question raised for this analysis, is that of which is the exact vision of economic (and social) order that it embodies.

B. Relation of Article 16 to Articles 15 and 17 of the Charter 16.11 According to various commentators, one possible source for Article 16 within international law is Article 6 of the International Covenant on Economic, Social and Cultural Rights (‘right of everyone to the opportunity to gain his living by work which he freely chooses or accepts’), to which Article 1(2) of the European Social Charter is argued to be equivalent (‘the right of the worker to earn his living in an occupation freely entered upon’).19 The settled jurisprudence of the Court of Justice has nevertheless always reproduced various of the Member States’ constitutional traditions, using its case law to establish a very close relationship between the freedom to conduct a business, now explicitly normativised in Article 16, and the freedom to pursue an occupation, now given force in Article 15. According to the Court’s historic jurisprudence, the freedom to pursue business coincides with the right to work and both constitute general principles of EU law.20 This potential cross-over between Articles 16 and Article 15 of the Charter is similarly reproduced with regard to Article 17 and the right to property. Deviating from the approach taken by the European Court of Human Rights—or its restricted interpretation of the right to property within the European Convention on Human Rights21—the Court of Justice has consistently recognised that the freedom to conduct

18 Including legislative programmes to liberalise state services (eg, Commission Directive 96/19/EC on the achievement of full competition on the telecommunications market [1996] OJ L 074/13) and more general measures, such as European Parliament and Council Directive 97/67/EC on common rules for the development of the internal market of Community postal services and the improvement of quality of service [1998] OJ L 15/14. 19 Spielmann (n 7) 158. 20 Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest [1991] ECR I-415 [72]–[77]; Case C-177/90 Kühn [1992] ECR I-35 [16]; Germany v Council (n 14) [78]; Joined Cases C-184/02 and C-223/02 Spain and Finland v Parliament and Council [1994] ECR I-7789 [51]; and Joined Cases C-248/95 and C-249/95 SAM Schiffahrt and Stapf [1997] ECR I-4475 [72]. 21 According to the judgment in Marckx v Belgium Series A no 31 (1979) 2 EHRR 330 [50], Art 1 of Protocol no 1 applies only to existing possessions and ‘does not guarantee the right to acquire possessions’. In Sporrong and Lönnroth v Sweden Series A no 52 (1982) 5 EHRR 35 [61], the ECtHR decided that Art 1 of Protocol No 1 comprises three distinct rules: the first rule, of a general nature, enounces the principle of peaceful enjoyment of property; the second rule covers deprivation of possessions and subjects it to certain conditions; the third rule recognises that the states are entitled to control the use of property in accordance with the general interest.

442

Michele Everson and Rui Correia Gonçalves

Art 16 – Freedom to Conduct a Business

a business is a corollary of the right to property,22 itself held to form one of the general principles of EU law.23 The readiness of the historic Court, not simply to create rights to work and to 16.12 property, but also to extrapolate a freedom of business from them, reveals its broader aspiration to institutionalise an internationalised Economic Constitution, which is also founded in protection for the entrepreneurial instincts of the individual European. In contrast to the ECtHR, which has made it clear that the right to property ‘does not guarantee the right to acquire possessions’,24 the simple equation by the Court of Justice of rights to work and to property with a freedom to conduct business appears to broaden the scope of an existential sphere of subjective economic freedom for the individual European, in order to include within it a performative or entrepreneurial economic role. Nevertheless, the extent of this performative element within the sphere of economic protection established, was, historically speaking, always subject to its own immediate self-limitation. Rights to work, property and the freedom to conduct business within the jurisprudence of the Court of Justice were enunciated only as general ‘principles of European law’ and were thus readily subject to the imitations placed upon them by Community and national legislation deemed to be ‘in the interest of the Community’.25 With regard to the new Charter, however, this raises an immediate point of interest. 16.13 Once the Charter became legally binding, and thus a core element of the Union’s legal order, the general principles of EU law could no longer be regarded as the exclusive guiding norms to ensure the protection of fundamental rights within the Union.26 Instead, the Charter has become the starting point for the Court for assessing the compatibility of an EU measure or a national provision with EU fundamental rights.27 As Groussot, Pech, and Petursson have noted, the general principles of EU law, as they have stemmed from Article 6(3) of the Treaty on European Union, are now only ancillary to the Charter and they may be relied on by the Court only to the degree that they expand upon the material scope of the Charter in their character as ‘external norms’, equivalent to, for example, the European Convention of Human Rights and the constitutional traditions common to the Member States.28 In general terms, the conclusion to be drawn from this is that the general principles of EU law no longer constitute autonomous standards of protection;29 a conclusion, which brings a degree of legal uncertainty as to the scope of application of EU fundamental rights, since it is conceivable that there might

22

Case 59/83 SA Biovilac NV v European Economic Community [1984] ECR 4057 [21]. See, in particular, the judgment in Case 44/79 Liselotte Hauer v Land Rheinland-Pfalz [1979] ECR 3727 [17]–[23]; and judgment in Case 265/87 Schräder v Hauptzollamt Gronau [1989] ECR 2237 [13]–[17]. 24 See, above, n 21. 25 See section D. 26 X Groussot, L Pech, and G Thor Petursson, ‘The Scope of Application of EU Fundamental Rights on Member States’ Action: In Search of Certainty in EU Adjudication’, Eric Stein Working Paper No 1/2011 (Prague, Czech Society for European and Comparative Law, 2011) 2 www.ericsteinpapers.eu/images/doc/ eswp-2011-01-groussot.pdf. 27 See ‘Joint Communication from Presidents Costa and Skouris’ (Strasbourg and Luxembourg, 24 January 2011) para 1, http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-02/cedh_cjue_english.pdf; Case C-108/10 Ivana Scattolon v Ministero dell’Istruzione, dell’Università e della Ricerca (Grand Chamber, judgment of 6 September 2011), Opinion of AG Bot [108]. 28 Grussot, Pech, and Petursson (n 26) p 2. 29 Ibid. 23

Michele Everson and Rui Correia Gonçalves

443

Part I – Commentary on the Articles of the EU Charter

16.14

16.15

16.16

16.17

be a complex overlapping between these two kinds of norms.30 At another level, however, the legal distinction between general principles of European law and the ‘rights’ enshrined by the Charter, also raises an immediate point of interest with regard to the entrepreneurial element within the freedom to conduct business. Might this ‘freedom’ now be understood to be less a principle and more a subjective right, subject to a lesser degree of limitation, especially as regards its application to European and national law? At the level of formal constitutional adjudication, distinctions in terminology do matter. Articles 15, 16 and 17 of the Charter appear to form a closely interrelated complex of fundamental rights and freedoms, which are now autonomous standards of protection. Nevertheless, the unique formulation of Article 16 as a ‘freedom’ to be exercised ‘in accordance with Union law and national law and practices’, raises an assumption that its exercise is limited, by contrast to rights to work and property. Above all, and bearing in mind the lack of clarity, which the Charter itself establishes with regard to its varied use of the terms ‘rights’, ‘freedoms’ and ‘principles’,31 a necessary question arises as to whether Article 16 is a ‘freedom’, implying its unfettered exercise in the absence of restraint or control over an action, especially from the state; or, whether it is better to be understood as a ‘principle’, to be exercised to the degree that it is implemented by law. Lord Goldsmith, the UK Government’s representative on the Convention which drafted the Charter, drew a clear distinction between ‘individually justiciable’ civil and political rights and modern social and economic rights which, in his opinion, are ‘usually not justiciable individually in the same way as other rights’ but instead ‘inform policy making by the legislator’.32 According to Goldsmith, ‘these “rights” essentially take the form of principles, which, whilst common to Member States, are implemented differently in their national laws and practices; and that the principles only give rise to rights to the extent that they are implemented by national law or, in those areas where there is such competence, by Community law.’33 Such a reading might be argued to coincide with Article 51(1) of the Charter, according to which the addressees of the provisions of the Charter shall ‘respect the rights’ and ‘observe the principles’ laid down by the Charter, whereby rights may be argued to be individually justiciable. The concomitant argument that ‘principles’ are surely to be understood as simple aspirations or objectives for some future European action establishing its own particular economic order—as well as the exact nature of the ‘entrepreneurial European’—is one with which Lord Goldsmith might agree: ‘[t]his does not mean it is for the Union to legislate in this area. Nor does this impose any requirement of Member States. It means that the Union should not violate this principle by a side wind in some other legislation within its competence.’34 Nevertheless, the point is far from settled. The very particular political and juridical sensitivities which apply to Article 16 are at once revealed. At the level of its adjudication by the Court of Justice, a vital question must be one of whether, within the complex of protection afforded by Articles 15, 16

30

Ibid p 16. Explanations Relating to the Charter of Fundamental Rights [2007] OJ C303/17. 32 Lord Goldsmith QC, ‘A Charter of Rights, Freedoms and Principles’ (2001) 38 Common Market Law Review 1201, 1212. 33 Ibid 1212–13. 34 Ibid. 31

444

Michele Everson and Rui Correia Gonçalves

Art 16 – Freedom to Conduct a Business

and 17, the freedom to conduct business is to be understood to be in some way a lesser ‘right’ than those of work and property. Alternatively, will the Court seek to strengthen the freedom to conduct business, giving it greater force as a subjective right, which enhances an existential sphere of economic freedom for the individual European? At the same time, however, due attention must be paid to the potential for the evolution of Article 16 as a principle, which informs, not only the legislative policy of the Union, but also the more general jurisprudence of the Court, either with regard to the evolution of a distinct Economic Constitution within Europe, or its delineation with regard to the continuing vibrancy of notions of political economy established at national level.35

C. Sources of Law The primary legal source for Article 16 must be understood to be the ‘constitutional 16.18 traditions of the Member States’, in accordance with Article 52(4) of the Charter. In the absence of express counterparts within international law, and the similarly cautious approach to business freedom adopted by the European Court of Human Rights, which has limited itself to the extrapolation of a nascent right to ‘peaceful enjoyment of possessions’ from the Convention’s guarantee for property rights,36 the primary reference for the drafters of the Charter was Court of Justice jurisprudence, beginning with Nold, that was itself evolved with analogous allusion to constitutional developments within the Member States. It is similarly striking, however, that, in the year of the Court’s decision in Nold 16.19 (1974), explicit national constitutional references to notions concomitant to the right to business freedom were sparse indeed, and limited to the express recognitions found in the Constitutions of Ireland (1937), Italy (1949) and Luxembourg (1948) for ‘rights of private (economic) initiative’ in industry and commerce.37 In the meantime, however, and leaving Luxembourg aside—where emergence of commercial rights appears to owe to the post-medieval continental tradition of affording legal respect to emerging trades38—subsequent iterations of business freedom within national constitutions have noticeably reproduced the post-colonial, post-civil war or post-dictatorship patterns established in Ireland and Italy. In each of these cases, the arena of personal economic initiative is contained within schemes of interwoven social and economic rights, which form a basis for legislative rather than judicial initiative, and thus also embodies, in its limitation, a founding commitment to establishment of a political economy, or socialised national economic constitution, dedicated to resolution of past social conflict. Moving on through history, and making allowance both for fundamental changes in guiding

35

Ibid. Iatridis v Greece (1999) ECHR 1999-II, 75 ff. In finding for a long-standing Greek proprietor of an openair cinema, subject to a sequestration order of the local authority who owned the land on which the cinema stood, on the basis that he had been denied the opportunity to renew his concession, the Court implied that contractual autonomy formed a part of the Conventions’s guarantee for property rights (Art 1 ECHR). 37 In Arts 45, 41 and 11(5) respectively. 38 ‘Gewerbefreiheit’ was a feature of many of the legal codes of European principalities. See, for details, Schwier (n 4) 37–56. 36

Michele Everson and Rui Correia Gonçalves

445

Part I – Commentary on the Articles of the EU Charter

principles of economic organisation, as well as renewed emphasis upon the powers of (economic) civil society to repel dictatorial regimes, the freedoms to conduct business introduced by the Spanish (1978) and Portuguese (1982 revision) constitutions,39 in all of their difference, reproduce the same trend. Subject to simple revision procedures (Spain), or limited to ‘peaceful enjoyment of possessions’ (Portugal), constitutionally guaranteed commercial freedoms in Portugal and Spain may be characterised by their greater degree of market-orientation, but, in essence, remain principled components within economic constitutions of post-conflict settlement and social pacification.40 16.20 To this degree, a more immediate source for the Court of Justice’s evolution of a right to conduct business may therefore be argued to have been the constitutional and general legal traditions of the remaining Members States, in which implicit guarantees for commercial freedom have evolved: first, in the negative formulations of the atypical constitutional tradition of the United Kingdom, within the general stipulation of the rule of law that the individual elements of individual economic enterprise, such as contractual autonomy, may only be restricted by means of express legislative authority to do so;41 secondly, in the equally atypical French constitutional constellation, in the struggles of the Conseil Constitutionelle to establish a right to commercial freedom of ‘constitutional rank’;42 and thirdly, in the adjudicative endeavours of national judiciaries in Austria, Germany, Greece, Sweden and Finland to extrapolate an implicit constitutional right to conduct business from explicit constitutional guarantees for human dignity, property, work, free association and professional freedom. 16.21 In large part, therefore, in their material content, a founding template for the Court of Justice’s subsequent concretisation of the freedom to conduct business—as well as its limitation through express authorisation—in notions of the freedom to engage in commercial activity and a right to contractual autonomy,43 the constitutional traditions of the Member States may thus, in general, be argued to support the construction of Article 16 as a limited right of existential dignity within the context of a market society, broadly defined. Nevertheless, and returning directly to the question of whether Article 16 must also be understood in the far broader terms of a reiteration of a European commitment to a specific form of political economy and market within the Union, one constitutional tradition, above all others, may be argued to have had its fundamental impact upon the evolution of the European Treaties. Seen in this specific light, the emergence of the European Economic Constitution, which, with its dual legal-economic institutions of competition law and free movement, as well as degree of recognition for the residual competence for Member State social orders, has in large part been influenced by German constitutional traditions and, above all, by the concept of ordo-liberalism, or the notion of an ‘ordered economy’, constituted and guaranteed by primary law, and balanced against social commitments.44

39

Above Arts 38(1) and 61 respectively. A trend similarly reproduced in the new constitutions of Eastern Europe. 41 See, G Treitel and E Peel, The Law of Contract (London, Sweet & Maxwell, 2007). 42 See, Schwier (n 4) 80. See, also, less controversial judicial efforts to establish commercial freedom as an independent constitutional norm in Denmark, Belgium and the Netherlands, 84–89. 43 Ibid, for very useful details, 69–89. 44 C Joerges, ‘What is Left of the Integration through Law Project? A Reconstruction in Conflicts-Law Perspectives’ in S Kadelbach (ed), Legal Cultures, Legal Transfer, and Legal Pluralism (Frankfurt, Campus, forthcoming). 40

446

Michele Everson and Rui Correia Gonçalves

Art 16 – Freedom to Conduct a Business

The failure of the Grundgesetz to include an express provision guaranteeing com- 16.22 mercial freedom may be explained by the degree of suspicion exhibited within post-war Germany towards the social pluralism of the Weimar Constitution, which was deemed to have contributed to political instability. Nevertheless, the notion of an economic constitution proved to be far from dead within German intellectual thought, as the ideas of the Freiburg School, and more particularly, the partnership of Walter Eucken (an economist) and Franz Böhm (a lawyer), successfully colonised the left-leaning notion of the normativised national political economy, to give it new life in an antistatist form, which vitally also sought to control private concentrations of economic power within the market.45 In this new constellation of the Republic’s Economic Constitution, which found vitally authoritative support, both amongst leading political figures, such as Ludwig Erhardt (Germany’s first Finance Minister), and within the Bundesverfassungsgericht, constitutional guarantees for commercial activity were joined together with legislative programmes of competition policy for a dual purpose. On the one hand, the state would, as far as possible, restrict its general interventions into the market.46 On the other, concepts of fair competition would nonetheless demand wideranging policy-led intervention, in order to prevent concentration of economic power within private hands and the abuse of dominant market positions.47 Within a sphere of German constitutional adjudication, the particular influence of 16.23 ordo-liberal conceptions may be identified, not simply in the Constitutional Court’s very early extrapolation of a subjective right to conduct business from the Constitution’s general guarantee for individual freedom (Art 2(1) GG),48 but also in its refusal to extend the notion of the free exercise of a profession (Art 12(1) GG), in order to include a guarantee for a subjective right to free competition.49 Although the individual German would be protected from unwarranted state intrusion into their economic activities, such protection could not extend to a competition policy, where the primary role of ensuring an open competitive order would fall to government, which would be similarly charged with the task of securing free, fair and ‘equal’ competition.50 Similarly, at the level of the overall constitutional order, the exercise of freedom within German’s economic order, needed likewise to be balanced against, or distinguished from the Republic’s social order, encapsulated in the dedication of the Grundgesetz to the establishment of a Sozialstaat. In the terms of this analysis, it is accordingly this ‘dual’ character of the constitu- 16.24 tional guarantee for the conduct of business, not only as subjective right, but also as programme for the establishment of equality of opportunity within a ‘competitive’ marketplace, which hints at the large degree of influence that ordo-liberal thought historically has had upon Europe’s Economic Constitution. In part, a simple function of

45 Ibid, with reference to the founding of the concept of Economic Constitution by the left, of ‘Franz Neumann’. See, also, Wigger (n 6). 46 Schwier (n 4) 42. 47 See, in particular, Wigger (n 6). 48 ‘Elfes-Urteil’, BverfGE 6, 32. A right subsequently enhanced and detailed with similar reference to constitutional guarantees for freedom of profession (Art 12 GG), property rights (Art 14), as well as rights of economic association (Art 9(1) GG). 49 See, with copious references to prevailing German legal opinion, Schwier (n 4) 45. 50 Note the congruence with the language deployed by the European Parliament’s commentary on the Charter (egalité), n 7 above.

Michele Everson and Rui Correia Gonçalves

447

Part I – Commentary on the Articles of the EU Charter

the significant political role played by post-war German politicians within negotiations on the founding Treaties, as well as the long-standing exercise of influence by German functionaries over the activities of Competition Directorate within the European Commission,51 the European impact of ‘Ordnungspolitik’ may be traced in the development of European free movement law, founded in the specifically European principle of non-discrimination, as well as strong institutions of European Competition law. Equally, however, and mirroring internal German tensions between the legal securing of the economy favoured by ordo-liberals and its growing distance from the ‘redistributive’ functions attributed to the social order, or Sozialstaat, in the 1960s and 1970s, the often contentious relations between European economic and social orders may similarly be argued to be reflected in the constant struggle of the historical ECJ to delineate, or to limit, the impact of its de facto market liberalising jurisprudence within the (social) legal orders of the member states.52

D. Analysis I. General Remarks 16.25 In paragraph 29 of his opinion in the recent case of Sky Österreich,53 Advocate General Bot signalled the determination of the Court of Justice to maintain continuity in its jurisprudence, or treat Article 16 within its established line of case law on the extent of the freedom to conduct a business: It is clear that the right to property, like the right freely to exercise an economic activity, is one of the general principles of the law of the Union. However, those principles are not absolute but must be viewed in relation to their social function. Consequently, restrictions may be imposed on use of the right to property, and to freely to pursue an economic activity, provided that those restrictions correspond to an objective of general interest pursued by the Union and do not constitute, with regard to the objective pursued, a disproportionate and intolerable interference affecting the very substance of the rights thus guaranteed.

16.26 As noted above, the freedom to conduct a business has never been explicitly normativised within international law. This historical absence, however, is easily explained. Given the necessarily intimate relationship of notions of a right to individual economic freedom with broader efforts to construct the national political economy, as well as an overriding certainty that the international economy operated within ‘a state of nature’, the economically-active subject was always a stranger to the international legal order. With the advent of the 1957 Rome Treaty, however, European law began to establish

51 Claus-Dieter Ehlermann is deserving of specific mention within this context. See, for full details, Wigger (n 6). 52 See, in particular Joerges (n 44). It is similarly noteworthy that the greatest contribution made to European academic thought by ordo-liberals was that made by Alfred Müller-Armack, and uncomfortable companion to Eucken within the Freiburg School and a fierce opponent of the socialisation of the Economic Constitution; see, for personal details, Wigger (n 6) pp 68 ff. 53 Case C-283/11 Sky Österreich v Österreichischer Rundfunk (22 January 2013; available from the Curia website).

448

Michele Everson and Rui Correia Gonçalves

Art 16 – Freedom to Conduct a Business

itself in direct opposition to this dictum. Where the purpose of the European Economic Community was to forge a common market, and where the then European Court of Justice very early on afforded the individual European a startling new status as economic subject of European law,54 the effort to tame the state of economic nature in Europe, as well as a commitment to individual economic freedom, began to extend across national frontiers within the continent. Seen in this light, the story of the emergence of an explicit ‘freedom to conduct a busi- 16.27 ness’ within Article 16 is very much a chronicle of a right foretold, of a founding aspiration to establish and to maintain a political economy within the European Communities through the medium of law, and through establishment of a European Economic Constitution within the Rome Treaty.55 In immediate counterpoint, however, Article 16, and an explicit notion of individual economic freedom, nonetheless now finds its permanent place in the EU order, not within a clear statement of the contours of European Economic governance, but within the Charter’s Chapter on human dignity. At the same time, an indication of ongoing disquiet and political compromise, the schematic positioning of Article 16 also signals a potential retrenchment of the freedom to conduct business as a ‘classical’, or existential, human right deriving simply from a need to also ensure individual accrual of the benefits of property interests and the right to work. Seen in this light, Article 16 may yet become yet another vital front on which the contested effort to define Europe’s emerging and ever-changing Economic Constitution will be concentrated, raising a specific question about the future attitudes of the Court with regard to its application. Above all, in its confirmation of the limitations to be placed on Article 16 in accor- 16.28 dance with Article 52(1) of the Charter, the Court of Justice has already done much to pacify fears that Article 16 might form a judicial basis for intolerable intrusion into schemes of regulation of private economic activities in the public interest (see below). However, closer review of the Court’s case law since the passage into primary law of the Charter reveals one vital extension in the reach of the freedom to conduct business within European Union Law, impacting, in particular, upon the relationship between rights to property and the freedom to conduct business, and upon judicial construction of the notion of fair business conduct, and by association, fair competition, within the European Economic Constitution. Eye-catching and much celebrated judgments in the recent cases of Scarlet Extended 56 and Netlog57 may thus be argued not only to establish a form of ‘quasi-horizontal effect’ for Article 16, or to do so at least to the degree that national implementing measures may impact upon the economic relations maintained between private parties; but also to form potential for the instituting of a subjective individual right to business equality and free competition within primary EU law.

54 Case 6/64 Costa v ENEL [1964] ECR 585; Case 26/62 Van Gend & Loos [1963] ECR 1. See, for the concept of the European Economic Citizen, M Everson, ‘The Legacy of the Market Citizen’ in J Shaw and G More (eds), New Legal Dynamics of European Union (Oxford, Clarendon Press, 1995). 55 See Joerges (n 44). 56 Case C-70/10 Scarlet Extended (Third Chamber, 24 November 2011). 57 Case C-360/10 SABAM v Netlog (Third Chamber, 16 February 2012).

Michele Everson and Rui Correia Gonçalves

449

Part I – Commentary on the Articles of the EU Charter

II. Scope of Application of Article 16 16.29 According to Article 52(3), where a right contained within the Charter corresponds to rights guaranteed by the ECHR, the meaning and scope of that right shall be the same as those laid down by that Convention, which finding does not prevent Union law from providing more extensive protection than the Convention itself.58 However, given the absence of any explicit corollary to Article 16 within the Convention, a primary point of reference for the scope of its application must be Article 52(5) of the Charter, which implies that, in its character as principle, rather than right, Article 16 will not give rise to any direct cause of action against Union institutions or Member States’ authorities. Instead, as ‘principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers’, Article 16 would only become relevant within the judicial setting, where such implementing acts are interpreted or reviewed. 16.30 It has similarly been argued that the scope of application of the Charter itself remains highly uncertain due to the wording of Article 51(1), which restricts its application to the Member States to those situations ‘when they are implementing Union law.’59 In the current lack of any clear direction by the Court on the matter, EU law must surely still be subject to the same uncertainties that have bedevilled the Court’s historic fundamental rights jurisprudence, with regard to the reach of those rights, both as they apply to national implementing measures, and to the degree that they deviate from them.60 By stark contrast, however, one recent opinion, delivered by AG Trstenjak, would seem to leave very little room for doubt with regard to the horizontal impacts of the rights and principles of the Charter. 61 Here, and despite the fact that the ‘wording of Article 31 of the Charter could induce the belief that horizontal effect is to be attributed to this provision … and … that it is to directly apply to the situation between employers and employees ... [obliging] private individuals to guarantee fair and reasonable working conditions’, AG Trstenjak concluded that such a reading would contradict the explicit limitation of the Charter by Article 52(2), under which ‘[r]ights recognised by this Charter for which provision is made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties.’62 16.31 Such a starkly restricted view of the scope of application of the Charter has been challenged in general, and has been specifically doubted with regard to the more general

58 There are certainly examples of the Court reaching a different conclusion on an issue which has been previously considered by the European Court of Human Rights, for example in Case C-434/10 Aladzhov (Fourth Chamber, judgment of 17 November 2011) on Bulgarian legislation preventing debtors from leaving the country. However, there are no signs of enthusiasm on the part of the Court to endorse a higher level of protection than the Convention. 59 Groussot, Pech, and Petursson (n 26) 2. 60 See, in particular, the distinction made between the Wachauf (Case 5/88 [1989] ECR 2609) and the ERT (Case C-260/89 [1991] ECR I-2925) lines of jurisprudence. 61 Case C-282/10 Dominguez (Grand Chamber, 24 January 2012), Opinion of AG Trstenjak. 62 Ibid [80] et seq.

450

Michele Everson and Rui Correia Gonçalves

Art 16 – Freedom to Conduct a Business

treatment of economic freedoms within the EU legal order.63 So, it may be argued, the cases of Viking and Laval not only established the horizontal direct effect for freedoms of establishment and services under the TFEU (Arts 49 and 56 TFEU), but also suggest that the right to collective action as enshrined in Article 28 of the Charter has commensurate horizontal direct effect.64 Seen in light of the readiness of the Court of Justice to establish protection for the rights of the individual European, the case of Dominguez appears to be at variance, whereby the Court, although not directly addressing AG Trstenjak’s concerns, created a form of ‘indirect’ horizontal effect for Article 31(2) EU Charter. Stating that ‘the entitlement of every worker to paid annual leave must be regarded as a particularly important principle of European Union social law from which there can be no derogations and whose implementation by the competent national authorities must be confined within the limits expressly laid down by [Directive 2003/88]’, the Court left a final decision on how to repair deficient French legislation to the national court. At the same time, however, the enunciation of an absolute right to have paid leave left no room to doubt that the national court was obliged by EU law to establish appropriate working regulations between employer and employee. This ‘indirect’ application of the rights of the Charter, or establishment of a form of 16.32 quasi-horizontal effect for its provisions—whether expressed as rights or principles— likewise finds its own fascinating application with regard to Article 16, and in particular, with regard to the cases of Scarlet Extended and Netlog, each referred to the Court of Justice by national courts under Article 267 TFEU. Dealt with in far greater detail below, both cases concerned the compatibility with EU law of injunctions sought at national level by web-based copyright holders against internet service providers (ISPs), demanding that ISPs install expensive software, or establish monitoring systems, to guard against potential copyright infringement by unauthorised third parties. Finding in each case for the ISP, the Court of Justice not only struck a blow for ‘internet freedom’, but also demanded that, in its application of EU intellectual property law, ‘national authorities and courts must, in particular, strike a fair balance between the protection of the intellectual property right enjoyed by copyright holders and that of the freedom to conduct a business enjoyed by ISPs pursuant to Article 16 of the Charter’.65 Within this new and unexpected scenario, one which requires a national court issuing an injunction under national law, in order to enforce EU intellectual property law, also to balance the right of property (Art 17) against the freedom to conduct business, both in fact and de jure elevates the principle of the freedom to conduct business to a private obligation— or ‘quasi-subjective’ right—that must be enforced by national law between private individuals within the sphere of application of the European legal order.66 63 See LFM Besselink, ‘The Protection of Fundamental Rights post-Lisbon: The Interaction between the EU Charter of Fundamental Rights, the European Convention on Human Rights (ECHR) and National Constitutions’ (General Report at the XXV FIDE [Fédération Internationale pour le Droit Européen] Congress, Tallinn, 31 May 2012) 19 www.fide2012.eu/index.php?doc_id=94. In our analysis, Art 28 is afforded— at the very least—an indirect form of horizontal effect by these cases, to the degree that service providers will also be required to demonstrate before national courts that collective labour agreements and any strike action in support of them have a ‘disproportionate’ impact upon their own business. 64 Case C-438/05 Viking [2007] ECR I-10779; Case C-341/05 Laval [2007] ECR I-11767. 65 Scarlet Extended (n 56) [46]. 66 Note that the concept of private individual will also include legal persons (Case C-279/09 DEB v Germany [2010] ECR I-3849). It should be noted in that connection that, although the explanations relating to the Charter do not provide any clarification in this regard, the use of the word ‘Person’, in the German

Michele Everson and Rui Correia Gonçalves

451

Part I – Commentary on the Articles of the EU Charter

III. Specific Provisions 16.33 The striking elevation of the freedom to conduct a business to a quasi-right that might be enforced between private parties in national law designed to give effect to European legislation, cannot but be viewed as a substantive enhancement of the legal protection afforded the individual European by the Charter. At the same time, however, this development also confirms that the Charter may prove to be a useful weapon in the armoury of the Court of Justice in its own efforts to enunciate the substantive nature of the European Economic Constitution. To date the Court has confirmed that, in line with its established case law, commencing with Nold, the freedom to conduct business under Article 16 will continue to encompass not only a freedom to engage in commercial activity, but also a principle of contractual autonomy. In doing so, however, the Court has similarly raised potential for mismatch between the notion of free and fair competition, as pursued by the Union and Commission under Articles 101 and 102 TFEU and its own independent vision of fair business dealings within the European Economic Constitution. (a) Freedom to Engage in Business under Article 16 16.34 Since the passage into binding force of the Charter, the Court has confirmed application of the principle of the freedom to conduct business to implementing acts of the institutions of the European Union, and to those of the member states. In the case of EMA,67 an application made by a pharmaceutical company for annulment of a decision made by the European Medicines Agency (EMA), requiring the applicant to undertake certain clinical trials amongst children, in order to receive a marketing authorisation for a pharmaceutical product (perflubutane) under EU pharmaceutical rules,68 was assessed in the light of Article 16. In the opinion of the Court, and although justified by the general-interest objective pursued by Regulation 1901/2006 of improving health in the general population, ‘the interpretation of Article 11(1)(b) of Regulation No 1901/2006 contained in the contested decision’ did constitute ‘a restriction of the right of pharmaceutical companies to conduct their business freely’ (para 91). Equally, in the case of Deutsches Weintor eG v Land Rheinland-Pfalz,69 the decision of German authorities in the Rhineland-Palatinate to oppose the marketing of ‘easily digestible’ wine, on the basis that this constituted a ‘health claim’ with regard to the properties of alcohol, which is prohibited by EU law, resulted in a preliminary reference to the Court of Justice. Once again dismissing the action on the basis that EU regulations served a legitimate community interest in the establishment of a high level of protection for human health,

language version of Art 47, as opposed to the word ‘Mensch’, which is used in numerous other provisions— for example, in Arts 1, 2, 3, 6, 29, 34 and 35 of the Charter—may be an indication that legal persons are not excluded from the scope of that article (para 39). Note also that the Court of Justice has extended the scope of application of the Charter to subject matter arising between the years 2005 and 2007, before it came into force (Case C-282/10 Dominguez). 67

Case T-52/09 EMA [2011] OJ C32/19. European Parliament and Council Regulation 1901/2006 on medicinal products for paediatric use [2006] OJ L378/1. 69 Case C-544/10 Deutsches Weintor eG v Land Rheinland-Pfalz (Third Chamber, 6 September 2012). 68

452

Michele Everson and Rui Correia Gonçalves

Art 16 – Freedom to Conduct a Business

the Court nevertheless recognised the relevance of Article 16 to the case, noting, however, that it must also be balanced against Article 35 of the Charter, or the right health (paras 44 and 45). Similarly, in each of these cases, the Court of Justice has confirmed its historic juris- 16.35 prudence, or its finding that freedom to conduct business extends beyond protection afforded to individuals to establish a commercial activity, in order to encompass the performative element of how business is conducted. Both pharmaceutical regulation and regulation for the protection of the health of consumers may be regarded as posing a potential obstacle to the exercise of commercial freedom. In terms of the exact reach of Article 16, therefore, the critical question has become one of the delineation of its jurisdiction, of the extent to which the Court is prepared to move beyond the classical formulation of protection for human dignity through a guarantee ‘for the peaceful enjoy of possessions’, in order to establish a positive principle of economic self-expression, or guarantee for particular forms of business conduct. Prior to the coming into force of the Charter, the Court had already confirmed that the 16.36 principle of protection for freedom to conduct business would extend to protection for the established market position of an undertaking, as well as to the need for an undertaking to maintain a degree of certainty with regard to its own economic planning.70 In the meantime, the Court has added one further area of substantive protection for commercial undertakings, that of protection for commercial secrecy. The case of Interseroh, decided in March 2012, also proves to be of general interest with regard to the application of Article 16. The Court found against the plaintiffs, Interseroh, who argued that Article 18(1)(a) of Regulation 1013/2006 on the shipping of waste, infringed principles of business confidentiality, and thus its freedom to conduct business, requiring the firm to place its name on shipping documents, such that its intermediary position within the process of waste shipping would be revealed to final customers. The Court’s rejection of this plea, however, did not detract from its parallel recognition that Article 16 would extend to protection for commercial secrecy (para 43). Instead, the Court noted that the provisions of Article 18(1)(a) were ‘clear and unconditional’, such that its impact could not be ameliorated by application of the principle of freedom to conduct business. As a consequence, the Court could only apply that principle in an action for annulment of the Regulation; an action which had not been brought before it within the current proceedings (para 44). In summary, then, the Court has provided protection for the conduct of business 16.37 in discreet areas. However, it has yet to develop a more comprehensive set of principles to govern the performative element within the freedom to conduct business. At core, a defining and tricky question of what may or must be considered to be the core elements of business practice that are deserving of fundamental protection, this question will undoubtedly occupy the Court for the foreseeable future. At the time of writing, however, one particular principle appears to be emerging. As the Opinion of Advocate General Bot, delivered in the case of Sky Österreich indicates,71 a core element within business freedom that is worthy of Article 16 protection is one that economic actors will not be exposed to undue or unfair business costs arising, in this case, out

70 71

Germany v Council and Finsider (n 12). Sky Österreich (n 53), Opinion of AG Bot.

Michele Everson and Rui Correia Gonçalves

453

Part I – Commentary on the Articles of the EU Charter

of the requirements of EU regulation for audiovisual media Services (Art 15, Directive 2010/13/EU). AG Bot dismisses the applicant’s plea for relief for the costs accruing to them—also under Austrian implementing measures—with regard to the transmission of short news extracts, for which third parties hold exclusive rights, for reasons of the community interest in ensuring a broad degree of legislative discretion with regard to the maintenance of information plurality. He nevertheless confirms, in paragraph 39, that costs imposed upon Sky Österreich by Union and national law do constitute a justifiable infringement of the commercial interests of the operator as protected by Articles 16 and 17 of the Charter. 16.38 AG Bot’s formulation of a principled application of Article 16, whereby the costs imposed by regulation, where not justified by the Community interests, represent an intrusion into the substantive core of the act of doing business, has similarly—if only implicitly—been given some credence by the Court in Sky Österreich, at least to the degree that the Court’s final rebuttal of the claimants plea against imposition of costs was founded in examination of the ‘proportionate’ balancing of the right to free business against the right to information.72 This principle, however, may also be argued to have a firm basis in the Court’s earlier jurisprudence in Scarlet Extended and Netlog;73 or at least to do so, to the degree that the costs imposed by one private economic operator upon another, were similarly found to infringe upon the sphere of protection afforded by Article 16. However, as earlier noted, these two seminal cases may also be argued to encompass far broader principles for the application of Article 16 which reside in the Court’s emerging vision of what constitutes fair business dealings—or free and fair competition—within the European Economic Constitution. 16.39 The facts of the cases are broadly similar and concern an intriguing interplay between Article 16 and Article 17, or rights to intellectual property. In Scarlet Extended, the Court decided that an injunction requiring the installation of a complicated, costly and permanent computer system at the expense of ISPs in order to filter electronic communications which use file-sharing software (‘peer-to-peer’), with a view to preventing file sharing which infringes copyright, would result in a serious curtailment of the freedom of those ISPs to conduct their business. The Court subsequently confirmed its earlier ruling in Netlog, once again in relation to an injunction which sought to impose various operating conditions upon an ISP in the service of protection of intellectual copyright. In each case, the Court referred to Community legislation, or Article 3 of Directive 2004/48,74 which more generally details the basis upon which the holders of intellectual property may seek injunctions, in order to protect their rights, and to its particular prescription that the corrective measures demanded in injunctions must be proportionate, or, in this context, not ‘too costly’. To this degree, the Court’s judgment may be argued to be a simple securing of the legislative policy of the Union, especially as it applies to the appropriate balance to be struck between protection of intellectual property and the overall functioning of markets. Nevertheless, paragraph 53 of the Court’s judgment in Scarlet Extended not only introduces a further element into the adjudicative balance, the

72

Ibid [59]. See nn 56 and 57 above. 74 European Parliament and Council Directive 2004/48/EC on the enforcement of intellectual property rights [2004] OJ L195/16. 73

454

Michele Everson and Rui Correia Gonçalves

Art 16 – Freedom to Conduct a Business

right to free information; but, also establishes an independent role for the Court in the definition of what constitutes the core of protected business operation: Consequently, it must be held that, in adopting the [overly onerous] injunction requiring the ISP to install the contested filtering system, the national court concerned would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other.

As noted, the imposition of a duty upon national courts to balance rights of property 16.40 against the freedom to conduct business in conflicts between private economic operators amounts in fact and de jure to the elevation of a freedom to conduct business to the status of private obligation or quasi subjective right. Equally, the cases of Scarlet Extended and Netlog must also be understood as immediately refuting the presumption raised by the wording of the Charter that, in the intricate complex of related rights to work, property and the freedom to conduct business, commercial freedom is the poor relation. Instead, in the Court’s emphatic view, the freedom to conduct business may, where necessary, be asserted above the right to (intellectual) property. As a consequence, and to the degree that Article 16 may be regarded as subjec- 16.41 tive right, rather than guiding principle, it is appropriate to return to the question of whether the Court of Justice is currently engaged in establishment of a value neutral exposition of a right to business conduct founded within notions of human dignity and the existential need of individual Europeans to engage in economic activity. Or, by contrast, whether the Court is extrapolating a right to conduct business from Article 16, with a view to the legitimacy of a particular form of economic activity within Europe’s evolving Economic Constitution. One immediate factor, which may argue in favour of the latter interpretation, however, is the lack of attention paid in Scarlet Extended and Netlog to the ‘Wesentlichkeits’ test, as enunciated by the Court of Justice in EMA,75 or the question of whether the assertion of a right to property would, under the facts, negate the freedom to conduct business in its substance. Certainly, the conditions imposed by the proposed injunctions would prove to be particularly onerous. Yet, as the Court noted in EMA, albeit in relation to costs imposed by Community legislation, ‘[T]he importance of the objectives pursued [in this case, protection of intellectual property] may justify restrictions which bring about even substantial negative consequences for certain economic operators’ (paragraph 89). On the facts of the cases in Scarlet Extended and Netlog, ISPs would have been able to continue trading under the proposed injunctions. However, they might have been forced to do so at a disadvantaged competitive position, due to their enhanced costs. And it is here, with regard to this final observation, that the Court’s jurisprudence 16.42 may be placed in a far broader context of its efforts to influence and to fashion the

75 See n 67 [89]. It is settled case law, however, that it may be restricted, provided that those restrictions correspond to objectives of general interest pursued by the European Union and that they do not constitute a disproportionate and intolerable interference which would affect the very substance of the right so guaranteed (see, to that effect, Germany v Council (n 12) [78]; Case C-183/95 Affish [1997] ECR I-4315 [42]; and Case T-113/96 Dubois et Fils v Council and Commission [1998] ECR II-125 [74]). The importance of the objectives pursued may justify restrictions which bring about even substantial negative consequences for certain economic operators (see, to that effect, Case C-331/88 Fedesa and Others [1990] ECR I-4023 [17]; and Affish [42]).

Michele Everson and Rui Correia Gonçalves

455

Part I – Commentary on the Articles of the EU Charter

emerging European Economic Constitution. Above all, although not competition law cases, Scarlet Extended and Netlog recall the Court of Justice’s case law in TeliaSonera.76 Famously, the Treaty of Lisbon has dispensed with the historic reference found in European law to the establishment of an internal market which ‘includes a system that competition is not distorted’. To many commentators, the downgrading of notions of free and fair competition to a mention within the protocols of the TFEU is simple confirmation of the drift of the European Economic Constitution away from its ordo-liberal roots, especially with regard to the character of its competition policy.77 Thus, although the economic institutions of the Treaty for European Union (economic freedoms and competition law) still reproduce the ordo-liberal spirit of the Rome Treaties, EU policy, and especially so following the 2004 reform of EU competition policy,78 now tends to the ‘Washington consensus’, or—controversially—to the neo-liberal model, where, as former Competition Commissioner, Mario Monti has noted, ‘[T]he European Commission is committed to develop a modern and efficient competition policy which reflects a realistic economic analysis of the market place,’ and in which Union policymakers have ‘shifted from a legalistic approach to an interpretation based on sound economic principles,’ within which protection of the ‘consumer’ is paramount.79 16.43 In some quarters of the Union, the rigid and legally enforced emphasis of the ordoliberal model upon equal competition within the market place, or upon the normative restriction of the powers of dominant operators, regardless of the findings of economic analysis, is viewed to be an inadequate response to modern economic conditions within the globalised economy. The position of the Court of Justice, however, appears to be less convinced. In TeliaSonera, the Court reasserted the fundamental position of notions of free and fair competition within the primary law of the EU, equating the modified Article 3(1)(b) TFEU with Article 3(3) TEU, because ‘the function of those rules is precisely to prevent competition from being distorted to the detriment of the public interest, individual undertakings, and consumers, thereby ensuring the well-being of the European Union’.80 The distinction from Mario Monti’s analysis, the Court’s triple emphasis on public interest, and the rights of undertakings, as well as those of consumers, is striking. Seen in this light, might Scarlet Extended and Netlog also represent the Court of Justice’s remedial attachment to various of the ‘legalistic’ premises of the ordo-liberal Economic Constitution and, above all, to reflect its politically-inspired commitment to the equal protection of economic operators? Certainly, operating freedom on the internet does form a special case within the modern economy. Nevertheless, the Court’s emphasis upon the fairness and equality of business dealings may prove to be a basis for a further principled development of Article 16.

76

Case C-52/09 Konkurrensverket v TeliaSonera Sverige AB [2011] ECR I-527. Wigger (n 6) and Joerges (n 44). 78 Sadly beyond the scope of this chapter. See, for full details, Wigger (n 6). 79 Mario Monti, ‘EU Competition Policy After May 2004’ (speech at the Fordham Annual Conference on International Antitrust Law and Policy, New York, 24 October 2003) www.eurunion.org/news/ speeches/2003/031024mm.htm. 80 Case C-52/09 TeliaSonera Sverige (n 76) [22] (emphasis added). 77

456

Michele Everson and Rui Correia Gonçalves

Art 16 – Freedom to Conduct a Business

(b) Contractual Autonomy As noted, contractual autonomy formed a part of the freedom to conduct business prior to entry into force of the Charter. The Court of Justice has yet to confirm that contractual autonomy will also form a part of freedom to conduct business as enunciated in Article 16. Nevertheless, the Opinion of AG Kokott, delivered on 17 September 2009, in the case of Commission v Alrosa,81 proves to be of interest in this regard, albeit that the Court did not pronounce on the issue raised. Alrosa concerned a commitment offered to the Commission by De Beers in 2006 to avoid the accusation of abuse of a dominant position (under what is now Art 102 TFEU). As the worldwide market leader in the diamond trade, De Beers undertook in future not to purchase any more rough diamonds from Alrosa, the second largest producer, bringing to an end a long-standing trading relationship between the two. By a decision under Article 9 of Regulation 1/2003, the Commission made that commitment by De Beers binding. Alrosa considered that decision to be disproportionate and took the view that its right to be heard had been infringed. The Court of First Instance annulled the decision and the Commission appealed against that judgment. The AG proposed that the Court should ‘set aside the judgment of the Court of First Instance (T-170/06) and dismiss the action by which Alrosa applied to the Court of First Instance for the annulment of Commission Decision 2006/520/EC of 22 February 2006.’82 In the course of his reasoning, the AG stated that ‘[C]ontractual freedom is one of the general principles of Community law. It stems from the freedom to act for persons. It is also inseparably linked to the freedom to conduct a business. In a Community which must observe the principle of an open market economy with free competition, contractual freedom must be guaranteed. The case-law of the Court of Justice also recognises that economic operators must enjoy contractual freedom’ (para 225). Further, ‘[i]n adopting competition decisions the Commission is required to take account of the principle of contractual freedom and the freedom to conduct a business’ (para 226). The AG nevertheless then proceeded to confirm the restricted procedural approach to contractual autonomy that the historic Court had pursued in cases, such as Sukkerfabriken Nykøbing and Spain v European Commission, whereby contractual freedom might be restricted following due legislative procedure:83 the decision was not ‘unfair, but a completely lawful means by which the Commission pursues the legitimate aim of effectively protecting competition against distortion. It is true that this has meant that Alrosa has lost its desired contractual partner for the future. However, this is one of the risks which must be borne by Alrosa, like any other economic operator in an open market economy. This does not impair the contractual freedom enjoyed by Alrosa’ (paras 229 and 230). For now, the assumption must accordingly be that contractual freedom will form a part of the jurisdiction of Article 16, but that its ambit remains restricted. Freedom of contract will not extend to a principle of future contractual certainty for economic operators who remain exposed to the contractual uncertainties posed by the legislative competence of the Union. The final judgment of the Court in Alrosa, however, similarly

81 82 83

Case C-441/07 P Commission v Alrosa [2010] ECR I-5949. Ibid, Opinion of AG Kokott [274]. See, above, nn 13 and 15.

Michele Everson and Rui Correia Gonçalves

457

16.44

16.45

16.46

16.47

Part I – Commentary on the Articles of the EU Charter

proves to be of interest to the general question posed by this analysis of whether the Court is actively pursuing its own vision of the European Economic Constitution, at least as regards imposition of a rights-based approach to notions of ‘free and fair’ competition above the formulation of appropriate competition on the basis of economic analysis. 16.48 In paragraph 102 of the judgment, the Court reaffirmed its settled case law, that maintenance of undistorted competition is a competence of the legislative/executive arm of the Union: ‘[I]t is true that, in the context of the review of concentrations, settled case law provides that the Commission enjoys a broad discretion in assessing the necessity of obtaining commitments in order to dispel the serious doubts raised by a notified concentration (Case T-158/00 ARD v Commission [2003] ECR II-3825, paragraphs 328 and 329).’ Limiting its own review to one of ‘manifest error’, which the Court is nevertheless legitimated in undertaking, due to ‘the prospective nature of the economic analysis carried out by the Commission,’ the Court of Justice thus implicitly confirmed that it will continue to maintain the legal position, developed most emphatically by the Bundesverfassungsgericht at national level,84 that—in this field of the application of competition policy—it will not develop an independent standard of free competition, or a subjective right to ‘free and fair’ competitive conditions, which might be asserted by individual Europeans above the legislative provisions of EU competition policy. This final point is of particular interest with regard to the context within which the 16.49 impact of the cases of Scarlet Extended and Netlog must be assessed. Certainly, this line of principle does not preclude future mismatch between the Court of Justice and the institutions of the Union with regard to the establishment of a standard of equality of private business relations—or ‘free’ and ‘fair’ competition—within the European Economic Constitution; after all the Court, in Alrosa, in line with its usual practice, applied a (substantive) test of proportionality, in order to assess the (procedural) concept of manifest error. Nevertheless, it does seem to infer that potential mismatch will, if it does arise, more commonly emerge in a form of ‘horizontal conflict’ between the Court’s application of Article 16—as well as the provisions of the Charter in general— in specific economic sectors (audiovisual services, telecommunications etc), and the sphere of application of the more generally applicable rules of EU competition policy.

IV. Limitation to and Derogations from the Application of Article 16 16.50 Returning immediately to the position of Article 16 within the emerging Economic Constitution within the European Union, one of the primary points of concerns expressed by social and governmental interests at the national level, relates to the degree to which Article 16 may impact upon the relations maintained between the European economic order and social provision within Europe, most commonly still secured within national social orders. Since its judgment in Wachauf, the Court of Justice has consistently held that the fundamental rights it recognised, although constituting general principles of EU law, are not absolute and must be considered in relation to

84

458

See, above, section D.

Michele Everson and Rui Correia Gonçalves

Art 16 – Freedom to Conduct a Business

their social function.85 Consequently, the historic Court accepted that ‘restrictions may be imposed on the exercise of those rights, in particular in the context of a common organization of a market, provided that those restrictions in fact correspond to objectives of general interest pursued by the Community and do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of those rights.’86 Consequently, prior to entry into force of the Charter, the reach of the economic juris- 16.51 prudence of the Court of Justice at this vital interface between economic and social orders was clearly contained, limited by the legitimate social aims of the member states, especially as regards the regulation of industries of public significance. The Charter nevertheless omits any specific limitation clauses for the rights and freedoms it recognises. Instead, a general limitation clause was included in Article 52, applying to all rights and freedoms the Charter recognises. Equally, although they ‘do not as such have the status of law’ and are, rather, to be viewed as a ‘valuable tool of interpretation intended to clarify the provisions of the Charter’,87 the Explanations of the Presidium of the Convention which drafted the Charter do detail specific limitations for the exercise of Charter rights; but, similarly omit specific mention of limitations to Article 16, explaining simply that ‘[i]t may be subject to the limitations provided for in Article 52(1) of the Charter.’88 The consequent degree of legal uncertainty engendered with regard to the question 16.52 of whether Article 16 will still be subject to the historic limitations placed upon the freedom to conduct business by the Court of Justice is therefore one further explanation for its unique formulation within the complex of economic rights, as a ‘freedom’ which is exercised ‘in accordance with Union law and national law and practices.’ The specific reiteration of national law and practices may thus be argued to reflect the efforts by various national positions to retrench the freedom to conduct business as a simple existential right which may still be limited by the complex web of national rules and social practices (eg, collective bargaining) which apply within national social orders. Nevertheless, an immediate question arises as to whether such concern is misplaced. Article 52(1) of the Charter reproduces the settled case law of the Court and accepts that limitations may be imposed on the exercise of rights and freedoms recognised by the Charter, such as the freedom to conduct a business set forth in Article 16, on the condition that those limitations are provided by law, respect the essence of the rights and freedoms in question, are subject to the principle of proportionality, are necessary and genuinely meet the objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. In the light of this formulation, the strong presumption must be one that historic 16.53 limitations imposed by the Court will continue to apply. In this regard, the Court

85 Case 5/88 Wachauf [1989] ECR 2609 [18]; Case C-177/90 Kühn [1992] ECR I-35 [16]; Joined Cases C-184/02 and C-223/02 Spain and Finland v Parliament and Council [1994] ECR I-07789 [52]; Case C-44/94 R v Minister of Agriculture, Fisheries and Food ex p Fishermen’s Organisations and Others [1995] ECR I-3115 [55]; Case C-22/94 The Irish Farmers Association and Others [1997] ERC I-1809 [27]; Case C-200/96 Metronome Musik [1998] ECR 1-1953 [21]; Joined Cases C-20/00 and C-64/00 Booker Aquaculture and Hydro Seafood [2003] ERC I-7411 [68]; and Joined Cases C-37/02 and C-38/02 Di Lenardo and Dilexport [2004] ECR I-6911 [82]. 86 Ibid. 87 Explanations Relating to the Charter of Fundamental Rights (n 33) 17. 88 Ibid 23.

Michele Everson and Rui Correia Gonçalves

459

Part I – Commentary on the Articles of the EU Charter

accepted prior to the introduction of the Charter that several kinds of restrictions to the freedom to conduct a business which were considered to correspond, in fact, to objectives of general interest pursued by the Union: ‘the efficient management and the simplified administration of a levy scheme, and the obligation which processors have as a consequence to pay the levy and to pass it on to their suppliers’ (Schräder v Hauptzollamt Gronau89), ‘to ensure that losses incurred by an economic sector are not borne by the Community’ (Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest90), ‘to remedy the situation of surpluses on the milk and milk products market’ (Kühn91), ‘objectives of the common agriculture policy’ (Germany v Council 92), ‘the improvement of road safety’ (Spain and Finland v Parliament and Council 93), ‘the structural improvement of the fisheries sector’ (R v Minister of Agriculture, Fisheries and Food ex p Fishermen’s Organisations and Others94), ‘to remedy a worrying economic and social situation in the inland waterways sector’ (SAM Schiffahrt and Stapf 95), and, ‘to combat speculative or artificial practices in relation to the issue of import licences, thereby precluding the possibility of a traditional operator who already has a tariff quota from being included in that same quota again as a non-traditional operator through the intermediary of another operator to which it is related’ (Di Lenardo and Dilexport 96). 16.54 By the same token, jurisprudence since passage into force of the Charter has repeatedly reinforced the presumption that such established limitations to the freedom to conduct business will continue to apply. Thus, in a very recent judgment delivered on 6 September 2012, the Court has even expanded the scope of limitations to be applied to Article 16, holding that objectives pursued in the field of ‘public health’ could justify restrictions upon its exercise.97 Equally, within this judgment, the Court also implied that the more general norms established within the Charter would themselves enhance the potential for its limitation. Above all, in its justification for the restriction of Article 16, the Court explicitly referred to the objective recognised in the second sentence of Article 35 of the Charter (Right to Health Care), which states that ‘a high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities.’98 Given the Court’s equally crucial affirmation in EMA that even those legitimate 16.55 ‘objectives’ which ‘bring about substantial negative consequences for certain economic operators’ will be applied to limit Article 16,99 an immediate conclusion must surely be that, in terms of the advent of a comprehensive scheme of personal protection for the individual European, personal economic interests within the EU are now contained within a balanced scheme of economic, social, ethical and even cultural consideration.

89 90 91 92 93 94 95 96 97 98 99

460

Case 265/87 Schräder v Hauptzollamt Gronau [1989] ECR 2237 [18]. Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest (n 20) [76]. Kühn (n 20) [17]. Germany v Council (n 12) [81]. Spain and Finland v Parliament and Council (n 15) [53]. R v Minister of Agriculture, Fisheries and Food, ex parte Fishermen’s Organisations and Others (n 84) [56]. SAM Schiffahrt and Stapf (n 20) [73]. Di Lenardo and Dilexport (n 84) [84]. Deutsches Weintor eG v Land Rheinland-Pfalz (n 69) [49]. Ibid [45]. EMA (n 67) [89].

Michele Everson and Rui Correia Gonçalves

Art 16 – Freedom to Conduct a Business

However, such a conclusion must likewise be immediately qualified, especially as 16.56 regards the balancing of the rights contained within the Charter, and specifically so at the interface between the Union’s economic competence and the residual social competences of the member states. This qualification is relevant where Article 16 re-emerges as a ‘principle’ of European Economic Constitution, dedicated to a specific form of economic organisation. Closely related to the uncertainty which still pertains to the scope of application of the European Charter, the vital issue here is not one of how Article 16 applies to the implementing acts of the Member States, but rather one of the degree to which it may be applied to judicial actions protecting the community interest in pursuit of the internal market, where national social regulation may be argued to conflict with it. In this regard, the cases of Viking and Laval, affording direct horizontal effect to economic rights of establishment and services enshrined within the TFEU (Arts 49 and 56) take on a new significance.100 Certainly, in commentaries on the Charter, Viking and Laval are celebrated as confirming rights to collective bargaining and rights to strike within the European Union. Nevertheless, the cases are likewise subject to extreme criticism both within more general literature, and within the trades union movement throughout the Continent.101 In this latter analysis, far from being an expression of workers protection within 16.57 Europe, Laval and Viking represent the apotheosis of an aggressively liberating strand within internal market jurisprudence, which by seeking to balance economic rights with social rights in accordance with the principle of proportionality, undermines the principles of the traditional concept of the Economic Constitution, which regarded each order as separate and to be established in isolation from one another within the European and national jurisdictions.102 Far from reaffirming the social rights of workers within Europe, the Court has undermined social principles, illegitimately subjecting social rights to the economic imperatives which arise in the act of the balancing of social and economic rights, or its pursuit of a concept of economic rather than social justice that emphasises protection for notion of ‘competitive labour advantage’ within the emerging European Economic Constitution.103 The final reason for the degree of political disquiet which has attached to Article 16 16.58 is thus revealed. Article 16 has yet to emerge as a factor within jurisprudence on the liberalising reach of the four freedoms of the TFEU, especially as they relate to publicly regulated services, or to the guarantee for free movement of goods. Nevertheless, given the close relationship of these rights with the freedom to conduct business within the EU, it is perhaps inevitable that they will do so, and particularly do so, in relation to commercial efforts to expand the Court’s application of the market access test to Article 34 TFEU.104 It is accordingly, here, with regard to specification of the core nature of

100

See above, n 65. A Supiot, ‘A legal perspective on the economic crisis of 2008’ (2010) 149 International Labour Review 151; C Joerges and F Rödl, ‘Informal Politics, Formalised Law and the “Social Deficit” of European Integration: Reflections after the Judgments of the ECJ in Viking and Laval’ (2009) 15 European Law Journal 1; B Bercusson, ‘The Trade Union Movement and the European Union: Judgment Day’ (2007) 13 European Law Journal 279. 102 Above all, Supiot, see above n 101. 103 Or the integrative ability of providers to offer cheaper services across European borders. 104 Historically, always a site for the assertion of aggressively deregulatory commercial interests within Europe. See, for full details of the potential impact of the market test in the field of the free movement of goods, A Tryfonidou, ‘Further steps on the road to convergence among the market freedoms’ (2010) 35 European Law Review 36. 101

Michele Everson and Rui Correia Gonçalves

461

Part I – Commentary on the Articles of the EU Charter

the freedom to conduct business within the EU, that the Court of Justice may yet face one of its greatest challenges. Above all, where Europe is slowly evolving its own interrelated complex of social, ethical, cultural and economic norms, European law may yet be required to reassess its long-standing reliance upon the principle of proportionality. Drawn from the realm of administrative law, the concept of proportionality is rightly prized for its ability to rationalise judicial decision-making, but it has—traditionally speaking—played a far lesser role within constitutional jurisdictions concerned with the balancing of complexes of conflicting rights. Here, the Court of Justice may, in the future, be increasingly required to engage with far more contested process of socially and politically embedded constitutional adjudication.

V. Remedies 16.59 To date, little if any guidance has emerged from the case law of the Court of Justice with regard to the specific legal remedies that may apply to Article 16. And indeed, doubts must similarly arise as to the scope of remedies that may apply to a ‘freedom’, rather than a right, a potentially greatly curtailed principle of European law (see above, section C). Nonetheless, the freedom to conduct business must be regarded as being subject to the general principles governing the Charter as a whole. In this regard, Article 47 of the Charter lays down the general principle that, ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.’ The Court has given some guidance on the general principles applying to remedies within the Charter in the case of Unibet.105 Here, the Court gave a preliminary ruling concerning the interpretation of the principle of effective judicial protection of an individual’s rights under Community law, noting that this was ‘reaffirmed’ in Article 47 of the Charter of Fundamental Rights. Accordingly: — In the absence of Union rules, it is for national law to designate the competent courts and lay down the procedural rules applicable (para 39). — Union law does not create new remedies in the national courts unless it is ‘apparent … that no legal remedy existed which made it possible to ensure, even indirectly, respect for an individual’s rights under [Union] law’ (para 41). — It is for the Member States to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection (para 42). — The procedural rules laid down must satisfy principles of equivalence and effectiveness. Accordingly, rules governing actions to protect an individual’s rights under Union law should be no less favourable than those governing similar domestic actions. Moreover, they must not make it ‘practically impossible or excessively difficult’ to exercise rights conferred by Union law (para 43). — It is for national courts to interpret their procedural rules in such a way as to enable them to be implemented in a manner which contributes to the effective protection of an individual’s rights under Union law (para 44).

105

462

Case C-432/05 Unibet [2007] ECR I-2271.

Michele Everson and Rui Correia Gonçalves

Art 16 – Freedom to Conduct a Business

The impact of this final point can be clearly discerned in the Scarlet and Netlog jurisprudence of the Court of Justice, whereby the freedom to conduct business required establishment of a new element—consideration of the principle—within the procedures of national law governing the granting of inunctions.

16.60

E. Conclusion The future evolution of Article 16 will undoubtedly prove to be one of the most intrigu- 16.61 ing aspects of the application of the European Charter of Fundamental Rights within European law. The Court has already, and especially so in its Judgments in Scarlet Extended and Netlog, substantially enhanced the degree of protection for economic activity which the individual European might reasonably expect to be secured by European law. Yet, the most controversial aspect in future jurisprudence will undoubtedly be the degree to which Article 16 may be considered to be more than a retrenched right to human dignity, and may be viewed instead as an important element within Europe’s emerging Economic Constitution. Both for Union institutions and for the member states, this may prove to be a matter for concern, forming a focal point for conflict about the meaning and place of economic activity within the ever closer union of Europe. The explicit formulation of Article 16 within the Charter must, similarly, be regarded 16.62 to form a unique legal experiment. Not only is Article 16 the first explicit recognition for the freedom to conduct a business within international or supranational law. Instead, when seen in contrast to national constitutional provisions, Article 16 is not a settled element within a post-conflict constitutional settlement. Rather, it emerges in the context of a unique effort to define the meaning and limitation of economic freedom within a still-emerging political order.

Michele Everson and Rui Correia Gonçalves

463

Article 17(1)*

--

Article 17(1) Right to property Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.

Text of Explanatory Note on Article 17(1) This Article is based on Article 1 of the Protocol to the ECHR: ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.’ This is a fundamental right common to all national constitutions. It has been recognised on numerous occasions by the case law of the Court of Justice, initially in the Hauer judgment (13 December 1979, ECR [1979] 3727). The wording has been updated but, in accordance with Article 52(3), the meaning and scope of the right are the same as those of the right guaranteed by the ECHR and the limitations may not exceed those provided for there.

Select Bibliography M Aguilera Vaqués, ‘Right of Property and Limits on its Regulation’, in J García Roca and P Santolaya (eds), Europe of Rights: A Compendium on the European Convention of Human Rights (Leiden, Nijhoff, 2012) 537. T van Banning, The Human Right to Property (Antwerp, Intersentia, 2002). JF Baur, K Pritzsche and S Pooschke, ‘“Ownership Unbundling” von Energienetzen und der europäische Schutz des Eigentums’ (2008) Deutsches Verwaltungsblatt 483. F Becker, ‘Market Regulation and the “Right to Property” in the European Economic Constitution’ (2007) Yearbook of European Law 254. AR Çoban, Protection of Property Rights within the European Convention on Human Rights (Hants, Ashgate, 2004). HJ Cremer, ‘Eigentumsschutz’ in O Dörr, G Grote and T Marauhn (eds), EMRK/GG Konkordanzkommentar, vol 2, 2nd edn (Tübingen, Mohr Siebeck, 2013) 1466. T von Danwitz, ‘Eigentumsschutz in Europa und im Wirtschaftsvölkerrecht’ in T von Danwitz, O Depenheuer and C Engel (eds), Bericht zur Lage des Eigentums (Berlin, Springer, 2002) 215. * This article is based on the author’s respective commentary on Article 17 CFR in H von der Groeben/ J Schwarze/A Hatje (eds), ‘EUV-/AEUV-Kommentar’ 7th edn 2014 (Baden-Baden, Nomos, forthcoming); the author wishes to thank his assistant Ass jur Jennifer Ricketts for working on an English draft of this article and his student assistant Johannes Stapf for work on the footnotes.

Part I – Commentary on the Articles of the EU Charter

JF Emsinghoff, Entschädigung für Eigentumseingriffe infolge rechtmäßiger Rechtsetzungsakte der Europäischen Gemeinschaft (Baden-Baden, Nomos, 2008). W Fiedler, ‘Die EMRK und der Schutz des Eigentums’ (1996) Europäische Grundrechte Zeitschrift 354. K Gelinsky, Der Schutz des Eigentums gemäß Art. 1 des Ersten Zusatzprotokolls zur europäischen Menschenrechtskonvention (Berlin, Duncker & Humblodt, 1996). J Günter, Berufsfreiheit und Eigentum in der Europäischen Union (Heidelberg, CF Müller, 1998). M Hartwig, ‘Der Eigentumsschutz nach Art. 1 1. Zusatzprotokoll zur EMRK’ (1999) 63 Rabels Zeitschrift für ausländisches und internationales Privatrecht 561. S Heselhaus, ‘Schutz von Unternehmen durch das Eigentumsgrundrecht im Europäischen Gemeinschaftsrecht’ in T Bruha, C Nowak and HA Petzold (eds), Grundrechtsschutz für Unternehmen im Europäischen Binnenmarkt (Baden-Baden, Nomos, 2004) 97. HD Jarass, ‘Der grundrechtliche Eigentumsschutz im EU-Recht’ (2006) Neue Zeitschrift für Verwaltungsrecht 1089. W Leisner, ‘Der europäische Eigentumsbegriff ’ in J Ipsen, H-W Rengeling, JM Mössner and A Weber (eds), Verfassungsrecht im Wandel: Zum 180 jährigen Bestehen der Carl Heymanns Verlag KG (Cologne, Heymanns, 1995) 395. A Lucarelli, ‘Article 17—Right to Property’ in W Mock (ed), Human Rights in Europe (Durham NC, Carolina Academic Press, 2010). BM Malzahn, Bedeutung und Reichweite des Eigentumsschutzes in der Europäischen Menschenrechtskonvention (Frankfurt, Lang, 2007). J McBride, ‘The Right to Property’ (1996) 21 European Law Review 40. C von Milczewski, Der grundrechtliche Eigentumsschutz im Europäischen Gemeinschaftsrecht (Frankfurt, Lang, 1994). P Mittelberger, ‘Die Rechtsprechung des ständigen Europäischen Gerichtshofs für Menschenrechte zum Eigentumsschutz’ (2001) Europäische Grundrechte Zeitschrift 364. O Müller-Michaels, Grundrechtlicher Eigentumsschutz in der Europäischen Union (Berlin, Duncker & Humblodt, 1997). U Penski and BR Elsner, ‘Eigentumsgewährleistung und Berufsfreiheit als Gemeinschaftsgrundrechte in der Rechtsprechung des Europäischen Gerichtshofs’ (2001) Die Öffentliche Verwaltung 265. E Reininghaus, Eingriff in das Eigentumsrecht nach Artikel 1 des Zusatzprotokolls zur EMRK (Berlin, Berliner Wissenschafts-Verlag, 2002). HW Rengeling, ‘Die wirtschaftsbezogenen Grundrechte in der Europäischen Grundrechtecharta’ (2004) Deutsches Verwaltungsblatt 453. T Schilling, ‘Eigentum und Marktordnung nach Gemeinschafts- und nach deutschem Recht’ (1988) Europäische Grundrechte Zeitschrift 177. ——, ‘Der EuGH, das Eigentum und das deutsche Recht’ (1991) Europäische Zeitschrift für Wirtschaftsrecht 310. P Sonnevend, ‘Eigentumsgarantie’ in C Grabenwarter (ed), Enzyclopädie Europarecht, vol 2 (Baden-Baden, Nomos, 2014) §14. P Sturma, ‘Article 17—Right to property’, in EU Network of Independent Experts on Fundamental Rights (ed), Commentary of the Charter of Fundamental Rights of the European Union (http:// cridho.uclouvain.be/documents/Download.Rep/NetworkCommentaryFinal.pdf, 2006) p 163. PJ Tettinger, ‘Zum Schutz des geistigen Eigentums in der Charta der Grundrechte der EU’ in M Haesemann, K Gennen and B and A Bartenbach (eds), Festschrift für Kurt Bartenbach (Cologne, Heymanns, 2005) 43. M Thiel, ‘Europa 1992: Grundrechtlicher Eigentumsschutz im EG-Recht’ (1991) Juristische Schulung 274. R White and C Ovey, The European Convention on Human Rights, 5th edn (Oxford, Oxford University Press, 2010).

466

Ferdinand Wollenschläger

Art 17(1) – Right to Property

L Wildhaber, ‘Die neuere Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte zum Eigentumsschutz’ in H Bauer et al (eds), Öffentliches Wirtschaftsrecht im Zeitalter der Globalisierung (Warsaw, Wolters Kluwer Polska, 2012) 95.

A. Field of Application of Article 17(1) The right to property has to be respected, according to Article 51(1), by EU institu- 17(1).01 tions, bodies, offices and agencies as well as by the Member States—in the latter case, however, only when national authorities implement EU law (cf 51.49 ff). Numerous examples exist of property-related EU legislation, some requiring implementing acts on the national level: unbundling measures or the obligation to grant competitors access to one’s network in the area of network industries such as the telecommunication or energy sectors;1 workers’ participation provided for by EU labour law;2 the freezing of funds of persons and entities with a view to combating terrorism;3 or the proposed legislation on ‘the freezing and confiscation of proceeds of crime in the European Union’.4

B. Interrelationship of Article 17(1) with Other Provisions of the Charter Apart from the right to property, the Charter guarantees further economic rights, namely 17(1).02 the freedom to choose an occupation and the right to engage in work (Art 15) as well as the freedom to conduct a business (Art 16). The ECJ often does not differentiate between the right to property and these rights with the necessary precision, but simply

1 Access: Arts 4, 5, 6, 8, 13 Directive 2002/19/EC [2002] OJ L108/7 last amended by Directive 2009/140/EC [2009] OJ L337/37. Unbundling: Art 3 Directive 2009/72/EC [2009] OJ L211/55; Art 21 of Directive 2008/57/EC [2008] OJ L191/1 last amended by Commission Directive 2013/9/EU [2013] OJ L68/55. See also JF Baur, K Pritzsche and S Pooschke, ‘“Ownership Unbundling” von Energienetzen und der europäische Schutz des Eigentums’ (2008) Deutsches Verwaltungsblatt 483; F Becker, ‘Market Regulation and the “Right to Property” in the European Economic Constitution’ (2007) Yearbook of European Law 254, 258 ff. 2 See Council Directive 2001/86/EC [2001] OJ L294/22; Council Directive 2003/72/EC [2003] OJ L207/25. Also J Heuschmid, Mitentscheidung durch Arbeitnehmer (Baden-Baden, Nomos, 2009). 3 Council Regulation (EC) 881/2002 [2002] OJ L139/9 last amended by Commission Implementing Regulation (EU) 439/2013 [2013] OJ L129/34; Council Regulation (EC) 2580/2001 [2001] OJ L344/70 last amended by Commission Implementing Regulation (EU) 646/2013 [2013] OJ L187/4; Directive 2005/60/EC [2005] OJ L309/15 last amended by Directive 2010/78/EU [2010] OJ L331/120. 4 Proposal for a Directive of the European Parliament and of the Council on the freezing and confiscation of proceeds of crime in the European Union COM [2012] 85 final.

Ferdinand Wollenschläger

467

Part I – Commentary on the Articles of the EU Charter

17(1).03

17(1).04

refers to both at the same time without ruling on their interrelationship.5 Still differentiation—as emerging in recent case law of the ECJ6—is of essence in order to contour these guarantees.7 Since current market shares, in view of their volatility, do not constitute property within the meaning of Article 17, measures restricting the possibility to act on the market and to carry out business activities are not covered by the right to property, but only by the freedom to choose an occupation and the right to engage in work or by the freedom to conduct a business respectively.8 In contrast, Article 17(1) extends to measures related to the substance of an enterprise9 like the seizure of property. In particular cases, both aspects may be affected so that both guarantees apply. Finally, it shall be pointed out that this distinction has been established in German constitutional law also differentiating between the protection of acquiring and acquired positions.10 Moreover, next to the right to property, acquired rights and legitimate expectations are protected as a general principle of Union law (cf 17(1).23); the principles established in this respect may be applied in the context of Article 17(1) when property is at stake. Article 17(2) constitutes a lex specialis for the protection of intellectual property. Finally, since Article 17(1), interpreted in line with Article 1 of the Additional Protocol to the ECHR, also extends to social benefits irrespective of being contributory or tax-financed (cf 17(1).22), it overlaps with the social Charter right to social security and social assistance.11

C. Sources of Article 17(1) Rights I. ECHR 17(1).05 Article 17(1) corresponds—as evidenced by the explanations to the Charter12—to Article 1 of the Additional Protocol to the ECHR,13 which reads: 5 See for example Case 44/79 Hauer v Land Rheinland-Pfalz [1979] ECR 3727 [32]; Case C-63/93 Duff et al v Minister for Agriculture and Food and Attorney General [1996] ECR I-569 [28] et seq; Case C-84/95 Bosphorus v Minister for Transport, Energy and Communication et al [1996] ECR I-3953 [21] et seq; Joined Cases C-248/95 and C-249/95 SAM Schiffahrt and Stapf v Bundesrepublik Deutschland [1997] ECR I-4475 [71] et seq; Case C-200/96 Metronome Musik v Musik Point Hokamp [1998] ECR I-1953 [21] et seq. With similar conclusions, J Günter, Berufsfreiheit und Eigentum (Heidelberg, CF Müller, 1998) 15 ff; M Ruffert, ‘Art. 15 CFR’ in C Callies and M Ruffert (eds), EUV/AEUV, 4th edn (Munich, CH Beck, 2011) para 20. 6 Joined Cases C-154/04 and C-155/04 Alliance for Natural Health et al v Secretary of State for Health [2005] ECR I-6451 [127] f. Cf however, case C-348/12P Kala Naft v Council (28 Novemder 2013) [119] et seq; Case T-333/10 ATC et al v Commission (16 September 2013) [188] et seq. 7 Cf also for the scope of Art 17(1) in view of Art 52(3) 17(1).21 f. 8 Joined Cases C-154/04 and C-155/04 Alliance for Natural Health (n 6). 9 BVerwGE 124, 47, 62; N Bernsdorff, ‘Art 15 CFR’ in J Meyer (ed), GRC, 3rd edn (Baden-Baden, Nomos, 2011) para 12; HJ Blanke, ‘Art 15 CFR’ in PJ Tettinger and K Stern (eds), GRC (Cologne, Beck, 2006) para 45; HW Rengeling and P Szczekalla, EU-Grundrechte (Cologne, Heymanns, 2011) para 781; Ruffert (n 5) ‘Art 15 CFR’ para 20; H Schwier, Der Schutz der ‘Unternehmerischen Freiheit’ nach Artikel 16 der Charta der Grundrechte der Europäischen Union (Frankfurt, Lang, 2008) 146 ff; R Streinz, ‘Art 15 CFR’ in R Streinz (ed), EUV/AEUV, 2nd edn (Munich, CH Beck, 2012) para 7. 10 BVerfGE 30, 292, 335; E 84, 133, 157; E 88, 366, 377; W Frenz, Handbuch Europarecht, vol IV (Berlin, Springer, 2009) para 2503; M Ruffert, ‘§ 16.3’ in D Ehlers (ed), Europäische Grundrechte und Grundfreiheiten, 3rd edn (Berlin, De Gruyter, 2009) para 14. 11 Cf for a possible distinction 17(1).22. 12 See above p 465. 13 Cf on its development T van Banning, The Human Right to Property (Antwerp, Intersentia, 2002) pp 64 ff; AR Çoban, Protection of Property Rights within the European Convention on Human Rights (Hants, Ashgate, 2004) pp 127 ff.

468

Ferdinand Wollenschläger

Art 17(1) – Right to Property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

Thus, Article 52(3) applies requiring interpreting the meaning and scope of Article 17 17(1).06 in line with Article 1 of the Additional Protocol to the ECHR;14 nonetheless, the Charter may provide more extensive protection (cf 52.100 ff). The Additional Protocol has been ratified by all Member States of the European 17(1).07 Union; however, some have declared reservations.15

II. UN Treaties On the international level,16 the right to property is—following a controversial process of 17(1).08 negotiation17—guaranteed by Article 17 of the Universal Declaration of Human Rights,18 whereas neither the ICCPR nor the ICESCR contain a respective right;19 the latter only protects everyone’s right ‘(t)o benefit from the protection of moral and material interests resulting from any scientific, literary or artistic production of which he is an author’.20

III. Other Sources (a) National Constitutional Law The right to property forms part of the Constitutional traditions common to the 17(1).09 Member States.21 Hence, according to Article 52(4), it shall be ‘interpreted in harmony with those traditions’ (cf 52.100 ff).

14

Cf, however, 17(1).20 ff for the protection of business interests and of social benefits. See ‘List of declarations’ as of 5/12/2012 available on www.conventions.coe.int/Treaty/Commun/ ListeDeclarations.asp?CL=ENG&CM=8&NT=009&VL= (30 January 2014). 16 Cf for an extensive overview on international standard setting van Banning (n 13) pp 33 ff. 17 van Banning (n 13) pp 36 ff; Çoban (n 13) pp 126 f. 18 Cf for more details van Banning (n 13) pp 35 ff. 19 Cf ibid pp 42 ff. 20 Art 15(1) lit c; cf in this respect Art 17(2). 21 Case 4-73 J Nold, Kohlen- und Baustoffgroßhandlung v Commission of the European Communities [1974] ECR 491 [14]; Case 44/79 Hauer (n 5) [17]—Austria: Art 5 together with Art 6 Austrian State Basic Law; Belgium: Art 16 Const; Bulgaria: Art 17 Const 1991; Cyprus: Art 23 Const; Czech Republic: Arts 3 and 112 para 1 Const together with Art 11 Czech Declaration of Human Rights; Denmark: § 73 para 1 Const; Estonia: § 32 Const; Finland: § 15 Const; France: Arts 2 s 2, 17 Decl of Human and Civil Rights; Germany: Art 14 German Basic Law; Greece: Art 17 Const; Hungary: Art 13 para 1 Const; Ireland: Art 43 Const; Italy: Art 42 Const; Latvia: § 105 Const; Lithuania: Art 23 Const; Luxembourg: Art 16 Const; Malta: Arts 32, 36 et seq Const; Netherlands: Art 14 Const; Poland: Art 21 Const; Portugal: Art 62 Const; Romania: Art 44 Const 2003; Slovakia: Art 20 Const; Slovenia: Art 33 Const; Spain: Art 33 Const; Sweden: c 2 § 15 Const; United Kingdom: Art 1 Pt II, Sch 1 Human Rights Act 1998. With the same conclusion but acknowledging differing levels of protection, see P Sonnevend, ‘Eigentumsgarantie’ in C Grabenwarter (ed), Enzyklopädie Europarecht, vol 2 (Baden-Baden, Nomos, 2014) §14 para 11. N Bernsdorff, ‘Art 17 CFR’ in J Meyer (ed), GRC, 3rd edn (Baden-Baden, Nomos, 2011) para 2 identifies three aspects of the common European constitutional tradition: the guarantee of private property including protection against 15

Ferdinand Wollenschläger

469

Part I – Commentary on the Articles of the EU Charter

(b) EU Law 17(1).10 Article 345 TFEU stipulates that ‘(t)he Treaties shall in no way prejudice the rules in Member States governing the system of property ownership’. To the extent propertyrelated decisions of the Member States are considered protected by this provision, which is controversially discussed, the European Union must not interfere; this limitation may also be considered when determining the scope of Article 17.22

D. Analysis I. General Remarks 17(1).11

17(1).12

The right to property was first mentioned in the Nold case handed down on 14 May 1974,23 and then explicitly acknowledged in the Hauer case handed down on 13 December 1979.24 It has been well-established since then.25 Article 17(1) sentence 1 protects the right to property and to bequeath one’s possessions. Article 17(1) sentences 2 and 3 allow for limitations, namely with regards to deprivation and to regulating the use of one’s property. Moreover, although the right to property also extends to intellectual property,26 the Charter has opted for a specific provision on intellectual property in Article 17(2) ‘because of its growing importance and Community secondary legislation’.27

arbitrary deprivation of possessions, the possibility to expropriate possessions provided compensation is paid and the possibility to restrict the use of property by the legislator; disagreeing, W Leisner, ‘Der europäische Eigentumsbegriff ’, in J Ipsen, H-W Rengeling, JM Mössner and A Weber (eds), Festschrift Carl Heymanns Verlag (Cologne, Heymanns, 1995) 395, 400 f, doubts the existence of a substantial common constitutional tradition. Cf for a broad comparative analysis JF Emsinghoff, Entschädigung (Baden-Baden, Nomos, 2008) 75 ff; Günter (n 5) 50 ff; C von Milczewski, Der grundrechtliche Schutz des Eigentums (Frankfurt, Lang, 1994) 157 ff; O Müller-Michaels, Grundrechtlicher Eigentumsschutz in der Europäischen Union (Berlin, Duncker & Humblodt, 1997) 101 ff; SF Heselhaus, ‘§ 32’ in SF Heselhaus and C Nowak (eds), Handbuch der Europäischen Grundrechte (Munich, Beck, 2006) paras 20 et seq. 22 Cf only C Calliess, ‘§ 16.4’ in D Ehlers (ed), Europäische Grundrechte und Grundfreiheiten, 3rd edn (Berlin, De Gruyter, 2009) paras 3 et seq; Frenz (n 10) paras 2790 et seq, 2940 et seq. 23 Case 4-73 Nold (n 21) [14]. Restrictive: Joined Cases 36-38/59, 40/59 Präsident RuhrkolenVerkaufsgesellschaft mbH, Geitling Ruhrkohlen-Verkaufsgesellschaft mbH, Mausegatt RuhrkohlenVerkaufsgesellschaft mbH and I Nold KG v High Authority of the European Coal and Steel Community [1960] ECR 887, 920: ‘On the other hand, the law of the Community as laid down in the ECSC Treaty does neither include a written nor an unwritten general principle of law that acquired possessions must not be touched’. 24 Case 14/79 Ralph Loebisch v Council of the European Communities [1979] ECR 3679 [16] et seq. 25 Cf Joined Cases 154/78, 205/78 et al SpA Ferriera Valsabbia et al v Commission of the European Communities [1980] ECR 907 [88] et seq; Case 59/83 SA Biovilac NV v European Economic Community [1984] ECR 4057 [21] et seq; Case C-347/03 Regione autonoma Friuli-Venezia Giulia and ERSA [2005] ECR I-3785 [119]; Joined Cases C-402/05 P and C-415/05 P Kadi v Council and Commission [2008] ECR I-6351 [355]. 26 Case C-479/04 Laserdisken ApS v Kulturministeriet [2006] ECR I-8089 [65]; Case C-275/06 Productores de Música de España (Promusicae) v Telefónica de España SAU [2008] ECR I-271 [62]; also Case C-200/96 Metronome Musik (n 5) [21] et seq. 27 Explanations on Art 17 CFR [2007] OJ C303/17 (23).

470

Ferdinand Wollenschläger

Art 17(1) – Right to Property

Already the first draft proposal of the praesidium to the convention of 24 February 17(1).13 2000 regarding civil and political rights included a right to ownership (Art 16): ‘Everyone is entitled to the peaceful enjoyment of his possessions. No one may be deprived of his possessions except in the public interest and in the cases and subject to the conditions provided for by law and subject to fair [prior] compensation’.28 The subsequent debates in the convention centered on the modalities of compensation (point of time and extent), on the inclusion of a right of inheritance and of further types of limitations next to deprivation, on the protection of possessions acquired illegally and on the question of how to phrase the social obligations property entails.29 The respective state of discussion was reflected in numerous draft proposals30 before the right to ownership found its final wording in the Draft Charter of 28 September 2000.31 The distinct protection of intellectual property was added to the Charter only comparatively late, namely in the draft proposal of the praesidium of 28 July 2000.32

II. Scope of Application (a) Personal Scope The right to property may be claimed—in line with the wording of the Article itself 17(1).14 (‘person’) and Article 1 of the Additional Protocol to the ECHR—by natural as well as by legal persons.33 Entitlement does not depend on the place of residence or of the registered office.34 Being addressees of the Charter, neither public law bodies nor public undertakings may rely on Article 17.35 28

CHARTE 4137/00 CONVENT 8. See also Bernsdorff (n 21) ‘Art 17 CFR’ paras 7 et seq. Cf for a summary of the discussions in the Convention N Bernsdorff and M Borowsky, Die Charta der Grundrechte der Europäischen Union (BadenBaden, Nomos, 2002) pp 196 ff, 304 ff, 366, 386. 30 CHARTE 4284/00 CONVENT 28 of 5 May 2000; CHARTE 4360/00 CONVENT 37 of 14 June 2000; CHARTE 4200/00 CONVENT 45 of 28 July 2000; CHARTE 4470/00 CONVENT 47 of 14 September 2000; CHARTE 4470/1/00 REV 1 CONVENT 47 of 21 September 2000. 31 CHARTE 4487/00 CONVENT 50 of 28 September 2000. 32 CHARTE 4420/00 CONVENT 45 of 28 July 2000. 33 Joined Cases 154/78, 205/78 et al Ferriera Valsabbia (n 25) [88] et seq; Case 59/83 Biovilac (n 25) [21] et seq; Case 265/87 Hermann Schräder HS Kraftfutter GmbH & Co KG v Hauptzollamt Gronau [1989] ECR 2237 [13] et seq; C Calliess, ‘Art. 17 CFR’ in C Calliess and M Ruffert (eds), EUV/EGV, 4th edn (Munich, CH Beck, 2011) para 4; Frenz (n 10) paras 2806 et seq; O Depenheuer, ‘Art. 17 CFR’ in PJ Tettinger and K Stern (eds), GRC (Köln, Beck, 2006) para 42; Heselhaus, ‘§ 32’ (n 21) para 59; HD Jarass, ‘Art 17 CFR’ in HD Jarass (ed), Charta der Grundrechte der Europäischen Union, 2nd edn (Munich, Beck, 2013) para 17; A Lucarelli, ‘Article 17—Right to Property’ in W Mock (ed), Human Rights in Europe (Durham, NC, Carolina Academic Press, 2010) para 2; J Schwarze, ‘Der Grundrechtsschutz für Unternehmen in der Europäischen Grundrechtecharta’ (2001) Europäische Zeitschrift für Wirtschaftsrecht 517, 519. 34 Jarass (n 33) ‘Art 17 CFR’ para 17; HD Jarass, ‘Der grundrechtliche Eigentumsschutz im EU-Recht’ (2006) Neue Zeitschrift für Verwaltungsrecht 1089, 1092. 35 Cf in general Art 51.25ff Depenheuer (n 33) ‘Art 17 CFR’ para 43 (at least for bodies of the Union); von Milczewski (n 21) pp 267 ff (exception: mixed-economic companies). Disagreeing: Calliess (n 33) ‘Art 17 CFR’ para 4 (in case of a certain distance vis-à-vis the state); Frenz (n 10) paras 2808 et seq (provided that there is no exercise of state authority); Heselhaus (n 21) ‘§ 32’ para 59 and Jarass (n 33) ‘Art 17 CFR’ para 17 (in case of mixed-economic companies and public institutions enjoying autonomy vis-à-vis the state and not exercising public authority); Müller-Michaels (n 21) pp 70 f (if not fulfilling duties in the public interest). See also case T-494/10 Bank Saderat Iran v Council (5 February 2013) [33] et seq, though limited to third country public entities. 29

Ferdinand Wollenschläger

471

Part I – Commentary on the Articles of the EU Charter

(b) Material Scope 17(1).15

17(1).16

Since property, other than e.g. human life, does not constitute a natural but a legal phenomenon, it presupposes a legal definition which, in view of the attribution of competences, can be found primarily on national level but also on EU level.36 The term ‘property’ within the meaning of Article 17 has to be defined autonomously on the Charter level (cf 17(1).21 ff ).37 Admittedly, this autonomy is relativised by the obligation to take into account the pan-European fundamental rights standard, in particular to interpret the meaning and scope of Article 17 in line with Article 1 of the Additional Protocol to the ECHR.38 Property extends to all pecuniary rights39 assigned to the individual in her/his private interest and as an exclusive entitlement.40 In a recent judgment, the Court defined property rights as ‘rights with an asset value creating an established legal position under the legal system, enabling the holder to exercise those rights autonomously and for his benefit.’41 A right has (amongst others) an asset value if granted for a consideration.42 Hence, the right to property encompasses not only moveable and immoveable property43 but also immaterial positions like claims of an economic value,44 rights of usufruct,45 liens,46 company shares47 or intellectual property rights.48 For the latter, Article 17(2) is lex specialis.

36 Bernsdorff (n 21) ‘Art. 17 CFR’ para 15; Calliess (n 33) ‘Art. 17 CFR’ para 3; Frenz (n 10) paras 2785 et seq; Heselhaus (n 21) ‘§ 32’ para 36; Jarass (n 33) ‘Art. 17 CFR’ para 13. 37 Bernsdorff (n 21) ‘Art. 17 CFR’ para 15; Jarass (n 33) ‘Art. 17 CFR’ para 6; differentiating Frenz (n 10) paras 2785 et seq. 38 Art 52(3); cf in this respect 17(1).05 ff. 39 Case C-283/11 Sky Österreich GmbH v Österreichischer Rundfunk (ECJ, 22 January 2013) [34]; Bernsdorff (n 21) ‘Art 17 CFR’ para 15; Depenheuer (n 33) ‘Art. 17 CFR’ para 22; Jarass (n 33) ‘Art 17 CFR’ para 6; U Penski and BR Elsner, ‘Eigentumsgewährleistung und Berufsfreiheit als Gemeinschaftsgrundrechte in der Rechtsprechung des Europäischen Gerichtshofs’ (2001) Die Öffentliche Verwaltung 265, 268. Cf further Gasus Dosier- und Fördertechnik GmbH v the Netherlands Series A no 306-B (1995) 20 EHRR 403 [53]: ‘rights and interests constituting assets’; Beyeler v Italy ECHR 2000-I (2000) 33 EHRR 52 [100]; Forrer-Niedenthal v Germany App no 47316/99 (ECtHR, 20 February 2003) [32]. 40 Case C-283/11 Sky Österreich (n 39) [34] et seq; cf further Case C-306/93 SMW Winzersekt GmbH v Land Rheinland-Pfalz [1994] ECR I-5555 [23]. See also Depenheuer (n 33) ‘Art. 17 CFR’ para 22; Jarass (n 33) ‘Art. 17 CFR’ para 6. 41 Case C-283/11 Sky Österreich (n 39) [34]. 42 Ibid [35]. 43 Calliess (n 33) ‘Art 17 CFR’ para 5; Frenz (n 10) para 2825. 44 Calliess (n 33) ‘Art 17 CFR’ para 5; T von Danwitz, ‘Eigentumsschutz in Europa und im Wirtschaftsvölkerrecht’ in T von Danwitz, O Depenheuer and C Engel (eds), Bericht zur Lage des Eigentums (Berlin, Springer, 2002) p 262 f; Depenheuer (n 33) ‘Art. 17 CFR’ paras 26 et seq; Frenz (n 10) paras 2826 et seq; Jarass (n 33) ‘Art 17 CFR’ paras 6, 8. Cf further Case C-84/95 Bosphorus (n 5) [19] et seq; Case C-503/04 Commission of the European Communities v Federal Republic of Germany [2007] ECR I-6153 [36]; Case C-283/11 Sky Österreich (n 39) [35]; SA Dangeville v France (ECtHR, 16 April 2002) [44] et seq; Stran Greek Refineries and Stratis Andreadis v Greece, Series A no 301-B (1994) [59]: ‘a debt in their favour that was sufficiently established to be enforceable’. 45 Wittek v Germany App no 37290/97 (ECtHR, 12 December 2002) [43]. 46 Depenheuer (n 33) ‘Art 17 CFR’ para 25; Jarass (n 33) ‘Art. 17 CFR’ para 8; Frenz (n 10) para 2825; cf further Gasus Dosier- und Fördertechnik (n 39) [53]. 47 Bramelid and Malmström v Sweden App no 8588–89/79 (ECtHR, 12 December 1982), 29 DR 64 (1983) 5 EHRR 249, 76. 48 Case C-479/04 Laserdisken (n 26) [65]; Case C-275/06 Productores de Música (n 26) [62]; also Case C-200/96 Metronome Musik (n 5) [21] et seq.

472

Ferdinand Wollenschläger

Art 17(1) – Right to Property

In the recent Sky Österreich case the Court excluded from the scope of Article 17(1) 17(1).17 exclusive broadcasting rights acquired for a consideration—and dealt with the case under Article 16—since EU law granted competing broadcasters the right ‘to make short news reports on events of high interest to the public which are subject to [those] exclusive broadcasting rights, without the holders of such a right being able to demand compensation exceeding the additional costs directly incurred in providing access to the signal.’49 This understanding of property is—in line with AG Bot’s opinion50—objectionable though. For it grants too much discretion to the property-defining legislator. Being of an exclusive and pecuniary nature, the broadcasting right in question meets the property test; limitations to its exercise constitute regulations of the use of property and have to be justified according to Article 17(1) sentence 3. Article 17(1) sentence 1 limits the right to property to lawfully acquired pos- 17(1).18 sessions. This is problematic insofar as requirements related to the acquisition of property might then determine the scope of the guarantee; hence a legally valid acquisition of the possession does suffice.51 The legal estate as such, ie as the sum of all possessions, does not constitute property within the meaning of Article 17. This is why the imposition of duties or taxes is widely excluded from the scope of the right to property;52 the contrary is true in case of duties directly related to the acquisition, use or sale of property.53 Moreover, it has to be noted that in recent case law the ECtHR has followed a wider approach and extended the right to property to taxation, ‘since it deprives the person concerned of a possession, namely the amount of money which must be paid’.54 According to Article 52(3) and (7), this interpretation also applies to Article 17.

49

Case C-283/11 Sky Österreich (n 39) [34] et seq. Case C-283/11 Sky Österreich (n 39)—Opinion of AG Bot [36] et seq. 51 Bernsdorff (n 21) ‘Art 17 CFR’ para 16; Frenz (n 10) para 2877 et seq; Jarass (n 33) ‘Art 17 CFR’ para 7; R Streinz, ‘Art 17 CFR’ in R Streinz (ed), EUV/AEUV, 2nd edn (Munich, CH Beck, 2012) para 16; also W Durner, ‘§ 162’ in D Merten and HJ Papier (eds), Handbuch der Grundrechte, vol VI/1 (Köln, CF Müller, 2010) para 44; Heselhaus (n 21) ‘§ 32’ para 37; HW Rengeling, ‘Die Wirtschaftsbezogenen Grundrechte in der Europäischen Grundrechtecharta’ (2004) Deutsches Verwaltungsblatt 453, 459; Rengeling and Szczekalla (n 9) para 808. Disagreeing: Calliess (n 33) ‘Art 17 CFR’ para 6 with reference to the wording and no higher ECHR level of protection; Depenheuer (n 33) ‘Art 17 CFR’ para 23. 52 Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest v Hauptzollamt Itzehoe and Hauptzollamt Paderborn [1991] ECR I-415 [74]; Calliess (n 33) ‘Art 17 CFR’ para 7; von Danwitz (n 44) p 268; Durner (n 51) ‘§ 162’ para 45; Heselhaus (n 21) ‘§ 32’ paras 53 et seq; Jarass (n 33) ‘Art 17 CFR’ para 28; Streinz (n 51) ‘Art 17 CFR’ para 6. See, however, Case 265/87 Hermann Schräder (n 33) [16] et seq; partly disagreeing Depenheuer (n 33) ‘Art 17 CFR’ paras 37 f; Frenz (n 10) paras 2856 et seq (Art 17 applied to liability to pay duties). 53 Joined Cases C-248/95 and C-249/95 SAM Schiffahrt and Stapf (n 5) et seq; von Danwitz (n 44) p 268; Heselhaus (n 21) ‘§ 32’ para 54; Jarass (n 33) ‘Art 17 CFR’ para 22 (if serious restriction); regarding Art 1 of the Additional Protocol to the ECHR, Jokela v Finland App no 28856/95 (ECtHR, 21 May 2002) [47]. 54 Burden v the United Kingdom App no 13378/05 (ECtHR, 29 April 2008) [59]; cf further OAO Neftyanaya Kompaniya Yukos v Russia, App no 14902/04 (ECtHR, 20 September 2011) [552] et seq. 50

Ferdinand Wollenschläger

473

Part I – Commentary on the Articles of the EU Charter

17(1).19

17(1).20

17(1).21

Reflecting ‘only a momentary economic position exposed to the risks of changing circumstances’, market shares do not constitute property.55 Neither are such positions protected as acquired rights or legitimate expectations.56 It is controversially discussed whether an economic enterprise as such falls under the right to property.57 In any case, the scope of protection must not go further than the protection of the foundations of the enterprise; hence, an interference with the substance of the enterprise is required,58 as with the use of the places or facilities of production.59 Business secrets may also be protected by the right to property.60 In contrast, carrying out business activities as such, like marketing products, or mere business opportunities or commercial interests and chances are not covered;61 insofar, Articles 15 and 16 apply (cf 17(1).02).62 Measures rendering completely impossible the exercise of economic activities by an undertaking are widely considered an interference with property.63 The fact that the ECtHR advocates a partially broader scope of protection of business activities under Article 1 of the Additional Protocol to the ECHR64 does not, despite Article 52(3) of the Charter, call for a similar interpretation of Article 17(1) of the Charter. The jurisprudence of the ECtHR has to be seen against the background that the 55 Joined Cases C-154/04 and C-155/04 Alliance for Natural Health (n 6) [128]; cf Joined Cases 154/78, 205/78 et al Ferriera Valsabbia (n 25) [89]; Case 59/83 Biovilac (n 25) [22]; Case C-280/93 Federal Republic of Germany v Council of the European Union [1994] ECR I-4973 [79]; Case C-122/95 Federal Republic of Germany v Council of the European Union [1998] ECR I-973 [77]; Case C-210/03 The Queen, on the application of Swedish Match AB, Swedish Match UK Ltd v Secretary of State for Health [2004] ECR I-11893 [73]; Case C-295/03 Alessandrini Spl et al v Commission of the European Communities [2005] ECR I-5673 [88]; Case C-120/06 FIAMM and FIAMM Technologies v Council and Commission [2008] ECR I-6513 [185]; Case T-254/97 Fruchthandelsgesellschaft mbH Chemnitz v Commission of the European Community [1999] ECR II-2743 [74]; Calliess (n 33) ‘Art 17 CFR’ para 8; Depenheuer (n 33) ‘Art 17 CFR’ para 33; Jarass (n 33) ‘Art 17 CFR’ paras 11 et seq. 56 Case 59/83 Biovilac (n 25) [22] et seq; Case C-295/03 Alessandrini (n 55) [89]; Joined Cases C-154/04 and C-155/04 Alliance for Natural Health (n 6) [128]; Depenheuer (n 33) ‘Art 17 CFR’ para 33; Jarass (n 33) ‘Art 17 CFR’ para 14; also Calliess (n 33) ‘Art 17 CFR’ para 8. 57 Affirmed by von Danwitz (n 44) pp 264 f; Depenheuer (n 33) ‘Art 17 CFR’ para 31; Frenz (n 10) paras 2843 et seq; Penski and Elsner (n 39) p 269; Rengeling (n 51) p 460. Left open by Calliess (n 33) ‘Art 17 CFR’ para 9. 58 Calliess (n 33) ‘Art 17 CFR’ para 9; Heselhaus (n 21) ‘§ 32’ para 45. 59 Calliess (n 33) ‘Art 17 CFR’ para 8. The Court in any case held that measures with the purpose to overcome the effects of a crisis do not infringe the right to property even if ‘the profitability and very existence of certain undertakings’ are affected (Case 258/81 Metallurgiki Halyps AE v Commission of the European Communities [1982] ECR 4261 [13]; Joined Cases 172 and 226/83 Hoogovens Groep BV v Commission of the European Communities [1985] ECR 2831 [29]); see also Case T-16/04 Arcelor SA v European Parliament and Council of the European Union [2010] ECR II-00211 [154] et seq. 60 Case C-1/11 Interseroh Scrap and Metal Trading GmbH v Sonderabfall-Management-Gesellschaft Rheinland-Pfalz mbH (SAM) [43]. 61 Case 4-73 Nold (n 21) [14]; Joined Cases 154/78, 205/78 et al Ferriera Valsabbia (n 25) [89]; Case C120/06 FIAMM (n 55) [185]; Case C-283/11 Sky Österreich (n 39) [34]; Calliess (n 33) ‘Art 17 CFR’ para 8; Depenheuer (n 33) ‘Art 17 CFR’ para 33; Jarass (n 33) ‘Art 17 CFR’ para 14. 62 Jarass (n 33) ‘Art 17 CFR’ para 14. 63 Cf also Joined Cases 154/78, 205/78 et al Ferriera Valsabbia (n 25) [89]: ‘Moreover, it should be noted that no closure of an undertaking as a result of the application of [the] decision … has been recorded’; Heselhaus (n 21) ‘§ 32’ paras 42, 45; Jarass (n 33) ‘Art 17 CFR’ para 12; Rengeling (n 51) p 460. 64 Van Marle et al v The Netherlands App nos 8543/79, 8674/79, 8675/79 and 8685/79 (ECtHR, 26 June 1986) Series A no 101 [41] et seq (customer base); Fredin v Sweden App no 12033/86 (ECtHR, 18 February 1991) Series A no 192 [40] (concession); Iatridis v Greece App no 31107/96 (ECtHR, 25 March 1999) [54] (customer base); Buzescu v Romania App no 61302/00 (ECtHR, 24 May 2005) [81] et seq, 88 (customer base); F Wollenschläger, Verteilungsverfahren (Tübingen, Mohr Siebeck, 2010) pp 111 f.

474

Ferdinand Wollenschläger

Art 17(1) – Right to Property

ECHR, contrary to the Charter, does not guarantee the freedom to conduct a business as a distinct fundamental right. This gap left the ECtHR securing protection by a wide interpretation of Article 1 of the Additional Protocol to the ECHR (as well as of Article 8 ECHR). At Charter level, however, there is no need for broadening the right to property to protect business interests in view of the respective guarantees in Articles 15 and 16 (which, of course, have to be interpreted in line with the ECHR to secure a similar level of protection).65 As long as the latter requirement is met, there is no need to realise this protection by a concurrent interpretation of Article 17 as the wording of Article 52(3) might suggest. Rather, a systematic interpretation of the Charter requires reconciling Article 52(3) with the fact that the Charter, unlike the ECHR, has opted for distinguishing property rights and business-related rights. Moreover, the telos of Article 52(3), namely to secure at least a similar level of protection at the Charter level, is met. Rights granted under public law schemes like social security benefits constitute 17(1).22 property if the holder has contributed to their acquisition by eg investing money or exercising a professional activity.66 This is not the case for advantages granted within a common organisation of a market, like the commercial use of allocated reference quantities,67 unless acquired for a consideration.68 Since the ECtHR subsumes social benefits under Article 1 of the Additional Protocol to the ECHR irrespective of being contributory or tax-financed,69 Article 52(3) of the Charter seems to require their inclusion also within the scope of application of Article 17(1) of the Charter.70 Again, as in the case of business-related rights (Arts 15 and 16), one may object to this understanding in view of the systematics of the Charter. For, unlike the ECHR, the Charter has recognised a social right to social security and social assistance (Art 34). In view of its nature as a social right, the national and Union legislator enjoys a wide margin of

65 Jarass (n 33) ‘Art 17 CFR’ para 12; von Milczewski (n 21) pp 265 ff; also Durner (n 51) ‘§ 162’ para 46; Heselhaus (n 21) ‘§ 32’ paras 28, 35, 48. Differently Depenheuer (n 33) ‘Art 17 CFR’ paras 31 et seq. 66 Case C-44/89 Georg von Deetzen v Hauptzollamt Hamburg-Jonas [1991] ECR I-5119 [27]; Case C-2/92 The Queen v Ministry of Agriculture, Fisheries and Food ex p Dennis Clifford Bostock [1994] ECR I-955 [19]; Case C-38/94 The Queen v Minister of Agriculture, Fisheries and Food ex p Country Landowners Association [1995] ECR I-3875 [14]; Joined Cases T-466/93, T-469/93, T-473/93, T-474/93 and T-477/93 O’Dwyer et al v Council [1995] ECR II-2071 [99]; Bernsdorff (n 21) ‘Art 17 CFR’ para 15; Depenheuer (n 33) ‘Art 17 CFR’ para 35; Frenz (n 10) paras 2832 et seq; Jarass (n 33) ‘Art 17 CFR’ paras 10 et seq; J Kokott, ‘Der Grundrechtsschutz im europäischen Gemeinschaftsrecht’(1996) 121 Archiv des Öffentlichen Rechts 599, 607; von Milczewski (n 21) pp 252 ff; Rengeling and Szczekalla (n 9) para 811; Streinz (n 51) ‘Art 17 CFR’ para 7. Left open for social benefits in Joined Cases 41/79, 121/79 and 796/79 Vittorio Testa, Salvino Maggio and Carmine Vitale v Bundesanstalt für Arbeit [1980] ECR 1979 [22]. 67 Case C-44/89 Georg von Deetzen (n 66) [27]; Case C-2/92 Dennis Clifford Bostock (n 66) [19]; Case C-38/94 Country Landowners Association (n 66) [14]; Jarass (n 33) ‘Art 17 CFR’ paras 11, 14. Partly disagreeing, Depenheuer (n 33) ‘Art 17 CFR’ para 35. 68 Case C-416/01 Sociedad Cooperativa General Agropecuaria (ACOR) v Administración General del Estado [2003] ECR I-14083 [50]; Jarass (n 33) ‘Art 17 CFR’ para 11. 69 Stec et al v United Kingdom App nos 65731/01 and 65900/01 (ECtHR, 12 April 2006) [47] et seq; also C Grabenwarter and K Pabel, EMRK, 5th edn (Munich, Beck, 2012) § 25 para 5. More restrictive K Gelinsky, Der Schutz des Eigentums gemäß Art 1 des Ersten Zusatzprotokolls zur europäischen Menschenrechtskonvention (Berlin, Duncker & Humblot, 1996) 40 f. 70 See also Jarass (n 33) ‘Art 17 CFR’ para 10. Disagreeing for claims to social benefits Depenheuer (n 33) ‘Art 17 CFR’ para 36.

Ferdinand Wollenschläger

475

Part I – Commentary on the Articles of the EU Charter

17(1).23

appreciation when implementing it.71 Nonetheless, as long as a similar protection like under Article 1 of the Additional Protocol to the ECHR is guaranteed, there is no objection to establish a distinction between Article 17(1) and Article 34 (cf 17(1).04). Moreover, legitimate expectations covered by Article 1 of the Additional Protocol to the ECHR are separately protected as a general principle of EU law (cf 17(1).03). (c) Scope of Protection

17(1).24

The right to property offers not only protection from the state’s actively interfering with one’s possessions (negative dimension); it also confers positive obligations: administrative procedures and legal protection have to be designed in a way effectively guaranteeing the enjoyment of property in each individual case.72 Additionally, the state is obliged to take measures to protect the right to property, insofar as a broad legislative margin of appreciation is awarded.73

III. Limitations and Derogations 17(1).25 Article 17(1) of the Charter distinguishes two specific categories of limitations and derogations: deprivation of possessions (sentence 2) and regulations of the use of property (sentence 3). After elaborating this distinction (D.III(a)), the scope for possible limitations and derogations shall be examined (D.III(b)). The ECtHR, by identifying a distinct rule in each of the three sentences of Article 1 17(1).26 of the Additional Protocol to the ECHR, has acknowledged the possibility of interference with the peaceful enjoyment of property (para 1 sentence 1) not constituting a deprivation (para 1 sentence 2) or a control of the use of property (para 2) as a residual category74 which is also of (limited) relevance in the Charter context (D.III(c)). At the outset, it has to be noted that there is no interference with the right to property 17(1).27 if the person concerned has effectively waived her/his right to property; this, however, requires an explicit and voluntary consent in full awareness of the circumstances.75 71

Cf in more details 34.39. Joined Cases C-402/05 P and C-415/05 P Kadi (n 25) [368] et seq; Joined Cases C-399/06 and C-403/06 Hassan and Ayadi v Council and Commission [2009] ECR I-11393 [92] et seq; Case T-318/01 Othman v Council and Commission [2009] ECR II-01627 [91] et seq; Jarass (n 33) ‘Art 17 CFR’ para 16; Streinz (n 51) ‘Art 17 CFR’ para 8; cf further Case C-417/11 P Bamba v Council (ECJ, 15 November 2012) [84] et seq. Similarly regarding Art 1 of the Additional Protocol to the ECHR Jokela (n 53) [45]; Sovtransavto Holding v Ukraine App no 48553/99 (ECtHR, 25 July 2002) [96]; Fuklev v Ukraine App No 71186/01 (ECtHR, 7 June 2005) [90] et seq. See also von Milczewski (n 21) pp 273 ff. 73 Sovtransavto Holding (n 72) [96]; Öneryildiz v Turkey App no 48939/99 (ECtHR, 30 November 2004) [134] et seq; Budayeva and Others v Russia App no 15339/02 et al (ECtHR, 20 March 2008) [172], [175]; Bernsdorff (n 21) ‘Art 17 CFR’ para 18; Heselhaus (n 21) ‘§ 32’ para 62; Jarass (n 33) ‘Art 17 CFR’ para 24; von Milczewski (n 21) pp 247 f; Streinz (n 51) ‘Art 17 CFR’ para 18. In Case C-296/93 French Republic and Ireland v Commission of the European Communities [1996] ECR I-795 [63] et seq the Court denied an infringement of the right to property when refraining from intervention buying. 74 Sporrong and Lönnroth v Sweden App nos 7151/75 and 7152/75 (ECtHR, 23 September 1982) [61] et seq; cf further Solodyuk v Russia App no 67099/01 (ECtHR, 12 July 2005) [29]; R White and C Ovey, The European Convention on Human Rights, 5th edn (Oxford, Oxford University Press, 2010) 478 f, 503 ff. 75 Joined Cases 41/79, 121/79 and 796/79 Vittorio Testa (n 66) [19]; cf further F Wollenschläger, ‘Budgetöffentlichkeit im Zeitalter der Informationsgesellschaft’ (2010) 135 Archiv des Öffentlichen Rechts 364, 385. 72

476

Ferdinand Wollenschläger

Art 17(1) – Right to Property

(a) Deprivation of Possessions and Regulating the Use of Property Regulating the Use of Property The term ‘regulating the use of property’ must be interpreted broadly, and covers all measures limiting the exercise of property rights. Article 17(1) sentence 1 mentions— not exhaustively—the possibility ‘to own, use, dispose of and bequeath’ one’s possessions.76 The use of possessions may be limited by normative and individual measures;77 thus, in view of the former possibility, no individualisation of the owner is required.78 Measures regulating the use of property have to be distinguished from a deprivation of possessions.79 Measures only indirectly affecting the right to property, ie not intended as a regulation of the latter or not directed towards it, may also qualify as an interference with this right.80 Yet not all measures somehow affecting property are covered. Rather, a property-specific context has to be established.81 This has to be assessed in view of the contribution of the state action to the interference, the intensity of the infringement and/or the intention of public authorities. Hence, in the context of the freedom to exercise an economic activity, the Court has referred to the requirement of ‘a sufficiently direct and significant effect’ for a measure to qualify as an interference.82 Similarly, in a case regarding intellectual property the Court held that ‘distortions of competition … result(ing) from the overall prohibitions of rental … would not be the direct consequence of the contested provisions, which do not necessarily have either the object or the effect of encouraging interested parties systematically to prohibit the rental of their products solely for the purpose of eliminating competitors from the rental market.’83 Moreover, in order to guarantee an effective protection of property rights, factual limitations of the right to property also must be justified; often only the residual guarantee of Article 17(1) sentence 1 will apply (cf D.III(c)).84 In view of the need to define property (cf 17(1).15), some commentators differentiate between rules defining the right to property and limiting the same and only consider the latter as a measure in need of justification.85 Such a distinction, however, neglects the

76 In favour of a broad definition Case 44/79 Hauer (n 5) [19]; Calliess (n 33) ‘Art 17 CFR’ paras 10 et 12; Heselhaus (n 21) ‘§ 32’ para 40; Jarass (n 33) ‘Art 17 CFR’ para 20; von Danwitz (n 44) p 269. 77 Calliess (n 33) ‘Art 17 CFR’ para 12; Jarass (n 33) ‘Art 17 CFR’ para 20. 78 Unclear and to be disregarded if meaning the contrary: Case C-306/93 SMW Winzersekt (n 40) [23]. 79 Case 44/79 Hauer (n 5) [19]; Jarass (n 33) ‘Art 17 CFR’ para 20. 80 Case C-84/95 Bosphorus (n 5) [22]; Calliess (n 33) ‘Art 17 CFR’ para 13; Heselhaus (n 21) ‘§ 32’ para 66; Jarass (n 33) ‘Art 17 CFR’ para 21; Penski and Elsner (n 39) p 269; Rengeling and Szczekalla (n 9) para 810. Disagreeing—except for existence-threatening interferences—Depenheuer (n 33) ‘Art 17 CFR’ para 48. 81 Cf Case C-200/96 Metronome Musik (n 5) [28]; Joined Cases C-435/02 and C-103/03 Axel Springer AG v Zeitungsverlag Niederrhein GmbH & Co Essen KG [2004] ECR I-8663 [49]. 82 Joined Cases C-435/02 and C-103/03 Axel Springer (n 81) [49]. 83 Case C-200/96 Metronome Musik (n 5) [28]. 84 Similarly, but proposing a third type of derogation, Jarass (n 33) ‘Art 17 CFR’ para 23. Cf for a destruction of property Isayeva, Yusupova and Bazayeva v Russia App nos 57947/00, 57948/00 and 57949/00 (ECtHR, 24 February 2005) [233]. 85 Calliess (n 33) ‘Art 17 CFR’ para 11.

Ferdinand Wollenschläger

477

17(1).28

17(1).29

17(1).30

17(1).31

Part I – Commentary on the Articles of the EU Charter

fact that a definition of property pro futuro may affect current positions negatively and thus may constitute a limitation.86 Deprivation of Possessions 17(1).32 A deprivation of possessions means a formal expropriation which may be based on legislative acts or measures implementing them, ie a measure completely and permanently depriving the owner of her/his property.87 The European Court of Human Rights speaks of a ‘transfer of ownership’.88 A decisive moment for distinguishing measures regulating the use of property from 17(1).33 those depriving a person of her/his possessions is the aim of the measure.89 A regulation of the use of property does not constitute a deprivation if the owner of the property ‘remains free to dispose of it or to put it to other uses which are not prohibited’.90 According to the jurisprudence of the Court a deprivation of possessions requires not 17(1).34 only that a person is deprived of her/his property, but also that the latter is transferred to another person. Thus, the duty to destroy or slaughter live fish susceptible to certain diseases without any compensation does not constitute a deprivation of property.91 Neither has the Court qualified the freezing of financial assets as a measure to fight terrorism as a deprivation of property.92 Furthermore, in the context of Article 1 of the Additional Protocol to the ECHR, 17(1).35 also de facto expropriations, ie limitations of the right to property not qualifying as formal expropriations but entailing similarly negative consequences for one’s property, are considered a deprivation of one’s possessions in order to guarantee an effective protection of the right to property.93 The ECtHR has seen such a de facto expropriation in the case of turning a private ground into a public forest,94 its usage for public

86

Ibid para 11. Ibid para 14; Frenz (n 10) paras 2897 et seq; Jarass (n 33) ‘Art 17 CFR’ para 18. 88 Sporrong and Lönnroth (n 74) [63]. 89 Case 44/79 Hauer (n 5) [19]; Joined Cases C-402/05 P and C-415/05 P Kadi (n 25) [358]; Calliess (n 33) ‘Art 17 CFR’ para 17; von Danwitz (n 44) pp 270 f; see also Frenz (n 10) paras 2905 et seq; Müller-Michaels (n 21) pp 45 ff. 90 Case 44/79 Hauer (n 5) [19]. 91 Joined Cases C-20/00 and C-64/00 Booker Aquaculture and Hydro Seafood [2003] ECR I-7411 [58] et seq. More precisely AG Mischo, ibid [93]: ‘We are, in such a case, poles apart from the appropriation of a private person’s property by the public authority, such as the compulsory purchase of a building. There is no transfer of ownership in property of definite economic value to satisfy a need in the general interest. There is only property which, even if it may possibly still hold some economic value, must be eliminated and which therefore no longer has any prospect of being sold for profit.’ Similarly Durner (n 51) ‘§ 162’ para 53. Cf further von Milczewski (n 21) pp 286 f. Disagreeing White and Ovey (n 74) p 490 (deprivation). 92 Joined Cases C-402/05 P and C-415/05 P Kadi (n 25) [358]; Joined Cases C-539/10 P and C-550/10 P Stichting Al-Aqsa v Council et al (ECJ, 15 November 2012) [120]. 93 Sporrong and Lönnroth (n 74) [63]; Brum˘ arescu v Romania App no 28342/95 (ECtHR, 28 October 1999) [76]; Frenz (n 10) paras 2900 et seq; M Aguilera Vaqués, ‘Right of Property and Limits on its Regulation’ in J García Roca and P Santolaya (eds), Europe of Rights: A Compendium on the European Convention of Human Rights (Leiden, Nijhoff, 2012) 537, 549 ff; Jarass (n 33) ‘Art 17 CFR’ para 19; BM Malzahn, Bedeutung und Reichweite des Eigentumsschutzes in der Europäischen Menschenrechtskonvention (Frankfurt, Lang, 2007) 219 ff; E Reininghaus, Eingriff in das Eigentumsrecht nach Artikel 1 des Zusatzprotokolls zur EMRK (Berlin, Berliner Wissenschafts-Verlag, 2002) 71 ff. 94 Köktepe v Turkey App no 35785/03 (ECtHR, 22 July 2008) [84] et seq. 87

478

Ferdinand Wollenschläger

Art 17(1) – Right to Property

constructions without a formal expropriation95 or in the destruction of a building.96 The same approach seems to underlie the jurisprudence of the ECJ when the Court denied a deprivation of possessions in the case of a prohibition to use specific certificates of origins for wine by reasoning that ‘it does not exclude any reasonable method of marketing the … wines concerned’.97 A contrario one may conclude that severe restrictions of the exercise of the right to property may constitute a deprivation of possessions although the (formal) position as owner of the property is not altered. However, the Court has qualified the freezing of financial assets in the context of fighting terrorism as a severe restriction of the exercise of the right to property but not as (de facto) expropriation.98 For reasons of legal certainty and in order to develop a stringent dogmatic of the right 17(1).36 to property, it seems preferable not to recognise the category of de facto expropriation as third type of limitations to the right to property.99 Such a step is not required in view of effective protection of the right to property since regulations of the use of property with severe negative effects on the latter have to meet high standards in order to be justified. Moreover, compensation may be awarded also beyond a deprivation of property, although not as a strict rule (Article 17(1) sentence 2 of the Charter), but as a requirement of the principle of proportionality. (b) Legality of Limitations and Derogations to the Right to Property The differentiation between the two types of limitations—regulations of the use of property and deprivation of possessions—is also relevant for the standards applicable in view of justification.

17(1).37

Deprivation of Possessions Article 17(1) sentence 2 sets up three requirements necessary to justify a deprivation of possessions.100 First, it must be based on a sufficiently precise and accessible legal basis regulating the conditions and modalities.101 Expropriations by the legislator as well as by the administration are permitted.102

95

Gianni et al v Italy App no 35941/03 (ECtHR, 30 March 2006) [81] et seq. Allard v Sweden App no 35179/97 (ECtHR, 24 June 2003) [50] (without explicitly mentioning a de facto expropriation). 97 Case C-347/03 Friuli-Venezia Giulia (n 25) [122]; cf also Case 44/79 Hauer (n 5) [19]; Calliess (n 33) ‘Art 17 CFR’ para 19. 98 Joined Cases C-402/05 P and C-415/05 P Kadi (n 25) [358]. 99 Disagreeing Bernsdorff (n 21) ‘Art 17 CFR’ para 20; Depenheuer (n 33) ‘Art 17 CFR’ para 63; Heselhaus (n 21) ‘§ 32’ para 68; Jarass (n 33) ‘Art 17 CFR’ para 19; Penski and Elsner (n 39) p 269; Reininghaus (n 93) p 93; Rengeling/Szczekalla (n 9) para 820; Streinz (n 51) ‘Art 17 CFR’ para 20. 100 See for an account on the case law of the ECtHR on the issue of restitution White and Ovey (n 74) pp 495 ff. 101 More precisely Frenz (n 10) paras 2912 et seq; von Milczewski (n 21) pp 272 f. Cf for the applicability of the principle of clarity Frenz (n 10) para 2914; Jarass (n 33) ‘Art 17 CFR’ para 26. 102 Calliess (n 33) ‘Art 17 CFR’ para 23. 96

Ferdinand Wollenschläger

479

17(1).38 17(1).39

Part I – Commentary on the Articles of the EU Charter

17(1).40

17(1).41

17(1).42

Second, the deprivation of possessions must be in the public interest. This is excluded if the underlying objectives are disproportionate in view of the right to property.103 An expropriation in favour of a private person is possible if it is motivated by considerations of public interest.104 Third, a fair compensation for the loss must be paid in good time. This requirement was controversially discussed in the pre-Charter era.105 Although Article 1 of the Additional Protocol to the ECHR does not explicitly mention this requirement, it has been acknowledged in the jurisprudence of the ECtHR and been derived from the principle of proportionality.106 A fair compensation must be calculated on the basis of the current market value; exceptionally considerations of public interest, such as the realisation of fundamental institutional or economic reforms (in particular nationalisations) or of measures to promote social justice, may justify a deviation from the full market value.107 Ordinary cases of expropriations realised by individual measures do not fall under this exception, though.108 When assessing the market value, all circumstances of the particular case have to be taken into account;109 all factors relevant for determining the market value have to be considered adequately; rules exclusively privileging the state, such as an irrebuttable presumption that the value of the property increased for example simply because a new major road was built next to the expropriated land, must not be applied.110 In view of the requirements to pay compensation in good time and to base expropriations on an adequate legal basis, a rule determining the amount and the modalities of

103 See also Lithgow et al v United Kingdom App nos 9006/80 et al (ECtHR, 8 July 1986) [120]; The Holy Monasteries v Greece App nos 13092/87 and 13984/88 (ECtHR, 9 December 1994) [70] et seq: ‘An interference with peaceful enjoyment of possessions must strike a “fair balance” between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights … The concern to achieve this balance is reflected in the structure of Article 1 (P1-1) as a whole … including therefore the second sentence, which is to be read in the light of the general principle enunciated in the first sentence … In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions’; von Danwitz (n 44) pp 253 f, 273; Depenheuer (n 33) ‘Art 17 CFR’ para 68; Frenz (n 10) paras 2915 et seq, 2921 et seq; Gelinsky (n 69) pp 102 ff; Heselhaus (n 21) ‘§ 32’ para 72; Jarass (n 33) ‘Art 17 CFR’ para 28; Malzahn (n 93) pp 191 ff. 104 James v United Kingdom App no 8793/79 (ECtHR, 21 February 1986) [40] et seq; Depenheuer (n 33) ‘Art 17 CFR’ paras 65 et seq; Frenz (n 10) para 2917; Jarass (n 33) ‘Art 17 CFR’ para 27; Müller-Michaels (n 21) pp 90 f; Reininghaus (n 93) pp 139 ff. 105 Cf for a detailed discussion Calliess (n 33) ‘Art 17 CFR’ para 19. 106 James (n 104) [54]; Lithgow (n 103) [121]; The Holy Monasteries (n 103) [70] et seq; Papachelas v Greece App no 31423/96 (ECtHR, 25 March 1999) [48]; Kozacio˘glu/Turkey App no 2334/03 (ECtHR, 19 February 2009) [64]. Cf for the discussion on the ECHR level Aguilera Vaqués (n 93) pp 554 ff; Çoban (n 13) pp 210 ff; Gelinsky (n 69) pp 108 ff; Müller-Michaels (n 21) pp 91 ff; Reininghaus (n 93) pp 209 ff. In favour of a general obligation to pay compensation see W Fiedler, ‘Die EMRK und der Schutz des Eigentums’ (1996) Europäische Grundrechte Zeitschrift, 354, 355 f; E Riedel, ‘Entschädigung für Eigentumsentzug nach Artikel 1 des Ersten Zusatzprotokolls zur Europäischen Menschenrechtskonvention’ (1988) Europäische Grundrechte Zeitschrift, 333, 338; Gelinsky (n 69) pp 118 ff; disapproving KH Böckstiegel, ‘Gilt der Eigentumsschutz der Europäischen Menschenrechtskonvention auch für Inländer?’ (1967) Neue Juristische Wochenschrift 905. 107 James (n 104) [54]; Lithgow (n 103) [121]; The Holy Monasteries (n 103) [71]; Papachelas (n 106)[48]; Scordino v Italy App no 36813/97 (ECtHR, 29 March 2006) [95] et seq (comprehensive illustration of the precedents); Kozacio˘glu (n 106) [64]; Emsinghoff (n 21) pp 53 ff; Frenz (n 10) paras 2932 et seq; Jarass (n 33) ‘Art 17 CFR’ para 29. More generous Lucarelli (n 33) ‘Article 17—Right to Property’ para 6. 108 Lithgow et al (n 103) [121]; Scordino (n 107) [102]; Frenz (n 10) para 2933. 109 Cf Lithgow et al (n 103) [123] et seq; Papachelas (n 106) [53] et seq; Frenz (n 10) para 2934 et seq. 110 Papachelas (n 106) [53] et seq; Kozacio˘ glu (n 106) [69] et seq; Jarass (n 33) ‘Art 17 CFR’ para 29.

480

Ferdinand Wollenschläger

Art 17(1) – Right to Property

compensation has to be set up in advance—a requirement which remained highly controversial in the Convention, however.111 Otherwise the deprivation of possessions is illegal.112 This applies to formal as well as to de facto expropriations.113 Regulations of the Use of Property Article 17(1) sentence 3 of the Charter allows for regulations of the use of the right to 17(1).43 property which are provided for by law and necessary for the general interest. The legal basis must be sufficiently precise.114 The requirement of necessity has to be interpreted in the light of the jurisprudence115 and the general rule for limitations laid down in Article 52(1).116 Hence, a regulation of the use of property has to meet the proportionality test, and respect, which constitutes a separate criterion, the essence of the right to property.117 Test of Proportionality In General The test of proportionality is based on a four-step approach: the legitimate objective, 17(1).44 appropriateness (suitability), necessity and proportionality (appropriateness) of the measure in view of the aims pursued have to be scrutinised strictu sensu (cf 52.65 ff). In its jurisprudence, the ECJ often does not clearly distinguish these steps, which is essential for applying the law in a rational way and thus for protecting individual freedom,118 and also Article 52(1) sentence 2 is worded imperfectly in this regard. Yet examples to the contrary exist; the Court, in the Schräder case, for instance, has acknowledged that according to the principle of proportionality measures with negative effects on the exercise of fundamental rights ‘are lawful provided that the measures are appropriate and necessary for meeting the objectives legitimately pursued by the legislation in question … [The negative effects] must not be disproportionate to the aims pursued’.119

111

See Bernsdorff (n 21) ‘Art 17 CFR’ paras 7 et seq, 20; Depenheuer (n 33) ‘Art 17 CFR’ paras 4 et seq. Calliess (n 33) ‘Art 17 CFR’ para 30; Depenheuer (n 33) ‘Art 17 CFR’ para 70. Disagreeing Frenz (n 10) paras 2929 et seq; Jarass (n 33) ‘Art 17 CFR’ para 25; Rengeling and Szczekalla (n 9) para 818. Left open by Bernsdorff (n 21) ‘Art 17 CFR’ para 20. 113 Reininghaus (n 93) p 233. Disagreeing in case of de facto expropriations Calliess (n 33) ‘Art 17 CFR’ para 25. 114 Depenheuer (n 33) ‘Art 17 CFR’ para 50; Frenz (n 10) para 2975; Jarass (n 33) ‘Art 17 CFR’ para 32. 115 See Case C-200/96 Metronome Musik (n 5) [21]; Case C-295/03 Alessandrini (n 55) [86]; Case C-347/03 Friuli-Venezia Giulia (n 25) [125]. 116 Calliess (n 22) ‘§ 16.4’ para 42. Disagreeing, Bernsdorff (n 21) ‘Art 17 CFR’ para 19; Streinz (n 51) ‘Art 17 CFR’ para 17. 117 Calliess (n 33) ‘Art 17 CFR’ paras 26 et seq; Depenheuer (n 33) ‘Art 17 CFR’ paras 35 et seq; Frenz (n 10) paras 2976 et seq; Jarass (n 33) ‘Art 17 CFR’ paras 31 et seq. 118 See Joined Cases C-248/95 and C-249/95 SAM Schiffahrt and Stapf (n 5) [67]. Also Günter (n 5) pp 27 f. 119 Case C-265/87 Hermann Schräder (n 33) [21]; cf further Case C-331/88 The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health ex p Fedesa and others [1990] ECR I-4023 [13]; Case C-189/01 H Jippes et al v Minister van Landbouw, Natuurbeheer en Visserij [2001] ECR I-5689 [81]; Joined Cases C-539/10 P and C-550/10 P Stichting Al-Aqsa (n 92) [122] et seq; Case C-283/11 Sky Österreich (n 39) [50]. In favour of a three- or four- (including legitimate goal) step test, Frenz (n 10) paras 2618 et seq. 112

Ferdinand Wollenschläger

481

Part I – Commentary on the Articles of the EU Charter

17(1).45

17(1).46

17(1).47

17(1).48

An objective is legitimate if it serves the public good or the protection of rights and freedoms of other persons (Article 52(1) sentence 2).120 Such objectives may be derived from the general (Art 3 TEU) or particular aims of the Union (for example Art 39(1) TFEU within the framework of the common agricultural policy, Art 167 TFEU regarding protection of cultural heritage),121 from the grounds for justification established in the context of the fundamental freedoms122 and from international obligations of the Union.123 In this respect, the objectives of health124 and consumer protection125 as well as the protection of the environment126 can be mentioned. Next, the measure in question must be factually suitable to meet the objectives pursued, ie contribute to their achievement,127 and necessary (Art 52(1) sentence 2). The latter requires that ‘when there is a choice between several appropriate measures, the least onerous measure must be used’.128 Finally, a measure is proportionate strictu sensu if the conflicting interests have been balanced fairly: ‘[T]he interests involved must be weighed having regard to all the circumstances of the case in order to determine whether a fair balance was struck between those interests’.129 The greater the weight of the public interest pursued, the wider is the scope for limitations.130 Conversely, intensive negative effects on the exercise of the right to property require correspondingly important objectives of public interest.131 Furthermore, it is of relevance if the person concerned is able to avoid the limitation—also by accepting

120 See also Joined Cases C-184/02 and C-223/02 Spain and Finland v Parlament and Council [2004] ECR I-7789 [53]. 121 Case C-200/96 Metronome Musik (n 5) [23]; Joined Cases C-92/09 and 93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen [2010] ECR I-11063 [68]; Frenz (n 10) paras 2622 et seq; Ruffert (n 5) ‘Art 15 CFR’ para 14. 122 Case C-200/96 Metronome Musik (n 5) [23]; Case C-245/01 RTL Television GmbH v Niedersächsische Landesmedienanstalt für privaten Rundfunk [2003] ECR I-12489 paras 70 f; Frenz (n 10) para 2621. 123 Case C-200/96 Metronome Musik (n 5) [25]; Frenz (n 10) para 2626; Ruffert (n 5) ‘Art 15 CFR’ para 14. See also text of explanations on Art 52 of the Charter [2007] OJ C303/17, 32: ‘The reference to general interests recognised by the Union covers both the objectives mentioned in Article 3 of the Treaty on European Union and other interests protected by specific provisions of the Treaties such as Article 4(1) of the Treaty on European Union and Arts 35(3), 36 and 346 of the Treaty on the Functioning of the European Union.’ 124 Case C-183/95 Affish BV v Rijksdienst voor de keuring van Vee en Vlees [1997] ECR I-4315 [43]. 125 Case C-306/93 SMW Winzersekt (n 40) [25]. 126 Case 240/83 Procureur de la République v Association de défense des brûleurs d’huiles usagées (ADBHU) [1985] ECR 531 [13]. 127 Case C-280/93 Federal Republic of Germany (n 55) [86]; Jarass (n 33) ‘Art 16 CFR’ para 22. 128 Case 265/87 Hermann Schräder (n 33) [21]; cf Case C-331/88 Fedesa and others (n 119) [13]; Case C-200/96 Metronome Musik (n 5) [26]; Case C-189/01 H Jippes (n 119) ECR I-5689 [81]; Joined Cases C-184/02 and C-223/02 Spain and Finland (n 120) [57]; Frenz (n 10) paras 2638 et seq; Jarass (n 33) ‘Art 16 CFR’ para 23. 129 Case C-112/00 Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich [2003] ECR I-5659 [81]; cf Case C-331/88 Fedesa and others (n 119) [17]; Case C-183/95 Affish BV (n 124) [42] et seq; Case C-317/00 ‘Invest’ Import and Export GmbH and Invest Commerce SARL v Commission of the European Communities [2000] ECR I-9541 [60]; Blanke (n 9) ‘Art 15 CFR’ para 44; Jarass (n 33) ‘Art 16 CFR’ paras 24 et seq. 130 Case C-317/00 Invest (n 129) [60]; Jarass (n 33) ‘Art 16 CFR’ para 24. 131 Cf Jarass (n 33) ‘Art 17 CFR’ para 37.

482

Ferdinand Wollenschläger

Art 17(1) – Right to Property

higher costs132—if the limitation is compensated by other advantages133 or if only a temporary134 or urgent135 or a long-term136 measure is at issue. Where appropriate, transitional rules or hardship clauses have to be provided to mitigate the interference.137 A compensation for limiting the right to property may be required in particular cases; there is no general obligation to pay compensation, though.138 Illegally acquired property—if deemed to fall within the scope of application of the 17(1).49 right to property—only enjoys a limited level of protection.139 When balancing the competing interests, the protection of acquired rights and legitimate expectations has to be taken into account.140 An interference with the right to property based on mere suspicion and investigative 17(1).50 measures may not under all circumstances meet the proportionality test; at any rate, strict standards of justification apply requiring, inter alia, a thorough establishment of the facts of the case.141 Finally, the Court has acknowledged a procedural dimension of the principle of pro- 17(1).51 portionality. For, in its ruling on the legality of publishing beneficiaries of agricultural subsidies in an internet database the Court has held this measure infringing the right of data protection since it was not discernible that the Union legislator had considered alternatives ‘which would be consistent with the objective … while at the same time causing less interference’.142 Standard of Review Regarding the standard of review, the Court has often awarded a broad margin of discretion to the institutions of the Union and to the Member States when implementing

132 Case C-44/89 Georg von Deetzen (n 66) [29]; Case C-177/90 Kühn v Landwirtschaftskammer WeserEms [1992] ECR I-35 [17]; Case C-347/03 Friuli-Venezia Giulia (n 25) [133]; Joined Cases C-539/10 P and C-550/10 P Stichting Al-Aqsa (n 92) [128]; Case T-13/99 Pfizer Animal Health SA v Council of the European Union [2002] ECR II-3305 [459]; Jarass (n 33) ‘Art 17 CFR’ para 37. 133 Joined Cases 41/79, 121/79 and 796/79 Vittorio Testa (n 66) [20]; Jarass (n 33) ‘Art 17 CFR’ para 37. 134 Case 44/79 Hauer (n 5) [28]; T-13/99 Pfizer Animal Health (n 132) [460]; Jarass (n 33) ‘Art 17 CFR’ para 37. 135 Joined Cases C-20/00 and C-64/00 Booker Aquaculture (n 91) [79]; Jarass (n 33) ‘Art 17 CFR’ para 36. 136 Joined Cases C-539/10 P and C-550/10 P Stichting Al-Aqsa (n 92) [120]. 137 See Case C-68/95 T Port GmbH & Co KG v Bundesanstalt für Landwirtschaft und Ernährung [1996] ECR I-6065 [40]; Case C-347/03 Friuli-Venezia Giulia (n 25) [133]; Joined Cases C-402/05 P and C-415/05 P Kadi (n 25) [364]; Jarass (n 33) ‘Art 17 CFR’ para 39; conferrable to the right to property, W Frenz, ‘Die europäische Berufsfreiheit’ (2008) Gewerbearchiv 465, 471 f; Frenz (n 10) paras 2641 et seq; Jarass (n 33) ‘Art 16 CFR’ para 26; Ruffert (n 5) ‘Art 15 CFR’ para 18; concerning the requirement of transitional rules following from the principle of proportionality in context of the free movement of goods: Case C-463/01 Commission of the European Communitites v Republic of Germany [2004] ECR I-11705 [78] et seq; Case C-309/02 Radlberger Getränkegesellschaft mbH & Co, S Spitz KG v Land Baden-Württemberg [2004] ECR I-11763 [79] et seq. 138 Joined Cases C-20/00 and C-64/00 Booker Aquaculture (n 91) [64] et seq, [85]; Case C-347/03 FriuliVenezia Giulia (n 25) [123]; Becker (n 1) 284; Bernsdorff (n 21) ‘Art 17 CFR’ para 21; Depenheuer (n 33) ‘Art 17 CFR’ paras 57 et seq; Frenz (n 10) paras 2985 et seq; Heselhaus (n 21) ‘§ 32’ para 77; Jarass (n 33) ‘Art 17 CFR’ para 39. 139 Cf Art 17(1) sentence 1; Bernsdorff (n 21) ‘Art 17 CFR’ para 21; Frenz (n 10) para 2984; Jarass (n 33) ‘Art 17 CFR’ para 37. 140 Calliess (n 33) ‘Art 17 CFR’ para 8. 141 Joined Cases C-539/10 P and C-550/10 P Stichting Al-Aqsa (n 92) Opinion of AG Trstenjak [70] et seq. 142 Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke GbR (n 121) [81]. Also Wollenschläger (n 75) p 363.

Ferdinand Wollenschläger

483

17(1).52

Part I – Commentary on the Articles of the EU Charter

17(1).53

Union law,143 namely in the areas of transport,144 common agriculture policy145 and economic policy.146 This has been justified with reference to the ‘political responsibilities’147 assigned to the Union legislator in the context of the CAP, which implied its primacy in balancing the conflicting interests in order to realise the organisation of the common market,148 with reference to the necessity to assess politically, economically or socially complex situations149 or with reference to difficulties when prognosticating further developments.150 Correspondingly, only apparently unsuitable151 or apparently inappropriate152 measures have been held disproportionate. Below this threshold it does not matter ‘whether the measure adopted by the legislature was the only one or the best one possible’.153 In addition, a decision of the Union legislator containing prognostic elements and thus necessarily implying a certain level of uncertainness is only rejected ‘if it appears manifestly incorrect in the light of the information available to [the legislator] … at the time of the adoption of the rules in question’.154 Nonetheless, the legislator is obliged to adapt its measure when its assessments turn out to be incorrect in the future.155 In particular, in the context of a common market organisation, limitations of fundamental rights necessarily implied by the organisation are generally held justifiable.156

143 Case-44/94 The Queen v Minister of Agriculture, Fisheries and Food, ex parte National Federation of Fishermen’s Organisations and others and Federation of Highlands and Islands Fishermen and others [1995] ECR I-3115 [56] et seq. 144 Joined Cases C-184/02 and C-223/02 Spain and Finland (n 120) [56]. 145 Case C-265/87 Hermann Schräder (n 33) [22]; Case 113/88 Karl Leukhardt v Hauptzollamt Reutlingen [1989] ECR 1991 [20]; Case C-331/88 Fedesa and others (n 119) [14]; Case C-280/93 Federal Republic of Germany (n 55) [89]; Case C-306/93 SMW Winzersekt (n 40) [21]; Case C-189/01 H Jippes (n 119) [82]; Case C-347/03 Friuli-Venezia Giulia (n 25) [131]. 146 Case C-296/93 French Republic and Ireland (n 73) [31]. Cf for a discussion of the jurisprudence of the ECJ—also in view of the freedom to exercise a profession or an economic activity—Schwier (n 9) pp 239 ff; M Vögler, Defizite beim Schutz der Berufsfreiheit durch BVerfG und EuGH (Baden-Baden, Nomos, 2001) pp 173 ff. 147 Case C-265/87 Hermann Schräder (n 33) [22]; Case C-331/88 Fedesa and others (n 119) [14]; Case C-280/93 Federal Republic of Germany (n 55) [89], [91]; Case C-306/93 SMW Winzersekt (n 40) [21]; Case C-347/03 Friuli-Venezia Giulia (n 25) [131]. 148 Case C-280/93 Federal Republic of Germany (n 55) [91]. 149 Case 113/88 Karl Leukhardt (n 145) [20]; Joined Cases C-154/04 and C-155/04 Alliance for Natural Health (n 6) [52]; Case C-380/03 Federal Republic of Germany v Council and Parliament of the European Union [2006] ECR I-11573 [145]. 150 Case C-280/93 Federal Republic of Germany (n 55) [90]. 151 Case C-265/87 Hermann Schräder (n 33) [22]; Case C-331/88 Fedesa and others (n 119) [14] et seq; Case C-280/93 Federal Republic of Germany (n 55) [90]; Case C-306/93 SMW Winzersekt (n 40) [21]; Case C-347/03 Friuli-Venezia Giulia (n 25) [131]; Case C-189/01 H Jippes (n 119) [82]; Joined Cases C-154/04 and C-155/04 Alliance for Natural Health (n 6) [52]; Case C-380/03 Federal Republic of Germany (n 149) [145]. 152 Case C-306/93 SMW Winzersekt (n 40) [27]; Case C-504/04 Agrarproduktion Staebelow GmbH v Landrat des Landkreises Bad Doberan [2006] ECR I-679 [36]. 153 Case C-189/01 H Jippes (n 119)[83]. 154 Case C-280/93 Federal Republic of Germany (n 55) [90]; also Joined Cases 267-285/88 Gustave Wuidart and others v Laiterie coopérative eupenoise société coopérative and others [1990] ECR I-435 [14]; Case C-189/01 H Jippes (n 119) [84]; Case C-504/04 Agrarproduktion Staebelow GmbH (n 152) [38]. 155 Case C-504/04 Agrarproduktion Staebelow GmbH (n 152) [40]. 156 Case C-295/03 Alessandrini (n 55) [91].

484

Ferdinand Wollenschläger

Art 17(1) – Right to Property

This limited and often quite superficial157 review has led to severe criticism by many 17(1).54 commentators.158 Of course, a broad scope of discretion granted to the legislator is not problematic per se. However, an effective protection of fundamental rights requires a careful review in each case as to whether and to what extent a margin of appreciation may be awarded, a stricter control of its limits and a more thorough scrutiny of EU measures; this is the direction in which the jurisprudence of the ECJ and the dogmatics of European fundamental rights have to be developed.159 First positive developments in this regard have already become manifest in recent (and also less recent) rulings of the Court, for example the interpretation of secondary law160 and of margins of discretion161 in light of fundamental rights as well as a thorough review of (prognostic) measures.162 Essence of the Right to Property The guarantee of the essential content of a right (cf 52.65 ff)—which has to be dis- 17(1).55 tinguished from the test of proportionality according to the wording of Article 52(1) sentence 1 of the Charter—constitutes an ultimate threshold. The essence of the right to property is disrespected when the guarantee of property is deprived of its substance, but not when affected only marginally or when only modalities of its exercise are regulated.163

157

See Case 113/88 Karl Leukhardt (n 145) [20]; also Günter (n 5) pp 28 f; Schwier (n 9) pp 237 ff. Ruffert (n 5) ‘Art 15 CFR’ paras 17 f; S Storr, ‘Zur Bonität des Grundrechtsschutzes in der Europäischen Union’ (1997) 36 Der Staat 547; Streinz (n 9) ‘Art 15 CFR’ paras 5 et seq, ‘Art 16 GRC’ para 4. Cf for a more positive view Blanke (n 9) ‘Art 15 CFR’ para 11; M Hilf and S Hörmann, ‘Der Grundrechtsschutz von Unternehmen im europäischen Verfassungsverbund’ (2003) Neue Juristische Wochenschrift, 1, 6 f; C Nowak, ‘§ 30’ in SF Heselhaus and C Nowak (eds), Handbuch der Europäischen Grundrechte (Munich, Beck, 2006) paras 57, 64; E Pache, ‘Der Grundsatz der Verhältnismäßigkeit in der Rechtsprechung der Gerichte der Europäischen Gemeinschaften’ (1999) Neue Zeitschrift für Verwaltungsrecht 1033, 1040; W Schroeder, ‘Neues zur Grundrechtskontrolle in der Europäischen Union’ (2011) Europäische Zeitschrift für Wirtschaftsrecht 462, 463. 159 See also Durner (n 51) ‘§ 162’ para 57; W Frenz, ‘Annäherung von europäischen Grundrechten und Grundfreiheiten’ (2011) Neue Zeitschrift für Verwaltungsrecht 961, 963; Nowak (n 158) § 30 para 64; Rengeling and Szczekalla (n 9) paras 771, 793; Ruffert (n 5) ‘Art 15 CFR’ para 18; Schwier (n 9) pp 243 ff. 160 Joined Cases C-90/90 and C-91/90 Jean Neu and others v Secrétaire d’Etat à l’Agriculture et à la Viticulture [1991] ECR I-3617 [13]; Case C-307/91 Association Agricole Luxlait v Victor Hendel [1993] ECR I-6835 [12] et seq; Case C-403/09 Jasna Deticˇek v Maurizio Sgueglia [2009] ECR I-12193 [53] et seq; Case C-400/10 J McB v LE [2010] ECR I-8965 [60] et seq; Case C-70/10 Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM) [2011] ECR I-11959 [42] et seq; Joined Cases C-411/10 and C-493/10 NS v Secretary of State for the Home Department (ECJ, 21 December 2011) [75] et seq. 161 Case 5/88 Hubert Wachauf v Bundesamt für Ernährung und Forstwirtschaft [1989] ECR 2609 [22]; Case C-68/95 T Port (n 137) [40] et seq. 162 Case C-189/01 H Jippes (n 119) [85] et seq; Joined Cases C-37/02 and 38/02 Di Lenardo Adriano Srl and Dilexport Srl v Ministero del Commercio con l’Estero [2004] ECR I-6911 [83] et seq; Case C-504/04 Agrarproduktion Staebelo (n 152) [37] et seq; also Case T-13/99 Pfizer Animal Health (n 132) [452] et seq. Cf however, Case C-348/12 P Kala Naft (n 6) [120]. 163 Case 59/83 Biovilac (n 25) [22]; Case C-177/90 Kühn (n 132) [17]; excluding the latter for measures controlling the use of property Müller-Michaels (n 21) pp 52 ff. 158

Ferdinand Wollenschläger

485

Part I – Commentary on the Articles of the EU Charter

(c) Interferences with the Peaceful Enjoyment of Property Other than by Deprivations or Regulations of the Use of Property 17(1).56

Despite a wide understanding of the possibility to regulate the use of property within the meaning of Article 17(1) sentence 3—as proposed here164—there might be further interferences with the right to property an effective protection of that fundamental right requires to cover. Hence, the ECtHR understands the guarantee of ‘the peaceful enjoyment of … possessions’ enshrined in Article 1(1) sentence 1 of the Additional Protocol to the ECHR as a residual category.165 This interpretation also applies to Article 17 (1) sentence 1.166 Important examples are measures with uniquely factual consequences which cannot be interpreted as a regulation of the use of property such as the destruction of possessions.167 As far as a possible justification is concerned, the standards outlined above for regulations of the use of property apply.168

IV. Remedies 17(1).57

National and EU measures interfering with the right to property may be challenged according to the general rules of EU and national procedural law. It has to be pointed out that Article 17(1) also requires effective legal remedies in order to establish an appropriate protection of private property in each particular case.169

164

Cf in the context of the ECHR also White and Ovey (n 74) pp 503 f. Sporrong and Lönnroth (n 74) [61] et seq; cf further Solodyuk (n 74) [29]; Çoban (n 13) pp 186 ff (with criticism); White and Ovey (n 74) pp 479, 503 ff. 166 Similarly Jarass (n 33) ‘Art 17 CFR’ para 23. See, however, Calliess (n 33) ‘Art 17 CFR’ para 10, and Frenz (n 10) para 2892, who only acknowledge the categories of deprivation and regulation of the use of property; cf in this respect also Case 44/79 Hauer (n 5) [19]: ‘Having declared that persons are entitled to the peaceful enjoyment of their property, that provision envisages two ways in which the rights of a property owner may be impaired, according as the impairment is intended to deprive the owner of his right or to restrict the exercise thereof.’ 167 Cf Isayeva, Yusupova and Bazayeva (n 84) [233]; cf further Jarass (n 33) ‘Art 17 CFR’ para 41. 168 Cf Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) [150]: ‘Both an interference with the peaceful enjoyment of possessions and an abstention from action must strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights … The concern to achieve this balance is reflected in the structure of Article 1 of Protocol No. 1 as a whole. In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measures applied by the State, including measures depriving a person of his of her possessions. In each case involving the alleged violation of that Article the Court must, therefore, ascertain whether by reason of the State’s action or inaction the person concerned had to bear a disproportionate and excessive burden’; further K Kaiser in U Karpenstein and FC Mayer (eds), EMRK (Munich, Beck, 2012) Art 1 ZP I para 34; White and Ovey (n 74) p 504 f. 169 Joined Cases C-402/05 P and C-415/05 P Kadi (n 25) [368] et seq; Joined Cases C-399/06 and C-403/06 Hassan and Ayadi (n 72) [92] et seq; Case T-318/01 Othman (n 72) [91] et seq; Jarass (n 33) ‘Art 17 CFR’ para 14; Streinz (n 51) ‘Art 17 CFR’ para 8. Similarly for Art 1 of the Additional Protocol to the ECHR, Jokela (n 53) [45]; Sovtransavto Holding (n 72) [96]. See also von Milczewski (n 21) pp 273 ff. 165

486

Ferdinand Wollenschläger

Art 17(1) – Right to Property

E. Evaluation In view of the economic origin of European integration and related regulatory activities 17(1).58 of the Communities, it is not astonishing that the right to property has been recognised already in the 1970s as a fundamental right protected by European law. Since private property is vital for a decentralised, free-market economic order, Article 17 constitutes— next to the freedom to choose an occupation and the right to engage in work (Art 15 of the Charter) as well as the freedom to conduct a business (Art 16 of the Charter)—one of the basic pillars of the economic constitution of the Union.170 In view of the growing number of regulatory activities of the EU in the economic area, the importance of the right to property seems set to increase.171 All the more, contouring the proportionality test is of essence to guarantee individual freedom. A further dogmatic challenge not only for EU fundamental rights law in general but also when developing Article 17 in particular is to take account of the ECHR standards (cf Art 52 para 3) while creating a distinct guarantee of EU law.

170 171

Cf Frenz (n 10) para 2494. See also Durner (n 51) ‘§ 162’ para 2.

Ferdinand Wollenschläger

487

Article 17(2) Article 17 Right to Property 1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest. 2. Intellectual property shall be protected.

Text of Explanatory Note on Article 17(2) This Article is based on Article 1 of the Protocol to the ECHR: ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.’ This is a fundamental right common to all national constitutions. It has been recognised on numerous occasions by the case law of the Court of Justice, initially in the Hauer judgment (13 December 1979, ECR [1979] 3727). The wording has been updated but, in accordance with Article 52(3), the meaning and scope of the right are the same as those of the right guaranteed by the ECHR and the limitations may not exceed those provided for there. Protection of intellectual property, one aspect of the right of property, is explicitly mentioned in paragraph 2 because of its growing importance and Community secondary legislation. Intellectual property covers not only literary and artistic property but also patent and trademark rights and associated rights. The guarantees laid down in paragraph 1 shall apply as appropriate to intellectual property.

Select Bibliography AR Chapman, ‘Approaching Intellectual Property as a Human Right (obligations related to Article 15(1)(c))’ (2001) XXXV (3) Copyright Bulletin 4–36. F Dessemontet, ‘Copyright and Human Rights’, in J Kabel and G Mom (eds), Intellectual Property and Information Law: Essays in Honour of Herman Cohen Jehoram Vol VI, Information Law Series (The Hague, Kluwer Law International, 1998) 113–20. P Torremans (ed), Intellectual Property and Human Rights, Vol XVIII, Information Law Series (The Hague, Kluwer Law International, 2008). M Vivant, ‘Le droit d’auteur, un droit de l’homme?’ (1997) 174 Revue internationale des droits de l’antiquité 60.

Part I – Commentary on the Articles of the EU Charter

A. Field of Application of Article 17(2) 17(2).01 Article 17(2) covers ‘intellectual property’. Our attention will therefore turn to the definition of the concept of intellectual property, but due to Article 51, which specifies that the provisions of the Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law, Article 17(2) only has relevance to the extent that EU law affects intellectual property rights. 17(2).02 Whilst the core of intellectual property is fairly well defined, there is no single accepted definition of the concept of intellectual property. The text of the explanations does not help either, as it merely restates the core intellectual property rights by referring to copyright, patents and trade marks. To these core rights are added ‘associated rights’. Two forms of associated rights could be suggested in the absence of any definition or indication in the article and the explanations to it. On the one hand there are rights that are linked to the core rights, in the sense that supplementary protection certificates are closely linked to patents, appellations of origin are linked to trade marks, and artistic design rights are closely linked to literary and artistic property. On the other hand there are peripheral intellectual property rights that are associated with the core rights, as they equally protect intellectual or artistic creation. Here the examples of the design right, the sui generis database right and the right in semiconductor topographies come to mind. It is probably fair to say that these are all ‘intellectual property’, as they are treated as such by the European Commission and in a number of international instruments. There is however no universally accepted definition1 and it is therefore not clear where intellectual property stops. It is unlikely that Article 17(2) was ever intended also to cover things such as breach of competence, passing-off and unfair competition. These may to too peripheral and they do not involve property in the sense as set out by Article 17. But Article 17(2) does not provide certainty on this point. 17(2).03 Article 51 of the Charter is less of a restriction than may seem to be the case at first glance. Article 17(2) does not seem to cover the complex cases such as breach of competence, unfair competition and passing-off, and there is a fair bit of EU legislation affecting intellectual property rights outside these complex cases. Both in the area of trade marks and design rights there are unitary Community rights put in place by means of Regulations, i.e. Community Trade Marks2 and Community Designs.3 These exist in parallel with national rights, but the latter have been harmonised on virtually every point by a Directive whose provisions run in parallel with those of the relevant Regulation.4 That leaves very little to purely national provisions that can use the escape route of Article 51. Copyright presents a more complex picture. There is no Community Copyright and there are merely Directives dealing with certain aspects of copyright,

1 Compare the definitions found in Art 1 Trips Agreement 1994 and the WIPO Intellectual Property Handbook (wipo.int/ about-ip/en/iprm/) respectively. 2 Council Regulation (EC) 207/2009 on the Community trade mark [2009] OJ L78/1. 3 Council Regulation 6/2002 on Community Designs [2002] OJ L3/1. 4 Directive 2008/95/EC to approximate the laws of the Member States relating to trade marks [2008] OJ L299/25. EC Parliament and Council Directive 98/71/EC on the legal protection of designs [1998] OJ L289/28.

490

Paul Torremans

Art 17(2) – Right to Property

even if these Directives increasingly are of a horizontal nature.5 But in interpreting the provisions of these Directives the Court of Justice of the European Union increasingly feels obliged to define general copyright concepts, such as what amounts to a ‘work’, and what meets the ‘originality’ standard, even if they have no place in the Directive. Add to that concepts such as ‘communication to the public’ that are in the Directives and it becomes clear that EU law now affects the whole of the core aspects of copyright. Related issues such as the database right6 and the right in semiconductor topographies7 originate entirely in EU Directives, and for them Article 51 has no relevance at all as a potential escape clause. In the patent area things used to be more of a problem. There were Supplementary Protection Certificates8 and a directive on biotechnological patents,9 but the core instrument, the European Patent Convention, never was an EU instrument. All that is set to change radically, with the adoption in 2012 of Regulations creating a unitary patent for the EU, which will link that Convention to the EU legal order, although the unitary patent does not cover Italy and Spain.10 Add to that the impact of free movement law, competition law11 and the common commercial policy12 on intellectual property rights, as well as the fact that the EU increasingly becomes a party to international intellectual property instruments13 and it is clear that the impact of Article 51 of the Charter as a restriction on the scope of Article 17(2) is minor, or should one say (almost) minute.

5 EC Council Directive 93/98 harmonizing the terms of protection of copyright and certain related rights (1993) OJ L290/9, now codified as Directive 2006/116/EC on the term of protection of copyright and certain related rights (codified version) [2006] OJ L372/12; EC Council Directive 91/250 on the legal protection of computer programs [1991] OJ L122/42, now codified as Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (codified version) [2009] OJ L111/16; EC Council Directive 92/100 on rental rights and lending rights related to copyright in the field of intellectual property [1992] OJ L346/61, now codified as Directive 2006/115/EC on rental right and lending right and on certain rights related to copyright in the field of intellectual property (codified version) [2006] OJ L376/28; EC Council Directive 93/83 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable re-transmission [1993] OJ L248/15; EC Parliament and Council Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OJ L167/10. 6 EC Parliament and Council Directive 96/9 on the legal protection of databases [1996] OJ L77/20. 7 EC Parliament and Council Directive 87/54 on the legal protection of topographies of semiconductor products [1987] OJ L24/36. 8 EC Council Regulation 1768/92 concerning the creation of a supplementary protection certificate for medicinal products [1992] OJ L182/1, now codified as Regulation (EC) 469/2009 concerning the supplementary protection certificate for medicinal products (codified version) [2009] OJ L152/1. 9 EC Parliament and Council Directive 98/44/EC on the legal protection of biotechnological inventions [1998] OJ L213/13. 10 Full details had not yet been published at the time of writing. See http://ec.europa.eu/internal_market/ indprop/patent/index_en.htm. 11 See eg Joined Cases C-241/91 P and C-242/91 P Radio Telefis Éireann & Independent Television Publications Ltd v EC Commission [1995] ECR I-743, [1995] 4 CMLR 718. A detailed and complete analysis is found in chs 18 and 27 of P Torremans, Holyoak and Torremans Intellectual Property Law, 7th edn (Oxford, OUP, 2013). 12 See eg Case C-348/04 Boehringer Ingelheim KG and ors v Swingward Ltd and ors (No 2) [2007] 2 CMLR 52. A detailed and complete analysis is found in chs 18 and 27 of Torremans (n 11). 13 Such as the TRIPS Agreement.

Paul Torremans

491

Part I – Commentary on the Articles of the EU Charter

B. Interrelationship of Article 17(2) with Other Provisions of the Charter 17(2).04 Intellectual property was not always considered to deserve the status of a fundamental right. Instead the discussion focused on the interaction between intellectual property and fundamental rights such as the freedom of expression and information, which is guaranteed in Article 11.14 In the exercise of the latter the use of copyright material and potentially of registered trade marks may be inevitable, but the holders of these intellectual property rights may object to such use and exercise their right to prohibit it. 17(2).05 Starting from this focal point, two approaches to this interaction can be distinguished.15 The first approach is based on the conflict model and sees copyright and other intellectual property rights as being in fundamental conflict with human rights. The proponents of this approach argue that strong intellectual property rights are bound to undermine human rights and in particular economic, social and cultural aspects of human rights. This leads to an incompatibility that can only be resolved through the recognition of the primacy of human rights whenever a conflict arises. This solution imposes itself in the view of its proponents because in normative terms human rights are fundamental and of higher importance than intellectual property rights.16 They would in the process prefer not to grant intellectual property rights the status of fundamental rights or human rights. And even as a fundamental right, if it has to have that status, eg as a result of Article 17(2), intellectual property has a lower status than the right to freedom of expression. It is submitted that this approach focuses, maybe unduly so, primarily on the practical effects of certain forms of intellectual property rights in specific situations. In doing so it does not address the broader picture, involving the function and nature of the elements involved in the interaction. The second approach comes to the interaction between intellectual property rights and human rights from this broader perspective. Looking at it from that perspective, both intellectual property rights and (other) human rights deal with the same fundamental equilibrium. On the one hand there is a need to define the scope of the private exclusive right that is given to authors as an incentive to create and as recognition of their creative contribution to society broadly enough to enable it to play its incentive and recognition function in an appropriate and effective way, whilst on the other hand there is the broader interest of society that the public must be able to have adequate access to the fruits of authors’ efforts. Both intellectual property law and human rights law try to get the private-public rights balance right, and as such there is no conflict. Both areas of law may not however

14 Art 11 Freedom of expression and information: ‘1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers …’. 15 Helfer, ‘Human Rights and Intellectual Property: Conflict or Coexistence?’, Loyola-LA Public Research Paper No 2003-27; Princeton Law & Public Affairs Working Paper No 03-15, pp 1–2. 16 See eg United Nations, Economic and Social Council, Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Resolution 2000/7 on Intellectual Property Rights and Human Rights, E/CN.4/Sub/2/2000/L.20, preamble § 11 and R Howse and M Mutua, Protecting Human Rights in a Global Economy: Challenges for the World Trade Organisation, International Centre for Human Rights and Democratic Development, Policy Paper (2000), 6.

492

Paul Torremans

Art 17(2) – Right to Property

define that balance in exactly the same way in all cases. There is therefore a compatibility between them, rather than a consensus.17 The Court of Justice of the European Union has also held that a balancing act is called for, eg when they specifically imposed restrictions on the right of freedom of expression in favour of the protection of intellectual property rights in the Laserdisken case.18 The Court also adopted that approach in the interrelationship between the freedom to pursue a trade or profession, now guaranteed in Article 16 of the Charter,19 and intellectual property rights. The freedom to pursue a trade or profession could be subject to restrictions in as far as such a restriction is required to provide a balance with, and to safeguard the very substance of, intellectual property rights, in casu an element of copyright.20 There is also an interrelationship with the freedom of the arts and sciences, which is guaranteed in Article 13.21 Artistic activity and scientific research may require the use of copyright material and if reproduction or communication to the public is required these may be withheld on the basis of the exclusive right of the copyright holder. The same can apply to trade marks and scientific research may require the use of patented technology. It is then the right of the owner of the patent to grant or withhold a licence. The exercise of intellectual property can therefore restrict the freedom of arts and sciences. But in certain scenarios, the counterargument applies. There are indeed cases in which copyright and other intellectual property rights offer the protection that is necessary to attract the necessary investment of time and money that the arts and sciences need to flourish and that would not be made available in the absence of at least the potential of intellectual property protection. Similarly, the right to education, as guaranteed in Article 14,22 can be affected as the use of copyright and patented material may be required in the exercise of that right and that may clash with the power of the holder of intellectual property rights to withhold a licence, or even with the right to seek payment for the grant of a licence. The right to the protection of personal data, as guaranteed in Article 8,23 may also interact with intellectual property rights and a balance between both may need to be struck. This can occur for example when a copyright owner requests the identity of

17 See eg United Nations, Economic and Social Council, Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, 52nd session, Item 4 of the Provisional Agenda, Economic, Social and Cultural Rights—The Impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on Human Rights, Report of the High Commissioner, E/CN.4/Sub/2/2001/13, 5. 18 Case C-479/04 Laserdisken ApS v Kulturministeriet [2006] ECDR 30, at paras. 60–66. See below at D.III.3. 19 Art 16 ‘Freedom to conduct a business’: The freedom to conduct a business in accordance with Community law and national laws and practices is recognised. 20 Case C-200/96 Metronome Musik GmbH v Music Point Hokamp GmbH [1998] ECR I-1953 [21]. See below at section D.III(c). 21 Art 13 Freedom of the arts and sciences: ‘The arts and scientific research shall be free of constraint. Academic freedom shall be respected.’ 22 Art 14 Right to education: ‘1. Everyone has the right to education and to have access to vocational and continuing training …’. 23 Art 8 Protection of personal data: ‘1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified …’.

Paul Torremans

493

17(2).06

17(2).07

17(2).08

17(2).09

Part I – Commentary on the Articles of the EU Charter

alleged infringers from an internet service provider, as demonstrated by the Bonnier case.24 17(2).10 A final but major interrelationship exists with the right to health care. Patents in particular (but to an extent also trade marks) tend to push up the price of pharmaceutical products that are vital in the context of health care. The right of access to health care provided for in Article 3525 of the Charter may therefore potentially be impeded. Once more, a balancing act is called for. 17(2).11 The Court of Justice of the European Union formally enshrined the need for a balancing act between intellectual property as a fundamental right on the one hand and other fundamental rights on the other hand in the Promusicae case26 and strongly confirmed it in the Scarlet Extended case.27

C. Sources of Article 17(2) Rights 17(2).12 It has not always been obvious to see intellectual property as a fundamental right, and in terms of approach and sources a clear distinction needs to be drawn between copyright on the one hand, and patents and trade marks on the other hand. The presence of moral rights in copyright may rightly or wrongly have made copyright the more obvious, if not the stronger, contestant for fundamental right status.

I. The Human Rights Approach to Copyright in International Instruments 17(2).13 Let us for a moment leave behind legal concepts and consider the factual starting point. Broadly speaking we are essentially concerned here with creative works, creations of the mind and elements of cultural heritage which are of particular value to society. Society finds it is therefore in its best interest to offer some form of protection to the creators of these works. Interests in material goods are protected by means of physical possession of the goods, which then gains legal recognition in the form of a property right. Whoever produces the goods and has them in his or her possession will be given property rights in the goods. Similarly, protection for creative works is offered along the property route. As these works are immaterial in nature28 the factual element of physical possession is not available here and cannot form the basis of the property right. That (intellectual)

24 Case C-461/10 Bonnier Audio AB v Perfect Communication Sweden AB [2012] 2 CMLR 42; [2012] ECDR 21. For a UK example in the context of the Norwich Pharmacal balancing act see Golden Eye (International) Ltd, Ben Dover Productions and others v Telefonica UK Ltd and another [2012] EWHC 723 (Ch) and on appeal [2012] EWCA Cv 1740. 25 Art 35 Health care: ‘Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities.’ 26 Case C-275/06 Productores de Musica de España (Promusicae) v Telefonica de España SAU [2008] ECR I-271 [62]–[70]. 27 Case C-70/10 Scarlet Extended SA v SABAM Scrl [2012] ECDR 4 [43]–[50]. 28 They are indeed to be distinguished from their material support or carrier.

494

Paul Torremans

Art 17(2) – Right to Property

property right is therefore created as a legal fiction, but it serves the same purpose. It is important to note though that the way society and the legal system on its behalf deal with creative works is to turn them into property rights. Behind any property there is an owner, and it is important to note also at the outset that the legal fiction that is copyright as a property right refers in this respect to the creator or author behind the work, in the absence of the concept of a person having the physical goods in his or her possession in relation to immaterial property. This is important to keep in mind in a human rights context. Apart from the obvious references to copyright as such, the debate will also need to deal with the human rights aspects of property rights and personality rights.29 The importance of the act of creation and the link with the creator in relation to 17(2).14 rights that may flow from it has also been emphasised by René Cassin, one of the architects of the current human rights framework. In his view, the ability and the desire to develop intellectual and creative activities from which copyright works may result is potentially found in all human beings. As such it deserves therefore respect and protection in the same way as all other basic faculties that are common to all men. This would mean that creators can claim rights by the very fact of their creation. This is a broad statement and it is by no means clear that such rights are by definition human rights and that they must cover all creations and necessarily take the format of an exclusive right in such creations.30 Further analysis is therefore warranted. (a) The Universal Declaration of Human Rights The first key provision in an international instrument that identifies copyright as a 17(2).15 human right is found in Article 27 of the Universal Declaration of Human Rights.31 According to Article 27, everyone has first of all ‘the right to the protection of the moral and material interests resulting from and scientific, literary or artistic production of which he is the author’. But it is equally important to note another element of the same article where it is stated in the first paragraph that ‘everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits’. This first paragraph of Article 27 clearly has historical roots. The Universal 17(2).16 Declaration of Human Rights was drafted less than three years after the end of the Second World War, and science and technology as well as copyright-based propaganda had been abused for atrocious purposes by those who lost the war (and arguably, also by those who won it). Such an abuse had to be prevented for the future, and it was felt that the best way forward was to recognise that everyone had a share in the benefits and that at the same time those who made valuable contributions were entitled

29 See AR Chapman, ‘Approaching Intellectual Property as a Human Right (obligations related to Article 15(1)(c))’, (2001) XXXV (3) Copyright Bulletin 4–36, 5. 30 R Cassin, ‘L’intégration, parmi les droits fondamentaux de l’homme, des droits des créateurs des oeuvres de l’esprit’, in Mélanges Marcel Plaisant: Etudes sur la propriété industrielle, littéraire et artistique (Paris, Sirey, 1959) 229 and M Vivant, ‘Le droit d’auteur, un droit de l’homme?’ (1997) 174 Revue internationale des droits de l’antiquité 60, 87. 31 Art 27: ‘(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.’ See JAL Sterling, World Copyright Law, 2nd edn (London, Sweet & Maxwell, 2003) 43.

Paul Torremans

495

Part I – Commentary on the Articles of the EU Charter

to protection. That process was of a human rights nature, as the series of rights and claims made in Article 27 are considered to be universal and vested in each person by virtue of their common humanity. It should in this context also be remembered that the human rights that were articulated in the Universal Declaration of Human Rights are held to exist independently of implementation or even recognition in the customs or legal systems of individual countries. They are after all such important norms that they create prima facie obligations to take measures to protect and uphold these rights. This obligation particularly applies to governments, as they are supposed to act in the common interest of humanity.32 And ‘[b]ecause a human right is a universal entitlement, its implementation should be measured particularly by the degree to which it benefits those who hitherto have been the most disadvantaged and vulnerable’.33 It should not simply serve one group in society that already occupies a privileged position. The benefit that is produced for ‘everyone’ should also go beyond the ability to draw some benefit from the applications of intellectual property, ie the better goods and services that are made available as a result. Enjoyment of the arts and especially participation in the cultural life of society are clearly broader concepts that go further and involve elements of sharing at all levels and stages. 17(2).17 That brings us back to paragraph two of Article 27. This is not inasmuch a tool to implement paragraph one as a complimentary provision that sets up a right to the protection of moral as well as material interests. The protection of moral and material rights of authors and creator is clearly exactly what is covered by the area of law known as copyright, and this second paragraph of Article 27 of the Universal Declaration of Human Rights must therefore be seen as elevating copyright to the status of a human right; or maybe it is more appropriate to say that the Article recognises the human rights status of copyright. The roots of this second paragraph of Article 27 go back to two influential elements. In the first place there was the original suggestion made by the French delegation which had a double focus. On the one hand the emphasis was placed on the moral rights of the author, which centred on his or her ability to control alterations made to the work and to be able to stop misuses of the work or creation. On the other hand there was the recognition of the right of the author or creator to receive a form of remuneration for his or her creative activity and contribution.34 Secondly, the Mexican and Cuban members of the drafting committee argued that it made sense to establish a parallelism between the provisions of the Universal Declaration of Human Rights and the American Declaration on the Rights and Duties of Man that had at that stage been adopted very recently.35 Article 13 of the latter dealt with intellectual property rights by stating that: [E]very person has the right to take part in the cultural life of the community, to enjoy the arts, and to participate in the benefits that result from intellectual progress, especially

32 See JW Nickel, Making Sense of Human Rights: Philosophical Reflections on the Universal Declaration of Human Rights (Los Angeles, University of California Press, 1987) 3. 33 AR Chapman, ‘A Human Rights Perspective on Intellectual Property, Scientific Progress, and Access to the Benefits of Science’, WIPO Panel Discussion on Intellectual Property and Human Rights (8 November 1998), 2, available at www.wipo.org. 34 See J Morsink, The Universal Declaration of Human Rights: Origins, Drafting and Intent (Philadelphia, University of Pennsylvania Press, 1999) 220. 35 Chapman, ‘Approaching Intellectual Property’ (n 29) 11.

496

Paul Torremans

Art 17(2) – Right to Property

scientific discoveries. He likewise has the right to the protection of his moral and material interests as regards his inventions or any literary, scientific or artistic works of which he is the author.36

Despite these rather clear and explicit roots, it is not necessarily clear what motivated 17(2).18 those who voted in favour of the adoption of the second paragraph of Article 27 of the Universal Declaration of Human Rights. What we know is that the initial strong criticism that intellectual property was not properly speaking a human right or that it already attracted sufficient protection under the regime of protection afforded to property rights in general was eventually defeated by a coalition of those who primarily voted in favour because they felt that the moral rights deserved and needed protection and met the human rights standard and those who felt the on-going internationalisation of copyright needed a boost and that this could be a tool in this respect.37 This is of course not the strongest basis for a strong argument that copyright is 17(2).19 beyond doubt a human right and in theory things are not helped a great deal either by the fact that as a United Nations General Assembly action the Universal Declaration of Human Rights is merely aspirational or advisory in nature. But where initially Member States were not obliged to implement it on this basis, it has now gradually acquired the status of customary international law and of the single most authoritative source of human rights norms. That has in turn greatly enhanced the standing of copyright as a human right, even if the economic, social and cultural rights, of which copyright is one, are still seen as weaker provisions than those dealing with basic civil and political rights.38 The exact ramifications of Article 27 of the Universal Declaration of Human Rights are also not always clear,39 but what is clear is that copyright as a human right requires there to be a balance between the concepts expressed in Article 27(1) and those expressed in Article 27(2) as they are linked in the drafting of the provision.40 Nevertheless, national courts have used it to protect the interests of authors on a couple of occasions.41 For example, in a judgment dated 29 April 1959 the Court of Appeal in Paris granted Charlie Chaplin, a British national, the rights of a Frenchman in France in relation to his moral rights on the basis of an assimilation based on Article 27(2) of the Universal Declaration when he wished to object to the unauthorised addition of a sound track to one of his movies.42 Similarly Article 27(2) played a prominent role in the granting of the status of author, and with it moral rights in the first judgment in the John Huston—‘Asphalt Jungle’ saga, where colour rather than sound was added to the

36 American Declaration of the Rights and Duties of Man, Approved by the ninth International Conference of American States, Bogota, Colombia, 30 March to 2 May 1948, Final Act of the Ninth Conference, pp 38–45. 37 Morsink (n 34) 221. 38 Chapman, ‘A Human Rights Perspective’ (n 33) 7. 39 Cassin (n 30) 225. 40 See Villalba, ‘Volviendo a justificar el derecho de autor—Revalidating Copyright’, paper delivered at the ALAI 2007 conference in Punta del Este, to be published in the proceedings of that conference, para 8. 41 See Dessemontet, ‘Copyright and Human Rights’, in J Kabel and G Mom, Intellectual Property and Information Law: Essays in Honour of Herman Cohen Jehoram, Vol VI, Information Law Series (The Hague, Kluwer Law International, 1998) 113–20. 42 Société Roy Export Company Establishment et Charlie Chaplin v Société Les Films Roger Richebé (1960) 28 RIDA 133 and [1960] Journal du Droit International 128, annotated by Goldman.

Paul Torremans

497

Part I – Commentary on the Articles of the EU Charter

movie.43 Whilst both cases deal primarily with moral rights, the concept of authorship also has economic rights aspects and it is clear that Article 27 covers both economic and moral rights and therefore the whole of copyright. (b) The International Covenant on Economic, Social and Cultural Rights 17(2).20 This Covenant is to be seen as a follow up action on the Universal Declaration of Human Rights. Important though is the fact that this follow-up action took the form of a Treaty, and that as such it can impose legally binding obligations to implement its provisions on states that became contracting parties to it. Every EU Member State has ratified the covenant. 17(2).21 Article 15 of the Covenant is very clear in this respect and imposes a number of responsibilities and steps to be taken by Contracting States, in the following way: (1) The States Parties to the present Covenant recognize the right of everyone: (a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its applications; (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. (2) The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, development and the diffusion of science and culture. (3) The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity. (4) The States Parties to the Present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and cooperation in the scientific and cultural fields.

17(2).22 These obligations apply to the substantive rights granted in paragraph one of Article 15 of the Covenant and which are very much based on Article 27 of the Universal Declaration of Human Rights. As such they comprise the rights of everyone (a) to take part in cultural life, (b) to enjoy the benefits of scientific progress and its applications and, most importantly for our current purposes, (c) to benefit from the protection of the moral and the material interests resulting from any scientific, literary or artistic production of which he is the author. However, this provision no doubt gains in importance in the light of the absence in the Covenant of a provision dealing with property, which at the time of the Universal Declaration was still seen as clearly the stronger and more obvious human right which could also cover most of the intellectual property issues. If we look in a bit more detail at the substantive provision contained in Article 15(1) 17(2).23 (c) of the Covenant, the clear starting point is that an obligation is imposed upon the contracting parties to protect the moral and material interests of authors and creators.44 In essence there is therefore an obligation to implement copyright as a human right and to put in place an appropriate regime of protection for the interests of authors and

43 Tribunal de Grande Instance de Paris, judgment dated 23 November 1988, 139 (1989) RIDA 205, annotated by Sirinelli and [1989] Journal du Droit International 1005, annotated by Edelman. 44 Chapman, ‘A Human Rights Perspective’ (n 33) 15.

498

Paul Torremans

Art 17(2) – Right to Property

creators.45 But a lot of freedom is left to contracting states in relation to the exact legal format of that protection. The human rights framework in which copyright is placed does however put in place a number of imperative guidelines: — — — —

Copyright must be consistent with the understanding of human dignity in the various human rights instruments and the norms defined therein. Copyrights related to science must promote scientific progress and access to its benefits. Copyright regimes must respect the freedom indispensable for scientific research and creative activity. Copyright regimes must encourage the development of international contacts and cooperation in the scientific and cultural fields.46

In looking at this framework it should not be forgotten that its genesis was troubled 17(2).24 and cumbersome. Various proposals were made to include intellectual property rights in the Covenant, all of them attracted severe criticism and some were rejected. However, whenever a draft Covenant without an intellectual property rights clause in it was submitted for further discussion a new proposal to include intellectual property rights was tabled and in the end the incorporation into the International Covenant on Economic, Social and Cultural Rights of an intellectual property clause was approved by a vote of 39 to 9, with 24 Member States abstaining.47 The Covenant then came into force several years later on 3 January 1976.48 It is of course interesting to look back at these instruments that enshrine copyright 17(2).25 as a human right and the way in which they came into being, especially as the copyright community all too often simply ignores this aspect of copyright. However, one should not look at this simply as a historical accident. One should also try to identify its implications for copyright and the conclusions that should be drawn from it. The first thing to note is that copyright has a relatively weak claim to human rights status, as its inclusion in the international human rights instruments proved to be highly controversial. And in the end the copyright and intellectual property components of the various articles were only included because they were seen as tools to give effect to, and to protect, other stronger human rights. The second conclusion flows from this first one. The various elements in the articles dealing with copyright and intellectual property are interrelated, which means for example that the rights of authors and creators must be understood as essential preconditions for cultural freedom and for the participation and access to the benefits of scientific progress. The fact that the rights of authors and creators can also stand in their own right is instead an ancillary point. The third point takes this interaction one step further. Copyright and intellectual property rights are not simply preconditions. Not only do they need to exist to facilitate cultural participation and

45

See also A Bertrand, Le droit d’auteur et les droits voisins, 2nd edn (Paris, Dalloz, 1999) 81. Chapman, ‘A Human Rights Perspective’ (n 33) 7. 47 M Green, ‘Background Paper on the Drafting History of Article 15(1)(c) of the International Covenant on Economic, Social and Cultural Rights’, submitted for the Day of General Discussion on Article 15(1) of the Covenant, 9 October 2000, E/C.12/2000/15, 8–12. 48 The International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3, GA Res 2200(XXI), 21 UN GAOR Supp (No 16), p 49, UN Doc A/6316 (1966), was adopted on 16 December 1966. 46

Paul Torremans

499

Part I – Commentary on the Articles of the EU Charter

access to the benefits of scientific progress, they should also make sure that the other components of the relevant articles in the international human rights instruments are respected and promoted. In this sense the rights of authors and creators should not only enable, but also facilitate rather than constrain cultural participation and access to scientific progress. A fourth implication of all this is that the international human rights instruments deal with copyright and intellectual property rights as such.49 They do no delineate the scope and the limits of copyright. The determination of the substance of copyright is an issue that is left to the legislature.50 17(2).26 Maybe it is worth adding at this stage that one can only talk in terms of a human right when the pre-normative state of a claim has been turned into a normative state that is recognised by the social group concerned. Additionally the norm must fit the existing normative order in a coherent way, it must be considered to represent a basic freedom, ie an essential social condition for the better development of the individual, and finally it must be perceived as being of universal reach.51 Broadly speaking, copyright seems to meet these requirements and its inclusion in the international human rights instruments seems justifiable on that basis, but it remains to be seen how all these elements really fit together in practice in relation to copyright. The common theme that seems to emerge and an understanding of which seems to 17(2).27 be essential to understand how copyright operates as a human right is that of the balancing of rights and interests. Two kinds of balancing act appear to be necessary. The first one relates to the balance that is inherent to copyright itself and that involves both the private interests of authors and creators and the wider public interests of society as a whole.52 We will now briefly look at other intellectual property rights and we will then turn our attention to this particular balancing act. But on top of that one has to acknowledge that copyright as a human right is just one element of the international human rights instruments. Surely copyright as a human right will also have to be seen in relation with other human rights. Here again a balancing of rights, albeit be it of a different nature, will be unavoidable, and we will deal with this at a later stage.

II. The Human Rights Approach to Other Intellectual Property Rights in the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights 17(2).28 Article 27 of the Universal Declaration of Human Rights confers a right to the protection of the moral and material interests in scientific production. Similarly, Article 15 of the International Covenant refers to science on top of culture. There is of course no reason to exclude scientific works from the scope of copyright, especially as Article 2(1) of the Berne Convention 1886 specifically includes scientific works in the scope of copyright. It is nevertheless arguable that the wording of the human rights instruments

49 50 51 52

500

Chapman, ‘Approaching Intellectual Property’ (n 29) 13. See H Schack, Urheber- und Urhebervertragsrecht (Tübingen, Mohr Siebeck, 1997), 40. Vivant (n 30) 73. See Sterling (n 31) 40.

Paul Torremans

Art 17(2) – Right to Property

is broader and goes beyond the field of copyright. From an intellectual property perspective the field covered traditionally by patent law could also be involved. The link is much weaker though, and apart from a broad statement that the interests of an inventor should be protected, there is very little guidance to be derived from these provisions for the exact scope and content of patent law. Trade marks, as the third major intellectual property right, seem to be entirely unaffected.

III. ECHR More interesting in this respect is the link to human rights through the property 17(2).29 provisions in the European Convention. It should in this respect be kept in mind that property was also seen as a key element in the Universal Declaration of Human Rights, but that it had shrunk away when the International Covenant came along. Article 1 of the first Protocol to the European Convention on Human Rights, which has been ratified by every EU Member State, is the key provision on this point: (1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. (2) The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

The role of Article 1 of the first Protocol to the European Convention on Human Rights 17(2).30 in relation to intellectual property rights was examined carefully by the Grand Chamber of the European Court of Human Rights in Anheuser-Busch v Portugal.53 AnheuserBusch had applied to register its ‘Budweiser’ trade mark in Portugal. This was opposed by their rivals Budejovicky Budvar, who relied on a bilateral treaty between Portugal and the Czech Republic protecting geographical indications. The Portuguese Supreme Court eventually ruled in favour of Budejovicky Budvar. Anheuser-Busch argued that they had acquired a property right through their application and that the retrospective application of the bilateral treaty interfered with their property right in a way that is prohibited by Article 1 of the first Protocol. For our current purposes it is important to note that the European Court of Human 17(2).31 Rights accepts that property or the concept of ‘possession’ in Article 1 of the first protocol is not limited to material property, and can also include immaterial property such as intellectual property rights. In relation to patents the Court referred to its judgment in British-American Tobacco Company v Netherlands.54 In relation to copyright reference was made to the judgment in Melnitchouk v Ukraine55 and the Court then applied the same logic to trade marks in the case at issue.56 Slightly more controversial was the issue whether a mere application for an intellectual property right could also come within the scope of Article 1 of the first protocol. The Court argues that economic interests flow

53 54 55 56

Case 73049/01 Anheuser-Busch v Portugal ECHR 2007-I. British-American Tobacco Company v Netherlands [1995] A Series no 331. Case 28743/03 Melnitchouk v Ukraine CEDH 2005-IX. Case 73049/01 Anheuser-Busch (n 53) [72].

Paul Torremans

501

Part I – Commentary on the Articles of the EU Charter

from the mere application, despite the fact that it is at best provisional and that a successful opposition can annul any interest. But under Portuguese law, a mere application makes licences and transfers of rights possible, as well as infringement proceedings. Despite the fact that it remains precarious and dependent on the eventual success of the registration this is in the view of the Court sufficient to bring the mere application also within the scope of Article 1 of the first protocol.57 17(2).32 The next step was then to examine whether the actions of the Portuguese state, effectively the judgment of the Portuguese Supreme Court, amounted to the kind of interference with property that Article 1 of the first protocol rules out. The Court came to the conclusion that it did not, as the judgment of the Supreme Court was based in law and had nothing arbitrary or manifestly unreasonable in it. There was therefore no interference with the property right in the sense required by Article 1 of the first protocol.58 As a result, Anheuser-Busch was unsuccessful in the end. 17(2).33 Interesting as the case may be on its facts, it adds little to the debate for our current purposes. On the positive side we learn that intellectual property is also for human rights purposes a form of property and that as such the human rights instruments will grant it some form of protection. That also seems to apply to applications to register intellectual property rights. On the negative side, we learn little, if anything at all, about the scope of form these intellectual property rights themselves should take. The influence on the shape of substantive patent or trade mark law seems negligible. Nothing is also said about the interaction with other aspects of human rights law.

D. Analysis I. General Remarks 17(2).34 Article 17(2) limits itself to a mere statement: ‘Intellectual property shall be protected.’ The fact that it is the second paragraph of the property protection clearly suggests that that protection shall be based on the property model. In a sense Article 17(1) will be applied mutatis mutandis to intellectual property. The explanations make that point clearly by stating that ‘the guarantees laid down in paragraph 1 shall apply as appropriate to intellectual property’. The right to own, use, dispose of and bequeath intellectual property requires little 17(2).35 comment as the same property approach applies. Suffice it to say that in relation to immaterial property the enforcement of rights is essential if the right is to be used effectively. Again expropriation in the public interest and subject to fair compensation is merely the application of the property rule to intellectual property. And finally, the use of property may be regulated by law in so far as is necessary for the general interest. This provides an interesting tool to balance rights.

57 58

502

Ibid [78]. Ibid [87].

Paul Torremans

Art 17(2) – Right to Property

Leaving the application mutatis mutandis of Article 17(1) to one side, there is 17(2).36 very little guidance on offer for the specific content of intellectual property rights. Article 17(2) does not set out what the content of intellectual property legislation should be. It is however clear that Article 17(2) is merely the continuation of an ongoing inter- 17(2).37 national trend. International instruments increasingly see intellectual property and its protection as a fundamental right. The Charter does not innovate on this point and it adds little further detail or clarification. As has become clear above, the fundamental rights status of intellectual property is not particularly strong. The explanation to Article 17(2) does not change that impression when it puts the focus on the economic importance of intellectual property rights as the reason for their inclusion as a fundamental right: ‘Protection of intellectual property, one aspect of the right of property, is explicitly mentioned in paragraph 2 because of its growing importance and Community secondary legislation’. Important as intellectual property as a fundamental right may be, it clearly cannot overrule strong historical fundamental rights such as the right to freedom of expression. Article 17(2) does not provide a tool to balance fundamental rights, but as with other international instruments that were referred to above, the key element that follows from a declaration that intellectual property rights are to be protected as fundamental rights is that of the balancing of rights, balancing fundamental intellectual property rights with other fundamental rights.

II. Scope of Application Article 17(2) does not define intellectual property in any way and neither is an inter- 17(2).38 nationally accepted definition readily available. The explanations make it clear that copyright, patents and trade marks are included and the addition of the concept of ‘associated rights’ must mean that designs are also covered. The preceding paragraphs have already illustrated abundantly that the focus in this area is clearly on copyright and that most remaining issues arise in relation to patents and trade marks. These are the key rights and the economic value is located here. By covering these rights Article 17(2) achieves its aim, even if it is not clear how far beyond them its scope of application extends. And any conflict between the fundamental right of intellectual property and other fundamental rights with which there exists an interrelationship is also most likely to arise in relation to copyright, patents or trade marks. In other words, whilst the absence of a precise definition and scope is to be regretted from an academic point of view, it is unlikely to give rise to many problems in practice.

III. Specific Provisions (a) Statement of Principle in Need of a Balance Intellectual property shall be protected. This is the specific provision found in Article 17(2).39 17(2). That does not leave a lot of things open for discussion. It is a property from of protection that is envisaged in Article 17, but apart from that it is a mere statement of principle. Paul Torremans

503

Part I – Commentary on the Articles of the EU Charter

17(2).40

What has become clear from the preceding paragraphs though is that intellectual property is not a particularly strong fundamental right that dominates all other fundamental rights on the one hand and that on the other hand there is a strong interrelationship, if not potential conflict, with other fundamental rights. What is therefore of the essence is the balancing of rights and the way to do so.59 Again Article 17(2) itself does not offer guidance. Intellectual property rights protect private interests and other fundamental rights such as the right to education and the right to freedom of expression protect public interests. Reconciling these is the key issue. There is therefore a need for a balancing act. As Audrey Chapman put it: To be consistent with the full provisions of Article 15 [of the International Covenant on Economic, Social and Cultural Rights], the type and level of protection afforded under any intellectual property regime must facilitate and promote cultural participation and scientific progress and do so in a manner that will broadly benefit members of society both on an individual and collective level.60

17(2).41 The emphasis here is on the broad public interest of society, but any level of intellectual property protection will also give rights to the individual rightholder. The private interest of the author, creator and eventually of the copyrightholder is an inevitable component of the equation. Somehow a balance will need to be struck between these interests, as stronger individual rights inevitably impinge on the interests of society as a whole and vice versa.61 This balance between public and private interests is not an external element for copyright or indeed any other intellectual property right. On the contrary, it has been internalised by copyright and it is part of its fundamental nature.62 Copyright is therefore familiar with this balance of interests.63 On the one hand there is the need to protect the individual interest of the author in order to encourage further creation that results in the author being given a certain amount of exclusivity in relation to the exploitation and use of his or her work and on the other hand there is the public interest of society as a whole to have access to culture and to copyright works as a tool for progress and improvement. 17(2).42 The issue arises also in relation to trade marks. Trade marks are often used or parodied in the course of media campaigns, to criticise the behaviour of the rightholder,64 eg in relation to its environmental or health policies. Freedom of expression again enters

59 This crucial point is the key element in the approach of the Court of Justice of the European Union. See Case C-275/06 Promusicae (n 26) [62]–[70] and Case C-70/10 Scarlet Extended (n 27) [43]–[50]. 60 Chapman, ‘Approaching Intellectual Property’ (n 29) 14. 61 See Schack (n 50) 41. 62 Compare in this respect the wording of Art 1 para 8 s 8 of the Constitution of the United States of America in which Congress is vested with the power ‘To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries’. 63 United Nations, Economic and Social Council, Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, 52nd session, Item 4 of the Provisional Agenda, Economic, Social and Cultural Rights—The Impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on Human Rights, Report of the High Commissioner, E/CN.4/Sub/2/2001/13, 5. 64 See eg Michelin v CAW Canada (1996) 71 CPR (3d) 348.

504

Paul Torremans

Art 17(2) – Right to Property

the picture and the property right of the rightholder will need to be balanced with it.65 Trade mark law has less internalised the balancing act though. The same applies to patents, which often need to be balanced with a right to health and a right to research and study. In terms of internal balance in patent law, one can refer to the exclusion from patentability of methods of treatment of the human body. On this point the right to health prevails. But there will also need to be an external balance between the right to health in Article 35 of the Charter and intellectual property, here patents, in Article 17(2) of the Charter. That balancing exercise can be seen at work in the TRIPS Protocol, concluded also by the EU, that accepts limitations on the exercise of patent law in order to achieve an appropriate balance with the right to health of citizens (also in third countries).66 The need for a balance that takes us away from granting a kind of unrestricted 17(2).43 monopoly property right is also inherent in the wording of Article 15 of the International Covenant on Economic, Social and Cultural Rights where it requires states to make sure that everyone will be able ‘to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’. Enjoying a benefit from such protection is clearly not the same as enjoying an unrestricted monopoly property right. In practice, copyright insures the balance in many ways, for example by means of limitations and exceptions to copyright infringement rules. This is an example of an attempt to strike the balance by drafting the rule in such a way that its effect in all practical cases is to achieve a proper balance between the various interests. On top of that there are also external correction mechanisms that interfere whenever the rule would not achieve the balance in a particular, ie peculiar, set of circumstances. What we are dealing with bears close resemblance to the abuse of rights scenario. The use of competition principles in relation to copyright can serve as a good example to clarify the concept of balancing interests in copyright. (b) Competition Principles as an Example Principles and Justification It would indeed be a serious error to see copyright (and other intellectual property 17(2).44 rights), as essentially a private monopoly right, and competition law, as defender of the public interest against inappropriate behaviour, as irreconcilable opponents that fight for supremacy. Instead one should start by looking at the way in which intellectual property rights and in particular copyright fit into our modern society and how their existence can be justified.67 Why are these intangible property rights such as copyright created? Economists argue that if everyone would be allowed to use the results of innovative and

65 Canada: British Columbia Automobile Association v Office and Professional Employees’ International Union (2001) 10 CPR (4th) 423 (BCSC); South-Africa: Laugh It Off Promotions CC v Sabmark International et al (2006) 1 SA 144 (CC). 66 Declaration on the TRIPS agreement and public health, adopted on 14 November 2001, see www.wto. org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm. For the protocol, see [2007] OJ L311/35. 67 See in general Torremans (n 11) 12–25.

Paul Torremans

505

Part I – Commentary on the Articles of the EU Charter

creative activity freely, the problem of the ‘free riders’ would arise.68 No one would invest in creation or innovation, except in a couple of cases where no other solution would be available,69 as it would give them a competitive disadvantage.70 All competitors would just wait until someone else made the investment, as they too would then be able to use the results, without having invested money in creation and innovation, and without taking the risk that the investment might not result in the creative or innovative breakthrough hoped for.71 The cost of the distribution of the knowledge is, on top of that, insignificant.72 As a result, the economy would not function adequately, because we see creation and innovation as an essential element in a competitive free market economy. Following this line of argument, creation and innovation are required for economic growth and prosperity.73 From this starting point, one recognises very clearly elements of public interest, ie fulfilling the needs of society. Property rights should be created if goods and services are to be produced and used as efficiently as possible in such an economy. The perspective that they will be able to have a property right in the results of their investment will stimulate individuals and enterprises to invest in further cultural and artistic creation as well as in research and development.74 These property rights should be granted to someone who will economically maximise profits.75 It is assumed that the creator or inventor will have been motivated by the desire to maximise profits, either by exploiting the creation or invention himself or by having it exploited by a third party, so the rights are granted to them.76 17(2).45 But how does such a legally created monopolistic exclusive property right fit in with the free market ideal of perfect competition? At first sight, every form of a monopoly might seem incompatible with free competition, but we have already demonstrated that some form of property right is required to enhance economic development as competition

68 See R Benko, Protecting Intellectual Property Rights: Issues and Controversies, AEI Studies 453 (Washington DC, American Enterprise Institute for Public Policy Research, 1987) 17. Inappropriability, the lack of the opportunity to become the proprietor of the results of innovative and creative activity, causes an underallocation of resources to research activity, innovation and creation: see K Arrow, ‘Economic Welfare and the Allocation of Resources for Invention’ in National Bureau for Economic Research, The Rate and Direction of Inventive Activity: Economic and Social Factors (Princeton NJ, Princeton University Press, 1962) 609–25. 69 Eg a case where the existing technology is completely incapable of providing any form of solution to a new technical problem that has arisen. 70 See Ullrich, ‘The Importance of Industrial Property Law and Other Legal Measures in the Promotion of Technological Innovation’ [1989] Industrial Property 102, 103. 71 One could advance the counter-argument that inventions and creations will give the innovator an amount of lead time, and that the fact that it will take imitators some time to catch up would allow the innovator to recuperate his investment during the interim period. In many cases this amount of lead time will, however, only be a short period, too short to recuperate the investment and make a profit. See also Mansfield, Schwartz and Wagner, ‘Imitation Costs and Patents: An Empirical Study’ [1981] European Competition Journal 907, 915 et seq. 72 See Benko (n 68) 17. 73 See ibid, ch 4 p 15, and US Council for International Business, A New MTN: Priorities for Intellectual Property (Washington DC, 1985) 3. 74 Lunn, ‘The Roles of Property Rights and Market Power in Appropriating Innovative Output’ [1985] Journal of Legal Studies 423, 425. 75 Lehmann, ‘Property and Intellectual Property—Property Rights as Restrictions on Competition in Furtherance of Competition’ [1989] International Review of Intellectual Property and Competition Law 1, 11. 76 For an economic-philosophical approach see also Mackay, ‘Economic and Philosophical Aspects of Intellectual Property Rights’, in M Van Hoecke (ed), The Socio-Economic Role of Intellectual Property Rights, (Ghent, Story-Scientia, 1991) 1–30.

506

Paul Torremans

Art 17(2) – Right to Property

can only play its role as market regulator if the products of human labour are protected by property rights.77 In this respect the exclusive monopolistic character of the property rights is coupled with the fact that these rights are transferable. These rights are marketable; they can, for example, be sold as an individual item. It is also necessary to distinguish between various levels of economic activity as far as economic development and competition are concerned. The market mechanism is more sophisticated than the competition/monopoly dichotomy. Competitive restrictions at one level may be necessary to promote competition at another level. Three levels can be distinguished: production, consumption and innovation. Property rights in goods enhance competition on the production level, but this form of ownership restricts competition on the consumption level. One has to acquire the ownership of the goods before one is allowed to consume them and goods owned by other economic players are not directly available for one’s consumption. In turn, intellectual property imposes competitive restrictions at the production level. Only the owner of the copyright in a literary work may for example produce additional copies of that work and exploit it in any other way. These restrictions benefit competition on the creation level. The availability of property rights on each level guarantees the development of competition on the next level. Property rights are a prerequisite for the normal functioning of the market mechanism.78 Copyright and the restrictions on copying and communication to the public which it imposes are needed to enhance further creation of copyright work, which is clearly what is required and desirable from a public interest point of view. This is the only way in which copyright can, in the words of the American Constitution, play its public interest role ‘to promote science and the useful arts’.79 Not only does this go a long way in demonstrating that the copyright system, right 17(2).46 from its inception, is influenced heavily by public interest imperatives, and that the balance which it tries to achieve between the interest of the rightholders and of the users and general public is based on public interest considerations. Competition law is also used as a tool to regulate the use that is made of copyright in a later stage. Excesses that cannot be reconciled with the justification for the existence of copyright, ie that do not serve to achieve the public interest aims of copyright, will come to be seen as breaches of competition law. Yet again the public interest is involved, this time in regulating the use of the exclusivity granted by copyright.80 The Magill81 and IMS82 cases are good examples in this area.

77

Lehmann, ‘Property and Intellectual Property’ (n 75) 12. Lehmann, ‘The Theory of Property Rights and the Protection of Intellectual and Industrial Property’, [1985] International Review of Intellectual Property and Competition Law 525, 539. 79 US Constitution Art 1, s 8, cl 8. 80 See Torremans (n 11) 314–30. 81 Joined Cases C-241/91 P and C-242/91 RTE and ITP v Commission (n 11). 82 Case C-481/01 IMS Health v NDC Health [2004] ECR I-05039; Order of the President of the Court of Justice of 11 April 2002 in Case C-481/01 P(R); Order of the President of the Court of First Instance of 10 August 2001 in Case T-184/01 R; and Order of the President of the Court of First Instance of 26 October 2001 in Case T-184/01 R, both available at Curia.eu.int. 78

Paul Torremans

507

Part I – Commentary on the Articles of the EU Charter

Magill and IMS Health 17(2).47 Magill was concerned with the copyright in TV listings. The broadcasters that owned the copyright refused to grant a licence to Magill, which needed it to be able to produce a comprehensive weekly TV listings magazine for the Irish market. The case shows clearly that there is nothing wrong with the copyright as such. The problem is clearly situated at the level of the use that is made of the copyright. Here again the starting point is that it is up to the rightholder to decide what use to make of the right and that, as such, a refusal to license does not amount to a breach of competition law. But the Court of Justice argued that a refusal might in exceptional circumstances constitute an abuse.83 These exceptional circumstances involved the following in this case. The broadcasters’ main activity is broadcasting; the TV guides market is only a secondary market for them. By refusing to provide the basic programme listing information, of which they were the only source, the broadcasters prevented the appearance of new products which they did not offer and for which there was a consumer demand. The refusal could not be justified by virtue of their normal activities. And, by denying access to the basic information which was required to make the new product, the broadcasters were effectively reserving the secondary market for weekly TV guides to themselves. 17(2).48 In essence, the use of copyright to block the appearance of a new product for which the copyright information is essential and to reserve a secondary market to oneself is an abuse and cannot be said to be necessary to fulfil the essential function (reward and encouragement of the author) of copyright. Here again one clearly sees the public interest input. Competition law is used to make sure that copyright is used according to its proper intention, ie in the public interest. Any abuse of the right against the public interest, even if it would further enhance the exclusive monopoly-style property right of the copyright owner by giving it full and unfettered control over the work and its use, will constitute a breach of competition law.84 17(2).49 IMS Health85 is the complex follow-up case. IMS Health had developed a brick structure to facilitate the collection of marketing data on the German pharmaceutical market. It owned the copyright in that brick structure and refused to grant a licence to its potential competitors. In comparison with Magill a number of complicating factors arise. First of all it is not entirely clear whether there is a secondary market involved at all, as IMS Health and its competitors both wished to operate on the primary market for the collection of pharmaceutical data in Germany, and secondly it is also not clear whether in the circumstances the emergence of a new product would be blocked, as the competitors were only interested in copying IMS’s brick structure without necessarily providing the user with a different product as a result of such use. The main point in IMS Health is not so much the question of whether the requirements of reserving a secondary market to oneself and of blocking the emergence of a new product can be defined in a more flexible way, but rather the question of whether these two requirements need to be met cumulatively, or whether meeting one of them is sufficient to

83 84 85

508

Joined Cases C-241/91 P and C-242/91 P RTE and ITP v Commission (n 11) [54] and [57]. Torremans (n 11) 316–19. Case C-481/01 IMS Health (n 82).

Paul Torremans

Art 17(2) – Right to Property

trigger the operation of competition law. The definitional problems really come down to defining the boundaries of the public interest on this point and the question whether the requirements apply in a cumulative manner defines when the threshold for an intervention by competition law in defence of public interest concerns is met. This latter case shows clearly that striking the balance is not a straightforward or easy task, and that the facts of any new situation may require further fine-tuning of the balance. As Magill and IMS Health show clearly, society has a strong interest to have access to 17(2).50 information and this interest can be impeded by the private interest of the rightholder to enhance its exclusive monopoly style property right by giving it full and unfettered control over the work and its use. But it is not just passive access for society as a whole that is required. Each individual member of society also must have a right of access and a right to borrow (ideas and some expression) in order to exercise its fundamental freedom to create in order in turn to be able to exercise his or her human right to benefit from copyright in his or her creative effort. Copyright therefore simply cannot prohibit any and all borrowings.86 This is another element that is to be taken into account in the fine-tuning of the balance.

Not Only Economic Considerations Count Be that as it may, what is clear is that copyright has a number of built-in mechanisms 17(2).51 to balance the private and public interests.87 Further complications arise though, as up to now we have almost exclusively looked at economic interests at either side. This is however not the only interest involved.88 From a human rights perspective the author or creator assumes also a lot of importance. This manifests itself in the work producedt by these authors or creators being acknowledged as having an intrinsic value as an expression of human dignity and creativity.89 In terms of copyright law, this is reflected by the balance between economic and moral rights, with the latter being a recognition of the fundamental link between the work and the author or creator. Moral rights survive as rights of the author or creator even when the latter transfers the economic rights in the work, thereby preserving the fundamental link.90 The moral rights of paternity, ie the right to be identified as author of the work, and integrity, ie the right to object to the distortion or mutilation of the work that could affect the author’s reputation,91 operate as fundamental minimal rights that do not normally stand in the way of the normal exploitation of the work and the economic rights in it, but that allow the author to object to clearly abusive use of the work that would deny or distort

86

Dessemontet (n 41) 113–20. Report of the High Commissioner (n 63) 5. 88 See Chapman, ‘A Human Rights Perspective’ (n 33) 2. 89 Chapman, ‘Approaching Intellectual Property’ (n 29) 14. 90 See Torremans (n 11) ch 14, pp 231–43 and G Davies and K Garnett, Moral Rights (London, Sweet & Maxwell, 2010). 91 As enshrined in Art 6bis of the Berne Convention. 87

Paul Torremans

509

Part I – Commentary on the Articles of the EU Charter

his or her contribution as an expression of his or her human dignity and creativity.92 This way a fair balance with the economic rights is provided, but this is also clearly another important aspect of the overall balancing act that is required if copyright is to operate properly as a human right. ‘[T]he question essentially is [and remains] where to strike the right balance.’93 17(2).52 This kind of issue is rather copyright-specific and arises to a far lesser extent in relation to patents, trade marks and other intellectual property rights. The latter are after all known as industrial rights and the emphasis is put more exclusively on the economic aspects of these rights. (c) Copyright’s Relationship with Other Human Rights 17(2).53 We already suggested above that a second part of the balancing act relates to the relationship between copyright and other human rights. Already intuitively one assumes that human rights must have equal value when compared to one another, and that one cannot simply overrule the other. This must add yet another factor to consider when one works out the balance between public and private interests. The way we have looked at that balance up to now reflects very much the content of Article 27 of the Universal Declaration of Human Rights and Article 15 of the International Covenant on Economic, Social and Cultural Rights in both of which elements referring to the public as well as the private interest are brought together. But one needs to add to that that the balance between these interests must be struck with the primary objective of promoting and protecting human rights. That must be the overall aim of the international human rights instruments, of which the clause considering copyright as a human right forms part.94 17(2).54 Article 5(1) of the International Covenant on Economic, Social and Cultural Rights backs this up from a legal point of view by stating that [n]othing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms recognized herein, or at their limitation to a greater extent than is provided for in the present Covenant.

17(2).55 A similar provision is set out in Article 54 of the Charter. Copyright and its balance between public and private interests must therefore put in place a regime that is consistent with the realisation of all other human rights.95 The right of freedom of information and of access to information96 provides a good example of another fundamental human right that needs to be respected, but the implementation of which alongside the implementation of copyright as an exclusive right in some of that information might create problems in a number of circumstances and will therefore call for a careful balancing

92 See Torremans (n 11) ch 14, pp 231–43 and Torremans, ‘Moral Rights in the Digital Age’, in IA Stamatoudi and P Torremans (eds), Copyright in the New Digital Environment, Perspectives on Intellectual Property Series (London, Sweet & Maxwell, 2000) 97–114. 93 Report of the High Commissioner (n 63) 5. 94 Ibid. 95 Chapman, ‘Approaching Intellectual Property’ (n 29) 14. 96 As found for example in Art 19 of the Universal Declaration of Human Rights.

510

Paul Torremans

Art 17(2) – Right to Property

of all the rights and interest.97 The aim must be to respect both rights to the optimal or maximum extent possible. Maybe the suggestion of the German Constitutional Court that the freedom of access to information can still be guaranteed in those cases where whoever seeks access does not get that access for free but against the payment of a fee in respect of the copyright in the information can serve as an example here. Access is guaranteed, but it is not entirely free access, and on the other hand copyright is respected by means of the remuneration whilst giving up the right to refuse to grant a licence as a part of the exclusive right in the work.98 The balancing act can be seen at work in the Court of Justice of the European 17(2).56 Union’s judgment in the Laserdisken case. Laserdisken objected to the introduction in EU copyright of a right of distribution that was only exhausted once the recording of a cinematographic work had been placed onto the single market with the consent of the rightholder (first sale). This restricted Laserdisken’s ability to sell imported recordings, and they argued that this also involved a violation of the right of the citizens of the EU to receive information and their freedom of expression. Having accepted that the right to freedom of expression, as well as the property right, are part of the EU legal order, the Court rejected Laserdisken’s argument, because the rights were not absolute and needed to be balanced with the interests of the owners of copyright. Or as the Court put it: regarding the freedom to receive information, even if the exhaustion rule laid down in Art 4(2) of Directive 2001/29 may be capable of restricting that freedom, it nevertheless follows from Art 10(2) of the ECHR that the freedoms guaranteed by Art 10(1) may be subject to certain limitations justified by objectives in the public interest, in so far as those derogations are in accordance with the law, motivated by one or more of the legitimate aims under that provision and necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see, to that effect, Herbert Karner Industrie Auktionen GmbH v Troostwijk GmbH (C-71/02) [2004] ECR I-3025 ; [2004] 2 CMLR 5 at [50]). In the present case, the alleged restriction on the freedom to receive information is justified in the light of the need to protect intellectual property rights, including copyright, which form part of the right to property.99

The approach is not limited to the balance between freedom of expression and intel- 17(2).57 lectual property. It applies to the balance with other fundamental rights too. The Metronome Music case is a good example as the Court held that the right of property and the freedom to pursue a trade may be restricted, here in order to achieve a balance with the rental and lending right of the copyright owner. This became very clear in paragraph 21 of the judgment: Furthermore, according to settled case law, the freedom to pursue a trade or profession, and likewise the right to property, form part of the general principles of Community law. However, those principles are not absolute but must be viewed in relation to their social function. Consequently, the exercise of the right to property and the freedom to pursue a trade or profession may be restricted, provided that any restrictions in fact correspond to objectives of general interest pursued by the European Community and do not constitute in relation to the

97 98 99

Bertrand (n 45) 81. Schack (n 50) 42. Case C-479/04 Laserdisken (n 18) [64]–[65].

Paul Torremans

511

Part I – Commentary on the Articles of the EU Charter

aim pursued a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed.100

17(2).58 The same kind of balance between various human rights is also found in a slightly different context when attention is turned to national constitutions and the way in which they protect copyright as a human right; this could be relevant to the interpretation of the Charter, pursuant to Article 52(4). Some of these constitutions, such as those of Sweden101 and Portugal,102 have a direct copyright clause, but most of them protect copyright as a human right by bringing aspects of it under other constitutional provisions covering other fundamental rights. The German Constitution is an example in point. The German Constitutional Court has intervened in copyright cases on many occasions, despite the fact that the German Constitution does not have a copyright clause. Instead, there is a consensus in Germany that parts of copyright are covered by the property clause in the Constitution. In particular the economic rights part of copyright can be considered as immaterial property and hence entitled to protection under the right of fundamental respect for property.103 Moral rights on the other hand refer to the author and show a strong overlap with personality rights.104 The latter are also specifically protected by the German Constitution.105 These separate aspects of fundamental rights protection then have to be put together to come to an overall protection for copyright as a fundamental human right. This clearly does not simply amount to an adding-up exercise.106 The individual components may overlap and they protect different interests which may enter into conflict with one another when pushed to extreme heights of protection. Here too a balancing of these different fundamental rights will be required. 17(2).59 Exactly how this balancing works out and exactly where the balance lies varies also from case to case. The higher the level of creativity and the more important the input of the creator is, the stronger the human rights claim of copyright will be. Not all works and not all situations will give copyright the same strength in its claim to human rights status and in its balancing exercise with other human rights.107 (d) Intellectual Property’s Relationship with Other Fundamental Rights in the Charter 17(2).60 There is little doubt about the fact that this balancing act will also need to operate in the context of the EU Charter. Intellectual property as a fundamental right under Article 17(2) will need to be balanced with other fundamental rights, such as the right

100

Case C-200/96 Metronome Musik (n 20) [21]. See above section B. C 2, § 19 of the Swedish Constitution of 1 January 1975. 102 Art 42 of the Portuguese Constitution of 2nd April 1976. 103 Schack (n 50) 40–43. 104 See G Schricker (ed), Urheberrecht: Kommentar, 2nd edn (Munich, Verlag CH Beck, 1999) Vor §§ 12 ff, Nos 1–13, pp 243–47; A Lucas and H-J Lucas, Traité de la propriété littéraire et artistique, 2nd edn (Paris, Litec, 2001) 303, § 367; Poullaud-Dulian, ‘Droit moral et droits de la personnalité’ [1994] G, I, Jurisclasseur Périodique 3780; and Anne Bragance v Michel de Grèce, Court of Appeal Paris [1989] 4 RIDA 301, annotated by Sirinelli. 105 Schack (n 50) 39–40. 106 See Schricker (n 104) Nos 14–17, pp 247–49. 107 See Vivant (n 30) 103 and 105. 101

512

Paul Torremans

Art 17(2) – Right to Property

to freedom of expression and the right to education. The relative strength of each right, the interests involved and the particularities of each case will play their role, as the same mechanism applies. As has already been seen on a couple of occasions, copyright cases are more prominent and more developed in this respect, but there is no reason to assume that when confronted with the question the courts will apply the same balancing exercise, using the same mechanism, in respect of trade marks108 and patents.109 The EU Court of Justice was asked to apply its balancing approach in the context of 17(2).61 the Charter in two cases that involved attempts by copyright owners to involve internet service providers in their attempt to enforce their copyright against acts of illegal downloading and sharing of their works. They wanted the personal data of the clients involved to be revealed. In other works on the one hand the right to property and Article 17(2) were engaged and on the other the right to private life and respect for personal data.110 In the Promusicae case the Court put it in the following way: 62. It should be recalled that the fundamental right to property, which includes intellectual property rights such as copyright (see, to that effect, Laserdisken ApS v Kulturministeriet (C-479/04) [2006] ECR I-8089; [2007] 1 CMLR 6 at [65]), and the fundamental right to effective judicial protection constitute general principles of Community law (see respectively, to that effect, R (on the application of Alliance for Natural Health) v Secretary of State for Health (C-154/04 & C-155/04) [2005] ECR I-6451; [2005] 2 CMLR 61 at [126] and the case law cited, and Unibet (London) Ltd v Justitiekanslern (C-432/05) [2007] 2 CMLR 30 at [37] and the case law cited). 63. However, the situation in respect of which the national court puts that question involves, in addition to those two rights, a further fundamental right, namely the right that guarantees protection of personal data and hence of private life. 64. According to recital 2 in the preamble to Directive 2002/58, the directive seeks to respect the fundamental rights and observes the principles recognised in particular by the Charter. In particular, the directive seeks to ensure full respect for the rights set out in Arts 7 and 8 of that Charter. Article 7 substantially reproduces Art.8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on November 4, 1950, which guarantees the right to respect for private life, and Art.8 of the Charter expressly proclaims the right to protection of personal data. 65. The present reference for a preliminary ruling thus raises the question of the need to reconcile the requirements of the protection of different fundamental rights, namely the right to respect for private life on the one hand and the rights to protection of property and to an effective remedy on the other. 66. The mechanisms allowing those different rights and interests to be balanced are contained, first, in Directive 2002/58 itself, in that it provides for rules which determine in what circumstances and to what extent the processing of personal data is lawful and what safeguards must be provided for, and in the three directives mentioned by the national court, which reserve the cases in which the measures adopted to protect the rights they regulate affect the protection

108 Canada: British Columbia Automobile Association (n 65); South-Africa: Laugh It Off Promotions (n 65). Compare the earlier Canadian case Michelin v CAW Canada (n 64). 109 For a critical approach that prefers not to qualify patents as fundamental rights, see Dreyfuss-Cooper, ‘Patents and Human Rights: Where is the Paradox?,’ in W Grosheide (ed), Intellectual Property and Human Rights, A Paradox (Cheltenham, Edward Elgar Publishing, 2009). 110 For a UK example in the context of the Norwich Pharmacal balancing act involving Art 8 of the Charter, as well as Art 17, see Golden Eye (International) Ltd and others v Telefonica UK Ltd and another (n 24).

Paul Torremans

513

Part I – Commentary on the Articles of the EU Charter

of personal data. Secondly, they result from the adoption by the Member States of national provisions transposing those directives and their application by the national authorities (see, to that effect, with reference to Directive 95/46, Lindqvist at [82]). 67. As to those directives, their provisions are relatively general, since they have to be applied to a large number of different situations which may arise in any of the Member States. They therefore logically include rules which leave the Member States with the necessary discretion to define transposition measures which may be adapted to the various situations possible (see, to that effect, Lindqvist at [84]). 68. That being so, the Member States must, when transposing the directives mentioned above, take care to rely on an interpretation of the directives which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality (see, to that effect, Lindqvist at [87]; and Ordre des Barreaux Francophones and Germanophone v Conseil des Ministres (C-305/05) [2007] 3 CMLR 28 at [28]).111

17(2).62 Having established the balancing exercise in a Charter context, the Court then applied it to a request to install a permanent filtering system to prevent copyright infringement. The Court ruled that such a request would distort the balance in favour of the intellectual property right: 43. The protection of the right to intellectual property is indeed enshrined in art 17(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’). There is, however, nothing whatsoever in the wording of that provision or in the Court’s case law to suggest that that right is inviolable and must for that reason be absolutely protected. 44. As [62]–[68] of the judgment in Productores de Música de España (Promusicae) v Telefónica de España SAU (C-275/06) [2008] ECR I-271; [2008] 2 CMLR 17; [2008] ECDR 10 make clear, the protection of the fundamental right to property, which includes the rights linked to intellectual property, must be balanced against the protection of other fundamental rights. 45. More specifically, it follows from [68] of that judgment that, in the context of measures adopted to protect copyright holders, national authorities and courts must strike a fair balance between the protection of copyright and the protection of the fundamental rights of individuals who are affected by such measures. … 49. In those circumstances, it must be held that the injunction to install the contested filtering system is to be regarded as not respecting the requirement that a fair balance be struck between, on the one hand, the protection of the intellectual-property right enjoyed by copyright holders, and, on the other hand, that of the freedom to conduct business enjoyed by operators such as ISPs. 50. Moreover, the effects of that injunction would not be limited to the ISP concerned, as the contested filtering system may also infringe the fundamental rights of that ISP’s customers, namely their right to protection of their personal data and their freedom to receive or impart information, which are rights safeguarded by arts 8 and 11 of the Charter respectively.112

111 112

514

Case C-275/06 Promusicae (n 26) [62]–[68]. Case C-70/10 Scarlet Extended (n 27) [43]–[45] and [49]–[50].

Paul Torremans

Art 17(2) – Right to Property

There is also no doubt that the Metronome Music113 and Laserdisken114 cases could also 17(2).63 be seen as examples in a Charter context, involving the freedom to pursue a trade and the freedom of expression.

IV. Limitations and Derogations A peculiar aspect of intellectual property rights is the fact that limitations and exceptions 17(2).64 are built into the intellectual property rights themselves. Intellectual property rights statutes themselves limit the scope of the exclusive rights that are granted. This is the case for the trade mark Directive and Regulation, the design Directive and Regulation, and in copyright this has been achieved by means of a directive.115 The same is achieved in patent law in national patent laws. Reference can therefore be made to sections D.I to III, without the need to duplicate that analysis here. This makes the intellectual property system easily compatible with Article 52 of the 17(2).65 Charter. That Article defines in its paragraph 1 the scope of the rights also by reference to exceptions and limitations: Scope of guaranteed rights 1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

The balancing act, based on the existence of other rights and freedoms, also fits in per- 17(2).66 fectly with the second sentence of this first paragraph. Limiting intellectual property rights in the public interest, as shown for example above in the competition law case study, is also possible on this basis. 17(2).67

The explanations to Article 17 also refer to the third paragraph of Article 52: 3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.

As the ECHR covers intellectual property rights, this limitation is of relevance to our 17(2).68 current debate. But as we highlighted above in section C, the case law of the ECHR does not clarify matters a lot. The exact impact of paragraph 3 is therefore not clear, but the most important element is that EU law and the Charter can build upon this basis.

113

Case C-200/96 Metronome Musik (n 20) [21]. See above section B. Case C-479/04 Laserdisken (n 18) [64]–[65]. See above section B. 115 Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OJ L167/10. 114

Paul Torremans

515

Part I – Commentary on the Articles of the EU Charter

V. Remedies 17(2).69 To put it in a slightly polemic way, intellectual property rights are essentially negative rights to stop others from committing certain acts that are exclusively reserved for the rightholder. In such a context enforcement and remedies take on an important role. It does not come as a surprise therefore that the EU has legislated in this field and that has resulted in a detailed Directive on the enforcement of intellectual property rights.116 The Directive provides for fair and equitable measures to enforce intellectual property rights and a range of remedies, including interim measures. Mirror provisions can be found at the international level in the TRIPS Agreement. 17(2).70 This approach is fully in line with the approach in Article 47 of the Charter: Right to an effective remedy and to a fair trial. Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.

17(2).71 It is also important to note that key cases such as Promusicae and Scarlet Extended that were discussed above arose in an enforcement context, when copyright owners tried to get internet service providers involved in the enforcement of their rights. In Scarlet Extended the Court explicitly rejected the imposition of a general injunction obliging the service provider to filter out infringing downloads.117

E. Evaluation 17(2).72 By including in Article 17(2) intellectual property as a fundamental property-style right, the EU Charter of Fundamental Rights joins a list of international instruments that have already done so. Historically the reasons and the exact implications of such an inclusion were not always clear, and Article 17(2) does not add any further clarifications or definitions. 17(2).73 The clear motivation for the elevation of intellectual property right to the status of fundamental rights is their current economic importance for the European Union. The explanations to Article 17(2) spell this out as follows: ‘Protection of intellectual property, one aspect of the right of property, is explicitly mentioned in paragraph 2 because of its growing importance and Community secondary legislation’. Both the internal development of intellectual property rules at EU level and the external enforcement of intellectual property in the relations with third countries get elevated to a level of

116 117

516

Directive 2004/48/EC on the enforcement of intellectual property rights [2004] OJ L195/16. Case C-275/06 Promusicae (n 26) and Case C-70/10 Scarlet Extended (n 27).

Paul Torremans

Art 17(2) – Right to Property

urgency and receive a strong form of justification if intellectual property rights are seen as fundamental rights. Owing to their relatively weak status as fundamental rights, intellectual property 17(2).74 rights will need to be balanced against other (stronger) fundamental rights, especially as the unrestricted enforcement of intellectual property rights is liable to affect certain fundamental rights negatively.

Paul Torremans

517

Article 18 Article 18 Right to Asylum The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union (hereinafter referred to as ‘the Treaties’).

Text of Explanatory Note on Article 18 The text of the Article has been based on TEC Article 63, now replaced by Article 78 of the Treaty on the Functioning of the European Union, which requires the Union to respect the Geneva Convention on refugees. Reference should be made to the Protocols relating to the United Kingdom and Ireland, annexed to the Treaties, and to Denmark, to determine the extent to which those Member States implement Union law in this area and the extent to which this Article is applicable to them. This Article is in line with the Protocol on Asylum annexed to the Treaties.

Select Bibliography H Battjes, European Asylum Law And International Law (Leiden/Boston, Martinus Nijhoff, 2006). P Boeles, Maarten den Heijer, Gerrie Lodder and Kees Wouters, European Migration Law (Antwerp, Intersentia, 2009). M Foster, International Refugee Law and Socio-Economic Rights: Refuge from deprivation (Cambridge, CUP, 2007). M-T Gil-Bazo, ‘The Charter of Fundamental Rights of the European Union and the Right to be Granted Asylum in the Union’s Law’ (2008) 27 Refugee Survey Quarterly 33–52. GS Goodwin-Gill and J McAdam, The Refugee in International Law (Oxford, OUP, 2007). A Grahl-Madsen, The Status of Refugees in International Law, Vol II (Leiden, Sijthoff, 1972). ——, Territorial Asylum (Stockholm, Almqvist, 1980). K Hailbronner (ed), EU Immigration and Asylum Law: Commentary (Munich, CH Beck, 2010). JC Hathaway, The Rights of Refugees under International Law (Cambridge, CUP, 2005). J McAdam, Complementary Protection in International Refugee Law (Oxford, OUP, 2007). N Mole and C Meredith, Asylum and the European Convention on Human Rights (Strasbourg, Council of Europe Publishing, 2011). F Morgenstern, ‘The Right of Asylum’ (1949) 26 British Yearbook of International Law 327–57. N Oudejans, ‘Asylum. A Philosophical Inquiry Into the International Protection of Refugees’, (Dissertation Tilburg, University, 2011). S Peers and N Rogers (eds), EU Immigration and Asylum Law: Text and Commentary (Leiden/ Boston, Martinus Nijhoff, 2006). ME Price, Rethinking Asylum: History, Purpose, and Limits (Cambridge, CUP, 2009). S Sinha, Asylum and International Law (The Hague, Martinus Nijhoff, 1971). K Wouters, International Legal Standards for the Protection from Refoulement (Antwerp, Intersentia, 2009). A Zimmerman (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (Oxford, OUP, 2011).

Part I – Commentary on the Articles of the EU Charter

A. Field of Application of Article 18 18.01 The text and Explanations of Article 18 reveal a desire to tie up the right to asylum with the existing Union asylum acquis and with restrictions in Protocols to the Treaties. First, the reference to ‘the Treaties’ points to the legal basis of former Article 63 EC Treaty and current Article 78 TFEU for developing a common policy on asylum.1 That policy comprises a series of Regulations, Directives and other measures, which comprehensively deal with the legal status of third country nationals who seek and are granted asylum in the EU.2 18.02 Second, in referring to the Protocols relating to the United Kingdom and Ireland, annexed to the Treaties, and to Denmark, the Explanations suggest that the right to asylum is only addressed to these countries in so far as they partake in the common policy on asylum. Although the United Kingdom opted in to all ‘first-phase’ asylum instruments that were adopted in the years 2001–05, it has, apart from the Dublin Regulation, chosen not to participate in the revised, ‘second-phase’ asylum instruments of 2011–13. Ireland signed up to all first-phase asylum instruments except for the Reception Conditions Directive, but, like the United Kingdom, only partakes in the revised Dublin Regulation. Denmark does not take part in any of the secondary asylum instruments, although—being a signatory to the Schengen Treaties—it did apply the first-phase Dublin regulation as national law3 and may notify the Commission of a decision to implement the content of the revised Dublin Regulation. Third, the Protocol on asylum for nationals of Member States of the European Union, 18.03 annexed to the TEU and TFEU, aims to exclude EU citizens from enjoying the right to asylum in another Member State. The manner in which the Explanations refer to

1

See also CHARTE 4137/00, CONVENT 8, 6. Directive 2001/55/EC on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof [2001] OJ L212/12; Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers [2003] OJ L31/18; Regulation (EC) 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national [2003] OJ L50/1; Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [2004] OJ L304/12; Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status [2005] OJ L326/13. Most of these instruments were amended in the years 2011–13, but not all Member States partake in the revised legislation and remain bound by the original versions: Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) [2011] OJ L337/9; Regulation (EU) 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) [2013] OJ L180/31; Directive 2013/32/EU on common procedures for granting and withdrawing international protection (recast) [2013] OJ L180/60; Directive 2013/33/EU laying down standards for the reception of applicants for international protection (recast) [2013] OJ L180/96. 3 Council Decision 2006/188/EC on the conclusion of the Agreement between the European Community and the Kingdom of Denmark extending to Denmark the provisions of Council Regulation (EC) 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national and Council Regulation (EC) 2725/2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention [2006] OJ L66/37. 2

520

Maarten den Heijer

Art 18 – Right to Asylum

that Protocol (‘in line with’) is rather indistinct. This reflects, together with the explicit choice to omit in the text of Article 18 any indication as to who the beneficiaries of the right to asylum are, the most contested and ultimately unresolved debate on this provision during the drafting stages, namely whether the right should accrue to everyone, including EU citizens, or to nationals of third countries only.4 The Protocol has been critiqued, for it would be at odds with the Refugee Convention and proceed from the misplaced assumption that the Member States are no longer able to produce refugees.5 In the absence of a clear choice as to the personal scope of Article 18, its field of 18.04 application chiefly depends on whether a Member State acts in the scope of Union law.6 It is clear that primary and secondary EU law comprehensively regulate the rights and benefits of nationals from third countries who seek protection in one of the Member States, and that Article 18 governs the interpretation and application of that field of EU law. The references to the Treaties and the Protocol on asylum for nationals of Member States of the European Union in the text and Explanations serve to make clear, further, that Article 18 cannot have the effect of bringing EU citizens within the ambit of the common asylum policy. Yet, because the Protocol on asylum for nationals of Member States of the European Union has brought applications for asylum by EU citizens in another Member State within the ambit of primary Union law, one may assume that national legislation which gives effect to that protocol must comply with Article 18 of the Charter.7

B. Interrelationship of Article 18 with Other Provisions of the Charter It transpires from the Charter’s drafting history that the right to asylum is closely con- 18.05 nected to several other Charter rights. Initially, the right to asylum was grouped in one article, together with the prohibition of collective expulsion.8 At a later stage, it was decided to retain a provision that would only deal with the right to asylum and to create a separate provision, which would become Article 19, that would deal with the prohibitions of collective expulsion (Art 19(1)) and refoulement (Art 19(2)).9 The prohibition

4 CHARTE 4332/00 CONVENT 35, 496–528; CHARTE 4333/00 CONVENT 36, 5. See further M-T GilBazo, ‘The Charter of Fundamental Rights of the European Union and the Right to be Granted Asylum in the Union’s Law’ (2008) 27 Refugee Survey Quarterly 33–52, 43–45. 5 Eg G Noll, Negotiating Asylum. The EU acquis, Extraterritorial Protection and the Common Market of Deflection (The Hague, Martinus Nijhoff, 2000) 553. 6 A Member State acts within the scope of EU law not only when it implements Union law, but also when it exercises discretionary power granted by EU law, such as when exercising an option to consider an asylum application which is not its responsibility. See Joined Cases C-411/10 and C-493/10 NS and Others (Judgment of 21 December 2011). 7 Cf Declaration (No 48) Relating to the Protocol on Asylum for Nationals of Member States of the European Union, annexed to the Treaty of Amsterdam: ‘The Protocol on asylum for nationals of Member States of the European Union does not prejudice the right of each Member State to take the organisational measures it deems necessary to fulfil its obligations under the Geneva Convention of 28 July 1951 relating to the status of refugees.’ 8 CHARTE 4137/00 CONVENT 8, 6. 9 CHARTE 4333/00 CONVENT 36, 5.

Maarten den Heijer

521

Part I – Commentary on the Articles of the EU Charter

of refoulement had in the early drafting stages been taken up in a second sentence in Article 4, dealing with the prohibition of torture and inhuman treatment.10 18.06 As is discussed below, the right to asylum is commonly understood as encompassing a range of distinct rights that govern the relationship between a person who seeks or is in need of international protection and the petitioned state, starting with the issues of being allowed entry into the state’s territory and of being admitted to a status determination procedure, and concluding with the attainment of a durable solution. Although the prohibition of refoulement is central to asylum, the institution of asylum is not limited to non-refoulement.11 The placement in the Charter of the right to asylum in addition to the prohibition of refoulement constitutes recognition of the autonomous meaning of asylum as individual right.12 This corresponds with the structure of the refugee rights regime of the 1951 Geneva Convention, which sets forth a list of entitlements that accrue to a refugee on the basis of his or her attachment to the asylum state.13 These include the prohibition of refoulement, and there are guarantees relating to nondiscrimination, juridical status, gainful employment, welfare and administrative assistance. Further, the regime for the treatment of refugees is informed by general standards of international human rights law, which purports precisely to guarantee basic rights to everyone, regardless of nationality or legal status. 18.07 Since asylum is meant to offer solace to individuals fleeing persecution and to grant them the opportunity to fully realise their rights, Article 18 may be understood as the refugee’s vehicle for being able to invoke other Charter rights.14 Those Charter Articles which are not restricted to Union citizens, may be relied on in such contexts as the reception and treatment of asylum-seekers, the organisation of the asylum procedure, the treatment of persons who have been granted asylum, and the treatment of failed asylum-seekers. Of particular relevance are Article 15(3), guaranteeing equivalent working conditions for nationals of third countries who are authorised to work, and Article 47, the right to an effective remedy and to a fair trial. 18.08 It is well-established case law of the European Court of Human Rights that the vulnerable position of asylum-seekers may warrant special attention in interpreting and applying human rights. The ECtHR has for example held that the place and conditions of detention of asylum-seekers, pending a procedure to decide on their right of entry, must be appropriate in view of their background of having fled their own country;15 that there is a duty to provide accommodation and decent material conditions to

10

CHARTE 4284/00 CONVENT 28, 4. A Grahl-Madsen, Territorial Asylum (Stockholm, Almqvist, 1980) 50; UNHCR Statement on the right to asylum, UNHCR’s supervisory responsibility and the duty of states to cooperate with UNHCR in the exercise of its supervisory responsibility, available at: www.refworld.org/docid/5017fc202.html, para 2.1.3; N Oudejans, ‘Asylum. A Philosophical Inquiry Into the International Protection of Refugees’, (Dissertation, Tilburg University, 2011) pp 184–97. 12 See also the rationale for including the right to asylum in CHARTE 4137/00 CONVENT 8, 6. 13 On this structure see JC Hathaway, The Rights of Refugees under International Law (Cambridge, CUP, 2005) 154–92. 14 For Arendt, the essence of the refugee problem was that it placed individuals outside any organised community and thus deprived them of the only framework in which the Rights of Man can be realised. Refugees are without ‘the right to have rights’. H Arendt, The Origins of Totalitarianism (Cleveland OH, The World Publishing Company, 1958) ch 9. 15 Amuur v France ECHR 1996-III [43]; Saadi v the United Kingdom [GC] App no 13229/03 (ECtHR, 2008) [74]. 11

522

Maarten den Heijer

Art 18 – Right to Asylum

impoverished asylum-seekers;16 and that the nature of the harm that might occur upon return enlivens special requirements for the examination and judicial review of asylum claims.17 The CJEU has in its asylum case law referred to, inter alia, Articles 1 (human dignity), 4 (prohibition of torture and inhuman or degrading treatment or punishment), 6 (right to liberty and security), 7 (respect for private and family life), 10 (freedom of religion), 21 (non-discrimination), 41 (right to good administration) and 47 (right to an effective remedy and to a fair trial) of the Charter.18

C. Sources of Article 18 Rights I. ECHR The Comparative Table drawn up during the Charter’s drafting stages somewhat awk- 18.09 wardly connected the provision containing the right to asylum and the prohibition of collective expulsion of aliens with Articles 3 and 4 Protocol No 4 ECHR, laying down the prohibition of expulsion of nationals and the prohibition of collective expulsion of aliens, respectively.19 The ECtHR has consistently affirmed that the right to political asylum is not contained in either the Convention or its Protocols.20 A proposal to include a right to seek, receive and enjoy asylum in the Second Protocol to the ECHR was defeated.21 The key ECHR right benefiting refugees is thus the right not to be expelled to a country where their life or freedom is in danger, which is implicit in Article 3 ECHR, corresponding to Articles 4 and 19(2) of the Charter. So long as a person seeking or in need of protection is within the jurisdiction of a Contracting Party, he must be secured the rights and freedoms of the ECHR (Art 1).

II. UN Treaties Although the Universal Declaration of Human Rights proclaims in Article 14 that 18.10 everyone, except those who are prosecuted for non-political crimes or for acts contrary to the purposes and principles of the United Nations, has the right to seek and to enjoy

16

MSS v Belgium and Greece [GC] App no 30696/09 (ECtHR, 2011) [250]–[251], [263]. Jabari v Turkey ECHR 2000-VIII [50]; Saadi v Italy [GC] App no 37201/06 (ECtHR, 2008) [142]; Gebremedhin [Gaberamadhien] v France ECHR 2007-II [66]. 18 Case C-179/11 Cimade and GISTI (Judgment of 27 September 2012); Case C-69/10 Samba Diouf [2011] ECR I-7151; Case C-277/11 MM (Judgment of 22 November 2012); Joined Cases C-71/11 and C-99/11 Y and Z (Judgment of 5 September 2012); Joined Cases C-199/12 to C-201/12 X, Y and Z (Judgment of 7 November 2013). 19 CHARTE 4140/00 CONVENT 9, 7. 20 Vilvarajah and Others v the United Kingdom (1991) Series A no 215 [102]; and Ahmed v Austria ECHR 1996-VI [38]. 21 Consultative Assembly of the Council of Europe, Recommendation 293 (1961) on the Right of Asylum, 26 September 1961; Parliamentary Assembly of the Council of Europe, Recommendation 434 (1965) on the Granting of the Right of Asylum to European Refugees, 1 October 1965; Committee of Ministers of the Council of Europe, Resolution 14 (1967) Asylum to Persons in Danger of Persecution, 29 June 1967; Committee of Ministers of the Council of Europe, Declaration on Territorial Asylum, 18 November 1977. 17

Maarten den Heijer

523

Part I – Commentary on the Articles of the EU Charter

in other countries asylum from persecution, no such right is codified in UN Treaties. Article 14 UDHR guarantees the rights ‘to seek’ and ‘to enjoy’ asylum, and does not assume a right to be granted asylum. That provision is therefore commonly understood as referring, first, to the right of the state to grant asylum to a non-national and the corresponding duty of the home state to respect such a grant, and secondly, to the individual right to escape persecution and to seek refuge elsewhere.22 18.11 The Geneva Convention of 28 July 1951 relating to the status of refugees, which forms the centrepiece of contemporary refugee protection, is grounded in Article 14 of the Universal Declaration of Human Rights. Although it only alludes to a right of asylum in its preamble,23 the 1951 Convention defines who the beneficiaries of protection are and what the content of protection is. The 1967 Protocol constitutes the only amendment of the 1951 Convention, and removed its geographic and temporal limits.24 In contrast with preceding international refugee instruments, which applied to specific groups of refugees, the 1951 Convention endorses a single definition of the term ‘refugee’ in Article 1. Central in that definition is protection against political or other forms of persecution. The refugee definition expands on Article 14(2) UDHR, in that it excludes those for whom there are serious reasons for considering that they have committed international crimes, serious non-political crimes, or are guilty of acts contrary to the purposes and principles of the United Nations (Art 1F). Also excluded are persons who receive protection from a United Nations agency other than UNHCR, such as refugees from Palestine who fall under the auspices of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) (Art 1D). Nor does the Convention apply to those refugees who have a status equivalent to nationals in their country of asylum (Art 1E). 18.12 The Refugee Convention contains a catalogue of rights and benefits which are to be accorded to refugees (Arts 3–34). These give expression to the notion that the refugee cannot invoke the protection of his country of nationality and that he should therefore be able to rely on the protection of another state, ie international protection. Some rights see to reinstating the refugee as an object of international law, by way of compensating for the effective loss of his nationality, such as the rights on personal status (Art 12), intellectual property (Art 14), administrative assistance (Art 25), identity papers (Art 27) and travel documents (Art 28). Other rights respond to the specific refugee experience, including the duties not to penalise refugees for having gained illegal entry (Art 31) and not to refoule them (Art 33). Further, the Convention sets forth a range of socioeconomic rights in the spheres of employment, equal treatment,

22 A Grahl-Madsen, The Status of Refugees in International Law, Vol II (Leiden, Sijthoff, 1972) 100–02; H Lauterpacht, International Law and Human Rights (Hamden, Archon, 1968) 421–22. See also the UDHR’s travaux préparatoires: UN Doc E/CN.4/21, Annex F; UN Doc E/CN.4/SR.57, p 11; UN Doc A/C.3/253; UN Doc A/C.3/SR.121; UN Doc E/800; UN Doc A/C.3/244. 23 Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 137, preamble: ‘considering that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation’. 24 Strictly speaking, the 1967 Protocol is not an amendment, since it may be acceded to without first becoming party to the Convention and because it incorporates Arts 2 to 34 of the Convention by reference in Art 1(1). Protocol Relating to the Status of Refugees, 31 January 1967, 606 UNTS 267. See further P Weis, ‘The 1967 Protocol relating to the Status of Refugees and Some Questions relating to the Law of Treaties’ (1967) 42 British Yearbook of International Law 39–70; Hathaway (n 13) 110–12.

524

Maarten den Heijer

Art 18 – Right to Asylum

property rights, housing, education and public relief, that should integrate refugees in the economic system of the country of asylum (Arts 3–8, 13–15 and 17–24). Finally, the Convention contains some rights relating to the various conceivable durable solutions for refugees, including naturalisation (Art 34) and resettlement (Art 30). The personal scope of these rights varies according to the residence status of the refugee.25 The Refugee Convention is ratified by all Member States. The European Council agreed in the 2009 Stockholm Programme that the Union should seek accession to the Geneva Convention and its 1967 Protocol, subject to a report from the Commission on the legal and practical consequences.26 The interpretation and application of the Refugee Convention is guided by the work 18.13 of UNHCR, which by virtue of the Convention’s preamble is charged with the task to supervise international conventions providing for the protection of refugees. Article 35 of the Convention obliges Contracting States to cooperate with UNHCR and to facilitate its duty of supervising the Convention. Particularly authoritative, because they reflect the consensus of states, are conclusions adopted by UNHCR’s governing body, the Executive Committee of the High Commissioner’s Programme (EXCOM), which consists of representatives of states and functions independently from UNHCR.27 EXCOM conclusions are periodically compiled.28 UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status contains a comprehensive set of guidelines on how to determine who is a refugee.29 The Handbook, as well as UNHCR’s complementary Guidelines on International Protection, Guidance Notes on thematic legal or procedural matters and country-specific Eligibility Guidelines, constitute important interpretive legal guidance for national authorities, including courts, in status determination proceedings. The 1957 Agreement and 1973 Protocol relating to Refugee Seamen expand on 18.14 Article 11 of the 1951 Convention and provide a solution for those refugees who serve as crew member of a ship but cannot set foot on any land, because they have no country of asylum.30 The Agreement relating to Refugee Seamen holds that such refugees must be regarded as lawfully staying in the territory of the Contracting Party under whose flag he has served as a seafarer for a total of 600 days within a period of three years, on ships calling at least twice a year at ports in that territory (Art 2). The Agreement has been ratified by a minority of Member States. Article 11 of the Refugee Convention merely obliges the flag state to give ‘sympathetic consideration’ to refugee seamen. UN human rights treaties of general applicability, in particular the ICCPR and 18.15 ICESCR, which refer to the rights of ‘everyone’, irrespective of reciprocity, and

25

Extensively Hathaway (n 13), 154–92. [2010] OJ C115/1 para 6.2.1. The report of the European Commission had not been published as of October 2013. 27 Established by UN Doc E/RES/672 (XXV). 28 See UNHCR, ‘Compilation of Conclusions adopted by the Executive Committee on the International Protection of Refugees 1975–2004’ (Conclusion No 1-101), available at www.unhcr.org; UNHCR, ‘A Thematic Compilation of Executive Committee Conclusion’, 6th edn, June 2011, available at www.unhcr.org. 29 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, January 1992, UN Doc HCR/IP/4/Eng/REV.1. 30 Agreement Relating to Refugee Seamen, 23 November 1957, 506 UNTS 125; Protocol Relating to Refugee Seamen, 12 June 1973, 965 UNTS 445. See further P Weis, ‘The Hague Agreement Relating to Refugee Seamen’ (1958) 7 International and Comparative Law Quarterly, 334–48. 26

Maarten den Heijer

525

Part I – Commentary on the Articles of the EU Charter

irrespective of nationality or statelessness, inform the standard of treatment of persons who seek, are granted or are refused asylum.31 Some rights recognised in the ICCPR are however expressly applicable only to citizens (eg Art 25), while some apply only to aliens (eg Art 13). The Human Rights Committee has, in a fashion much similar to the ECtHR in respect of Article 3 ECHR, interpreted Article 7 ICCPR as prohibiting states parties from exposing persons ‘to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.’32 An explicit prohibition of forced expulsion that would result in a danger of subjection to torture is further expressed in Article 3 of the Convention against Torture. The second paragraph of that prohibition states that a consistent pattern of gross and massive violations of human rights are circumstances which a state should take into account when deciding on expulsion. The Committee Against Torture has produced an impressive set of views on the expulsion of refused asylum seekers.33 18.16 The Convention on the Rights of the Child informs decision-making in respect of minor asylum-seekers. The ECtHR and the CJEU increasingly often employ the principle of the child’s best interests, which is also contained in Article 24 of the Charter, in asylum cases involving minors.34 Article 22 of the Convention on the Rights of the Child is specifically addressed to refugee children. It obliges state parties to ensure that refugee children receive appropriate protection and humanitarian assistance to enable them to exercise their rights and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family.

III. Council of Europe Treaties 18.17 A number of Council of Europe treaties specifically address the needs of refugees. First, the European Agreement on the Abolition of Visas for Refugees, which is ratified by a majority of Member States, aims to facilitate travel for refugees residing in the territory of Contracting Parties.35 To that purpose, it exempts refugees who are lawfully resident in the territory of a Contracting Party, on a reciprocal basis, from the obligation to obtain visas for entering or leaving the territory of another Contracting Party, provided they hold a refugee travel document and their visit is of not more than three months’ duration. This Agreement remains salient in the relations of Member States with third countries which are a member of the Council of Europe and whose nationals

31 Art 2(1) ICCPR; Art 2(2) ICESCR; Human Rights Committee, General Comment 15, The position of aliens under the Covenant, UN Doc HRI/GEN/1/Rev 1, 189. 32 Human Rights Committee, General Comment 20, Art 7 (Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment), UN Doc HRI/GEN/1/Rev 9, 200 para 9. See extensively K Wouters, International Legal Standards for the Protection from Refoulement (Antwerp, Intersentia, 2009) 359–423. 33 See extensively Wouters ibid, 425–524, and the analysis of Art 4 of the Charter by M Nowak in this commentary. 34 Case C-648/11 MA and Others [2013] OJ C225/18; Rahimi v Greece App no 8687/08 (ECtHR, 5 April 2011); Popov v France App nos 39472/07 and 39474/07 (ECtHR, 19 January 2012). See generally the analysis of Art 24 of the Charter by R Lamont in this commentary. 35 European Agreement on the Abolition of Visas for Refugees, 20 April 1959, ETS 31.

526

Maarten den Heijer

Art 18 – Right to Asylum

must be in possession of visas when crossing the external borders pursuant to the Visa Requirement Regulation.36 Second, the Protocol to the European Convention on Consular Functions concerning 18.18 the Protection of Refugees withdraws refugees from the consular protection of the state of their nationality while assuring them that of the state of their habitual residence.37 The Protocol builds on Article 47 of the European Convention on Consular Functions, which already states that consular functions exercised by a state over one of its nationals who is a refugee need not be recognised. The Protocol has not entered into force however, and is ratified by only one Member State. The Convention did enter into force in 2011 but is not ratified widely.38 Third, the European Agreement on Transfer of Responsibility for Refugees aims to 18.19 solve difficulties, when refugees move from one country to another, in determining which state is responsible for issuing or renewing a given refugee’s travel documents.39 The Agreement sets forth the basic rule that responsibility for a refugee is considered to be transferred to a second state, following ‘two years of actual and continuous stay in the second State with the agreement of its authorities or earlier if the second State has permitted the refugee to remain in its territory either on a permanent basis or for a period exceeding the validity of the travel document’ (Art 2). Although Article 5 of the Agreement defines responsibility narrowly as only pertaining to the issuing of a travel document, the Explanatory Report explains that ‘it is implicit that following such transfer the second State must grant to the refugee the rights and advantages flowing from the Geneva Convention.’40 Article 6 of the Agreement further states that the transfer of responsibility obliges the second state to facilitate family reunification of the refugee. The Agreement, which was ratified by 11 Member States as of October 2013, is especially relevant under EU law in respect of refugees who have obtained long-term resident status in accordance with Directive 2003/109/EC as amended by Directive 2011/51/EU and enjoy a conditional right of residence in the other Member States. Even though Union law has thus facilitated the free movement of beneficiaries of international protection, it has not developed its own rules on transfer of protection.41 The revised European Social Charter, although its scope ratione personae is more 18.20 limited for reason of its Appendix excluding aliens who are not lawfully resident or working regularly within the territory of the party, includes many social rights which are set out in the 1951 Geneva Convention, such as employment rights, social security and

36 Regulation EC 539/2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement [2001] OJ L81/1. Beneficiaries of international protection who have been issued a residence permit by a Member State already enjoy free travel within the Schengen area by virtue of Art 21 of the Convention implementing the Schengen Agreement [2000] OJ L239/19. 37 European Convention on Consular Functions, 11 December 1967, ETS 61; Protocol to the European Convention on Consular Functions concerning the Protection of Refugees, 11 December 1967, ETS 61A. 38 Attempts to include a similar provision in the Vienna Convention on Consular Relations, 24 April 1963, 596 UNTS 261, were unsuccessful. See UN Doc A/Conf 25/L 6, UN Doc A/Conf 25/C 1/L 124, UN Doc A/ Conf 25/C 1/L 124/Rev 1, UN Doc A/Conf 25/ C 1/L 160. 39 European Agreement on Transfer of Responsibility for Refugees, 16 October 1980, CETS 107. 40 Explanatory Report to the European Agreement on Transfer of Responsibility for Refugees, CETS 107 para 31. 41 Extensively S Peers, ‘Transfer of International Protection and European Union Law’ (2012) 24 International Journal of Refugee Law 527–60.

Maarten den Heijer

527

Part I – Commentary on the Articles of the EU Charter

assistance, education and housing rights.42 Under the Appendix, refugees falling within the scope of the Refugee Convention are entitled to treatment as favourable as possible, and in any case not less favourable than under the obligations of the Refugee Convention or any other existing international instrument applicable to refugees. 18.21 Article 6(4)(g) of the European Convention on Nationality obliges Contracting States to facilitate in its internal law the acquisition of its nationality for recognised refugees who are lawfully and habitually resident on its territory.

IV. Constitutional Traditions 18.22 Asylum as an individual right has found recognition in the constitutions of a range of Member States, including Germany, France, Italy, Spain, Slovakia, the Czech Republic, Hungary, Poland, Portugal, Romania, Slovenia and Croatia.43 Article 33(8) of the Constitution of the Portuguese Republic of 2 April 1967 provides: ‘The right of asylum shall be guaranteed to foreigners and stateless persons who are the object, or are under grave threat, of persecution as a result of their activities in favour of democracy, social and national liberation, peace among peoples, freedom or rights of the human person.’ Article 53 of the Constitution of the Slovak Republic of 1 September 1991 provides: ‘The Slovak Republic shall grant asylum to aliens persecuted for the exercise of political rights and freedoms. Such asylum may be denied to those who have acted in contradiction with fundamental human rights and freedoms. A law shall lay down the details.’ Article XIV(3) of Hungary’s Fundamental Law of 18 April 2011 provides: ‘Hungary shall grant asylum to all non-Hungarian citizens as requested if they are being persecuted or have a well-founded fear of persecution in their native countries or in the countries of their usual residence due to their racial or national identities, affiliation to a particular social group, or to their religious or political persuasions, unless they receive protection from their countries of origin or any other country.’ Article 56(1) of the Constitution of the Republic of Poland of 2 April 1997 provides: ‘Foreigners shall have a right of asylum in the Republic of Poland in accordance with principles specified by statute.’ Article 18(2) of the Constitution of Romania of 21 November 1991 provides: ‘The right of asylum shall be granted and withdrawn under the provisions of the law, in compliance with the international treaties and conventions Romania is a party to.’ Article 48 of the Constitution of the Republic of Slovenia of 23 December 1991 provides: ‘Within the limits of the law, the right of asylum shall be recognised for foreign nationals and stateless persons who are subject to persecution for their commitment to human rights and fundamental freedoms.’ Article 43 of the Charter of Fundamental Rights and Freedoms

42 The European Committee of Social Rights has extended the scope of some provisions of the ESC to persons in a irregular status: International Federation of Human Rights Leagues (‘FIDH’) v France, Complaint No 14/2003, decision on the merits of 8 September 2004; Defence for Children International (DCI) v The Netherlands, Complaint No 47/2008, decision on the merits of 20 October 2009; Defence for Children International (DCI ) v Belgium, Complaint No 69/2011, decision on the merits of 23 October 2012; Conference of European Churches (CEC) v The Netherlands, Complaint No 90/2013, decision on immediate measures of 25 October 2013. 43 This enumeration is not intended to be exhaustive. See, in respect of France, Italy and Germany: H Lambert, F Messineo and P Tiedemann, ‘Comparative Perspectives of Constitutional Asylum in France, Italy and Germany: Requiescat in Pace?’ (2008) 27 Refugee Survey Quarterly, 16–32. On Spain, see Gil-Bazo (n 4), 47.

528

Maarten den Heijer

Art 18 – Right to Asylum

of the Czech Republic of 16 December 1992 provides: ‘The Czech and Slovak Federal Republic shall grant asylum to aliens who are being persecuted for the assertion of their political rights and freedoms. Asylum may be denied to a person who has acted contrary to fundamental human rights and freedoms.’ Article 33 of the Constitution of the Republic of Croatia of 22 December 1990 provides: ‘Foreign citizens and stateless persons may obtain asylum in Croatia, unless they are prosecuted for non-political crimes and activities contrary to the basic principles of international law.’ Further, some constitutions, while not referring to asylum, do protect against extradition or expulsion, see eg Article 5(2) of the Constitution of Greece of 11 June 1975 (‘The extradition of aliens prosecuted for their action as freedom-fighters shall be prohibited’) and section 9 of the Constitution of Finland of 11 June 1999 (‘A foreigner shall not be deported, extradited or returned to another country, if in consequence he or she is in danger of a death sentence, torture or other treatment violating human dignity’).

V. Other Sources Articles 44 and 70 of the Fourth Geneva Convention and Article 73 of the First 18.23 Additional Protocol to the Geneva Conventions contain special provisions for protecting refugees when the country in which they have taken refuge is involved in a war with their country of origin.44 The Declaration on Territorial Asylum adopted by the UN General Assembly in 1967 18.24 and the Declaration on Territorial Asylum adopted by the Committee of Ministers of the Council of Europe in 1977 set forth the principles on which state practice in the field of asylum should be based.45 Both declarations underscore that the grant of asylum is a peaceful and humanitarian act that is incidental to the state’s sovereignty and should therefore be respected by all other states. They also refer to the duty of nonrefoulement.46 The UN Declaration was adopted in anticipation of a UN Treaty that would set forth the principles and rules of international law relating to the right of asylum but which was never adopted.47 The Council of Europe Declaration was adopted in lieu of a Council of Europe instrument that would give legal recognition to the practice of granting asylum in Council of Europe Member States.48

44 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3. 45 Committee of Ministers of the Council of Europe, Declaration on Territorial Asylum, 18 November 1977; Declaration on Territorial Asylum, 14 December 1967, UN Doc A/RES/2312(XXII). 46 The Council of Europe Declaration does so indirectly, via the principles set out in Resolution (67) 14 of 29 June 1967 on Asylum to Persons in Danger of Persecution. 47 See UNGA Res 1400 (XIV) of 21 November 1959, UNGA Res 3272 (XXIX) of 10 December 1974, and UNGA Res 3456 (XXX) of 9 December 1975. An inconclusive Conference on Territorial Asylum was held in 1977: UN Doc A/Conf 78/12. See Grahl-Madsen (n 11), 61–66 and P Weis, ‘Draft Convention on Territorial Asylum’ (1979) 50 British Yearbook of International Law 151–71. 48 Consultative Assembly of the Council of Europe, Recommendation 293 (1961) on the Right of Asylum, 26 September 1961; Parliamentary Assembly of the Council of Europe, Recommendation 434 (1965) on the granting of the right of asylum to European refugees, 1 October 1965.

Maarten den Heijer

529

Part I – Commentary on the Articles of the EU Charter

D. Analysis I. General Remarks 18.25 States have consistently refused to accept an international obligation to grant asylum, if it would imply a right of entry and abode. The reluctance to accept a duty to admit refugees explains the half-hearted reference to the right ‘to seek and enjoy asylum’ in Article 14 UDHR and the failed attempts to conclude a Convention on Territorial Asylum at the levels of the United Nations and the Council of Europe.49 The Refugee Convention stops short of creating a right to obtain asylum, although it protects against expulsion and guarantees socioeconomic guarantees for refugees who have been admitted into the state’s territory. 18.26 The absence of asylum as an individual right in international law contrasts with the common practice of virtually all developed states to grant asylum based on objective criteria, which are most typically derived from the Refugee Convention. In the regions of Africa and America, practices of granting asylum were elevated in regional human rights conventions, with the African Charter on Human and Peoples’ Rights speaking of ‘the right, when persecuted, to seek and obtain asylum’ and the American Convention on Human Rights proclaiming ‘the right to seek and be granted asylum’.50 Although these Conventions entertain stronger wording than Article 14 UDHR, seemingly investing the individual with an enforceable right to receive asylum if the conditions are met, the Conventions also link the right to ‘the laws of those countries and international conventions’ and ‘the legislation of the state and international conventions’, respectively.51 It is tempting to conceive Article 18 of the Charter in much the same way. It is surely an attempt of codifying existing asylum practices of Member States—which in the meantime became the object of Union Law—but it also reflects a concern not to extend the right to asylum beyond existing legal provisions.52 This corresponds with the Charter’s guiding principle that it does not create new rights, but rather reaffirms the rights as they result from the constitutional traditions and international obligations common to the Member States. 18.27 In traditional international law, asylum was understood only as a right belonging to the state that could be invoked against the state whose nationality the asylum seeker possesses, ie a right to refuse extradition.53 This meaning is still salient and confirmed in the Declarations on Territorial Asylum as adopted in the United Nations and the Council of Europe, as well as in the ICJ’s Asylum Case.54 Whereas the state’s right to grant asylum on its territory (territorial asylum) is uncontested, its right to grant asylum within the territory of another state to one of the latter’s nationals (extraterritorial or diplomatic asylum)

49 nn 47 and 48 above. See also GS Goodwin-Gill and J McAdam, The Refugee in International Law (Oxford, OUP, 2007) 358–69. 50 African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 UNTS 217, Art 12(3); American Convention on Human Rights, 22 November 1969, 1144 UNTS 123, Art 22(7). 51 The Inter-American Commission on Human Rights interpreted Art 22(7) as recognising a right to obtain asylum only if the right is established in domestic law. See The Haitian Centre for Human Rights et al v United States, Case 10.675 (Inter-American Commission on Human Rights, 13 March 1997) [151]–[154]. 52 This also transpires from the travaux préparatoires, see esp CHARTE 4332/00 CONVENT 35, 495–528. 53 Eg F Morgenstern, ‘The Right of Asylum’ (1949) 26 British Yearbook of International Law 327–57. 54 Colombian-Peruvian asylum case [1950] ICJ Rep 266.

530

Maarten den Heijer

Art 18 – Right to Asylum

is far more controversial, since it cannot benefit from the shield of territorial sovereignty.55 In Latin America, agreements have been concluded that regulate the exercise of diplomatic asylum.56 Attempts to conclude a UN Treaty on diplomatic asylum have failed, questioning the competence of states to grant it in opposition to demands of the territorial state.57 Secondary EU law expressly omits scenarios of diplomatic asylum from its scope.58 Despite its unfortunate drafting compared to most Charter rights (‘The right to asy- 18.28 lum shall be guaranteed’—omitting a reference to ‘everyone’ or, as the Praesidium of the Convention had originally proposed: ‘Persons who are not nationals of the Union’59), there should be no doubt that Article 18 is an individual right and extends beyond an act of mercy by the state. This transpires from the very nature of the Charter as a human rights instrument, and is moreover evident from the drafting history—the Convention being particularly concerned with the question of whether it was wise to extend the individual right to EU citizens.60

II. Scope of Application The simple reference in Article 18 to ‘the right to asylum’ gives rise to questions of per- 18.29 sonal and material scope. What is asylum, and who are its beneficiaries? The additional references to the 1951 Geneva Convention and the Treaties do not provide much clarity, since they are worded sufficiently openly (‘with due respect’, and ‘in accordance with’) to allow for an understanding that the right to asylum is not to be equated with the terms of the 1951 Geneva Convention and the Treaties. These references at least indicate, however, that the rules of the Geneva Convention and the requirements of the Treaties are to be respected.61 The CJEU was asked to explain the content of Article 18 on two occasions, but found 18.30 that, in these cases, there was no need to do so.62 It can be inferred from NS and Others nonetheless, that Article 18 cannot be construed so as to require a Member State which transfers an asylum applicant to another Member State pursuant to the Dublin regulation, to be satisfied of the existence and accessibility of a functioning asylum system in the receiving Member State, beyond the threshold of ‘systemic deficiencies’ which sprouts from Article 4 of the Charter.63 The Court hence suggested that, in the context

55 Ibid, 274; F Morgenstern, ‘“Extra-Territorial” Asylum’ (1948) 25 British Yearbook of International Law 236–61. 56 See esp Convention on Diplomatic Asylum, 29 December 1954, 1438 UNTS 101. 57 UNGA, Question of Diplomatic Asylum. Report of the Secretary-General, 2 Sept 1975, UN Doc A/10139. 58 See Directive 2013/32/EU, Art 3(2); Directive 2013/33/EU, Art 3(2). 59 CHARTE 4137/00 CONVENT 8, 6. 60 n 4 above. 61 NS and Others (n 6 above) [75]. The words ‘in accordance with’ are commonly employed by the Union legislator in the meaning of ‘in compliance with’. Cf Art 78 TFEU, stipulating that the common policy on asylum must be ‘in accordance with’ the Geneva Convention, which does not have the effect of restricting the scope of the common asylum policy to that of the Geneva Convention. 62 Ibid; Case C-528/11 Halaf [2013] OJ C225/12. 63 NS and Others (n 6 above) [114]–[115]. See contra the submission of UNHCR: ‘Written Observations of the United Nations High Commissioner for Refugees—NS v Secretary of State for the Home Department in United Kingdom; ME and Others v Refugee Application Commissioner and the Minister for Justice, Equality and Law Reform in Ireland, 1 February 2011, C-411/10 and C-493/10’, available at: www.refworld.org/ docid/4d493e822.html paras 23–32.

Maarten den Heijer

531

Part I – Commentary on the Articles of the EU Charter

of inter-state removal (expulsion), no additional protections can be derived from Article 18 of the Charter. Because the Charter sets the right of asylum and the prohibition of refoulement apart (and construes the latter in line with existing international obligations—see Art 19(2) of the Charter), the Court had good reason not to conflate the two rights and to apply in this case only the rule of non-refoulement, and to do so in line with the norm’s ordinary meaning in international human rights law. It is wellestablished in Strasbourg case law that an expelling state is not required ‘to only return an alien to a country which is in full and effective enforcement of all the rights and freedoms set out in the Convention’.64 Similarly, the CJEU dispelled the argument that any infringement of secondary Union asylum legislation would preclude a transfer.65 NS and Others says little, however, about the scope and meaning of Article 18 in contexts other than refoulement. The reference in Article 18 to the Geneva Convention could be taken to suggest that 18.31 asylum coincides with the protection regime of that Convention. It would follow that asylum accrues only to refugees as defined in the Geneva Convention and that its content equates to Articles 3–34 of the Geneva Convention. This reading finds support in Article 78(1) TFEU, which distinguishes between measures on ‘asylum’, ‘subsidiary protection’ and ‘temporary protection’. The special label of asylum is apparently reserved for refugees and the umbrella term of ‘international protection’ presented as encompassing ‘asylum’, on the one hand, and ‘subsidiary protection’ on the other hand.66 This understanding resonates, further, with the definition of ‘application for asylum’ in the first-phase asylum instruments, which define ‘applications for asylum’ as requests for international protection under the Geneva Convention.67 18.32 However, the word ‘asylum’ was not used in any of the definitional provisions of the first-phase Qualification Directive which incorporated subsidiary protection in the Union asylum regime. That Directive instead defined ‘international protection’ as being comprised of refugee status and subsidiary protection status.68 This approach, effectively replacing the term asylum with ‘international protection’, surfaces in all revisions of the first-phase instruments.69 In non-legislative EU discourse, including the multi-annual programmes and the European Pact on Immigration and Asylum, asylum is commonly used as a shorthand for activity that is based on current Article 78 TFEU.70 The CJEU also recognised the separate nature of the institutions of asylum and refugeehood. It considered in B and D that the more favourable standards clause of Article 3 of the Qualification Directive did not preclude a Member State from granting

64 F v the United Kingdom (dec) App no 17341/03 (ECtHR, 22 June 2004). Cf Art 9(1)(a) of Directive 2011/95/EU, which speaks of ‘a severe violation of basic human rights’ as a condition for acquiring refugee status; X, Y and Z (n 18 above) [51]. 65 NS and Others (n 6 above) [85]. 66 Also see the Statement of reasons of the Praesidium for including the right to asylum in the Charter: ‘The text of paragraph 1 is based on Article 63 TEC which incorporates the Convention on Refugees into Community Law.’ CHARTE 4284/00 CONVENT 28, 21. 67 Regulation EC 343/2003, Art 2(c); Directive 2003/9/EC, Art 2(b); Directive 2005/85/EC, Art 2(b). 68 Directive 2004/83/EC, Art 2(a). 69 Directive 2013/32/EU, Art 2(b); Directive 2013/33/EU, Art 2(a); Regulation EU 604/2013, Art 2(b); Directive 2011/95/EU, Art 2(a). 70 Presidency Conclusions, Tampere European Council 15 and 16 October 1999; the Hague Programme [2005] OJ C53/1; the Stockholm Programme [2010] C115/1; European Pact on Immigration and Asylum, Council Doc 13440/08.

532

Maarten den Heijer

Art 18 – Right to Asylum

‘a right of asylum under their national law to a person who is excluded from refugee status pursuant to Article 12(2) of the directive, provided that that other kind of protection does not entail a risk of confusion with refugee status within the meaning of the directive.’71 In referring to the words ‘another kind of protection’ of Article 2(g) of Directive 2004/83, the CJEU thus equated ‘protection’, granted on whatever ground, with asylum.72 The case concerned the possible grant of German constitutional asylum on the basis of Article 16a of the Grundgesetz to two persons who were excluded from refugee status under Article 1F of the Refugee Convention. The CJEU’s interpretation of asylum in B and D corresponds with the term’s ordinary 18.33 meaning in international law. Asylum simply describes any form of protection a state decides to grant to a person on its territory or in some other location against another state.73 Although the Refugee Convention has become the primary international basis for granting asylum, it does not equate asylum with refugee status and does not prevent asylum from being granted on other grounds, be they national or international.74 There is indeed ample national practice of granting asylum for a wide range of humanitarian considerations.75 These reflect historical and cultural traditions which often predate the Refugee Convention. It should further be observed that, in the European context at least, the institution of 18.34 asylum can no longer be meaningfully disconnected from general human rights standards. Apart from the incorporation of subsidiary forms of protection in EU asylum law, the treatment of refugees but also the eligibility criteria and procedural standards for granting refugee status are informed by general human rights treaties, especially the ECHR. For example, the provisions of the Asylum Procedures Directive, which apply equally to applications for refugee status and subsidiary protection status, draw from the extensive case law of the ECtHR; and the common provisions on assessment of applications for international protection laid down in Articles 4–8 of the Qualification Directive are based not only on a common interpretation of the Refugee Convention

71

Joined Cases C-57/09 and C-101/09 B and D [2010] ECR I-10979 [121]. Ibid [116]. 73 Grahl-Madsen (n 22), 3; Goodwin-Gill and McAdam (n 49), 355–56. The Institute of International Law defined asylum as ‘the protection which a State grants on its territory or in some other place under the control of certain of its organs, to a person who comes to seek it.’ Institute of International Law: Resolutions Adopted at its Bath Session, September 1950, reprinted in (1951) 45 American Journal of International Law 15–23, 15. 74 See inter alia EXCOM Conclusion No 82 (XLVIII) 17 October 1997 para d(i), referring in the context of ‘asylum’ to the Refugee Convention and to the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85; Council of Europe Declaration on Territorial Asylum (n 45) [2], referring to persons protected by the Refugee Convention as well as to ‘any other person they [the Member States of the Council of Europe] consider worthy of receiving asylum for humanitarian reasons.’; UN Declaration on Territorial Asylum (n 45), Art 1(1), defining asylum with reference to Art 14 UDHR without mentioning the Refugee Convention. See further A Grahl-Madsen, ‘The European Tradition of Asylum and the Development of Refugee Law’ (1966) 3 Journal of Peace Research 278–89, 283, noting that ‘the Refugee Convention has no bearing on the question of asylum in a narrow sense’. 75 It transpires that in France, Italy and Germany, asylum exists as a directly enforceable constitutional right of which the personal scope differs from that of the Refugee Convention: Lambert et al (n 43), 19, 22 and 27. See also Art 56 of the Constitution of the Republic of Poland of 2 April 1997, devoting separate paragraphs to asylum and refugee status. On practices outside Europe: M-T Gil-Bazo and M Nogueira, ‘Asylum in the practice of Latin American and African states’, UNHCR Research Paper No 249, January 2013. For a historical perspective: Grahl-Madsen (n 74). 72

Maarten den Heijer

533

Part I – Commentary on the Articles of the EU Charter

but also on standards developed by the ECtHR.76 In the EU, therefore, ECtHR case law has penetrated the refugee regime to a considerable extent. 18.35 This does not mean that Article 18 applies to any form of asylum a Member State chooses to grant. But it does allow for an interpretation that its content draws not only from the Refugee Convention, but also from human rights treaties of general applicability and the constitutional traditions common to the Member States. The travaux préparatoires support this understanding, as attempts to unambiguously restrict the right to asylum to persons covered by the Refugee Convention were defeated.77 18.36 Asylum as an individual right has found recognition in the constitutions of a range of Member States, including Germany, France, Italy, Spain, Slovakia, the Czech Republic, Hungary, Poland, Portugal, Romania, Slovenia and Croatia (see section C.V above). Although asylum is not included in the constitutions of all Member States, the Explanations to Article 52(2) of the Charter say that the concept of ‘constitutional traditions common to the Member States’ does not apply only where there is a ‘lowest common denominator’. It transpires from those constitutions that contain a provision on asylum that the concept is not necessarily restricted to persons who meet the refugee definition, even though some constitutional provisions contain language resembling that of Article 1 of the Refugee Convention.78 It is, however, often the law and not the constitution, which defines the conditions for exercising asylum.79 It has been observed, moreover, that in respect of some Member States, constitutional asylum has converged with asylum granted in accordance with ordinary legislative provisions, rendering constitutional asylum of little practical relevance.80 National legislative practices of Member States on grounds for asylum obviously include the harmonised statuses of refugee protection, subsidiary protection and temporary protection, but also a wide variety of non-harmonised statuses, such as protection on medical grounds, protection for family reasons, protection of unaccompanied minors, protection of victims of trafficking or other specific offences, and protection of victims of environmental disasters.81 These national forms of protection display however significant variety between Member States with regard to eligibility criteria, procedures, content and duration of stay. Further, not all these forms of protection attract the label of asylum in national laws.82 Some legal writings reduce the concept of asylum to a right to seek asylum, which 18.37 would primarily entail a procedural right, ie a right to apply for asylum.83 This understanding is undoubtedly informed by the steadfast reluctance of states to accept an international duty to admit refugees and the surrogate solution of the ‘right to seek asylum’ presented in Article 14 UDHR. Article 18 is however formulated in broader terms,

76

See eg the Explanatory Memorandum: COM (2009) 551 final, 6–7. CHARTE 4332/00 CONVENT 35, Amendments 415, 426, 428. 78 Ibid. 79 Ibid. 80 Lambert et al (n 43), 32. 81 European Migration Network Synthesis Report, ‘The different national practices granting non-EU harmonised protection statuses’, December 2010. According to the study, 22 out of 23 Member States granted some form of non-EU harmonised protection in 2010. 82 Ibid, 27–90. 83 Goodwin-Gill and McAdam (n 49), 358; T Gammeltoft-Hansen and H Gammeltoft-Hansen, ‘The Right to Seek Revisited: On the UN Human Rights Declaration Article 14 and Access to Asylum Procedures in the EU’ (2008) 10 European Journal of Migration and Law 439–59. 77

534

Maarten den Heijer

Art 18 – Right to Asylum

and expressly so. Several amendments tabled by Convention members to restrict Article 18 to a ‘right to seek asylum’ were defeated.84 Discussion as to what the right to asylum entails beyond a procedural right is ham- 18.38 pered by the difficulty that contemporary restatements of the right to asylum are scarce. Refugee law discourse has in recent decades focused chiefly on the eligibility criteria and contents of protection under the Refugee Convention and subsidiary regimes of protection, as these are the two internationally recognised sources of protection.85 Article 18 of the Charter thus begs a renewed understanding of the individual right to asylum; and it is no surprise that referrals to that effect have already been brought to the CJEU.86 The referral in Halaf was occasion for UNHCR to issue a Statement on the right to 18.39 asylum.87 The Statement stresses that the principle of non-refoulement is central to the realisation of the right to asylum, but that asylum is not limited to that principle. Drawing from the earlier description of asylum in EXCOM Conclusion No 82, Article 78 TFEU and the key rights contained in the secondary EU instruments on asylum, UNHCR submits that the right to asylum in Article 18 of the EU Charter contains the following elements: (i) protection from refoulement, including non-rejection at the frontier; (ii) access to territories for the purpose of admission to fair and effective processes for determining status and international protection needs; (iii) assessment of an asylum claim in fair and efficient asylum processes (with qualified interpreters and trained responsible authorities and access to legal representation and other organisations providing information and support) and an effective remedy (with appropriate legal aid) in the receiving state; (iv) access to UNHCR (or its partner organisations); (v) treatment in accordance with adequate reception conditions; (vi) the grant of refugee or subsidiary protection status when the criteria are met; (vii) ensuring refugees and asylum-seekers the exercise of fundamental rights and freedoms; and (viii) the attainment of a secure status.88 This enumeration is in part based on the construction of asylum in secondary Union 18.40 law. Indeed, the preambles of the legislative measures adopted on the basis of former Article 63 EC and Article 78 TFEU stipulate that their purpose is to ensure ‘full observance’, ‘full respect’, or ‘to promote the application’ of Article 18.89 The Union legislator thus agrees that the diverse aspects of asylum governed by the Reception Conditions Directive, Dublin Regulation, Qualification Directive and Asylum Procedures Directive should jointly ensure the individual’s right to asylum. The only asylum instrument not containing a reference to Article 18 of the Charter (nor indeed to the Charter at all) is the Temporary Protection Directive, although this may be explained from the fact that the text of the Charter became final during the negotiations on that Directive.90

84

CHARTE 4332/11 CONVENT 35, 496–528. Gil-Bazo and Nogueira point out that this is not the case in Latin America, where asylum is part of long-standing constitutional traditions and conceptually different from refugee status: Gil-Bazo and Nogueira (n 75). 86 n 62 above. 87 UNHCR Statement on the right to asylum, n 11 above. 88 Ibid para 2.2.9. See also Executive Committee Conclusion No 82 (XLVIII), 1997, para (d). 89 Regulation (EC) 343/2003, Recital 15; Regulation (EU) 604/2013, Recital 39; Directive 2003/9/EC, Recital 5; Directive 2013/33/EU, Recital 35; Directive 2004/83/EC, Recital 10; Directive 2011/95/EU, Recital 16; Directive 2005/85/EC, Recital 8; Directive 2013/32/EU, Recital 60. 90 Directive 2001/55/EC. 85

Maarten den Heijer

535

Part I – Commentary on the Articles of the EU Charter

18.41

An obvious issue with interpreting Article 18 in conformity with the Asylum Directives and the Dublin Regulation is that it tends to subordinate primary Union law to secondary Union law, potentially depriving the right to asylum of much of its practical effect. It would be more in line with the constitutional structure of Union law to assume that the contents of Article 18 do not derive directly from secondary law, but that the key rights and elements laid down therein do inform its scope. The relation between secondary asylum legislation and Article 18 may be conceived, first, as secondary law executing the core aim of the Treaties (to which Art 18 refers), ie to ‘offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement’, in accordance with the 1951 Convention and other relevant treaties;91 and secondly, as expressing the common (constitutional) traditions of Member States. 18.42 In lego-philosophical discourse, there is some debate as to what the final station—or, indeed, the very purpose—of asylum is. Is asylum a mere means to guarantee physical security, implying that it is inherently temporal in nature,92 or does it aspire to reinstate the asylee as a member of a political community, ultimately generating an entitlement to permanent residence or even naturalisation in the host society?93 UNHCR generally pursues the three durable solutions of voluntary repatriation to the country of origin, local integration (or assimilation) in the host country, and resettlement in a third country. These solutions are expressly mentioned in UNHCR’s Statute.94 Obviously, the refugee’s predicament and the availability of one of the durable solutions will differ from case to case. The Refugee Convention recognises that protection can come in different guises and may end in different ways. The Convention alludes to the solution of voluntary repatriation in Article 1C, to resettlement in Articles 1C(3), 30 and 31(2), and to assimilation and naturalisation in Articles 1E and 34. Secondary Union legislation provides similar flexibility, as it allows for safe third country solutions95 and repatriation when the need for protection ends.96 Further, although the EU is not competent to regulate the acquisition and loss of nationality of refugees,97 the 2011 revision of the Long-term Residents Directive extended its scope to beneficiaries of international protection, to ensure their full integration in the Member State of residence.98 The termination of residence of an asylum beneficiary is further governed by the right to private and family life, as expulsion of settled migrants will as a rule constitute an interference with that right.99

91

Art 78(1) TFEU. MA Castillo and JC Hathaway, ‘Temporary Protection’, in JC Hathaway (ed), Reconceiving International Refugee Law (Leiden, Martinus Nijhoff, 1997) 1–21. 93 Oudejans (n 11), 196. 94 UNGA, Statute of the Office of the United Nations High Commissioner for Refugees, 14 December 1950, A/RES/428(V), c 1 para 1 and c 2 paras 8(e) and 9. 95 Directive 2013/32/EU, Arts 35–39. 96 Directive 2011/95/EU, Arts 14, 19. 97 Case C-369/90 Micheletti and Others [1992] ECR I-4239 [10]; Case C-135/08 Rottmann [2010] ECR I-1449 [39]. 98 Directive 2011/51/EU amending Council Directive 2003/109/EC to extend its scope to beneficiaries of international protection [2011] OJ L132/1, Recitals 2, 6. 99 Üner v the Netherlands [GC] ECHR 2006-XII [59]. 92

536

Maarten den Heijer

Art 18 – Right to Asylum

III. Limitations and Derogations Like most Charter rights, Article 18 does not contain any express limitation. It is subject to the general limitation clause of Article 52(1), but further restrictions may be implied in accordance with Article 52(2) and 52(4), in so far as the right to asylum is based on the Treaties and/or the constitutional traditions common to the Member States. That the right to asylum shall be guaranteed ‘in accordance with’ the Treaties, could be taken to mean, in line with Article 52(2) of the Charter, that it is to be exercised under the conditions and within the limits of Article 78 TFEU and the Directives and Regulations adopted on the basis of that provision. It would follow that the right of asylum may be subjected to additional restrictions than those allowed for under the general derogation clause of Article 52(1), holding that all limitations must be based in law and meet the tests of proportionality and necessity. Article 78 TFEU however does not, as is required by Article 52(2), provide for the right to asylum, but lays down the competence of the Union to develop an asylum policy. It is therefore questionable whether Article 52(2) applies to Article 18 of the Charter (see the commentary on Article 52).100 It is generally accepted that the right to asylum should not benefit persons who have committed certain egregious crimes, in particular international crimes, serious nonpolitical crimes or acts that are contrary to the purposes and principles of the United Nations. This applies not only to refugee status in accordance with Article 1F of the Refugee Convention, but extends to the wider institution of asylum, as is evident from inter alia Article 14(2) UDHR and Article 1(2) of the UN Declaration on Territorial Asylum.101 The rationale for excluding these categories of persons is that certain acts are so grave as to render their perpetrators undeserving of international protection as refugees and to ensure that such persons do not abuse the institution of asylum in order to avoid being held legally accountable for their acts.102 The Qualification Directive incorporates the exclusion clause of Article 1F of the Refugee Convention not only into the EU refugee regime but also into the regime of subsidiary protection and broadened the categories of excluded persons in respect of the latter regime.103 Although all excluded persons may be protected from expulsion under Article 3 ECHR and Article 19(2) of the Charter, their exclusion accords with the case law of the ECtHR, which has consistently held that excluded persons who cannot be expelled cannot derive from the ECHR entitlement to a status because ‘neither

100 Also see S Peers, ‘Immigration, Asylum and the European Union Charter of Fundamental Rights’ (2001) 3 European Journal of Migration and Law 141–59, 157. 101 Also see EXCOM No 82 (XLVIII) para d(i), reiterating ‘the need to apply scrupulously the exclusion clauses stipulated in Article 1 F of the 1951 Convention and in other relevant international instruments, to ensure that the integrity of the asylum institution is not abused by the extension of protection to those who are not entitled to it’; Committee of Ministers of the Council of Europe, Resolution 14 (1967) (n 21 above), para 3; UNHCR Statute (n 94 above), para 7(d); Convention Governing the Specific Aspects of Refugee Problems in Africa, 1001 UNTS 45, 20 June 1974, Art I(5). 102 UNHCR Handbook (n 29 above) para 140; UN High Commissioner for Refugees (UNHCR), Guidelines on International Protection No 5: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, 4 September 2003, Un Doc HCR/GIP/03/05, para 2. 103 See Art 17(1)(d) and 17(3) of Directive 2011/95/EU. Further, Art 17(1)(b) of the Directive omits the conditions that the serious crime is of ‘non-political’ nature and that the crime has been committed outside the country of refuge prior to admission.

Maarten den Heijer

537

18.43

18.44

18.45

18.46

Part I – Commentary on the Articles of the EU Charter

Article 3 nor any other provision of the Convention and its Protocols guarantees, as such, a right to a residence permit’.104 The application of the exclusion clauses of Article 1F was considered by the CJEU in B and D.105 The Court found that i) the exclusion clauses serve the dual aim of excluding from refugee status persons who are deemed to be undeserving of the protection and of preventing that status from enabling those who have committed certain serious crimes to escape criminal liability; ii) a determination of whether there are serious reasons for considering that a person has committed the acts in question is conditional on an assessment on a case-by-case basis of the specific facts; and iii) the exclusion of a person from refugee status is not conditional on an assessment of proportionality in relation to the particular case.106 18.47 A further topical ground for refusing asylum is constituted by the safe third-country exceptions.107 These proceed from the rationale that states are discharged from protecting someone who can find asylum elsewhere. The Refugee Convention allows for the withholding of refugee status if the person in question is recognised by a country as having the rights and obligations which are attached to the possession of the nationality of that country (Art 1E).108 It further allows for withdrawing refugee status if the refugee has acquired a new nationality and enjoys the protection of the country of his new nationality (Art 1C(3)). In indicating that protection becomes superfluous when a status equivalent to nationals is obtained, these provisions reveal, by implication, the essence of asylum. They also shed light on the conception of safe third-country notions in Union law, which focus chiefly on respecting the prohibition of refoulement, and much less on ensuring full-fledged asylum.109 18.48 It is not straightforward to answer the question whether the exclusion clauses and safe third country-exceptions have the effect of narrowing down the scope of Article 18, or whether their application must be considered as a limitation to the exercise of the right to asylum in the meaning of Article 52(1) of the Charter. The question is not without relevance, as Article 52(1) sets strict conditions for limitations of Charter rights. The argument could be that the exclusion from asylum of any person who would otherwise be entitled to it on the basis of inter alia Article 1F and safe third country-exceptions, must meet the requirements of being based in law, proportionality and necessity. The judgment in B and D appears to favour an interpretation however that the exclusion grounds are not subject to the conditions of Article 52(1).110 But the references in that case had not been based on Article 18 and only indirectly entertained questions of scope and justification of exclusion.

104 Bonger v The Netherlands (dec) App no 10154/04 (ECtHR, 15 September 2005). Also see Naibzay v The Netherlands (dec) App no 68564/12 (ECtHR, 4 June 2013); I v The Netherlands (dec) App no 24147/11 (ECtHR, 18 October 2011); I v The Netherlands (dec) App no 24147/11 (ECtHR, 10 July 2012). 105 n 71 above. 106 Ibid [99], [104], [111]. Cf on the issue of whether a proportionality assessment is necessary: UN High Commissioner for Refugees (UNHCR), Guidelines on International Protection No 5: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, 4 September 2003, UN Doc HCR/GIP/03/05, para 24. 107 Directive 2013/32/EU, Arts 35 (first country of asylum), 38 (safe third country), 39 (European safe third country). 108 See also Directive 2011/95/EU, Art 12(1)(b). 109 Extensively M Foster, ‘Protection Elsewhere: The Legal Implications of Requiring Refugees to Seek Protection in Another State’ (2007) 28 Michigan Journal of International Law 223–86. 110 n 71 above [107]–[111].

538

Maarten den Heijer

Art 18 – Right to Asylum

IV. Remedies Given the diverse contexts to which the right to asylum may apply, the applicable rem- 18.49 edies are likely to depend on the contents of the case. Remedies play a topical role in the case of expulsion, as is discussed in the commentary on Article 19, but also in respect of detention of asylum-seekers, transfers pursuant to the Dublin Regulation, entry into the Schengen Area, and so on. Secondary Union law devotes considerable attention to remedies in most of these spheres. One express aim of recasting the Asylum Directives in 2009–13 was to ensure full respect of fundamental rights as informed by developing case law of the CJEU and ECtHR, especially concerning the right to an effective remedy.111 As a consequence, the standards of the Asylum Procedures Directive, but also those on judicial review of asylum detention, have been (further) aligned with fundamental rights.112 A particular issue in the sphere of remedies concerns the denial of access to protec- 18.50 tion to asylum-seekers who are interdicted at sea. Current EU law hardly offers guidance on the treatment of asylum-seekers who are subjected to controls before they arrive in Union territory, but the Hirsi judgment has clarified the relevant human rights standards in respect of such activity, emphasising the necessity to make remedies effectively available.113 A proposal for a regulation is pending that should establish rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the Frontex agency, replacing a decision that had been annulled by the CJEU, but that regulation will only apply to Frontex operations.114 Further, the procedural guarantees laid down in the proposal arguably fall short of the requirements of the Hirsi judgment.115

E. Evaluation The creation of the common policy on asylum was a defining moment in the European 18.51 tradition of asylum. It completed the regime of the 1951 Geneva Convention with explicit entitlements of entry and residence, and secured an equivalent status of subsidiary protection. Even though the common asylum policy was still in its formative stages when the Charter was first adopted in 2000, it paved the way for including the right to asylum in the Charter.116 Article 18, although revolutionary in that it is one of the few recognitions of asylum as a fundamental right in international law, first and 111

COM (2011) 319 final para 3.1. See inter alia Art 9 Directive 2013/33/EU. On effective remedies in the sphere of EU asylum law see M Reneman, EU Asylum Procedures and the Right to an Effective Remedy (Oxford, Hart Publishing, 2014 forthcoming). 113 Secondary asylum law applies only to asylum applications made in the territories, including the territorial waters, of the Member States: Regulation (EU) 604/2013, Art 3(1); Directive 2013/33/EU, Art 3(1) and (2); Directive 2013/32/EU, Art 3(1) and (2); Hirsi Jamaa and Others v Italy [GC] App no 27765/09 (ECHR, 2012). 114 COM (2013) 197 final. 115 This pertains in particular to the absence of guarantees, in case of disembarkation in a third country, relating to the presence of legal advisors and interpreters and the availability of a remedy before an independent authority with suspensive effect. See Hirsi Jamaa and Others (n 113) [202], [205], [206]. 116 Cf CHARTE 4137/00 CONVENT 8, 6: ‘The 1989 European Parliament Declaration contained no reference to this [the right to asylum], but no Community policy existed at the time.’ 112

Maarten den Heijer

539

Part I – Commentary on the Articles of the EU Charter

18.52

18.53

18.54

18.55

foremost consolidates the achievements of the common policy on asylum. It proclaims the common understanding of asylum as it has found expression in the Treaties and secondary legislation to be a fundamental right. Given the comprehensive nature of the common asylum policy, but also the Charter’s principle that it reaffirms existing rights, one might question what additional protection Article 18 offers. The difficulty with the right to asylum moreover is that its contents are fundamentally contested and that it is closely connected to other fundamental rights, in particular the prohibition of refoulement. Although much obviously depends on the CJEU’s reception and interpretation of Article 18, the future impact of Article 18 should not be underestimated. First, in recognising asylum as a fundamental right, with the status of primary Union law, Article 18 sets a moral compass for any current and future Union activity in the field of asylum and that of Member States when acting in the scope of Union asylum law. The recognition of asylum as fundamental right forms a crucial complement to the initial and in many respects still guiding rationale for EU cooperation in the sphere of asylum, ie that the harmonisation of standards is simply a practical means to compensate for negative effects that might result from the opening of borders. Article 18 makes clear that common reception standards, criteria for allocating asylum-seekers, uniform standards for recognising refugees and common asylum procedures are not only driven by the imperative to reduce secondary movements within the EU, but should secure to persons in need of protection who arrive in the EU a genuine chance to rebuild their lives. Secondary Union law ensures and promotes the right to asylum, but is at the same time restrained by it. Secondly, even though the European institution of asylum has come to fruition in the absence of a recognition of asylum as fundamental right—drawing instead from all sorts of other fundamental rights such as the prohibition of torture, socioeconomic rights and the right to an effective remedy—not all questions of asylum are governed by other Charter rights. A key issue relating directly to the plight of refugees who are allowed residence concerns their inability to exercise citizenship rights and to integrate in another country, entertaining special attention in respect of questions of durable residence, socioeconomic participation, family reunification and, in general, prospects of integration. Thirdly, there are questions which are quite specific to the needs of refugees but which have been dealt with questionably in secondary law and might benefit from the guidance of Article 18. One such matter is the differentiation between the refugee rights regime and the subsidiary protection rights regime, which has survived into the secondphase Qualification Directive, although in much less extreme form, but for which it remains difficult to find objective justification.117 Another prevailing issue constitutes the manner in which the exclusion clauses have been incorporated into the Qualification Directive, including the differentiation between the refugee and subsidiary protection regimes. Further, Article 18 may well shed light, precisely because it extends beyond non-refoulement, on the criteria for applying safe third country-exceptions.

117

540

COM (2009) 551 final, 8.

Maarten den Heijer

Art 18 – Right to Asylum

Lastly, the right to asylum attracts special significance in respect of the evolving 18.56 external dimension of the EU immigration and asylum policy. Secondary asylum legislation is expressly restricted to asylum applications made in the territory of the EU, leaving open the issue of how to respect refugee rights in the context of externalised border controls such as at the high seas or foreign airports and in the cooperation with third countries.118 When such activity is in the scope of Union law, the right to asylum may fill the void left by the Union legislator. There is, in sum, ample potential for Article 18 to contribute to the continuing development of the European institution of asylum.

118

n 113 above.

Maarten den Heijer

541

Article 19 Article 19 Protection in the Event of Removal, Expulsion or Extradition 1. Collective expulsions are prohibited. 2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.

Text of Explanatory Note on Article 19 Paragraph 1 of this Article has the same meaning and scope as Article 4 of Protocol No 4 to the ECHR concerning collective expulsion. Its purpose is to guarantee that every decision is based on a specific examination and that no single measure can be taken to expel all persons having the nationality of a particular State (see also Article 13 of the Covenant on Civil and Political Rights). Paragraph 2 incorporates the relevant case law from the European Court of Human Rights regarding Article 3 of the ECHR (see Ahmed v Austria, judgment of 17 December 1996, 1996-VI, p. 2206, and Soering, judgment of 7 July 1989).

Select Bibliography Collective Expulsion G Bekker, ‘Mass Expulsion of Foreign Nationals: A Special Violation of Human Rights— Communication 292/2004 Institute for Human Rights and Development in Africa v Republic of Angola’ (2009) 9 African Human Rights Law Journal 262. I Bryan and P Langford, ‘Impediments to the Expulsion of Non-Nationals: Substance and Coherence in Procedural Protection under the European Convention on Human Rights’ (2010) 794 Nordic Journal of International Law 457–79. CJ Chido, ‘Peril of Movement: Migrating Roma Risk Expulsion as EU Member States Test the Limits of the Free Movement Directive’ (2011) 20 Tulane Journal of International & Comparative Law 233. C Cahn, ‘Racial Preference, Racial Exclusion: Administrative Efforts to Enforce the Separation of Roma and Non-Roma in Europe through Migration Controls’ (2003) 5 European Journal of Migration & Law 479. J-M Henckaerts, Mass Expulsion in Modern International Law and Practice Vol XLI (Dordrecht, Martinus Nijhoff, 1995). JD Howley, ‘Unlocking the Fortress: Protocol No 11 and the Birth of Collective Expulsion Jurisprudence in the Council of Europe System’ (2006) 21 Geographical Immigration Law Journal 111.

Expulsion to Torture JH Burgers and H Danelius, The United Nations Convention against Torture: A handbook on the Convention against Torture and other cruel, inhuman, or degrading treatment or punishment, Vol IX (Dordrecht, Martinus Nijhoff Publishers, 1988).

Part I – Commentary on the Articles of the EU Charter

A Duffy, ‘Expulsion to Face Torture? Non-Refoulement in International Law’ (2008) 203 International Journal of Refugee Law 373–90. S Joseph, J Schultz and M Castan, International Covenant on Civil and Political Rights: Cases, Commentary, and Materials (Oxford, Oxford University Press, 2004). J McAdam, Complementary Protection in International Refugee Law (Oxford, Oxford University Press, 2007). N Mole and C Meredith, Asylum and the European Convention on Human Rights, Vol IX (Strasbourg, Council of Europe, 2010). M Nowak, E McArthur and K Buchinger, The United Nations Convention against Torture: a Commentary (Oxford, Oxford University Press, 2008). ——, UN Covenant on Civil and Political Rights: CCPR commentary (Kehl, NP Engel, 1993). V Vandova, ‘Protection of non-citizens against removal under international human rights law’ in A Edwards and C Ferstman (eds), Human Security and Non-Citizens: Law, Policy and International Affairs (Cambridge, Cambridge University Press, 2010) 495–531.

A. Article 19 and the Scope of EU Law 19.01 The two parts of Article 19 need to be dealt with separately as their sources and interpretation are quite distinct. Article 19(1) relating to collective expulsion covers a field of law in which a fairly extensive EU competence has been exercised. First, as regards EU citizens, the rights contained in Articles 20 and 21 TFEU on moving and residing in the territory of the Member States includes an exception on the grounds of public policy, public security and public health, permitting expulsion or exclusion. This has also been transposed into secondary legislation (Directive 2004/38).1 As regards third country nationals (other than family members of EU citizens exercising Treaty rights, or Norwegians, Icelanders, Swiss and Liechtenstein nationals, who are covered by their agreements with the EU), the Returns Directive (Directive 2008/115—see below) provides a fairly comprehensive exercise of the legal base regarding the expulsion of third country nationals. This Directive does not however, apply in Denmark, Ireland or the UK. Thus the bite of the Charter provision in those three states may be somewhat compromised. 19.02 As regards Article 19(2), the Common European Asylum System includes protection for third country nationals who fear torture, inhuman or degrading treatment or punishment if sent to another country (Directive 2011/95—see below). This protection is similar to that contained in Article 19(2) and in so far as this provision mirrors Article 3 ECHR, the ECtHR has held that the scope of protection under Article 15(c) of Directive 2011/95 as regards subsidiary protection is the same as that of Article 3 ECHR.2 19.03 The problematic point regarding the application of Article 19(2) relates to EU citizens who make a claim for asylum to prevent their return to their (EU) country of origin. Protocol 24 TFEU and TEU which creates a presumption against asylum claims by EU nationals in other EU states presents a particular challenge to the scope of Article 19(2) of the Charter. The EU constitutional framework, as set out in Article 6 TEU, seems to

1 2

544

[2004] OJ L158/77. Sufi & Elmi v UK App nos 8319/07 and 11449/07 (ECtHR, 28 June 2011).

Elspeth Guild

Art 19 – Protection in the Event of Removal

privilege an interpretation that restrictions in Protocols do not apply to the Charter unless specifically stated. However, should this interpretation of Article 6 TEU not find favour with the CJEU, then at the least the Protocol must be interpreted in a restrictive manner and cannot undermine the essence of Article 19(2) of the Charter.

B. Interrelationship of Article 19 with Other Provisions of the Charter Article 19 of the Charter is related to Article 47, which guarantees an effective remedy 19.04 against any alleged breach of a Charter right. The mirror provision of Article 19(1) in Protocol 4 Article 4 ECHR, it is the procedural right which flows from the prohibition on collective expulsion which has provided the basis for the jurisprudence by the ECtHR.3 The capacity to challenge expulsion on the basis that there has not been an individual examination of the facts and circumstances of the individual to be expelled has been the core human rights challenge to expulsions of substantial numbers of persons at a time. Article 19(1) applies to everyone. It is not limited to third country nationals or to people claiming international protection. Article 19(2) Charter is closely related to Article 4 which prohibits torture, inhuman 19.05 or degrading treatment or punishment. Article 4 prohibits torture by Member States absolutely. Its equivalent provision in the ECHR, Article 3, has been interpreted by the ECtHR as including return to a country where there is a real risk of torture, inhuman and degrading treatment of punishment.4 This has given rise to a substantial jurisprudence by the ECtHR on the extent of the obligation not to return a person to a country where there is such a risk.5 By reason of Article 6 TEU, and Article 52(3) of the Charter, this would appear to make Article 19(2) of the Charter lex specialis of the general prohibition in Article 4 of the Charter, although the Court of Justice nevertheless applied Article 4 in respect of removals from one Member State to another.6 The added value of Article 19(2) is its clarity and the explicit confirmation that the Charter includes an obligation on EU states not to send someone to a country where there is a real risk of torture, inhuman or degrading treatment or punishment. This provision is also related to a claim for international protection and thus to Article 18 of the Charter. Those who claim Article 19(2) protection are those who not only seek to avoid expulsion, but also seek to remain on the territory of the host state because the alternative, being sent to another country, would entail an Article 4 Charter or Article 3 ECHR risk.

3 Specifically: Conka v Belgium App no 51564/99 (ECtHR, 5 February 2002) RJD 2002-I; Hirsi Jamaa & Ors v Italy App no 27765/09 (ECtHR, 23 February 2012). 4 Soering v UK App no 14038/88 (7 July 1989) Series A no 161. 5 N Mole and C Meredith, Asylum and the European Convention on Human Rights Vol IX (Strasbourg, Council of Europe, 2010). 6 Joined Cases C-411/10 and C-493/10 NS (Judgment of 21 December 2011).

Elspeth Guild

545

Part I – Commentary on the Articles of the EU Charter

C. Sources of Article 19 Rights I. ECHR Article 19(1) 19.06 Protocol 4 Article 4 is the ECHR source of the Article 19(1) right. This provision simply states, like Article 19(1) ‘Collective expulsion of aliens is prohibited.’ Of the EU Member States, Bulgaria, Greece and the UK have not ratified this Protocol. Article 19(2) 19.07 As noted above, Article 3 ECHR is the starting place for Article 19(2) Charter. The wording is in fact the same as Article 4 Charter, with the addition of the explicit reference to non-removal. There is no direct equivalent to Article 19(2) in the ECHR as this protection is the result of the developing case law of the ECtHR (see below).

II. UN Treaties Article 19(1) 19.08 In so far as the objective of Article 19(1) Charter is to exclude arbitrary expulsion, it finds a source in Article 9 Universal Declaration of Human Rights 1948 which prohibits arbitrary arrest, detention and exile. However this is quite a long shot. Article 13 International Covenant on Civil and Political Rights 1966 (ICCPR) similarly requires procedural rights before aliens lawfully in the territory of the state can be expelled. This is a less extensive right than that in the Charter provision. The latter is not limited to aliens lawfully on the territory and provides for more than just procedural obligations. 19.09 The International Labour Organization’s Conventions 97 (1948) and 143 (1975) both contain provisions relating to the treatment of migrant workers and minimum standards of protection. However, there is no explicit mention of expulsion (collective or otherwise) in either Convention. Most EU Member States have ratified the earlier Convention but not the later one. 19.10 Article 22(1) of the UN Convention on the protection of the rights of all migrant workers and members of their families 1990 (UNCRMW) provides that migrant workers and members of their families shall not be subject to measures of collective expulsion. This is close to the wording of Article 19(1). The remaining parts of Article 22 UNCRMW set out the procedural rights which must be accorded to migrant workers who are subject to an expulsion decision by their host state (reflecting Protocol 7 ECHR). Article 56 provides for procedural rights in respect of documented aliens who are subject to expulsion decisions. It is worth noting that no current EU Member State has ratified this convention. Article 19(2) 19.11 Article 5 of the Universal Declaration of Human Rights 1948 provides for a prohibition on torture, cruel, inhuman or degrading treatment or punishment. Henckaerts considers 546

Elspeth Guild

Art 19 – Protection in the Event of Removal

that this provision does not apply extraterritorially and thus is not the equivalent to Article 19(2) Charter.7 On a historical reading, this may well be the case, but the development of the UN Bill of Rights and in particular the UN Convention against Torture (see below) would now indicate that a current interpretation of Article 5 of the Declaration should also include the extraterritorial element. Note the difference in wording between Article 5 of the Declaration and Article 3 ECHR and Article 19(2) Charter where the former provision includes the prohibition on ‘cruel’ treatment or punishment while the latter two provisions do not. Article 33(1) of the 1951 UN Convention relating to the status of refugees and its 1967 Protocol (Refugee Convention) prohibits the refoulement of anyone who fulfils the criteria of Article 1 of that Convention, and thus is a refugee under that Convention. There are exceptions to this prohibition in Article 33(2) of that Convention. In so far as an individual who is seeking international protection is a refugee under Article 1 Refugee Convention that person is also likely to be a person to whom Article 19(2) of the Charter applies as well (though not necessarily, as there is the question of nexus with a ground for refugee protection).8 The interplay between refugee protection and complementary protection has been well examined by McAdam.9 Article 7 of the International Covenant on Civil and Political Rights 1966 similarly prohibits torture, cruel, inhuman or degrading treatment or punishment. The UN Human Rights Committee, which has oversight responsibility for this Convention as well as power to receive individual complaints against states which have ratified the first optional protocol to the ICCPR, has interpreted this provision as including a prohibition on sending someone to a country where there is a serious risk that he or she would be subject to the treatment set out therein.10 Article 3(1) of the UN Convention against Torture states: ‘No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.’ This provision provides a basis for the wording of Article 19(2) of the Charter. In so far as the expanded interpretation of Article 3 ECHR to include return to a state where there is a substantial risk of torture was influenced by the finalisation of UNCAT and its opening for signature in 1984 (see the express reference to this in Soering11) it is safe to assume an interconnection in interpretation of the prohibition in international and regional human rights law. The UNCRMW also includes a prohibition on torture, cruel, inhuman or degrading treatment or punishment in Article 10.

7 J-M Henckaerts, Mass Expulsion in Modern International Law and Practice, Vol XLI (Dordrecht, Martinus Nijhoff, 1995). 8 E Feller, ‘Asylum, migration and refugee protection: realities, myths and the promise of things to come’ (2006) 18(3)–(4) International Journal of Refugee Law 509–36. 9 J McAdam, Complementary Protection in International Refugee Law (Oxford, Oxford University Press, 2007). 10 A Duffy, ‘Expulsion to Face Torture? Non-Refoulement in International Law’ (2008) 20(3) International Journal of Refugee Law 373–90. 11 Soering v UK (n 4). However, unlike the Convention Against Torture, Art 3 ECHR prevents not only removal to face torture, but also removal to face other inhuman or degrading treatment.

Elspeth Guild

547

19.12

19.13

19.14

19.15

Part I – Commentary on the Articles of the EU Charter

III. Council of Europe Treaties 19.16 The Council of Europe Convention on Establishment 1955, which has been ratified by a minority of EU Member States, contains at Article 3 some protection against expulsion. Similarly, the European Social Charter 1961 also provides some protection against expulsion for lawfully resident migrant workers. Neither go as far or are as clear as Article 19 Charter.

IV. Other Treaties Article 19(1) 19.17 At the regional level, the Inter-American Convention on Human Rights 1969 provides at Article 22(9) for freedom of movement and protection against expulsion for aliens in certain circumstances. The Arab Charter on Human Rights 2004 also prohibits mass expulsion at Article 26(2). The Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms 1995 also prohibits collective expulsion at Article 25(4). 19.18 Two African conventions cover related territory: the Convention governing the specific aspects of refugee problems in Africa 1969 and the African Charter on Human and People’s Rights 1981 both contain provisions relating to protection of residence, the former for refugees the latter for migrants. The latter includes at Article 12(5) a specific prohibition on the mass expulsion of aliens. However this provision is specifically related to the grounds of mass expulsion: ‘The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups.’ Article 19(2) 19.19 All of the above regional conventions also prohibit torture, inhuman and degrading treatment or punishment.

V. Relevant EU law (a) Primary Law 19.20 Articles 19(1) and (2) fit within the scope of EU law as an expression of the more general human rights obligations of the Member States contained in the UN’s international bill of rights and the ECHR. As regards EU primary law, the exception to free movement of persons on the grounds of public policy, public security and public health must be exercised consistently with Article 19. This has consequences for Articles 20 and 21 TFEU on citizenship of the Union, but also on Articles 45 (free movement of workers), 49 (the right of establishment) and 56 (provision of services). All these provisions are directly effective in EU law according to the CJEU.12 The provisions in Title V (the area

12

548

Re Art 21: Case C-413/99 Baumbast [2002] ECR I-7091; re Arts 45–56, see general principles of EU law.

Elspeth Guild

Art 19 – Protection in the Event of Removal

of freedom security and justice) on third country nationals are also affected, but not by primary law, as there are no directly effective treaty rights for third country nationals in this title. Article 19(1) raises issues about the right to an individual consideration of the per- 19.21 son’s circumstances before expulsion. Collective expulsion is excluded because each person is entitled to a consideration of his or her claim to remain on the territory separately. Thus before expulsion can be carried out each case must be considered on its facts. The rights of free movement and residence (Arts 20 and 21 TFEU) and entry and residence for economic purposes (Arts 45–56 TFEU) are subject to exceptions on the basis of public policy, public security and public health. These grounds cannot be used to justify collective expulsions of EU citizens. This is not an academic issue as the first startling judgment of the ECtHR on the basis of the ECHR Protocol 4 equivalent to this provision was in respect of Belgian authorities which were found liable for a breach of the provision on account of their collective expulsion of Slovakians.13 While the events and judgment predate the accession of Slovakia to the EU, the much publicised expulsion of Romanians from France and Italy, commencing with particular intensity in 2010 but ongoing at the time of writing, raises concerns about compliance with Article 19(1) of the Charter.14 In respect of Article 19(2), any EU citizen entitled to rely on Articles 20 and 21 TFEU 19.22 to remain on the territory of a Member State other than that of his or her underlying nationality also enjoys protection from expulsion to his or her home state if there is a real risk that he or she would suffer torture, inhuman or degrading treatment or punishment (the death penalty has been abolished in all EU Member States; see also Article 2 of the Charter) in the state to which he or she is intended to be sent. Any such expulsions would, of course, in any event have to satisfy the conditions set out in Directive 2004/38, on the free movement rights of EU citizens and their family members. A number of issues arise as regards this obligation not to send an EU citizen to his or her Member State of underlying citizenship on the basis of the risk of torture, inhuman or degrading treatment or punishment. Protocol 24 TFEU and TEU provides that there is a presumption that all EU countries are safe countries of origin as regards asylum claims by nationals of other Member States (unless a Member State makes a unilateral declaration to the contrary, which only Belgium has done).15 This Protocol is commonly known as the Aznar Protocol. Thus, while according to the Protocol, asylum claims will be inadmissible (or otherwise not taken into consideration) where made by citizens of the Union (except in Belgium, where point (d) of the Aznar Protocol requires that they must be presumed to be ‘manifestly unfounded without affecting in any way’ the decision-making process), Article 19(2) of the Charter makes no differentiation between EU citizens and third country nationals. As the explanations regarding Article 19 of the Charter specifically refer to the jurisprudence of the ECtHR on Article 3—which as the ECtHR has insisted on numerous occasions, is absolute and not liable to any

13

Conka v Belgium (n 3). S Carrera and A Faure-Atger, L’affaire des Roms: A Challenge to the EU’s Area of Freedom, Security and Justice (CEPS Paper in Liberty and Security Series, Centre for European Policy Studies, Brussels, 2010). 15 E Guild and M Garlick, ‘Refugee Protection, Counter-Terrorism, and Exclusion in the European Union.’ (2010) 29(4) Refugee Survey Quarterly 63–82. 14

Elspeth Guild

549

Part I – Commentary on the Articles of the EU Charter

exceptions16—the Aznar Protocol must be disapplied to any claim by an EU citizen based on Articles 20 and 21 TFEU and Article 19(2) Charter. The possible well-foundedness of such claims is evident from the UNHCR annual reports on asylum claims—the 2010 UNHCR Statistical Yearbook indicates that 62 per cent of Romanians who sought asylum in Canada were granted some sort of international protection.17 Unless there is an assumption that asylum processing in Canada is substantially different from that in EU Member States (notwithstanding the application of the same international standards), this would seem to indicate that some Romanians had well-founded claims to asylum. These claims would be inadmissible in all Member States except Belgium (and presumed to be manifestly unfounded there) according to the Aznar Protocol, but Article 19(2) Charter in conjunction with Articles 20 and 21 TFEU may require a full consideration of such claims, when taken together with the Charter right to good administration and a remedy, Article 47 Charter (see the commentary on this Article). 19.23 In accordance with the CJEU’s jurisprudence on the rights of Turkish workers, self-employed persons and service providers to entry and residence in the Member States, including protection against expulsion on the same level as EU workers, Article 19(2) also has specific implications for the application of the EC Turkey Association Agreement and Decision 1/80.18 19.24 At the date of writing, the EU has entered into readmission agreements with the following countries (the UK has opted in to all these agreements): — — — — — — — —

Hong Kong;19 Macao;20 Sri Lanka;21 Albania;22 Russia;23 Ukraine, Serbia, Montenegro, Bosnia, Macedonia and Moldova;24 Pakistan;25 and Georgia.26

19.25 The Council has also agreed to sign readmission agreements with Turkey, Cape Verde and Armenia,27 and approved mandates for the Commission to negotiate with Belarus in February 2011 and Azerbaijan in December 2011. The objective of all the readmission agreements is to facilitate the expulsion of nationals of the states parties to their country of nationality and where possible also any thind country nationals who entered the

16

Saadi v Italy App no 37201/06 (ECtHR, 28 February 2008). www.unhcr.org/4ef9cc9c9.html; see statistical annex, table 12. 18 R Gutmann, ‘Schranken des Aufenthaltsrechts nach dem Assoziationsratsbeschluß Nr 1/80’ ZAR (2) (1996): 70–77. 19 [2004] OJ L17/23: in force 1 March 2004 ([2004] OJ L64/38). 20 [2004] OJ L143/97; in force 1 June 2004. 21 [2005] OJ L124/43; in force 1 May 2005. 22 [2005] OJ L124; in force 1 May 2006. 23 [2007] OJ L129; in force 1 June 2007. 24 [2007] OJ L332 and 334; in force 1 January 2008. 25 [2010] OJ L287/50; in force 1 December 2010. 26 [2011] OJ L52/45; in force 1 March 2011 ([2011] OJ L44/1). 27 See respectively [2012] OJ L244/4, [2013] OJ L37/1 and [2013] OJ L87/1. 17

550

Elspeth Guild

Art 19 – Protection in the Event of Removal

territory of one of the parties after sojourning in the other party’s territory.28 All actions taken under these agreements must also be consistent with Articles 19(1) and (2) Charter. Concerns have been expressed by a variety of academics about the application of these agreements and the human rights implications.29 These concerns also engage the correct application of Article 19 of the Charter. (b) Secondary Legislation Articles 19(1) and (2) have implications for Directive 2004/38 on the right to move and 19.26 reside of citizens of the Union for the reasons set out above in respect of their directly effective residence rights. The Directive provides further clarification of the right to move and reside of citizens of the Union and assimilates their third country family members to the position of the EU citizen principal. As regards EU secondary legislation on third country nationals adopted under Chapter V 19.27 TFEU, many measures are affected by Article 19 of the Charter. These include in the irregular immigration acquis: — — — — —

Directive 2001/40 on mutual recognition of expulsion decisions;30 Directive 2001/51 on carrier sanctions;31 Directive 2003/110 on transit for expulsion by air;32 Directive 2008/115 (Returns Directive);33 and Directive 2011/3634 replacing the Framework Decision on trafficking in persons.

Of these measures, the Returns Directive is the most immediately engaged by Article 19 19.28 of the Charter. As this Directive sets out the conditions for the expulsion of third country nationals, it must be applied in full compliance with the Charter obligation. Of these measures only Directive 2008/115 has been the subject of interpretation by the CJEU;35 however, so far there has been no interpretation of the Charter in respect of the Directive. In the borders acquis the Schengen borders code is implicated,36 and in the asylum 19.29 acquis the following measures are implicated: — —

Directive 2001/55 on temporary protection;37 Dublin II Regulation 343/2003;38

28 N Coleman, European Readmission Policy: Third Country Interests And Refugee Rights, Vol XVI (Dordrecht, Martinus Nijhoff, 2009). 29 J-P Cassarino, ‘Informalising readmission agreements in the EU neighbourhood’ (2007) 42(2) The International Spectator 179–96; F Trauner and I Kruse. ‘EC visa facilitation and readmission agreements: A new standard EU foreign Policy tool?’ (2008) 10(4) European Journal of Migration and Law 411–38. 30 [2001] OJ L149/34. 31 [2001] OJ L187/45. 32 [2003] OJ L321/26. 33 [2008] OJ L348/98. 34 [2011] OJ L101/1. 35 Cases: C-357/09 PPU Kadzoev [2009] ECR I-11189; C-61/11 PPU El Dridi Hassen [2011] ECR I-3015; C-329/11 Achughbabian (Judgment of 6 December 2011); Case C-430/11 Sagor (Judgment of 6 December 2012); and Case C-522/11 Mbaye (Order of 21 March 2013). 36 Regulation 562/2006 [2006] OJ L105/1. 37 [2001] OJ L212/12. 38 [2003] OJ L50/1; see also Commission Regulation 1560/2003 implementing Dublin II ([2003] OJ L222/3). The Dublin II Regulation has recently been replaced by Regulation 604/2013, [2013] OJ L180/31.

Elspeth Guild

551

Part I – Commentary on the Articles of the EU Charter

— — —

Directive 2004/83 on refugee/subsidiary protection qualification;39 Directive 2005/85 on asylum procedures;40 and the revised Qualification Directive (Directive 2011/95).41

19.30 Virtually all the EU immigration and asylum measures state, in their preambles, that they are compliant with the Charter generally. As the Charter has the status of primary law, all these measures of secondary law are subordinate to the Charter. In the CJEU’s jurisprudence on the CEAS, it makes frequent reference to the Charter (see the commentary on Article 18).

D. Analysis I. General Remarks Article 19(1) 19.31 Collective expulsion of aliens is certainly not a recent phenomenon, but that it should be incorporated into human rights norms is.42 The first international Convention to include a prohibition on collective expulsion is Article 4 Protocol 4 ECHR, adopted on 16 September 1963. As Henckaerts points out, the Council of Europe’s Legal Committee did not propose the provision, which came from the Committee of Experts as a result of a discussion regarding variations between the ECHR and the Council of Europe’s Convention on Establishment. The Explanatory Report makes specific reference to collective expulsions which had already taken place—an apparent reference to events occurring between the two world wars. However, the provision included in the protocol is wider, and includes all collective expulsion irrespective of when they take place. One of the key issues which arises and will be considered below is what ‘collective’ means in this provision. This has been a core issue in the interpretation of the provision by the ECtHR. The issue of collective expulsion of aliens in the ECtHR jurisprudence has arisen primarily in respect of people who have applied for asylum (though not exclusively, see below). For this reason it is reasonable to place this prohibition in the same basket as the prohibition on expulsion of aliens at risk of torture (Art 19(2)). However, as will be discussed below, asylum is not the only context in respect of which issues of collective expulsion have arisen. A 2012 judgment of the ECtHR concerned interdiction on the high seas where there was a breach of this prohibition.43 Closely related to this prohibition, and indeed, to a large extent inherent to it are the 19.32 procedures by which states reach decisions on expulsion. For Council of Europe states this leads in two directions. First, Article 13 ECHR provides the right to an effective

39 40 41 42 43

552

[2004] OJ L304/12. [2005] OJ L326/13. This Directive has recently been replaced by Directive 2013/32, [2013] OJ L180/60. [2011] OJ L337/9. Henckaerts (n 7). Hirsi Jamaa & Ors v Italy (n 3).

Elspeth Guild

Art 19 – Protection in the Event of Removal

remedy which is of general application to the ECHR. However, it also engages Protocol 7, Article 1 of which states: 1. An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed: (a) to submit reasons against his expulsion, (b) to have his case reviewed, and (c) to be represented for these purposes before the competent authority or a person or persons designated by that authority. 2. An alien may be expelled before the exercise of his rights under paragraph 1.a, b and c of this Article, when such expulsion is necessary in the interests of public order or is grounded on reasons of national security.

Seven EU Member States have not (at the time of writing) ratified this protocol.44 The 19.33 importance of Article 13 ECHR for the application of Article 4 Protocol 4 is particularly relevant—see below under scope. Article 19(2) This provision as it appears in the ICCPR, the UNCAT and the ECHR has been the 19.34 subject of much interpretation and jurisprudence, by the UN treaty bodies in their capacity to receive individual complaints, and by the ECtHR. It forms the basis of the widening of the grounds for asylum from the very specific definition of a refugee in the Refugee Convention—a person with a well-founded fear of persecution on the basis of race, religion, nationality, membership of a particular social group or political opinion (see the commentary on Art 18)—to a wider group of persons in need of international protection. The defining feature of this wider group of people is that there is a serious risk that they will suffer torture, inhuman or degrading treatment or punishment if sent to another country. The basis of international protection on these grounds has been the subject of a fairly consistent widening in the human rights conventions adopted by the international community. While the UN Convention against Torture 1984 only provides for protection in the event that the serious risk is one of torture, the ECtHR’s jurisprudence widens this to include inhuman and degrading treatment or punishment, and this wider formula is the one which appears in the Charter. The interface between refugee status and the right to remain on the grounds that 19.35 return would entail a serious risk of torture, inhuman or degrading treatment or punishment is fairly complex.45 EU law provides for some assimilation of rights, but this is not complete (see Directive 2011/95).

II. Scope of Application The key issue as regards the scope of application of Article 19—the exclusion of EU 19.36 citizens from applying for asylum—has been considered above.

44 45

Bulgaria, Cyprus, Greece, Ireland, Malta, Poland and the UK. McAdam (n 9).

Elspeth Guild

553

Part I – Commentary on the Articles of the EU Charter

III. Specific Provisions Article 19(1) 19.37 According to Article 52(3) Charter, the interpretation of Charter provisions which have ECHR counterparts is to follow the latter. Accordingly, the jurisprudence of the ECtHR on Article 4 Protocol 4 is determinant as regards Article 19(1). While there has been some jurisprudence dating back to the times of the separate Commission and Court, no violation of Article 4 Protocol 4 occurred during this period. Howley reviews in substantial detail the early jurisprudence including up to the Conka judgment (see below).46 In his view, the relative stability of Western Europe in the first three decades of the Protocol resulted in little jurisprudence. However, the fall of the Berlin Wall corresponded with a period of substantial movement of people across international borders (some of these being created around that time) and xenophobic resentment. He uses the expression ‘cognitive dissonance’ to describe the changing demands on human rights in Europe in the 1990s. Immigration tensions and institutional shift created pressures on the ECtHR resulting in some new directions in migrant protection and collective expulsion. 19.38 The (now defunct) Commission assisted in the definition of collective expulsion as early as 1975, when it held that this refers to any measure of an authority which compels aliens as a group to leave the country. However, it will not apply where the measure is taken on the basis of a reasonable and objective examination of the cases of each individual in the group.47 Again, the Commission found that the fact that a number of aliens from the same country had all been refused asylum in similar terms and subject to expulsion decisions accordingly, did not mean that they had been collectively expelled when there was evidence that their cases had been individually examined.48 A number of other cases came before the Commission, but the approach was consistent—as long as there had been separate decisions, albeit very similar or identical, the expulsion decisions which were based on these decisions (refusing asylum in all cases) were not collective and therefore were not in breach of the Convention prohibition. At this point the relevance of the prohibition began to seem fairly limited. 19.39 By a judgment of 2002, the ECtHR for the first time found that there had been a breach of Article 4 Protocol 4.49 The facts were quite shocking and there is more than a whiff of racial or ethnic discrimination about the case. The Conka family were Slovak nationals of Romany origin who had applied for asylum in Belgium in November 1998.50 The grounds of their asylum claims were a series of violent ethnically motivated assaults on the family by skinheads in Slovakia in early 1998, about which the authorities took no action and made no effort to protect the family from further assault and victimisation. The Belgian authorities declared their asylum applications inadmissible in March 1999 on the grounds that the family had failed to produce sufficient evidence that their lives were at risk in Slovakia. These grounds were subsequently widened

46 JD Howley, ‘Unlocking the Fortress: Protocol No 11 and the Birth of Collective Expulsion Jurisprudence in the Council of Europe System’ (2006) 21 Geographical Immigration Law Journal 111. 47 Becker v Denmark App no 7011/75 (3 October 1975). 48 Alibaks & Ors v Netherlands App no 14209/88 (16 December 1988). 49 Conka v Belgium (n 3). 50 Slovakia became a Member State of the EU on 1 May 2004.

554

Elspeth Guild

Art 19 – Protection in the Event of Removal

to include discrepancies in the accounts of different members of the family, which undermined the credibility of all the family members, and failure to comply with various obligations of national procedures. The family appealed against the refusal, which appeals were not successful. The family were served with expulsion orders, which they did not respect. At the end of September, together with a number of other Romany families, the Conkas received a notice requesting that they attend the police station in connection with completing their applications for asylum. The same notice had been sent to a number of Romany families from Slovakia many of whom, like the Conkas, attended at the station. They were all served with new expulsion orders, detained from 29 September 1999 until 5 October 1999, then taken to a military airport where an aircraft was waiting for them. Their seat numbers were marked on their hands with a ballpoint pen and they were expelled to Slovakia. The Belgian Minister of the Interior replied to a parliamentary question about the 19.40 matter in December 1999, stating that ‘owing to the large concentration of asylum seekers of Slovakian nationality in Ghent arrangements have been made for their collective repatriation to Slovakia’. When the matter eventually got to the ECtHR it found that there had been a violation of Article 4 Protocol 4. The reasoning of the Court was as follows. First, collective expulsion means any measure compelling aliens as a group to leave the country, unless the measures are taken on the basis of a reasonable and objective examination of the case of each individual in the group. Where the authorities claim to have made such individual decisions (as in the Conka case), the background to the execution of the expulsion orders may still play a role in determining whether there has been a collective expulsion contrary to the protocol. On the facts of the case, the Court noted that the only basis for the expulsion decision was the fact that the applicants had remained on the territory for more than three months with no reference to their asylum claims. It stated ‘in those circumstances and in view of the large number of persons of the same origin who suffered the same fate as the applicants, the Court considers that the procedure followed did not enable it to eliminate all doubt that the expulsion might have been collective.’ 19.41 The ECtHR went on then to consider the additional factors. These were: — — — — —

The political authorities had announced that there would be an operation of the kind and had given instructions to the local authorities to carry them out. All the aliens had been required to attend the police station at the same time. The orders served on them requiring them to leave the territory were all identical in terms (even though served individually). It was very difficult for any of the people to contact a lawyer. There was no completion of the asylum procedure.

On the basis of these considerations the ECtHR found that there had been a violation of 19.42 Article 4 Protocol 4. This reasoning must be applicable to Article 19(1) Charter. The ECtHR again found a breach of Article 4 Protocol 4 in a 2012 case.51 This case 19.43 has particularly important repercussions for the EU as the breach took place in international waters in the process of an interdiction action by the Italian authorities whereby they took people from a small boat onto their ship, and instead of taking them to Italy

51

Hirsi Jamaa & Ors v Italy (n 3).

Elspeth Guild

555

Part I – Commentary on the Articles of the EU Charter

where they had been headed, took them to Libya whence they had left. The importance for the EU arises, inter alia, from the role of FRONTEX, the EU’s external borders agency, in coordinating Member States’ border control activities to prevent aliens entering the EU. Many of these activities include maritime operations in international waters designed to prevent the arrival of persons on small boats.52 19.44 In the Hirsi case the applicants consisted of 11 Somalis and 13 Eritreans, who were part of a group which left Libya in May 2009 on three boats aiming to land in Italy. While in the Maltese search and rescue region, three Italian Revenue Police ships intercepted the boats and transferred the people onto Italian military ships, which returned them to Libya. The Italian authorities did not, according to the applicants, inform them of where they were being taken (but confiscated all their personal effects). The applicants were forcibly removed from the Italian military ships when they got to Libya and handed over to the Libyan authorities. The Italian Minister of the Interior stated at a press conference on 7 May 2009, after the operation that the objective of the interception on the high seas had been to push migrants back to Libya on the basis of a bilateral agreement with Libya to this end. He stated in the Senate a few weeks later that 471 irregular migrants had been intercepted in this fashion on the high seas and sent to Libya under the agreement.53 19.45 The Italian authorities, which had faced down a not so dissimilar complaint to the ECtHR in 2001 regarding the push-back of people to Albania,54 argued that the complaint of Hirsi Jamaa and others was inadmissible. The ECtHR held that there is no obstacle from the wording of Article 4 Protocol 4 to its extraterritorial application. In so finding, it relied heavily on the travaux preparatoires and the Committee of Experts. Examining then, the purpose and meaning of the provision, the ECtHR held that it is essential that it be interpreted in a manner which renders the guarantees practical and effective, and not theoretical and illusory. To this end the purpose of the provision is to prevent states being able to remove certain aliens without examining their personal circumstances and consequently without enabling them to put forward their arguments against the measures taken by the authorities. It would defeat this purpose if ‘migrants, having taken to the sea, often risking their lives, and not having managed to reach the borders of a State, would not be entitled to an examination of their personal circumstances before being expelled, unlike those travelling by land.’ For this reason the notion of jurisdiction must follow the actions of states. 19.46 On the merits, the ECtHR relied on its judgment in Conka, that the fact that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there has been a collective expulsion so long as each person concerned has been given the opportunity to put arguments against his or her expulsion to the competent authorities on an individual basis. On the facts of the case, once the ECtHR had held that the matter was admissible and that Article 4 Protocol 4 could apply even in

52 S Carrera, ‘The EU Border Management Strategy: FRONTEX and the challenges of irregular immigration in the Canary Islands.’ CEPS Working Documents 261 (2007); A Baldaccini, ‘Extraterritorial border controls in the EU: The role of FRONTEX in operations at sea’ in Extraterritorial Immigration Control: Legal Challenges, (Leiden, Martinus Nijhoff Publishers, 2010) 229–55. 53 W Frelick, ‘Pushed Back, Pushed Around: Italy’s Forced Return of Boat Migrants and Asylum Seekers, Libya’s Mistreatment of Migrants and Asylum Seekers’ Human Rights Watch, 2009. 54 Xhavara & Ors v Italy App no 39473/98 (11 January 2001).

556

Elspeth Guild

Art 19 – Protection in the Event of Removal

international waters, the matter was lost for the Italian authorities as they accepted that they had made no effort even to identify the individuals let alone provide them with an opportunity to present their arguments individually against return to Libya. The case was something of a cause célèbre, with both international organisations 19.47 and non-governmental organisations intervening. UNHCR not only submitted written interventions but was given leave to participate at the oral hearing. Written observations were submitted by the UN High Commissioner for Human Rights. The two international organisations argued in favour of state responsibility under Article 4 Protocol 4 in the circumstances of the case. For UNHCR the issue was related to the non-refoulement obligation (see the commentary on Art 18 Charter). In the submissions of the UNHCHR, the prohibition contained in Article 4 Protocol 4 relied on the appearance of the prohibition in many sources of international human rights law as well as their regional counterparts as the reasons for its intervention. The submission relies on the draft articles on the expulsion of aliens adopted by the International Law Commission which defines expulsion as ‘the displacement of an individual under constraint beyond the territorial frontier of the expelling State to a State of destination.’ The UNHCHR specifically states that ‘In fleeing to the high seas in hopes of escaping the rule against collective expulsion from the territory, the intercepting State runs into the alternative dilemma of possibly illegally exercise of jurisdiction on the high seas.’55 Clearly there is substantial disquiet in some international organisations about some practices among European states (though not limited to them) regarding the good faith compliance with the prohibition on collective expulsion at least in so far as high seas interception and push back of aliens is concerned. Article 19(2) There is a substantial and rich jurisprudence of the ECtHR on this prohibition of return 19.48 to the death penalty, torture, inhuman or degrading treatment of punishment. In the explanations, specific reference is made to the Soering judgment of the ECtHR (see the commentary on Art 4). This decision was the starting point for the development of the ECtHR’s jurisprudence extending the torture prohibition from the strict wording of Article 3 ECHR (the counterpart of Art 4 Charter) to what is now the equivalent of Article 19(2) Charter. While the two are collapsed into one provision in the ECHR, according to this jurisprudence, in the Charter they are separated out into separate provisions, with the latter aligned to the prohibition on collective expulsion found in Article 19(1). The prohibition on return of a person to a country where he or she is likely to be 19.49 subject to the death penalty arises from two protocols to the ECHR. In 1983 Protocol 6 provided for abolition of the death penalty, but there were various exceptions. In 2002 Protocol 13 banned the death penalty without exception or derogation even under Article 15 ECHR (times of war etc). Of EU Member States, only Poland while having signed the protocol has not, at the time of writing, ratified it. Just as in the case of torture, return to the death penalty is not permissible under any circumstances. In the

55 UNHCHR Intervener Brief Filed on Behalf of the United Nations High Commissioner for Human Rights (filed pursuant to leave granted by the Court on 4 May 2011) Hirsi et al v Italy.

Elspeth Guild

557

Part I – Commentary on the Articles of the EU Charter

CEAS, the Qualification Directive 2011/95 provides at Article 15(a) that serious harm for the purposes of granting a person subsidiary protection includes the death penalty or execution (this provision is unchanged from its predecessor Directive 2004/83). The legal basis of this provision of EU secondary legislation may now also implicate Article 19(2) of the Charter. 19.50 Regarding the meaning of torture, inhuman and degrading treatment or punishment, as the explanations make clear, the jurisprudence of the ECtHR is assimilated to this provision. Thus regard must be had to the jurisprudence of the ECtHR on these issues. The jurisprudence on this issue has already been dealt with in the commentary on Article 4 Charter.56 The obligations of Member States to ensure that no one is returned to torture, inhuman or degrading treatment or punishment are concurrent in the Charter, ECHR, UNCAT, ICCPR and elsewhere (for instance the Refugee Convention) according to the ECtHR.57 The liability of states under Article 19(2) is that by reason of their actions the direct result is that the individual has been exposed (or would be exposed to) the prohibited treatment.58 The test is whether there are substantial grounds for believing that the person concerned faces a real risk of being subject to torture or to inhuman or degrading treatment or punishment in the country to which he or she is being returned.59 So long as the answer to this question is positive, then the individual cannot be expelled to the state in question. 19.51 The explanations to Article 19(2) make specific reference to the ECtHR judgment in Ahmed v Austria60 (as well as Soering, discussed above). This is a single example of the rich ECtHR jurisprudence in the area, and cannot be taken out of its context. However, in Ahmed a Somali national sought asylum in Austria. Notwithstanding the national security concerns of some Austrian authorities, he was granted protected status and a residence permit. Approximately two years later he was convicted of robbery, with a penalty of two and a half years’ imprisonment, at which point the Austrian authorities withdrew his refugee status (the Refugee Convention permits exceptions, unlike Article 3 ECHR). He claimed the protection of Article 3 ECHR against expulsion to Somalia where he still feared torture. The ECtHR confirmed that as long as the conditions which gave rise to his protection in Austria were still existent, the fact that he had been convicted of a criminal offence was irrelevant to the obligation of the Austrian authorities to allow him to continue to reside in the country where the alternative would be a return to torture. This is consistent with the ECtHR’s interpretation of Article 3 ECHR as absolute and allowing no exceptions. No mention is made in the explanations to the opinions of the Human Rights Committee under Article 7 ICCPR. However, the most well-known decision by the HRC on a breach of the prohibition on torture, inhuman or degrading treatment or punishment on expulsion was against an EU Member State, Sweden. In its opinion on Agiza v Sweden61 the HRC found that Sweden had failed to protect Mr Agiza from torture or inhuman or degrading treatment by allowing Egyptian 56 For an excellent review of the ECtHR’s jurisprudence on Art 3 ECHR as a tool for those in need of international protection, please see Nuala Mole’s review published by the Council of Europe in 2010 (Mole and Meredith, n 5). 57 Soering v UK (n 4). 58 Ibid. 59 Vilvarajah & Ors v UK App nos 13163-65/87, 13447-8/87 (20 October 1991) Series A no 215. 60 Ahmed v Austria App no 25964/94 (17 December 1996) 1996-VI. 61 Agiza v Sweden App no 233/2003 (24 May 2005).

558

Elspeth Guild

Art 19 – Protection in the Event of Removal

and US officials to transport him from Sweden to Egypt where he was imprisoned and subjected to treatment contrary to the Convention. The HCR determined that the fact that the Swedish authorities had requested assurances from their Egyptian counterparts that if returned Mr Agiza would be treated consistently with the ICCPR indicated that the Swedish authorities were aware of the risk of treatment contrary to Article 7 ICCPR which awaited Mr Agiza. There is also a very fulsome jurisprudence of the UN Committee against Torture 19.52 (CAT) on Article 3 UNCAT and the return of people to countries where they fear torture. Again one of the most well-known involves Sweden, an EU Member State: Alzery v Sweden.62 The fate of Mr Alzery follows very closely that of Mr Agiza, and indeed they were transported together on the same privately chartered plane from Sweden to Egypt on the same day and by the same authorities. The CAT followed the finding of the HRC that like Mr Agiza, Mr Alzery had been expelled by the Swedish authorities to Egypt contrary to Article 3 UNCAT as there was a real risk he would suffer torture there and the Swedish authorities were aware of the risk at the time that they handed him over to the Egyptian and US authorities for expulsion. One of the key EU questions which arises is whether expulsion to a third state is 19.53 permissible. The answer to this question depends on whether the third state (whether another EU Member State or one outside the EU) will provide protection to the individual or whether there is a real risk that he or she will be subject to prohibited treatment there or sent onwards to another country where such a risk arises. The answer provided by the ECtHR in MSS v Belgium and Greece63 is that EU Member States cannot rely on EU secondary legislation to circumvent their Article 3 obligation. The issue in MSS revolved around an Afghan asylum-seeker who had first arrived in the EU in Greece but managed to leave that country and went to Belgium where he applied for asylum. The Belgian authorities relying on EU secondary legislation sought to return him to Greece (and in fact did so) for his asylum application to be determined there. The ECtHR found that on account of the abysmal lack of reception conditions and the blatant failure of the Greek asylum system, both Greece and Belgium were in breach of Article 3: Greece for its treatment of MSS, and Belgium for sending MSS to Greece in circumstances where either they knew or ought to have known that there would be a breach of Article 3.64 This judgment points in the direction which the ECtHR follows in Hirsi, discussed above, where actions by Member States regarding foreigners must be subject to careful scrutiny as the good faith of Member States cannot be assumed in this field.

IV. Limitations and Derogations No limitations or derogations are permitted to either Article 19(1) or 19(2). In so far as 19.54 these two provisions mirror their ECHR counterparts, the ECtHR has made clear in the Hirsi decision (discussed above) that there can be no exception to the prohibition on

62

Alzery v Sweden App no 1416/2005 (10 November 2006). MMS v Belgium and Greece App no 30696/09 (21 January 2011). 64 V Moreno-Lax, ‘Dismantling the Dublin System: MSS v. Belgium and Greece’ (2012) 14(1) European Journal of Migration and Law 1–31. 63

Elspeth Guild

559

Part I – Commentary on the Articles of the EU Charter

collective expulsion, even if it is taking place on the high seas and outside the physical territory of the Member State, as this would defeat the objective of the prohibition. As regards the prohibition on return of a person to the death penalty, torture or inhuman or degrading treatment of punishment, the ECtHR first determined the absolute nature of the provision in Chahal.65 Irrespective of state concerns regarding national security, if the objective test of a substantial risk of treatment contrary to Article 3 ECHR is fulfilled, expulsion can never be carried out lawfully. This position was reinforced by the ECtHR in Saadi,66 where the ECtHR once again held that the provision enshrines one of the fundamental values of democratic societies and prohibits in absolute terms torture, inhuman or degrading treatment or punishment irrespective of the victims conduct however undesirable or dangerous. Both the HRC and CAT have similarly held that Article 7 ICCPR and Article 3 UNCAT are absolute.67

V. Remedies 19.55 For the purposes of both Article 19(1) and (2), remedies are of critical importance. According to the jurisprudence of the ECtHR on Article 4 Protocol 4, the mirror image of Article 19(1), the key to a state avoiding a breach of the prohibition on collective expulsion is the application of appropriate procedures and remedies to ensure that every individual who is under threat of expulsion has an individualised procedure and appeal right against any negative decision. This aspect of the prohibition on collective expulsion runs through both the main ECtHR judgments on the issue, Conka and Hirsi (see above). It is on account of the failure of an individual consideration of each case that both countries, Belgium and Italy, fell foul of the Article 4 Protocol 4 prohibition. If they had given each individual an opportunity to present his or her case and a review procedure against a negative decision then neither country would probably have been found in breach even if at the end of the day the procedures had confirmed the authorities’ original decisions. In the Conka decision, the lack of an effective remedy was a particularly important aspect of the judgment as the Belgian authorities argued that the complainants had a remedy in an appeal to the Conseil d’Etat. In examining the facts of the case and the accessibility of this remedy, the ECtHR found that it was not actually available to the complainants and was in fact illusory rather than real. In the Hirsi case the individuals were never even identified by the Italian authorities. The failure to have any procedure at all was at the heart of the decision. As regards Article 19(2), again effective remedies are an essential element of the pro19.56 hibition of torture, inhuman or degrading treatment or punishment in Article 3 ECHR jurisprudence. In the ECtHR’s judgment in Chahal (see above), the fact that Mr Chahal had only a vestigial remedy because the allegations against him were of a national security nature gave rise to a finding that the UK was in breach of the effective remedy

65

Chahal v UK App no 22414/93 (15 November 1996). Saadi v Italy (n 16). 67 M Nowak, UN covenant on civil and political rights: CCPR commentary (Kehl, NP Engel, 1993); M Nowak, E McArthur and K Buchinger, The United Nations Convention against Torture: a Commentary (Oxford, Oxford University Press, 2008). 66

560

Elspeth Guild

Art 19 – Protection in the Event of Removal

obligation in Article 13 ECHR.68 Both the HRC and CAT have equally found that access to remedies with suspensive effect is fundamental to the protection provided by Article 7 ICCPR and Article 3 UNCAT.69

E. Evaluation Article 19 Charter presents a particularly critical challenge to the development of EU 19.57 borders, migration and asylum law. As is apparent from the jurisprudence of the ECtHR, HRC and CAT, EU Member States’ actions against aliens are regularly challenged on the regional and international law equivalents of Article 19. Further, in those challenges EU states are not infrequently found to have breached their human rights obligations to aliens. The most pressing area of EU law (in 2013) where Article 19 must be taken into account is the application of Directive 2008/115 and the EU’s CEAS. The CEAS has been under construction since the early days of the twenty-first century. It came into existence before the Charter was given legally binding force. Although all the measures of secondary legislation adopted make reference to the Charter and claim faithful obedience to it, the matter is far from clear. The ECtHR has found that to be consistent with the ECHR provisions which are mirrored in the Charter, Member States are obliged to give effect to some of the CEAS measures in a manner which while permissible is clearly contrary to the CEAS objective (see Dublin II Regulation and the judgment in MSS v Belgium and Greece discussed above). The asylum procedure rules contained in Directive 2005/8570 allow for four different types of accelerated procedures where someone seeking international protection may have their application only provided with a cursory consideration and limited or even (in some cases) no remedies: — — — —

manifestly unfounded applications (many grounds for this); safe third country provisions (the individual passed through a third country where he or she could have applied for asylum before arriving in the EU); super safe third countries (countries which are signatories to the ECHR and through which the individual passed en route to the EU); safe countries of origin (countries of origin of asylum-seekers which are designated as safe).71

All these truncated procedures present challenges for human rights protections under 19.58 Article 19(1) and (2) as they undermine the right to a full determination of an asylum claim and diminish the possibility of an effective remedy. The second area of EU law

68 For a complete examination of the right to a remedy in Art 3 ECHR cases before the ECtHR, see Mole and Meredith (n 5) 61–73. 69 D Baldinger, Asylum Procedures in EU and International Law (Leiden, Martinus Nihjoff, forthcoming 2013). 70 The Asylum Procedures Directive has recently been replaced by Directive 2013/32, [2013] OJ L 180/60. 71 V Moreno-Lax, ‘Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of EU Member States’ Obligations Accruing at Sea’ (2011) 23(2) International Journal of Refugee Law 174–220; C Costello, ‘Asylum Procedures Directive and the Proliferation of Safe Country Practices: Deterrence, Deflection and the Dismantling of International Protection’ (2005) 7 European Journal of Migration & Law 35; E Guild, ‘From Persecution to Management of Populations: Governmentality and the Common European Asylum System’ (2011) 4(14) Tidsskriftet Politik 13–26.

Elspeth Guild

561

Part I – Commentary on the Articles of the EU Charter

which must be carefully examined regarding consistency with Article 19 of the Charter is that which regulates border controls and surveillance. As discussed above, FRONTEX coordinates EU Member States’ operations on the high seas, including with the objective of pushing back aliens so that they do not arrive at the EU’s borders. Similarly, it coordinates an increasing number of charter flights for the expulsion of aliens to a common destination. As the organising principle of these expulsion flights is to travel to the ultimate destination with the planes stopping in various EU Member States to collect passengers to be expelled, the risk that such practices encourage collective expulsion by Member State authorities is substantial. The reason for this is because Member States pay for the seats on each flight which they have ordered. Thus when the plane arrives, they have a substantial incentive to ensure that they have people to hand over for expulsion to that destination. As each individual is entitled to a consideration of his or her circumstances immediately before expulsion, undoubtedly authorities are reluctant to find a change of circumstances at the last minute which might disrupt an expulsion for which they are already economically engaged. In the event that this does happen, or a court orders the delay of an expulsion for the purposes of a reconsideration of the facts, the pressure quickly to find another alien to fill the newly empty seat on the plane is also substantial. Time pressure is the enemy of a comprehensive consideration of the individual circumstances of an individual’s situation let alone an independent review.

562

Elspeth Guild

Article 20 Article 20 Equality Before the Law Everyone is equal before the law.

Text of Explanatory Note on Article 20 This Article corresponds to a general principle of law which is included in all European constitutions and has also been recognised by the Court of Justice as a basic principle of Community law (judgment of 13 November 1984, Case 283/83 Racke [1984] ECR 3791, judgment of 17 April 1997, Case C-15/95 EARL [1997] ECR I-1961, and judgment of 13 April 2000, Case C-292/97 Karlsson [2000] ECR 2737).

Select Bibliography There are few examples of an in-depth examination of Article 20 in the existing academic literature. There are, though, many publications that contain analysis of the general principle of equal treatment found in Article 20. Some examples include the following. A Dashwood and S O’Leary (eds), The Principle of Equal Treatment in EC Law (London, Sweet & Maxwell, 1997). E Ellis, EU Anti-Discrimination Law (Oxford, Oxford University Press, 2005). G More, ‘The Principle of Equal Treatment: from Market Unifier to Fundamental Right’ in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford, Oxford University Press, 1999) 517. L Waddington, ‘The expanding role of the equality principle in European Union law’ (2003/04) Policy Papers (Series on Constitutional Reform of the EU) (Florence, European University Institute, 2003) 11. J Wouters, ‘Constitutional Limits of Differentiation: the Principle of Equality’ in B de Witte, D Hanf, and E Vos (eds), The Many Faces of Differentiation in EU Law (Antwerp, Intersensia, 2001) 301.

A. Field of Application of Article 20 Although Article 20 is one of the most succinct provisions in the Charter, its field of 20.01 application is amongst the broadest. By proclaiming ‘everyone’ to be equal before the law, Article 20 potentially allows anyone to mount a challenge to any difference in treatment that arises in the activities of the Union’s institutions and other bodies, or within EU legislation and national implementing measures. Highly diverse areas of law can be touched by the principle of equality, and this is reflected in the existing case law of the Court of Justice on the general principle of equal treatment. Frequently, this case law concerns the differences of treatment that are inherent in the distribution of scarce

Part I – Commentary on the Articles of the EU Charter

social goods. A typical example is Karlsson and Others,1 which is cited in the explanations attached to Article 20. This case concerned three farmers in Sweden who were subject to milk quotas following the accession of Sweden to the EU. Mr Torarp had his milk quota withdrawn when it was discovered that he had ceased keeping milk cows, due to an accident he had suffered. His application for a new milk quota was denied, because there was a requirement to be continuously engaged in production. The difference in treatment here was between those who had continuously produced milk and those who had not. In a nuanced decision, the Court held that it was not, per se, contrary to the principle of equal treatment to require continuous production, because this prevented speculative acquisition of milk quotas with a view to selling the business (including the quota) to someone else.2 Evidently, public bodies are continuously making distributive decisions in areas such as employment (eg appointment, promotion, dismissal), social welfare (eg granting benefits), and healthcare (eg access to treatment). Even where the activity does not involve distributive choices, inequalities can arise in the operation of the law. EU criminal law is an obvious area where an individual might claim that her selection to be subjected to a police or judicial process reflected an unjustified difference of treatment. 20.02 Given the breadth of application of Article 20, it is not specifically connected to certain pieces of EU legislation. There is, of course, an obvious resonance between Article 20 and EU anti-discrimination legislation. As discussed below, this legislation seems to be even more closely linked to Articles 21 to 26 of the Charter. Nevertheless, Article 20 is not unlimited in its field of application, and it is circumscribed by Article 51 of the Charter. A difference of treatment without any apparent link to the scope of EU law will fall outside Article 20. An illustration is provided in Ministerul Justit‚iei s‚i Libert˘at‚ilor Cet˘at‚enes‚ti v Agafit‚ei and Others.3 The case concerned differences in treatment between certain types of public prosecutors that had consequences for their salaries. The Court of Justice described this as a difference of treatment based on socio-professional category, and rejected the preliminary reference as inadmissible. While the case did not concern the applicability of Article 20, it underscores the obvious point that there must be some connection between the difference of treatment and the scope of EU law, if the latter is to be engaged.

B. Interrelationship of Article 20 with Other Provisions of the Charter 20.03 As discussed above, issues relating to unequal treatment are likely to intersect with a wide range of other rights. A typical scenario is where a claimant might allege a breach of another Charter provision in combination with a claim of discrimination due to the nature of that breach. For example, Kamberaj concerned the restriction of housing

1 2 3

564

Case C-292/97 Karlsson [2000] ECR 2737. Ibid [57]. Case C-310/10 Ministerul Justit‚iei s‚i Libert˘at‚ilor Cet˘at‚enes‚ti v Agafit‚ei and Others (Judgment of 7 July 2011).

Mark Bell

Art 20 – Equality Before the Law

benefits for third country nationals.4 The referring court queried whether this was compatible with the rights to social security and social assistance found in Article 34 in combination with Article 21 on the right to non-discrimination. While Article 20 was not raised, it offers an example of the way in which equality rights interrelate with other provisions of the Charter. The lack of citation of Article 20 in Kamberaj brings to the fore the question of its 20.04 relationship to Article 21, as well as the other provisions located in the equality chapter of the Charter. Whereas Article 20 enounces a universalistic claim that ‘everyone is equal before the law’, Article 21 prohibits ‘any discrimination based on any ground’. This is accompanied by a non-exhaustive list of examples of prohibited grounds, such as sex or ethnic origin. Given that Article 21 is non-exhaustive in its prohibition of discrimination, this leaves considerable ambiguity over whether there is a distinction in the ambit or meaning of Articles 20 and 21. To date, the greatest focus of litigation and academic literature has been Article 21. 20.05 This is unsurprising. Article 21 clearly echoes Article 14 of the European Convention on Human Rights (ECHR) and the well-established body of Strasbourg case law under that provision. Moreover, Article 21 is directly connected to EU anti-discrimination legislation, namely the various Directives on discrimination on grounds of sex, racial or ethnic origin, religion or belief, disability, age, and sexual orientation.5 As a consequence, Article 21 has been invoked in high-profile litigation surrounding the interpretation of those Directives.6 In contrast, there has been less attention to the role to be played by Article 20. It is typically not cited in cases arising under EU anti-discrimination legislation. It seems artificial to construct a strict boundary between Articles 20 and 21. Whereas 20.06 the former sets out a general principle of equal treatment with wide-ranging application, the latter applies this in specific situations. In this view, Article 21 emerges as a type of lex specialis in contrast to the lex generalis found in Article 20. The distinction lies in the type of differences in treatment that each covers. As discussed above, Article 20 potentially applies to any situation where the law differentiates between categories in its application. This encompasses categories that are transient in nature with no wider social meaning, such as the distinction between those who were continuously involved in milk production and those who had discontinued milk production. Article 21 is more specifically focused upon important personal characteristics that often give rise to inequalities across different aspects of social life, such as employment, education, housing, healthcare, or access to services. Many of the characteristics mentioned in Article 21 are linked to well-known sources of social prejudice where there is a history of stigma and disadvantage. While the characteristics found in Article 21 are not all immutable in nature, they are often intrinsic to personal identity, such as religion or sexual orientation. Nevertheless, it must be acknowledged that this way of distinguishing between Articles 20 and 21 remains troubled by ambiguities. In particular, ‘property’ is included as a prohibited ground of discrimination in Article 21. Yet property is a much less

4

Case C-571/10 Kamberaj v IPES and Others (Judgment of 24 April 2012). For an overview, see E Ellis, EU Anti-Discrimination Law (Oxford, Oxford University Press, 2005); C Barnard, EU Employment Law, 4th edn (Oxford, Oxford University Press, 2012). 6 Eg Case C-555/07 Kücükdeveci v Swedex GmbH & Co KG (Judgment of 19 January 2010); Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres (Judgment of 1 March 2011). 5

Mark Bell

565

Part I – Commentary on the Articles of the EU Charter

stable feature of personal identity; individuals acquire (and lose) property throughout their lives. 20.07 The significance of distinguishing between Articles 20 and 21 only arises if there are different meanings attached to each provision. One possible explanation is that Article 21 identifies certain grounds of discrimination as particularly suspect and hence requiring a heightened level of judicial scrutiny in comparison to the general principle of equal treatment in Article 20. This dichotomy can be likened to the analysis of age discrimination by Advocate-General Sharpston. She has argued that irrational distinctions based on age were always captured by the general principle of equal treatment from the outset of Community law. Changed social attitudes led to a subsequent transition where distinctions based on age moved from ‘unthinking acceptance to focussed examination’.7 Accepting this dichotomy implies that some types of distinction are not caught by Article 21. This interpretation runs up against the apparently non-exhaustive list of prohibited grounds of discrimination. An interesting parallel can be found in the approach of the European Court of Human Rights (ECtHR) to its reading of Article 14 ECHR. While Article 14 is also non-exhaustive in its enumeration of prohibited discrimination grounds, the Strasbourg Court has placed limits on its ambit: Article 14 does not prohibit all differences in treatment but only those differences based on an identifiable, objective or personal characteristic, or ‘status’, by which persons or groups of persons are distinguishable from one another.8

20.08 If this interpretation were applied to Article 21, then arguably it would assist in identifying a zone where Article 20 applies, but Article 21 does not. To continue the original example, it seems unlikely that ad hoc distinctions between different types of milk producer would cross the threshold test created by the Strasbourg Court. Such distinctions would fall into the ambit of Article 20, but not Article 21.

C. Sources of Article 20 Rights I. ECHR 20.09 There are connections between Article 20 and Article 14 ECHR. The Strasbourg Court has adopted a broad definition of discrimination that is similar in nature to the formulation of the general principle of equal treatment adopted by the Court of Justice (discussed further in section D). As mentioned in the preceding section, it may be more appropriate to view Article 14 ECHR as paralleling Article 21 of the Charter. This view is reinforced by the Explanations attached to the Charter, which expressly link Article 14 ECHR to Article 21, but not Article 20. 20.10 Article 14 ECHR is now accompanied by Protocol 12, which created a free-standing general prohibition of discrimination (whereas Article 14 requires a connection between 7 Case C-427/06, Bartsch v Bosch und Siemens Hausgeräte Altersfürsorge GmbH [2008] ECR I-7245 [58], Opinion of Advocate-General Sharpston. See also Case C-227/04 P Lindorfer v Council [2007] ECR I-6767 [58], Opinion of Advocate-General Sharpston. 8 Kiyutin v Russia App no 2700/10 (10 March 2011) [56].

566

Mark Bell

Art 20 – Equality Before the Law

the alleged discrimination and another provision of the ECHR). Although Protocol 12 is similar in language to Article 14 ECHR, its preamble refers to ‘the fundamental principle according to which all persons are equal before the law and are entitled to the equal protection of the law’. This is very similar to the language found in Article 20 of the Charter, although it should be noted that the Strasbourg Court has confirmed that the meaning of discrimination under Protocol 12 is identical to that under Article 14 ECHR.9

II. UN Treaties Equality before the law is a principle contained, in varying forms, within all the princi- 20.11 pal UN human rights treaties. Space does not permit a detailed analysis of each, but they draw inspiration from Article 7 of the Universal Declaration of Human Rights: ‘all are equal before the law and are entitled without any discrimination to equal protection of the law’. This sentiment is reflected in the International Covenant on Civil and Political Rights10 and the International Covenant on Economic, Social and Cultural Rights.11 A commitment to equality before the law can also be found within the specialised treaties on equality and discrimination.12

III. Council of Europe Treaties As with the UN treaties, there are a variety of Council of Europe instruments that 20.12 include a commitment to equality before the law. This is stated expressly within the Framework Convention on National Minorities: ‘the Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law’.13 The Revised European Social Charter contains a horizontal clause prohibiting discrimination in ‘the enjoyment of the rights set forth in this Charter’.14

IV. Other Sources While there are an array of international instruments that could have been cited as 20.13 inspirations for Article 20, in fact the Explanations attached to the Charter refer only to two sources: national constitutions and the general principles case-law of the Court of Justice. The Explanations proclaim that equality before the law is ‘a principle of law which 20.14 is included in all European constitutions’. For those with written constitutions, it is

9

Sejdic and Finic v Bosnia and Herzegovina [GC] App nos 27996/06 and 34836/06 (22 December 2009) [55]. Specifically in Art 26, but also elsewhere, eg Art 14(1). 11 Art 2(2). 12 Art 5, International Convention on the Elimination of All Forms of Racial Discrimination; Art 2, Convention on the Elimination of All Forms of Discrimination Against Women; Art 5(1), Convention on the Rights of Persons with Disabilities. 13 Art 4(1). 14 Art E. 10

Mark Bell

567

Part I – Commentary on the Articles of the EU Charter

true that equality clauses are common, albeit expressed in slightly different terms. The wording found in Article 20 of the Charter approximates closely to Article 3(1) of the German Constitution. Notably, some constitutions only declare ‘citizens’ to be equal before the law,15 in contrast to the universal language (‘everyone’) found in the Charter. In some, qualification of the equality principle is only implicit, while in others potential restrictions are more overt. For example, Article 1 of the Dutch Constitution states that ‘all persons in the Netherlands shall be treated equally in equal circumstances’.16 A textual comparison of constitutional equality clauses is, though, merely a superficial exercise; the essence of what these mean in each national context demands a more detailed investigation of national constitutional law. It is, though, rare for the Court of Justice to engage in detailed examination of national constitutional case-law relating to the principle of equality. Given that equality before the law is a common constitutional tradition, it is unsur20.15 prising that this is firmly embedded within the case law of the Court of Justice on the general principles of EU law. Many cases have cited the existence of a general principle of equal treatment, which has been applied across a broad spectrum of EU law.17 In a variety of cases, the Court and its Advocates-General have confirmed that the general principle of equal treatment is now enshrined in Article 20 of the Charter.18 In this respect, the main message emerging from the Court to date seems to be one of continuity; Article 20 represents a crystallisation of the unwritten general principle of equal treatment. So although there are other points of reference, such as international treaties or national constitutions, the predominant influence appears to be the Court’s own well-worn case law on the general principle of equal treatment.

D. Analysis I. General Remarks 20.16 From the above discussion, it can be seen that ‘equality before the law’ is a norm that commands widespread support in national and international legal instruments, as well as being a transversal principle that can be applied across many different fields of law. While the consensus surrounding the core idea facilitates its broad applicability, there is a lingering fuzziness about how the principle should be applied in a specific case. The remainder of this section focuses on fleshing out the meaning attached the principle.

15

Eg Art 3, Constitution of the Italian Republic; Art 40(1), Constitution of Ireland. Translation of the Constitution of the Kingdom of the Netherlands 2002 published by the Ministry of the Interior and Kingdom Relations: http://legislationline.org/documents/section/constitutions. 17 G More, ‘The Principle of Equal Treatment: from Market Unifier to Fundamental Right’ in P Craig and G de Búrca (eds), The Evolution of EU law (Oxford, Oxford University Press, 1999) 517. 18 Eg Case C-21/10 Nagy v Mezgazzdasági és Vidékfejlesztési Hivatal (Judgment of 21 July 2011) [47]; Case C-550/07 P Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v Commission (Judgment of 14 September 2010) [54]; Case C-208/09 Sayn-Wittgenstein v Landeshauptmann von Wien (Judgment of 22 December 2010) [89]; Case C-566/10 P Italy v Commission (21 June 2012) [89] Opinion of Advocate-General Kokott; Case C-174/11 Finanzamt Steglitz v Zimmerman (19 July 2012) [60] Opinion of Advocate-General Mazák. 16

568

Mark Bell

Art 20 – Equality Before the Law

II. Scope of Application Article 20 provides that ‘everyone’ is equal before the law. In terms of personal scope, 20.17 this clearly covers differences in treatment between natural persons. For example, in Zoi Chatzi,19 the Court of Justice invoked Article 20 when considering the rules surrounding parental leave entitlement in respect of parents of twins compared with parents whose children are not born simultaneously. It appears from the case law that the principle can be applied to differences of treatment between persons in their professional capacity or legal persons. In Akzo Nobel Chemicals,20 the Court cites Article 20 in relation to a distinction in the application of legal professional privilege between correspondence with in-house lawyers and that with external lawyers. Article 20 has also been applied to differences in the procedures applicable to different types of farmers with regard to awarding public funding.21 Advocate-General Mazák relied upon Article 20 in a case concerning the criteria applied in Germany for VAT exemption, where this distinguished between different types of provider of out-patient care.22 Admittedly, none of these cases consider purely corporate organisations and in each identifiable natural persons could be identified. This is slightly different to some earlier cases under the general principle of equal treatment; for example, a challenge from the European Low Fares Airline Association to the rules on compensating passengers for delay or cancellation of flights.23 Nevertheless, the existing cases do not suggest that legal persons cannot invoke Article 20. In contrast, the use of the word ‘everyone’ in Article 20 would seem to be a stumbling block to disputes that purely related to differences in the treatment of goods or services. Such cases are not unusual in EU agricultural law or EU internal market law,24 although even here, Article 20 might be relevant insofar as any distinction impacted upon the business interests of legal persons.25 Another issue relating to the scope of application concerns the possibility for Member 20.18 States to invoke Article 20 vis-à-vis the EU institutions and other Member States. Wouters notes that although this issue has rarely reached the Court of Justice, sovereign equality between states is a general principle of international law and it can be seen in the constitutional architecture of the Union (such as the representation of all states in the key EU institutions).26 This notion is particularly salient in the light of the financial crisis, which has created new relationships of dependence for those states that have had recourse to EU financial assistance. In a case pending before the Court of Justice, Advocate-General Kokott was disposed to apply Article 20 in a similar context.27 The

19

Case C-149/10 Zoi Chatzi v Ipourgos Ikonomikon (Judgment of 16 September 2010) [63]. Akzo Nobel Chemicals (n 18) [54]. 21 Nagy (n 18) [47]. 22 Zimmerman (n 18) [60]. 23 Case C-344/04 R (on the application of International Air Transport Association and European Low Fares Airline Association) v Department for Transport [2006] ECR I-403. The airlines argued that it was contrary to equal treatment to apply these rules only to the airline sector and not to other modes of transport; this was rejected by the Court of Justice. 24 G de Búrca, ‘Unpacking the Concept of Discrimination in EC and International Trade Law’ in C Barnard and J Scott (eds), The Law of the Single Market (Oxford, Hart Publishing, 2002) 183. 25 Eg Case 114/76 Bela-Mühle Josef Bergmann KG v Grows-Farm GmbH & Co KG [1977] ECR 1211. 26 J Wouters, ‘Constitutional Limits of Differentiation: the Principle of Equality’ in B de Witte, D Hanf, and E Vos (eds), The Many Faces of Differentiation in EU Law (Antwerp, Intersentia, 2001) 301, 315. 27 Case C-566/10 P Italy v Commission (Opinion of 21 June 2012). 20

Mark Bell

569

Part I – Commentary on the Articles of the EU Charter

case concerned the publication of recruitment notices on behalf of the Commission where there was a requirement to have a thorough knowledge of one of the EU official languages and satisfactory knowledge of either English, French or German. Italy argued that the requirement relating to knowledge of these three languages breached the principle of multilingualism, reflected in Article 22 of the Charter. Significantly, Advocate-General Kokott took the view that this had to be read ‘in conjunction’ with the principle of equal treatment found in Article 20.28 While ‘equal opportunity’ militated in favour of using all EU official languages, this could be constrained by the need for ‘efficient internal communications’.29 In that regard, she argued that English, French and German were sufficiently different from other languages because of their widespread usage as second languages, and this meant that treating them differently was not contrary to the principle of equal treatment. From the perspective of Article 20, this case suggests that ‘equality before the law’ can be applied in respect of issues that pertain to the equality of Member States within the EU institutional system.

III. Specific Provisions 20.19 Advocate-General Ruiz-Jarabo described ‘equality before the law’ as an ‘abstract concept’.30 This reflects the indeterminacy of the norm and Westen’s famous critique of the ‘empty idea of equality’.31 Equality is traditionally viewed as a relational concept; this assumes that whether an individual, or a group, is being treated equally can only be assessed by looking at how others are treated. Yet the fact that others may be receiving different treatment does not, in itself, indicate a violation of the principle of equality. If, for example, the state provides financial assistance to disabled people in order to help in meeting additional costs relating to travelling, not providing such assistance to nondisabled persons would not, prima facie, breach the principle of equality before the law. On the other hand, if the state grants a mobility allowance to wheelchair users but not to those who are visually impaired, then there might be a breach of the principle as arguably visually impaired persons may also incur obstacles that lead to additional travelling costs. Trying to unravel the knotty question of when persons should be treated in the same way or differently lies at the heart of the equality principle. Through its prodigious case-law on the general principle of equal treatment, the 20.20 Court of Justice has formulated a consistent definition of this concept. In 2007, it used the same definition when considering the meaning of equality under Article 20 of the Charter: The principle of equality and non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified.32

28

Ibid [88]. Ibid [93]–[94]. 30 Case C-303/05 Advocaten voor de Wereld VZW v Leden van de Ministerraad [2007] ECR I-3672 [88] (Opinion of 12 September 2006). 31 P Westen, ‘The Empty Idea of Equality’ (1982–83) 95 Harvard Law Review 537. 32 Case C-303/05 Advocaten voor de Wereld VZW v Leden van de Ministerraad [2007] ECR I-3672 [56]. See also ibid [46], where the Court cites Art 20 of the Charter. 29

570

Mark Bell

Art 20 – Equality Before the Law

This expression is often described as reflecting the Aristotelian idea that ‘likes should be treated alike’.33 It is criticised for its tendency to lead to an emphasis on formal equality and the sameness of treatment, without tackling the root causes of inequality.34 This is connected to the pivotal question of what constitutes a ‘comparable situation’. If no suitable comparator can be located, then an equality claim falls at the first hurdle. For example, in Österreichischer Gewerkschaftsbund,35 workers were entitled to a payment on the termination of their employment dependent upon their length of service. In calculating length of service, periods of voluntary parental leave were not taken into account, yet periods of leave for military service were included. When challenged, the Court of Justice held that men taking military service were not in a comparable position to women taking parental leave, on the basis that military service was compulsory, while parental leave was voluntary. Consequently, a claim that this rule discriminated against women foundered on the stumbling block of the comparator test. Cases such as the above illustrate how formal equal treatment can be superficial in its analysis of whether the rule perpetuates inequality. Academic scholars have criticised the way in which formal equal treatment can be used to legitimise social and legal practices that reproduce disadvantage.36 Formal equal treatment leans in favour of assimilation to the pre-existing social order.37 In the above case, the underlying message is that women could only receive equality in termination payments by conforming to male patterns of life where leave is taken for military purposes rather than caring responsibilities. The comparator test is also problematic due to inconsistencies in the way in which it is applied. It is difficult to identify any objective yardstick or coherent legal doctrine that determines when situations will be deemed to be comparable. This has been acknowledged by Advocate-General Sharpston: ‘it is therefore clear that the criteria of relevant resemblances and differences vary with the fundamental moral outlook of a given person or society’.38 In a detailed analysis of how ‘age’ has been treated by equality law, she frankly recognised that our sense of what constitutes a relevant or irrelevant difference depends on a host of value judgements that are culturally and historically contingent.39 This fluidity draws into question the supposedly objective nature of the principle of equal treatment and exposes the degree to which the application of the principle necessarily entails a subjective evaluation on the part of the judiciary. As such, it can be difficult to predict how the comparator test will be applied to a given set of facts. While there are plenty of examples in the law reports, these do not provide easy roadmaps for future litigants. Two examples will suffice to give some indication of the way in which judicial reasoning has been applied. First, in Akzo Nobel Chemicals, a Commission competition law

33 D Schiek, ‘Torn between arithmetic and substantive equality? Perspectives on equality in German labour law’ (2002) 18 International Journal of Comparative Labour Law and Industrial Relations 149, 150. 34 Eg S Fredman, Discrimination Law, 2nd edn (Oxford, Oxford University Press, 2011) 11. 35 Case C-220/02 Österreichischer Gewerkschaftsbund, Gewerkschaft der Privatangestellten v Wirtschaftskammer Österreich [2004] ECR I-5907. The case concerned alleged sex discrimination in pay under former Art 141 EC (now Art 157 TFEU). 36 L Betten, ‘New Equality Provisions in European Law: Some Thoughts on the Fundamental Value of Equality as a Legal Principle’ in J Bridge et al (eds), Fundamental Values (Oxford, Hart Publishing, 2000) 69. 37 Fredman (n 34) 12. 38 Bartsch (n 7) [44]. 39 Ibid [45].

Mark Bell

571

20.21

20.22

20.23

20.24

Part I – Commentary on the Articles of the EU Charter

investigation led to the seizure of some emails between the company’s Director General and one of its in-house lawyers. The firm insisted that these should be covered by legal professional privilege in the same way in which correspondence with an external lawyer would be treated. The Court of Justice, however, held that in-house and external lawyers were not comparable for the purposes of Article 20 of the Charter. While in-house lawyers have the same professional ethical obligations as external lawyers, the Court felt that the economic dependence resulting from their employment relationship placed them in a ‘fundamentally different position from external lawyers’.40 20.25 Secondly, the European Low Fares Airline Association argued that they were not comparable to other airlines and that it was a breach of the principle of equal treatment to apply to them the same rules on compensation for passengers without regard to the type of service that each airline sought to offer to its customers.41 This was rejected by the Court of Justice, which felt that the relevant consideration was the nature of the damage suffered by the passenger and in this respect low fares airlines were comparable to other types of airlines.42 These examples illustrate the extent to which determining what constitutes a comparable situation remains highly dependent on the facts of the specific case. While the Court’s definition of equal treatment most frequently equates to the con20.26 cept of formal equality, it is important to acknowledge that it is not limited to treating likes alike. The other side of the coin is a requirement to treat different situations differently. By itself, this does not necessarily lead to a more progressive concept of equality. The supposedly different nature of, for example, same-sex couples can become an alibi for the perpetuation of inequality. Nevertheless, different treatment of different situations can be harnessed as a mechanism to recognise that situations that appear to be similar on the surface are, in fact, different in practice.43 An alternative reading of the facts in the Österreichischer Gewerkschaftsbund case could have concluded that although the rule appeared to be gender neutral (ie parental leave was discounted from length of service whether taken by men or women), in social reality, taking parental leave is often not a free ‘choice’ for women, as confirmed by the statistics that showed that 98 per cent of parental leave was taken by women.44 A promising example of the Court using Article 20 in a more nuanced fashion can 20.27 be found in Zoi Chatzi. The case concerned the entitlement to parental leave in respect of the birth of twins. The Court rejected the argument that the Parental Leave Directive should be interpreted as conferring an entitlement in respect of each child born, rather than in respect of each birth.45 This meant that parents of twins would only be entitled to three months’ leave in respect of their twins, whereas parents who had two children in succession would acquire an entitlement to six months’ leave under the Directive (ie three months in respect of each birth). Nevertheless, the Court went on to consider whether this was consistent with Article 20 of the Charter. It concluded that parents of

40

Akzo Nobel Chemicals (n 18) [58]. R (on the application of International Air Transport Association and European Low Fares Airline Association) (n 23) [94]. 42 Ibid [98]. 43 Cf Thlimmenos v Greece [2000] Reports of Judgments and Decisions 2000-IV (ECtHR). 44 Österreichischer Gewerkschaftsbund (n 35) [24]. 45 Zoi Chatzi (n 19) [40] and [61]. 41

572

Mark Bell

Art 20 – Equality Before the Law

twins were not in a comparable situation to those raising a single child and, as a result of this ‘specific situation’, national schemes of parental leave needed to be adjusted to take account of the ‘particular needs’ of parents of twins.46 The contribution of this judgment to advancing equality should not be over-stated. The Court stepped timidly as regards what adaptation of the parental leave regime is required for parents of twins; this was left to the national legislature, which was accorded a ‘wide freedom of action’.47 Perhaps, therefore, the most significant aspect of the case lies in the Court’s willingness to examine this issue through the lens of different situations requiring different treatment and using that to seek (very gently) an enhancement of the social provision for parents of twins. Moreover, it is also striking that the Court did so under the auspices of Article 20 of the Charter, rather than Article 21.

IV. Limitations and Derogations There are no express limitations found within Article 20, but the definition of equal 20.28 treatment adopted by the Court of Justice (see section D.III) provides for the possibility to provide objective justification of departures from equal treatment. The flexibility of the objective justification test will have to be read in the light of Article 52(1) of the Charter, which provides that ‘limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union’. As described earlier, Article 20 can be applied to highly diverse issues. Its capacity to 20.29 regulate such disparate fields rests on its inherent malleability. McCrudden argues that, in this guise, equality is interpreted as mere rationality.48 It acts as a brake on public bodies from acting in an arbitrary or inconsistent manner. This gives it the capacity to be applied to any form of differentiation, even though the categories concerned may have no wider social significance, such as distinctions between different types of agricultural producer. The corollary of this sweeping scope is a generous margin of discretion for the justification of unequal treatment. If the courts are only concerned with ensuring that a public body has not acted irrationally, the level of judicial scrutiny applied can be rather light. This is certainly evident in the approach of the Court of Justice to equal treatment issues that relate to public policy choices, especially in relation to economic regulation.49 Yet there are some situations where the Court adopts a stricter standard of scrutiny, notably in relation to employment law. Broadly speaking, therefore, two approaches can be identified in the Court’s application of the justification test. The first approach demonstrates a high level of judicial deference in the application 20.30 of the principle of equal treatment. An example of this can be found in a challenge to the EU’s greenhouse gas emissions trading scheme.50 This was initially applied to the steel industry, but not to the plastics and aluminium sectors. The Court of Justice accepted 46

Ibid [68] and [71]. Ibid [71]. 48 C McCrudden, Buying Social Justice—Equality, Government Procurement, and Legal Change (Oxford, Oxford University Press, 2007) 513. 49 P Craig and G de Búrca, EU Law—Text, Cases and Materials, 5th edn (Oxford, Oxford University Press, 2011) 551–53. 50 Case C-127/07 Société Arcelor Atlantique et Lorraine and Others v Premier Ministre and Others [2008] ECR I-9895. 47

Mark Bell

573

Part I – Commentary on the Articles of the EU Charter

that these producers were in a comparable situation because the greenhouse gases emitted by each were equally damaging to the climate.51 As regards the potential justification for the different treatment of similarly situated economic sectors, the Court held: in the exercise of the powers conferred on it the Community legislature has a broad discretion where its action involves political, economic and social choices and where it is called on to undertake complex assessments and evaluations … However, even where it has such a discretion, the Community legislature is obliged to base its choice on objective criteria appropriate to the aim pursued by the legislation in question … taking into account all the facts and the technical and scientific data available at the time of adoption of the act in question.52

20.31 On the facts, the Court accepted that the creation of an emissions trading scheme was sufficiently complex to warrant a gradual expansion of its activities and that commencing with the steel industry was based upon statistical evidence that demonstrated much higher levels of carbon dioxide emissions from this industry compared to those from the chemical and non-ferrous metal sectors.53 The Court’s approach to the standard for judicial review conforms to the idea of equality as rationality. It is concerned to ensure that the legislature has acted for objective rather than subjective reasons, and that there is scientific data that supports the course of action taken. In essence, once the Court was assured that treating the steel industry differently was not an arbitrary or wholly irrational choice, then it was not in breach of the principle of equal treatment. 20.32 Light touch judicial scrutiny is even more starkly in evidence in an early challenge to the European Arrest Warrant.54 One of the traditional obstacles to extradition was the application of a requirement of ‘double criminality’; it needed to be established that the offence in respect of which the request for extradition had been issued was contrary to the criminal law of both the requesting state and the surrendering state. The European Arrest Warrant established a list of 32 offences where states would not apply the principle of double criminality as long as the offence was punishable in the requesting state by a maximum sentence of at least three years’ detention.55 The Court of Justice was asked to consider whether there was a breach of the general principle of equal treatment in the differentiation made between the 32 listed offences and those that were not listed. In a curt response, the Court skips over the question of whether offences inside and outside the list were comparable, concluding that even if they were comparable, the distinction was objectively justified.56 In supporting this finding, the Court cites the ‘view’ of the Council that ‘the categories of offences in question feature among those the seriousness of which in terms of adversely affecting public order and public safety justifies dispensing with the verification of double criminality’.57 The Court’s willingness to accept at face value the appropriateness of the political choice of the Council indicates that, in some cases, establishing objective justification is far from demanding.

51

Ibid [34]. Ibid [57]–[58]. 53 Ibid [52]. 54 Case C-303/05 Advocaten voor de Wereld VZW (n 32). 55 Art 2(2), Council Framework Decision (EU) 2002/584 on the European arrest warrant and the surrender procedures between Member States [2002] OJ L190/1. 56 Case C-303/05 (n 32) [58]. 57 Ibid [57]. 52

574

Mark Bell

Art 20 – Equality Before the Law

The second approach evident in the Court’s case law on the justification test finds 20.33 it applied with more rigour. This is well-established in relation to differences of treatment based on personal characteristics, such as sex, where the general principle of equal treatment is complemented by detailed EU anti-discrimination legislation. As discussed earlier, such cases are now more frequently addressed under the auspices of Article 21 of the Charter. There are, though, other forms of unequal treatment where the Court has also been disposed to apply a stricter standard of objective justification. This seems particularly evident in relation to unequal treatment of different categories of workers. In Cordero Alonso,58 the Spanish guarantee fund dealing with the liabilities of insolvent employers covered payments due to workers in respect of judicially awarded compensation for dismissal, but not where such compensation arose from a judicial conciliation process. The Spanish Constitutional Court had previously held that such workers were not in a comparable situation, so there was no breach of the principle of equal treatment in Spanish constitutional law.59 Nevertheless, the Court of Justice reached the opposite conclusion and held that these were comparable situations and there was no objective justification for such a difference in treatment.60 The impression that the Court applies a stricter standard of scrutiny in employment relations is even more evident in its emerging case law on equal treatment of atypical workers. When considering EU Directives on part-time and fixed-term work, it has characterised their provisions on non-discrimination as ‘merely a particular expression of a fundamental principle of Community law, namely the general principle of equality’.61 Based on this constitutional foundation, the Court has emphasised the need for careful scrutiny of any departures from the principle of equal treatment. In particular, it has rejected the idea that a ‘general, abstract national norm’ can constitute sufficient justification, even if enshrined in law or within a collective agreement.62 The approach to objective justification in this context seems to be more penetrating than a simple assessment of whether the distinction conforms to a basic sense of rationality.

V. Remedies Given the diverse fields of law to which the principle of equal treatment can be applied, 20.34 the applicable remedies are likely to depend on the context of the case. In some cases, Article 20 may be invoked as a ground for judicial review of a legislative act, such as the greenhouse gas emissions trading scheme or the European Arrest Warrant. In such cases, the remedy could be annulment of the legislative act, or an element thereof.63 Other cases are likely to concern the denial of a benefit to a specific individual, such as an agricultural grant, where the remedy may entail a reconsideration of the original decision, rather than an annulment of the underpinning legal act. One difficulty

58

Case C-81/05 Cordero Alonso v Fondo de Garantía Salarial [2006] ECR I-7569. Ibid [23]. 60 Ibid [40]. See also Case C-442/00 Rodríguez Caballero v Fogasa [2002] ECR I-11915. 61 Case C-313/02 Wippel v Peek & Cloppenburg GmbH & Co KG [2004] ECR I-9483 [56]. See also Case C-307/05 Del Cerro Alonso v Osakidetza-Servicio Vasco de Salud [2007] ECR I-7109 [27]. 62 Del Cerro Alonso (n 61) [57]. 63 Cf Test-Achats (n 6). 59

Mark Bell

575

Part I – Commentary on the Articles of the EU Charter

in determining the remedies for unequal treatment lies in whether the solution is ‘levelling-up’ or ‘levelling-down’. If, for example, a scheme for awarding agricultural grants is deemed to breach the principle of equal treatment because of the exclusion of certain types of producers,64 then formal equal treatment will normally leave open the possibility that the situation is remedied by removing the benefit from the existing beneficiaries.65 This creates the risk that applying equal treatment is perceived as socially regressive if it leads to the retrenchment of social benefits. In this regard, a potential response is to combine Article 20 with other provisions of the Charter, such as Article 34 on social security. Remedying breaches of Article 20 must also be compatible with protection of the substantive rights found elsewhere in the Charter. In some cases, Article 20 may be invoked in conjunction with EU secondary legisla20.35 tion, such as Zoi Chatzi, which engaged the EU Directive on Parental Leave.66 In these instances, the secondary legislation may provide greater specificity on the quality and nature of the remedies to be provided within national law. For example, in relation to gender equality legislation, there is a requirement for ‘real and effective compensation or reparation’.67

E. Evaluation 20.36 The view adopted by the Court of Justice is that the general principle of equal treatment is now ‘enshrined’ in Article 20 of Charter. That outlook is consistent with the Explanations attached to the Charter and it suggests a seamless continuity between the position pre and post Charter. If Article 20 is simply a codification of the unwritten general principle, then its novelty is fairly faint. Two issues emerge as key future questions surrounding the Court’s reading of Article 20: first, its relationship with Article 21; and second, the intensity of judicial review to be applied. Whereas the general principle of equal treatment was an umbrella for all types of 20.37 distinction, the Charter creates a bifurcation between Articles 20 and 21. This is not a mutually exclusive relationship; there is no reason in principle why Article 20 could not be applied to any of the discrimination grounds found in Article 21. Yet the emerging tendency of the Court is to cite Article 21 in cases relating to the protected personal characteristics listed in that provision, while Article 20 is more commonly cited in relation to other differences of treatment. This distinction is undoubtedly connected to the standard of scrutiny to be applied when assessing objective justification. Article 21 identifies ‘suspect’ categorisations that will often receive intense judicial scrutiny for

64

Eg Case C-152/09 Grootes v Amt für Landwirtschaft Parchim (Judgment of 11 November 2010). Eg Case C-200/91 Coloroll Pension Trustees v Russell and Others [1994] ECR I-4389 [33]. This is circumscribed by the duty to extend the benefit to the currently disadvantaged category until such time as the benefit is removed or amended for all persons: Case C-401/11 Soukupová v Ministerstvo zemedelství (23 October 2012) [66] Opinion of Advocate-General Jääskinen. 66 Zoi Chatzi (n 19). 67 Art 18, Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation [2006] OJ L204/23. 65

576

Mark Bell

Art 20 – Equality Before the Law

potential discrimination, even if some grounds seem more suspect than others (such as ethnic origin compared to property). If Article 20 becomes, de facto, a residual provision for dealing with other types 20.38 of distinction, including those of a purely transient nature, then that might lead the Court to apply a lower intensity of judicial scrutiny. This inclination can be particularly witnessed in cases seeking judicial review of EU legislation, where the Court seems reluctant to displace complex public policy choices due to an alleged infringement of the principle of equal treatment.68 Yet there are signs that the Court is willing to intensify judicial scrutiny in relation to differences of treatment that inter-relate with the personal characteristics found in Article 21. Notably, the Court’s deployment of Article 20 in Zoi Chatzi as the basis for requiring reasonable adjustments to parental leave regimes to meet the specific needs of parents of twins demonstrates the possibility to move away from a concept of equal treatment that focuses on sameness and assimilation. By giving greater weight to the need to ensure different treatment in response to different situations, there is the capacity to elaborate a more transformative understanding of equality.

68 The Test-Achats case is a notable example of judicial reversal of a choice of the legislature, but this was based on Arts 21 and 23 of the Charter.

Mark Bell

577

Article 21* Article 21 Non-Discrimination 1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. 2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those treaties, any discrimination on grounds of nationality shall be prohibited.

Text of Explanatory Note on Article 21 Paragraph 1 draws on Article 13 of the EC Treaty, now replaced by Article 19 of the Treaty on the Functioning of the European Union, Article 14 of the ECHR and Article 11 of the Convention on Human Rights and Biomedicine as regards genetic heritage. In so far as this corresponds to Article 14 of the ECHR, it applies in compliance with it. There is no contradiction or incompatibility between paragraph 1 and Article 19 of the Treaty on the Functioning of the European Union which has a different scope and purpose: Article 19 confers power on the Union to adopt legislative acts, including harmonisation of the Member States’ laws and regulations, to combat certain forms of discrimination, listed exhaustively in that Article. Such legislation may cover action of Member State authorities (as well as relations between private individuals) in any area within the limits of the Union’s powers. In contrast, the provision in Article 21(1) does not create any power to enact anti-discrimination laws in these areas of Member State or private action, nor does it lay down a sweeping ban of discrimination in such wide-ranging areas. Instead, it only addresses discriminations by the institutions and bodies of the Union themselves, when exercising powers conferred under the Treaties, and by Member States only when they are implementing Union law. Paragraph 1 therefore does not alter the extent of powers granted under Article 19 nor the interpretation given to that Article. Paragraph 2 corresponds to the first paragraph of Article 18 of the Treaty on the Functioning of the European Union and must be applied in compliance with that Article.

Select Bibliography M Bell, ‘The Principle of Equal Treatment: Widening and Deepening’ in P Craig and G de Búrca (eds), The Evolution of EU Law, 2nd edn (Oxford, OUP, 2011) 611. G de Búrca, ‘Stumbling into Experimentalism: the EU Anti-Discrimination Regime’ in CF Sabel and J Zeitlin (eds), Experimental Governance in the European Union: Towards a New Architecture (Oxford, OUP, 2010) 215. * The author is grateful to Tammy Hervey and Steve Peers, in their role as editors of the commentary, for their detailed and helpful comments. She also wishes to thank Bruno de Witte for discussions and helpful comments on a draft.

Part I – Commentary on the Articles of the EU Charter

M De Mol, ‘The Novel Approach of the CJEU on the Horizontal Direct Effect of the EU Principle of Non-Discrimination: (Unbridled) Expansionism of EU Law?’ (2011) 18 Maastricht Journal 109. K Groenendijk, ‘Citizens and Third-Country Nationals: Differential Treatment or Discrimination’ in J-Y Carlier and E Guild (eds), L’avenir de la libre circulation des personnes dans l’UE (Brussels, Bruylant, 2006) 79. C Hublet, ‘The Scope of Article 12 of the Treaty of the European Communities vis-à-via Thirdcountry Nationals: Evolution at Last?’ (2009) 15 European Law Journal 757. C Kilpatrick, ‘The Court of Justice and Labour Law in 2010: A new EU Law Discrimination Architecture’ (2011) 40 Industrial Law Journal 280. E Muir, ‘Of Ages in—and Edges of—EU Law’ (2011) 48 Common Market Law Review 39. R O’Connell, ‘Cinderella Comes to the Ball: Article 14 and the Right to Non-discrimination in the ECHR’ (2009) 29 Legal Studies 211. S Peers, ‘Implementing Equality? The Directive on long-term resident third-country nationals’ (2004) 29 European Law Review 437. D Schiek and A Lawson (eds), EU Non-Discrimination Law and Intersectionality—Investigating the Triangle between Racial, Gender and Disability Discrimination (Aldershot, Ashgate, 2011). I Solanke, ‘Putting Race And Gender Together: A New Approach to Intersectionality’ (2009) 72 Modern Law Review 723. C Tobler, ‘Case-note on Test-Achats’ (2011) 48 Common Market Law Review 2041. P Watson, ‘Equality, fundamental rights and the limits of legislative discretion: comment on Test-Achats’ (2011) 36 European Law Review 896–904.

A. Field of Application of Article 21 21.01 Article 21 has two limbs, a status discrimination limb (Art 21(1)) and a nationality discrimination limb (Art 21(2)). Although nationality can also be viewed as a status ground, the very two-limb structure of Article 21 of the Charter, whereby nationality discrimination is treated separately, and differently, from discrimination on other status grounds, signals the distinctive contours nationality discrimination has been given in the EU. In order to highlight and interrogate that difference, all the grounds other than nationality will be referred to as ‘status discrimination’, covered by Article 21(1), whilst nationality discrimination, covered separately in Article 21(2), will be considered as a special category in EU law. Nonetheless, their juxtaposition can open new interpretative channels between the grounds and across the two limbs. This is exemplified by Advocate-General Kokott’s Opinion in Italy v Commission, where she sustains that the prohibition of discrimination on grounds of language in Article 21(1) is an expression of the general prohibition on discrimination on grounds of nationality.1 21.02 Both limbs of Article 21 place considerable emphasis on delimiting their fields of application. However, it can see seen that for Article 21(1) these limitations are set out only in the Explanations, whilst for Article 21(2) they are primarily contained in the Charter text itself. Whether this makes a difference depends on how the Explanations mesh with the horizontal provisions of the Charter, an issue we turn to later.2

1 2

580

Case C-566/10 P Italy v Commission (Judgment of 27 November 2012, Grand Chamber) [77]. Below section IV.

Claire Kilpatrick

Art 21 – Non-Discrimination

Article 21(1) links to the large body of EU equality and anti-discrimination legislation on a range of status grounds (race, gender, sexual orientation, disability, religion and belief and age).3 This large body of legislation, mainly contained in directives,4 is required to be transposed at national level. Much of that legislation has been adopted under the anti-discrimination legal basis added by the Treaty of Amsterdam (now Art 19 TFEU) in addition to the specific legal basis for some of the gender equality provisions (Art 157(3) TFEU). Yet Article 21(1) EUCFR is expressed in much more expansive terms than these legal bases, in two different ways. First, it expressly names many more status grounds than those covered in the TFEU’s legal bases: to give two examples, genetic features and membership of a national minority. Second, through its use of the phrase ‘such as’, Article 21(1) EUCFR creates an open-ended rather than a closed list of status discrimination grounds, so that it can extend to any ground of status discrimination. For that reason, the Explanations place extended emphasis on stressing that Article 21(1) does not extend the field of application of EU law. It neither provides a legal basis to adopt EU legislation nor a basis for striking down national legislation which does not implement EU law. Rather, it provides a basis to review acts of EU institutions and bodies when they are exercising powers conferred under the treaties. The stance taken in the Explanations would mean, for example, that a challenge to a national law distinguishing on the basis of genetic features could not be taken on the basis of Article 21(1), in the absence of a relevant link to EU law, nor could it provide the basis for a piece of EU legislation outlawing discrimination concerning genetic features. However, a challenge to discrimination against an EU staff member on the basis of genetic features could be.5 Of course, in relation to Member State action, even taking the relevant test to be that the Member State is ‘implementing’ EU law still leaves a wide range of situations which could fall within the scope of the status discrimination provisions of the Charter. Imagine for instance access to cross-border health care using the Patients Rights’ Directive6 being denied on grounds of morbid obesity (either covered by disability or as a non-enumerated ground). Article 21 EUCFR would be engaged. Moreover, the Court of Justice has recently stated that where EU law applies, the Charter does too, refusing to distinguish between a narrower option of ‘implementing EU law’ for Charter applicability and a broader sphere of ‘falling within the scope of EU law’. Hence, national law

3 See, in particular, Directive 2000/43/EC [2000] OJ L180/22 (the Race Equality Directive, or RED); Directive 2000/78/EC [2000] OJ L303/16 (the Framework Equal Treatment Directive, or FETD); Directive 2004/113/EC [2004] OJ L373/37 (Gender Equality in Goods and Services Directive); Directive 2006/54 [2006] OJ L204/23 (the Gender Equality in Employment Directive, or GEED); Directive 79/7 on gender equality in social security [1979] OJ L6/24; Directive 2010/41/EU on gender equality in self-employment [2010] OJ L180/1. 4 For a different kind of source, see eg EU Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law [2008] OJ L328/55. 5 See Case F-51/07 Bui Van (FP-I-A-1-289) in which the Civil Service Tribunal made clear that the EU Staff Regulations must be read in light of the Charter; for applications of Art 21 EUCFR see Case F-86/09 W v Commission (Judgment of 14 October 2010) (sexual orientation); Case C-566/10 P Italy v Commission (Judgment of 27 November 2012), in which the Grand Chamber invoked the prohibition of language discrimination in Art 21 EUCFR to annul competitions focused on only three official languages. 6 Directive 2011/24 on the application of patients’ rights in cross-border health-care [2011] OJ L88/45.

Claire Kilpatrick

581

21.03

21.04

21.05

21.06

Part I – Commentary on the Articles of the EU Charter

not adopted to transpose EU law, but which nonetheless serves to deliver an EU law obligation, falls within the scope of the Charter.7 21.07 Article 21(2) which concerns discrimination on grounds of nationality expressly limits its field of application to the relevant provisions of the treaties, stating additionally that it is ‘without prejudice to the special provisions of those Treaties’. The EUCFR Explanations expressly link Article 21(2) EUCFR to Article 18(1) TFEU, which provides ‘Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.’ Indeed the wording of Article 21(2) EUCFR and Article 18 TFEU is, in all important respects, identical. The link between Article 21(2) and a particular provision of the treaties can therefore be seen as more tightly drawn than the Charter-treaties link in respect of Article 21(1). 21.08 It is important to note that this construction accordingly is silent on a very large number of EU nationality discrimination sources, those relating to third-country nationals. These include the nationality discrimination guarantees in the EU’s Association Agreements8 with certain countries and its recent new generation of Directives on third-country nationals.9 This distinction between nationality discrimination between EU nationals and nationality discrimination between EU and non-EU nationals is a central one in EU law, and is an issue to which we return later.

B. Interrelationship of Article 21 with Other Provisions of the Charter 21.09 The Charter articles with most resonance in relation to Article 21(1) are its immediate predecessor, Article 20, providing a general guarantee of equality before the law, and Article 23 on equality between men and women. Both Article 20 and Article 23 share with Article 21 the structure of equality and non-discrimination. Indeed, in some significant gender equality cases, the Court of Justice has used both Articles 21 and 23 of the Charter.10 According gender equality its own free-standing Charter provision in Article 23, in addition to including it in Article 21, reflects the historical importance of gender as a ground of status discrimination in EU law and its extensive policy development. Prior to the new wave of EU status discrimination legislation from 2000 onwards,

7 Case C-617/10 Fransson (Judgment of 26 February 2013). Note also that Mangold made it clear that the (non-Charter derived) fundamental right not to be discriminated against on grounds of age could be applied once the disputed situation fell within the scope of national laws implementing the EU Fixed-term Work Agreement and Directive: Case C-144/04 [2005] ECR I-9981. It did not matter that the disputed German rule (excluding older workers from the normal fixed-term contract protection regime) was added as a subsequent derogation to the German law implementing the Fixed-Term work Directive: ‘The term “implementation” … does not refer only to the original transposition of Directive 1999/70 … but must also cover all domestic measures intended to ensure that the objective pursued by the directive may be attained, including those which, after transposition in the strict sense, add to or amend domestic rules previously adopted.’ 8 See EU Association Agreement with Turkey [1977] OJ L261/60; the Euro-Med Agreements with Tunisia [1998] OJ L97, Morocco [2000] OJ L70 and Algeria [2005] OJ L265. 9 See Directive 2003/109 on long-term resident third-country nationals [2004] OJ L16/44; Directive 2003/86 on Family Reunion [2003] OJ L251/12. 10 See Case C-236/09 Test-Achats [2011] ECR I-773 discussed below, sections III and IV.

582

Claire Kilpatrick

Art 21 – Non-Discrimination

which followed from the introduction of the broad status discrimination legal basis in the 1997 Amsterdam Treaty now contained in Article 19 TFEU, gender equality was the sole protected ground of status discrimination in EU law and this commitment dates from the Rome Treaty’s guarantee of equal pay for equal work between women and men. In successive Treaty revisions, the EU’s commitment to gender equality has been substantially enriched. If, rather than focusing on a shared structure of equality and non-discrimination, one instead focuses on the prohibited ground as constituting the basis of the relevant association with Article 21, a much larger range of Charter provisions come into view. For example, age structures the rights of the child in Article 24 and the rights of the elderly in Article 25. The integration of persons with disabilities is the focus of Article 26. Respect for cultural, religious and linguistic diversity in Article 22 links with a number of the enumerated grounds in Article 21(1).11 Further, some of the freedoms and rights protected elsewhere in the Charter have been used, within their analogues in the European Convention of Human Rights combined with its non-discrimination Article 14, to protect against discrimination. For instance, the protection of assembly and association in Article 11 ECHR has been used to protect against discrimination on grounds of trade union membership. The same can be said of the protection of freedom of thought, conscience and religion in relation to discrimination based on religion (Art 10 ECHR) as well as the protection against sexual orientation discrimination developed in relation to the right to protect family and private life (Art 8 ECHR) and racial discrimination in relation to education (Protocol 1, Art 2).12 The judicial development of status discrimination has also linked it to certain Charter provisions. The most striking linkage has been developed in the area of age discrimination between the justification of retirement regimes and the right to work in Article 15 EUCFR.13 Although looked at historically and in terms of development of the TFEU’s citizenship guarantees, Art 21(2) has most source resonance with Chapter V of the Charter on citizens’ rights, those rights are not rendered in the Charter in terms linking them to the principle of non-discrimination on grounds of nationality. Indeed, there is an interesting contrast between the juxtaposition of non-discrimination and citizenship in the post-Lisbon TFEU and their separation in the EU Charter of Fundamental Rights. Nonetheless, Article 45 of the Charter sets out the right to move and reside freely within the EU for both EU citizens and, in more restrictive language, for legally resident third country nationals. The interpretation of equivalent treaty provisions, including Article 21 TFEU, has been closely linked to prohibiting nationality discrimination for EU citizens. Article 15(3) of the Charter is also relevant in that, under the broader rubric of protecting freedom to pursue an occupation and right to engage in work, it provides a form of

11 See AG Kokott’s Opinion in Italy v Commission (n 1) linking language and nationality discrimination in Art 21 EUCFR with the principle of multi-lingualism reflected in Art 22 EUCFR. 12 See eg Wilson, NUJ and others v UK (2002) 35 EHRR 20 (trade union membership discrimination); Eweida v UK (Judgment of the European Court of Human Rights of 15 January 2013) (religious discrimination); EB v France (Judgment of the European Court of Human Rights of 22 January 2008) (sexual orientation discrimination); DH v Czech Republic (2008) 47 EHRR 3 (racial discrimination). 13 See C Kilpatrick, ‘A new EU Law Discrimination Architecture’ in Select Bibliography for the origins of this linkage; C-141/11 Hörnfeldt (Judgment of 5 July 2012) [37].

Claire Kilpatrick

583

21.10

21.11

21.12

21.13

Part I – Commentary on the Articles of the EU Charter

equal treatment guarantee for the working conditions of those third country nationals allowed to work in the EU.14

C. Sources of Article 21 Rights I. ECHR 21.14 The Explanations relating to Article 21(1) EUCFR expressly refer to Article 14 ECHR. This is the general non-discrimination provision, which provides: ‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’ Article 21(1) EUCFR adds to this list ethnic or social origin, genetic features, belief, disability, age and sexual orientation. Although the Explanations refer to Article 14 ECHR a closer equivalent, because its discrimination prohibition is not linked to other Convention rights,15 is Article 1 of Protocol No 12 to the ECHR, agreed in 2000 with entry into force in 2005, according to which: 1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.

21.15 However, this has been ratified to date by only eight of 28 Member States. Although Article 21(2) does not refer to the ECHR, and nationality is not listed in Article 14 of the Convention, the European Court of Human Rights has made clear that it encompasses discrimination on grounds of nationality.16

II. UN Treaties 21.16 There are multiple relevant reference points. Article 1(3) UN Charter of 1945 includes among the purposes of the UN ‘promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’. Article 2 UDHR of 1948 provides, ‘Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’ Both 1966 Conventions on Civil and Political and Economic, Social and Cultural Rights 14 ‘Nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union.’ 15 Art 14 ECHR has no independent existence since it has effect solely in relation to ‘the enjoyment of the rights and freedoms’ safeguarded by the Convention. 16 Gaygusuz v Austria (1996) IV 23 EHRR 364 [42]–[52]; Luzcak v Poland App no 77782/01 (Judgment of 27 November 2007); Andrejeva v Latvia App no 55707/00 (Judgment of 18 February 2009); Ponomaryovi v Bulgaria App no 5335/05 (Judgment of 21 June 2011).

584

Claire Kilpatrick

Art 21 – Non-Discrimination

provide: ‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’17 Article 26 ICCPR 1966 further provides: ‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’ To this can be added the core Conventions concerning some of the status grounds listed in Article 21(1): the Convention on the Elimination of Racial Discrimination (CERD 1965); the Convention on the Elimination of Discrimination Against Women (CEDAW 1979);18 and the Convention on the Rights of Persons with Disabilities (CRPD 2006). The last of these is noteworthy for having been the first international human rights treaty to be ratified by the EU.19 The International Labour Organization provides an important relevant specialised part of the UN system. ILO Convention No 100 of 1951 deals with equal pay, whilst Convention No 111 of 1958 prohibits discrimination in the field of employment and occupation. These Conventions, ratified by all the EU Member States, are central to one of four fundamental principles and rights at work contained in the ILO’s 1998 Declaration on Fundamental Rights and Principles at Work. It is perhaps more revealing to trace how these sources are referenced in EU status discrimination sources, especially legislation. Tracking this legislation over time evidences a marked trend towards a richer embedding of these instruments in international human rights sources. Hence the rich body of gender equality legislation from the 1970s until the millennium is notable for its lack of references to any international human rights instruments.20 This contrasts sharply with the new generation of post-2000 Directives across the grounds. Hence the two Directives in 2000 introducing protection against race, disability, religion/belief, age and sexual orientation, as well as the 2004 Directive extending gender discrimination protection to goods and services, all note that the right to equality before the law and protection against discrimination constitutes a universal right recognised by the UDHR and the UN Covenants of 1966, as well as referencing CEDAW and, for the race discrimination directive alone, the CERD.21 However, the Court of Justice did reference international human rights sources from an early stage in status discrimination (gender equality) cases and has continued to do

17

Art 2(1) ICCPR 1966 and Art 2(2) ICESR 1966. These have been acceded to by all Member States, including Croatia, and ratified by almost all. The three Baltic states need still to ratify most of these instruments and France also has a low ratification pattern. 19 It remains to be ratified by three EU Member States: Finland, Ireland and the Netherlands. 20 There are no such references in the 1975 Equal Pay Directive (75/117), the 1976 Equal Treatment Directive (76/207), the 1979 Statutory Social Security Directive (79/7) or the 1986 Occupational Social Security Directive (86/378). The Pregnant Workers’ Directive (92/85) and the Burden of Proof Directive (97/80) reference only the 1989 Community Charter of Fundamental Social Rights of Workers. OJ references above at n 3. 21 Preamble (4) FETD (2000/78); Preamble (3) RED (2000/43); Preamble (2) Directive 2004/113. However, Directive 2006/54 (the consolidating Gender Equality in Employment Directive) does not follow this trend limiting itself to referencing Arts 21 and 23 of the EU Charter. Nor does Directive 2010/41 which replaces and repeals Directive 86/613/EEC on equal treatment for self-employed men and women which makes no reference to human rights sources, including the EU Charter. OJ references above at n 3. 18

Claire Kilpatrick

585

21.17

21.18

21.19

21.20

Part I – Commentary on the Articles of the EU Charter

so, albeit in a non-systematic fashion.22 Hence, it has recently made extensive use of the CRPD to embrace a social definition of disability and a broad understanding of reasonable accommodation in EU law.23

III. Council of Europe Treaties 21.21 Both the 1961 ESC and the Revised ESC of 1996 provide that its substantive rights should be enjoyed without discrimination, the latter expanding the range of named rights to include, for example, health and association with a national minority and making clear that the enumerated grounds are non-exhaustive.24 21.22 Two of the ‘new’ status grounds in the Charter which are not mentioned in Article 19 TFEU, nationality minority membership and genetic features, link with recent Council of Europe Conventions. 21.23 Article 4(1) of the 1995 Framework Convention for the Protection of National Minorities (FNCM) provides that ‘The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law. In this respect, any discrimination based on belonging to a national minority shall be prohibited’.25 21.24 The inclusion of genetic features as a listed prohibited ground in Article 21 EUCFR is expressly identified in the Explanations as being drawn from the 1997 Council of Europe Convention on Human Rights and Biomedicine, Article 11 of which provides: ‘Any form of discrimination against a person on grounds of his or her genetic heritage is prohibited’. 21.25 Comparing these two Conventions illustrates well the absence of any strong correlation between EU Member State ratification of a human rights measure and its inclusion in the Charter Explanations. Hence, the 1995 FCNM with a much higher ratification record and a complete roster of Member State signatures is not referred to, whilst the 1997 Biomedicine Convention is, although six Member States have not even signed it and a further five have signed but not proceeded to ratification.

D. Analysis I. General Remarks 21.26 Article 21(1) EUCFR is a pivotal Charter provision and can be seen as a significant bridge between its civil and social components. Its rich links with other international human rights sources, as outlined above, underline how a broad provision outlawing status discrimination is a central feature of human rights Charters.

22

See eg Case 43/75 Defrenne [1976] ECR 455 [20], where the Court of Justice drew on ILO Convention No 100. Joined Cases C-335/11 and C-337/11 Ring and Werge (Judgment of 11 April 2013). 24 1961 ESC, Preamble; Art E Revised Social Charter 1996. Nine Member States and Croatia have not ratified the Revised ESC, remaining bound by the 1961 ESC (Czech Republic, Denmark, Germany, Greece, Latvia, Luxembourg, Poland, Spain and the UK). 25 France has not signed this Convention and three EU Member States have signed but not ratified it (Belgium, Greece and Luxembourg). 23

586

Claire Kilpatrick

Art 21 – Non-Discrimination

The anti-discrimination on grounds of nationality limb of Article 21(2) has a more distinctive EU flavour, reflecting its long and exceptional history of opening the borders of its states to the movement of EU people, goods and services. It is well known that prohibiting discrimination on grounds of nationality is a central foundational element of the treaties, with the current formulation in Article 18 TFEU essentially unchanged from its formulation in Article 7 of the 1957 Rome Treaty. Nonetheless the very two-limb structure of Article 21 of the Charter whereby nationality discrimination is treated separately, and differently, from status discrimination, signals the distinctive contours nationality discrimination has been given in the EU. On the one hand, it has been a central (indeed gushing) well for developing very extensive protection for Union citizens, although in order to fall within the scope of EU law there has normally been a need for a cross-border dimension before it is engaged.26 At the same time a restrictive approach has been taken to its interpretation by denying its protection to third-country nationals. In what follows, I first analyse some central issues about the scope of application of Article 21. I begin by examining its application to discrimination on the basis of third-country nationality. The juxtaposition of a broad range of prohibited grounds of discrimination in Article 21 raises two further important issues. One is how Article 21 EUCFR could be used in relation to issues of overlapping grounds and intersectional discrimination; another is whether Article 21 could be used to broaden the field of application of any given prohibited ground. Finally, an important part of EU discrimination protection concerns its structures and concepts. These include the distinction between direct and indirect discrimination, when discrimination may be justified, and derogations from discrimination protection. Moreover, EU discrimination law also includes broader obligations to mainstream status discrimination protection alongside other features promoting sharing and learning about status discrimination. I consider how Article 21 fits into these structures. I then turn to examine a puzzle. Status and nationality discrimination, the subjectmatter of Article 21, have a strong record of being thickly and innovatively developed by the Court of Justice, the EU legislature and the treaty-makers. While the Court of Justice has recently continued this trend by taking bold, albeit distinctive, steps to develop the constitutional principles of status discrimination and discrimination on grounds of nationality, Article 21 EUCFR has not been the primary source supporting either development. Exploring this further tells interesting and important stories about Article 21’s place in the emerging EU fundamental rights landscape.

21.27

21.28

21.29

21.30

II. Scope of Application The personal scope of Article 21(1) is exceptionally broad. All persons within the EU 21.31 suffering any form of status discrimination potentially fall within its scope. It has been clear from an early stage that the prohibition of discrimination on grounds of nationality

26 For a recent exposition of the current position on ‘wholly internal’ situations, see Case C-256/11 Dereci (Judgment of the Court (Grand Chamber) of 15 November 2011). Though see below the discussion of RuizZambrano (n 71).

Claire Kilpatrick

587

Part I – Commentary on the Articles of the EU Charter

applies across all the Treaty freedoms to natural persons.27 A question arises as to whether Article 21(2) applies only to natural persons or whether its protections extend to legal persons too, or even beyond persons to goods and services in the same way as Article 18 TFEU. On the basis of the Charter jurisprudence to date,28 which emphasises the need to assess each Charter provision separately, it seems likely that a broad approach to the personal scope of Article 21 will be taken. (a) Applying Article 21 EUCFR to Discrimination on the Basis of Third-Country Nationality 21.32 A central question in relation to the scope of application of Article 21(2) is whether it applies to the EU citizen/third-country national interface so that differences in treatment on this basis can be challenged. This is also a central question in relation to Article 18 TFEU which it mirrors. Neither provision textually limits itself to application to EU citizens only. In relation to Article 18 TFEU, this outcome has instead been achieved by means of judicial interpretation, and was recently reaffirmed in Vatsouras29 where the interface between EU citizens and TCNs was raised in a novel fashion as the national rule in question, in its access to social assistance, treated certain EU citizens worse than certain TCNs. The Court confirmed that the Treaty’s prohibition of nationality discrimination: 52 … concerns situations coming within the scope of Community law in which a national of one Member State suffers discriminatory treatment in relation to nationals of another Member State solely on the basis of his nationality and is not intended to apply to cases of a possible difference in treatment between nationals of Member States and nationals of non-member countries.

21.33 Post-Lisbon, the possibility of using the now legally binding nationality prohibition in Article 21(2) of the Charter to modify this position became more clearly available. In Kamberaj the Court was asked about the compatibility with EU law of a regional Italian law discriminating between EU citizens and third country nationals in the availability of housing benefit. The national court framed its questions around two centrally relevant Charter provisions, Articles 21 and 34: Does European Union law, in particular, Articles 2 [TEU] and 6 TEU, Articles 21 and 34 of the Charter and Directives 2000/43 … and 2003/109, preclude a provision of national [more correctly: regional] law … inasmuch as that provision, with regard to the allowances concerned, and in particular the so-called ‘housing benefit’, attaches importance to nationality by treating

27 Case 48/75 Royer [1976] ECR 497 [12]: ‘Nevertheless comparison of these different provisions shows that they are based on the same principles both in so far as they concern the entry into and residence in the territory of Member States of persons covered by Community law and the prohibition of all discrimination between them on grounds of nationality’; Case 118/75 Watson and Belmann [1976] ECR 1185 [9]. 28 For discussion of this in the context of Art 47 EUCFR (effective judicial protection) see Case C-279/09 DEB [2010] ECR I-13849 where the Court concluded that it was ‘not impossible’ for a legal person to obtain legal aid; in relation to other Charter provisions (right to property in Art 17 and freedom to conduct a business in Art 16) their application to legal persons has been assumed: Case C-283/11 Sky Österreich (Judgment of 22 January 2013). 29 Joined Cases C-22/08 and C-23/08 Vatsouras and Koupatantze [2009] ECR I-4585.

588

Claire Kilpatrick

Art 21 – Non-Discrimination

long-term resident workers not belonging to the European Union or stateless persons worse than resident Community nationals (whether or not Italian)?

Yet, while finding in favour of the TCNs, the Court firmly turned down this invitation to use Article 21 as a means for dealing with the discrimination between EU citizens and TCNs. Instead, it based itself on the equal treatment guarantee for third country nationals found in the 2003 Long-Term Residents Directive, Article 11(1)(d) of which provides that long-term residents are to enjoy equal treatment with nationals as regards social security, social assistance and social protection, as those concepts are defined by national law. Its willingness to use Article 34 of the Charter in this case serves to highlight its reluctance to use Article 21 in the context of TCNs. Even if it can be argued that the use of Article 21(2) to cover discrimination against TCNs is difficult to sustain because of its tight linkage to Article 18 TFEU, and the jurisprudence limiting Article 18 TFEU to EU nationals, that still leaves open the use of the open-ended list in Article 21(1) as a possible means of providing nationality discrimination protection for TCNs. This in turn demonstrates why the TCN-EU national discrimination interface is a crucial one for understanding the structure of Article 21: is Article 21(2) a lex specialis which rules out the use of Article 21(1) for nationality discrimination not covered by Article 21(2)? While well-established, this restrictive position on the personal scope of the nationality discrimination prohibition has been challenged by many.30 In particular, the move into EU law post-Amsterdam of provisions on visas, asylum and immigration, and the subsequent adoption of significant legislative texts relating to third-country nationals using these new competences, is argued to have made the traditional interpretation of the Treaty’s non-discrimination on grounds of nationality guarantee untenable, as a range of rights, including mobility rights, now apply under the Treaty to third-country nationals as well.31 An additional argument is the compatibility of this restriction on the reach of the EU nationality discrimination guarantee with the ECHR. As noted earlier, the Strasbourg Court has made it clear that nationality discrimination, although not expressly prohibited by Article 14 of the ECHR, falls within it. More importantly, the European Court of Human Rights has subjected nationality discrimination to strict review so that ‘As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention.’32 To take a recent example, requiring Russians settled in Bulgaria from a young age with their mother to pay fees for secondary school education in Bulgaria breached the prohibition on nationality discrimination.33 However, this strict stance on nationality discrimination sits alongside a long-standing commitment by the European Court of Human Rights to recognise as lawful the EU distinction between nationals of EU Member States and third-country nationals.

30

See Groenendijk, Hublet, Peers, in Select Bibliography. See, centrally, the family reunification Directive (Council Directive 2003/86/EC on the right to family reunification (2003) OJ L251/12–18) and the Long Term Resident’s Directive: Council Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents, (2004) OJ L16/44–53. 32 Gaygusuz v Austria (n 16) [42]; see also Luczak v Poland (access to farmers’ social security scheme restricted to Polish nationals pre-EU accession) n 16 [48]. 33 Ponomaryovi v Bulgaria (n 16). 31

Claire Kilpatrick

589

21.34

21.35

21.36

21.37

21.38

Part I – Commentary on the Articles of the EU Charter

This stance was set out in Moustaquim in 1991.34 In Moustaquim the Strasbourg Court rejected a nationality discrimination challenge to the deportation from Belgium, because of criminal behaviour, of a Moroccan who had grown up there. He could not be compared to Belgians, as they had no legal right of abode elsewhere. Nor could he be compared to nationals of other EU (then EC) Member States: As for the preferential treatment given to nationals of the other member States of the Communities, there is objective and reasonable justification for it as Belgium belongs, together with those States, to a special legal order.35

21.39 This has been repeated and elaborated in subsequent judgments applying a strict review to nationality discrimination,36 but applying that review to areas falling outside EU law. This then creates the interpretative space within which arguments about the legitimacy of the EU distinction within ECHR jurisprudence can be made: it could, for instance, be argued, that as the EU order changes, the sharp distinction between EU and non-EU nationals no longer holds true to the same extent, or is in any event meaningful only in certain areas such as the deportation at issue in Moustaquim. (b) Juxtaposition of Prohibited Grounds in Article 21: Overlaps and Intersectional Discrimination 21.40 The relationship between one status discrimination ground, racial origin, and the prohibition of nationality-based discrimination in Article 21(2), relates back to the efforts to keep nationality discrimination as a distinct and separate regime in EU law. While the two-limb structure of Article 21 reflects this position, it also troubles it through its juxtaposition of race and nationality discrimination. 21.41 Hence, one key question is whether EU citizens or third-country nationals who suffer nationality-based disadvantage can claim racial origin discrimination. This is not permitted by the Race Directive,37 Article 3(2) of which provides that it ‘does not cover differences of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons on the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned’. However, Article 21, in particular its juxtaposition of racial and nationality discrimination, could open up a new textual space for relating more closely discrimination on these two grounds. A particular argument for doing so in relation to third-country nationals is that they do not, as we have seen, so far benefit from Article 18 TFEU. In Kamberaj, the Court refused to go beyond the limits laid down by the Race Equality Directive to consider the applicability of the racial discrimination prohibition to

34

Moustaquim App no 12313/86 (Judgment of 18 February 1991). Ibid [49]. 36 Eg Ponomaryovi v Bulgaria (n 16) [54], where the establishment of EU citizenship is stressed: ‘It may also, in certain circumstances, justifiably differentiate between different categories of aliens residing in its territory. For instance, the preferential treatment of nationals of Member States of the European Union—some of whom were exempted from school fees when Bulgaria acceded to the Union … may be said to be based on an objective and reasonable justification, because the Union forms a special legal order, which has, moreover, established its own citizenship.’ 37 RED (2000/43/EC). This restriction is mirrored in Art 3(2) FETD (2000/78). 35

590

Claire Kilpatrick

Art 21 – Non-Discrimination

third-country nationals. However, and again demonstrating the close links between racial and nationality discrimination, the Court was prepared to find that a refusal to employ ‘immigrants’ constituted direct racial discrimination under the Race Directive.38 More broadly, the multiplication of prohibited grounds of discrimination in EU 21.42 law, including within the Charter, has led to the need to consider within EU law the phenomenon of intersectional discrimination.39 By this is meant the specific disadvantage borne by those discriminated against on more than one ground. Importantly, it is not simply a matter of adding together the grounds of discrimination: hence a black woman suffers discrimination which is a distinctive melding of race and gender, at their intersection. Currently EU law does not expressly provide for intersectional discrimination protection. Yet Article 21 of the Charter could provide an important overarching resource for adapting EU discrimination legislation to the specificities of intersectional discrimination. (c) Juxtaposition of Prohibited Grounds: Using Article 21 to Broaden the Field of Application of any Given Prohibited Ground? Article 21(1) covers a wide range of named prohibited grounds as well as making it clear 21.43 that that list is not closed. However, it is silent on the fields to which the prohibition on discrimination applies. An interesting possibility raised by Article 21(1) is whether it could be used in order to overcome the differentiation in the material scope of the different grounds of status discrimination in EU discrimination legislation. For instance, the Race Equality Directive prohibits discrimination in the field of education whilst none of the other status discrimination directives cover education as a prohibited field of discrimination. Such a move would require the Court to make a move analogous to that made in the citizenship domain whereby it used the prohibition of nationality discrimination in Article 18 TFEU to accord benefits given by legislation to a particular group, such as workers, to a broader category of lawfully resident Union citizens.40 The Court could use Article 21(1) to justify a similar disintegration of the personal and material scope of particular status discrimination legislative instruments. Hence, age discrimination in education could be challenged under EU law by using Article 21 EUCFR to break the link between race-education in order to make protection against education discrimination applicable across all the grounds. It should be noted that Article 21(1) EUCFR is more suitable for such an exercise than Article 19 TFEU as the latter, unlike Article 18 TFEU, is constructed as a Treaty basis for legislation rather than an applicable prohibition of discrimination. However, the horizontal provisions of the Charter and the Explanations make Article 21(1) of the Charter a much less promising base for such jurisprudential innovation in the field of status discrimination than Article 18 TFEU has proved in the field of citizenship and nationality discrimination. The deadlock over a legislative instrument proposing to level-up the material scope of the grounds contained in the Framework Equal Treatment Directive to those covered

38 39 40

Case C-54/07 Feryn [2008] ECR I-5187. See further Schiek, this volume; Schiek and Lawson (eds) and Solanke, Select Bibliography. Case C-85/96 Martínez-Sala [1998] ECR I-2691. See also Case C-456/02 Trojani [2004] ECR I-7573.

Claire Kilpatrick

591

Part I – Commentary on the Articles of the EU Charter

by the Race Equality Directive41 indicates the political and constitutional controversy which would be likely to accompany any such use of Article 21(1) of the Charter. (d) The Structure and Concepts of Discrimination and Article 21 EUCFR 21.44 Discrimination has a well-established, albeit evolving, EU law grammar, with distinctive configurations in relation to particular grounds. Its core components consist of the concepts of direct42 and indirect discrimination.43 In the classical structure, direct discrimination can usually not be justified or is subject to stricter and often legislatively defined justification, including requirements to possess a certain status to carry out given jobs (eg hiring someone of Maghreb origin to work in providing social assistance to Maghreb communities; permitting religious groups to have only male clergy) than indirect discrimination where a broader range of ‘objective justifications’ are generally permitted. Consideration is also given to departures from symmetrical equal treatment in relation to the disadvantaged group; this may range from requiring only the disadvantaged group to be covered by the discrimination protection (eg disability in EU law) to permitting certain kinds of positive action as a tightly construed exception to an otherwise symmetrical application of the status discrimination prohibition.44 Other features include protecting complainants through special burden of proof regimes and victimisation protection45 as well as requirements for special equality agencies46 and constructing harassment as a specific form of discrimination.47 Importantly, this family of discrimination concepts, although broadly shared, is also differentiated across the much broader set of grounds protected in EU legislative instruments since the millennium. In the EU, disability discrimination alone contains the obligation of ‘reasonable accommodation’.48 More generally there is a broader set of exceptions, justifications and derogations for the grounds other than race. Direct age discrimination, for example, is given a broad justification defence.49

41 Commission Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation COM (2008) 426. 42 ‘Direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the [prohibited] grounds’: Art 2(2)(a) FETD (2000/78) and RED (2000/43); Art 2(1)(a) GEED (2006/54). 43 ‘Indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a [prohibited status] at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary’: Art 2(2)(b) FETD (2000/78) and RED (2000/43); Art 2(1) (b) GEED (2006/54). 44 As in the Court of Justice’s famous judgments on positive action in the context of gender equality, discussed by Schiek in this volume: Case C-450/93 Kalanke [1995] ECR I-3051; Case C-409/95 Marschall [1997] ECR I-6363; Case C-158/97 Badeck [2000] ECR I-1875. 45 See Arts 10, 11 FETD (2000/78); Arts 8 and 9 RED; Arts 19, 24 GEED (2006/54). 46 Race and gender only in EU law: Art 13 RED (2000/43); Art 20 Gender ETD (2006/54). 47 ‘Harassment shall be deemed to be a form of discrimination…when unwanted conduct related to any of the [prohibited] grounds takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States’: Art 2(3) FETD (2000/78) and RED (2000/43); Art 2(1)(c) and 2(2)(a) Gender ETD (2006/54). 48 Art 5 FETD (2000/78). 49 Art 6 FETD (2000/78).

592

Claire Kilpatrick

Art 21 – Non-Discrimination

What is Article 21 of the Charter’s relationship to this family of discrimination con- 21.45 cepts, shared but differentiated across the grounds protected in EU treaties and secondary legislation? This is an important question because, as we have seen, Article 21 makes no reference to any of the components of this family of discrimination concepts. Yet so strong is the connection of these concepts with status discrimination, especially within EU law where many of them have been extensively developed by the Court of Justice, I would suggest that Article 21 encompasses them too. The family of status discrimination concepts will be most significant when the Court has to deal with those grounds in Article 21 EUCFR that are not protected under the EU treaties or in EU secondary legislation. As we have seen, this covers grounds enumerated in Article 21 of the Charter but not elsewhere in EU law (such as genetic features discrimination) as well as those status discrimination grounds covered but not enumerated in Article 21 EUCFR (eg aesthetic appearance discrimination not covered by an enumerated ground). I suggest that the Court would and should use the family of status discrimination concepts in its decision-making relating to these grounds, rather than, for example, limiting itself in its use of Article 21 EUCFR to blatant instances of direct discrimination. I leave to the part of the analysis dealing with limitations and derogations the important issues about differentiation between the grounds in this respect.50 Once again EU nationality discrimination stands somewhat apart from ‘classic’ status 21.46 discrimination law. Mark Bell accordingly argues that ‘the instrumental nature of EU law on nationality discrimination tends to detach it from the familiar concepts of antidiscrimination law’.51 While it is true that secondary legislation on free movement is not, or at least not centrally, structured around the ‘status discrimination’ grammar, the evolution of EU nationality discrimination law can usefully be read through the lens of a broadly similar structure for nationality discrimination as that adopted for EU status discrimination norms.52 Moreover, the EUCFR forms part of a broader pattern of constitutionalisation and insti- 21.47 tutionalisation of fundamental human rights and values in the EU. Status discrimination norms, though not nationality discrimination norms, have been a central instance of these developments. Hence, in the TEU, non-discrimination is a core EU value (Art 2), and combating discrimination is a core objective (Art 3(3) TEU). Two horizontal clauses in the TFEU commit the EU to mainstreaming eliminating gender inequality (Art 8 TFEU) and combating discrimination on the other legislated EU grounds in all its policies and activities (Art 10 TFEU). The EU coordinates national equality agencies (EQUINET), the creation of which are required by EU discrimination legislation, information-gathering and analysis is driven by, in particular, the EU Fundamental Rights Agency, and the EU both supports and gives institutional roles to national and transnational discrimination NGOs.53 In this perspective, Article 21 EUCFR, especially its status discrimination limb, can be an additional source around which to frame a rich and recursive set of EU anti-discrimination practices.

50

Below section IV. ‘The Principle of Equal Treatment: Widening and Deepening’, above in Select Bibliography, p 613. 52 B de Witte, ‘Nationals, EU Citizens and Foreigners: Discrimination on Grounds of Nationality in EU law’ (unpublished draft paper). 53 For analysis of these features as constituting an incipient democratic experimental framework, see de Búrca, above in Select Bibliography. 51

Claire Kilpatrick

593

Part I – Commentary on the Articles of the EU Charter

III. Specific Provisions 21.48 The subject-matter of Article 21 EUCFR links it to a vast swathe of specific nondiscrimination provisions in EU law, both in the treaties and in legislative instruments, covering indeed much of what is considered to be the heart of EU law. 21.49 Both status discrimination and nationality discrimination have been the focus of intense, sustained and often expansive development by the Court of Justice, the treatymakers and the legislature. 21.50 One significant feature of those developments was an intense linking and reworking of secondary legislation on the basis of its merely being an elaboration of a primary treaty prohibition of discrimination, thereby circumventing various limits on the applicability of those secondary sources. Hence, in gender equality cases such as Defrenne and Jenkins v Kingsgate, the Equal Pay Directive was recast as a mere working-out of the Treaty principle of equal pay, meaning that that principle could be applied in horizontal situations.54 Similarly, the Court viewed the economic freedoms as working out the implications of the overarching principle of nationality discrimination, itself an independent source of rights. This stance also permitted access to new rights founded on the prohibition of nationality discrimination, provided the right fell within the scope of EU law.55 Relatedly, a significant modus operandi of the citizenship case law constructed from Martínez Sala onwards has been to use the nationality discrimination prohibition to accord the rights granted to particular categories of persons (most centrally workers) in secondary free movement legislation on an equal basis to all lawfully resident Union citizens.56 21.51 In addition, treaty revisions have given an increasingly central place to equality and non-discrimination so that, post-Lisbon, Article 2 TEU includes equality and the rights of persons belonging to minorities among the EU’s values, while the Treaty’s aims in Article 3 TEU include equality between men and women, and combating discrimination. Moreover, the mainstreaming provision in Article 10 TFEU provides that ‘[I]n defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’. 21.52 Given these developments, which certainly place the subject matter of Article 21 at the heart of the EU, the trajectory to date of Article 21 EUCFR presents a stimulating puzzle. While the Court of Justice has recently taken bold, albeit distinctive, steps to develop the constitutional principles of status and nationality discrimination, Article 21 EUCFR has not been the primary source supporting either development. Where Member State, rather than EU, action is at stake, Article 21 has been either (a) sidelined (status discrimination) in favour of using general principles as a fundamental rights route, or (b) entirely ignored (status and nationality discrimination). Its only role as a primary source to date has concerned the validity of EU legislation (c). Exploring briefly

54

Case 43/75 Defrenne [1976] ECR 455 [60]; Case 96/80 Jenkins v Kingsgate [1981] ECR 911 [22]. Gravier is a key example: Case 293/83 [1985] ECR 593 (finding on the basis of a survey of various Community provisions that vocational training fell within the scope of Community law and accordingly was subject to the Treaty’s nationality discrimination prohibition). 56 Martïnez Sala (n 40). 55

594

Claire Kilpatrick

Art 21 – Non-Discrimination

these three stances further tells interesting and important stories about Article 21’s place in the emerging EU fundamental rights landscape. (a) Sidelining Article 21(1) EUCFR: General Principles as a Competing Fundamental Rights Route The three cardinal components of post-Lisbon EU fundamental rights policy are set 21.53 out in Article 6 TEU: (a) the binding Charter with due regard for its Explanations;57 (b) the ECHR and the constitutional traditions common to the Member States which shall constitute general principles of the Union’s law;58 and (c) ECHR accession.59 Status discrimination has been a primary Court of Justice locus for creative interpretation of the first two of these. To understand the relationship between general principles and Article 21, we need to 21.54 consider the Court’s significant new twist on its established general principles jurisprudence. The key step was taken by the Court of Justice in 2005 in Mangold, the Court’s first age discrimination decision.60 Mangold’s age discrimination claim, based on the Framework Equal Treatment Directive (FETD), came up against both well-established obstacles constituting the specificity of directives in the EU legal order. First, directives are not horizontally directly effective: they cannot be applied against private parties, such as Mr Mangold’s employer. Second, the transposition period for the age strand in the Directive had not yet expired. Despite this, the Court found in favour of Mangold’s claim. Centrally, it found that: it is the responsibility of the national court to guarantee the full effectiveness of the general principle of non-discrimination in respect of age, setting aside any provision of national law which may conflict with Community law, even where the period prescribed for transposition of that directive has not yet expired.

The core innovation is the placing of a new general principle of non-discrimination on 21.55 grounds of age at the centre of the judgment. The Court first ‘uncovered’ this general principle of non-discrimination on grounds of age, an unwritten source, and placed it at the centre of its judgment. This general principle was then used to sidestep two weighty obstacles to enforcement of the age discrimination obligations in the Directive. That the transposition period of the Directive had not expired could not prevent application of the general principle, as the facts nonetheless fell within the scope of EU law because of the application of a further Directive (on fixed-term work). As for horizontal direct effect, rather than asking whether such a general principle should be enforceable against a private individual, the Court reasoned that because the general principle was supreme, the national court was obliged to set aside any national law in conflict with it. In subsequent cases, the Court confirmed this new function of the general principle61 and

57

Art 6(1) TEU. Art 6(3) TEU. 59 Art 6(2) TEU. 60 Case C-144/04 Mangold [2005] ECR I-9981. Parts of this section draw on my analysis in ‘The Court of Justice and Labour Law: A 2008 Retrospective’ 38 Industrial Law Journal (2009) 180. 61 Case C-555/07 Kücükdeveci [2010] ECR I-365. 58

Claire Kilpatrick

595

Part I – Commentary on the Articles of the EU Charter

confirmed that it covered status discrimination grounds other than age.62 To date, the Mangold general principle jurisprudence is applied in status discrimination cases only when the directive cannot be applied to dislodge the offending national norm. Hence, it is not mentioned in the quite significant number of subsequent ‘standard’ status discrimination cases where neither of the applicability limits of directives was relevant. 21.56 The new general principle, of status discrimination, and its new use, to circumvent the obstacles to status discrimination directives being applied horizontally, raises questions about the relationships between the general principle and other relevant EU sources on equality and status discrimination including Article 21 of the Charter. Some issues have already been clarified in post-Mangold cases, most notably in the first case confirming Mangold, Kücükdeveci. First, the bridge between the status discrimination general principle and the general principle of equal treatment is more fully explored so that, ‘the principle of non-discrimination on grounds of age is a general principle of EU law in that it constitutes a specific application of the general principle of equal treatment’. Second, and most relevant here, a new link is made between the EU Charter of Fundamental Rights (EUCFR) and the general principle of status discrimination. However, that linkage, in Kücükdeveci and subsequent cases, makes it clear that the Court has chosen to use Article 21 merely as a supplementary support for the existence of the general principle, and not as the keystone of this new status discrimination jurisprudence. Hence it stated, for example: It should also be noted that Article 6(1) TEU provides that the Charter of Fundamental Rights of the European Union is to have the same legal value as the treaties. Under Article 21(1) of the charter, ‘[a]ny discrimination based on … age … shall be prohibited’.63

21.57 Such is its supplementary status that it is not routinely cited even in cases deploying the general principle.64 The development of an alternative fundamental rights route for status discrimination 21.58 raises questions about the role left for Article 21 in such cases. There can be no doubt that to date, Article 21(1) has been sidelined and subsumed by the general principle of status discrimination. Questions from national courts asking whether these are two independent and coexisting routes of fundamental rights protection have so far remained unanswered.65 Why did the Court choose to make a new general principles path, rather than relying upon Article 21 of the Charter to achieve the same result? One suggestion to explore is that Article 21 was not seen as capable of achieving the legal outcome sought by the Court: providing a fundamental rights source which would permit the status discrimination guarantee elucidated by the directive to apply in disputes between private parties. 62

Case C-147/08 Römer (Judgment of the Court (Grand Chamber) of 10 May 2011). Kücükdeveci (n 61) [22]; see similarly Cases C-297 and C-298/10 Hennigs (Judgment of the Court) [47]; and Case C-447/09 Prigge (Judgment of the Court (Grand Chamber) of 13 September 2011) [38]. 64 See for example Römer (n 62). 65 See Case C-40/11 Iida (Judgment of 8 November 2012) in which the referring court asked: ‘Can the “unwritten” fundamental rights of the European Union developed in the Court’s case-law from Case 29/69 Stauder [1969] ECR 419, paragraph 7, up to, for example, Case C-144/04 Mangold [2005] ECR I-9981, paragraph 75, be applied in full even if the Charter is not applicable in the specific case; in other words, do the fundamental rights which continue to apply as general principles of Union law under Art 6(3) TEU stand autonomously and independently alongside the new fundamental rights laid down in the Charter in accordance with Art 6(1) TEU?’ 63

596

Claire Kilpatrick

Art 21 – Non-Discrimination

In turn, this could be because the Explanations clearly anchor Article 21(1) in respect for the existing EU organisation of EU status discrimination sources or because the horizontal provisions of the Charter make it seem an unlikely route for making status discrimination rights with their substance in directives apply horizontally in situations of inadequate national transposition. Members of the Court have identified Article 51(1) EUCFR, because it makes the Charter applicable only to the EU institutions and Member States, as a definitive barrier to its provisions creating obligations for individuals. More broadly, it has been argued that the design and function of the EUCFR, similarly to the ECHR, is to require the EU and the Member States, rather than private individuals, to protect individuals against fundamental rights violations.66 Another obstacle would be Article 52(2) whereby ‘rights recognised by this Charter for which provision is made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties.’ Of course, this requires reading those treatydefined conditions and limits as encompassing the Court of Justice doctrine that directives are not horizontally directly effective. The Court bases this view on Article 288(3) TFEU: to accord horizontal direct effect to directives would be to recognise a power in the European Union to enact obligations for individuals with immediate effect, whereas it has competence under Article 288 TFEU to do so only where it is empowered to adopt regulations. Accordingly, the Court sustains that the denial of horizontal direct effect to directives respects the particular nature of a directive which, by definition, only gives rise directly to obligations on the part of the Member States to which it is addressed under Article 288(3) TFEU and can impose obligations on individuals only through the medium of national transposition measures.67 Nonetheless, the outcome of accepting this position, whereby the general principle of status discrimination applies in private party disputes, unlike either the status discrimination directives or the Charter, opens a gap between the application of the Charter and the application of general principles in EU law. At the same time, given that the content of the general principle of status discrimination in the Mangold jurisprudence has, to date, been wholly determined by the content of the relevant status discrimination directive,68 this leaves the general principle, as understood in this jurisprudence, unavailable as a legal source against which to review the legality of restrictions in the directives, making the Charter especially important. Moreover, if the link to a specific EU law status discrimination source is maintained in the new status discrimination general principle jurisprudence, the latter is entirely unavailable for all the grounds of status discrimination covered by Article 21 EUCFR but not covered by other written EU law sources (treaties, legislation), leaving the Charter as the only relevant EU law status discrimination source. The reach of this new general principles jurisprudence, thus far applied in the area of status discrimination, is also unclear. For present purposes, the key question is whether it also applies to the matter covered by Article 21(2), discrimination on grounds of

66 See, in particular, Opinion of AG Trstenjak in Case C-282/10 Dominguez (Judgment of 24 January 2012) [80]–[88]; J Kokott and C Sobotta, ‘The Charter of fundamental rights of the European Union after Lisbon’, EUI Working Papers (2010/6)— Academy of European Law, 14. 67 Case C-91/92 Faccini Dori [1994] ECR I-3325 [24]. 68 On this feature of the Mangold jurisprudence see also AG Trstenjak in Dominguez (n 66) [157]. Compare the stances of Muir and De Mol, in Select Bibliography.

Claire Kilpatrick

597

21.59

21.60

21.61

21.62

Part I – Commentary on the Articles of the EU Charter

nationality? The mischief addressed by the Mangold jurisprudence is of course less pressing in the nationality discrimination context as the Court has already applied the treaty provisions on free movement of workers horizontally69 as well, though possibly in a more limited fashion, as the prohibition of nationality discrimination in Article 18 TFEU.70 Nonetheless, the more open nature of a general principle as an unwritten source still makes it of potential value. 21.63 In sum, we can hypothesise on the basis of the record to date that Article 21 EUCFR is viewed as less useful for the purpose of circumventing the applicability limits of EU discrimination sources than a key alternative fundamental rights route, that of general principles: Article 6(3) TEU is preferred to Article 6(1) TEU. (b) Ignoring Article 21 EUCFR 21.64 Both limbs of Article 21 raise the important question of what added value the Charter brings to existing EU law in its application to disputes involving Member State laws and practices. 21.65 Beginning with status discrimination, its added value certainly does not emerge from the case record to date. While the Mangold general principle jurisprudence is not used in ‘standard’ status discrimination cases (those not engaging the limitations of directives’ applicability), importantly, Article 21(1) plays little role in these ‘standard’ cases either. At best, it is used in a declaratory sense so that the Court refers to ‘the principle of non-discrimination on grounds of age proclaimed in Article 21 of the Charter and given specific expression in Directive 2000/78’.71 However, this has not developed into a standard and consistent declaratory practice so that in very many cases, the status discrimination Directives are applied with no reference to Article 21 EUCFR.72 21.66 This raises the question whether, in the field of status discrimination, Article 21 EUCFR is viewed by the Court as having little added value in relation to Member States’ laws and practices. We should distinguish between those grounds and situations covered by EU discrimination Directives and those which are not; although not yet a part of the case law, the Charter could have genuine added value in the latter set of cases. 21.67 The ‘adds-little’ view is also an important key through which to read Article 21(2). As noted, Article 21(2) is worded almost identically to the Treaty’s non-discrimination on grounds of nationality guarantee in Article 18 TFEU. This makes it interesting as, on one reading, it simply restates in a fundamental rights document the content and limitations of Article 18 TFEU as interpreted by the Court. If that is the case, it adds little to what is already a primary Treaty right, as both the TFEU and the Charter have ‘the same legal value’. This reading may underpin the Court’s current ignorance of Article 21(2) in the many path-breaking cases engaging nationality discrimination since the Charter was given legal effect.

69

Case C-281/98 Angonese [2000] ECR I-4139 [36]. See, eg, Case 36/74 Walrave and Koch v Association Union Cycliste Internationale [1975] ECR 1405. See the discussion by De Mol, Select Bibliography, 114–16. 71 Hennigs (n 61) [78]; Case C-132/11 Tyrolean Airways (Judgment of 7 June 2012) [1]. 72 Eg Case C-267/06 Maruko [2008] ECR I-1757 (sexual orientation); Case C-411/05 Palacios de la Villa [2007] ECR I-8531 (age); Case C-54/07 Feryn [2008] ECR I-5187 (race); Case C-152/11 Odar (Judgment of 6 December 2012) (disability). 70

598

Claire Kilpatrick

Art 21 – Non-Discrimination

For instance, in Ruiz-Zambrano,73 the national court asked whether the citizenship 21.68 provisions of the Treaty (Arts 18, 20 and 21 TFEU) ‘in conjunction with the provisions of Articles 21, 24 and 34 of the Charter of Fundamental Rights’ must be interpreted as to allow a Union citizen, an infant who had never left his state of birth, to be accompanied by his third-country national parent, who should be allowed to reside and work to support the Union citizen. Instead of relying on Article 21(2),74 and typically, the Court based its decision on Article 20 TFEU—the EU citizen’s right to enter and reside— alone. Indeed, in no case to date involving Union citizens in the vast spectrum of relevant Treaty provisions and secondary legislation on free movement and citizenship undergirded by non-discrimination on grounds of nationality has the Court invoked, even in a purely declaratory sense, Article 21(2) EUCFR. The absence of Article 21(2) as a relevant source is also highlighted by examining key 21.69 recent legislation on free movement of EU citizens and immigration of third-country nationals. All make extensive reference to Article 21 but not to its nationality discrimination limb as one might have expected, especially in the Citizens’ Rights Directive. While the Citizens’ Rights Directive refers in its Preamble to the prohibition of nationality discrimination this is not linked to Article 21. Yet all these Directives, concerned with granting their beneficiaries rights to be treated like a host-state national, extensively refer instead to the status discrimination limb of Article 21.75 (c) Article 21 EUCFR as a Primary Source of Fundamental Rights Status Discrimination Protection The use by the Court of Justice of Article 21(1) to strike down a provision in an EU 21.70 Directive in Test-Achats76 shows that Article 21(1) already has a role as a primary source of status discrimination protection. It is not entirely subsumed or dominated by the general principle or the Treaty provisions on status discrimination. Test-Achats concerned the legality of a provision providing for an open-ended derogation from the principle of equal treatment between women and men for various insurance premiums and benefits in a Directive (2004/113) extending the gender equality guarantee to goods and services. Interestingly, the Belgian Constitutional Court’s reference asked the Court of Justice 21.71 expressly not about the Charter but about Article 6(2) TEU (now Article 6(3) TEU),

73

Case C-34/09 Ruiz-Zambrano [2011] ECR I-1177. Of course, it may be asked how the nationality discrimination guarantee in Art 21(2) of the Charter could be engaged as this concerned a Belgian (infant) national wishing to remain in Belgium. Yet the Belgian court thought it relevant and this in turn relates to the vexed issue of reverse discrimination or wholly internal situations: hence AG Sharpston sustains in her Opinion in Ruiz-Zambrano that failure to include such situations within EU citizenship is to breach the principle of nationality discrimination in EU law: ‘The outcome is reverse discrimination created by the interaction of EU law with national law—a discrimination that the Court has hitherto left each Member State to solve, notwithstanding that such a result is, prima facie, a breach of the principle of non-discrimination on the grounds of nationality.’ (Opinion, point 133.) 75 See Directive 2003/109 Preamble (5); Directive 2003/86 Preamble (5); Directive 2004/38 Preamble (5), (6) and (20) (nationality discrimination) and (31) (EU Charter and status discrimination). 76 Test-Achats (n 10). See also Italy v Commission (n 1), although the Court’s judgment is based primarily on the Staff Regulation which reproduces Art 21(1) EUCFR. 74

Claire Kilpatrick

599

Part I – Commentary on the Articles of the EU Charter

ie the provision respecting fundamental rights as general principles of Community law. However, the Court pushed it firmly towards the Charter instead stating: 16. Article 6(2) EU, to which the national court refers in its questions and which is mentioned in recital 1 to Directive 2004/113, provides that the European Union is to respect 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, as general principles of Community law. Those fundamental rights are incorporated in the Charter, which, with effect from 1 December 2009, has the same legal status as the Treaties.

21.72 The Court also stated that as the 2004 Directive expressly refers to Articles 21 and 23 of the Charter these provide the appropriate benchmark for assessing the validity of the challenged provision in the Directive. But note, as we have seen from our analysis of challenges to Member State’s status discrimination laws, this is neither a necessary nor a sufficient condition for use of the Charter. 21.73 The Court used Articles 21 and 23 of the Charter to rule as invalid the challenged provision.77 Clearly, Test-Achats when set against the other status discrimination cases we have discussed, shows the Court is especially keen to use the Charter in relation to status discrimination by the EU institutions, much less so when it comes to Member State actions and practices. 21.74 In summary, to date the Court of Justice has shown an active preference for Article 21 when it comes to fundamental rights challenges to EU law. When however, it comes to Member States’ laws and practices, Article 21 is seen as either adding little to existing sources or as less useful than alternative fundamental rights sources.

IV. Limitations and Derogations 21.75 Many of these have already been discussed earlier in this analysis, so we limit ourselves here to highlighting two key issues. One key issue, linked to Test-Achats, concerns when the Charter can overcome the limitations and derogations in EU discrimination law. A second, distinct though connected, issue is how Article 21 EUCFR is itself limited. In relation to the first issue, as noted earlier when examining the structure of EU dis21.76 crimination law, we saw that there is a wide and ground-differentiated set of justifications and derogations from the status discrimination prohibitions. While the justifications and derogations from gender and race discrimination are relatively tightly drawn (although the social security gender equality directive is a significant exception) those for age, sexual orientation, religion/belief and disability are set more widely. Especially in light of the successful validity challenge in Test-Achats to a gender equality derogation, the question arises whether Article 21 EUCFR can be used to challenge other limitations in EU discrimination legislation? Philippa Watson sees in Test-Achats the danger of a negative feedback loop between the Charter and the EU legislature78 for future legislation: The value of derogations has been diminished and it remains to be seen what impact this will have on the legislative process: will it make the adoption of measures in the sensitive areas of

77 78

600

Not from the date of the judgment (1 March 2011), but from 21 December 2012. See Select Bibliography.

Claire Kilpatrick

Art 21 – Non-Discrimination

social and employment law—in which Member States have traditionally been reluctant to cede competence—more difficult?

For existing legislation, she points to the wide-ranging set of ‘temporary’ derogations in the 1979 Directive on gender equality in social security. As its transposition period ended in 1984, these derogations have been in place for almost three decades, yet their ‘temporary’ nature has recently been affirmed by the Court of Justice.79 As this exemplifies, there is a pressing need after Test-Achats to significantly refine and conceptually develop when deviation from status discrimination is lawful and when it is not. In relation to the second issue, how the Charter itself is limited, we have seen that the expansive potential scope of Article 21 EUCFR is limited by the Charter itself in a number of ways. First, the nationality prohibition is expressly tied to the relevant Treaty provisions, in both its own wording and in the Explanations. Moreover, this is reinforced by Article 52(2) which provides that ‘rights recognised by this Charter for which provision is made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties’. Second, while the status discrimination prohibition is limited only in the Explanations, these essentially stress at some length the implications of the horizontal provision contained in Article 51 EUCFR for status discrimination. Hence, echoing Article 51(2), Article 21(1) ‘does not alter the extent of powers granted under Article 19 [TFEU] nor the interpretation given to that Article’. And, underlining Article 51(1), the Explanations relating to status discrimination also stress that the Charter applies to the EU institutions and to the Member States ‘only when they are implementing Union law’. This belt-and-braces approach makes the legal status of the Explanations, in particular the requirement in Article 6(1) TEU to have ‘due regard’ to them, less critical than it might otherwise be. Can Article 52 EUCFR provide some counterweight to this limiting approach in the sphere of status and nationality discrimination? Article 52(3) provides that Charter protection should be at least co-extensive with that provided by the ECHR, whilst Article 52(4) requires that Charter rights corresponding to fundamental rights as they result from the constitutional traditions common to the Member States should be interpreted in harmony with those traditions. Insofar therefore as greater protection is provided by either the ECHR or national constitutional traditions, Article 52 could provide a textual counterweight to the limitations on Article 21 EUCFR. However, in the sphere of status discrimination, it is the EU which has generally been the front runner in developing protection, making it unlikely, though certainly not impossible, that ECHR or national constitutional protection might outpace it. In the sphere of nationality discrimination, as far as EU citizens are concerned and as the Explanations to Article 52 expressly note, EU law provides more extensive protection to them than the ECHR. Hence the limitations provided by Article 16 ECHR on the rights of aliens80 do not apply to EU citizens, though this has also been established by the Strasbourg Court.81 Earlier, we discussed whether the European Court of Human

79

See Art 7 Directive 79/7; Case C-423/04 Richards [2006] ECR I-3585. ‘Nothing in Articles 10, 11 and 14 (art. 10, art. 11, art. 14) shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.’ 81 Piermont v France App nos 15773/89 and 15774/89 (Judgment of 27 April 1995). 80

Claire Kilpatrick

601

21.77

21.78

21.79

21.80

21.81

Part I – Commentary on the Articles of the EU Charter

Rights’ broader protection from nationality discrimination could be used to nudge the Court of Justice into a different position under EU law in relation to comparing EU and non-EU nationals.82 21.82 A final question mark lies over the Charter’s horizontal application in the sphere of status and nationality discrimination. These are both areas where protection not just against State action but also discriminatory action by private actors is particularly important. While the relevant treaty and legislative instruments apply to private actors, such as employers, the horizontal application of the Charter remains a live issue, especially in relation to status discrimination governed purely by EU legislation (all the grounds except gender equality in pay). Yet it has been suggested above that the Court developed its distinctive general principle jurisprudence in Mangold because Article 21 was not seen as capable of achieving the legal outcome sought by the Court: providing a fundamental rights source which would permit the status discrimination guarantee elucidated by the directive to apply in disputes between private parties.83

V. Remedies 21.83 Article 21 provides an important demonstration of one of the key remedies a successful direct use of the Charter can afford. In Test-Achats it was used by the Court of Justice to invalidate provisions of a piece of EU legislation which contravened the Charter obligation not to discrimination on grounds of gender. More broadly, status discrimination has been a key area of EU law for the development of strict and extensive requirements on the effectiveness of national remedies.84

E. Evaluation 21.84 Article 21 provides a highly productive vantage-point from which to analyse status and nationality discrimination in EU law. Analysis from this starting-point allows their evolving role and content as ‘human rights’ norms to be teased out temporally and in different EU institutional locations. The distinctive treatment of nationality discrimination in EU law, whereby it has not been used to test distinctions between EU and non-EU nationals, is cast in a different light when set against a broader human rights canvas and within a rapidly evolving EU legal order. Moreover, the very juxtaposition in Article 21 of nationality and status discrimina21.85 tion in an omnibus fundamental right outlawing discrimination opens new questions and perspectives about their shared structure and field of application. We have suggested that the existence of a broad, and open-ended, discrimination Charter provision opens new possibilities to read techniques used in nationality discrimination (especially 82

See above nn 34–36 and accompanying text. Above section D.III(a). 84 C Kilpatrick, ‘Turning Remedies Around: A Sectoral Analysis of the European Court of Justice’ in G de Búrca, and JHH Weiler (eds), The European Court of Justice. Collected courses of the Academy of European Law (11/2) (Oxford, Oxford University Press, 2001) 143. 83

602

Claire Kilpatrick

Art 21 – Non-Discrimination

in the context of citizenship) across to status discrimination, and vice versa, as well as providing a resource to deal with overlapping as well as intersectional discrimination and developing innovative approaches to tackling discrimination. In this sense, Article 21 EUCFR may act as an important bridge for developing EU discrimination protection. Examining carefully the uses and non-uses of Article 21 EUCFR to date also reveals 21.86 the special features of this Charter provision and its relationships with its surrounding EU and international human sources. Outside the use of Article 21 to strike down a provision of an EU Directive as invalid, which itself raises many fundamental questions about the structure of EU law and the relationship between the Court and the EU legislature, this analysis has highlighted that neither limb of Article 21 EUCFR has as yet played a very significant role in shaping EU fundamental rights law, despite the undoubted importance of both status discrimination and nationality discrimination as central and rapidly evolving areas of EU law. It has explored a number of reasons for this. The relationship between Article 21(1) EUCFR, the Court’s new general principle jurisprudence and the direct effect of Directives is a story that seems set to run and run, with broader implications for other areas covered by the Charter.

Claire Kilpatrick

603

Article 22 Article 22 Cultural, Religious and Linguistic Diversity The Union shall respect cultural, religious and linguistic diversity.

Text of Explanatory Note on Article 22 This Article has been based on Article 6 of the Treaty on European Union and on Article 151(1) and (4) of the EC Treaty, now replaced by Article 167(1) and (4) of the Treaty on the Functioning of the European Union, concerning culture. Respect for cultural and linguistic diversity is now also laid down in Article 3(3) of the Treaty on European Union. The Article is also inspired by Declaration No 11 to the Final Act of the Amsterdam Treaty on the status of churches and nonconfessional organisations, now taken over in Article 17 of the Treaty on the Functioning of the European Union.

Select Bibliography T Ahmed, The Impact of EU Law on Minority Rights (Oxford, Hart Publishing, 2011). X Arzoz (ed), Respecting Linguistic Diversity in the European Union (Amsterdam, John Benjamins Publishing Company, 2008). R Craufurd Smith, ‘The Evolution of Cultural Policy in the European Union’ in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford, OUP, 2011) 869–94. B de Witte, ‘Language rights: the interaction between domestic and European developments’, in AL Kjaer and S Adamo (eds), Linguistic Diversity and European Democracy (Farnham, Ashgate, 2011). T Hervey and J Kenner (eds), Economic and Social Rights under the EU Charter of Fundamental Rights—A Legal Perspective (Oxford, Hart Publishing, 2003) chs 1, 5, 10, 11. M Hunter-Henin, ‘Why the French don’t like the burqa: laïcité, national identity and religious freedom’ (2012) 61(3) International & Comparative Law 613–19. A Littoz-Monnet, The European Union and Culture. Between Economic Regulation and European Cultural Policy (Manchester, Manchester University Press, 2007). S Peers and A Ward (eds), The European Union Charter of Fundamental Rights (Oxford, Hart Publishing, 2004) ch 6. E Psychogiopoulou, The Integration of Cultural Considerations in EU law and Policies (Leiden, Martinus Nijhoff, 2008). G Schwellnus, ‘Reasons for Constitutionalization: Non-discrimination, Minority Rights and Social Rights in the Convention on the EU Charter of Fundamental Rights’ (2006) 13(8) Journal of European Public Policy 1265–83.

A. Field of Application of Article 22 Although the 1957 EEC Treaty was motivated by a desire to prevent any repetition of the 22.01 brutal cultural and religious repression that had characterised the Second World War, it did not directly address these concerns, save for the commitment to ‘preserve and

Part I – Commentary on the Articles of the EU Charter

strengthen peace and liberty’ in the preamble. Instead, mutual respect and tolerance was to be encouraged indirectly through the mechanism of economic integration.1 Concern on the part of certain Member States at the potential for EU law to erode distinctive traditions, coupled with a growing recognition on the part of the European institutions that successful integration would require more than simply a functioning internal market, led to the establishment in the 1992 Maastricht Treaty of European citizenship and the introduction of a specific article on culture, now Article 167 TFEU.2 Article 167(4) TFEU sought to address Member State concerns by requiring the EU to take ‘cultural aspects into account’ in all its actions, while Article 167(1) TFEU establishes a specific basis for EU action and the development of EU policy in the cultural field. These two paragraphs are among the few foundational Treaty bases for Article 22 CFR mentioned in the explanatory notes. Another article referred to in the explanatory notes is former Article 6 TEU, which 22.02 identified certain values fundamental to the EU legal order (paras 1–2) and the importance of respect for the national identities of the Member States (para 3). These provisions are now spread across Articles 2 and 4 TEU. Respect for diversity underpins, and is itself underpinned by, certain core values identified in the TEU. These values derive from the ‘cultural, religious and humanist inheritance of Europe’, noted in the preamble to the TEU, and include ‘respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities’ (Art 2 TEU). This expands somewhat on the previous Article 6(1) TEU by adding the explicit reference to human dignity, equality and, of particular interest from the perspective of Article 22CFR, minority rights. These values are stated to be ‘common to the Member States’ and to characterise societies where ‘pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail’. Article 2 TEU not only serves to internalise the political and ethical standards that underpin the Copenhagen accession criteria for new EU members,3 the Union is also required to promote these values in its external relations (Arts 3(1), 3(5), 8 TEU). 22.03 Apart from these guiding principles, a number of Treaty articles expressly require the EU to respect cultural diversity, generally, or in specific fields.4 These articles sometimes focus on diversity at the national, regional or local levels, at others they simply refer broadly to cultural diversity. One of the most general provisions is Article 3(3) TEU, the last of the three Treaty articles mentioned in the explanatory notes to Article 22 CFR, which states that the EU ‘shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced’. Similarly, the ‘mainstreaming’ provision in Article 167(4) TFEU, noted above, is general in application and suggests a broad conception of cultural diversity, requiring the Union ‘to respect and to promote the diversity of its cultures’. These articles are wide enough to take into account both the diversity that exists between Member States and within them.

1 E Steyger, National Traditions and European Community Law, Margarine and Marriage (Aldershot, Dartmouth, 1997); E Psychogiopoulou, The Integration of Cultural Considerations in EU Law and Policies (Leiden, Martinus Nijhoff, 2008). 2 R Craufurd Smith, ‘Community Intervention in the Cultural Field: Continuity or Change?’ in Craufurd Smith (ed), Culture and European Union Law (Oxford, OUP, 2004) 19–78. 3 Conclusions of the Presidency of 21–22 June 1993 (SN 180/93) p 13. 4 See Arts 3(3), 4(2) TEU and 67(1), 167(1), 167(4) TFEU, discussed further below.

606

Rachael Craufurd Smith

Art 22 – Cultural, Religious and Linguistic Diversity

By contrast, Articles 4(2) TEU and Articles 67(1) and 167(1) TFEU identify particular 22.04 forms of expression that contribute to diversity and which call for respect. Article 4(2) TEU requires the Union to respect the ‘equality of the Member States’, as well as their national identities ‘inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government’. As indicated, this finds its origins in Article 6(3) TEU, though now includes the additional reference to equality and the more explicit reference to internal constitutional structures. Though the focus here is on political or constitutional identity, such identity has important cultural, religious and linguistic dimensions.5 The German Federal Constitutional Court has, for example, held that ‘cultural issues such as the disposition of language, the shaping of circumstances concerning the family and education, the ordering of the freedom of opinion, press and of association and the dealing with the profession of faith or ideology’ are all closely tied to the protection of national identity.6 Article 67(1) TFEU calls for respect for the different legal systems and traditions of the Member States within the area of freedom, security and justice; while Article 167(1) TFEU calls on the EU to respect the national and regional diversity of the Member States while bringing the ‘common cultural heritage to the fore’ when acting in the cultural field. Save in relation to discrimination, discussed below, the TFEU does not establish any 22.05 specific competence in the field of religion. On the contrary, Article 17 TFEU requires the EU to respect the status under national law of churches and religious, as well as philosophical and non-confessional, organisations. This incorporates the terms of Declaration No 11 to the Amsterdam Treaty, identified as an ‘inspiration’ for Article 22 CFR in the explanatory notes. Although Article 17 TFEU focuses on national autonomy in religious matters as opposed to the direct protection of religious freedom, its scope is limited to the status of religious associations under national law. Characterisation of religious traditions or practices as ‘cultural’, though controversial, would require the EU to take into account the impact of EU law on religious diversity through the vehicle of Article 167(4) TFEU. A requirement to respect Member State customs regarding ‘religious rites, cultural traditions and regional heritage’ is now contained in Article 13 TFEU, which relates to animal welfare, and particular national concerns regarding religious beliefs are reflected in a number of Protocols to the Lisbon Treaty, such as Protocol 35 relating to access to abortion in Ireland. The Treaty basis for the obligation to respect linguistic diversity in Article 22 CFR is also 22.06 rather thin.7 Neither the first nor fourth paragraphs of Article 151 EC, now Article 167 TFEU, made reference to language, though support for literary creation, mentioned in paragraph 2, is language-based. Language is, however, widely regarded a form of cultural expression, so that the reference to linguistic diversity in Article 22 CFR is

5 Consider, for example, discussion in Case C-391/09 Malgožata Runevic ˇ-Vardyn, Łukasz Paweł Wardyn v Vilniaus miesto savivaldybe˙s administracija, Lietuvos Respublikos teisingumo ministerija, Valstybine˙ lietuviu˛ kalbos komisija, Vilniaus miesto savivaldybe˙s administracijos Teise˙s departamento Civiline˙s metrikacijos skyrius (12 May 2011) [86]–[89] and C-208/09 Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien [2010] ECR I-13693, regarding state recognition of the nobility. 6 Discussed in A von Bogdandy and S Schill, ‘Overcoming Absolute Primacy: Respect for National Identity Under the Lisbon Treaty’ (2011) 48 Common Market Law Review 1417–54, 1439. 7 X Arzoz, ‘The Protection of Linguistic Diversity through Article 22 of the Charter of Fundamental Rights’ in X Arzoz (ed), Respecting Linguistic Diversity in the European Union (Amsterdam, John Benjamins Publishing Company, 2008) 151–52.

Rachael Craufurd Smith

607

Part I – Commentary on the Articles of the EU Charter

adequately accounted for by Article 167 TFEU.8 Article 3(3) TEU now expressly states, as noted above, that the EU ‘shall respect its rich cultural and linguistic diversity’. In the educational field, Article 165(1) TFEU requires the EU to respect the responsibility of the Member States for the cultural and linguistic diversity of their education systems. 22.07 A number of articles deal with the use of languages by, and within, the EU. Article 21 EC, now 24 TFEU, establishes the right of EU citizens to write to the EU institutions in one of the national languages specified in Article 55(1) TEU and to receive an answer in that language. These languages are listed in Regulation 1/58, as amended, and constitute the official and working languages of the institutions.9 Regulations and other documents of general application, together with the Official Journal, are to be published in these languages.10 The texts of the treaties in the official national languages are equally authentic, and where there is more than one official language the states may themselves deposit a translation in that language with the Council (Art 55 TEU). Declaration A.16 to the Treaty of Lisbon confirms that this is intended to ensure ‘respect for the Union’s rich cultural and linguistic diversity’. 22.08 An important group of Treaty articles closely related to Article 22 CFR are those that establish the principles of equality and non-discrimination and seek to combat social exclusion and promote social justice within the terms of Article 3(3) TEU.11 In relation to discrimination, the initial focus was on nationality and sex discrimination in the workplace (see Arts 18 and 157 TFEU), but the Treaty now allows a wider range of discriminatory practices to be addressed in an extended category of fields, for instance, in relation to access to goods and services (Arts 8–10 TFEU).12 Under Article 19 TFEU, secondary legislation and incentive measures can be introduced to combat discrimination on grounds of sex, racial or ethnic origin, religion or belief, disability, age and sexual orientation. Equality is also an underlying principle behind the status of European citizenship (see Art 9 TEU). Key legislative initiatives include the Racial Equality and Employment Equality Directives both passed in 2000.13 In relation to social policy, Article 153 TFEU explicitly mentions a role for the EU in supporting domestic measures to integrate persons excluded from the workplace and to combat social exclusion. 22.09 Respect for cultural, religious and linguistic diversity is particularly important where the EU acts in the field of freedom, security and justice (Title V), notably when developing common asylum and immigration rules, and supporting judicial cooperation in criminal matters. Article 67 TFEU mentions the importance of combating racism and xenophobia and the 2008 Council Framework Decision 2008/913/JHA, which requires criminal offences and minimum sanctions to be introduced relating to racism and xenophobia, was based on the precursor provisions to Articles 67 and 83 TFEU in the TEU. The Fundamental Rights Agency, which replaced the European monitoring

8 The Preamble to the 2005 UNESCO Convention on Cultural Diversity recalls that ‘linguistic diversity is a fundamental element of cultural diversity’, while in case C-222/07 UTECA v Administración General del Estado [2009] ECR I-1407 the Court of Justice held that ‘language and culture are intrinsically linked’ (para 33). 9 See Council Regulation 1/58, as amended by Council Regulation 1791/2006, [2006] OJ L363/1, Annex, p 80. 10 Ibid. 11 For discussion of the relationship between the two see section B below. 12 Council Directive 2004/113/EC, implementing the principle of equal treatment between men and women in the access to and supply of goods and services [2004] OJ L373/37. 13 Council Directive 2000/43/EC [2000] OJ L180/22; Council Directive 2000/78/EC [2000] OJ L303/16.

608

Rachael Craufurd Smith

Art 22 – Cultural, Religious and Linguistic Diversity

centre on racism and xenophobia in 2007,14 researches and advises on the state of protection of fundamental rights within the EU.15 Its key reference point is the Charter, and the FRA has carried out a number of investigations into the position of the Roma and other minority groups defined by religion or sexual orientation within the Member States.16 The operation of a range of other Treaty provisions relating to free movement, cus- 22.10 toms duties, taxation, competition and agriculture can also operate to enhance diversity within the Member States but, as noted above, may also undermine distinctive cultural practices that cannot survive in a competitive environment. Very few of these provisions include explicit derogations for cultural purposes, rendering Article 167(4) TFEU of particular importance. Article 36 TFEU does, however, contain derogations from the free movement of goods provisions for measures designed to protect public morality, commercial property and national treasures, all of which are potentially relevant to supporting or curtailing cultural diversity. The Court of Justice has added to these Treaty provisions by allowing a range of derogations from the free movement rules for measures that pursue certain cultural objectives, such as support for national languages, enhanced cultural understanding and media plurality, where the measures concerned do not directly discriminate against foreign goods.17 Article 107(3)(d) TFEU includes a derogation from the state aid rules for aid to promote culture and heritage conservation (Art 107(3)(d)TFEU).18 State aid for services designed to promote cultural or linguistic diversity, such as public service media, may also be shielded by the provisions on services of general economic interest in Articles 14 and 106(2) TFEU, while Protocols 26 and 29 to the Lisbon Treaty emphasise Member State discretion in relation to such services. The EU is not only itself required to respect but also has a positive duty to promote 22.11 respect for cultural, religious and linguistic diversity in its external relations, though the means at its disposal are more limited than in the internal context.19 Article 167(4) TFEU is not restricted to internal affairs, while Article 3(5) TEU requires the EU, in its relations with the wider world, to promote its values, which, as noted above, include minority rights, and to contribute to the protection of human rights and mutual respect among peoples. Trade agreements relating to culture and the audiovisual sector that could prejudice cultural and linguistic diversity require Council unanimity under Article 207(4)(a)TFEU, while humanitarian assistance is to be executed in accordance

14 Council Regulation (EC) 1035/1997 establishing a European monitoring centre on racism and xenophobia [1997] OJ L151/1. 15 Council Regulation (EC) No 168/2007, establishing a European Union agency for fundamental rights [2007] OJ L53/1. 16 See, for example, EU Agency for Fundamental Rights, The Situation of Roma in 11 EU Member States and Making Hate Crime Visible in the European Union: Acknowledging Victims’ Rights, both (Luxembourg, 2012). 17 See, for example, Case 379/87 Groener v Minister for Education [1989] ECR 3967; Case C-288/89 Collectieve Antennevoorziening Gouda and others v Commissariaat voor de Media [1991] ECR I-727; Case C-180/98 Tourist Guides Italy [1991] ECR I-709; Case C-222/07 UTECA (n 8); and Case C-531/07 Fachverband der Buch- und Medienwirtschaft v LIBRO Handelsgesellschaft mbH [2009] ECR I-3717. 18 The Court of Justice in Case C-531/07 Fachverband der Buch- und Medienwirtschaft (n 17) [32]–[33], held that what is now Art 36 TFEU did not offer protection generally to cultural diversity. 19 For discussion, see C Ladenburger, ‘The Interaction between the Charter of Fundamental Rights, the European Convention of Human Rights and National Constitutions’, Institutional Report for FIDE 2012, p 23 at: www.fide2012.eu/index.php?doc_id=88, 23.

Rachael Craufurd Smith

609

Part I – Commentary on the Articles of the EU Charter

with the principles of ‘impartiality, neutrality and non-discrimination’ (Art 214(3) TFEU).20 Article 8TEU states that EU relations with its neighbouring countries are to be founded on the Union’s values. 22.12 A number of Treaty articles lay the foundation for positive measures to support and enhance various forms of cultural, religious and linguistic diversity in the EU’s internal actions. Of primary importance is Article 167 TFEU, which has formed the basis for a range of culture and citizenship-related programmes, but the EU has also supported cultural and linguistic diversity through action in the fields of education (Art 165 TFEU), tourism (Art 195 TFEU), agriculture (Arts 38–44 TFEU), and through the social and cohesion policies (Arts 174–78 TFEU), where significant sums have been allocated to cultural projects.21

B. Interrelationship of Article 22 with Other Provisions of the Charter 22.13 Given the broad nature of the concerns underpinning Article 22 CFR, the article has close links with many of the other Charter provisions. These articles address in a more focused way specific forms of prejudice or impediment that cultural, religious and linguistic groups tend to encounter and, given the rather open-ended nature of Article 22 CFR, it is probable that litigants or lobby groups will in many instances rely directly on these articles and employ Article 22 CFR, if at all, as a subsidiary provision. The Title I rights to dignity, life, and physical and mental integrity, and to protection 22.14 from eugenic practices, inhuman or degrading treatment, slavery or forced labour (Arts 1–5 CFR) are designed to prevent many of the practices that typically characterise the repression of cultural or religious groups. Similarly, the freedoms identified in Title II, particularly those relating to liberty and security of person; respect for personal and family life; the protection of personal data; and the right to marry and to found a family, all serve to guarantee a private zone where customs, beliefs and languages can be practised and passed on to the next generation without fear (Arts 6–9 CFR). Article 14 CFR enshrines not only the right to education but also the freedom to found educational establishments respecting both democratic principles and the rights of parents to ensure that their children are educated in conformity with their ‘religious, philosophical and pedagogical convictions’. The freedoms of thought, conscience and religion; of expression and information; 22.15 and of assembly and association in Articles 10–12 CFR protect the public as well as private manifestation of practices and beliefs, facilitating engagement within and between distinct groups. Importantly, Article 10(1) CFR confirms that individuals should be

20 For discussion of EU initiatives incorporating cultural considerations in external actions see European Union External Action Service, Human Rights and Democracy in the World, Report on EU Action in 2011 (Luxembourg, European Union, 2012); European Commission, Communication on a European Agenda for Culture in a Globalizing World, COM (2007) 242 final, 6–7; and European Commission, Culture Auction Floor, A Match for Development (Luxembourg, Publications Office of the European Union, 2010). 21 See further T Ahmed, The Impact of EU Law on Minority Rights (Oxford, Hart Publishing, 2011) ch 6 and discussion at section D.III below.

610

Rachael Craufurd Smith

Art 22 – Cultural, Religious and Linguistic Diversity

free to change their religious or other beliefs, while Article 10(2) CFR recognises the right to conscientious objection, particularly relevant in areas such as military service and abortion. This latter right is, however, qualified, as are the rights to marry, found a family and to establish educational establishments under Articles 9 CFR and 14(3) CFR, by the requirement that these should be in conformity with national laws. The freedom of the arts and sciences, including academic freedom, in Article 13 CFR, directly protects the diversity of cultural expressions, but also confirms that cultural and religious beliefs, however deeply held, are not beyond critical examination. The role of economic incentives in encouraging cultural creativity is recognised in the protection afforded intellectual property in Article 17 CFR. The solidarity rights in Chapter IV (particularly those to fair and just working conditions, to social security and social assistance, to healthcare and access to services of general economic interest); the citizenship rights in Chapter V (particularly those ensuring the right to vote in certain elections, to move and reside freely among the Member States and to communicate with the institutions in one of the official languages); alongside the rights to choose an occupation, to conduct a business and to own and dispose of property in Articles 15–17 CFR, are all essential for cultural and religious communities to survive and flourish. The right to asylum in Article 18 CFR enables persecuted communities to regroup on foreign soil, while the prohibition of collective expulsions in Article 19 CFR prevents the stigmatisation of specific groups, characteristic of such actions. That this article remains relevant within the EU is evidenced by the controversy over French measures to repatriate large numbers of Roma initiated over the summer of 2010.22 Article 22 CFR is most closely related to the articles in Title III on equality, where it is itself located. In particular, the broad principle of equality enshrined in Article 20 CFR, and more specifically in Article 21 CFR, is designed to prevent many of the acts of exclusion or marginalisation that damage particular communities or groups. Article 21 CFR establishes a non-exhaustive list of prohibited grounds for discrimination of which ethnic or social origin, language, religion or belief, political or other opinion, membership of a national minority, sexual orientation and nationality are all particularly relevant to Article 22 CFR. Articles 23–26 CFR specifically address sex equality, the position of children, the elderly and disabled, with reference to the need for the elderly to be able to participate in cultural and social life and for the disabled to be involved in the life of the community. It is apparent that there is a potentially significant overlap between Articles 21 and 22 CFR, in that discrimination (positive discrimination apart) is indicative of a lack of respect for the target group. Article 21 CFR, however, addresses a wider range of discriminatory practices than Article 22 CFR, in that it extends to discrimination on the basis of inherent rather than adopted attributes, such as sex, colour or genetic features, which are not cultural. But these inherent features are often linked to distinctive cultural practices, which do fall within the scope of Article 22 CFR. On the other hand, although

22 The measures taken in summer 2010 were held by the European Committee for Social Rights to violate human dignity and to be discriminatory contrary to the European Social Charter in complaint 63/2010, Centre on Housing Rights and Evictions v France (28 June 2011) at: www.coe.int/t/dghl/monitoring/socialcharter/ Complaints/CC63Merits_en.pdf.

Rachael Craufurd Smith

611

22.16

22.17

22.18

22.19

Part I – Commentary on the Articles of the EU Charter

the list of discriminatory grounds in Article 21 CFR is expressly non-exhaustive, it focuses on national minorities, whereas Article 22 is framed in broad terms, capable of extending to all minority groups in line with Article 2 TEU. 22.20 Whether Article 22 CFR itself encapsulates a principle of equality is currently unresolved. The fact that the explanatory notes to Article 21 CFR, but not Article 22 CFR, make explicit reference to Articles 18 and 19 TFEU, the Treaty Articles on discrimination, suggests that the focus of Article 22 CFR was intended to be on practices other than discrimination. Advocate General Kokott, in the context of the dispute in Italy v Commission, regarded the principle of multilingualism, recognised in Article 22 CFR, as operating effectively only in conjunction with the general principle of equal treatment enshrined in Article 20 CFR.23 On the other hand, the 2005 UNESCO Convention on cultural diversity, ratified by the EU and discussed at section C.II below, states that ‘the diversity of cultural expressions presupposes the recognition of equal dignity of and respect for all cultures’ (Art 2(3), emphasis added). 22.21 Given the extent to which the interests of cultural, religious and linguistic groups can be addressed through other Charter articles, in particular Articles 10, 11 and 21 CFR, it is pertinent to ask what Article 22 CFR adds to the existing list. The ambiguous status of Article 22 CFR is largely a result of the political tensions surrounding recognition of minority rights during the drafting of the Charter. The article was introduced at a very late stage of the proceedings, the result of ‘behind the scenes’ bargaining.24 Although it makes no mention of minority rights, it appears to have been an oblique concession to those who had pressed for inclusion of a minority-protection clause, either within Article 21 CFR or as a free-standing provision.25 As drafted, the specific contribution made by Article 22 CFR rests in its identification of diversity as a value in its own right, a resource for both individual and social development. Although many policies inimical to cultural, religious or linguistic diversity do involve discrimination, many do not: exposure to competitive pressures, for example, can render traditional practices uneconomic or outmoded; similarly, ready access to opportunities abroad can lead to the dissipation of distinctive communities. Tackling discrimination is thus a necessary, but may not be a sufficient step to ensuring cultural, religious and linguistic diversity.26 As discussed further in section D.I below, respect for diversity in Article 22 CFR arguably goes beyond imposing a negative obligation on the EU not to harm diversity and creates a positive requirement to take measures to help preserve and promote such diversity, for instance, through tackling the actions of third parties or providing technical, financial and other means of support for marginalised or struggling communities.

23

C-566/10 P Italy v Commission (Opinion of 21 June 2012) [88]. G Schwellnus, ‘Reasons for Constitutionalization: Non-discrimination, Minority Rights and Social Rights in the Convention on the EU Charter of Fundamental Rights’ (2006) 13(8) Journal of European Public Policy 1265–83, 1276. 25 Ibid. 26 X Arzoz, ‘The Protection of Linguistic Diversity’ (n 7) 155. 24

612

Rachael Craufurd Smith

Art 22 – Cultural, Religious and Linguistic Diversity

Article 22 CFR can also help to shape the interpretation and application of other 22.22 Charter Articles.27 It could, for example, influence the balance to be struck between the ‘freedom and pluralism of the media’ in Article 11.2 CFR, or a willingness to accommodate ‘substantive equality’ concerns and positive discrimination in the context of Article 21 CFR.28 There is considerable scope for Article 22 CFR, with its focus on group interests, 22.23 to come into conflict with other Charter articles. Religious and cultural communities are not above treating certain of their members inhumanely, or discriminating against those who do not share their beliefs. Moreover, the application of articles that seem inherently supportive of Article 22 CFR, such as the right to conscientious objection in Article 10 CFR, could lead to insufficient accommodation of members of groups with different beliefs.29 Conflicts may also arise between property rights and traditional customs, such as hunting.30 It is probable that some of the most heated conflicts will be between distinct cultural or religious groups, seeking accommodation from the other, internal to Article 22 CFR itself.31

C. Sources of Article 22 Rights I. ECHR There is no direct parallel to Article 22 CFR in the ECHR. The Convention rights to 22.24 respect for private and family life; freedom of thought, conscience and religion; freedom of expression; freedom of assembly and association; freedom for men and women to marry and found a family; and the prohibition of discrimination, which explicitly mentions association with a ‘national minority’ (Arts 8–12 and 14 respectively) may all, however, be employed in actions designed to support cultural, religious and linguistic diversity, and to this extent may be deemed to ‘correspond’ at least in part to Article 22 CFR. It is also worth mentioning Article 2 of the First Protocol of 1952, which calls on states to respect the right of parents to ensure that their children are educated ‘in conformity with their own religious and philosophical convictions’; Article 4 of the Fourth Protocol of 1963, which prohibits the collective expulsion of aliens;32 and Article 1 of the Twelfth Protocol of 2000, which, in relation to the enjoyment of Convention rights, 27 Performing a role similar to Art 27 of the Canadian Charter of Rights and Freedoms, which provides that the Charter ‘shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians’. 28 See discussion of different conceptions of equality by M Bell, ‘The Right to Equality and NonDiscrimination’, in T Hervey and J Kenner, Economic and Social Rights under the EU Charter of Fundamental Rights—A Legal Perspective (Oxford, Hart Publishing, 2003) ch 5. 29 See, in the context of the European Social Charter, complaint no 87/2012 International Planned Parenthood Federation European Network (IPPF EN) v Italy (European Committee of Social Rights, 3 September 2012) at: www.coe.int/t/dghl/monitoring/socialcharter/Complaints/CC87CaseDoc1_en.pdf. 30 See Herrmann v Germany App no 9300/07 (2013) 56 EHRR 7. 31 Consider, for example, conflicts between animal welfare and religious groups at issue in ECtHR case Jewish Liturgical Association Cha’are Shalom Ve Tsedek v France App no 27417/95, 9 BHRC 27. 32 Of the EU Member States, Greece is not a signatory and the UK has still to ratify the protocol.

Rachael Craufurd Smith

613

Part I – Commentary on the Articles of the EU Charter

prohibits discrimination ‘on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’.33 22.25 Articles 9, 10 and 11 ECHR have been interpreted as affording a wide measure of protection to political speech and association, including speech calling for greater rights for cultural, ethnic or religious minorities.34 States can repress political speech only in limited contexts, notably where it incites violence or threatens to undermine democratic institutions and values.35 In relation to religious speech, the Court has accepted that states may need ‘to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected’.36 The state has, however, been held to have an obligation to be neutral in the face of different faiths and belief systems, not seeking to employ its power to promote one to the disadvantage of others. Discrimination against, or repression of, religious groups or the manifestation of their beliefs by the state without compelling cause will breach Article 9 ECHR.37 Restrictions on wearing distinctive clothes in public has, for example, been held to infringe Article 9 ECHR,38 while prohibitions on staff wearing certain religious clothing or jewellery in order to protect patient safety in a hospital has been held to be proportionate.39 Where the policy of a state, or indeed a private, body is to guarantee non-discrimination in the provision of goods or services, it is legitimate for the organisation to expect those working for it to comply with this ethic, even against their religious convictions.40 22.26 The Court has been willing to accommodate widely different constitutional traditions regarding the secular nature or religious affiliations of state parties. The Lautsi case establishes that absolute neutrality is not required, and states may make overt reference to historical or constitutional links with particular religions or value systems.41 The Grand Chamber held that the ‘passive’ inclusion of specific religious symbols within state schools, in this case a crucifix, would be legitimate as long as it did not amount to ‘indoctrination’.42 In Dogru v France, restrictions on the wearing of religious clothing by children at school were seen as legitimate in light of France’s constitutional commitment to a secular state, though the grounds for the restriction were couched in

33 Seven EU countries (Bulgaria, Denmark, France, Malta, Poland, Sweden and the UK) are not signatories to the twelfth protocol while only seven Member States have proceeded to ratification. 34 Erdogdu v Turkey App no 25723/94 (2002) 34 EHRR 50. 35 See Refah Partisti (the Welfare Party) and Others v Turkey App nos 41340/98, 41342/98, 41343/98 and 41344/98 (2003) 37 EHRR 1 [98]. 36 Case A/260-A Kokkinakis v Greece (1993) 17 EHRR 397 [33]. See also Murphy v Ireland App no 44179/98 (2004) 38 EHRR 13 [78]. 37 See Jehovah’s Witnesses of Moscow v Russia App no 302/02 (2011) 53 EHRR 4 and Metropolitan Church of Bessarabia and Others v Moldova App no 45701/99 (2001) 35 EHRR 306. 38 Ahmet Arslan and others v Turkey App no 41135/98 (23 February 2010). 39 Eweida and Others v United Kingdom App nos 48420/10, 59842/10, 51671/10 and 36516/10 [2013] IRLR 231, (2013) 163 NLJ 70. 40 Ladele and McFarlane v United Kingdom App nos 51671/10 and 36516/10 [2013] IRLR 231, (2013) 163 NLJ 70. 41 Lautsi v Italy App no 30814/06 [2011] ELR 176. 42 Ibid.

614

Rachael Craufurd Smith

Art 22 – Cultural, Religious and Linguistic Diversity

health and safety terms.43 The ECHR affords states a wide margin of appreciation when prohibiting hate speech or holocaust denial.44 The state is also under a positive obligation to protect religious or other groups from 22.27 restraints imposed by other private organisations.45 Two of the cases considered in Eweida and Others v UK (Eweida) concerned private bodies.46 In relation to requirements imposed by religious groups on their members, the Court allows a degree of latitude in order to protect the integrity and coherence of the group itself and thus the maintenance of cultural diversity.47 The ability for a group member to obtain alternative work or services has been seen as precluding infringement of Article 9 ECHR, but the Court in Eweida indicated that this should not be considered decisive in the employment context.48 Given the diversity of cultural and historical factors that shape state language poli- 22.28 cies, the ECtHR has afforded Member States a ‘particularly wide’ margin of appreciation in this field.49 Although Articles 5 and 6 ECHR require certain linguistic support for those subject to criminal prosecution, the Convention is not seen as guaranteeing the right to use particular languages when communicating with public bodies; the right to receive information from those bodies in the language of one’s choice; or a guarantee for children of access to state education in their mother tongue.50 Where communication takes place between private individuals, however, Article 10 ECHR has been held to include ‘the freedom to receive and impart information and ideas in any language that allows persons to participate in the public exchange of all varieties of cultural, political and social information and ideas’.51 In relation to the protection of ethnic and minority groups more generally, the 22.29 ECtHR has decided a growing number of cases involving various forms of discrimination or other repressive state behaviour. Many of these cases have involved the Roma community, and have concerned matters such as forced sterilisations, unwarranted segregation of children in schools, and failure to investigate potentially racist motivations behind violent attacks.52

43

Dogru v France App no 27058/05 (2009) 49 EHRR 8. Norwood v UK App no 2313/03 (2005) 40 EHRR SE11, though proper allowance has to be made for discussion of past political and historical events: Lehideux and Isorni v France App no 24662/94, (2000) 30 EHRR 665. The Court has accepted the legitimacy of (in some cases discriminatory) blasphemy laws, see Wingrove v UK App no 17419/90 (1997) 24 EHRR 1. 45 Özgür Gündem v Turkey App no 23144/93 (2001) 31 EHRR 1082; Eweida and Others v United Kingdom (n 39). 46 Eweida and Others v United Kingdom (n 39). 47 Siebenhaar v Germany App no 18136/02 (3 February 2011) cf Schüth v Germany App no 1620/03 (2011) 52 EHRR 32, where a more restrictive approach was adopted. 48 Ibid para 83. 49 Sükran Aydin and Others v Turkey App nos 49197/06, 23196/07, 50242/08, 60912/08 and 14871/0950 (22 ‚ January 2013) para 51. 50 Mentzen v Latvia Dec no 71074/01 ECHR 2004-XII; Belgian Linguistic Case App nos 1474/62, 1677/62, 1691/62, 1769/63, 1994/63 and 2126/64, (1979-80) 1 EHRR 252; and see review of the case law in S‚ükran Aydin and Others v Turkey (n 49) paras 50–51. 51 Sükran Aydin and Others v Turkey (n 49) para 52. ‚ 52 VC v Slovakia App no 18968/07 (8 November 2011); DH and Others v Czech Republic App no 57325/00, (2008) 47 EHRR 3; Nachova and Others v Bulgaria App nos 43577/98 and 43579/98, (2006) 42 EHRR 43. 44

Rachael Craufurd Smith

615

Part I – Commentary on the Articles of the EU Charter

II. UN Treaties 22.30 The two UN human rights treaties of 1966, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), laid important foundations for Article 22 CFR. In particular, Article 18 ICCPR protects the rights to freedom of thought, conscience and religion, while Article 27 establishes the right for ethnic, religious and linguistic minorities to ‘enjoy their own culture, to profess and practise their own religion, or to use their own language’ in community with other members of their group. The general comments provided by the Office of the High Commissioner for Human Rights confirms that minority rights within Article 27 are individual rights that complement and are distinct from other rights contained in the Charter, such as the right to freedom of expression and the right not to be discriminated against.53 The right has both negative and positive aspects, requiring both respect on the part of the state and also action, where required, to prevent repression by private parties. Protection is afforded to all members of minority groups, including migrants and temporary residents, within the jurisdiction of a state party and is not limited to established minorities. Culture is construed broadly to include, for example, traditional land use and it is recognised that states may be required to engage in positive measures to support, not just the survival, but also ‘continued development’ of specific groups. Article 27 does not establish a right to selfdetermination. The individual complaint procedure under the First Optional Protocol to the Covenant has been used to establish equal rights for religious schools to obtain state funding,54 and to hold a prohibition on public officials responding to the public in a particular language a form of discrimination contrary to Article 26.55 22.31 The ICESCR builds on the ICCPR by establishing certain basic social and economic rights of importance to minority or disadvantaged groups, such as access to education, and an adequate standard of living. Article 15 provides a right to take part in cultural life, a right reflected also in Article 27 of the 1948 Universal Declaration of Human Rights. Additional protection for children, women and racial groups is provided through the 1989 Convention on the Rights of the Child, which seeks to guarantee ethnic minority children the right to practise their own religion, culture and language (Art 30); the 1979 Convention on the Elimination of all Forms of Discrimination Against Women; and the 1965 Convention on the Elimination of all Forms of Racial Discrimination. The 1993 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, seeks to address in one document many of the concerns raised by minorities, and envisages positive measures going beyond mere protection. Article 1 provides that ‘states shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity’. 22.32 UNESCO oversees a number of important declarations and conventions that address the impact of trade and development on cultural diversity. These include the 2001 UNESCO Universal Declaration on Cultural Diversity and the 2005 Convention on the

53 54 55

616

General Comment No 23: The Rights of Minorities (Art 27), 08/04/1994. Waldman v Canada (No 694/1996). Diergaart v Namibia (No 760/1997).

Rachael Craufurd Smith

Art 22 – Cultural, Religious and Linguistic Diversity

Protection and Promotion of the Diversity of Cultural Expressions. The 2005 Convention aims to promote balanced cultural exchanges between nations, and to foster ‘interculturality’ ‘in the spirit of building bridges among peoples’ (Art 1). It affirms the rights of states to take a wide range of measures to protect cultural diversity in line with guiding principles, which include the principle of equal dignity of, and respect for, all cultures (Art 2(3)). The 2003 Convention for the Safeguarding of Intangible Cultural Heritage requires parties to identify and take measures to protect the intangible cultural heritage in their country, such as folklore, often associated with particular minority groups.

III. Council of Europe Treaties The Council of Europe has similarly co-ordinated a number of conventions that deal with 22.33 discrimination and minority rights and with the preservation of cultural heritage and diversity more generally. Of primary importance are the 1995 Framework Convention on National Minorities and the 1992 European Charter for Regional and Minority Languages. The first relates specifically to ‘national minorities’, a term that is not defined, but suggests longstanding ties with the country concerned, thus excluding new migrants. By virtue of Article 5, parties agree to ‘undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage’. In order to further intercultural dialogue, Article 6 calls on states to promote mutual understanding among ‘all persons living on their territory’, not merely national minorities, and to take adequate steps to protect people targeted because of their identity. The 1992 Charter concerns ‘regional or minority languages’, defined as those ‘traditionally used within a given territory of a State by nationals of that State’ and which are different from the official language of the State (Art 1). The Charter identifies a range of measures designed to protect and validate such languages, which parties can, but are not obliged to, undertake and, like the 1995 Framework Convention, introduces a system of regular reporting and monitoring. Around a third of the EU Member States have still to ratify the European Charter for Regional or Minority Languages, while most Member States have ratified the Framework Convention on national minorities. Belgium, France and Greece have ratified neither treaty. Alongside these two core conventions, the revised 1996 European Social Charter, 22.34 guarantees basic social and economic conditions for workers and their families, including migrant workers, without discrimination on grounds of ‘race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status’ (Art E). Parties are required to submit annual reports, and around half of the EU Member States have agreed to allow collective complaints to be lodged with the European Committee of Social Rights, a process employed to protect Roma access to social benefits in France.56 The 2003 Additional Protocol to the Convention on Cybercrime, requires the criminalisation of the distribution of racist and xenophobic speech.

56 Complaint 63/2010 Centre on Housing Rights and Evictions v France (28 June 2011) at: www.coe.int/t/ dghl/monitoring/socialcharter/Complaints/CC63Merits_en.pdf.

Rachael Craufurd Smith

617

Part I – Commentary on the Articles of the EU Charter

22.35

In relation to culture more generally, the 1954 European Cultural Convention can be seen as an early proponent of intercultural dialogue, calling on contracting states not only to preserve the cultural heritage within their territories (Art 1) but also to encourage their nationals to study the languages, history and civilisation of other parties and to promote the study of their own languages and civilisation abroad (Art 2). The 1989 European Convention on Transfrontier Television is tangentially relevant, through its introduction of television quotas for European content (Art 10) and measures designed to prevent hate speech (Art 7). Article 10bis of the Convention also underlines the importance of media pluralism.

IV. Other 22.36 Although almost all Member States include in their constitutions specific provisions relating to cultural, religious or linguistic diversity or minority rights, they vary widely in approach and specificity, reflecting the states’ divergent histories and constitutional traditions.57 The EU encompasses strongly secular and unitary states, such as France, as well as countries with established religions such as Malta, Denmark and the UK (for England) and those with high levels of regional autonomy such as Italy, Germany and Spain. Language policies vary widely.58 Though incremental accession by the Member States to international conventions such as the Council of Europe treaties noted above, is gradually establishing a body of established principles in the field, there remain countries, such as France, that are suspicious of any external review of policies touching on their national identity. France has thus not participated in the national minority and language regimes under the two Council of Europe conventions, and was opposed to the introduction of a specific article on minority rights in the Charter.59 As Schwellnus has observed, ‘domestic resonance’ relating to minority rights and cultural diversity thus varies greatly among the Member States.60

D. Analysis I. General Remarks 22.37 Understanding the nature of the term ‘respect’ is central to determining the degree of constraint that Article 22CFR imposes on the EU and potentially Member States.61 Understood in a minimalist sense, respect requires no more than that attention should 57 The constitutional provisions of the Member States relating to Art 22 are detailed, with English translations, by the Fundamental Rights Agency at: http://infoportal.fra.europa.eu/InfoPortal/infobaseShowContent. do?btnCat_214&btnCountryBread_169. 58 B de Witte, ‘Language rights: the interaction between domestic and European developments’, in AL Kjaer and S Adamo (eds), Linguistic Diversity and European Democracy (Farnham, Ashgate, 2011) 167–88. 59 G Schwellnus, ‘Reasons for Constitutionalization’ (n 24) 1274. 60 Ibid 1273. 61 For helpful discussion see X Arzoz, ‘The Protection of Linguistic Diversity’ (n 7) 159–63 and A von Bogdandy and S Schill, ‘Overcoming Absolute Primacy’ (n 6) 1441, fn 124.

618

Rachael Craufurd Smith

Art 22 – Cultural, Religious and Linguistic Diversity

be given to a particular interest, ensuring it is not overlooked. A more robust meaning calls for a degree of deference, or weight, to be afforded the interest concerned, seen as having a value in its own right. That cultural diversity has a positive value within the EU legal order is evidenced not only by Article 167 TFEU but in the EU’s ratification of the 2005 UNESCO Convention on Cultural Diversity. The EU would here be expected to accommodate cultural diversity wherever possible in its actions, preferring those forms of intervention that are the least restrictive of this interest. The obligation to respect becomes even more constraining where Article 22 CFR is seen as recognising substantive rights to certain forms of cultural, religious or linguistic expression. EU action that could curtail such rights would then have to be supported by a compelling competing right or interest and would need to be both necessary and proportionate.62 In certain cases, such action would be precluded. A further conception of respect incorporates the sense of ‘to care for’ or ‘support’. On 22.38 this view, Article 22 CFR creates not simply a negative responsibility not to harm without good cause but also positive obligations to promote cultural diversity.63 Although Article 51(2) CFR states that the Charter should not be interpreted to create new tasks for the Union, the TFEU does impose certain positive obligations on the EU, both when pursuing specific cultural policies under Article 167(1) TFEU and when acting in other fields, where Article 167(4) TFEU requires the Union to take culture into account not just to respect but also to promote the diversity of its cultures.64 On the other hand, the reference to both ‘respect’ and ‘promote’ in this context could indicate that the latter term was intended to add to the former, and that the more conservative, negative, understanding of ‘respect’ is correct. The EU network of independent experts in their commentary on the Charter drew a clear distinction between the requirement to respect cultural, religious and linguistic diversity in Article 22 CFR and the power to promote cultural and linguistic diversity in the Treaty.65 The explanatory notes to the Charter do not clarify whether Article 22 CFR estab- 22.39 lishes rights or principles, which require further implementation to take effect (see Art 52.5 CFR). Views on this issue diverge. The very open-ended formulation of the article could indicate that it was intended merely to establish principles and it has been characterised as a ‘rather weak provision, which appears to confer positive rights neither on individuals nor groups’.66 Advocate General Jääskinen has referred to the protection of linguistic diversity as a principle, limited in terms of impact to the ‘institutions and

62 X Arzoz, ‘The Protection of Linguistic Diversity’ (n 7) 160 and see section D.IV below. Although this appears to go well beyond the minimal requirement in Art 167(4) TFEU to take cultural aspects ‘into account’, it could be accommodated within the second clause in Art 167(4) TFEU, which clarifies that this is ‘in order to respect and to promote’ cultural diversity. 63 For support see Arzoz, ibid, 160–62. 64 See also the requirement to ‘enhance’ cultural heritage in Art 3(3) TEU. The Commission in its Agenda for Culture in a Globalising World, COM (2007) 242 final, p 8, identifies a clear commitment to positively promote cultural diversity and intercultural dialogue. 65 EU Network of Independent Experts on Fundamental Rights, Commentary of the Charter of Fundamental Rights of the European Union’, June 2006 at: http://ec.europa.eu/justice/fundamental-rights/ files/networkcommentaryfinal_en.pdf. 66 C Wallace and J Shaw, ‘Education, Multiculturalism and the Charter of Fundamental Rights of the European Union’ in T Hervey and J Kenner, Economic and Social Rights under the EU Charter of Fundamental Rights—A Legal Perspective (Oxford, Hart Publishing, 2003) 243.

Rachael Craufurd Smith

619

Part I – Commentary on the Articles of the EU Charter

bodies of the Union’.67 The General Court in Italy v Commission held that Article 22 CFR had no binding legal force, but did so in the context of reviewing an action that occurred prior to the coming into force of the Lisbon Treaty.68 None of the authorities cited specifically addressed the classification of Article 22. Advocate General Kokott in her opinion in the case refers to the ‘principle of multilingualism’ as falling within the scope of Article 22 CFR, which she notes is now legally binding.69 22.40 Although textual readings of the Charter are inconclusive, the explanatory notes to Article 52 CFR state that subjective rights command ‘respect’, whereas principles are merely to be ‘observed’, suggesting that Article 22 CFR concerns rights. In arguing for a rights-based interpretation, Arzoz notes that the intentions of those who drafted the Charter were precisely to protect individual rights and that to construe Article 22 CFR as merely ‘celebrating or proclaiming’ the value of diversity would be ‘not only politically deceptive but also wrong’.70 A third possibility is that Article 22 CFR, like the preceding Article 23 CFR, establishes both rights and principles.71 On this view, Article 22 CFR would create rights for individuals to challenge the curtailment of their distinctive expressions by the EU institutions or Member States, when acting in the field of EU law, but not to require that positive steps be taken to support the maintenance of these expressions through funding or other opportunities, a matter of principle for the legislature to take up. More questionable is whether Article 22 gives individuals a positive right to require the EU to take action against private parties that seek to repress diversity, though this would be in line with the approach of the ECtHR to Article 9 ECHR.72 22.41 As noted above, key terms employed in Article 22 CFR, such as ‘cultural’, ‘religious’ and ‘respect’, remain undefined, rendering the exact nature of the obligations imposed on the EU and Member States difficult to gauge. In relation to ‘culture’, the European institutions have tended to adopt an inclusive approach, interpreting the term as comprising not only the fine arts but also everyday practices and symbolic expressions, including linguistic and religious expression.73 Unqualified as it is, cultural diversity in Article 22 CFR can extend beyond traditional national or regional cultural expressions, to embrace immigrant and new forms of cultural expression taking root within the Union. In this respect, the article may be more inclusive than Articles 3(3) TEU and 167(4) TFEU, which refer to the diversity of the Union’s cultures, and thus could be construed as limited to those cultures that have an established presence within Europe and are in some sense ‘European’. Regarding ‘religious diversity’, the scope of Article 22 CFR is narrower than Article 17 TFEU, which expressly refers to philosophical and non-confessional organisations. Philosophical organisations of this latter type could presumably be accommodated, however, within the term ‘cultural’.

67

Case C-202/11 Anton Las v PSA Antwerp NV (Opinion of 12 July 2012) [57]. Case T-166/07 and T-285/07 Italy v Commission [2010] ECR II-193 [90]. 69 Case C-566/10 P Italy v Commission (n 23) [85]–[92]. 70 X Arzoz, ‘The Protection of Linguistic Diversity’ (n 7) 160. 71 Art 23 is listed as having this mixed quality in the explanatory notes to Art 52 CFR. 72 See section C.I above. 73 European Commission, Communication on a European Agenda for Culture in a Globalizing World, COM (2007) 242 final, p 3. In this, it mirrors the definition of ‘cultural diversity’ in Art 4(1) of the UNESCO Convention on Cultural Diversity as ‘the manifold ways in which the cultures of groups and societies find expression’. For further discussion see T Ahmed, The Impact of EU Law on Minority Rights (n 21) ch 6. 68

620

Rachael Craufurd Smith

Art 22 – Cultural, Religious and Linguistic Diversity

According to Article 51 CFR, Article 22 CFR only applies to the EU institutions and 22.42 the Member States when acting within the scope of EU law. The extent to which EU law can be called in aid to protect minority and other diversity interests will thus largely depend on the interpretation given by the Commission and Court of Justice to the ‘scope’ of EU law. The Commission has adopted a rather cautious approach, refusing to investigate a number of cases involving fundamental rights where the link to EU law was indirect and where intervention would have propelled the EU into the middle of contentious domestic disputes.74 It did not, for example, take up the issue of the French ban on wearing the burqa in public, even though this could interfere with the free movement and economic rights of EU citizens in other Member States wishing to visit France to obtain goods and services.75 In such contexts it remains open for individuals to test out their rights by relying on directly effective EU law to challenge domestic rules in domestic courts, which can then make preliminary references to the Court of Justice. The Court has so far failed to establish clear principles for establishing such scope, with certain cases, such as Carpenter,76 adopting a wide approach to bring in fundamental rights, and others, such as Dereci, adopting a more constrained interpretation.77 Though there may be alternative domestic or ECHR avenues of redress, it is worth again noting that there is no direct parallel in the ECHR to Article 22 CFR and that EU law offers particular advantages in relation to enforcement. Nor is the Charter directed at the actions of private bodies. Where, however, private 22.43 actions are directly subject to EU law or are shaped by state law that is itself governed by EU law, the Charter may influence the interpretation or legality of those underlying laws and thus the legitimate sphere of action of the body concerned.78 In Anton Las, the Advocate General held that Article 22 CFR could not, however, be an independent basis on which states could restrict the EU freedoms of private individuals.79 As will be apparent from section A, almost every aspect of EU law could potentially 22.44 bring Article 22 CFR into play. Section D.III below explores in more detail specific areas where questions of cultural, religious and linguistic diversity have assumed some importance in practice.

74 See C Ladenburger (n 19) 12. Ladenburger also, however, notes sensitive instances where the Commission has intervened, notably regarding the proposed Hungarian media law in 2011 and the French expulsion of Roma EU citizens in 2010. 75 Ibid. For discussion see M Hunter-Henin, ‘Why the French don’t like the burqa: laïcité, national identity and religious freedom’ (2012) 61(3) International Comparative Law Quarterly 613–19; G Van der Schyff and A Overbeeke, ‘Exercising religious freedom in the public space: a comparative and European Convention analysis of general burqa bans’ (2011) 7(3) European Constitutional Law Review 424–52. 76 Case C-60/00 Carpenter [2002] ECR I-6279 and for a broad proposed though not applied formulation see AG Sharpston in Case C-34/09 Ruiz Zembrano v ONEm [2011] ECR I-1177. 77 Cases C-3-9/96 Annibaldi [1997] ECR I-7493; C-361/07 Polier [2008] ECR I-6; and C-256/11 Dereci (15 November 2011). 78 For a specific example relating to language use see Case C-202/11 Anton Las v PSA Antwerp NV, pending and, in different contexts, Cases C-555/07 Kücükdeveci [2010] ECR I-36 and C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets avdelning 1, Byggettan and Svenska Elektrikerförbundet [2007] ECR I-11767. 79 Case C-202/11 Anton Las (n 67) [57]; though it was used to strengthen the case for a restriction in the opinion of Advocate-General Sharpston in Case C-222/07 UTECA (n 8) [94].

Rachael Craufurd Smith

621

Part I – Commentary on the Articles of the EU Charter

II. Scope of Application 22.45 In determining the personal scope of application of Article 22 CFR it is necessary to consider whether the article affords protection only to members of certain communities or interest groups; whether it can be relied on by third country nationals as well as EU citizens; and whether it creates rights for legal entities as well as individuals. In relation to the first of these questions, discussions preceding the adoption of Article 22 CFR indicate that there was significant pressure for an article to enhance minority protection within the EU legal order.80 The disparity between the level of EU concern for minority interests in relation to applicant and existing member states has been well documented,81 and Article 22 CFR can rightly be understood as a ‘minority protection clause’.82 But Article 22 CFR is framed in general terms and is consequently not just a minority protection clause. In particular, the reference in the explanatory notes to Articles 6 TEU and 167 TFEU, which variously refer to national identity, national and regional diversity, the common cultural heritage and the cultures of the Union, indicate that a range of cultural, religious and linguistic expressions, not always easily characterised in minority or majority terms, were intended to fall within the scope of the article. In an international context both majority and minority groups may feel threatened by economic and social forces operating largely outwith their control. The article is thus in line with Article 2.3 of the UNESCO Convention on Cultural Diversity, which establishes the principle of equal dignity and respect for all cultures. 22.46 Similarly, there is nothing to indicate that Article 22 CFR applies solely to EU citizens.83 The references to human rights and the rights of persons belonging to minorities in Article 2 TEU are unqualified and third country nationals, who have a significant presence in certain EU countries, undoubtedly contribute to the diversity of cultures present within the Union. Article 167(4) TFEU, on a broad interpretation, requires respect be paid to such individuals and their cultures. In Ünal, Advocate General Sharpston, referring to Article 22 CFR, argued that cultural and linguistic differences between nationals and third country immigrants should be taken into account in the application of EU law.84 In Germany v Y and Z, the failure of a third country to respect cultural, religious or linguistic diversity, necessitated an internal response on the part of the EU.85 The Court of Justice held that a third country’s refusal to allow individuals to manifest their religious beliefs in public could constitute ‘persecution’ within the terms of Council Directive 2004/83/EC, thus opening the way for a third country national to be awarded asylum. Though the ruling turned on Article 10 CFR, similar reasoning could apply in relation to Article 22 CFR. A broad approach would also be in line with the interpretation given to Article 27 ICCPR.

80

X Arzoz, ‘The Protection of Linguistic Diversity’ (n 7). See, for example, G Sasse, ‘EU Conditionality and Minority Rights: Translating the Copenhagen Criterion into Policy’, EUI Working Paper RSCAS no 2005/16. 82 X Arzoz, ‘The Protection of Linguistic Diversity’ (n 7). 83 Consider Case C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-06351, in which the applicant Mr Kadi was Saudi Arabian. 84 C-187/10 Baris Ünal v Staatssecretaris van Justitie (Opinion of 21 July 2011) [73]–[74]. The Court did not make reference to Art 22 CFR. 85 Joined Cases C-71/11 and C-99/11 Germany v Y and Z (Judgment of 5 September 2012). 81

622

Rachael Craufurd Smith

Art 22 – Cultural, Religious and Linguistic Diversity

It is notable, however, that Article 22 CFR focuses on a specific outcome, diversity, 22.47 and does not itself mention individual rights. Culture, religion and language are, however, clearly central to individual identity and the article can be interpreted as conferring on individuals the right to protect their distinctive forms of expression. But cultural expressions are not always linked to specific individuals, for example, where a cultural practice, such as use of a particular language, has died out, and there may thus be a case for granting representative legal entities, such as charities or corporations, certain rights to protect such expressions where threatened.86 Collective action is not without its problems and a group may fail properly to reflect the interests of its members, but there may also be cases where an association is better placed to act, for instance where no one individual is particularly affected by a decision; where a particular right holder has conflicting interests; or where there could be negative repercussions for those who do bring proceedings.87 The ECtHR has held that ‘the ability of citizens to form a legal entity in order to act 22.48 collectively in a field of mutual interest is one of the most important aspects of the right to freedom of association’ in Article 11 ECHR.88 In relation to religious freedom, the Court has confirmed that, apart from acting to protect its own corporate or commercial rights, a religious entity also has the right to ensure ‘judicial protection of the community, its members and its assets’.89 The same reasoning can be applied to other cultural or linguistic organisations. The EU has itself supported granting rights of defence to representative organisations in specific fields, for instance to protect equality rights, though, as noted in section D.V below, the Court of Justice has maintained strict standing rules under Article 163TFEU, which are likely to be problematic in this area.90

III. Specific Provisions To date there have been few express references to Article 22 CFR in the case law of the 22.49 European courts, Commission decisions, or indeed, secondary legislation. The article was recently mentioned, however, by the Court of Justice in Runevicˇ-Vardyn,91 by AdvocateGeneral Sharpston in UTECA and Ünal,92 by the General Court and Advocate-General

86 For discussion of background arguments regarding whether the Charter should afford collective or purely individual rights see G Schwellnus, ‘“Much ado about nothing?” Minority Protection and the EU Charter of Fundamental Rights’, Constitutionalism Web-Papers, ConWEB No 5/2001. On the relative weight to be afforded group-related and individual rights, see C Wallace and J Shaw ‘Education, Multiculturalism and the Charter of Fundamental Rights of the European Union’ (n 66) ch 10. 87 Consider, for example, the role of the German booksellers’ association in seeking to enforce the minimum book pricing scheme in C-531/07 Fachverband der Buch- und Medienwirtschaft (n 17). 88 Jehovah’s Witnesses of Moscow v Russia (n 37) [100]. The ECHR Commission was not always so receptive to religious corporations holding rights on which see: L Bloß, ‘European Law of Religion—Organizational and Institutional Analysis of National Systems and their Implications for the Future European Integration Process’, Jean Monnet Working Paper 13/03, NYU School of Law, 15–17. 89 Jehovah’s Witnesses of Moscow v Russia (n 37) [102]. 90 See, for example, Arts 7 and 13 of the Racial Equality Directive 2000/43/EC [2000] OJ L180/22. 91 Case C-391/09 Runevic ˇ-Vardyn and Wardyn (n 5). 92 Case C-222/07 UTECA (n 8) [94], Opinion, and Case C-187/10 Baris Ünal (n 84) [73] (fn 41).

Rachael Craufurd Smith

623

Part I – Commentary on the Articles of the EU Charter

Kokott in Italy v Commission,93 and by Advocate-General Jääskinen in Anton Las.94 Even when called in aid explicitly by party litigants, the court has tended to make use of more clearly defined and familiar provisions in the Charter, such as Articles 10 or 21 CFR, to do the operative work.95 It is, however, apparent from opinions such as that of Advocate General Kokott in Italy v Commission, that cultural and linguistic diversity is seen as a fundamental value of the EU, already well rooted in Articles 4(2) TEU and 167 TFEU.96 22.50 Domestic measures designed to protect cultural, religious and linguistic diversity have thus been recognised by the Union courts to pursue legitimate general interest objectives, allowing, in certain contexts, restrictions on EU rights and freedoms. But although such interests have been recognised, the measures themselves have often foundered on the test of proportionality.97 In particular, the EU courts have been unwilling to allow Member States to impose their cultural choices on other states or to prohibit their citizens from moving abroad to access goods and services that are illegal at home; in addition they have shown considerable faith in the capacity of the market itself to enhance diversity where citizens have access to adequate information regarding the choices open to them.98 Where, however, states have sought to protect policies closely linked to their national and constitutional identities, for instance relating to the protection of the national language or the status of citizens, the courts have shown more deference.99 22.51 Diversity in its Article 22 CFR guise adds another dimension to this case law, in that it operates as a further check on domestic policies in the cultural field that fall within the scope of EU law. In many instances domestic law and Article 22CFR will prove to be mutually reinforcing, but conflicts can clearly arise between state attempts to protect specific ‘national’ values and the interests of minorities or other communities, as in the Sayn-Wittgenstein case.100 Article 22CFR does not prioritise any particular type of expression and, as noted at section B above, it may itself incorporate a commitment to equality. 22.52 The potential for Article 22CFR to reshape the framework for analysing disputes among distinct cultural or religious groups is apparent from cases such as RunevicˇVardyn, which concerned standardised spelling rules introduced by Lithuania to protect its national language.101 The rules applied to a range of official documents, such as

93 Cases T-166/07 and T-285/07 Italy v Commission [2010] ECR II-193 [90], and C-566/10 P Italy v Commission (n 23) [85]–[92]. 94 Case C-202/11 Anton Las (n 67) [57]. 95 See, for example, Case C-556/10 P Italy v Commission (27 November 2012), and Joined Cases C-71/11 and C-99/11 Germany v Y and Z (n 23). 96 Case C-566/10 P Italy v Commission (n 85) [86]–[87]. 97 See, for example, Cases C-274/96 Bickel/Franz [1998] ECR I-7637 (protection of ‘ethno cultural minorities’); C-288/89 Gouda v Commissariaat voor de Media [1991] ECR I-4007 (media pluralism); C-353/06 Stefan Grunkin and Dorothee Regina Paul v Standesamt Niebül [2008] ECR I-7639 (extended family relations). 98 See discussion by R Craufurd Smith, ‘The Evolution of Cultural Policy in the European Union’ in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford, OUP, 2011) 869–94, 878–83. 99 See, for example, Cases 379/87 Groener v Minister for Education (n 17) and C-208/09 Ilonka SaynWittgenstein (n 5); but even here there are limits, for instance where a state seeks to regulate aspects of private language use discussed by the AG in Case C-202/11 Anton Las (n 67) [61]. 100 Ibid. 101 Case C-391/09 Runevic ˇ-Vardyn and Wardyn (n 5). Potential conflicts between free movement rules and domestic linguistic regulations are discussed by B de Witte, ‘Common Market Freedoms versus Linguistic Requirements in the EU States’, in Mundialització, lliure circulació I immigració, i l’exigència d’una llengua com a requisite (Barcelona, Institut d’Estudis Autonòmics, 2008) 109–31 and see also T Ahmed (n 21) ch 7.

624

Rachael Craufurd Smith

Art 22 – Cultural, Religious and Linguistic Diversity

marriage certificates, even when recording foreign names. Lithuania sought to rely on Article 4(2) TEU, which requires the EU to respect the national identities of the Member States, and although Article 22 CFR was not employed to explore this issue, the case directly raised the question whether Lithuania had shown appropriate respect for the value of linguistic diversity, rather than simply the need to protect the national language.102 In Anton Las, the Advocate-General distinguished between the concept of ‘national identity’ in Article 4(2) TEU, which concerned the choices made regarding language use at national or regional levels, and the concept of ‘linguistic diversity’, which relates to the ‘multilingualism existing at EU level’.103 Construed as creating rights, Article 22 CFR would enable the balance struck by 22.53 Member States between the interests of national and minority cultural, linguistic and religious groups to be evaluated. A key question is whether the EU courts will show the same degree of deference to national constitutional traditions when applying Article 22 CFR as the ECHR has shown contracting states when considering Article 9 ECHR.104 To date, Article 22 CFR has not assumed this politically charged role but it is clearly one that many of those who championed the inclusion of a minority protection clause within the Charter sought to facilitate.105 As noted above, specific references to Article 22 CFR in secondary legislation are 22.54 relatively infrequent, though its importance was recognised in the Media 2007 programme in directing attention to the needs of smaller Member States and those with more than one linguistic area.106 The preservation and promotion of cultural and linguistic diversity is, however, mentioned as a motivating factor in a number of measures, particularly, as one would expect, those relating to culture, citizenship, education and media.107 Nevertheless, the impact of the cultural mainstreaming requirement in Article 167(4) TFEU has been patchy to date and the reconfiguration of diversity into a Charter right could both serve to focus the application of Article 167(4), enhance its weight and increase its visibility as a result of the EU’s more general mainstreaming of human rights.108 As the Mediaprint case illustrates, a failure to take cultural issues into account when framing legislation can undermine domestic attempts to preserve diversity,109 and in order to prevent collateral damage of this kind, certain measures, such as the 2006

102 Though noted, Art 22 CFR was not, however, itself employed to explore these tensions, reliance being placed on other Charter provisions. 103 Case C-202/11 Anton Las (n 67) [59]. 104 See discussion of the ECtHR case law at section C.I above. 105 X Arzoz, ‘The Protection of Linguistic Diversity’ (n 7). 106 Recital 4 of Decision no 1718/2006/EC concerning the implementation of a programme of support for the European audiovisual sector (MEDIA 2007) [2006] OJ L327/12. 107 See, for example, Decision no 1855/2006/EC establishing the Culture Programme (2007 to 2013) [2006] OJ L372/1 Recitals 1–2; Decision no 1904/2006/EC establishing for the period 2007 to 2013 the programme Europe for Citizens to promote active European citizenship [2006] OJ L378/32 Art 1(2)(d); Decision no 1720/2006/EC establishing an action programme in the field of lifelong learning [2006] OJ L327/45 Art 1(3) (g); Directive 2010/13/EU, on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services [2010] OJ L95/1 Recital 4. 108 E Psychogiopoulou, The Integration of Cultural Considerations in EU Law and Policies (n 1). See now Commission Staff Working Paper, Operational Guidance on taking Account of Fundamental Rights in Commission Impact Assessments SEC (2011) 567 final. 109 Case C-540/08 Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co KG v “Österreich”-Zeitungsverlag GmbH (2010) ECR I-10909.

Rachael Craufurd Smith

625

Part I – Commentary on the Articles of the EU Charter

Services Directive, simply exclude from their scope fields where cultural diversity could be an issue.110 The Electronic Commerce Directive explicitly states in Article 1(6) that it is not to affect measures taken at Community or the national level, which respect Community law, and are intended to promote cultural and linguistic diversity or the defence of pluralism.111 22.55 In other contexts, derogations for specific cultural or religious traditions have been included, for instance, regarding Inuit hunting practices in EU measures to control the sale of seal products in the EU,112 and for cultural and sporting events and ritual slaughter in relation to standards for animal slaughter.113 Although states can override the exemption from prior stunning for ritual slaughter, they can no longer exclude the import of meat from other countries, slaughtered in ways prohibited in their country (Art 26). The ECtHR has similarly afforded states a margin of discretion in juggling these competing demands, but has indicated that followers of religious groups must not be prevented from actually practicing their religion. Access to ritually slaughtered meat from other countries, though undermining the domestic policy, thus rendered the slaughter restrictions legitimate.114 22.56 Minimum harmonisation measures have been adopted in other areas, notably the media sector, where free movement and cultural objectives can come into conflict. The Audiovisual Media Services Directive (AVMSD), which regulates broadcast and ondemand television services, expressly notes the importance of cultural and linguistic diversity in its recitals, and its European content quotas help to maintain audiovisual diversity among, though arguably not within, the Member States.115 The realistic capacity of states to negotiate high levels of protection for cultural concerns in directives of this type and to impose higher domestic standards than those adopted on their own producers, given competitive pressures, have been questioned.116 Although Article 22 CFR cannot change the political or economic dynamics in such contexts, it nevertheless constitutes an authoritative reference point for those states that wish to argue for maintaining a high level of protection. 22.57 It is beyond the scope of this commentary to track all areas where the EU engages positively with issues of cultural, religious and linguistic diversity. Apart from the important measures adopted in the equality field, discussed in more detail in relation to Articles 20, 21

110

Directive 2006/123/EC on services in the internal market (2006) OJ L376/36 Art 1.4. Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market [2000] OJ L178/1. 112 Commission Regulation (EU) 737/2010 laying down detailed rules for the implementation of Regulation (EC) 1007/2009 on trade in seal products [2010] OJ L216/1, discussed in B de Witte, ‘A Competence to Protect. The Pursuit of Non-market Aims through Internal Market Legislation’, in P Syrpis (ed), The Judiciary, the Legislator and the Internal Market (Cambridge, Cambridge University Press, 2012) 25–46. 113 Council Regulation (EC) 1099/2009 on the protection of animals at the time of killing [2009] OJ L303/1 Art 4. 114 Jewish Liturgical Association Cha’are Shalom Ve Tsedek v France (n 31). 115 Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services [2010] OJ L95/1. 116 See A Littoz-Monnet, The European Union and Culture. Between Economic Regulation and European Cultural Policy (Manchester, Manchester University Press, 2007) 11–12 and AJ Harcourt, ‘Institution-driven Competition: the Regulation of Cross-border Broadcasting in the EU’ (2007) 27(3) John Purcell Paper 293–317. 111

626

Rachael Craufurd Smith

Art 22 – Cultural, Religious and Linguistic Diversity

and 23–25 CFR, a range of initiatives relating to culture,117 citizenship,118 media,119 language and education120 have provided funding for projects designed to support cultural cooperation, creation, exchange and understanding. In addition, the structural funds are estimated to have contributed 6 billion euros to cultural activities during 2007 to 2013.121 Within these projects there is an increasingly apparent emphasis on the importance of intercultural dialogue.122 Tawhida Ahmed has, however, concluded that the EU has tended to support more traditional cultural forms, particularly in the context of the culture programmes, thus missing the opportunity to raise the profile of minority cultures and establish a new balance between national and sub-national cultural expressions.123 In the context of external trade, the EU has sought to preserve its freedom to pro- 22.58 tect cultural and linguistic diversity within the framework of the WTO rules, abstaining from commitments under GATS and actively supporting adoption of the 2005 UNESCO Convention on Cultural Diversity.124 The EU’s commitment, not merely to supporting cultural diversity internally, but to meaningful cultural engagement with third countries, is reflected in cooperative education and media programmes such as Erasmus Mundus and Media Mundus.125

IV. Limitations and Derogations Measures to promote cultural, linguistic and religious diversity have tended to be anal- 22.59 ysed as general interest restrictions on EU fundamental freedoms. But where diversity is seen as a fundamental right, the question is reversed and Article 52(1) CFR requires that state or EU measures restricting such diversity must be provided for by law and must ‘respect the essence of those rights and freedoms’. In addition, any limitations must be

117

Decision no 1855/2006/EC establishing the Culture Programme (2007 to 2013) [2006] OJ L372/1. Decision no 1904/2006/EC establishing for the period 2007 to 2013 the programme Europe for Citizens to promote active European citizenship (2006) OJ L378/32. 119 Decision no 1718/2006/EC concerning the implementation of a programme of support for the European audiovisual sector (MEDIA 2007) [2009] OJ L288/10. 120 See, for example, European Commission, ‘Communication on a new framework strategy for multilingualism’, COM (2005) 596 final and Decision no 1720/2006/EC of the European Parliament and of the Council of 15 November 2006, which brings together the various student exchange programmes 121 European Commission, ‘Culture and the Structural Funds’ at: http://ec.europa.eu/culture/eu-funding/ culture-and-the-structural-funds_en.htm. 122 See, for example, European Commission, ‘Communication on a European Agenda for Culture in a Globalizing World’, COM (2007) 242 final, 8–9 and Decision no 1904/2006/EC, establishing for the period 2007 to 2013 the programme Europe for Citizens to promote active European citizenship [2006] OJ L378/32 Art 1(2)(d). 123 T Ahmed (n 21) 126–27. 124 D Ferri, ‘EU Participation in the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions: Some Constitutional Remarks’, European Diversity and Autonomy Papers (EDAP) 3/2005. 125 Decision no 1298/2008/EC, establishing the Erasmus Mundus 2009–13 action programme for the enhancement of quality in higher education and the promotion of intercultural understanding through cooperation with third countries [2008] OJ L340/83 and Decision no 1041/2009/EC, establishing an audiovisual cooperation programme with professionals from third countries (MEDIA Mundus 2011–13) [2009] OJ L288/10. 118

Rachael Craufurd Smith

627

Part I – Commentary on the Articles of the EU Charter

‘necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’. 22.60 Article 22 CFR may come into conflict both with other Charter rights and general interest objectives recognised by the Union. The Charter itself does not set out a hierarchy among its articles but, given the fundamental nature of the dignity rights in Title I, there will be little scope for derogation from these rights on diversity grounds to accommodate practices such as female circumcision.126 Similarly, cultural, religious and linguistic diversity cannot be called in aid to destroy the rights and freedoms of others under Article 54 CFR. The ECtHR has thus accepted the legitimacy of restrictions on racist and xenophobic speech, even where such views express the particular ethos and outlook of specific groups.127 22.61 There will also be tensions between the interests of specific groups in excluding from membership or employment those who do not conform to their practices or beliefs and the right not to be discriminated against contrary to Article 21 CFR. As noted, the ECtHR has here afforded religious and other organisations a degree of latitude, though may now be less willing to simply accept the existence of alternative employment as a justification.128 Article 4 of the Employment Directive 2000/78/EC allows Member States to maintain rules allowing religious bodies to discriminate on the grounds of religion or belief where this is a ‘genuine, legitimate and justified occupational requirement’.129 Similarly, there is scope for conflict between Article 16 CFR, which affords freedom to conduct a business, and Article 22 CFR, where members of particular groups seek to have their religious or other beliefs accommodated in the work place. Considerable protection against various forms of discrimination, both direct and indirect, is now provided for by the Equal Treatment Directives 2000/43/EC, 2000/78/EC and 2006/54/EC. 22.62 As there is no direct parallel to Article 22 CFR in the ECHR, there is no pre-existing list of derogations that can simply be applied across in line with Article 52(3) CFR. Given the overlap between Articles 22 CFR and Articles 8, 9, and 10 ECHR, however, it is arguable that the derogations identified in these articles should be applicable to cases involving Article 22 CFR. Derogations potentially relevant in this context include national security and territorial integrity, public safety, the prevention of disorder or crime, the protection of public health or morals, and the protection of the reputation, rights and freedoms of others. In the van Duyn case, the Court of Justice accepted the UK’s refusal to allow Ms van Duyn to enter the country on the basis of her membership of the Church of Scientology, which the UK considered to be a harmful sect.130 In Eweida and Others, the ECtHR allowed an employer to restrict the wearing by employees of religious jewellery in order to protect the health of hospital patients.131 Article 22 CFR requires any such restriction to be subject to careful scrutiny to ensure that it is

126 See, for a UK example, R (Williamson and Others) v Secretary of State for Education and Employment [2005] UKHL 15 [2005] 2 AC 246: the refusal to allow corporal punishment in schools was held to be an acceptable restriction on the parents’ religious beliefs. 127 Norwood v UK (n 44); an approach that contrasts with that of the US Supreme Court in National Socialist Party of America v Village of Skokie 432 US 43 (1977). 128 See section C.I above. 129 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (2000) OJ L303/16. 130 Case C-41/74 Yvonne van Duyn v Home Office [1974] ECR 1337. 131 Eweida and Others v United Kingdom (n 39).

628

Rachael Craufurd Smith

Art 22 – Cultural, Religious and Linguistic Diversity

both genuine and proportionate. In Italy v Commission, for example, the publication of EU staff vacancies in the Official Journal in only three of the official languages was held to disadvantage potential applicants who did not speak those languages.132 The Commission could not justify this disadvantage on the basis of a lack of resources and limited translation capacity.133

V. Remedies The main avenue for those wishing to challenge the validity of EU acts on the basis of 22.63 Article 22 CFR will be through direct actions for annulment under Article 263 TFEU or through preliminary references regarding validity raised by domestic courts or tribunals under Article 267 TFEU. Infringement may also give rise to damages for non-contractual liability under Article 340 TFEU. Alternatively, the Charter may be employed to influence the way in which EU law and domestic law operating within the field of EU law is interpreted, as in the asylum case Germany v Y and Z, discussed above.134 If Article 22 CFR is construed as establishing principles and not rights then its field of appreciation will be significantly reduced. By virtue of Article 52(5) CFR, principles can only come into play when acts implementing these principles are interpreted or reviewed. Applicants under Article 263 TFEU must comply with restrictive standing rules and 22.64 the tight two-month time-limit for commencing actions. Individual standing generally requires both direct and individual concern to be established, the latter requiring the applicant to have an identifying feature that distinguishes them from all others affected by the provision.135 This presents particular difficulties for individuals wishing to challenge measures targeting a group, where Article 22 CFR is most likely to be relevant, in that all group members are likely to be affected in the same way. Similar restrictions apply to representative organisations, though where the organisation has played a specific role in helping to shape the act concerned it may be afforded standing.136 The European Parliament has called for revision of the standing rules and also indicated its own willingness to initiate proceedings as a ‘human rights litigant’.137 The problem of standing can usually be circumvented by commencing proceedings 22.65 in domestic courts, where standing rules tend to be more relaxed. Where, however, EU acts take effect in a third country, the only method of challenge is likely to be through Article 263 TFEU, in that not only do foreign courts not have standing to refer questions of validity to the Court of Justice under Article 267 TFEU, but the CFR does not apply to the actions of foreign states, who will often be taking the measure forward. A Member

132

Case C-566/10 P Italy v Commission (n 95). Ibid [76]. 134 Joined Cases C-71/11 and C-99/11 Germany v Y and Z (n 85). 135 Case 25/62 Plaumann and Co v Commission [1963] ECR 95 and Case C-50/00 P Unión de Pequeños Agricultores v Council of the European Union [2002] ECR 1-6677. 136 Case T-585/93 Greenpeace and Others v Commission [1995] ECR II-2205, esp [59]. Note possible relevance of the last sentence of Art 17 TFEU. The Economic and Social Committee and Committee of the Regions, representing local and regional interests, must be consulted on a wide range of EU matters (Arts 304 and 307 TFEU). 137 Committee on Civil Liberties, Justice and Home Affairs, ‘Report on the situation of fundamental rights in the European Union (2010–2011)’, (2011/2069(INI)), 22/11/2012, paras 29–30. 133

Rachael Craufurd Smith

629

Part I – Commentary on the Articles of the EU Charter

State, the Commission, EP or Council, can seek an opinion from the Court of justice as to the legality of a proposed international agreement under Article 218(11) TFEU, and where a negative opinion is given the measure cannot be enacted in its proposed form. 22.66 The Court of Justice does not have competence to review EU acts adopted under the common foreign and security policy, though it does have competence to review the legality of ‘decisions providing for restrictive measures against natural or legal persons’ (Art 275 TFEU).138 On the other hand, Article 267 TFEU excludes all review in relation to the actions of the police or law enforcement agencies within the field of freedom, security and justice, where targeting of minority groups could arise. 22.67 Where the acts of a Member State curtailing cultural, religious or linguistic diversity fall within the scope of EU law they may be subject to investigation by the Commission under Article 258 TFEU. The Commission put pressure on Hungary to modify its controversial media law proposals in 2011, and raised questions regarding France’s policy of expelling Roma EU citizens in 2010.139 The TEU also establishes a procedure whereby serious breaches by a Member State of the values in Article 2 TFEU can be investigated and ultimately sanctioned through suspension of the state’s rights under the Treaties. Only the EU institutions, in line with the requirements in Article 7(1) TEU, can trigger the application of the article. The politically highly damaging nature of the proceedings has led Article 7 to be regarded a mechanism of last resort and to date it has not been applied.140 The article can, however, act as a political tool to put pressure on Member States to bring their laws into line with the Union’s founding values, including respect for minorities.

E. Evaluation 22.68 Article 22 CFR, introduced at a late stage in the Charter negotiations, appears at first reading to be a relatively bland and innocuous provision. Its relationship with the other equality articles is far from clear, though it resonates strongly with a wide range of international agreements, such as the ICCPR and the 2005 UNESCO Convention on Cultural Diversity. Appearances, however, can be deceptive, and Article 22 CFR is potentially one of the most politically explosive provisions in the Charter. Though it may go some way to protecting the diversity of the Member States in the context of an increasingly integrated European market, it also addresses the often troubled relationship between Member States and minority groups within their jurisdiction. 22.69 To date, Article 22 has received little judicial and legislative attention and to realise its full potential it would have to be construed as establishing rights and not merely principles. The same concerns that led to the omission of a specific Charter article on

138 Reflecting the importance the Court of Justice ascribed to compliance with fundamental rights across the whole field of the EU’s activities in Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat (n 83). 139 See discussion in C Ladenburger (n 19) 12. 140 See, for example, discussion of its relevance to the field of media diversity in the report of the High Level Group on Media Freedom and Pluralism, ‘A Free and Pluralistic Media to Sustain European Democracy’, January 2013, p 18.

630

Rachael Craufurd Smith

Art 22 – Cultural, Religious and Linguistic Diversity

minority rights could well lead to a conservative reading of this laconic article. Its ability to test out domestic rules and even established constitutional traditions will also depend on the scope afforded Union law within the terms of Article 51 CFR. Despite the introduction of Article 167(4) TFEU, cultural concerns have received patchy recognition in the development of EU law and Article 22 CFR can help to both focus and enhance the profile of that article. As Advocate General Sharpston noted in Ünal, it may be easy to ‘lose sight of the extent to which the EU remains, and will continue to be, founded in diversity’.141 Article 22 CFR has the potential to make that oversight less likely and to create a framework for the EU to address the resultant tensions in a principled and equitable way in the future.

141

Case C-187/10 Baris Ünal (n 84) [73].

Rachael Craufurd Smith

631

Article 23 Article 23 Equality between Women and Men Equality between women and men must be ensured in all areas, including employment, work and pay. The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the underrepresented sex.

Text of Explanatory Note on Article 23 The first paragraph has been based on Articles 2 and 3(2) of the EC Treaty, now replaced by Article 3 of the Treaty on European Union and Article 8 of the Treaty on the Functioning of the European Union which impose the objective of promoting equality between men and women on the Union, and on Article 157(1) of the Treaty on the Functioning of the European Union. It draws on Article 20 of the revised European Social Charter of 3 May 1996 and on point 16 of the Community Charter on the rights of workers. It is also based on Article 157(3) of the Treaty on the Functioning of the European Union and Article 2(4) of Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. The second paragraph takes over in shorter form Article 157(4) of the Treaty on the Functioning of the European Union which provides that the principle of equal treatment does not prevent the maintenance or adoption of measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers. In accordance with Article 52(2), the present paragraph does not amend Article 157(4).

Select Bibliography S Agius and C Tobler, Trans and intersex people. Discrimination on grounds of sex, gender identity and gender expression (Brussels, European Commission, 2011). F Bettio et al, The Impact of the Economic Crisis on the Situation of Women and Men and on Gender Equality Policies (Brussels, European Commission, 2012). F Beveridge and S Velluti, Gender and the Open Method of Coordination Perspectives on Law, Governance and Equality in the EU (Farnham, Ashgate, 2008). E Caracciolo di Torella and A Masselot, Reconciling Work and Family Life in EU Law and Policy (Basingstoke, Palgrave Macmillan, 2010). J Conaghan (ed), Feminist Legal Studies (Abingdon, Routledge, 2009). T Freixes, ‘Article 23 Egalité entre hommes et femmes’, in EU Network of Independent Experts on Fundamental Rights (ed), Commentary of the Charter of Fundamental Rights of the European Union (Brussels, European Commission, 2006) 200–08. E Grabham, D Cooper, J Krishnadas and D Hermann (eds), Intersectionality and Beyond (Abingdon, Routledge-Cavendish, 2009). B Hepple Equality—The New Framework (Oxford, Hart Publishing, 2011).

Part I – Commentary on the Articles of the EU Charter

T Hervey, ‘Thirty Years of EU Sex Equality Law: Looking Backwards, Looking Forwards’ (2005) 12(4) Maastricht Journal of European and Comparative Law 307–25. R Holtmaat and C Tobler, ‘CEDAW and the European Union’s Policy in the Field of Combating Gender Discrimination’ (2005) 12(4) Maastricht Journal of European and Comparative Law 399–425. R Nielsen and C Tvarnø (eds), Scandinavian Women’s Law in the 21st Century (Copenhagen, DJØF, 2012). A Numhauser-Henning, ‘EU sex equality law post Amsterdam’, in H Meenan (ed), Equality Law in an Enlarged European Union (Cambridge, Cambridge University Press, 2007) 145–76. D Schiek, ‘Broadening the Scope and the Norms of EU Gender Equality Law: Towards a Multidimensional Conception of Equality Law’ (2005) 12 Maastricht Journal of European and Comparative Law 427–66. —— and A Lawson (eds), EU Non-Discrimination Law and Intersectionality—Investigating the Triangle between Racial, Gender and Disability Discrimination (Farnham, Ashgate, 2011). T Stang Dahl, Introduction to Women’s Law (Oslo, Norwegian University Press, 1987). S Sümer, European Gender Regimes and Policies (Farnham, Ashgate, 2009). IM Young, ‘Structural Injustice and the Politics of Difference’, in E Grabham et al (eds), Intersectionality and Beyond (Abingdon, Routledge-Cavendish, 2009) 273–98.

A. Field of Application of Article 23 23.01 Article 23 has a potentially limitless field of application. Because the division of labour and other roles between women and men lies at the core of any human society, any policy or piece of legislation will impact upon it, or be impacted upon by it. The duty to ensure equality between women and men thus affects any activity the EU engages in, as well as any implementing policies of its Member States. 23.02 The EU treaties and their predecessors have from 2000 contained competences explicitly aimed at equality of women and men, partly preceded by competences contained in the Social Policy Agreement (1992).1 The oldest of these is Article 153(1) letter (i) TFEU, which repeats the wording of Article 2(1) Social Policy Agreement (1992) and allows the EU to complement and support the activities of its Member States in the field of ‘equality between men and women with regard to labour market opportunities and treatment at work’. Further, Article 157(3) TFEU provides for the adoption of ‘measures to ensure the application of the principle of equal opportunities and equal treatment of me and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.’ This provision was first introduced as Article 141(3) of the Treaty of Amsterdam (1997/1999).2 Also, Article 19 TFEU, first introduced by the same treaty as Article 13 EC, enables the EU to adopt legislation combating

1 The Social Policy Agreement was concluded in 1992 by 11 out of the then 12 Member States, and annexed to the Treaty of Maastricht through a protocol. This enabled the Member States to bring forward EU social policy in parallel with the founding of Economic and Monetary Union, although the UK was strictly opposed to it. When the Treaty of Amsterdam was negotiated, the UK government had changed, and the provisions of the Social Policy Agreement were integrated into the then Treaty on European Community. The protocol and the agreement are reprinted in [1992] OJ C224/126–29. 2 The Treaty of Amsterdam was adopted in 1997, but its coming into force was delayed by referenda held in Denmark and Ireland before those Member States ratified the Treaty. It entered into force in May 1999.

634

Dagmar Schiek

Art 23 – Equality between Women and Men

discrimination based on sex beyond the field of employment. All these competences can be used to take measures that contribute to ensuring equality between women and men. However, the EU still lacks competences in some fields decisive for equality between 23.03 women and men. Before the Treaty of Lisbon, most core feminist legal policy fields3 such as politics on gendered violence within the family or legal restrictions of the relation of mothers and children were outside the European Communities’ competences. Since the Treaty of Lisbon integrated what remained of the ‘Third Pillar’ into the mainstream of European Union polity, this has been changed. The EU now has a competence for cooperation in police and criminal matters, and would thus also be able to ensure equality of women and men in this field. Coordination in civil justice may comprise some elements of family law, in particular relating to fathers’ rights over children, which can be used to prevent women from leaving a relationship tainted by physical or emotional violence.4 There are thus some opportunities for the EU to address violence against women, though family law and policing remain national competences in the main. However, some policies of core relevance for equality of women and men in European societies still lie beyond the EU’s core legislative competences, while laws and policies relating to economic integration and the newly reinforced social goals of the EU will also impact upon equality of women and men. Even beyond its legislative competences, the European Union engages in coordinating policies of its Member States, notably through the Open Method of Coordination. While the resulting documents and policy processes are not legally binding, they still have considerable impact on Member States’ policies. Accordingly, Charter provisions must also be complied with when engaging in such policy processes. Policies pursuing any other aim can and must be scrutinised in order to also promote equality between women and men under Article 23 CFREU. Further, the applicability of the Charter depends on the categorisation of provisions 23.04 as principles or rights. Principles can only be used to interpret EU legislation, but rights may be directly enforceable (Art 52(5) CFREU). Regarding Article 23, the explanations state that it consists of rights and principles, without any reference to its individual paragraphs.5 This corresponds to the fact that Article 23 does not contain a classical human right—ie a right to be wielded by individuals against the European Union and its Member States, restricting their actions.6 Article 23’s two distinct paragraphs provide

3

J Conaghan (ed), Feminist Legal Studies (London, Routledge, 2009), vols I-IV. The multiple opportunities of fathers to use domestic law on custody to maintain control over a woman who has left a violent relationship (see for example C Shalansky, J Ericksen and A Henderson, ‘Abused women and child custody: the ongoing exposure to abusive ex-partners’, (1999) 29 Journal of Advanced Nursing 416–26; V Elizabeth, N Gavey and J Tolmie, ‘“He’s Just Swapped His Fists for the System.” The Governance of Gender through Custody Law’ (2012) 26 Gender and Society 239–60) are compounded by the practice of abducting children to other countries if custody or contact is denied. The insufficient protection of women by international law is well documented (CS Bruch, ‘The Unmet Needs of Domestic Violence Victims and Their Children in Hague Child Abduction Convention Cases’ (2004) 38 Family Law Quarterly 529–45). Coordination of civil procedure could be used to alleviate some of those deficits. 5 Explanations Relating to the Charter of Fundamental Rights [2007] OJ 303/17, 32. 6 The distinction between classical human rights and modern human rights is often framed as the distinction between status negativus (in which citizens are protected against states’ and the Union’s intervention in their personal freedoms) and status positivus (in which citizens demand that the Union and states actively create the preconditions for the enjoyment of human rights. (see on this J Kühling, ‘Fundamental Rights’, in A von Bogdandy and J Bast (eds), Principles of EU Constitutional Law, 2nd edn (Oxford, Hart Publishing, 2010) 479–515). In modern democracies, which also provide for enjoyment of rights in so-called private 4

Dagmar Schiek

635

Part I – Commentary on the Articles of the EU Charter

first a positive duty on the Union and its Member States to ensure equality (para 1), and second a modification of the prohibition of sex discrimination of Article 21 by clarifying that positive action is not excluded by this classical human rights (para 2). Though some of its relevance lies in programming future politics, other aspects of Article 23 are enforceable before the Court. This creates opportunities in particular as regards programming the interpretation and application of provisions of the Charter, the EU Treaties and secondary legislation, as will be shown below.

B. Interrelationship of Article 23 with Other Provisions of the Charter I. Article 23 and Articles 20, 21 CFREU 23.05 Laws and policy relevant to equality of women and men can be seen as embracing two dimensions—a negative dimension, under which discrimination against women on grounds of sex should be prohibited, and a positive dimension under which measures are taken to ensure equality between the sexes.7 Within the Charter, the non-discrimination dimension is enacted by Article 21, while Article 23 is dedicated to the positive dimension. Further, Article 20 contains the individual right to be treated equally before the law. 23.06 The wording of Articles 20, 21 and 23 respectively indicates that they have a distinct content each. Of course, an obligation to ensure equality between women and men (Art 23(1)) will include a prohibition to discriminate against women (Art 21). However, given that Article 21 contains the prohibition of sex discrimination, Article 23 must be interpreted as specifying its interpretation rather than establishing the prohibition itself. Further, while Article 20 uses the term equality in its heading, its text only uses the adjective equal, thus demanding equality as consistency8 in application of the law. The resulting obligation of administrators and courts to use the same standards for everyone in applying the law (Art 20) differs fundamentally from the grand aim of ensuring equality of women and men (Art 23). Ensuring equality aims at changing socio-economic reality as well as at achieving de-facto equality of the sexes.9 In contrast, equality before the law in Western legal thought is usually construed in line

spheres such as the economy and the family, a status social activus should be added, allowing individuals to cooperate in order to ward off private power rather than being forced to rely on state protection. (See on this D Schiek, ‘Fundamental Rights Jurisprudence between Member States’ Prerogatives and Citizens’ Autonomy’, in H Mickitz and B de Witte (eds), The European Court of Justice and the Autonomy of Member States (Antwerp, Intersentia, 2012) 219–58 (221–22 with further references). 7 Political science literature usually distinguishes three dimensions: non-discrimination law, positive action and gender mainstreaming: T Rees, Mainstreaming Equality in the European Union: Education, Training and Labour Market Policies (London, Routledge, 1998). 8 S Fredman, Discrimination Law, 2nd edn (Oxford, Oxford University Press, 2011) 8–14; D Schiek, ‘Torn between Arithmetic and substantive equality?’ (2002) 18 International Journal of Comparative Labour Law and Industrial Relations 149–68, 150; see further Bell’s commentary on Art 20 in this volume, 20.20–20.27. 9 On the dangers of applying equality as consistency, in other words Aristotle’s formula, in the field of sex equality law see Schiek, ‘Torn between Arithmetic and substantive equality?’ (n 8).

636

Dagmar Schiek

Art 23 – Equality between Women and Men

with Aristotle’s formula, which will prevent the realisation of de facto equality between groups and individuals who are constructed as unequal in social reality. The reason for this lies in the fact that, according to Aristotle, justice only required equal treatment for those who are equal. Accordingly, any inequality, whether socially constructed or real, can be relied upon to justify unequal treatment.10 If the duty to ensure equality between women and men is to be acquitted, any prohibition of discrimination must not be read as a specification of the Aristotelian formula. Further, since ensuring equality between women and men requires changing reality,11 it cannot be achieved by a mere prohibition to discriminate—as is also clarified by Article 23(2) with its explicit scope for positive action.12 Article 23 must thus be distinguished from formal equality before the law under Article 20 as well as from non-discrimination under Article 21, though it impacts on the interpretation and application of both those articles. If the Court of Justice refers to the Charter at all in its case law on gender equality,13 23.07 it has not always been as clear in its analysis, partly following imprecise opinions of its Advocates Generals. First, Articles 21 and 23 are frequently mentioned together when the prohibition of sex discrimination is at stake, instead of clearly distinguishing between non-discrimination and a positive duty to ensure equality.14 More problematically, the Court and its AGs have at times been inspired by the Aristotelian formula in applying the prohibition of sex discrimination, which again contradicts Article 23. This shall be illustrated by one example, the Test Achats15 ruling on sex discrimination in insurance premiums. AG Kokott reasoned in her opinion that Articles 21(1) and 23(1) CFREU establish 23.08 ‘the principle of equal treatment and non-discrimination between men and women’, and that there is ‘no fundamental difference’ between that principle and the principle of equal treatment ‘expressed in Article 20 of the Charter’.16 Scrutinising the EU legislation’s compatibility with the prohibition of sex discrimination, AG Kokott clarified that ‘the principle of equal treatment or non-discrimination, of which the prohibition of discrimination on grounds of sex is merely a particular expression, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified’.17 This suggests that differences between women and men can be used to justify continued discrimination of women.18 In the specific case AG Kokott concluded that discrimination of women

10 Unsurprisingly, concentration camps in Nazi Germany had an abbreviated version of the Aristotelian formula on their entrance: ‘Jedem das Seine’ (‘Each as he deserves’); see Osterloh, Commentary on Article 3 subsection 1 GG, marginal note 8, in: M Sachs (ed), Grundgesetz. Kommentar, 6th edn (Munich, Beck, 2011). 11 See in more detail below 23.27–23.29. 12 See in more detail below 23.37–23.48. 13 In some cases relating to gender equality, even if logged after the Treaty of Lisbon entered into force, the Court does not refer to the Charter (eg Case C-149/10 Chatzi [2010] ECR I-8499, relating to parental leave after the birth of twins, for which the objective obligation to ensure equality between women and men under Art 23 could have been used, and Case C-123/10 Brachner (20 October 2011), on pension regimes in Austria, although AG Trstenjak referred to Arts 21 and 23 as establishing the prohibition of sex discrimination, paras 49–51 of her opinion). 14 See for example Case C-401/11 Soukupová (13 April 2013) [28]; Case C-236/09 Test Achats [2001] ECR I-773 [38]. 15 Test Achats (n 14) [17]. 16 Para 29 of her Opinion. 17 Para 41. 18 See also para 60 of her opinion, stating clearly: ‘Direct discrimination on grounds of sex is … permissible if … there are relevant differences between men and women which necessitate such discrimination’.

Dagmar Schiek

637

Part I – Commentary on the Articles of the EU Charter

could not be justified. The question to be decided by the Court was whether Article 5(2) Directive 2004/113 infringed the prohibition of sex discrimination. That provision allowed Member States to exempt insurance companies from that prohibition, although it should be applied to other contracts concerning access to and provision of goods and services. AG Kokott concluded that the statistical probability of being involved in road accidents less frequently, of using medical services more frequently and of living longer results from chosen behaviour and is not based on sex. Accordingly, demanding higher insurance premiums for women in health and life insurance and for men in car insurance was unjustified sex discrimination in her view. However, she might be swayed by ‘scientific’ evidence that the caution leading women to cause fewer accidents, to seek medical advice on time and to live longer as a result of both is genetically imprinted on the female sex. Prejudices such as those have time and again been used to justify devaluation of women.19 The Court based its ruling on the principal logic of its AG with a peculiar twist. It stated that ‘comparability of situations must be assessed in the light of the subject matter and purpose of the EU measure which makes the distinction’. Considering that the Council’s stated intention had been to ensure unisex rules on premiums and benefits, the Court concluded that insurers must indeed not be allowed to discriminate against women.20 Had the Council stated that there are sufficient differences between women and men for insurers to continue their discrimination, the Court might have accepted that discrimination. This long case report demonstrates that reliance on Aristotle’s formula does not confer any valuable substantive equality rights on women, and thus contradicts Article 23 CFREU. While the immediate result of the Test Achats case may be positive,21 its ideological underpinnings constitute a danger to the effectiveness of Article 23.

II. Article 23 and Other Charter Articles 23.09 The principle of ensuring equality between women and men also constitutes a horizontal principle, which enhances the principle known as ‘gender mainstreaming’ (see below, 23.22). As such, it relates to any provision of the Charter, and demands that it is interpreted in ways that ensure equality between women and men. Two examples may illustrate the relevance of this. Reading Charter provisions in line with women’s equality is particularly challenging where the protection of a specific right is prone to entrench traditional role expectations imposed on women, which often relate to women working more and/or for less recognition than men, or to expecting women to endure violence and other restrictions of their personal freedom. In international human rights law, tensions between protection of minorities and equality of women and men as well as frictions between freedom of thought, conscience and religion and gender equality

19 Möbius’s classical treatise on the biologically induced intellectually incapacity of women (P Möbius, Über den physiologischen Schwachsinn des Weibes, 9th edn (Halle, 1908) may seem an outdated example. However, such research results are still achieved on ‘objective’ bases (see for current repercussions, with critical reflections, MW Matlin, The Psychology of Women, 7th edn (Wadsworth, Cengage Learning, 2012) chs 3 and 5). 20 Paras 29–32 of the judgment; see for a similar position C Tobler, ‘Annotation to Case C-236/09, Association belge des Consommateurs Test-Achats ASBL, Yann van Vugt, Charles Basselier v. Conseil des ministres’ (2011) 48 Common Market Law Review 2041–60, 2052–54. 21 See the annotation by Tobler, ibid, and E Ellis and P Watson, EU Anti-Discrimination Law, 2nd edn (Oxford, Oxford University Press, 2012) 206–09; see also Kilpatrick in this volume, 21.70–21.74.

638

Dagmar Schiek

Art 23 – Equality between Women and Men

have long been acknowledged as a problem.22 Accordingly, there is a potential tension between Article 23 and Article 22, if the latter is read as not only protecting diversity, but also cultural or religious groups. Further, there is a potential tension between Article 33 and Article 23. Only women 23.10 can give birth, and this specific gift is made to impact on equality between women and men by social arrangements. Frequently mothers are held responsible for children beyond the act of birthing, and in extreme cases expected to deliver all the work connected to child-raising without being paid for it, to give up any employed work or any other ambition until their children can fend for themselves. Maternity can thus form a burden, shackling women to a life of dependency on others, and limit their ability to be self-contained and to choose activities other than child minding and housework for their children and their father(s). Article 33 Charter, in protecting families unconditionally, does not refer to those and other damaging effects on women’s equality potentially flowing from the organisation of family life. Article 33 paragraph 2 of the same provision affords ‘everyone’ rights to maternity leave, 23.11 protection against dismissal on grounds of maternity and to parental leave—although any maternity rights can only be enjoyed by women. Its focus on leave is also unnecessarily narrow: reconciliation of paid work and unpaid work in families23 could also be achieved by demanding that the organisation of paid work and publicly financed child care should leave sufficient time for mothers and fathers to care for their children without reducing their paid work. Focusing on leave, in particular if combined with long parental leave after maternity leave, frequently leads to mothers losing any realistic prospect of a career beyond child-minding and housework without pay. There is thus a potential tension between Article 33 and Article 23. This tension can be dissolved by interpreting Article 33 in line with Article 23 as to demand ways of protecting families and reconciliation that ensure equality between women and men at the same time. Other ways of protecting families and reconciliation would be unlawful as contradicting Article 23.

C. Sources for Article 23 Rights I. Council of Europe Treaties The ECHR states in Article 14 that its provisions must be applied without discrimina- 23.12 tion, and protocol number 12 provides for Article 14 to be transversally applicable.24 This prohibition to discriminate comprises sex explicitly, but the Charter does not contain

22 See CCPR General Comment No 28, Art 3 (The Equality of Rights between Men and Women), adopted by the Committee at its 1834th meeting on 29 March 2000, nos 32 and 21. On potential tensions between sex equality and religious freedom, see A McColgan, ‘Class wars?: religion and (in)equality in the workplace’ (2009) 38 Industrial Law Journal 1–29; on conflicts between minority protection and women’s rights, see S Moller Okin, ‘Mistress of Their Own Destiny. Group Rights, Gender, and Realistic Rights to Exit’ (2002) 112 Ethics 205–30. 23 On this principle see in more detail E Caracciolo di Torella and A Masselot, Reconciling Work and Family Life in EU Law and Policy (Basingstoke, Palgrave Macmillan, 2010); see also commentary to Art 33. 24 Only a minority of EU Member States have ratified protocol number 12 at the time of writing (Cyprus, Finland, Luxembourg, the Netherlands, Romania, Slovenia and Spain).

Dagmar Schiek

639

Part I – Commentary on the Articles of the EU Charter

any positive obligation complementing that prohibition. There is thus no equivalent to Article 23 CFREU in the ECHR. This corresponds to the low prominence of gender equality within the ECHR case law: the first case on sex discrimination dates from 1985, and there is as yet no case law on issues such as positive action.25 The field of equality between women and men is clearly one where EU law traditionally has provided more extensive protection than the ECHR. The Charter acknowledges that the EU can be ahead of other organisations in its human rights regime, since Article 52(3) recognises that nothing shall ‘prevent Union law from providing more extensive protection’. 23.13 However, other instruments of the Council of Europe embrace equality between women and men more fully. Article 20 of the Revised European Social Charter26 provides: With a view to ensuring the effective exercise of the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex, the Parties undertake to recognise that right and to take appropriate measures to ensure or promote its application in the following fields: a) access to employment, protection against dismissal and occupational reintegration; b) vocational guidance, training, retraining and rehabilitation; c) terms of employment and working conditions, including remuneration; d) career development, including promotion.

23.14 The Council has recently adopted a special convention on combating of violence against women, the Istanbul Convention, which will enter into force once 10 state parties have ratified it. Presently, only five state parties have ratified the Convention, including EU Member States Portugal and Italy.27

II. UN Treaties (a) General Human Rights Instruments 23.15 As many national constitutions in Europe, the UN Covenants on Civil and Political Rights (CCPR) and on Economic, Social and Cultural Rights (CESCR) each include a specific clause on equality between women and men in addition to a general prohibition of discrimination on a number of grounds. The identical Articles 3 require state parties ‘to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant’. These follow the equally identical Article 2, under which state parties ‘guarantee that the rights enunciated in the present

25 On a comparison between ECtHR and ECJ case law on equality between women and men, see S Besson, ‘Gender Discrimination under EU and ECHR Law: Never Shall the Twain Meet?’ (2008) 8 Human Rights Law Review 647–82; and I Radacˇ ic´, ‘The European Court of Human Rights’ Approach to Sex Discrimination’ [2012] European Gender Equality Review 13–22. 26 The 1996 European Social Charter has been ratified by 19 Member States, while nine have only signed, but not (yet) ratified it. The former category comprises Austria, Belgium, Bulgaria, Cyprus, Estonia, Finland, France, Hungary, Ireland, Italy, Latvia, Lithuania, Malta, the Netherlands, Portugal, Romania, Slovakia, Slovenia and Sweden. 27 CETS 210. The Convention was adopted on 11 April 2011, and opened for signature on 11 May in Istanbul. Italy’s signature has not been deposited at the time of writing, but its Parliament had decided in favour of ratification on 19 June 2013 (the current status of notifications is listed here: http://conventions.coe. int/Treaty/Commun/ChercheSig.asp?NT=210&CM=1&DF=&CL=ENG).

640

Dagmar Schiek

Art 23 – Equality between Women and Men

Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’ The structure of the rights guaranteed in Articles 21 and 23 CFREU mirrors this layout. In contrast to the CFREU, Articles 2, 3 of the UN Covenants limit their scopes to the rights protected in both the Covenants, and have been considered as parasitic as a consequence.28 Only the CCPR contains an independent prohibition of discrimination, within which sex is named as one of the grounds on which discrimination is prohibited. (b) The International Covenant on the Elimination of All Forms of Discrimination Against Women (CEDAW) The UN main instrument in the field of equality of women and men goes beyond 23.16 establishing an obligation to ensure equality and allowing special measures in favour of women. This convention was the first to establish an explicitly asymmetric approach to equality rights. Its Article 1 defines discrimination against women as Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

Article 4 specifies that neither ‘temporary special measures aimed at accelerating the 23.17 de-facto equality between men and women’ nor ‘special measures aimed at protecting maternity’ shall be considered as discrimination in the sense of the Convention. As regards measures aimed at accelerating de facto equality, the Convention specifies that these must be discontinued when (not if) the objectives of equality of opportunity and treatment have been achieved. Taken together, this also indicates that the CEDAW obliges state parties to take measures which will achieve equality of opportunity and treatment for women in social reality. These provisions are frequently seen as going beyond the limited space the Court of Justice of the European Union has allowed for positive action in EU law, which of course raises the question in how far the more restrictive approach of EU law towards ‘positive action’ may be in conflict with the CEDAW, and what consequences this may have (below 23.45–23.47).

III. EU Law Gender equality is frequently considered as one of the best developed aspects of EU 23.18 law,29 ranging from the most developed field of social policy to an important human

28 W Vandenhole, Non-Discrimination and Equality in the View of the UN Human Rights Treaty Bodies (Antwerp, Intersentia, 2005) 13. 29 On the history of EU gender equality law see T Hervey, ‘Thirty Years of EU Sex Equality Law: Looking Backwards, Looking Forwards’ (2005) 12 Maastricht Journal of European and Comparative Law 307–25, and the contributions to the special issue she is introducing in this article, see also S Sümer, European Gender Regimes and Policies (Farnham, Ashgate, 2009) 59–85.

Dagmar Schiek

641

Part I – Commentary on the Articles of the EU Charter

rights policy subject30 and the embodiment of developing innovative ways to regulate, such as the principle of gender mainstreaming.31 Accordingly, there are numerous emanations and assertions of this principle in European Union law and policy, including so-called soft law instruments, which are not legally binding, but must be drawn upon when interpreting EU law. As concerns the latter category, the Community Charter of Fundamental Rights of Workers proclaimed: 16. Equal treatment for men and women must be assured. Equal opportunities for men and women must be developed. To this end, action should be intensified wherever necessary to ensure the implementation of the principle of equality between men and women as regards in particular access to employment, remuneration, working conditions, social protection, education, vocational training and career development. Measures should also be developed enabling men and women to reconcile their occupational and family obligations.

23.19 This instrument was solemnly declared by the then EU Member States in 1989, with the UK’s abstention.32 23.20 Long before the Community Charter and the CFREU were adopted, equal treatment of men and women had been acknowledged as one of the general principles of Union law. The Court issued the pivotal Defrenne II ruling in 1976,33 just after the Council had agreed that ‘achieving equality between men and women’ in the world of work should be one of the priorities of its social action programme.34 Community legislation relating to this aim focused on equal treatment between women and men, ie non-discrimination rather than equality, a subject matter which is covered by Article 21 TFEU. Community legislation also stressed that its purpose was to ‘put into effect the principle of equal treatment’ (Art 1(1) Directive 1976/207).35 Today, the purpose of EU gender equality legislation is sometimes a dual one. For example, Directive 2006/5436 aims to ‘ensure the implementation of equal opportunities and equal treatment of men and women in matters of employment and occupation’ (Art 1(1)). 23.21 This development reflects the incremental progress of primary EU law towards recognising equality between men and women as an aim to be pursued, going beyond

30 The elegy in the relevant chapter of one of the predecessors of this volume is characteristic in maintaining that ‘gender equality is the most robust and highly developed aspect of European Union social policy. While other areas of social policy are characterised by shared competences and flexibility of instruments, gender equality has been described as “federalism encapsulated” … long based on an ethic of enforceable individual rights invocable against Member States and private individuals.’ C Costello, ‘Gender Equality in the Charter of Fundamental Rights of the European Union’, in T Hervey and J Kenner (eds), Economic and Social Rights Under the EU Charter of Fundamental Rights: A Legal Perspective (Oxford, Hart Publishing, 2003) 111–37, 111–112, references omitted. 31 F Beveridge and S Velluti, Gender and the Open Method of Coordination. Perspectives on Law, Governance and Equality in the EU (Aldershot, Ashgate, 2008). 32 Social Europe 1/90, p 45. 33 Case 43/75 Defrenne II [1976] ECR 455. 34 [1974] OJ C13/1. 35 Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions [1976] OJ L 39/40, now superseded by Directive 2006/54/EC. 36 Directive 2006/54/EC of the European Parliament and of the Council on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) [2006] OJ 204/23.

642

Dagmar Schiek

Art 23 – Equality between Women and Men

a prohibition of sex discrimination. The Treaty of Amsterdam introduced equality between men and women as an aim of the Community (Art 2 EC), and this aim is maintained in Article 3(3) TEU. The Treaty of Amsterdam37 also introduced the Community’s obligation to ‘aim to eliminate inequalities, and to promote equality between men and women’ in all its activities (Art 3(2) EC, now Art 8 TFEU). The same treaty introduced into Article 141(4) EC the ‘view to ensuring full equality in practice between men and women’ (now Art 157(4) TFEU). This clause did not prevent the EU legislator from maintaining a focus on equal treatment. For example, the youngest sex equality Directive, though based on Article 157(3), does not reaffirm the obligation to ensure full equality between men and women, but is restricted to mere equal treatment (Directive 2010/41).38 Accordingly, Article 23 CFREU is underpinned by primary and secondary EU law, 23.22 both as a right and as a principle. It reinforces the heightened position of gender equality in EU law by also giving this constitutional principle39 an elevated position within the Charter. The Charter does not offer any comparably all-encompassing provisions relating to any other inequality. Given the elevated relevance of gender equality in EU law, a commentary on Article 23 CFREU cannot cover all aspects of the debate. The subsequent sections maintain the focus on exegesis of the positive law in context with its purposes, adding some examples of practical applications. In keeping with the content of Article 23 CFREU, they do not cover the prohibition of sex-discrimination as such.

D. Analysis I. General Remarks As stated already, Article 23 does not establish a classical human right,40 and it consists 23.23 of two distinct paragraphs. The first paragraph establishes a positive duty to ensure equality between women and men, and impacts on all provisions of the Charter, including Article 23(2), and other Union law. Paragraph 2 is much narrower, in that it clarifies how the prohibition of sex discrimination contained in Article 21 relates to positive action. Accordingly, each paragraph of Article 23 warrants its own commentary, each of which requires an adaptation of the structure of commentaries devised for classical human rights. The scope of application (a) is followed by the substantive commentary on the specific provision (b) and a comprised section on judicial review and enforceability (c), since sections on limitations and derogations and on remedies have limited

37

[1997] OJ C340/1. Directive 2010/41/EU on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC, [2010] OJ 180/1. 39 S Koukoulis-Spiliotopoulos, ‘The Amended Equal Treatment Directive (2002/73): an Expression of Constitutional Principles/Fundamental Rights’ (2005) 12 Maastricht Journal of European and Comparative Law 327–68, 331–36. 40 Above section A, 23.04. 38

Dagmar Schiek

643

Part I – Commentary on the Articles of the EU Charter

value for provisions mainly modifying a classical human right. Under section E an evaluation of the opportunities and shortcomings of Article 23 will be offered.

II. Paragraph 1 Equality between women and men must be ensured in all areas, including employment, work and pay.

(a) Scope of Application: Women and Men 23.24 Referring to equality between women and men, Article 23 paragraph 1 seems to indicate that it does not encompass all citizens: after all, nature does not always conform to the social convention of categorising people as either woman or man. Whatever the alleged biological basis of this categorisation—chromosomes, outer genitals, secondary sex identifiers—children are born in more than two varieties. In a society which insists on two sexes only, this creates problems for those falling between the categories. Children who do not display the expected sex categories at birth are frequently still altered by risky surgery. People who perceive themselves as belonging to a different gender than their bodies suggest often feel compelled to seek surgery, rather than challenging continuing gender stereotypes that prevent them from feeling comfortable in their bodies.41 23.25 The binary model of gendered reality, according to which humankind only consists of women and men, is but a social convention, which is again closely linked to requiring women and men to perform different and complementing roles in society. These ascribed roles are ideologically connected to the ability of many women to give birth, from which women’s responsibility to deliver unpaid work in raising children and caring for other adults is derived. Since humans are brought up as women and men, most consequently identify with the corresponding values, roles and life styles of one of these identities. Mentioning only women and men, Article 23 CFREU latches onto those social conventions based on biological difference. To avoid perpetuating social inequalities entrenched in these social constructs, it is important to read the notions of women and men in Article 23 as social constructs rather than essential categories. 23.26 In academic writing as well as in EU policy documents, the notion of ‘gender’ has come to signify the social construction of women and men.42 Gender is built around social expectations of maintaining a certain organisation of society, which is at the same time closely aligned with an unequal division of labour and resources between those categorised as male and female, and a certain structure of families as the basis for the division of labour and organisation of sexuality. If the notion of women and men together constitutes gender, the notion of gender can comprise trans- and intersex

41 There is a growing body of literature on transsexual and transgender people. For an overview considering these problems as part of the gender node, see S Agius and C Tobler, Trans and Intersex People. Discrimination on grounds of sex, gender identity and gender expression (Brussels, European Commission, 2011) with numerous academic references. 42 See for example Sümer, European Gender Regimes and Policies (n 29) 5–6, with further references.

644

Dagmar Schiek

Art 23 – Equality between Women and Men

persons who do not neatly fit the binary gender categories. For example, the Court of Justice has acknowledged that sex discrimination also prohibits discrimination on grounds of gender reassignment.43 In this case AG Tesauro considered that discrimination on grounds of falling ‘outside the traditional man/woman classification’ must be classified as sex discrimination.44 This indicates the need to acknowledge the terms woman and man as ends of a continuum from a biological perspective. Going further, and relating the notions to the purpose of Article 23(1) of ensuring equality between women and men, it is necessary to consider the purpose of dividing humankind into women and men. As indicated, gender theory convenes that this purpose is the definition of socio-economic role expectations around division of labour. If equality between women and men should be ensured, the need for the distinction should diminish. Acknowledging its limited value would thus already contribute to ensuring equality. As a result, gender as the notion comprising women and men can be considered as a node45 comprising not only women and men, but also trans- and intersex persons, who do not neatly fit the categories of male and female. If read in the light of its aim, Article 23(1) thus does apply to all humankind, and not only to those who fit the traditional categories of woman and man without any doubt. (b) Specific Provision Equality between Women and Men The aim to be pursued under Article 23 is equality between women and men. Considering 23.27 that women and men are also diversified by a number of other ascribed characteristics, including alleged race, ethnic origin, bodily capacity and being disabled by society’s expectations, inequalities between women and men are also widely varied.46 With all these varieties, inequalities between women and men can still be captured in 23.28 general terms. This results from social processes causing durable inequalities47 between those categorised as female and male respectively (women and men). These inequalities privilege men over women. Women are usually made to work more, earn less for the same amount of work, and have more limited access to resources generally.48 This is achieved by structuring the division of labour between women and men along the lines

43

Case C-13/94 P v S and Cornwall County Council [1996] ECR I-2143. Para 17 of his opinion. 45 D Schiek, ‘Organising EU Equality Law Around the Nodes of ‘Race’, Gender and Disability’, in D Schiek and A Lawson (eds), EU Non-Discrimination Law and Intersectionality: investigating the triangle of racial, gender and disability discrimination (Farnham, Ashgate, 2011) 11–27, 24. 46 On the notion of Intersectionality see below, 23.54–23.56. 47 On the construction of durable inequalities through social interactions, see IM Young, ‘Structural Injustice and the Politics of Difference’, in E Grabham et al (eds), Intersectionality and Beyond (Abingdon, Routledge-Cavendish, 2009) 273–98, 275. 48 For the European Union, these indicators are reported in an annual report by the European Commission. The latest of these is available for 2011 (European Commission, Progress on equality between women and men in 2011, Brussels 2012, available at http://ec.europa.eu/justice/gender-equality/document/ index_en.htm#h2-2. More recent data is available on the gender pay gap, ie the difference in remuneration for comparable work by sex, which is measured annually (European Commission, The Gender Pay Gap 2013 (Brussels, 2013), available from http://ec.europa.eu/justice/gender-equality/files/gender_pay_gap/ gpg_brochure_2013_final_en.pdf. 44

Dagmar Schiek

645

Part I – Commentary on the Articles of the EU Charter

pre-ordained by expectations of heterosexuality as the norm (hetero-normativity).49 While the details of inequalities between women and men differ between different societies, the burdening of women with more work, in particular more unpaid or low-paid work, than men is common to societies in all EU Member States. To a large extent, this is achieved by women delivering more unpaid work in families, caring for children, the elderly and servicing men in their reproductive needs.50 Inequalities between women and men also include sexualisation and emotionalisation of women, and the expectation that women endure physical violence, including sexual violence, and other restrictions of their physical integrity and personal liberty.51 23.29 The EU and its predecessors have developed their approach to inequalities between women and men since 1957. From the beginning, equal pay of men and women was to be maintained by Member States. While this was initially motivated by the desire to avoid competitive disadvantage for Member States such as France which prohibited pay discrimination,52 from 2000 human rights protection was acknowledged as decisive motive for the demand of gender pay equality.53 The EU legislator has initially focused on the employment and occupation, including social security.54 With expanding competences (above section A) it has also expanded gender equality legislation to new fields, such as access to goods and services.55 Further, gender equality is an element of the OMC where the EU cannot wield legislative competences.56 With all these developments, some doubt whether the Charter adds anything specifically.57 23.30 It is submitted that Article 23 CFREU does constitute change. In particular, the clause goes beyond the EU acquis developed in this field in one other important aspect, namely in the order of words. While the Treaties and secondary legislation always relate to men and women (equal treatment of men and women, equal pay), the Charter reverses the order and speaks about equality of women and men. While the egalitarian principle is maintained, the change in order also constitutes a further milestone. Naming women first, the Charter acknowledges the asymmetric character of sex inequality to the

49 On the feminist notion of hetero-normativity, see C Ridgeway and S Correll, ‘Unpacking the Gender System’ [2004] 18(4) Gender Society 510–31; A Miller, ‘Like a Natural Woman: negotiating collective gender identity in an alternative world’ [2007] 27(1) Sociological Spectrum 3–28. 50 The time use per gender is one of the worst documented indicators for gender (in)equality. Even for the European Union, this indicator is only available for a limited amount of countries, and for some years. The youngest data is of 2006 and shows that women work between 50 and 200% more than men on domestic tasks (http://epp.eurostat.ec.europa.eu/cache/ITY_OFFPUB/KS-NK-06-004/EN/KS-NK-06-004-EN.PDF). 51 Again, statistical capture of violence against women is incomplete. The EU Gender Institute nevertheless provides studies on the problem, lastly for Croatia (see http://eige.europa.eu/content/news-article/new-studyon-gender-based-violence). 52 G More, ‘The Principle of Equal Treatment: From Market Unifier to Fundamental Right?’, in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford, Oxford University Press, 1999) 517–53. 53 Case C-50/96 Schröder [2000] ECR I-743 [57]. 54 Today, the most important directives in these fields are Directives 2006/54 on equal treatment of women and men in employment and occupation and Directive 79/80 on equal treatment of women and men in social security. 55 Directive 2004/113/EC. 56 Beveridge and Velluti, Gender and the Open Method of Coordination (n 37). 57 Costello, ‘Gender Equality in the Charter’ (n 30)112; E Ellis, ‘The Impact of the Lisbon Treaty on Gender Equality’ [2010] European Gender Equality Law Review 7–13, 11.

646

Dagmar Schiek

Art 23 – Equality between Women and Men

detriment of women. Asymmetry of equality rights58 is frequently used to support a reading that does not outlaw discrimination of the privileged group (or sex) in order to achieve equality in socio-economic reality. Such measures can be necessary to overcome the paradox of equality law: modern laws concerning equality and discrimination are not restricted to merely formal equality. They are more ambitious in pursuing the aim of changing socio-economic reality in favour of those who have been at the receiving end of discrimination.59 To achieve such change, formally neutral rules are not always sufficient. At times it is also necessary to grant privileges to those who have hitherto suffered detriment. Sometimes, taking away a privileged position will also be perceived as detriment, but at times even further positive action will be required. While Article 23(2) provides a more specific rule on positive action, the wording of Article 23(1) changes the conceptual base for such positive action by acknowledging that women are those suffering from detriment, through its revised order of words. It thus suggests that positive duties and positive action are firmly based on a notion of asymmetry. Ensuring Equality in all Areas, Including Employment, Work and Pay In requiring the EU and its Member States to ensure equality, Article 23(1) goes beyond 23.31 an obligation to refrain from discrimination (Art 21) or to respect diversity (Art 22), as well as beyond gender mainstreaming (Art 8 TFEU). In the British discourse, the term ‘positive duties’ is used for an obligation to ensure equality. These have recently been codified in the recent Equality Act,60 after having given rise to a new philosophy of human rights based on doctrines of equality law.61 In Continental Member States, the concept of positive state obligations to create preconditions for enjoyment of human rights is frequently derived from social state principles.62 In addition, some Continental constitutions explicitly demand that equality between women and men must be ensured.63

58 On this see D Schiek, ‘Elements of a New Framework for the Principle of Equal Treatment of Persons in EC Law: Directives 2000/43/EC, 2000/78/EC and 2002/73/EC changing Directive 76/207/EEC in context’, (2002) 8 European Law Journal 137–57. 59 Schiek, ‘Torn between Arithmetic and substantive equality?’ (n 8). 60 On this see B Hepple, Equality—The New Framework (Oxford, Hart Publishing, 2011) 134–40. 61 S Fredman, Human Rights Transformed (Oxford, Oxford University Press, 2008). 62 See for an English language overview S Koutnatzis, ‘Social rights as constitutional compromise: lessons from comparative experience’ (2005) 44 Columbia Journal of Transnational Law 74–133; for the German constitution see D Schiek, ‘Artikel 20 Abs. 1–3 V: Sozialstaat’, in Neuwied et al (eds), Alternativkommentar zum Grundgesetz (Luchterhand, 2001) II. 63 For example, under s 6 of the Finnish Constitution, ‘Equality between the sexes is promoted in societal activity and working life’; under Art 1 of the French Constitution, ‘statutes shall promote equal access by women and men to elective offices and posts as well as to positions of professional and social responsibility’; under Art 3(2) of the German Constitution, ‘the state shall promote the actual implementation of equal rights for women and men and take steps to eliminate disadvantages that now exist’; and under Art 114 of the Greek Constitution, the ‘state shall take measures for the elimination of inequalities actually existing, in particular to the detriment of women’. The Italian Constitution stresses the obligation of the Republic and its regions to promote equal opportunity between women and men, and to remove hindrances to full equality of men and women in social, cultural and economic life, while also stressing women’s ‘essential role in the family’ (Arts 37, 48, 51, 117). Quotes are taken from J Huckerby, ‘Gender Equality and Constitutions of Europe and North America’, in UN Entity for Gender Equality and the Empowerment of Women Gender Equality and Constitutions. Comparative Provisions (Geneva, United Nations, 2012) 1–68.

Dagmar Schiek

647

Part I – Commentary on the Articles of the EU Charter

23.32

In international law this corresponds to the obligation to promote human rights. Relating to equality of women and men, the obligation to promote the factual conditions for the enjoyment of rights has first been linked to gender mainstreaming after the 1985 UN women summit64 and was fully developed as an instrument during the 1995 UN summit on women.65 The EU Commission had actively contributed to the 1995 summit with a proposal, based on the appraisal of the gender mainstreaming strategy in its Third Action Programme for Equal Opportunities.66 Immediately after the Beijing Platform had been adopted, EU Commission67 and Council of Europe68 documents established definitions of gender mainstreaming that are still quoted as decisive. According to these, gender mainstreaming constitutes a change in strategy in that women’s equality is no longer pursued by specific instruments only, but rather through the incorporation of a gender equality perspective into developing, evaluating and improving any policy process.69 The inclusion of the gender mainstreaming principle into primary EU law was achieved with the Treaty of Amsterdam, which established the wording of today’s Article 8 TFEU (see above 23.21). 23.33 However, Article 23(1) CFREU once again goes beyond the established acquis. While under Article 8 TFEU the Union shall only aim to eliminate inequalities and to promote equality between men and women, Article 23(1) CFREU demands that equality must be ensured. Thus, it is not sufficient to integrate a mere gender perspective and to strive for more equality. Instead, the obligation under Article 23(1) is only fulfilled once a change in society has been achieved and secured which may well seem utopian today, given the gross inequality between women and men, which increases whenever there is some crisis leading to scarcity of resources.70 This enhanced obligation might even quell some of the criticism of gender mainstreaming EU-style, according to which gender mainstreaming is only successful for policies driven by such departments that are conscious of the needs of gender equality anyway71 or is based on a reductionist approach attributing gender inequality to some economic habits mainly.72 There is no

64

Sümer, European Gender Regimes and Policies (n 29) 79. UN Fourth World Conference on Women, Global Platform for Action—Beijing (New York, United Nation Publishing, 1995); J Rubery, ‘Gender Mainstreaming and the OMC. Is the Open Method of Coordination too open for Gender Equality Policy?’, in J Zeitlin and P Pochet (eds), The Open Method of Coordination in Action. The European Employment and Social Inclusion Strategies (Brussels, PIE/Peter Lang, 2005). 66 COM 90 (449) final. 67 Communication from the Commission to the Council, ‘Incorporating Equal Opportunities for Women and Men into All Community Policies and Activities’ COM (1996) 67. 68 Council of Europe: Gender Mainstreaming. Conceptual Framework, Methodology and Presentation of Good Practices. Strasbourg (available from www.coe.int/t/dghl/standardsetting/equality/03themes/gendermainstreaming/EG_S_MS_98_2_rev_en.pdf). 69 See for summaries and quotes from those instruments, Beveridge and Velluti, Gender and the Open Method of Coordination (n 31) 17; R Nielsen, ‘Is European Union equality law capable of addressing multiple and intersectional discrimination yet?’, in D Schiek and V Chege (eds), European Union Non-Discrimination Law—Comparative Perspectives on Multidimensional Equality Law (Abingdon and New York, RoutledgeCavendish, 2009) 29–52, 39–40. 70 See F Bettio et al, The Impact of the Economic Crisis on the Situation of Women and Men and on Gender Equality Policies (Brussels, EU Commission, 2012). 71 Fredman, Human Rights Transformed (n 61) 192–94. 72 C Booth and C Bennet, ‘Gender Mainstreaming in the EU: Torwards a New Conception and Practice of Equal Opportunity?’ (2002) 9 European Journal of Women’s Studies 430–46, 441; K Nousiainen, ‘Utility-based equality an disparate diversities: from a Finnish Perspective’, in Schiek and Chege (eds), European Union NonDiscrimination Law (above n 69) 187–214, 190–92. 65

648

Dagmar Schiek

Art 23 – Equality between Women and Men

doubt that a process-focused approach to overcoming inequalities between women and men is necessary, as a corollary to non-discrimination policies, if socio-economic reality should be changed.73 If EU institutions are not only required to pay some attention to structures by attempting to overcome inequality, but are also under an obligation to ensure equality, this structural perspective may actually yield success. The more assertive formulation of Article 23(1) CFREU if compared with Article 8 23.34 TFEU requires more than considering gender equality in policy formulation. If inequalities between women and men persist, ensuring equality may require taking specific measures in favour of overcoming detriments that women face. The positive obligation to ensure equality of women and men aims at socio-economic reality, frequently also referred to as substantive equality or transformative equality.74 Overcoming inequalities between women and men ‘in all areas’ requires that the EU and its Member States strive for such equality, rather than only supporting formal approaches to equal treatment. Article 23(1) demands mainstreaming the obligation to ensure equality applies to all areas, while employment, work and pay are the ones stressed explicitly. The latter is in line with the origins of the EU’s gender equality policies (above 23.29), but the Charter also clarifies that this is today only one fraction of the areas in which equality of women and men must be ensured. This obligation rests on all institutions, the judiciary in interpreting non-discrimination and other law as well as the legislator in adopting new legislation and the EU Commission in developing policies. (c) Judicial Review, Enforceability (‘Justiciability’) As far as Article 23(1) programmes future legislation and policy development, the restric- 23.35 tive text of Article 52 CFREU may lead to doubts whether the provision is open to judicial review (or ‘justiciable’, in the words of the Comments to the Charter). However, once the EU has taken legislative measures, these must at the same time ensure equality between women and men. Article 23(1) can thus be used to challenge existing legislation under Article 263 and 267 TFEU. For example, the Directive on unwelcome migrants is not only worthy of academic critique,75 but could also constitute a violation of Article 23(1), in that it does not provide specific measures to accommodate the vulnerability of female refugees in camps where refugees without regular status shall be housed. There are no provisions for adequate accommodation for pregnant women or for facilities where it is safe to give birth; and there are no precautions against placing individual women in large groups of men where they are likely to be subjected to gendered violence. Further, the EU Commission and the Council are also bound by Article 23 when engaging in policy coordination without binding legal effects. With the legally

73 Accordingly, there are also optimistic assessments of the EU gender mainstreaming strategy (eg S Walby, ‘Gender Mainstreaming. Productive Tensions in Theory and Practice’ (2005) 12 Social Politics 321–43). 74 For example by S Fredman, ‘Beyond the Dichotomy of Formal and Substantive Equality: Towards a New Definition of Equal Rights’, in I Boerefijn et al (eds), Temporary Special Measures. Accelerating De Facto Equality of Women under Article 4(1) UN Convention on the Elimination of All Forms of Discrimination Against Women (Antwerp, Intersentia, 2003) 111–18, 115; R Holtmaat and J Naber, Women’s Rights and Culture: From Deadlock to Dialogue (Antwerp, Intersentia, 2011) 267. 75 H Askola, ‘Illegal Migrants, Gender and Vulnerability: The Case of the EU Returns Directives’ (2010) 18 Feminist Legal Studies 159–78.

Dagmar Schiek

649

Part I – Commentary on the Articles of the EU Charter

binding effect of the Charter, the question how gender mainstreaming has been applied in the Open Method of Coordination76 has become a constitutional one. 23.36 Finally, Article 23(1), although not conveying individual rights, binds the judiciary at EU and national levels in the interpretation and application of other individually enforceable rights. Such rights include the non-discrimination clauses of Article 21 CFREU and primary and secondary Union law (including Arts 18, 157 TFEU and legislation based on Arts 19 and 157(3) TFEU). Article 23(1) thus ensures a holistic interpretation of all provisions concerning sex discrimination and other discrimination in the light of an asymmetric notion of gender equality and the duty to ensure gender equality. Mainly, an asymmetrical and proactive approach to gender equality requires pursuing substantive (and transformative) equality rather than merely formal equal treatment. There are innumerable practical applications for this within the field of sex discrimination law, as covered by Article 21 CFREU, including the exact content of the prohibition of sex discrimination, the equation of sexual harassment with discrimination, and the provisions allowing limited positive action measures.77 To illustrate the opportunities created by Article 23, the evaluating section E will consider how the judiciary must in the future shape the concept of indirect sex discrimination, react to intersectional inequalities and shape positive action in favour of women.

III. Paragraph 2 The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the underrepresented sex.

(a) Scope of Application 23.37 Article 23(2) CFREU specifies the prohibition of sex discrimination in so far as it clarifies the admissibility in principle of positive action. Its scope of application comprises any law or policy establishing preferences for women or men. There is no personal restriction of the scope of application. (b) Specific Provision Origins 23.38 According to the Charter explanations, Article 23(2) originates from the Treaty provision Article 157(4) TFEU. Article 157(4) TFEU reads: ‘With a view to securing full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for

76

Beveridge and Velluti, Gender and the Open Method of Coordination (n 31). T Freixes, ‘Article 23. Egalité entre hommes et femmes’, in EU Network of Independent Experts on Fundamental Rights (eds), Commentary of the Charter of Fundamental Rights of the European Union (Brussels, European Commission, 2006) 201–03. 77

650

Dagmar Schiek

Art 23 – Equality between Women and Men

specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.’ This provision again has a specific history. It was inserted into the Treaty of Amsterdam after a particularly controversial ruling by the Court of Justice on so-called positive action in favour of women. The Kalanke ruling78 of 1995 concerned a rule specific to career development in German public services.79 The German Constitution binds public employers to a specific equality clause, which requires any decision on employment or promotion to be guided by the merit principle (Art 33(2) German Constitution). Accordingly, the person who is best qualified under a predefined set of qualifications, as assessed by public examinations or by in-post assessment following strictly formal rules, must always prevail. These rules resulted in male dominance in senior positions, which motivated the City of Hamburg to task a former judge at the Constitutional Court with drafting potential positive action measures.80 The judge came up with a ‘tie-break rule’: in order to overcome persistent underrepresentation of women, women could be preferred over equally qualified male competitors in employment and promotion until there were as many women as men in the relevant pay bracket. Arguably this tie-break rule was introduced instead of requiring personnel managers 23.39 to abstain from structural discrimination which was quite usual. For example, in-post assessments traditionally tended to converge on the same grade after employees or civil servants had achieved certain seniority. As a consequence, choices for promotion were made on the base of ‘auxiliary criteria’, mainly comprising seniority and number of dependants. Due to strict gender role expectations, the percentage of female employees in the public sector who were responsible for more than one dependant was very low: they would have one dependant if their husband earned less than themselves, or if they were unmarried mothers. Married male employees would typically have three dependants: a wife, if earning only slightly less than the husband, and two children. Seniority too tended to favour males in in male-dominated sectors, as women had only been given a chance much more recently. The City of Bremen had dared to disable these indirectly discriminatory criteria in favour of a tie-break rule. Thus, Mr Kalanke, a married father of two children, expected to be promoted before Ms Glissman, who was younger and without children and had less seniority (despite having more professional experience, partly accumulated in the private sector). This was very important to him at the time, because any promotion after his 60th birthday would not have been reflected in his final salary pension. Understandably, he challenged the decision to promote Ms Glissman, who had been assessed as equally qualified. The Court of Justice based its ruling on Directive 76/207 (since superseded by 23.40 Directive 2006/54), which established the principle of equal treatment between men and women in employment and occupation. It also contained a clause that was meant to allow positive action, Article 2(4), which read: ‘This directive shall be without prejudice to measures to promote equal opportunities for men and women, in particular by removing existing inequalities which affect women’s opportunities.’ The Court only

78

Case C-450/93 Kalanke [1995] ECR I-3051. For more detail on this see D Schiek, ‘Sex Equality Law after Kalanke and Marschall’ (1998) 4 European Law Journal 148–68. 80 E Benda, Notwendigkeit und Möglichkeit von positiven Maßnahmen zugunsten von Frauen im Öffentlichen Dienst (Hamburg, City of Hamburg, 1986). 79

Dagmar Schiek

651

Part I – Commentary on the Articles of the EU Charter

focused on the unequal treatment on grounds of sex, without considering the discriminatory policies which were replaced by the ‘tie-break rule’. It enounced that ‘a national rule that, where men and women who are candidates for the same promotion are equally qualified, women are automatically to be given priority in sectors where they are underrepresented involves discrimination on grounds of sex … As a derogation from an individual right laid down in the Directive, Article 2(4) must be interpreted strictly ... A national rule which guarantees women absolute and unconditional priority for appointment or promotion … go[es] beyond promoting equal opportunity and overstep[s] the limits of the exception in Article 2(4) of the Directive.’81 Thus it was held that the City of Bremen should have preferred Kalanke on the basis of having a dependent wife and two children, although his professional experience was less extensive. The City decided to reassess the qualification of both candidates through an extensive interview, which resulted in Ms Glissman being considered as better qualified to fill the post. Had the City relied on independent experts instead of peer review within the same unit from the start, there would have been no case of positive action. Possibly such a policy change would have removed discrimination contravening the principle of equal treatment of women and men in the first place. The case roused considerable discussion,82 including in political circles. The immi23.41 nent negotiation of the Treaty of Amsterdam was utilised to draft and pass an addition to Article 119 EEC, later renumbered as Article 141 EEC, which is now contained in Article 157(4) TFEU (text quoted above at 23.38). Article 2(4) Directive 76/207 remained unchanged for the time being. This led to juridical debate on whether Article 141(4) TEC (now Art 157(4) TFEU) allowed more scope for positive action measures than the Directive.83 The Court’s Subsequent Case Law 23.42 Two subsequent rulings concerning the German public service somehow softened the rigidity of this very first case. In Marschall, the Court decided that a tie-break rule could be upheld if it contained a ‘savings clause to the effect that women are not to be given priority in promotion if reasons specific to a male candidate tilt the balance in his favour’.84 In this case, the Court considered realistically that ‘where male and female candidates are equally qualified, male candidates tend to be promoted in preference to female candidates particularly because of prejudices and stereotypes concerning the role and capacities of women in working life and the fear, for example, that women will interrupt their careers more frequently’.85 It even realised that ‘the mere fact that

81

Kalanke (n 78) [16], [19], [21], [22]. The list of case annotations maintained by the Court of Justice lists no less than 83 annotations (http:// curia.europa.eu/jcms/upload/docs/application/pdf/2009–05/notes_89-04.pdf, pp 217–20); see for example H Fenwick, ‘Perpetuating Inequality in the Name of Equal Treatment ‘ (1996) 18 Journal of Social Welfare and Family Law 263–70; L Charpentier, ‘L’arrêt Kalanke. Expression du discours dualiste de l’égalité’ [1996] Revue trimestrielle de droit européen 281–303. 83 See on this historical phase O De Schutter, ‘Positive Action’, in D Schiek et al (eds), Cases, Materials and Text on National, Supranational and International Non-Discrimination Law (Oxford, Hart Publishing, 2007) 757–870 (pp 807–809 with further references). 84 Case C-409/95 Marschall [1997] ECR I-6363 [27]. 85 Ibid [29]. 82

652

Dagmar Schiek

Art 23 – Equality between Women and Men

female and male candidates are equally qualified does not mean that they have the same chances’,86 and concluded that ‘a national rule in terms of which, subject to a savings clause, female candidates for promotion who are equally as qualified as male candidates are to be treated preferentially in sectors where they are underrepresent ted may fall within the scope of Article 2(4) if such a rule may counteract the prejudicial effects on female candidates of the attitudes and behaviour described above’,87 before stressing that the restrictions laid down in Kalanke continued to apply.88 The Court did not refer to Article 141(4) EC, but only relied on Article 2(4) Directive 76/207. The Badeck case, decided in 2000,89 was even more interesting, in that it covered a wide 23.43 range of positive action measures. The legislation at stake contained binding targets for increasing the proportion of women employees in sectors where they had been underrepresented in the past, leaving the way to achieve those targets to the employer. The employer, however, remained bound by the merit principle quoted above. Accordingly, it could only ever prefer women over men if they were at least equally qualified.90 Further, the legislation contained two cases of strict quotas. For fixed-term positions in universities, which served as a base to obtain a PhD or a Habilitation,91 the legislation established binding targets. Universities had to employ women as PhD researchers according to the percentage which they constituted among those graduates in the relevant subject who qualified for PhD research. For Habilitation, the same principle applied. This binding target was accepted, under the assumption that women could only be preferred if equally qualified.92 The Court also sanctioned a strict quota for training places, referring to the fact that these were not employment opportunities, but rather opportunities to obtain employment, without demanding equal qualification for these posts.93 The Court further limited the scope for positive action in the Abrahamsson case,94 23.44 concerning a Swedish rule under which employment of professors in subjects where women were grossly underrepresented could waive the requirement that the female candidate should be equally qualified to the male one. The Court of Justice held that such a rule went beyond the scope allowed by Directive 76/207 and Article 141(4) EC (now: Directive 2006/54 and Article 157(4) TFEU). However, the Court stressed that there was ample scope for changing selection criteria in such a way as to prefer criteria that would benefit women.95

86

Ibid [30]. Ibid [31]. 88 Ibid [32]–[33]. 89 Case C-158/97 Badeck [2000] ECR I-1875. See on this case D Schiek, ‘Positive Action before the European Court of Justice—New Conceptions of Equality in Community Law’ (2000) 16(2) International Journal for Comparative Labour Law and Industrial Relations 251–75. 90 Paras 33, 36–38. 91 The Habilitation constitutes a higher-level PhD, traditionally a requirement for obtaining professorial office in addition to a PhD (eg in Germany, Sweden and Poland). 92 Para 41. 93 Paras 51–54. 94 Case C-407/98 Abrahamsson [2000] ECR I-5539; see also the parallel ruling on a Norwegian case by the EFTA Court E-1/02 [2004] CMLRev 245 with annotation by Ch Tobler. These cases prompted a specific conference and subsequent publication, A Numhauser-Henning ‘Aiming High—Falling Short?’ Women in Academia and Equality Law (The Hague, Kluwer Law International, 2006). 95 On such strategies see De Schutter (n 83) 818–20. 87

Dagmar Schiek

653

Part I – Commentary on the Articles of the EU Charter

A Continued Narrow Conception of Positive Action as Exception? 23.45 In the past, the Court has clearly treated positive action as an exception from the prevailing principle of formal equal treatment irrespective of sex. It has repeatedly stated that any preference for women constitutes derogation from the right (of men) to equal treatment, and can thus only be allowed in exceptional circumstances.96 Accordingly, under the principle of proportionality, positive action can only be legitimate if it is necessary to achieve a specific aim and no measures that are less intrusive on men’s prevailing rights to equal treatment can be envisaged.97 In the four cases described above, this meant in particular that women could only profit from a preferential rule if they were assessed as equally qualified with a man in a male-dominated environment.98 23.46 This case law has already been challenged for its incompatibility with CEDAW requirements (see above 23.17) From the obligation of state parties to accelerate de facto equality, the CEDAW committee derives the obligation of state parties to take temporary special measures, which is the CEDAW terminology of positive action.99 Since state parties have to ensure compliance with non-discrimination by changing social reality, this may require, rather than merely allow, positive action. There is thus some doubt whether this restrictive case law was appropriate under 23.47 the treaties before the Charter became legally binding. Whether it is still adequate now cannot be derived from the text of Article 23(2) alone, which is modelled on the case law as quoted. However, as any other norm of the Charter, Article 23(2) must be read in conjunction with Article 23(1). The question whether the restrictive approach to positive action can be aligned with Article 23(1) will be discussed under section E, since it concerns the holistic interpretation of Article 23. (c) Judicial Review and Enforcement 23.48 Article 23(2) cannot be enforced individually. This does not mean that it is not relevant for judicial proceedings. The provision must be used to interpret Article 21 CFREU in so far as the prohibition of sex discrimination is concerned. Accordingly, that prohibition does not exclude positive action. In so far Article 23(2) can be relied upon against any allegation that Article 21 CFREU prevents positive action measures.

96 Kalanke (n 78) [21]–[22]; Marschall (n 84) [32]. In the subsequent cases these principles were only applied, but no further reasoning was provided. The principled priority of formal equal treatment was made explicit in a ruling on specific advantages for mothers in access to childcare facilities (Case C-476/99 Lommers [2002] ECR I-2891 [39], [47]). 97 Proportionality was explicitly mentioned in Abrahamsson (n 94) [55]. 98 This dogma is also upheld in academic writing, eg by De Schutter (n 83) 775–77. 99 CEDAW General Recommendation No 25: Article 4 paragraph 1 of the Convention; see on these R Holtmaat and C Tobler, ‘CEDAW and the European Union’s Policy in the Field of Combating Gender Discrimination’ (2005) 12 Maastricht Journal of European and Comparative Law, 399–425; L Waddington and L Visser, ‘Temporary Special Measures under the Women’s Convention and Positive Action under EU Law: Mutually Compatible or Irreconcilable?’, in I Westendorp (ed), The Women’s Convention Turned 50 (Cambridge, Intersentia, 2012) 33–63.

654

Dagmar Schiek

Art 23 – Equality between Women and Men

E. Evaluation In evaluation Article 23 CFREU clearly offers opportunities, while also having severe 23.49 limitations.

I. Opportunities Article 23’s achievements mainly derive from its first paragraph, which introduces 23.50 a strong positive obligation in favour of women’s equality with men, and supports an asymmetric perception of gender equality. The potential of this provision can be illustrated through a holistic interpretation of Article 21 and 23 relating to indirect discrimination and intersectional inequalities and of both paragraphs of Article 23 in interpreting the scope for positive action in favour of women under Union law. These examples are meant to demonstrate what a careful argumentation building on Article 23(1) can achieve for any area of European Union non-discrimination law. (a) Revising Indirect Discrimination Law in Order to Ensure Gender Equality Within sex discrimination law, the prohibition of indirect discrimination has been dis- 23.51 cussed as one which is closely linked to substantive equality.100 The concept of indirect discrimination, in short, states that discrimination may exist even if a rule or practice does not explicitly refer to, for example, sex, but results in practice in excluding women (or men) disproportionally from advantages. Prohibiting indirect discrimination may serve to prevent circumvention of a prohibition of direct discrimination, which is unrelated to substantive equality. However, targeting the practical effects of a rule, beyond its motives and even its wording, is also related to socio-economic reality, and thus based on a social engineering perspective.101 Based on the assumption that inequality between women and men is entrenched in social reality, any rule reinforcing this inequality is prima facie suspect, and discrimination is assumed. Alas, existing EU legislation and case law regarding indirect discrimination does not always embody substantive approaches to sex equality. After the harmonisation of EU sex equality law with non-discrimination law on 23.52 other grounds, indirect sex discrimination is now deemed to exist ‘where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary’.102 This definition does not necessarily require statistical evidence,

100

Ellis and Watson, EU Anti-Discrimination Law (n 21) 142–43. These deliberations have been developed in more breadth in D Schiek, ‘Indirect Discrimination’, in D Schiek et al (eds), Cases, Materials and Text on International, Supranational and National Non-Discrimination Law (Oxford, Hart Publishing, 2007) 323–476, 327–31. 102 Directive 2006/54/EC Art 2(1)(b) for employment-related discrimination, Art 2(b) Directive 2004/113/ EC for other areas. 101

Dagmar Schiek

655

Part I – Commentary on the Articles of the EU Charter

which makes proving indirect sex discrimination easier than it was before. , it also seems to introduce an element of comparison, which threatens to undermine the efficiency of the concept for achieving substantive equality. For example, the Court had held that women on on-call employment contracts were not comparable with employees on more secure contracts,103 and stated that women and men on parental leave were not comparable with men absent from work for their military service.104 This meant that the lower levels of protection against dismissal of workers on parental leave and against overly long working times of workers on on-call contracts could not be challenged under the prohibition of indirect discrimination, although these detriments affected women disproportionally. Furthermore, the case law also reinforced gender stereotypes, such as the assumption that military service is in the public interest while caring for children within the family is merely in one’s private interest, or that workers on flexible part-time employment contracts are probably secured elsewhere (through their family relations) and thus less worthy of protection.105 23.53 The wording of the provisions defining indirect discrimination is sufficiently ambiguous as to allow a more comprehensive reading, which would also allow accommodating substantive equality. Such a reading would now be demanded by Article 23(1) CFREU. Accordingly, in the future the Court will have to start from the assumption that not only are women and men comparable in principle, but also that activities that are gendered female are comparable with activities gendered male. Under such an interpretation of indirect discrimination, the cases quoted above would have to be decided differently. (b) Intersectional Inequality 23.54 Intersectional inequalities constitute a further field in which a comprehensive reading of sex discrimination law in the light of the duty to ensure equality between women and men can change existing interpretations. So far, EU non-discrimination legislation protects against discrimination on the basis of six grounds (sex, ethnic and racial origin, religion and belief, age, disability, sexual orientation); Article 21 CFREU adds colour, social origin, genetic features, language, political or any other opinion, membership of a national minority, property and birth as well as any other ground. Accordingly, discrimination on more than one ground is increasingly likely to be covered by EU non-discrimination law. Such discrimination is debated in socio-legal theory mainly as intersectional disadvantage,106 while the EU institutions and EU secondary legislation prefer the term ‘multiple discrimination’.107

103

Case C-313/02 Wippel v Peek and Cloppenburg [2004] ECR I-9483. Case C-220/02 Österreichischer Gewerkschaftsbund (ÖGB), Gewerkschaft der Privatangestellten v Wirtschaftskammer Österreich [2004] ECR I-5907. 105 See for a critique of these rulings, with further references, Schiek, ‘Indirect Discrimination’ (above n 101), 468–71; A Numhauser-Henning, ‘EU sex equality law post-Amsterdam’, in H Meenan (ed), Equality Law in an Enlarged European Union (Cambridge, Cambridge University Press, 2007) 145–76, 169–70. 106 Grabham et al, Intersectionality and Beyond (n 47); D Schiek and A Lawson, EU Non-Discrimination Law and Intersectionality—Investigating the Triangle between Racial, Gender and Disability Discrimination (Aldershot, Ashgate, 2011) 12–27; see also Kilpatrick, 21.40–21.42. 107 See, for example, Recital 17 Directive 2000/43 and Recital 19 Directive 2000/78. 104

656

Dagmar Schiek

Art 23 – Equality between Women and Men

The term intersectionality was first introduced by Crenshaw108 in order to character- 23.55 ise the specific disadvantage suffered by women of colour which could not be explained by a mere addition of sex and race discrimination and overall tended to be overlooked by the law. The term has hence been used to characterise exactly this: the specific disadvantage suffered by those discriminated against on more than one ground. In recent years, there has been a legal policy debate in the European Union on whether specific legislation is needed in order for EU law to address intersectional discrimination of women.109 It has been argued elsewhere that there is scope for a teleological interpretation of 23.56 the body of EU anti-discrimination legislation to the effect that these Directives already entail a prohibition of intersectional discrimination.110 Such an interpretation is now required by the obligation under Article 23(1) CFREU to ensure equality between women and men. This derives from the fact that, due to the asymmetrical character of all discrimination, intersectional discrimination is suffered by women more frequently than by men. The asymmetry of discrimination means that, while each human being simultaneously has a gender, an ethnicity, an age, a sexual orientation and a religious belief (which may be atheism), not everyone suffers from discrimination in all these dimensions in equal measure. Women will suffer more from sex discrimination than men, those deemed to belong to an ethnic minority suffer more from discrimination on grounds of ethnic origin, those with darker skin colours suffer more from racial discrimination than those of lighter skin colour. Accordingly, a white man considered disabled but not considered as belonging to a minority religion or as being gay will only suffer from disability discrimination, while a white woman in the same situation will suffer from discrimination at the intersection between disability and gender—and numerous examples could be added. Denying victims of intersectional discrimination the protection of EU non-discrimination law thus clearly results in more women lacking protection than men. (c) Positive Action in Favour of Women Another example of how EU sex discrimination law can contribute to ensuring equality 23.57 between women and men is the openness for positive action. In so far as paragraph 2 does not alter the wording of existing provisions in Treaty and secondary law, paragraph 1 demands a purposive interpretation of its wording reflecting the asymmetric character of sex inequality. While Article 23(2) seems to maintain the restrictive approach which the Court has 23.58 developed on the basis of promotion practices in the German public service, Article 23(1)

108 K Crenshaw, ‘Demarginalizing the intersection of race and sex: a black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics’ (1989) University of Chicago Legal Forum 139–67. 109 See for a summary M Bell, ‘Advances in EU Anti-Discrimination Law: The EU Commission’s 2008 proposal for a new directive’ (2008) 3 The Equal Rights Review 7–18; D Schiek and J Mulder, ‘Intersectionality and EU Law: A Critical Appraisal’, in D Schiek and A Lawson (eds), EU Law and Intersectionality (above n 106) 259–73. 110 D Schiek, ‘Broadening the Scope and the Norms of EU Gender Equality Law: Towards a Multidimensional Conception of Equality Law’(2005) 12 Maastricht Journal of European and Comparative Law 427–66; see also Hepple, Equality (n 60) 62.

Dagmar Schiek

657

Part I – Commentary on the Articles of the EU Charter

introduces a positive obligation to ensure equality from an asymmetric perspective. Under such perspectives, positive action can no longer be perceived as an exception to an individual right of men to be treated equally. Rather, positive action becomes a necessary corollary to the prohibition of discrimination on grounds of sex. Both are two sides of the same coin. Ensuring equality requires eliminating discrimination. Since such discrimination has traditionally been to the disadvantage of women, ensuring equality requires preferential treatment of women. There is no need to read a clause allowing for such positive action narrowly, as soon as the asymmetric character of the demand to ensure equality is recognised. 23.59 Of course this does not mean that positive action should be maintained forever or is without limits. The obligation to ensure equality between women and men demands that special measures going beyond eliminating formal discrimination are carefully tailored to the specific field in which equality shall be ensured. Article 23(1) requires a targeted approach to positive action. This excludes the blind transposition of solutions developed for one field to all other fields. 23.60 In particular it is not always necessary that opportunities are only expanded to equally qualified candidates.111 This specific requirement permeating the Court’s case law on access and promotion quotas derives from specific obligations of public employers under German law. However, not all employers are required to use predefined criteria to establish qualification. It is more typical that employers maintain discretion allowing them to assemble a range of abilities in their teams. Similarly, schools, universities, teams for cultural activities or sports clubs should not have to apply predefined merit criteria to avoid discrimination claims. As we have seen, the Court of Justice waived the qualification criterion for training posts in the Badeck case.112 The same case also debated quota rules for collective bodies. Although the Court proceeded on the assumption that the relevant paragraph of the disputed legislation was not binding, the short reasoning is still worth mentioning. The Court conceded that different measures could apply for bodies that are established by election, thus suggesting that merit based on formal qualification is not the only way of deciding about access to positions.113 The recent Commission proposal regarding the representation of women on com23.61 pany boards114 constitutes a good example for the detriments of the doctrine that equal qualifications should always prevail. The disputed Commission proposal not only sets a quota for non-executive company directors, but also imposes upon companies the establishment of qualification criteria. Thus, it excludes the model which has been successful in Norway: setting a minimum quota of women, and leaving it for the specific company to decide how to achieve this.115 The present proposal also excludes the election of non-executive directors by shareholders or workers’ representatives, which

111

This is the preposition made by De Schutter, ‘Positive Action’ (above n 83) 775–77. Badeck (n 89). 113 Ibid [65]–[66]. 114 European Commission, Proposal for a Directive improving the gender balance among non-executive directors of companies listed on stock exchanges and related measures COM (2012) 614 fin. See on this in more detail D Schiek ‘Gender Equality under the Charter of Fundamental Rights for the European Union—a New Lease of Life for Positive Action?’, in J Fejø et al (eds), Liber Amicarum et Amicorum in Honour of Ruth Nielsen (Copenhagen, Jurist- og Økonomforbundes Forlag, 2013) 299–322, 313–21. 115 On the different national rules to achieve the same aim, see C Tvarnø, ‘Women quotas on company boards in Scandinavia and the EU’, in R Nielsen and C Tvarnø (eds), Scandinavian Women’s Law in the 21st Century (Copenhagen, DJØF, 2012), pp 265–83. 112

658

Dagmar Schiek

Art 23 – Equality between Women and Men

constitutes an element of industrial relations in a number of Member States.116 It seems based on the assumption that the ignorance of women’s qualification is the reason for their underrepresentation on boards. Empirical evidence suggests that this is not the case, but that women are not trusted for reasons of tradition, and only allowed on company boards in a crisis, which again creates suspicion against female board members.117 The proposal is thus not targeted to the field for which positive action is designed, and overly narrow. In order for company board ‘quotas’ to be efficient, a less intrusive construction seems much more adequate to the sector’s practices in all Member States.

II. Shortcomings Despite all these positive elements, the provision also has severe shortcomings. These are 23.62 rooted in the fact that it continues to relate women’s rights to men’s rights, and equality between women and men. Such fixation of women’s rights on equality and comparison has for a long time been the focus of feminist critique.118 Women’s law, as for example introduced by Tove Stang Dahl,119 does not necessar- 23.63 ily relate to women and men. Instead it pursues the ‘objective to improve the position of women in law and society’,120 an objective that has also been characterised as lying at the base of feminist legal studies.121 From this perspective, women’s rights would aim at enhancing women’s capability of governing their own lives in interrelation with others.122 Any reference to men is not necessarily helpful for achieving that aim. It may even betray women’s rights, because it implies for women to assimilate to a male norm. For example, if rights must always be granted to women and men in equal measure, women could not derive rights from birthing or nursing children, as this is something men cannot do. Granting rights only for ‘those women who are able to act in the same way as men’ is thus a severe critique of EU gender policies.123 Women’s law seems to

116

A Conchon, Board Level Employee Representation Rights in Europe (Brussels, ETUI, 2011) 11–13. A Haslam et al, ‘Investing with Prejudice: the Relationship Between Women’s Presence on Company Boards and Objective and Subjective Measures of Company Performance’ (2010) 21 British Journal of Management 484–97; M Ryan and A Haslam, ‘The Glass Cliff: Exploring the Dynamics Surrounding the Appointment of Women to Precarious Leadership Positions’ (2007) 32 Academy of Management Review 549–72. 118 As indicated in A McColgan, Women under the Law: the False Promise of Human Rights (Harlow, Longman, 1999). 119 T Stang Dahl, Introduction to Women’s Law (Oslo. Norwegian University Press, 1987). 120 A Hellum, ‘CEDAW and the discipline of women’s law: Continuity and change in the understanding of gender and law’, in Nielsen and Tvarnø (eds), Scandinavian Women’s Law in the 21st Century (n 115) 31–61, 32. 121 E-M Svensson, ‘Is there a Future for Scandinavian Women’s Law?’, in Nielsen and Tvarnø (eds), Scandinavian Women’s Law in the 21st Century (n 115) 15–29, 25. Arguably, this is an outsider view. Insider feminists are prone to much more complex views. For a statement on Law, Gender and Sexualities, see J Conaghan, ‘The Making of a Field or the Building of a Wall? Feminist Legal Studies and Law, Gender and Sexuality’ (2009) 17 Feminist Legal Studies 303–307. 122 A similar starting point is taken by S Moller Okin, ‘Mistress of Their Own Destiny. Group Rights, Gender, and Realistic Rights to Exit’ (2002) 112 Ethics 205–30. 123 S Walby, ‘The European Union and Gender Equality: Emergent Varieties of Gender Regimes’ (2004) 11 Social Politics 4–29, 5. Walby uses the rest of the article to de-construct this criticism and to defend the view that the EU has indeed achieved much more than a merely assimilationist gender equality regime. 117

Dagmar Schiek

659

Part I – Commentary on the Articles of the EU Charter

offer an alternative to this by focusing on women instead of men. Article 23 CFREU does not embrace this notion, though. 23.64 Both women’s law and the legal strive for equality between women and men can further be criticised as being implicitly assimilationist for the mere reason that it focuses on women as a seemingly essentialist category, while there are as many differences between women as between women and men. The Nordic model of women’s law has been especially criticised: while its policy towards equalising the sexes may imply a movement towards each other, rather than of women towards men, it still maintains the perspective that differences between women and men are the main ones to be overcome.124 Despite all the potential to derive a constructive approach to intersectional inequalities from Articles 23 and 21, this limitation always harbours the danger of neglecting differences between women. 125

III. Conclusion 23.65 Article 23 CFREU offers opportunities for challenging overly formal perceptions of equal treatment irrespective of sex as compromising the Union’s obligation to ensure equality. As the examples of re-constructing indirect discrimination, approaching intersectionality and embracing positive action have demonstrated, this requires a holistic reading of both its paragraphs together and in conjunction with Article 21. However, such constructions only go so far. Article 23’s continuing fixation on equality between women and men constitutes a severe restriction to mobilising law for improving women’s rights. In so far, the CFREU compares unfavourably to the UN CEDAW, which takes a more progressive approach to the law.

124 This is also implied by the slogan ‘women are the majority, not a group’, which was used during the negotiations for the Constitutional Treaty in order to support the enhanced notion of gender equality among all the different equalities. This slogan is also taken up by S Koukoulis-Spiliotopulos (n 39). 125 Hellum, ‘CEDAW and the discipline of women’s law’ (n 120) 31–61.

660

Dagmar Schiek

Article 24* Article 24 The Rights of the Child 1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. 2. In all action relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration. 3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.

Text of Explanatory Note on Article 24 This Article is based on the New York Convention on the Rights of the Child signed on 20 November 1989 and ratified by all the Member States, particularly Articles 3, 9, 12 and 13 thereof. Paragraph 3 takes account of the fact that, as part of the establishment of an area of freedom, security and justice, the legislation of the Union on civil matters having cross-border implications, for which Article 81 of the Treaty on the Functioning of the European Union confers power, may include notably visiting rights ensuring that children can maintain on a regular basis a personal and direct contact with both of their parents.

Select Bibliography L Ackers and H Stalford, A Community for Children? Children, Citizenship and Internal Migration in the EU (Aldershot, Ashgate, 2004). S Choudhry and J Herring, European Human Rights and Family Law (Oxford, Hart Publishing, 2010). H Cullen, ‘Children’s Rights’ in S Peers and A Ward (eds), The European Charter of Fundamental Rights (Oxford, Hart Publishing, 2004). R Lamont, ‘The EU: Protecting Children’s Rights in Child Abduction’ [2008] International Family Law 110–15. ——, ‘Free movement of persons, child abduction and relocation in the European Union’ (2012) 34 Journal of Social Welfare and Family Law 231–44. C McGlynn, ‘Rights for Children?: The Potential Impact of the European Union Charter of Fundamental Rights’ (2002) 8 European Public Law 387–400. ——, Families and the European Union: Law, Politics and Pluralism (Cambridge, CUP, 2006). H Stalford, Children and the European Union: Rights, Welfare and Accountability (Oxford, Hart Publishing, 2012).

* The author is grateful to Helen Stalford, Charlotte O’Brien and Violeta Moreno-Lax and the editors for their invaluable comments. Any errors or omissions remain her own.

Part I – Commentary on the Articles of the EU Charter

H Stalford, E Drywood, ‘Coming of Age? Children’s Rights in the European Union’ (2009) 46 Common Market Law Review 143–72. N Thomas, B Gran and K Hanson, ‘An Independent Voice for Children’s Rights in Europe? The Role of Independent Children’s Rights Institutions in the EU’ (2011) 19 International Journal of Children’s Rights 429.

A. Field of Application of Article 24 24.01 Article 3(3) of the Treaty on European Union1 (TEU), states that the EU ‘shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between men and women, solidarity between generations and protection of the rights of the child.’ In addition to this general goal within Europe, Article 3(5) TEU states that, in its relations with the wider world, the EU aims to protect human rights, and particularly the rights of the child. Children who are nationals of a Member State are also citizens of the EU, according to Article 20(1) of the Treaty on the Functioning of European Union2 (TFEU). There is no direct competence over the general promotion of children’s rights in 24.02 the TFEU. Children are identified in the TFEU only in the context of the very specific competence over asylum and immigration and cross-border criminal law, part of the ‘Area of Freedom, Security and Justice’3 (AFSJ) within Europe. Measures for a common immigration policy tackling illegal immigration and trafficking can include specific measures to combat trafficking in women and children under Article 79(2)(d) TFEU. Article 83(1) TFEU provides competence to adopt measures on serious crime with a cross-border dimension including the trafficking and sexual exploitation of women and children. 24.03 Article 51(2) of the Charter explicitly states that it does not extend the field of application of EU law beyond the powers of the EU, or establish any new power or task for the EU. Given the EU’s limited competence over children and children’s rights, Article 24 appears relatively unimportant. However, several different aspects of EU law significantly affect children both as a group, and as individuals. The institutions of the EU increasingly acknowledge this impact. Article 24 of the Charter reflects this impact and, in turn, has the potential to influence the development and interpretation of a wide range of EU measures.4 In formulating the ‘EU Agenda on the Rights of the Child’,5 the Commission created an inventory of how EU law affected children’s rights, identifying the policy area and associated competence in the EC Treaty, the rights in the Charter

1

[2010] OJ C83/13. [2010] OJ C83/47. 3 See European Council, ‘The Stockholm Programme—An Open and Secure Europe serving and protecting the citizens’ [2010] OJ C115. 4 On the development of EU law in relation to children, see H Stalford, E Drywood, ‘Coming of Age? Children’s Rights in the European Union’ (2009) 46 Common Market Law Review 143–72. 5 Communication from the Commission ‘An EU Agenda for the Rights of the Child’ COM (2011) 60 final. 2

662

Ruth Lamont

Art 24 – The Rights of the Child

and in the UN Convention on the Rights of the Child 1990.6 The inventory identified the following policies with a direct impact on children: asylum and migration; child health, safety and welfare; child poverty and social exclusion; child labour; children’s participation; civil justice and family law matters; education; environment; media and internet; non-discrimination; and violence against children. There are areas of EU law where children have been addressed directly, despite a generic competence base. As the effect of the creation of the internal market on children was not immediately 24.04 evident, or appreciated by the EU’s founders, children’s rights and interests are not directly referred to in the internal market competence. This led to the assertion that children were ‘invisible’ in EU law.7 However, children are affected by both the exercise of the fundamental freedoms of the internal market, particularly free movement of persons and goods, and by the regulation of the internal market. Initially, children were addressed by EU law as a side-effect of the free movement of workers, but their interests have increasingly been recognised in other areas of internal market law. Children were identified as subjects of EU law on the free movement of persons in 24.05 Regulation 1612/68/EEC.8 As descendants of the worker, below the age of 21, they were entitled to migrate with free-moving workers9 and, when residing in the territory of the host state, children were entitled to access the same educational opportunities as a child who is a national of the host Member State.10 The right to reside is now replaced by Article 2(2), Directive 2004/38,11 so a child of either the EU migrant or his or her spouse or partner under the age of 21 has the right to reside with the migrant EU national in the host state, subject to a resources requirement after three months.12 The right of residence awarded to dependent children by Regulation 1612/68 was parasitic on the

6 Commission Staff Working Document ‘Preliminary Inventory of EU Actions Affecting Children’s Rights’ SEC (2006) 889. 7 C McGlynn, ‘Rights for Children?: The Potential Impact of the European Union Charter of Fundamental Rights’ (2002) 8 European Public Law 387. 8 Regulation 1612/68 on freedom of movement for workers within the Community [1968] OJ L257. Now replaced by Regulation 492/2011/EU on freedom of movement for workers within the Union [2011] OJ L141/1. 9 Regulation 1612/68 Art 10(1)(a). Now Art 2(2)(c), Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77. 10 Regulation 1612/68 Art 12; under Directive 2004/38 Art 24, family members have the right to equal treatment with nationals of the host state within the scope of the Treaty, access to education is now under Art 10 Regulation 492/2011/EU. See Case C-310/08 Ibrahim [2010] ECR I-1065, in which the ECJ held that the children of a national of a Member State who works or has worked in the host Member State and the parent who is their primary carer can claim a right of residence in the that state on the sole basis of Art 12 of Regulation 1612/68, without such a right being conditional on their having sufficient resources and comprehensive sickness insurance cover in that state, and C-480/08 Teixeira [2010] ECR I-1107, in which the ECJ similarly gave a free-standing residence right (irrespective of their parents’ employment status) to the children of a citizen of the European Union who had installed themselves in a Member State during the exercise by their parent of rights of residence as a migrant worker in that Member State, for the purpose of attending general educational courses there, pursuant to Art 12 of Regulation 1612/68. It is possible that Art 12 of Directive 2004/38 (on the right of permanent residence of family members in the event of death or departure of the EU citizen) could be interpreted similarly, to grant such free-standing rights, and the Charter might assist in this respect. 11 Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77. 12 Art 7 Directive 2004/38.

Ruth Lamont

663

Part I – Commentary on the Articles of the EU Charter

worker’s right of residence,13 but the development of the concept of EU citizenship following the Treaty of Maastricht means that children having the nationality of one of the Member States now have an independent right of residence in EU law in a host Member State, as EU citizens.14 However, the child’s right of residence cannot be effectively realised without the parent’s care, and in practice the child’s residence is dependent on the parent remaining with them, and may actually facilitate the parent’s right of residence,15 and fundamental freedom of movement. In this situation, the child’s right may be regarded as incidental to the parents’ rights, and the parasitic relationship is then operating in reverse.16 24.06 Internal market law has been directed at protecting children’s interests in the regulation of the free movement of goods and the creation of trading standards in the interests of the protection of children. Restrictions on the free movement of goods17 are legitimate to protect non-commercial interests, such as public morality and public health, including the protection of children,18 which means that children’s interests are balanced against the internal market freedom.19 The EU has also harmonised the standards of products aimed directly at children, most notably in the Directive on the safety of toys,20 recognising the role of children as consumers with particular needs. EU consumer policy has acknowledged the more vulnerable position of children in the unfair commercial practices Directive.21 Article 5(3) of that Directive permits the assessment of advertising from the perspective of particularly vulnerable groups, including children, for its potential to distort economic behaviour by impairing a consumer’s ability to make an informed decision. Whilst this provision has been criticised for failing to take the child’s best interests as a primary consideration,22 it does reflect awareness of differentiated effect of commercial activity on children and the potential detrimental effects.

13 L Ackers and H Stalford, A Community for Children? Children, Citizenship and Internal Migration in the EU (Aldershot, Ashgate, 2004). 14 Case C-200/02 Chen [2004] ECR I-9925. 15 Ibid. See also Case C-34/09 Zambrano [2011] ECR I-01177 where the EU citizen child’s right of residence in the EU secured a right of residence for their third country national parents. The importance of the child’s right of residence in securing the adult’s right of residence is demonstrated by Case C-434/09 McCarthy [2011] ECR I-3375, where on similar facts to Zambrano but where the family relationship was between two adults, there was no right of residence for the third country national. The child’s right of residence is not unlimited and does not guarantee a right of residence for their third country national parent, but the child’s best interests must be considered when making a decision on whether to permit family reunification, see Cases C-356/11 and C-357/11 O, S and Maahanmuuttovirastro (Judgment of 6 December 2012). 16 R Lamont, ‘Free movement of persons, child abduction and relocation in the European Union’ (2012) 34 Journal of Social Welfare and Family Law 231, 234. 17 Art 36 TFEU. 18 Joined Cases C-34/95, C-35/95 and C-36/95 De Agostini [1997] ECR I-03843; Case C-244/06 Dynamic Medien [2008] ECR I-505. 19 A Garde, ‘Advertising Regulation and the Protection of Children-Consumers in the European Union: In the Best Interests of ... Commercial Operators?’ (2011) 19 International Journal of Children’s Rights 523, 525. 20 Directive 2009/48 on the safety of toys [2009] OJ L170/1. Based on Art 95 EC (now Art 114 TFEU). 21 Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market (unfair commercial practices directive) [2005] OJ L149/22. Based on Art 95 EC (now Art 114 TFEU). 22 Garde, ‘Advertising Regulation and the Protection of Children-Consumers in the European Union (n 19) 530. This is also evident in Directive 2010/13 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services [2010] OJ L95/1, which controls broadcasting services and prohibits television advertising causing damage to minors.

664

Ruth Lamont

Art 24 – The Rights of the Child

The EU’s labour law and social policy directly regulates children as economic actors. 24.07 Directive 94/33 on the protection of young people in work23 regulates the age at which children can enter into work and the conditions in which they should work to ensure that this is closely monitored throughout the Member States. This measure ensures that basic standards of protection are in place for children in work. Children also obtain indirect benefit from the social rights granted to others, particularly in the EU’s parental leave measures, which entitle parents to take leave after the birth or adoption of a child. It has been made clear by the Court that this is the right of the parent as a worker, not the child,24 but it also benefits the child in encouraging the parent’s presence and care following birth or adoption.25 The clearest impact of EU law on children’s interests has occurred in the development 24.08 of the Area of Freedom Security and Justice (AFSJ), encompassing policies on judicial cooperation over cross-border civil and criminal law and asylum and immigration. The EU has been particularly active in regulating cross-border family law, the regulation of immigration into the EU from third countries, and tackling the trafficking of human beings both within, and from outside, the EU, all of which raise specific issues affecting children’s interests. In the latest iteration of the AFSJ, the European Council specifically refers to children’s rights as an aspect of the Stockholm Programme, calling on the Commission to act to enforce the law on parental child abduction, and protect children in vulnerable situations, particularly children who experience sexual exploitation and trafficking, or who are unaccompanied minors in an immigration context.26 Judicial cooperation in civil matters has been the basis for the development of 24.09 private international law rules on jurisdiction and the recognition and enforcement of judgments in family law matters.27 As families have migrated throughout the EU, cross-border family law disputes have a significant impact on children whose parents may be living in different states, and ensuring that contact and residence is effectively regulated between national legal regimes has become a significant issue.28 The interaction between national family law and European law, and cooperation between national courts, is important to the overall welfare of the child at the centre of any litigation. Regulation 2201/2003 (‘Brussels II Revised’)29 regulates jurisdiction and recognition and enforcement of divorce and parental responsibility judgments, and also provides additional measures to tackle parental child abduction between the Member States. Despite initially excluding some children from the scope of the original Regulation and

23 [1994] OJ L216/12. The Directive was based on Art 118a EEC (now Art 154 TFEU). See Stalford on Art 32 of the Charter, in this volume. 24 Case C-149/10 Chatzi [2010] ECR I-08489 [34]. See G James, ‘Forgotten Children: Work-Family Reconciliation in the EU’ (2012) 34 Journal of Social Welfare and Family Law 363. See Costello on Art 33 of the Charter, in this volume. 25 Directive 2010/18 implementing the revised Framework Agreement on parental leave [2010] OJ L68. Based on Art 153 TFEU. 26 European Council ‘The Stockholm Programme—An Open and Secure Europe serving and protecting the citizens’ 2 December 2009, 15–16. 27 Art 81 TFEU. 28 R Lamont, ‘Child Abduction in the European Union: Recognizing and Regulating Care and Migration’ in J Bridgman et al (eds), Regulating Family Responsibilities (Farnham, Ashgate, 2011). 29 Regulation 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility [2003] OJ L338.

Ruth Lamont

665

Part I – Commentary on the Articles of the EU Charter

failing to specifically identify children’s interests,30 Brussels II Revised incorporates specific reference to children’s rights31 and in particular the need for decisions to be taken in the child’s best interests and for the child to be heard in proceedings which affect them.32 Recital 33 states that the Regulation seeks to ensure respect for the fundamental rights of the child set out in Article 24 of the Charter. 24.10 Subsequent to Brussels II Revised, a Regulation governing the cross-border enforcement of maintenance obligations arising from family relationships, including maintenance for children was adopted in 2009.33 Although these obligations exist between adults, ensuring that maintenance obligations are enforced is important for the child’s welfare and the EU has engaged with this traditionally difficult area of family law to improve the enforcement of orders between Member States. In addition to the private international law rules, the EU has adopted measures potentially affecting the procedural aspects of cross-border disputes, such as a Directive to encourage crossborder mediation of disputes.34 The Directive will apply to cross-border family disputes, including those relating to children, where it may be valuable in promoting cooperation between parents contesting issues of parental responsibility, potentially to the benefit of the parents and the child. As noted above, the TFEU refers to children in the context of EU immigration and 24.11 cross-border criminal law measures. Both Article 79(2)(d) TFEU and Article 83(1) TFEU refer to the competence of the EU to adopt measures to tackle trafficking in human beings. Children form one category of potential trafficking victim.35 EU immigration and criminal law also encompasses children who are not victims of trafficking. The child as a victim of crime has been a consistent focus of cross-border cooperation in criminal law. Children have been categorised as a group of ‘vulnerable victims’, requiring additional protection during the criminal process. In the Framework Decision on the standing of victims in criminal proceedings,36 which aimed to protect the procedural rights of victims in criminal proceedings across the Member States, children were not specifically identified as a category of victim, but vulnerable victims obtained specific treatment ‘suitable to their circumstances’.37 These obligations have subsequently been replaced and extended by the Victims’ Directive.38 The Victims’ Directive is specifically linked to the need to protect child victims of sexual exploitation and trafficking within the EU.39 However, the scope of the Directive is general and protections extended to

30 Regulation 1347/2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses [2000] OJ L160/19. 31 See H Stalford, ‘Brussels II and Beyond: A Better Deal for Children in the European Union?’ in K Boele-Woeki (ed), Perspectives for the Unification and Harmonisation of Family Law in Europe (Antwerp, Intersentia, 2003). 32 In the rules on jurisdiction under Art 12; and in relation to international child abduction under Art 11(2). 33 Regulation 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations [2009] OJ L7/1. 34 Directive 2008/52 on certain aspects of mediation in civil and commercial matters OJ L136/3. 35 See S Clements, ‘The Fight Against Trafficking and Child Sexual Abuse’ [2009] International Family Law 114. 36 [2001] OJ L82/1. 37 Art 2(1). 38 Directive 2012/29 establishing minimum standards on the rights, support and protection of victims of crime, replacing Framework Decision 2001/220/JHA, [2012] OJ L315/57. 39 Commission Proposal for a Directive establishing minimum standards on the rights, support and protection of victims of crime COM (2011) 275 final, 4; Recital 7, Directive 2012/29.

666

Ruth Lamont

Art 24 – The Rights of the Child

are not specific to trafficking or offences of sexual exploitation of children. Under the Directive, an individual assessment should be carried out to identify the needs of the victim and the child’s age should be taken into account during this process.40 Article 24 of the Directive contains a specific right to protection of child victims during criminal proceedings, including provision for interviews with children to be recorded and used as evidence during trial, and a presumption in favour of treating a person of disputed age as a child. In addition to protection of children as victims of crime during the trial process, the European Arrest Warrant41 covers crimes against children, specifically the sexual exploitation of children, and child pornography, under Article 2(2). If the crime attracts a maximum penalty of three years’ imprisonment in the requesting state, the person accused of these crimes must be surrendered from another Member State, without having to verify the double criminality of the act. The specific reference in Article 83(1) TFEU to serious crime including the traf- 24.12 ficking and sexual exploitation of women and children has meant that there has been significant activity in legislating to address this issue. Directive 2011/36 is aimed at tackling human trafficking, including trafficking in children.42 It defines the criminal offence of ‘trafficking in human beings’ and provides for the protection of victims of trafficking. Trafficking requires the transfer or transportation of a human being through coercion or abuse of a position of vulnerability for the purposes of exploitation, which can include sexual exploitation or forced labour.43 A child is defined as anyone under 18.44 Trafficking a child is an aggravating factor justifying an increased penalty for the offence.45 Recital 8 to the Directive specifically refers to the protection of the rights of the child under Article 24 of the Charter and the UNCRC. The Directive provides specific supportive measures for children under Articles 13–15. Article 13 provides that the child’s best interests should be a primary consideration. It also states that, if there is any doubt over the age of an individual when they are identified and there is reason to believe that s/he is a child, s/he should be presumed to be a child. Articles 14 and 15 provide identified forms of support to child victims of trafficking, requiring Member States to ‘ensure that the specific actions to assist and support the child victims of trafficking in human beings, in the short and long term, in their physical and psycho-social recovery, are undertaken following an individual assessment of the special circumstances of each particular child victim, taking due account of the child’s views’.46 The more extensive nature of the obligations towards children contained in this Directive stem from Articles 82(2) and Article 83(1) TFEU and the direct reference to crimes against children as an aspect of the competence base in the Treaty. The effect of including children in the competence base is also evident in Directive 24.13 2011/92 on combating the sexual abuse and sexual exploitation of children and child

40

Art 22 Directive 2012/29. Framework Decision on the European arrest warrant and surrender procedures between Member States [2002] OJ L190/1. 42 Directive 2011/36 on preventing and combating trafficking in human beings and protecting its victims [2011] OJ L101/1. 43 Art 2(1) and (3). 44 Art 2(6). 45 Art 3. 46 Art 14(1). 41

Ruth Lamont

667

Part I – Commentary on the Articles of the EU Charter

pornography.47 The Directive aims to provide a comprehensive approach to these criminal offences where a child is the victim, and to associated sanctions for child sexual exploitation. It refers to the fundamental rights of children throughout the text, for example, Recital 1 refers to sexual exploitation of children as serious violation of fundamental rights under the CRC and the EU Charter. The Directive defines offences of sexual exploitation and child pornography and associated penalties.48 Under Article 9(a), an offence is aggravated if the child was particularly vulnerable due to incapacity or mental or physical disability. 24.14 The criminal law measures adopted at EU level identify the child as a victim of crime, deserving of additional protection.49 This narrative is challenged by the immigration and asylum framework, where the child may have infringed immigration rules and awarding rights to the child may create additional obligations of family reunification. There are restrictions imposed on migration from outside the EU but there is specific protection for children who have applied for refugee status,50 including the right to education once a child has been granted international protection51 and provision for specific guarantees for unaccompanied minors under 18.52 Measures adopted in the criminal law framework against trafficking in human beings are complementary to some asylum and immigration measures, where trafficked children may have infringed immigration rules through their forced migration. Directive 2011/36 on preventing and combating trafficking in human beings and protecting its victims53 creates a criminal offence of trafficking human beings.54 The Directive contains specific protections for children which, for the purposes of the Directive, encompasses anyone under the age of 18.55 The whole Directive should be applied with the child’s best interests as a primary consideration.56 In any criminal proceedings associated with trafficking, a trafficked child should have access to free legal representation and specialist support.57 Unaccompanied trafficked children are identified as requiring specialist support and a durable solution, based on the child’s best interests, should be found for these children.58 For children subject to immigration rules outside the trafficking framework, Member 24.15 States are directed to consider the best interests of the child as a primary consideration when implementing EU law on asylum.59 The greatest controversy has surrounded the

47 [2011] OJ L335/1, based on Art 82(2) and Art 83(1) TFEU. A child is defined by Art 2(1) as anyone under the age of 18. 48 Arts 3, 4 5 and 6. 49 In Case C-348/09 PI (Judgment of 22 May 2012), the commission of sexual offences against children was accepted as a serious threat to the fundamental interests of society, justifying the expulsion of a non-national from another Member State on the basis of a threat to public security under Directive 2004/38. 50 Directive 2011/95 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection [2011] OJ L337/10. 51 Art 27 Directive 2011/95. 52 Art 31 Directive 2011/95. 53 [2011] OJ L101/1. 54 Art 2(1) Directive 2011/36. 55 Art 2(6) Directive 2011/36. 56 Art 13(1) Directive 2011/36. 57 Art 15 Directive 2011/36. 58 Art 16(2) Directive 2011/36. 59 Art 20(5) Directive 2011/95.

668

Ruth Lamont

Art 24 – The Rights of the Child

legal position of unaccompanied minors.60 Unaccompanied minors are children under 18 who are not married and arrive in the territory without an adult responsible for them, or are left unaccompanied on arrival.61 Under Article 31(6), Directive 2011/95, individuals working with unaccompanied minors seeking asylum should receive appropriate training. Once an unaccompanied minor has been granted refugee status, Member States should ensure legal representation of an unaccompanied minor, but this right only accrues once international protection has been granted, not before.62 Under the Dublin II asylum system, if there is a family member in an EU Member State, that Member State should examine the child’s asylum application, otherwise it will be the state where the application is lodged, unless the child’s best interests require otherwise.63 If the unaccompanied minor has a relative in another Member State, efforts should be made to reunite the child with their relative if it is in the child’s best interests.64 Returning an unaccompanied minor to the Member State where their asylum application was first lodged is of particular concern where the Member State does not have the resources and facilities to deal with asylum applications.65 Unaccompanied minors are identified as a vulnerable group when required to return 24.16 to their state of origin after an unsuccessful application.66 The best interests of the child should be accounted for in implementing EU law in these circumstances67 and the return of an unaccompanied minor should only be ordered once their best interests have been considered and if they can be returned to a family member, nominated guardian or other adequate reception facility.68 The detention of an unaccompanied minor, prior to their removal, should only be a measure of last resort,69 but occurs across the Member States. The child should have access to leisure facilities and education as appropriate, and in the case of unaccompanied minors, the accommodation should take account of their needs according to their age,70 but detention prior to removal remains a possibility.71 For children over the age of 12,72 the right of family reunification of third country 24.17 national children legally resident in an EU Member State may be limited by the Member

60 Communication from the Commission to the European Parliament and the Council ‘Action Plan on Unaccompanied Minors (2010–2014)’ COM (2010) 213 final. See E Zschirnt, ‘Does migration status trump the best interests of the child? Unaccompanied minors in the EU asylum system’ (2011) 25 Journal of Immigration and Asylum and Nationality Law 34. 61 Art 2(h) Regulation 343/2003 establishing criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (Dublin II) [2003] OJ L50/1. 62 Art 31(1) Directive 2011/95. 63 Art 6 Regulation 343/2003. See AG Opinion in Case C-648/11 MA and Others (pending), which suggests that Art 24 of the Charter has particular importance in this context. 64 Art 15 Regulation 343/2003. 65 See in the European Court of Human Rights, MSS v Belgium and Greece App no 30696/09, and in the ECJ Case C-411/10 NS and Others (Judgment of 21 December 2011). 66 Art 3(9) Directive 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L348/98. 67 Art 5 Directive 2008/115. 68 Art 10 Directive 2008/115. 69 Art 17(1) Directive 2008/115. 70 Art 17 Directive 2008/115. 71 Art 3 Directive 2003/86 on the right to family reunification [2003] OJ L251/12. 72 Art 4(1) Directive 2003/86, which permits a Member State to assess the level of ‘integration’ of a child over the age of 12 into the Member State before permitting family reunification.

Ruth Lamont

669

Part I – Commentary on the Articles of the EU Charter

State. An unaccompanied minor aged 12–18 may have to demonstrate a condition of ‘integration’ into the Member State before family reunification and a right of residence will be granted to a relative. These distinctions, drawn on the basis of the age of the child, were unsuccessfully challenged as a breach of the child’s rights under Article 24 of the Charter. Although the status of the unaccompanied minor was accepted as requiring special protection, this was not sufficient to undermine the distinctions drawn by the Directive.73 24.18 Beyond its competence to create harmonising measures, the EU has also intervened in other fields with an impact on children. There has been significant activity on child protection, including measures relevant to the location of missing children,74 and prevention of the online exploitation of children through raising public awareness and education.75 The protection of children online is linked to supporting the measures on child sexual exploitation under Directive 2011/92.76 The Daphne Programmes,77 adopted under the public health competence,78 are aimed at tackling violence against women and children across the EU through the provision of financial grants79 to organisations addressing such violence. The promotion of children’s rights has also been identified as an important aspect of the effectiveness of policies tackling poverty and social exclusion,80 and education through the Lisbon Programme.81 The Commission has recently adopted a recommendation on child poverty, demonstrating the continuing investment of the EU in developing these softer areas of cooperation.82 These are areas where the EU’s competence is weaker, but policies directly relating to children have been developed to encourage and support activity in the Member States. The Copenhagen criteria for EU accession83 require compliance with children’s rights as a condition of accession. The EU has also adopted guidelines for the rights of the child in its external relations policies.84

73

Case C-540/03 Parliament v Council [2006] ECR I-05769. Commission Decision on reserving the national numbering range beginning ‘116’ for harmonised numbers for harmonised services of social value [2007] OJ L49/30. 75 Report from the Commission on Protecting Children in the Digital World COM (2011) 556 final; see J Savirimuthu, ‘The EU, Online Child Safety and Media Literacy’ (2011) 19 International Journal of Children’s Rights 547. 76 See Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions ‘European Strategy for a Better Internet for Children’ COM (2012) 196 final. 77 Decision 779/2007 establishing for the period 2007–2013 a specific programme to prevent and combat violence against children, young people and women and to protect victims and groups at risk (Daphne III programme) as part of the General Programme ‘Fundamental Rights and Justice’ [2007] OJ L173. 78 A non-harmonising competence now under Art 168 TFEU. 79 Art 8 Decision 779/2007. 80 Communication from the Commission ‘The European Platform against Poverty and Social Exclusion: A European Framework for Social and Territorial Cohesion’ COM (2010) 758 final, p 4. 81 The Lisbon Special European Council, ‘Towards a Europe of Innovation and Knowledge’, March 2000. 82 Commission Recommendation ‘Investing in Children: Breaking the Cycle of Disadvantage’ COM (2013) 778 final. 83 Presidency Conclusions of the Copenhagen European Council (21–22 June 1993). See H Stalford, Children and the European Union: Rights, Welfare and Accountability (Oxford, Hart Publishing, 2012), 197. 84 Communication from the Commission ‘A Special Place for Children in EU External Action’ COM (2008) 55 final. 74

670

Ruth Lamont

Art 24 – The Rights of the Child

The impact of EU law on children is set to be expanded by the EU Agenda for the 24.19 Rights of the Child,85 which prioritises action on child-friendly justice, the protection of vulnerable children, particularly children at risk of poverty, disabled children and trafficked children, and further action in external relations. Following on from the EU Agenda, the protection of children’s rights and interests should be an aspect of all EU activity, wherever there is a potential impact on children.

B. Interrelationship of Article 24 with Other Provisions of the Charter Article 24 focuses particularly on the rights of the individual child devoid of specific 24.20 context, potentially applying wherever a child’s interests are affected. The interaction with other provisions of the Charter will therefore depend on the particular circumstances, but rights which prevent abuse and provide protection of the family will be particularly important. The rights which prohibit abuse are clearly relevant to children, particularly: Article 4, 24.21 the prohibition on torture and inhuman and degrading treatment; Article 5, the prohibition on slavery and forced labour, which may be important in the context of protecting children from human trafficking;86 and Article 6, the right to liberty, which can be important in cases concerning immigration and asylum detention. The obligations under Articles 18 and 19(2) of the Charter on the right to asylum and protection on removal from inhuman and degrading treatment and punishment may be particularly relevant to children in this context and are also linked to the obligation to protect their welfare. Article 32 on the protection of young people at work will also be of specific relevance to children. Where these rights are infringed in relation to a child, the child’s rights under Article 24, and particularly the requirement to make the child’s welfare a primary consideration, will be engaged. Article 4 in particular has the potential to give rise to positive obligations to protect children from torture, inhuman and degrading treatment87 where Member States have failed to effectively implement EU law, resulting in the abuse of a child. The interaction of Article 24 with Articles 4 and 5 is most likely to be an issue in the context of child trafficking and sexual abuse, where the obligations on Member States to implement EU law, if not complied with, could have a serious impact on the welfare of children. The realisation of children’s rights will often take place in the context of family life 24.22 and the interaction of Article 24, which prioritises the rights of the individual child, with Article 7, the right to respect for private and family life, and the legal, social and economic protection of the family under Article 33(1) will be important. Article 7 protects the right to respect to family life of all family members, not just the child, and the relationship between rights of family members and the additional children’s rights under Article 24 will be crucial to the protection of family law rights in the Charter,

85 86 87

COM (2011) 60 final. This link has been drawn under Art 4 ECHR, see Siliadin v France App no 73316/01 (2006) 43 EHRR 16. By analogy with the obligations under Art 3 ECHR, see Z v UK App no 29392/95 [2001] 2 FCR 246.

Ruth Lamont

671

Part I – Commentary on the Articles of the EU Charter

especially if the adult’s rights appear to conflict with the child’s rights.88 This may be evident both in EU law on cross-border family life, but also in the protection of rights of free movement within the EU. 24.23 In addition to specific rights for children, the Charter includes a prohibition on discrimination on the grounds of age, which will include discrimination against minors, under Article 21.89 Article 26 creates additional obligations in relation to the disabled, recognising and respecting their right to benefit from measures for their independence, integration and participation in the community. Article 14 also guarantees the right to education, including the possibility of receiving free compulsory education. These rights are important for children’s opportunities and development and participation as children in Europe. The interaction of Article 24 with Article 26 in engaging children with disabilities will be important. The UN Committee on the Rights of the Child has issued a General Comment on this subject which could form the basis for interpretation of the Charter on this point.90 These Articles reflect the role of children as citizens and their opportunities to participate in, and access rights as, full members of the community.

C. Sources of Article 24 Rights I. ECHR 24.24 Article 24 is not directly reflected in the provisions of the European Convention on Human Rights (ECHR), because the Convention was not designed specifically to protect children. As human beings, children can benefit from the rights contained in the ECHR.91 The European Court of Human Rights (ECtHR) has been willing to incorporate consideration of children’s rights into its case law interpreting the Convention.92 The rights contained in the ECHR, particularly Article 3 on the right to be free from torture and inhuman and degrading treatment,93 and Article 8 on the right to respect for private life, have been interpreted to provide protection for children in private law and public law disputes.94

88 J Herring and S Choudhry, European Human Rights and Family Law (Oxford, Hart Publishing, 2010) 232. The relevance of Art 8 ECHR and the protection of private and family life has already been acknowledged in EU law and is likely to be extended by the adoption of the Charter, see Case C-60/00 Carpenter [2002] ECR I-06279. 89 This supports Art 19 TFEU which provides a legal basis for legislation to combat discrimination on the grounds of age, and Stalford argues should be utilised for measures specifically relevant to children. Stalford (n 83) 50. 90 ‘The Rights of Children with Disabilities’ General Comment no 9, available at www2.ohchr.org/english/ bodies/crc/comments.htm. 91 J Fortin, Children’s Rights and the Developing Law, 3rd edn (Cambridge, CUP, 2009) 35. 92 See U Kilkelly, The Child and the European Convention on Human Rights (Ashgate, Aldershot, 1999). 93 Z v UK (n 87). 94 See eg Sahin v Germany App no 30943/96 [2003] 2 FLR 671.

672

Ruth Lamont

Art 24 – The Rights of the Child

Whilst children have the same rights as adults under the ECHR, matching the rights 24.25 of children to adults may mean that children’s rights are not adequately protected.95 The ECHR contains no guarantee of the child’s right to be heard, or that the child’s welfare is of primary, or paramount, importance.96 The ECtHR has incorporated reference to the principle of the best interests of the child, for example in Johansen v Norway97 and Sahin v Germany.98 However, the approach of the ECtHR has attracted criticism for failing to articulate a conception of the ‘best interests of the child’ in disputes under Article 8 and leaving signatory states a large margin of appreciation in identifying what is in the best interests of the child.99 The lack of participatory rights also means that the protection of the child’s welfare has a much greater stake in the ECHR than their right to autonomy.100 The ECHR will remain relevant in protecting the rights of children in areas outside the scope of the EU’s competence, such as domestic family law and child protection services, but the interpretation of the rights in the ECHR and their application to children is of relevance to other provisions of the Charter beyond Article 24, particularly Articles 7 and 4.101 The Council of Europe has engaged with children’s rights in its wider activities. In the 24.26 Council of Europe Strategy for the Rights of the Child 2012–2015,102 the Council identifies four objectives: promoting child-friendly services and systems in justice, health and social services; eliminating all forms of violence against children; guaranteeing the rights of the child in vulnerable situations including those with disabilities and in detention; and promoting child participation. As part of these activities, the Council of Europe has developed Guidelines on Child-Friendly Justice103 which the Commission has identified as a key aspect of its Agenda for the Rights of the Child.104 These developments and the close identification of goals between the EU and the Council of Europe on children’s rights means that there is likely to be an ongoing exchange of expertise and engagement between the institutions between both bodies to promote children’s rights across Europe.105

95

Herring and Choudhry (n 88) 222. Fortin (n 91) 69. 97 Johansen v Norway App no 13783/90 (1997) 23 EHRR 33. 98 Sahin v Germany (n 94). 99 M Woolf, ‘Coming of Age?’ (2003) 2 European Human Rights Law Review 205, 210. 100 Herring and Choudhry (n 88) 223. 101 Stalford (n 83) 58. Full access to the case law relevant to children is available at www.coe.int/t/dg3/ children/caselaw/CaseLawChild_en.asp. 102 Available at www.coe.int/t/dg3/children/StrategyAdopted_en.asp. 103 Available at https://wcd.coe.int/ViewDoc.jsp?Ref=CM/Del/Dec%282010%291098/10.2abc&Language= lanEnglish&Ver=app6&Site=CM&BackColorInternet=C3C3C3&BackColorIntranet=EDB021&BackColor Logged=F5D383. 104 COM (2011) 60 final, p 6. Commission officials have received training from the Council of Europe on the principles of child-friendly justice. 105 Including the Council of Europe’s other Treaties relating to children, including the Convention on the Adoption of Children, Convention on Repatriation of Minors, Convention on the Exercise of Children’s Rights, Convention on Recognition and Enforcement of Decisions concerning custody of Children and on Restoration of Custody of Children, Convention on Contact concerning Children; see Chaudhry in this volume. 96

Ruth Lamont

673

Part I – Commentary on the Articles of the EU Charter

II. UN Treaties 24.27 As the Explanation of Article 24 identifies, the underlying basis of the rights enumerated in Article 24 is the UN Convention on the Rights of the Child 1990 (CRC). The explanation identifies Articles 3, 9, 12 and 13 CRC as underpinning Article 24 of the Charter. These provisions are detailed aspects of the CRC and the provisions are reflected in Article 24 of the Charter, although not directly reproduced. 24.28 The EU is not a signatory to the CRC, but all the Member States of the EU are signatories.106 The UK has not incorporated it directly into its domestic law, despite having ratified the Convention. Unlike the ECHR, the CRC is designed specifically to protect children’s rights and account for their particular interests and it applies to human beings below the age of 18.107 It is an ambitious document which, as well as defining the civil and political rights of children, engages also with their social and economic rights, including the right to education and housing. Fortin argues that many of the CRC rights and duties are vague, requiring significant interpretation and implementation at national level to be effective for children. She states that: ‘Many of the rights listed are, in reality no more than aspirations regarding what should happen if governments were to take children’s needs seriously—an insistence on certain ideals or goals.’108 The CRC is therefore an ambitious statement of principle, which has a symbolic value, as well as practical impact. The Convention has been widely adopted and only Somalia and the USA are non-signatories. This popularity in part reflects the flexibility in interpretation of some of the provisions and the fact that some states have entered reservations for some articles. The CRC creates a benchmark of children’s rights across the world, but is subject to national cultural and social interpretation, which will vary greatly between states.109 There is no court or system of enforcement created by the CRC which relies on sig24.29 natory states to implement the Convention in their own domestic law. Instead, there is an obligation on state parties to report to the Committee on the Rights of the Child on the progress made towards the implementation of the CRC and the protection of children’s rights in the territory. States submit a report two years after ratification and then at five-year intervals. The Committee comments on the state’s compliance with the Convention, and areas for improvement are publicly available.110 In addition to the reporting mechanism, the Committee has developed a series of General Comments on particular articles of the Convention to assist in their implementation and effective enforcement.111 For example, the Committee has developed General Comments on Article 12, the right of the child to be heard, and Article 9, the rights of children with disabilities. These Comments provide further guidance to signatory states on the interpretation of the CRC.

106

UNCRC status table available at http://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en. Unless the age of majority is achieved earlier, Art 1 CRC. 108 Fortin (n 91) 46. 109 See S Harris-Short, ‘International Human Rights Law: Imperialist, Inept and Ineffective? Cultural Relativism and the UN Convention on the Rights of the Child’ (2003) 25 Human Rights Quarterly 130. 110 For further information on the reporting process see: http://tb.ohchr.org/default.aspx?Symbol= CRC/C/33. 111 Available at: www2.ohchr.org/english/bodies/crc/comments.htm. 107

674

Ruth Lamont

Art 24 – The Rights of the Child

The wording of the CRC is as follows:

24.30

Article 3 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision. … Article 9 1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence. 2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known. 3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests. 4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned. … Article 12 1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Article 13 CRC is linked to Article 12, but is broader in protecting the child’s right to 24.31 freedom of expression, including the right to receive information and ideas of all kinds, subject to restrictions provided by law for the protection of rights of others or national security, public order and morals. The Explanation of Article 24 pays particular attention Ruth Lamont

675

Part I – Commentary on the Articles of the EU Charter

to the right of the child to maintain contact with both parents in Article 9 CRC because of the implications of harmonising private international family law rules on parental responsibility disputes. It does not link Article 9 CRC to Article 10(1) CRC, which covers family reunification, obliging signatory states to address this issue in a positive, humane and expeditious manner. Article 10(1) CRC is also engaged with the EU’s asylum and immigration policies developed under the auspices of the AFSJ. 24.32 There is no hierarchy expressed between the rights in the Convention but the Committee on the Rights of the Child has identified four general principles which are given greater priority in implementation. The four principles are Article 2, the prohibition of discrimination in accessing the rights contained in the CRC; Article 6, the right to life and development; Article 3, the primary consideration of the child’s best interests; and Article 12, the right of the child to be heard in proceedings affecting them.112 These rights should be considered in the interpretation and implementation of all the other rights in the CRC. Whilst theoretically none of these principles is more important than any other, Article 3, the primacy of the child’s best interests, underpins all other provisions in the Convention. This is the guiding principle for all other CRC provisions and should be reflected in all other legislative and policy matters affecting children.113 Article 3 is therefore central to the operation of the CRC, although the concept of ‘best interests’ is not defined by the Convention, and it is subject to different interpretations depending on culture and circumstance.114 The child’s best interests can be reduced to material needs but should also include emotional security and psychological wellbeing and possibly moral welfare.115 Whatever the conception of the child’s welfare, it is inherent that it will include an ‘ineradicable element of values and hence subjectivity’.116 Freeman suggests that, given this ineradicable element, decisions on the child’s best interests must be well reasoned and the worst prejudice eliminated.117 The underlying values that inform the interpretation of the welfare principle can 24.33 be shaped by the perspective on children’s rights that is adopted. In particular, the welfare principle may permit a paternalistic approach to children, based on their need for assistance and protection, rather than emphasising their developing autonomy and the importance of their opinion.118 As Fortin identifies, a paternalistic approach to the welfare principle is potentially in conflict with the child’s wishes and feelings if the child has expressed a different view.119 The challenge of reconciling the welfare principle with the child’s developing interest in choice as they approach adulthood, the expression of which is protected by Article 12 CRC, is a difficult tension running throughout

112 Committee of the Rights of the Child ‘General Comment No 12 (2009): The Right of the Child to be Heard’ 51st Session, 25 May–12 June 2009 para 2. 113 Ibid. 114 M Freeman, ‘The Meaning and Scope of Article 3’ in B Abramson (ed), A Commentary on the United Nations Convention on the Rights of the Child (Boston, Martinus Nijhoff, 2007) 27. 115 Ibid 28. 116 Ibid. 117 Ibid. 118 Fortin (n 91) 19. 119 Ibid 23.

676

Ruth Lamont

Art 24 – The Rights of the Child

the provisions of the CRC, has been extensively discussed by theorists,120 but has a significant practical impact in the realisation of the rights protected by the CRC.121 The UK courts and the ECtHR have been criticised for focusing on the welfare principle to the exclusion of the views of the child, and for inconsistency in approach to the weight given to the child’s views.122 In General Comment No 12 on the Right of the Child to be Heard, the Committee 24.34 on the Rights of the Child suggests that there is: no tension between Articles 3 and 12, only a complementary role of the two general principles: one establishes the objective of achieving the best interests of the child and the other provides the methodology for reaching the goal of hearing the child. In fact, there can be no correct application of Article 3, if the components of Article 12 are not respected.123

From the perspective of the Committee therefore, the two articles operate together, as 24.35 a process through which the child’s rights are secured. This may be the ideal outcome, but securing children’s welfare and respecting their choices at the same time remains difficult, particularly in the context of contested legal proceedings. The welfare principle and the right of the child to be heard in proceedings, underpin 24.36 the application of Article 9 CRC, the right of the child to retain contact with both parents, reflected in Article 24 of the EU Charter. Article 9(3) refers explicitly to the welfare principle of Article 3 CRC, in that contact with the child’s parents should continue unless it is not in the child’s best interests. However, the child’s right to be heard, as a general principle for the operation of the CRC, should also be respected in the application of Article 9. The involvement of the child in decisions affecting him or her is linked to the opera- 24.37 tion of all provisions of the CRC, but also to the wider implementation of policy and participation in law-making and decision-making processes which aim more generally to protect children’s rights.124 The CRC therefore has significance beyond specific judicial decisions, and can inform the development of law and policy, as well as the interpretation of the law by judicial authorities. The most obvious realisation of these rights, especially Articles 3 and 12, however is often in judicial decisions where the underlying values informing the interpretation of the rights is most evident and pertinent to the outcome for the individual child. Ideally, the CRC should bring the child to the foreground of any discussion or decision and identify their interests, as expressed by children themselves. As a document which embodies aspiration, as well as concrete rights, the CRC can inspire action and this contribution to the global protection of human rights has been an important aspect of the success of the CRC.

120 See J Eekelaar, ‘The Importance of Thinking that Children Have Rights’ in P Alston, S Parker and J Seymour (eds), Children, Rights and the Law (Oxford, Clarendon Press, 1992). 121 N Thomas and C O’Kane, ‘When Children’s Wishes and Feelings Clash with their Best Interests’ (1998) 6 International Journal of Children’s Rights 137. 122 See Woolf, ‘Coming of Age? (n 99). 123 Committee of the Rights of the Child ‘General Comment No 12 (2009): The Right of the Child to be Heard’ 51st Session, 25 May–12 June 2009 para 74. 124 Ibid paras 86–88.

Ruth Lamont

677

Part I – Commentary on the Articles of the EU Charter

D. Analysis I. General Remarks 24.38 Article 24 is addressed to the protection of children’s rights within EU law, and as such has general application to any field of EU law where children may be affected. Stalford has suggested that: The Charter is celebrated for acknowledging children’s needs and interests as distinct from other (EU adult) citizens or the family more generally, marking a welcome departure from the highly derivative body of rights historically associated with children’s entitlement at EU level.125

24.39 The increased visibility of children’s rights at EU level is in part due to the inclusion of Article 24 in the provisions of the Charter, suggesting a symbolic shift to children as independent rights holders within the EU, rather than objects of EU law.126 There is evidence that this suggestion is encouraging greater activity at EU level focused on children and protection of children’s rights. The development of the EU Agenda on the Rights of the Child,127 heavily informed by Article 24, was a significant development in this regard. Article 24 has also acted as a spur to EU level activity, for example, the Fundamental Rights Agency has commissioned research into fundamental rights indicators for children, the experience of separated asylum seeking children, and children and justice.128 These developments reflect the symbolic importance of rights in shifting the perspective of the institutions of the EU, but also the practical impact encouraging consideration of the impact of EU law specifically on children. Article 24 does not adopt exactly the wording of the underlying provisions of the CRC, 24.40 instead reformulating the rights contained in Articles 3, 9 and 12 of the Convention with less detailed terms. It is not a direct adoption of the four general principles of the CRC, instead reflecting only two of them, Articles 3 and 9, alongside the additional concern of ensuring contact between the child and both of his or her parents, and not directly including Article 2 on non-discrimination in accessing the rights in the CRC, and Article 6 CRC on the right to life and development. Article 2 of the Charter covers the right to life, but the child’s right to development is not expressly protected. In adopting Articles 3 and 12, Article 24 embodies the conflict between child welfare 24.41 and paternalism, and child autonomy through participation, the two principles which have posed challenges for the interpretation of the provisions of the CRC. McGlynn has asserted that ‘Article 24(1) is a curious mix of what might loosely be termed children’s “protection” and “empowerment” rights, which are often found to be in conflict.’129 The

125

Stalford (n 83) 41. H Cullen, ‘Children’s Rights’ in S Peers and A Ward (eds), The EU Charter of Fundamental Rights (Oxford, Hart Publishing, 2004) 325. 127 Communication from the Commission ‘An EU Agenda for the Rights of the Child’ COM (2011) 60 final. 128 For details see http://fra.europa.eu/en/research/projects?title=&year[min]=&year[max]=&related_ content=&&page=2. 129 C McGlynn, ‘Rights for Children? (n 7) 397. 126

678

Ruth Lamont

Art 24 – The Rights of the Child

potential for internal incoherence of the rights expressed is evident in Articles 24(1) and (2), and there is a significant risk of prioritisation of one right, to the detriment of the other. There is no internal hierarchy expressed in the terms of Article 24; it appears to be assumed that the rights will work together as an expression of the rights of children. Early case law indicated that the ECJ was willing to refer to Article 24, even before 24.42 the adoption of the Charter in the Treaty of Lisbon.130 The theoretical tensions between Article 24(1) and (2) are explored in the practical realisation of these rights in EU law. This process often takes place in the domestic legal system and is informed by national understandings of child welfare, and national processes for the hearing of children. However, the ECJ will have to reflect on the interaction of the separate rights expressed in Article 24 to reconcile the different interests expressed in the Article and their impact upon children in the Member States affected by EU law. The preliminary ruling procedure contains no provision for the hearing of children during proceedings,131 so the ECJ will be reliant on the national courts reports on children’s views and procedure for hearing the child. The ECJ will also have to consider in more detail the concept of ‘best interests of the child’ and how this is interpreted in EU law. Finally, the Explanation to Article 24 states that particular importance should be attached to Article 24(3), the right of the child to have contact with both parents, in the context of international family law disputes and the ECJ will have to respond to that article in the context of Article 24(2) in securing the child’s best interests. These questions will become more urgent as EU law increasingly affects children’s interests and welfare, especially when they are most vulnerable, in asylum and immigration claims and as victims of cross-border criminal activity.

II. Scope of Application Article 24 does not make explicit its personal scope, as it does not define the terms 24.43 ‘child’ or ‘children’. Article 1 CRC refers to children as anyone below the age of 18, but Article 24 does not include that definition. It is therefore unclear who is a ‘child’ under Article 24. This is important because of the different ages at which children receive various EU law entitlements.132 For example, under Directive 2004/38, the child of an intra-EU migrant under the age of 21 is entitled to reside in the host state with his or her parent.133 The provisions relating to parental child abduction in Brussels II Revised apply to children under the age of 16.134 The right of family reunification of unaccompanied minors over the age of 12 is limited by the Family Reunification Directive, which was accepted as a justifiable age distinction by the ECJ in Parliament v Council.135

130

See Parliament v Council (n 73). Rules of Procedure of the Court of Justice [2012] OJ L265/1. 132 See E Drywood, ‘Challenging concepts of “the child” in asylum and immigration law: the example of the EU’ (2010) 32 Journal of Social Welfare and Family Law 309. 133 Art 7 Directive 2004/38. 134 Art 11(1) Brussels II Revised, derived from the Hague Convention on the Civil Aspects of International Child Abduction 1980. 135 Art 3 Directive 2003/86 on the right to family reunification [2003] OJ L251/12. 131

Ruth Lamont

679

Part I – Commentary on the Articles of the EU Charter

A child is defined under the Victims’ Directive136 and the Sexual Abuse Directive137 as any person below the age of 18, but the Sexual Abuse Directive also accounts for the age at which a child can consent to sexual relations.138 Under the trafficking framework, a child is defined as anyone under 18.139 In principle, the different ages at which children accrue rights under secondary EU law should not affect whether they receive the protection of Article 24, which by implication from the CRC applies to children under the age of 18. The artificial distinctions drawn between children of different ages in EU law are potentially evidence of discrimination against some groups of children.140 This issue is yet to be clarified by the ECJ. 24.44 The Court has however, been clearer on some of the limits on the scope of Article 24. In Case C-149/10 Chatzi,141 where a woman who gave birth to twins in Greece and was granted nine months’ maternity leave requested an extra nine months to cover the second child.142 The argument supporting the parent’s rights was framed through Article 24, the children’s rights, to argue an individual right of parental leave awarded to the child. The Court does not engage closely with Article 24, instead focusing on Article 20 on equal treatment, as parental leave is not conceptualised as a right of the child.143 In Joined Cases C-356/11 and C-357/11 O and S and Maahanmuuttovirasto144 the Court, in interpreting the right to family reunification of third country nationals, stated that neither Article 7, the right to respect to private and family life, nor Article 24, deprives the Member State of their margin of appreciation in applying the law.145 Member States retain significant discretion in the implementation of Article 24 in the national context, even when a dispute falls within its scope.

III. Specific Provisions 24.45 Article 24 is one of the rights contained in the Charter specifically referred to by the ECJ and the Advocates-General and, alongside Article 24 of the Charter, the ECJ has also referred directly to the CRC to support its reasoning, demonstrating the ongoing relationship between the CRC and the Charter.146 Particularly in the context of EU cross-border family law, the ECJ has begun to elucidate its approach to the interpretation of the provisions in Article 24, and how they interrelate. Article 24 is potentially

136 Art 2(1)(c) Directive 2012/29 establishing minimum standards on the rights, support and protection of victims of crime, replacing Framework Decision 2001/220/JHA, [2012] OJ L315/57. 137 Art 2(a) Directive 2011/92. 138 Art 2(b) Directive 2011/92. 139 Art 2(6) Directive 2011/36. 140 This argument was raised and rejected by the Court in Parliament v Council (n 73) [30]. Art 21 of the Charter on non-discrimination, including the right not to be discriminated against on the basis of age, may also form the basis for challenging these provisions. 141 Chatzi (n 24). 142 Interpretation of cl 2.1 of the framework agreement on parental leave concluded on 14 December 1995 (‘the Framework Agreement’), set out in the annex to Council Directive 96/34/EC on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC ([1996] OJ L145/4) as amended. 143 Chatzi (n 24) [39]. 144 O and S and Maahanmuuttovirasto (n 15). 145 Ibid [79]. 146 Parliament v Council (n 73).

680

Ruth Lamont

Art 24 – The Rights of the Child

a very powerful expression of rights in an EU context, particularly where Article 24 is used to shape the interpretation of secondary EU law. However, as this process is only just beginning, and there are still elements of the provision that are unexamined, or not dealt with in detail, its potential has not yet been realised fully in the case law. Article 24 was the earliest of the rights from the Charter referred to directly by the 24.46 ECJ. In Case C-540/03 Parliament v Council, which was heard before the adoption of the Lisbon Treaty, the European Parliament sought annulment of Directive 2003/86 EC on the right to family reunification.147 The Parliament argued that the distinctions drawn in the Directive between the rights of children to family reunification at different ages148 did not respect fundamental rights, in particular, in Articles 8 and 14 of the ECHR, and Articles 7, 21(1) and 24(1) and (3) of the Charter. In its judgment, the ECJ also cited Articles 9 and 10(1) CRC, which require that applications by a child or his or her parents to enter or leave a state party for the purpose of family reunification are to be dealt with by states parties in a positive, humane and expeditious manner. Despite referring to the rights obligations created by several instruments, the ECJ found no breach, and the measure was upheld. Whilst it referred to the rights in Article 24, the ECJ did not closely analyse the meaning or content of the rights, instead focusing closely on the relevance of the rights to family reunification.149 The Directive contained obligations on Member States to have regard to the best interests of minor children150 but the ECJ did not define the meaning of this concept in context, or the impact of Article 24(3) on family reunification. Instead, the ECJ makes it clear that the Member States have a significant margin of appreciation in applying the Directive. The margin of appreciation accorded to Member States when interpreting Article 24 has recently been reaffirmed in O and S and Maahanmuuttovirasto.151 (a) Applying the Rights in Article 24 The potentially very powerful nature of the rights in Article 24 was demonstrated 24.47 in Case C-244/06 Dynamic Medien.152 This free movement of goods case concerned national rules requiring the examination of imported videos for their suitability for viewing by children. These measures had equivalent effect to a quantitative restriction, which is prohibited by Article 34 TFEU. However, the restriction was justified on the basis of the protection of young persons, which is linked to the protection of public morality and public policy justifications recognised by Article 36 TFEU. In accepting that the restriction of the free movement of goods was justified on these grounds, the ECJ relies on Article 24(1), the child’s right to such protection and care as is necessary for their wellbeing, to support its conclusions that the protection of children was a legitimate aim and that the measures were a proportionate response to protect that

147

Ibid. In particular, Art 4(1) Directive 2003/86 which permits a Member State to assess the level of ‘integration’ of a child over the age of 12 into the Member State before permitting family reunification. 149 Para 58. 150 Art 5(5). 151 O and S and Maahanmuuttovirasto (n 15) [79]. 152 Dynamic Medien (n 18). 148

Ruth Lamont

681

Part I – Commentary on the Articles of the EU Charter

aim.153 The significance of this decision is in the use of a fundamental right to justify a restriction on the free movement of goods. The ECJ’s approach to this type of dispute, where the EU’s fundamental freedoms are brought into conflict with a fundamental right, has been questioned154 but in Dynamic Medien, the protection of children took priority over the free movement of goods. The context of the case emphasises the protective obligation towards the child and the ECJ highlights the protective element of Article 24(1), the protection and care that is necessary to the child’s wellbeing. 24.48 The powerful nature of the rights expressed in Article 24 have also been used to justify the expansion of the scope of other substantive rights, particularly in securing the free movement of persons in the EU and the concept of EU citizenship. Prior to the adoption of the Charter, the relationship between parent and child had been used to justify continuing rights of residence under the citizenship obligations of the Treaty,155 where the child’s right of residence in the host state meant that a right of residence was granted to the parent on the basis of their need to care for the child.156 There was strong evidence that the Advocates-General were prepared to refer to the Charter in further bolstering those rights. In his Opinion in Case C-291/05 Eind,157 AG Mengozzi referred to Article 24(1) and (3) and the corresponding obligations in the CRC in passing to aid the interpretation of Article 10, Regulation 1612/68,158 following the judgment in Case C-540/03 Parliament v Council.159 The references to rights and obligations under Article 24 were used to support his conclusion that the third country national child of an EU national could return with their parent to his home state following a period of residence in another state. The ECJ however, preferred a more traditional analysis based on barriers to free movement, arguing that the deterrent effect of denying a right of residence to close family members on return to the state of nationality would discourage the initial migration.160 Whilst the ECJ’s reasoning remained focused on the traditional approach to free movement of persons, the AG’s Opinion indicated how the rights in the Charter may be used to support broader interpretations of the substantive rights expressed in EU law. This process was evident in a more novel way in Case C-535/06 Grunkin Paul161 24.49 where Advocate-General Sharpston referred to the CRC and Article 24(2). Her Opinion considers the issue of children’s surnames where a child is a national of one Member State, but resident in a different Member State, and whether this constitutes a barrier to their free movement. In Grunkin Paul, the children had to use the surname given according to the law of the state of their nationality, rather than the name they were given and which was registered at birth in a host Member State. AG Sharpston refers

153

Ibid [52]. E Spaventa, ‘Federalisation Versus Centralisation: Tensions in Fundamental Rights Discourse in the EU’ in M Dougan and S Currie (eds), 50 Years of the European Treaties: Looking Back and Thinking Forward (Oxford, Hart Publishing, 2009) 355. 155 Art 18 EC (now Art 20(2) TFEU). 156 Case C-413/99 Baumbast v R [2002] ECR I-7091. 157 Case C-291/05 Eind [2007] ECR I-10719. 158 Now replaced by Regulation 492/2011/EU of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union [2011] OJ L141/1. 159 Opinion [88]. 160 Judgment [36]. 161 Case C-535/06 Grunkin Paul [2008] ECR I-7639. 154

682

Ruth Lamont

Art 24 – The Rights of the Child

to Article 3(1) CRC and the corresponding right in Article 24(2), but also the right of the child to a name in Article 7(1) CRC.162 The full extent of the right to a name under Article 7(1), or the nature of the obligation to consider the best interests of the child are not analysed and neither the CRC nor Article 24 of the Charter are used to support the arguments of the ECJ or the Advocate General in interpreting the effect of the citizenship provisions on the private international law rules on surnames. The ECJ again based its analysis on whether the rules would constitute a barrier to free movement. The ECJ and the Advocates-General refer to Article 24, but have not yet engaged with its full potential in developing the law. In Case C-40/11 Iida, AG Trstenjak examines whether, and to what extent, third 24.50 country nationals enjoy a right of residence under EU law by virtue of their family relationship with a Union citizen who is a minor under Directive 2004/38. In this case, the child held German, US and Japanese nationality, and when the parents’ relationship ended, the parents had joint custody of the child with regular visitation and the father paying maintenance. The Japanese father remained resident and employed in Germany, but the German mother moved to Austria with the child. The father claimed a right of residence pursuant to EU free movement law in Germany, not Austria. The German court made a preliminary reference asking whether it is necessary for the child’s father to join or accompany the child to Austria to have a right of residence and referring specifically to Articles 7 and 24 of the Charter. This case demonstrates the interaction of decisions in relation to the ongoing relationship between a child and her parents under national family law, and the right of residence of the parents in a host state. The father is claiming a right of residence through the child’s right based on his ongoing contact with the child. The child’s fundamental rights are supporting the father’s claim to a right of residence. AG Trstenjak identifies that the father’s claim represents a suggested extension of the 24.51 rights in Directive 2004/38 using fundamental rights obligations, particularly Article 24(3). The Charter is primary law and Directive 2004/38 must be interpreted in accordance with fundamental rights obligations, but the Directive does not cover the factual circumstances, so Germany is not ‘implementing the Directive’ for the purposes of Article 51(1).163 It is not possible to use the Charter to change the scope of the Directive and then interpret it in accordance with fundamental rights. However, if the denial of a right of residence to the father meant that the child’s relationship with her father could not be maintained, this would breach Article 24(3) and would have to be proportionate.164 The AdvocateGeneral argued that: ‘For such a right of residence to exist, the denial thereof must have a restrictive effect on the child’s right to freedom of movement and must be regarded as amounting to a disproportionate interference with fundamental rights’.165 Despite the Advocate-General’s extensive engagement with Article 24 in her analysis 24.52 of Iida, the ECJ does not engage with the child’s right to a relationship with both parents in its judgment. The judgment adopts a textual interpretation of Directive 2004/38 and the right of residence of a third country national, without considering the wider relationships

162 163 164 165

Opinion [9]–[10]. Opinion [54]. Opinion [85]. Opinion [88].

Ruth Lamont

683

Part I – Commentary on the Articles of the EU Charter

between the parties. The ECJ states clearly that despite the relevance of Articles 7 and 24 of the Charter to the factual situation, the Charter does not extend the scope of EU law under Article 51(2).166 As the parent’s right of residence was outside the scope of Directive 2004/38 and the citizenship provisions, the Charter could not be used to change the scope of the residence rights to create a new entitlement in EU law and derive a right of residence for the third country national.167 The rights expressed in Article 24 cannot be used to extend the scope of EU law beyond the existing powers of the EU. (b) The Conception of the Rights Expressed in Article 24 24.53 Although the rights in Article 24 have been referred to quite extensively by the Court in cases on European family law, some of the references have been in passing. The ECJ initially referred to Article 24 in the family law context in Case C-195/08 PPU Rinau168 in setting the tone of its judgment by identifying that Brussels II Revised states that the fundamental rights of the child should be protected but there is no further engagement with how the law impacts on the rights of the child concerned.169 This passing engagement with Article 24 leaves many issues unresolved. 24.54 In two cases, Case C-403/09 PPU Deticek170 and Case C-491/10 PPU Aguirre Zarraga,171 fundamental rights have been relied on by the ECJ to justify a particular interpretation of Brussels II Revised in cases of international child abduction. In both cases, reference to Article 24(3) was used to justify the return of a child to a State from which they were unlawfully removed or retained. In Deticek, the child had been removed from Italy to Slovakia by her mother following a custody decision in Italy which would have placed the child in a care home. The father sought recognition and enforcement of the Italian judgment in Slovakia, to ensure that the child returned to Italy. The ECJ made it clear that the obligation of mutual recognition of judgments in Brussels II Revised172 meant that the Italian custody judgment had to be recognised and enforced to return the child to Italy. This interpretation was justified by reference to Article 24(3) of the Charter because, if the judgment was not enforced, the father’s contact with his child would be significantly affected.173 The reference to Article 24(3) is encouraged by the Explanatory Notes on the Charter requiring special consideration of the right of the child to have contact with both parents in the context of family law. This interpretation is in accordance with the aims of Brussels II Revised in ensuring the mutual recognition of judgments throughout the Member States, and is correct on the terms of the Regulation. However, the outcome is not necessarily positive for the child, who was

166

Case C-40/11 Iida (Judgment of 8 November 2012) [78]. Ibid [82]. 168 Case C-195/08 PPU Rinau [2008] ECR I-05271. 169 This process of setting the tone by reference to Art 24 is not consistent. In Case C-497/10 PPU Mercredi the Court does not refer to the child’s rights, despite the fact that the definition of ‘habitual residence’, which was the subject of the reference, would significantly affect the child’s relationship with her father. 170 Case C-403/09 PPU Deticek [2009] ECR I-12193. 171 Case C-491/10 PPU Aguirre Zarraga [2010] ECR I-14247. 172 Art 21 Brussels II Revised. 173 Judgment [54]–[55]. 167

684

Ruth Lamont

Art 24 – The Rights of the Child

returned to an Italian care home and did not have residence with either her mother, or her father.174 The protection of Article 24 rights in a cross-border family context is also demon- 24.55 strated by Case C-491/10 PPU Aguirre Zarraga,175 where a child had been unlawfully retained in Germany from Spain. The German court accepted the child’s objections to returning to Spain176 and the return of the child was initially refused. Under Brussels II Revised, the Spanish court subsequently had jurisdiction to consider the substantive custody rights of the child and order the return of the child despite the German court’s refusal.177 The Spanish court gave the child the opportunity to be heard in the substantive proceedings, but the child was not actually heard. The Spanish court subsequently ordered the return of the child, and the German court asked the ECJ whether the fact that the child had not actually been heard in the proceedings was a basis to refuse recognition of the Spanish judgment. The recognition of judgments in these circumstances is automatic and there are no defences available if the court of origin has certified the judgment.178 The Court considered Article 24(1) and suggested that the child had an opportunity 24.56 to be heard in the Spanish proceedings and this was sufficient to protect the child’s right to be heard.179 The Spanish court had to ensure compliance with Article 24(1), and the German court had no role in assessing whether this obligation had been effectively carried out.180 The ECJ observes that the court hearing the substantive custody dispute must carry out the obligation to hear the child under Article 24(1), but that ‘hearing the child cannot constitute an absolute obligation, but must be assessed having regard to what is required in the best interests of the child in each individual case, in accordance with Article 24(2) of the Charter of Fundamental Rights.’181 Article 24(2) is characterised as a potential limit on Article 24(1), rather than the child’s views underpinning and assisting the court to identify what is in their best interests. The relationship with national law is explored in Case C-400/10 PPU McB182 where 24.57 the mother had removed the children from Ireland to England. The parents were unmarried, so the father had no rights of custody under Irish law and could not access the remedy of return of the child under Brussels II Revised.183 The Brussels II Revised Regulation defines what constitutes a ‘right of custody’,184 but the question of attribution of rights of custody remains one of national law.185 The ECJ considered whether leaving the attribution of custody rights to national law was in accordance with Articles 7 and 24 of the Charter and concluded that the national court’s decision on custody

174 The use of Art 24 in reinforcing the application of the return of the child following an abduction was referred to and approved of in the later Case C-211/10 PPU Povse [2010] ECR I-06673. 175 Aguirre Zarraga (n 171). 176 Art 13(2) Hague Convention 1980. 177 Arts 11(6)–(8) Brussels II Revised. 178 Art 42(2) Brussels II Revised. 179 Judgment [66]. 180 Judgment [70]. 181 Judgment [64]. 182 Case C-400/10 PPU McB [2010] ECR I-08965. 183 Art 2(11) Brussels II Revised requires that the removal be in breach of custody rights before an abduction under the terms of the Regulation has been established and the return remedy can operate. 184 Art 2(9) Brussels II Revised. 185 Judgment [44].

Ruth Lamont

685

Part I – Commentary on the Articles of the EU Charter

would be in accordance with the best interests of the child under Article 24(2).186 The ECJ argued that Article 7: must be read in a way which respects the obligation to take into consideration the child’s best interests, recognised in Article 24(2) of that Charter, and taking into account the fundamental right of a child to maintain on a regular basis personal relationships and direct contact with both of his or her parents, stated in Article 24(3).187

24.58 This approach seems to subordinate Article 7, which gives rights to all members of the family to be balanced against one another, to the obligations in Article 24. Since Article 24 is specific to the rights of the child, that may readjust the rights of family members, but the ECJ does not engage with these tensions or give guidance on balancing the interests of the parties. It is left to the national court to resolve those tensions in its decisions and for the balance of interests in awarding custody rights to be identified by national law. Article 24 could provide the basis for a legitimate restriction on Article 7 rights of the other family members. This is not an issue which arises on the face of the ECHR, and the ECJ needs to provide clearer guidance on when the protection of a child’s rights is a legitimate aim which justifies restricting the rights of other family members, and what will constitute a ‘proportionate’ restriction. There is potential here to build up on the ECHR, but the relationship will need further articulation for this to be realised.

IV. Limitations and Derogations 24.59 There are no specific derogations from Article 24, although the terms of Articles 24(1) and Article 24(3) permit their non-application in defined circumstances. Under Article 24(1), the child’s views will be taken into consideration ‘in accordance with their age and maturity’. This means that if the child is deemed too young, or too immature, their views may be discounted as a factor in the decision. This limitation is also evident in the text of Article 3 CRC, and reflects the fact that infants and very young children will be incapable of expressing an opinion. The weight placed on the child’s views should vary depending on their capacity to understand the circumstances and respond. However, there are significant differences in the age at which some countries will hear a child during legal proceedings and take their views into account, and this variation may significantly affect the application of Article 24(1) if it is interpreted restrictively.188 24.60 The right of the child to have a relationship with both parents is similarly limited by Article 24(3) where this contact is not in the best interests of the child. This is necessary, for example, where a parent has abused a child—it will not be in the child’s best interests to have contact with that parent. However, the conception of the child’s best interests in these circumstances can be very difficult because the emphasis of Article 24(3) is on maintaining contact. Contact is presumed to be in the child’s best interests, it must be clearly demonstrated that this is not the case to undermine this presumption, using other factors which affect the best interests principle, such as the child’s own views,

186

Judgment [62]. Judgment [60]. 188 R Lamont, ‘The EU: Protecting Children’s Rights in Child Abduction’ [2008] International Family Law 110, 112. 187

686

Ruth Lamont

Art 24 – The Rights of the Child

health, welfare and safety. However, in both these circumstances, even if the child is not heard, or contact is not maintained, it is still an application of Article 24 in accordance with its own terms, accounting for the relevant circumstances. Article 24(2) is limited in its application by the status of the best interests principle, as a ‘primary’ consideration, and in the bodies applying the principle in their decisionmaking. As a ‘primary’ consideration in decision-making, the child’s best interests can be overridden by other factors in the decision; it is one of several ‘primary’ factors amongst other legitimate factors. If the child’s best interests are the paramount consideration in a decision,189 the best interests factor dictates the decision-making process.190 This limits the role of the child’s best interests in decision-making as one important factor, rather than the most important factor. The bodies directed to take the child’s best interests into consideration under Article 24(2) are ‘public authorities and private institutions’. This term also limits the circumstances in which the child’s best interests will be taken into account and potentially has a very specific interpretation in EU law. This phraseology is different to Article 3 CRC, which states that the child’s best interests should be a primary consideration for public or private social welfare institutions, courts of law, administrative authorities or legislative bodies. The scope of Article 3 CRC therefore appears broader in specifying that courts and legislative bodies should consider the child’s best interests as a primary factor in their decision-making. However, the concept of ‘public authority’ is broad enough to encompass decisions by courts, and when making decisions within the scope of EU law, both national courts and the ECJ should comply with Article 24(2). It should also encompass the other European institutions when they are legislating and otherwise acting in a manner affecting the interests of children. Article 24(2) should also be a feature when national legislative bodies act to implement European directives and European law in the legal system of the Member States. These state actors clearly fall within the scope of a public authority. However, the outlying edges of the concept of a ‘public authority’ bound to comply with Article 24(2) are not clear. Given the context of EU law, it is possible that this concept will be informed by the definition of state actor developed for the purposes of applying EU law through direct effect in the Member State legal system. The definition of a public body is very broad for the purpose of enforcing EU law against the state through direct effect,191 and includes any entity where there is some element of state participation or control in the enterprise. This broad conception would capture a very broad range of actors within the Member States when they are implementing EU law. This is potentially broadened further by the inclusion of ‘private institutions’. There is no clear identification of what institutions this concept would cover, but McGlynn suggests that this concept is extensive enough apply the best interests principle within a family.192 It is more likely to have an impact where private actors have taken over functions previously carried out by the state, such as management of migration detention centres or victims’ services, which may now have a role in implementing European

189 190 191 192

As under s 1(1) Children Act 1989 in England and Wales. See J Herring and C Foster, ‘Welfare means rationality, virtue and altruism’ (2012) 32 Legal Studies 480. See Case C-188/89 Foster and Others v British Gas [1990] ECR I-3313. McGlynn (n 129) 396.

Ruth Lamont

687

24.61

24.62

24.63

24.64

Part I – Commentary on the Articles of the EU Charter

law on trafficking and asylum and immigration. This concept will have to be tested in practice before the ECJ,193 but the inclusion of private institutions in Article 24(2) makes it clear that locating the implementation of European law in non-state bodes does not avoid the guarantee provided by Article 24(2) of the Charter. It will also prevent too much pressure being placed on the conception of a ‘public authority’ for the purposes of Article 24(2) and captures the widest possible number of actors within the scope of the Article to try and ensure that the child’s best interests are taken into account in decision-making. The phrase ‘public authorities and private institutions’ appears to be a limitation on when Article 24(2) applies to decision-making, but in practice will not limit its effect, instead potentially broadening the number of institution taking the child’s best interests into account.

V. Remedies 24.65 One of the greatest challenges posed by giving rights to children is their effective enforcement. Children’s innate ‘powerlessness’ and dependency on adults for enforcing their rights makes realising children’s rights, and remedying their breach, inherently difficult.194 Children may be too young to take steps to enforce their rights independently of an adult, yet it may be the adults upon whom the child is dependent that play a role in the breach of the child’s rights. In protecting the rights in Article 24 therefore, there are additional challenges of practical enforceability and, whilst Article 47 of the Charter guarantees a right to an effective remedy, these challenges have to be factored into the EU’s remedial framework. 24.66 In terms of judicial remedies, Cullen has argued that the EU’s judicial system ‘is better designed for the discovery of violations of rights through inconsistencies in law rather than failures in practice to live up to the law.’195 The EU is better at monitoring whether guarantees are implemented at all, rather than at ensuring standards are reached in implementation. The procedural and value-based nature of the guarantees in Article 24 means that they will largely be interpreted and implemented at national level, with significant input of national interpretations of concepts such as ‘best interests’ and when a child is old enough and mature enough to be heard in proceedings. Unless there is a flagrant failure to protect procedural obligations, the ECJ is unlikely to interfere with national discretion. 24.67 Whilst the ECJ will monitor the implementation of Article 24 in the national courts, the activities of the EU in non-judicial spheres may in fact have a more significant impact on remedies for breach of Article 24 rights throughout the EU, and not just in the context of the implementation of EU law. For example, DG Justice has instigated significant activity in promoting ‘child-friendly justice’196 and ensuring child participation

193 Hopefully the inclusion of the phrase ‘private institutions’ will avoid some of the problems that have arisen in the context of the Human Rights Act 1998 and the definition of a ‘public authority’ for the purposes of s 6 of the Act. See D Oliver ‘The Frontiers of the State: Public Authorities and Public Functions Under the HRA’ [2000] Public Law 476. 194 Fortin (n 91) 13. 195 Cullen (n 126) 344. 196 An EU Agenda for Rights of the Child (n 127) p 6.

688

Ruth Lamont

Art 24 – The Rights of the Child

under Article 24(1). This includes promoting children’s effective access to justice, participation and appropriate representation, provision of appropriate information to children about proceedings and adequate training of professionals. The aim is for the EU to work together with the Council of Europe to promote the Guidelines on ‘child-friendly justice’197 throughout the Member States and incorporating the principles into future legislation. DG Justice also aims to support the training of judges on child participation. These forms of activity, although not a remedy in themselves, help to embed the principles in EU legislation and also in Member States’ legal systems, hopefully reducing the circumstances in which there may be a breach. In addition, there are mechanisms outside the EU framework which can be utilised 24.68 by children in remedying rights breaches. There is a European Network of Children’s Ombudsmen (ENOC), which includes Children’s Commissioners and Ombudsmen from across the Member States. The ENOC aims to encourage the fullest possible implementation of the CRC to support collective lobbying for children’s rights and to share information, approaches and strategies.198 Some national ombudsmen may have the legal power to intervene on children’s behalf to correct rights breaches, but this is not always the case.199 The role of ENOC is to encourage cooperation between these national bodies, which are increasingly prepared to operate on a European level,200 in providing an independent forum for the discussion of children’s rights across Europe alongside the possibility of investigation of systematic rights abuses in the Member States. This form of cooperation is important in developing a structure of remedies beyond recourse to the Court, which is distant and difficult to access, particularly for a child litigant. As an additional motivator of activity on children’s rights in and across the Member States, Article 24 and the EU may encourage greater protection of children’s rights by national legal systems, not just when implementing EU law specifically. The problem of providing effective remedies where children’s rights are breached is a general question, not specific to the implementation of EU law, and a proactive engagement with the rights in Article 24 by the EU in a broad sense of engaging constituencies across the Member States may be valuable in securing a more effective approach in the EU.

E. Evaluation The inclusion of children’s rights in Article 24 of the Charter represents a highly 24.69 significant development for the EU. From a supranational body in which children had a tenuous foothold in the primary concerns and processes of its activities, there is now a clear statement that the EU protects and promotes children’s rights. Article 24 indicates 197 Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice. Available at www.coe.int/t/dghl/standardsetting/childjustice/Guidelines%20on%20child-friendly%20justice%20and%20 their%20explanatory%20memorandum%20_4_.pdf. 198 http://crin.org/enoc/. 199 Not in England for example, where the Children’s Commissioner is limited to promoting awareness of children’s rights, see Pt 1, Children Act 2004. 200 N Thomas, B Gran and K Hanson, ‘An Independent Voice for Children’s Rights in Europe? The Role of Independent Children’s Rights Institutions in the EU’ (2011) 19 International Journal of Children’s Rights 429, 448.

Ruth Lamont

689

Part I – Commentary on the Articles of the EU Charter

a shift in focus onto children’s rights, and should be a significant motivator of activity across the institutions of the EU. There is evidence that this motivation is already being realised in the development of the Agenda on the Rights of the Child, but the nature of the rights expressed in Article 24 means that their realisation and articulation through the activities and interpretation of the rights will be central to its future role and success. 24.70 The arguments put before the Court based on Article 24 demonstrate the potential power of framing claims on the basis of rights for the child. There have been claims for the extension of EU law into novel areas partially justified by reference to Article 24. This potential has been realised in Dynamic Medien, but in the majority of cases, the rights provide a justification of existing approaches. This has been evident in both the free movement of persons and cross-border family law cases. Instead of providing an alternative basis for analysis, Article 24 provides an additional support for existing interpretations of EU law, changing the narrative but not yet providing a challenge to EU law reasoning. 24.71 The case law thus far has also demonstrated a lack of close engagement by the ECJ with definition and interrelationship of the different limbs of Article 24. These are not necessarily in accordance with one another, or with the other provisions of the Charter, particularly Article 7. Article 24 represents an evolution on the ECHR and some national laws by providing express protections for children’s rights. This is an area where dialogue between the ECJ and the ECHR is likely, particularly in the protection of children’s rights in the context of the right to respect for private and family life, which is expressed in both the ECHR and the Charter. The ECJ is likely to take the lead in the development of the law in this area because of the explicit expression of children’s rights in the Charter. Alongside Article 24 of the Charter, both the ECJ and the AdvocatesGeneral have referred to additional rights of the child expressed in the CRC, but not in the Charter. The ECJ is clearly aware that the rights expressed in the Charter are part of a wider framework supporting children’s rights on a global scale. As a supranational court with the power to define the interpretation of children’s rights across the EU, the ECJ has an important symbolic role in the protection of children’s rights through Article 24. 24.72 Beyond the ECJ, it has been suggested that Article 24 should provide the basis for ‘child-proofing’ or mainstreaming children’s rights and interests into EU law.201 This has been suggested for the rights in the Charter more broadly202 but the EU Agenda on the Rights of the Child states that: ‘In the future, EU policies that directly or indirectly affect children should be designed, implemented, and monitored taking into account the principle of the best interests of the child enshrined in the EU Charter of Fundamental Rights and the UNCRC.’203 This process should help to ensure that EU law is compliant with Article 24 on adoption, but without effective child-participation in

201 McGlynn (n 129) 397; E Drywood, ‘Child-proofing EU Law and Policy: Interrogating the Law-making Processes Behind European Asylum and Immigration Provision’ (2011) 19 International Journal of Children’s Rights 405; N Ferreira, ‘The Harmonisation of Private Law in Europe and Children’s Tort Liability: A Case of Fundamental and Children’s Rights Mainstreaming’ (2011) 19 International Journal of Children’s Rights 571. 202 See I de Jesus Butler, ‘Ensuring Compliance with the Charter of Fundamental Rights in Legislative Drafting: the Practice of the European Commission’ (2012) 37 European Law Review 397. 203 An EU Agenda for the Rights of the Child (n 127) p 4.

690

Ruth Lamont

Art 24 – The Rights of the Child

these processes the rights expressed in the Charter are not fully protected. The General Comment on Article 12 CRC suggests that the voice of the child should be ‘the starting point for an intense exchange between children and adults on the development of policies, programmes and measures in all relevant contexts of children’s lives’.204 However, the institutions of the EU, including the ECJ, are not readily accessible to children and the expression of their interests in this environment is likely to be mediated through other actors. However, if children’s rights were to permeate EU law, children’s rights and interests 24.73 would not be confined into categories in EU law. Measures affecting children have been adopted on a broad range of competence, but the EU has focused on specific categories of children, eg as ‘vulnerable victims of crime’. Article 24 could be the basis for a more coherent approach to encouraging the inclusion of children’s rights and interests across the different spheres of European activity. This would provide a wider shift in perspective, and would be an important contribution to the development of the EU as an actor for the protection and promotion of human rights on a global scale.

204

General Comment (n 123) p 7.

Ruth Lamont

691

Article 25 Article 25 The Rights of the Elderly The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life.

Text of Explanatory Note on Article 25 This Article draws on Article 23 of the revised European Social Charter and Articles 24 and 25 of the Community Charter of Fundamental Social Rights of Workers. Of course, participation in social and cultural life also covers participation in political life.

The explanation of Article 25 also set out in [2007] OJ C303 includes Article 25 in its list of ‘examples for principles’ recognised in the Charter, which ‘may be implemented through legislative or executive acts’ that come within the existing competency of the EU but ‘become significant for the Courts only when such acts are interpreted or reviewed’ and do not ‘give rise to direct claims for positive action by the Union’s institutions or Member States authorities’.

Select Bibliography P De Hert and M Eugenio, ‘Specific Human Rights for Older Persons’ (2011) European Human Rights Law Review 398–418. S Fredman, ‘The Age of Equality’ in S Fredman and S Spencer (eds), Age as an Equality Issue: Legal and Policy Perspectives (Oxford, Hart Publishing, 2003) 21–70. T Hervey et al, ‘Long-term Care for Older People and EU Law: The position in England and Scotland’ (2012) 34(1) Journal of Social Welfare & Family Law 105–24. H Meenan, ‘Age Discrimination and the Future Development of Elder Rights in the European Union: Walking Side By Side or Hand in Hand?’ in I Doron and AM Soden (eds), Beyond Elder Law: New Directions in Law and Aging (Berlin, Springer-Verlag, 2012) 57–98. F Mégret, ‘The Human Rights of Older Persons: A Growing Challenge’ (2011) 11(1) Human Rights Law Review 37–66. C O’Cinneide, Age Discrimination and European Law, Thematic Report of the European Network of Legal Experts in the Non-Discrimination Field (Brussels, European Commission/Migration Policy Group, 2005). ——, ‘Age Discrimination and the European Court of Justice: EU Equality Law Comes of Age’ (2009–10) 2 Revue des Affaires Européennes 253–76. D O’Dempsey and A Beale, Age and Employment, Thematic Report of the European Network of Legal Experts in the Non-discrimination Field (Brussels, European Commission/Migration Policy Group, 2011). D Schiek, ‘Age Discrimination before the Court of Justice—Conceptual and Theoretical issues’ (2011) 48(3) Common Market Law Review 777–99.

Part I – Commentary on the Articles of the EU Charter

A. Field of Application of Article 25 25.01 The field of application of Article 25 is potentially very wide. Its scope is not confined to particular elements of EU law or to specific areas of European regulatory activity. As a result, its provisions are capable of applying to any situation where EU law or national implementing legislation affects the rights of the elderly to enjoy a dignified and independent existence. 25.02 The extent to which EU law has a direct impact upon the lives of the elderly is currently quite limited, especially when it comes to older persons who have retired and are no longer active on the labour market. As a result, the provisions of Article 25 are unlikely to play a prominent role in the future development of many aspects of European law, in particular those that relate to agriculture and fisheries, trade, the environment, transport and energy. 25.03 Nevertheless, certain elements of EU law can impact significantly upon the lives of older persons. For example, aspects of EU employment and equality law already provide significant protection for the right of older persons to participate as equals in the labour market, in particular the prohibition on age discrimination in employment and occupation set out in Directive 2000/78/EC which has already generated a substantial body of case law.1 EU free movement rules can also have a substantial impact on the lives of older persons, including those who have left the labour market and are dependent on family members who choose to exercise their free movement rights and work in another state.2 25.04 Furthermore, EU law on competition, public procurement and the free movement of services is likely to play an increasingly prominent role in regulating how social and health care services are provided to older people, especially as a European Commission study shows that that private providers are becoming more involved in the provision of care services through quasi-market mechanisms in a number of member states.3 As Hervey et al indicate, ‘the previously held general assumption that EU law has little relevance for social services, such as long-term care for older people, is increasingly under question … EU law is [now] an important element of the policy context within which changes to the long-term care for older people … are taking place’.4

1 See eg Case C-144/04 Mangold v Helm [2005] ECR I-9981; Case C-411/05 Palacios de la Villa v Cortefiel Servicios SA [2007] ECR I 8531; Case C-388/07 Age Concern England (Incorporated Trustees of the National Council for Ageing) [2009] ECR I 1569; Case C-555/07 Kücükdeveci v Swedex GmbH & Co KG [2010] ECR I-365; Case C-88/08 Hütter v Technische Universität Graz [2009] ECR I-5325; Case C-499/08, Ingeniørforeningen i Danmark (acting on behalf of Ole Andersen) v Region Syddanmark [2011] 1 CMLR 35; Case C-45/09 Rosenbladt v Oellerking Gebäudereinigungsges mbH, [2011] 1 CMLR 32; Joined Cases C-250/09 and C-268/09 Georgiev v Technicheski universitet—Sofia, filial Plovdiv [2010] ECR I-11869; Case C-341/09 Petersen v Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe [2010] ECR I-47. 2 See in particular the provisions of Arts 3(2) and 10(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. 3 European Commission, Biennial Report on Social Services of General Interest COM (2008) 418 final, SEC/2008/2179. 4 T Hervey et al, ‘Long-term Care for Older People and EU Law: The position in England and Scotland’ (2012) 34(1) Journal of Social Welfare & Family Law 105–24, 106, 122.

694

Colm O’Cinneide

Art 25 – The Rights of the Elderly

The expanding scope of EU law in the field of cross-border health care is also likely 25.05 to have an impact on the types of medical treatment that older people can access, in particular the provisions of Directive 2011/24/EU on the application of patients’ rights in cross-border healthcare. Other elements of EU law relating in particular to the co-ordination of social security schemes, the functioning of the internal market and the establishment of a common area of freedom, security and justice also have the potential to affect older people in a variety of ways. For example, Directive 2012/29/EU,5 which establishes minimum standards on the rights, support and protection of victims of crime, requires states to take into account the personal characteristics of victims of crime, including their age:6 this requirement may have a significant effect over time on how older persons are treated by national criminal justice systems and victim support services, and in general is particularly relevant for elderly people given their vulnerability to abuse and physical mistreatment (see section D below). The provisions of Article 25 are therefore relevant in a variety of contexts where EU 25.06 law impacts upon the lives of older persons. Furthermore, as European public policy comes to grips with the complex challenges posed by the continent’s ageing population, the field of application of Article 25 and the significance of its provisions is likely to expand in the years ahead. By requiring that the right of elderly people to enjoy a dignified and independent existence be respected, Article 25 sets out a legal principle that should guide the future evolution of EU legislation and case law that affects older persons both individually and as a group. In addition, Article 25 has the potential to become an important reference point in the development of soft law standards through EU ‘new governance’ mechanisms, which are likely to play a key role in the co-ordination of national policy responses to the changing demographic profile of European society.

B. Interrelationship of Article 25 with Other Provisions of the Charter Article 25 guarantees the right of older persons to a life of dignity and independence. As 25.07 such, it gives specific expression to the more general right to human dignity set out in Article 1 of the Charter. It is also conceptually linked to (and overlaps with) the right to integrity of the person set out in Article 3, the prohibition on inhuman and degrading treatment contained in Article 4, the right to liberty and security set out in Article 6 and the right to respect for private life contained in Article 7, all of which are concerned with protecting human dignity and autonomy. Furthermore, the manner in which Article 25 guarantees the right of older persons to 25.08 an independent life and participation in social and cultural life finds a parallel in how Article 15 guarantees the right to choose an occupation and engage in work and how Article 16 guarantees the right to conduct a business. The provisions of Article 34, which

5 Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA. 6 Recital 56 of the Directive states that ‘[i]ndividual assessments should take into account the personal characteristics of the victim such as his or her age’.

Colm O’Cinneide

695

Part I – Commentary on the Articles of the EU Charter

recognises the entitlement to social security and social assistance inter alia in old age, and the right to health care set out in Article 35 are also relevant, as they also guarantee the right to a dignified existence. 25.09 The provisions of Article 20 that state that everyone is equal before the law, and the guarantee of non-discrimination (including on grounds of age) set out in Article 21, are also closely linked to Article 25. Together, these three articles establish that older persons are entitled to be treated with equal regard for their dignity, independence and right to participate in social and cultural life. The provisions of Article 25 also reflect the concept of substantive equality that underpins how the Court of Justice of the EU (CJEU) has interpreted the rights to equality and non-discrimination set out in Article 20 and 21 and the general principle of equal treatment that forms part of the fundamental norms of EU law, in that they recognise that equality can at times only be secured by taking account of difference and making specific provision for the needs of disadvantaged groups.7 A similar logic is reflected in the gender equality provisions of Article 23, the rights of the child set out in Article 24, and the rights of persons with disabilities set out in Article 26.

C. Sources of Article 25 Rights I. ECHR 25.10 The ECHR does not contain an equivalent right to Article 25 and its text does not contain any explicit references to age or to the right of older persons. The provisions of Article 25 can nevertheless be regarded as being conceptually linked to the prohibition on inhuman and degrading treatment set out in Article 3 of the Convention, together with the Article 8 right to private, home and family life and the Article 14 right to nondiscrimination in the enjoyment of Convention rights. The scope of these ECHR rights is more restricted than Article 25, even if they are similarly concerned with protecting human dignity and the independence of the individual.8 Furthermore, the case law of the European Court of Human Rights is not very developed when it comes to the rights of older persons.9 However, in Farbthus v Latvia, the ECtHR held that that a failure to take into account the age and health of an elderly person (in this case an 86-year-old) in imposing a prison sentence upon him for participating in Stalin’s purges in 1940–1 could constitute a violation of Article 3 ECHR.10 Similarly, in Schwizgebel v Switzerland, the Strasbourg Court recognised that discrimination on the grounds of age could constitute a violation of Article 14 of the Convention taken together with Article 8, even though it concluded that a refusal to authorise the adoption of a second child by the

7

See eg Case 319/03 Briheche v Ministre de l’Intérieur [2005] 1 CMLR 4 [25]. H Meenan, ‘Age Discrimination and the Future Development of Elder Rights in the European Union: Walking Side By Side or Hand in Hand?’ in I Doron and AM Soden, Beyond Elder Law: New Directions in Law and Aging (Berlin, Springer-Verlag, 2012) 57–98, 62. 9 O De Schutter, The Prohibition of Discrimination under European Human Rights Law (Luxembourg, Office for Official Publications of the European Union, 2011) 71. 10 Farbthus v Latvia App no 4672/02 (Judgment of 2 December 2004). 8

696

Colm O’Cinneide

Art 25 – The Rights of the Elderly

applicant on the grounds of her age did not constitute a violation of the Convention.11 Therefore, there is some limited overlap between the provisions of the ECHR and those of Article 25.

II. UN Treaties A similar overlap exists with several provisions of the UN International Covenant on Civil and Political Rights (ICCPR), in particular the prohibition contained in Article 7 on ‘cruel, inhuman or degrading treatment’, the right to privacy set out in Article 17, and the non-discrimination right set out in Article 26. Many of the provisions of the UN International Covenant on Economic, Social and Cultural Rights (ICESCR) also are conceptually linked to the provisions of Article 25, especially Article 7 on the right to work, the Article 9 right to social security, and the Article 15 right to take part in cultural life. However, as with the ECHR, these texts contain no explicit reference to the rights of the elderly, and in general, UN legal standards on the treatment of older persons are not well developed.12 The UN Human Rights Committee has nevertheless recognised that age discrimination could constitute a violation of Article 26,13 while the UN Committee on Economic, Social and Cultural Rights (CESCR) has issued a General Comment on the economic, social and cultural rights of older persons which sets out in detail the scope of their rights and entitlements under the ICESCR.14 Other UN monitoring bodies have recognised that older persons may be particularly vulnerable to multiple forms of discrimination and the denial of social protection.15 A number of international policy documents setting out recommendations and principles in this field have also been endorsed by the UN General Assembly. These include the Vienna International Plan of Action on Ageing (VIPAA), the United Nations Principles for Older Persons of 1991 (which include 18 recommendations organised on the basis of five underlying principles of dignity, independence, participation, care and self-fulfilment), and the Madrid International Plan of Action on Ageing (MIPAA). Furthermore, in January 2010, the Advisory Committee to the Human Rights Council released a report on the human rights of older persons.16 This ‘Chung Report’, named after the Committee’s rapporteur, concluded that there was a need for a new UN treaty

11

Schwizgebel v Switzerland App no 25762/07 (Judgment of 10 June 2010). P De Hert and M Eugenio, ‘Specific Human Rights for Older Persons’ (2011) European Human Rights Law Review 398–418, 400–04. 13 Love et al v Australia Communication No 983/2001; Schmitzde-Jong v The Netherlands Communication No 855/1999; Solís v Peru Communication No 1016/2001; and Althammer et al v Austria Communication No 998/2001 (available from www2.ohchr.org/english/bodies/hrc). 14 CESCR, General Comment No 6: The Economic, Social and Cultural Rights of Older Persons, 12/08/1995. 15 See eg Committee on the Elimination of Discrimination Against Women, General Recommendation No 27, CEDAW/C/2010/47/GC.1; Report of the Special Rapporteur on the question of human rights and extreme poverty, Ms Maria Magdalena Sepúlveda Carmona, Social Protection and Old Age Poverty, A/HRC/14/31, 31 March 2010. 16 Human Rights Council, Advisory Committee, The Necessity of a Human Rights Approach and Effective United Nations Mechanism for the Human Rights of the Older Person, A/HRC/AC/4/CRP.1, 2010. 12

Colm O’Cinneide

697

25.11

25.12

25.13

25.14

Part I – Commentary on the Articles of the EU Charter

on the human rights of older persons which would close gaps in the existing international standard and ensure that elder rights received more visibility. A report issued by the UN High Commissioner for Human Rights reached similar conclusions,17 and an Openended Working Group on Ageing has been established by General Assembly Resolution 65/182 in December 2010 to explore inter alia whether such a treaty is required.18 Therefore, while UN standards in this area are currently underdeveloped, there is a real possibility that this situation may change in the future.

III. Council of Europe Treaties 25.15 One of the main sources of Article 25 are the provisions of Article 23 of the revised European Social Charter (ESC), as the explanation of Article 25 set out in [2007] OJ C303 makes clear. As a result, Article 23 ESC is likely to be a significant reference point in how Article 25 is interpreted and applied, even if only nine EU Member States have agreed to be bound by its provisions.19 Article 23 was the first provision in an international human rights treaty to provide 25.16 specific protection for the rights of the elderly. It requires states to establish a comprehensive floor of protection for the rights of older persons to social protection, which in turn serves to protect their privacy, dignity and independence, as well as their ability to participate in social and cultural life. Article 23 ESC—The Right of Elderly Persons to Social Protection With a view to ensuring the effective exercise of the right of elderly persons to social protection, the Parties undertake to adopt or encourage, either directly or in co-operation with public or private organisations, appropriate measures designed in particular: — to enable elderly persons to remain full members of society for as long as possible, by means of: (a) adequate resources enabling them to lead a decent life and play an active part in public, social and cultural life; (b) provision of information about services and facilities available for elderly persons and their opportunities to make use of them; — to enable elderly persons to choose their life-style freely and to lead independent lives in their familiar surroundings for as long as they wish and are able, by means of: (a) provision of housing suited to their needs and their state of health or of adequate support for adapting their housing; (b) the health care and the services necessitated by their state; — to guarantee elderly persons living in institutions appropriate support, while respecting their privacy, and participation in decisions concerning living conditions in the institution.

17

E/2012/51, 20 April 2012. A/RES/65/182, para 28. 19 As of 20 October 2012, of the 14 EU Member States that had ratified the revised European Social Charter, Finland, France, Ireland, Italy, Malta, the Netherlands, Portugal, Slovenia and Sweden had agreed to be bound by the provisions of Art 23 ESC. (Thirteen EU Member States remain bound by the provisions of the original European Social Charter, which contains no equivalent provision to Art 23.) 18

698

Colm O’Cinneide

Art 25 – The Rights of the Elderly

The European Committee on Social Rights (ECSR) has interpreted Article 23 as 25.17 concerned with protecting the right of elderly persons to remain full, active and participating members of society. National measures relating to the provision of social protection and health care services to the elderly come within its field of application, along with measures which relate to the participation of older people in the labour market as well as in the social and cultural life of their society.20 However, questions of age discrimination in employment are usually viewed by the ECSR as mainly falling under the provisions of Article 1(2) (non-discrimination in employment) and Article 24 (right to protection in cases of termination of employment): the Committee has taken the view that the primary focus of Article 23 is on the social protection of older persons outside of the employment field.21 The Committee has interpreted the provisions of Article 23 as requiring states to have 25.18 comprehensive age discrimination legislation in place to protect older persons against discrimination in a range of areas outside of employment, such as access to goods, facilities and services in the fields of health care, education, housing, social services, insurance and banking.22 Pensions and other state benefits must be sufficient in order to allow elderly persons to lead a ‘decent life’ and play an active part in public, social and cultural life.23 Furthermore, the needs of elderly persons must be taken into account in national or local housing policies, in particular through the provision of an adequate supply of sheltered/supported housing and assistance for the adaptation of homes.24 Health care services for older people should be accessible, adequate and sufficiently wellresourced, while states should also take effective measures to protect the rights of older persons living in care homes or receiving home care services (which should include the establishment of suitable monitoring and inspection mechanisms).25 Safeguards must be built into the legal framework that relates to assisted or proxy decision-making for the elderly in order to prevent them being arbitrarily or unjustifiably deprived of their power of autonomous decision-making.26 Other provisions of the European Social Charter are also relevant, including Article 1 25.19 (the right to work), Article 12 (the right to social security), Article 13 (the right to social assistance), and Article 14 (the right to access social welfare services).

IV. Other Sources Few national constitutions of EU member states contain express provisions guaranteeing 25.20 the right of older persons to lead a life of dignity and independence and to participate in

20

ECSR Conclusions XIII-5, Finland, p 304 ECSR Conclusions 2009, Andorra, p 71. 22 The ECSR requires that anti-discrimination legislation must cover a ‘sufficiently wide variety of grounds’ outside of employment to ensure that older persons can actively participate in the social and cultural life of their community, and the prohibition of age discrimination should be ‘progressively extended’ to cover all the areas mentioned above: see ECSR Conclusions 2009, Finland, p 273. 23 ECSR Conclusions 2009, Finland, p 274 ; Italy, p 429. 24 ECSR Conclusions 2003, Slovenia, p 530; Conclusions 2005, France, p 252. 25 ESCR Conclusions XIII-5, Finland, p 304; Conclusions 2003, France, p 186; Slovenia, p 530. 26 ECSR Conclusions 2009, Andorra, p 71. 21

Colm O’Cinneide

699

Part I – Commentary on the Articles of the EU Charter

social and cultural life.27 The odd exception does exist: for example, Article 72 of the Portuguese Constitution of 1976 protects the rights of older persons. Furthermore, as with the ECHR, provisions of national constitutions which state that that human dignity constitutes a fundamental norm of the legal order, or which protect individual rights to privacy, non-discrimination and freedom from inhuman and degrading treatment, are often assumed to cover much of the same ground as does Article 25.28 25.21 The provisions of Articles 24 and 25 of the Community Charter of Fundamental Social Rights of Workers (the ‘Community Charter’) are another main source of Article 25 along with Article 23 ESC, as the explanation of Article 25 set out in [2007] OJ C303 again makes clear. These two articles are worded as follows: Articles 24 and 25 of the Community Charter—Elderly Persons According to the arrangements applying in each country: 24. Every worker of the European Community must, at the time of retirement, be able to enjoy resources affording him or her a decent standard of living. 25. Every person who has reached retirement age but who is not entitled to a pension or who does not have other means of subsistence, must be entitled to sufficient resources and to medical and social assistance specifically suited to his needs.

25.22 As with Article 23 ESC, the wording of these provisions is likely to be another major reference point when Article 25 is interpreted and applied by the courts. Other international declarations also exist which relate to the rights of the elderly, 25.23 including several ILO conventions and recommendations, including in particular Convention No 111 on Discrimination (Employment and Occupation), the Invalidity, Old-Age and Survivor’s Benefits Recommendation No 131 (1967), the Older Workers Recommendation No 162 (1980) and the Termination of Employment Recommendation No 166 (1982), which states that, subject to national law and practice regarding retirement, age should not constitute a valid reason for termination of employment. The Toronto Declaration on the Global Prevention of Elder Abuse, issued in 2002 under the auspices of the World Health Organisation (WHO), may also be relevant to the future interpretation and application of Article 25.29 Finally, the existence of the (draft) European Charter of the Rights and Responsibilities 25.24 of Older People in Need of Long Term Care (LTC) and Assistance should also be noted. This standard-setting instrument was published in April 2010 by the European platform of older persons (AGE), an umbrella organisation of European NGOs concerned with issues relating to the treatment of older people whose activities were subsidised by the European Commission’s Daphne III programme.30

27 C O’Cinneide, ‘Comparative European Perspectives on Age Discrimination’ in S Fredman and S Spencer (eds), Age as an Equality Issue: Legal and Policy Perspectives (Oxford, Hart Publishing, 2003) 195–218. 28 Ibid. 29 www.who.int/ageing/publications/toronto_declaration/en/index.html. 30 AGE Platform Europe, European Charter of the Rights and Responsibilities of Older People in Need of Long-Term Care and Assistance, available online at www.age-platform.eu/images/stories/22204_AGE_charte_ europeenne_EN_v4.pdf.

700

Colm O’Cinneide

Art 25 – The Rights of the Elderly

D. Analysis I. General Remarks Older persons are often assumed to lack flexibility, motivation, reliable health, and the ability to absorb new ideas.31 They are also often viewed as lacking the capacity to manage their own lives or to participate meaningfully in the life of their communities, especially after they reach an advanced age. These stereotypical assumptions can result in older people being subject to paternalistic decision-making by care-givers and others, which may deny them the opportunity to have a say in medical and social care decisions that affect their well-being. Discriminatory attitudes may also impair their ability to remain active in the labour market or to engage in social and cultural activities: the European Older People’s Platform and other organisations have suggested that pervasive age discrimination is a problem across Europe.32 Furthermore, many older people are exposed to the risk of elder abuse and similar forms of mistreatment.33 They may also be at risk of poverty and social isolation, while older people in general often have particular medical or social care needs which, if not met, can seriously endanger their right to a dignified existence. As discussed above, many of the rights recognised in national constitutional law or under the ECHR and similar treaty instruments are capable of being interpreted and applied so as to protect the entitlement of older persons to a dignified and autonomous existence. However, the protection they provide for the rights of older people is often limited, poorly defined or uncertain in scope.34 Furthermore few national constitutions or international human rights instruments contain express provisions guaranteeing the rights of the elderly, with the exception of Article 23 of the revised ESC and Articles 24 and 25 of the Community Charter (the principal sources of Article 25). As a consequence, the argument is increasingly made that the rights of older people need to be crystallised and given specific expression in international human rights law, as proposed by the findings of the UN ‘Chung report’ referred to above.35 In this respect, Article 25 is one of the more innovative, ground-breaking and potentially ‘transformative’ provisions of the Charter. It expressly commits the EU to recognising and respecting the rights of the elderly as a distinct group to ‘lead a life of dignity and independence and to participate in social and cultural life’. Furthermore, it is included in Title III of the Charter, which is concerned with equality: its inclusion in this part of the Charter affirms that older persons are entitled to equality of respect and to participate as autonomous equals in social and cultural life of their community.

31 See S Fredman, ‘The Age of Equality’ in S Fredman and S Spencer, Age as an Equality Issue: Legal and Policy Perspectives (Oxford, Hart Publishing, 2003) 21–70, esp 22–35. 32 ESCR Conclusions 2009, Andorra, 70. 33 See ESCR Conclusions 2009, Italy, p 430. 34 See in general the analysis in De Hert and Eugenio (n 12) 400–04. 35 See F Mégret, ‘The Human Rights of Older Persons: A Growing Challenge’ (2011) 11(1) Human Rights Law Review 37–66.

Colm O’Cinneide

701

25.25

25.26

25.27

25.28

Part I – Commentary on the Articles of the EU Charter

25.29

25.30

25.31

25.32

25.33

25.34

Article 25 thus provides a focal point when it comes to the rights of the elderly—it is designed to ensure that their specific needs are not overlooked or marginalised within the EU’s human rights framework. It complements the protection for human dignity and individual rights provided by other provisions of the Charter, by requiring the Union to pay particular regard to the rights of older persons. Furthermore, by affirming that older people are entitled to lead a dignified, autonomous and participatory existence, the provisions of Article 25 add a new substantive element to EU human rights law. Article 25 does not just require that the rights of older people as individuals be respected: it also commits the EU to recognising and respecting the special needs of older people as a group. At a minimum, the provisions of Article 25 require the EU to refrain from taking action which undermines the dignity of older people or unjustifiably limits their independence and ability to participate in social and cultural life. By extension, this implies that EU law should reflect, uphold and be compatible with the rights of older people. It appears as if the scope of Article 25 extends to cover the entitlement of older people to be protected against abuse and discrimination by third parties, to receive social protection and medical care, and to participate in the labour market as well as in the social and cultural life of their community. (See the next sub-section for more analysis of the personal and material scope of Article 25.) As such, the commitment to respect the rights of the elderly set out in Article 25 appears to give rise to both negative and positive obligations, which should be given due weight when it comes to the framing, interpretation and application of EU legislation as well as national measures which implement EU law. However, the provisions of Article 25 are not drafted in a manner that appears to create directly enforceable individual rights. Instead of providing that ‘everyone has the right to…’, Article 25 commits the EU to recognising and respecting the rights of the elderly as a group. It therefore may not generate subjective rights which are vested in the individual, but rather sets out objective norms relating to the treatment of older people which the Union is expected to respect. The explanation of Article 52(5) set out in [2007] OJ C303 includes Article 25 as an example of a ‘principle’, which ‘may be implemented through legislative or executive acts’ that come within the existing competency of the EU but ‘become significant for the Courts only when such acts are interpreted or reviewed’ and do not ‘give rise to direct claims for positive action by the Union’s institutions or Member States’ authorities’. It remains to be seen whether the CJEU and national courts will interpret the provisions of Article 25 in this way: however, Article 52(7) provides that ‘due regard’ should be given to the explanation of the Charter set out in [2007] OJ C303. Article 25 is likely therefore to be interpreted as establishing a ‘principle’ of EU law, rather than subjective individual rights. As such, according to the provisions of Article 52(5), it ‘may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.’ Article 25 will therefore function as an interpretative principle, which may be invoked in the interpretation, application or review of EU law. EU legislation, acts of the EU institutions or measures taken by Member States to implement EU legislation may be overturned if they are incompatible with its provisions. Furthermore, EU legislation and national measures implementing EU law will be interpreted in a manner that complies 702

Colm O’Cinneide

Art 25 – The Rights of the Elderly

with the commitment to respect the rights of the elderly set out in Article 25. Its provisions will also need to be taken into account by the CJEU and national courts when the proportionality of national measures which derogate from free movement principles or otherwise take advantage of permissible exceptions to general requirements of EU law is assessed. In contrast, individuals will in all likelihood be unable to rely on Article 25 to estab- 25.35 lish that they are entitled to receive particular forms of medical or social care, or to make a claim that the EU has otherwise violated their individual rights or failed to respect their subjective entitlements. However, it remains to be seen how this may limit the effect of Article 25 in practice. As Barnard has noted, the distinction between ‘rights’ and ‘principles’ within the Charter scheme is not clear-cut,36 and there may be situations where a failure to make positive provision for an individual or a group of older persons in need may constitute a failure to respect the principle of respect for the rights of older people as set out in Article 25.

II. Scope of Application Article 25 commits the EU to respecting the rights of the ‘elderly’, but does not define 25.36 this term. Article 23 of the revised ESC, along with the various UN declarations discussed above, similarly does not define who qualifies as an ‘elderly’ or ‘older’ person. In contrast, Articles 24 and 25 of the Community Charter make it clear that they apply to workers who have ‘reached retirement age’ or are ‘at the time of retirement’. However, ‘retirement age’ is nowadays not a clearly defined concept. Workers retire at different ages, and many often choose to continue working beyond the ‘normal’ retirement age for their particular type of employment. Even in situations where the age discrimination provisions of Directive 2000/78/EC as interpreted by the CJEU permits employers to make use of a ‘default retirement age’ (ie where employers are allowed under EU and national law to terminate the employment contracts of employees who have reached a particular age), individual workers may continue to work for their employer on a different contractual basis, or otherwise remain active participants in the labour market. Therefore, even if Article 25 is interpreted by reference to the provisions of Articles 24 and 25 of the Community Charter as applying to individuals who have reached or who are nearing ‘retirement age’, this does not necessarily provide a clear definition of the group of persons whose rights are protected by Article 25. As a result, the personal scope of Article 25 remains open to interpretation—it 25.37 remains to be seen which age groups will be classified by EU and national courts as being ‘elderly’. However, the importance of the rights protected by Article 25 suggests that its scope of application should be given a wide interpretation. Its provisions appear to be capable of covering both the rights of older persons who have retired and also those of older persons who remain active on the labour market: there is nothing in the text of Article 25 that limits its scope to persons who have left employment or who have otherwise ‘retired’. Furthermore, Article 25 would appear to protect all older persons 36 C Barnard, ‘The “Opt-Out” for the UK and Poland from the Charter of Fundamental Rights: Triumph of Rhetoric over Reality?’ in S Griller and J Ziller (eds), The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty? (Vienna, Springer, 2008) 257–83, 260–61.

Colm O’Cinneide

703

Part I – Commentary on the Articles of the EU Charter

25.38

25.39

25.40

25.41

25.42

and not just those in particular ‘high-risk’ categories. Its provisions protect the rights of older people to enjoy both a dignified and an autonomous existence: therefore, the personal scope of Article 25 would appear to cover both older persons who are dependent upon others for care and support and also those who are able to lead an active, autonomous and self-sufficient existence. The scope of Article 25 is also not restricted to citizens of the EU or to those exercising EU free movement rights, unlike certain other Charter rights. Instead, it appears to apply to all older persons who may be subject to EU law or otherwise affected by EU measures. This may include older persons residing outside the territory of the EU, depending on the territorial scope that is given to the provisions of the Charter in general. The rights of the ‘future elderly’, ie younger age groups who will in the future near retirement age, may also receive protection under Article 25.37 Turning to the material scope of Article 25, its text commits the EU to respecting the dignity of older people, their right to enjoy an autonomous existence, and their entitlement to participate in the social and cultural life of their communities. By extension, access to health care, housing and other forms of social support must come within its scope, insofar as this is necessary to enable older persons to enjoy a dignified, autonomous and participative existence. The explanation of Article 25 set out in [2007] OJ C303 makes it clear that its provisions draw upon Article 23 of the revised ESC and Articles 24 and 25 of the Community Charter. Their provisions establish that older persons are entitled as of right to receive sufficient social protection in the form of pensions, health care, housing and other resources where this is necessary to meet their needs. As a result, the material scope of Article 25 would seem to extend to cover the right of older persons to obtain social and medical care where this is necessary to maintain their dignity and autonomy.38 Any other interpretation would be difficult to reconcile with the relationship between Article 25 and other provisions of the Charter, and its wideranging commitment to protecting the fundamental rights of older persons.39 It is less clear whether the material scope of Article 25 covers the area of employment and occupation. Its provisions refer to ‘participation in social and cultural life’, not to participation in the labour market. Furthermore, the Court of Justice of the European Union (CJEU) has as yet made no reference in its growing case law on age discrimination in employment and occupation to the provisions of Article 25, choosing instead to refer to the guarantee of non-discrimination on the ground of age set out in Article 21.40 However, age discrimination in employment and occupation can have a negative impact on the rights of older people to enjoy a dignified and autonomous existence.41

37 For analysis of the concept of the ‘future elderly’, see DP Goldman et al, ‘Consequences of Health Trends and Medical Innovation for the Elderly of the Future’ (2005) Health Affairs, 26 September 2006, pp W5-R3–W5-R15. 38 Mordini has commented that the wording of Art 25 ‘rather parsimoniously’ rephrases that of Art 23 of the ESC: see E Mordini, Ageing and Invisibility (Amsterdam, IOS Press, 2010) 97. 39 In general, De Hert and Eugenio make the argument that the rights of older persons to social protection are an integral element of their fundamental rights taken as a whole: see (n 12). 40 Kücükdeveci (n 1) [22]. 41 For an analysis of how prohibiting age discrimination in the workplace helps to uphold the dignity and autonomy of older persons, see C O’Cinneide, Age Discrimination and European Law, Thematic Report of the European Network of Legal Experts in the Non-Discrimination Field (Brussels, European Commission/ MPG, 2005).

704

Colm O’Cinneide

Art 25 – The Rights of the Elderly

Furthermore, in his Opinion in the case of Coleman v Attridge Law, Maduro AG recognised the link that exists between discrimination in employment and occupation and individual dignity: he stated that EU anti-discrimination law is designed to ‘protect, in field of employment and occupation, people belonging to suspect classifications and to ensure that their dignity and autonomy is not compromised either by obvious and immediate or subtle and less obvious discrimination’.42 As such, a strong case can be made that the treatment of older workers in employment and occupation should be viewed as coming within the material scope of Article 25. In this and other respects, its provisions would appear to overlap with and complement the right to non-discrimination set out in Article 21.43

III. Specific Provisions The text of Article 25 commits the EU to respecting the rights of the elderly ‘to lead a 25.43 life of dignity and independence and to participate in social and cultural life’. It therefore defines these rights as consisting of three specific elements: a) the right to a dignified existence; b) the right to an independent and autonomous existence; and c) the right to participate in social and cultural life. All three elements can be regarded as being mutually dependant and inter-linked: respect for the human dignity of older persons entails recognition of their entitlement to lead an autonomous life and to participate in social and cultural life, and vice versa. The rights set out in Article 25 would appear to give rise to a mixture of both negative 25.44 and positive obligations. EU legislation, acts of the EU institutions or national measures which give effect to EU law should not subject older people to treatment which is contrary to human dignity, or which denies them their right to lead an autonomous existence, or which discriminates against them when it comes to their participation in social and cultural life. Similarly, Article 25 requires EU law (along with national implementing measures) to respect the rights of older persons to social protection and health care. These entitlements are a necessary corollary of the right of older persons to a dignified and autonomous existence: this ‘social’ dimension of the rights of the elderly is recognised by the provisions of Article 23 ESC and Articles 24 and 25 of the Community Charter, which are the ‘sources’ of Article 25 and therefore should be taken into account in interpreting its provisions. Older people may also be entitled to be protected against discrimination, exploitation and elder abuse by third parties in contexts where the behaviour of private actors is subject to regulation by the EU. The EU has at present limited competency when it comes to regulating the provi- 25.45 sion of health and social care services to the elderly. Similarly, EU law plays little role in protecting older persons against elder abuse and other forms of degrading treatment, or in ensuring that they are not arbitrarily or unjustifiably deprived of their autonomy and capacity to manage their own lives. However, as discussed in section A above,

42

Case C-303/06 Coleman v Attridge Law [2008] ECR I-5603. In Mangold (n 1), the CJEU held that the prohibition on age discrimination in employment and occupation set out in Directive 2000/78/EC constituted an ‘aspect’ of a more general principle of equal treatment. See also the subsequent decision of the CJEU in Kücükdeveci (n 1). 43

Colm O’Cinneide

705

Part I – Commentary on the Articles of the EU Charter

various aspects of EU law can nevertheless affect the lives of older persons in a variety of different ways, and the provisions of Article 25 will come into play whenever EU law or national implementing legislation impacts upon the rights of older people to be protected against discrimination, exploitation and abuse, to enjoy access to adequate social protection and health care, and to participate with dignity and autonomy in the wider social and cultural life of their society.

IV. Limitations and Derogations 25.46 As discussed above, the explanation of Article 52(5) set out in [2007] OJ C303 includes Article 25 as an example of a ‘principle’. As such, according to the provisions of Article 52(5), the provisions of Article 25 will be ‘judicially cognisable only in the interpretation of such acts and in the ruling on their legality.’ This will limit the legal impact of Article 25, as it means that its provisions cannot be relied upon to establish the existence of subjective individual rights. However, legislative and executive acts which are incompatible with the principle of respect for the rights of the elderly will not be lawful. In particular, acts which infringe upon the human dignity of older persons will be contrary to the Charter by analogy with the requirements of Article 1 of the Charter, Article 3 ECHR and provisions of national constitutions such as Article 1 of the German Basic Law which provide absolute protection for the right to human dignity. Measures which restrict or fail to give effect on the right of older people to live an independent life and to participate in social and cultural life will presumably have to be shown to be objectively justified on the basis of a proportionality analysis.44

V. Remedies 25.47 If Article 25 is interpreted as setting out a principle of EU law in line with the provisions of Article 52(5), then the appropriate remedy for a failure to respect the rights of the elderly will usually take the form of a finding by a European or national court that the legislative or executive act in question is unlawful. This in turn will lead to the measure in question being disapplied or set aside. Alternatively, in situations where appropriate measures have not been taken to give effect to the right of the elderly, then the courts may be prepared to order that remedial measures be taken within the framework of existing EU legislation in line with the judgment of the CJEU in the case of Test-Achats.45

E. Evaluation 25.48

The inclusion of Article 25 in the Charter represents an important innovation in the field of EU human rights law. The provisions of Article 25 draw upon Article 23 ESC 44 The provisions of Art 23 ESC require that ‘appropriate measures’ to be taken to give effect to the rights of elderly persons to social protection. 45 Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL v Conseil des ministres [2011] 2 CMLR 38.

706

Colm O’Cinneide

Art 25 – The Rights of the Elderly

and Articles 24 and 25 of the Community Charter in implicitly recognising the vulnerable position of many older people and committing the EU to respecting their rights to a dignified and independent life and to participate in the social and cultural life of their communities. Article 25 thus reflects an emerging international consensus that the rights of older persons should be explicitly recognised in law. It affirms the importance and specific nature of these rights, and establishes that respect for these rights constitutes a fundamental principle of EU law. However, the extent to which EU law has a direct impact upon the lives of older persons is limited. Furthermore, the scope and content of Article 25 have yet to be clarified. There is very little international human rights jurisprudence defining what is required to give effect to the rights of the elderly, with the exception of the case law of the European Committee on Social Rights in relation to Article 23 ESC. As yet, the CJEU has made no reference to Article 25, even in the context of its extensive and rigorous age discrimination jurisprudence. Article 25 also rarely features in academic commentary on the Charter. As a result, it is difficult to identify exactly how the provisions of Article 25 may impact on the development of EU law. However, the manner in which Article 25 provides wide-ranging protection for the rights of older people means that its provisions may yet come to exert a significant influence over the evolution of specific aspects of EU law. In particular, its provisions are likely to loom large in situations where EU law affects the provision of medical and social services to older people, plays a role in regulating their access to the labour market, impacts upon their freedom of movement, or is designed to vindicate their right to be protected against discrimination, exploitation or abuse. For example, EU law on competition, public procurement and the free movement of services must respect these rights, and they may be taken into account when measures such as Directive 2011/24/EU on the application of patients’ rights in cross-border healthcare are interpreted and given effect by EU and national courts.46 Even though the CJEU has not as yet made reference to Article 25 in its case law on the age discrimination provisions of Directive 2000/7/EC, its provisions would also appear to be relevant in this context. Article 25 may also need to be taken into account when it comes to the application of EU rules that relate to the free movement of persons, in particular in relation to the rights of dependent family members, and to the protection of victims of crime. In general, Article 25 commits the EU to respecting the rights of older persons, and its provisions should be taken into account when it comes to the interpretation and application of existing EU law and the drafting of new European legislation. In the future, it has the potential to play a significant role in shaping the evolution of EU law and policy in the field of social security, anti-discrimination law, the regulation of health care and other elements of the EU’s developing social agenda. Its provisions should also be taken into account in the development of relevant technical standards through the

46 States may choose to invoke the provisions of Art 25 in order to justify derogations from the requirements of EU law relating to public procurement or the free movement of services, in order to protect their existing systems of providing medical and social care to older persons.

Colm O’Cinneide

707

25.49

25.50

25.51

25.52

Part I – Commentary on the Articles of the EU Charter

Open Method of Co-ordination,47 the framing of EU action plans such as the European Innovation Partnership on Active and Healthy Ageing,48 and the framing of other ‘soft law’ standards at the EU level. 25.53 Finally, it is worth noting that EU measures that relate to economic affairs and the integration of the internal market should also comply with the provisions of Article 25. However, in this context, EU legislation and policies which encourage member states to adopt austerity measures may not be fully compliant with the requirements of Article 25, insofar as they have the effect of limiting access by older people to the medical and social care that they require to enjoy a dignified and autonomous existence.49 This may prove to be an early test of the Charter and of the scope and status of Article 25.

47 O De Schutter, ‘The Implementation of Fundamental Right Through the Open Method of Co-ordination’, in O De Schutter and S Deakin (eds), Social Rights and Market Forces: Is the Open Coordination of Employment and Social Policies the Future of Social Europe? (Brussels, Bruylant, 2005) 279–342. 48 See Communication of the European Commission, Taking Forward The Strategic Implementation Plan Of The European Innovation Partnership On Active And Healthy Ageing COM (2012) 83 final, Brussels. 49 For a Europe-wide overview of the social effects of austerity, see Council of the European Union, 2010 Update of the Joint Assessment by the SPC and the European Commission of the Social Impact of the Economic Crisis and Policy Responses (Brussels, 26 November 2010) (16905/10), available at http://register.consilium. europa.eu/pdf/en/10/st16/st16905.en10.pdf. For a specific analysis of how austerity policies are having a negative impact on access to health care, see A Kentikelenis et al, ‘Health Effects of Financial Crisis: Omens of a Greek Tragedy’ (2011) 378 (9801) The Lancet 1457–58.

708

Colm O’Cinneide

Article 26 Article 26 Integration of Persons with Disabilities The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.

Text of Explanatory Note on Article 26 The principle set out in this Article is based on Article 15 of the European Social Charter and also draws on point 26 of the Community Charter of the Fundamental Social Rights of Workers.

Select Bibliography L Clements, ‘Disability, dignity and the cri de coeur’ (2011) 6 European Human Rights Law Review 675. C Cojocarlu, ‘Handicapping rules: the overly restrictive application of admissibility criteria by the European Court of Human Rights to complaints concerning disabled persons’ (2011) 6 European Human Rights Law Review 686. Council of Europe, Recommendation of the Committee of Ministers to member states on the Council of Europe ‘Action Plan to promote the rights and full participation of people with disabilities in society: improving the quality of life of people with disabilities in Europe 2006–2015’, Rec (2006) 5. ——, Recommendation of the Committee of Ministers to member states on the participation of persons with disabilities in political and public life, Rec (2011) 14. European Commission, ‘Definitions of disability in Europe: A comparative analysis’ (2002). European Commission Communication, ‘Europe Disability Strategy 2010–20: A Renewed Commitment to a Barrier-Free Europe’ COM (2010) 636 final. European Union Agency for Fundamental Rights (FRA), ‘The right to political participation of persons with mental health problems and persons with intellectual disabilities’ October 2010. T Hammarberg, ‘Disability rights: from charity to equality’ (2011) 6 European Human Rights Law Review 638. F Mégret, ‘The Disabilities Convention: Towards a Holistic Conception of Rights’ (2008) 12(2) International Journal of Human Rights 261. C McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19(4) European Journal of International Law 655. C O’Brien, ‘Confronting the care penalty: the case for extending reasonable adjustment rights along the disability/care continuum’ (2012) 34(1) Journal of Social Welfare and Family Law 5. ——, ‘Equality’s False Summits: New Varieties of Disability Discrimination, “Excessive” Equal Treatment and Economically Constricted Horizons’ (2011) 36(1) European Law Review 26. L Waddington, ‘The Internal Market and Disability Accessibility: Using EC Law to Establish an Internal Market in Disability Accessible Goods and Services’, Maastricht Working Papers (2008).

Part I – Commentary on the Articles of the EU Charter

A. Field of Application of Article 26 26.01 The declaratory tone of this provision—for recognition and respect—suggests that it creates more an informative principle than actionable right. A right to benefit from measures ‘designed to ensure … independence, social and occupational integration and participation in the life of the community’ may be a right to benefit from whichever measures exist, but not necessarily a right to the creation of such measures where none exist. As the Union is the body bound to recognise and respect such a right to benefit, this provision may indicate an avenue of action against Union institutions where Union action has interfered with a disabled person’s ability to avail themselves of national measures. Article 26 may thus be subject to a narrow interpretation as a rule of noninterference, binding only the Union, precluding its preventing an individual from benefitting from national integration measures. 26.02 A more expansive reading could style the Union’s recognition and respect as including enforcement at a domestic level, and the right as going beyond non-interference to include a positive right to such measures. This may seem an extravagant interpretation, but it would accord with the values and principles enshrined in the Treaties and with the Union’s obligations under international law, including the UN Convention on the Rights of Persons with Disabilities (explored further in section C)—to which the Union is a signatory. The potential of Article 26 to increase the disability related activities of the Union and interventions of the ECJ, while ostensibly staying within Union competence,1 may lie in using the provision as an interpretative tool for the UNCRPD, which is now part of Union law. 26.03 Pre-existing Union competence relating to Article 26 CFR includes a general interest in non-discrimination, expressed in Treaty affirmations—eg that the founding values of the Union include equality,2 and that the Union is committed to combatting discrimination,3 specifically including discrimination on the grounds of disability when defining and implementing Union policies and activities.4 Union institutions are empowered to take action to combat such discrimination ‘within the limits of the powers conferred upon them by the Union’.5 26.04 The Charter does not clearly alter the limits of those conferred powers for Union action in non-discrimination law, which currently operates in the economic sphere of the internal market—predominantly employment and occupation, the only area in which disability discrimination has been prohibited by Union secondary law.6 It is possible that the phrase ‘occupational integration’ may signify a commitment to something stronger and more positive than occupational non-discrimination, which could draw more attention to measures such as reasonable accommodation. ‘Integration’ in the context of disability may carry a similar transformative potential to European

1 Given the constraints of the Charter at Art 51(2): the Charter ‘does not establish any new power or task for the Union, or modify powers and tasks defined by the Treaties’. 2 TEU Art 2. 3 TEU Art 3(3). 4 TFEU Art 10. 5 TFEU Art 19(1). 6 Directive 2000/78 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16.

710

Charlotte O’Brien

Art 26 – Integration of Persons with Disabilities

integration—albeit potential to create a more inclusive and unified society rather than a single market. While European integration involves parties sacrificing some degree of sovereign power to create a stronger ‘other’ polity, the integration of disabled persons is about recognising power imbalances and addressing historical disadvantage and disempowerment attached to disability. In terms of transforming social structures, integration could open the way for 26.05 thinking more creatively about accommodating measures beyond the workplace that contribute to occupational integration—such as transport, unemployment assistance and banking services—so ostensibly connected with the limited area of conferred competence. Such extension might be modelled upon the reach of measures dealing with ‘accessibility’.7 The Appendix to Annex II to Council Decision (2010/48/EC) ‘concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities’ lists the many and varied Union legal instruments that incorporate some reference to accessibility—albeit usually briefly and tangentially.8 Example areas of such provisions include transport,9 communication10 and public procurement.11 A similarly thematically broad approach to discrimination as that taken with acces- 26.06 sibility might strengthen support for the currently stymied proposal to extend the non-discrimination rights outlined in the Framework Directive beyond the sphere of employment and occupation, to cover goods and services,12 bringing disability (and age, religion and sexual orientation) discrimination protection more in line with that offered on the grounds of sex13 and race.14 Throughout Article 26, the emphasis on integration offers a different approach to that 26.07 adopted in the context of non-discrimination, through a more positive construction of

7

[2010] OJ L23/35. [2010] OJ L23/57–60. 9 Eg Directive 2003/24/EC amending Council Directive 98/18/EC on safety rules and standards for passenger ships ([2003] OJ L123/18); Directive 2007/46/EC establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive) ([2007] OJ L263/1); Commission Decision 2008/164/EC concerning the technical specification of interoperability relating to ‘persons with reduced mobility’ in the trans-European conventional and high-speed rail system ([2008] OJ L64/72). 10 Directive 1999/5/EC on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity ([1999] OJ L91/10); Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) ([2002] OJ L108/51). 11 Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts ([2004] OJ L134/114); Directive 2007/66/EC amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts ([2007] OJ L335/31). 12 Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation COM (2008) 426 final. Indeed, stronger support may impart the necessary impulse to free the proposal from the Council deadlock in which it has been caught since the European Parliament adopted a text in 2009—European Parliament P6 TA (2009) 0211 ‘legislative resolution of 2 April 2009 on the proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation’ 2 April 2009. 13 Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services [2004] OJ L373. 14 Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180. 8

Charlotte O’Brien

711

Part I – Commentary on the Articles of the EU Charter

equality rights, such as that adopted in parts of the UNCRPD.15 Integration may have more in common with the Union value of ‘respect for human dignity’,16 and the commitment to combat social exclusion.17 There are no pre-existing general provisions in EU law on the integration of persons with disabilities; the reference to social integration and participation in life of the community may imply an ambition towards broader social objectives than have yet been adopted, or it may be a deliberately generic and abstract principle of non-interference.

B. Interrelationship of Article 26 with Other Provisions of the Charter 26.08 Perhaps the most obviously connected provision, given the Union’s field of action regarding disability, is Article 21, on non-discrimination. It lists example grounds on which ‘any’ discrimination shall be prohibited, of which disability is one. However, for the purposes of defining Article 26, the rather wide-reaching formulation of Article 21 is unlikely to take us further than consideration of the EU’s pre-existing non-discrimination provisions. The text of explanations for Article 21 notes that this provision ‘draws on Article 13 of the EC Treaty, Article 14 of the ECHR and Article 11 of the Convention on Human Rights and Biomedicine as regards genetic heritage’, also noting that Article 21 must apply in compliance with Article 14 ECHR—insofar as the rights correspond. As explored below in section C, Article 14 ECHR is not an autonomous right and is engaged only when another element of the ECHR is at issue. Article 13 EC—now Article 19 TFEU—allows the Council to take action to combat discrimination, but unanimity, and consent of the European Parliament are required, and such action should not prejudice other Treaty provisions and must fall ‘within the limits of the powers conferred by them upon the Union’. 26.09 Two points are worth making here—first that despite suggestions that Article 21 might underline the ‘constitutional status’ of the equality principle,18 and so perhaps the status of relevant directives as between private parties,19 it is not obvious that the Charter itself elevates laws dealing with the equality/non-discrimination principle beyond less constitutional subject matter, given the sources drawn upon and the limits there outlined. Secondly, the fact that such avenues of action as are open in Article 19 TFEU is no guarantee that they will be utilised. The tortuous journey followed by the proposal for a goods and services framework equality Directive20 demonstrates the challenges posed by the procedure—unanimity being problematic and equality being controversial, especially

15 F Mégret, ‘The Disabilities Convention: Towards a Holistic Conception of Rights’ (2008) 12 (2) International Journal of Human Rights 261. 16 TEU Art 2. 17 TEU Art 3(3). 18 D Schiek, ‘The ECJ Decision in Mangold: A Further Twist on Effects of Directives and Constitutional Relevance of Community Equality Legislation’ (2006) 35 Industrial Law Journal 329; A Wiesbrock, ‘Case Note—Case C-555/07 Kücükdeveci’ [2010] 11(5) German Law Journal 539. 19 Case C-555/07 Kücükdeveci v Swedex [2010] ECR I-00365. 20 Above, n 12, progress can be charted in the Council of ministers of the EU document register: http:// goo.gl/5Xz1a.

712

Charlotte O’Brien

Art 26 – Integration of Persons with Disabilities

with regard to disability and adjustment. It seems unlikely that Article 19 TFEU will be a springboard for much by way of legislative action in the near future. The UN Convention on the Rights of Persons with Disabilities can be used as a cipher to 26.10 indicate which other rights in the Charter are connected to Article 26, as the Convention provides a detailed manifesto for the integration of persons with disabilities,21 comprised of human rights that echo the formulations used in other instruments. Indeed, the very ‘purpose’ of the Convention, as defined in Article 1, is to offer a disability specific perspective on all human rights—or ‘to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity’. Even before looking any further into the Convention a clear connection with the concept of dignity already emerges—underlined by the first of the ‘general principles’ of the Convention in Article 3: ‘Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons’. Mapping this back onto the Charter it would seem that Article 26 must be connected 26.11 to Article 1, which states that dignity is ‘inviolable’ and ‘must be respected and protected’. Indeed, the Commission cites Article 1 alongside Articles 26 and 21 as indicative of a strong mandate to ‘improve the social and economic situation of persons with disabilities’.22 However, in neither the Charter nor the Convention is dignity clearly defined, and there is the risk that it can mean both everything and nothing—Clements notes the ‘Delphic’ tendency of judgments that fail to define ‘indignity’,23 while dignity has been variously slammed as a ‘useless’24 and ‘stupid’25 concept. Hence Schopenhauer’s criticism, cited by Rosen, that dignity is the ‘shibboleth of all empty headed moralists’,26 a feel-good meme so all-encompassing as to be too easily malleable; for instance, arguments both for and against a right to die employ dignity-based reasoning.27 But dignity is clearly playing an increasing role in human rights protection,28 and its 26.12 prominent role in the Charter as a stand-alone right, and an overlapping one with articles such as Article 26 mean that we should try to excavate some meaningful guidance from it. The Convention’s slightly longer provision may give some definitional content to the dignity principle—suggesting that autonomy and independence be prioritised, which rather chimes with the wording of Article 26 of the CFR. It also creates some content of a concept of indignity—conditions which are de-autonomising or disempowering, and which promote dependence. This reading could be congruent with the social

21 The preamble expresses concern that ‘persons with disabilities continue to face barriers in their participation as equal members of society’. 22 Commission Communication, ‘Europe Disability Strategy 2010-20: A Renewed Commitment to a Barrier-Free Europe’ COM (2010) 636 final. 23 L Clements, ‘Disability, dignity and the cri de coeur’ (2011) 6 European Human Rights Law Review 675. 24 R Macklin, ‘Dignity is a useless concept’ Editorial (2003) 327 British Medical Journal 1419. 25 S Pinker, ‘The Stupidity of Dignity’ The New Republic, 28 May, 2008. 26 M Rosen, Dignity: Its History and Meaning (Harvard, Harvard University Press, 2012). 27 Eg JD Velleman, ‘Against the Right to Die’ (1992) 17 (6) Journal of Medicine and Philosophy 665; R Cohen-Almagor, ‘The Right to Die with Dignity: An Argument in Ethics and Law’ (2008) Health Law and Policy 2. 28 As noted by C McCrudden, who refers in particular to its judicial uses: ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19(4) European Journal of International Law 655.

Charlotte O’Brien

713

Part I – Commentary on the Articles of the EU Charter

model of disability,29 tying indignity to disabling environments and conditions, given the assertion of the European Parliament that ‘the EU approach acknowledges disability as a social construction’.30 26.13 Where autonomy and dignity crop up in human rights litigation they are typically invoked through the right to private and family life—ie Article 8 ECHR.31 So Article 7 CFR, the Charter’s expression of the right to respect for private and family life, is also connected to Article 26 CFR. Privacy is key to questions of dignity, for example in the issue of personal care and hygiene,32 while the family is a fundamental vehicle for integration into society. Both have been jeaopardised by methods of social/physical exclusion historically applied to persons with disabilities. Institutionalisation and poor care arrangements can result in privacy being less valued, can sever family ties, and prevent their formation. In precluding relationships that could lead to marriage/ procreation, it is not only Article 7 CFR potentially being infringed, but also Article 9 CFR, on the right to marry and found a family. Even more intrusive and sinister violations of that right are posed by sterilisation practices, to which people with disabilities are historically more vulnerable, the implications of which are explored in more detail in section C. 26.14 A key mechanism for promoting dignity, social inclusion and independent living is the provision of welfare benefits and social care support, since such provision avoids institutionalisation and/or poverty. People with disabilities are more likely to be in receipt of some sort of welfare provision such as income replacement benefits, benefits to account for extra costs created by disability, care benefits and social services. Therefore Article 34 on social security and social assistance is linked to Article 26 CFR, even though the former’s list of social security risks does not include disability. Article 34 is essentially another ‘recognition and respect’ article, so might only offer protection from the Union’s disregard for nationally provided rights. However, even that narrow reading could prove significant should Union policies encouraging austerity and neoliberal-leaning active labour market policies serve to threaten welfare provision for people with disabilities, as claimed by the Spanish Committee of Representatives of People with Disabilities, quoted in the European Parliament.33 The disproportionate impact of restrictive welfare policies upon disabled persons is explored in more detail in section D.III. Social security coordination also makes it into Article 34, in subsection (2), stat26.15 ing that ‘everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Community law and national laws and practices’. This is particularly pertinent to Article 26 CFR since it describes an area in which the Union has quite clear competence—welfare in the context of cross-border mobility—and one in which persons with disabilities are still

29 As outlined in M Oliver, Understanding Disability: From Theory To Practice (Basingstoke, Macmillan, 1996). 30 Research Report for the European Parliament, DG Internal Policies, ‘The Mobility and Integration of People with Disabilities into the Labour Market’ IP/A/EMPL/ST/2009-09 October 2010, available at www.iza. org/en/webcontent/publications/reports/report_pdfs/iza_report_29.pdf, p 15. 31 R (Burke) v General Medical Council (GMC) [2005] EWCA Civ 1003 [35]; R (on the application of McDonald) v Kensington and Chelsea RLBC [2011] UKSC 33; Napier v Scottish Ministers [2002] UKHRR 308. 32 As in the McDonald and Napier cases, ibid. 33 Parliamentary questions 3 December 2012 E-010988-12, Raül Romeva I Rueda.

714

Charlotte O’Brien

Art 26 – Integration of Persons with Disabilities

at a clear disadvantage, especially if they are unable to participate in ‘the normal labour market’.34 Section D.I considers in more detail the tendency of social security coordination measures to exclude persons with disabilities from fully realising mobility rights. Dignity also connects Article 26 to Article 25 on the rights of the elderly—‘The 26.16 Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life’. Article 25 echoes Article 26 in the non-interference formulation—recognition and respect—and the emphasis upon social inclusion through participation and independence. Moreover, there are evident overlaps between the categories ‘elderly’ and ‘persons with disabilities’; age can cause the majority of citizens to experience disabling conditions. Indeed, it has been argued that the categories of disabled/non-disabled are artificially discrete, since disability is an experience in and out of which many of us will dip throughout the life course.35 Those of working age on incapacity benefits (which may be related to disability) tend to be, at least in the UK, disproportionately at the upper end of working age,36 while sickness and disability are likely to increase post-working age. Given the similarity of the provisions, the differences between the explanatory notes 26.17 for Articles 25 and 26 is interesting. The Article 25 notes state that ‘Of course, participation in social and cultural life also covers participation in political life.’ But this is not mentioned in the Article 26 notes, even though many persons with disabilities are indirectly politically excluded, or even directly and explicitly excluded (eg where mental capacity may be at issue). In a debate of the Human Rights Council on the Rights of Persons with Disabilities, the High Commissioner for Human Rights argued that ‘persons with disabilities continued to encounter a number of legal, physical and communication barriers in the exercise of their rights under Article 29 of the CRPD’37—which requires state parties to guarantee equal participation for people with disabilities in political and public life. The different phrasing of the Articles 25 and 26 notes could be problematic— not least since the exclusionary effects of age are frequently connected to disability related questions of mental capacity in view of an ageing population more susceptible to dementia related conditions.38 The question of capacity leads us to connections between Article 26 and political 26.18 Charter rights—Articles 39 and 40 rights to vote and stand in European Parliament elections and municipal elections. But these European political rights can and are circumscribed on a fragmented, national basis, typically following the rules for national

34

Case C-456/02 Trojani [2004] ECR I-7573 [24]. A Silvers, ‘On the possibility and desirability of constructing a neutral conception of disability’ (2003) 24(6) Theoretical Medicine & Bioethics 471; C O’Brien, ‘Confronting the care penalty: the case for extending reasonable adjustment rights along the disability/care continuum’ (2012) 34(1) Journal of Social Welfare and Family Law 5. 36 ‘… nearly 49 per cent of contributory only ESA customers in the WRAG are aged 50 to 64’: UK Department for Work and Pensions, Equality Impact Assessment ‘Time limiting contributory Employment and Support Allowance to one year for those in the work-related activity group’ October 2011, para 32. 37 Navi Pillay in the Fourth annual interactive debate of the Human Rights Council on the Rights of Persons with Disabilities Interactive debate on participation of persons with disabilities in political and public life 1 March 2012, Office of the High Commissioner for Human Rights www.ohchr.org/EN/Issues/Disability/ Pages/politicalpubliclife.aspx. 38 ‘The number of people suffering from dementia in Europe is estimated to be 9.9 million’, European Parliament resolution of 19 January 2011 on a European initiative on Alzheimer’s disease and other dementias (2010/2084(INI)) (B). 35

Charlotte O’Brien

715

Part I – Commentary on the Articles of the EU Charter

enfranchisement, such as in Lithuania where a court order declaring an individual incapable renders them ineligible to vote in national, municipal or European elections.39 26.19 The European Union Agency for Fundamental Rights has documented the variety of approaches taken in different Member States towards political participation in the context of mental illness and intellectual disability, noting that only a minority of Member States have lifted all restrictions and opted for allowing full participation—in some cases only very recently (the Netherlands in 2008,40 the UK in 200641). A larger number of Member States provide for ‘limited’ political participation, while a majority of Member States directly link and limit political participation on the grounds of legal capacity. Examples include Hungarian provisions in the constitution42 for an ‘explicit exception from the universal right to vote ... Persons placed under full or partial guardianship, even if in an unrelated area (such as parental rights, or consent to medical treatment), are excluded from political participation.’43 In Germany, the Federal Electoral Law44 automatically disenfranchises persons whose affairs are managed by a custodian.45 This range of approaches reveals a significant contradiction in the patchwork of 26.20 instruments relating to disability and social inclusion. O’Mahony46 has pointed to the tensions between the Code of Good Practice in Electoral Matters 2002, in which mental incapacity features in the same exclusionary clause as criminal conviction, and the UN Convention on the Rights of Persons with Disabilities, which focuses on empowerment— a tension not resolved in the CFR where reference to political inclusion is conspicuously absent in Article 26. 26.21 A cognate right to enfranchisement is that of access to justice, as both establish and recognise legal agency, work to give individuals a ‘voice’ within their legal and political systems, and create a degree of accountability on the part of state authorities. Both are related to what Thomas Hammarberg terms the move from viewing disabled people as objects of charity, to active subjects.47 In order to benefit from ‘measures designed to ensure independence’ and to enjoy full participation in the life of the community, it is submitted persons with disabilities need to have rights as legal actors—not least to challenge any obstacles to the utilisation of such measures. Hence they must be able to benefit from Article 47 of the Charter—the right to an effective remedy and to a fair trial. This connection is underlined by Article 13 of the CRPD on ‘access to justice for persons with disabilities on an equal basis with others’, which notes the need for procedural and age appropriate accommodations to ensure persons with disabilities assume an ‘effective role as direct and indirect participants … in all legal proceedings.’

39 European Union Agency for Fundamental Rights (FRA) ‘The right to political participation of persons with mental health problems and persons with intellectual disabilities’ October 2010, 15. 40 Art 54(2)(b) repealed by constitutional amendment. 41 Electoral Administration Act 2006. 42 See Art 70(5) of the Constitution of Hungary. 43 FRA, above n 39, p 15. 44 See Art 13(2) of the Federal Electoral Law. 45 FRA, above n 39, p 15. 46 C O’Mahony, ‘Council of Europe Recommendation on the Political Participation of Persons with Disabilities’ Disability Law and Policy News (21 November 2011). 47 T Hammarberg, ‘Disability rights: from charity to equality’ (2011) 6 European Human Rights Law Review 638.

716

Charlotte O’Brien

Art 26 – Integration of Persons with Disabilities

The question of standing is crucial to accessing effective remedies, and Article 47 of 26.22 the CFR has been used in arguments for relaxing the strict approach taken to defining individual concern—the criterion required of private applicants in actions for annulment, actions for failure to act and actions for damages.48 The Court of Justice however, rejected the proposed liberalisation of the standing rules.49 The rather restrictive approach taken to individual concern is likely to be particularly problematic for people with disabilities, who may face considerable barriers to seeking their own remedies, and who may benefit from actions taken on their behalf. Cojocarlu50 has noted the problems faced by third party groups wishing to take action on behalf of persons with disabilities—especially mental disabilities—in the context of the standing rules in the ECtHR, pointing in particular to the difficulty some people have accessing courts in states where institutionalisation of the disabled is widely practiced. In many cases, as Cojocarlu points out, it is simply inaccurate to assume the existence of an ‘agent’—a supportive relative or guardian, who can take action, leaving individuals effectively unprotected unless NGOs were to be granted standing, either in a more systematic way, or by extending the ‘exceptions’ allowed ‘in the interests of human rights’ under Article 37(1) of the ECHR. Since no provisions of the CFR appear to correspond to this, it is arguable that the Court should have stronger regard for Article 47 CFR when deciding standing questions, especially in cases that trigger Article 26 due to the disabilities of persons concerned.

C. Sources of Article 26 Rights I. ECHR There are no disability-specific provisions in the European Convention on Human 26.23 Rights, or indeed provisions on social integration. The conceptually closest provision is the non-discrimination provision—Article 14—which provides that ‘the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’, disability constituting one such ‘other status’.51 Article 14 is clearly a parasitic provision, describing how other Convention rights should be protected, so is only engaged once another Convention right is at issue. The overlap between this 48 Case T-177/01 Jégo-Quéré & Cie SA v Commission of the European Communities [2002] ECR II-2365 [25]; Opinion of Advocate General Jacobs in Case C-50/00 P Unión de Pequeños Agricultores v Council of the European Union [2002] ECR I-6677 [2]. 49 See page 30 of the European Parliament and DG Internal Policies study on locus standi: ‘Standing up for your rights in Europe: A comparative study on legal standing (locus standi) before the EU and Member States’ Courts’ 2012, www.europarl.europa.eu/committees/fr/studiesdownload.html?languageDocument=EN &file=75651. 50 C Cojocarlu ‘Handicapping rules: the overly restrictive application of admissibility criteria by the European Court of Human Rights to complaints concerning disabled persons’ (2011) 6 European Human Rights Law Review 686. 51 J Stavert, ‘Case Comment: Glor v Switzerland: Article 14 ECHR, disability and non-discrimination’ (2010) 14(1) Edinburgh Law Review 141.

Charlotte O’Brien

717

Part I – Commentary on the Articles of the EU Charter

and Article 26 CFR may therefore be quite subtle—eg where accommodating measures exist that also play to a Convention right, such as Article 8 (given the links between independence and private life—see below), but to which persons with disabilities face particular obstacles. 26.24 The free-standing non-discrimination provision in Article 1, Protocol 12 of the ECHR may have more to offer in terms of interpreting Article 26 CFR. This provides for non-discrimination in ‘the enjoyment of any right set forth by law’. Again, disability is not specifically mentioned, but would constitute one ‘other status’. This provision has a wider scope than Article 14—any right set forth by law means not just Convention rights. It is however, still about the enjoyment of legal rights along non-discriminatory lines, so about the non-discriminatory public administration of the law, rather than a prohibition on general discriminatory treatment, a general positive right of reasonable adjustment or positive right of integration. Another limitation of the influence that Article 1, Protocol 12 can have over Article 26 CFR is its non-universal applicability. Seven EU Member States have signed and ratified the Protocol,52 12 have signed but not ratified,53 and eight, including the UK, have neither signed nor ratified it.54 It remains to be seen what status, if any, such non-universal protocols will have in EU law following the accession of the EU to the ECHR in its own right. The integration principle in Article 26 is closely related not only to discrimination 26.25 provisions, but also—especially considering the reference to independence—private life as in Article 8 ECHR. The particular relevance of Article 8 in a disability context has been explored, for instance, in cases dealing with decisions regarding social care provision—decisions that impact upon a person’s ability to live independently, to exercise autonomy, and to enjoy their private life with dignity. Clements has noted that there seems to be a difference in weight attributed to Article 8 in cases where some degree of dependence is created by disability, as compared to its having been created by imprisonment, suggesting that greater obligations are recognised in the latter.55 This argument is fuelled by the different outcomes of the UK cases McDonald56 and Napier.57 In McDonald, the claimant had had assistance to help her to get to the toilet during the night withdrawn; the council had decided that provision of incontinence pads was a better-value option. This was problematic for a number of reasons—not least that Ms McDonald was not actually incontinent, but needed physical assistance to mobilise—and so the decision created ‘enforced incontinence’. The Supreme Court found in favour of the council, but Baroness Hale in a strong dissenting opinion noted that a civilised society should not ‘oblige people who can control their bodily functions to behave as if they cannot do so, unless they themselves find this the more convenient course’—adding that the UK was ‘I still believe, a civilized society’.58 The majority disagreed, finding that either Article 8 had not been engaged, or if it had, any interference

52

Cyprus, Finland, Luxembourg, Netherlands, Romania, Slovenia, Spain. Austria, Belgium, Czech Republic, Estonia, Germany, Greece, Hungary, Ireland, Italy, Latvia, Portugal, Slovakia. 54 Bulgaria, Denmark, France, Lithuania, Malta, Poland, Sweden, UK. 55 Clements, above, n 23. 56 R (on the application of McDonald) v Kensington and Chelsea RLBC [2011] UKSC 33. 57 Napier v Scottish Ministers [2002] UKHRR 308. 58 Above, n 56, 79. 53

718

Charlotte O’Brien

Art 26 – Integration of Persons with Disabilities

was ‘clearly’ justified under Article 8(2), as the council’s decision was a ‘proportionate means of reaching a legitimate aim’,59 with Lord Brown expressing agreement with the reasoning of Rix LJ in the Court of Appeal. Rix LJ’s reasons for finding Article 8 not to be engaged revolve around the motivation and good faith of the council—an approach that does not find clear support in the ECtHR; Rix LJ noted that any error on the part of the council ‘was not born of any lack of respect for her dignity, but of a concern, even if at that time wrongly executed, to perform the difficult task of balancing its desire to assist Ms McDonald with its responsibilities to all its clients within the limited resources available to it in its budget.’60 Budgetary concerns are of course set to get stronger with Europe-wide public spending restraint, so that potentially pricey human rights concerns, including those falling within Article 26 CFR, may be increasingly outweighed. The judicial inclination to empathise with the council’s difficulty—and suggestion 26.26 that Article 8 can only be engaged through an intentional want of respect for the rights contained within it, might contrast with the attitude taken in Napier. There, a prisoner in a prison where not all cells were fitted with flush toilets, complained about the practice of expecting prisoners to urinate in a bottle and defecate in a chamber pot, and then emptying them (‘slopping out’). In the Scottish Outer House Court of Session, the judge found that these conditions diminished his human dignity sufficiently seriously to infringe Article 8.61 Clements has suggested that the different approaches cannot simply be explained through reference to the imposition of a greater set of obligations to detainees, suggesting that both were effectively detained, albeit one ‘through misdemeanour, the other through age’,62 and points to a way of thinking that reduces the threshold for dignity violations for disabled people—who, ‘unlike able bodied people (for whom access to a flush toilet is an essential “dignity” requirement) … are different and untroubled by pads and special sheeting’.63 The combination of different duties of care, and different standards of dignity results 26.27 in not only in a greater negative prohibition on not interfering more than appropriate with Article 8 rights, but also a certain fatalism, accepting disability as a given. This entails adopting a medical model since the courts do not treat society as responsible for disability, (though in McDonald we see a classic case of the social construction of disability through enforced incontinence), and so are wary of imposing positive obligations to mitigate the disability. Although Article 8 feeds into a construction of independent living, the concept at the centre of Article 26, it is not clear what effects that influence is likely to exert, given apparent expectations that some degrees of dignity and independence are sacrificed just as a fact of disability. As issues of access to justice overlap with the promotion of integration of persons 26.28 with disabilities, Article 6 ECHR must be engaged in any discussion of Article 26 CFR. A recent case in the European Court of Human Rights demonstrates that Article 6 is a crucial gateway right; in Gauer et autres v France,64 failing to file an application within a

59

Ibid, 21. R (on the application of Elaine McDonald) v Royal Borough of Kensington and Chelsea [2010] EWCA Civ 1109 [66]. 61 Above, n 57. 62 Above, n 23, 685. 63 Ibid, 680. 64 Gauer et autres v France App no 61521/08 (23 October 2012). 60

Charlotte O’Brien

719

Part I – Commentary on the Articles of the EU Charter

given time limit led to non-consideration of the human rights at issue—the case being declared inadmissible both domestically, and then at the ECtHR itself. The case involved allegations of forced sterilisation of persons with mental disabilities, during the investigation into which it was claimed that the alleged victims had not been represented, that no guardian was designated, and that a request to allow a third party advocacy group Association de Défense des Handicapés de l’Yonne to act on behalf of the plaintiffs was refused. An initial investigation concluded that there was to be no charge against the suspects because ‘it is extremely difficult for disabled citizens to parent’,65 and the relevant deadlines made the appeal against this outcome inadmissible. 26.29 This case also flags up another key convention right in the context of disability—the Article 12 ECHR right to marry and found a family—rights recognised as particularly vulnerable in the context of medical control of disability in the UNCRPD. Aspects of Articles 12 and 8 ECHR are combined in Article 23 CRPD, which specifically requires at (c) that ‘Persons with disabilities, including children, retain their fertility on an equal basis with others.’ An amicus brief submitted by national human rights institutions, drawing heavily upon the UNCRPD and raising the particular problems posed by sterilisation, concluded by stating that the Gauer case provided the ECtHR ‘with an opportunity to embed the human rights of persons with disabilities … within the system for human rights protection elaborated under the ECHR’.66 Notwithstanding the loss of this opportunity through a (possibly Article 6 engaging) time limit issue, the case does make clear the connections between full integration of persons with disabilities and obstacles to Article 12 rights. Another amicus brief,67 noted that sterilisation spoke to a widespread attitude regarding disabled women as unfit parents, attitudes which in turn limit the rights of women with disabilities ‘to experience sexuality, marriage and parenthood on an equal basis with others’.68 The brief also noted that ‘the vulnerability of women to forced sterilisation is heightened where they have a mental disability’.69 These factors are linked to Article 26 CFR, since the ability to found a family, and to establish relationships with partners and children is integral to a broader concept of social integration. Hence the CRPD preamble70 refers to the family as ‘the natural and fundamental group unit of society’ and declares that ‘persons with disabilities and their family members should receive the necessary protection and assistance to enable families to contribute towards the full and equal enjoyment of the rights of persons with disabilities’. In spite of the demise of official eugenics programmes, sterilisation of persons with 26.30 disabilities without consent continues to be a problem—such as the Spanish phenomenon of legal sterilisation of minors with severe disabilities.71 A recent UNHCR report

65 ECHR news 22 November 2011: ‘Case Gauer and others v. France (61521/08) forced sterilization of disabled citizens: communicated’ at http://echrnews.wordpress.com/tag/adhy/. 66 Amicus Brief regarding Application No 61521/08 Gauer & Others v France by European Group of National Human Rights Institutions, 16 August 2011, para 53. 67 Submitted jointly by the Center for Reproductive Rights, the European Disability Forum, Interrights, the International Disability Alliance and the Mental Disability Advocacy Center, 16 August 2011. 68 Ibid, para 36. 69 Ibid, para 25. 70 Recital (x). 71 Open Society Foundations, ‘Against Her Will: Forced and Coerced Sterilization of Women Wordwide’ (2011), 6.

720

Charlotte O’Brien

Art 26 – Integration of Persons with Disabilities

(2011) on forced sterilisation in Hungary, where typical targets have been racially determined, notes the tightening of conditions for sterilisation so that it shall only be carried out on health grounds ‘if other form of contraception is not possible or not applicable [for] health reasons, and the pregnancy would endanger the life, the physical integrity or the health of the woman, or the future child would probably be disabled.’72 This would likely mean a disproportionate targeting of disabled women, but also raises the questions of marginalising disabled children where parents are not themselves disabled— feeding into other influences upon Article 26 CFR such as instruments on rights of the child, explored below.

II. UN Treaties Clearly the most directly relevant ‘other’ instrument—European or otherwise—to 26.31 Article 26 CFR must be the relatively new UN Convention on the Rights of Persons with Disabilities, which in itself could be read as a much more extensive extrapolation of the integration concept briefly encompassed in Article 26 CFR. It is here suggested that there are two major ways in which the CRPD is a ‘source’ for Article 26—first in interpreting its terms, and secondly providing a key or cipher, as noted above in section B, to the other related rights within the Charter into which a disability-related reading should also be incorporated. For defining the terms of Article 26, it is worth initially flagging up the ‘definition’ 26.32 offered of disability in Article 1 CRPD—that ‘persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.’ This is a sort of hybrid model, utilising the medical notion of ‘impairment’ while invoking the social model of disability by locating the disadvantages of such impairments within barriers in society. It possibly offers a more pragmatic option than a full-throated social model, smuggling some aspects of the social model into anti-discrimination and social protection regimes that have been hitherto dominated by medicalised thinking about disability. The process of identifying the beneficiaries of certain rights has long relied upon the identification of impairment, which is administratively easier than identifying those who face societal barriers. The CRPD does not suggest that any different approach would be necessary to identify the beneficiaries of Article 26 CFR. But it does require taking a rather broader approach to the question of barriers. Looking to the other terms in Article 26 CFR, we might consult a list of Union 26.33 instruments described as ‘in the field of independent living and social inclusion, work and employment’ to get a feel for the Union’s definitions of independent living and social inclusion. This list follows that earlier mentioned of instruments referencing ‘accessibility’, and is contained in the Appendix to Annex II of Council Decision (2010/48/EC) ‘concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities’. At the top of the list,

72 UNHCR, ‘Hungary: Reports of the forced sterilisation of women 2000-2011’ www.unhcr.org/refworld/ country,,,,HUN,,4f9695202,0.html.

Charlotte O’Brien

721

Part I – Commentary on the Articles of the EU Charter

unsurprisingly, is Directive 2000/78, but after that it seems clear that the instruments are not at all focused upon independent living or social inclusion, instead containing provisions distantly connected with those concepts, since the instruments mostly deal with VAT, customs duty, and other taxation.73 For example, Directive 2003/96 appears to be listed because Article 5 allows for differentiated rates of taxation under a number of circumstances, one of which is for a set of prescribed ‘uses’: ‘local public passenger transport (including taxis), waste collection, armed forces and public administration, disabled people, ambulances.’ 26.34 A more helpful source for defining independence, integration and participation may be found in the preamble outlining the rationale of the CRPD. The promotion of ‘the full enjoyment by persons with disabilities of their human rights and fundamental freedoms and of full participation by persons with disabilities’ is expected to result in ‘their enhanced sense of belonging and in significant advances in the human, social and economic development of society and the eradication of poverty’.74 In order to enable persons with disabilities ‘to fully enjoy all human rights and fundamental freedoms’, disabled people must have access to the ‘physical, social, economic and cultural environment, to health and education and to information and communication’,75 while social integration is clearly linked to social inclusion, ie the exclusionary effects of poverty, since the CRPD refers to ‘the critical need to address the negative impact of poverty on persons with disabilities’.76 26.35 Article 19 on ‘living independently and being included in the community’ offers some insight into what might be meant by the Article 26 CFR references to ‘independence … and participation in the life of the community’. Article 19 provides that ‘States Parties … recognize the equal right of all persons with disabilities to live in the community, with choices equal to others’ and so they shall ‘take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community’, and then gives three specific instances of what this duty includes—ensuring choice over place of residence and living arrangements; access to ‘in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community’; and equal provision of community services and facilities. 26.36 This could be read as a list of narrow requirements precluding forced institutionalisation, requiring some degree of social service provision where deemed ‘necessary’, and prohibiting discriminatory service provision. But it could create stronger, positive duties— the choice of where to live could include rights to a range of suitably adapted social housing, whereas currently, even in states where institutionalisation is less of an issue,

73 Eg Commission Regulation (EEC) 2289/83 laying down provisions for the implementation of Articles 70 to 78 of Council Regulation (EEC) No 918/83 establishing a Community system of duty-free arrangements [1983] OJ L220/15; Council Directive 83/181/EEC determining the scope of Article 14(1)(d) of Directive 77/388/EEC as regards exemption from value added tax on the final importation of certain goods [1983] OJ L105/38; Council Regulation (EEC) 918/83 setting up a Community system of reliefs from customs duty [1983] OJ L105/1; Council Directive 2003/96/EC restructuring the Community framework for the taxation of energy products and electricity [2003] OJ L283/51. 74 Recital (m). 75 Recital (v). 76 Recital (t).

722

Charlotte O’Brien

Art 26 – Integration of Persons with Disabilities

persons with disabilities can be on interminable housing registers waiting for appropriate accommodation, while ‘trapped’ in inaccessible housing.77 It could also include a right to a decent quantity of financial assistance in terms of paying rent etc. The right to personal assistance to ‘support inclusion in the community’ could suggest an extension of basic social care assistance to include socialisation assistance—the provision of transport, financial assistance for clubs, internet access and computing equipment—all of which could have implications for welfare cuts, such as the scrapping of the severe disability premium in the UK,78 which had been directed at lone disabled people for, inter alia, the costs of assisted socialisation.79 Finally, the availability of community services and facilities may require a stronger obligation of reasonable adjustment/ accommodation—not just a prohibition on direct discrimination—as implied by the need to be ‘responsive to [disabled people’s] needs’. There are a few other CRPD provisions which relate directly to the Article 26 CFR 26.37 concept of participation—Article 27 on ‘work and employment’ (given the Art 26 CFR reference to occupational integration); Article 29 on participation in political and public life; and Article 30 on participation in cultural life, recreation, leisure and sport. Article 27 outlines a ‘right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities’. This may support a range of ideological approaches, including the neo-liberal tendencies of active labour market policies coercing persons with disabilities into the labour market. However, the phrase ‘work freely chosen or accepted’, and requirement of an ‘open, inclusive and accessible’ work environment suggests promoting fulfilment of potential rather than simply withdrawal of welfare benefits. Hence the breakdown of statutory duties includes the promotion of ‘employment opportunities and career advancement’,80 which is rather at odds with the expectations placed on disabled work-seekers.81 Article 29 connects the concept of participation to political life—not just through full 26.38 and effective opportunities to vote and be elected, but also through full and effective participation in the ‘conduct of public affairs’ through NGOs and political parties, and disability specific representative organisations.82 ‘Community’ participation in Article 26 CFR may include such political activities; just as it could include the cultural and sporting facilities raised in Article 30, which specifically requires, inter alia, ‘access to places for cultural performances or services, such as theatres, museums, cinemas, libraries and tourism services, and, as far as possible, enjoy access to monuments and sites of national cultural importance.’83 This sort of social integration is related to personal development,

77 Age UK, ‘Housing: Accessible housing—lifetime homes’, www.ageuk.org.uk/professional-resourceshome/policy/housing/. 78 Work and Pensions Committee, Third Report: ‘Universal Credit implementation: meeting the needs of vulnerable claimants’, November 2012, p 108. 79 Citizens Advice, Research Report: ‘Holes in the safety net: The impact on disabled people of the abolition of the severe disability premium within Universal Credit’, October 2012. 80 Art 27(1)(e). 81 The European Commission has stated that measures to reintegrate marginalised groups into the labour market be ‘increasingly based on the strong self-activity and self-responsibility of the job-seeker’. Report for the Commission The role of the Public Employment Services related to ‘Flexicurity’ in the European Labour Markets VC/2007/0927 Final report (March 2009, Policy and Business Analysis) 37. 82 Art 29(b)(1)–(2). 83 Art 30(1)(c).

Charlotte O’Brien

723

Part I – Commentary on the Articles of the EU Charter

but also to the development of society itself—hence the right to ‘the opportunity to develop and utilize their creative, artistic and intellectual potential’ is ‘not only for their own benefit, but also for the enrichment of society’. ‘Community’ is not here a fixed and non-disabled norm into which persons with disabilities are to be admitted or assimilated—community should be dynamic and receptive, supportive of whatever ‘specific cultural and linguistic identity’ may be adopted by persons with disabilities, ‘including sign languages and deaf culture’.84 26.39 As well as offering some useful source material on the interpretation of the components of Article 26, the CRPD also provides a ‘key’, as noted above, to some of the other sections of the CFR likely to be engaged by the concept of integration, and also how they should be read. Article 29 CRPD may provide some guidance as to the disability dimension of Articles 39 and 40 CFR. They provide only a brief outline of the rights to vote and stand in, respectively, European Parliament and municipal elections, but Article 29 CRPD requires states to ensure ‘that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use’,85 and to protect ‘the right of persons with disabilities to vote by secret ballot in elections and public referendums without intimidation’,86 pointing to particular physical and attitudinal obstacles that may be faced by disabled voters. To prevent exclusion, States must also allow disabled persons to nominate an assistant to help them to vote.87 Moreover, states must enable persons with disabilities to ‘effectively hold office and perform all public functions at all levels of government’88—ie the right to stand for election must not simply be a lipservice/theoretical right, but both standing and assuming office must be realistically realisable. States should also encourage persons with disabilities to participate in activities of NGOs and political parties.89 26.40 In a similar fashion, Article 13 CRPD offers some elaboration on how Article 47 CFR should be read in a disability-specific manner. Article 47 provides for the right to an effective remedy, to a fair and public hearing, to advice, defence and representation, and to legal aid for those without sufficient resources, where necessary for access to justice. Article 13 CRPD adds that states must provide ‘procedural and age-appropriate accommodations’ for persons with disabilities in order to facilitate direct and indirect participation in ‘all legal proceedings, including at investigative and other preliminary stages’.90 Article 12 CRPD on equal recognition before the law also requires states to ‘recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’—a formulation which Ward has described as absurd in its absolutism, as ‘can easily be demonstrated by a person with advanced dementia, and even more so by a person in a coma’.91 However, it is submitted that the default principle of facilitating maximum legal agency on the part of persons with disabilities should be read into Article 47 CFR.

84

Art 30(4). Art 29(a)(i). 86 Art 29(a)(ii). 87 Art 29(a)(iii). 88 Art 29(a)(ii). 89 Art 29(b)(i–ii). 90 Art 13(1). 91 A Ward, ‘Adults with incapacity: freedom and liberty, rights and status: Part 1’ (2011) 5 Scots Law Times 21, 24. 85

724

Charlotte O’Brien

Art 26 – Integration of Persons with Disabilities

Such mainstreaming of disability-specific concerns in the justice process extends also to imprisonment. While Article 6 CFR rather abruptly states that ‘everyone has the right to liberty and security of person’, the CRPD liberty right (in Art 14) again draws attention to a disability-conscious reading of this right. First, that ‘the existence of a disability shall in no case justify a deprivation of liberty’.92 Secondly, where disabled persons are deprived of liberty—eg through imprisonment—they are entitled to the provision of reasonable accommodation.93 Related to liberty and autonomy is the right to respect for ‘private and family life, home and communications’, as in Article 7 CFR. Articles 22 and 23 CRPD again give us an indication about a disability-specific reading of this right, recognising the particular types of interference persons with disabilities may experience. Hence, ‘regardless of place of residence or living arrangements’, no disabled person ‘shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence or other types of communication’94—so that some form of assisted living arrangement should not be used as an excuse to undermine their autonomy and privacy. Nor is disability to devalue the importance of privacy with regard to ‘personal, health and rehabilitation information’.95 States must recognise the right of persons with disabilities ‘who are of marriageable age to marry and to found a family on the basis of free and full consent of the intending spouses’, and to have free choice and control over planning their families, and should provide ‘access to age-appropriate information, reproductive and family planning education’, and should nor deprive them of fertility.96 Persons with disabilities are not only to be guaranteed the negative rights of non-preclusion from child rearing, adoption and guardianship etc, but are to be rendered ‘appropriate assistance … in the performance of their child-rearing responsibilities’. Children with disabilities are to be helped to stay in their families (unless necessary for the best interests of the child), and states should help families to ensure the social integration of their disabled children by providing ‘early and comprehensive information, services and support to children with disabilities and their families’.97 Article 7 CRPD on children with disabilities offers a further connection between Article 26 CFR and Article 24 CFR on the rights of the child. The latter provides for protection and care of children (as necessary for their wellbeing); freedom to express views (and have them taken into account according to age and maturity); and the right to personal, regular and direct contact with both parents (unless not in their interests). Article 7 CRPD reproduces much of the same text,98 albeit specifying that each shall be enjoyed equally by children with disabilities—suggesting that disability should not be a factor, like ‘age and maturity’ in determining whether views are taken into consideration.

92

CRPD Art 14(1)(b). CRPD Art 14(2). 94 CRPD Art 22(1). 95 CRPD Art 22(2). 96 CRPD Art 23(1)(b). 97 CRPD Art 23(3). 98 Apart from the last mentioned provision on parental contact; the closest correlating provision is in Art 18(2) CRPD which outlines the right of children with disabilities ‘as far as possible … to know and be cared for by their parents’. 93

Charlotte O’Brien

725

26.41

26.42

26.43

26.44

Part I – Commentary on the Articles of the EU Charter

Instead, such children are to be provided with ‘disability and age-appropriate assistance to realize that right’. 26.45 On considering the rights of children with disabilities, or with disabled parents, it becomes clear that another UN instrument material to Article 26 CFR is the UN Convention on the Rights of the Child, signed and ratified by all Member States. In particular, Article 23 on the rights of disabled children should be an instructive source— aiming for the promotion of ‘self reliance and … active participation in the community’99 of the child. It requires the provision of assistance ‘appropriate to the child’s condition and to the circumstances of the parents or others caring for the child’.100 Such assistance should be directed to the child’s ‘achieving the fullest possible social integration and individual development’,101 which includes ‘cultural and spiritual development’. In particular, access to certain services should be facilitated—education, training, healthcare, rehabilitation, preparation for employment, and recreation.102 Some of the implications of promoting the self-reliance of disabled children, and possible conflicts with parental choices are considered in section D.

III. Council of Europe Treaties 26.46 The explanatory notes to the Charter invoke Article 15 of the European Social Charter. This provision was amended in the overall ESC revision of 1996, though not all EU Member States have ratified the revised version of the ESC—the Czech Republic, Denmark, Germany, Greece, Latvia, Luxembourg, Poland, Spain and the UK have all signed but not ratified it.103 Consequently there are two Articles 15 to consider—the 1961 version having two 26.47 provisions, and the 1996 three. The older version is focused on ‘vocational training, rehabilitation and social resettlement’ and requires states to provide training facilities, including specialist facilities where necessary (the first provision), and to take measures to help place disabled persons in employment, including sheltered employment (the second provision). It is worth noting here that the Czech Republic has not agreed to be bound by the first provision on training facilities, and Latvia has not agreed to be bound by either provision104—which could prove problematic for deciding the applicability of Article 26 CFR since the Article 26 principle ‘is based on’ Article 15 ESC. The newer version of Article 15 ESC is relevant to the remaining 18 Member States, 26.48 and it replaces the overall aims of training, rehabilitation and social resettlement with effective ‘independence, social integration and participation in the life of the community’, ostensibly redirecting attention from a potentially stripped down version of an active labour market policy to something more focused on social integration and personal fulfilment. The first two provisions are however redolent of the original Article 99

Art 23(1). Art 23(2). 101 Art 23(3). 102 Ibid. 103 See Council of Europe list of ratifications at www.coe.int/t/dghl/monitoring/socialcharter/Presentation/ SignaturesRatifications_en.pdf. 104 See Council of Europe list of acceptance of provisions of the Revised European Social Charter (1996), July 2012 at www.coe.int/t/dghl/monitoring/socialcharter/Presentation/ProvisionTableRevJuly2012_en.pdf. 100

726

Charlotte O’Brien

Art 26 – Integration of Persons with Disabilities

15 ESC—requiring state provision of guidance, education and vocational training,105 and promoting access to employment through encouraging recruitment and provision of reasonable adjustments, or where this is not possible, the provision of sheltered employment.106 The biggest change introduced by the 1996 revision is the introduction of the third provision for promoting ‘full social integration and participation in the life of the community’ through measures to ‘overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure’,107 which provides some guidance on the spheres of social life in which the state has an Article 26 CFR responsibility. However, given that nine EU Member States have not ratified the revised version, the utility of this provision—other than as informative—is questionable. Even among those states that have ratified the new ESC, not all are bound by these changes; Austria has not accepted to be bound by the second provision (on recruitment and reasonable adjustment), while Romania and Slovakia have both opted out of the new third provision on social integration and community life. Bulgaria has opted out of Article 15 in its entirety. The findings of the European Committee of Social Rights with regard to confor- 26.49 mity with Article 15 tend to turn on whether evidence has been provided of ‘effective guarantees’ of the rights contained therein. In recent decisions Article 15(3) has been a common source of non-conformity, with the Committee finding that various disparate provisions for persons with disabilities do not amount to general enough coverage, nor do they make explicit provision for the areas stipulated in the ESC—housing, transport, telecommunications, cultural and leisure activities.108 The finding against Belgium made particular reference to apparently different situations as between the Flemish, French and German-speaking regions. The differences between EU Member States as to which version of Article 15 applies appears to give rise to different degrees of scrutiny— making it easier for those states not bound by Article 15(3) to be found in ‘conformity’, the provisions which do bind them having been in force since 1961. Other potentially relevant Council of Europe documents are the Code of Good 26.50 Practice in Electoral Matters, and the Council Recommendation of the Committee of Ministers to member states on the participation of persons with disabilities in political and public life.109 The Code puts forward a number of principles—suggesting that more stringent rules must be applied to disenfranchisement than to exclusion from standing for election.110 However, the approach to legal mental capacity in the Code, has, according to O’Mahony, become unsustainable following the UNCRPD, so that the 2010 Interpretative Declaration attached to the Code appears to make enfranchisement the default position.111 But the Declaration still allows for a court-imposed restriction on voting and standing for election on the grounds of disability.

105

Art 15(1). Art 15(2). 107 Art 15(3). 108 Eg decisions on 24 October, c-2008-2en against Lithuania; c-2008-1en against Belgium; c-2007-en1 against Estonia. 109 CM/Rec(2011)14. 110 Point 1.1. Also, any deprivation must be in accordance with the law and proportionate. 111 Above, n 46. 106

Charlotte O’Brien

727

Part I – Commentary on the Articles of the EU Charter

26.51

The Council Recommendation of 2011 notably draws upon Article 15 ESC, including Article 15(3)—the provision which apparently does not bind several Member States. It seems to go some way beyond the above-mentioned Code, since the Appendix states that ‘all persons with disabilities, whether they have physical, sensory, or intellectual impairments, mental health problems or chronic illnesses, have the right to vote on the same basis as other citizens, and should not be deprived of this right by any law limiting their legal capacity, by any judicial or other decision or by any other measure based on their disability, cognitive functioning or perceived capacity.’112 Similar wording is applied to the right of persons with disabilities to stand for elected office. It requires not only measures to promote participation, but the monitoring and evaluation of such participation by persons with disabilities.113

IV. Other Sources 26.52 The explanatory notes to the CFR state that while Article 26 is ‘based on’ Article 15 ESC, it ‘also draws on point 26 of the Community Charter of the Fundamental Social Rights of Workers.’ This provision states that disabled persons ‘must be entitled to additional concrete measures aimed at improving their social and professional integration’ (emphasis added). These measures ‘must concern… vocational training, ergonomics, accessibility, mobility, means of transport and housing’ (emphasis added). So this point gives some steer, like Article 15(3) ESC to the social spheres in which Article 26 CFR may be triggered. This Charter is of course a ‘mere political declaration’ but has nevertheless been treated as instrumental in forming initiatives and contributing to the content of the CFR. Moreover, it can be used as an interpretative aid by the ECJ. 26.53 Another interpretative aid is the ILO Convention C159 on the Vocational Rehabilitation and Employment (Disabled Persons) Convention (1983). This has specific economic, employment-directed objectives—even disability is defined in terms of obstacles to employment.114 The presumption appears to be that employment is the route to other forms of integration, as the convention aims to enable disabled people to secure, retain and advance in employment, and ‘thereby to further such person’s integration or reintegration into society.’115 The Convention requires signatories to establish policies specific to disabled persons in the workplace,116 including the provision of suitably trained staff responsible for guidance, training and placement of persons with disabilities.117 It also draws attention to the problems created by geographic considerations, as it requires measures to be taken ‘for disabled persons in rural areas and remote communities’.118 The remit of the ILO shapes its objectives, so that social and cultural integration are mere side effects of participation in the labour market. This is perhaps inevitable from

112

Appendix to Recommendation CM/Rec (2011) 14 (section 3). Recommendation CM/Rec (2011) 14 point 3. 114 Art 1(1): ‘the term disabled person means an individual whose prospects of securing, retaining and advancing in suitable employment are substantially reduced as a result of a duly recognised physical or mental impairment’. 115 Art 1(2). 116 Arts 2–5. 117 Art 9. 118 Art 8. 113

728

Charlotte O’Brien

Art 26 – Integration of Persons with Disabilities

the ILO perspective, but is not an ideologically neutral premise. The Convention’s utility is also limited by its non-universal status—seven Member States have not ratified the convention: Belgium, Bulgaria, the United Kingdom, Romania, Estonia, Latvia, and Austria.

D. Analysis I. General Remarks The area of EU law most pertinent to the Article 26 CFR integration principle is probably 26.54 EU employment law, the only sphere in which disability specific non-discrimination legislation has been adopted at EU level—namely Directive 2000/78 prohibiting discrimination in employment and occupation. Article 26 CFR refers to occupational integration, raising the question of how two different approaches—non-discrimination and integration—interact. An integration-directed approach may be more about positive rights and environmental/social constructions of discrimination, whereas other Union instruments, including Directive 2000/78 tend to embody an economically constructed conformity with/assimilation into existing labour market arrangements. Although equality has been described as a founding value of the Union, and nondiscrimination as a common constitutional tradition prevailing in Member States,119 the raison d’etre of the Union’s interest in non-discrimination measures has stemmed from an interest in maximising the efficiency of the internal market.120 In spite of the increased competence of the Union in other social policy areas affected 26.55 by discrimination, this occupational orientation is still relevant—with Commissioner Spidla outlining an action plan for 2008–9 which aimed to utilise the ‘untapped potential’ of ‘disabled people [excluded from the labour market] as one of the key priority groups’ in order to combat ‘a shrinking workforce’.121 The Council of Ministers of the EU has also outlined the rationale for addressing discrimination, (possibly beyond the employment sphere) because of its capacity to ‘undermine the objective of abolishing of obstacles to the free movement of persons, goods and services between Member States’.122 The focus on integration of the CFR has two potential consequences—it has implications for the interpretation of existing instruments such as Directive 2000/78, while the inclusion of a social integration objective may require thinking beyond the confines of occupational instruments. In terms of interpreting Directive 2000/78, the emphasis on integration in Article 26 26.56 CFR could require greater attention to be paid to combating indirect discrimination as opposed to direct discrimination, requiring a stronger commitment to tackling an able-centric environment, rather than committing to the same treatment for all, which

119

Art 2 of the TEU. C O’Brien, ‘Equality’s False Summits: New Varieties of Disability Discrimination, “Excessive” Equal Treatment and Economically Constricted Horizons’ (2011) 36(1) European Law Review 26. 121 European Commission, ‘The situation of disabled people in the European Union: the European Action Plan 2008–2009’, COM (2007) 738 final, para 2.2. 122 Council of the European Union, Note 5188/10, 13 January 2010, preamble, para 7. 120

Charlotte O’Brien

729

Part I – Commentary on the Articles of the EU Charter

in many cases is a minimal and exclusionary commitment. The readiness with which indirect discrimination can be justified, (‘by a legitimate aim and the means of achieving that aim are appropriate and necessary’)123 and the assumption codified in Article 2(b) (ii) of Directive 2000/78 that a reasonable adjustment duty discharges any indirect equality duties are problematic for the promotion of occupational integration of people with disabilities. Article 2(b)(ii) states that ‘an apparently neutral provision, criterion or practice’ will not be treated as discriminating against persons with a disability if ‘as regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 [on reasonable accommodation] in order to eliminate disadvantages entailed by such provision, criterion or practice’. But reasonable accommodation cannot substitute for indirect discrimination protection; it is a personalised right, to eg make exceptions to rules, rather than a general duty to avoid instituting potentially exclusionary rules in the first place. Moreover, reasonable accommodation duties can be more easily diluted. Indirect discrimination is by default unlawful unless justified, but accommodations need only be entertained if the claimant has first demonstrated that those required are reasonable, shifting the burden of proof to the claimant. The only guidance in the Directive as to the definition of ‘reasonable’ is that measures need not be taken if they ‘would pose a disproportionate burden on the employer’.124 Thus employer burdens weigh rather heavily in the accommodations balance. What counts as a ‘burden’ is likely to be defined according to employer preferences, which will be primarily financial—in the short-term sense.125 Emphasising integration may renew thinking about substantive equality measures as opposed to personalised measures. It may also affect the interpretation of specific provisions and applications of the non-discrimination principle, explored below in section D.III. 26.57 In terms of thinking beyond employment, Article 26 CFR would seem to chime with the opinions expressed in Eurobarometer surveys that more should be done at a public law level to combat discrimination. On being asked in 2001 which bodies be responsible for improving access for persons with disabilities, 58 per cent of respondents stated national government, 51 per cent local authorities, and only 25 per cent suggested responsibility lay with employers and companies—yet this is so far where EU legislation has concentrated on vesting responsibility.126 The EU was the fourth most cited responsible authority. Respondents clearly felt that more progress was needed—97 per cent of Europeans thought that something should be done to integrate people with disabilities more into society, and 93 per cent that more money should be spent on removing physical barriers which complicate the lives of physically disabled people.127 26.58 Whether or not Article 26 CFR can strengthen the case for a broader set of non-discrimination aims, one area which would not involve straying too far from the economic orientation of the single market is the proposal to extend protection from

123

Art 2(b)(i) Directive 2000/78. Art 5. 125 Though discrimination is not rational in the long term: E Lagerspetz, ‘Rationality and Politics in Long Term Decisions’ (1999) 8 Biodiversity and Conservation 149. 126 European Commission ‘Attitudes of Europeans to Disability’ (May 2001) 54(2) Eurobarometer 51. 127 Ibid, 62. 124

730

Charlotte O’Brien

Art 26 – Integration of Persons with Disabilities

discrimination on the framework grounds (including disability) beyond employment to goods and services,128 so bringing such protection more in line with that already offered on a national level in several Member States on the grounds of disability.129 The extension proposal has been under lengthy examination, with Parliament and Council failing to reach agreement on the content of the Directive. Though apparently agreeing on the importance of fighting discrimination, the latest progress report from the Council (from November 2012)130 states that ‘certain delegations [question] … the need for the Commission’s proposal, which they see as infringing on national competence for certain issues and as conflicting with the principles of subsidiarity and proportionality.’ While debates continue about the appropriate scope of certain spheres—eg should the Directive only refer to ‘access’ to social protection as opposed to conditions—‘certain delegations’ continue to call for areas such as social protection, and education, to be removed wholesale from the scope of the Directive. The delegation positions are set out in documents not made available to the public.131 The list of outstanding issues only includes one related to a specific discrimination ground—and that ground is disability: ‘the disability provisions, including accessibility and reasonable accommodation for persons with disabilities’.132 Article 26 CFR has also been cited as an influence in the development of softer 26.59 policies beyond the employment sphere—the Commission refers to the provision as indicating that EU action is needed to complement national efforts ‘to create a barrier free Europe’.133 The EU and the Member States, have, according to the disability strategy 2010-2020, ‘a strong mandate to improve the social and economic situation of people with disabilities’—the first piece of evidence for which is the Charter of Fundamental Rights, Articles 1, 26 and 21. The strategy sets out a combination of soft approaches to achieving that mandate—with the EU variously ‘supporting’134 or ‘supporting and supplementing’135 national action; ‘promoting’ assorted ends (such as inclusive education,136 decent living conditions,137 the rights of people with disabilities in EU external action138), and conformity of Member State legislation on legal capacity with the CRPD;139 using funds to ‘raise awareness’ eg of the situation of people with disabilities living in institutions,140 and amongst disabled people of their rights;141

128

COM (2008) 426, above n 12. Examples include the UK Equality Act 2010. 130 Council document 16063/12. 131 Eg 14701/12 + COR 1 and 15567/12. 132 16063/12, p 5. 133 European Commission, ‘A renewed commitment to a barrier free Europe’ http://ec.europa.eu/justice/ discrimination/disabilities/disability-strategy/index_en.htm. 134 European Disability Strategy, above, n 22, eg to ‘make sports, leisure, cultural and recreational organisations and activities accessible’ (2.1.2). 135 Ibid, eg implementing accessibility and removing existing barriers, and improving the availability and choice of assistive technologies (2.1.1). 136 Ibid, (2.1.5). 137 Ibid, (2.1.6). 138 Ibid, (2.1.8). 139 Ibid, (2.1.3). 140 Ibid, (2.1.2). 141 Ibid, (2.2.1). 129

Charlotte O’Brien

731

Part I – Commentary on the Articles of the EU Charter

and combining the last two in ‘promoting awareness’ of ‘“design for all” approaches to products, services and environments’.142 26.60 An area of EU hard law related to the labour market that may be affected by Article 26 CFR is free movement law, in particular questions of equal treatment on the grounds of nationality for accessing welfare benefits in other Member States. People with disabilities have typically been excluded from the full logic of Union citizenship and nationality-based equal treatment, because they might not be fully participating in the labour market, or where they may, eg through rehabilitative work, be perceived to be participating in a ‘social programme’ not considered sufficiently part of the normal labour market.143 Being denied the label of migrant worker has significant consequences for equal treatment rights. Persons with disabilities are disproportionately more likely to fall through the gaps of Article 7 of Directive 2004/38,144 to be found to not have an EU law-based right of residence,145 while also being disproportionately more likely to be in need of some form of welfare assistance, from which the absence of a residence right excludes them. While the Commission acknowledges that the rate of poverty among people with disabilities is 70 per cent higher than the average,146 the risk of poverty is likely to be higher again for people with disabilities were they to consider migrating between Member States. The limitations and conditions placed on claiming equal access to benefits in a host 26.61 state therefore disproportionately exclude persons with disabilities, casting doubt on the idea of a universal right of Union citizenship. Equal treatment is one of the twin principles of welfare co-ordination, the other being retention of benefit rights from a home state through exportation of benefits to another state or through aggregation of contributions (effectively ‘exporting’ a contribution record). It was noted in a 2002 Commission report, that the suggestion that exportability could provide an alternative ‘basis for free movement by ensuring that movers have sufficient resources’ did not ‘stand up to scrutiny’ as the benefits in question first had to be ‘adequate to support the person in the host state’147—and given restrictions on which benefits can be exported, they are unlikely to be so adequate. The case law indicates a certain tendency on the part of Member States to find that benefits either fall out-with the scope of social security co-ordination,148 or that they constitute special non-contributory benefits,149 which are exempted from the usual exportability rules150—in other words, Member States

142

Strategy 2.2.1(9). Case 344/87 Bettray v Staatssecretaris van Justitie [1989] ECR 01621. 144 ‘on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States’ [2004] OJ L158/77–123. 145 ‘Disabled people remain at a significant disadvantage in the labour market, despite recent positive economic development, and are more often either not employed or employed in jobs requiring fewer skills.’ B Greve, The labour market situation of disabled people in European countries and implementation of employment policies: a summary of evidence from country reports and research studies (Academic Network of European Disability experts (ANED), 2009) 15. 146 European Disability Strategy, above n 22, Introduction. 147 European Commission, ‘Definitions of disability in Europe: A comparative analysis’ (2002) section 6.1. 148 As argued in Case C-43/99 Leclere [2001] ECR I-04265, Case C-215/99 [2001] Jauch ECR I-01901 and Case C-286/03 Hosse [2006] ECR I-01771. 149 See M Cousins, ‘Social Security, Social Assistance, and “Special Non-Contributory Benefits”: The NeverEnding Story’ (2007) 9(1) European Journal of Social Security 95. 150 If listed in Annex X of Regulation 883/2004 ‘on the coordination of social security systems’, inserted by Regulation 988/2009, [2009] OJ L284/59. 143

732

Charlotte O’Brien

Art 26 – Integration of Persons with Disabilities

are typically reluctant, where a benefit is non-contributory, to continue paying it to someone who leaves their territory. This reluctance is likely to impact upon persons with disabilities who are more likely 26.62 to be receiving some form of solidaristic benefit not dependent on contributions but awarded as of right. The UK provides a clear example of this disproportionate impact— recent welfare reforms have included the actual scrapping of an income replacement benefit, Employment and Support Allowance in youth (formerly Incapacity Benefit in youth) awarded to those young people who do not have sufficient contribution records for the standard ESA. Government ministers pointed to a ruling that meant ESAiy should be considered exportable,151 and indicated that as it was never intended to be paid outside UK territory, it should not be paid at all.152 Disability Living Allowance, Attendance Allowance and Carers Allowance have been subject to some back-and-forth exchanges between the UK and the ECJ; on receiving the ruling that each should be considered exportable,153 the UK instigated a set of conditions for exportability, not clearly endorsed by the EU co-ordination rules, having a considerable restrictive effect on the number and profile of disabled people who could utilise the exportability right. One such condition was that an economic link had to be maintained with the UK, eg through receipt of a contributory benefit, meaning that only those who had worked, and earned enough to make the requisite contributions, were entitled to export the non-contributory benefits. All such conditions are likely to become rather academic concerns, however, in the face of the bigger change being initiated, which is to replace DLA with a Personal Independence Payment (PIP). The government originally intended to make PIP a territorial benefit,154 planning to make it only ‘available to people who are resident in Great Britain’, regardless of the guidance received from the ECJ on the nature of DLA. While this position has been modified in the PIP regulations,155 they only allow exportation of the daily living component in some circumstances (and, in keeping with the ECJ’s approved division of DLA,156 not the mobility component at all). It looks as though the starting point for disabled people is a default of stasis, excluded from free movement by home states reluctant to export their benefits, and by host states that will not admit them to their benefits. The combined exclusionary aspects of both exportability and equal treatment principles lends credence to claims of Jerome Vignon of the European Commission that ‘disabled people can face particular disadvantages in the field of social security and other rights as European citizens, when they move from one Member State to another’.157 Article 26 CFR could provide impetus for addressing this citizenship asymmetry; 26.63 those disabled people entitled to benefit from the measures mentioned in the article includes disabled EU migrants, and welfare benefits (and social services provision) in themselves may constitute examples of measures ‘designed to ensure … independence, social and occupational integration and participation in the life of the community’,

151

Case C-503/09 Stewart (Judgment of 21 July 2011). Chris Grayling, HL Deb 1 February 2012, cols 831–32. 153 Case C-299/05 Commission v Parliament (action for annulment) [2007] ECR-I 08695; Case C-537/09 Bartlett [2011] OJ C186/5. Except, rather perplexingly, the DLA mobility component. 154 Department of Work and Pensions 2011, ‘Personal Independence Payment—Policy Briefing Note’ 09.05.2011 www.dwp.gov.uk/docs/pip-briefing-introduction.pdf. 155 The Social Security (Personal Independence Payment) Regulations 2013 SI No 377: Reg 23. 156 Case C-537/09 Bartlett [2011] ECR I-03417. 157 European Commission (2002) above, n 147, p 3. 152

Charlotte O’Brien

733

Part I – Commentary on the Articles of the EU Charter

whether dealing with home state benefit exportability or host state benefit equal accessibility. It could also provide a prism through which Article 45 CFR should be read—the Charter provision on the right of free movement and residence, which states without exception that ‘Every citizen of the Union has the right to move and reside freely within the territory of the Member States.’

II. Scope of Application 26.64 Article 26 CFR refers to ‘persons with disabilities’. This category is not automatically clearly defined, given the variety of definitions of disability prevailing in different Member States and in different contexts, a variety which Vignon described in 2002 as ‘a major obstacle to the mutual recognition of national decisions on disability issues, and in particular of eligibility for access to specific services and facilities’.158 A communication on the 2010–20 disability strategy also noted that ‘definitions of disability vary widely across the EU, as they are often used primarily for determining benefit entitlements and for political purposes.’159 The diversity of disability definitions could result in a rather patchy nation-dependent 26.65 application of Article 26 CFR, at odds with the idea of a European level right. Reasoning similar to that employed in Chacon Navas160 should be adopted—that a ‘uniform and autonomous’161 definition of disability is necessary, given the need for ‘uniform application of Community law’.162 In Chacon Navas the Court pointed out that the provisions made ‘no express reference to the law of the Member States for the purpose of determining its meaning and scope’.163 Article 26 CFR also makes no such reference to national definitions, so deference to national definitions may not be intended here, either. In Chacon Navas the Court was at pains to distinguish disability from sickness, and 26.66 a highly medical approach was clear; the Court accepted the referring court’s submission that reference should be had to the International Classification of Functioning, Disability and Health (ICF) drawn up by the World Health Organisation, which treated ‘disability’ as ‘a generic term which includes defects, limitation of activity and restriction of participation in social life.’164 The Court concluded that disability in a European context should refer to ‘a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life’.165 This definition is notable both for its medical and instrumental content—disability turns upon impairments that impair professional life—ie work. The Court drew upon aspects of the Directive—specifically reasonable accommodation (‘the importance which the Community legislature attaches to measures for adapting the workplace to the disability’) to suggest that another element of the definition of disability was necessary—‘it must therefore be probable that it will last for a long time’.166 158 159 160 161 162 163 164 165 166

734

Ibid. European Commission (2010) above, n 22. Case C-13/05 Chacon Navas [2006] ECR I-06467. Ibid, 42. Ibid, 40. Ibid. Ibid, 22. Ibid, 43. Ibid, 45.

Charlotte O’Brien

Art 26 – Integration of Persons with Disabilities

In itself this is a problematic conclusion, since it implies that accommodations are not to be considered reasonable or worth making for anything other than the long term, possibly failing to capture conditions with fluctuating and varying effects. A direct transposition of this definition to Article 26 CFR might not be appropriate, given the requirement of professional impairment while the remit of Article 26 CFR seems to be broader. Dispensing with that aspect of the definition would still leave us with a potentially highly medical model of disability focussed on impairments. However, as noted in section C, the UNCRPD appears to accept a medical approach to personal scope, combined with a more social model in terms of material scope— identifying barriers etc. A modified Chacon Navas definition might therefore be likely— vesting disability in physical, mental or psychological impairments, but not suggesting that those impairments are themselves the barriers to social or economic participation. The temporal aspect of the definition, that disability should last for ‘a long time’ and the overlap with sickness (‘sickness is capable of causing defects which disable individuals’)167 could be complicated factors to negotiate, and might well fall to generalisations on which national courts are to rule specifically. Once those with disabilities have been identified, we must ask whether others—associates/ carers of disabled persons—also benefit from Article 26 CFR, to ensure the sustainability of care arrangements and maintain degrees of independence not possible if such arrangements collapse.168 So the apparently narrowed wording of Article 26 CFR, which targets persons with disabilities, in itself does not rule out some entitlements for third parties, if such entitlements are necessary in order for persons with disabilities to benefit from Article 26-related measures. As the Coleman169 case postdated the drafting of the Charter by several years, it arguably impacts upon the definitions of the Charter as well as the Directive. According to that ruling, discrimination should be prohibited on the grounds of disability, whether one’s own or another’s disability. This is explored in more detail below, in section D.III, but for now it is submitted that the Coleman rationale can apply to Article 26 CFR—ie duties extend to carers where such duties are necessary for the realisation by persons with disabilities of Article 26 rights. The material scope of the Article is not very clearly delineated. It only kicks in where the Union already has competence,170 eg the areas explored in section D.I—employment, free movement and welfare co-ordination. Article 26 itself may also contain a limitation, if it only confers a right to benefit from existing measures rather than a statutory obligation to create such measures where none exist. So it may be parasitic upon not only the engagement of Union law—which has a relatively limited remit as regards disability, but also upon the existence of integrating measures—which may be reasonable adjustment/accommodation in employment context and the provision of welfare benefits in the context of free movement. As the article seems to bind only the Union—and then only to ‘recognise and respect’ the right to benefit from such measures—it is difficult to envisage the set of circumstances which would give rise to an Article 26 case. Arguments against a statutory body for inadequate implementation of eg reasonable accommodation or social security coordination

167 168 169 170

Ibid, 22, 44 respectively. O’Brien, above, n 35. Case C-303/06 Coleman [2008] ECR I-05603. Art 51 CFR.

Charlotte O’Brien

735

26.67

26.68

26.69

26.70

Part I – Commentary on the Articles of the EU Charter

measures, are arguably best pursued by claimants relying upon the measures which the Member State has failed to properly implement (or by the Commission as a failure to fulfil obligations), since such instances are not clearly a failure of the Union to recognise and respect Article 26 rights. If it can only be invoked where the Union has failed, Article 26 may amount to little more than a negative right of non-interference on the part of the Union with existing measures, rather than a positive right to create new measures. However, blurry lies the line between negative and positive rights, and as will be explored below in section D.III, in the context of discrimination by association, a narrow ‘negative rights’ interpretation on the part of Union authorities—the ECJ—could deprive the measures of their full effect, interfering with their enjoyment, so that a stronger, more positive rights interpretation is needed.

III. Specific Provisions 26.71 This section will explore how, in light of the sources examined in sections B and C, the basic concepts in Article 26 should be interpreted, and move on to explore how Article 26 CFR may affect how specific EU legal provisions are interpreted. (a) Interpreting Article 26 CFR 26.72 Key terms/concepts to break down here include ‘independence’, ‘occupational integration’, ‘social integration’ and ‘participation in the life of the community’. Independence may seem fairly self-explanatory but is a complex concept—and does not mean simply being left to fend for oneself. Rather, some forms of assistance can promote independence, as with social service support that reduces the likelihood of institutionalisation. They can also reduce the likelihood of total social exclusion for those unassisted and not institutionalised. Meaningful independence requires sufficient agency to realise certain goals/activities/functions, and in this sense is related to concepts of autonomy and dignity. The European Commission describes the aim of ‘living independently’ as providing disabled people ‘with the same individual choices and control over their daily lives as non-disabled people’;171 for which ‘tailored’ care and support services are needed— including ‘affordable, accessible and quality social services; [and] support through consolidated social inclusion provisions’.172 Independence within the community is not just about de-institutionalisation; the Council of Europe’s disability action plan173 states that independent living policies are ‘dependent on the accessibility of a broad range of services, including transport’ and require disability mainstreaming in the ‘planning, development and delivery of mainstream services’. 26.73 Independence in this sense is closely related to social inclusion, and to participation in the life of the community; the European Commission has referred to ‘community

171 European Commission, DG Justice, ‘People with disabilities: Living independently’ http://ec.europa.eu/ justice/discrimination/disabilities/index_en.htm. 172 Ibid. 173 Appended to Recommendation Rec (2006) 5 of the Committee of Ministers to Member States on the Council of Europe ‘Action Plan to promote the rights and full participation of people with disabilities in society: improving the quality of life of people with disabilities in Europe 2006–2015’.

736

Charlotte O’Brien

Art 26 – Integration of Persons with Disabilities

based services needed by disabled people to attain the right levels of security, freedom and independence for community living.’174 The UK government has styled independence as a vehicle for integration and participation, not a simple absence of dependence or support; the 2005 Cabinet Office report on ‘Improving the lives of disabled people’ emphasised the need for ‘the same choice, control and freedom as any other citizen—at home, at work, and as members of the community’, which was not to be taken to mean ‘“doing everything for themselves” but … [instead] that any practical assistance people need should be based on their own choices and aspirations.’175 The UK government’s Office for Disability Issues in 2008 produced a report on independent living176 that defined independent living in terms of ‘choice and control over the assistance or equipment needed to go about our daily lives’.177 The report stresses the point that requiring assistance is a universal experience, and that there should be nothing de-autonomising about it when done in the context of disability; ‘Everyone needs assistance or equipment of some kind. In our society, for example, we do not draw water from the river. Instead, we rely on water companies to provide the kind of assistance and equipment necessary and to deliver it in ways which give us choice and control (the ability to turn on the tap to get the water we need).’178 Disabled persons179 were consulted to answer the question ‘what does independent living mean’. Responses included choice and control; choice about location of living; being included; choice over cohabitees; participating; choice over sources of support; equal access; ability to take risks; self-directed support; having a voice, and being a citizen.180 Such consultations ought to feed into a European understanding of independence, in view of the claim that the ‘European principle is: “nothing about disabled people without disabled people”’.181 The connection between independence, through the notion of ‘choice’ to partici- 26.74 pation is underlined by the CRPD, Article 19 of which combines the rights of ‘living independently and being included in the community’. The Council of Europe’s disability action plan also draws similar links. The CRPD requires ‘respect for inherent dignity and individual autonomy, including the freedom to make one’s own choices, and independence of persons’182 as well as ‘full and effective participation and inclusion in society’.183 The Council of Europe’s recommendation on the disability action plan states that ‘opportunities for independent living and social inclusion are first and foremost created by living in the community.’ These instruments tie independence up with dismantling societal barriers. Hence the 26.75 Council of Europe tracks joined ‘paradigm shift[s]’ from the disabled ‘patient’ to the

174

Ibid, emphasis added. Prime Minister’s Strategy Unit, Cabinet Office ‘Improving the Life Chances of Disabled People’ (2005) at http://odi.dwp.gov.uk/docs/wor/ind/ilr-executive-report.pdf. 176 ODI, ‘Independent living: A cross-government strategy about independent living for disabled people’ (2008). 177 Ibid, 29. 178 Ibid. 179 Gathered through feedback from Regional Events held as part of Independent Living Review. 180 Above, n 176, 29. 181 Commission, above n 169. 182 UNCRPD Art 3 (General principles) (a). 183 Ibid, Art 3(c). 175

Charlotte O’Brien

737

Part I – Commentary on the Articles of the EU Charter

26.76

26.77

26.78

26.79

‘citizen’184 with control over his/her life,185 and from ‘the old medical model of disability to the social and human rights based model’,186 which requires commitment to the principles of ‘Universal Design’.187 The human rights perspective is reiterated throughout the Action plan, with ‘full citizenship’ for disabled people requiring the creation of a ‘new European policy framework … based on human rights’.188 The Action Plan thus requires a substantive rather than formal approach to disability equality, and as Article 26 CFR adopts similar language and identical objectives it may implicitly endorse a social/ human rights based approach to integration. Community participation is a rather nebulous concept, as there is no standard measure of such participation for a non-disabled person. Presumably, the aim is to ensure all persons with disabilities have the same choices to participate as are available to those without disabilities. The Council of Europe action plan emphasises agency; participation is not just about presence or ‘taking part’ in things organised by others, but about actively influencing ‘the destiny of their communities’, so has to include political participation—including the right to vote, to stand for office and to otherwise engage in political processes and debates189 (so engaging Arts 39 and 40 CFR and touching upon Art 29 UNCRPD). For persons with disabilities to have full agency and equal choices, account must be taken of the rights and needs of carers and families of disabled persons, since wellbeing is shared amongst family members. The Council of Europe’s Disability Action Plan states that participation in the life of the community requires measures including ‘services and other facilities … to give people with disabilities and their families periods of support and respite’.190 Specific actions by Member States include the implementation of Recommendation No R (96) 5 ‘on reconciling work and family life’.191 The inclusion of families and carers and references to respite suggest that ‘participation’, much like independence, requires broader thinking about substantive equality. Some further aspects of community participation can be drawn from definitions of social integration, which appear to include enjoyment of what society has to offer, such as ‘the cultural life of that society’,192 according to the Council of Europe disability action plan, which aligns social integration with the, ‘conceptual and methodological sea change’ resulting in the social model of disability. The European Commission has also referred to educational integration, with a goal of ‘inclusive, quality education and training’193 to increase knowledge and mobility; utilisation of free movement rights is part of being socially integrated at the EU level. The next key term to define in the Charter provision is in fact two key terms bundled together: ‘social and occupational integration’. While the Council of Europe adopts a human rights heavy approach to social integration, that requires tackling ‘psychological,

184 185 186 187 188 189 190 191 192 193

738

Above, n 173, 2.2. Ibid. Ibid. Ibid, 5.1.1. Appendix 1 to the Action Plan; s 5, para 49. Above, n 173, 1.3. Ibid, 3.8.2, ix. Ibid, 3.8.2 xi. Ibid, 3.2.1. European Disability Strategy, above n 22, 17.

Charlotte O’Brien

Art 26 – Integration of Persons with Disabilities

educational, family-related, cultural, social, professional, urban or architectural’ barriers through universal design,194 the Charter’s elision of the social and the occupational suggests that the Union’s commitment to social integration may be fuelled by more economically inclined objectives. This could lead to rather thinner, more formal conceptions of integration, geared at ‘activating’ persons with disabilities. The Union’s soft law social and employment policies currently promote fiscal 26.80 austerity, in line with the broader Stability and Growth Pact premised on public spending restraint.195 The Commission has pushed for Member States to adopt active labour market policies that rely upon punitive measures—measures aimed at benefit withdrawal, not at personal fulfilment or potential. That the EU’s primary focus is upon ‘occupational’ integration is suggested in a European Parliament report, ‘The Mobility and Integration of People with Disabilities into the Labour Market’. The executive summary includes a section on the ‘situation of people with disabilities within the European Union’. This focuses on employment, with other factors such as health treated as stemming from the employment situation.196 Concerns about avoiding the ‘risk of disabled people with partial work capacity becoming “trapped” in the disability benefit system’197 speak to some of the economic concerns underlying ALMPs—reducing the cost of benefits. The adjuration to Member States to withdraw benefits to decrease ‘the burden for the welfare system’198 reveals a particular austerity model with significant implications for persons with disabilities. While such reductions may be least appropriate in times of recession, since those affected will find it harder to secure work, the Commission is adamant that increased targeting of the ‘inactive’, and greater benefit conditionality is the appropriate response to the economic crisis.199 In response to a question in the European Parliament, claiming that ‘[a]usterity 26.81 policies will lead to an increase in the number of people living in long-term institutional care in many Member States, and to the further social exclusion of persons with disabilities’,200 Commissioner Viviane Reding emphasised employment policies such as tax incentives for employers to recruit persons with disabilities.201 In response to a question citing evidence that care centres for persons with disabilities were facing closure,202 the Commission acknowledged that the financial crisis ‘has had a strong effect … particularly on vulnerable groups like people with disabilities’, but went on to claim that the EU policy response was to ‘improve the situation of vulnerable groups by increasing their employability’.203 In other words, the Commission treats persons with disabilities

194 Committee of Experts on Universal Design, ‘Achieving full participation through Universal Design’. Adopted by the Committee on the Rehabilitation and Integration of People with disabilities (Council of Europe Publishing, 2009), 9. 195 European Commission DG ECFIN SGP Six-pack http://ec.europa.eu/economy_finance/articles/ governance/2012-03-14_six_pack_en.htm. 196 Above n 30, p 7. 197 Ibid, p 8. 198 PES (Public Employment Services 2020 Working Group) 2011, PES and EU 2020: making the employment guidelines work. Adopted by Heads of PES in Budapest, Hungary on 23–24 June 2011, p 4. 199 Council of Ministers of the European Union, EPSCO (2011) ‘Joint Employment Report’ 7396/11, p 23. 200 ‘Debate: The impact of austerity on the living conditions of people with disabilities’ Pervenche Berès, on behalf of the Committee on Employment and Social Affairs 22 February 2013, O-000018/2013. 201 Strasbourg, CRE 12 March 2013–21. 202 Above, n 33. 203 Answer given by Viviane Reding on behalf of the Commission 5 February 2013 E-010988/2012.

Charlotte O’Brien

739

Part I – Commentary on the Articles of the EU Charter

as targets for welfare reduction, without engaging with the specific issues of social care services, or of inability to work or inability to find work. The language of employability notwithstanding, the benefits arm of the European Employment Strategy could increase poverty and social exclusion amongst disabled persons, conflicting with Article 26 CFR. 26.82 The European Commission has also decried the ‘benefit trap’ as an obstacle to labour market participation.204 The language of ‘traps’ can disguise the underlying message to withdraw support, and springboard people into an often unreceptive job market. This approach is evident in the list of key challenges in the European Parliament report (which includes ‘rising public spending’)205 and in references to ‘tackling the issue of young disabled people on benefits’,206 in line with the linguistic manoeuvres by which disabled people become ‘targets’ rather than recipients of support. Hence employment services are exhorted to target ‘the inactive … like disabled, lone mothers, women at home, early retired, or those on sick leave’.207 The language of the EU Disability Strategy 2010–20 is rather vehement, declaring an intention to ‘fight those disability benefit cultures and traps that discourage [disabled people] from entering the labour market’, as well as supporting national developments of ‘active labour market policies’.208 The wording of Article 26 CFR could indicate that ALMPs may be used as a prism through which this particular provision is to be viewed. If this is the case, it substitutes a politically charged economic policy for a human right. (b) Article 26 CFR as Interpretative Aid 26.83 Having considered the terms of Article 26 CFR, we will now consider its impact on other EU provisions. The only reference so far made in the ECJ to Article 26 CFR was buried, being in a footnote of an Advocate General Opinion, but it does signal some of the interpretative uses to which the article could be put. The case was Coleman,209 and the issue in question was whether the Directive 2000/78 prohibition of discrimination on the grounds of disability meant only one’s own disability or could also include the grounds of another’s disability. Advocate General Poiares Maduro stated that the Directive should be read within a ‘broader human rights context’, listing the instruments recognised in Recital 4 of the Directive, and adding the UNCRPD and the Charter of Fundamental Rights, namely Chapter III and Article 26.210 These references supported the claim that the legislation be interpreted in the light of its objectives, which here required a broad approach. 26.84 Article 26 CFR was therefore considered to contribute to an understanding of the Directive, notwithstanding the Charter’s then uncertain status. Having since acquired

204 European Commission, Roadmap: European Disability Strategy ‘Initial impact assessment screening & planning of further work’ DG EMPL/G/3. 205 Above, n 30, p 13. 206 Ibid, p 56. 207 Public Employment Services 2020 Working Group 2011, PES and EU 2020: making the employment guidelines work. Adopted by Heads of PES in Budapest, Hungary on 23–24 June 2011. 208 European Disability Strategy, above n 22, p 7 No 4. 209 Above, n 169. 210 Ibid, Opinion of 31 January 2008; fn 4 to para 7.

740

Charlotte O’Brien

Art 26 – Integration of Persons with Disabilities

the level of primary law its role may now be bolder when it comes to interpreting other legislation. But bearing in mind that the Charter was written in 2000, can this provision be characterised, without some artificial retro-fitting, as party to the ‘conceptual and methodological sea change has taken place in international law since the end of the 20th century’?211 The answer may well be yes, if the provision were one of the front-runners of this change, but this may not have been the original intention, since the explanatory text singles out older instruments as the ‘basis’ for the article, without mentioning any progressive or new spins upon those instruments. However, original intentions are not binding; it is conceivably within the spirit of relevant instruments to retroactively reinterpret the Charter in light of the UNCRPD. Although the Court’s judgment in Coleman did not mention Article 26 CFR, it did refer to the Community Charter of the Fundamental Social Rights of Workers, noting the need to ensure ‘the social and economic integration of disabled people’. The very notion of integration now seems to carry with it some of the spirit of the ‘sea change’, promoting a broad non-discrimination duty and promoting substantive equality and social integration. The Court found that a key objective of Directive 2000/78 was creating ‘a level playing 26.85 field’ in employment and occupation,212 which might be obviated by a narrow, technical reading of non-discrimination duties. Failing to protect from third party discrimination might ‘deprive that directive of an important element of its effectiveness and to reduce the protection which it is intended to guarantee’.213 It is notable that the duty owed to the employee arises from the characteristics of another outside of the employment relationship. There are, however, limits to the help Coleman offers to employees who care for persons with disabilities. Protection from discrimination is only explicitly extended to associates in the context of direct discrimination and harassment,214 and so has only been incorporated into UK law in those types of discrimination. Reasonable accommodation for associates is explicitly ruled out, as the Court claimed the provisions could be ‘rendered meaningless’ or ‘prove to be disproportionate if they were not limited to disabled persons only’,215 and the Court was silent on indirect discrimination by association. Direct discrimination and harassment require showing different treatment resulting 26.86 from disability. But most carers will be much more likely to suffer as a result of indirectly discriminatory PCPs (provisions, criteria and practices) that do not take account of the special circumstances (such as worse punctuality records) and needs (eg for extra flexibility) of carers of persons with disabilities. Insofar as Article 26 CFR might be used to indicate that for full social and occupational integration of persons with disabilities, their families and carers need also to be integrated, it may be used to push for an extension of the discrimination by association principle, to avoid pushing carers out of work and so pushing the families of persons with disabilities into poverty and social exclusion. Another recent development of the definition of direct discrimination arises from 26.87 Directive 2000/43 on racial and ethnic origin, but impacting upon Directive 2000/78

211 212 213 214 215

Above, n 109, emphasis added. Coleman above, n 169, 47. Ibid, 51. O’Brien, above n 120. Coleman, above, n 169, 42.

Charlotte O’Brien

741

Part I – Commentary on the Articles of the EU Charter

and disability. Feryn216 established that declaratory discrimination was unlawful. At issue was the question of whether, when an employer announced a discriminatory approach to recruitment, that announcement should form evidence of an actual discriminatory policy—or whether that announcement in itself was a discriminatory act. The Court found that such declarations were part of the recruitment process since they were ‘clearly likely to strongly dissuade certain candidates from submitting their candidature’,217 so constituted direct discrimination. To have found otherwise would, according to Advocate General Maduro, permit ‘the most blatant strategy of employment discrimination’218 through allowing publication ‘of the discriminatory character of their recruitment policy as overtly as possible beforehand’.219 Again, the aims of social and occupational inclusion were at stake, since allowing 26.88 declaratory discrimination would ‘undermine—rather than promote—conditions for a socially inclusive labour market’.220 It seems that only directly discriminatory declarations are captured by Feryn,221 but some of the most insidious and effective forms of discrimination are indirect or relate to reasonable accommodation. What of declarations that those unable to abide by certain (discriminatory) PCPs need not apply, or that particular adjustments will not be considered? Such statements are likely to dissuade persons from applying, and if they were not to attract legal sanction, would seriously undermine the purpose of the provisions on indirect discrimination and reasonable accommodations. Article 26 CFR might be deployed in a push for a stronger commitment to inclusion and integration, and developing declaratory discrimination so that employers are expected to publicly commit to indirect equal treatment and reasonable accommodation. Article 26 CFR may also influence the interpretation given to human rights instru26.89 ments incorporated into Union law. An integration-based approach could have a significant harmonising effect upon the legal construction of mental disability—an area of highly differentiated approaches between Member States. Presumptions in favour of loss of liberty, or of legal capacity, or of eligibility to vote may need to be dispelled, in light of the Article 12 CRPD requirement to ‘recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’. Where Unionrelated, human-rights-related questions about legal capacity—such as eligibility to vote in European elections—arise, it is plausible that Article 26 CFR will influence the ECJ towards adopting an agency-promoting position, taking account of the UNCRPD, rather than finding such instruments/concerns beyond its jurisdiction. That is not to say that the CFR would explicitly extend human rights competences (the limitations and Protocols stymie any such reading),222 but that it helps the ECJ identify where human rights should play an appropriate role in defining obligations which are clearly Union law matters. Where capacity must be recognised at an EU level, it might then make

216

Case C-54/07 Feryn [2008] ECR I-05187. Ibid, 25. 218 Ibid, AG Opinion 17. 219 Ibid. 220 Ibid. 221 And this is how the UK has interpreted it—see the explanatory notes to the Equality Act 2010. 222 Arts 51 and 53 CFR; Protocol on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom [2007] OJ C306/156. 217

742

Charlotte O’Brien

Art 26 – Integration of Persons with Disabilities

it difficult for a Member State to continue to deprive a national of the national vote on grounds such as being under partial guardianship (as in Alajos-Kiss v Hungary),223 creating some overlap—practically if not legally—with matters normally the purview of the ECtHR. Other overlaps might include questions of criminal procedure where non-nationals might be disadvantaged (as in Cowan),224 and where, in light of Article 26 CFR, disability must be into account. The ECtHR has already found that disability should be taken into account when detaining suspects or convicts, to avoid infringing Article 3 ECHR.225 This may be construed as an obligation to extend reasonable accommodation beyond the employment sphere where human rights are at stake— accommodations which might trigger Union duties under Article 26 CFR. Cowan indicates that receipt of services across borders may be construed widely. 26.90 The dimension of disability within this particular freedom has yet to be explored, but is likely to touch upon some particularly controversial points of alleged freedominfringement—for instance, the limits, unexplored in Grogan,226 that might be imposed upon the movement and advertising of abortion services—or limits that might be imposed upon pre-natal screening services where parents wish to avoid having a disabled child. A commitment to integration of persons with disabilities may require allowing Member States to restrict certain pre-natal services, rather than permitting the logic of the free market to operate at an eradicating extreme. But it is not clear that the argument would be marshalled in one direction only—it might work in favour of providing parents who have disabilities with greater control and selection over their potential progeny. Protection of the interests of persons with disabilities may require rethinking the fundamental freedoms, especially of services and goods, where the limits to ‘consumer protection’ defence have been criticised for focusing on able-bodied, able-minded (‘reasonably circumspect’) consumers,227 potentially neglecting the special requirements of some consumers. The potential reach of Article 26 CFR in terms of influencing other obligations, is clearly 26.91 considerable, yet it seems likely that it will be sporadically and incoherently invoked, and only when there is the right alignment of Union law elements. The possibility of Article 26 CFR producing a rather ad hoc, add-on set of disability considerations, rather than a coherent strategy of rights protection, is further explored in the section below.

IV. Limitations and Derogations It might not be straightforward to identify the effect of Article 52 CFR—that limita- 26.92 tions on Charter rights should be ‘provided for by law’. As Article 26 CFR is itself vague and general, it is difficult to define the right provided for by law, before arguing that any limitation must be so provided. Moreover, if Article 26 only provides for a right

223 Alajos-Kiss v Hungary App no 38832/06 (Council of Europe: European Court of Human Rights, 20 May 2010). 224 Case 186/87 Cowan [1989] ECR 00195. 225 Mouisel v France App no 67263/01 (14 November 2002). 226 Case C-159/90 Grogan [1991] ECR I-04685. 227 L Waddington, ‘The Internal Market and Disability Accessibility: Using EC Law to Establish an Internal Market in Disability Accessible Goods and Services’ Maastricht Working Papers 2008–3.

Charlotte O’Brien

743

Part I – Commentary on the Articles of the EU Charter

26.93

26.94

26.95

26.96

of enjoying pre-existing measures, the original non-provision of such measures could hardly, without stretching language considerably, be a departure from the Article not provided for by law. The limitations of other instruments may help define the limits of the Charter—such as the limits to protection from discrimination under the ECHR. Article 14 ECHR is parasitic upon other Convention rights, while the standalone provision of Article 1, Protocol 12 has not been ratified by all Member States, so that Member States may be reluctant to approve of the use of the Charter to create a strong generalised non-discrimination right (albeit just in the context of disability), as opposed to a right limited to employment and occupation, so ostensibly circumventing what might be seen as a deliberate gap. The ESC—one of the two key bases of Article 26 CFR—does contain some exceptions, though their reach will depend on interpretations of the ‘possible’; so signatory states should set up general schemes to provide education and vocational training for persons with disabilities ‘wherever possible’, and to rely on specialised schemes where not. In employment, states should encourage hiring and retention of disabled employees and require adjustment of working conditions—unless ‘not possible by reason of disability’ in which case sheltered employment should be provided. It is not entirely obvious that such definitions of impossibility are shared and uniform across businesses sited next door to each other, let alone across all signatory states. And the language of ‘possibility’ speaks to a potentially medicalised model of disability in which the disabled should be adapted, and where they cannot conform may be segregated, rather than questioning exclusionary practices and environments taken for granted because of the convenience of the majority.228 In essence, a significant limitation upon Article 26 CFR is the short-term economic approach adopted by Member States and the Union when deciding what counts as a ‘reasonable’ accommodation or adjustment, since the legal provisions for such adjustments are likely to be the key special measures to which Article 26 refers, and from which disabled people are entitled to benefit. It is also possible to identify some limits to any limitations—since related instruments must not be curbed by or restrictively interpreted with the Charter (Art 53). For example, the Charter should not act as a ceiling to the UNCRPD, embodying as it does, recognition of human rights to which the Union and all the Member States are party, and moreover being an instrument established years later than the Charter. So while Article 26 might be read as only offering a dilute right to benefit from special measures where they already exist, this cannot obviate the obligation under Article 5 CRPD to ‘take all appropriate steps to ensure that reasonable accommodation is provided’.229 Where other instruments suggest expansive interpretations of the Charter, their influence may be tempered by questions over how justiciable they are. The sources cited as origins of Article 26 are themselves difficult to rely upon. The CCFSRW is a ‘mere political declaration’,230 so of limited use when litigating. The ESC appears to have greater traction, not least as signatories are answerable to the European Committee of Social

228

O’Brien above, n 35. Art 5.3. 230 Eurofound, ‘Community Charter of the Fundamental Social Rights of Workers’, www.eurofound. europa.eu/areas/industrialrelations/dictionary/definitions/communitycharterofthefundamentalsocialrightsofworkers.htm. 229

744

Charlotte O’Brien

Art 26 – Integration of Persons with Disabilities

Rights, which ‘rules on the conformity of the situation in States with the European Social Charter’.231 However, it may be difficult to access the rights contained therein, as it is still a piece of international law, so again not conferring decisive rights in dualist systems, such as that of the UK, unless directly incorporated into national law. Moreover, the non-uniform nature of the ESC, due to uneven ratification of the revised version further limits its influence.

V. Remedies In the context of Article 26, the question of remedies goes to both existence and acces- 26.97 sibility. Dealing first with existence, direct reliance on the Charter would prove difficult for a number of reasons, but especially because of the claimed non-extension of Union competence, so that the Charter apparently only bites where other measures can be found. Looking to find other measures, if a disabled claimant is unable to benefit from provisions for reasonable adjustment, the nature of the remedy will depend on context and on Member State. Union law, though referencing accessibility and disability in a wide range of instruments, only makes provision for Article 26-relevant remedies in the context of employment and occupation. In such cases it is possible to rely on Directive 2000/78 and its national implementing measures. Where other contexts are engaged it depends on the national scope of discrimination/reasonable adjustment law. In the UK a claimant could rely upon the Equality Act 2010 to seek a remedy in an employment tribunal, or in the county court where they have been refused a reasonable adjustment in spheres such as education, and services and public functions—including travel. Remedies will typically be compensation; where a discrimination claim is made the determination of quantum will take account of ‘injury to feelings’, and is not subject to the limitations placed on other employment claims. However, there is no clear provision with regard to social inclusion or community 26.98 participation, though violation of Article 26 CFR in these respects will likely also involve violation of some aspects of the CRPD. As the Union is a signatory, it may be possible to rely on the Convention before the ECJ. However, it is not yet clear whether the ECJ would invoke the Convention in a reference made as part of an action against a Member State, possibly considering it beyond its remit232 to treat it as more than informative in such circumstances. The strong monitoring requirements built into the CRPD could give it more clout 26.99 than other international instruments—potentially leading to a remedy of change of practice. Each signatory has to designate an independent monitoring body, to promote enforcement of the convention, which reports to the convention committee. In England and Wales233 this is the Equality and Human Rights Commission; cases of infringement 231 Council of Europe, European Social Charter web page www.coe.int/T/DGHL/Monitoring/ SocialCharter. 232 Note the Commission’s emphasis on separation of national and EU competences when outlining EU monitoring actions: ‘Fifth Disability High level group report on the implementation of the UN Convention on the Rights of persons with disabilities’ (May 2012) 106, http://ec.europa.eu/justice/discrimination/files/ dhlg_5th_report_en.pdf. 233 In Scotland it is the EHRC: Scotland; in Northern Ireland it is the Equality Commission for Northern Ireland.

Charlotte O’Brien

745

Part I – Commentary on the Articles of the EU Charter

should be brought to the EHRC’s attention. In the EU, this responsibility is rather more diffused—the EU Commission has proposed establishing an ‘EU framework’ for promoting/protecting/monitoring, comprised of the European Parliament’s Petitions Committee, the European Ombudsman, the European Commission, the EU Agency for Fundamental Rights (FRA) and the European Disability Forum (EDF)—an umbrella organisation of civil society organisations working in the field of disability rights. It may not be immediately obvious to someone wishing to invoke the CRPD to address an Article 26 CFR infringement where to take the complaint—and there is the risk that shared responsibility is diluted responsibility, with cases being passed on between the organisations. In any case the framework’s tasks are rather limited—the ‘main area’ of proposed activity being EU legislation and policy, making implementation a secondary or subsidiary area. And implementation is only an interest of the framework with regard to EU institutions ‘in their capacity as Public Administration (for example in relation to their employees and in their interaction with the public)’.234 So seeking some form of remedy through monitoring and enforcement mechanisms at EU level may not be terribly fruitful, since such action may require specific individual claims and the realm of public administration may prove rather narrow. It is not clear for instance whether this remit would capture a claim based on the failure of an EU institution to guarantee a right, which is to be provided through a third party, as opposed to direct infringements by an EU institution. It is also not clear what actions the Framework bodies would take beyond collection of information, to be reported to the UN Committee. Where a perceived violation of Article 26 CFR is potentially discriminatory, and 26.100 another ECHR right is engaged, individuals may make claims under the ECHR, which may be recognised in domestic courts—eg in monist systems or where incorporated in dualist systems, such as the UK where claimants can rely upon the Human Rights Act 1998 to incorporate ECHR rights into national law. Where such a claim is not possible, because of the domestic status of the ECHR, or where it has been defeated but appeals allowed, claimants may be able to litigate before the European Court of Human Rights. However, such a claim could not be said to be rooted in Article 26 CFR, a Union instrument, and the claim must be one of discrimination, rather than a failure to promote social inclusion, or to provide special measures to encourage social inclusion, or a failure to guarantee the full enjoyment of such measures. Accessibility of remedies, as already noted, is of particular concern in the context of 26.101 disability, where disabled persons may be effectively deprived of legal agency through the concept of capacity, or may be refused appropriate assistance, or the right to appoint an agent, thanks to limitations paced on ‘standing’, so rendering certain rights unenforceable and reducing accountability of the public authorities. Those disabled people without carers or family members to offer support and help with asserting rights should not be excluded. The particular risk of loss of agency, through absence of adequate advocacy support, for persons with disabilities, has been highlighted in the European Court of Human Rights, with the Council of Europe Commissioner for Human Rights, Thomas Hammarberg, making an intervention in a case to support an application by an NGO on behalf of a person who had died, without a close relative or legal representative to take the case. Hammarberg criticised the ‘atmosphere of impunity surrounding

234

746

Above, n 232.

Charlotte O’Brien

Art 26 – Integration of Persons with Disabilities

abuses committed against people with disabilities’,235 and argued that not extending the standing requirements would ‘have the undesired effect of depriving a particularly vulnerable group of people of any reasonable prospect of seeking and obtaining redress for violations of their human rights’.236 In the context of employment rights, organisations wishing to act on behalf of per- 26.102 sons with disabilities in discrimination claims may be able to draw upon Feryn.237 That case involved declarations made to the world at large, rather than to specific, identified individuals, so it would have been difficult to identify those affected if they have chosen to not apply for a job. In Feryn, the case was launched by a third party, a Belgian organisation promoting equal opportunities and opposing racism. This could provide an example for organisations promoting equal opportunities in the context of disability. Moreover, the ECJ found that appropriate remedies could include the award of damages to the body bringing the proceedings, notwithstanding that such body is acknowledged not to be the ‘direct victim’.238

E. Evaluation The emphasis on integration rather than discrimination in Article 26 could indicate, or 26.103 be used to steer towards, an important new direction in thinking about disability equality within the EU. A more substantive, positive rights approach could draw from the strength of EU non-discrimination law and the breadth of EU laws referring to accessibility, to make facilitating integration an obligation beyond the spheres of employment and occupation. Article 26 captures, as this chapter has aimed to demonstrate, far-reaching and cross-cutting principles that touch and engage a vast range of other rights, both within the CFR and in other instruments; it is, in this sense, a ‘root’ right connected to many other branches of human rights. The UNCRPD arguably provides a ‘key’ to deciphering the content of Article 26 CFR, with its many provisions offering a great deal of detail as to the possible content of the enigmatically brief Charter right. Integration entails tackling a wide variety of forms of segregation, including genetic 26.104 segregation as embodied in sterilisation programmes, and also legal exclusion as highlighted by the progress of the Gauer sterilisation case. Rights of participation require dealing with legal agency, political agency and the problematic construct of ‘capacity’, while rights to independence, and to engage in the life of the community are inextricably linked with citizenship and autonomy, and private and family life rights, possibly forcing us to address the apparent devaluation of these rights when a claimant is disabled. Article 26 thus becomes a prism through which other rights should be considered. For example, the rights of children and the elderly must include a disability dimension to address the particular situation that disability can create in different contexts.

235 Press release, ‘Access to justice for persons with disabilities: Commissioner Hammarberg intervenes before the Strasbourg Court’ Comm DH033 (2011) Strasbourg, 18 October 2011. 236 Ibid. 237 Above, n 216. 238 Ibid, [38]–[39].

Charlotte O’Brien

747

Part I – Commentary on the Articles of the EU Charter

26.105

However, the rather general wording of Article 26 creates an elusive rather than concrete right. It is not clear how much of an obligation it places on Member States to enact special measures in the first place, or how extensive such measures should be to be considered sufficient, or how extensive Member State efforts should be to facilitate usage of those measures. Article 26 CFR could be read minimally as a non-interference provision. If this were the case, the provision may be somewhat incongruent with a strong promotion of the social model of disability, and the attendant obligations outlined in the UNCRPD—an instrument that should not be watered down by the Charter. 26.106 It is also not clear to what degree Article 26 addresses Member States, or if it just gives a course of action against Union institutions, a course that would be of limited use to the average citizen. But even then, Article 26 could still be a useful interpretative aid when deploying provisions of Union law; not only fundamental rights provisions, or discrimination/disability provisions, but also Union law on free movement, social security and citizenship. 26.107 The influence of Article 26 may not be wholly socially progressive, given the elision of social and occupational integration. The strong traditional economic bent in Union policy, favourable to formal rather than substantive equality, could mean that rather than adopting a more expansive approach to integration, other spheres of activity might be treated as subsidiaries of the primary sphere of employment and occupation. In domestic policy in the UK, for instance, it is possible to see a demonization of non-workers, and a manipulation of the language of the social model of disability so as to treat disability as irrelevant when making welfare benefit decisions. According to extreme ALMP logic all should be treated as capable of work, without regard for the social obstacles that remain in many work places and practices, and subsequent reduced opportunities afforded to disabled job-seekers.239 This move has been fuelled by a strongly ideological (neo-liberal) appropriation of the concepts of inclusion and participation, so as to suggest that individuals each bear responsibility for getting themselves into work. In the context of the European Union, in which disability has most prominently featured in employment related provisions and employment policy, it is all too plausible that integration, independence and life in the community will be subsumed into the short-hand version—work/employment, with all the shifts in burdens of responsibility that implies. The apparent galvanisation through Article 26 of the Union’s stance with regard to integration could in fact be a means to justify taking stronger lines in favour of active labour market policies and against disability ‘benefit traps’. So, it seems that the heart of Article 26 is still all to play for—it could prove an instrument of empowerment or an aid to coercion.

239 Sainsbury notes the danger of an ‘attack on the unemployed at a time when they are least able to do anything about it’. R Sainsbury, ‘21st Century Welfare—getting closer to radical benefit reform?’ (2010) 17(2) Public Policy Research 102.

748

Charlotte O’Brien

Article 27 Article 27 Workers’ Right to Information and Consultation within the Undertaking Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Union law and national laws and practices.

Text of Explanatory Note on Article 27 This Article appears in the revised European Social Charter (Article 21) and in the Community Charter on the rights of workers (points 17 and 18). It applies under the conditions laid down by Community law and by national laws. The reference to appropriate levels refers to the levels laid down by Community law or by national laws and practices, which might include the European level when Community legislation so provides. There is a considerable Community acquis in this field: Articles 138 and 139 of the EC Treaty, and Directives 98/59/EC (collective redundancies), 77/187/EEC (transfers of undertakings) and 94/45/EC (European works councils).

Select Bibliography A Alaimo, ‘Il coinvolgimento dei lavoratori nell’impresa: informazione, consultazione et partecipazione’, in S Sciarra and B Caruso (eds), Il lavoro subordinato (Torino, G Giappichelli editore, 2009) 641–707. T Blanke, ‘Workers’ right to information and consultation within the undertaking (Article 27)’ in B Bercusson (ed), European Labour Law and the EU Charter of Fundamental Rights (BadenBaden, Nomos, 2006) 255–89. G Braibant, La Charte des droits fondamentaux de l’Union européenne (Paris, Seuil, 2001) 171–75. F Dorssemont, ‘Worker involvement in secondary EC law prior to Recast Directive’ in F Dorssemont and T Blanke (eds), The Recast of the European Works Council Directive (Antwerp, Intersentia, 2010) 31–90. ——, ‘The recast of the European Works Council Directive’, in T Blanke et al (eds) Recasting Worker Involvement (Deventer, Kluwer, 2009) 127–56. C Kollonay Lehoczky, ‘The fundamental right of workers to information and consultation under the European Social Charter’ in F Dorssemont and T Blanke (eds), The Recast of the European Works Council Directive (Antwerp, Intersentia, 2010) 3–30. P Lorber, ‘Labour Law’, in S Peers and A Ward (eds), The EU Charter of Fundamental Rights (Oxford, Hart Publishing, 2004) 211–30. B Ryan, ‘The Charter and Collective Labour Law’ in T Hervey and J Kenner (eds), Economic and Social Rights (Oxford, Hart Publishing, 2003) 67–90.

A. Field of Application of Article 27 Article 27 is bound to be extremely relevant due to a long standing acquis in the field 27.01 of information and consultation rights. The explanations refer to some major EU Directives in this field which were in force in 2000. This catalogue can be updated.

Part I – Commentary on the Articles of the EU Charter

At present, it needs to be complemented by the Framework Directive 2002/12 and the Recast Directive 2009/39. The ‘geographical’ field of application (ratione loci) of these intertwined rights is indicated in a very summary manner, ie ‘at the appropriate levels’. The ‘personal’ scope (ratione personae) is indicated in a much more precise way. The holders of such a right are ‘workers’ or ‘their representatives’. The provision is entirely mute on the object of information and consultation (scope ratione materiae). 27.02 In my view, the mutism on the object could warrant the qualification of the right to information and consultation as constituting a ‘principle’ in the meaning of Article 52(5) of the Charter. Hence, this right would not be judicially cognisable in absence of an implementation within EU law. In my view, this flaw is far from being problematic, since the subject matter constitutes one of the most highly developed parts of EU labour law. 27.03 According to the explanation, the ‘conditions’ are defined both by EU law and by national laws. In my view, this explanation is not very consistent with the main idea that the Charter is only applicable to EU institutions and to the Member States implementing EU law. Thus, it is more consistent to state that the appropriate levels regarding the right to information and consultation are defined by the EU Directives implementing such a right. The latter will obviously be implemented in their own right by national legislation and/or practices in the Member States. However, these conditions defined by national law should be consistent with the EU Directives. Insofar as these EU Directives refer to national law and practices, the latter might come into play. An analysis of the applicable EU Directives amounts to the conclusion that the right 27.04 to information and consultation will come into play at a variety of levels — establishment and undertaking; — the ‘company’ in the meaning of company law; — the group of undertakings.

B. Interrelationship of Article 27 with Other Provisions of the Charter 27.05 The right to information and consultation cannot be dissociated from the exercise of the managerial prerogative. It constitutes a procedural restriction of the latter. The exercise of the managerial prerogative is deeply rooted in the freedom to conduct a business.1 This right is recognised ‘in accordance with Union law and national laws’. Many EU Directives have stressed the idea that the right to information and consultation should not affect the exercise of the managerial prerogative.2 27.06 The right to information and consultation needs to be distinguished from the right to ‘negotiate and conclude collective agreements at the appropriate levels’ of Article 28 of

1

See Art 16 Charter of Fundamental Rights of the European Union. Part 2(c) in fine of the Standard Rules of the SE Directive; Point 3 in fine of the subsidiary requirements of the Recast Directive (EWC) 2009/38, Art 2(1)(e) of the Framework Directive ‘Decisions within the scope of the employer’s power’. 2

750

Filip Dorssemont

Art 27 – Workers’ Right to Information

the Charter. Whereas the right to information and consultation precedes the adoption of a unilateral decision by management, the right to negotiate amounts to a legal act, ie an agreement, which will be concluded by management and labour. There is another distinction that is related to the issue of the holdership of the right. The right to negotiation is attributed to workers and employers or their respective organisations. The right to information and consultation is attributed solely to workers and their ‘representatives’. Contrary to the provision related to the right to ‘negotiate’, the ‘representatives’ are not identified as such. It is not at all clear whether the ‘representatives’ involved refer to representatives designated by trade unions, or representatives which are elected by workers’ representatives. In sum, whereas the right to negotiate is being construed as a trade union prerogative, the right to information and consultation is not being approached per se in such a manner. This potential dissociation in the holdership of the right to information and collective bargaining can constitute a problem, insofar as adequate information is a prerequisite for meaningful negotiations. The question arises as to whether the right to information and consultation could 27.07 be related to other provisions which help to contextualise the right to information and consultation. In cases of restructuring, the right to information and consultation could serve as a means to prevent or mitigate collective redundancies. At first sight, it seems challenging to relate the ‘right to protection against unjustified dismissal’3 to the right to information and consultation. In Mono Car Styling4 Advocate General Mengozzi examined to what extent the violation of the right to information and consultation was intertwined with the right to protection against unjustified dismissal. The Advocate General distinguished between an employment protection aimed at combatting unjustified dismissals and employment protection related to merely irregular dismissals. He concluded that ‘Breaches of Directive 98/59, on the other hand, do not appear to be such as to justify reference to Article 30 of the Charter for, given the content of the directive, it is intended that the result of such breaches will be illegality of a formal/ procedural kind.’5 In our view, Article 31 of the Charter (the right to working conditions which respect 27.08 his or her health, safety and dignity) might be relevant for the issue of information and consultation, insofar as a case could be built that worker involvement is essential to the issue of health and safety (the right to working conditions which respect his or her health, safety and dignity). Many arguments seem to plead in favour of such a case. Thus, the Community Charter of Fundamental Social Rights of Workers (1989) insists on the adoption of measures which ‘take account, in particular, of the need for the training, information, consultation and balanced participation of workers as regards the risks incurred and the steps taken to eliminate or reduce them’ in view of the right to enjoy satisfactory health and safety conditions in his working environment.6 Article 22 of the Revised European Social Charter recognises a right to take part in the determination and improvement of the working conditions and working environment in the

3

See Art 30 Charter of Fundamental Rights of the European Union (emphasis added). See Opinion of AG Mengozzi in Case C-12/08 Mono Car Styling [2009] ECR I-6653. 5 Ibid [96]. 6 See Point 19 of the Community Charter for fundamental social rights of workers: www.aedh.eu/plugins/ fckeditor/userfiles/file/Conventions%20internationales/Community_Charter_of_the_Fundamental_Social_ Rights_of_Workers.pdf (emphasis added). 4

Filip Dorssemont

751

Part I – Commentary on the Articles of the EU Charter

undertaking. Last but not least, the Framework Directive 89/391 insists in the recitals on the necessity of ‘information, dialogue and balanced participation on safety and health at work’.7 Article 11 of the Directive adopts a very progressive stance to the issue of worker involvement. As opposed to worker involvement in scenarios of restructuring, worker representatives are not only informed and consulted, but are entitled to play a more proactive role by submitting proposals to the employer. The article refers to ‘participation’. 27.09 In Commission v Netherlands,8 the CJEU has considered that ‘the aim of the Directive is to promote balanced participation of employers and workers in activities related to protection against and prevention of occupational risks’.9 27.10 The Court has rejected the view that this objective is merely instrumental to the protection of health and safety. Though the Court had to rule in a dispute on the precedence which the Directive has given to the internal organisation of protective and preventive services, the considerations of the Court with regard to the aims of the Directive transcend the issue of the organisation of these services. It has considered that these aims are ‘not solely improving the protection of workers against accidents at work and the prevention of occupational risks, but also intending to to introduce specific measures to organise that protection and prevention’.10 The considerations are also relevant to assess the quintessential nature of other modalities of worker involvement, such as the role played by worker representatives.

C. Sources of Article 27 Rights 27.11 As indicated in the Explanation, two obvious sources can be put forward which have stressed the fundamental character of the right to information and consultation. Both sources are fairly recent. The Explanation refers to Article 21 of the Revised European Social Charter.11 Article 21 states: With a view to ensuring the effective exercise of the right of workers to be informed and consulted within the undertaking, the Parties undertake to adopt or encourage measures enabling workers or their representatives, in accordance with national legislation and practice: (a) to be informed regularly or at the appropriate time and in a comprehensible way about the economic and financial situation of the undertaking employing them, on the understanding that the disclosure of certain information which could be prejudicial to the undertaking may be refused or subject to confidentiality;

7 See Recital Council Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work [1989] OJ L183/1–8. 8 Case C-441/01 Commission v Netherlands ECR I-5463. 9 Ibid [54]. 10 Ibid [38]. 11 For a more comprehensive analysis of the right to information and consultation in the RESC, see in minute detail the excellent contribution of C Kollonay Lehoczky, ‘The fundamental right of workers to information and consultation under the European Social Charter’, in F Dorssemont and T Blanke (eds), The Recast of the European Works Council Directive (Antwerp, Intersentia, 2010) 3–30.

752

Filip Dorssemont

Art 27 – Workers’ Right to Information

(b) to be consulted in good time on proposed decisions which could substantially affect the interests of workers, particularly on those decisions which could have an important impact on the employment situation in the undertaking.

This article dates back to the adoption of the 1988 Additional Protocol and has been 27.12 integrated in the 1996 Revised European Social Charter. It is to be regretted that the explanation does not refer to the more specific Article 29 RESC, which recognises a right to information and consultation ‘in situations of collective redundancies’. The article adopts a less rigorous stance on the issue of the timing of the information and consultation procedure, as opposed to EU Directive 98/59. It prescribes information and consultation ‘in good time prior to such collective redundancies’, whereas EU Directive 98/58 obliges an employer to inform and consult as soon as he contemplates collective redundancies. The RESC illustrates how the consequences of collective redundancies could be mitigated. In this respect, it suggests, inter alia, recourse to accompanying social measures aimed, in particular, at aid for the redeployment. EU Directive 98/59 also suggests such measures, but also mentions the idea of aid for retraining workers. The Explanation also point to Articles 17 and 18 of the Community Charter of 27.13 Fundamental Social Rights of Workers. These provisions state: 17. Information, consultation and participation for workers must be developed along appropriate lines, taking account of the practices in force in the various Member States. This shall apply especially in companies or groups of companies having establishments or companies in several Member States of the European Community. 18. Such information, consultation and participation must be implemented in due time, particularly in the following cases: — when technological changes which, from the point of view of working conditions and work organisation, have major implications for the work force are introduced into undertakings; — in connection with restructuring operations in undertakings or in cases of mergers having an impact on the employment of workers; — in cases of collective redundancy procedures.

The question arises whether the right to information and consultation could possibly 27.14 be related to the progressive development of the scope of Article 11 of the European Convention of Human Rights. In National Union of Belgian Police, the European Court of Human Rights acknowledged that a police union which was not recognised as representative for the provincial and municipal civil service, had the right ‘to be heard’ by the government.12 The right of unions ‘to be heard’ is the first corollary right which the European Court of Human Rights has recognised as being ‘necessarily inherent’ in the right to form and join trade unions to ‘protect’ the interests of workers. The Court in fact argued that the phrase ‘for the protection of his interests’ is not redundant.13 Thus the teleological coda of Article 11(1) serves as the basis for the development of corollary rights which have not been explicitly recognised. The Court ruled that a trade union has the right to make its position known to the government (as employer), to be heard and to defend the interests of its members. The union in question in fact enjoyed this right.

12 13

National Union of Belgian Police App no 4464/70 (ECtHR, 27 October 1975). Ibid [39].

Filip Dorssemont

753

Part I – Commentary on the Articles of the EU Charter

27.15

27.16

27.17

27.18

27.19

The right to be heard needs to be distinguished from the right to be consulted. As evidenced by the facts of the case, the trade union concerned had the right to be heard, but it did not have a right to be consulted with regard to the adoption of the regulations applicable to the municipal and provincial staff. This process needs to be distinguished from collective bargaining. The regulations were adopted through a unilateral act of the administration. They were related to the employment conditions of the entire municipal and provincial staff. Obviously, the police union was not representative at all in this respect. In contrast to several judges who issued dissenting opinions, the Court felt that the police union likewise did not have a right to be involved in the adoption of those provisions pertaining solely to police members.14 The precise scope of the ‘right to be heard’ is troublesome. In National Union of Belgian Police, the Court did not provide much guidance. In Wilson the Court reaffirmed the recognition of the right to be heard as a general principle.15 In applying this general principle to the facts of the case, it elaborated on the existence of a ‘right to seek to persuade the employer to listen to what it has to say on behalf of its members’.16 Referring to the development of ‘essential elements’ in its case law, the Grand Chamber in Demir and Baykara II did not refer to ‘a right to be heard’, but solely to this more elaborated formula. Hence, there can be no doubt that these two formulas refer to an identical element considered to be inherent in the right to organise.17 The right to be heard has been construed as an essential element of trade union freedom. Its object remains unclear. The right to be informed and consulted goes further. It will force an employer to provide precise information in a more proactive manner, whereas he only has to receive a trade union which wants to be heard if it insists on being heard. The right to be heard does not in my view force an employer to substantiate the reasons why the observations expressed could not be taken into account. Furthermore, the right to be heard has been construed as an essential trade union prerogative, whereas the right to be informed and consulted can be exercised by workers’ representatives. There is no reason to assume that the latter will have to be trade union officials. Though it would be erroneous to suggest that information and consultation rights ought to be construed as trade union prerogatives, the attribution of those rights to elected workers’ representatives might generate a risk of undermining the position of trade unions within the enterprise. Equally, however, it guarantees representation in work places where trade unions are not organised.18 Last but not least, the right to information and consultation has been given a constitutional status in some EU Member States.19 As a general rule, most of the provisions which could be used as a basis to warrant that the right to information and consultation is constitutionally anchored, do not refer as such to the existence

14

Ibid [49]. Wilson, National Union of Journalists and Others v United Kingdom App no 15573/89 (ECtHR, 2 July 2002) [42]. See also KD Ewing, ‘The implications of Wilson and Palmer’ [2003] Industrial Law Journal 1–22. 16 Wilson, National Union of Journalists and Others (n 15) [44]. 17 Demir and Baykara v Turkey App no 34503/97 (ECtHR, 12 November 2008) [145]. 18 Case C-382/92 Commission v United Kingdom [1994] ECR I-2435. 19 See in this respect T Blanke, ‘Workers’ right to information and consultation within the undertaking (Article 27)’ in B Bercusson (ed), European Labour Law and the EU Charter of Fundamental Rights (BadenBaden, Nomos, 2006) 269–78. 15

754

Filip Dorssemont

Art 27 – Workers’ Right to Information

of a right to information and consultation. Instead they use a more generic formula related to an idea of ‘participation’ of the workers in the management of the firm. Examples are legion: — Article 46 of the Italian Constitution; — the Preamble of the French Constitution (1946); — Article 54 of the Portuguese Constitution (which also refers to information in an explicit way); and — Article 19 of the Dutch Constitution. The word ‘participation’ is somewhat ambiguous. It could refer to a generic concept 27.20 like ‘worker involvement’ or to the idea that workers through their representatives have a right to co determination. This general formula was first used in the Constitution of the Weimar Republic.20

D. Analysis I. General Remarks An analysis of the acquis of workers’ involvement Directives reveals that the European 27.21 legislator regulates national as well as transnational information and consultation procedures. One can spot a certain historic fluctuation. The Collective Redundancy Directive21 and the Transfer of Undertakings Directive22 which came into being in the mid seventies, are primarily aimed at national restructuring operations. This does not prevent a transnational transfer of undertaking from falling within the scope of the Transfer of Undertakings Directive. The subsidiarity principle should not be explained in such a way that the European legislator must refrain from regulating purely national restructuring operations. The interest of the European Commission in transnational issues of worker involve- 27.22 ment issues led to a successful breakthrough only at the beginning of the 1990s, with

20 Art 165 of the Weimar Constitution: ‘Workers and employees are called to collaborate on equal footing with the entrepreneurs to the regulation of wages and working conditions as well as to the overall economic development of the productive forces. The organisations of workers and entrepreneurs and their agreements are recognised. Workers and employees will be represented for the furtherance of their social and economic interests in workers’ councils as well as in district workers’ councils at professional level as well as in the Federal workers’ council.’ (Original German: Die Arbeiter und Angestellten sind dazu berufen, gleichberechtigt in Gemeinschaft mit den Unternehmern an der Regelung der Lohn- und Arbeitsbedingungen sowie an der gesamten wirtschaftlichen Entwicklung der produktiven Kräfte mitzuwirken. Die beiderseitigen Organisationen und ihre Vereinbarungen werden anerkannt. Die Arbeiter und Angestellten erhalten zur Wahrnehmung ihrer sozialen und wirtschaftlichen Interessen gesetzliche Vertretungen in Betriebsarbeiterräten sowie in nach Wirtschaftsgebieten gegliederten Bezirksarbeiterräten und in einem Reichsarbeiterrät.) 21 Council Directive 98/59/EC on the approximation of the laws of the Member States relating to collective redundancies [1998] OJ L225/16–21. 22 Council Directive 2001/23/EC on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses [2001] OJ L82/16–20.

Filip Dorssemont

755

Part I – Commentary on the Articles of the EU Charter

the adoption of the EWC Directive (in 1994).23 A second breakthrough was the SE Directive (2001).24 Workers’ participation within the Societas Europaea was already at the heart of the proposal for a Council Regulation on the statute for a European limited liability company (1970).25 The Framework Directive 2002/1426 links up again with the concern to regulate information and consultation on a national level. The amendments and rewriting of the Collective Redundancy Directive and the Transfer of Undertakings Directive in 1992, 1998 and 2001 show that this concern has been ongoing. 27.23 As regards content, the legislator seems to have paid attention to the issue of permanent and general economic and social information (and consultation), as well as to that of information and consultation in extraordinary circumstances affecting workers’ interests to a considerable extent. 27.24 The European legislator seems to have expended most of his efforts on the issue of information and consultation. The more delicate matter of participation—more delicate because it is more conditioned by national and ideological differences—remained mostly untouched. It is not consecrated by the Charter. 27.25 In 1998 and 2001, the Directives of 1975 and 1977 respectively were repealed and replaced. In this process, a remarkable recital was added.27 In this recital, a specific reference to the Community Charter of the Rights of Workers was made. Regrettably, neither Directive refers to the Additional Protocol of the European Social Charter.

II. Scope of Application (a) Holdership Ratione Personae 27.26 The workers’ involvement Directives aim at developing a so-called right to information and consultation or participation. The Directives clearly show that workers’ representatives have a natural vocation to exercise these rights. This, however, does not make them per se holders (in French: titulaires) of these rights. In our view, the right to information and consultation are best described as collective 27.27 freedoms (libertés collectives). The collective character of these freedoms stems from three factors. First, these rights do not consider their holders primarily as atomised individuals of civil society, but as members of a collective. Second, these employment rights are not only collective due to the way they are exercised, their content is of a collective nature as well. The subject of the information and consultation is fundamentally the global or collective situation of workers.

23 Council Directive 94/45/EC on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees [1994] OJ L254/64–72. 24 Council Directive 2001/86/EC supplementing the Statute for a European company with regard to the involvement of employees [2001] OJ L294/22–32. 25 [1970] OJ C124/1. 26 Directive 2002/14/EC establishing a general framework for informing and consulting employees in the European Community—Joint declaration of the European Parliament, the Council and the Commission on employee representation [2002] OJ L80/29–34. 27 Recital 6 of the Preamble of the Collective Redundancy Directive and Recital 5 of the Preamble of the Transfer of Undertakings Directive.

756

Filip Dorssemont

Art 27 – Workers’ Right to Information

However, the holders of these collective freedoms are, in our opinion, individual workers. ‘The collective’, the ‘labour’, the ‘trade union’ or the body representative of the workers is not the holder of these collective liberties. The Community Charter construes this right to information and consultation unequivocally as a fundamental right of workers. At first sight, the wording of the Additional Protocol of the European Social Charter and the Charter of Nice is more ambiguous. The right to information and consultation is declared as a right for the benefit of workers or their representatives. The Explanatory Report to the Additional Protocol explains that the use of the word ‘or’ has no exclusive meaning. The explanation seems to indicate an inclusive use. The distinction between the legal capacity to enjoy the benefits of these rights and the legal capacity to actually exercise these rights is not emphasised.28 It is remarkable that the Charter only mentions the right to information and consultation of workers in the heading of Article 27. Employee representation is only mentioned in the wording of the fundamental right following the heading. The manner in which this fundamental right is drafted seems to indicate the exercise rather than mere enjoyment of the right. The reference to employee representatives in both declarations does not seem to be an argument to edge off the thesis that employees are the real holders of these fundamental rights. On the contrary, it seems to emphasise the importance of employee representation in the exercise of this fundamental right. Moreover, this reference seems to create a buffer against direct or atomising employee representation systems. In the recent Mono Car Styling 29 judgment with regard to the Belgian transposition of the Collective Redundancies Directive, the Court of Justice considered that the right to information and consultation is addressed (destiné) to workers’ representatives and not to employees individually. It was said to benefit the employees as a whole. The Court did consider that the right is exercised by workers’ representatives. These elements are not at odds with the idea that employees as members of a group can be considered to be the holders of a right to information and consultation as a collective freedom. However, the Court rejected such an approach and decided to qualify the right to information and consultation as being of a ‘collective nature’. It allowed Member States to deny an individual employee’s access to justice in the event of a violation of information and consultation procedures. Thus, it seems the Court is unable to recognise that the right to information and consultation is being held by employees as opposed to workers’ representatives. The Court did not look into the human rights instruments related to information and consultation. The judgment was merely based on a teleological and systematic interpretation of the Collective Redundancies Directive.

28 See ‘Rapport explicatif au Protocol additionnel’ in Charte sociale européenne (Strasbourg, Editions du Conseil d’Europe, 2001) 131: ‘que les droits reconnus par ces deux dispositions peuvent être exercées par les travailleurs ou par leurs représentants, ou par les uns et les autres’. 29 Case C-12/08 Mono Car Styling (n 4).

Filip Dorssemont

757

27.28

27.29

27.30

27.31

Part I – Commentary on the Articles of the EU Charter

III. Specific Provisions (a) Information 27.32 The most embryonic form of ‘involvement’ is the right to information. In a number of European Directives the content of the term ‘information’ is not defined.30 The SE Directive and the Framework Directive do contain such a definition.31 The definition of the right to information violates the id per id prohibition in some languages. The Dutch versions link the right to information to the provision of data by the employer to the employee representatives in order to allow them to acquire knowledge, explore a relevant subject and assess it. The emphasis is on the auxiliary function of information, as opposed to consultation. 27.33 Information does not imply the transfer of knowledge or the transfer of an opinion on certain facts. It aims at the transfer of data which constitutes the basis of knowledge and the formation of an opinion by the employee representatives. 27.34 The employer’s duty to cooperate with the consultative bodies forces the former to perform this duty to inform in good faith.32 The definitions according to the SE Directive and the Framework Directive emphasise the implications of this principle with respect to the time, the manner and content of this information. 27.35 Neither the Framework Directive’s nor the SE Directive’s definitions of ‘information’ make it clear that this information must be in writing. More specific clauses of these Directives do not mention the written character of this information, either. Article 2 of the Subsidiary Requirements of the EWC Directive mentions ‘the right to meet with the central management once a year, to be informed and consulted, on the basis of a report drawn up by the central management’. The extraordinary information and consultation meeting takes place on the basis of a report (oral or written?) of the central or any another management at a more appropriate level. 27.36 Neither the European Social Charter, the Community Charter, nor the Charter of Nice mentions the oral or written nature of the information. 27.37 The Recast (EWC) Directive 2009/38 defines the concept of information as ‘a transmission of data by the employer to the employees’ representatives in order to enable them to acquaint themselves with the subject matter and to examine it’.33 Furthermore, the Recast Directive indicates that ‘information shall be given at such time, in such fashion and with such content as are appropriate to enable employees’ representatives to undertake an in-depth assessment of the possible impact and, where appropriate, prepare for consultations with the competent organ of the Community-scale undertaking or Community-scale group of undertakings’.34

30 See, eg the Collective Redundancy Directive, the Transfer of Undertakings Directive and the EWC Directive. 31 Art 2(i) SE Directive and Art 2(f) Framework Directive. 32 For the implications of a pre-institutional and pre-negotiational duty to cooperate, see Case C-62/99 Bofrost [2001] ECR I-2579 (analysed below). 33 Art 2(1)(f) Recast Directive. 34 Ibid (emphasis added).

758

Filip Dorssemont

Art 27 – Workers’ Right to Information

(b) Consultation The ‘right to consultation’ can be defined best by contrasting it with a process of ‘collective bargaining’.35 Consultation is a procedure in which employees or their representatives can influence employers’ decisions. This decision takes on the form of a unilateral expression of the will. Formally, employee representatives do not take part in this final decision. The idea of ‘consultation’ suggests that there is a scope of powers exercised by the employer. A number of provisions refer to this scope as the ‘managerial prerogative’.36 The objective of collective bargaining is a meeting of the wills in a collective agreement. This implies a voluntary reduction of the unilateral managerial powers. With this procedure, certain matters are withdrawn from the scope of the managerial prerogative. As long as a certain collective agreement remains in force, its subject matter cannot be unilaterally changed by the employer. The Collective Redundancy Directive, the Transfer of Undertakings Directive, the SE Directive and the Framework Directive seem to obscure the clear-cut distinction between ‘consultation’ and ‘collective bargaining’ According to the Collective Redundancy Directive and the Transfer of Undertakings Directive, the employee representatives, for instance, are consulted ‘with a view to reaching an agreement’ (Art 2).37 The SE Directive mentions consultation in the event of ‘exceptional circumstances affecting the employees’ interests to a considerable extent’. The Standard Rules determine that, in such circumstances, the representative body is entitled to express an opinion on ‘measures significantly affecting employees’ interests’. Where the competent organ decides not to act in accordance with the opinion, a further meeting will take place ‘with a view to seeking agreement’. The Framework Directive mentions the opinion of employees’ representatives followed by ‘a response and the reasons for that response’ obtained from the employer. If this exchange of opinions or dialogue concerns ‘decisions likely to lead to substantial changes in work organisation or in contractual relations’, the consultation must take place ‘with a view to reaching an agreement’.38 The passage ‘with a view to reaching an agreement’ expresses the objective of the consultation procedure. In the EWC Directive and the Transfer of Undertakings Directive, the objective of the consultation procedure is not clarified. The use of the terminology ‘with a view to reaching an agreement’ is somewhat puzzling. It would be better not to interpret the term ‘agreement’ as a formal collective agreement. Such an interpretation seems problematic for the following two reasons.

35 In this respect, see also O Kahn-Freund, Labour and the Law (London, Stevens & Sons, 1972) 91–92 and T Van Peijpe, ‘Industrial Relations Processes’ in J Malmberg (ed), Effective Enforcement and EC Labour Law (The Hague, Kluwer International, 2003) 78–80. 36 Part 2(c) in fine of the SE Directive; Art 3 in fine of the EWC Directive, Art 2(1)(e) of the Framework Directives ‘Decisions within the scope of the employer’s power’. In this respect, see: R Blanpain, F Blanquet, F Herman and A Mouty, Vredeling Proposal. Information And Consultation Of Employees In Multinational Enterprises (Deventer, Kluwer, 1983) 22 and F Dorssemont, ‘Richtlijn 94/45’ [1995] Revue de droit social 462–63. See also ILO Recommendation no 94. 37 Art 2(1) Collective Redundancy Directive and Art 7(2) Transfer of Undertakings Directive. 38 Art 4 Framework Directive.

Filip Dorssemont

759

27.38

27.39

27.40

27.41

27.42

27.43

Part I – Commentary on the Articles of the EU Charter

27.44

27.45

27.46

27.47

27.48

27.49

The terminology used in certain language versions (‘akkoord’, ‘overeenstemming’, ‘accord’, ‘accordo’, ‘Einigung’) is not the traditional terminology used to indicate binding collective agreements in the Member States. It is unlikely that the European legislator would have wanted the organs with traditional information and consultation obligations to obtain real power to enter into collective agreements. The Framework Directive mentions information and consultation explicitly with a view to reaching an agreement on decisions which fall within the scope of the managerial prerogative. The opposite conclusion would imply some kind of competition between employee representatives which belong to a trade union and those who do not. A number of ILO instruments emphasise the fact that information and consultation rights must not be used to undermine the position of trade unions.39 This interpretation interferes directly with the issue of employee representation. A more plausible and meaningful interpretation of the use of the word ‘agreement’ seems to be that the consultation process should not be reduced to a formal juxtaposition of a proposal for a decision from the employer’s side, and the opinion on this proposal from the employees’ side, after which the autocratic managerial decision process can continue. The Framework Directive indicates in a constructive way that the employer with a duty to consult must give reasons for not taking into account this opinion. The Court of Justice, however, does not seem to accept this interpretation. In two cases of 8 June 1994, the Court did not deem the UK legislation transposing this Directive to be in conformity with the Directive. The Commission was of the opinion that the UK Employment Protection Act and the Transfer of Undertakings Regulations had not correctly implemented the duty to consult with a view to reaching an agreement. Both Acts provided only for an obligation to consult with respect to intended redundancies, the obligation to take remarks into account, reply to these remarks and motivate rejections. The Court acknowledged the critique of the Commission.40 The Court, however, did not indicate the added value of this formula. The EWC Directive, the SE Directive and the Framework Directive give definitions for the ‘right to consultation’. The common denominator of these definitions is that consultation is indicated as a ‘dialogue’ or ‘an exchange of points of view or thoughts’.41 The litmus test to assess the efficiency and ‘progressiveness’ of the different definitions and approaches in all of these Directives is a matter of anteriority. This matter is about the chronology of the obligation to consult. The subject and the direct cause of the obligation to consult are usually referred to as circumstances affecting the employees’ interests to a considerable extent.42 The use of the term ‘circumstances’ seems somewhat surprising. ‘Circumstances’ seems to refer to events beyond the control of the employer or undertaking, which take him by surprise or which are related to the state of affairs he happens to run into. In reality, consultation is a process of legal acts on behalf of and at the expense of the employer. This is exactly why it is invariably stated that the information and consultation

39

In this respect, see also Art 5 ILO Convention no 135 and ILO Recommendations nos 94 and 113. Case C-382/92 Commission v United Kingdom (n 19). 41 Art 2(f) EWC Directive, Art 2(j) SE Directive and Art 2(e) Framework Directive. 42 In this respect see Recital 3 of the Subsidiary Requirements of the EWC Directive; Part 2(c) SE Directive. 40

760

Filip Dorssemont

Art 27 – Workers’ Right to Information

procedure does not affect the ‘managerial prerogative’. In the end, the exercise of these prerogatives is the subject of the information and consultation procedure. The use of the word ‘circumstances’ seems to act as some kind of lightning rod. It distracts attention from the fact that in the end, the legal acts of the employer are at stake. Secondly, it puts up a smoke screen. It is not clarified at all whether consultation relates to decisions or to proposals of decisions. In this respect, the wording of Article 4 of the Framework Directive, in which the term ‘decisions’ is used, can only be applauded. The Directives related to workers’ involvement seem to suggest that the employer has a duty to inform and consult in circumstances affecting the employees’ interests to a considerable extent. This assumption ignores the fact that the negative impact of such ‘circumstances’ will always be caused by a decision of the employer (collective redundancy, closure). ‘Circumstances’ will never affect the employees’ interests to a considerable extent. Inevitably, the question arises whether consultation should take place before or on the moment the decision is taken. The most important international human rights instruments concerning the right to information and consultation have weighty indications that information and consultation must take place before the employer takes his decision. Article 2 of the Additional Protocol to the European Social Charter43 mentions a ‘right to be consulted in good time on proposed decisions which could substantially affect the interests of workers, particularly on those decisions which could have an important impact on the employment situation in the undertaking’. Article 18 of the Community Charter emphasises that consultation must be implemented in due time (inter alia) ‘in connection with restructuring operations in undertakings or in cases of mergers having an impact on the employment of workers and in cases of collective redundancy procedures’. Article 27 of the Charter of Fundamental Rights of the EU stipulates that: ‘workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Union law and national laws and practices.’ It does not indicate the subject of consultation.44 The use of the terms ‘restructuring’ and ‘procedures’ in the Community Charter is somewhat vague. It is not clear in which phase of the process consultation must start. According to the so-called Action Programme launched by the European Commission as a result of the Community Charter, information and consultation needed to be operated ‘before taking any decision liable to have serious consequences for the interests of workers’.45 In the Collective Redundancy Directive, wording was used which removes all doubt about the fact that the consultation procedure must take place before the employer’s

43 For an analysis of this article, see: L Samuel, Droits sociaux fondamentaux (Strasbourg, Editions du Conseil de l’Europe, 2002) 475–77; F Van Damme, ‘Les droits protégés par la Charte sociale, contenu et protée’ in J-F Akandji-Kombe and S Leclerc, La Charte sociale européenne (Brussels, Bruylant, 2001) 24–25. See also ‘Rapport Explicatif au Protocol additionnel de 1998’, nos 29–44 in Charte sociale européenne (n 29) 131–34. 44 G Braibant, La Charte des droits fondamentaux de l’Union européenne (Paris, Seuil, 2001) 171–75. 45 COM (89) 568 final, 33.

Filip Dorssemont

761

27.50

27.51 27.52

27.53

Part I – Commentary on the Articles of the EU Charter

decision. The Court of Justice has emphasised this anteriority abundantly in Junk46 and recently in Fujitsu Siemens.47 27.54 The duty to consult arises from the moment the employer contemplates collective redundancies. The anteriority is a function of the objective of the consultation procedure since it is primarily aimed at avoiding collective redundancies. A consultation to reduce the dimensions of or mitigate the adverse effects of the decision is a second best option. It is regrettable that the legislator has abandoned such unambiguous and progressive position in the wording of the more recent Directives. In the Subsidiary Requirements of the EWC Directive, the wording is somewhat compromised. The versions preceding the final version of the Directive mention a consultation procedure for proposed decisions whilst at the same time pointing at the responsibility of the central management for the final decision. The chosen wording does not show how the anteriority issue has been solved. This vagueness is probably intentional—to make the text capable of compromise. 27.55 Whilst the Subsidiary Requirements of the Recast (EWC) Directive indicate that information and consultation must take place as soon as possible, this was omitted in the Standard Rules of the SE Directive. The general definition of the term ‘consultation’ indicates that consultation must take place ‘at a time … which allows the employees’ representatives … to express an opinion … which may be taken into account in the decision-making process.’48 It is our view that the decision-making process regarding restructuring is a strongly 27.56 phased process. Schematically, four stages can be distinguished: (a) the moment at which the employer actually contemplates a restructuring decision; (b) the moment at which the employer makes this decision; (c) the moment at which the decision is communicated to employees’ representatives or third parties; (d) the moment at which the decision is implemented. 27.57 It is completely unclear to which moment in time the chronology of the EWC and SE Directives refers. The Framework Directive makes no reference to the chronology of the consultation 27.58 procedure, either in the definition of ‘consultation’ or in its body text. Article 4(4) of the Framework Directive mentions in rather vague terms that consultation shall take place ‘while ensuring that the timing [is] appropriate’. In the original version of this Directive, the effectiveness principle was also expressly referred to in the definition of the term ‘consultation’. The definition then added ‘ensuring that the timing, method and content are such that this step is effective’. The reference to effectiveness in Article 1(2) of the Framework Directive49 will hopefully act as a catalyst for a progressive interpretation which does justice to the principle of anteriority.

46 Case C-188/03 Imtraud Junk v Kühnel [2005] ECR I-885. For an interpretation, see our annotation in (2006) 43 Common Market Law Review 1–17. 47 Case C-44/08 Akavan Erityisalojen Keskusliitto v Fujitsu Siemens Computers [2009] ECR I-8163. 48 Art 2 SE Directive. 49 [1999] OJ C2.

762

Filip Dorssemont

Art 27 – Workers’ Right to Information

The previous EWC Directive has defined consultation as ‘the exchange of views and 27.59 establishment of dialogue between employees’ representatives and central management or any more appropriate level of management’.50 The Recast Directive has added precision to this definition. Thus, consultation is being described as ‘the establishment of dialogue and exchange of views between employees’ representatives and central management or any more appropriate level of management, at such time, in such fashion and with such content as enables employees’ representatives to express an opinion on the basis of the information provided about the proposed measures to which the consultation is related, without prejudice to the responsibilities of the management, and within a reasonable time, which may be taken into account within the Community-scale undertaking or Community-scale group of undertakings’.51 In sum, the Recast Directive has underlined the essence of timing, form and substance 27.60 for information and consultation. It correctly defines information as the transfer of data rather than of knowledge. The timing, the form and substance of the communication should allow the workers’ representatives to ‘undertake an indepth assessment’—to acquire knowledge. Both definitions are in line with good legislative practices expressed in the SE Directive and the Framework Directive. The definition of information combines elements of the definition enshrined in the 27.61 latter Directives.

IV. Limitations and Derogations (a) Limitations of the Fundamental Right to Information and Consultation Fundamental employment rights are hardly ever absolute rights. The right to information 27.62 and consultation is no exception to this. Numerous European and international human rights instruments have already indicated these limitations. Below, these limitations are considered at this level first, and then analysed in the workers’ involvement Directives. (b) Limitations Ratione Personae Thresholds Article 2(2) of the Additional Protocol of the European Social Charter (1988) gives the 27.63 Contracting States the opportunity to exclude companies from the scope of application of the article if the number of employees is lower than a certain threshold determined by law or national practice.52 Neither the Community Charter nor the Charter of Fundamental Rights seems to 27.64 take the scale of undertakings into account in the determination of the scope of application of rights. Title X of the TFEU refers to the right to information and consultation. Article 153(2) TFEU expressly states that such Directives shall avoid imposing

50 51 52

Art 2(1)(f) EWC Directive. Art 2(1)(g) Recast Directive (emphasis added). In the same sense see also nos 44–46 of the Rapport Explicatif (n 29) 134.

Filip Dorssemont

763

Part I – Commentary on the Articles of the EU Charter

27.65

27.66

27.67

27.68

27.69

administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings. Most of the Directives scrutinised in this contribution have a minimum threshold of employment as conditio sine qua non for the actual enjoyment of the right to information and consultation. Some of these thresholds can be derived from the description of the substantive scope of application of these Directives. The threshold can mostly be derived from the stipulations describing the personal scope of application. The definition of the term ‘collective redundancy’, for instance, implies that the Collective Redundancy Directive only applies to establishments (‘établissement’, ‘Betrieb’) normally employing more than 20 workers. This minimum threshold must relate to employment within this ‘establishment’.53 The Court of Justice54 has clarified that this term should be given an autonomous Community meaning. The Framework Directive prescribes a duty to inform and consult at the level of undertakings employing at least 50 employees in any one Member State or establishments employing at least 20 employees in any one Member State. Whether this duty to inform and consult should take place at undertaking or establishment level is a matter for the Member States. It seems that the legislator has wanted to indicate that information and consultation procedures can be organised at the level of an entity with a certain form of independence (the undertaking) or at the level of a part of the undertaking (the establishment). The Appendix to the Additional Protocol also refers to the distinction between ‘undertakings’ and ‘establishments’. In spite of the fact that Article 2 of the Additional Protocol mentions information and consultation at undertaking level, the Appendix clarifies that the Contracting States are equally considered as fulfilling the obligations by developing the right to information at the level of the establishments. The Explanatory Report clarifies that these are ‘production units economically and legally bound to a single management centre’.55 The most prohibitive thresholds can be found in the EWC (Recast) Directive. The applicability of the Directive depends on a double condition regarding personnel thresholds. The effectiveness of this condition depends on whether it concerns a Community-scale undertaking or a Community-scale group of undertakings. In both cases, there must be at least 1000 employees within the Member States. The second condition is related to the transnational distribution of the work force. The second condition presupposes a ‘domestic’ work force threshold of 150 employees in at least two different Member States with at least 150 employees. The work force of 150 employees, however, is allocated differently, depending on whether it concerns an undertaking or a group of undertakings. In the first hypothesis the Community-scale undertaking must employ 150 employees in each of at least two Member States. Employment figures in different establishments of the Member State can be added up for the calculation of the threshold. In the second hypothesis, one undertaking with at least 150 workers must exist in at least two Member States. Adding up the number of workers of the undertakings in

53

Art 1 of the Collective Redundancy Directive. Case C-449/93 Rockfon A/S v Specialarbejderforbundet i Danmark [1995] ECR I-4291. See also the analysis of C Barnard, EU Employment Law (Oxford, Oxford University Press, 2012) 490–92 and S HennionMoreau, ‘La notion d’entreprise en droit social communautaire’ [2001] Droit social 964. 55 See no 69 of the Rapport Explicatif (n 29). 54

764

Filip Dorssemont

Art 27 – Workers’ Right to Information

the same Member State is not allowed. A simple legal operation incorporating establishments could suffice to avoid the application of the Directive. The Transfer of Undertakings Directive imposes the obligation to inform and consult on the transferor and transferee irrespective of the number of transferred employees, let alone the number of employees in the undertaking of the transferor and the transferee. Article 7(5), however, stipulates that Member States may limit the obligations to inform and consult to undertakings or businesses which, in terms of the number of employees, meet the conditions for the election or nomination of a collegiate body representing the employees. In circumstances such as these, the requirement to inform the workers in good time of the date, the reasons and the implications of the transfer and measures envisaged still stands. The Collective Redundancy Directive does not contain a similar provision. This Directive does, however, presume the existence of so-called ‘workers’ representatives’. In these circumstances, an employer will not be able to hide behind the fact that in that particular undertaking or establishment, the legal threshold for workers’ representation was not met. The SE Directive is the only participation Directive in which the personal scope of application is completely irrespective of the number of employees. The personal scope of application is defined in function of the capital.56

27.70

27.71

27.72

27.73

Tendenzschutz—Religion or Belief? In the Appendix to the Additional Protocol, the personal scope of application is related 27.74 to ‘undertakings’. The provided definition has an implied limitation. It relates to a purely economic concept of undertaking.57 Undertakings are referred to as only those entities producing goods or services for financial gain and with power to determine its own market policy. The aforementioned Appendix also leaves room for the so-called Tendenzschutz.58 It states that religious communities and their institutions can be excluded from the application of Article 2 of the Additional Protocol. This exclusion is not primarily based on the assumption that these institutions have no economic activities. The Contracting States can also exclude tendency undertakings (Tendenzbetrieb)59 from the scope of application as much as necessary for the safeguarding of the orientation of the undertaking protected by law.

56 In this respect, see also the astonishment of F Fimmano, ‘Società Europea: ultimo atto’ [1994] Rivista della Società 1035. 57 In the same sense see also no 37 of the Rapport Explicatif (n 29) 133. 58 Tendenzschutz refers to the protection of the ‘tendency’ of ‘undertakings or establishments which pursue directly and essentially political, professional organisational, religious, charitable, educational, scientific or artistic aims, as well as aims involving information and the expression of opinions’ (Art 3(2) Framework Directive 2002/14). 59 The Appendix defines tendency undertakings as ‘Establishments pursuing activities which are inspired by certain ideals or guided by certain moral concepts, ideals and concepts which are protected by national legislation’. No 68 of the Rapport explicatif (n 29) 138 clarifies that this explanation was inserted in the Appendix to achieve more conformity between the German Betriebsverfassungsgesetz and the Additional Protocol. (Cf below section D.VIII.)

Filip Dorssemont

765

Part I – Commentary on the Articles of the EU Charter

27.75

This presupposes that it will have to be proven how curtailing fundamental employment rights will actually be necessary to guarantee the ideological orientation of the company. This is not self-evident, since this information and consultation procedure does not affect the essence of the economic power of decision. 27.76 The European legislator seems to have concerned himself with the so-called Tendenzschutz only as regards the EWC Directive. Neither the Collective Redundancy Directive nor the Transfer of Undertakings Directive contains such provisions. 27.77 The sympathy for so-called ‘tendency undertakings’60 in the EWC Directive, the EWC (Recast) Directive, the SE Directive and the Framework Directive is conditional. Members States may lay down particular provisions regarding the Tendenzschutz in their transposition law on the condition that, ‘at the date of adoption of [the] Directive such particular provisions already exist in the national legislation.’61 This rather conservative approach of the Tendenzschutz is in sharp contrast to the approach of the Tendenzschutz in Directive 2000/78 establishing a general framework for equal treatment in employment and occupation. Article 4(2) leaves room for maintaining national legislation as well as providing future legislation after the adoption of the Directive. In the latter hypothesis, such legislation must, however, incorporate national existing practice. At the end, the article stipulates in a positive way that the Directive shall not prejudice the requirement of individuals working for the ‘tendency organisations’ mentioned in it, to act in good faith and with loyalty ‘to the organisation’s “ethos”’. The provisions regarding Tendenzschutz constitute a conflict of fundamental rights. 27.78 Remarkably enough, this conflict affects two completely different collective freedoms. The collective freedom of information and consultation is weighed against the freedom of education, ideology and religion. A collective identity conditioned by labour is opposed to a collective identity conditioned by ideology or religion. The legislator does not really solve this conflict. He does, however, offer Member States the possibility to extrapolate their own assessment of this conflict of fundamental rights to the SE or the EWC and to maintain limitations of information and consultation inspired by Tendenzschutz at undertaking or group level. It seems that the concrete scope of ‘human rights’ deemed universal or fundamental, is in fact determined by cultural and national differences. Seagoing Vessels 27.79 None of the traditional international declarations (Additional Protocol of the European Social Charter, Community Charter and Charter of Nice) with respect to the right to information and consultation exclude the crews of seagoing vessels or merchant navy crews from the scope of application. The exclusion of ‘seagoing vessels’ from the scope of application of workers’ involve27.80 ment Directives dates from the mid-1970s. The Collective Redundancy Directive and Transfer of Undertakings Directive exclude ‘the crews of seagoing vessels and seagoing

60 G Dole, La liberté d’opinion et de conscience en droit comparé du travail (Paris, LGDJ, 1997) 128–42 and E Verhulp, Vrijheid van meningsuituiting van werknemers en ambtenaren (The Hague, SdU, 1996) 299–301, 327–28. 61 Art 8(3) EWC Directive; Art 8(3) Recast (EWC) Directive; Art 8(3) SE Directive; Art 3 Framework Directive.

766

Filip Dorssemont

Art 27 – Workers’ Right to Information

vessels’ [sic] from their scope.62 Since both Directives were drafted expressly as minimum standards, there is room for Member States to extend the protection provided by these Directives to these categories. The exclusion of ‘seagoing vessels’ from the scope of application is terminologically 27.81 somewhat unfortunate. ‘Seagoing vessels’ are in themselves incapable of falling within the substantive, territorial or personal scope of these Directives. The situation is different when it comes to the crew of seagoing vessels and their employer, as well as company activities developed by means of seagoing vessels. In the proposal of the EWC Directive, the initial approach taken was different. In 27.82 principle, the crew of seagoing vessels fell within the personal scope of application of this Directive. However, subject to the principles and objectives of the Directive, and as far as deemed necessary, the Member States had the possibility to adopt special provisions applicable to the crew of seagoing vessels and adjusted to the special circumstances under which these crews have to work.63 The final version of the EWC Directive provided that the Member States can stipulate that the Directive shall not apply to merchant navy crews.64 Neither the SE Regulation nor the SE Directive contains provisions regarding the issue of the merchant navy. In the Framework Directive, an analogous but more nuanced wording was opted 27.83 for. Article 3(3) authorises Member State to derogate from this Directive through particular provisions applicable to the crews of vessels plying the high seas. In the original proposal, there were no exclusion or limitation grounds whatsoever regarding the merchant navy. (c) Limitations Ratione Materiae: Secrecy and Confidentiality In exceptional situations, a conflict of interest can arise between the interest of workers being informed on the economic and financial situation of the undertaking and the interest of ‘the undertaking’ protecting itself against the risk of damage resulting from such information being distributed to third parties. This field of tension is recognised by the Additional Protocol of the European Social Charter. Article 2(1) under (a) states that the disclosure of certain information which could be prejudicial to the undertaking may be refused or subject to confidentiality. In the first hypothesis, this concerns ‘secret’ information which will only be known to the management. In practice, not only the content but also the existence of such information is a secret. Employees or their representatives might find out about the existence of this information at best when management refuses to answer certain questions, expressly referring to its ‘secret’ character. The question whether management is obliged to mention the existence of secret information is inevitable. The second hypothesis concerns confidential information. The wording of the Additional Protocol seems to indicate that management must indicate the confidential character of the information and the legal implication that this information must not be spread amongst third parties. The Additional Protocol does

62 63 64

Art 1(3) Transfer of Undertakings Directive and Art 1(2)(c) Collective Redundancy Directive. Art 2(3) Proposal EWC Directive [1994] OJ C135. Art 1(5) EWC Directive.

Filip Dorssemont

767

27.84

27.85

27.86

27.87

Part I – Commentary on the Articles of the EU Charter

not provide a single criterion to distinguish confidential from secret information. It is not clear whether management can judge at its own discretion whether or not the company’s interests need to be protected by keeping information secret or informing workers on a confidentiality basis. An argument against this discretion is that confidentiality is a less far-reaching curtailment of the right to information and consultation. 27.88 Provisions regarding secret or confidential information can be found in the EWC (Recast) Directive, the SE Directive and the Framework Directive. Neither the Collective Redundancy Directive nor the Transfer of Undertakings Directive indicates that the confidential or secret character of certain information can be used as a legitimate reason to limit the information and consultation procedure described therein. This finding can lead to only one conclusion. Such limitations must be prohibited. General provisions of domestic law regarding secret or confidential information will have to be applied in compliance with the Directives. They certainly do not apply to situations of collective redundancy or transfer of undertakings.

V. Remedies 27.89 Rights regarding involvement without efficient and dissuasive sanctioning system are normally only respected by civilised employers. Informing and consulting workers is not unrelated to a general duty to treat them with respect.65 Denial of information and consultation procedures is an undeniable sign of contempt.66 Normally, the European legislator confines himself to the prescription of rights and 27.90 obligations. When it comes to the sanctioning mechanism for violating these rights and obligations, he resorts to complete mutism. This can probably be explained by the mechanisms organised at Member State level. In practice, sanctions cannot be seen separately from sanctioning systems. The autonomous organisation of these systems is an emanation of the sovereignty of Member States. It is not surprising that the European legislator refrains from prescribing a certain type of sanction. The Court of Justice has stated repeatedly that Member States, when implementing Directives, must guarantee effective, proportionate and dissuasive sanctions.67 The fact that the European legislator, completely redundantly, reminds Member 27.91 States of this rule in the body of a Directive, shows the importance and the problems of sanctioning. The use of such wording in Article 8(2) of the most recent version of the Framework Directive is remarkable. This passage reminds us of similar wording used in anti-discrimination Directives.68

65

Cf Art 16 of the Belgian Employment Agreement Act. In this respect, see the qualification of such behaviour as a form of ‘dédain’ (contempt) in the criminal case against Louis Schweitzer (Renault): Corr Brussels, 20 March 1998, Journal des Tribunaux de Travail 281, Chroniques de droit social 1998, 379. 67 In this respect, see the principle of ‘effective enforcement’: B Fitzpatrick, ‘Development of the principle of effective enforcement’ in J Malmberg (ed), Effective Enforcement and EC Labour Law (n 36) 43–58. This principle has been entered into the Framework Directive (Framework Directive 8(2)). The EWC Directive (Art 11(3)) only mentions appropriate measures in the event of failure to comply. Art 12(2) of the SE Directive is limited to appropriate measures in the event of failure to comply. 68 Art 15 of Directive 2000/43 and Art 17 of Directive 2000/78. 66

768

Filip Dorssemont

Art 27 – Workers’ Right to Information

The EWC (Recast) and SE Directives only indicate the necessity of ‘appropriate mea- 27.92 sures’ in the event of ‘failure to comply with this Directive’. The Collective Redundancy Directive and the Transfer of Undertakings Directive do not contain any provisions in that respect. It would, however, be wrong to state that the prescription of certain sanctions does not match with the choice for a Directive as legislative instrument. In the recent anti-discrimination Directives, for instance, traditional civil law sanctions had been included, such as the invalidity of contract clauses, of provisions in collective agreements and provisions in the articles of incorporation of professional organisations.69 The Collective Redundancy Directive contains clear sanctions for failing to comply 27.93 with the duty to inform and consult. Article 4 of Directive 98/59 states that ‘projected collective redundancies notified to the competent public authority shall take effect not earlier than 30 days after the notification referred to in Article 3(1) without prejudice to any provisions governing individual rights with regard to notice of dismissal’. This notification means a notification to the competent authorities of the intention of collective redundancy. This notification must provide proof that the employer has met the consultation requirement and how this was done. Without information and consultation procedure, the notification to the administrative authority will not be valid. The wording of Article 4 implies that breach of the administrative procedure and/or of the information and consultation procedure is sanctioned by the fact that the collective redundancy as legal transaction will produce no effect. The first proposal for a Framework Directive contained an analogous sanction. 27.94 Article 7(3) of the original proposal read: Member States shall provide that in case of serious breach by the employer of the information and consultation obligations in respect of the decisions referred to in Article 4(1)(c) of this Directive, where such decisions would have direct and immediate consequences in terms of substantial change or termination of the employment contracts or employment relations, these decisions shall have no legal effect on the employment contracts or employment relationships of the employees affected. The non production of legal effects will continue until such time as the employer has fulfilled his obligations or, if this is no longer possible, adequate redress has been established, in accordance with the arrangements and procedures to be determined by the Member.70

This sanction reminds us of the proposal for the SE Directive of 1991. In this proposal, 27.95 a similar sanctioning mechanism was elaborated in the event of failure to comply with the information and consultation rights of the representative body.71

E. Evaluation When the Charter of Fundamental Rights was adopted by the Convention, the Member 27.96 States could already rely on a vast acquis covering information and consultation in recurring and extraordinary situation, though the Framework Directive 2002/14 had

69

Art 14 of Directive 2000/43 and Art 16 of Directive 2000/78. [1999] OJ C2. 71 Art 5(2)(5) Amended proposal for a Council Directive complementing the statute for a European company with regard to the involvement of employees in the European company [1991] OJ C138. 70

Filip Dorssemont

769

Part I – Commentary on the Articles of the EU Charter

not yet been adopted. In sum, the Charter seems to consolidate and ‘constitutionalise’ a rich acquis. The reference to the Community Charter in the Agreement on Social Policy attached to the Protocol on Social Policy of the Maastricht Treaty is a prefiguration of this phenomenon of constitutionalisation. It reflects a classical paradigm of labour law as being based on the need to protect fundamental workers’ rights. The adoption of the ‘new’ EU Directives 1998/59 (collective redundancies) and 2001/23 (transfer of undertaking) referring in an innovative manner in their recitals to a right to information and consultation is consistent with this classical conceptualisation of labour law as well. Such a constitutionalisation might be beneficial to adopt a prudent approach towards attempts to attack the acquis on the basis of distinct paradigms of labour law where other considerations come into play (eg a discourse related to employability, employment policies and even—horresco referens—better or smart regulation). 27.97 The question arises whether the recognition of the right to information and consultation inside the Charter has only a retrospective value or whether it could serve as a tool for some judicial activism. This question is hard to answer. Though the CJEU is constantly forced to interpret this impressive body of EU Directives in the field of workers’ involvement, it has never referred to Article 27 to justify its interpretations. The latter certainly does not mean that the Court has not provided evidence of judicial activism in this field of EU labour law. However, the teleological method of interpretation has shown to be a sufficient technique to be on the offensive while interpreting these detailed EU Directives. One might state that there is no immediate need to build on the Charter to interpret the EU Directives in a progressive manner. 27.98 Article 27 might not be a perfectly adequate means to enhance a progressive interpretation of EU Directives, if an effet utile approach would not be sufficient to so. Indeed, the formula of Article 27 is not deprived of some major flaws. It does not reach the level of precision and clarity of the more ambitious formula of the RESC. An interpretation which is consistent with the RESC could be a way to overcome this loophole. At first sight, there are two major hurdles which complicate such an intertextual interpretation. First, the Charter does not in a general way preach such an intertextual canon of interpretation of other international human rights instruments. The only reference to such an interpretation is enshrined in Article 52(3) and refers to the European Convention on Human Rights. Neither has the Court of Justice pledged any commitment to this interpretation in a way which mirrors the Grand Chamber judgment in Demir and Baykara72 of the ECtHR. Secondly, Article 27 only recognises a right to information and consultation ‘under the conditions provided for by Union law and national laws and practices’. Insofar as it can be argued that the right to information and consultation results from constitutional traditions common to the Member States73 and insofar as the RESC can be considered to be part of that tradition, that loophole could be overcome. 27.99 In a very strict reading, such a coda gives an unrestricted leeway to both the European Union and the Member States to modulate the attribution and the exercise of the right to information and consultation. In my view, such an unrestricted leeway amounts to an absurd contradiction with another major idea behind the transversal Article 52 of the Charter. Article 52(1) clearly prescribed that there is an essential hard core of the

72 73

770

Demir and Baykara (n 18). See Art 52(3) of the Charter.

Filip Dorssemont

Art 27 – Workers’ Right to Information

rights and freedoms granted in the Charter. In sum, the leeway given to the European Union and the Member States in my view should respect that hard core. In absence of more precise and clear criteria laid down in Article 27, the Revised European Social Charter might come into plain to delimit that essential content. This will be helpful in my view, to provide more clarity on the timing, the form and the quality of information and consultation procedures. The impressive list of limitations and derogations enshrined in EU Directives seeking 27.100 to promote a right to information and consultation could be challenged as not sufficiently honoring such a hard core. Some of these provisions, in fact generate a differential treatment between workers as holders of such a right. The essential hard core might be helpful to overcome divergencies between EU Directives as far as the formulation of the right to information and consultation is concerned or they could urge the EU legislator to continue the work of recasting these Directives in order to favour more recent and ambitious formulations of that right.

Filip Dorssemont

771

Article 28 Article 28 Right of Collective Bargaining and Action Workers and employers, or their respective organisations, have, in accordance with Union law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.

Text of Explanatory Note on Article 28 This Article is based on Article 6 of the European Social Charter and on the Community Charter of the Fundamental Social Rights of Workers (points 12 to 14). The right of collective action was recognised by the European Court of Human Rights as one of the elements of trade union rights laid down by Article 11 of the ECHR. As regards the appropriate levels at which collective negotiation might take place, see the explanation given for Article 27 CFREU. The modalities and limits for the exercise of collective action, including strike action, come under national laws and practices, including the question of whether it may be carried out in parallel in several Member States.

Select Bibliography E Ales and T Novitz, Collective Action and Fundamental Freedoms in Europe. Striking the balance (Oxford, Intersentia, 2010). L Azoulai, ‘The Court of Justice and the Social Market Economy: the emergence of an ideal and the conditions for its realisation’ (2008) 45 Common Market Law Review 1335. C Barnard (ed), (2007–08) 10 Cambridge Yearbook of European Legal Studies chs 17–22. R Blanpain and A Swia˛kowski, The Laval and Viking Cases: Freedom of Services and Establishment v Industrial Conflict in the European Economic Area and Russia (Dordrecht, Kluwer, 2009). A Bücker and W Warneck, Reconciling Fundamental Social Rights and Economic Freedoms After Viking, Laval and Rüffert (Berlin, Nomos, 2011). ACL Davies, ‘One Step Forward, Two Steps Back? The Viking and Laval Cases in the ECJ’, (2008) 37 Industrial Law Journal 126. KD Ewing, The Right to Strike (Oxford, OUP 1991). —— and J Hendy, ‘The Dramatic Implications of Demir and Baykara’ (2010) 39 Industrial Law Journal 2. B Gernigon, A Odero and H Guido, ILO Principles Concerning the Right to Strike (Geneva, ILO, 2000). C La Macchia (ed), The Right to Strike in the EU The Complexity of the Norms and Safeguarding Efficacy (Rome, Ediesse, 2011). J Malmberg and T Sigeman, ‘Industrial Actions and EU Economic Freedoms: The Autonomous Collective Bargaining Model Curtailed by the European Court of Justice’ (2008) 45 Common Market Law Review 1115. T Novitz, International and European Protection of the Right to Strike (Oxford, OUP, 2003). S Prechal and S de Vries, ‘Seamless web of judicial protection in the internal market’ (2009) European Law Review 5.

Part I – Commentary on the Articles of the EU Charter

P Syrpis and T Novitz, ‘Economic and Social Rights in Conflict: Political and Judicial Approaches to their Reconciliation’ (2008) 33 European Law Review 411. For further bibliography on the judgments in various EU languages, see: www.etui.org/ Topics/Social-dialogue-collective-bargaining/Social-legislation/The-interpretation-by-theEuropean-Court-of-Justice/Reaction-to-the-judgements/Articles-in-academic-literature-onthe-judgements.

A. Field of Application of Article 28 CFREU 28.01 Article 28 CFREU applies to ‘the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law’ in accordance with Article 51(1) CFREU. 28.02 This right therefore applies to (1) the institutions, bodies, offices and agencies of the Union and (2) the Member States when they are implementing Union law. We shall consider these situations in turn, and their application to Article 28 CFREU. 28.03 In respect of the first situation, the Charter can be used by, and against, the EU institutions, bodies, offices and agencies in at least three ways: (1) To challenge the activities of the EU institutions, bodies, offices and agencies when legislating or otherwise acting in the field of EU law. So if the Union tried to legislate in a way which interfered with the right to strike or engage in collective bargaining, and this could not be justified, it is likely that any such measure could be challenged as being incompatible with Article 28 CFREU. Alternatively, if one of the EU institutions breached the right to strike of its own employees, those employees could raise Article 28 as a grounds of challenging that act. (2) To provide a justification for EU legislation in the field. The Monti II proposal1 provides a good example of using Article 28 to justify EU legislative action in this field. Article 28 is expressly referred to in the Preamble of Monti II. Monti II was actually proposed under the general legal basis Article 352 TFEU. Article 153(5) TFEU was rejected as a legal basis because it contains an express exclusion of EU competence under Article 153 TFEU for matters concerning ‘pay the right to association, the right to strike or the right to impose lock-outs’. Monti II was intended to help resolve the tensions between EU economic rights (the right to free movement) and national social rights (the right to strike), tensions which were highlighted by the decisions in Viking and Laval (see below).2 Monti II has since been withdrawn following the so-called ‘yellow card’ procedure.3

1

COM (2012) 130. Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti [2007] ECR I-10779 and Case 341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets avdelning 1, Byggettan and Svenska Elektrikerförbundet [2007] ECR I-11767. 3 http://ec.europa.eu/dgs/secretariat_general/relations/relations_other/npo/letter_to_nal_parl_en.htm. 2

774

Catherine Barnard

Art 28 – Right of Collective Bargaining and Action

Alternatively, the existence of Article 28 CFREU can be used to justify legislating to ensure non-interference with fundamental rights. An example pre-dating the Charter illustrates this potential use: Council Regulation 2679/98,4 the so-called Monti I Regulation, set up an intervention mechanism to safeguard free trade in the Single Market. The Regulation provides that State A can complain to the Commission about obstacles to the free movement of goods which are attributable to State B—either through action or inaction—where the obstacles lead to serious disruption of the free movement of goods, cause serious loss to the individuals affected and require immediate action.5 However, any use of this complaints procedure is subject to the fundamental rights recognised in Article 2 of the Regulation (the so-called ‘Monti’ clause): This Regulation may not be interpreted as affecting in any way the exercise of fundamental rights, as recognised in Member States, including the right or freedom to strike. These rights may also include the right or freedom to take other actions covered by the specific industrial relations systems in Member States.

This Regulation also provided the justification for the European Parliament to insert into its revised proposal for the Services Directive an equivalent ‘Monti’ clause,6 and again in the Macro-economic Surveillance Regulation.7 (3) To steer the Court of Justice’s interpretation of, for example, a provision in a secondary measure. An example, Werhof,8 taken from the related right of freedom of association, demonstrates this. The case concerned the Transfer of Undertakings Directive 2001/889 where the question was raised whether a transferee was bound by a collective agreement subsequent to the one in force at the time of the transfer of the business, when the transferee was not party to that collective agreement. The Court began by recognising ‘Freedom of association, which also includes the right not to join an association or union10 ... is one of the fundamental rights which, in accordance with the Court’s settled case-law, are protected in the [Union] legal order’.11 It then considered two approaches to the interpretation of the Directive. The first, the ‘dynamic’ interpretation, supported by the claimant employee, would mean that future collective agreements continued to apply to a transferee even if he was not party to a collective agreement, with the result that his fundamental right not to join an association could be affected.12 The second, the ‘static’ interpretation, supported by the defendant transferee, made it possible to avoid a situation in which the transferee of a business who is not party to a collective agreement is bound by future changes to that agreement.13

4

OJ [1998] L337/8. Art 1(1). 6 Art 1(7) of Dir 2006/123 [2006] OJ L376/36. 7 Regulation 1176/2011 OJ [2011] L306/25. 8 Case C-499/04 Werhof v Freeway Traffic System GmbH & Co KG [2006] ECR I-2397. 9 OJ [2001] L82/16. 10 Citing Art 11 of the European Convention and the ECtHR cases: Sigurjónsson v Iceland [1993] Series A No 264 [35], and Gustafsson v Sweden [1996] Reports of Judgments and Decisions, 1996-II 637 [45]. 11 Werhof (n 8) [33]. 12 Ibid [34]. 13 Ibid [35]. 5

Catherine Barnard

775

Part I – Commentary on the Articles of the EU Charter

This interpretation safeguards the transferee’s right not to join an association and it is this approach that the Court chose.14 28.04 So far we have considered how the Article 28 rights can be used against EU institutions. We turn now to the second situation where the Article 28 CFREU rights can be used: by, and against, the Member States when acting in the field of EU law. Four situations can be distinguished: (1) When Member States are implementing EU law they will need to respect provisions of the Charter, including Article 28 CFREU. So, for example, if Member States are implementing a Directive on, say, the provision of port services which requires the port to be open 24 hours a day, seven days a week, the implementation must not rule out strike action leading to closure of the port, unless there are strong justifications for its prohibition. (2) When Member States (or trade unions—see Viking and Laval below) are interfering with free movement, they can justify that interference on the grounds of worker protection which might need to be achieved through allowing (in the case of Member States), or calling their members to take (in the case of a trade union), proportionate strike action (again, see Viking and Laval below). In other words, the fundamental right, the right to strike or the right to engage in collective bargaining, constitutes a derogation/justification from the fundamental freedom (the limits on rights situation). So, borrowing from the facts of Schmidberger,15 if a state fails to stop a strike of, for example, air traffic controllers, and that strike action interferes with the free movement of goods and people, the state can justify its (in)action by reference to its obligation to allow (proportionate) strike action to occur. (3) When Member States are limiting a right (for example, interfering with free movement) by relying on one of the express derogations or public interest requirements), that limitation must be read subject to fundamental rights, including the right to engage in collective bargaining or the right to take collective action (the limits on limits situation). So, for example, if a general strike is called across Europe to protest at austerity measures and the Belgian government closes its borders to stop strikers from other Member States entering Belgium and then marching on the EU institutions (public policy derogation to the free movement of workers/EU citizens), then weighed against Belgium’s public policy derogation (the limitations) are the individual strikers rights to strike and to protest (the limits on the limits). (4) When Member States are otherwise acting within the field of EU law, they must, where appropriate, respect the principles in Article 28 CFREU. 28.05 As these examples show, Article 28 CFREU applies in a wide range of situations. Therefore, following Viking and Laval (discussed below), it is increasingly unlikely that, outside competition law,16 a party can argue that since the matter falls in the purview

14

Ibid [36]. See, by way of parallel, Case C-112/00 Schmidberger v Austria [2003] ECR I-5659. See also Case C-36/02 Omega Spielhallen [2004] ECR I-9609. 16 Case C-67/96 Albany [1999] ECR I-5751, where the Court was able to conclude that ‘despite the restrictions of competition inherent in it, a collective agreement between the organisations representing employers and workers which sets up in a particular sector a supplementary pension scheme managed by a pension fund to which affiliation is compulsory does not fall within Article [101(1) TFEU]’. 15

776

Catherine Barnard

Art 28 – Right of Collective Bargaining and Action

of collective bargaining or collective action, EU law does not apply. This has been confirmed in Hennigs,17 where the Court said: Where the right of collective bargaining proclaimed in Article 28 of the Charter is covered by provisions of European Union law, it must, within the scope of that law, be exercised in compliance with that law.18

In other words, the existence of Article 28 CFREU will be accommodated within existing 28.06 structures (eg constituting justifications and derogations, restricting justifications or derogations, as in points (3) and (4) above) and may alter the analysis but will not serve to ring fence national rules from all scrutiny under EU law. On the facts of Hennigs, the Court found that, in principle, the Framework Directive 2000/78 precluded a measure laid down by a collective agreement which provided that, within each salary group, the basic pay step of a public sector contractual employee was determined on appointment by reference to the employee’s age. This contravened the Directive. The Court said that the fact that EU law ‘precludes that measure and that it appears in a collective agreement does not interfere with the right to negotiate and conclude collective agreements recognised in Article 28 of the Charter.’

B. Interrelationship of Article 28 with Other Provisions of the Charter I. Other Provisions in the Charter Various rights for workers are scattered across the Charter, including freedom to choose 28.07 an occupation and to engage in work (Art 15 CFREU). Most importantly, for the purposes of this chapter, are Articles 12 and 27 CFREU. Article 27 CFREU concerns the information and consultation of workers or their representatives. On the spectrum of intensity of worker participation, information and consultation is found at the lower end, especially where the information and consultation is provided to the individual worker (direct representation) and not to their representatives (indirect representation). Collective bargaining is seen as the most intense form of worker participation and, as we have seen, is covered separately in the Charter in Article 28 CFREU. 28.08 As far as Article 12 CFREU is concerned, this provides: Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.

The right to freedom of association is an essential prerequisite to the right for trade 28.09 unions to engage in collective bargaining. Collective bargaining with independent trade unions, reinforced by collective action, as provided by Article 28 CFREU, is considered

17

Joined Cases C-297/10 and C-298/10 Sabine Hennigs v Eisenbahn-Bundesamt [2011] ECR I-7965. Ibid [67], citing, to that effect, Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union (‘Viking Line’) [2007] ECR I-10779 [44], and Case C-341/05 Laval un Partneri [2007] ECR I-11767 [91]. 18

Catherine Barnard

777

Part I – Commentary on the Articles of the EU Charter

one of the most effective forms of worker representation and thus, in the Anglo-Saxon countries, the most legitimate form of worker protection. 28.10 A number of systems combine information and consultation provisions at firm level, often through works councils, with collective bargaining with trade unions at sectoral level. This is the dual channel model of industrial relations found in countries such as France and Germany. For those countries Articles 12, 27 and 28 CFREU operate in conjunction. 28.11 By contrast, the UK system was typically characterised as a single channel model where worker representation was conducted by recognised trade unions (at national, sectoral or plant level), supported by the sanction of collective action. Works councils or their equivalent were virtually unknown in the UK. For UK trade unions, then, Articles 12 and 28 CFREU were thus of considerable importance. The advent of EU law has forced the UK to adapt its single channel system of industrial relations to accommodate the possibility of providing information and consultation to elected worker representatives. The UK is now described as having a modified single channel.19 In fact the legacy of single channel remains strong and there is little evidence that the information and consultation mechanisms have taken firm hold. Articles 12 and 28 therefore continue to be the most important in the context of the UK.

II. Protocol 30 28.12 So far we have been talking as if Article 28 contains a right to strike and that it applies to the UK. Neither statement is indubitably right. Article 28 CFREU falls within Title IV of the Charter which, according to the UK at least, contains principles not rights. If this reading is correct, then Article 52(5) CFREU applies. It says: The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.

28.13 In other words, the principles are not directly effective; they need to be given legal effect through EU or Member State acts. Only then will the principle have legal effect through the interpretation of those legally binding measures and in the ruling on their legality. 28.14 The decision in Viking (considered below) casts doubt on the UK’s reading of Title IV since it expressly recognises the right to strike. Anticipating such a situation, the UK (and Poland) successfully negotiated Protocol 30 which was attached to the Lisbon Treaty. Misleadingly referred to, for largely domestic political reasons, as an opt-out,20 this Protocol elaborates on the meaning of certain provisions of the Charter. The UK

19 P Davies and C Kilpatrick, ‘UK Worker Representation after Single Channel’ (2004) 33 Industrial Law Journal 121. 20 For background, see C Barnard, ‘The “Opt-Out” for the UK and Poland from the Charter of Fundamental Rights: Triumph of Rhetoric over Reality?’, www.law.cam.ac.uk/faculty-resources/summary/barnard-uk-optout-and-the-charter-of-fundamental-rights/7309.

778

Catherine Barnard

Art 28 – Right of Collective Bargaining and Action

has now conceded in Saeedi that Protocol 30 is not an opt-out.21 However, this concession might not apply to Article 1(2) of the Protocol which provides: In particular, and for the avoidance of doubt, 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.

Article 1(2) therefore appears to suggest that if any of the provisions of Title IV, the 28.15 Solidarity Title of the Charter, contain rights but not principles, then the UK and Poland might have an opt-out from those. However, even if the UK and Poland do enjoy a limited opt-out, litigants will still be able to resort back to relying on the general principles of law to enforce their fundamental social rights, general principles which apply equally to the UK and Poland,22 and which, following Viking, include the right to strike.

C. Sources of Article 28 Rights I. Right to Bargain Collectively Article 12(1) of the Community Social Charter 1989 provides that ‘Employers or 28.16 employers’ organisations, on the one hand, and workers’ organisations on the other, shall have the right to negotiate and conclude collective agreements under the conditions laid down by national legislation and practice’. Likewise Article 6 of the European Social Charter 1961, under the heading ‘the right to bargain collectively’, provides: With a view to ensuring the effective exercise of the right to bargain collectively, the Parties undertake: 1. 2.

3. 4.

to promote joint consultation between workers and employers; to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements; to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes; and recognise: the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.

Yet the legally and politically more important instruments, the ECHR and ILO 28.17 Conventions, are ambiguous about the right to engage in collective bargaining. Article 11 ECHR provides: 1. 2.

Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national

21 Saeedi [2010] EWCA Civ 990 [8]: ‘the Secretary of State accepts, in principle, that fundamental rights set out in the Charter can be relied on as against the UK, and submits that [Cranston J, the first instance judge] erred in holding otherwise … The purpose of the Charter protocol is not to prevent the Charter from applying to the United Kingdom, but to explain its effect.’ 22 Art 6(3) TEU.

Catherine Barnard

779

Part I – Commentary on the Articles of the EU Charter

security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

28.18 This text appears to suggest that Article 11 applies to freedom of association only and at first the ECtHR was reluctant to extend it any further. For example, in Wilson and Palmer23 the ECtHR said that ‘although collective bargaining may be one of the ways by which trade unions may be enabled to protect their members’ interests, it is not indispensable for the effective enjoyment of trade union freedom’. As a result, the ECtHR found that the absence under UK law of an obligation on employers to enter into collective bargaining, did not give rise to a violation of Article 11.24 28.19 Advocate General Jacobs, in the earlier EU case of Albany,25 also thought that there was no fundamental right to bargain collectively, even though it is the freedom most fully articulated in the Union legal order.26 He said that only Article 6 of the European Social Charter 1961 expressly recognised the existence of a fundamental right to bargain. However, he then said, the mere fact that a right is included in the Charter does not mean that it is generally recognised as a fundamental right. The structure of the Charter is such that the rights set out represent policy goals rather than enforceable rights, and the states parties to it are required only to select which of the rights specified they undertake to protect. He then pointed to Article 4 of ‘the carefully drafted “Right to Organise and Bargain Collectively” [ILO Convention No 9827 which] imposes on the Contracting States an obligation to “encourage and promote” collective bargaining. No right is granted.’28 28.20 However, the coming into force of the EU Charter, together with the fact that the right to bargain collectively is ‘recognised both by the provisions of various international instruments which the Member States have cooperated in or signed, such as Article 6 of the European Social Charter [1961]’, combined with the recognition of the role of the social partners in Article 152 TFEU, led the Court to conclude in Commission v Germany (Occupational Pensions)29 that the right to bargain collectively is a fundamental right.30 However, it is not an absolute right: it may be subject to certain restrictions including the fact that it must be exercised in accordance with EU law,31 in particular the principle

23

Wilson and Palmer [2002] IRLR 568. Ibid [45]. 25 Case C-67/96 Albany [1999] ECR I-5751 [146]. 26 Ibid [160]. 27 Since public sector workers were specifically excluded from the scope of Convention 98 (Art 6), Convention 151 gives public sector workers the right to form and join independent trade unions. In respect of collective bargaining, Art 7 provides: ‘Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees’ organisations, or of such other methods as will allow representatives of public employees to participate in the determination of these matters.’ 28 Ibid [147]. Cf General Survey 1994, freedom of association and collective bargaining, on Conventions No 87 and No 98 [200]. 29 Case C-271/08 Commission v Germany (Occupational Pensions) [2010] ECR I-7091. 30 Ibid [41]. See also AG Trstenjak, ibid [4]. 31 Ibid [43]. See also Case C-447/09 Prigge v Deutsche Lufthansa [2011] ECR I-8003 [47]. 24

780

Catherine Barnard

Art 28 – Right of Collective Bargaining and Action

of equality,32 and taking full account of national laws and practices.33 The Court concluded: Exercise of the fundamental right to bargain collectively must therefore be reconciled with the requirements stemming from the freedoms protected by the FEU Treaty, which in the present instance the [public procurement] Directives are intended to implement, and be in accordance with the principle of proportionality.34

The existence of Article 28 CFREU and other changes in the international legal environ- 28.21 ment prompted the ECtHR to change its approach to the right to engage in collective bargaining. In Demir and Baykara35 the Court said: 153. In the light of these developments, the Court considers that its caselaw to the effect that the right to bargain collectively and to enter into collective agreements does not constitute an inherent element of Article 11 … should be reconsidered, so as to take account of the perceptible evolution in such matters, in both international law and domestic legal systems … 154. Consequently, the Court considers that, having regard to the developments in labour law, both international and national, and to the practice of Contracting States in such matters, the right to bargain collectively with the employer has, in principle, become one of the essential elements of the ‘right to form and to join trade unions for the protection of [one’s] interests’ set forth in Article 11 of the Convention, it being understood that States remain free to organise their system so as, if appropriate, to grant special status to representative trade unions. Like other workers, civil servants, except in very specific cases, should enjoy such rights, but without prejudice to the effects of any ‘lawful restrictions’ that may have to be imposed on ‘members of the administration of the State’ within the meaning of Article 11 § 2 …

Demir and Baykara was thus seen as a landmark decision which also paved the way for 28.22 the ECtHR to change its attitude to the right to take collective action.

II. Right to Take Collective Action The right to strike is recognised in a number of international economic and social rights 28.23 instruments, including Article 13 of the Community Social Charter 1989 (on the ‘right’ to ‘resort to collective action in the event of a conflict of interests’, including the ‘right to strike, subject to obligations arising under national regulations and collective agreements’ (emphasis added).36 Article 6 of the European Social Charter (see above) also recognises ‘the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike’.

32

Joined Cases C-297/10 and C-298/10 Hennigs v Eisenbahn-Bundesamt [2011] ECR I-7965 [78]. Art 52(6) CFREU. 34 Ibid [44]. 35 Demir and Baykara App no 34503/97 (2009) 48 EHRR 54. 36 For a full discussion of this issue, see T Novitz, International and European Protection of the Right to Strike: a Comparative Study of Standards set by the International Labour Organization, the Council of Europe and the European Union (Oxford, OUP, 2003). 33

Catherine Barnard

781

Part I – Commentary on the Articles of the EU Charter

However, the right to strike is not expressly recognised by Article 11(1) ECHR.37 As with the right to collective bargaining, it has been only gradually that the ECtHR has read into Article 11 a recognition of the right to strike. The first time the Court used the language of the right to strike was in Wilson and Palmer,38 where the Court said ‘[t]he grant of the right to strike, while it may be subject to regulation, represents one of the most important of the means by which the State may secure a trade union’s freedom to protect its members’ occupational interests’.39 28.25 Most recently, the new dawn signalled by Demir was confirmed in Enerji Yapi-Yol Sen.40 Turkey prohibited public sector employees from taking part in a national oneday strike to persuade the government to engage in collective bargaining. Members of the trade union who ignored the prohibition were disciplined and the union brought the case to the European Court of Human Rights, alleging that the ban on strikes interfered with their right to form and join trade unions as guaranteed under Article 11. While the Court acknowledged that the right to strike was not absolute and could be subject to certain conditions and restrictions, it held that a ban which applied to all public servants was too wide a restriction. The Court held that the disciplinary action was ‘capable of discouraging trade union members and others from exercising their legitimate right to take part in such one-day strikes or other actions aimed at defending their members’ interests’, and amounted to a threat to rights guaranteed under Article 11. The strike ban was not in response to a ‘pressing social need’, and the Turkish government had thus failed to justify the need for the impugned restriction in a democratic society. 28.26 At the level of the ILO, the relevant Conventions are 87, 98 and 151. Convention 87 gives workers the right to form and join independent trade unions. Convention 98 elaborates more specifically upon the conditions in which freedom of association can be realised, such as freedom from acts of anti-union discrimination (Art 1) and freedom from interference (Art 2).41 However, although these Conventions do not recognise the right to strike as such, the two bodies set up to supervise the application of ILO standards, the Committee on Freedom of Association (CFA) and the Committee of Experts on the Application of Conventions and Recommendations have ‘frequently stated that the right to strike is a fundamental right of workers and of their organisations, and have defined the limits within which it may be exercised, laying down a body of principles in connection with the right to strike42—giving rise to substantial “case law” in the 28.24

37 UNISON v United Kingdom [2002] IRLR 497 [35]: ‘There is no express inclusion of a right to strike or an obligation on employers to engage in collective bargaining. At most, Article 11 may be regarded as safeguarding the freedom of trade union members to protect the occupational interests of their members.’ 38 Wilson and Palmer [2002] IRLR 568. 39 Ibid [45]. 40 Enerji Yapi-Yol Sen v Turkey App no 68959/01 [2009] ECHR 2251. This case concerned a complaint brought by a trade union; for the Court’s position on the situation where the applicant is an individual, see eg Danilenkov v Russia App no 67336/01 (Judgment of 30 July 2009) and Saime Özcam v Turkey App no 22943/04 (Judgment of 15 September 2009) discussed in K Ewing and J Hendy, ‘The Dramatic Implications of Demir and Baykara’ (2010) 39 Industrial Law Journal 2. 41 The 1998 Declaration on Fundamental Principles and Rights at Work states that freedom of association and the right to collective bargaining are among the four fundamental rights which ILO Member States must secure as part of their constitutional obligations of membership. 42 Citing in particular in ILO, Freedom of Association and Collective Bargaining, a General Survey of Conventions Nos 87 and 98, conducted in 1994 by the Committee of Experts on the Application of

782

Catherine Barnard

Art 28 – Right of Collective Bargaining and Action

broadest sense of the term—which renders more explicit the extent of the provisions mentioned above’.43 The Constitutional traditions of some Member States have explicitly recognised the 28.27 right to strike (eg France, Italy). In other Member States, such as Germany, the right to strike has been read into another Constitutional provision by the courts. Article 9 para 3 of the German Constitution guarantees the right of every citizen to form and join collective organisations (‘Koalitionsfreiheit’). As Kocher explains, ‘because coalitions can only act for their members effectively if they are allowed to strike in certain cases, the right to strike is considered to be a fundamental part of the freedom of association.’44 The UK’s approach is different from that of its Continental neighbours. It does not 28.28 recognise the right—but rather the freedom—to strike.45 Freedom to strike means that the strike is legally permitted, but no special privileges are granted: the strike is tolerated, but not privileged, and the legal limits of the strike are dictated by the general legal order. The right to strike, by contrast, means that the legal order of the state must take precautions to ensure the exercise of the right, and so the strike is privileged, thus demonstrating that the legal order evaluates the pursuit of collective interests more highly than the individual obligations arising from the contract of employment.

D. Analysis I. General Remarks As the discussion above indicates, the right to engage in collective bargaining and the 28.29 ‘right’ to strike have both been vexed subjects not just for the EU but for other international organisations. Of the EU states, it is the UK which has had the most problems with Article 28 CFREU. This is because, as we saw above, there is no ‘right to strike’ in the UK (and certainly no constitutional right to strike, given the absence of a written constitution). The Luxembourg and Strasbourg Courts have now recognised the right to strike, and this has put the UK’s approach on a potential collision course with both systems. However, as the discussion of the decisions in Viking and Laval reveal, the position in respect of the EU is more complex than would first appear.

Conventions and Recommendations (1994); and in ILO, Freedom of Association, Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO (1996). The right to strike is developed from Art 3 of Convention No 87 which establishes the right of workers’ and employers’ organisations to ‘organize their administration and activities and to formulate their programmes’ and the aims of such organisations as ‘furthering and defending the interests of workers or of employers’ (Art 10). 43 B Gernigon, A Odero and H Guido (eds), ILO Principles Concerning the Right to Strike (Geneva, ILO, 2000), 8. 44 ‘Germany’ in ibid, 126. 45 R Birk, ‘Industrial Conflict: The Law of Strikes and Lock-outs’, in R Blanpain (ed), Comparative Labour Law and Industrial Relations, 3rd edn (Deventer, Kluwer, 1990) 406. The discussion that follows draws on this chapter.

Catherine Barnard

783

Part I – Commentary on the Articles of the EU Charter

II. Scope of Application: Definition of Terms (a) Collective Bargaining National Level 28.30 In its broad sense,46 collective bargaining is a process of interest accommodation which includes all sorts of bipartite or tripartite discussions relating to labour problems directly or indirectly affecting a group of workers. The discussions may take place in different fora, with or without the presence of governments, and aim at ascertaining the view of the other party, obtaining a concession or reaching a compromise. A narrower but more precise meaning of collective bargaining views it only in connection with the bipartite discussions leading to the conclusion of agreements. In this narrower sense, collective bargaining involves a process of negotiations between individual employers or representatives of employers’ organisations and trade union representatives. As a general rule, any agreement concluded is regarded as binding not only on its signatories but also on the groups they represent (this is not the case in the UK, considered below). 28.31 Collective bargaining offers a variety of benefits, succinctly summarised by Advocate General Jacobs in Albany:47 It is widely accepted that collective agreements between management and labour prevent costly labour conflicts, reduce transaction costs through a collective and rule-based negotiation process and promote predictability and transparency. A measure of equilibrium between the bargaining power on both sides helps to ensure a balanced outcome for both sides and for society as a whole.

28.32 The content of collective agreements can be determined by the contracting parties but comprise principally of (1) normative clauses and (2) contractual or obligatory clauses. The normative stipulations refer to the terms and conditions of work which must be observed in all the individual employment contracts in the enterprise concerned. These include all aspects of working conditions, wages, fringe benefits, job classifications, working hours, time off, training, job security, and non-contributory benefit schemes. The collective agreement can also contain collective normative stipulations relating to informing and consulting workers, worker participation and procedural rules.48 28.33 The contractual or obligatory clauses include all provisions spelling out the rights and duties of the parties. Often the main duty is the peace obligation which means that for the duration of the agreement neither of the parties is permitted to initiate industrial action against the other party with the intention of altering the conditions laid down in the collective agreement. Such an obligation is considered to be a natural consequence of collective bargaining, which is supposed to bring stability to labour relations. This obligation may be absolute, in which case the parties are obliged to refrain from all industrial action,49 or relative, in which case neither of the parties is, for the duration of

46

See E Cordova, ‘Collective Bargaining’, in Blanpain (ibid). Case C-67/96 Albany [1999] ECR I–5751 [181]. Commission, Comparative Study on Rules Governing Working Conditions in the Member States: a Synopsis, SEC (89) 1137. 49 Birk, ‘Industrial Conflict: The Law of Strikes and Lock-outs’, in Blanpain (n 45), 413. 47 48

784

Catherine Barnard

Art 28 – Right of Collective Bargaining and Action

the collective agreement, permitted to initiate industrial action against the other party with the intention of altering conditions laid down in the agreement.50 The relative peace obligation offers trade unions the advantage of safeguarding their right to formulate new demands if and when substantive changes in the socio-economic environment occur.51 Between the Member States, attitudes and approaches to collective bargaining vary 28.34 considerably. At one end of the spectrum lies Denmark, where collective agreements form the cornerstone of labour standards. At the other stands the UK, where there is a statutory presumption that collective agreements are not legally binding between the parties.52 Collective agreements do have legal effect in the UK if incorporated into the contract of employment, but equally, since collective agreements do not constitute a floor of rights, the individual contract can be used to derogate from the provisions of the collective agreements. In between lie countries such as Belgium, France, and Germany where collectively 28.35 agreed norms can be given, by law, an erga omnes or ‘extended’ effect. Thus, the law is used to ensure that the normative terms of collective agreements are applied more generally throughout the industry or sector. The original rationale for this procedure was the need to avoid unfair competition from non-unionised enterprises, but subsequently the extension mechanism has been justified by the need to promote collective bargaining and to pursue more egalitarian goals.53 EU Level Since Maastricht, the EU social partners have a greater role. Not only must they be 28.36 consulted on proposed legislation but they can also adopt European-wide interprofessional or intersectoral collective agreements which can then be given erga omnes effect by a Council ‘decision’ (in practice a Directive). This means that the Council can effectively rubber-stamp a collective agreement negotiated by the social partners (ETUC, BusinessEurope, CEEP) and turn it into a piece of legislation which must be implemented by the Member States. Three main Directives have been adopted via this route: — — —

the Parental Leave Directive 96/34/EC,54 repealed and replaced by Directive 2010/18/EU;55 the Part-time Workers Directive 97/81/EC;56 the Fixed-term Work Directive 99/70/EC.57

In addition to these intersectoral collective agreements, the sectoral social dialogue has 28.37 produced more than 500 texts of varying legal status, ranging from joint opinions and responses to consultations to agreements that have been implemented as EU legislation.

50 51 52 53 54 55 56 57

Commission (n 48). Cordova, ‘Collective Bargaining’, in Blanpain (n 45), 28. s 179 TULR(C)A 1992. Cordova, ‘Collective Bargaining’, in Blanpain (n 45), 329. [1996] OJ L145/9. [2010] OJ L68/13. [1998] OJ L14/9. [1999] OJ L244/64.

Catherine Barnard

785

Part I – Commentary on the Articles of the EU Charter

There are four Europe-wide agreements, plus amendments, which have legislative force: — — — —

Working time of Seafarers Directive 99/63,58 as amended by Directive 2009/13/ EC;59 Working time in Civil Aviation Directive 2000/79;60 Directive 2005/47 on certain aspects of the working conditions of mobile workers engaged in interoperable cross-border services in the railway sector;61 the Sharps Directive 2010/32;62

Where the Council refuses to endorse a Commission proposal to give legal force to a collective agreement, as was the case with the Hairdressers Agreement,63 the social partners remain free, according to Article 155(2) TFEU, to implement an agreement ‘in accordance with the procedures and practices specific to management and labour and the Member States’—so-called autonomous agreements. (b) Collective Action 28.38 So far we have talked about collective bargaining. We turn now to examine collective action. Collective action includes working to rule and other forms of non-cooperation with the employer. However, the classic form of collective action is a strike. This was at issue in Viking. The case concerned a Finnish company wanting to reflag its vessel, the ‘Rosella’, under the Estonian flag so that it could be staffed with an Estonian crew to be paid considerably less than the existing Finnish crew. In response, the Finnish Seamen’s Union (FSU) threatened to go on strike. This was an example of primary industrial action (action taken by employees against their employer (A) with whom they are in dispute). Viking Line successfully argued that this strike action would contravene Article 49 TFEU. It was granted an injunction before the High Court of England and Wales, but this was overturned by the Court of Appeal which referred the case to the CJEU. In addition, secondary, or sympathy, industrial action (action taken by employees 28.39 against their employer (B), with whom they are not in dispute, but intended to put pressure on the employer (A)) is covered by the phrase collective action and is also likely to be a restriction on freedom of movement. This can also be seen in Viking.64 Not only did the Finnish Seamen’s Union (FSU) threaten to take industrial action, but so did the International Transport Workers Federation (ITF), as part of its campaign against flags of convenience (FOCs) (ie where the beneficial ownership and control of the vessel was found to lie in a state other than the flag state). In accordance with the ITF policy, only unions established in the state of beneficial ownership had the right to conclude collective agreements covering the vessel concerned. When the ITF learned

58 59 60 61 62 63 64

786

[1999] OJ L167/33. [2009] OJ L124/30. [2000] OJ L302/57. [2005] OJ L195/15. [2010] OJ L134/66. http://ec.europa.eu/social/main.jsp?langId=en&catId=89&newsId=1286&furtherNews=yes. Case C-438/05 Viking [2007] ECR I-10779.

Catherine Barnard

Art 28 – Right of Collective Bargaining and Action

of the plan to reflag the ‘Rosella’, it sent a circular to its affiliates asking them to refrain from entering into negotiations with Viking. The Court ruled that the policy pursued by ITF constituted an unjustified restriction on freedom of establishment. The phrase ‘collective action’ can also include blacking (ie not working with) certain 28.40 products or companies, and picketing at the premises of a particular employer. This can be either primary or secondary industrial action. Various sorts of blacking were at issue in Laval.65 A Latvian company won a contract to refurbish a school in Sweden using its own Latvian workers, who were paid about 40 per cent less than comparable Swedish workers. The Swedish construction union wanted Laval to apply the Swedish collective agreement but Laval refused, in part because the collective agreement was unclear as to how much Laval would have to pay its workers. There followed a range of collective action which the Court set out in some detail: —

—

—

In November there was blockading (‘blockad’) of the Vaxholm building site, consisting of preventing the delivery of goods onto the site, placing pickets and prohibiting Latvian workers and vehicles from entering the site (Laval asked the police for assistance but they explained that since the collective action was lawful under national law, they were not allowed to intervene or to remove physical obstacles blocking access to the site). In December the collective action directed against Laval intensified when Elektrikerna initiated sympathy action. That measure had the effect of preventing Swedish undertakings belonging to the organisation of electricians’ employers from providing services to Laval. In January other trade unions announced sympathy actions, consisting of a boycott of all Laval’s sites in Sweden, with the result that Laval was no longer able to carry on its activities in Sweden.

Although this industrial action was lawful under Swedish law, Laval brought proceed- 28.41 ings in the Swedish Labour Court, claiming that this action was contrary to EU law (Article 56 TFEU). The Court of Justice essentially found in favour of Laval, as we shall see in the next section.

III. Specific Provisions (a) Collective Action The Judgments in Viking and Laval The section above outlined just how broad the phrase collective action can be. It also 28.42 showed how, in the cases of Viking and Laval, the Court accepted the employers’ arguments that the collective action contravened Articles 49 and 56 TFEU. These decisions caused profound shockwaves to reverberate across the world of industrial relations. There are two reasons for this. First, in a number of industrial relations systems, as we have seen, the right to strike enjoys constitutional protection: strikes are presumptively

65

Case C-341/05 Laval [2007] ECR I–11767.

Catherine Barnard

787

Part I – Commentary on the Articles of the EU Charter

28.43

28.44

28.45

28.46

28.47

lawful unless there are good reasons to the contrary. Further, in some systems, the contract of employment is suspended during strike action (thereby ensuring that strikers do not breach their contracts of employment while striking). For these and other reasons, it was argued by the trade unions that EU law should not apply to strike action since it concerned a fundamental right; the Court disagreed, noting that in decisions such as Schmidberger and Omega, the exercise of the fundamental rights at issue (freedom of expression and freedom of assembly and respect for human dignity) did not fall outside the scope of the provisions of the Treaty. Rather, it said, the exercise of those rights had to be reconciled with the requirements relating to rights protected under the Treaty and in accordance with the principle of proportionality. The trade union movement was also shocked because it thought that the advent of the Charter, and Article 28 in particular, might suggest that strike action enjoyed a special status under EU law. At first the Court appeared to agree. It acknowledged in both Viking and Laval (for the first time) that the right to take collective action, including the right to strike, was a fundamental right, referring to Article 28 of the EU Charter of Fundamental Rights. However, the Court did say that the right to strike was subject to limits laid down by both national law and practices (eg notice and balloting rules) and Union law (eg rules on free movement considered below) and it was these combined limitations which worried the trade unions who, the Court confirmed, are bound by Articles 49 and 56 TFEU. Having established that EU law applied, the Court then followed its standard Säger66 market access approach (breach, justification, proportionality) to determine whether the strike action breached EU law. As we saw above, the Court found that the collective action did constitute a restriction on free movement and so breached Articles 49 and 56 TFEU. On justification, the Court noted in Viking that the right to take collective action for the protection of workers was an overriding reason of public interest provided that jobs or conditions of employment were jeopardised or under serious threat. On the facts, the Court suggested this was unlikely because Viking had given an undertaking that no Finnish workers would be made redundant. If, however, the trade unions could justify the collective action, the national court would have to apply the proportionality test. The CJEU then applied the strictest form of the proportionality test, unmitigated by any references to ‘margin of appreciation’. On the question of suitability, the Court said that collective action might be one of the main ways in which trade unions protected the interests of their members. However, on the question of necessity, the Court said it was for the national court to examine whether the FSU had other means less restrictive of freedom of establishment to bring the collective negotiations with Viking to a successful conclusion, and whether the FSU had exhausted those means before starting the collective action. In other words, industrial action should be the last resort. Because the case was subsequently settled, there is no national court ruling on the two issues of justification and proportionality. Turning to Laval, the Court recognised that the right to take collective action for the protection of Swedish workers ‘against possible social dumping’ was a justification but found on the facts that using collective action to force Laval to sign a collective agreement whose content on central matters such as pay was unclear could not be justified.

66

788

Case C-76/90 Säger [1991] ECR I-4221 [12].

Catherine Barnard

Art 28 – Right of Collective Bargaining and Action

The Analysis The trade unions objected to the standard single market analysis adopted by the Court. 28.48 They argued that the moment collective action was found to be a ‘restriction’ and thus breached EU law, the national ‘social’ interests were put on the back foot, having to defend themselves from the EU economic freedoms which benefit from the supremacy of EU law. And the Court has made it difficult to defend the social interests due to its strict approach to justification and proportionality. So, despite recognition of the right to strike, the limitations on the exercise of that right laid down by Union law subsumed much of the right. Given the reference in Article 28 of the Charter to the right being ‘in accordance with Union law and national laws and practices’ the same restrictions would apply in respect of the Charter too. This leads Ewing and Hendy to talk of the ‘disembowelling’ of the EU right to strike in Viking. Even in a country like the UK, with the strictest strike laws in Europe, the effects of 28.49 Viking, in particular, are serious. As we have seen, there is no right to strike as such in the UK. Rather, the UK’s approach has been one based on immunity: collective action is an economic tort and thus unlawful unless the trade union benefits from a statutory immunity (note the parallels in approach with that of the CJEU in Viking and Laval). One of the conditions for immunity is that the trade unions are acting ‘in contemplation or furtherance of a trade dispute’67—the so-called golden formula. A ‘trade dispute’ is defined in section 244(1) of the Trade Union Labour Relations (Consolidation) Act 1992 as a dispute between ‘workers and their employer which relates wholly or mainly’ to one or more of the following: (a) terms and conditions of employment, or physical working conditions; (b) engagement or non-engagement of workers, termination or suspension of employment or duties of one or more workers; (c) allocation of work or job duties between workers or groups of workers; (d) matters of discipline; (e) a worker’s membership/non-membership of a trade union; (f) facilities for officials of a trade union; and (g) trade union recognition, negotiation and consultation agreements or machinery. Further, this immunity can be lost if there is no ballot and notice to the employer in 28.50 accordance with the detailed rules in the statute. However, if the trade union manages to satisfy these requirements, there is no separate obligation to show that the strike action is proportionate. The effect of the decision in Viking is to make taking strike action in transnational 28.51 situations68 even more difficult than under UK domestic law alone. Strike action can now be justified only where both the EU rules and the national rules are satisfied. This means that strike action can be justified only where: (1) jobs or conditions of employment are jeopardised or under serious threat (Viking), thus apparently ruling out one of the traditional reasons for strike action, namely

67

TULR(C)A 1992 s 219. Case C-212/06 Government of the French Community and Walloon Government v Flemish Government [2008] ECR I-1683. 68

Catherine Barnard

789

Part I – Commentary on the Articles of the EU Charter

to improve terms and conditions of employment. It also significantly narrows the list of justified industrial action in s 244(1)(a) to (g); (2) the strike action is proportionate (Viking); (3) UK rules on notice and balloting are satisfied (UK domestic law). 28.52 And if the trade union cannot satisfy these conditions, it is likely to face the threat of an injunction by the employers and/or damages. The risk of (uncapped) damages69 prompted BALPA (the British Airline Pilots’ Association) to complain to the ILO’s Committee of Experts on the Application of Conventions and Recommendations, that the effect of the judgments in Viking and Laval was to expose the unions to crippling damages if they went on strike without complying with the (unclear) terms of the judgments. The Committee observed:70 with serious concern the practical limitations on the effective exercise of the right to strike of the BALPA workers in this case. The Committee takes the view that the omnipresent threat of an action for damages that could bankrupt the union, possibly now in the light of the Viking and Laval judgments, creates a situation where the rights under the Convention cannot be exercised. … The Committee thus considers that the doctrine that is being articulated in these ECJ judgments is likely to have a significant restrictive effect on the exercise of the right to strike in practice in a manner contrary to the Convention.

The Effect of Demir? 28.53 The tantalising question is whether the decision in Demir and Enerji Yapi-Yol will have any long-term consequences for the EU, particularly when it accedes to the European Convention. The answer may well be yes. The Court of Human Rights reached its decision based on a ‘pure’ human rights reading of the Convention. In other words, it was not and is not operating under the potentially conflicting imperatives of creating a ‘social market economy’. Thus the Court of Human Rights adopted a traditional ‘human rights’ reading of Article 11. It established that (1) prohibiting the strike breaches the fundamental (social) right, thereby requiring (2) the defendant (the employer/state) to justify the breach and show that any action constituting the breach is proportionate. Thus, the starting point of Court of Human Right’s approach is the legality of the strike action. By contrast, the Court of Justice’s approach in Viking, while also couched in the language 28.54 of rights, adopts a different starting point: (1) the strike action constitutes a restriction on free movement which then has to be (2) justified by the trade union which also must show that the strike action is proportionate. The criticism of Viking is that, despite the talk of balancing of the economic rights with social rights, the one-sided Säger analysis adopted by the Court, starting from the premise of the illegality of the strike action, inevitably led to a finding that the economic right to freedom of establishment and free movement of services prevailed over the right to strike. This prompts Ewing and Hendy to conclude that: It is difficult then to see how the ECtHR could avoid upholding Article 11 and the right to collective bargaining and to strike over the business freedoms contained in what are now Articles 49

69 K Apps, ‘Damages Claims Against Trade Unions After Viking and Laval’ (2009) 34 European Law Review 141. 70 www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO::P13100_COMMENT_ID:2314990.

790

Catherine Barnard

Art 28 – Right of Collective Bargaining and Action

and 56 of the TFEU. And so issues would bat to and fro between the two courts in a titanic battle of the juristocrats, each vying for supremacy in the European legal order, one determined to impale trade union rights on the long lance of economic freedom and the other subordinating economic freedom to the modest demands of human rights and constitutionalism.

(b) The Right to Engage in Collective Bargaining So far, we have concentrated on collective action. We turn now to collective bargaining. 28.55 As we saw in section C.I above, in Commission v Germany (occupational pensions)71 the Court recognised the right to engage in collective bargaining was a fundamental right. However, as with the right to take collective action in Viking and Laval, it had to be read subject to the fundamental freedoms (and other principles such as equality law72). On the facts, a number of local authorities entered into a collective agreement with the trade unions concerning the conversion of earnings into pension savings. The collective agreement identified a limited list of pension providers entrusted with implementing the salary conversion measure. Given the existence of this collective agreement, the local authorities did not issue a call for tenders, as required by Directive 2004/18 on public procurement, with the result that other pension providers were denied the chance to offer their services. As with Viking and Laval, the Court noted the need for balance between the competing 28.56 interests (the fundamental social right to engage in collective bargaining against the fundamental economic freedoms, freedom of establishment and free movement of services, as enshrined in the Public Procurement Directive)73 but found that this balance had not been struck on the facts because the effect of the collective agreement was ‘to disapply the public procurement rules completely, and for an indefinite period, in the field of local authority employees’ pension saving’.74 The Court rejected the German government’s argument that the Public Procurement Directives should not be applied because (1) they did not provide room for worker participation; and (2) the collective agreement was a manifestation of the principle of solidarity (with good risks offsetting the bad). However, it did say that the ‘application of the procurement procedures [do not] preclude the call for tenders from imposing upon interested tenderers conditions reflecting the interests of the workers concerned’. It also said that the Directives do not prevent ‘a local authority employer from specifying, in the terms of the call for tenders, the conditions to be complied with by tenderers in order to prevent, or place limits on, workers interested in salary conversion being selected on the basis of medical grounds.75 It added that the preservation of ‘elements of solidarity is not inherently irreconcilable with the application of a procurement procedure’.76

71

Case C-271/08 Commission v Germany (Occupational Pensions) [2010] ECR I-7091. Joined Cases C-297/10 and C-298/10 Sabine Hennigs v Eisenbahn-Bundesamt [2011] ECR I-7965. 73 Paras 44 and 52. The Court has extended this to the field of state aid: Case C-319/07 3F v Commission [2009] ECR I-5963 [58]. 74 Ibid [53]. 75 Ibid [58]. 76 Ibid. 72

Catherine Barnard

791

Part I – Commentary on the Articles of the EU Charter

IV. Limitations and Derogations (a) Limits, and Limits on Limits 28.57 As the previous section made clear, the principal limitations laid down by Article 28 of the Charter are national law and practices (eg notice and balloting rules) and Union law (ie strike action can only be taken to protect terms and conditions of employment and jobs which are seriously under threat, and strike action must be a last resort). Article 52(6) reiterates that ‘Full account shall be taken of national laws and practices as specified in this Charter.’ 28.58 However, Article 52(1) recognises that there exists limits on the limits. As the General Court put it in Trabelsi,77 a limitation on the exercise of the right must satisfy three conditions: (1) The limitation must be provided by law. (2) It must refer to an objective of public interest recognised as such by the EU. (3) The limitation may not be excessive ie it must be necessary and proportional to the aim sought and its essential content (ie the substance of the right or freedom at issue) must not be impaired. (b) Protocol No 30 28.59 The other major (potential) limitation relates to Protocol 30. As we have seen, Article 1(2) appears to suggest that if any of the provision in the Solidarity Title are rights not principles, the UK and Poland will have an opt-out. It provides: In particular, and for the avoidance of doubt, 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.

28.60 Poland subsequently appeared to renege on the position it took in the Protocol. Declaration 62 appended to the Treaties provides that: Poland declares that, having regard to the tradition of social movement of ‘Solidarity’ and its significant contribution to the struggle for social and labour rights, it fully respects social and labour rights, as established by European Union law, and in particular those reaffirmed in Title IV of the Charter of Fundamental Rights of the European Union.

28.61 In respect of the UK, it is significant that the government, in its concession in Saeedi/NS, did not make any reservation in respect of Article 1(2). This is not to say that it might change its view when a case concerning the Solidarity Title arises. 28.62 There is one further drafting point which might explain the rather surprising concession made by the Secretary of State in Saaedi: the rather opaque caveat at the end of Article 1(2) ‘except in so far as Poland or the United Kingdom has provided for such rights in its national law’. It could be argued that since the UK already recognises at least the freedom to strike, if not the right, then any exception envisaged in the first part of

77

Case T-187/11 Trabelsi v Council (28 May 2013) [79]–[81].

792

Catherine Barnard

Art 28 – Right of Collective Bargaining and Action

the sentence (‘In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom …’) would not apply to the UK. In these circumstances, a British court not wishing to give protection to an individual or a trade union under Article 28, would have to rely on the limits recognised by both Article 28 itself and Article 52(6) of the Charter which have been (implicitly) endorsed by the Court in Viking and Laval.

V. Remedies If one of the EU institutions, agencies or bodies has breached an individual staff member’s Article 28 rights by, for example, issuing a Decision prohibiting them from going on strike, then he or she can seek judicial review under Article 263 TFEU. As a non-privileged applicant to whom a Decision is addressed, there should not be locus standi issues. The individual might also bring a claim for damages under Article 268/340 TFEU. By contrast, if the EU legislature were to adopt a Regulation or Directive under the ordinary or special legislative procedure which a trade union or an individual worker thought infringed the right to strike or the right to engage in collective bargaining, a direct action would be more difficult since, following Inuit I,78 it seems the traditional Plaumann79 locus standi test will apply to Legislative acts. As Advocate General Jacobs said in UPA,80 the paradox of this test is that the more people affected by the rule, the less likely any individual will be able to satisfy the Plaumann test. Nevertheless, UPA has confirmed that Plaumann is still good law but that individuals without locus standi under Article 263 TFEU may nevertheless have recourse to actions in the national court. This poses further problems as to how such actions may be framed. The individual might allege that national law has not implemented the Directive in some way and in the course of that action, the national court is requested to make a preliminary reference on invalidity of the EU measure. However, it may be difficult to bring such an action in the national court. As we have seen, the UK has argued that the right to strike is a principle not a right and so is not justiciable. If that argument is unsustainable post-Viking, then for the UK (and Poland) there remains the issue of Article 1(2) of Protocol 30 and whether Article 28 applies to the UK. If Article 1(2) proves not to be an opt-out, then Article 28 could be used to challenge the UK’s (or any other state’s) implementation of a Directive, any derogations from EU law or any other action taken by the state in the sphere of EU law. By contrast, given the limits on the scope of the Charter in Article 51(1) and similar limits on the scope of the general principles, it will certainly not be possible to use either Article 28 or the equivalent general principle to challenge, say, the restrictive UK rules on balloting in a context which is outside the scope of EU law. The only higher norm

78 Case T-18/10 Inuit Tapiriit Kanatami and Others v European Parliament and Council of the European Union (Order of the General Court of 6 September 2011) confirmed by the Court of Justice in Case C-583/11 P (GC, 3 October 2013). 79 Case 25/62 Plaumann v Commission [1963] ECR 199. 80 Case 50/00 Union de Pequeños Agricultores v Council (UPA) [2002] ECR I-6677.

Catherine Barnard

793

28.63

28.64

28.65

28.66

28.67

Part I – Commentary on the Articles of the EU Charter

against which this could be challenged would be the European Convention; todate the UK courts have been reluctant to embrace Article 11 as a means of challenging restrictive national rules,81 although there are some signs that this might be changing.82

E. Evaluation 28.68 Article 28 has some value: a Charter professing to contain a comprehensive catalogue of civil and social rights would be discredited if it made no reference to the right to engage in collective bargaining and its corollary, the right to take collective action. However, its value may be just that: symbolic. The circumstances in which it might be enforced are few and far between and, following the decisions in Viking and Laval, the exceptions may subsume the right. In fact, for trade unions other international fora may offer more hope. Once again, returning to the example of the UK and its highly restrictive approach to strike action, the government has been condemned both by the European Committee of Social Rights83 and the ILO.84 However, these organisations lack real teeth and the UK has not made changes to the law. By contrast, since the incorporation of the ECHR into UK law, the UK does (usually) respond to criticisms made by the ECtHR and it is more likely that this avenue, rather than Article 28 of the Charter, which will lead to profound change in the UK, at least.

81 Metrobus Ltd v Unite The Union [2009] EWCA Civ 829; British Airways plc v Unite The Union (No 2) [2010] EWCA Civ 669, [2010] IRLR 423. 82 PDAU v Boots Pharmaceuticals (Decision of 29 January 2013) www.cac.gov.uk/index.aspx?articleid=4134: ‘The Panel concludes that the prohibition on an independent union from seeking recognition under the statutory procedure, where no other union (whether independent or otherwise) has collective bargaining rights for at least pay, hours and holidays, is an infringement of Article 11.’ See also RMT v Serco and ASLEF v London Midland [2011] EWCA Civ 226. The RMT has commenced a challenge to the UK’s statutory restrictions on collective action before the ECtHR. Finally, see the recognition in British Airways Plc v Unite the Union (No 1) [2009] EWHC 3541 (QB) [27]. ‘Sooner or later, the extent to which the current statutory regime is in compliance with international obligations and relevant international jurisprudence will fall to be carefully reconsidered.’ 83 European Committee of Social Rights: ‘the scope for workers to defend their interests through lawful collective action is excessively circumscribed’ (Report published December 2010, Conclusions xix-3). See also Complaint no 85/2012 LO and TCO v Sweden, report published 20 November 2013. 84 The ILO Committee of Experts has called on the UK government to review Part V of the 1992 Act ‘with a view to ensuring that the protection of the right of workers to exercise legitimate industrial action is fully effective’ (100th Session, 2011 Report III Pt 1A).

794

Catherine Barnard

Article 29 Article 29 Right of Access to Placement Services Everyone has the right of access to a free placement service.

Text of Explanatory Note on Article 29 This Article is based on Article 1(3) of the European Social Charter and point 13 of the Community Charter of the Fundamental Social Rights of Workers.

Select Bibliography P Alston, ‘The General Comments of the UN Committee on Economic, Social and Cultural Rights’ (2010) 104 Proceedings of the Annual Meeting (The American Society International Law) 4–7. D Ashiagbor, ‘The Right to Work’, in G de Búrca and B de Witte (eds), Social Rights in Europe (Oxford, OUP, 2005). ——, The European Employment Strategy: Labour Market Regulation and New Governance (Oxford, OUP, 2005). J Elster, ‘Self-realization in Work and Politics: the Marxist Conception of the Good Life’ (1986) Social Philosophy & Policy 97–126. ——, ‘Is there (or should there be) a right to work?’, in A Gutmann (ed) Democracy and the Welfare State (Princeton, Princeton University Press, 1988). European Commission, Deregulation in placement services: A comparative study for eight EU countries (Luxembourg, 1999). M Freedland, P Craig, C Jacqueson and N Kountouris, Public Employment Services and European Law (Oxford, OUP, 2007). B Hepple, ‘A Right to Work?’ (1981) 10(1) Industrial Law Journal 65–83. International Labour Office, Guide to Private Employment Agencies: Regulation, monitoring and enforcement, Geneva, 2007. D Little, ‘Job Elster’, in W Samuels (ed), New Horizons in Economic Thought: Appraisals of Leading Economists (Cheltenham, Edward Elgar Publishing, 1992). G Mundlak, ‘The right to work: Linking human rights and employment policy’ (2007) 146 (3/4) International Labour Review 189–215. B Stråth, ‘The Concept of Work in the Construction of Community’, in B Stråth (ed), After Full Employment: European Discourses on Work and Flexibility (Brussels, PIE-Peter Lang, 2000). A Supiot et al, Beyond Employment: Changes in Work and the Future of Labour Law in Europe (Oxford, OUP, 2001). P Teague, Economic Citizenship in the European Union: Employment Relations in the New Europe (London, Routledge, 1999).

A. Article 29 and the Scope of EU Law As with the right to work, in Article 15 of the Charter, the right of access to a free 29.01 placement service, in Article 29, is closely connected with the economic freedoms which are at the core of the EU project. Access to free placement services has come to be seen

Part I – Commentary on the Articles of the EU Charter

as a key prerequisite to fully realise the freedom of movement for workers guaranteed by Article 45 TFEU. Whilst Article 45 TFEU sets out the nature of the free movement right (and justified limitations on that right), Article 46 TFEU confers competence on the European Parliament and the Council to issue Directives or Regulations to bring about such free movement, and in particular, measures ‘ensuring close cooperation between national employment services’. Further, as Article 46(d) TFEU specifies, the measures to facilitate realisation of freedom of movement for workers shall involve: setting up appropriate machinery to bring offers of employment into touch with applications for employment and to facilitate the achievement of a balance between supply and demand in the employment market in such a way as to avoid serious threats to the standard of living and level of employment in the various regions and industries.

29.02 Accordingly, a key role of the Article 29 right in the EU context is to facilitate labour market mobility, by challenging formal and informal barriers to movement, such as discrimination on the grounds of nationality; or barriers to information about access to job opportunities, qualifications, taxation, work permits and residence rights. In essence, such information services are integral to establishing a free and open labour market and facilitating, first, the effective exercise of the right to work for all persons; and second, the effective exercise of the right to free movement, for EU ‘workers’. 29.03 The place of the Article 29 right within the EU acquis is further reinforced through secondary legislation, based on Article 46 TFEU and its precursors, to facilitate free movement. One of the earliest examples of secondary legislation to secure the Treaty right to free movement, Regulation 1612/68,1 has been substantially amended several times over the decades and, in the interests of clarity and rationality, has been re-enacted within Regulation 492/2011 on free movement of workers.2 However, what has remained unchanged since 1968 is Article 5 (of both the 1968 and 2011 Regulations), which provides that: A national of a Member State who seeks employment in the territory of another Member State shall receive the same assistance there as that afforded by the employment offices in that State to their own nationals seeking employment.

29.04 Originally enacted in Articles 13–18 of Regulation 1612/68, Articles 11–20 of Regulation 492/2011 now set out in great detail the obligation on Member States to cooperate with regard to their central employment services; to cooperate with and inform the Commission as regards machinery for vacancy clearance (ie job placement or job brokerage); and to provide up to date information concerning living and working conditions and the state of the labour market ‘as is likely to be of guidance to workers from the other Member States’. 29.05 Finally, these rights are underpinned by the work of the European cooperation network established in 1993 to coordinate the various national public employment services (but also including other partner organisations such as trade union and employers’

1 Regulation (EEC) 1612/68 on freedom of movement for workers within the Community [1968] OJ L257/2–12. 2 EU Regulation 492/2011 on freedom of movement for workers within the Union [2011] OJ L141/1.

796

Diamond Ashiagbor

Art 29 – Right of Access to Placement Services

organisations), the aim of which is to facilitate the free movement of workers within the European Economic Area.3 Whilst the right to free movement is the most obvious application of Article 29 29.06 within EU law, the right of access to placement services is also relevant in the context of EU employment policy, in particular the European employment strategy. The most recent iteration of the guidelines for the employment policies of the Member States was issued by Council Decision in 2010.4 Since the origins of the European employment strategy in the Treaty of Amsterdam, there has been a consistent emphasis on increasing labour market participation as a central plank of combating unemployment. Flexibility and adaptability (of the workforce and of the employment relationship) has long been at the heart of the employment strategy, with increasing emphasis placed in recent years on ‘active’ labour market policies.5 The latest guidelines thus locate the right to free placement services within this discourse, noting: Employment services play an important role in activation and matching and they should therefore be strengthened with personalised services and active and preventive labour market measures at an early stage. Such services and measures should be open to all, including young people, those threatened by unemployment, and those furthest away from the labour market.6

B. Interrelationship of Article 29 with Other Provisions of the Charter The EU Charter places the right to a free placement service within the ‘Solidarity’ Title, 29.07 alongside other rights in work such as the right to protection against unjustified dismissal and the right to working conditions which respect one’s health, safety and dignity. In contrast, other human rights instruments, most notably the European Social Charter, locate the right to free placement services within the right to work (Article 1 ESC). The provision of the Charter with which Article 29 enjoys the closest fit is Article 15, 29.08 the freedom to choose an occupation and right to engage in work. Both Articles 15 and 29 are stated, in the Explanations, to derive from Article 1 of the European Social Charter on the right to work. Both play a significant role in bolstering the three ‘personal freedoms’, the freedoms to engage in economic activity, as protected by the TFEU.

3

EURES, the European Job Mobility Portal, available at http://ec.europa.eu/eures/home.jsp?lang=en. Council Decision of 21 October 2010 on guidelines for the employment policies of the Member States [2010] OJ L308/46–51. 5 See D Ashiagbor, The European Employment Strategy: Labour Market Regulation and New Governance (Oxford, OUP, 2005). 6 Council Decision of 21 October 2010, Guideline 7. See also the European ‘Employment package’ (launched April 2012): Commission Communication, Towards a job-rich recovery, COM/2012/0173 final. 4

Diamond Ashiagbor

797

Part I – Commentary on the Articles of the EU Charter

C. Sources of Article 29 Rights I. Council of Europe: European Social Charter 29.09 The chapeau to Article 1 ESC emphasises the duty on states to ensure realisation of the right to work. This is seen to comprise the obligation, in Article 1(1), on the state to maintain ‘as high and stable a level of employment as possible, with a view to the attainment of full employment’; the duty on the state in Article 1(3) in respect of ‘free employment services’ for all; and the duty in Article 1(4) with regard to provision of vocational guidance, training and rehabilitation. 29.10 The European Committee of Social Rights concluded, in 2008, that Slovakia was not in conformity with Article 1(3) of the European Social Charter on the ground that it had not been established that the right to free placement services was guaranteed.7 In particular, the Committee had repeatedly requested up-to-date information, which had not been forthcoming from Slovakia, so that it could assure itself that this right was being realised; namely information on the placement rate (the ratio of the number of placements made by the public employment services to the number of vacancies notified); on the qualifications of those working in public employment offices and their geographical coverage; and on the market share of the public employment services, measured as total number of placements as a proportion of the total number of persons recruited on to the labour market. The right in Article 29 is addressed to ‘everyone’. However the primary and second29.11 ary EU law which gives substance to this right locates it as a means to facilitate the free movement of workers within the European Economic Area, ie workers who are nationals of an EU state. What of third country nationals? An additional Council of Europe instrument, the European Convention on the Legal Status of Migrant Workers, provides, in Article 27 on the use of employment services, that Contracting Parties must recognise the right of migrant workers and of their family members officially admitted to its territory ‘to make use of employment services under the same conditions as national workers subject to the legal provisions and regulations and administrative practice, including conditions of access, in force in that State’.8

II. UN Treaties 29.12 Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides for the right of ‘everyone’ to the opportunity to gain a living ‘by work which he freely chooses or accepts’. A corollary of this right in Article 6(1) is the obligation on states in Article 6(2) to achieve the full realisation of this right through, for instance, providing ‘technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment’. This focus on full employment resonates strongly

7 8

798

Council of Europe, European Committee of Social Rights, Conclusions XIX-1 (2008) (Slovakia), 9–10. European Convention on the Legal Status of Migrant Workers, Strasbourg, 24.XI.1977.

Diamond Ashiagbor

Art 29 – Right of Access to Placement Services

with the understanding of the right to work within the European Social Charter, which similarly bundles the right of access to work, with the duty on the state to provide work— and to provide employment services to facilitate this access.9 A similar focus on access to employment can be seen in Article 10 of the Convention on the Elimination of All Forms of Discrimination against Women, which requires states to take steps to eliminate discrimination against women, inter alia in ensuring them the same conditions as men for career and vocational guidance. Three ILO Conventions are of particular importance as sources—if not direct sources of Article 29 rights, then providing significant interpretative guidance. An early ILO instrument on employment services, Convention 88 (1948), obliges member countries to provide for a free public employment service, the purpose of which shall be to ensure ‘the best possible organisation of the employment market as an integral part of the national programme for the achievement and maintenance of full employment and the development and use of productive resources’.10 But even before this, the principle that placement services for workers and employers should be free had long been established as a standard for employment services, in ILO Convention No 2, the Unemployment Convention (1919), a principle which was re-confirmed in the Employment Service Convention, No 88. Thus, the core tenet on which Article 29 of the EU Charter is founded, that fees for employment or placement services are suspect and undermine the essence of the right, has a long pedigree. Fee-charging employment services became notorious in the 1920s, due to widespread abuse.11 Such abuse could range from fraudulent practices, discriminatory treatment (especially of migrant workers), and the imposition of excessive charges on vulnerable jobseekers. Convention No 34 on Fee-Charging Employment Agencies Convention was introduced in 1933 to prevent abuse and improve organisation of the labour market, providing for abolition of fee-charging agencies within three years of its coming into force, with certain exceptions. A subsequent Convention in 1949, the Fee-Charging Employment Agencies Convention (Revised), No 96, required member countries to undertake the progressive abolition of fee-charging employment agencies conducted with a view to profit.12 However, by 1997, it was felt that the environment had changed such that private employment agencies may play a legitimate role in a well-functioning labour market.13 Recognising that a rapidly changing and flexible labour market, and limits on the capacity of public employment services, had led to a rapid growth of private employment agencies, Convention No 181 portrayed private employment agencies in a more positive light. Accordingly, instead of advocating their gradual abolition, Convention

9

See Ashiagbor, in this volume, on Art 15 right to work. Art 1(2) ILO Convention 88 concerning the Organisation of the Employment Service (1948). 11 ILO Sectoral Activities Programme, ‘Private employment agencies, temporary agency workers and their contribution to the labour market’: Issues paper for discussion at the Workshop to promote ratification of the Private Employment Agencies Convention, 1997 (No 181) (20–21 October 2009). 12 ILO Convention 96 Fee-Charging Employment Agencies Convention (Revised) (1949). 13 ILO Convention 181 Private Employment Agencies Convention (1997). See International Labour Office, Guide to Private Employment Agencies: Regulation, monitoring and enforcement (Geneva, 2007). 10

Diamond Ashiagbor

799

29.13

29.14

29.15

29.16

Part I – Commentary on the Articles of the EU Charter

No 181 set the general parameters for the regulation, placement and employment of workers by these agencies.14 29.17 The current situation, reflected in Convention No 181, is to retain the emphasis on job-placement services for jobseekers being free, if not necessarily in the public sector, as a means to safeguard the interests of workers and prevent their exploitation, but to allow governments to grant exceptions to the principle that such services are free, if there are clearly justifiable reasons. Thus, Article 7(1) of Convention No 181 provides, subject to limited exceptions in Article 7(2), that private employment agencies ‘shall not charge directly or indirectly, in whole or in part, any fees or costs to workers’.

III. Other Sources 29.18 The Explanations list the Community Charter of the Fundamental Social Rights of Workers as a further source of the Article 29 right. The reference to point 13 of the Community Charter appears to be in error: point 13 refers to the right of collective bargaining; point 6, however, provides that ‘[e]very individual must be able to have access to public placement services free of charge’.

D. Analysis I. General Remarks 29.19 The fundamental right conferred by Article 29 serves two distinct, rather instrumental, purposes in the EU legal order: first, as a means to underpin the freedom of movement of workers; second, as a means to underpin employment policy, in particular the European employment strategy. 29.20 The first labour exchanges within industrialised states can be seen as a radical step: that government should have a role in bringing together people looking for work and employers looking for workers.15 In the 2007 book Public Employment Services and European Law,16 its authors define public employment services as: the activity, conducted by or on behalf of the public state, of placing workers or potential workers in work or employment, and the associated activities of arranging for vocational training or other enhancements to employability.

29.21 However, they also note that the distinction between public and private employment agencies has become increasingly blurred in recent years, in particular in countries such as the UK. It seems incontrovertible that public employment agencies are to be

14 Convention No 34 is now closed to ratification. It is only still in force in Chile, which has expressed the intention to ratify Convention No 181. 15 State-created public employment services have existed in the UK, for instance, for over 100 years, first established by the Labour Exchange Act 1909. 16 M Freedland, P Craig, C Jacqueson and N Kountouris, Public Employment Services and European Law (Oxford, OUP, 2007).

800

Diamond Ashiagbor

Art 29 – Right of Access to Placement Services

regulated as public activities, constituted by the state and conducted by the state (at national or sub-national level).17 However, in recent years, public employment services have come to be seen as an example of a public service which could be provided by private enterprises, so that the activity could be contracted out to such enterprises; in addition, public service agencies providing such services have been increasingly seen as being in competition with private enterprises for the work of employment placement.18 As Teague notes, job placement services have gained prominence within EU Member 29.22 States as the focus of labour market policies has shifted towards active labour market policies.19 In most Member States, placement services play a key role in employment policy, sometimes given responsibility for administering social assistance but almost always responsible for job brokerage and counselling. However, Teague quotes a study which suggests that public employment services within the EU deal with only about a quarter of the unemployed when filling vacancies; namely that the job brokerage role of the public placement services is not operating ‘optimally’. Hence the move to relax restrictions on private placement services. In the Macroton and Job Centre cases, the Court of Justice found the statutory 29.23 monopoly over employment placement services held by the German state and the Italian state respectively to be in breach of the competition law provisions in Articles 102 and 106 TFEU (ex Arts 82 and 86 EC). However, it is important to remember these were cases concerned with the abuse of dominant position (by the state provider) and the economic freedom to provide services of a private brokerage agency, in order to meet demand. This jurisprudence should not be seen as undermining the right of workers and job seekers to free placement services.20

II. Scope of Application The right of access to placement services is addressed to ‘Everyone’. This is notably 29.24 broader than the addressees of the subsequent article in the Charter, where protection in the event of unjustified dismissal is granted to ‘Every worker’. The broader scope of Article 29 is a matter of common sense, given that it seeks to ensure access to the labour market for job-seekers and others, not solely for those who already are or have been workers. The Article 29 right does, though, serve a particular purpose in the working lives of 29.25 workers or job-seekers who are also EU citizens, since for this subcategory of beneficiaries, the right is intertwined with the economic freedom to engage in work across Member State borders.

17

Ibid. Ibid. 19 P Teague, Economic Citizenship in the European Union: Employment Relations in the New Europe (London, Routledge, 1999) 99–100. 20 Case C-41/90 Höfner and Elser v Macroton [1991] ECR I-1979; Case C-55/96 Job Centre Coop ARL [1997] ECR I-7119. 18

Diamond Ashiagbor

801

Part I – Commentary on the Articles of the EU Charter

III. Specific Provisions 29.26 The only real question of interpretation for Article 29 relates to the meaning of ‘placement service’. EU policy discourse, in particular the definitions utilised by the European agency, EURES, which is responsible for coordinating the various national public employment services, provides a useful guide. Accordingly, whilst public employment services are structured differently in each country, ‘all share the same basic task of contributing towards matching supply and demand on the labour market through the provision of information, placement and active support services’.21

IV. Limitations and Derogations 29.27 Article 29 does not contain any express limitations on the right to work, although it is of course subject to the final provisions of the Charter, in particular, the pronouncement in Article 52(1) that any limitation on the exercise of the rights and freedoms in the Charter must be ‘be provided for by law and respect the essence of those rights and freedoms’, and also subject to the principle of proportionality.

V. Remedies 29.28 The question of remedies—how the right to a free placement service might effectively be enforced—is best understood by reference to the origins of this right in Article 1 of the European Social Charter. In requiring ‘Contracting Parties’ to ensure the effective exercise of the right to work, the ESC places states under a related obligation to establish or maintain free employment services. As understood by the ESC, and within comparable ILO Conventions, the right to a free placement service is primarily seen as a component of the wider goal of attaining full employment. Accordingly, enforcement of this right is to be achieved through national employment policy, in particular through the provision of free public employment services, traditionally understood to be a responsibility of the state. 29.29 However, concerns over the potentially abusive practices of fee-charging employment agencies operating in the private sector have given way to a recognition of the social value of private employment agencies in a well-functioning labour market.22 Consequently, realisation of the right to placement services may now well be through the private sector, with the safeguard that private employment agencies ‘shall not charge directly or indirectly, in whole or in part, any fees or costs to workers’.23

21 EURES, http://ec.europa.eu/eures/main.jsp?acro=eures&lang=en&catId=29&parentCategory=29. See also Freedland et al, n 16 above. 22 This more positive approach to private employment agencies is exemplified by the passing in 1997 of ILO Convention 191 Private Employment Agencies Convention. 23 Art 7(2) of Convention No 181.

802

Diamond Ashiagbor

Art 29 – Right of Access to Placement Services

E. Evaluation Article 29 needs to be read together with Article 15 of the EU Charter. The right to 29.30 work, in particular in the form in which it is recognised in ILO, Council of Europe and UN instruments, has as its core the goal of high unemployment, and the attainment of full employment. Accordingly, the right of access to a free placement service must be understood in terms of the availability of and access to work. And a crucial part of availability, is the need for states to have in place specialised services to assist and support individuals to find employment: this much is reflected in Articles 1(3) and 1(4) of the ESC, which place an obligation on Contracting Parties to establish or maintain free employment services, and systems of vocational guidance or training.

Diamond Ashiagbor

803

Article 30 Article 30 Protection in the Event of Unjustified Dismissal Every worker has the right to protection against unjustified dismissal, in accordance with Union law and national laws and practices.

Text of Explanatory Note on Article 30 This Article draws on Article 24 of the revised Social Charter. See also Directive 2001/23/EC on the safeguarding of employees’ rights in the event of transfers of undertakings, and Directive 80/987/EEC on the protection of employees in the event of the insolvency of their employer, as amended by Directive 2002/74/EC.

Select Bibliography S Anderman, ‘Termination of Employment: Whose Property Rights?’ in C Barnard, S Deakin and GS Morris (eds), The Future of Labour Law (Oxford, Hart Publishing, 2004) 101–28. C Barnard, EU Employment Law, 4th edn (Oxford, Oxford University Press, 2012). H Collins, Justice in Dismissal (Oxford, Clarendon Press, 1992). B Hepple, ‘European Rules on Dismissals Law?’ (1997) Comparitive Labour Law Journal 204. ——, ‘A Right to Work?’ (1981) 10 Industrial Law Journal 65. J Kenner, ‘New Frontiers in EU Labour Law: From Flexicurity to Flex-Security’ in M Dougan and S Currie (eds), 50 Years of the European Treaties: Looking Forward and Thinking Back (Oxford, Hart Publishing, 2009) 279–310. K Miller, ‘The American Employment-at-Will Doctrine and its Impact upon Employee Rights’ (2001) 5 Edinburgh Law Review 169. B Napier, ‘Dismissal—The New ILO Standards’ (1983) 12 Industrial Law Journal 17. Lord Wedderburn, ‘The Italian Workers Statute: British Reflections on a High Point of Legal Protection’ (1990) 19 Industrial Law Journal 154.

A. Article 30 and the Scope of EU Law Article 153(1)(d) TFEU provides a specific legal basis for the adoption of Directives in 30.01 the field of ‘protection of workers where their employment contract is terminated’.1 This provision originated in the Social Policy Agreement annexed to the Treaty of Maastricht 1993, and was later incorporated into the EC Treaty by the Treaty of Amsterdam 1999, but it remains dormant 20 years on. As a result, Article 30 lacks the bite that would otherwise be provided by a comprehensive normative framework in EU law to protect

1

When read in conjunction with Art 153(2)(b) TFEU.

Part I – Commentary on the Articles of the EU Charter

‘every worker’ against ‘unjustified dismissal’. However, there are many interactions with EU legislation, Charter provisions and international norms that, in combination, have the potential to bring Article 30 within the scope of EU law in certain situations. 30.02 There are several reasons for the EU’s failure to adopt a specific directive on unjust dismissal, which, taken together, shine a light on some of the difficulties in converting Article 30 into a fully fledged job security right for all workers within the scope of EU law. First, there is a requirement of unanimity in the Council for the adoption of specific directives to protect workers on the termination of their employment contract. Even after the entry into force of the Treaty of Lisbon in 2009, the Member States have shown little desire to support legislation at EU level. Regulation of termination of employment is one of four fields of social policy listed in Article 153(1) TFEU to fall outside the ordinary legislative procedure.2 Secondly, the Community Charter of the Fundamental Social Rights of Workers (EU Social Charter),3 which provided the primary stimulus for legislative social activism in the 1990s, contains no express reference to the general protection of workers in the event of termination of employment. Thirdly, and by way of explanation for the above omission, such a right is also absent from the European Social Charter (ESC) 1961.4 This gap in protection was not rectified until the Revised European Social Charter (RESC) 1996,5 but, as of 26 March 2013, only 18 of the EU-28 had ratified the RESC.6 Moreover, ILO Convention No 158 on Termination of Employment, 1982, which was the primary source for Article 24 RESC, has attracted just 10 ratifications from among the EU Member States.7 Fourthly, the Commission has lacked the political will to bring forward a legislative proposal on termination of employment, because it has found it difficult to provide a compelling rationale, on its own terms, for a proposal rooted in job security over a period when the driving dynamic of EU social policy has favoured ‘labour market flexibility’ and ‘light touch’ regulation. By 2006, the Commission was postulating the notion that the ‘traditional model’ of labour law based on protection for the ‘standard’ contractual employee in a particular job was outdated.8 Instead, the Commission favours more inclusive, but diluted, protection for all workers in an increasingly diverse and fragmented labour market and managing employment transitions from one status to another. 30.03 The Commission’s inertia can, in part, be explained by the general ambiguity of the right itself. The right to protection against unjust dismissal is an essentially defensive

2 The other fields in this group are: social security and social protection of workers; representation and collective defence of the interests of workers and employers, including co-determination; and conditions of employment for third-country nationals legally residing in Union territory. 3 The Social Charter was adopted on 9 December 1989 by 11 of the then 12 Member States as a solemn declaration: www.aedh.eu/The-Community-Charter-of.html. 4 Council of Europe, European Treaty Series No 35, 18 October 1961: www.conventions.coe.int/Treaty/EN/ Treaties/Html/035.htm. 5 Council of Europe, European Treaty Series No 163, 3 May 1996: www.conventions.coe.int/Treaty/EN/ Treaties/Html/163.htm. 6 See: www.coe.int/t/dghl/monitoring/socialcharter/Presentation/Overview_en.asp. 7 Available at: www.ilo.org/dyn/normlex/en/. 8 Commission Green Paper, Modernising labour law to meet the challenges of the 21st century, COM (2006) 708 final. See J Kenner, ‘New Frontiers in EU Labour Law: From Flexicurity to Flex-Security’ in M Dougan and S Currie (eds), 50 Years of the European Treaties: Looking Forward and Thinking Back (Oxford, Hart Publishing, 2009) 279–310.

806

Jeff Kenner

Art 30 – Protection in the Event of Unjustified Dismissal

right to protect the worker against the abuse of managerial power.9 It can apply in the context of termination of employment connected with the capacity or conduct of the worker or an economic dismissal.10 Legislation on job security may deter or prevent the employer from simply firing at will, as is the norm in the United States,11 and, in some Member States, there is the possibility of reinstatement in the job. It is also important to note that the scope of Article 30 is limited somewhat by the caveat that the operation of the right to protection against unjustified dismissal is in accordance with both Union law and ‘national laws and practices’. According to Article 52(6) of the Charter: ‘Full account shall be taken of national laws and practices as specified in the Charter’, which means, by reference to the explanation on Article 52, that the ‘spirit of subsidiarity’ applies. The extent to which this restricts the scope of Article 30 is doubtful but, at the very least, it ensures that where the national law and practice falls outside the scope of application of the Charter, as defined in Article 51, or action by Member States is merely optional under EU law, or indeed international law, Article 30 will not be directly engaged. This has been vividly demonstrated in Nagy,12 a reference from a Hungarian court analysed in section D.I below. Moreover, Article 2 of Protocol 30 on the application of the Charter to Poland and the United Kingdom, annexed to the EU treaties, may also come into play as it provides that where ‘national laws and practices’ are referred to in a provision of the Charter, the right in question shall only apply in the two named Member States ‘to the extent that the rights or principles that it contains are recognised in the law or practices of Poland and the United Kingdom’. This reinforces Article 1(2) of the Protocol which declares that ‘nothing’ in Title IV of the Charter, which includes Article 30, ‘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’. The limited scope of Article 30 suggests that the impact of the Protocol is not significant, but it does act as a potential brake on the development of EU law in this area. It is important to note, however, that the Protocol is not an opt-out, and it does not exempt Poland or the United Kingdom from the obligation to comply with the provisions of the Charter or to prevent a court of one of those Member States from ensuring compliance with those provisions.13 EU law does, however, offer a degree of protection to individual workers in the event of termination of their contract or employment relationship in several specific contexts. There is, therefore, the potential for Article 30 be activated and for its sources in international law to be a point of reference for judicial interpretation within the scope of EU law. The Transfers of Undertakings Directive 2001/23,14 first adopted in 1977, is referenced in the explanations on Article 30. It is intended to safeguard the acquired employment

9

See H Collins, Justice in Dismissal (Oxford, Clarendon Press, 1992) 1–5. Art 4, ILO Convention No 158. 11 See K Miller, ‘The American Employment-at-Will Doctrine and its Impact upon Employee Rights’ (2001) 5 Edinburgh Law Review 169. 12 Cases C-488–491/12 and 526/12 Nagy and Others (Order of the Court, 10 October 2013). 13 Cases C-411/10 NS v Secretary of State for the Home Department and C-493/10 ME and Others v Refugee Applications Commissioner, Minster for Justice, Equality and Law Reform (21 December 2011). 14 Council Directive 2001/23/EC on the approximation of the law of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses [2001] OJ L82/16. The Directive repealed and replaced Directive 77/187/EEC and its amendment, Directive 98/50/EC. 10

Jeff Kenner

807

30.04

30.05

30.06

30.07

Part I – Commentary on the Articles of the EU Charter

rights of contracted employees in the event of a business restructuring involving a change of employer. It offers protection only in the context of the termination of an employment relationship by reason of the transfer of an undertaking, business, or part thereof to another employer as a result of a legal transfer or merger.15 Article 4(1) provides that the transfer shall not ‘in itself ’ constitute grounds for dismissal by the transferor or the transferee. It does, however, allow for dismissals that may take place for ‘economic, technical or organisational reasons entailing changes in the workforce’. It therefore balances protection for the employees with the commercial considerations of the transferor and the transferee. Article 4(2) is more explicit on the justice of the dismissal. It provides that if the employment contract is terminated because the transfer involves a ‘substantial change’ in working conditions to the ‘detriment’ of the employee, the employer ‘shall be regarded as having been responsible’ for the termination. Reference is also made in the explanations on Article 30 to the Insolvency Directive, 30.08 2008/94/EC,16 first introduced in 1980. The Directive is primarily concerned with ensuring a ‘minimum degree’ of protection for employees in the event of the insolvency of their employer.17 Member States are required to establish a body which guarantees payment of the outstanding contractual claims of employees. Under Article 3, these payments are to include, where provided for by national law, severance pay on termination of employment relationships. The purpose is to provide a modicum of compensation by society for the unfairness suffered by employees in economic circumstances for which they cannot be held to be responsible. Fundamental rights are not at the forefront and it is noticeable that neither the Directive, as amended, nor the Charter, contains a reference to Article 25 RESC which recognises a ‘right of workers to the protection of their claims in the event of the insolvency of their employer’. Unlike the circumstances envisaged under the Transfers of Undertaking Directive, 30.09 in an insolvency scenario there is no new employer to take over the ownership of the business, but Article 8 recognises acquired rights, or a property dimension to the job, by placing an obligation on Member States to take the ‘necessary measures’ to protect both employees and persons who have already left the undertaking or business at the date of the onset of the employer’s insolvency, in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors’ benefits, under occupational pension schemes. In both of the above instances, Article 30 has the potential to buttress the established 30.10 rights of employees on termination of employment under EU law. It can be argued that Article 30 is somewhat incidental to the main purposes of these Directives, which are essentially concerned with managing the processes of corporate restructuring and insolvency. This may explain why the Court of Justice has not, to date, cited Article 30 in its judgments in cases referred by the national courts on the scope of the employment protection provisions in either of the two Directives. The Court of Justice has, however, made reference to Article 16 of the Charter laying down the freedom to conduct a

15

Ibid, Art 1(a). Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer (codified version), OJ L283/36. The Directive repealed and replaced Directive 80/987/EEC and its amendments, Directives 87/164/EEC and 2002/74/EC. 17 Ibid, Recital 3 of the preamble. 16

808

Jeff Kenner

Art 30 – Protection in the Event of Unjustified Dismissal

business when exercising the managerial prerogative in the context of a transfer of an undertaking.18 The explanations make no reference to the Collective Redundancies Directive, 98/59,19 despite the fact that, alone among EU social policy Directives, it is concerned exclusively with the process of termination of the employment relationship. Directive 98/59 applies in situations where an employer decides to cease to run a business at a particular location, or to reduce the number of employees employed there.20 In part, this omission can be explained by the essentially procedural objectives of the Directive, which is not directly concerned with the substantive employment rights of those workers who might potentially be affected when an employer contemplates making collective redundancies. The main purpose of the Directive is to provide a loose framework within which the parties, including representatives of the employer and the workers, can conduct the practical arrangements and procedures for such ‘collective redundancies’. As such, it fits more closely with Article 27 of the Charter on the right of workers to ‘information and consultation within the undertaking’. Nevertheless, Article 30 is relevant because effective involvement of workers’ representatives is of vital importance for individuals facing dismissal as a consequence of economic reorganisation. Specific prohibition of dismissal from employment can be found in EU legislation concerning family life. Article 10 of the Pregnancy and Maternity Directive, 92/85,21 prohibits the dismissal of pregnant workers and workers who have recently given birth or who are breastfeeding. Dismissal of these workers is deemed automatically unjustified without the need to look at motive or to use EU gender equality law to establish unequal treatment. The legislator’s rationale is the need to guarantee the right of workers falling within the scope of the Directive to health and safety protection. Clause 2(4) of the revised Framework Agreement annexed to the Parental Leave Directive, 2010/18,22 requires Member States to take the ‘necessary measures’ to protect workers against dismissal on the grounds of an application for, or taking of, parental leave in accordance with national law, collective agreements or practices. In a similar vein, Article 16 of the recast Directive on Equal Treatment of Men and Women, 2006/54,23 provides for protection against dismissal for workers exercising rights to paternity and/ or adoption leave but only where such rights are recognised by Member States. Each of these family life related dismissal scenarios is captured by Article 33(2) of the Charter. It is important to note, however, the link between the specific protections

18

Case C-426/11 Alemo-Herron v Parkwood Leisure Ltd (18 July 2013), discussed in section D.I. Council Directive 98/59/EC on the approximation of laws of the Member States relating to collective redundancies [1998] OJ L225/16 (as corrected by Corrigendum [2007] OJ L59). Directive 98/59 repealed and replaced Directive 75/129/EEC and its amendment, Directive 92/56/EEC. 20 At least 10 workers in establishments normally employing more than 20 and less than 100 workers; at least 10 per cent of workers in establishments normally employing between 100 and 299 workers; or at least 30 workers in establishments normally employing 300 workers or more—ibid, Art 1(a)(ii). 21 Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Art 16 (1) of Directive 89/391/EEC) [1992] OJ L348/1. 22 Council Directive 2010/18/EU implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC [2010] OJ L68/13. 23 Council Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) [2006] OJ L204/23. 19

Jeff Kenner

809

30.11

30.12

30.13

30.14

Part I – Commentary on the Articles of the EU Charter

provided in these directives and the importance, in the wider sense, of upholding the principles of dignity and autonomy of the individual that are central to the conception of fairness in dismissal.24 30.15 Finally, Article 30 is relevant in protection against dismissal in the context of combating discrimination on one or more of the grounds referred to in Article 19 TFEU25 and providing for equal treatment between men and women in employment and occupation under Article 157 TFEU. Article 14(1)(c) of the recast Directive on Equal Treatment of Men and Women, 2006/54,26 prohibits direct or indirect discrimination in relation to employment and working conditions ‘including dismissals’. Equivalent provisions can be found in Article 3(1)(c) of Directive 2000/4327 on race discrimination and Article 3(1)(c) of the general non-discrimination Directive, 2000/78.28 Moreover, dismissal for reasons connected with discrimination is not valid under the norms of the ILO and the Council of Europe on protection in the event of termination of employment initiated by the employer.29 On the one hand, Article 30 appears somewhat nugatory in the non-discrimination 30.16 and equal treatment context, as it is superseded by more direct application of Articles 21 and 23 of the Charter. However, on the other hand, it may have particular relevance in the context of age discrimination where, by contrast with the other grounds of discrimination, directly discriminatory dismissal rules, such as a fixed retirement age, are capable of justification by an employer who can show that the provisions in question are ‘objectively and reasonably justified by a legitimate aim’, and are proportionate.30

B. Interrelationship of Article 30 with Other Provisions of the Charter 30.17 In order to identify the relationship of Article 30 with other Charter provisions, it is necessary to conceptualise justice in the context of dismissal by an employer. Hugh Collins has identified two rationales for laws against unjust or unfair dismissal.31 First, by providing for fairness in the process and substance of dismissal, such laws respect the dignity of the individual worker and, secondly, they foster autonomy by improving a worker’s job security. Granting this right endows the worker with an interest in job security, but not necessarily an ownership or property right in the job. Collins’ dignity rationale is immediately relevant when Article 1 is considered. Article 30.18 1 declares that human dignity is ‘inviolable’ and ‘must be respected and protected’. Human dignity is an inherent right for all human beings derived from the Universal

24

See Collins, above n 9, 9–23. Sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. 26 Above n 23. 27 Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22. 28 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16. 29 See section C. 30 See also Art 6 of Directive 2000/78 discussed in section D.III. 31 See Collins, above n 9, 21. 25

810

Jeff Kenner

Art 30 – Protection in the Event of Unjustified Dismissal

Declaration of Human Rights. The explanations state that ‘none of the rights’ in the Charter ‘may be used to harm the dignity of another person, and that the dignity of the human person is part of the substance of the rights laid down in this Charter’. As Article 30 is expressed positively as a right and may conflict with other rights and freedoms in the Charter, such as Article 16 on the freedom to conduct a business, this wording is important. At the very least, Article 30, read together with Article 1, recognises that, even if the decision to dismiss a worker is a legitimate exercise of the managerial prerogative, it is necessary for the employer to act rationally by respecting and protecting the worker’s right to be treated with dignity in the conduct of that dismissal.32 Article 3 brings into play the autonomy rationale suggested by Collins. It states that ‘everyone has a right to respect for his or her physical and mental integrity’. Success at work, or the ambition to succeed and be satisfied in the work environment, is integral to personal autonomy and physical and mental well-being. As Collins observes, dismissal from employment deprives the worker not only of their major source of income, but also leads to a loss of status. In some cases, the worker, deprived of ‘membership of the most significant community in their life’, suffers a personal impact akin to a criminal punishment.33 Dismissal without cause strikes at the personal integrity of the individual that is the root of Article 3. Article 10 on freedom of thought, conscience and religion, corresponding to Article 9 ECHR, is of direct relevance in cases where termination of employment is in violation of the freedom to hold religious or other beliefs.34 Article 10 also interacts with Article 21 on non-discrimination on the ground of ‘religion or belief ’. Article 12 on freedom of association, sourced from Article 11 ECHR, is also relevant. The essence of this freedom is the right of all workers, as autonomous human beings, to join and participate in trade unions that represent and protect their interests in the workplace. The autonomy of the worker to exercise the freedom to join a trade union, or not to join,35 is jeopardised if there is no protection against dismissal for this reason. Article 5 of ILO Convention No 158 on Termination of Employment identifies union membership or participation in union activities outside of working hours or, with the consent of the employer, within working hours, as not constituting valid reasons for termination.36 Article 15 on the freedom to choose an occupation and engage in work interacts closely with Article 30. Underlying Article 15 is the notion of an autonomous ‘right to work’, although not a right to work in a particular job. Unjustified termination of employment negates the individual’s right to work and choice of occupation.37 It follows that laws on unjust dismissal should include a right to reinstatement or re-engagement in a comparable job, as the most meaningful remedy to restore justice for the worker. The relationship between Article 30 and Article 16, on freedom to conduct a business, is sensitive and ill-defined. Article 16 is sourced from the case law of the Court of Justice

32 33 34 35 36 37

Ibid, 16–18. Ibid, 2. See Ivanova v Bulgaria App no 52435/99 (ECtHR, 12 April 2007). Young, James and Webster v United Kingdom App nos 7601/76 and 7806/77 (ECtHR, 13 August 1981). Art 5(a). See B Hepple, ‘A Right to Work?’ (1981) 10 Industrial Law Journal 65, 76–78.

Jeff Kenner

811

30.19

30.20

30.21

30.22

30.23

Part I – Commentary on the Articles of the EU Charter

30.24

30.25

30.26

30.27

which has recognised the freedom to exercise an economic or commercial activity.38 It enshrines managerial authority as a corollary of economic freedom. Article 30 acts as a counterweight to Article 16, by limiting managerial authority to dismiss at will. Article 16, in common with Article 30, operates in accordance with Union law and national law and practices. Member States, therefore, have freedom to reconcile any conflict between Articles 16 and 30, so long as their rules are compatible with EU law and international obligations. Article 17 on the right to property interacts with Article 30 only to the extent that it is accepted that there is an element of property ownership in the job for the individual worker. The right of the worker to protection against unjust dismissal implies that ownership of the job is not in the exclusive control of the employer. Article 30 does not, however, establish an unfettered right of the worker to ‘own’ or ‘use’ the job as a ‘lawfully acquired possession’ in the sense envisaged by Article 17. The concept of acquired property ownership rights is analogous to acquired employment rights in the context of the Transfers of Undertakings Directive, 2001/23.39 Article 21 on non-discrimination and Article 23 on equality between men and women provide specific reference points for the protection of workers whose employment relationship has been terminated by reason, respectively, of discrimination on one of the grounds referred to in Article 21, at least to the extent that these replicate the grounds in Article 19 TFEU, or in the specific violation of the principle of equal treatment between men and women. In practice Articles 21 and 23 are stronger than Article 30 because, unlike Article 30, these Charter rights flow directly from EU treaty provisions put into effect in the legal orders of the Member States by the transposition of Directives and underpinned by the general principle of equality evolved by the Court of Justice. Article 25 on the rights of the elderly intersects with Article 30. For many older workers the right to job security and to continue in work until a time of their own choosing, is important for their ‘dignity’ and ‘independence’ as expressed in Article 25 and recognised implicitly in Article 23 RESC. Once older workers cease working they may lose an integral part of their ‘social and cultural life’. However, the Court of Justice has taken a somewhat converse view of the dignity of the older worker when upholding a national rule allowing for compulsory retirement at the age of 67 on the basis, in part, of accepting a rationale that such a rule ‘makes it possible to avoid a situation in which employment contracts are terminated in situations which are humiliating for elderly workers’.40 Article 26 on the integration of persons with disabilities is also highly relevant when evaluating Article 30. The opportunity to obtain work but also to maintain it with security is vital for the ‘social and occupational integration’ of persons with disabilities. Social inclusion through employment is at the core of the UN Convention on the Rights of Persons with Disabilities, which obliges state parties to prohibit discrimination on

38 The explanation on Art 16 refers to the following cases, inter alia: Case 4/73 Nold [1974] ECR 491 [14]; Case 230/78 Sp A Eridinia and Others [1979] ECR 2749 [20]–[21]; Case C-240/97 Spain v Commission [1999] ECR I-6571. 39 Council Directive 2001/23/EC on the approximation of the law of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses [2001] OJ L82/16. 40 Case C-141/11 Hörnfeldt (5 July 2012) [34].

812

Jeff Kenner

Art 30 – Protection in the Event of Unjustified Dismissal

the basis of disability with regard to ‘all matters concerning all forms of employment’, including ‘continuance of employment’.41 The UN Convention has been approved by Council Decision 2010/4842 and, therefore, as the Court of Justice observed in Ring and Werge,43 its provisions are, from the time of the entry into force of the Convention, an integral part of the EU legal order. It follows that the general non-discrimination Directive, 2000/78, must, as far as possible, be interpreted in a manner consistent with the Convention.44 In that context, the Court of Justice proceeded to hold that Directive 2000/78 must be interpreted as precluding national legislation under which an employer can terminate the employment contract with reduced notice if a disabled worker has been absent because of illness, with his salary paid, for 120 days during the previous 12 months, where those absences are either the consequence of the employer’s failure to take the appropriate measures in accordance with the obligation to provide reasonable accommodation,45 or, where those absences are the consequences of his disability, unless that legislation, as well as pursuing a legitimate aim, does not go beyond what is necessary to achieve that aim.46 Article 27 on the right of workers to information and consultation within the under- 30.28 taking is concerned with the process of termination of employment, and therefore interacts with Article 30 in the specific contexts of Directive 98/59 on collective redundancies and Directive 2001/23 on transfers of undertakings.47 More generally, Article 27 places emphasis on the importance of transparency and procedural fairness in the termination of employment even in circumstances where dismissal may be justified in substance.48 Article 28 on the right of collective bargaining and action interrelates with Article 30.29 30 in two ways. First, the individual worker facing the prospect of dismissal can secure representation from their trade union, who will advocate on their behalf. Collective bargaining backed up by the ultimate threat of industrial action is also vital in preventing or reducing mass redundancies or mitigating their impact. The effectiveness of the interaction between Articles 28 and 30 is blunted somewhat, however, by the exclusion of the right to strike from the legal basis provisions in Article 153 TFEU. Second, those participating in collective bargaining require protection from dismissal.49 Article 33(2) is the only other right or principle in the Charter providing express 30.30 protection from dismissal. It provides that ‘everyone’ shall have the ‘right to protection from dismissal’ for reasons connected with maternity, the right to paid maternity leave and parental leave following the birth or adoption of a child. As it is sourced directly from EU legislation, discussed in section A above, it places those workers who fall within

41

Art 27a: www.un.org/disabilities/convention/conventionfull.shtml (adopted 13 December 2006). Council Decision 2010/48/EC [2010] OJ L23/35. 43 Joined Cases C-335 and 337/11 Ring and Werge (11 April 2013) [30]. 44 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16. The UN Convention entered into force on 3 May 2008. 45 Ring and Werge (n 43), point 3 of the operative part of the judgment. The obligation to provide reasonable accommodation is laid down in Art 5 of Directive 2000/78, ibid. 46 Ibid, point 4 of the operative part of the judgment. 47 Council Directive 98/59/EC on the approximation of laws of the Member States relating to collective redundancies [1998] OJ L225/16 (as corrected by Corrigendum [2007] OJ L59) and Council Directive 2001/23/ EC on the approximation of the law of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses [2001] OJ L82/16. 48 Collins, n 9 above, 104–40. See also Arts 7–10 of ILO Convention No 158, n 7 above. 49 See Art 5(b) of ILO Convention No 158. 42

Jeff Kenner

813

Part I – Commentary on the Articles of the EU Charter

its scope with a firm foundation of employment protection without the need to draw directly on Article 30. 30.31 Article 34 recognises the entitlement to social security and social assistance ‘in the case of loss of employment’. It is a limited principle, governed mainly by national law, but it provides some recognition of the important role of social security in cushioning the worker against the worst effects of termination of employment in circumstances where it may be unexpected or unjustified, or both. 30.32 Article 41(2) on the right of every person to be heard, the right to have access to his or her file, and the obligation of the Union to give reasons for its decisions, is important for EU civil servants seeking to rely directly on their right to a fair procedure in the event of their dismissal. Article 42 on the right of access to documents is also important in this respect. The Court of Justice, in Strack,50 has recently upheld the right of EU civil servants to expect their institutional employer to observe both procedural and substantive employment rights in the Charter when applying the Staff Regulations in accordance with Article 51(1). 30.33 Finally, Article 47 on the right to an effective remedy and to a fair trial is emerging as a significant dimension of the right to protection against unjustified dismissal. First, the worker who succeeds in establishing unjustified termination within the scope of EU law is entitled to an effective remedy including the possibility of reinstatement in the job or re-engagement or, if this is not practicable or possible, to be awarded adequate compensation. Second, Article 24 RESC provides that a right to appeal to ‘an impartial body’ is an essential part of the protection of the claim of a worker who considers that their employment has been terminated without a ‘valid reason’.51 It follows that the right to be given a valid reason for dismissal is essential for the protection of civil rights and the entitlement of the worker seeking redress to a fair hearing by a tribunal guaranteed by Article 6 ECHR, which is a primary source of Article 47.52

C. Sources of Article 30 Rights I. ECHR 30.34 The ECHR is not a direct source of Article 30, but there are a number of connections between its provisions and the rights of workers on termination of employment. Article 6 of the Convention has acquired particular significance. In a series of cases the European Court of Human Rights has gradually extended the applicability of the right to an effective remedy and a fair trial to labour disputes concerning civil servants.53 For the Strasbourg Court, judicial protection is not effective if there is a procedural or substantive

50

Case C-579/12 RX-II European Commission v Strack (19 September 2013). This is a reference to the distinction between valid and invalid reasons for dismissal contained in ILO Convention No 158, discussed in section C.III. 52 See KMC v Hungary App no 19554/11 (ECtHR, 10 July 2012). 53 Frydlender v France App no 30979/96 (27 June 2000); Vilho Eskelinen and Others v Finland App no 63235/00 (19 April 2007); and Iordanov and Others v Bulgaria App no 23530/02 (2 June 2009). 51

814

Jeff Kenner

Art 30 – Protection in the Event of Unjustified Dismissal

obstacle to a genuine judicial examination of the merits of the parties’ claims.54 This approach applies in assessing the fairness of proceedings concerning removal of civil servants from office or the excessive length of dismissal proceedings.55 Rights on termination of employment have also been recognised in cases involving Article 9 ECHR on freedom of religion,56 and, latterly, upholding the rights of ‘whistleblowers’ to protection from dismissal without notice for exercising their freedom of expression under Article 10 ECHR.57 In cases involving discriminatory dismissal, Article 14 ECHR and Protocol 12, where connected to another provision of the ECHR, are also engaged. In the recent case of KMC v Hungary,58 the European Court of Human Rights held 30.35 that the dismissal of a civil servant without giving reasons, permitted under Hungarian law at the time of the case, meant that the dismissal could not be practically and effectively challenged independently in a hearing before an impartial tribunal, contrary to Article 6 ECHR.59 The same conclusion had already been reached by the Hungarian Constitutional Court,60 which annulled the offending domestic legislation on similar grounds after the application had been made to Strasbourg. Significantly, the European Court of Human Rights referred expressly to Article 30 of the Charter in its judgment and noted that it draws on Article 24 RESC.61

II. UN Treaties Article 6 of the UN International Covenant on Economic, Social and Cultural Rights 30.36 (ICESCR) recognises the ‘right to work’ including ‘the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts’.62 State parties are required to ‘take appropriate steps to safeguard this right’ and to ensure its progressive realisation. In General Comment No 18 on the Right to Work,63 the UN Committee on Economic, Social and Cultural Rights (UNCESR) noted that the right to work implies the ‘right not to be unfairly deprived of employment’.64 The normative content of the right incorporates ILO Convention No 158, discussed below.65 The UN Committee regards the failure to protect workers against unfair dismissal as a violation of the obligation on state parties to protect the right to work.66

54 See the decision of the Hungarian Constitutional Court, no 8/2011, cited affirmatively by the ECtHR in KMC (n 52) [16]. 55 Hrdalo v Croatia App no 23272/07 (27 June 2011); Mishgjoni v Albania App no 18381/05 (7 December 2010); and Golenja v Slovenia App no 76378/01 (30 March 2006). 56 Ivanova (n 34). 57 Heinisch v Germany App no 28274/08 (21 July 2011). 58 KMC (n 52). 59 Ibid [33]–[36]. 60 Hungarian Constitutional Court, no 8/2011. 61 KMC (n 52) [18]–[19]. 62 Adopted on 16 Dec 1966: www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx. 63 E/C 12/GC/18, 6 Feb 2006: http://tb.ohchr.org/default.aspx?Symbol=E/C.12/GC/18. 64 Ibid, para 6. 65 Ibid, para 11. 66 Ibid, para 35.

Jeff Kenner

815

Part I – Commentary on the Articles of the EU Charter

III. ILO 30.37 Article 30 can ultimately be traced back to two ILO instruments on termination of employment at the initiative of the employer: Recommendation No 119, 1963—now replaced by Recommendation No 166, 1982—and Convention No 158, 1982.67 The original non-binding Recommendation provided the foundation of the principle that termination of the employment relationship by the employer should not take place without a valid reason and also the right of a worker to appeal against that termination to an independent body. It spurred legislation to protect job security in many EU Member States.68 However, it was the adoption of the Convention, as a stronger normative measure, that began the process of elevating protection against unjustified dismissal to the level of an international human right.69 The main provisions are briefly outlined below but will be analysed in more depth in section D.III. 30.38 Article 4 of the Convention provides that: The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.

30.39 The Convention identifies specific reasons for termination that are not valid, including: union membership or participation in union activities; seeking office or acting as a workers’ representative; filing a complaint or taking proceedings against an employer; race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; absence from work during maternity leave; and temporary absence from work because of illness or injury.70 Age is regarded as an invalid reason in paragraph 5 of the replacement Recommendation, but it is not referred to in the Convention. 30.40 The substantive right to protection is backed up by procedural rights of the worker to a defence prior to, or at the time of, termination and a right of appeal against termination to an independent body, which can declare the dismissal invalid and remedy the situation by reinstatement, adequate compensation or other relief.71 The issue of remedies is considered further in section D.V. 30.41 Under Article 2 of the Convention, ratifying states have flexibility to exclude three categories of workers from some of the provisions. The excluded categories are: (a) workers engaged on contracts of employment for a specified period of time or a specified task; (b) workers serving a period of probation or a qualifying period of employment, ‘determined in advance and of a reasonable duration’; (c) workers engaged on a casual basis for a short period.

67 68 69 70 71

816

ILO instruments can be found on the NORMLEX database: www.ilo.org/dyn/normlex/en. E Yemin, ‘Job Security: influence of ILO standards and recent trends’ (1976) 13 International Law Review 17. See B Napier, ‘Dismissal—The New ILO Standards’ (1983) 12 Industrial Law Journal 17. Arts 5–6. Arts 7–10.

Jeff Kenner

Art 30 – Protection in the Event of Unjustified Dismissal

The impact of these limitations is discussed in section D.IV below, in particular the 30.42 length of a ‘reasonable’ qualifying period, but there is no doubt that by excluding these categories of workers, who are among the most vulnerable, the right is significantly impaired for many.

IV. Council of Europe Treaties Article 1 ESC contains certain obligations on the contracting parties aimed at ensuring 30.43 the ‘effective exercise of the right to work’ but these obligations have not been interpreted by the European Committee of Social Rights (ECSR) as including protection for workers against unjust dismissal except in instances of discrimination.72 The main source of Article 30 is Article 24 RESC on the right to protection in cases of 30.44 termination of employment at the initiative of the employer. This provision is based on ILO Convention No 158 and is intended to bring the Council of Europe regime in line with the ILO to avoid double standards. Article 24 RESC is worded as follows: With a view to ensuring the effective exercise of the right of workers to protection in cases of termination of employment, the Parties undertake to recognise: a. the right of all workers not to have their employment terminated without valid reasons for such termination connected with their capacity or conduct or based on the operational requirements of the undertaking, establishment or service; b. the right of workers whose employment is terminated without a valid reason to adequate compensation or other appropriate relief. To this end the Parties undertake to ensure that a worker who considers that his employment has been terminated without a valid reason shall have the right to appeal to an impartial body.

The Appendix to the RESC contains the same list of invalid reasons for termination of 30.45 employment as Article 5 of the ILO Convention, and also the same exceptions, including the option for the contracting parties to introduce or maintain a qualifying period for a ‘reasonable duration’ before the right to bring a claim can be exercised. In its case law, the ECSR has interpreted the core right in Article 24 RESC broadly 30.46 and the exceptions strictly. As the content of Article 30 is based primarily on the right contained in Article 24 RESC the relevant case law will be discussed in the analysis in section D below.

V. National Constitutional Laws Article 30 is not sourced directly from national constitutional laws. Many provisions 30.47 common to national constitutions, such as dignity, equality, non-discrimination and the right to a fair trial and an effective remedy, are relevant, but will not be discussed in detail in this chapter. It is important to note, however, that legislation on unjust

72 Digest of the Case Law of the European Committee on Social Rights, 1 September 2008, pp 19–25: www.coe.int/t/dghl/monitoring/socialcharter/digest/DigestSept2008_en.pdf.

Jeff Kenner

817

Part I – Commentary on the Articles of the EU Charter

dismissal in some Member States, and related laws, have been interpreted by national constitutional courts purposively to guarantee effective protection. For example, legislation in Germany and Scandinavia has been interpreted and applied by the courts to protect employee representatives from dismissal by guaranteeing fair procedures.73 30.48 Article 18 of the Italian Statuto di Lavoratori74 is of particular interest. It has been associated with the concept of strong stability in the employment relationship to limit the power of dismissal. This concept has been constructed in the post-1945 period and recognised by the Constitutional Court when interpreting the Statuto.75 In its original version, the Statuto provided that if a worker claimed unfair dismissal, there was a right to interim relief until the tribunal decided the case. Enterprises or organisations employing more than 15 persons were required to reinstate the unjustly dismissed worker in the job, and penalties could be imposed for failure to comply.76 Lord Wedderburn described the Statuto as a version of ‘habeas corpus for the worker’.77 Anderman regarded it as forcefully imposing responsibility on the employer not to dismiss without an independent assessment rather than necessarily creating a property right in the job.78 Until recently, attempts to modify the legislation had met with strong, sometimes violent, opposition. Significantly, however, a reform law was adopted in 2012, which makes certain procedural changes but, most importantly, ends obligatory reinstatement as the only remedy for unjustified dismissal in most cases involving employers with more than 15 workers by providing for compensation in the range of one to two years’ pay as an alternative.79 Whilst such a revision has almost certainly only been possible because of the economic crisis, the revised Article 18 remains among the most protective provisions on job security in the laws of the Member States.

D. Analysis I. General Remarks 30.49 Article 30 carries with it connotations of a property right in the job for the worker, or at least a shift in that direction. Whilst there is much to support this analysis, it is more accurate to understand the right as a mechanism for adjusting the employerworker power relationship. Protection against unjustified dismissal places limits on the exercise of ownership rights by the employer but it does not create property rights for

73 See S Anderman, ‘Termination of Employment: Whose Property Rights?’ in C Barnard, S Deakin and GS Morris (eds), The Future of Labour Law (Oxford, Hart Publishing, 2004) 101–28, 123; and B Hepple, ‘European Rules on Dismissals Law?’ (1997) Comparative Labour Law Journal 204, 210–12. 74 Law no 300/1970. 75 S Bellomo, ‘Italian Report’. (Draft paper presented at the Seminar of Comparative Labour Law ‘Pontignano XXX’, Modena, 16–19 July 2013.) See Case no 174, 12 December 1972. 76 Anderman, above n 73, pp 122–23. 77 Lord Wedderburn, ‘The Italian Workers Statute: British Reflections on a High Point of Legal Protection’ (1990) 19 Industrial Law Journal 154. 78 Anderman, above n 73, 123. 79 Law no 92/2012. See Bellamo, above n 75. I am very grateful to Stefano Bellomo and Massimiliano Delfino for their advice on the labour law reforms in Italy.

818

Jeff Kenner

Art 30 – Protection in the Event of Unjustified Dismissal

the worker in a particular job.80 The main challenge for legislators and judges, when evaluating Article 30, is to find the right balance between the employer’s managerial prerogative to make business decisions and the worker’s reasonable expectation of job security. The balance of interests was summarised by the ILO’s Committee of Experts on the Application of Conventions and Recommendations (CEACR) in its 1974 General Survey on Recommendation No 119:81 Although the Recommendation is essentially intended to provide protection of the worker’s security of employment, it also embodies an attempt to balance the several interests involved: that of the worker in job security, since the loss of his job may mean loss of his and his family’s livelihood; that of the employer in retaining authority over matters affecting the efficient operation of the undertaking, that of the community in maintaining peaceful labour relations and avoiding unnecessary dislocations due to either unemployment or unproductive economic units.

In seeking to find this balance, the need for a ‘valid reason’ for dismissal is paramount. 30.50 As we have seen, the obligation on the employer to provide a valid reason for dismissal, and the listing of reasons that are automatically deemed not valid, is derived from Articles 4 and 5 of ILO Convention No 158 and reinforced by Article 24 RESC. The CEACR regards the Convention’s provisions as establishing a ‘fundamental principle of justification’ for terminating employment relationships of indefinite duration82 and, more radically, it advises that the Convention removes the possibility for ‘unilateral’ termination by means of a period of notice or compensation in lieu.83 The judgment of the European Court of Human Rights in KMC v Hungary84 is 30.51 significant in highlighting the incidental application of the ‘fundamental principle of justification’ for dismissal in the context of broader civil and political rights and freedoms guaranteed under the ECHR and having the same meaning and scope in the Charter. The right to a fair hearing in Article 6 ECHR requires a reason—implicitly a valid reason—for dismissal to be communicated to the worker in order for that right to be practical and effective.85 Rights to freedom of religion, freedom of expression, freedom of association and non-discrimination, in Articles 9, 10, 11 and 14 ECHR, among others, will be violated if there is interference with the exercise of these civil rights. Such interference will be present in cases where the exercise of the right in question carries with it the sanction of unilateral termination of employment. Similarly, it must follow from this reasoning, that the right to an effective remedy under Article 13 ECHR requires reinstatement or adequate compensation in lieu. Also, it can be argued that by referring to both Article 30 and Article 24 RESC, and 30.52 noting that the latter is the source of the former in the explanations,86 the European Court of Human Rights is sending a message that the effect of incorporating Article 30 into the Charter, and granting the Charter the same legal value as the Treaties under Article 6(1) TEU, is to create an obligation on all EU Member States, as members of

80 81 82 83 84 85 86

See Anderman, above n 73. ILO GS 1974 on the reports related to Recommendation No 119, para 3. CEACR Direct Request—Luxembourg (2007). CEACR General Survey—Protection against unjustified dismissal (1995), para 76. n 52 above. Ibid [33]–[35]. Ibid [18]–[19].

Jeff Kenner

819

Part I – Commentary on the Articles of the EU Charter

30.53

30.54

30.55

30.56

the Council of Europe, to guarantee the right to protection in cases of termination of employment regardless of whether or not those states have ratified the RESC. Judge Pinto de Albuquerque is more explicit in a separate concurring opinion issued with the judgment. In his opinion, the effect of the adoption of Article 30 and the explanations has been to reinforce a European ‘consensus’ on protection in cases of termination of employment amounting to a ‘positive obligation for the Contracting Parties to the Convention to implement the principle of justification for termination of employment’.87 The Court had previously established that a social right can be legitimately derived from a Convention provision ‘even when such a right is foreseen in the [ESC] and the Contracting Party is not bound by the relevant provision of the [ESC]’.88 Referring also to Article 6 ICESCR and ILO Convention No 158, he concludes that it is ‘not acceptable’ for one state to advocate a ‘double standard’ in respect of termination of employment in respect of different international organisations.89 The judge’s opinion amounts to a robust assertion of the ‘fundamental principle of justification’ in the European human rights context. It explains the basis upon which the European Court of Human Rights was able to make interconnections between Article 30, Article 24 RESC and Article 6 ECHR, so as to require Hungary to provide civil servants with valid reasons for termination of their employment that were capable of independent legal challenge. KMC v Hungary demonstrates the potential of what Kahn-Freund once described as the ‘reflex effect’ of proclaiming fundamental social rights, as in the case of Article 30, as a basis for ‘the interpretation of positive legal norms and as direct sources of rights’.90 However, reflexive interpretation requires the existence of a positive legal norm. The legal vacuum in the EU and the limitations of Article 30 in the legal orders of the Member States has been starkly demonstrated in Nagy,91 a follow-up case to KMC v Hungary referred directly to the Court of Justice by a Hungarian court in October 2012, some three months after the European Court of Human Rights had given judgment. Nagy concerned a group of Hungarian civil servants who had been removed from office without cause under the same law adjudicated in KMC v Hungary, which permitted termination of employment in the civil service ‘without justification’. The civil servants were dismissed prior to the annulment of the law by the Constitutional Court in May 2011. The Hungarian court referred the case to the Court of Justice on the basis that Article 30 ‘has direct effect in terms of its applicability’ and it was therefore seeking guidance on the scope of the right, including the need to notify the worker of the reason for the dismissal and the existence of a remedy. Not surprisingly, the Court of Justice, in a brief Order, ruled that it did not have jurisdiction. The national court was incorrect in assuming that Article 30 had direct effect and had misunderstood Article 51. The Court of Justice noted that the orders for reference did not contain any evidence that the proceedings ‘concern the interpretation or application of a rule of the Union other than those contained in the Charter’, and did not concern the implementation of

87

Ibid, separate opinion, p 20. Ibid, citing Demir and Baykara v Turkey App no 34503/97 (12 November 2008) [153]–[154]. 89 Ibid, p 21. 90 O Kahn-Freund, ‘The European Social Charter’ in FG Jacobs (ed), European Law and the Individual (Amsterdam, North-Holland Publishers, 1976) 181–211, 184. 91 Cases C-488–491/12 and 526/12 Nagy and Others (Order of the Court, 10 October 2013). 88

820

Jeff Kenner

Art 30 – Protection in the Event of Unjustified Dismissal

EU law within the meaning of Article 51. The invocation of provisions of the Charter could not, alone, establish competence on the Court of Justice to answer questions from the national court.92 The finding of the Court of Justice is axiomatic, but it lays bare just how limited the 30.57 Court of Justice is as a human rights court in the absence of a direct connection between EU law and a Charter right. It is therefore important to consider relevant case law of the Court of Justice in two examples where EU law has the potential to offer a degree of protection to individual workers in the event of termination of their employment contract or relationship and Article 30 has the potential to be useful. The first example, the Transfers of Undertakings Directive 2001/23,93 outlined in 30.58 section A, is largely bereft of the language of rights, but it does recognise, implicitly, important elements of the evolving right of protection in circumstances where dismissal can be deemed unfair or unjust. It upholds the right of an employee to job security in situations where an employer might otherwise be free to carry out dismissals at will in order to sell or subcontract the business subject only to following certain procedural obligations laid down under national laws or practices.94 More radically, by restricting the possibilities for dismissal, it allows for certain rights, such as pay and conditions that have been acquired over time by the employee, including by means of collective agreements, to be transferred with the employee to the new employer. The notion that such rights have been acquired and should not be forfeited, even in the event of termination of the original contract, is capable of being interpreted as a conceptualisation of the right to protection against unjust dismissal that transcends job security and recognises, in this particular context, the job itself as a property right, or stake, owned by the employee. The Court of Justice has not been asked to rule in a case on Directive 2001/23 con- 30.59 cerning a potential violation of Article 30. However, in Alemo-Herron,95 it gave precedence to an employer’s freedom to conduct a business under Article 16 in a fashion that weakens the protection of acquired rights. The case concerned the contracting out of leisure services by an English local authority to a private company which, two years later, sold its business to another company, Parkwood. Pay was determined by a national collective agreement that was renewed periodically. The question arose as to whether Parkwood were bound by the national collective agreement, as they had not been a party to the negotiations. Advocate General Cruz Villalón supported a dynamic interpretation suggested by the UK Supreme Court under which the transferee is bound under the English law of contract by collective agreements not only in force at the time but also subsequent to that transfer. The Advocate General noted that the freedom to conduct a business in Article 16 is not an absolute right, and is ‘very much open to being used as a counterweight’ to other fundamental rights.96 The logic would suggest that, at the very least, a balance should be struck between Article 16 and fundamental social

92

Applying Case C-617/10 Åkerberg Fransson (26 February 2013). Council Directive 2001/23/EC on the approximation of the law of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses [2001] OJ L82/16. 94 See Art 4 discussed in section A above. 95 Case C-426/11 Alemo-Herron and Others v Parkwood Leisure Ltd (18 July 2013). 96 Ibid, opinion [52]. 93

Jeff Kenner

821

Part I – Commentary on the Articles of the EU Charter

30.60

30.61

30.62

30.63

rights in the Charter. By contrast, the Court of Justice, relying heavily on the principle of contractual freedom in Article 16, preferred a static interpretation of acquired rights on the basis that requiring the transferee to be bound by a contractual process to which he is not a party seriously reduces the employer’s contractual freedom ‘to the point that such a limitation is liable to adversely affect the very essence of its freedom to conduct a business’.97 The Court of Justice’s judgment is understandable if Article 16 is considered in isolation. As the employees in question had not had their contracts terminated, the application of Article 30 did not arise directly. However, taking into account the objectives of the Directive, it should have been considered as a ‘counterweight’ to Article 16. The employees had only been able to keep their jobs because the Directive is designed to guarantee ‘the protection of employees in the event of a change of employer, in particular, to ensure that their rights are safeguarded’.98 At the very least, the Court should have taken account of the balance between the commercial interests of the company inheriting the transferred employees and the protection afforded to those employees to retain their acquired rights under established collective bargaining processes. Flexible methods of contractual interpretation, which are the norm under UK law, would have allowed for a dynamic approach without fundamentally restricting economic freedom. The second example, the Collective Redundancies Directive 98/59,99 previously referred to in section A, is relevant to Article 30 because it relates to termination of employment based on the ‘operational requirements’ of the undertaking, establishment or service falling within Article 4 of ILO Convention No 158 and Article 24 RESC. Whilst a dismissal for economic reasons would not normally involve disrespect or indignity for the worker, Article 30 is potentially engaged because it is essential, in the interests of justice in dismissal, for a fair procedure to be followed and objective criteria applied in the selection of workers to be made redundant.100 One immediate issue is the relationship between individual and collective dismissals. Under Article 1(a) of the Directive, the term ‘collective redundancies’ means ‘dismissals effected by the employer for one or more reasons not related to the individual workers’.101 Article 6 places a duty on Member States to ensure that judicial and/or administrative procedures for the enforcement of ‘obligations’ under the Directive are available to the workers’ representatives and/or workers. The possible application of Article 30 in this context has arisen in two cases before the Court of Justice.102 In the first case, Mono Car Styling,103 Advocate General Mengozzi, in the only substantive evaluation of Article 30 to date in proceedings before the Court

97 Ibid, judgment [35]. The Court of Justice, unlike the Advocate General, was not prepared to distinguish Case C-499/04 Werhof [2006] ECR I-2397, where a static interpretation was preferred in the context of the contractual system in Germany. 98 Recital 4 of the preamble of Directive 2001/23. 99 Council Directive 98/59/EC on the approximation of laws of the Member States relating to collective redundancies [1998] OJ L225/16 (as corrected by Corrigendum, [2007] OJ L59). 100 Collins above n 9, 153. 101 Emphasis added. 102 Case C-12/08 Mono Car Styling SA v Dervis Odemis and Others [2009] ECR I-6653 and Case C-323/08 Ovidio Rodriguez Mayor and Others v Herencia yacente de Rafael de las Heras Dávila and Others [2009] ECR I-11621. 103 Case C-12/08 Mono Car Styling, n 102 above.

822

Jeff Kenner

Art 30 – Protection in the Event of Unjustified Dismissal

of Justice, briefly considered its potential relevance in the context of the Collective Redundancies Directive. In his opinion, the underlying purpose of the EU’s legislature, by eschewing the language of ‘rights’ and preferring to refer instead to ‘obligations’, is ‘not to bestow a series of rights on those affected by collective redundancies, but to impose a series of obligations on employers who decide to make such redundancies’.104 It follows, according to the Advocate General, that Article 30 does not require an individual right of action to be provided in any case in the event of an employer failing to observe the information and consultation procedure.105 In his assessment, the reference to protection against ‘unjustified’ dismissal in Article 30 is an important ‘qualification’ which ‘makes clear’ that the protection of every worker is not provided, ‘as a fundamental individual right, with respect to every kind of irregularity that a dismissal might involve’.106 Instead, to invoke Article 30 within the scope of EU law, there must be a ‘serious irregularity’ as might arise, for example, in relation to the actual merits of the decision to dismiss. The Advocate General concluded that:107 Breaches of Directive 98/59, on the other hand, do not appear such as to justify reference to Article 30 of the Charter for, given the content of the directive, it is intended that the result of such breaches will be illegality of a formal/procedural kind.

Advocate General Mengozzi’s narrow interpretation of Article 30 would, effectively, 30.64 exclude formal or procedural irregularities in the information and consultation process from the scope of unjust dismissal, an approach that is out of line with Articles 13–14 of ILO Convention No 158. In an observation on the Convention, the CEACR has commented that:108 Terminations of employment for economic, technological, structural or similar reasons must be consistent with the provisions of Article 13 and 14 of the Convention, particularly in respect of the consultation of worker’s representatives and notification to the competent authority.

In the second case, Mayor,109 a group of employees had their contracts of employment 30.65 terminated as a result of the death of their employer. The effect of Spanish law was to place the employees of a natural person in a weaker position than the employees of a company, as the former were regarded as not being dismissed in the event of the death of the employer. The national court asked if the Spanish legislation infringed Article 30. The case appeared to provide an ideal opportunity to interpret Article 30 in the context of the implementation of EU law within the field of application of the Charter under Article 51. However, the Court of Justice ruled that the dismissals could not be classified as a ‘collective redundancy’ because the provisions of Directive 98/59 presupposed the existence of an employer who contemplated redundancies and was capable of carrying out the required information and consultation process to put into effect such

104

Ibid, opinion [44]. Ibid [96]. 106 Ibid [97]. 107 Ibid. 108 CEACR observation—Cameroon (2007). 109 Case C-323/08 Ovidio Rodriguez Mayor and Others v Herencia yacente de Rafael de las Heras Dávila and Others [2009] ECR I-11621. 105

Jeff Kenner

823

Part I – Commentary on the Articles of the EU Charter

redundancies.110 It followed that the dispute was outside of the scope of the Directive, and it was ‘not necessary’ to answer the question about the application of Article 30.111 30.66 The Court of Justice’s reasoning in Mayor is highly questionable. Post-Lisbon, the Court should have considered whether a literal interpretation of the wording of the Directive was compatible with the Charter as Treaty-equivalent law, rather than treating Article 30 as an afterthought.112 The difference of treatment under Spanish legislation between workers who have their contracts terminated due to the death of their employer and workers who face dismissal due to corporate restructuring or insolvency is stark but deemed to be outside the scope of EU law.

II. Scope of Application 30.67 Under Article 30 the right to protection against unjustified dismissal applies to ‘every worker’, without qualification. Use of the broader term ‘worker’ rather than ‘employee’ is indicative of an inclusive approach to fundamental social rights in the EU that appears to encompass not only employees with a regular contract of employment, but also non-standard workers including casual workers, ‘zero hours’ workers, home workers, temporary agency workers and others who are not self-employed yet may not have a contract of employment recognised under national law.113 Non-standard workers are in the most precarious position and are vulnerable to arbitrary dismissal. Appearances are deceptive. Article 30 applies only ‘in accordance with Union law and 30.68 national law and practices’. In the course of this chapter the term ‘worker’ has been used in preference to ‘employee’ consistent with Article 30 and an inclusive interpretation of ILO Convention No 158 and Article 24 RESC. However, although the ILO Convention ‘applies to all branches of economic activity and all employed persons’114 both it, and the appendix to the RESC, permit states to exclude ‘workers engaged on a casual basis for a short period’.115 Where the term ‘employee’ has been used in this chapter it has referred to EU or 30.69 national legislation that is limited to employees as defined under national law. The Transfers of Undertakings Directive is a good example. Article 2(1)(d) of the Directive restricts its scope to ‘any person who, in the Member State concerned, is protected as an employee under national law’ (emphasis added). Whist the term ‘worker’ is used in EU health and safety legislation and some labour law directives, the personal scope of EU labour law is subject to a strong form of vertical subsidiarity which leads to a lack of legal coherence and contrasts with the development by the Court of Justice of a horizontal application of the concept of a ‘worker’ for the purposes of establishing the personal scope of core free movement provisions and gender equality law.116 In the absence

110

Ibid [42]. Ibid [59]. 112 For an example of a purposive approach to interpretation, see the Opinion of Advocate General Kokott in Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others (30 September 2010). 113 See M Freedland, ‘From the Contract of Employment to the Personal Work Nexus’ (2006) 35 Industrial Law Journal 1, 9. 114 Art 2(1) of ILO Convention No 158. 115 Ibid, Art 2(2)(c). 116 See Case C-256/01 Allonby v Accrington and Rossendale College [2004] ECR I-873. 111

824

Jeff Kenner

Art 30 – Protection in the Event of Unjustified Dismissal

of harmonisation of the concepts of ‘employee’ and ‘worker’ at EU level117—or their replacement with an all-embracing ‘personal employment contract’118—protection against unjustified dismissal will be reserved mainly to the standard employee, and the two-tier labour market will persist. With regard to the scope of application more generally, the Charter requires consistent 30.70 interpretation of the ECHR under Article 52(3), which is important bearing in mind the interconnections between ECHR rights and protection against termination identified by the European Court of Human Rights. It contains no information, however, on how to interpret the ESC, the RESC or ILO instruments. The ECSR has provided extensive guidance on the scope of the RESC. It is reasonable to expect that this guidance will, at least, be persuasive bearing in mind the direct reference to Article 24 RESC in the explanations.119 The fact that this linkage was emphasised by the European Court of Human Rights in KMC v Hungary,120 discussed in section D.I above, is important. It should point to a consistent interpretation of Article 24 RESC and Article 30 on the basis that all Member States are committed to upholding the Charter regardless of whether or not they have ratified the RESC. It is an approach that is necessary to ensure coherence in European human rights law and avoid a ‘double standard’.121

III. Specific Provisions Judge Pinto de Albuquerque, in his separate opinion in KMC v Hungary, offers a sum- 30.71 mary of the ‘minimum content in European human rights law’ of the right to protection in the event of termination of employment that provides a useful template for its application in the context of EU law and the laws of the Member States. The right to protection consists of four ‘core requirements’, according to the judge:122 [1] a formal written notice of termination of employment given to the employee, [2] a pre-termination opportunity to respond given to the employee, [3] a valid reason for termination, and [4] an appeal to an independent body [with] powers to verify the factual and legal aspects of the appealed decision and to remedy it, if it is found illegal.

Termination of employment under ILO Convention No 158 and Article 24 RESC means 30.72 termination at the initiative of the employer.123 This effectively excludes terminations by mutual consent and terminations on the initiative of the worker by reason of the employer’s conduct or what is known as ‘constructive dismissal’ under UK law.124 Starting first with the requirement for notice for dismissal, there has been some useful 30.73 guidance from the CEACR. According to the CEACR, the purpose of the formal written

117

For some suggestions on how to achieve this, see Kenner, n 8 above. See M Freedland, The Personal Employment Contract (Oxford, Oxford University Press, 2003). 119 See B Hepple, ‘The EU Charter of Fundamental Rights’ (2001) 30 Industrial Law Journal 225, 226. 120 n 52 above. 121 Ibid, separate concurring opinion of Judge Pinto de Albuquerque discussed in section D.I above. 122 Ibid. 123 CEACR General Survey 1995, para 19: www.ilo.org/global/standards/applying-and-promoting-international-labour-standards/general-surveys/lang--en/index.htm. 124 Employment Rights Act 1996, s 95(1)(c). 118

Jeff Kenner

825

Part I – Commentary on the Articles of the EU Charter

30.74

30.75

30.76

30.77

30.78

notice is to enable the worker to prepare himself to adapt to the situation and look for a new job.125 Article 11 of the Convention provides that such a period of notice must be of a ‘reasonable’ duration. The specific length of notice is left to national legislation. Compensation in lieu is possible but it must correspond to the remuneration the worker would have received during the period of notice.126 The only exception to the obligation to give notice is in the case of serious misconduct by the worker.127 Next, procedural fairness prior to termination is founded on the right to a defence contained in Article 7 of the Convention. This is essential to allow workers to be heard by the employer and to ensure that any decision to terminate is preceded by dialogue and reflection between the parties.128 The Recommendation envisages the issuance of a warning prior to termination and is more specific in requiring consultation with workers’ representatives before a final decision is taken and making provision for the worker to be represented when defending himself.129 The requirement for a ‘valid reason’ or justification for termination is regarded as a fundamental principle and the ‘cornerstone’130 of the substantive right in Article 4 of the Convention and Article 24 RESC. The first valid reason identified is ‘capacity’ of the worker either due to a lack of skills or qualities necessary to perform certain tasks or poor work performance not caused by intentional misconduct. In making decisions on the basis of the capacity of the worker, employers must ensure that they do not violate the principle of non-discrimination in Article 23 of the Charter and Directive 2000/78. The Court of Justice, in its judgment in Ring and Werge,131 has taken a very broad view of the concept of ‘disability’ consistent with the UN Convention, discussed in section B above,132 and therefore protection in this respect is stronger than under the ILO Convention and the RESC.133 More problematic is age discrimination where a decision to terminate on grounds of age can be justified under Article 6 of Directive 2000/78 if ‘objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary’. In a series of cases, the Court of Justice has upheld mandatory retirement ages permitted under national legislation on the basis of employment policies aimed at sharing

125 CEACR Note on Convention No 158 and Recommendation No 166 concerning termination of employment, 2009, p 3: www.ilo.org/dyn/eplex/termmain.home?p_lang=en. 126 CEACR GS 1995, para 247. 127 CEACR direct request—Serbia (2006). 128 CEACR GS 1995, para 148. See also the application of Art 7 of the Convention by the Brussels Labour Court in DD v SA Vanduc-Topfilm, 20 February 1992, Roll No 79–759/91: http://compendium.itcilo.org/en/ text-full-search/#. 129 Recommendation No 166, paras 9–11. 130 CEACR Note 2009, above n 125, p 1. 131 Cases C-335 and 337/11 Ring and Werge (11 April 2013). 132 The CJEU found at point 1 of the operative part of the judgment that the concept must be interpreted as including ‘a condition caused by illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one’. 133 Disability is not listed among the reasons not constituting a valid reason for dismissal in Arts 5–6 of the ILO Convention.

826

Jeff Kenner

Art 30 – Protection in the Event of Unjustified Dismissal

employment opportunities among the generations,134 and, in a recent case, backing this up with a reference to the right to work in Article 15 of the Charter.135 In Prigge,136 a mandatory requirement for airline pilots to retire at the age of 60 was struck down as disproportionate because it took no account of the capability of the individuals concerned and the reasons given, including the safety of passengers, were not sufficiently connected to the labour market. Article 30 was not considered by the Court of Justice in these cases. Guidance from 30.79 the ECSR suggests that Contracting Parties to the RESC have a wide discretion to impose a ‘valid retirement age’ justified by the operational requirements of the undertaking, establishment or service. Age is not listed as an invalid reason for dismissal in Article 5 of the ILO Convention or the RESC. It is referred to in paragraph 5(a) of the ILO Recommendation, but with the caveat that it is ‘subject to national law and practice regarding retirement’. The next valid reason in Article 4 of the ILO Convention and Article 24 RESC is 30.80 ‘conduct’. Two categories of misconduct have been identified by the CEACR:137 (a)

inadequate performance of contractual duties, such as neglect, violation of work rules, disobedience of legitimate orders etc; or (b) improper behaviour, such as disorderly conduct, violence, assault, using insulting language, disrupting the peace of the workplace etc.

Misconduct outside of the workplace would not normally be a valid reason for dismissal. 30.81 The ECSR has found that a prison sentence delivered in court for employment-related offences can be a valid reason for dismissal but not if the offence is not employmentrelated unless the length of the custodial sentence prevents the person carrying out their work.138 The final valid reason for termination is one connected with the operational require- 30.82 ments of the undertaking, establishment or service. In these cases the dismissal must be for economic reasons not connected with capacity or conduct. Classically this will be a redundancy involving either a reduction of the workforce or closure of the undertaking.139 The ECSR has not specified whether economic reasons must be limited to situations where employers are in difficulty or whether they can include other business strategies.140 Participation in trade union activities is listed among the reasons not constituting 30.83 valid reasons for termination in Article 5 of the ILO Convention and the appendix to Article 24 RESC. Based on the case law of the European Court of Human Rights this must also include participation in strikes as it is ultimately derived from freedom of

134 Case C-388/07 Age Concern England [2009] ECR I-1569; Case C-341/08 Petersen v Befungsausschuss für Zahnärtze für den Bezirk Westfalen-Lippe [2010] ECR I-47; Cases C-250/09 and C-268/09 Georgiev v Tehnicheski universitet—Sofia, filial Plovdiv [2010] ECR I-11869; Case C-45/09 Rosenbladt v Oellerking Gebäudereinigungsges mbH [2010] ECR I-9391; Cases C-159–160/10 Fuchs & Köhler v Land Hessen [2011] ECR I-6919. 135 Case C-141/11 Hörnfeldt v Posten Meddelande (5 July 2012). 136 Case C-447/09 Prigge, Fromm and Lambach v Deutsche Lufthansa AG [2011] ECR I-8003. 137 CEACR Note 2009, above n 125, p 2. 138 ECSR Conclusions 2005, Estonia, pp 205–10. 139 CEACR Note 2009, above n 125, p 2. 140 ECSR Conclusions 2003, France, p 191.

Jeff Kenner

827

Part I – Commentary on the Articles of the EU Charter

association as guaranteed by Article 11 ECHR.141 More precise provisions are found in Articles 5 and 6(4) ESC. Potentially, Article 30 can also be invoked. Under Article 7 of Directive 2002/14 on information and consultation of workers at national level,142 Member States must ensure that employees’ representatives, when carrying out their functions, ‘enjoy adequate protection and guarantees to enable them to perform properly the duties which have been assigned to them’. In Holst,143 the Court of Justice ruled that dismissal on grounds of status or carrying out the functions of an employees’ representative ‘could be regarded as constituting unfair dismissal under [national] law’. Similar arguments can be mounted for contending that dismissal of strikers facing collective redundancy, without carrying out the information and consultation requirements in the Collective Redundancies Directive, 98/59, would amount to dismissals for ‘reasons not related to the individual workers concerned’ contrary to the Directive.144 30.84 In cases involving ‘temporary absence from work because of illness or injury’, which is not a valid reason for termination,145 a time-limit can be placed on protection against dismissal according to the ECSR.146 Absence can constitute a valid reason for dismissal if it severely disrupts the smooth running of the undertaking and requires a permanent replacement for the absent worker. Additional protection must be offered, where necessary, for victims of employment injuries or occupational diseases.147 30.85 The right of a worker who considers that his employment has been terminated without a valid reason to appeal to an impartial body is contained in the final paragraph of Article 24 RESC and Articles 8–9 of the ILO Convention. Article 8(3) of the Convention allows for a time-limit on claims. The burden of proof is not placed expressly on the employer but the worker does not have to bear it alone.148 The Recommendation is stronger on the possibility of conciliation procedures before or during an appeal.149 If employment is terminated for economic reasons, the appeal body must be empowered to investigate the economic facts underlying the measures according to the ECSR.150 30.86 Additional provisions in the ILO Convention concern the entitlement of the worker to a severance allowance and other income protection151 and for consultation of workers’ representatives in the case of collective dismissals.152 Whilst the latter is similar in content to Directive 98/59, the interpretation of the CEACR, discussed in section D.I above, indicates the need for protection against dismissal in cases where there are breaches of the information and consultation procedures.

141

Enerji Yapi-Yol Sen v Turkey App no 68959/01 (ECtHR, 21 April 2009). Council Directive 2002/14/EC establishing a general framework for informing and consulting employees in the European Community [2002] OJ L80/29. 143 Case C-405/08 Ingeniørforeningen i Danmark, acting on behalf of Bertram Holst v Dansk Arbejdsgiverforening [2010] ECR I-985 [63]. 144 See B Bercusson, European Labour Law, 2nd edn (Cambridge, Cambridge University Press) 315–16. 145 Art 6(1) of ILO Convention No 158 and the appendix to the RESC, point 3(f). 146 Conclusions 2005, Norway, pp 572–75. 147 Conclusions 2003, France, p 191. 148 CEACR GS 1995, para 199. 149 ILO Recommendation No 166, para 14. 150 Conclusions 2003, Bulgaria, p 78. 151 ILO Convention No 158, Art 12. 152 Ibid, Arts 13–14. 142

828

Jeff Kenner

Art 30 – Protection in the Event of Unjustified Dismissal

IV. Limitations and Derogations ‘Every worker’ is within the personal scope of application of Article 30 but the right to 30.87 protection against unjustified dismissal operates ‘in accordance with Union law and national laws and practices’. Not only does this limit the scope of application in EU law, as discussed in section A, but also, the international instruments allow for a significant degree of vertical subsidiarity and flexibility. As noted in sections C.III and C.IV above, the ILO Convention and Recommendation, and also the appendix to the RESC, permit states to exclude some of the most precarious workers from protection. Let us consider the scope of these limitations and derogations by reference to the 30.88 ILO Convention. The first excluded group are ‘workers engaged under a contract of employment for a specified period of time or a specified task’.153 There is a caveat that ‘adequate safeguards’ must be provided ‘against recourse to contracts of employment for a specified period of time the aim of which is to avoid the protection resulting from this Convention’.154 Bearing in mind the tripartite nature of the ILO, it is hardly surprising that the social partners negotiated a clause in the Framework Agreement annexed to the EU Fixed-term Work Directive 1999/70, which requires Member States to introduce measures to ‘prevent abuse’ of successive fixed-term employment contracts or relationships.155 This may have some limiting effect on the exclusion, and it should be noted that fixed-term ‘employees’ are protected against dismissal in some legal orders, such as the UK.156 Also, the Cour de Cassation in France has relied directly on the safeguarding clause in the ILO Convention when striking down a national law on successive fixedterm contracts that had permitted termination without justification.157 The second excluded group are ‘workers serving a period of probation or a quali- 30.89 fying period of employment, determined in advance and of reasonable duration’.158 This leaves open the question of how long is a ‘reasonable duration’ for a qualifying period. There is important guidance on this point from the ECSR and the ILO. The ECSR has found that the exclusion of employees from protection against dismissal for six months ‘is not considered reasonable if it is applied indiscriminately, regardless of the employee’s qualifications’.159 An interesting test case has been decided by the ILO. In response to a French law introducing a two-year qualifying period relating to individual and collective dismissals for undertakings with no more than 20 employees, the Confederation Générale du Travail alleged non-observance by France of the Convention and, in response, the ILO established a Tripartite Committee to investigate. In 2008 the Tripartite Committee concluded that a period as long as two years was not reasonable for excluding all of the employees concerned.160 The French Cour de Cassation

153

Ibid, Art 2(2)(a). Ibid, Art 2(3). 155 Council Directive 1999/70/EC, [1999] OJ L175/43. The relevant provisions are contained in cl 5 of the annexed agreement between the social partners. Cl 2 leaves the definition of ‘fixed-term workers who have an employment contract or employment relationship’ to national law. 156 Employment Rights Act 1996, s 95(1)(b). 157 Samzun v de Wee App no F 07–44.124 (1 July 2008): http://compendium.itcilo.org/en/text-fullsearch/#. 158 ILO Convention No 158, Art 2(2)(b). 159 ECSR Digest, 2008, above n 72, p 152. 160 ILO Governing Body document GB.300/20/6. 154

Jeff Kenner

829

Part I – Commentary on the Articles of the EU Charter

subsequently found that the legislation did not fall into one of the categories that can be excluded from the Convention.161 30.90 This guidance is of interest in the light of recent developments in the UK. In 2012 the UK introduced delegated legislation to vary the qualifying period for unfair dismissal from one year to two years for all claims.162 The Trades Union Congress estimated that 2.7 million employees would be excluded from bringing claims as a result of this change.163 The UK, by deciding to reduce the scope of protection, chose to disregard the views of the ILO Tripartite Committee and the ECSR. Indeed, the UK government may consider that it can act with impunity using national law relying on the limitations in Article 30 and the language in Article 2 of Protocol No 30 concerning the UK and Poland. Moreover, the order of the Court of Justice in Nagy164 indicates that an employee in the UK affected by this change would have no recourse under EU law, regardless of the Protocol. Nevertheless, the UK may be in serious breach of international law by acting retrogressively to weaken the protection of workers from unjust dismissal. As noted in section C.II above, the duty of state parties, including the UK, under Article 6 of the UN ICESCR on the right to work, includes safeguarding the protection of workers against unfair dismissal. In its General Comment No 18 on Article 6, the CESCR stressed the progressive realisation of the right and concluded that, if any ‘deliberately retrogressive steps are taken’, state parties have the burden of proving that they have considered all alternatives in the context of the ICESCR as a whole and the use of maximum available resources. 30.91 States can also exclude a third group of ‘workers engaged on a casual basis for a short period’.165 Guidance from the ECSR is somewhat ambiguous on this point. According to the ECSR, all workers who have signed an employment contract are entitled to protection in the event of termination of employment.166 The language suggests that states have a margin of discretion to exclude many workers who do not have standard contracts of employment or formal ‘employee’ status. 30.92 There is also scope for States to exclude workers whose terms of employment are governed by ‘special arrangements’ which provide protection at least equivalent to the protection afforded under the ILO Convention subject to consultation with the social partners.167 Finally, States may exclude workers where ‘special problems of a substantial nature’ arise in the light of the particular conditions of employment of the workers concerned ‘or the size and the nature of the undertaking’ that employs them, also subject to consultation with the social partners.168 As the ILO Tripartite Committee decision

161

Case No 1210. Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012, effective from 6 April 2012. 163 Based on the UK Labour Force Survey of 2011. See TUC press release, 2 April 2012: www.tuc.org.uk/ equality-issues/around-27-million-workers-increased-risk-losing-their-jobs-when-unfair-dismissal-law. 164 Cases C-488–491/12 and 526/12 Nagy and Others (Order of the Court, 10 October 2013). See section D.I above. 165 ILO Convention No 158, Art 2(2)(c). 166 Conclusions 2003, Statement of Interpretation on Article 24: www.coe.int/t/dghl/monitoring/socialcharter/conclusions/conclusionsyear_EN.asp. 167 ILO Convention No 158, Art 2(4). 168 Ibid, Art 2(5). 162

830

Jeff Kenner

Art 30 – Protection in the Event of Unjustified Dismissal

concerning France demonstrates, the flexibility permitted by the latter does not allow for a general exclusion of small businesses from the Convention.169

V. Remedies Article 47 of the Charter reinforces the principle of effective remedies that is well known 30.93 in EU labour law. The asymmetric power relationship between the employer and the worker requires strong and effective remedies for violation of fundamental social rights. In the context of EU equality law the national court must impose a penalty such as to ‘guarantee real and effective judicial protection ... it must also have a real deterrent effect on the employer’.170 The principle of ‘effective, proportionate and dissuasive’ penalties is becoming standard in EU labour law directives.171 The worker who is deprived of their livelihood following a dismissal that they consider to be unjust is in the greatest need of procedural fairness and an effective remedy. Under Article 10 of the ILO Convention the remedies are reinstatement or the pay- 30.94 ment of adequate compensation, or such other relief as may be appropriate. According to the ECSR, in its case law on the equivalent provision in Article 24(b) RESC, the worker who has been unjustly dismissed should be reimbursed for financial losses incurred between the date of dismissal and the decision of the appeal body.172 In addition, compensation should be of a ‘high enough level to dissuade the employer and make good the damage suffered by the employee’.173 Reinstatement reverses the dismissal by correcting the injustice. The worker returns 30.95 to the same job, or a comparable job, with arrears of pay, as if there had been no dismissal.174 The option of reinstatement under the ILO Convention is heavily circumscribed. Only bodies that are empowered under national law to order or propose reinstatement are required to consider this option. Even if these bodies are empowered to order reinstatement, they may find that it is not ‘practicable’. These matters are left to ‘national law and practice’. Once again the formulation of ‘national law and practice’ renders the reinstatement remedy nugatory except in those legal orders, such as Italy, that have hitherto taken it seriously because they recognise the worker’s interest in job security.175 In the UK the Employment Tribunal is required to always consider the remedy of reinstatement first, but will only order it if the employee wishes to be reinstated and ‘it is practicable for the employer to comply with the order’.176 In 2011–12, reinstatement or re-engagement was awarded in just five out of 5,100 cases where the case was upheld.177

169

ILO Governing Body document GB.300/20/6. Case 14/83 Von Colson [1984] ECR 1891 [23]. 171 For example, see Art 10(2) of Directive 2008/94/EC on temporary agency work [2008] OJ L327/9. 172 Conclusions 2003, Bulgaria, p 78. 173 ECSR Digest, above n 72, p 154. 174 See Collins, above n 9, p 216. 175 Ibid, p 217. 176 Employment Rights Act 1996, s 116(1). 177 See: www.gov.uk/government/publications/employment-tribunal-and-employment-appeal-tribunalstatistics-gb. 170

Jeff Kenner

831

Part I – Commentary on the Articles of the EU Charter

E. Evaluation 30.96 Article 30 on the right to protection against unjustified dismissal has an enigmatic quality. The ‘fundamental principle of justification’ is firmly established at the UN, the ILO and the Council of Europe. It is the most salient of fundamental social rights because, perhaps more directly than any comparable right in the Charter, it asserts the principle that labour is not a commodity or article of commerce.178 It has been invoked purposively by the European Court of Human Rights when interpreting the ECHR, and yet there is a void at EU level. Neither the Commission, which has the imperative to act on a clear legal basis, nor the Court of Justice, which has a duty to interpret and apply Article 30 in the context of a wide range of legislation where it is, at least, incidentally, relevant, has been prepared to give it meaning in EU law. By contrast, the freedom to conduct a business is now strongly rooted in the jurisprudence of the Court of Justice and being applied to limit the scope of EU labour law directives. 30.97 Perhaps the best explanation for the enigma of Article 30 is a dual identity crisis. The first identity crisis is internal to Article 30 and the norms from which it is sourced. In seeking to balance such a multitude of interests—job security, the managerial prerogative, and the needs of society—it lacks a clear focus. Its limitations and derogations exclude millions of casual and short-term workers who are the most vulnerable to the risk of unjust dismissal. Member States are unravelling decades of employment protection without giving Article 30 a second glance. 30.98 The second identity crisis is within the EU. Is the EU serious about balancing the economic and social dimensions of integration? What does the mishmash of flexibility and security—so-called ‘flexicurity’—really mean for those inside and outside the labour market? There are some who regard job security as an anomaly and Article 30 as anachronistic and outmoded, when 50 per cent or more of young people in southern Europe are out of work. An alternative view, however, is that the economic crisis shines a light on the need for stronger international labour standards to be respected and promoted in EU law. Research has shown that dismantling the legal protection of workers facing termination of employment has been inefficient in terms of economic recovery and has undermined productivity.179 The ILO has identified the termination of employment instruments as among the most relevant of its norms at a time of global economic crisis, when stability is needed to protect livelihoods, reconcile work and private life and maintain social peace.180 30.99 It is time for Article 30 to cease to be an enigma. What this chapter has shown is that there is plenty of guidance in international law to give it greater clarity and meaning. Even in the absence of a core unjust dismissal measure at EU level, there are sufficient interconnections between Article 30 and existing norms across the breadth of EU social law to advance fairness in the employment relationship.

178 See P O’Higgins, ‘“Labour is not a Commodity”—an Irish Contribution to International Labour Law’ (1997) 26 Industrial Law Journal 225. 179 S Cazes and A Nesperova, Flexicurity, a relevant approach in Central and Eastern Europe (Geneva, International Labour Office, 2007). 180 ILO Global Jobs Pact, 2009, para 14.

832

Jeff Kenner

Article 31 Article 31 Fair and Just Working Conditions 1. Every worker has the right to working conditions which respect his or her health, safety and dignity. 2. Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.

Text of Explanatory Note on Article 31 1. Paragraph 1 of this Article is based on Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work. It also draws on Article 3 of the Social Charter and point 19 of the Community Charter on the rights of workers, and, as regards dignity at work, on Article 26 of the revised Social Charter. The expression ‘working conditions’ is to be understood in the sense of Article 156 of the Treaty on the Functioning of the European Union. 2. Paragraph 2 is based on Directive 93/104/EC concerning certain aspects of the organisation of working time, Article 2 of the European Social Charter and point 8 of the Community Charter on the rights of workers.

Select Bibliography E Anderson, ‘Recent Thinking about Sexual Harassment: A Review Essay’ (2006) 34 Philosophy and Public Affairs 284. D Ashiagbor, ‘Economic and Social Rights in the European Charter of Fundamental Rights’ (2004) European Human Rights Law Reports 62. M Barbera, ‘The Unsolved Conflict: Reshaping Family Work and Market Work in the EU Legal Order’, in T Hervey and J Kenner (eds), Economic and Social Rights under the EU Charter of Fundamental Rights: A Legal Perspective (Oxford, Hart Publishing, 2003). C Barnard, EU Employment Law, 4th edn (Oxford, OUP, 2012). B Bercusson, European Labour Law, 2nd edn (Cambridge, CUP, 2009). AL Bogg, ‘Bournemouth University Higher Education Corporation v Buckland: Re-establishing Orthodoxy at the Expense of Coherence?’ (2010) 39 International Law Journal 408. ——, ‘Of holidays, work and humanisation: a missed opportunity?’ (2010) 5 European Current Law xi. ——, ‘Paid Annual Leave and the Long-Term Sick: Third Time Lucky for the United Kingdom?’ (2007) 36 International Law Journal 341. ——, ‘The right to paid annual leave in the Court of Justice: the eclipse of functionalism’ (2006) 31 European Law Review 892. D Chalmers, G Davies and G Monti, European Union Law, 2nd edn (Cambridge, CUP, 2010). H Collins, KD Ewing and A McColgan, Labour Law (Cambridge, CUP, 2012). P Craig, ‘The Charter, the ECJ and National Courts’, in D Ashiagbor, N Countouris and I Lianos (eds), The European Union after the Treaty of Lisbon (Cambridge, CUP, 2012). ACL Davies, EU Labour Law (Cheltenham, Edward Elgar, 2012).

Part I – Commentary on the Articles of the EU Charter

EU Network of Independent Experts on Fundamental Rights, Commentary of the Charter of Fundamental Rights of the European Union (2006). KD Ewing and J Hendy, ‘The Dramatic Implications of Demir and Baykara’ (2010) 39 International Law Journal 2. A Flanders, ‘Collective Bargaining: A Theoretical Analysis’ (1968) 6 British Journal of Industrial Relations 1. S Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford, OUP, 2008). M Freedland and N Kountouris, The Legal Construction of Personal Work Relations (Oxford, OUP, 2011). Lord Goldsmith, ‘A Charter of Rights, Freedoms and Principles’ (2001) 38 Cambridge Modern Law Review 1201. B Hepple, ‘The EU Charter of Fundamental Rights’ (2001) 30 International Law Journal 225. J Hunt, ‘Fair and Just Working Conditions’, in T Hervey and J Kenner (eds), Economic and Social Rights under the EU Charter of Fundamental Rights: A Legal Perspective (Oxford, Hart Publishing, 2003). J Kenner, EU Employment Law: From Rome to Amsterdam and Beyond (Oxford, Hart Publishing, 2003). ——, ‘Regulating Working Time—Beyond Subordination’ in S Weatherill (ed), Better Regulation (Oxford, Hart Publishing, 2007). T Khaitan, ‘Dignity as an Expressive Norm: Neither Vacuous Nor a Panacea’ (2012) 32 Oxford Journal of Legal Studies 1. K Lippel, ‘The Law of Workplace Bullying: An International Overview’ (2010) 32 Comparative Labor Law and Policy Journal 1. D McCann, ‘Decent Working Hours as a Human Right: Intersections in the Regulation of Working Time’, in C Fenwick and T Novitz (eds), Human Rights at Work: Perspectives on Law and Regulation (Oxford, Hart Publishing, 2010). C McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 European Journal of International Law 655. J Murray, Transnational Labour Regulation: The ILO and EC Compared (The Hague, Kluwer, 2001). A Supiot, Beyond Employment: Changes in Work and the Future of Labour Law in Europe (Oxford, OUP, 2001). ——, ‘On the Job: Time for Agreement’ (1996) 12 International Journal of Comparative Labour Law and Industrial Relations 195.

A. Article 31 and the Scope of EU Law 31.01 As is evident from the explanations, EU law is one of the most important sources for the rights in Article 31, and the effect of this is to mark out a very wide perimeter for the scope of EU law. Article 31 specifies a right to working conditions that respect workers’ ‘safety’ and ‘health’. This draws its inspiration from Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work. In turn, this framework Directive has led to the further enactment of a series of what Barnard has described as ‘daughter’ Directives that relate to more particular matters such as work equipment, the regulation of hazardous agents, and health and safety in the workplace.1 This gives EU law a very broad scope in this specific context. In relation to ‘dignity’ under Article 31(1), ‘dignity’ has been used as a general

1

834

C Barnard, EU Employment Law, 4th edn (Oxford, OUP, 2012) 523–32.

Alan Bogg

Art 31 – Fair and Just Working Conditions

interpretive value by the Court in different contexts.2 It is most readily engaged in EU law by provisions on harassment (eg harassment ‘related to the sex’ of the complainant; sexual harassment; racial harassment; etc) in the domain of EU equality law as specified, for example, in Article 2(3) of the Equal Treatment Directive 2000/78/EC or Article 2(3) of the Race Directive 2000/43/EC. In relation to Article 31(2), these rights are based principally on the relevant provisions of Directive 93/104/EC concerning certain aspects of the organisation of working time (the ‘Working Time Directive’). This was amended by Directive 2000/34/ EC, which implemented horizontal extensions to encompass sectors that had been excluded from the original Directive, and the consolidated version is now contained in Directive 2003/88/EC. This has been complemented by various ‘sectoral’ Directives that codify the results of social dialogue, for example in respect of mobile workers in the air and rail transport sectors.3 Article 31(2) has already played a prominent role as an interpretive guide to Article 7 of the Working Time Directive, which posits a right to paid annual leave. In this respect, Article 31(2) has been a pioneering Charter provision in that it had an early and bold impact on the interpretation of the right to paid annual leave. It first appeared in Advocate General Tizzano’s Opinion in BECTU.4 It is now a prominent feature of CJEU decisions in this sphere of working time regulation. As Williams v British Airways demonstrates, Article 31(2) is also relevant in relation to the ‘sectoral’ Directives too.5 In Williams, the CJEU invoked Article 31(2) as an interpretive guide to the right to paid annual leave in the context of mobile workers in civil aviation.6 Following a number of failed attempts to secure a legislated revision of the Working Time Directive, led by the Commission, the European social partners are currently proceeding through the social dialogue route to negotiate revisions to the current legislative framework.7 In the event that these issues prove amenable to the social dialogue and result in a social dialogue agreement, it may be that this is enacted through a Directive under Article 155 TFEU by a Council decision on a proposal from the Commission. Both the Commission and the Council (and, ultimately, the Court if judicial review is sought) may be expected to scrutinise any social dialogue agreement submitted to the Commission for proposal to the Council under Article 155 TFEU, to ensure that it is compatible with Article 31 before it results in a Council decision. This will be of particular significance as regards various derogations contained in the current Directive, some of which are arguably incompatible with Article 31. It is to be hoped that Article 31 will structure any social dialogue process in respect of the matters covered by this Charter provision. It should also be expected that Article 31 will have an important role as a defence to employers’ use of free movement provisions under the TFEU. The facts in ITWF v

2 See Case C-13/94 P v S [1996] ECR I-2143 [22]; Case C-36/02 Omega Spielhallen und Automatenaufstellungs GmbH v Oberburgermeisterin der Bundesstadt Bonn [2004] ECR I-9609 [34]. 3 See ACL Davies, EU Labour Law (Cheltenham, Edward Elgar, 2012) 215 discussing Directive 2000/79/EC on mobile workers in civil aviation, and Directive 2005/47/EC on mobile workers in cross-border services in the railway sector. 4 Case C-173/99 R v Secretary of State for Trade and Industry Ex p BECTU [2001] ECR I-488 [26]. 5 Case C-155/10 Williams and Others v British Airways plc [2011] ECR I-8409. 6 Ibid [18]. 7 Barnard (n 1) 558.

Alan Bogg

835

31.02

31.03

31.04

31.05

Part I – Commentary on the Articles of the EU Charter

31.06

Viking Line hardly bear repetition, but it is surely arguable that the right to fair and just working conditions of every worker as specified in Article 31 can be used to augment the weight of Article 28 of the Charter as a counterbalance to the employer’s use of free movement provisions in that case.8 The reference to ‘every’ worker in Article 31 is attuned to the particular context of Viking, where the solidarity action was directed against the exploitation of cheaper labour in Estonia. Since ‘every’ worker has a right to fair and just working conditions, including Estonian workers, solidarity action of the kind on display in Viking can be rationalised as a legitimate support for the values underpinning Article 31. The inclusion of ‘dignity’ in Article 31, and the obvious connections with Article 1 of the Charter, suggest that Article 31 is an especially weighty fundamental right, compared with other labour rights in the Solidarity chapter. If Article 31 were to be invoked alongside Article 28 on a similar set of facts, one should expect this extra normative weight to affect the application of the proportionality test. There are now also signs that Article 31 will be used as a means to challenge deregulatory measures taken in the wake of the financial crisis. For example, in Sindicato Nacional dos Profissionais de Seguros e Afins v Fidelidade Mundial-Companhia de Seguros SA, various measures curtailing the salaries and benefits of Portuguese public sector employees are being challenged as a violation of Article 31 of the Charter.9 Given that Portugal is a signatory to a memorandum of understanding as a result of its receipt of a bail-out, to the extent that these measures are a direct consequence of binding commitments specified in the memorandum it would certainly seem arguable that the challenged deregulatory measures would be within the scope of EU law. The argument might be weaker if national reforms have occurred within the context of the less intrusive ‘Euro Plus Pact’, since specific policy choices within the context of that framework remain within the domain of national sovereignty.10

B. Interrelationship of Article 31 with Other Provisions of the Charter 31.07 Article 31(1) guarantees to every worker a right to working conditions that respect health, safety and dignity. Article 31(2)’s guarantee of various ‘working time’ rights should be understood as a partial specification of working conditions that respect the worker’s health, safety and dignity that is without prejudice to the generality of Article 31(1). The normative basis of Article 31 shares a vital common foundation with both Article 1 and Article 3 of the Charter. Article 1 states that ‘Human dignity is inviolable. It must be respected and protected.’ Given its inviolable status in the Charter, human dignity has been described as a ‘fundamental value’ animating all of the other fundamental rights

8

ITWF v Viking Line [2007] ECR I-2005. Case C-264/12 Sindicato Nacional dos Profissionais de Seguros e Afins v Fidelidade Mundial-Companhia de Seguros SA. I am very grateful to Catherine Barnard for bringing this reference to my attention. 10 For discussion, see Barnard (n 1) 133–34. 9

836

Alan Bogg

Art 31 – Fair and Just Working Conditions

and freedoms.11 This is also reflected in its inclusion in the Preamble to the EU Charter. The specific reference to ‘dignity’ in Article 31 therefore points to an important explicit connection with Article 1.12 It follows that Article 31 should be regarded as a provision with very significant normative weight and importance. Indeed, one may regard Article 31 as the most fundamental of the labour rights in the EU Charter. Article 3 of the EU Charter states that ‘everyone has the right to respect for his or 31.08 her physical and mental integrity.’13 The right to working conditions that respect the worker’s ‘health’ and ‘safety’ is instrumental to Article 3’s concern to ensure respect for everyone’s ‘physical and mental integrity’. This connection is further reinforced when one considers the source of Article 31 in Articles 2 and 3 of the European Social Charter (ESC), since the European Committee of Social Rights (ECSR) has observed that the normative basis to Article 3 ESC is respect for the worker’s fundamental right to personal integrity,14 which corresponds in turn to a more specific right to physical and mental integrity at work.15 This reference to an abstract right to personal integrity may even extend beyond the broad ‘ergonomic’ reading of ‘safety’ and ‘health’ as elaborated by the Court in United Kingdom v Council.16 This should also be read in conjunction with Article 35 of the Charter, which states that ‘a high level of health protection shall be ensured in the definition and implementation of all the Union’s policies and activities’. In this way, Article 31 rests upon two fundamental normative pillars: the right to human dignity (Art 1) and the right to physical and mental integrity (Art 3). This confirms the basic and fundamental character of the protections set out in Article 31. There are four further points of intersection between Article 31 and other EU 31.09 Charter provisions. First, Article 5(2) prohibits ‘forced or compulsory labour’, and this has implications for the legitimate scope of opt-outs and derogations from Article 31 rights, especially where those derogations occur through individual agreements between workers and employers. In situations where individually ‘agreed’ derogations appear tainted by coercion or other forms of economic exploitation, it may be that Article 5(2) is engaged.17 Secondly, the rights to maximum working hours, to daily and weekly rest periods and to an annual period of paid leave must be construed with reference to the need for reconciliation of work and life (whether family, civic, religious, cultural or simply idle leisure). These concerns with the reconciliation of work and life are certainly encompassed by the broad concepts of ‘health’, ‘safety’ and ‘dignity’ used in Article 31(1). For this reason, Article 33 is relevant to the interpretation of Article 31, especially its

11 EU Network of Independent Experts on Fundamental Rights, Commentary of the Charter of Fundamental Rights of the European Union (2006) 28. 12 The only other article that makes specific textual reference to ‘dignity’ is Art 25 on the rights of the elderly, which states that ‘the Union recognises and respects the rights of the elderly to lead a life of dignity and independence’. 13 In turn, there are obvious connections between the ‘right to life’ in Art 2 and the ‘right to respect for his or her physical and mental integrity’ in Art 3. 14 Statement of Interpretation on Art 3, 31 May 1969. 15 Conclusions XIV-2, Statement of Interpretation on Art 3, p 36. 16 Case C-84/94 United Kingdom v Council [1996] ECR I-5755. 17 For an interesting analysis of ILO working time norms deploying this intersection, see D McCann, ‘Decent Working Hours as a Human Right: Intersections in the Regulation of Working Time’, in C Fenwick and T Novitz (eds), Human Rights at Work: Perspectives on Law and Regulation (Oxford, Hart Publishing, 2010) 509, 517–21.

Alan Bogg

837

Part I – Commentary on the Articles of the EU Charter

31.10

recognition that ‘the family shall enjoy legal, economic and social protection’ and the need ‘to reconcile family and professional life’ through forms of parenting leave.18 Patterns of unpredictable or excessive working can be highly disruptive for the family, and the requirement of ‘social protection’ of the family under Article 33(1) provides an interpretive reference point for Article 31. Article 23 is also relevant in its requirement that ‘equality between women and men must be ensured in all areas, including employment, work and pay’, otherwise there is a risk that reconciliation agendas will be discriminatory in their gender impact.19 Given the particular labour market difficulties faced by older workers and workers with disabilities, Article 31 should be interpreted by reference to Article 25 (on the rights of the elderly) and Article 26 (on the integration of persons with disabilities). The accommodation of religious commitments in the implementation of normative regimes for working time should be sensitive to Article 22’s injunction that ‘the Union shall respect’ cultural and religious diversity. This is bolstered by Article 10’s protection of everyone’s ‘right to freedom of thought, conscience and religion’. Thirdly, Article 32 requires that ‘young people admitted to work must have working conditions appropriate to their age and be protected against economic exploitation and any work likely to harm their safety, health or physical, mental, moral or social development’. It is submitted that ‘health’ and ‘safety’ under Articles 31 and 32 should, as far as possible, be interpreted consistently. Finally, the inclusion of ‘dignity’ in Article 31 is accounted for in the accompanying explanation by reference to Article 26 of the revised European Social Charter (RRESC). This provision of the RRESC refers to the wrong of harassment in relation to work, which certainly includes sexual harassment but also extends to any form of ‘recurrent reprehensible or distinctly negative and offensive actions directed against individual workers in the workplace or in relation to work’. The reference to ‘dignity’ in Article 31 must be read against the background of the non-discrimination provision in Article 21 which prohibits discrimination on an extensive (non-exhaustive) list of prohibited grounds which includes ‘social origin’, ‘genetic features’ and ‘property’ in addition to more traditional grounds such as race and sex. Further, sexual harassment under Article 31 must be construed by reference to the requirement in Article 23 that ‘equality between women and men must be ensured in all areas, including employment, work and pay’. This is without prejudice to the very expansive concept of harassment deployed in Article 26 RRESC, which sets itself against all ‘recurrent reprehensible or distinctly negative and offensive actions’, even where that treatment is not connected to a suspect discriminatory ground. This would seem to extend to any form of bullying in the working environment; hence it is a provision with a very broad reach.

18 In turn, Art 31 should be read alongside Art 7 which guarantees that ‘everyone has the right to respect for his or her private and family life, home and communications’. 19 See M Barbera, ‘The Unsolved Conflict: Reshaping Family Work and Market Work in the EU Legal Order’, in T Hervey and J Kenner (eds), Economic and Social Rights under the EU Charter of Fundamental Rights: A Legal Perspective (Oxford, Hart Publishing, 2003) 139.

838

Alan Bogg

Art 31 – Fair and Just Working Conditions

C. Sources of Article 31 Rights I. Council of Europe Treaties The ESC and RRESC is of central importance as a source for Article 31, as acknowledged 31.11 in the explanations. Starting with Article 31(1) which states that ‘every worker has the right to working conditions which respect his or her health, safety and dignity’, this draws normative inspiration from both Article 3 ESC and Article 26 RRESC. Though there is no mandatory requirement to have regard to the decisions of the ECSR (as compared, for example, with the ECtHR),20 it is submitted that the relevant decisions of the ECSR should in practice be treated as of significant persuasive weight in formulating interpretations of Article 31. Article 3 ESC requires states ‘to issue safety and health regulations’ (Article 3(1) 31.12 ESC), ‘to provide for the enforcement of such regulations by measures of supervision (Article 3(2) ESC), and ‘to consult, as appropriate, employers’ and workers’ organisations on measures intended to improve industrial safety and health’ (Article 3(3) ESC). The reformulated Article 3 under the RRESC elevates ‘consultation with employers’ and workers’ organisations’ to an overarching obligation. In addition to the measures on issuing and supervision and enforcement of regulations, it requires states ‘to formulate, implement and periodically review a coherent national policy on occupational safety, occupational health and the working environment’ (Article 3(1) RESC) and ‘to promote the progressive development of occupational health services for all workers with essentially preventive and advisory functions’ (Article 3(4) RESC). A number of general propositions can be derived from the pronouncements of the ECSR. First, the Committee takes an extremely broad view of Article 3’s scope, given its concern with the worker’s fundamental right to physical and mental integrity at work, itself based on the fundamental human right to personal integrity. It applies to all sectors of the economy.21 It applies to all workers, including the self-employed, and with a particular emphasis on those workers engaged in vulnerable atypical work such as ‘casual’ workers or fixed-term contract workers.22 Provisions that limit the scope of health and safety regulations to employers employing a specified number of workers are also a breach of Article 3 ESC.23 Secondly, a broad interpretation of safety and health has been adopted by the ECSR which extends to the individual’s ‘right to physical and mental integrity at work.’24 Thirdly, a particular emphasis is placed upon the implementation of meaningful consultation mechanisms at all appropriate levels, including the enterprise level.25 Fourthly, the provision for effective supervision and enforcement of health and safety regulations by a suitably resourced inspectorate is regarded as having a ‘particular

20 For an engagement with the question of the ECSR’s standing in respect of the EU Charter, see B Hepple, ‘The EU Charter of Fundamental Rights’ (2001) 30 Industrial Law Journal 225, 226. See also D Ashiagbor, ‘Economic and Social Rights in the European Charter of Fundamental Rights’ (2004) European Human Rights Law Reports 62, 65. 21 Conclusions II, Statement of Interpretation on Art 3, p 12. 22 Conclusions XIV-2, Statement of Interpretation on Art 3(1), pp 36–43. 23 Conclusions XIII-1, Greece, p 78. 24 Conclusions XIV-2, Statement of Interpretation on Art 3, p 36. 25 Conclusions 2003, Bulgaria, p 31; Conclusions 2005, Lithuania, p 306.

Alan Bogg

839

Part I – Commentary on the Articles of the EU Charter

31.13

31.14

31.15

importance’ by the ECSR.26 Finally, the ECSR adopts an ‘integrated’ approach to ascertaining compliance under Article 3 ESC by drawing upon relevant EU and ILO standards (including the determinations of relevant committees) to specify more detailed technical reference standards in respect of particular occupational risks.27 Article 26 RESC guarantees a right of ‘all workers to protection of their dignity at work’ by requiring states to undertake, in consultation with employers’ and workers’ organisations, to ‘promote awareness, information and prevention of ’ and ‘to take all appropriate measures to protect’ workers from two distinct dignitarian wrongs: (i) sexual harassment in the workplace or in relation to work; and (ii) ‘recurrent reprehensible or distinctly negative and offensive actions directed against individual workers in the workplace or in relation to work’ thereby encompassing other forms of harassment such as racial or sexual orientation harassment, even extending to ‘mobbing’ or bullying at work.28 This requires states to provide effective legal protection through access to an independent body to adjudicate upon complaints, appropriate procedural safeguards for complainants such as a reverse burden of proof, adequate remedies, and protection from victimisation for enforcing legal rights.29 Article 31(2) states that ‘every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave’. The explanation indicates that this provision is based upon Article 2 ESC, which guarantees the ‘right to just conditions of work’. Under the original ESC formula this required: (i) the setting of ‘reasonable daily and weekly working hours’ with the working week ‘progressively reduced’ as permitted by increases in productivity and ‘other relevant factors’; (ii) public holidays with pay; (iii) a minimum two weeks paid annual holiday; (iv) additional paid holidays or reduced working hours for workers engaged in prescribed ‘dangerous’ or ‘unhealthy’ occupations’; (v) ensuring that the worker’s weekly rest period corresponded with the tempo of the wider community by coinciding with a rest day recognised as such through custom or tradition. Article 2 RESC supplements this by specifying a minimum of four weeks’ paid annual holiday, by requiring states to ‘eliminate risks’ in ‘dangerous’ or ‘unhealthy’ occupations before resorting to compensatory enhanced paid holidays or reduced working hours, by ensuring written notice of ‘essential aspects’ of the contract or employment relationship within two months of commencing employment, and by ensuring that workers performing night work benefit from special protective measures. It would seem that Article 2 ESC shares a common normative basis with Article 3 ESC in that both measures are concerned with protecting the health and safety of workers. It would also seem to follow from this that Article 2 ESC is similarly predicated on the worker’s right to bodily and mental integrity at work. A number of general propositions can be derived from the pronouncements of the ECSR in respect of Article 2 ESC. First, it is important to construe the concept of ‘reasonable’ limits to daily and weekly working hours against the relevant Committee decisions. While no specifically quantified limits are set out in the text of Article 2(1) ESC, the ECSR has specified that a daily working day of 16 hours is too long to be

26

Conclusions I, Statement of Interpretation on Art 3, p 22. Conclusions XIV-2, Statement of Interpretation on Art 3(1), pp 36–43. 28 See, generally, K Lippel, ‘The Law of Workplace Bullying: An International Overview’ (2010) 32 Comparative Labor Law and Policy Journal 1. 29 Case Law Digest, Art 26. 27

840

Alan Bogg

Art 31 – Fair and Just Working Conditions

reasonable,30 and that a total working week (including overtime) of 60 hours is also too long to be considered a ‘reasonable’ limit.31 A limit of 78 hours in a working week was described as ‘manifestly excessive’ by the ECSR.32 In all cases, the determination of what is reasonable will be shaped by an assessment of ‘relevant factors’ such as the nature of the work. For example, it might be argued that especially dangerous or unhealthy occupational activities would justify lower limits on daily and weekly working hours as ‘reasonable’. For those engaged in the provision of essential emergency services, the nature of the activity might justify higher limits. This would seem to favour flexible sectoral solutions to regulatory problems. Secondly, working time flexibility does not necessarily infringe the ESC though any 31.16 flexibility must operate within strict limits set by a ‘precise normative framework’.33 This requires, amongst other things, that adjustment of working time is not left solely to the discretion of either employer or employee; where collective agreements are used to adjust working time, those agreements must provide for a maximum limit for daily and weekly working hours; and collective agreements at enterprise level must contain extra safeguards to ensure that workers’ health and safety is protected.34 It is notable that these principles were expressed in a decision concerning ‘managerial’ employees, thereby underlining the wide personal scope of the legal principles under Article 2 ESC. Thirdly, the ECSR has adopted a strict protective approach to the provision guaranteeing paid annual holiday. Measures permitting workers to waive their entitlement to leave for a compensatory payment are regarded as a violation of Article 2 ESC.35 Further, workers are entitled to a period of two weeks’ uninterrupted paid annual leave during a year in which the leave is due.36 The fundamental nature of paid annual leave also requires states to facilitate the deferral of a period of holiday that is interrupted by illness or injury where this is necessary to guarantee the uninterrupted two weeks’ holiday.37 Finally, the special nature of night work means that it must be ‘humanised’ in the sense that there must be ‘continuous consultation’ with workers’ representatives on measures to ‘reconcile the needs of workers’ with the special demands and difficulties of night work.38 This must operate alongside regular medical examinations and provision for transfer to daytime work where possible.

II. Other Sources (a) National Constitutional Laws The concept of ‘dignity’, which is central to Article 31(1), is an important element in 31.17 the constitutional orders of some Member States, for example Germany and Greece.

30

Conclusions XIV-2, Norway, p 578. Conclusions XIV-2, Netherlands, pp 535–36. 32 Confederation Francaise de l’Encadrement CFE-CGC v France Complaint No 9/2000 (Decision on the merits of 16 November 2001) 29–38. 33 Conclusions XIV-2, Netherlands, pp 535–36. 34 Conclusions XIV-2, Vol 1. 35 Conclusions I, Ireland, p 171. 36 Conclusions 2007, Statement of Interpretation on Art 2(3), p 11. 37 Conclusions XII-2, Statement of Interpretation on Art 2(3), p 62. 38 Conclusions 2003, Romania, p 368. 31

Alan Bogg

841

Part I – Commentary on the Articles of the EU Charter

Beyond the dignitary dimension of Article 31, however, the existence of a set of common constitutional traditions in Member States in this field of regulation is likely to be elusive. For example, Murray has noted of national constitutional provisions in the field of working time regulation that ‘the coverage of issues was patchy and there was no coherent body of working time principles common to all States’.39 She notes that limits on daily and weekly working time were ‘weakly represented’ in national constitutional rules but that ‘periods of rest were given a higher priority’.40 There is a similarly fragmented pattern in respect of health and safety regulation. Thus, Barnard notes that health and safety is regulated through constitutional provisions in some Member States (such as Greece, Portugal, Italy and Luxembourg), whereas in other Member States, such as Germany, France and the UK, regulation occurs primarily through statute.41 That the method of statutory regulation should be so widespread is perhaps not surprising, given some of the detailed complexity of health and safety regulation in respect of workplace hazards. This variety makes it unlikely that interpretive difficulties under Article 31 will be susceptible to resolution by invoking common constitutional traditions as a principal guide, simply because it will often be difficult to identify what those common traditions might be. Sometimes, however, constitutional traditions have been deployed in tandem with other sources to resolve interpretive difficulties under the Working Time Directive.42 This suggests that constitutional traditions can play a subsidiary role in interpreting Article 31 in support of other normative arguments. (b) EU Law 31.18 As the explanation makes clear, undoubtedly the most important normative sources for Article 31 are European Directives. Article 31(1) is based upon Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work (the Framework Directive on Health and Safety), and Article 31(2) is based upon Directive 93/104/EC concerning certain aspects of the organisation of working time (the Working Time Directive). Both directives were adopted under the then Article 118(a)(1) EC, which provided that ‘Member States shall pay particular attention to encouraging improvements, especially in the working environment, as regards the health and safety of workers, and shall set as their objective the harmonisation of conditions in this area, while maintaining the improvements made.’ The structure of Directive 89/391/EEC was such as to establish a framework of gen31.19 eral principles and duties in respect of health and safety in the working environment, thereby devolving the more detailed technical specification of particular standards to Member States.43 Its overarching objective was to ‘encourage improvements in the safety

39

J Murray, Transnational Labour Regulation: The ILO and EC Compared (The Hague, Kluwer, 2001) 106. Ibid 106–107. McCann (n 18) takes the view that the constitutionalisation of such rights is especially prominent in Central and Eastern Europe (p 511). 41 Barnard (n 1) 502. 42 Opinion of Advocate General Trstenjak in Joined Cases C-350/06 Gerhard Schultz-Hoff v Deutsche Rentenversicherung Bund and C-520/06 Stringer and Others v Her Majesty’s Revenue and Customs [2009] ECR I-00179 [40] fn 23. 43 For an analysis of its quality as a ‘framework’ directive, see J Kenner, EU Employment Law: From Rome to Amsterdam and Beyond (Oxford, Hart Publishing, 2003) 100–104. 40

842

Alan Bogg

Art 31 – Fair and Just Working Conditions

and health of workers at work’ through the elaboration of general duties, specific duties, and guiding principles for the discharge of those duties.44 The employer’s general duty is specified in Article 5 as a ‘duty to ensure the safety and health of workers in every aspect related to the work’: the duty to ‘ensure’ highlights the strength of the obligation in this context, as does its locus of operation in the formula ‘every aspect’. This duty is elaborated with greater specificity in Article 6 which sets out more particular responsibilities,45 general principles of prevention,46 and specific actions necessary for the proper discharge of the duty to ‘ensure’ health and safety of workers.47 This is complemented by a range of more specific employer duties set out in Articles 7–9, alongside a more circumscribed list of workers’ obligations in Article 13 of the Directive. There is also a striking emphasis on worker participation in the Directive, reflecting the participative approach under Article 3 ESC. Article 16 of the Framework Directive authorised the adoption of supplementing ‘daughter’ directives within the sphere of areas listed in an Annex to the Directive (work places, work equipment, personal protective equipment, visual display units, handling of heavy loads, temporary or mobile work sites, and fisheries and agriculture), and a number of such ‘daughter’ Directives have been adopted.48 The aim of Directive 93/104/EC is to set down ‘minimum safety and health require- 31.20 ments for the organisation of working time’. To this end, the Directive specifies minimum rest periods in the form of daily rest (11 consecutive hours in a 24-hour period),49 rest breaks during working days longer than six hours (duration to be determined by collective agreements or, failing that, by national legislation),50 and weekly rest period (an uninterrupted period of 24 hours in a seven-day period).51 The Directive also posits a maximum weekly working time of 48 hours,52 and it establishes a right to paid annual leave of four weeks that may not be replaced by an allowance in lieu except on termination.53 The Directive contains various specific provisions on night work and shift work. It also contains an elaborate series of derogations and specific procedural mechanisms for modifying and even setting content of basic labour standards in the Directive. The Directive has been a fertile source of litigation, most particularly in respect of the right to paid annual leave in Article 7. (c) The Community Charter of Fundamental Social Rights of Workers 1989 The explanation refers to point 19 and point 8 of the Community Charter of Fundamental Social Rights of Workers as sources for Articles 31(1) and 31(2) respectively. Point 19 specifies that ‘every worker must enjoy satisfactory health and safety conditions in his working environment’, with measures aiming at further harmonisation

44 45 46 47 48 49 50 51 52 53

Art 1(1) and 1(2). Art 6(1). Art 6(2). Art 6(3). See Barnard (n 1) 523–32. Art 3. Art 4. Art 5. Art 6. Art 7.

Alan Bogg

843

31.21

Part I – Commentary on the Articles of the EU Charter

31.22

that take particular account of ‘the need for the training, information, consultation and balanced participation of workers as regards the risks incurred and the steps taken to eliminate or reduce them’. This reference to ‘working environment’ emphasises that it is a broad conception of ‘safety’ and ‘health’ that is envisaged in the Charter formulation, rather than a narrower conception focused on industrial accidents and diseases. It also emphasises the vital importance of worker participation in the constitution, implementation and enforcement of the right to safe and healthy working conditions. Point 8 specifies that ‘every worker of the European Community shall have a right to a weekly rest period and to annual paid leave’. Interestingly, this is located within the section dealing with ‘improvement of living and working conditions’ rather than ‘health protection and safety’, which highlights the fluidity of these categories. Its protections are also less extensive in scale and scope than the rights set out in Directive 93/104/ EC. Less extensive in scale in that no minimum period of weekly rest or annual leave is specified, and less extensive in scope in that it does not encompass a right to limitation of maximum working hours or to daily rest periods. Nevertheless, the stipulation that ‘every’ worker has the right to a weekly rest period and to annual paid leave implies that, for Community Charter purposes, these particular enumerated rights should be regarded as fundamental rights of particular importance. (d) ILO Norms

31.23

The explanation does not refer to ILO instruments as a source for Article 31. Nevertheless, it is submitted that ILO instruments are relevant to Article 31(2) in virtue of Directive 93/104/EC (which is referred to in the explanation) where Recital 6 of that Directive specifies that ‘account should be taken of the principles of the International Labour Organisation with regard to the organisation of working time’.54 This is further reinforced by the practice of referring to relevant ILO material in respect of the Working Time Directive in some Advocate Generals’ Opinions. For example, AG Trstenjak made extensive use of ILO Convention No 132 concerning Annual Holidays with Pay to justify her interpretation of the Directive’s provisions concerning the interaction between sick leave and annual leave in Schultz-Hoff and Stringer.55 According to AG Trstenjak, consistency of interpretation ‘would appear to me essential in view of the fact that the ILO has set the relevant international standards in the field of employment law’,56 with the ILO standards constituting a ‘floor of rights’ to the more extensive standards elaborated in the Directive. Moreover, the CJEU in Schultz-Hoff made explicit reference to ILO Convention No 132 concerning Annual Holidays with Pay in its reasoning.57 In this respect, there is a good deal of truth in Murray’s claim that the Directive ‘can be seen as an extension of international labour law, taking such regulation a step beyond the stage achieved by the ILO’.58

54

There is no reference to ILO principles in the Preamble to Directive 89/391/EEC, by contrast. Above n 42 [66]–[68]. 56 Ibid, fn 41 of AG Trstenjak’s Opinion. See also fn 8 of AG Kokott’s Opinion in Case C-124/05 Federatie Nederlandse Vakbeweging v Staat der Nederlanden [2006] ECR I-3423. 57 Above n 42 [37]–[38]. 58 Murray (n 39) 175. 55

844

Alan Bogg

Art 31 – Fair and Just Working Conditions

The following ILO instruments are relevant to the three types of right posited in 31.24 Article 31(2). First, in respect of the right to maximum working hours: Hours of Work (Industry) Convention 1919 (No 1); Hours of Work (Commerce and Offices) Convention 1930 (No 30); Forty-Hour Week Convention 1935 (No 47). Secondly, in respect of the right to daily and weekly rest periods:59 Weekly Rest (Industry) Convention 1921 (No 14); Weekly Rest (Commerce and Offices) Convention 1957 (No 106). Finally, in respect of the right to paid annual leave: Holidays with Pay Convention 1936 (No 52); Holidays with Pay Convention (Revised) 1970 (No 132).

D. Analysis I. General Remarks It is difficult to overstate the importance of Article 31 in the general scheme of labour 31.25 rights in the EU Charter. The inclusion of ‘dignity’ in the formulation, and thus the corresponding connection with Article 1 of the Charter, could be viewed as an ennobling of the right, entrenching its status as the most fundamental of the labour rights set down in the EU Charter. According to Bercusson, ‘Article 31 of the EU Charter transforms the general objective of labour law as a whole into a subjective right of all workers, and elevates this subjective right (and the general objective) to the status of a fundamental social right ... EU Member States are obliged by Article 31 to provide effective regulation within their national legal systems to protect the human dignity of workers across the whole field of conditions at work.’60 Its presence is likely to be felt very significantly within the field of application of EU 31.26 law across two dimensions of influence: width and weight. First, the width of Article 31 is very significant, touching upon the whole of ‘working conditions’ insofar as these engage workers’ safety, health and dignity. This extensive reach is signalled by the reference to Article 31 in Recital (1) to Directive 2008/104/EC on temporary agency work, where it is stated that the Directive is designed to ‘ensure full compliance with Article 31’. The aim of the Directive is described in Article 2 as ensuring ‘the protection of temporary agency workers and to improve the quality of temporary agency work’ through the application of a principle of equal treatment between temporary agency workers and a comparable directly recruited worker occupying the same job in respect of ‘basic working and employment conditions’. These conditions are defined as relating to ‘the duration of working time, overtime, breaks, rest periods, night work, holidays and public holidays; pay’.61 This goes beyond the specified matters in Article 31(2), in particular in the references to overtime, night work and pay. The reference to Article 31 in the recital to Directive 2008/104/EC supports the view that ‘safety’, ‘health’, ‘dignity’ and ‘working conditions’ should be understood in a very broad sense.

59 As Murray notes, there is no instrument specifying a daily rest period (ibid, 185). This was regarded as having been addressed by the limit on daily working hours (a default standard of eight hours). 60 B Bercusson, European Labour Law, 2nd edn (Cambridge, CUP, 2009) 380–81. 61 Art 3.

Alan Bogg

845

Part I – Commentary on the Articles of the EU Charter

31.27

31.28

31.29

Secondly, and as regards weight, Article 31 should be considered as a fundamental right of very significant normative weight in the scheme of labour rights in the Charter. As Bercusson argues in the opening quotation, Article 31 speaks to the very purpose of labour law itself, namely to ensure fair and just working conditions, and it transfigures this overarching protective purpose into a subjective fundamental social right. This transfiguration, based in the injunction to respect the human dignity of all workers, marks out Article 31 as the grundnorm of the other labour rights in the Solidarity chapter. This is further supported by the fact that, unlike many other of the labour rights in the Solidarity chapter, Article 31 does not specify that the rights are ‘under the conditions provided for’ or ‘in accordance with Union law and national laws and practices’. This is significant given that some commentators have argued that the effect of the reference to ‘national laws and practices’ is a form of normative dilution of the relevant standard.62 In this context, a stipulation that the Article 31 rights be ‘in accordance with’ or ‘under the conditions provided for’ in Union law would also have been significant, given that many of the core rights in the Working Time Directive are circumscribed by various limitations and derogations. The absence of these limiting formulae means that Article 31 is better understood as a genuinely autonomous fundamental right, a standard against which Union laws and national laws and practices are measured rather than a standard capable of being diluted and weakened by those laws and practices. Article 52(6) provides that ‘full account shall be taken of national laws and practices as specified in this Charter’. This provision does not apply to Article 31 since there is no specification of ‘national laws and practices’ in the constitution of the rights. Article 31 has already left a very significant imprint on EU social law. Specifically, its presence has been felt very strongly within the context of the right to paid annual leave in Article 7 of the Working Time Directive. Indeed, Article 31 reached prominence at a very early stage in the legal life of the Charter. Thus, in the important case of BECTU the UK had specified a precondition of 13 weeks’ continuous employment as a qualifying threshold before workers could enjoy the right to paid annual leave.63 The trade union BECTU challenged that precondition as a faulty implementation of the Directive and sought an annulment of the relevant provision of national law. In what is now a landmark Opinion for its use of the EU Charter as an interpretive tool, Advocate General Tizzano commenced his legal analysis of Article 7 of the Working Time Directive by establishing the status of the right to paid annual leave as a fundamental social right. Thus, the Advocate General referred to its inclusion in the Universal Declaration of Human Rights, the European Social Charter, the International Covenant on Economic, Social and Cultural Rights and the Community Charter of Fundamental Social Rights of Workers as indicative of the right’s fundamental status.64 Nevertheless, he went on to observe that ‘even more significant, it seems to me, is the fact that the right is now solemnly upheld in the Charter of Fundamental Rights of the European Union ... I think therefore that, in proceedings concerned with the nature and scope of a fundamental right, the relevant statements of the Charter cannot be ignored, in particular, we cannot ignore its clear purpose of serving, where its provisions so allow,

62 63 64

846

See Ashiagbor (n 21), especially the discussion of Art 30, ibid p 68. Above n 4. Ibid [23].

Alan Bogg

Art 31 – Fair and Just Working Conditions

as a substantive point of reference ... Accordingly, I consider that the Charter provides us with the most reliable and definitive confirmation of the fact that the right to paid annual leave constitutes a fundamental right.’65 This fortified the Advocate General’s conclusion that the precondition of 13 weeks’ continuous employment was an unlawful derogation from an inderogable fundamental social right. It was perhaps equally significant that the Court itself reached an identical legal conclusion to AG Tizzano without referring to the EU Charter. Instead, the Court referred to the Community Charter of the Fundamental Social Rights of Workers alone as an interpretive source, and to the fact that the Directive did not make provision for derogations from the right to paid annual leave, to justify its conclusion that it was ‘a particularly important principle of Community social law from which there can be no derogations’.66 Nevertheless, BECTU exemplified a pattern of reasoning that would become familiar in the paid annual leave cases, commencing with the highly abstract affirmation of its status as a fundamental social right to generate specific legal conclusions. This is a mode of reasoning that lends itself especially well to the position of Article 31 as a natural starting point in a chain of legal argumentation.67 Following the entry into force of the Treaty of Lisbon, this mode of reasoning is now 31.30 well established. In Williams and Others v British Airways plc, for example, AG Trstenjak observed that ‘the fact that the right of every worker to paid annual leave is included in the Charter of Fundamental Rights of the European Union provides the most reliable and definitive confirmation that it constitutes a fundamental right ... on the entry into force of the Treaty of Lisbon, that provision acquired the definitive status of primary law within the legal order of the European Union ... This means that ... legislative acts adopted by the EU institutions in this sphere must now be assessed by reference to that provision. The Member States are henceforth also bound by that provision in so far as they implement EU law.’68 It is interesting to note that this reference to the EU Charter was unaccompanied by references to other international treaty provisions, as had been the case in AG Tizzano’s Opinion in BECTU. Unsurprisingly, a major effect of the entry into force of the Treaty of Lisbon has been to dispel the tentativeness that characterised those earlier decisions. Even more importantly, the CJEU in Williams itself made reference to the EU Charter stating that ‘the right to such an annual period of paid leave is, moreover, expressly laid down in Article 31(2) of the Charter of Fundamental Rights of the European Union, which Article 6(1) EU recognises as having the same legal value as the Treaties.’69 In this way, the Article 31 of the EU Charter is now eclipsing other normative sources in international law. Other paid annual leave cases where the CJEU has cited Article 31 include KHS AG v Winfried Schulte,70 Georg Neidel v Stadt Frankfurt

65

Above n 6 [26]–[28]. Ibid [43]. 67 In this respect, it is interesting to note that national courts in the UK context have tended to deploy an interpretive approach that is decidedly non-purposive, construing specific provisions in the working time context without locating the interpretive exercise within a wider understanding of fundamental social rights. For discussion, see AL Bogg, ‘Paid Annual Leave and the Long-Term Sick: Third Time Lucky for the United Kingdom?’ (2007) 36 Industrial Law Journal 341. 68 Above n 5 [31]. 69 Ibid [18]. 70 Case C-214/10 KHS AG v Winfried Schulte [2011] ECR I-11757 [31]. 66

Alan Bogg

847

Part I – Commentary on the Articles of the EU Charter

31.31

31.32

am Main71 and Asociacion Nacional de Grandes Empresas de Distribucion v Federacion de Asociaciones Sindicales.72 It is also noteworthy that reliance on Article 31 of the EU Charter has been most evident in the paid annual leave context. In part, this is probably a reflection of the sheer volume of litigation concerning the regulatory complexities of that provision of the Directive. The presence of Article 31 has been less evident in other areas of working time regulation. Within the context of the individual right to a limitation of maximum working hours, which finds concrete expression in the Working Time Directive’s specification of a right to a maximum working week of 48 hours in Article 6, the CJEU did not refer to the EU Charter in Pfeiffer and,73 more recently, in Stadt Halle.74 This has also been true of decisions concerned with rest periods,75 and the definition of working time.76 In the interests of a coherent interpretive approach, there is a need for greater consistency of interpretive practice in relation to the rights to limitation of maximum working hours, to daily and weekly rest periods, and to paid annual leave under the Working Time Directive. Otherwise there is a risk of serious distortion if Article 31 is applied selectively, as seems to be the situation currently. In principle, there is no good reason why Article 31 should be viewed as highly relevant to paid annual leave by the CJEU in interpreting the Working Time Directive, but not relevant to other areas of that Directive falling within the scope of Article 31. One final matter to be addressed is the distinction between ‘rights’ and ‘principles’ as applied to Article 31. Article 52(5) provides that ‘the provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.’ According to the explanation, Article 52(5) ‘clarifies’ the distinction between ‘rights’ and ‘principles’ though there is little clarity to be seen on the face of Article 52(5). The explanation assists in clarifying the juridical consequences of the characterisation of a provision as a ‘right’ or a ‘principle’. Specifically, rights (but not principles) can ‘give rise to direct claims for positive action by the Union’s institutions or Member States authorities’ and hence are directly effective, whereas principles may only be used to interpret or review the acts that implement those principles. Unfortunately, there is little clarification in either Article 52(5) or the accompanying explanation as to how

71

Case C-337/10 Georg Neidel v Stadt Frankfurt am Main (3 May 2012) [40]. Case C-78/11 Associacion Nacional de Grandes Empresas de Distribucion v Federacion de Asociaciones Sindicales (21 June 2012) [17]. 73 Cases C-397/01 to C-403/01 Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV [2004] ECR I-8835, although the Court did make reference to the Community Charter of Fundamental Social Rights of Workers, ibid [91]. 74 Case C-243/09 Günter Fuß v Stadt Halle [2010] ECR I-9849. Nevertheless, the Court observed that ‘it should be noted that Article 6(b) of Directive 2003/88 constitutes a rule of EU social law of particular importance from which every worker must benefit, since it is a minimum requirement necessary to ensure protection of his safety and health’ (ibid [33]). 75 Case C-484/04 Commission v UK [2006] ECR I-7471. 76 See, for example, Case C-151/02 Landeshauptstadt Kiel v Jaeger [2003] ECR I-8389, though the Court refers to the Community Charter at para 47. For discussion of this aspect of the case, using fundamental rights discourse to justify expansive interpretations of core concepts such as working time, see D Chalmers, G Davies and G Monti, European Union Law, 2nd edn (Cambridge, CUP, 2010) 249–50. 72

848

Alan Bogg

Art 31 – Fair and Just Working Conditions

one characterises a specific provision as one or the other. The explanation gives illustrative examples of those Charter provisions embodying a principle (Arts 25, 26 and 37), and those Charter provisions that are composite, consisting of elements of a right and of a principle (Arts 23, 33 and 34). Since Article 31 is not included in the illustrative list, the exercise of characterisation is necessarily speculative given the ambiguity of the distinction. One possible interpretation of the right/principle distinction is that any socio- 31.33 economic right is ipso facto a principle. Such an approach was indeed suggested by Lord Goldsmith who emphasised the normative and conceptual differences between civil and political and socio-economic rights as the underpinning to the distinction.77 Following the explanation this is now untenable, since it is clear from the listed examples in the explanation that some socio-economic rights are (at least partially) composed of rights, such as the provisions dealing with ‘family and professional life’ (Art 33) and ‘social security and social assistance’ (Art 34). Furthermore, nomenclature is not determinative since some of the principles listed in the explanation are described as ‘rights’ in the relevant Charter provision, such as Articles 25 and 26 dealing with the ‘rights’ of the elderly and persons with disabilities. There is some indirect support for the conclusion that Article 31 posits a right. 31.34 According to some writers, a possible basis for the right/principle distinction is that ‘provisions whose content is dependent upon their realisation by national or EU law would be considered to be principles’.78 For this reason, the inclusion of the formula ‘under the conditions provided for’ or ‘in accordance with Union law and national laws and practices’ could be viewed as highly indicative that the provision is a principle rather than a right. This would be the case for many of the labour rights in the ‘Solidarity Chapter’. Significantly, Article 31 dispenses with that formula, which provides support for the argument that it is properly characterised as a right, not a principle. This would accord with the views of leading scholars such as Barnard and Craig, both of whom characterise Article 31 as a right.79 It is likewise noteworthy that AG Trstenjak offers the view in Maribel Dominguez that Article 31 is to be regarded as a right in its entirety, and not a principle.80 She argues that this is incontrovertible in respect of Article 31(2), given its structure and constitution as a definitive fundamental right. However, she also rejects the suggestion that the abstractness of Article 31(1) could be indicative of its status as a principle, since constitutionalised fundamental rights are often framed in highly abstract terms. Accordingly, Article 31 in all its forms is a right rather than a principle. If this argument is not persuasive, it is likewise possible that Article 31 may be viewed a 31.35 composite provision, consisting of both a right and a principle. Article 31(2) is certainly properly viewed as a right given the precision of its formulation, which means that it is ‘capable of individual legal enforcement’.81 Given the high degree of generality and open-texture in some of Article 31(1)’s core concepts—‘safety’, ‘health’ and ‘dignity’—it

77 Lord Goldsmith, ‘A Charter of Rights, Freedoms and Principles’ (2001) 38 Cambridge Modern Law Review 1201, 1212. 78 Chalmers et al (above n 76) 240; Goldsmith, ibid 1213. 79 P Craig, ‘The Charter, the ECJ and National Courts’, in D Ashiagbor, N Countouris and I Lianos (eds), The European Union after the Treaty of Lisbon (Cambridge, CUP, 2012) 78, 98; Barnard (n 1) 29. 80 Case C-282/10 Maribel Dominguez v Centre Informatique du Centre Ouest Atlantique (24 January 2012) [75]–[79]. 81 Craig (n 79) 97.

Alan Bogg

849

Part I – Commentary on the Articles of the EU Charter

31.36

may be that this is less amenable to ‘individual legal enforcement’ when compared with Article 31(2), hence a likelier candidate for principle status. This composite characterisation is certainly weaker than the view that Article 31 is a right in its entirety. It is, however, certainly preferable to the view that Article 31 is a principle in its entirety. This latter position is, with respect, untenable. Article 1(2) of the UK/Poland Protocol should also be noted in this regard. This provides 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.’ Since Article 31(1) and Article 31(2) draw upon EU law very heavily—specifically Directive 89/391/EEC and Directive 93/104/ EC respectively—such rights have been provided for by national law in the UK in the form of national implementing measures. This cuts down the application of Article 1(2) of the Protocol to a very great extent. Furthermore, since Article 31 does not refer to ‘national laws and practices’ in its formulation, Article 2 of the Protocol has no relevance to Article 31’s interpretation or application.82 We might also observe that there was no suggestion in Williams that the protocol has any relevance to the UK in respect of Article 31.83

II. Scope of Application 31.37

The fundamental issue of scope for Article 31, as for all labour rights, is the personal scope of the right: is it a right for all economically active persons including the genuinely self-employed? Is it a right for the ‘dependent self-employed’ who exist in a state of economic dependence on a limited set of purchasers of their labour power?84 Alternatively, it may be confined to workers who are in a subordinate relationship with an employer, or an even narrower subset of personal work contracts such as, for example, the UK concept of ‘employee’. There are a number of different approaches to personal scope under the ‘Solidarity’ chapter. The broadest conception can be seen in Articles 29, 33 and 35 where the relevant right is guaranteed to ‘everyone’. This would include the genuinely self-employed within its scope. In fact, this formulation would seem to envisage a right of universal scope. By contrast, the narrowest conception can be seen in Articles 27 and 28, where the rights are conferred simply on ‘workers’. This lacks the universality of ‘everyone’ in that the right-holder must be engaged in a subordinate relationship for the provision of work in exchange for remuneration. It would certainly seem to push the genuinely self-employed beyond its scope. An intermediate formulation can be seen in Articles 31 and 32, which guarantees rights for ‘every worker’. This appears to be broader than the simple reference to ‘workers’ in Articles 27 and 28, in that the addition of ‘every’ places the accent on the widest coverage possible within the limits set by the concept of ‘worker’. Another permutation is whether the definition of worker is conditioned by a

82 This provides that ‘To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom.’ 83 Above n 6. 84 See Barnard (n 1) 147, discussing the Commission’s Modernising Labour Law Green Paper, COM (2006) 708 final, 11.

850

Alan Bogg

Art 31 – Fair and Just Working Conditions

reference to ‘national laws and practices’. This reference to ‘national laws and practices’ could have a limiting effect on the personal scope of the right, since ‘worker’ comes to be defined by the national legal system.85 Two aspects of Article 31 indicate a wide personal scope. First, it adopts the formula 31.38 ‘every’ worker and not simply ‘worker’. Secondly, it is not subject to the condition that ‘worker’ is subject to ‘national laws and practices’. Hence ‘every worker’ under Article 31 has a broad meaning that should be defined autonomously as a matter of EU law. This seems wider than, for example, Article 27’s simple reference to the right of ‘workers’ to information and consultation, a concept which is arguably subject to the qualification that it is defined ‘under the conditions provided for by ... national laws and practices’. There are two ways in which the concept of ‘any worker’ in Article 31 might be broader than the simple concept of ‘worker’ in Article 27. First, the category of work relations described by Barnard as ‘dependent self-employed’ should certainly be treated as included within the concept of ‘every worker’, even if they are beyond the reach of the ‘worker’ concept.86 This would include individuals engaged in precarious work who are dependent upon a sole or limited set of purchasers of their labour as their principal source of income. Secondly, ‘every worker’ implies a strong purposive approach to contractual characterisation so that any doubts about the individual’s employment status are resolved in favour of a determination that he or she is a worker. The broad conception of Article 31’s personal scope also finds support in Freedland and Kountouris’ work.87 This broad conception of Article 31’s personal scope is further supported by two 31.39 arguments. First, it is supported by the jurisprudence concerning personal scope under the Working Time Directive, the effect of which has been to confirm a broad approach under that Directive. In Union Syndicale Solidaires Isere v Premier Ministre and Others the CJEU articulated the view that individuals employed to carry out seasonal and casual activities under an ‘educational commitment contract’ which specified a ceiling of 80 working days per year were within the personal scope of the Directive.88 According to the Court, the definition of ‘worker’ ‘has an autonomous meaning specific to European Union law. The concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. The essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.’89 In line with cases such as Lawrie-Blum and Allonby this means that individuals will be workers regardless of whether the contractual arrangement is fixed term or part-time, and regardless of whether there is ‘mutuality of obligation’ which may be absent in some casual patterns of work. Indeed, it may be suggested that Article 31 is even broader still

85 For discussion of this problem in relation to the effective implementation of social policy directives, see Davies (n 4) 176–77. 86 Barnard (n 1). 87 M Freedland and N Kountouris, The Legal Construction of Personal Work Relations (Oxford, OUP, 2011) 395. 88 Case C-428/09 Union Syndicale Solidaires Isere v Premier Ministre and Others [2010] ECR I-9961. 89 Ibid [28]. Case 66/85 Lawrie-Blum [1986] ECR 2121; Case C-256/01 Allonby v Accrington and Rossendale College [2004] ECR I-873.

Alan Bogg

851

Part I – Commentary on the Articles of the EU Charter

31.40

31.41

by encompassing economically dependent but non-subordinate employment within its personal scope. This broad and expansive approach is also reflected in BECTU, where the Court observed that ‘Directive 93/104 draws no distinction between workers employed under a contract of indefinite duration and those employed under a fixed-term contract. On the contrary, as regards more specifically the provisions concerning minimum rest periods contained in Section II of that directive, they refer in most cases to every worker, as indeed does Article 7(1) in relation to entitlement to paid annual leave.’90 In this case the Court was particularly concerned about the position of vulnerable workers employed on a series of discrete short-term engagements, who would be beyond the scope of the right to paid annual leave, given the 13-week continuity threshold. In a similar vein, AG Tizzano observed of Article 7 that ‘every worker covered by it is entitled to paid annual leave of at least four weeks; it is also easier to understand why the Directive is designed to ensure full and effective implementation of that right. As a fundamental social right, the right to paid leave is characterised also in the Directive as— touse the Commission’s words—an automatic and unconditional right granted to every worker.’91 Its automatic and unconditional quality means that technical permutations in underlying contractual arrangements—for example, where ‘mutuality of obligation’ is absent—should be regarded as irrelevant to the scope of the fundamental social right. A second argument would point to the basis of Article 31 in Article 3 of the ESC. The decisions of the ESRC in respect of Article 3 have emphasised its very broad personal scope, given its concern with the worker’s fundamental right to physical and mental integrity in the working environment. This is reinforced by the reference to ‘dignity’ in Article 31(1), which would also seem allied with a broad approach to personal scope. Article 3 of the ESC applies to all sectors of the economy,92 and it applies to all workers including the self-employed, and with a particular emphasis on those workers engaged in vulnerable atypical work such as ‘casual’ workers or fixed-term contract workers.93 While it is not tenable to suggest that ‘every worker’ within the context of Article 31 includes the self-employed (otherwise it collapses into the formula ‘everyone’ used in other provisions in the Solidarity chapter), this does support a maximalist reading of the concept of ‘every worker’ used in Article 31 as encompassing the economically dependent self-employed.

III. Specific Provisions 31.42 Article 31(1) specifies a right ‘to working conditions which respect his or her health, safety and dignity’. In order to determine the content of the right each of the following elements needs to be elucidated: ‘safety’; ‘health’; ‘dignity’; and ‘working conditions’. Each of these elements will be addressed in turn. The most important source for Article 31(1) in respect of its ‘safety’ and ‘health’ 31.43 dimension is Directive 89/391/EEC on the introduction of measures to encourage 90 91 92 93

852

Above n 5 [46]. Ibid [29]. Conclusions II, Statement of Interpretation on Art 3, p 12. Conclusions XIV-2, Statement of Interpretation on Art 3(1), pp 36–43.

Alan Bogg

Art 31 – Fair and Just Working Conditions

improvements in the safety and health of workers at work. This Directive was adopted on the basis of Article 118a EEC (now Art 153 TFEU), which provided that ‘Member States shall pay particular attention to encouraging improvements, especially in the working environment, as regards the health and safety of workers, and shall set as their objective the harmonisation of conditions in this area, while maintaining the improvements made.’ The meaning and scope of Article 118a EEC was considered by the Court in United Kingdom v Council, where the UK sought an annulment of the Working Time Directive on the basis that the legal base of the Directive was defective.94 In what has now become a canonical proposition of EU social law, the Court rejected the UK’s challenge in the following terms: There is nothing in the wording of Article 118a to indicate that the concepts of ‘working environment’, ‘safety’ and ‘health’ as used in that provision should, in the absence of other indications, be interpreted restrictively, and not as embracing all factors, physical or otherwise, capable of affecting the health and safety of the worker in his working environment, including in particular certain aspects of the organization of working time. On the contrary, the words ‘especially in the working environment’ militate in favour of a broad interpretation of the powers which Article 118a confers upon the Council for the protection of the health and safety of workers. Moreover, such an interpretation of the words ‘safety’ and ‘health’ derives support in particular from the preamble to the Constitution of the World Health Organization to which all the Member States belong. Health is there defined as a state of complete physical, mental and social well-being that does not consist only in the absence of illness or infirmity.95

The Court concluded that the regulation of working time fell properly within the scope 31.44 of Article 118a EEC. Two arguments were deployed by the Court to justify a broad, dynamic and purposive interpretation of ‘safety’ and ‘health’. First, the words ‘especially in the working environment’ justify a broad interpretation of health and safety. As Kenner has argued, the phrase ‘working environment’ was inspired by a Danish ergonomic conception of health and safety which encompassed ‘the impact of economic, social, cultural and political factor affecting the worker and heightens the importance of safety at work. At the core of the analysis is an emphasis on the “physiological and psychological capabilities of the individual”. ’96 Secondly, this emphasis on the whole physiological, psychological and social well-being of the worker in her working environment is further supported by the World Health Organisation’s broad definition of health as ‘a state of complete physical, mental and social well-being’, an interpretive move by the Court that heightens the normative legitimacy of its approach to health and safety. This obviously covers the traditional preoccupations of health and safety law, such as the avoidance of accidents and industrial diseases at work. It also extends to matters such as workplace stress, tackling harassment and bullying, the organisation of working time, and even the organisation of working tasks to avoid monotonous patterns of work. According to Davies, the interpretive approach of the Court in United Kingdom v Council 31.45 provides an example of ‘constitutionalisation’ in that it propounds ‘a broad, dignitarian understanding of health and safety’.97 In her view, Article 31 should be understood as

94 95 96 97

Above n 17. Ibid [15]. Kenner (n 43) 96. Davies (n 4) 201.

Alan Bogg

853

Part I – Commentary on the Articles of the EU Charter

31.46

encapsulating a similar conception of health and safety to that articulated by the Court in United Kingdom v Council.98 It is submitted that this is the correct view of ‘safety’ and ‘health’ under Article 31. However, a possible objection to this broad reading of Article 31 must first be addressed. As we have seen, the phrase ‘especially in the working environment’ had a particular and distinctive normative resonance in United Kingdom v Council, yet that phrase does not appear in Article 31. Its absence from Article 31 might therefore suggest a narrower approach to ‘safety’ and ‘health’ than would be the case for the concepts used in Article 118a EEC. This argument should be rejected for three reasons. First, the phrase ‘especially in the working environment’ should be regarded as implicit in Article 31 because of the sources referenced in the explanation of Article 31. For example, Directive 89/391/EEC is referred to in the explanation as a source, and this provision was itself adopted on the base of Article 118a EEC. Furthermore, point 19 of the CCFSRW uses the similar phrase ‘health and safety conditions in his working environment’ and this is also identified as a source in the accompanying explanation. Secondly, this broad reading is supported by the decisions of the ECSR in respect of Article 3 of the European Social Charter, which is also referred to as a source in the explanation. As we have seen, the ECSR has defended a broad interpretation of safety and health which extends to the individual’s right to physical and mental integrity at work.99 This link to a fundamental right to physical and mental integrity at work has strong and striking parallels with the ergonomic conception of health and safety elaborated by the Court in United Kingdom v Council. Finally, the inclusion of ‘dignity’ in Article 31 means that we should expect a dynamic interaction between these core elements of the Article 31 right, such that ‘dignity’ reinforces the expansive reach of ‘safety’ and ‘health’ in Article 31. This would also fit with Davies’ characterisation of United Kingdom v Council as embodying a ‘dignitarian’ conception of health and safety.100 Thus stated, the principles of ‘safety’ and ‘health’ in Article 31 are broad but highly abstract. Given the vital importance of Directive 89/391/EEC to Article 31(1), these highly abstract principles should be understood as mediated by a series of less abstract mid-level principles that are embodied in the Framework Directive on Health and Safety. Specifically, it is the general obligation in Article 6 of that Directive that should be understood as providing the general content of those mid-level principles, which provides: ‘Within the context of his responsibilities, the employer shall take the measures necessary for the safety and health protection of workers, including prevention of occupational risks and provision of information and training, as well as provision of the necessary organisation and means.’ As Barnard’s account of the Framework Directive demonstrates, this general principle is more specifically elaborated through a range of particular duties: duties of awareness and evaluation; duties of planning and implementation; duties to train workers; and duties to inform, consult and facilitate balanced participation of workers and their representatives; and duties to report.101 This is accompanied by specific duties of responsibility placed upon workers themselves.102

98 99 100 101 102

854

Ibid 202. Conclusions XIV-2, Statement of Interpretation on Art 3, p 36. Above n 4, 201. These are set out and categorised as such by Barnard (n 1) 516–22. Art 13.

Alan Bogg

Art 31 – Fair and Just Working Conditions

The explanation relates the concept of ‘dignity’ in Article 31(1) to Article 26 RESC. 31.47 As we have seen, this provision guarantees a right of ‘all workers to protection of their dignity at work’ by requiring states to undertake, in consultation with employers’ and workers’ organisations, to ‘promote awareness, information and prevention of ’ and ‘to take all appropriate measures to protect’ workers from two distinct dignitarian wrongs: (i) sexual harassment in the workplace or in relation to work; and (ii) ‘recurrent reprehensible or distinctly negative and offensive actions directed against individual workers in the workplace or in relation to work’, thereby encompassing other forms of harassment such as racial or sexual orientation harassment, ‘mobbing’, and bullying at work.103 We can understand this particular conception of dignity as targeting forms of treatment at work that are demeaning, insulting or degrading. Perhaps the most compelling rationalisation of what is captured by ‘dignity’ in Article 26, and thus by implication Article 31(1) of the EU Charter, is the idea of treating workers in ways that are expressive of disrespect to their personhood. This would encompass actions that constitute a serious violation of norms of civility in the workplace through the infliction of ‘dignitarian injuries’.104 A similar conceptualisation of dignity is elucidated and defended by Khaitan, who describes dignity as an ‘expressive norm’.105 A more difficult question is the extent to which ‘dignity’ extends beyond this narrower meaning. The right to working conditions that respect dignity is potentially very wide-ranging indeed: as a legal value dignity seems very prone to malleability and as such its multiplicity of guises in legal discourse can be somewhat bewildering.106 For example, Allan Flanders once famously argued that respect for human dignity was the most compelling justification for the practice of collective bargaining.107 Does it then follow that working conditions must be such as to respect rights to bargain collectively and to strike as an element in Article 31(1)? Does it also entail a right to job security? A right not to be discriminated against because of protected characteristics? Or a right to fair remuneration that is sufficient to support a dignified existence? There is of course a danger that Article 31(1) becomes discredited because it is 31.48 caricatured as a vessel containing the whole of labour law if dignity is over-expansive in its reach. For this reason, we should expect the concept of ‘dignity’ under Article 31 to be developed cautiously and incrementally by the CJEU. In the recent reference of Sindicato Nacional dos Profissionais de Seguros e Afins v Fidelidade Mundial-Companhia de Seguros SA the referring Court asked whether, amongst other things, Article 31 should be interpreted ‘as meaning that employees have the right to fair remuneration

103 K Lippel, ‘The Law of Workplace Bullying: An International Overview’ (2010) 32 Comparative Labor Law and Policy Journal 1. 104 For discussion in the context of the personal employment contract, see AL Bogg, ‘Bournemouth University Higher Education Corporation v Buckland: Re-establishing Orthodoxy at the Expense of Coherence?’ (2010) 39 Industrial Law Journal 408, 414–15. The concept of ‘dignitarian injury’ is explicated and defended in E Anderson, ‘Recent Thinking about Sexual Harassment: A Review Essay’ (2006) 34 Philosophy and Public Affairs 284, 292. 105 T Khaitan, ‘Dignity as an Expressive Norm: Neither Vacuous Nor a Panacea’ (2012) 32 Oxford Journal of Legal Studies 1. 106 For a comprehensive review of dignity in its manifold forms, see C McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 European Journal of International Law 655. 107 A Flanders, ‘Collective Bargaining: A Theoretical Analysis’ (1968) 6 British Journal of Industrial Relations 1.

Alan Bogg

855

Part I – Commentary on the Articles of the EU Charter

31.49

which ensures that they and their families enjoy a satisfactory standard of living?’108 This reference arose in the context of budgetary cuts in the wake of the austerity crisis, leading to restrictions on the remuneration and other terms and conditions of public sector workers. It is suggested that dignity has an important dual role to play here. First, where cuts to financial remuneration are unexpected and not reasonably foreseeable by workers, this violates human dignity because it is incompatible with the ‘Rule of Law’ in working life.109 Similar considerations might suggest that the most abusive forms of ‘zero hours’ contracting could be challenged as incompatible with respect for dignity, given the inability of workers to plan their lives on the basis of reasonable expectations of working time arrangements. Secondly, Article 23(1) of the Universal Declaration of Human Rights protects the right of ‘everyone’ to ‘just and favourable conditions of work’. Dignity is referred to in Article 23(3) in that ‘the right to just and favourable remuneration’ must ensure ‘for himself and his family an existence worthy of human dignity’. This would provide a basis for the development of ‘dignity’ as a basis for a right to just remuneration under Article 31(1) of the EU Charter. We should also expect ‘dignity’ in Article 31(1) to be developed in a fashion that is consistent with the jurisprudence of the CJEU.110 Finally as regards Article 31(1), the right is to ‘working conditions’ that respect ‘health’, ‘safety’ and ‘dignity’. The explanation refers to Article 156 TFEU which provides that ‘the Commission shall encourage cooperation between Member States and facilitate the coordination of their action in all social policy fields under this Chapter’ in matters including ‘labour law and working conditions’. This is not in itself especially illuminating. The formulation ‘employment and working conditions, including dismissals, as well as pay’ is used in Article 13 of Directive 2006/54 concerning the implementation of the principle of equal opportunities and equal treatment of men and women in employment. There seems no reason to suppose that these terms do not share a common meaning. It follows that the interpretation of Article 13 Directive 2006/54 should cast valuable light on Article 156 TFEU. As Barnard has observed of the case law on Article 13’s reference to ‘working conditions’, the Court has adopted a broad interpretation of its material scope.111 As well as explicitly including ‘pay’ and ‘dismissals’ in the Directive’s definition of ‘working conditions’, ‘working conditions’ has been viewed by the Court as extending beyond those conditions set out in the contract of employment,112 and it has been treated as covering all conditions governing dismissal even including a voluntary redundancy scheme.113 While it is undoubtedly true that ‘a right to fair remuneration’ is ‘notably absent’ from Article 31 in that it is not expressly included,114 it does not follow that ‘pay’ should be regarded as absent from the catalogue of ‘working conditions’ that

108

Sindicato Nacional dos Profissionais de Seguros e Afins (n 9). For this ‘rule of law’ view of human dignity, see Flanders (n 107). 110 See P v S (n 2) [22]; Omega (n 2) [34], where a paternalistic conception of dignity in line with the German constitutional conception is elucidated by the Court. 111 Barnard (n 1) 350. 112 Case C-116/94 Meyers v Adjudication Officer [1995] ECR I-2131. 113 Case 19/81 Burton v British Rail [1982] ECR 555. 114 J Hunt, ‘Fair and Just Working Conditions’, in T Hervey and J Kenner (eds), Economic and Social Rights under the EU Charter of Fundamental Rights: A Legal Perspective (Oxford, Hart Publishing, 2003) 54. 109

856

Alan Bogg

Art 31 – Fair and Just Working Conditions

must respect the worker’s dignity. It is certainly true that the limits on the EU’s legislative competence in respect of ‘pay’ as set out in Article 153(5) TFEU are unaffected by Article 31(1), as Article 51 of the Charter delimiting its field of application makes clear. This has no necessary bearing on the substantive scope of the right in Article 31(1), however. Article 31(2) specifies three distinct rights: (i) a right to limitation of maximum 31.50 working hours; (ii) a right to daily and weekly rest periods; (iii) a right to an annual period of paid leave. Each of these rights will be analysed in turn. The right to a limitation of maximum working hours is well established in inter- 31.51 national law, and specifically in the sources referred to in the explanation. Although Article 31(2) does not specify the relevant time frame for setting ‘maximum working hours’, the relevant sources would seem to envisage this as a weekly limit. Article 2 ESC refers to the setting of ‘reasonable daily and weekly working hours’ with the working week ‘progressively reduced’ as permitted by increases in productivity and ‘other relevant factors’. While there are no specifically quantified limits set out in the text of Article 2(1) ESC,115 the ECSR has specified that a daily working day of 16 hours was too long to be reasonable,116 and that a total working week (including overtime) of 60 hours was also too long to be considered a ‘reasonable’ limit.117 A limit of 78 hours in a working week was described as ‘manifestly excessive’ by the ECSR.118 In all cases, the determination of what is reasonable will be shaped by an assessment of ‘relevant factors’ such as the nature of the work. This allows adjustment of the content of a ‘reasonable’ limit to reflect such matters as whether the work is particularly dangerous or physically demanding or whether there is a continuing need for service provision such as in essential public services. The limitation of maximum working hours in the Working Time Directive adopts a different approach in specifying a universal and expressly quantified maximum limit of 48 hours per week. It is submitted that the codification of the 48-hour limit would be mistaken in framing the right under Article 31(2). The requirement that the maximum be ‘reasonable’ under Article 31(2), in line with the ECSR’s approach to Article 2(1) ESC, would allow the flexible setting of maxima to be calibrated by relevant factors such as the intensity of work in a particular industry. This would permit specific sectoral solutions to emerge in the process of formulating the normative content of the right under Article 31(2), rather than the rigidities of a simple universal standard for all workers. It is also important to emphasise two further points. First, Article 31(2) envisages 31.52 a ‘maximum’ limit. Under Article 2 ESC the ECSR has determined that working time flexibility does not necessarily infringe the ESC though any flexibility must operate within strict limits set by a ‘precise normative framework’.119 This requires, amongst other things, that adjustment of working time must not be left solely to the discretion of workers, employers, or trade unions. It follows from this that the maximum must be quantified and specified in particular contexts: it cannot be left open-ended by

115

Ibid 51. Conclusions XIV-2, Norway, p 578. 117 Conclusions XIV-2, Netherlands, pp 535–36. 118 Confederation Francaise de l’Encadrement CFE-CGC v France, Complaint No 9/2000 (Decision on the merits of 16 November 2001) 29–38. 119 Conclusions XIV-2, Netherlands, pp 535–36. 116

Alan Bogg

857

Part I – Commentary on the Articles of the EU Charter

31.53

31.54

31.55

collective agreements or contractual arrangements. Secondly, there must be limits on the reference period over which weekly working hours are calculated. The Working Time Directive specifies a default reference period of four months, though this can be extended to a period of six months or, exceptionally, up to a period of 12 months where this is justified by objective or technical reasons.120 It is submitted that the reference period under Article 31(2) should satisfy a requirement of reasonableness, with reasonableness informed by the parameters set by the ECSR under the European Social Charter framework and the time periods envisaged in the Working Time Directive. The most vital issue in relation to the right to maximum working hours is whether this right can be derogated from by a relevant agreement. For all its clarity and universality, the 48-hour limit in the Working Time Directive is effectively ‘drained’ of normative content through the provision of a mechanism for waiver of the right through individual agreement.121 This will be addressed in section IV. The right to daily and weekly rest periods finds some support in Article 2 ESC. In this respect Article 2(5) requires states ‘to ensure a weekly rest period which shall, as far as possible, coincide with the day recognised by tradition or custom in the country or region concerned as a day of rest.’ This envisages weekly rest of 24 hours. It is quite bold in specifying as an objective that the setting of the weekly rest period be coordinated with the wider tempos of community life ‘as far as possible’. This provides a corrective to the increasing individualisation of working time and rest time, severed from the wider rhythms of community and social life.122 There is no explicit right to a daily rest period set out in Article 2 ESC. Rather, this is subsumed within the commitment to set reasonable daily working hours in Article 2(1) ESC. The Working Time Directive contains precise commitments to daily and weekly rest periods in Articles 3 and 5 respectively. Under Article 3 a worker is entitled to a daily rest period of 11 consecutive hours, while under Article 5 a worker is entitled to an uninterrupted rest period of 24 hours each week. The Working Time Directive also makes provision for rest breaks during the working day under Article 4, though the right to a rest break does not appear to be protected under Article 31(2) with its reference to daily and weekly rest periods. It is submitted that the rest periods protected under Article 31(2) should be construed as ‘reasonable’ rest periods, with the parameters of reasonableness determined by the more precise specifications particularly as set out in Articles 3 and 5 of the Working Time Directive. This would again allow some scope for sectoral flexibilities under Article 31(2) in the determination of normative content. Finally, Article 31(2) posits a right to an annual period of paid leave. By far the most important source for this right is the extensive jurisprudence of the CJEU on Article 7 of the Working Time Directive. There has been a dynamic and productive engagement between Article 7 and Article 31(2) of the EU Charter, with the Charter giving significant extra force to the proposition that the right to paid annual leave is a fundamental social right of special importance in EU law. The right’s fundamental status as a social right has shaped the entire jurisprudence on Article 7. In turn, it follows from this

120

Art 19. A Supiot, ‘On the Job: Time for Agreement’ (1996) 12 International Journal of Comparative Labour Law and Industrial Relations 195. 122 For discussion, see A Supiot, Beyond Employment: Changes in Work and the Future of Labour Law in Europe (Oxford, OUP, 2001) 90. 121

858

Alan Bogg

Art 31 – Fair and Just Working Conditions

symbiosis that the reasoning and specific legal conclusions of the CJEU on Article 7 are also reflected in the parameters of the right to a period of annual paid leave under Article 31(2). This interpretive synergy between Article 7 of the Working Time Directive and Article 31(2) means that the rights are so entwined in the CJEU’s legal reasoning that it is now difficult to discern where one begins and the other ends. There are four essential matters to be distinguished in respect of the substance of the right under Article 31(2): its duration; the requirement that the annual leave is ‘paid’; issues surrounding the timing of leave, such as when it may (and may not) be taken, and the length of time it is possible to accumulate leave entitlement across successive ‘leave years’; and whether the right to annual paid leave also encompasses a right to payment in lieu of leave on termination of the employment relationship. Each of these matters will be addressed in turn. First, though the duration of annual paid leave is not specified in Article 31(2), this 31.56 should be understood as a minimum of four weeks leave per year in line with Article 7 of the Directive. The CJEU has held that the principle of pro rata temporis applies in respect of part-time and short-time working in this context. Thus, in Alexander Heimann and Konstantin Toltschin v Kaiser GmbH the works council agreed to a social plan whereby the employment contracts of dismissed workers were extended for a year in order to enable them to receive a financial allowance for the duration of ‘zero hours short-time working’.123 The CJEU held that this was analogous to part-time working and it followed that the principle of pro rata temporis applied under Article 31(2) of the EU Charter and Article 7(1) of the Working Time Directive. Secondly, there is a requirement that annual leave be ‘paid’. The function of payment 31.57 for leave is to ensure that workers will in fact take the leave to which they are entitled, since the actual taking of leave is essential for their rest and recuperation from work. Two propositions follow from this. The first proposition is that payment for leave should occur contemporaneously with the taking of leave in order to ensure that economic pressures on workers to forgo their leave entitlement are reduced or eliminated. This was established in Robinson-Steele where a system of ‘rolled up’ holiday pay was regarded as incompatible with Article 7.124 ‘Rolled up’ payment consisted of a continuous addition to the worker’s hourly or weekly pay across the leave year, with workers responsible for managing the extra component of holiday pay to enable them to take leave. This approach protects the most vulnerable workers on low incomes from the economic pressure to forgo leave and work continuously, for example in situations where they had dissipated their income due to economic necessity. The second proposition is that payment for leave should reflect ‘normal’ remunera- 31.58 tion that is ordinarily enjoyed by the worker while working. In Williams the question arose as to which payments supplementary to the ‘basic’ salary should be included in

123 Cases C-229/11 and C-230/11 (8 November 2012). The CJEU referred to Case C-486/08 Zentralbetriebsrat der Landeskrankenhauser Tirols [2010] ECR I-3527 in the course of its decision, which addresses the particular position of part-time workers. The CJEU has also made it clear that the principle of pro rata temporis cannot be used to effectuate a retrospective reduction of annual leave entitlement, where that entitlement had been accrued during a period of full-term service but the worker had been transferred subsequently to part-time work: Case C-415/12 Bianca Brandes v Land Niedersachsen (13 June 2013). 124 Cases C-131/04 and C-257/04 Robinson-Steele v RD Retail Services Ltd [2006] ECR I-2531.

Alan Bogg

859

Part I – Commentary on the Articles of the EU Charter

31.59

payment for annual leave.125 In this case, the pilots received two supplements to their fixed salary: one linked to time spent flying and the other to time spent away from base. According to the CJEU, all payments ‘linked intrinsically to the performance of the tasks which the worker is required to carry out under his contract of employment and in respect of which a monetary amount is provided which is included in the calculation of the worker’s total remuneration, such as, in the case of airline pilots, the time spent flying, must necessarily be taken into account for the purposes of the amount to which the worker is entitled during his annual leave.’126 This would also include elements of the salary relating to the individual’s ‘professional status as an employee’, but it would not include ‘ancillary costs’ such as money to compensate for the expenditure accrued during time spent away from base.127 It was for the national court to apply these tests to the particular set of payment arrangements. Some fairly obvious conclusions follow axiomatically from this. Under UK law, commission payments and overtime payments are often excluded from the calculation of payment for leave, meaning that leave payment does not reflect ‘normal’ remuneration.128 This is unsustainable following Williams. Reflecting back on Williams, however, Article 31(2) has an important role still to play. There is a touch of formalism in the CJEU’s ‘intrinsically linked’ test for identifying relevant remuneration. It raises the spectre of sham payment arrangements designed to subvert the legal test, whereby the bulk of remuneration is provided on the basis of ‘ancillary costs’ to the worker. Article 31(2) reminds us that this is a fundamental social right and that the maintenance of ‘normal’ remuneration is vital to ensure that this fundamental right is not undermined. For this reason, any doubts as to whether remuneration is ‘intrinsically linked’ to performance should be resolved in favour of inclusion, since this is most likely to achieve the purpose of requiring that leave is paid (namely, that the leave is in fact enjoyed by the worker because there are no economic incentives to forgo leave). Thirdly, a number of propositions can be derived from the Article 7 jurisprudence on the timing of leave which should inform the normative content of the right under Article 31(2). Annual leave may not overlap with other periods of Community guaranteed leave, such as maternity leave or parental leave.129 In this respect, Article 31(2) should be read consistently with Article 33 of the EU Charter on the reconciliation of professional and family life. While it is legitimate for Member States to prevent annual leave from being exercised during a period of sick leave,130 the possibility of a carryover of leave entitlement into a subsequent leave year must be permitted by the legal framework to prevent the extinction of the worker’s fundamental social right which is

125

Above n 5. Ibid [24]. 127 Ibid [26]–[27]. 128 For discussion, see AL Bogg, ‘Of holidays, work and humanisation: a missed opportunity?’ (2010) 5 European Current Law xi, xx–xxi. 129 Case C-342/01 Merino Gomez v Continental Industrias del Caucho SA [2004] ECR I-2605; Case C-519/03 Commission v Luxembourg [2005] ECR-I-3067. 130 Schultz-Hoff and Others (n 42). Equally, a worker can insist upon the rearrangement of her annual leave where this overlaps with a period of sick leave ‘where that worker does not wish to take annual leave during a period of sick leave’ (ibid [25]): see Case C-277/08 Pereda v Madrid Movilidad SA [2009] ECR I-8405. 126

860

Alan Bogg

Art 31 – Fair and Just Working Conditions

hers absolutely.131 An unresolved issue under Article 7 (and Article 31(2)) is whether the worker has a right to designate a period of time as annual leave, with this designation only being overridden where there are legitimate business reasons (for example, preventing school teachers from taking annual leave during term time) or social policy reasons such as a need to align periods of annual leave with the wider tempo of community life (for example, ensuring that the taking of leave is coordinated within a particular locale so that rest time may become time shared with other citizens in the local community). At a basic level, since it is the worker’s right to paid annual leave, it would seem appropriate for the timing of leave to be determined—at least absent countervailing considerations— by the worker herself. This would also find support in the humanisation principle set out in Article 13 of the Working Time Directive (‘the general principle of adapting work to the worker’).132 Accordingly, it follows that a worker has the right to designate the timing of her leave under Article 31(2), subject only to overriding legitimate business or social policy reasons justifying a requirement that the leave be taken at another time. Finally, the worker’s right to a payment in lieu of untaken leave during a leave year 31.60 on termination of the employment relationship is a fundamental social right that is necessarily implicit in the right to paid annual leave under Article 31(2). This principle was established in Stringer in respect of Article 7 and it should apply with equal force to Article 31(2).133 A number of propositions follow from this. First, since the right to a payment in lieu is a fundamental social right of all workers, there can be no preconditions governing its acquisition or extinction. It is the worker’s right automatically and unconditionally. Secondly, the requirement of ‘normal’ remuneration should also govern the calculation of the payment in lieu, given its function to ensure that periods of leave equate financially with periods of work. Thirdly, the payment in lieu must be calculated on the basis of proportionate accrual (minus the proportion of accrued entitlement already exercised during employment) in order to ensure that the four weeks’ minimum entitlement is maintained.134 Two general points apply to the normative content of the rights specified in Article 31.61 31(2). First, the delineation of ‘rest periods’ requires a distinction to be made between ‘rest time’ and ‘working time’. These two kinds of time are mutually exclusive. This is reflected in the Working Time Directive’s ‘bipolar’ structuring of working time—time is either working time or it is rest time: it cannot be both simultaneously, and it must be either one or the other.135 The judicial approach under the Working Time Directive has been a rather aggressive expansionism in respect of ‘working time’, so that it

131 It is permitted by Art 7, and it should therefore be permitted by Art 31(2), to specify a cut-off point beyond which it would not be reasonable to continue accruing leave entitlements. This principle was established in KHS (n 70), where the worker had been on sick leave between January 2002 and August 2008. The CJEU observed that a right to unlimited accumulation of annual leave entitlements ‘would no longer reflect the actual purpose of the right to paid annual leave’, which is to guarantee a minimum period of rest and recuperation from labour (ibid [30]). Beyond a certain point, paid leave becomes ‘merely a period of relaxation and leisure’ (ibid [33]), rather than a period of rest from work. In this case, a period of 15 months carry-over was regarded as sufficient to satisfy the purpose of Art 7. It is noteworthy that the CJEU cited Art 31(2) in arguing for this conclusion, ibid [31] and [37]. 132 Bogg (n 128) xviii–xix. 133 Above n 130 [61]. 134 See Bogg (n 128) xiii. 135 This ‘bipolar’ characterisation is provided in J Kenner, ‘Regulating Working Time—Beyond Subordination’, in S Weatherill (ed), Better Regulation (Oxford, Hart Publishing, 2007) 195, 201.

Alan Bogg

861

Part I – Commentary on the Articles of the EU Charter

31.62

extends to encompass even on-call time (whether active or inactive) where the worker is required to be present at the place of work.136 As Chalmers et al have argued, Jaeger provides an example of a case where fundamental social rights discourse is deployed to justify ‘a wide interpretation of what constitutes work ... It also recalibrated the balance between employer interests and employee needs in favour of the latter.’137 It might also be observed that this expansionism has indirectly undermined ‘employee needs’ due to an increased reliance on derogations and opt-outs as a way of alleviating some of the rigidities created by the ‘on-call time’ decisions.138 One way of avoiding these difficulties in the constitution of the Article 31(2) rights is to accord a prominent role to collective agreements between representative organisations of workers and employers to specify the content of these concepts in ways that are tailored to the particular needs of industrial sectors. Secondly, all of the rights specified in Article 31 should be interpreted with reference to the humanisation principle, variants of which are found in Directive 89/391/EEC Article 6(2) and Directive 93/104/EC Article 13. Article 13 posits a ‘general principle of adapting work to the worker’ in respect of organising patterns of work, alleviating monotonous work and work at a pre-determined rate, and health and safety requirements. The principle has been subject to criticism by some commentators on account of its vague regulatory implications.139 These criticisms may be wide of the mark, however, insofar as they misconstrue the role and function of the humanisation principle. It does not generate a detailed regulatory template, but rather should be understood as a highly abstract legal principle that sets a general interpretive tone. It reminds us that work is a human good of special significance and that good work is a source of identity, self-esteem and self-realisation for workers. It reminds us that labour law and the regulation of work should be directed at the satisfaction of human needs and that labour law is—ultimately and always—for persons. That is why the organisation of work and working time must be adapted to the worker’s needs as a human being with dignity and autonomy, rather than insisting on the subjection of the worker’s human needs to the employer’s economic imperatives. All of the rights in Article 31 must be interpreted and developed in the light of this deeper philosophical commitment to the humanisation of work.

IV. Limitations and Derogations 31.63

Limitations and derogations are governed by the general clause in Article 52(1) which specifies that limitations must: (i) be provided for by law; (ii) respect the essence of those rights and freedoms; (iii) be subject to the principle of proportionality; (iv) be necessary; and (v) genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. These general constraints must be kept in view when considering limitations and derogations as they relate to

136

See, for example, Jaeger (n 76). Above n 76. 138 See AL Bogg, ‘The right to paid annual leave in the Court of Justice: the eclipse of functionalism’ (2006) 31 European Law Review 892, 903. 139 Kenner (n 135) 201. 137

862

Alan Bogg

Art 31 – Fair and Just Working Conditions

the specific rights enumerated in Article 31. It should also be recalled that Article 31 is neither ‘in accordance with’ nor ‘under the conditions provided for by Union law and national laws and practices’. This means that the nature and scope of limitations and derogations under Article 31 should be determined autonomously. This does not mean that Union law will be irrelevant. As the explanation makes clear, Directives 89/391/ EEC and 93/104/EC are important sources for Article 31, and hence will shape the configuration of limitations and derogations. Nevertheless, since Article 31 dispenses with the formula ‘under the conditions provided for by Union law’, it follows that Article 31 does not necessarily track the limitations and derogations specified in Union law. This is particularly pertinent in respect of the rights in Article 31(2), given that the Working Time Directive has been described as ‘a decidedly weak and rather complex piece of legislation severely circumscribed by limitations and derogations’.140 This raises the possibility that Article 31 could provide a mechanism for challenging the limitations and derogations that are currently permitted under Union law. This possibility is now very much a realistic prospect, given the recent decision in Test-Achats, where the EU Charter was used successfully to challenge a derogation from the principle of equal treatment in respect of actuarial calculations that were gender-based, under Directive 2004/113 on equal treatment in access to and supply of goods and services.141 Each right will be examined in turn. Article 31(1) posits a right to working conditions that respect the worker’s ‘safety’ and 31.64 ‘health’. On its face, this looks like a serious candidate for a right that does not admit of limitations and derogations, thus an inderogable fundamental right. Certainly, it is difficult to contemplate a scenario where it might be justifiable for a worker to work in dangerous conditions that present a serious risk of accident or industrial disease. In this respect, it is notable that Directive 89/391/EEC does not provide for extensive derogations or limitations.142 Nevertheless, it is likely that much broader ‘ergonomic’ conceptions of ‘safety’ and ‘health’ are referred to by Article 31(1), as articulated by the Court in United Kingdom v Council. The ergonomic conception provides the normative underpinning to the various rights in the Working Time Directive which does provide for very extensive limitations and derogations in respect of many of its rights. The breadth of the ergonomic conception suggests that some limitations and derogations might in principle be defensible, subject to very strict limits on availability. Two points should be noted. First, there are limits on the ‘objectives of general interest’ which might be used to justify a limitation of this right. Both recitals to Directives 89/391/EEC and 93/104/EC specify that ‘the improvement of workers’ safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations’. It follows from this that ‘purely economic considerations’ can never figure as legitimate objectives to justify a limitation or derogation from the right to working conditions that

140

Kenner (n 44) 173. Case C-236/09 Test-Achats [2011] ECR I-773, discussed in Barnard (n 1) 271. 142 The only limitation is in Art 2 ‘where characteristics peculiar to certain specific public service activities, such as the armed forces or the police, or to certain specific activities in the civil protection services inevitably conflict with it’ though even here ‘the safety and health of workers must be ensured as far as possible in the light of the objectives of this Directive’. There is also provision to permit Member States to introduce an ‘exceptional circumstances’ defence for employers in respect of their obligations under the Directive under Art 5(4). 141

Alan Bogg

863

Part I – Commentary on the Articles of the EU Charter

31.65

31.66

31.67

respect the worker’s safety and health. Secondly, the health and safety basis of the right means that the proportionality test should be applied particularly strictly in this context and with a very narrow margin of discretion. Article 31(1) also posits a right to working conditions that respect the worker’s dignity. The ‘inviolability’ of dignity in Article 1 of the EU Charter, which ‘must’ be respected and protected, would seem to preclude any possibility of limitation or derogation under Article 31(1), and indeed it seems very difficult to contemplate circumstances where a worker might be subject to undignified working conditions with any legitimate justification. This would also fit with the understanding of human dignity in Member States’ common constitutional traditions. Thus, McCrudden has noted that dignity in both the German and French constitutional traditions has been regarded as not being at the disposal of the individual, and this has been used to justify bans on dwarf-tossing in France and on the participation of women in commercial peep-shows in Germany, even despite the voluntary consent of participants.143 In this respect, Article 52(4) is relevant in specifying that fundamental rights should be interpreted ‘in harmony with’ those ‘constitutional traditions common to the Member States’. This would further entrench the right’s inderogability. With regard to Article 31(2), it is the right to limitation of maximum working hours that is the most controversial of all in respect of derogation. The Working Time Directive currently permits an individual derogation from the 48-hour maximum working week (the ‘opt-out’) through the mechanism of a worker’s individual agreement. This is subject to a series of protective measures set out in Article 22 of the Directive. The need to ensure the quality of the worker’s valid consent to waiver is also given further emphasis and elaboration in Pfeiffer, where the Court observed that the consent ‘must be given not only individually but expressly and freely’.144 Additionally, a valid consent must satisfy the requirement that it reflect a decision taken ‘with full knowledge of all the facts’.145 In fact, there are palpable tensions between Article 22 and the Pfeiffer criteria. Article 22 does not seem to preclude an ‘opt-out’ being inserted into a written contract and presented to the applicant on a ‘take it or leave it’ basis. A refusal to sign entails a withdrawal of a job opportunity, yet the worker has not been subjected to a detriment by ‘his employer’ contrary to Article 22(1)(b) since he is not employed by the employer. This does not look like a ‘free’ consent as required by Pfeiffer. It also seems difficult to reconcile with the principle of effectiveness. Barnard has suggested that a challenge to the current form of the opt-out may be possible under the doctrine elaborated in Test Achats, and it is suggested that this is entirely possible given the impossibility of reconciling Article 22 as currently constituted with Article 31(2) of the EU Charter.146 The field of working time regulation is currently being considered by the social partners in the social dialogue process. The current position as contained in Article 22 of the Working Time Directive on the individual ‘opt-out’ is not compatible with

143 McCrudden (n 106) 705–706. This would be coherent with the paternalistic conception of dignity elaborated by the Court in Omega (n 2). 144 Pfeiffer and Others (n 73) [84]. 145 Ibid [82]. 146 Barnard (n 1) 551.

864

Alan Bogg

Art 31 – Fair and Just Working Conditions

Article 31(2). There may be some scope for derogation under Article 31(2), but within much stricter limits than are currently envisaged by Article 22 of the Directive. In this respect, there may be scope for a fertile interaction between Article 31(2) and Article 5(2) of the EU Charter with its prohibition of ‘forced or compulsory labour’. In a fascinating analysis of working time regulation under the ILO conventions, Deirdre McCann has drawn attention to the creative ways in which the ILO Committee of Experts on the Application of Conventions and Recommendations has deployed a nuanced analysis of coercion to identify instances of mandatory overtime that breach the prohibition of ‘forced labour’ in ILO Conventions.147 This approach has been highly sensitive to the corrosive effects of economic vulnerability on workers’ voluntary choices. This certainly is suggestive of the potential promise of Article 5(2) of the EU Charter in challenging at least some exercises of individual ‘opt-out’ from the maximum hourly limits on the working week. This would necessitate that the individual consent is substantively free, informed and expressly given. It might suggest restrictions on the timing of the ‘opt-out’, preventing a valid waiver where that is elicited at the inception of the contract or during a probationary period. Furthermore, and in line with the decisions of the ECSR under Article 2 ESC, it would not be sufficient to permit an individual waiver where the outer limit of the working week was not specifically quantified. The current Working Time Directive simply states that there must be respect for ‘the general principles of the protection of the safety and health of workers’. It should be recalled that Article 31(2) of the EU Charter refers to a ‘maximum’. This would necessitate a specified outer limit even where the 48-hour requirement had been waived validly by an individual worker. One other derogation which should be mentioned is the ‘unmeasured work’ deroga- 31.68 tion in Article 17 of the Working Time Directive which applies to maximum weekly hours but also to daily and weekly rest periods. This is triggered in a situation ‘when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves, and particularly in the case of: (a) managerial executives or other persons with autonomous decision-making powers; (b) family workers; or (c) workers officiating at religious ceremonies in churches and religious communities.’ It is submitted that this derogation is not compatible with Article 31(2) for two reasons. First, Article 31(2) refers to the rights of ‘every’ worker which would extent even to those workers in an ‘unmeasured work’ situation. Secondly, the decisions of the ECSR highlight the very broad personal scope of ‘health and safety’ rights under the ESC framework. The Committee has held that Article 2 ESC applies to all workers including the self-employed, and with a particular emphasis on those workers engaged in vulnerable atypical work such as ‘casual’ workers or fixed-term contract workers.148 Given the health and safety basis to the rights in Article 31(2), it is suggested that the ‘unmeasured work’ derogation is therefore inconsistent with this provision of the EU Charter. The right to daily and weekly rest periods are also subject to limitations and dero- 31.69 gations under the Working Time Directive. These correspond broadly to two types of

147 148

McCann (n 18). Conclusions XIV-2, Statement of Interpretation on Art 3(1), 36–43.

Alan Bogg

865

Part I – Commentary on the Articles of the EU Charter

31.70

derogation. First, there are situations where the character of the work, or situation in which the work undertaken, justifies derogating from the daily and weekly rest periods. These are set out in Article 17(3)–(4) of the Directive, and encompass matters such as ‘security and surveillance activities requiring a permanent presence’, ‘activities involving the need for continuity of service or production’, or ‘where there is a foreseeable surge of activity’. This is subject to the condition that ‘equivalent compensating rest periods’ are granted to affected workers or, exceptionally where that is not possible, that workers ‘are afforded appropriate protection.’ Secondly, Article 18 provides that it is possibly to derogate from the daily and weekly rest periods (though not the weekly maximum of working hours) through collective agreements ‘or agreements concluded between the two sides of industry at national or regional level or, in conformity with the rules laid down by them, by means of collective agreements or agreements concluded between the two sides of industry at a lower level.’ Derogation through collective agreement is also subject to the condition that ‘equivalent compensating rest periods’ are granted or, exceptionally where that is not possible, that workers ‘are afforded appropriate protection’. It is submitted that both kinds of derogation would be permitted in respect of the right to daily and weekly rest periods under Article 31(2). The derogations under Article 17(3)–(4) should be construed strictly when applied under Article 31(2), though those derogations currently enumerated under that provision meet the strict proportionality criteria under Article 52(1) of the EU Charter. The collective agreement derogation should also be permitted under Article 31(2). Collins, Ewing and McColgan have observed regretfully of the Working Time Directive that the recitals do not refer to ILO principles on freedom of association.149 By contrast, Article 31(2) is not constricted in the same way but it must be read within the context of other relevant Charter provisions. Article 28 recognises ‘the right to negotiate and conclude collective agreements at the appropriate levels’. Further, Article 12 recognises the ‘right of everyone to form and to join trade unions for the protection of his or her interests’. In accordance with Article 52(4) which provides that rights in the Charter corresponding to ECHR rights shall have the same scope and meaning as ‘laid down by the said Convention’, it follows that Article 12 will incorporate the recent jurisprudence of the ECtHR recognising rights to bargain collectively and to strike as inherent in Article 11 ECHR with these rights set at the level of the relevant ILO standards.150 This means that collective agreements will have a special regulatory significance under Article 31, especially collective agreements concluded at national, regional or sectoral levels. The decisions of the ECSR under Article 2 ESC similarly recognise that collective agreements at enterprise level must contain extra safeguards to ensure that workers’ health and safety is protected.151 Given the role of Article 31(2) as an interpretive tool for the Working Time Directive, it also follows that the ILO principles on freedom of association do become relevant to that Directive’s interpretation even though the ILO principles are not referred to specifically in the recitals. According to the CJEU in SIMAP, collective agreements could not be used as a

149

H Collins, KD Ewing and A McColgan, Labour Law (Cambridge, CUP, 2012) 302, fn 203. See KD Ewing and J Hendy, ‘The Dramatic Implications of Demir and Baykara’ (2010) 39 International Law Journal 2. 151 Conclusions XIV-2 Vol 1. 150

866

Alan Bogg

Art 31 – Fair and Just Working Conditions

procedural mechanism for derogation from the 48-hour limit on weekly working time. This principle was given further support in Pfeiffer. It may be that Article 31, especially in view of other related provisions in the EU Charter, prompts a reassessment of this jurisprudence. The right to paid annual leave under Article 7 is a fundamental social right of 31.71 special significance and this is confirmed by its inderogable status in the Working Time Directive. As BECTU makes clear, it follows that it cannot be subject to any preconditions in respect of the enjoyment of the right. Moreover, the restriction in Article 7(2) of the Directive that the right to paid annual leave may not be substituted for a payment in lieu (except on termination of the employment relationship) is simultaneously a restriction under Article 31(2). Article 53 of the Charter provides that ‘nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law’. It follows from Article 53 that since the right to paid annual leave is an inderogable right in Union law, it must also be an inderogable right under Article 31(2).

V. Remedies Article 47 specifies a right to an effective remedy before an independent and impartial 31.72 tribunal that provides the claimant with a fair and public hearing within a reasonable time. Additionally, provision is made for legal aid and representation of victims. First, the effectiveness of enforcement in this context is highly dependent upon 31.73 provision of an independent public body such as a labour inspectorate with enforcement functions to ensure that working conditions respect workers’ safety, health and dignity. Under Article 3 ESC the provision for effective supervision and enforcement of health and safety regulations by a suitably resourced inspectorate is regarded as having a ‘particular importance’ by the ECSR.152 This would mirror the imaginative approach to remedies under EU equality law, where Directive 2006/54 and Directive 2000/43 each make provision for organisations to play a prominent role in the enforcement of equality norms.153 Secondly, individual remedies for breach of health and safety rights must be ‘effective, proportionate and dissuasive’,154 with effective protection from victimisation for individual claimants.155 Thirdly, the special connection between ‘dignity’ and harassment wrongs under Article 31(2) also suggest that it might be appropriate to explore appropriate procedural adjustments, such as a reverse burden of proof, that can assist vulnerable victims of workplace harassment in asserting their legal rights. This would certainly be supported by ECSR decisions under RESC Article 26.156

152 153 154 155 156

Conclusions I, Statement of Interpretation on Art 3, p 22. Art 17(2); Art 13. Barnard (n 1) 522. Case C-185/97 Coote v Granada Hospitality Ltd [1998] ECR I-5199. Case Law Digest, Art 26.

Alan Bogg

867

Part I – Commentary on the Articles of the EU Charter

E. Evaluation 31.74 In many ways, Article 31 has been the most precocious of the labour rights elaborated in the EU Charter. From its early appearance in the AG Tizzano’s Opinion in BECTU, it is now a settled element in the jurisprudence on the right to paid annual leave under Article 7 of the Working Time Directive. It would be very desirable if the CJEU were to expand the reach of Article 31(2) to interpret other provisions in the Working Time Directive, to ensure a coherent scheme of working time rights in the European legal order. This expansion of Article 31’s reach is likely to be particularly dramatic in respect of continuing controversy over the future of the ‘individual opt-out’ from the maximum working week of 48 hours. Some commentators such as Bercusson have made very bold claims for the potential 31.75 of Article 31 to lead to a reconfiguration of European social law. Whether Article 31 will precipitate such a revolution remains something of an open question. Much will depend upon the specific parameters of ‘dignity’ in Article 31(1) and the extent to which this receives a broad interpretation from the CJEU. Much will also depend upon institutional issues relating to the Court’s appetite for judicial activism within the context of wider political debates about the EU Charter’s juridical significance. The profile of Article 31 of the EU Charter as a counter-response to deregulatory measures in Portugal, for example, demonstrates the potential reach of Article 31. While the reaction of the Court to this attempt to use the EU Charter to challenge austerity measures in Member States is as yet unknown, decisions such as that in Test-Achats suggest that the CJEU is sometimes prepared to use the EU Charter to bold effect when called upon to do so. The challenge for the Court will be three-fold. First, it is vital that the definitional rigidities that have undermined the effectiveness of the Working Time Directive as a regulatory instrument are not replicated in the interpretation of Article 31. The rights will remain supple and reflexive if the CJEU attaches a special regulatory significance to collective agreements in the constitution of the Article 31 rights. Secondly, the breadth of Article 31 poses a legitimacy challenge for the Court in developing norms under this Charter provision. As Bercusson’s observations indicate, one could understand the entire field of labour law to be subsumed within Article 31 and recast as a subjective fundamental right.157 The Court will obviously be concerned to avoid the charge of discretionary law-making under the guise of Charter interpretation, and we might therefore expect a cautious approach to the development of Article 31 jurisprudence. Finally, the CJEU will need to be sensitive to its own institutional limitations, especially in politically sensitive areas such as budgetary decisions in Member States. Social rights should be understood and interpreted as facilitative of deliberative participation,158 which would again necessitate a supple and reflexive interpretation of the core elements of Article 31 which gives a special role to collective bargaining. However this all plays out, there is no doubt that Article 31 is quite properly described as the most fundamental of the labour rights in the Solidarity Chapter of the EU Charter.

157

Bercusson (n 60). For a defence of this view, see S Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford, OUP, 2008). 158

868

Alan Bogg

Article 32 Article 32 Prohibition of Child Labour and Protection of Young People at Work The employment of children is prohibited. The minimum age of admission to employment may not be lower than the minimum school-leaving age, without prejudice to such rules as may be more favourable to young people and except for limited derogations. Young people admitted to work must have working conditions appropriate to their age and be protected against economic exploitation and any work likely to harm their safety, health or physical, mental, moral or social development or to interfere with their education.

Text of Explanatory Note on Article 32 This Article is based on Directive 94/33/EC on the protection of young people at work,1 Article 7 of the European Social Charter2 and points 20 to 23 of the Community Charter of the Fundamental Social Rights of Workers.3

Select Bibliography Commission Staff Working Document of 27 October 2010 on the application of Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work, SEC (2010) 1339 final. H Cullen, ‘Children’s Rights’ in S Peers and A Ward (eds), The EU Charter of Fundamental Rights: Politics, Law and Policy (Oxford, Hart Publishing, 2004) 323–46. European Commission, Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions on the application of Directive 94/33/EC on the protection of young people at work, COM (2004) 105 final. ——, Communication from the Commission to the Council, European Parliament and Social Committee and the Committee of the Regions—A Special Place for Children in EU External Action, COM (2008) 55 final. ——, EU Action Plan on Children’s Rights in External Action, COM (2008) 55 final. M Hartwig, ‘The Elimination of Child Labour and the EU’ in G Nesi, L Nogler, and M Pertile (eds), Child Labour in a Globalised World—A Legal Analysis of ILO Action (Aldershot, Ashgate, 2008) 246–62. A Jacobs, ‘Prohibition of child labour and protection of young people at work (Art 32)’ in B Bercusson (ed), European Labour Law and the EU Charter of Fundamental Rights (Brussels, European Trade Union Institute (ETUI), 2002) 73–77. M Leibel, ‘Do children have a right to work? Working children’s movements in the struggle for social justice’ in K Hanson and O Nieuwenhuys (eds), Reconceptualising Children’s Rights in

1

[1994] OJ L216. CETS No 035. Luxembourg, Office of Official Publications of the European Communities, 1990. Points 20–23 relate to the ‘Protection of children and adolescents’. 2 3

Part I – Commentary on the Articles of the EU Charter

International Development—Living Rights, Social Justice, Translations (Cambridge, Cambridge University Press, 2013) ch 11. C McGlynn, ‘Rights for Children: the potential impact of the European Union Charter of Fundamental Rights’ (2002) 8(3) European Public Law 387–400. R Rodriguez et al, Study on Child Labour and Protection of Young Workers in the European Union: Final Report (European Commission DG Employment, Social Affairs and Equal Opportunities, 2006). H Stalford, Children and the European Union: Rights, Welfare and Accountability (Oxford, Hart Publishing, 2012). W Vandenhole, ‘Children’s Rights in EU External Action: Beyond Charity and Protection, Beyond Instrumentalisation and Conditionality’ (2011) 19 International Journal of Children’s Rights 477–500.

A. Field of Application of Article 32 32.01 The primary objective of Article 32 is to curb potentially exploitative labour laws and practices involving children, and to protect the health and safety of young people who are lawfully employed. In that sense, Article 32 comfortably reflects the EU’s competence in the field of health and social policy (Art 153 TFEU). This strand of activity, which emerged in the 1980s,4 enables the EU to implement complementary measures with a view to improving workers’ health and safety (Art 153(1)(a) TFEU). This, in turn, is linked to the broader objectives of promoting employment, improving living and working conditions and enhancing social protection (Art 151 TFEU). This regulatory area was no doubt formulated with adult workers in mind, but its extension to child workers is hardly contentious.5 Indeed, the EU had already demonstrated a commitment to supporting national action aimed at protecting young workers some twenty years previously— long before any generalised international standards on child labour came into force, in fact.6 For instance, in 1967, the Commission adopted a Recommendation (on the basis of the original Articles 117, 118 and 155 EEC Treaty) urging Member States to adopt comprehensive national legislation to protect all under-18s at work regardless of the type of employment.7 It is this instrument that provides the blueprint for the main EU legislation on which Article 32 is based, insofar as it recommended: that the minimum age for work should be no less than 15 years; that children engaged in a family enterprise

4 Primarily as a result of the Single European Act 1986 which authorised the EU institutions to adopt measures to regulate labour safety in isolation from any internal market imperative. 5 M Hartwig, ‘The Elimination of Child Labour and the EU’ in G Nesi, L Nogler and M Pertile (eds), Child labour in a globalised world—A legal analysis of ILO action (Aldershot, Ashgate, 2008) ch 12, p 246. 6 International intervention was formerly restricted to industry-specific instruments on minimum age, notably the Minimum Age (Industry) Convention 1919, the Minimum Age (Sea) Convention 1920, the Minimum Age (Agriculture) Convention 1921, the Minimum Age (Trimmers and Stokers) Convention 1921, the Minimum Age (Non-Industrial Employment) Convention 1932, the Minimum Age (Sea) Convention (Revised) 1936, the Minimum Age (Industry) Convention (Revised) 1937, the Minimum Age (NonIndustrial Employment) Convention (Revised) 1937, the Minimum Age (Fishermen) Convention 1959 and the Minimum Age (Underground Work) Convention 1965. The content and scope of the later, more general minimum age and child labour ILO conventions are discussed in section C.III. 7 Commission Recommendation of 31 January 1967 to the Member States on the protection of young workers [1967] OJ 25/405–408.

870

Helen Stalford

Art 32 – Prohibition of Child Labour

should be no less than 12 years; that night work should be prohibited for children; that there be no expectation to work for more than four and a half hours maximum without a break; and that the maximum working time should be no more than eight hours per day and no more than 40 hours per week for all children under the age of 18. It took some 25 years before the Recommendation was transposed into more sturdy 32.02 legislative form by virtue of Directive 94/33 (hereafter the Young Workers Directive).8 The content of this Directive largely replicates that of the preceding Recommendation, but it is more reflective of the intervening International instruments aimed at prohibiting child labour.9 The second key area of EU competence to which Article 32 is explicitly linked is in 32.03 the field of education, vocational training and youth (Art 165 TFEU). While the activities identified in Article 165 TFEU are now confined largely to formal education and vocational training schemes, they were originally very explicitly integrated into the EU’s broader mandate in the field of social policy and youth,10 with a view to addressing, in a more holistic sense, some of the perceived injurious consequences that differential employment regulatory practices and conditions would have, not only on competition in the internal market, but also on the health, well-being and opportunities of workers. Indeed, it was on the basis of the former Article 118a EC that the Young Workers Directive was enacted, thereby cementing the correlation between employment access and educational opportunity. The presumption underpinning both the Directive and Article 32 of the Charter—that the employment of children adversely affects their educational progression—is further reinforced by the 1989 Community Charter of the Fundamental Social Rights of Workers, which explicitly declares that ‘the minimum employment age must not be lower than the minimum school-leaving age and, in any case, not lower than 15 years.’ The third area with which Article 32 resonates relates to EU measures in an external 32.04 relations context. The issue of child labour has featured prominently in the EU’s dealings with non-Member States as part of a more comprehensive strategy to mainstream children’s rights into its external activities.11 EU legislative intervention in the field of child labour is manifested in the EU’s broader Trade Policy and Good Governance Agreements, most notably in its Generalised System of Preferences (GSP+) Schemes. Established in the early 1970s and significantly developed in the 1990s, the GSP imposes reduced tariffs on developing countries’ goods entering the EU market with a view to facilitating international trade and, ultimately, supporting economic growth in economically deprived regions.12 Adherence to international child labour standards

8

Council Directive 94/33/EC on the protection of young people at work [1994] OJ L216/12–20. Discussed in section D. 10 Former Art 118a EC—Social Policy, Education, Vocational Training and Youth. 11 See for example, the Commission Communication ‘A Special Place for Children in EU External Action’, its accompanying Staff Working Paper on ‘Children in Emergency and Crisis Situations’ (2008), and its ‘EU Action Plan on Children’s Rights in External Action’ (COM (2008) 55 final); the EU Guidelines on Children and Armed Conflicts (2003, updated 2008) available at: http://eeas.europa.eu/human_rights/ child/ac/index_en.htm; the Council Conclusions on Children in Development and Humanitarian Settings (Brussels, 26 and 27 May 2008) available at www.eu2008.si/en/News_and_Documents/Council_Conclusions/ May/0526_GAERC-pravice_otrok.pdf; and the Council Conclusions on Child Labour (Luxembourg, 14 June 2010) available at www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/foraff/115180.pdf. 12 Council Regulation 3281/94 of 19 December 1994. 9

Helen Stalford

871

Part I – Commentary on the Articles of the EU Charter

(specifically those of the ILO) is a key prerequisite for countries that wish to benefit from the tariff reductions, and is accompanied by an undertaking that they will engage in regular monitoring and review of domestic labour laws and processes affecting children.13 32.05 In the absence of any competence to introduce harmonising measures aimed explicitly at the elimination of child labour, the EU has deployed a range of other budgetary, political and soft law mechanisms to encourage compliance, both internally and externally, with the global campaign against child labour. To strengthen and legitimise its efforts in this regard, the EU has consolidated its alliance with the ILO by entering into a Strategic Partnership Agreement in the field of development, which adopts the prevention of child labour as a core priority.14 As a result, the EU has invested significant funding in supporting ILO-coordinated intervention, educational reintegration, capacity-building and awareness-raising programmes targeting children.15 The Parliament and Commission have issued guidelines for Member States and international commercial operators, urging them to adhere closely to international child labour conventions in the development of their internal labour laws and in their individual commercial dealings with developing countries.16 The EU has extended its efforts in this regard to more targeted, grass-roots educational and social inclusion initiatives, by supporting NGO-driven campaigns and sector-specific research and training,17 and by integrating minimum labour and educational standards into its accession negotiations with candidate states.18 32.06 More generally, Article 32 manifests the EU’s emergent preoccupation with upholding and promoting children’s rights, a preoccupation that has been constitutionally endorsed by the Treaty of Lisbon in 2009 and galvanised by the Commission’s seminal Agenda for the Rights of the Child in 2011.19 The Treaty of Lisbon has provided the catalyst for a number of structural, procedural, institutional and legal amendments that have significantly enhanced the prominence and status of children’s rights at EU level.

13 Regulation 978/2012 applying a scheme of generalised tariff preferences and repealing Council Regulation 732/2008. For further detail on the child-labour-related measures inherent in the EU’s external trade policies and in its bilateral cooperation agreements with individual states, see H Cullen The Role of International Law in the Elimination of Child Labour (Leiden, Martinus Nijhoff Publishers, 2007); and Hartwig, above n 5; and for a more focused review of the children’s rights conditionality implicit in the EU’s external relations, see W Vandenhole, ‘Children’s Rights in EU External Action: Beyond Charity and Protection, Beyond Instrumentalisation and Conditionality’ (2011) 19 International Journal of Children’s Rights 488–91. 14 Brussels, 16 July 2004, www.ilo.org/wcmsp5/groups/public/---europe/---ro-geneva/---ilo-brussels/ documents/genericdocument/wcms_169299.pdf. 15 See further Hartwig, above n 5, 254–56. 16 See eg, Commission Recommendation of 15 September 2000 on the ratification of International Labour Organisation (ILO) Convention No 182 of 17 June 1999 concerning the prohibition and immediate action for the elimination of the worst forms of child labour [2000] OJ L243/41; Resolution of the European Parliament of 5 July 2005 [2006] OJ, C157 E/85 point 2; European Parliament Resolution on child labour in the production of sports equipment June 13, 2002; and European Parliament resolution of 14 March 2012 on child labour in cocoa sector, 2011/2957(RSP). 17 ‘Investing in People’ is just one thematic programme that supports initiatives in developing countries aimed at combating child labour and promoting children’s education. It explicitly corresponds with the achievement of the UN Millennium Development Goals. See further Regulation (EC) No 1905/2006 of the European Parliament and of the Council of 18 December 2006 establishing a financing instrument for development cooperation [2006] OJ L378. 18 All of these measures are detailed in Commission Staff Working Document Combating Child Labour, SEC (2010) 37 final. 19 COM (2011) 60 final.

872

Helen Stalford

Art 32 – Prohibition of Child Labour

First, ‘Protection of the rights of the child’ was introduced within the list of general stated objectives of the European Union (Art 3(3) TEU), a priority that is linked explicitly with the EU’s external relations agenda (Art 3(5) TEU). Perhaps more persuasive, however, are new legal bases incorporated into the TFEU which have supported more concrete EU legislative intervention in areas that fall within the scope of Article 32 of the Charter. Provisions relating to combating sexual exploitation (Art 79(2)(d) TFEU) and human trafficking (Art 83(1) TFEU), coupled with streamlining of the EU’s institutional and legislative structure,20 have stimulated a stream of secondary legislation that endorse a holistic, comprehensive approach to identifying and assisting victims of crimes associated with child labour, and to holding their perpetrators to account.21 Notwithstanding its preoccupation with protecting children from abuse associated 32.07 with harmful labour practices, Article 32 could also be seen as intersecting with the EU’s equality-driven approach to labour market regulation. EU employment equality law, like most EU equality measures, finds its origins in the EU internal market framework which was concerned primarily with lubricating mobility between the Member States by ensuring equality of access to and treatment within employment for migrant workers (Arts 5(2), 9 and 45–48 TFEU). These measures have, again, been targeted largely (although not explicitly) at adult workers, but there is nothing explicitly excluding children of working age from their protective scope. The two main legislative provisions in this regard are Directive 2004/3822 and Regulation 492/2011.23 Both grant all nationals of a Member State the right to move to other Member States for the purpose of work, and grant equality of treatment with regard to access to and conditions of employment (without any exceptions on the basis of age).24 Equality of treatment in employment in another Member State, however, must be ‘in accordance with the provisions laid down by law, regulation or administrative action governing the employment of nationals of that State’.25 This, by implication, includes any limitations regarding minimum working age and health and safety measures aimed at protecting young workers. In turn, measures to protect the rights of workers in a migration context should be read in conjunction with the broader corpus of EU equality law, much of which is directed

20 Detailed further in H Stalford and M Schuurman, ‘Are we there yet?: The Impact of the Lisbon Treaty on the EU Children’s Rights Agenda’ [2011] 19(3) International Journal of Children’s Rights, Special Issue, 7–29; and in H Stalford, Children and the European Union: Rights, Welfare and Accountability (Oxford, Hart Publishing, 2012) ch 7. 21 Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims [2011] OJ L101/1 and replacing Council Framework Decision 2002/629/JHA; Directive 2011/92/EU on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA [2011] OJ L335/1; and Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA [2012] OJ L315/57. These measures complement those already introduced in the context of the EU’s competence to develop harmonised procedural and administrative measures in the field of immigration and asylum, notably Directive 2004/81/EC on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities [2004] OJ L261/19. 22 Directive 2004/38/EC of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77, specifically Art 23. 23 Regulation 492/2011 on freedom of movement for workers within the Union [2011] OJ L141/1. 24 See in particular para 31 of the preamble of Directive 2004/38, which requires that Member States implement the Directive without discrimination on grounds of inter alia age. 25 Regulation 492/2011 Art 1.

Helen Stalford

873

Part I – Commentary on the Articles of the EU Charter

at ensuring equality of treatment in the context of labour. Notably, the Employment Equality Directive26 prohibits any direct or indirect discrimination based on religion or belief, disability, age or sexual orientation in the context of employment activities27 unless a characteristic relating to one of these grounds constitutes a genuine and determining occupational requirement, when the objective is legitimate and the requirement is proportionate.28 More specifically, for the purposes of Article 32 of the Charter, the Directive enables Member States to derogate from the principle of non-discrimination on grounds of age, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary. Such differences of treatment may include the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions for young people in order to promote their vocational integration or ensure their protection.29

B. Interrelationship of Article 32 with Other Provisions of the Charter 32.08 The prohibition of child labour and the minimum age of employment established by Article 32 are reinforced by a number of other Charter provisions and, most obviously, the ‘Dignity’ provisions of the Charter. The right to integrity of person (Art 3) correlates with the insistence in the second paragraph of Article 32 on minimum health and safety standards for young workers. Article 32’s focus on prohibiting child labour also chimes with the prohibition of torture or inhuman or degrading treatment or punishment enshrined in Article 4. The parallel provision in Article 3 ECHR has been strictly interpreted to capture only the most severe of abuses, in which the public authorities either actively contributed to the treatment (through the implementation of particular laws, policies or practices), or failed to take appropriate steps to prevent such treatment occurring (for example as a result of ineffective or unresponsive child protection procedures). In that sense, although there is little ECHR case law to support this,30 Article 4 of the Charter could conceivably be used to sanction state violations of their commitment to eliminating child labour. Existing ECHR case law suggests that such instances would more likely fall within Article 4 of the ECHR, which prohibits slavery or forced

26 Directive 2000/78 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16. 27 Para 12, preamble. 28 Para 23, preamble. 29 Art 6. See below section D.V for further discussion of the potential of this instrument to be interpreted to enhance child workers’ rights more constructively. 30 The case of M and Others v Italy and Bulgaria App no 40020/03 (31 July 2012) offers an isolated exception. The applicants, of Roma origin and Bulgarian nationality, complained that, having arrived in Italy to find work, their daughter was detained by private individuals at gunpoint, was forced to work and steal, and sexually abused at the hands of a Roma family. They successfully argued that the Italian authorities’ failure to investigate the events adequately constituted a breach of Art 3 ECHR.

874

Helen Stalford

Art 32 – Prohibition of Child Labour

labour. The corresponding Charter provision in this regard is Article 5(1) and (3).31 This differs from Article 32, however, insofar as Article 32 prohibits child employment even in the absence of coercion or exploitation, on the presumption that it is inherently damaging to children’s education and welfare. Article 5 corresponds much more directly with coercive arrangements, but captures many of the contexts in which child labour is perpetuated, notably human smuggling, foreign domestic work arrangements, trafficking and prostitution.32 A further, more age-sensitive Charter provision with which Article 32 corresponds is the right to education enshrined in Article 14, insofar as the minimum age of employment is calibrated by reference to the minimum school-leaving age. In that sense, the effective application of Article 32 and its associated legislation is instrumental to the enjoyment of the right to education enshrined in Article 14.33 Article 32 can also be regarded as an adaptation of Article 31 (relating to fair and just working conditions) to accommodate the specific interests and vulnerabilities of child workers. Interestingly, however, while Article 32 offers protection against economic exploitation, it does not go as far as guaranteeing children a right to a minimum wage or other pay-related benefits now routinely available to adult workers and endorsed by Article 31. Thus, the presumption is that lawfully employed child workers could rely on Article 31, in conjunction with the general employment equality legislation referred to above, to enforce their entitlement in this regard. More generally, Article 32 is linked to but not explicitly underpinned by the normative principles set out in Article 24, the ‘rights of the child’ provision. The protectionist stance of Article 32 provides a more specific context in which to articulate the broad child welfare statements set out in Article 24, specifically: that children shall have the right to such protection and care as is necessary for their well-being (Art 24(1)); and that in all actions relating to children, whether taken by public authorities or private institutions, children’s best interests must be a primary consideration (Art 24(2)). Conversely, certain provisions of the Charter may be construed as being in conflict with Article 32. First, the blanket prohibition of all ‘children’ from employment (subject to limited exceptions) presents a challenge to the notion of children’s autonomy which sits alongside the best interests principle in Article 24(1). This provides that children ‘may express their views freely and requires that such views shall be taken into consideration on matters which concern them in accordance with their age and maturity’. This reflects axiomatic international children’s rights norms (specifically Art 12 CRC) and, in turn, responds to the accepted wisdom that children should have a direct say in any decisions affecting their lives. Moreover, it reinforces the view that children’s competence should be determined not by crude reference to their age, but in the light of a more nuanced, individualised appreciation of their capacity and understanding of the

31

Art 5 of the Charter also explicitly extends to a prohibition of trafficking. For examples of successful claims under Art 4 ECHR involving the forced labour of children and young people, see Siliadin v France App no 73316/01 (26 July 2005); Elisabeth Kawogo v United Kingdom App no 56921/09 (3 September 2013); CN v United Kingdom App no 4239/08 (ECtHR 374, 2012); and Rantsev v Cyprus and Russia App no 25965/04 (7 January 2010). 33 The implications of the synergy between these two areas are considered in section D. 32

Helen Stalford

875

32.09

32.10

32.11

32.12

Part I – Commentary on the Articles of the EU Charter

issues at stake.34 Article 24, when read in conjunction with Article 32 and its underpinning framework, therefore presents something of a dilemma in relation to children who actively pursue work, paid or otherwise, as a fundamental expression of their financial and social autonomy or cultural identity. Indeed, this dilemma is reinforced by other provisions of the Charter, notably, Article 15 (freedom to choose an occupation and to engage in work) and Article 21 (the prohibition of discrimination on grounds of age). 32.13 A further Charter provision that presents a challenge to Article 32 is Article 7 regarding the right to protection of private and family life. This is particularly relevant to children’s engagement in paid work organised by family members (including family catering, farming or entertainment activities such as busking or itinerant circus activities); or, indeed, in unpaid domestic work (including care-related, cleaning, gardening or other menial duties). While certain exemptions are permitted by the Charter and its related legislation to accommodate such arrangements, closer scrutiny of the national legislative framework and reports on implementation suggest significant uncertainty as to how to negotiate the boundaries between preserving the privacy and sanctity of family relationships and protecting children from exploitative or harmful working conditions.35

C. Sources of Article 32 Rights I. UN Treaties 32.14 Although it is not referred to in the explanatory text, the most direct source of the rights and obligations contained in Article 32 is the UN Convention on the Rights of the Child 1989 (CRC) which states that: 1. States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development. 2. States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular: (a) Provide for a minimum age or minimum ages for admission to employment; (b) Provide for appropriate regulation of the hours and conditions of employment; (c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article.

34 See UN Committee on the Rights of the Child’s General Comment No 12, ‘The Right of the Child to be Heard’ [2009] CRC/C/GC/12; L Lundy, ‘“Voice is Not Enough”: Conceptualising Article 12 of the United Nations Convention on the Rights of the Child’ (2007) 33 British Education Research Journal 927, 934; and for a review of different approaches to child participation in a range of contexts, see B Percy-Smith and N Thomas (eds), A Handbook of Children and Young People’s Participation: Perspectives from Theory and Practice (London, Routledge, 2009). 35 The discussion will return to these issues in section D.

876

Helen Stalford

Art 32 – Prohibition of Child Labour

The first part of Article 32 of the Charter adheres to the CRCs requirement that a 32.15 minimum age for admission to employment should be maintained. The second part of Article 32 largely replicates Article 32(1) CRC. The only difference is that the CRC requires that the child is protected from ‘hazardous working conditions’ and that his or her ‘spiritual’ development should also be protected. The reason behind the exclusion of these two references from the Charter is unclear, but McGlynn has attributed it to the fact that the protection from ‘hazardous’ conditions is implicit in the Charter’s obligation to promote the ‘safety, health and physical development of the child’, Similarly, the CRC’s concern to uphold the ‘spiritual development’ may have been regarded as a religiously loaded notion that could be more sensitively integrated within the Charter’s rather more secularised commitment to promoting the child’s ‘moral or social development’.36

II. Council of Europe Treaties The explanatory text accompanying Article 32 refers to Article 7 of the European Social 32.16 Charter (the right of children and young persons to protection), which was adopted in 1961 and revised in 1996.37 It acts as a natural complement to the ECHR insofar as it focuses on social and economic rights (as opposed to the civil and political rights that dominate the latter instrument). Most significantly, it is the main European treaty to acknowledge the content and scope of children’s rights, particularly in the context of education and employment. Article 7 echoes the provisions enshrined in Article 32 CRC and in the Young Workers Directive in that it provides that, inter alia, the minimum age of admission to employment shall be 15 years, subject to exceptions relating to ‘light work’; that persons who are still engaged in compulsory education shall not be employed in such work as would deprive them of the full benefit of their education; that the working hours of persons under 16 years of age shall be limited in accordance with the needs of their development, and particularly with their need for vocational training; that persons under 18 years of age shall not be employed in night work with the exception of certain occupations provided for by national laws or regulations; and that special protection be put in place to guard against physical and moral dangers to which children and young persons may be exposed in the workplace. Importantly, however, Article 7 extends the provision available to children and young people beyond the merely protective provision set out in Article 32 of the Charter, to incorporate the right to a fair wage or other appropriate allowances and to not less than three weeks’ paid annual holiday.

36 C McGlynn, ‘Rights for Children: the potential impact of the European Union Charter of Fundamental Rights’ (2002) 8(3) European Public Law 387–400, 399. 37 All 27 Member States of the EU ratified the original version of the Charter but, as of March 2013, eight Member States had yet to fully ratify the revised 1996 version (Czech Republic, Denmark, Germany, Greece, Luxembourg, Poland, Spain and the UK).

Helen Stalford

877

Part I – Commentary on the Articles of the EU Charter

III. Other Sources 32.17 Article 32 is most explicitly derived from Directive 94/33/EC on the protection of young people at work,38 the main objectives of which are two-fold: first and foremost, to prohibit the employment of children below the compulsory school age; and second, to impose conditions on the employment of children lawfully engaged with a view to protecting their health, welfare and educational progression.39 32.18 While the explanatory text accompanying Article 32 makes no direct reference to instruments governing unlawful aspects of ‘child labour’ that fall within its scope, the other international treaties with which Article 32 is indirectly associated (not least due to their close association with the Young Workers Directive) emanate from the International Labour Organisation. First, the ILO Minimum Age Convention No 138 (1973)40 sets the general minimum age for admission to employment or work at 15 years (13 for light work) and the minimum age for hazardous work at 18 (16 under certain strict conditions). It provides for the possibility of initially setting the general minimum age at 14 (12 for light work) where the economy and educational facilities are insufficiently developed. It is worth noting that this derogation is not available under the Young Workers Directive, presumably because of the relative stability and predictability of the economic and social regimes across the Member States.41 However, recent research highlighting the acute impact of the global economic crisis on children across the EU calls into question this presumption.42 32.19 The second ILO Convention of relevance is Convention No 182 (1999) on the Worst Forms of Child Labour.43 This requires ratifying states to eliminate the worst forms of child labour in all its guises, including: slavery, child trafficking, debt bondage and serfdom and forced or compulsory labour, the recruitment of children into armed conflict, child prostitution, pornography and drug trafficking; and any other work which is likely to harm the health, safety or morals of children. The Convention requires ratifying states to provide appropriate, direct assistance to facilitate the removal of children from such situations, and to support their rehabilitation and social integration. It also requires states to provide such children with access to free basic education and, if possible and appropriate, vocational training. 32.20 A final ILO instrument that informs interpretations of Article 32 of the Charter is the ILO Declaration of Fundamental Principles and Rights at Work 1998. This represents a collective commitment, on the part of governments, employers’ and workers’ organisations, to uphold basic human values in the workplace, regardless of whether or not they are subjects of the other relevant ILO Conventions. The effective abolition of child labour is one of the four fundamental principles around which this Declaration is framed and it manifests the same core features that are shared by the other instruments

38

Above n 1. A more detailed, critical review of these provisions in the context of Art 32 is presented in section D. 40 Ratified by all 27 Member States of the EU. 41 Hartwig, above n 5, p 218. 42 Innocenti Research Centre, The impact of the economic crisis on children: lessons from the past experiences and future policies (Florence, ChildONEurope, June 2011); S Ruxton, How the economic and financial crisis is affecting children and young people in Europe (Brussels, Eurochild, December 2012). 43 Ratified by all 27 Member States of the EU. 39

878

Helen Stalford

Art 32 – Prohibition of Child Labour

underpinning Article 32: that the minimum age for employment should correspond with the minimum age for completion of compulsory schooling; that certain exceptions may be made to accommodate particular types of work or to respond to less developed economic and educational facilities within the state; and that the health and welfare of children should be a paramount consideration in determining employment conditions or in granting any exemptions to the general prohibition of child work.

D. Analysis I. General Remarks Article 32 is, at first glance, a relatively uncontroversial provision insofar as it articu- 32.21 lates the obligations already imposed by EU legislation and international law. The Commission has noted that Member States are, for the most part, already deemed to be compliant with the requirements set out in Directive 94/33 with regard to the employment conditions of under-18s, with several Member States going above and beyond their EU obligations.44 Moreover, it reinforces the standards and prohibitions articulated by the ILO as far as the employment of younger children is involved, and re-emphasises the negative correlation between children’s employment and poor educational attainment. However, closer scrutiny of Article 32 raises more fundamental questions regarding, first of all, the way in which ‘employment’ on the one hand and ‘education’ on the other are conceptualised, and, how the balance between these two social rights is defined by reference to age. Linked to this are questions regarding the particular approach to children’s ‘rights’ favoured by the provision and, indeed, by EU law more broadly. Additionally, further interrogation is required as to whether Article 32 goes far enough in imposing positive obligations on states to eliminate exploitative child labour practices. These key issues will be considered in the analysis below.

II. Scope of Application The personal scope of Article 32 is, in one sense, straightforward: it refers to ‘children’ 32.22 and ‘young people’ under the age of 18. The distinction made between younger and older children deviates from the universal CRC definition of ‘child’ to cover all under-18s, but largely reflects Directive 94/33, which presents a more nuanced list of sub-sets to which differential employment rights/conditions are ascribed according to their age and

44 Some ‘minor deficiencies’ have been observed in relation to Belgium, Italy and Bulgaria, where undeclared, informal work (generally implying the absence of an employment contract) accounts for up to 60 per cent of children’s working arrangements. Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions on the application of Directive 94/33/EC on the protection of young people at work and Annexes, COM (2004) 105. See also Commission Staff Working Document on the Application of Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work (SEC (2010) 1339), Brussels, 27 October 2010, which reflects the position in the Member States that joined the EU in 2004 and 2007, pp 16–18.

Helen Stalford

879

Part I – Commentary on the Articles of the EU Charter

education. The Directive adopts ‘Young People’ as an alternative umbrella term for all under-18s (Art 3(a)). ‘Child’, for the purposes of the Directive, on the other hand, refers specifically to a young person ‘of less than 15 years of age who is still subject to compulsory full-time schooling under national law’ (Art 3(b)); while ‘adolescent’ denotes any young person between the age of 15 and 18 who is no longer subject to compulsory schooling (Art 3(c)). 32.23 This represents a prime example of the shifting definition of ‘child’ and, indeed, of ‘young person’ under EU law more generally. In other areas of EU provision, such as the Commission’s Youth Strategy, the term ‘young person’ covers teenagers and young adults who fall within the 13–30 age-bracket.45 What constitutes a ‘child’ for the purposes of EU law shifts again in the context of free movement law, to include the direct descendants of EU citizens’ and/or their partners who are under the age of 21 or who are dependants (the latter implying a biological or functional definition, rather than an age-related definition).46 At the other extreme, in aspects of immigration and asylum law, the definition of ‘child’ is significantly narrower with a view to limiting optimum family reunification rights to under-12s.47 Such variable interpretations of ‘child’ and ‘young person’ under EU law, which are perpetuated by Article 32, invoke a mixed response. On the one hand, it should be credited with acknowledging the importance of attuning rights in accordance with the heterogeneous needs and capacities of different groups of children. On the other hand, however, it undermines efforts that have been made in more recent years to adopt a more coordinated response to children’s rights in an EU Context in a manner that is firmly grounded in a global framework of children’s rights (the CRC) and which adopts as its starting point, the CRC definition of ‘child’ with a view to endorsing a minimum level of protection to all children, regardless of age.48 Article 32 supports the Young Workers’ Directive approach to tiering children’s rights on the basis of age. Whilst not refuting the importance of protecting children’s right to education, health and welfare over and above the right to work, this crude articulation of rights on grounds of age sits uncomfortably with an established body of children’s rights and sociology of childhood research, theory and, indeed, jurisprudence, that advocates a more capacity-based approach to defining rights, in the light of a range of contextual and individual factors.49 When considered in the context of

45 Communication from the Commission to the Council, the European Parliament, the European Economic And Social Committee and the Committee of the Regions, ‘An EU Strategy for Youth—Investing and Empowering A renewed open method of coordination to address youth challenges and opportunities’, COM (2009) 200 final. 46 Art 2(2)(c) Directive 2004/38, above n 22. For more in-depth discussion, see Stalford, above n 20, ch 1; and C McGlynn, Families and the European Union: Law, Politics and Pluralism (Cambridge, Cambridge University Press, 2006) 72. 47 Directive 2003/86 on the right to family reunification [2003] OJ L 251/12, Art 4(1). See further E Drywood, ‘Challenging Concepts of the “Child” in Asylum and Immigration Law: The Example of the EU’ (2010) 32 Journal of Social Welfare and Family Law 309. 48 See EU Agenda on the Rights of the Child which is expliclty grounded in the ‘standards and principles of the UNCRC’, above n 19, p 3. 49 There is an extensive literature in this regard, but key reference work includes M Freeman, The Rights and Wrongs of Children (London, Frances Pinter, 1983); J Eekelaar ‘The Emergence of children’s rights’ (1986) 6 Oxford Journal of Legal Studies, 161; A James and A Prout (eds), Constructing and Reconstructing Childhood (Basingstoke, Falmer Press, 1990); G Lansdown, The Evolving Capacities of the Child (Florence, UNICEF Innocenti Research Centre, 2005); and J Fortin, Children’s Rights and the Developing Law, 3rd edn (Cambridge, Cambridge University Press, 2009).

880

Helen Stalford

Art 32 – Prohibition of Child Labour

child labour, this body of knowledge challenges the wisdom of a blanket ban on work purely on grounds of age, and informs us that a capacity-based approach engenders a greater appreciation of children’s ability (even at a relatively tender age) to undertake work in a manner that does not unduly affect their education but positively enhances their sense of self-sufficiency and aids their social and personal development. Equally, it enables us to appreciate and accommodate more effectively the vulnerabilities of young people who may lawfully qualify for employment under EU law but whose mental, emotional or physical disabilities expose them to more acute hazards that warrant protective intervention. The title of Article 32, ‘Prohibition of child labour and protection of young people 32.24 at work’, is indicative of its potentially far-reaching material scope. Whilst it is loyal to the original objectives of EU intervention in child employment—to set minimum standards for the working conditions of young people within an internal context—it also supports the EU’s increasingly persuasive role in the global struggle against child labour.50 This raises immediate questions, however, as to whether the generalised prohibitions and requirements contained in the provision can adequately address what is, in reality, a complex and broad spectrum of scenarios ranging from relatively innocuous babysitting arrangements, newspaper delivery, and domestic chores undertaken within the confines of a supportive and enriching family and community environment, to the social, emotional and financial dereliction associated with organised trafficking, slavery and sweat-shop labour. For instance, the opening statement of Article 32 introduces a negative obligation 32.25 to prohibit the employment of children younger than the compulsory school-leaving age and is based on the underlying assumption that employment, by its very nature, adversely affects children’s educational attendance and progression. The evidence to support this is highly persuasive, not only in a development context, but across the EU Member States too. For example, the European Parliament, quoting ILO data, estimated in 2005 that 171 million children work in places which are hazardous for their physical and mental health, 5.7 million have become slaves to pay family debts, 1.8 million are exploited by prostitution and pornography rackets, 1.2 million have fallen victim to trafficking or have been press-ganged into sexual exploitation, forced labour or work, 600,000 are involved in other illegal activities, while at least 300,000 children have been forcibly recruited into armed forces around the world.51 However, a blanket prohibition on child employment is open to more robust challenge in the context of informal, occasional working arrangements enjoyed, and often orchestrated by many children and their families as an integral part of their personal and familial development. Can and should the protectionist veil of Article 32 be used to constrain the activities of a 14-year-old girl engaged as a baby-sitter at the weekends, of a 13-year-old boy who takes on a newspaper delivery round or sets up a neighbourhood car-washing enterprise, of a 10-year-old rural dweller who assists her father during the lambing season, albeit at unsociable hours, or of an eight-year-old girl who assists with glass-washing duties

50 A Jacobs, ‘Prohibition of child labour and protection of young people at work (Article 32)’ in B Bercusson (ed), European Labour Law and the EU Charter of Fundamental Rights (Brussels, European Trade Union Institute (ETUI), 2002) 76–77. 51 European Parliament Report on the exploitation of children in developing countries, with a special focus on child labour (2005/2004(INI)) p 14.

Helen Stalford

881

Part I – Commentary on the Articles of the EU Charter

in the family’s catering business instead of attending the local after-school club? Such activities clearly sit at the hazy intersection between work and enriching family life, between work and leisure, between work and social integration, or between work and self-expression, and yet they are susceptible to heavy-handed regulatory intervention, supported by the full weight of Article 32. 32.26 In addition to the negative obligation to prohibit child employment, Article 32 also imposes positive obligations on Member States. These are largely confined to the implementation of health and safety measures for children who can lawfully be employed and include putting in place ‘working conditions appropriate to their age’ as well as any measures aimed at protecting young people against economic exploitation, at safeguarding their health or physical, mental, moral or social development, or at preventing any harmful interference with their education. This exclusively protectionist agenda has supported the exclusion of children from the workplace, rather than sought to positively enhance work-based rights. Cullen refers to this tension in the specific context of the Young Workers Directive, pointing to the irony of an instrument which seeks, on the one hand, to eliminate the possibility of children becoming workers whilst simultaneously representing one of the few examples of EU legislation that grants children rights independently of their family situation. Indeed, she suggests that such a position potentially brings the youth employment legislation in conflict with other aspects of EU law, stating ‘It is difficult to be certain, in the absence of a specific fact situation, how the ECJ would resolve a claim which was based on the alleged conflict between the Young Workers Directive and ... EU non-discrimination provisions that have now been extended to grounds of age.’ 52 32.27 A broader, more empowering interpretation of Article 32, drawing more liberally on the European Social Charter, would significantly extend the scope of such positive obligations beyond health and safety measures, towards the development of more constructive and empowering standards relating to children’s wages, minimum holiday entitlement, child-sensitive complaints mechanisms, progression entitlement, and rights of association. Such rights are theoretically available through the panoply of EU employment equality provision, but a prevailing preoccupation with paternalist notions of protection and employment exclusion are preventing children from exploiting it to its full potential. The irony, therefore, is that in seeking to protect children, EU child labour laws are obstructing their access to the very mechanisms that would enhance their employment rights and experiences. 53 32.28 A more generous interpretation of states’ positive obligations under Article 32, beyond the comfortable confines of the Young Workers Directive health and safety measures, could also support the development of more constructive programmes of assistance aimed at removing, rehabilitating and socially reintegrating child victims of forced labour (as required by ILO Convention No 182). Such an interpretation of Article 32 could also add significant weight to the more victim-centred, rehabilitative tone of the growing corpus of EU legislation in the field of trafficking and sexual exploitation.54

52 H Cullen, ‘Children’s Rights’ in S Peers and A Ward (eds), The EU Charter of Fundamental Rights: Politics, Law and Policy (Oxford, Hart Publishing, 2004) 323–46, 329. 53 But see below section D.V which identifies how non-discrimination jurisprudence might be applied more constructively to young workers. 54 Above n 21.

882

Helen Stalford

Art 32 – Prohibition of Child Labour

III. Specific Provisions Three specific notions underpin the application of Article 32: the interrelationship 32.29 between education and employment; the notion of economic exploitation; and the protection of the child. Implicit in these notions is the importance of addressing child labour in the context of the wider web of economic and social factors that both contribute to and are symptomatic of this phenomenon. There is now widespread acknowledgement of the negative correlation between 32.30 working and early school leaving. Equally, it is universally accepted that failure to attain a minimum level of education has a detrimental effect on a child’s future opportunities and economic stability. As the European Parliament notes: ‘It is a fact that poverty, lack of education and child labour form a vicious circle. Where the levels of poverty are high, children are required to work from an early age, and thus stay away from school, while their lack of education makes them more susceptible to exploitation and deprives them of a better future.’55 The pervasive and long-term effects of this vicious cycle prompted the UN to place eradication of poverty and compulsory and free basic education for all at the top of its agenda when establishing the Millennium Development Goals. The same priorities pervade the EU’s broader social inclusion agenda,56 on the accepted wisdom that the upward development and sustainability of the EU market economy requires aggressive intervention to address poverty when it takes root in childhood. As part of this campaign, the EU has invested more than a decade of research, monitoring and evaluation into identifying the determinants of child poverty, testing out different policy interventions and supporting mutually agreed targets for and cooperation between the Member States.57 Whilst not undermining the importance of situating the campaign against child 32.31 labour within this wider economic context, we need to be cautious about drawing over-generalised conclusions from this typology, since an overly ‘fatalistic’58 approach in this regard can carry some negative consequences already alluded to earlier in this chapter. First, it legitimises an exclusively paternalistic response to child labour, thereby overlooking the more empowering potential of many forms of child employment; and second, it overlooks other means of addressing the disenfranchisement of children in employment. Indeed, an international ‘working children’s movement’ has been actively campaigning since the 1990s for a radical review of the International and European regulatory framework in this regard. This campaign has drawn attention to the paradox inherent in a supposedly ‘rights-based’ approach to child labour without due regard to children’s views, choices, and individual circumstances. Simply expelling children from the labour market (and in the process stripping them of any autonomous capacity to develop important practical skills or to make a tangible contribution to their family’s income), without adequate economic, social and educational provision in its place, has served to significantly exacerbate the position of many children, particularly in the

55

Above n 51, p 16. Communication from the European Commission, Europe 2020: A Strategy for Smart, Sustainable and Inclusive Growth, COM (2010) 2020, 3 March 2010, Brussels. 57 See most recently, Commission Recommendation of 20.2.2013 ‘Investing in children: breaking the cycle of disadvantage’, COM (2013) 778 final. 58 J Seabrook, Children of Other Worlds—Exploitation in the Global Market (London, Pluto Press, 2001) v. 56

Helen Stalford

883

Part I – Commentary on the Articles of the EU Charter

developing world. Manfred Liebel is heavily critical of the unequivocally paternalistic nature of this approach: These negative effects are on account of laws and measures intended to protect children from exploitation that regard child labour as harmful and fail to take the reasons motivating children to take up work into account. The belief is that, children being unfit to work, there is no need to try to understand children’s views and feelings. The children are seen as victims and objects in need of help, not as subjects with thoughts about their situation and ideas about how to solve their problems that they wish to articulate.59

32.32 This observation prompts some interrogation of the notion of ‘economic exploitation’ as a primary reference point for regulating child employment (Art 32, para 2 Charter; and Art 1(3) Young Workers Directive). In reality, the nature of children’s employment contracts varies significantly across the Member States in terms of salary levels, permanency, levels of supervision and training. Some fall quite neatly into the vocational training category, but may be regarded as exploitative insofar as they are unpaid.60 In other words, the boundary between exploitative practices, on the one hand, and ‘reduced pay for unskilled work’ or an unpaid training scheme with a vocational purpose on the other, remains very vague indeed. Certainly the notion of equal pay for work of equal value has yet to reach beyond the adult gender equality debate to inform decisions around the equitable remuneration of children and young people. 32.33 A more constructive approach to children’s employment—which achieves not only minimum standards in the physical conditions of the work environment, but which promotes equitable pay and progression, and which is open to more innovative combinations of paid work and educational or vocational training—would go some way towards enhancing the value of young people’s work.61 Embracing children’s status as workers in their own right would not only enable children to avail themselves more fully of the benefits and protection available under EU equality law, but would reinforce rights-based perceptions of children as active, valuable contributors to society and, indeed, to the economy.62

IV. Limitations and Derogations 32.34 Article 32 accepts that derogations to the minimum age of admission to employment are permissible in specific, limited contexts, which are set out primarily in Articles 4

59 M Leibel, ‘Do children have a right to work? Working children’s movements in the struggle for social justice’ in K Hanson and O Nieuwenhuys (eds), Reconceptualising Children’s Rights in International Development— Living Rights, Social Justice, Translations (Cambridge, Cambridge University Press, 2013) ch 11. 60 R Rodriguez et al, Study on Child Labour and Protection of Young Workers in the European Union: Final Report (European Commission DG Employment, Social Affairs and Equal Opportunities, 2006) pp 66–70. 61 Art 4(2)(b) of the Young Workers Directive does accommodate combined work/training schemes or ‘in-plant’ work-experience but these are strictly limited to programmes that are recognised by the competent authority and are likely to be confined to the formal, vocational training routes developed by regulated industries for older children (15–16+). 62 For a discussion of children as active contributors to society in the context of citizenship, see M Hill and K Tisdall, Children and Society, (New York, Longman, 1997); R Lister ‘Why citizenship? Where, when and how children?’ (2007) 8(2) Theoretical Inquiries in Law 693–718; and A Invernizzi and J Williams (eds), Children and Citizenship (London, Sage, 2008). See also Liebel, above n 59, pp 237–38.

884

Helen Stalford

Art 32 – Prohibition of Child Labour

and 5 of the Young Workers Directive. These derogations can be divided into three categories: children of at least 14 years of age working under a combined work/training scheme or an in-plant work-experience scheme; children of at least 13 years of age performing ‘light work’; and children employed for the performance of cultural, artistic, sports or advertising activities (subject to the authorisation of the competent authority). The latter two categories that extend employment access to 13-year-olds are subject to the additional proviso that such activities are not harmful to their safety, health or development, to their attendance at school or to their participation in vocational training programmes. Reliable, comparative data on the number of working children who are benefiting 32.35 from these exemptions is notoriously difficult to come by, both because of the limited visibility of many of the activities they include, and because of significant variances in national approaches to the collation of such statistics. Current estimates suggest that there are approximately 3–3.5 million working children under the age of 15 across the EU 27, only marginally fewer than the estimated number of 15–17 year olds in employment (3.5–4 million).63 The precise nature of the exempted activities is defined by reference to national law, 32.36 arguably allowing for a more context-specific appraisal of the value and appropriateness of the activity. However, the singling out, by the Young Workers Directive, of cultural, artistic, sports and advertising activities as beneficiaries of more liberal employment conditions is a little bewildering and demands some scrutiny of the ideological and ethical norms underpinning this distinction; it is likely to be based on the presumption that children will obtain a greater sense of physical, intellectual and cultural fulfilment through engaging in work of this nature, which, in turn, will offset any potential disadvantages arising from their distraction from formal education. Such a presumption may say more about the image-based, consumer culture which has come to define the society in which we live. Indeed, it is these social prescriptions that shape (or rather distort) our appreciation of what is really in the best interests of our children. Why, for instance, should child modelling, artistic performance or professional football training (common contexts in which the recruitment of children as young as five or six is routinely authorised and encouraged) be valued as worthwhile, fulfilling, opportunity-generating activities over and above a child working in close collaboration with his or her parents to develop and maintain a family farm, restaurant, or an itinerant family circus? Linked to this, why are ‘harmful conditions’ defined by the Young Workers Directive predominantly in terms of the physical environment in which the employment takes place? What of the psychological, social and emotional harm that may result from protracted periods of separation from family members for the purposes of performance rehearsals or sports training, or from the acute sense of self-awareness and body image triggered by premature and intensive exposure to commercial notions of beauty and success in the modelling and entertainment business? Article 32 of the Charter captures all of these notions, but common interpretations of child employment standards imply something rather more selective to accommodate and perpetuate popular notions of ‘good’ and ‘bad’ work, and by reference to adults’ (or more specifically, national authorities’ and commercial operators’) appraisal of ‘harm’ as opposed to that of the children themselves.

63

Rodriguez et al, above n 60, p 19.

Helen Stalford

885

Part I – Commentary on the Articles of the EU Charter

32.37

Notwithstanding the ideologically suspect basis on which the exempted activities are defined, sectoral-specific data on national child employment trends across the Member States suggests that, in reality, child workers are concentrated in areas that fall outside these areas: there appears to be a heavier concentration of under-15s in the agricultural (including family-run farms) and services industries (such as restaurants, supermarkets and petrol stations).64 Such data leads to two preliminary conclusions: that the areas of activity highlighted in the derogations do not reflect the lived employment experiences of the majority of working children; and that many children are, in effect, working outside the lawful parameters of the Charter. Such conclusions raise questions as to the capacity of the current European regulatory framework, as it is currently interpreted, to respond to the real-life employment experiences of many children across the developed regions of the Member States. Even the European Commission’s largely positive review of the alignment between national employment legislation and practice and the requirements of the Young Workers’ Directive comes with some caveats; assessments regarding compliance are drawn on the basis of notoriously patchy data, accompanied by widespread acknowledgement that many aspects of child are located in the shadow economy and therefore invisible.65 This has led to an almost weary resignation to the fact that no amount of regulatory intervention can effectively address those ‘grey’ areas of employment that spill over into the private family sphere or that manifest children’s expression of their social, cultural and financial autonomy.

V. Remedies 32.38 Official evidence suggests loyal transposition of EU child employment laws, at least regarding access to and conditions of work within the Member States. Certainly, the conspicuous lack of national case law involving alleged victims points to the rarity of improper employment practices across any of the Member States.66 But the same evidence also acknowledges that the Member States are by no means impervious to some of the most extreme forms of labour exploitation. Immigrant children within the Member States are acknowledged as particularly vulnerable to such practices, both because of instances of undocumented entry or residence, and because of their greater susceptibility to social, cultural, educational and economic marginalisation.67 Indeed, despite the existence of a universal human right to access compulsory education,68 there is now an abundance of data revealing widespread educational underperformance among children from a migrant background: they exhibit higher rates of early exclusion from school, relatively poor attendance, and poor attainment rates in terms of formal qualifications. Furthermore, across all of the Member States, on average, migrant students are reported to be one-and-a-half years behind their native peers in their reading 64

Above n 60, pp 21–22; and Jacobs, above n 50, pp 74–75. J Calvo and R Rodríguez, ‘Studies on the implementation of Labour Law Directives in the enlarged European Union: Council Directive 94/33/EC of 22 June 1994 on the Protection of Young People at Work’ (Sythensis Report) (DG Employment, Social Affairs and Inclusion, 2006). 66 Rodriguez et al, above n 60. 67 Rodríguez et al, above n 60, p 53; P Stanat and G Christensen, Where Immigrant Students Succeed: A Comparative Review of Performance and Engagement in PISA 2003 (Paris, OECD, 2006). 68 UNCRC 1989, Art 28. 65

886

Helen Stalford

Art 32 – Prohibition of Child Labour

skills by the age of 15.69 This situation is compounded by EU immigration law which authorises lawful impediments to migrant children’s access to and progression in education. For instance, Member States can provide child asylum-seekers with education in accommodation centres rather than schools, and national authorities can legitimately postpone their access to compulsory schooling for up to three months and, in some cases, for up to a year, from the date of application for asylum.70 The knock-on effects of this, in terms of migrant children’s enhanced susceptibility 32.39 to unlawful, exploitative labour, have not gone unnoticed by the EU. The Commission has sought to facilitate educational integration—and, by implication, to mitigate some of the risk factors associated with child labour—through the launch of a range of integration programmes, particularly through its wider immigration and social inclusion strategies.71 Remedies of a more judicial nature are, theoretically, available to address alleged 32.40 breaches of the Young Workers Directive, and there is no doubt that Article 32 of the Charter would offer a useful backdrop to such a claim. However, there are no reported cases before the Court of Justice concerning child labour specifically. Much more common (although still relatively rare) are actions by migrant adults to enforce their children’s access to education within the host state with a view to anchoring their own residence status there.72 Such cases could feasibly be supported by Article 32 if there was persuasive evidence that the denial of education to a migrant child, resulting in the family’s deportation, would expose him or her to a real risk of unlawful, exploitative labour in their country of origin. A further, arguably more empowering judicial site for the enforcement of young 32.41 people’s rights in the context of employment can be located in the developing case law on age discrimination. Two judgments, in particular, come to mind as offering some potential for enhancing the status of lawfully employed children. First, in Kücükdeveci,73 the Court ruled that the principle of non-discrimination on grounds of age (as enshrined in Article 21 of the Charter and the general framework Directive 2000/78)74 must be interpreted as precluding national measures that fail to take into account

69 European Commission, Migration and Mobility: Challenges and Opportunities for EU Education Systems (Green Paper) COM(2008) 423 final, 1; European Commission, Joint Council/Commission Report on the Implementation of the Education and Training 2010 Work Programme ‘Delivering Lifelong Learning for Knowledge, Creativity and Innovation’ (Brussels, European Commission, 2008). 70 Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers OJ L31/18, Art 10. See further Stalford, above n 20, 155–56. It should be noted that the recast Reception Directive, yet to come into force, may address some of these issues: Art 14(1) still retains the possibility of educating asylumseekers in accommodation centres rather than schools, but the absolute deadline for postponing their access to education is set at three months (Art 14(2)). Amended proposal for a Directive of the European Parliament and of the Council laying down standards for the reception of asylum seekers (Recast), Brussels, 1.6.2011, COM (2011) 320 final. 71 See, for example, Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions, A Common Agenda for Integration: a framework for the integration of third-country nationals in the European Union (Communication), COM (2005) 389 final; and Communication from the Commission on Europe, 2020: A Strategy for Smart, Sustainable and Inclusive Growth, Brussels, 03.03.2010, COM (2010) 2020 final, 5. 72 For examples, see Case C-34/09 Zambrano v ONEM [2011] ECR I-01177; Case C-127/08 Metock [2008] ECR I-6241; Case C-310/08 LB Harrow v Nimco Hassan Ibrahim [2010] ECR I-01065; and Case C-480/08 Teixeira [2010] ECR I-01107. 73 Case C-555/07 Seda Kücükdeveci v Swedex GmbH & Co KG [2010] ECR I-365. 74 Above n 26.

Helen Stalford

887

Part I – Commentary on the Articles of the EU Charter

periods of employment completed by an employee before reaching the age of 25 in calculating notice periods for dismissal. A more child-sensitive application of this ruling would require employers to take into account all periods of lawful work undertaken by employees, whether that be during their childhood or adulthood, when determining notice and redundancy arrangements. Similarly, following the decision in Hennigs and Mai,75 the prohibition of discrimination on grounds of age precludes measures laid down by a collective agreement which allow for employees’ salaries to be determined on appointment by reference to their age. If applied in the context of child workers, this ruling could form the basis of a claim that minimum wages should be calibrated more directly according to skills, experience and responsibility, thereby prohibiting the current tendency to automatically afford young workers the lowest salaries.76 32.42 Until such interpretative possibilities are properly litigated before the Court of Justice, judicial remedies relating to child workers are more evidently available within the general framework of the ECHR, although these focus on the more extreme forms of child labour. The discussion has already alluded to a smattering of case law highlighting the readiness of the ECtHR to adopt a wide interpretation of ‘slavery and forced labour’ under Article 4 ECHR to encompass the whole gamut of child employment experience and to hold states to account for their failures to take appropriate action to address such abuses.77 32.43 Perhaps one of the most effective EU-level responses to child labour is in the context of its development cooperation activities, through the withdrawal of financial aid and preferential tariffs to those who fail to comply with their child labour-related obligations under the ILO Conventions. Incentive arrangements for sustainable development and good governance were withdrawn temporarily from Sri Lanka in 2010 in response to evidence of unlawful child recruitment practices.78 It seems that this represents a relatively rare example of such sanctions being imposed, however, and there is a high degree of scepticism regarding the capacity of the GSP+ system to provide a sufficiently robust response to the persistently high rates of child labour across the developing world.79

E. Evaluation 32.44 There is no doubting the importance of Article 32 in protecting children from harmful employment practices. However, the deference to the Young Workers Directive as its primary interpretative guide obscures the potential of Article 32, not only to support the EU’s critical role in the global campaign against more extreme forms of child labour,

75

Cases C-297/10 and C-298/10 Hennigs v Eisenbahn-Bundesamt, Land Berlin v Mai [2011] OJ 311/12. I am grateful to Nuno Ferreira for bringing these possibilities to my attention. 77 Above n 32. 78 Detailed in W Vandenhole, ‘Children’s Rights in EU External Action: Beyond Charity and Protection, Beyond Instrumentalisation and Conditionality’ (2011) 19 International Journal of Children’s Rights 477–500, 489. 79 Vandenhole, ibid, sites the independent study of M Gasiorek et al, Mid-term Evaluation of the EU’s Generalised System of Preferences (Sussex, Centre for the Analysis of Regional Integration, 2010), which concluded that the GSP-related sanctions were largely ineffective in ensuring states’ compliance with their international human rights obligations. 76

888

Helen Stalford

Art 32 – Prohibition of Child Labour

but to positively enhance the status of children who are lawfully employed. The social, economic and regulatory landscape relating to child labour has shifted since the implementation of the Young Workers Directive; the EU has expanded to incorporate a much greater, more diverse range of Member States, and the position of children within the EU legal and policy order has been significantly enhanced. These developments indicate that the Young Workers Directive is no longer the most comprehensive or relevant reference point to guide interpretation of Article 32 of the Charter. A more positive synergy between education and employment might be achieved if a more integrated approach to regulation was embraced, as endorsed by the EU’s broader social inclusion strategy. Equally, more effective use of the EU’s existing equality framework might enhance children’s rights and experiences of education by facilitating their access to and enforcement of a broader range of employment-related entitlement. Article 32 will help to crystallise the EU’s important role in combating more extreme forms of child labour too, not only through the range of budgetary and political mechanisms already being deployed in its external activities, but through robust transposition and ongoing refinement of its emergent child protection legislation governing trafficking, immigration, and sexual exploitation. A closer regard for children’s status as active protagonists in their own employment 32.45 decisions is now recognised as an important part of all of these processes. This, in turn, is consistent with the growing prominence of and respect for children’s rights across a diverse range of EU activities, a process which emphasises the importance of combining a protectionist approach to child employment with systems and processes that empower children to exercise genuine choices that are in their best interests.

Helen Stalford

889

Article 33 Article 33 Family and Professional Life 1. The family shall enjoy legal, economic and social protection. 2. To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child.

Text of Explanatory Note on Article 33 Article 33(1) is based on Article 16 of the European Social Charter. Paragraph 2 draws on Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding and Directive 96/34/EC on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC. It is also based on Article 8 (protection of maternity) of the European Social Charter and draws on Article 27 (right of workers with family responsibilities to equal opportunities and equal treatment) of the revised Social Charter. ‘Maternity’ covers the period from conception to weaning.

Select Bibliography M Barbera, ‘The Unsolved Conflict: Reshaping Family Work and Market Work in the EU Legal Order’ in T Hervey and J Kenner (eds), Economic and Social Rights under the EU Charter of Fundamental Rights: A Legal Perspective (Oxford, Hart Publishing, 2003) 139–60. N Busby, A Right to Care? Unpaid Care Work in European Employment Law (Oxford, OUP, 2011). E Caracciolo di Torella, ‘Is there a fundamental right to reconciling work and family life in the EU?’ in N Busby and G James (eds), Families, Care-giving and Paid Work: Challenging Labour Law in the 21st Century (Cheltenham, Edward Elgar, 2011) 52–65. —— and A Masselot, Reconciling Work and Family Life in EU Law and Policy (Basingstoke, Palgrave Macmillan, 2010). H Collins, ‘The Right to Flexibility’ in J Conaghan and K Rittich (eds), Labour Law, Work, and Family (Oxford, OUP, 2005) 99–124. J Conaghan, ‘Time to Dream? Flexibility, Families, and the Regulation of Working Time’ in J Fudge and R Owens (eds), Precarious Work, Women and the New Economy (Oxford, Hart Publishing, 2006) 101–30. C Costello, ‘Gender Equalities and the European Charter of Fundamental Rights’ in T Hervey and J Kenner (eds), Economic and Social Rights under the Charter of Fundamental Rights of the European Union (Oxford, Hart Publishing, 2003) 111. S Fredman, ‘Women at Work: the Broken Promise of Flexicurity’ (2004) 33 Industrial Law Journal 299. T Hervey and J Kenner (eds), Economic and Social Rights under the EU Charter of Fundamental Rights: A Legal Perspective (Oxford, Hart Publishing, 2003) 111–38. G James, ‘Forgotten children: work–family reconciliation in the EU’ (2012) Journal of Social Welfare and Family Law 363–79. C Kilpatrick, ‘Gender and the Legal Regulation of Employment Breaks’ in J Fudge and R Owens (eds), Precarious Work, Women and the New Economy (Oxford, Hart Publishing, 2006) 153.

Part I – Commentary on the Articles of the EU Charter

C McGlynn, ‘Reclaiming a Feminist Vision: The Reconciliation of Paid Work and Family Life in European Union Law and Policy’ (2001) Columbia Journal of European Law 241–72. ——, ‘Work, Family and Parenthood: the European Union Agenda’ in J Conaghan and K Rittich (eds), Labour Law, Work and Family (Oxford, OUP, 2005) 217–36. ——, Families and the European Union: Law, Politics and Pluralism (Cambridge, CUP, 2006). F Raday, ‘Article 11’ in M Freeman, C Chinkin, and B Rudolf (eds), The UN Convention on the Elimination of All Forms of Discrimination Against Women: A Commentary (Oxford, OUP, 2012) 279–309. H Stalford, Children and the European Union: Rights, Welfare and Accountability (Oxford, Hart Publishing, 2012). P Verbruggen, ‘Does Co-Regulation Strengthen EU Legitimacy?’ (2009) 15 European Law Journal 425–41.

A. Field of Application of Article 33 33.01 There are two distinct elements to Article 33. Article 33(1) sets out a positive obligation to afford ‘the family’ ‘legal, economic and social protection’. This far-reaching obligation could apply in virtually any aspect of EU activity. Indeed it refers not only to ‘legal protection’ but also to ‘economic and social’ protection, which suggests it is a true cross-cutting obligation, to be mainstreamed into all areas. Its significance in migration law, family law, criminal law and across all of EU equality and labour law is readily apparent. 33.02 Article 52(5) of the Charter, which introduces the rights/principle dichotomy, is pertinent, given the features of Article 33(1). The Explanation to Article 52(5) provides that Article 33 contains ‘both elements of a right and of a principle’.1 While the Explanations are not binding,2 the breadth, generality, and formulation of Article 33(1) supports the contention that it is a ‘principle’ rather than an individual right. The legal consequences of this designation are set out in Article 52(5), namely that principles ‘may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers’. The facultative nature of this clause means that principles do not in themselves create positive obligations to act. However, once there is EU law or policy in the field, the principle ‘shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality’. Accordingly, EU laws and policies across all fields must be interpreted in conformity with Article 33(1), and where they breach the principle, are liable to annulment. Evidently, given the breadth and generality of the text of Article 33(1), everything turns on its interpretation. As is discussed further below in section C.III(a), Article 16 of the European Social Charter (ESC), on which Article 33(1) is based, is clearer in that the various aspects of ‘legal, economic and social’ protection it entails have been spelled out both in the text of

1

Explanations [2007] OJ L303/17, 35. Art 52(7) states: ‘The explanations drawn up as a way of providing guidance in the interpretation of this Charter shall be given due regard by the courts of the Union and of the Member States.’ 2

892

Cathryn Costello

Art 33 – Family and Professional Life

Article 16 and the pronouncements of the Social Rights Committee. If the ESC material is used to flesh out Article 33(1), its impact across a range of EU policy domains could be significant. Admittedly, while the Charter requires the European Court of Human Rights (ECtHR) case law to be taken into account,3 there is no analogous obligation to have regard to the ESC Committee materials. Nonetheless, they are an important source that gives decisive meaning to the ESC provisions. Article 33(2), in contrast to Article 33(1), on the reconciliation of family and profes- 33.03 sional life, clearly entails individual rights. However, these rights overlap significantly with pre-existing EU legislative entitlements. Article 33(2) expressly entails three distinct rights: the right to protection against dismissal on grounds of pregnancy and the right to paid maternity leave, which both figure in the Pregnant Workers Directive;4 and that to parental leave, a key right under the Parental Leave Directive.5 Accordingly, it has been asserted that Article 33(2) simply ‘restates existing entitlements’.6 However, that restatement in fundamental rights form may bolster and expand the scope of these entitlements, considerably transforming them, as is examined in section D.II below. Moreover, describing these rights as aiming to reconcile family and professional life may reorientate their ethos. In particular, as Article 33(1) aims to ensure protection for the family, a priority is established between family and professional life, which could inform Article 33(2) and measures in the field generally. EU law originally framed maternity leave and pay as health and safety policies, so a fundamental rights reorientation could be significant. Even in areas where Article 33(2) and the Directives are coextensive, the constitution- 33.04 alisation of these rights has normative consequences, in particular for the interpretation and validity of limitations to the right in question, as is discussed in section D.IV below. In addition, as the Charter binds EU institutions in all situations, and the Member States whenever they ‘implement’ EU law, Article 33(2) may be relied on in situations where these Directives are not applicable, but where the Member States are nonetheless implementing other EU norms.7 The preceding discussion has focused on the hard legal impact of Article 33. However, 33.05 much EU activity relating to the reconciliation of family and professional life uses soft law and new governance methods. The Lisbon Strategy prompted Member States to draw up ‘[a] series of measures … to facilitate women’s access to the labour market, such as providing childcare facilities and encouraging flexible working arrangements to enable women to enter and remain in the labour market.’8 Its successor, Europe 2020, adopts a similar approach. Overall, the attention to gender equality waned over

3 The Preamble, para 5, refers to the ‘caselaw of the Court of Justice of the European Union and the European Court of Human Rights.’ 4 Directive 92/85/EC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding [1992] OJ L348/1. 5 Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC [2010] OJ L68/13 (2010 Parental Leave Directive). 6 C McGlynn ‘Work, Family and Parenthood: the European Union Agenda’ in J Conaghan and K Rittich (eds), Labour Law, Work and Family (Oxford, OUP, 2005) 217, 228. 7 For an illustration, see Case C-144/04 Mangold [2005] ECR I-9981. 8 European Parliament, Mid-Term Review of the Lisbon Strategy from the Gender Perspective. Ip/c/ FEMM/NT/2005, 4.

Cathryn Costello

893

Part I – Commentary on the Articles of the EU Charter

the years,9 and the approach adopted was criticised for focusing exclusively on freeing up women to take paid work, rather than allocating care burdens more equally between men and women.10 As is discussed in section D, below, the only EU measures that seek to encourage men to take on greater caring burdens are overwhelmingly non-binding.11 EU measures on childcare are also predominantly non-binding. For instance, the EU has set targets for both the percentage of children who should be in formal childcare12 and for those who should be in ‘early childhood education and care’.13 33.06 A key question accordingly is whether the EUCFR, and fundamental rights commitments generally, can have a bearing on soft policies. Clearly, when the EU adopts any hard laws, it is bound to respect and protect EU fundamental rights, as they are a condition for the legality of EU acts. Ideally, when it adopts non-binding policies, it should also be regarded as constrained and empowered by fundamental rights. However, in those contexts, as its output is not legally binding, it would be difficult to enforce this commitment in the courts. Similarly, when the Member State acts to meet these targets, giving the soft EU mechanisms hard domestic consequences, the Member State is not ‘implementing EU law’ as currently understood. Accordingly, its actions are not constrained by the Charter. Nonetheless soft mechanisms need to be founded on fundamental rights commitments if they are not to erode existing protections, so ensuring that the Charter commitments are taken seriously and are integrated into new governance mechanisms is crucial.14

9 M Smith and P Villa, ‘The ever-declining role of gender equality in the European Employment Strategy’ (2010) 41 Industrial Relations Journal 526, 540. 10 M Stratigaki, ‘The Cooptation of Gender Concepts in EU policies: The Case of “Reconciliation of Work and Family”’ (2004) Social Politics 30, 32. 11 Council Resolution of 29 June 2000 on the balanced participation of women and men in family and working life [2000] OJ C218, (COM) 2008) 635 (2000 Council Resolution). Later policy documents have shifted in language from ‘reconciliation of family and professional life’ to ‘work-life balance.’ For instance, the Commission’s 2008 Communication was entitled A better work-life balance: stronger support for reconciling professional, private and family life. This Communication formed part of the ‘Work-Life Balance Package’, together with a report monitoring the 2002 Barcelona Childcare Targets set by the 2002 Barcelona European Council and the proposals to amend the Pregnant Workers Directive and the Self-Employed Workers Directive. The former proposal was not adopted, while the latter resulted in Directive 2010/41/EU on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC [2010] OJ L180/1. 12 The Barcelona European Council (2002) set the targets of providing childcare by 2010 to at least 90 per cent of children aged between three years old and the mandatory school age, and at least 33 per cent of children under three years of age. These targets were recently reiterated in Commission Communication Towards Social Investment for Growth and Cohesion—including implementing the European Social Fund 2014–2020, COM (2013) 83 final. 13 Council Conclusions of 12 May 2009 on a strategic framework for European cooperation in education and training (ET 2020), Annex I to the conclusions (OJ C119/7). It provides that by 2020, at least 95 per cent of children between four years old and the age for starting compulsory primary education should participate in early childhood education. 14 For discussion of the perils and promise of new governance and fundamental rights, see S Fredman, ‘Transformation or Dilution: Fundamental Rights in the EU Social Space’ (2006) 12(1) European Law Journal 41; O De Schutter and S Deakin, Social Rights and Market Forces: is the open coordination of employment and social policies the future of social Europe? (Brussels, Bruylant, 2005).

894

Cathryn Costello

Art 33 – Family and Professional Life

B. Interrelationship of Article 33 with Other Provisions of the Charter Aiming as it does to frame the reconciliation of family and working life, Article 33 is 33.07 linked with all the Charter provisions dealing with family and working life, as well as the equality provisions. In particular, Article 33(1) is substantively related to Article 7 on family and private life, the provision which corresponds to Article 8 of the European Convention on Human Rights (ECHR),15 discussed below. Also pertinent then is Article 9 EUCFR, on the right to marry and to found a family. However, the family entitlements under Article 33 EUCFR are not confined to families based on marriage. Article 22 EUCFR requires the EU to respect ‘cultural, religious and linguistic diversity’. This Article may have a bearing on the forms of family life the EU should be required to recognise. Parental rights over their children figure in Article 14(3) EUCFR, which refers to ‘the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions’. Policies to reconcile work and family life are essential for the achievement of 33.08 equality between men and women, which of course has a prominent position in the Equality Chapter of the Charter. Admittedly, Article 33 is not located in this Chapter, but the Charter Preamble characterises the key values enshrined as Chapter headings as ‘indivisible’, acknowledging that the Chapter headings point to the central values embodied by the rights in question, but that these values are inextricably linked.16 Article 23 refers to equality ‘in all areas’,17 which includes in the private sphere.18 An approach to reconciliation therefore requires equality in the allocation of care burdens, as well as in the workplace. As will be discussed in section D below, special rights for mothers may undermine this objective, and perpetuate unequal care burdens. On the other hand, insisting on gender neutrality may undermine special protections for women who do actually bear dual burdens. The Charter also has a general prohibition of discrimination, which is not confined 33.09 to the grounds explicitly mentioned in Article 17 of the Treaty on the Functioning of the European Union (TFEU).19 Of particular note is that Article 21(1) EUCFR sets out only an indicative list of grounds. In this way, it contrasts sharply with the finite list in Article 19 TFEU.20 The Charter guarantee may be pertinent in cases of discrimination between those of different family and marital status. The original Equal Treatment

15 Art 7 EUCFR ‘Respect for private and family life’: ‘Everyone has the right to respect for his or her private and family life, home and communications.’ 16 Para 2 of the Preamble states: ‘Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity.’ 17 Art 23 EUCFR ‘Equality between women and men’: ‘Equality between women and men must be ensured in all areas, including employment, work and pay. The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.’ 18 See commentary by D Schiek in this volume. 19 Art 21(1) EUCFR: ‘Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.’ 20 See the commentary on Article 21 in this volume.

Cathryn Costello

895

Part I – Commentary on the Articles of the EU Charter

Directive encompassed discrimination on these grounds as ‘sex discrimination’21 although the Recast Directive is silent on this matter.22 The pertinence of other grounds of discrimination to caring burdens is evident in the approach of the Court of Justice of the European Union (CJEU) to discrimination by association in Coleman.23 In that case, the CJEU held that EU rules on disability discrimination also applied to prevent discrimination against a woman caring for her disabled son. Whether other care-giving scenarios can be brought within the scope of the doctrine remains to be seen.24 Samesex parents may rely on protection against sexual orientation discrimination to try to vindicate their parental rights, or challenge systems which privilege the ‘heterosexual dyad’ of mother and father.25 33.10 One criticism levelled at EU reconciliation policies is that they conceive of children predominantly as barriers to paid work. In general, the EU stands accused of being insensitive to children’s rights in this context,26 as is discussed further in section D.II(vi) below. Article 24 EUCFR on the rights of the child might be invoked to bring children’s rights into the frame, in particular given that in accordance with Article 24(2), ‘In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.’27 Admittedly, a first attempt to invoke Article 24 before the CJEU in Chatzi to make parental leave entitlements more child-centric had an ambivalent outcome.28 However, that ruling should not be regarded as foreclosing future more progressive developments, as is discussed further below. 33.11 EU hard law provisions focus on parenting, to the exclusion of other care-burdens such as eldercare. Article 25 on the ‘rights of the elderly’ may have a bearing. If an elderly person requires the care of family members in order ‘to lead a life of dignity and independence and to participate in social and cultural life’, then it could be argued that labour laws which impede the exercise of that care undermine Article 25. Admittedly, such an argument would break new legal ground, but Article 25 may come to be an important corrective to the focus on the care of children as the singular impediment to participation in paid work. A similar approach could be adopted in relation to the care of disabled family members, relying on Article 26.

21 Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions [1976] OJ L40, Art 2(1). 22 Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) [2006] OJ L204/23. 23 Case C-303/06 Coleman v Attridge Law [2008] ECR I-5603. For a perceptive argument building thereon, see H Stalford, Children and the European Union: Rights, Welfare and Accountability (Oxford, Hart Publishing, 2012) 80. 24 An interesting attempt by a man to invoke his protections when he was being disadvantaged due to his partner’s pregnancy was referred to the CJEU but has now been withdrawn. Reference for a preliminary ruling from Court of Session, Edinburgh made on 30 January 2012 in Case C-44/12 Andrius Kulikauskas v Macduff Shellfish Ltd, Duncan Watt [2012] OJ C109/6. 25 The term is borrowed from D Rosenblum ‘Unsex Mothering: Toward a New Culture of Parenting’ (2012) Harvard Journal of Law and Gender 57. 26 G James ‘Forgotten children: work—family reconciliation in the EU’ (2012) Journal of Social Welfare and Family Law 363–79, 366. 27 See further C Costello, ‘Gender Equalities and the Charter of Fundamental Rights of the European Union’ in T Hervey and J Kenner (eds), Economic and Social Rights under the EU Charter of Fundamental Rights: A Legal Perspective (Oxford, Hart Publishing, 2003) 111–38. 28 Case C-149/10 Chatzi [2010] ECR I-08489. See discussion below at Part C.IV(a).

896

Cathryn Costello

Art 33 – Family and Professional Life

Reconciliation of professional and family life also overlaps with the other work-related 33.12 provisions of the Charter, including Article 15 EUCFR, on freedom to choose an occupation and right to engage in work. Also relevant is Article 30, the general protection against unjustified dismissal. While Article 33(2) protects against dismissal on grounds of maternity, EU legislation also protects against dismissal on grounds of taking parental leave.29 Article 30 ought to be interpreted to protect against the range of scenarios when dismissal would be unjustified, in order to avoid a lacuna in EU protections. There are other scenarios where protection against unjustified dismissal will be necessary to ensure that other entitlements may be exercised without jeopardising job security. For instance, the 2010 Parental Leave Directive also includes a right to request flexible working arrangements.30 Dismissal for exercising the right to request should be regarded as unjustified under Article 30. At the very least, given the Charter’s codificatory nature, those scenarios where EU law renders dismissal unlawful should inform Article 30. In turn, the EU legislative prohibition on discrimination also prevents dismissal on a range of discriminatory grounds, which further intersects with Article 33. Article 33’s reconciliation agenda is clearly linked to the general guarantee to ‘fair and 33.13 just working conditions’ under Article 31. Article 31(1)’s guarantee of working conditions in keeping with the worker’s ‘health, safety and dignity’ may be invoked in a diverse range of scenarios.31 Article 1 EUCFR in turn grants dignity, as a value and individual right, prime position in the Charter. More specifically, Article 31(2) constitutionalises the key aspects of EU working time regulation, providing some protection against long-hours working which is so corrosive to work/life balance. While the Working Time Directive provisions on the working week in effect only apply to full-time workers,32 the reference in Article 31(2) to ‘every worker’ suggests that the Charter guarantee should be applicable to other types of work arrangements too, which would further enhance the aims of Article 33. At present, maternity pay in some circumstances, and allowances for parental leave in 33.14 most, depend on the state social security and assistance schemes in the Member States. In this respect, there is an intersection between Article 33 and Article 34 on ‘Social security and social assistance.’ Indeed Article 34(1) explicitly mentions protection ‘in cases such as maternity’.

C. Sources of Article 33 Rights I. ECHR While the Explanation to Article 33(1) cites only an ESC source, clearly the notion of 33.15 ‘family life’ under Article 8 ECHR is pertinent to Article 33. The European Committee on Social Rights has adopted the ECHR approach to family life.33 Article 8 ECHR is 29

2010 Parental Leave Directive, cl 5(4). 2010 Parental Leave Directive, cl 6(1). 31 See the commentary on Article 31 in this volume. 32 Directive 2003/88/EC concerning certain aspects of the organisation of working time [2003] OJ L299/9, Arts 5 and 6. However, the provisions on annual paid leave do apply to part-time workers, albeit on a pro rata temporis basis. 33 Digest of the Caselaw of the European Committee on Social Rights, 1 September 2008, 114. 30

Cathryn Costello

897

Part I – Commentary on the Articles of the EU Charter

notoriously extensive in its protection, entailing protection against all sorts of interferences with individual autonomy, from noise at night34 to the right to nationality.35 Of particular relevance to Article 33 EUCFR is the Article 8 case law on the evolving understanding of ‘family’; the framing of positive duties under that Article; and the recent case law insisting on gender equality in measure to reconciliation family and work life. 33.16 The meaning of ‘family’ evolves under Article 8 ECHR. While EU measures, particularly on citizenship and migration, tend to define family as based on marriage with dependents, the ECtHR focuses on de facto rather than de jure ties.36 For instance, in light of an evolving European consensus, the ECtHR appears to be moving toward requiring legal recognition of same-sex partnerships, if not, as yet, same-sex marriage.37 The notion of family life under Article 8(1) ECHR depends on the existence of close, continuing and practical ties.38 However, the legal status of marriage is also indicative of family life39 and a child born of wedlock is ipso jure part of the family from birth, even if the parents are not living together.40 It is long established that whether children are born within or without wedlock is irrelevant to the existence of family ties.41 Indeed the ECtHR assumes the existence of family relationship between parent and child regardless of the family’s living arrangements42 or apparent lack of commitment to the child,43 although events may break that family tie between a child and a non-resident parent. Relationships between siblings are also protected.44 However, as regards relationships between adult siblings, the ECtHR requires ‘further elements of dependency involving more than the normal emotional ties’ in order for family life to be recognised.45 Similarly, relationships within the extended family may attract protection under Article 8.46 However, in Slivenko the Court held that the relationship between adult child and non-dependent parent was not family life, but rather covered as an aspect of the right to privacy.47 In X, Y and Z v UK48 the relationship between a female-to-male transsexual, his female partner and her child was recognised as constituting a family.

34

Hatton and Others v United Kingdom App no 36022/97 (Grand Chamber, 8 July 2003). Genovese v Malta App no 53124/09 (11 October 2011). 36 H Stalford, ‘Concepts of Family under EU Law: Lessons from the ECHR’ (2002) 16 International Journal of Law, Policy and the Family 410. 37 See, for instance, Schalk and Kopf v Austria App no 30141/04 (24 June 2010); L Hodson ‘A Marriage by Any Other Name? Schalk and Kopf v Austria’ (2011) 11 Human Rights Law Review 170. 38 The following account draws on the summary of the Strasbourg case law in Al-Nashif v Bulgaria App no 50963/99 (20 June 2002) [112]. 39 Abdulaziz Cabales and Balkandali v United Kingdom App nos 9214/80, 9473/81, 9474/81 (28 May 1985) [62]. 40 Berrehab v Netherlands App no 10730/84 (21 June 1988) [21]. 41 Marckx v Belgium (1979) 2 EHRR 330; Johnston v Ireland (1986) 9 EHRR 203; Boughanemi v France (1996) 22 EHRR 228. 42 Berrehab v Netherlands, above n 40. 43 Ahmut v Netherlands App no 21702/93 (28 November 1996). 44 Moustaquim v Belgium App no 12313/86 (18 February 1991); Olssen v Sweden (1989) 11 EHRR 259; Boughanemi v France, above n 41. 45 Javeed v the Netherlands App no 47390/99 (3 July 2001); Ezzoudhi v France App no 47160/99 (13 February 2001). 46 See, for example, Boyle v UK (1994) 19 EHRR 179 (concerning the uncle-nephew relationship). 47 Slivenko v Latvia App no 48321/99 (9 October 2003). 48 X, Y and Z v UK (1997) 24 EHRR 143. 35

898

Cathryn Costello

Art 33 – Family and Professional Life

Article 8 ECHR entails positive obligations, which in turn inform the Committee 33.17 of Social Rights’ approach to Article 16 ESC. For instance, the Committee has taken into account X and Y v The Netherlands,49 where the Court clarified that the positive duties inherent in Article 8 ECHR reached into the ‘sphere of the relations of individuals between themselves’.50 A range of legal protections are required to ensure effective protection against domestic violence.51 A recent important Grand Chamber of the ECtHR ruling on Articles 8 and 14 ECHR 33.18 illustrates a commitment to equality in the provision of parental leave. Konstantin Markin v Russia52 concerned the Russian law on parental leave. The applicant, a male soldier, was not entitled to the generous parental leave the law afforded to female soldiers and civilians. The Grand Chamber held that this was in breach of Article 8 and Article 14. While Article 8 does not entail a right to parental leave,53 once such leave and allowances are provided, they come within the scope of Article 8. Accordingly, if a state does decide to create a parental leave scheme, it must do so in compliance with Article 14 ECHR.54 In its discrimination analysis, the Court drew a distinction between maternity leave, ‘which is intended to enable the woman to recover from the childbirth and to breastfeed her baby if she so wishes’, and parental leave and allowances which ‘relate to the subsequent period and are intended to enable a parent concerned to stay at home to look after an infant personally.’55 Setting itself against measures that would have the ‘effect of perpetuating gender stereotypes’, the Court held the Russian law was ‘disadvantageous both to women’s careers and to men’s family life’.56 Noteworthy is the citation of two key CJEU rulings, Griesmar57 and Roca Alvarez.58 As in many other fields, the ECtHR is drawing on EU standards for inspiration, so the EU system appears to be influencing the wider Council of Europe system,59 a phenomenon well documented in other areas of ECHR equality law.60

49

X and Y v The Netherlands App no 8978/80 (26 March 1985). Ibid [23]. 51 The Committee also draws on Recommendation Rec (2002) 5 of the Committee of Ministers of the Council of Europe to Member States on the protection of women against violence and Parliamentary Assembly Recommendation 1681 (2004) on a campaign to combat domestic violence against women in Europe. Conclusions 2006, Statement of Interpretation on Art 16, p 14. 52 Markin v Russia App no 30078/06 (22 March 2012). See also Weller v Hungary App no 44399/05 (31 March 2009), where the refusal to grant a maternity allowance to a married father and his two sons on account inter alia of the father’s parental status was found in breach of Arts 8 and 14 ECHR. 53 A point from which Judge Pinto de Albuquerque dissented emphatically, stating that, ‘The right to parental leave is a Convention right.’ (Emphasis in original): ibid, Partly Concurring, Partly Dissenting Opinion of Judge Pinto de Albuquerque. 54 Markin v Russia, above n 52 [130]. 55 Ibid [132]. 56 Ibid [141]. 57 Case C-366/99 Griesmar [2001] ECR I-9383. 58 Case C-104/09 Roca Álvarez v Sesa Start España ETT SA [2011] 1 CMLR 28. 59 See, for example, C Dautricourt, ‘A Strasbourg Perspective on the Autonomous Development of Fundamental Rights in EU Law: Trends and Implications’ (Jean Monnet Working Paper No 10/10, 2010), available at http://centers.law.nyu.edu/jeanmonnet/papers/10/101001.html. 60 S Besson, ‘Gender Discrimination under EU and ECHR Law: Never Shall the Twain Meet?’ (2008) 8 Human Rights Law Review 647. FRA/Council of Europe, Handbook on European Non-discrimination Law (FRA/Council of Europe, 2010). The Handbook describes itself as ‘examin[ing] European non-discrimination law stemming from these two sources as complementary systems, drawing on them interchangeably to the extent that they overlap, while highlighting differences where these exist.’ 50

Cathryn Costello

899

Part I – Commentary on the Articles of the EU Charter

II. UN Treaties 33.19 The Explanation to Article 33 identifies only European (ESC and EU) sources, although there are directly relevant UN and indeed ILO standards. It would be regrettable if the EUCFR were interpreted in a eurocentric manner, without regard to international human rights standards. This could lead the EU to facilitate breaches of international human rights law, or even less overtly, to undermine the importance of international standards. It would also be a missed opportunity for the EU to engage constructively with the development of international human rights law. Regrettably, at present, the CJEU’s citation of international human rights materials is ‘parsimonious’.61 As I have written in other contexts, what is needed is ‘constructive human rights pluralism’, that is a mode of interaction between human rights regimes, whereby each cultivates a degree of openness to the others, while maintaining its own integrity.62 The EU has much to gain from robust engagement with international standards, as is illustrated in the account of UN and ILO standards below. (a) UDHR 33.20 Article 16 of the Universal Declaration of Human Rights (UDHR) deals with protection of the family, providing: (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. (2) Marriage shall be entered into only with the free and full consent of the intending spouses. (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

33.21 Article 16(1) UDHR’s reference to the right to marry and to found a family is reflected in turn in Article 12 ECHR and Article 9 EUCFR. In addition, Article 16(3) UDHR speaks of the family’s entitlement to ‘protection’ as the ‘natural and fundamental group unit of society’. That notion of the family’s entitlement to protection in turn informs Article 10(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 16 ESC, and Article 33(1) EUCFR. 33.22 Article 25(1) UDHR sets out the entitlement to an adequate standard of living for everyone: (1)

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

61 I de Jesús Butler and O De Schutter, ‘Binding the EU to International Human Rights Law’ (2008) 27 Yearbook of European Law 277, 282. 62 C Costello, ‘Human Rights and the Elusive Universal Subject: Immigration Detention under International Human Rights and EU Law’ (2012) Indiana Journal of Global Legal Studies 257, 260, 261–72.

900

Cathryn Costello

Art 33 – Family and Professional Life

Article 25(2) singles out mothers and children, stating ‘Motherhood and childhood 33.23 are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.’ This approach, affording special rights to mothers, comes in for criticism nowadays, as the ECtHR ruling in Markin v Russia63 illustrates, for perpetuating gender stereotypes, and failing to allocate caring burdens equally between men and women. (b) ICESCR 33.24

The most pertinent ICESCR guarantee is Article 10, which states: The States Parties to the present Covenant recognize that: 1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses. 2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits. 3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law.

Article 10(1) reflects the notion of the family’s entitlement to ‘the widest possible 33.25 protection and assistance.’ Article 10(2) provides special protection to mothers in the form of paid maternity leave, but temporally limited for ‘a reasonable period before and after childbirth.’ During such periods working mothers should be accorded paid leave or leave with adequate social security benefits. Article 10(3) deals with special protective measures for child. Notable for its absence is any mention of parental leave. The Committee on Economic, Social and Cultural Rights (CESCR Committee) has 33.26 produced a General Comment on equality for women.64 While it endorses substantive equality between men and women, it has been criticised for failing ‘to modify the structure of work itself to fully engender the right to work’.65 For example, its comments on Article 6 ICESCR (the right to work),66 and Article 7 (the right to just and favourable

63

Above n 51. CESCR General Comment 16 on the Equal Right of Men and Women to the Enjoyment of All Economic, Social And Cultural Rights E/C.12/2005/3 (2005). 65 S Fredman, ‘Engendering Socio-Economic Rights’ (2009) 25 South African Journal of Human Rights 410, 432. 66 Art 6 ICESCR: ‘The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.’ 64

Cathryn Costello

901

Part I – Commentary on the Articles of the EU Charter

conditions of work)67 are stated to require that ‘in law and in practice, men and women have equal access to jobs at all levels and all occupations and that vocational training and guidance programmes, in both the public and private sectors, provide men and women with the skills, information and knowledge necessary for them to benefit equally from the right to work.’ The Comment makes no mention of unequal caring burdens and their contribution to gender inequality in preventing women from participating in paid work on the same terms as men. Notwithstanding this criticism, it should also be noted that the CESCR Committee has stipulated that the equal right to social security requires states to guarantee maternity leave, paternity leave, and parental leaves.68 (c) CEDAW 33.27 For a more transformative approach to gender equality, scholars and activists unsurprisingly look to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Its Preamble highlights the socially transformative aims of the Convention: ‘Aware that a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women’ and ‘[A]ware that the role of women in procreation should not be a basis for discrimination but that the upbringing of children requires a sharing of responsibility between men and women and society as a whole.’ Article 5 similarly provides: 33.28 States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women; (b) To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.

33.29 While children are the ‘common responsibility’ of men and women, it does not explicitly posit equal parental responsibility. Notably, Article 5 does not refer to equality or nondiscrimination, but only to power and disadvantage. 33.30 By 1994 all of the current EU Members States were parties to CEDAW. Save for Estonia, Latvia and Malta, all of them are also state parties to the CEDAW Optional

67 Art 7 ICESCR: ‘The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular: a. Remuneration which provides all workers, as a minimum, with: i. Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; ii. A decent living for themselves and their families in accordance with the provisions of the present Covenant; b. Safe and healthy working conditions; c. Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence; d. Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays’. 68 Above n 64, para 26.

902

Cathryn Costello

Art 33 – Family and Professional Life

Protocol. Austria, France, Ireland, Italy, Malta and the United Kingdom have included reservations in their ratifications, some of which the CEDAW Committee views as incompatible with the object and purpose of the Treaty.69 Article 11 deals with equality in employment, containing an impressive compendium 33.31 of rights: 1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: a. the right to work as an inalienable right of all human beings; b. the right to the same employment opportunities, including the application of the same criteria for selection in matters of employment; c. the right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training; d. the right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work; e. the right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave; f . the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction. 2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures: a. to prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status; b. to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances; c. to encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities; d. to provide special protection to women during pregnancy in types of work proved to be harmful to them. 3. Protective legislation relating to matters covered in this Article shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary.’

In her magisterial commentary on Article 11, Raday points out that the ‘unique contribu- 33.32 tion’ of the Article ‘is to create holistic standards for women’s rights in employment and occupation, based on recognition of the complex realities of women’s economic, family

69 See further, V Neubauer, How could the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) be implemented in the EU legal framework? (July 2011), 15, available at www. europarl.europa.eu/document/activities/cont/201109/20110909ATT26166/20110909ATT26166EN.pdf.

Cathryn Costello

903

Part I – Commentary on the Articles of the EU Charter

and employment situation.’70 In particular, she characterises Article 11(2) as instituting a ‘regime of transformative equality.’71 Article 11(2)(a) protects against dismissal on grounds of pregnancy, while Article 11(2)(b) enshrines paid maternity leave. However, unlike the EU and ILO instruments, it does not specify a required period of leave. Article 11(2)(c) anticipates the need for policies to reconcile family and working life, but does not require states to establish social supports, but only to ‘encourage the provision of the necessary supporting services to enable parents to combine family obligations with work responsibilities and participation in public life.’ It mentions only one specific policy to give effect to this aim, that is ‘the establishment and development of a network of childcare facilities’. There is no express mention of parental or even paternal leave in Article 11, but such leave is an aspect of Article 5(b)’s ‘recognition of the common responsibility of men and women in the upbringing and development of their children’. Under that provision, the CEDAW Committee encourages the introduction of parental leave, with incentives for men to take it up. It has expressly endorsed the ‘Scandinavian model’ (ie affording separate paid paternity leave for fathers) as best practice.72 33.33 As will be discussed further below, the 2010 revisions to the EU Parental Leave Directive provide Member States with a nudge towards this approach, but it is by no means required as a matter of EU law.73 In this respect, there is a tension between the CEDAW Committee and EU law. (d) CRC 33.34 As mentioned above, a children’s rights perspective could be a useful corrective for EU policies which focus on caring for children predominantly as an impediment to paid work, which ought to be alleviated by commodifying it as a service. Article 24 EUCFR integrates the ‘best interests’ principle into EU law, drawing on the Convention on the Rights of the Child (‘CRC’), as the CJEU has acknowledged.74 The CRC principles are thus relevant here.

70 F Raday, ‘Article 11’ in M Freeman, C Chinkin, and B Rudolf (eds), The UN Convention on the Elimination of All Forms of Discrimination Against Women: A Commentary (Oxford, OUP, 2012) 279, 281. 71 Ibid 305. 72 F Raday, ‘Gender and democratic citizenship: the impact of CEDAW’ (2012) International Journal of Constitutional Law 512, 526–7. See also CO Canada, CEDAW/C/CAN/CO/7 (2008), para 6 (‘The Committee is pleased to note that parental leave for fathers is possible and that the number of men benefiting from this option in Quebec has greatly increased, although more could be done to promote the use of parental leave for fathers in all provinces and territories’); CO Luxembourg, A/58/38, 28th Session (2003), para 381 (‘While appreciating the increase in the number of months of parental leave, the Committee is concerned that the low benefit level of the parental leave may not encourage great numbers of fathers to avail themselves of that leave’); CO Norway, A/50/38, 14th Session (1995), para 486 (‘The Committee applauded the Government of Norway for directing attention to the necessary changes in men’s roles and tasks as an important element in achieving true gender equality, including men’s encouragement to use their right to paternity leave and to increase their involvement as caretakers in the labour market’); CO Finland, A/50/38, 14th Session (1995), para 388 (‘The Committee welcomed the positive approach of the State party to the reconciliation of family and work, and to re-examination of the traditional roles of men in this context, as a primary condition to the promotion of equality.’). 73 See discussion at D.IV below. 74 Case C-540/03 Parliament v Council [2006] ECR I-5769; Case C-244/06 Dynamic Medien [2008] ECR I-505.

904

Cathryn Costello

Art 33 – Family and Professional Life

III. Council of Europe Sources—The European Social Charter and Revised European Social Charter (a) Article 16, European Social Charter The Explanatory Note to Article 33(1) describes it as ‘based on’ Article 16 ESC, which 33.35 provides: With a view to ensuring the necessary conditions for the full development of the family, which is a fundamental unit of society, the Contracting Parties undertake to promote the economic, legal and social protection of family life by such means as social and family benefits, fiscal arrangements, provision of family housing, benefits for the newly married, and other appropriate means.

The text of Article 16 of the Revised European Social Charter ((R)ESC) remains 33.36 the same.75 The European Committee on Social Rights notes that family takes its meaning from 33.37 national law and the ECtHR case law, and that ‘every constellation defined as “family” by national law’ falls under Article 16.76 A noteworthy element of Article 16 is its reference to ‘family housing’. This guarantee 33.38 has been applied in several decisions on collective complaints concerning the right to housing of Roma families.77 In contrast, the EUCFR does not contain an explicit right to housing,78 although ‘housing assistance’ figures in Article 34(3) EUCFR, in order to combat social exclusion and poverty.79 Destruction of housing and forced evictions are clearly contrary to Article 16, requiring effective remedies and restitution.80 The Committee condemned the destruction of Roma settlements and expulsions of Roma by Italy and France in summer 2010 on this basis.81 It in unthinkable that such egregious

75 Nine EU Member States have accepted Art 16 ESC namely: Czech Republic, Denmark, Germany, Greece, Latvia, Luxembourg, Poland, Spain and the United Kingdom. Seventeen Member States have ratified Art 16 (R)ESC, namely: Austria, Belgium, Bulgaria, Estonia, Finland, France, Hungary, Ireland, Italy, Lithuania, Malta, Netherlands, Portugal, Romania, Slovakia, Slovenia and Sweden. 76 Digest of the Caselaw of the European Committee on Social Rights, 1 September 2008, 114. 77 Complaint No 15/2003 European Roma Right Center (ERRC) v Greece; Complaint No 31/2005 European Roma Right Center (ERRC) v Bulgaria (violation of Art 16 taken together with Art E). Cf Complaint No 51/2008 European Roma Rights Centre (ERRC) v France, where it was deemed unnecessary to examine Art 16, as the decision was based on the express right to housing under Art 31 ESC. 78 See the comparison of the Charter with other instruments in L Lazarus, C Costello, N Ghanea and K Zeigler, The Evolution of Fundamental Rights Charters and Caselaw: A Comparison of the United Nations, Council of Europe and European Union systems of human rights protection (Brussels, European Parliament, 2011) 182. 79 Under Art 34(3) of the Charter, in order to combat social exclusion and poverty, the Union (and thus the Member States when they are implementing European Union law) ‘recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by European Union law and national laws and practices’. Some implications of this provision may be seen in Case C-571/10 Kamberaj (Judgment of 24 April 2012), where the Court used it to interpret the scope of the equal treatment guarantee under Directive 2003/109/EC on the status of long-term resident third country nationals. At issue was whether the Directive’s reference to ‘social security, social assistance and social protection’ included housing benefit. 80 Conclusions XIII-1, Turkey, pp 258–59; Conclusions XIII-3, Turkey, pp 381–85. 81 Complaint No 58/2009 Centre on Housing Rights and Evictions (COHRE) v Italy; Complaint No 63/2010 Centre on Housing Rights and Evictions (COHRE) v France 28 June 2011. See further A Nolan ‘“Aggravated Violations”, Roma Housing Rights and Forced Expulsions in Italy: Recent Developments under the European Social Charter Collective Complaints System’ (2011) 11 Human Rights Law Review 343.

Cathryn Costello

905

Part I – Commentary on the Articles of the EU Charter

conduct would not breach several Charter provisions, from the right to dignity (Art 1) to the general entitlement to equality before the law (Art 20) and non-discrimination (Art 21). It is interesting to consider why recourse was had to the ESC rather than hard EU remedies, assuming that many of those expelled were EU citizens. 33.39 Another important aspect of Article 16 relates to childcare facilities. States are required to ensure that childcare facilities are available, affordable and of good quality.82 33.40 ‘Legal Protection’ includes family law matters such as the rights and obligations of spouses, during marriage and in cases of family breakdown.83 Drawing on its reports, the Social Rights Committee has issued a Statement of Interpretation on Articles 16 and 17(1),84 which deals with the custodial rights of parents. It aims to ensure that any limitations on such rights ‘should be based on adequate and reasonable criteria laid down in legislation and should not go beyond what is necessary for the protection and best interest of child and the rehabilitation of the family.’ States’ family mediation services are also examined under this provision.85 Article 16’s legal protections also extend to protection against domestic violence. The Committee takes into account the ECtHR case law, in particular, as mentioned above, X and Y v The Netherlands.86 A range of legal protections are required to ensure effective protection against domestic violence.87 33.41 ‘Economic protection’ includes family and child benefit under social security systems. The Committee has developed a ‘sufficiency’ test, based on the ‘median equivalised income’.88 (b) Article 8, European Social Charter 33.42 The Explanatory Note provides that Article 33(2) is based partly on Article 8 ESC, entitled ‘The right of employed women to protection.’ 33.43 Article 8 ESC provides: With a view to ensuring the effective exercise of the right of employed women to protection, the Contracting Parties undertake: 1. to provide either by paid leave, by adequate social security benefits or by benefits from public funds for women to take leave before and after childbirth up to a total of at least 12 weeks; 2. to consider it as unlawful for an employer to give a woman notice of dismissal during her absence on maternity leave or to give her notice of dismissal at such a time that the notice would expire during such absence;

82 Conclusions XVII-1, Turkey, p 490, where it was condemned for ‘manifestly inadequate’ provision of childcare places. 83 Conclusions XVI-1, United Kingdom, p 699. 84 European Social Charter (Revised), European Committee of Social Rights, Conclusions 2011, Vol 1, p 10. 85 Conclusions 2006, General Introduction, Comments on Article 16, p 12. 86 See n 48 above. 87 The Committee also draws on Recommendation Rec (2002)5 of the Committee of Ministers of the Council of Europe to member States on the protection of women against violence and Parliamentary Assembly Recommendation 1681 (2004) on a campaign to combat domestic violence against women in Europe. Conclusions 2006, Statement of Interpretation on Article 16, p 12. 88 Median equivalised income (Eurostat): ‘the income of a household is established by summing all monetary income received from any source by each member of the household. In order to reflect differences in household size and composition, this total is divided by the number of “equivalent adults” using a standard scale (the so-called modified OECD equivalence scale)’. Conclusions 2006, General Introduction, Comments on Article 16, pp 12–13.

906

Cathryn Costello

Art 33 – Family and Professional Life

3. to provide that mothers who are nursing their infants shall be entitled to sufficient time off for this purpose; 4. a. to regulate the employment of women workers on night work in industrial employment; b. to prohibit the employment of women workers in underground mining, and, as appropriate, on all other work which is unsuitable for them by reason of its dangerous, unhealthy, or arduous nature.

33.44

Article 8 (R)ESC provides: With a view to ensuring the effective exercise of the right of employed women to the protection of maternity, the Parties undertake: 1. to provide either by paid leave, by adequate social security benefits or by benefits from public funds for employed women to take leave before and after childbirth up to a total of at least fourteen weeks; 2. to consider it as unlawful for an employer to give a woman notice of dismissal during the period from the time she notifies her employer that she is pregnant until the end of her maternity leave, or to give her notice of dismissal at such a time that the notice would expire during such a period; 3. to provide that mothers who are nursing their infants shall be entitled to sufficient time off for this purpose; 4. to regulate the employment in night work of pregnant women, women who have recently given birth and women nursing their infants; 5. to prohibit the employment of pregnant women, women who have recently given birth or who are nursing their infants in underground mining and all other work which is unsuitable by reason of its dangerous, unhealthy or arduous nature and to take appropriate measures to protect the employment rights of these women.

EU Member States have widely, but not uniformly, ratified these provisions.89

33.45

Maternity Leave and Benefits The (R)ESC provides for maternity leave of at least 14 weeks, in contrast to 12 weeks 33.46 in the original ESC. While the Committee accepts national laws allowing women to opt for shorter maternity leave, in all cases there must be a compulsory period of no less than six weeks.90 Its Statement of interpretation on Article 8(1): compulsory postnatal leave91 aims to ensure that Article 8(1) is understood in light of developments in national legislation and international conventions. As Article 8 aims to protect both women and children, various means are acceptable to ensure that women genuinely choose how to take the period of leave, whilst still ensuring a period of compulsory post-natal leave.

89 Eight EU Member States have ratified Art 8 ESC, albeit some have accepted only certain paragraphs: Czech Republic (paras 1, 2 and 3 only), Denmark (para 1), Germany (paras 1 and 3), Greece, Latvia, Poland (paras 1, 2 and 3), Spain (paras 1, 2, 3 and 4(a)), UK (para 1). Eighteen Member States have accepted Art 8 (R) ESC, again some with restrictions: Austria (paras 1, 3, 4 and 5 only), Belgium, Bulgaria, Cyprus (paras 1, 2, 3 and 5), Estonia, Finland (paras 2 and 4), France, Hungary, Ireland (paras 1, 2, 4 and 5), Italy, Lithuania, Malta (paras 1, 2, 4 and 5), Netherlands, Portugal, Romania, Slovakia, Slovenia, Sweden (paras 1 and 3). 90 Conclusions VIII, Statement of Interpretation on Art 8§1, p 123. 91 European Social Charter (Revised), European Committee of Social Rights, Conclusions 2011,Vol 1, p 9.

Cathryn Costello

907

Part I – Commentary on the Articles of the EU Charter

33.47

Maternity leave must be accompanied by the continued payment of the individual’s wage or salary or by the payment of social security benefits or benefits from public funds. The Committee has accepted as ‘adequate’ payments at 70 per cent of the previous salary,92 and payments going from 82 per cent of gross salary to 75 per cent thereof.93 The Committee accepts qualifying periods, but these must be reasonable. It has deemed periods of unemployment as counting to the calculation of those qualifying periods.94 Protection Against Dismissal

33.48 While the protection against dismissal under Article 8(2) applies equally to women on fixed-term and open-ended contracts, it is not absolute. In contrast to the CJEU case law, it permits dismissal if the period prescribed in the employment contract expires.95 In addition, Article 8(2) allows limited exceptions in certain cases such as misconduct of such gravity as to justify terminating the employment relationship and if the undertaking ceases to operate. The Committee in 2011 issued a Statement of Interpretation on Articles 8(2) and 27(3): ceiling on compensation for unlawful dismissal.96 Its terms are redolent of the Luxembourg case law on effective remedies,97 requiring that ‘compensation for unlawful dismissal must be both proportionate to the loss suffered by the victim and sufficiently dissuasive for employers’. Accordingly ‘[a]ny ceiling on compensation that may preclude damages from being commensurate with the loss suffered and sufficiently dissuasive are proscribed.’ Breast-feeding Leave 33.49 Article 8(3) requires women to be afforded ‘sufficient’ time off for breastfeeding. The Committee has deemed diverse national practices to meet this requirement. For example, the Committee has accepted legislation providing for two daily breaks for a period of one year for breastfeeding, or two half-hour breaks where the employer provides a room for breastfeeding;98 a one-hour break each working day;99 and entitlement to begin or leave work earlier.100 The CJEU ruling in Roca Álvarez101 has placed these types of leave under stricter scrutiny. Where in practice they serve to allow time-off for child-care generally (rather than breastfeeding specifically), then reserving them exclusively to mothers rather than fathers will offend the EU equality guarantees.

92

Conclusions XVII-2, Latvia, p 488. Conclusions XV-2, Belgium, p 87. 94 Conclusions XV-2, France, p 197. 95 Conclusions 2005, Estonia, pp 144–45. 96 European Social Charter (Revised), European Committee of Social Rights, Conclusions 2011, Vol 1, General Introduction, Statement of interpretation on Arts 8§2 and 27§3: ceiling on compensation for unlawful dismissal, p 15. 97 Case C-14/83 Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen [1984] ECR-01891. 98 Conclusions I, Italy, p 51. 99 Conclusion I, Germany, p 191. 100 Conclusions 2005, France, p 228. 101 Case C-104/09 Roca Álvarez, above n 58. 93

908

Cathryn Costello

Art 33 – Family and Professional Life

Night Work and Dangerous Work The Committee has issued detailed guidance on these provisions, to ensure that protec- 33.50 tive measures are not used to exclude women from employment.102 (c) Article 27, Revised European Social Charter The Explanatory Note to Article 33(2) also provides that it is partly based on Article 27 33.51 (R)ESC on ‘The right of workers with family responsibilities to equal opportunities and equal treatment.’ It provides: With a view to ensuring the exercise of the right to equality of opportunity and treatment for men and women workers with family responsibilities and between such workers and other workers, the Parties undertake: 1. to take appropriate measures: a. to enable workers with family responsibilities to enter and remain in employment, as well as to re-enter employment after an absence due to those responsibilities, including measures in the field of vocational guidance and training; b. to take account of their needs in terms of conditions of employment and social security; c. to develop or promote services, public or private, in particular child daycare services and other childcare arrangements; 2. to provide a possibility for either parent to obtain, during a period after maternity leave, parental leave to take care of a child, the duration and conditions of which should be determined by national legislation, collective agreements or practice; 3. to ensure that family responsibilities shall not, as such, constitute a valid reason for termination of employment.

The Appendix to the (R)ESC provides that ‘[i]t is understood that this article applies 33.52 to men and women workers with family responsibilities in relation to their dependent children as well as in relation to other members of their immediate family who clearly need their care or support where such responsibilities restrict their possibilities of preparing for, entering, participating on or advancing in economic activity. The terms “dependent children” and “other members of their immediate family who clearly need their care and support” mean persons defined as such by the national legislation of the Party concerned.’ Sixteen EU Member States have ratified this provision, albeit with some only choosing certain sub-paragraphs.103 In its pronouncements on Article 27(1)(b), the Committee seems to be developing 33.53 a right to demand working time adaptation for workers with family responsibilities. For instance, it has held that workers with family responsibilities should be allowed to work part-time or to return to full-time employment.104 In its recent Conclusions, the Committee insists that parental leave under Article 27(2) is distinct from maternity or

102 Conclusions X-2, Statement of Interpretation on Art 8(4), p 97. Conclusions X-2, Statement of Interpretation on Art 8(5), p 97. 103 Austria (paras 1 and 2), Bulgaria (paras 2 and 3), Cyprus (paras 2 and 3), Estonia, Finland, France, Ireland (paras 1(a) and (b), 2 and 3), Italy, Lithuania, Malta (paras 2 and 3), Netherlands, Portugal, Romania (para 2), Slovakia (paras 1 and 2), Slovenia and Sweden. 104 Conclusions 2005, Statement of Interpretation on Art 27(1)(b); see for example Estonia, p 213.

Cathryn Costello

909

Part I – Commentary on the Articles of the EU Charter

paternity leave, which fall under Article 8(1).105 If the state is bound by Article 16, its provisions apply to childcare.106 The Committee has shown an awareness of the importance of encouraging men to take up parental leave, and so has stated that leave should be an ‘individual right’ which ‘[w]ith a view to promoting equal opportunities and equal treatment between men and women, the leave should, in principle, be provided on a non-transferable basis to each parent.’ It has also urged that the Committee said that it ‘recalls in this respect that remuneration of parental leave (be it continuation of pay or via social assistance/social security benefits) plays a vital role in the take up of childcare leave, in particular for fathers or lone parents’.107 33.54 As mentioned above, the Committee in 2011 issued a Statement of interpretation on Article 8(2) and 27(3): ceiling on compensation for unlawful dismissal.108 33.55 There have been two failed attempts to rely on Article 27 in collective complaints. In Complaint No 9/2000 Confédération Française de l’Encadrement CFE-CGC v France, the Complainant Organisation, representing French managers, argued that their exclusion from the Aubry Act II, which provided for the reduction of working hours, was a breach of Article 27 (R)ESC, as well as Articles 2(1),109 and 4(2).110 While the claim based on the latter provisions succeeded, the Committee was unwilling to take an expansive reading of Article 27. The complainant argued that that the absence of a maximum weekly limit denied to managerial staff a reduction in working time that would allow them to reconcile family and professional life. It claimed that mangers were thus excluded from what it construed as the main objective of the Aubry Act II, the better organisation of working life, in particular by permitting more free time for employees to spend with their families and children. The Committee stated that Article 27 (R)ESC required states to take measures in favour of workers with family responsibilities. However, in its view, this was not the ‘direct purpose’ of the impugned Act (para 54). In addition, ‘the ground relied on by the complainant trade union is not that the Government failed to take positive measures. Accordingly, the argument advanced is irrelevant.’ On this scanty basis, the Committee concluded that the situation complained of was not contrary to Article 27 of the revised Social Charter (para 55). A similar attempt to rely on both Article 20 (non-discrimination) and 27 failed in Complaint No 56/2009 Confédération française de l’Encadrement CFE-CGC v France, where the Committee held that the legal issues were considered under the other heads of argument. These rulings are disappointing, a failed opportunity to clarify the content of Article 27. They may be explicable by the Committee’s choice to rely on more widely ratified provisions. The tentative approach is in contrast to the more robust statements in its 2011 Conclusions set out above.

105

Conclusions 2011, Vol 2, France, p 478. Digest, p 160. 107 Conclusions 2011, Vol 2, Netherlands, p 870. Variants of this quotation also occur in the 2011 Conclusions for Georgia (540), Ireland (589), Italy (646), Lithuania (705) and Malta (743). 108 See n 96 above. 109 Art 2(1) (R)ESC: ‘to provide for reasonable daily and weekly working hours, the working week to be progressively reduced to the extent that the increase of productivity and other relevant factors permit’. 110 Art 4(2) (R)ESC: ‘to recognise the right of workers to an increased rate of remuneration for overtime work, subject to exceptions in particular cases’. 106

910

Cathryn Costello

Art 33 – Family and Professional Life

IV. Other Sources (a) EU Legislative Sources The Explanation to Article 33(2) notes at the outset that it draws on the Pregnant 33.56 Workers Directive and the Parental Leave Directive. Each of these measures is analysed in turn in this section. Pregnant Workers Directive The Pregnant Workers Directive111 was adopted to protect the health and safety of pregnant workers, based on the health and safety legal base in the Treaties. The ‘health and safety’ ethos of the measure is complemented by the strong equality-based protections for pregnant workers developed by the Court in its case law treating discrimination on grounds of pregnancy as direct sex discrimination.112 Article 33(2), in contrast, frames the right to ‘protection from dismissal for a reason connected with maternity and the right to paid maternity leave’ as aiming to ‘reconcile family and professional life.’ The Directive applies to ‘workers’ which is construed in light of the meaning given that term in the internal market context and under the Treaty equal pay guarantee, so that it may include those not regarded as ‘employees’ under national law, such as a remunerated company director.113 The key issue is whether the person performs services for and under the direction of another person in return for which she receives remuneration.114 The Directive provides for time off for pre-natal examinations; a continuous period of at least 14 weeks’ maternity leave with an ‘adequate allowance’ during that leave; and protection against dismissal.115 The protection against dismissal has subsumed the case law under the Equal Treatment Directive, but that jurisprudence remains pertinent given its broader personal scope and applicability to a wider range of scenarios, including refusals to hire or to renew fixed-term contracts on grounds of pregnancy.116 Notably, the entitlement to maternity pay may be made conditional on previous employment of up to 12 months prior to the presumed date of confinement.117 The Directive includes a provision on effective remedies, discussed further below.118 Notably, the failed proposal to amend the Pregnant Workers Directive119 would have based the Directive on both the health and safety (Art 153(2) TFEU) and equality (Art 157 TFEU) bases. The most significant change envisaged was the extension of maternity leave from 14 to 18 weeks. The proposal would also have reflected the case law

111

Directive 92/85/EC [1992] OJ L348/1. Case C-177/88 Dekker [1990] ECR I-3941; Case C-179/88 Hertz [1990] ECR I-3979; Case C-32/93 Webb v EMO [1994] ECR I-3567. Admittedly, as is discussed below, the equality guarantee does not extend to ensure equal pay may whilst on maternity leave: Case C-342/93 Gillespie [1996] ECR I-475. 113 Case C-232/09 Dita Danosa [2010] ECR I-11405 [46]. 114 Case C-320/00 Lawrence [2002] ECR I–7325. 115 Art 10. See Case C-438/99 Jiménez Melgar [2001] ECR I-6915. 116 Ibid. 117 Art 11(1), 11(2)(b) and 11(4). 118 Art 13. See Case C-63/08 Pontin v T-Comalux SA [2009] ECR I-10467. 119 COM (2008) 600/4. 112

Cathryn Costello

911

33.57

33.58

33.59

33.60

Part I – Commentary on the Articles of the EU Charter

on pregnancy dismissal and clarified rights on return to work. It also included a right to request flexible working on return to work, akin to that now applicable under the 2010 Recast Parental Leave Directive. It is an odd result that this right applies now only after parental leave, but not after maternity leave. 33.61 In Kiiski,120 the CJEU referred to the ESC and (R)ESC in coming to the conclusion that ‘the right to maternity leave granted to pregnant workers must be regarded as a particularly important mechanism of protection under employment law’. 2010 Parental Leave Directive 33.62 The Explanatory Note clarifies that Article 33(2) also draws on Directive 96/34/EC on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, the first agreement to emerge from the EU’s social dialogue structures. It aims to lay down minimum requirements to facilitate the reconciliation of parental and professional responsibilities for working parents.121 Its personal scope is confined to workers, who have ‘an employment contract or employment relationship’,122 so is narrower than the Pregnant Workers Directive. This Directive was repealed and recast in 2010, and a sister Directive on parental leave for the self-employed adopted.123 In and of itself, the recasting of the Directive raises an important question for the evolutive interpretation of the Article 33: if the Article draws on a Directive which has now been reformed, should the Charter provision be interpreted to reflect the enhanced protections in the new legislation? If the legislation enhances rights protection, a progressive approach to the realisation of social rights would suggest that it should. In addition, the extended personal scope of Directive 2010/41/EU should also be read into Article 33, particularly as the latter explicitly states that ‘everyone’ should enjoy these protections, as is discussed above. 33.63 Directive 2010/18/EU, like its predecessor, provides two main rights, parental leave124 and force majeure leave.125 New in this measure is a right to request flexible working for a ‘set period of time’ after return from parental leave.126 Of these three rights, only the right to parental leave is referred to in Article 33(2), so will be subject to discussion here. However, it is noteworthy that although Article 33 is framed as aiming ‘[T]o reconcile family and professional life’. It instantiates only a small selection of the discrete rights which are required to meet that aim, as is discussed further in section D below. Directive 2010/18/EU has increased the period of leave from three months to four 33.64 months, and also provides that at least one month’s leave is non-transferable between parents, a small gesture towards ensuring that fathers take up a greater parenting role. Leave must be available ‘until a given age’ of the child, up to his or her eighth year,127

120

Case C-116/06 Kiiski [2007] ECR I-7643 [49]. 2010 Parental Leave Directive cl 1(1). 122 2010 Parental Leave Directive cl 1(2). Ibid cl 1(3) seeks to ensure that all types of contracts are covered. 123 Directive 2010/18/EU, above n 5. 124 2010 Parental Leave Directive cl 2. 125 2010 Parental Leave Directive cl 7. 126 2010 Parental Leave Directive cl 6(1). 127 2010 Parental Leave Directive cl 2(1): ‘This agreement entitles men and women workers to an individual right to parental leave on the grounds of the birth or adoption of a child to take care of that child until a given age up to eight years to be defined by Member States and/or social partner.’ 121

912

Cathryn Costello

Art 33 – Family and Professional Life

allowing Member States great discretion as to the timing of the availability of leave. They may decide ‘whether parental leave is granted on a full-time or part-time basis, in a piecemeal way or in the form of a time-credit system, taking into account the needs of both employers and workers’.128 The right to parental leave is afforded to workers, not children, notwithstanding 33.65 Article 24 EUCFR. As the Court stated in Chatzi: That article … states that children are to have the right to such protection and care as is necessary for their well-being. However, this right to protection and care does not mean that children have to be acknowledged as having an individual right to see their parents obtain parental leave. It is sufficient for such a right to be conferred on the parents themselves. It is they who have both the right and the duty to bring up their children and who, for that purpose, can decide on how best to perform their parental responsibilities, in choosing whether or not to have recourse to parental leave.129

The practical ramification in Chatzi was that the Court rejected the applicant’s argu- 33.66 ment that in the case of twin babies, the leave entitlement should be doubled. However, the Court did oblige the Member State to take the particular needs of parents of multiples into account, whilst being careful to preserve national discretion over the modalities of leave. Ultimately, it left it to the national court to assess whether the mode chosen would ‘meet, in a specific case, the particular needs of the parents of twins in their work and family life’.130 While shying away from the language of rights in this statement, the Court does seem to be moving towards an enforceable entitlement to have tailored leave arrangements. To be effective, the right to parental leave must be underpinned by protection against 33.67 dismissal on grounds of taking that leave131 and the right to work.132 Article 33(2) only refers to protection against dismissal ‘for a reason connected with maternity’. However, dismissal on grounds of taking parental leave ought to be regarded as unjustified under Article 30 EUCFR.133 The glaring shortcoming is that there is no requirement that parental leave be paid, 33.68 as is also reflected in Article 33, where maternity leave is ‘paid’ whilst there is no such express requirement as to parental leave. Not only does this mean that parents taking leave will be immediately financially disadvantaged (unless the Member State concerned provides for paid leave), but this disadvantage may be compounded, as illustrated in Gomez-Limon.134 Gomez-Limon argued that calculating a pension on the basis of the (reduced) contributions actually paid while on parental leave was in breach of the Parental Leave Directive. The Court rejected these claims, as the Directive does not provide such an entitlement expressly. As Advocate General Sharpston noted, an ‘attractive argument’ could be made for not reducing entitlement to benefits during parental leave

128 129 130 131 132 133 134

2010 Parental Leave Directive cl 3(1). Chatzi, above n 27 [39]. Ibid [74]. 2010 Parental Leave Directive cl 5(4). 2010 Parental Leave Directive cl 5(2). See section B above. Case C-537/07 Gomez-Limon [2009] ECR I-6525.

Cathryn Costello

913

Part I – Commentary on the Articles of the EU Charter

so as to support substantive equality, but one could not read the existing state of EU law as imposing such a requirement.135 (b) The Community Charter of Fundamental Social Rights of Workers 1989 33.69 The non-binding Community Charter of Fundamental Social Rights of Workers 1989 served as a programme for legislative action for EU labour law for a time. It contains a provision on equal treatment for men and women (Art 16), which states that ‘Measures should also be developed enabling men and women to reconcile their occupational and family obligations.’ However, it did not specify which sorts of policies were appropriate, nor did it identify unequal caring burdens as a particularly intractable manifestation of gender inequality. Notably, the Charter contained no reference to pregnancy or maternity. The notion of fair remuneration in the Charter suggests the male, or at least the ‘main breadwinner’ model, in that it refers to an equitable wage as ‘enabling the worker … to continue to enjoy the necessary means of subsistence for himself and his family’ (Art 5(3)). (c) ILO Conventions 33.70 Several ILO Conventions are pertinent to the issue of the reconciliation of family and working life. Clearly, the Discrimination (Employment and Occupation) Convention, 1958 (No 111) is relevant. All EU Member States have ratified Convention 111, one of the eight ‘fundamental’ ILO Conventions. However, the focus here will be on the two most pertinent to reconciliation, namely ILO Convention on Maternity Protection (Revised) (No 183) of 2000 and ILO Convention on Workers with Family Responsibilities, 1981 (No 156). Notably, the ILO’s list of eight ‘fundamental’ ILO Conventions does not include these two.136 33.71 Twelve EU Member States have ratified Convention No 183,137 while eleven have ratified Convention 156.138

135 Opinion, paras 54–55. One might speculate whether a creative reading of Art 34(1) EUCFR might also have been invoked in support of the applicant’s argument. 136 The eight fundamental ILO Conventions are: Forced Labour Convention 1930 (No 29); Freedom of Association and Protection of the Right to Organise Convention 1948 (No 87); Right to Organise and Collective Bargaining Convention 1949 (No 98); Equal Remuneration Convention 1951 (No 100); Abolition of Forced Labour Convention 1957 (No 105); Discrimination (Employment and Occupation) Convention 1958 (No 111); Minimum Age Convention 1973 (No 138); Worst Forms of Child Labour Convention 1999 (No 182). The ILO identifies these eight Conventions as embodying the rights which are fundamental to human beings at work, irrespective of the level of development of individual Member States. They are said to embody the core labour principles endorsed by the international community. It has declared that all ILO members, even if they have not ratified the Conventions in question, have an obligation arising from the very fact of membership in the ILO to respect, to promote and to realise, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights, which are the subject of those Conventions, namely: (a) freedom of association and the effective recognition of the right to collective bargaining; (b) the elimination of all forms of forced or compulsory labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation. (ILO Declaration on Fundamental Principles and Rights at Work 1998.) 137 Austria, Bulgaria, Cyprus, Hungary, Italy, Latvia, Lithuania, Luxembourg, Netherlands, Romania, Slovakia and Slovenia. 138 Bulgaria, Finland, France, Greece, Lithuania, Netherlands, Portugal, Slovakia, Slovenia, Spain and Sweden.

914

Cathryn Costello

Art 33 – Family and Professional Life

The ILO pioneered maternity protection in the workplace, with its first Convention on 33.72 this topic dating from 1919.139 Its current instrument is ILO Convention on Maternity Protection (Revised) (No 183) of 2000, which applies with the Maternity Protection Recommendation No 191. Although in principle it applies to all workers, states are permitted to exclude categories of women workers from the scope of the Convention.140 The right to maternity leave is for 14 weeks (Art 4), with the Recommendation referring to 18 weeks. The payment granted should normally be no less than two-thirds of previous 33.73 earnings. Article 6(3) of the Convention provides: Where, under national law or practice, cash benefits paid with respect to leave referred to in Article 4 are based on previous earnings, the amount of such benefits shall not be less than twothirds of the woman’s previous earnings or of such of those earnings as are taken into account for the purpose of computing benefits.

33.74 The Recommendation, in contrast, envisages full pay. The Convention also protects against dismissal and enshrines the right to return to 33.75 work. Article 8 provides: 1. It shall be unlawful for an employer to terminate the employment of a woman during her pregnancy or absence on leave referred to in Articles 4 or 5 or during a period following her return to work to be prescribed by national laws or regulations, except on grounds unrelated to the pregnancy or birth of the child and its consequences or nursing. The burden of proving that the reasons for dismissal are unrelated to pregnancy or childbirth and its consequences or nursing shall rest on the employer. 2. A woman is guaranteed the right to return to the same position or an equivalent position paid at the same rate at the end of her maternity leave.

33.76

Article 9 guarantees non-discrimination on grounds of maternity: 1. Each Member shall adopt appropriate measures to ensure that maternity does not constitute a source of discrimination in employment, including—notwithstanding Article 2, paragraph 1—access to employment. 2. Measures referred to in the preceding paragraph shall include a prohibition from requiring a test for pregnancy or a certificate of such a test when a woman is applying for employment, except where required by national laws or regulations in respect of work that is: (a) prohibited or restricted for pregnant or nursing women under national laws or regulations; or (b) where there is a recognized or significant risk to the health of the woman and child.

33.77

It also provides for breastfeeding breaks in Article 10: 1. A woman shall be provided with the right to one or more daily breaks or a daily reduction of hours of work to breastfeed her child. 2. The period during which nursing breaks or the reduction of daily hours of work are allowed, their number, the duration of nursing breaks and the procedures for the reduction of daily hours of work shall be determined by national law and practice. These breaks or the reduction of daily hours of work shall be counted as working time and remunerated accordingly.

139 ILO Convention No 3 on Maternity Protection 1919. It provided for 12 weeks’ leave, with sufficient benefits. This was later superseded by ILO Convention No 103 of 1952. 140 Art 2(2): ‘[E]ach Member which ratifies this Convention may, after consulting the representative organizations of employers and workers concerned, exclude wholly or partly from the scope of the Convention limited categories of workers when its application to them would raise special problems of a substantial nature.’

Cathryn Costello

915

Part I – Commentary on the Articles of the EU Charter

Convention on Workers with Family Responsibilities (No 156) 33.78 Following what has been described as an international feminist campaign,141 in 1981, the ILO adopted its Convention on Workers with Family Responsibilities (No 156) to supersede its 1965 Recommendation on Women Workers with Family Responsibilities.142 It was in part inspired by CEDAW.143 33.79 The Convention and its accompanying Recommendation No 165144 have two aims: first, to allow workers with family responsibilities to engage in work without discrimination, and secondly to reconcile work and family responsibilities, in particular by ensuring childcare provision. Notably, it applies not only to workers with children, but also where there is an ‘other member of the immediate family who clearly needs care or support’ (Art 1(2)). 33.80 The core right under Article 3(1) is non-discrimination: With a view to creating effective equality of opportunity and treatment for men and women workers, each Member shall make it an aim of national policy to enable persons with family responsibilities who are engaged or wish to engage in employment to exercise their right to do so without being subject to discrimination and, to the extent possible, without conflict between their employment and family responsibilities.

33.81 It also provides protection against dismissal.145 Most provisions of its other provisions are programmatic; for instance, Article 4 on free choice and conditions of employment,146 and Article 5 on community planning and community services, including child-care.147 Overall then, the Convention is a flexible instrument, which at best can help to support the formulation of appropriate domestic policies. The attendant Recommendation goes further, and in Article 22 envisages parental leave.148

141 L Savery, Engendering the State: The International Diffusion of Women’s Human Rights (Abingdon, Routledge, 2007) 74. 142 Employment (Women with Family Responsibilities) Recommendation 1965 (No 123). 143 Raday, ‘Art 11’ above n 70, 281. 144 Which supersedes the Employment (Women with Family Responsibilities) Recommendation 1965. 145 Family responsibilities shall not, as such, constitute a valid reason for termination of employment (Art 8). 146 Art 4: ‘With a view to creating effective equality of opportunity and treatment for men and women workers, all measures compatible with national conditions and possibilities shall be taken: (a) to enable workers with family responsibilities to exercise their right to free choice of employment; and (b) to take account of their needs in terms and conditions of employment and in social security.’ 147 Art 5: ‘All measures compatible with national conditions and possibilities shall further be taken: (a) to take account of the needs of workers with family responsibilities in community planning; and (b) to develop or promote community services, public or private, such as child-care and family services and facilities.’ 148 Art 22 Workers with Family Responsibilities Recommendation, 1981 (No 165): ‘(1) Either parent should have the possibility, within a period immediately following maternity leave, of obtaining leave of absence (parental leave), without relinquishing employment and with rights resulting from employment being safeguarded. (2) The length of the period following maternity leave and the duration and conditions of the leave of absence referred to in subparagraph (1) of this Paragraph should be determined in each country by one of the means referred to in Paragraph 3 of this Recommendation. (3) The leave of absence referred to in subparagraph (1) of this Paragraph may be introduced gradually.’

916

Cathryn Costello

Art 33 – Family and Professional Life

D. Analysis I. General Remarks It would be easy to be underwhelmed by Article 33. At first look, Article 33(1) is of such 33.82 breadth and generality that it is liable to be categorised as a mere ‘principle’, while Article 33(2) evidently restates existing protections. However, it would be wrong to dismiss Article 33 as entirely inert. Given that Article 33(1) draws from Article 16 ESC, there is a detailed Treaty text and 33.83 rich body of European Social Committee material fleshing out the distinct aspects of ‘economic, legal and social’ protection required. The Committee reports provide useful considered guidance on matters of concern to the EU, where EU policy seems to be lacking. For instance, there is guidance on the quality of childcare, while EU policy focuses on the quantity thereof. The critique of Article 33(2) is more compelling. It is worth recalling McGlynn’s early 33.84 assessment: Unfortunately, the EU Charter of Fundamental Rights simply reproduces the existing position, rather than attempts to map a more progressive approach to reconciliation and thereby to parenthood … [Article 33(2)] restates existing entitlements … This provision reinforces a hierarchical gendered division of preference for motherhood over fatherhood, via the provision of paid maternity leave, followed by (unpaid) parental leave, and no provision for paternity leave.149

33.85 Admittedly, Article 33(2) contains a derisory set of rights. A comprehensive approach to the reconciliation of family and working life would 33.86 entail measures not only on specific leave related to care of children, but also on adaptation of working time generally, and for childcare.150 Nonetheless, framing reconciliation issues as fundamental rights may transform them. A transformative human rights approach to reconciling family and professional life would focus on the human rights of both carer and care-recipient, shaping a new vision more attuned to lived experience, the centrality and value of care, and equality between women and men. Drawing on Caracciolo di Torella, under a fundamental right to reconciliation: 1. Reconciliation would be an issue not just for mothers, but also fathers and other caregivers, with an emphasis on equalising caring burdens between parents. 2. The recipients of care would be expanded beyond children, to all dependents in need of care. 3. Traditional notions of family based on biological links would be superceded by a conception of family based on care-giving and mutuality. 4. A lifecourse approach would be adopted, in which the reality that care needs vary in nature and intensity from infancy to old age would be acknowledged.151

149 C McGlynn, ‘Work, Family and Parenthood: the European Union Agenda’ in Conaghan and Rittich, Labour Law, Work and Family, above n 6, 217, 228. 150 These are the ‘three pillars’ which form the basis of the account in E Caracciolo di Torella and A Masselot, Reconciling Work and Family Life in EU Law and Policy (Basingstoke Palgrave Macmillan, 2010). 151 These requirements are adapted from E Caracciolo di Torella, ‘Is there a fundamental right to reconciling work and family life in the EU?’ in N Busby and G James (eds), Families, Care-giving and Paid Work: Challenging Labour Law in the 21st Century (Cheltenham, Edward Elgar, 2011) 52, 56.

Cathryn Costello

917

Part I – Commentary on the Articles of the EU Charter

33.87 While Article 33 does not in itself signal any of these four changes, by situating the issue in the Charter, modes of fundamental rights argumentation open up which may move in that direction, in particular when Article 33 is read with other Charter provisions identified in section B. Each of these changes would involve an expansion in the Scope of Application of reconciliation policies, so is discussed further in the next section. 33.88 Treating reconciliation of family and working life as a fundamental right should not close off other more progressive narratives and visions. Busby’s right to care,152 while it has many affinities with the approach set out above, goes further in that would entail an enforceable right to reasonable accommodation in the workplace for all carers. Collins’ right to flexibility153 is also radical, in that it would recalibrate the basic bargain between worker and employer on the control of working hours, not simply in order to facilitate family life, but to grant all workers greater autonomy. Collins identifies alternative methods to institutionalise this right, with a reasonable accommodation duty the most demanding of them.154 A duty of reasonable accommodation may be developed from the right not to be discriminated against. Given the general right to family life in the Charter, and its general non-discrimination guarantee, reading these together to prompt judicial recognition of a right to some sort of workplace accommodation seems a fruitful strategy. The ethos, if not the text of Article 33, could be deployed. However, invitations to such judicially creative moves will face considerable textual and institutional hurdles.

II. Scope of Application (a) Personal Scope of Article 33(1) 33.89 The notion of family under Article 33(1) should be interpreted broadly, given that it is based on Article 16 ESC, which is understood to encompass family in the sense of Article 8 ECHR and all forms of relationship regarded as constituting family life under domestic law. As the provision acknowledges ‘family’ as prior to formal status, this should open the way for a broad conception based on de facto ties and care. (b) Material Scope of Article 33(1) 33.90 The key question concerning Article 33(1)’s material scope is whether it constitutes a right or a principle. It would seem that it is liable to be understood to constitute a principle, in which case it is only ‘judicially cognisable’ in the interpretation of other EU measures, or in the determination of their validity. However, as there are so many EU laws and policies which have an impact on family life, the status of principle should not be regarded as rendering Article 33(1) deadletter.

152

N Busby, A Right to Care? Unpaid Care Work in European Employment Law (Oxford, OUP, 2011). H Collins, ‘The Right to Flexibility’ in Conaghan and Rittich, Labour Law, Work, and Family, above n 6, 99–124. 154 While the aim is radical, the three possible means of securing this right are readily available. He examines a duty to bargain in good faith on flexible working; a right to ask for flexible working hours with rejection only on objective grounds; and a duty of reasonable accommodation. 153

918

Cathryn Costello

Art 33 – Family and Professional Life

(c) Personal Scope of Article 33(2) Concerning personal scope, Article 33(2) applies to ‘everyone’, wider even than the ‘every 33.91 worker’ formulation used in other provisions. In contrast, the Directives apply to a defined range of ‘workers’, with the Pregnant Workers Directive having a broader personal scope than the Parental Leave Directive. As discussed above, the EU concept of ‘worker’ is broader than the notion of ‘employee’ under domestic employment law.155 Nonetheless, it is not allembracing, so there will be those whose position is not covered by the Directives in question. Ordinarily, the position of an individual who does not fall within the personal scope of the Directives might not be covered by EU law at all. However, there is also an important set of EU Directives covering atypical workers.156 As Mangold157 illustrated, if a Member State is implementing one of these (or any other) EU Directive, it will be acting within the scope of EU law, and will consequently be bound by EU fundamental rights (qua general principles and/or the EUCFR).158 Accordingly, the worker in question could invoke the protections of Article 33(2) against the Member State. As is the orthodox position under EU law, national law would have to be interpreted as far as possible to bring it into conformity with the EU fundamental right,159 or in extremis, a national judge would be obliged to set aside the contradictory national law and give effect to the EU fundamental right.160

III. Specific Provisions and Issues (a) Equalising Care Burdens? Article 33 is a fundamental rights guarantee. Yet at present, a ‘right’ to reconcile family 33.92 and working life belies the existence of considerable caring burdens and responsibilities, which are distributed unequally between men and women. Equal caring can of course mean equally poor rights for both parents, as exemplified by the US approach, where an equality frame arguably acts as an impediment to the development of rights to reconciliation.161 However, a transformative equality approach would encourage men to take on more active caring roles, leading to a fairer distribution of parental and other caring obligatons. The CEDAW Committee and the ESC Committee (in its recent pronouncement on Article 27 (R)ESC) both advocate an approach to parental leave which requires 155

See section C.IV(a) above. Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC—Annex: Framework agreement on part-time work [1998] OJ L14/9; Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP [1999] OJ L175/43; Directive 2008/104/EC of the Parliament and Council of 19 November 2008 on temporary agency work [2008] OJ L327/19. 157 Mangold, above n 7. 158 Case C-617/10 Fransson (26 February 2013) [21] confirms that the scope of the Charter and the general principles are the same. 159 Cases C-397/01 to C-403/01 Pfeiffer and Others [2004] ECR I-8835; Kamberaj, above n 78. 160 Mangold, above n 7. The Court stated at para 78 that ‘it is the responsibility of the national court to guarantee the full effectiveness of the general principle of non-discrimination in respect of age, setting aside any provision of national law which may conflict with Community law, even where the period prescribed for transposition of that directive has not yet expired.’ 161 J Suk, ‘Are Gender Stereotypes Bad for Women? Rethinking Antidiscrimination Law and Work-Family Conflict’ (2010) 110 Columbia Law Review 1. 156

Cathryn Costello

919

Part I – Commentary on the Articles of the EU Charter

or at least encourages men to take up parental leave. Paid, individual, non-transferable leave entitlements are the Committee’s identified best practice.162 Admittedly, this vision is not expressly required by the texts of the provisions themselves, but rather comes from concerns to ensure equality between men and women. While Article 33(2) provides two maternity rights, the constitutionalisation of the right to parental leave is significant, particularly given the paucity of analogous guarantees in other systems. 33.93 As mentioned above, the CJEU pioneered protections for pregnant workers by treating pregnancy discrimination as direct sex discrimination. Initially, its equality case law was indulgent of Member States’ special protections for mothers. For instance, in Hofmann,163 a father’s attempt to claim a state benefit afforded to women failed. Mr Hofmann had cared for his child from the age of eight weeks to six months, facilitating the child’s mother’s return to work. The CJEU refused the claim under the Equal Treatment Directive, stating notoriously that the measure was ‘not designed to settle questions concerning the organization of the family, or to alter the division of responsibility between parents’.164 Some special rights for mothers may be regarded, under limited circumstances, as permissible positive action, provided that similarly situated fathers may also access the benefits in question. In the case of Lommers, decided in 2002, for instance, allocating a limited number of subsidised childcare places to working mothers was deemed a proportionate form of positive action, provided that fathers could exceptionally access these places if they ‘took care of their children by themselves’. In this context then, only single fathers could demand equal treatment with mothers.165 However, the strongest trend in more recent jurisprudence is to regard special rights for mothers to care for children as in breach of EU equality law, as they are liable to perpetuate gender stereotypes and unequal caring burdens. This approach is evident in Griesmar166 and Roca Álvarez,167 both cited by the ECtHR in Markin v Russia, discussed above. This cross-fertilisation demonstrates that EU law exerts influence on the wider Council of Europe system. 33.94 Roca Álvarez168 concerned a Spanish measure giving employed women a right to time off, originally conceived of as allowing them to continue breastfeeding after returning to work. In practice, the leave was no longer used for breastfeeding, but was taken by mothers generally. All employed mothers were entitled to the leave, but employed fathers could not claim it unless their wives were also employees. The applicant man was married to a self-employed woman, and complained that the Spanish law breach his rights under the EU Sex Equality Directive.169 The Court agreed, stating that ‘the positions of a male and a female worker, father and mother of a young child, are comparable with regard to their possible need to reduce their daily working time in order to look after their child’.170 The Court adopted an anti-stereotyping approach, pointing out that to give

162

Section C.II(c) above. Case 184/83 Ulrich Hofmann v Barmer Ersatzkasse [1984] ECR 3047. 164 Ibid [1]. 165 Case C-476/99 H Lommers v Minister van Landbouw, Natuurbeheer en Visserij [2002] ECR I-02891. 166 Case C-366/99 Griesmar, above n 57. 167 Case C-104/09 Roca Álvarez, above n 58. 168 Ibid. 169 Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) [2006] OJ L 204/23. 170 Roca Álvarez, above n 58 [24]. 163

920

Cathryn Costello

Art 33 – Family and Professional Life

this right only to an employed mother, and not an employed father, would be ‘liable to perpetuate a traditional distribution of the roles of men and women by keeping men in a role subsidiary to that of women in relation to the exercise of their parental duties’.171 It would mean that a mother would ‘bear the burden resulting from the birth of her child alone, without the child’s father being able to ease that burden’.172 Article 33(2) reflects an unequal system, with paid maternity leave, and unpaid 33.95 parental leave. However, the CJEU case law seems to be moving towards requiring equal treatment of mothers and fathers in some circumstances. Requiring equal treatment without a floor of substantive rights may risk levelling down, so Article 33 may be useful to ensure that existing entitlements are not whittled away in the name of equality. Rather, it would be open to the Court to treat national privileges for mothers as instantiations of the right to reconcile family and working life, but insist on their equal distribution amongst parents, caregivers even, irrespective of gender. (b) Family, Beyond Biology The rights in Article 33(2) relate to ‘maternity’ and ‘parenthood’. The interpretative note 33.96 thereto seems to endorse a biological conception of ‘maternity’, stating that ‘“Maternity” covers the period from conception to weaning.’ The ‘health and safety’ ethos of the Pregnant Workers Directive explains its focus on the biological processes of pregnancy, confinement and breastfeeding. In contrast, the Parental Leave Directive encourages Member States to define additional measures for the taking of leave by adoptive parents.173 Two recent references have brought before the CJEU the question of whether women 33.97 who are to become mothers to babies born to surrogate mothers are entitled to maternity leave.174 While both the references frame the issues differently, it is difficult to imagine that the CJEU will avoid the fundamental rights dimension to the cases. There is no ECtHR case law directly on point, its general approach assumes the existence of family life between birth mother and child, and the mother’s spouse.175 An unmarried father establishes family life by demonstrating care, so on the same logic, the couple or woman who commission the surrogacy could demonstrate their family life by caring for the child and indeed supporting the surrogate mother.176

171

Ibid [36]. Ibid [37]. 173 2010 Parental Leave Directive cl 2(1). 174 Case C-363/12 Z v A Government Department and the Board of Management of a Community School [2012] OJ C311/5. The national tribunal asks whether the refusal of maternity leave to a mother of a child born via a surrogacy arrangement was sex discrimination under the 2006 Recast Sex Discrimination Directive, and if not, whether that Directive was compatible with the Charter. The reference refers to Arts 21, 23, 33 and 34 of the Charter. The reference also asks whether the refusal amounts to disability discrimination, and in that context invokes the UN Convention on the Rights of Persons with Disabilities. Case C-167/12 CD v ST [2012] OJ C194/9. A further reference from a UK tribunal also asks whether ‘an intended mother who has a baby through a surrogacy arrangement’ is entitled to maternity leave under the Pregnant Workers Directive, or whether the refusal of such leave would be sex discrimination of discrimination by association. 175 See section C.I above. 176 See further, S Choudhry and J Herring, European Human Rights and Family Law (Oxford, Hart Publishing, 2010) 175–77. 172

Cathryn Costello

921

Part I – Commentary on the Articles of the EU Charter

(c) Focus on Care Recipients—Children and Others? 33.98 As mentioned in section B above, EU reconciliation polices stand accused of being insensitive to children’s rights. For instance, the fact that adoptive leave is identical to leave after the birth of a child is inattentive to the very different circumstances that each may entail, including as regards the age of the children in question. Moreover, EU childcare targets177 are quantitative. Article 24 may serve to bring much needed attention to the quality of childcare. Moreover, a children’s rights approach would support a greater role of fathers in caregiving too,178 not only to equalise caring burdens between men and women, but also for the benefit of children. 33.99 The most radical EU statement remains that in the 2000 Council Resolution on the balanced participation of women and men in family and working life,179 which refers to a ‘new social contract on gender’ and ‘a right to reconcile family and working life’. It refers not only to the care of children, but also care of elderly, disabled and other dependent persons. Both Article 27 (R)ESC and ILO Convention No 156 envisage adaptation for those with ‘family responsibilities’ not just parents. A creative court could read additional leave entitlements into Article 33(1), but clearly the text of Article 33(2) would be an impediment to such a development.

IV. Limitations and Derogations 33.100 Limitations and derogations are governed by the general clause in Article 52(1) which specifies that limitations must: (i) be provided for by law; (ii) respect the essence of those rights and freedoms; (iii) be subject to the principle of proportionality; (iv) be necessary; and (v) genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. Once a right is deemed ‘fundamental’, limitations thereto must be interpreted strictly. 33.101 This is best illustrated in the case law on the right to annual paid leave, where that right’s fundamental status led the Court to deem unacceptabe both long qualifying periods,180 and mechanisms where annual paid leave was ‘rolled-up’ into general remuneration, even under collective agreements, in order to avoid situations where workers would be discouraged from taking leave.181 For present purposes, the significance of this case law is that it illustrates that once a right is ‘fundamental’, limitations thereto must be interpreted strictly, and the Court will look closely at mechanisms whereby workers alienate their fundamental rights. Furthermore, under this normative hierarchy between the Charter (and EU fundamental rights qua general principles) and EU legislation, where EU legislation entails unacceptable restrictions on the fundamental rights set out in Article 33(2), those legislative restrictions may be annulled in order to vindicate

177

2000 Council Resolution, above n 11. James, above n 26, 366. 179 Above n 11. 180 Case C-173/99 R v Secretary of State for Trade and Industry, ex p Broadcasting, Entertainment, Cinematographic and Theatre Union (BECTU) [2001] ECR I-04881. 181 Cases C-131/04 and C-257/04 CD Robinson-Steele and Others v RD Retail Services Ltd and Others [2006] ECR I-02531. 178

922

Cathryn Costello

Art 33 – Family and Professional Life

the fundamental right in question. Test-Achats illustrates precisely this approach, with a limitation in an EU Directive being annulled for undermining the fundamental right to equality.182 Looking at the Parental Leave Directive, the most striking limitation on the right to 33.102 parental leave the Directive permits is a qualifying period of up to one year.183 Applying the reasoning in BECTU by analogy would lead one to question this provision, particularly when many workers who are most in need of reconciling work and family life are fixed-term workers, who may find it difficult to get to that period. Of course, one might object to the analogy on the basis of a difference between the two Directives: while the Working Time Directive at issue in BECTU merely contains a general license to set conditions for the leave, the Parental Leave Directive itself explicitly permits a one-year qualifying period. However, in response, it could be argued that the key question is not whether the limitation is expressly provided for in EU legislation, but rather whether the limitation in question (be it in EU or domestic legislation) undermines the effectiveness of the fundamental right in question. Even if the BECTU approach was not applied, and some qualifying periods are acceptable, the approach of the ESC may be drawn on, which allows ‘reasonable’ periods, and allows periods of unemployment to count to the qualifying period. All EU Directives must be interpreted in keeping with fundamental rights. In addition, it should be recalled that when the Member States implement EU Directives on atypical workers, including the Fixed-Term Workers Directive, they must respect the Charter, and indeed the general principles of EU Law. In these ways, the right to parental leave may be ‘read into’ the Fixed-Term Workers Directive.

V. Remedies Article 47 EUCFR encapsulates the extensive EU case law on effective judicial protection. 33.103 The EU right to an effective remedy was shaped by the Court of Justice in its equality jurisprudence in particular.184 In that regard, EU law has been at the vanguard. The European Social Rights Committee has taken inspiration from Luxembourg case law in its Statement of interpretation on Article 8(2) and 27(3): ceiling on compensation for unlawful dismissal.185 Pontin186 concerned dismissal on grounds of pregnancy under the Pregnant Workers 33.104 Directive. Under the law of Luxembourg, bringing an action against such dismissal was subject to a 15-day time-limit. The CJEU suggested that this was a breach of the principles of equivalence and effectiveness, but ultimately left the matter for the national court to assess. The national law in question also did not afford an action in damages, which was available to other dismissed employees. The Court also found this limitation

182 Case C-236/09 Association belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres [2011] ECR I-00773. See further C Tobler, ‘Case C-236/09, Association belge des Consommateurs Test-Achats ASBL, Yann van Vugt, Charles Basselier v Conseil des ministres, Judgment of the Court of Justice (Grand Chamber) of 1 March 2011, nyr’ (2011) 48 Common Market Law Review 2041–60. 183 Cl 3(1)(b). 184 C Kilpatrick, ‘Turning Remedies Around: A Sectoral Analysis of the European Court of Justice’ in G de Búrca, and JHH Weiler (eds), The European Court of Justice (Oxford, OUP, 2001) 143. 185 Above n 97. 186 Case C-63/08 Pontin [2009] ECR I-10467.

Cathryn Costello

923

Part I – Commentary on the Articles of the EU Charter

to be incompatible with the Directive, as it constituted less favourable treatment on grounds of pregnancy. In this way, the CJEU has maintained its orthodox position that remedies in damages against employers are not per se required to secure effective judicial protection, but if such remedies are available in analogous domestic situations, then the principle of equal treatment requires that they be extended to those who suffer similar breaches of EU law.187 33.105 Nothwithstanding the development of doctrines facilitating the indirect and incidental enforcement of directives, the orthodox EU law position remains that directives are not capable of ‘horizontal direct effect’, that is they do not, of themselves, produce obligations between private parties which national courts must enforce.188 In contrast, the general principles of EU law are capable of such effect. Assuming that at least those rights explicitly set out in Article 33(2) equate to ‘general principles’ means that they are enforceable as between private parties. 33.106 The EU equality Directives, in particular the Race and Recast Sex Equality Directives, have gone beyond the individual rights-based approach to enforcement, moving towards greater institutional enforcement, in particular by requiring the creation of Equality Bodies. As such, they have been characterised as ‘hybrid’ measures, entailing both an individual rights-based approach, and an institutional proactive approach. In contrast, the Pregnancy and Parental Leave Directives remain wedded to the individual approach, as does Article 47 EUCFR.

E. Evaluation 33.107 Article 33 is highly suggestive, yet its shortcomings are all too evident: Article 33(1) may be so vague and general as to be meaningless; while Article 33(2) enshrines such discrete, specific rights as to be unlikely in and of itself to make a contribution to reconciliation of work and family life. Admittedly, the constitutionalisation of the right to parental leave is striking, a development going beyond UN and ILO standards. Article 33(2) might at some point lead the ECtHR Strasbourg to treat parental leave as itself protected under Article 8 ECHR, as Judge Pinto de Albuquerque urged in Markin v Russia. It could draw on Article 27 (R)ESC and EU sources. However, as long as parental leave is unpaid, it remains ineffective for many workers. Moreover, without a strong commitment to equalise caring burdens, which involves non-transferable leave only for fathers as advocated by the ESC and CEDAW Committees along the ‘Scandinavian model’, Article 33(2) alone falls short. In light of the textual limitations of Article 33(2), it is difficult to envisage a bold leap 33.108 toward a judicially enforceable right to reconcile family and working life entailing all the elements envisaged by Caracciolo di Torella.189 Nor does it quite get us to Busby’s

187

Case C-271/91 Marshall II [1993] ECR I-4367. Case C-152/84 MH Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching) [1986] ECR 00723; Case C-91/92 Paola Faccini Dori v Recreb Srl [1994] ECR I-03325; Cases C-397/01 to C-403/01 Pfeiffer and Others, above n 159. 189 Caracciolo di Torella, ‘Is there a fundamental right to reconciling work and family life in the EU?’, above n 151. 188

924

Cathryn Costello

Art 33 – Family and Professional Life

right to care190 or Collins’ right to flexibility.191 In 2000, the EU promised a ‘new social contract on gender’ and ‘a right to reconcile family and working life’.192 That promise remains to be fulfilled. Article 33 certainly does not make its fulfilment any easier, or more likely. Nonetheless, like all Charter provisions, in spite of its textual limitations, it is replete with transformative potential, and may to open up space for creative human rights argumentation. Extending the availability of maternity leave and pay, and parental leave to atypical workers would be a small judicial step, with significant practical benefits for Europe’s most vulnerable workers. This could happen by subjecting qualifying periods to greater judicial scrutiny.193 If the ESC material on Article 16 were used it could breathe life and specificity into Article 33(1). The right to maternity leave and the related protection against dismissal, underpinned by EU prohibitions on pregnancy discrimination in recruitment and retention, enhances women’s job security. In addition, the right to parental leave ought to be read together with the Charter’s general prohibition on unjustified dismissal, to ensure the effectiveness of the right to take leave.

190

N Busby, A Right to Care?, above n 152. H Collins, ‘The Right to Flexibility’ in Conaghan and Rittich, Labour Law, Work, and Family, above n 6, 99–124. 192 2000 Council Resolution. 193 See section D.IV above. 191

Cathryn Costello

925

Article 34 Article 34 Social Security and Social Assistance The Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Community law and national laws and practices. Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Community law and national laws and practices. In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Community law and national laws and practices.

Text of Explanatory Note on Article 34 The principle set out in Article 34(1) is based on Articles 153 and 156 of the Treaty on the Functioning of the European Union, Article 12 of the European Social Charter and point 10 of the Community Charter on the rights of workers. The Union must respect it when exercising the powers conferred on it by Articles 153 and 156 of the Treaty on the Functioning of the European Union. The reference to social services relates to cases in which such services have been introduced to provide certain advantages but does not imply that such services must be created where they do not exist. ‘Maternity’ must be understood in the same sense as in the preceding Article. Paragraph 2 is based on Articles 12(4) and 13(4) of the European Social Charter and point 2 of the Community Charter of the Fundamental Social Rights of Workers and reflects the rules arising from Regulation (EEC) No 1408/71 and Regulation (EEC) No 1612/68. Paragraph 3 draws on Article 13 of the European Social Charter and Articles 30 and 31 of the revised Social Charter and point 10 of the Community Charter. The Union must respect it in the context of policies based on Article 153 of the Treaty on the Functioning of the European Union.

Select Bibliography Council of Europe, Social Security and Related Issues: English French Glossary (Strasbourg, CoE Publishing, 1998). ——, Anti-crisis Measures. Safeguarding Jobs and Social Security in Europe (Strasbourg, CoE Publishing, 2011). G de Búrca (ed), EU Law and the Welfare State. In Search of Solidarity (Oxford, Oxford University Press, 2005). M Dougan and E Spaventa (eds), Social Welfare and EU law. Essays in European Law (Oxford, Hart Publishing, 2005). A Gomez, Social Security as a Human Right—The Protection Afforded by the European Convention on Human Rights (Human Rights Files No 23) (Strasbourg, CoE Publishing, 2007).

Part I – Commentary on the Articles of the EU Charter

——, Social Security—Protection at the International Level and Developments in Europe (Strasbourg, CoE Publishing, 2009). U Neergaard, R Nielsen and L Roseberry (eds), Integrating Welfare Functions into EU law—From Rome to Lisbon (Copenhagen, DJØF Publishing, 2009). J Nickless, European Code of Social Security: Short Guide (Strasbourg, CoE Publishing, 2002). —— and H Seidl, Coordination of Social Security in the Council of Europe: Short Guide (Strasbourg, CoE Publishing, 2004). F Pennings, European Social Security Law, 5th edn (Cambridge, Intersentia, 2010). D Pieters, The Social Security Systems of the Member States of the European Union (Cambridge, Intersentia, 2002). M Ross and Y Borgmann-Prebil (eds), Promoting Solidarity in the European Union (Oxford, Oxford University Press, 2010). M Rowland and R White, Social Security Legislation 2013/14, Vol III: Administration Adjudication and the European Dimension (London, Sweet & Maxwell, 2013). W Van Ginneken, Sustaining European Social Security Systems in a Globalised Economy (Strasbourg, CoE Publishing, 2012). P Watson, Social Security Law of the European Communities (London, Mansell, 1980). R White, EC Social Security Law (Harlow, Longman, 1999).

A. Field of Application of Article 34 34.01 There is significant Union legislation and case law which touches on entitlement to social security, though nothing which could properly be described as European social security law.1 There are three dimensions to European Union law in this area: (1) coordination of the social security systems of the Member States in order to avoid barriers to free movement; (2) harmonisation of social security entitlements so that discrimination in entitlements between men and women is avoided; and (3) an emerging set of entitlements linked to citizenship of the Union. Each of these areas is addressed below in section D. There is also a body of immigration and asylum law which to some extent regulates access to social security and social assistance for nationals of countries outside the Union. 34.02 European Union law touching on social security has always had a link to the free movement of persons provisions in what is now the Treaty on the Functioning of the European Union,2 and this has led to the extension of virtually all provisions on social security to the three countries of the European Economic Area (Iceland, Liechtenstein and Norway), and to Switzerland.3 34.03 Historically, European Union law has drawn a distinction between social security and social assistance, but there has never been an entirely satisfactory definition of either concept, so that the dividing line between social security and social assistance is far

1

Though for convenience of expression, the term is used at a number of points in this commentary. Arts 18–21 and 45–66 TFEU. See also the secondary legislation referred to below. 3 Under the EEA Agreement, [1994] OJ L1/3, and a separate agreement with Switzerland on the free movement of persons of 21 June 1999, [2002] OJ L114/6. See also the secondary legislation referred to below. 2

928

Robin White

Art 34 – Social Security and Social Assistance

from clear.4 What is clear is that Article 34 of the Charter does not simply apply to social security, but extends to social and housing assistance. Some social security legislation covers health care, but entitlement to health care is governed by the separate Article 35 of the Charter. However, even in the field of social security (as distinct from social and housing 34.04 assistance), the provisions of the Treaty on the Functioning of the Union indicate that this is a sensitive matter of legal regulation. The legal base for the big coordinating regulation and its sister implementing regulation5 is what is now Articles 48 and 352 TFEU. There are two significant consequences which flow from this legal base. Any amendments have to be made using the ordinary legislative procedure set out in Article 294 TFEU. In the normal situation the ordinary legislative procedure attracts qualified majority voting, but in the case of measures under Article 48 TFEU, there is a rider which provides: Where a member of the Council declares that a draft legislative act referred to in the first subparagraph would affect important aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system, it may request that the matter be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, the European Council shall, within four months of this suspension, either: (a) refer the draft back to the Council which shall determine the suspension of the ordinary legislative procedure; or (b) take no action or request the Commission to submit a new proposal; in that case, the act originally proposed shall be deemed not to have been adopted.

Article 352 TFEU, which is the reserve power, requires unanimity, and requires the Commission to draw the attention of national parliaments to proposals based on this provision. Article 352 TFEU does not permit measures which ‘entail harmonization of Member States’ laws or regulations where the Treaties exclude such harmonization.’ Directive 79/7/EC6 had as its legal base Article 235 EEC, the predecessor to Article 352 TFEU. The legal base of the Citizenship Directive7 is somewhat more complex; it is what is now Articles 18, 21, 46, 50 and 59 TFEU. Specific mention is made in the Explanation on Article 34 of Articles 153 and 156 TFEU. Article 153(1)(c) TFEU requires the Union to ‘support and complement’ the activities of the Member States in the field of social security and social protection of workers. Article 153(2) gives the European Parliament and the Council competence to adopt certain measures in the fields governed by the provision. But once again there are special provisions on social security. Unanimity under a special legislative procedure is

4 An issue of definitions in which Art 34 was invoked arose in Case C-571/10 Kamberaj (24 April 2012); see further below in section D.II 5 Regulation 883/2004 on the coordination of social security systems, (corrected version) [2004] OJ L200/1, as amended; and Regulation 987/2009 laying down the procedure for implementing Regulation 883/2004, as amended [2009] OJ L284/1. 6 Council Directive 79/7/EEC on the progressive implementation of the principle of equal treatment for men and women in matters of social security [1979] OJ L6/24. 7 Directive 2004/38/EC on the right of citizens of the Union and their families to move and reside freely within the territory of the Member States [2004] OJ L229/35 CORRIGENDUM [2005] OJ L197/34.

Robin White

929

34.05

34.06 34.07 34.08

Part I – Commentary on the Articles of the EU Charter

required in relation to any measures adopted in the field referred to in Article 153(1)(c), and Article 513(4) provides: The provisions adopted pursuant to this Article: — shall not affect the right of Member States to define the fundamental principles of their social security systems and must not significantly affect the financial equilibrium thereof, — …

34.09 Article 156 TFEU requires the Commission to encourage cooperation between the Member States and to facilitate coordination of their action in social policy fields including social security. There is no competence to enact legislative measures under Article 156 TFEU. 34.10 There is accordingly a range of competences given in the Treaty on the Functioning of the European Union which touch on matters of social security and social assistance, though all of them are hedged around with certain reservations essentially in favour of action only being taken when the Member States are unanimous in wishing to see the Union adopt measures in the field.

B. Interrelationship of Article 34 with Other Provisions of the Charter 34.11 Article 34 of the Charter appears in the section of the Charter entitled ‘Solidarity’. Other provisions in the section on solidarity deal with protection of workers, the prohibition of child labour, health care, professional and family life, access to services of general economic interest, environmental protection and consumer protection. The placement of the article on social security comes after the articles dealing with labour market protection and before those dealing with health, and environmental and consumer protection. Reference is made in the preamble to the Charter both to Union and Council of 34.12 Europe instruments, and to the case law of the Court of Justice and the Court of Human Rights.

C. Sources of Article 34 Rights I. ECHR 34.13 Article 1 of Protocol 1 and Article 14 ECHR have frequently been used by applicants to challenge national provisions of social security as breaching the prohibition of discrimination in Article 14, while Article 6 now requires adjudication of disputes concerning social security and social assistance to meet its requirements for fair trial. Article 8 ECHR is also often pleaded with Article 14 as having an impact on social security

930

Robin White

Art 34 – Social Security and Social Assistance

disputes, but in most cases the Court examines the application on the basis of Article 1 of Protocol 1 and Article 14.8 According to national authority, attempts to establish that certain conditions of entitlement to social security involve conduct which falls within Article 3 as degrading treatment have failed.9 However, Article 3 might be engaged where a person is left so destitute and without access to shelter that the threshold for Article 3 is reached.10 This would appear to be supported by the Court of Human Rights, which in an admissibility decision said that a complaint about a wholly inadequate amount of financial support could, in principle, raise an issue under Article 3 if the effect of the consequent deprivation is sufficient to meet the minimum level of severity falling within the ambit of Article 3.11 The applicant in Stummer v Austria complained of a violation of Article 4 prohibiting slavery and forced labour, and sought to argue that a requirement to work in prison without affiliation to the old-age pension system could no longer be regarded as ‘work required to be done in the ordinary course of detention’. The Grand Chamber disagreed, noting a lack of European consensus on this issue. Such practice as there was did not warrant the interpretation for which the applicant argued.12 There is national authority that work preparation programmes required as a condition of entitlement to unemployment benefit do not amount to forced labour.13 The adjudication of social security disputes involves the determination of civil rights and obligations under Article 6 attracting the guarantees of fair trial in that provision.14 Where the state provides a system of appeals, that system too must comply with the guarantees to be found in Article 6(1).15 In CG v Austria, the applicant had complained that the refusal to award him the emergency assistance requested violated respect for his family life (presumably on the grounds that refusal of the assistance threatened the break-up of, or hardship to, his family);16 the admissibility decision is not specific on the basis for declaring this part of his complaint admissible. The Commission did not find it necessary to consider this aspect of the complaint since they concluded that there was a violation of Article 14 read in conjunction with Article 1 of Protocol 1. Nor did the Court, when it considered the case.17 Nevertheless, it remains open for the limits of the protection under Article 8 to be explored in the context of entitlements to social security. But it would be fair to say that there are few indications that the Strasbourg organs regard the Convention right here as including an obligation on the state to make payments to families for their support.

8

As in Gaygusuz v Austria App no 17371/90 (1997) 23 EHRR 364. R (on the application of Joanne Reynolds) v Secretary of State for Work and Pensions [2002] EWHC 426. 10 Secretary of State for the Home Department v Limbuela, Tesema and Adam [2005] UKHL 66. 11 Larioshina v Russia App no 56869/00 (23 April 2002) [3]. 12 Stummer v Austria App 37452/06 (2012) 54 EHRR 369. 13 R (on the application of Reilly and Anor) v Secretary of State for Work and Pensions (2013) UKSC 68. 14 Feldbrugge v The Netherlands Series A No 99, (1986) 8 EHRR 425; Deumeland v Germany Series A No 120, (1986) 8 EHRR 448; and Salesi v Italy Series A No 257-E, (1998) 26 EHRR 187. 15 Fejde v Sweden Series A No 212-C (1994) 17 EHRR 14 [32]. 16 CG v Austria App no 17371/90 (1994) 18 EHRR CD51. See also Report of the Commission of 11 January 1995. 17 When this case reached the Court, it was renamed Gaygusuz v Austria App no 17371/90 (1997) 23 EHRR 364. 9

Robin White

931

34.14

34.15

34.16

34.17

Part I – Commentary on the Articles of the EU Charter

34.18

Reliance on Article 9 (freedom of thought, conscience and religion) to avoid the normal requirements, for example, to pay national insurance contributions, are most unlikely to succeed. The Commission has held that a Dutch system of old-age pension insurance, alleged to interfere with the religious duty of caring for old people, did not violate Article 9.18 34.19 Article 14 prohibits discrimination in relation to the rights protected by the Convention on the grounds of sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. It has proved to be a fruitful basis for attacking the conditions of entitlement for social security benefits when read in conjunction with Article 1 of Protocol 1. The prohibition in Article 14 covers both direct and indirect discrimination.19 Cases where Article 14 is pleaded require consideration of the following questions: 1. Does the complaint fall within the sphere of a right protected by the Convention? 2. Is there different treatment of persons in relevantly similar or analogous situations? 3. Is the difference of treatment capable of reasonable and objective justification? 34.20 Discrimination will be prohibited by Article 14 only if there is an affirmative response to all three questions. 34.21 Certain grounds of differentiation are regarded as inherently suspect, such as sex, race, nationality, religion and sexual orientation. Different treatment based on these grounds is very difficult to justify. On other grounds, a more generous view is taken of the policy choices made by states.20 34.22 The admissibility decision of the Grand Chamber in Stec v United Kingdom established that all social security benefits, including social assistance, whether founded on contributions or otherwise, fall within the ambit of Article 1 of Protocol 1, and so any discrimination prohibited by Article 14 in their administration can be raised in an application to the Court of Human Rights.21 However, Article 1 of Protocol 1 alone gives no right to benefit in a particular amount.22 All this case law establishes that social security entitlements are surrounded by a 34.23 number of protections under the European Convention, much of it of a procedural nature. None of the European Convention authorities establishes a right to receive social security or social assistance.

II. UN Treaties 34.24 Although it is not a treaty, mention should be made of the Universal Declaration of Human Rights, Articles 22 and 25 of which grant a right to social security, and to support in relation to unemployment, sickness, disability, bereavement, old age or other exigency of life, as well as maternity and child raising.

18 Reformed Church of X v The Netherlands App no 1497/62 (1962) 5 Yearbook of the ECHR 286; and X v The Netherlands App no 2065/63 (1965) 8 Yearbook of the ECHR 266. 19 DH and others v Czech Republic App no 57325/00 (2008) 47 EHRR 59. 20 For an overview of the case law in this area relating to social security, see M Rowland and R White, Social Security Legislation 2013/14, Vol III: Administration Adjudication and the European Dimension (London, Sweet & Maxwell, 2013) paras 4.120–4.147. 21 Stec v United Kingdom App nos 65731/01 and 65900/01 (2005) 41 EHRR SE295. 22 Ibid.

932

Robin White

Art 34 – Social Security and Social Assistance

Article 9 of the International Covenant on Economic, Social and Cultural Rights 34.25 (ICESCR) provides simply: ‘The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.’ Subsequent articles make specific reference to protection of the family and children, as well as health care. There is a periodic reporting requirement in Article 17, and an individual complaints machinery under the Optional Protocol to the ICESCR. General Comment 1923 emphasised the inclusion of non-contributory schemes within the field of social security, and the link with the nine areas of protection referred to in ILO Convention 102.24 Special mention should be made of the 2006 Convention on the Rights of Persons 34.26 with Disabilities,25 since this is the first international human rights instrument to be ratified by the European Union. It contains wide-ranging obligations, including, in Article 28, a right to an adequate standard of living and social protection.

III. Council of Europe Treaties In addition to the European Convention on Human Rights, the following Council of 34.27 Europe instruments bear directly on social security and social assistance:26 (a) European Social Charter (ETS 35) and European Social Charter (Revised) (ETS 163) The Explanation on Article 34 mentions Articles 12 and 13 of the European Social 34.28 Charter,27 which provide: Article 12—The right to social security With a view to ensuring the effective exercise of the right to social security, the Parties undertake: (1) to establish or maintain a system of social security; (2) to maintain the social security system at a satisfactory level at least equal to that necessary for the ratification of the European Code of Social Security; (3) to endeavour to raise progressively the system of social security to a higher level; (4) to take steps, by the inclusion of appropriate bilateral and multilateral agreements or by other means, and subject to the conditions laid down in such agreements, in order to ensure: (a) equal treatment with their own nationals of the nationals of other Parties in respect of social security rights, including the retention of benefits arising out of social security legislation, whatever movement the persons protected may undertake between the territories of the Parties;

23 General Comment No 19, Economic and Social Council, Committee on Economic, Social and Cultural Rights, 39th Session, 5–23 November 2007, Doc E/C.12/GC/19 of 4 February 2008. 24 These are: medical care and benefits in relation to sickness, unemployment, old age, employment injuries, family, maternity, and invalidity, and for survivors in cases of bereavement. 25 See generally G de Búrca, ‘The European Union in the Negotiation of the UN Disability Convention’ (2010) 35 European Law Review 174. 26 For the current state of ratifications, see www.conventions.coe.int. 27 Though all Member States are parties to the original European Social Charter (ETS No 35), Croatia, Czech Republic, Denmark, Germany, Greece, Iceland, Latvia, Liechtenstein, Luxembourg, Monaco, Poland, Spain and the United Kingdom are not parties to the European Social Charter (revised) (ETS No 163). The text of Arts 12, 13 and 14 is the same in the original and revised European Social Charters.

Robin White

933

Part I – Commentary on the Articles of the EU Charter

(b) the granting, maintenance and resumption of social security rights by such means as the accumulation of insurance or employment periods completed under the legislation of each of the Parties. Article 13—The right to social and medical assistance With a view to ensuring the effective exercise of the right to social and medical assistance, the Parties undertake: (1) to ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts or from other sources, in particular by benefits under a social security scheme, be granted adequate assistance, and, in case of sickness, the care necessitated by his condition; (2) to ensure that persons receiving such assistance shall not, for that reason, suffer from a diminution of their political or social rights; (3) to provide that everyone may receive by appropriate public or private services such advice and personal help as may be required to prevent, to remove, or to alleviate personal or family want; (4) to apply the provisions referred to in paragraphs 1, 2 and 3 of this article on an equal footing with their nationals to nationals of other Parties lawfully within their territories, in accordance with their obligations under the European Convention on Social and Medical Assistance, signed at Paris on 11 December 1953.

34.29

Article 14 ESC, which concerns the right to benefit from social welfare services, is, perhaps surprisingly, not mentioned in the Explanation on Article 34. 34.30 The Explanation also make reference to Articles 30 and 31 of the European Social Charter (revised):28 Article 30—The right to protection against poverty and social exclusion With a view to ensuring the effective exercise of the right to protection against poverty and social exclusion, the Parties undertake: (a) to take measures within the framework of an overall and co-ordinated approach to promote the effective access of persons who live or risk living in a situation of social exclusion or poverty, as well as their families, to, in particular, employment, housing, training, education, culture and social and medical assistance; (b) to review these measures with a view to their adaptation if necessary. Article 31—The right to housing With a view to ensuring the effective exercise of the right to housing, the Parties undertake to take measures designed: (1) to promote access to housing of an adequate standard; (2) to prevent and reduce homelessness with a view to its gradual elimination; (3) to make the price of housing accessible to those without adequate resources.

34.31 It should, however, be remembered that Part I of both versions of the Charter contains an obligation for Contracting Parties only to accept as the aim of their policies ‘the attainment of conditions in which the following rights may be effectively realised’. This is often considered to amount to a promotional aspiration rather than the granting of legally enforceable rights.

28 These provisions appear only in the European Social Charter (revised). A number of Member States, as set out in n 27 above, are not parties to the European Social Charter (revised).

934

Robin White

Art 34 – Social Security and Social Assistance

(b) Other Council of Europe Instruments Which are in Force Additional Protocol to the European Social Charter Providing for a System of Collective Complaints (ETS 158). European Interim Agreement on Social Security Schemes Relating to Old Age, Invalidity and Survivors (ETS 012). Protocol to the European Interim Agreement on Social Security Schemes Relating to Old Age, Invalidity and Survivors (ETS 012A). European Interim Agreement on Social Security other than Schemes for Old Age, Invalidity and Survivors (ETS 013). Protocol to the European Interim Agreement on Social Security other than Schemes for Old Age, Invalidity and Survivors (ETS 013A). European Convention on Social and Medical Assistance (ETS 014). Protocol to the European Convention on Social and Medical Assistance (ETS 014A). European Code of Social Security (ETS 048). Protocol to the European Code of Social Security (ETS 048A). European Convention on Social Security (ETS 78). Supplementary Agreement for the Application of the European Convention on Social Security (ETS 078A). Mention should also be made of a recommendation of the Committee of Ministers on 34.32 a right of persons to have their basic needs met.29 The Council of Europe perceives social security systems as expressions of social 34.33 solidarity which contribute to the maintenance of adequate standards of living. Council of Europe treaties on social security relate either to standard-setting, or to coordination of differing social security systems. Standard-setting instruments, of which the European Code of Social Security is the most important, require states to meet certain standards in social security provision, but they set underlying principles rather than levels of support. Coordinating instruments are designed to reduce the disadvantages which can arise where a person is or has been affiliated to the social security systems of more than one state. Since January 2012, activities under the European Social Charter and the European 34.34 Code of Social Security have been joined. The result is that International Labour Organization conclusions on compliance with the European Code of Social Security are now monitored by the Governmental Committee of the European Social Charter and the European Code of Social Security.30

29 Recommendation No R (2000) 3 of the Committee of Ministers to Member States on the Right to the Satisfaction of Basic Material Needs of Persons in Situations of Extreme Hardship, adopted by the Committee of Ministers on 19 January 2000 at the 694th meeting of Ministers’ Deputies. 30 See generally on the work of the Council of Europe in the field of social security: www.coe.int/t/dg3/ socialpolicies/socialsecurity/default_en.asp.

Robin White

935

Part I – Commentary on the Articles of the EU Charter

IV. Other Sources 34.35 The Explanation makes express reference to provisions of the Community Charter of Fundamental Social Rights of Workers adopted on 9 December 1989. The specific reference is to Point 10 on social protection of workers, and Point 2 on rights associated with free movement of workers. Neither provision brings much to the task of interpreting Article 34. 34.36 The International Labour Organization (ILO) is a United Nations agency with responsibility for the advancement of international labour standards. It is the only UN tripartite agency involving representatives of states, of employers and workers, sometimes described as the social partners. The ILO was founded in 1919 and so pre-dates the United Nations Organization, but it became the first specialised agency of the UN in 1946. There are very many ILO Conventions. The ILO itself divides these into categories: (a) fundamental; (b) governance; and (c) technical. By far the largest number of conventions fall into the third category. The following are examples of current general conventions which require those participating to provide specified social security provision: C102 C118 C130 C157 C182

Social Security (Minimum Standards) Convention 1952. Equality of Treatment (Social Security) Convention 1962. Medical Care and Sickness Benefits Convention 1969. Maintenance of Social Security Rights Convention 1982. Maternity Protection Convention 2000.

These conventions require parties to them to make provision for benefits in the circumstances prescribed by the relevant Convention but do not set either the level of the benefit or the detailed conditions of entitlement for their award. The ILO operates two types of monitoring mechanisms. The first is the examination 34.38 of periodic reports submitted by member states on the measures they have taken to implement the provisions of the ratified Conventions. The second is a representations procedure and a complaints procedure of general application. Both types of procedure are governed by the ILO Constitution.31 34.37

D. Analysis I. General Remarks 34.39 As a free-standing provision, Article 34 offers little. The Explanation notably refers to the ‘principle set out in Article 34(1)’. This indicates that the matters governed by the provision are not fully-fledged rights but depend upon implementation in European Union and national law.32 The same is undoubtedly true of the provisions in the third paragraph which refers to recognition and respect for the right to the social protection referred to there. The wording of the second paragraph is somewhat different using the

31 32

936

For further information, see the ILO website at www.ilo.org/global/lang--en/index.htm. See Art 52 of the Charter, especially Art 52(5).

Robin White

Art 34 – Social Security and Social Assistance

language of entitlement. All this makes examination of various implementing measures in both European Union law, and national law flowing from this and other obligations taken on by States particularly significant. Both Regulation 1408/71 and Regulation 1612/68, to which reference is made in the Explanation, have now been overtaken by later Union instruments.33 There are already many international legal provisions broadly similar in content to 34.40 Article 34 to which the Member States are parties. Indeed a cynic might fairly remark that Article 34 hardly goes beyond the provisions of Articles 22 and 25 of the Universal Declaration of Human Rights in recognising the broad obligation of states to support those in need. All Member States have systems of social security and social assistance which vary in scope and in the value of benefit provision determined in accordance with national priorities and budgets. That said, the inclusion of a specific right to social security and social assistance in the Charter does underline the obligation of states to recognise and respect entitlement to support for those who fall on hard times. The Article’s references to rules of Union law mean that the substance of this provision 34.41 can only properly be understood when it is read within the framework of current Union law affecting social security entitlement. Here entitlements flowing from citizenship of the Union and under the coordinating provisions on social security are of particular importance.

II. Scope of Application All three paragraphs of Article 34 are made subject to the rules laid down by ‘Community 34.42 law and national laws and practices’.34 The wording of the second paragraph is slightly different, referring simply to ‘Community law’ as distinct from ‘the rules laid down by Community law’. It is difficult to conceive of any significance flowing from the difference of wording. The wording in all three paragraphs must indicate that there is no intention to go beyond what is at any moment in time offered by European Union law and national laws and practices. In particular, the personal scope of the rights may by the use of these phrases be limited to nationals of the Member States (and of the three EEA countries and Switzerland where Union law has been extended to their nationals), and to third-country nationals only where the Union has legislated to provide such nationals with rights under European Union Law.35

33 Regulation 883/2004 on the coordination of social security systems (corrected version) [2004] OJ L200/1, as amended; and Regulation 492/2011 on freedom of movement for workers within the Union (codification) [2011] OJ L141/1, repealing and replacing Regulation 1612/68/EEC. See further below in section D.III. 34 See also Art 52(6) of the Charter. 35 As in Council Directive 2003/109/EC concerning the status of third-country nationals who are longterm residents [2004] OJ L16/44. The interpretation of terms in this Directive was in issue in Case C-571/10 Kamberaj (24 April 2012), which is discussed below. It is, of course, open to the Member States to legislate for more generous provision than that required by Union law. See also Council Directive 2003/9/EC laying down minimum standards for the reception of asylum-seekers (the Reception Directive) [2003] OJ L31/18; and Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (the Qualification Directive) [2011] OJ L337/9, esp Arts 28–32. See also now Directive 2013/33/EU of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) [2013] OJ L180/96.

Robin White

937

Part I – Commentary on the Articles of the EU Charter

34.43

34.44

34.45

34.46

34.47

The words used in paragraph 1 are that the Union ‘recognises and respects’ the entitlement to social security and social services; this reflects the promotional nature of the European Social Charter from which it takes its inspiration. The same formulation is also used in Article 25 on the rights of the elderly; in Article 26 on the integration of persons with disabilities; and in Article 36 on access to services of general economic interest. There is no express reference to family benefits, though this may be encompassed in the reference to benefits and services providing protection in cases of dependency. The reference to social security benefits should be read as social security benefits as defined in Union legal instruments, but it must be remembered that there is a reference to respect for entitlements arising under national laws and practices and these may well go beyond those benefits within the personal and material scope of the Union instruments. The Explanation on Article 33 indicates that maternity is intended to ‘cover the period from conception to weaning’. Social services are nowhere defined in the Charter, but the Explanation refers to cases where such services have been introduced, and emphasises that there is no obligation to create such services where none currently exist. Perhaps surprisingly, there is no reference in the Explanation to Article 14 of the European Social Charter, which refers to social welfare services, and helpfully indicates that it is referring to services using methods of social work. If social services as referred to in Article 34(1) of the Charter are defined in this way, this is an important expression of support for a particular form of social protection commonly available in the Member States. The second paragraph is little more than a restatement of the benefits flowing from what is now Regulation 883/2004 and Regulation 492/2011.36 The Explanation refers to the predecessor regulations to these two regulations, but makes no mention of Directive 2004/38.37 The second paragraph is couched in the language of entitlement. The use of the term ‘everyone’ could be read as more sweeping than a reference to nationals of the Member States. However, the qualification of the word by the following words, ‘residing and moving legally within the European Union’, as well as the reference to the benefits and advantages being enjoyed ‘in accordance with Community law and national laws and practices’, clearly does not extend the benefits to all those within the jurisdiction of a Member State. Nationals of the Member States are plainly included, as are nationals of EEA countries, and Switzerland where Union law has been extended to cover them. Third-country nationals will be covered where there is Union legislation which provides for their protection. 38 There remains considerable controversy surrounding entitlement to social assistance under the Citizenship Directive. This provides that there is no entitlement to social assistance in the first three months of residence, but absolute equality of treatment with nationals is required after citizens have attained permanent residence under the

36

See further below in section D.III. Undoubtedly because it post-dates the original Charter which was proclaimed in December 2000, and because the full range of rights flowing from the Citizenship Directive remains deeply contested. 38 As, for example, through the operation of Regulation 859/2003 in relation to Regulation 1408/71 or Regulation 1231/2010 in relation to Regulation 883/2004 where Member States have so agreed. The United Kingdom has not done so and for third-country nationals the regime in Regulation 1408/71 as extended by Regulation 859/2003 continues to apply. Note also the Directives listed in n 35 above which give certain entitlements to third-country nationals. 37

938

Robin White

Art 34 – Social Security and Social Assistance

Directive. This leaves considerable uncertainty surrounding entitlement in the period after three months and before the attainment of permanent residence. Even determining when permanent residence has been attained is problematic, since there is authority from the Court of Justice that only residence strictly in accordance with the Directive counts towards the five-year qualification period.39 In relation to the second paragraph of Article 34, social security benefits should be given a meaning which encompasses at least those benefits which are within the material scope of Regulation 883/2004, and social advantages a meaning congruent with the broad interpretation of the term by the Court of Justice under Article 7(2) of Regulation 1612/68, now Regulation 492/2011.40 The second paragraph uses the language of entitlement. In relation to the third paragraph, it should be noted that the Treaty only uses the term ‘social exclusion’ in Article 3(3) and 9 TEU in committing itself to combatting social exclusion, and at the end of Article 153(1)(j) TFEU, so the emphasis in the Charter on the notion is a welcome re-inforcement of the Union’s commitment. The right which is to be recognised and respected is that to social and housing assistance.41 The Explanation indicates that it is based on Articles 30 and 31 of the revised European Social Charter.42 Article 34(3) also clearly draws on Article 13 of the European Social Charter, with its reference to social assistance.43 Paragraph 3 is rather more widely drawn than the cautious terms of Articles 30 and 31 of the European Social Charter (revised), since it refers to a right to social and housing assistance. However, little probably turns on that, since a number of Member States are not parties to the European Social Charter (revised).44 In the Kamberaj case45 the Court of Justice drew on Article 34 of the Charter in determining the obligation of Member States to provide housing assistance to third-country nationals and in giving meaning to the term ‘core benefits’ in Directive 2003/109.46 The dispute arose when an Albanian national who was a lawful long-term resident in Italy was denied access to housing benefit. The Italian scheme had a different basis of calculation for determining the global amount available for housing benefit provision, on the one hand, for citizens of the Union, and, on the other hand, for third-country nationals. The claimant was refused housing benefit because the fund for third-country nationals was exhausted. He complained that this breached the obligation in Article 11 of Directive 2003/109 to treat long-term residents who are third-country nationals on an equal basis with nationals. There was also an issue concerning Article 11(4) which allowed Member States to ‘limit equal treatment in respect of social assistance and social

39

Joined Cases C-424/10 Ziolkowski and C-425/10 Szeja (21 December 2011). See Case 249/83 Hoeckx [1985] ECR 973; and Case 59/85 Reed [1986] ECR 1873. 41 In relation to housing assistance, see Case C-310/08 Ibrahim [2010] ECR I-1065; and Case C-480/08 Teixeira [2010] ECR I-1107. 42 Arts 30 and 31 appear only in the European Social Charter (revised). 43 Though the absence of any reference to medical assistance might suggest the contrary. However, medical assistance is encompassed within the notion of social security benefits providing protection against the risk of sickness under Regulation 883/2004. 44 See n 27 above. 45 Case C-571/10 Kamberaj (24 April 2012). 46 Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents [2004] OJ L16/44. 40

Robin White

939

34.48

34.49

34.50

34.51

Part I – Commentary on the Articles of the EU Charter

protection to core benefits’. The Court notes that the preamble to the Directive referred to respect for fundamental rights and the principles laid down in the Charter. As a consequence, the Court said: 80. … when determining the social security, social assistance and social protection measures defined by their national law and subject to the principle of equal treatment enshrined [in the Directive], the Member States must comply with the rights and observe the principles provided by the Charter, including those laid down by Article 34 thereof. Under Article 34(3) of the Charter, in order to combat social exclusion and poverty, the Union (and thus the Member States when they are implementing European Union law) ‘recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Community law and national laws and practices’.

34.52 That left two matters for determination. First, was housing benefit a benefit within the wording of Article 11(1)(d) which refers to ‘social security, social assistance and social protection as defined by national law’? The Court of Justice said this was a matter for the referring court which had to take into account the objectives of the Directive in the light of the principles set out in the Charter. The second question was whether housing benefit fell within the concept of ‘core benefits’, since the principle of equal treatment could be limited in relation to benefits falling outside that concept. 34.53 The Court of Justice noted that the preamble to the Directive indicated that the concept of core benefits covered at least minimum income support, assistance in case of illness, pregnancy, parental assistance and long-term care.47 But the absence of express reference to housing benefits did not mean that they could not be core benefits. Furthermore, as a derogation from a general principle, Article 11(4) should be interpreted strictly. The Court stresses the basic nature of housing assistance, since basic needs include food, accommodation and health. The Court then gives a very strong steer to the referring court: 92. … it should be recalled that, according to Article 34 of the Charter, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources. It follows that, in so far as the benefit in question in the main proceedings fulfils the purpose set out in that article of the Charter, it cannot be considered, under European Union law, as not being part of core benefits within the meaning of Article 11(4) of Directive 2003/109. It is for the referring court to reach the necessary findings, taking into consideration the objective of that benefit, its amount, the conditions subject to which it is awarded and the place of that benefit in the Italian system of social assistance.

34.54 Three key points emerge from consideration of this case. The first is that references to the Charter which were included in Union legislation prior to the grant of treaty status to the Charter will now be read as though the Charter had treaty status at the time of entry into force of the legislation. The second is that the Charter provides a compelling guide to interpretation of Union legislation even where the provision of the Charter in issue is a principle rather than a right.48 The third is that what the Court says might be directly relevant to other Union instruments which concern welfare provision, such as

47 48

940

Case C-571/10 Kamberaj (24 April 2012) [84]. See the general comments made in section D.I above.

Robin White

Art 34 – Social Security and Social Assistance

the Qualification Directive,49 which allows Member States to limit welfare provision to ‘core benefits’.

III. Specific Provisions The regulation of social security and social assistance entitlements under Union law 34.55 flows from three sets of measures: coordinating rules, harmonising rules, and benefits flowing from citizenship of the Union. However, the European Union rules need to be set in the context of the Council of Europe framework in this field, which is in turn heavily influenced by the work of the ILO. Additionally, certain Union instruments regulating the position of third-country nationals can have a significant impact on access to social security and social assistance. (a) The Council of Europe Framework The Nature of the Council of Europe The Council of Europe is an intergovernmental organisation. It has no legislative 34.56 competence in relation to its members. Such legal obligations as flow from Council of Europe instruments do so by reason of states signing and ratifying treaties sponsored by the Council of Europe. Some have suggested that its importance in international social policy initiatives has decreased in recent decades.50 For an organisation of 47 states, some of the social security conventions have attracted very few ratifications. Coordination Measures Two interim agreements on social security coordination were signed in 1953; these 34.57 were replaced by the European Convention on Social Security, signed in Paris on 14 December 1972. This Convention was designed to secure multilateral coordination of social security systems. It entered into force on 1 March 1977, but has attracted only eight ratifications,51 and is consequently something of a dead letter. The European Convention on Social and Medical Assistance, signed in Paris on 11 December 1953, is of rather more interest. This has attracted 18 ratifications,52 and entered into force on 1 July 1954. It is the only multilateral convention on forms of social assistance. Article 1 of the Convention provides: Each of the Contracting Parties undertakes to ensure that national of the other Contracting Parties who are lawfully present in any part of its territory to which this Convention applies, and who are without sufficient resources, shall be entitled equally with its own nationals and on the same conditions to social and medical assistance (hereinafter referred to as ‘assistance’) provided by the legislation in force from time to time in that part of its territory.

49

See n 35 above. F Pennings, European Social Security Law, 5th edn (Cambridge, Intersentia, 2010) 276–78. 51 Austria, Belgium, Italy, Luxembourg, Netherlands, Portugal, Spain and Turkey. 52 Belgium, Denmark, Estonia, France, Germany, Greece, Iceland, Ireland, Italy, Luxembourg, Malta, Netherlands, Norway, Portugal, Spain, Sweden, Turkey and the United Kingdom. 50

Robin White

941

Part I – Commentary on the Articles of the EU Charter

34.58 Article 11(a) defines lawful residence in the following terms: Residence by an alien in the territory of any of the Contracting Parties shall be considered lawful within the meaning of this Convention so long as there is in force in his case a permit or such other permission as is required by the law and regulations of the country concerned to reside therein. Failure to renew any such permit, if due solely to the inadvertence of the person concerned, shall not cause him to cease to be entitled to assistance.

Harmonisation Measures 34.59 The European Social Charter has, since its inception, contained provisions relating to social security.53 Articles 12 and 13 have already been quoted above. In addition Article 1454 contains the following provisions: Article 14—The right to benefit from social welfare services With a view to ensuring the effective exercise of the right to benefit from social welfare services, the Parties undertake: (1) to promote or provide services which, by using methods of social work, would contribute to the welfare and development of both individuals and groups in the community, and to their adjustment to the social environment; (2) to encourage the participation of individuals and voluntary or other organisations in the establishment and maintenance of such services.

34.60 Article 12(2) ESC makes reference to the European Code of Social Security. That Code entered into force on 17 March 1968, and has been ratified by 21 countries. A revised European Code of Social Security signed in Rome on 6 November 1990 has attracted only 13 signatures and a single ratification; it is not in force. 34.61 It will be noted that the form of the obligation under taken under Articles 12 to 14 for the European Social Charter is an undertaking to promote or encourage the attainment of the specified level of social protection. (b) Coordinating Rules of European Union Law 34.62 What might be described as European social security law has grown out of the rules relating to the free movement of workers.55 However, developments in the field of social security have now gone far beyond the area of employment. The two main Union legal instruments are Regulation 883/2004, as amended, and its accompanying implementing Regulation 987/2009, as amended.56 These regulations are the third generation

53 Though all Member States are parties to the original European Social Charter (ETS No 35), Croatia, Czech Republic, Denmark, Germany, Greece, Iceland, Latvia, Liechtenstein, Luxembourg, Monaco, Poland, Spain, and the United Kingdom are not parties to the European Social Charter (revised) (ETS No 163). 54 The text of Arts 12–14 is identical in both versions of the European Social Charter. 55 See generally, F Pennings, European Social Security Law, 5th edn (Cambridge, Intersentia, 2010); P Watson, Social Security Law of the European Communities (London, Mansell, 1980); and R White, EC Social Security Law (Harlow, Longman, 1999). 56 Regulation 883/2004 on the coordination of social security systems (corrected version) [2004] OJ L200/1, as amended; and Regulation 987/2009 laying down the procedure for implementing Regulation 883/2004, [2009] OJ L284/1, as amended.

942

Robin White

Art 34 – Social Security and Social Assistance

of legal instruments in this field,57 and now cover employed persons, self-employed persons, those who have ceased work, civil servants, and students. They probably cover all those who are or have been insured under national schemes in any of the Member States. They also extend beyond the Member States under the EEA Agreement to cover nationals of Iceland, Norway and Liechtenstein,58 and nationals of Switzerland under a separate agreement. To some extent they also extend to third-country nationals who have been affiliated to the social security systems of two or more Member States.59 But these instruments are not in any sense a social security code for those subject to its coverage. They are instruments of coordination in relation to benefits within its scope allowing differing national social security systems to work together in order to avoid obstacles to free movement of persons between the Member States. In the Pinna case, the Court said: Article 51 [now Article 48 TFEU] of the Treaty provides for the co-ordination, not the harmonization, of the legislation of the Member States. As a result, Article 51 leaves in being differences between the Member States’ social security systems, and, consequently, in the rights of persons working in the Member States. It follows that substantive and procedural differences between the social security systems of individual Member States, and hence in the rights of persons working in the Member States, are unaffected by Article 51 of the Treaty.60

The requirement for the coordination of social security systems only operates within 34.63 the material scope of the Union rules; under Regulation 883/2004 this covers benefits offering protection within ten branches of social security: — — — — — — — — — —

sickness benefits; maternity and equivalent paternity benefits; invalidity benefits; old-age benefits; survivors’ benefits; benefits for accidents at work and occupational diseases; death benefits; unemployment benefits; pre-retirement benefits; and family benefits.

57 The first generation of instruments was Regulation 3 concerning the social security of migrant workers [1958] JO L30/561, and Regulation 4 laying down the procedure for implementing Regulation 3 [1958] JO L30/597. The second generation was Regulation 1408/71 on the application of social security schemes to employed persons, self-employed persons and to members of their families moving within the Community [1971] OJ L149/2, and Regulation 574/72 laying down the procedure for implementing regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to their families moving within the Community [1972] OJ L74/1. For more background, see R White, ‘The New European Social Security Regulations in Context’ [2010] Journal of Social Security Law 144–63. 58 In addition, there is some special protection afforded to refugees within Regulation 883/2004. Social security provision can also reach nationals of non-Member States through Association Agreements and decisions made under them: see, for example, Decision 3/80 of the Association Council on the application of the social security schemes of the Member States to Turkish workers and members of their families, and Case C-262/96 Sürül [1999] ECR I-2685. 59 See Regulation 859/2003 extending the provisions of Regulation 1408/71 to third-country nationals, and Regulation 1231/2010 extending the provisions of Regulation 883/2004 to third-country nationals. 60 Case 41/84 Pinna v Caisse d’allocation familiales de la Savoie [1986] ECR 1, 24–25.

Robin White

943

Part I – Commentary on the Articles of the EU Charter

34.64 A social security benefit will fall within the scope of one of these 10 branches when it is designed to protect against the named risk. The Court of Justice has consistently stated that whether a benefit is within the material scope of the named risks is determined not by the system of national classification, but by the application of European Union law. In Case 9/78 Gillard the Court said that the classification of a benefit under the coordinating regulation ‘rests entirely on the factors relating to each benefit, in particular its purpose and the conditions for its grant’.61 As a result, the Court has been imaginative in bringing benefits within the branches of social security to which the coordinating regulation refers. For example, in the Molenaar case, care benefits were regarded as providing protection against the risks related to sickness.62 In Commission v European Parliament and Council, certain disability benefits were held to be benefits protecting against the risks of sickness within the material scope of the regulation, rather than special noncontributory benefits which were excluded from its material scope to the extent that they could be made payable only in the Member State of residence.63 A particularly problematic distinction arises between social security and social assis34.65 tance. Benefits within the above schemes are social security, whereas social assistance looks to need and tends to be discretionary in its entitlement, requiring some authority to determine the suitability of the applicant for support. The distinction has become blurred by elements of social security providing social assistance,64 and by some countries basing social assistance on rules of entitlement rather than discretion. There is no bright line distinction between benefits which constitute social security and those which constitute social assistance. The most helpful current exposition of the distinction can be found in the Opinion of Advocate General Kokott in the Skalka case:65 50. On the subject of the distinction between social assistance and social security benefits, I should first outline the Court’s definition of social security benefits in its consistent case-law: ‘[A] benefit may be regarded as a social security benefit in so far as it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position and relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71.’ 51. In the Hughes judgment the Court addressed the objection that the supplement for families (‘family credit’) at issue in that case was granted on the basis of an assessment of need and, consequently, that the benefit constituted social assistance. The Court held in that regard: ‘Whilst it is true that a benefit such as family credit is granted or refused solely on the basis of the claimant’s assets, income, and the number and age of his dependent children, it does not follow that the grant of the benefit is dependent on an individual assessment of the claimant’s personal needs, which is a characteristic feature of social assistance ... The criteria applied are objective, legally defined criteria which, if met, confer entitlement to the benefit, the competent authority having no power to take account of other personal circumstances.’

61 Case 9/78 Gillard [1978] ECR 1661 [12]. See also Case C-160/96 Molenaar [1998] ECR I-84; Joined Cases C-502/01 and C-31/02 Gaumain-Cerri and Barth [2004] ECR I-6483; and Case C-228/07 Jörn Petersen [2008] ECR I-6989. 62 Case C-160/96 Molenaar [1998] ECR I-84. See also Case C-286/03 Hosse [2006] ECR I-1771. 63 Case C-299/05 Commission v European Parliament and Council [2007] ECR I-8695. 64 So-called ‘mixed benefits’. 65 Case C-160/02 Skalka [2004] ECR I-1771, paras 50–56 of the Opinion.

944

Robin White

Art 34 – Social Security and Social Assistance

52. If the same approach were adopted in assessing the compensatory supplement, it would, in fact, also have to be regarded as a social security benefit. After all, it too is granted on the basis of legally defined, objective criteria. The recipient of the pension is entitled to the supplement if his income falls short of a specific standard value which is also determined, in each case, on the basis of objective criteria. For instance, the standard value may depend on whether the pensioner lives with his or her spouse and on the number of children he or she has. There is nothing to suggest that the Sozialversicherungsanstalt has any discretion to assess personal need on the basis of criteria other than those defined by law. 53. However, it should be examined whether the position adopted by the Court in Hughes can be generalised. The definition of a social security benefit, as it is construed in that judgment, might, conversely, support the argument that a benefit constitutes social assistance only if it is granted on the basis of an assessment of the needs of the person concerned, which falls within the discretion of the competent authority, rather than on the basis of objective, legally defined criteria. 54. However, in many national legal orders, social assistance is granted on the basis of objective, legally defined criteria for assessing personal need simply so as to observe the principle of equal treatment. Furthermore, guaranteeing the minimum level of subsistence is no longer considered to be a charitable measure on the part of the State. On the contrary, in many modern welfare States, individuals have such a right as an expression of their human dignity. 55. It follows that a benefit can display social assistance features, which are the criteria necessary for its classification as a special benefit, even when it is granted according to personal need which can be determined on the basis of objective, legally defined criteria. 56. A further crucial factor, in addition to indicators of personal need, in establishing that the benefit concerned is akin to social assistance is that the grant of the compensatory supplement does not depend on the aggregation of given periods of employment or contribution. Classification as a special non-contributory benefit means that the benefit is paid only if the pension recipient is resident in the country providing the benefit. As the German Government correctly points out, that derogation from the principle of exportability is lawful only so long as the person concerned has not acquired any pension entitlements as a result of periods of employment or contribution.66

It is possible to discern a trend in the case law of the Court of Justice to reduce the scope 34.66 of social assistance by defining benefits which are claimed to be social assistance as social security. For example, in the Vatsouras and Koupatantze case, the Court considered that benefits of a financial nature intended to facilitate access to the labour market would, irrespective of the classification under national law, constitute social security rather than social assistance.67 The rules of coordination offer significant benefits to those within the personal 34.67 scope68 and the material scope of the Regulation. The general objectives of the coordinating rules are such that a national of an EEA country: 1. is not to be disqualified from entitlement to qualifying social security benefits on grounds of nationality or on a change of country of residence within the European Economic Area;

66 67 68

Footnotes omitted. Joined Cases C-22 and 23/08 Vatsouras and Koupatantze [2009] ECR I-4585 [59]. Now essentially insured nationals of the Member States, an EEA country, and Switzerland.

Robin White

945

Part I – Commentary on the Articles of the EU Charter

2. may become entitled to a qualifying benefit by having contributions or qualifying periods of work or residence in one EEA country aggregated with those arising in another EEA country; and 3. should not be disadvantaged in relation to entitlement to qualifying benefits by reason of his or her exercise of rights to move between EEA countries. 34.68 These rules are secured by the application of six principles: aggregation, equality of treatment, subjection at any given time to a single social security law, the maintenance of acquired rights, the assimilation of legal effects and facts, and inter-state cooperation. 34.69 The provisions of Article 7(2) of Regulation 492/201169 contain rules of equal treatment for workers70 and their families on grounds of nationality for a range of benefits, though they do not require harmonisation of the benefits affected. In many cases, workers who are seeking access to benefits may be spared the need to secure a particular classification of a benefit in order to rely on the rules in Regulation 883/2004 by relying on Article 7(2). The identically worded predecessor to this provision has been construed very broadly by the Court of Justice. Its impact can be illustrated by the facts of the Castelli case.71 Carmela Castelli, an Italian national born in 1890, had never worked in Belgium, but had moved there in 1957 following the death of her husband. She lived with her son, who was in receipt of a Belgian retirement pension. She claimed the guaranteed income for old persons, but was refused because she was not a Belgian national and was not entitled to a retirement pension or a survivors’ pension in Belgium. The Court of Justice, on a reference from the Belgian court, concluded that she was a dependent relative in the ascending line of a worker in Belgium who had elected to remain there on his retirement. As such, she was able to claim equality of treatment with nationals by reason of Article 7(2) of Regulation 1612/68. Since dependent relatives of a Belgian national would be entitled to have access to the guaranteed income for old people, it followed that Carmela Castelli could not be excluded by reason of her Italian nationality. (c) Harmonising Rules of EU Law 34.70 In contrast to coordination, harmonisation implies the securing of some uniformity of provision. It might require changes to national systems in order to comply with the international standard. In European Union social security law, the requirement to remove discrimination as between men and women in the field of social security involves elements of harmonisation. The benefits need not be the same in different Member States, but national social security systems must be adjusted to ensure that there is no discrimination based on grounds of sex in relation to the benefits within

69 Regulation 492/2011 on freedom of movement for workers within the Union (codification) [2011] OJ L141/1, repealing and replacing Regulation 1612/68/EEC. 70 Joined Cases C-147 and 148/11 Czop and Punakova (6 September 2012) establish that Regulation 1612/68 (and, it would follow, Regulation 492/2011) does not apply to self-employed persons. 71 Case 261/83 Castelli v Office National des Pensions pours Travailleurs Salariés [1984] ECR 3199.

946

Robin White

Art 34 – Social Security and Social Assistance

the material scope of the legislation.72 To that extent the rules require harmonisation of entitlement as between men and women. (d) Benefits Flowing from Citizenship of the European Union The development of Union law on social security has been an adjunct of the rights of 34.71 the ‘market citizen’,73 that is, economically active persons moving from one Member State to another. The introduction of citizenship of the European Union and the benefits attaching to it74 34.72 present a tension between those rights which are citizenship rights (which might well include entitlement to social security and social assistance) and those rights which are necessary for the protection of the economically active (for example, workers moving between Member States). As already noted, the Citizenship Directive indicates in Article 24(2) that a Member State is under no obligation to grant social assistance within the first three months75 of residence in a Member State other than that of the person’s nationality. However, once permanent residence under Article 16 of the Directive is attained, there must be absolute equality of treatment between nationals of the host Member State and nationals of other Member States. It would seem that it is the level of social integration which will determine the entitlement of nationals of other Member States in the residence period beyond three months but prior to the attaining of permanent residence under the Directive. The Court of Justice has acknowledged that, in certain cases, a Member State may 34.73 use a residence test as a test of social integration in determining access to social security and social assistance, provided that the residence requirement can be objectively justified and is proportionate.76 Residence requirements meeting these conditions will not breach the prohibition of discrimination of grounds of nationality.77 These judgments significantly limit claims to entitlement to social security based solely on holding the status of citizen of the Union. There remains considerably more protection for those who can show that they are economically active as workers or self-employed persons.

IV. Limitations and Derogations Since Article 34(1) and (3) contains a principle and not a right, at first sight Article 34.74 52(2) would seem to have no relevance in relation to Article 34. However, Article 52(2) states that Charter provisions based on the Treaties shall be exercised under the

72 See Directive 79/7/EEC on the progressive implementation of the principle of equal treatment for men and women in matters of social security [1979] OJ L6/24. For a commentary on this Directive, see M Rowland and R White, Social Security Legislation 2013/14, Vol III: Administration Adjudication and the European Dimension (London, Sweet & Maxwell, 2013) paras 3.612–3.642. 73 See Everson, ‘The Legacy of the Market Citizen’ in J Shaw and G More (eds) New Legal Dynamics of European Union, (Oxford, Clarendon Press, 1995), at 73. 74 See now Arts 18–25 TFEU. 75 Or longer, where a process of seeking work under Art 14(4)(b) is continuing. 76 Case C-138/02 Collins [2004] ECR I-2703; and Case C-406/04 De Cuyper [2006] ECR I-6947. 77 See also the judgment of the Supreme Court in Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11.

Robin White

947

Part I – Commentary on the Articles of the EU Charter

conditions and limits laid down in the Treaties. The Explanation states that Article 52(2) applies notably to the provisions concerning Union citizenship. It should be observed that this is increasingly being recognised as have a constitutional status. Union citizens are increasingly claiming equality of treatment in matters of social welfare on the basis of their Union citizenship status. Thus, notwithstanding the apparent lack of relevance of Article 52(2) to Article 34, arguments based on Union citizenship may bring the provision in by the back door. 34.75 The provisions of Articles 52(5) and (6) when read together and in the context of their application to the principle set out in Article 34(1) and (3) reinforce the requirement already present in the article that recognition and respect for social security entitlements must operate in the context of the requirements of both Union law and national law.

V. Remedies 34.76 The somewhat inchoate nature of the rights contained in Article 34 significantly limits the remedies for its breach. However, in relation to disputes about social security entitlement, it is believed that all Member States have appellate and review procedures which would meet the requirements of Article 47 of the Charter in offering a mechanism to challenge adverse decisions. Whether sufficient legal assistance is available to pursue those claims is rather more contentious, but where such assistance is not available the Member States would argue that the procedures for making challenges within their national legal orders are such that legal assistance is not necessary to ensure effective access to justice.

E. Evaluation 34.77 Such entitlement to social security as is contained in Article 34(1) and (3) is inchoate. Respect for the principle set out in Article 34(1) and (3) is met by having a system of social security, and in this regard the provisions of the Charter add little to international commitments which the Member States have undertaken elsewhere. Those obligations are sensitive to the issues of national resource allocation, and do not purport to set any level of social security or social assistance, or even to specify the types of social security or social and housing assistance which must be provided beyond referring to protection against certain risks. Yet, as the Kamberaj case shows, Article 34 will provide a clear steer as to the interpretation of Union legislation in this field.78 34.78 The position under Article 34(2) is, however, couched in the language of rights. It is not a broad provision and refers directly to entitlements arising specifically either under European Union law or under national law. National social security systems are often said to reflect a concept of social solidarity 34.79 under which those who have are willing, through taxation and social security contributions,

78

948

See above, text accompanying n 45.

Robin White

Art 34 – Social Security and Social Assistance

to contribute to support those who have not. Whether a concept of social solidarity can operate as a legal principle at the European level remains a contested issue.79 At its current state of development, it would not be possible to sustain an argument that social solidarity is a legal principle which, of itself, gives rise to obligations on Member States to support nationals of other Member States who fall on hard times. But Article 34 might be a first step towards such a position. Despite this somewhat pessimistic view, there are powerful provisions of European Union secondary legislation on free movement of persons, as well as relating to citizenship of the Union, which strongly encourage social solidarity among the Member States and which assimilate some migrant citizens with citizens of the host Member State for all purposes. The limits of the case law developments of these rights have not yet been reached. Just as the Member States remain somewhat ambivalent about their obligations to support citizens of the Union who are not their own nationals, so too the case law of the Court of Justice is still sending out mixed signals on what the provisions of the Citizenship Directive require of the Member States. In that context, it is no surprise that Article 34 also reflects that ambivalence.

79 See generally M Ross and Y Borgmann-Prebil (eds), Promoting Solidarity in the European Union (Oxford, Oxford University Press, 2010), but esp S Giubboni, A certain degree of solidarity? Free movement of persons and access to social protection in the case law of the European Court of Justice, URGE Working Paper 3/2008, www. urge.it/files/papers/3_wpurge3_2008.pdf, pp 166–97.

Robin White

949

34.80

Article 35 Article 35 The Right to Health Care Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all the Union’s policies and activities.

Text of Explanatory Note on Article 35 The principles set out in this Article are based on Article 152 of the EC Treaty, now replaced by Article 168 of the Treaty on the Functioning of the European Union, and on Articles 11 and 13 of the European Social Charter. The second sentence of the Article takes over Article 168(1).

Select Bibliography T Hervey, ‘The right to health in EU law’ in T Hervey and J Kenner (eds), Economic and Social Rights under the EU Charter of Fundamental Rights (Oxford, Hart Publishing, 2003) 193–222. ——, ‘We don’t see a connection: the “right to health” in the EU Charter and European Social Charter’ in G de Búrca and B de Witte (eds), Social Rights in Europe (Oxford, OUP, 2005) 305–35. JM Mann, L Gostin, S Gruskin, T Brennan, Z Lazzarini and H Fineberg, ‘Health and Human Rights’ (1997) 1 (1) Health and Human Rights 6–23. J McHale, ‘Fundamental Rights and Health Care’ in E Mossialos, G Permanand, R Baeten and T Hervey (eds), Health Systems Governance in Europe: The Role of EU Law and Policy (Cambridge, CUP, 2010). T Murphy, Health and Human Rights (Oxford, Hart Publishing, 2013). M Seleglid and T Pogge (eds), Health Rights (Farnham, Ashgate, 2010). B Toebes, ‘Right to Health and Health Care’, Encyclopaedia for Human Rights, Vol I (Oxford, OUP, 2009), 365–76. ——, M Hartlev, A Hendriks and JR Hermann, Health and Human Rights in Europe (Antwerp, Intersentia, 2012).

A. Field of Application of Article 35 The EU CFR is addressed only to Union institutions, bodies, offices and agencies, and 35.01 to the Member States only when they are implementing Union law.1 The Union does not have a health care system, and the organisation of health care systems is a matter of national competence,2 as Article 35 itself notes (‘under the conditions established by

1 2

On the meaning of this provision, and the relevant case law, see Ward’s chapter on Art 51. Art 168 (7) TFEU.

Part I – Commentary on the Articles of the EU Charter

national laws and practices’).3 The field of application of this provision would therefore seem to be extremely limited, as no Union institutions, bodies, offices or agencies are responsible for ‘preventive health care’ or ‘medical treatment’. On the other hand, every Member State has a national health care system, and Article 35 applies to the Member States when they are implementing Union law. Provisions of Union law that affect national health care systems include Regulation 883/2004/EC on the coordination of social security systems and Directive 2011/24/EU on patients’ rights in cross-border health care, as well as general provisions of Union free movement law, public procurement law and competition law. Union law on migration (including asylum, and long-term residency) and on non-discrimination is also important, as is Union external relations law concerning development policies. Union law and regulation on economic and fiscal governance is beginning to have an effect—in some cases a profound effect—on national health care systems. 35.02 Furthermore, the second sentence of Article 35 suggests an extremely wide field of application, as it refers to ‘all of the Union’s policies and activities’. A failure to ensure a high level of health protection in any Union law or policy, and, equally, its implementation by Member States, would, in principle, breach Article 35.

B. Interrelationship of Article 35 with Other Provisions of the Charter 35.03 The right to health care is linked to a range of other human rights, particularly related to human dignity (Art 1 EU CFR). These include the right to life (Art 2), the right to the integrity of the person (Art 3), the right to respect for private and family life (Art 7), the right to found a family (Art 9), freedom of thought, conscience and religion (Art 10). In the context of health care systems, important procedural safeguards are found in the right to protection of personal data (Art 8) and the right to good administration (Art 41). Practical safeguards against ill-health are also promoted through the right to social security and social assistance (Art 34). Certain classes of people (women (Art 23), children (Art 24), the elderly (Art 25), people with disabilities (Art 26)) often have greater recourse to health care systems; the principle of non-discrimination (Art 21) applies to respect for their human rights. Environmental protection (Art 37) is an important determinant of ‘preventive health care’ (public health). As health care systems are ‘services of general interest’, Union recognition of the special place of such services (Art 36) is relevant to interpretation of Article 35, especially as it is applied to ‘the definition and implementation of all the Union’s policies and activities’. Moreover national competencies must be exercised in accordance with Union law.4 35.04 In proceedings before the European Court of Human Rights, and national constitutional courts, as discussed below, health care rights in specific contexts are often discussed by reference to ‘dignity-related’ human rights, rather than the right to health care per se, which of course is not part of the European Convention on Human Rights (ECHR).

3 4

952

See also Art 52(6) and the discussion thereof in this volume. Case 15/74 Centrafarm v Sterling Drug [1974] ECR 1147.

Tamara Hervey and Jean McHale

Art 35 – Health Care

C. Sources of Article 35 Rights I. ECHR Article 35 is not mentioned in the list of provisions of the EU CFR corresponding to 35.05 rights in the ECHR. The right to health care does not feature in the ECHR. However, as with the EU CFR, several provisions of the ECHR relate to the right to health care. For instance, Article 1 ECHR (the right to life) has been used in proceedings before the ECtHR concerning matters such as access to abortion,5 resource allocation,6 and end-of-life decision-making.7 Article 5 ECHR (liberty and security of the person) has been used extensively in mental health claims.8 Article 8 (privacy of home and family life) and Article 12 (right to marry and found a family) have been used in reproductive treatment claims.9

II. UN Treaties The Universal Declaration of Human Rights 1948, Article 25 recognises a right to ‘a 35.06 standard of living adequate for health and well being’, which includes a right to ‘medical care and necessary social services’.10 The International Convention on Economic, Social and Cultural Rights 1966 (ICESCR), Article 12 recognises ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’. This provision includes the obligations on states parties to achieve that right through the steps necessary for ‘the prevention, treatment and control of epidemic, endemic, occupational and other diseases’ and ‘the creation of conditions which would assure to all medical service and medical attention in the event of sickness’. The UN Committee on Economic, Social and Cultural Rights (CESCR), the monitoring 35.07 body for the ICESCR, has interpreted Article 12 in its (non-binding) ‘General Comment 14’ of August 2000.11 This influential document notes that the right to health is not only the right to health care, but also covers the underlying determinants of good health, in particular access to adequate food, housing, safe drinking water and adequate

5 H v Norway (1992) DR 155; Open Door and Dublin Well Woman v Ireland (1992) 15 EHRR 244, ECtHR; Paton v UK (1981) 3 EHRR 408. 6 Osman v UK (1998) 29 EHRR 245; Scialaqua v Italy (1998) 26 EHRR 164. 7 Pretty v UK (2002) 35 EHRR 1. 8 See eg Winterwerp v The Netherlands (1992) 15 EHRR 437: Aerts v Belgium (2000) 29 EHRR 50. See further P Bartlett, O Lewis and O Thorold, Mental Disability and International Human Rights (The Hague, Martinus Nijhoff, 2007) and L Gable and L Gostin, ‘Human Rights of Persons with Mental Disabilities: The European Convention of Human Rights’ in L Gostin, P Bartlett, P Fennell, J McHale and R McKay (eds), Principles of Mental Health Law (Oxford, OUP, 2010). 9 Evans v UK App no 6339/05 (10 April 2007); Tysiac v Poland (2007) 1 FCR 666; A, B, C v Ireland App no 25579/05 [2010] ECHR 2032; Dickson v UK App No 44362/04 (8 April 2006). 10 See generally Y Aria-Takahashi, ‘The Right to Health in International Law—a critical appraisal’ in R Martyn and L Johnson (eds), Law and the Public Dimension of Health (London, Cavendish, 2001) and see also UNESCO Universal Declaration on Bioethics and Human Rights adopted by the UNESCO General Conference on 19 October 2005. 11 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment 14 on the Right to the Highest Attainable Standard of Health, UN Doc E/C 12/2000/4, August 11, 2000.

Tamara Hervey and Jean McHale

953

Part I – Commentary on the Articles of the EU Charter

sanitation, safe working conditions and environmental protection. The right to health is increasingly defined in the context of a ‘general framework’, known as ‘AAAQ’, which refers to availability, accessibility (encompassing non-discrimination, physical accessibility, affordability, and information accessibility), acceptability and quality.12 Core obligations of the right to health care include non-discrimination in access to health care facilities, immunisation against the major infectious diseases, prevention, treatment and control of diseases, health education and information.13

III. Council of Europe Treaties 35.08 The Explanations on Article 35 explicitly mention Articles 11 and 13 of the European Social Charter. Article 11 ESC covers the right to protection of health: With a view to ensuring the effective exercise of the right to protection of health, the Parties undertake, either directly or in cooperation with public or private organisations, to take appropriate measures designed inter alia: 1. to remove as far as possible the causes of ill-health; 2. to provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health; 3. to prevent as far as possible epidemic, endemic and other diseases, as well as accidents.

Article 13 ESC covers the right to social and medical assistance: With a view to ensuring the effective exercise of the right to social and medical assistance, the Parties undertake: 1. to ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts or from other sources, in particular by benefits under a social security scheme, be granted adequate assistance, and, in case of sickness, the care necessitated by his condition; 2. to ensure that persons receiving such assistance shall not, for that reason, suffer from a diminution of their political or social rights; 3. to provide that everyone may receive by appropriate public or private services such advice and personal help as may be required to prevent, to remove, or to alleviate personal or family want; 4. to apply the provisions referred to in paragraphs 1, 2 and 3 of this article on an equal footing with their nationals to nationals of other Parties lawfully within their territories, in accordance with their obligations under the European Convention on Social and Medical Assistance, signed at Paris on 11 December 1953.

35.09 Interpretation of these provisions has taken place in the context of the monitoring body, the European Committee of Social Rights (ECSR), which can also hear collective complaints. A non-binding document of the Secretariat of the ECSR14 summarising this

12

B Toebes et al, Health and Human Rights in Europe (Antwerp, Intersentia, 2012) 94–95. General Comment 14, paras 43–44; ibid, 99–100. 14 Secretariat of the ESC, The Right to Health and the European Social Charter, March 2009 www.coe.int/t/ dGHl/monitoring/Socialcharter/Theme%20factsheets/FactsheetHealth_en.pdf. 13

954

Tamara Hervey and Jean McHale

Art 35 – Health Care

‘jurisprudence’ confirms that the right to health in the ESC encompasses measures to promote health (air pollution; nuclear hazards; asbestos risks; food safety; tobacco, alcohol and drugs regulation; immunisation and infectious disease monitoring; accident prevention; education; counselling and screening; occupational health and safety) and health care provision (facilities, and access, meaning collective cost-bearing, provision for those unable to pay, avoiding undue delay, three beds per 1000 population). Special provisions for children (education, immunisation), women (maternity leave, pay, pregnancy dismissal protection; mother and infant health care) and elderly persons are also covered. Seven of the collective complaints heard by the ECSR,15 and several pending claims,16 concern breach (or alleged breach) of the right to health. A recurrent issue in this jurisprudence is the right to health of vulnerable groups, such as children, undocumented migrants and the Roma.17 All the Union Member States have accepted Article 11 ESC. Cyprus and Slovenia have 35.10 not accepted Article 13(1); Bulgaria, Estonia, Lithuania, Romania, Slovakia and Slovenia have not accepted Article 13(4).18 The Council of Europe’s Convention on Human Rights and Biomedicine refers to 35.11 ‘Equitable access to health care’,19 provides that ‘[p]arties, taking into account health needs and available resources, shall take appropriate measures with a view to providing, within their jurisdiction, equitable access to health care of appropriate quality’. According to the Council of Europe’s Explanatory Report on the Convention,20 ‘health care’ is defined as ‘the services offering diagnostic, preventive, therapeutic and rehabilitative interventions, designed to maintain or improve a person’s state of health or alleviate a person’s suffering’. It is defined according to ‘medical needs’. State parties are obliged to subject health care provision to continuous quality assessment, including against scientific and technological innovations. ‘Equitable’ does not mean ‘absolute equality’, but primarily ‘the absence of unjustified discrimination’.

15 European Committee of Social Rights, Maragopoulous Foundation for Human Rights (MFHR) v Greece App no 30/2005 (6 February 2007); European Roma Rights Centre (ERRC) v Bulgaria App no 46/2007 (3 December 2008); INTERIGHTS v Croatia App no 45/2007 (9 April 2009); Médecins du Monde International v France App no 27/2011 (27 March 2013); Defence for Children International (DCI) v Belgium App no 69/2011 (11 June 2013); International Federation for Human Rights (FIDH) v Greece App no 72/2011 (16 October 2013); International Federation of Human Rights (FIDH) v Belgium App no 75/2011 (16 October 2013). 16 FEANSTA v The Netherlands App no 86/2012 (still pending); International Planned Parenthood Federation v Italy App no 87/2012 (still pending); Conference of European Churches v The Netherlands App no 90/2013 (still pending). 17 Toebes et al (above n 12), pp 46–47, 90, 103, 221. 18 www.coe.int/t/dghl/monitoring/socialcharter/Presentation/ProvisionTableRevJuly2012_en.pdf On the question of the position of EU CFR rights where the source is a Treaty that not all Member States have ratified, see de Witte’s chapter. 19 Art 3, Council of Europe, Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to Biology and Medicine Convention on Human Rights and Biomedicine (1997). See also Council of Europe, Additional Protocol to the Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to Biology and Medicine on the Prohibition of Cloning Human Beings (1998); Council of Europe, Additional Protocol to the Convention on Human Rights and Biomedicine, on Transplantation of Organs and Tissues of Human Origin (2002). For discussion, see P Zilgavis, ‘The European Convention on Biomedicine: Its Past, Present and Future’ in A Garwood-Gowers, J Tingle, T Lewis (eds), Healthcare Law: The Impact of the Human Rights Act 1998 (London, Cavendish, 2001). 20 http://conventions.coe.int/Treaty/en/Reports/Html/164.htm.

Tamara Hervey and Jean McHale

955

Part I – Commentary on the Articles of the EU Charter

35.12

Article 3 imposes an obligation on states to use their ‘best endeavours’ to provide equitable access to health care, within the constraints of available resources, using a variety of different forms and methods. The provision does not create individual justiciable rights. 35.13 Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland France, Greece, Hungary, Latvia, Lithuania, Portugal, Romania, Slovakia, Slovenia and Spain have ratified the Convention on Human Rights and Biomedicine. Austria, Belgium, Germany, Ireland, Malta and the UK have not. Italy, Luxembourg, Netherlands, Poland and Sweden have signed but not yet ratified.21 The Council of Europe has recently published a draft Convention on the Trafficking 35.14 of Human Organs.22

IV. Other Sources 35.15 A majority of the Member States (18/28) include a provision on the ‘right to health’ or the ‘right to health care’ or the ‘right to medical aid or medical insurance’ in their constitution.23 Other sources of the right to health include the Convention on the Elimination 35.16 of all forms of Discrimination Against Women 1979, Article 12; Convention on the Elimination of All Forms of Racial Discrimination 1965, Article 5; Convention on the Rights of Persons with Disabilities 2006, Article 25; and Convention on the Rights of the Child 1989, Article 24. The Convention on the Protection of the Rights of All Migrant Workers and Members of their Families 1990 covers equal access to health care for (documented) migrant workers, and right to emergency health care for all migrants. Various ILO Conventions concern occupational health and safety; ILO Convention No 169 (1989) recognises the right to health of indigenous peoples.

21 On the question of the position of EU CFR rights where the source is a Treaty that not all Member States have ratified, see de Witte’s commentary on Art 53 in this volume. 22 Towards a Council of Europe Convention to combat trafficking in organs, tissues and cells of human origin (2013) http://assembly.coe.int/ASP/XRef/X2H-DW-XSL.asp?fileid=19236&lang=EN; ‘Committee of Experts on Trafficking in Human Organs, Tissues and Cells (PC-TO)’ www.coe.int/t/DGHL/STANDARDSETTING/ CDPC/PC_TO_en.asp. 23 Art 23 of the Belgian Constitution; c 2, Art 52 of the Bulgarian Constitution; Art 59 of the Croatian Constitution; Art 4 Czech Charter of Fundamental Rights and Freedoms; Art 28 of the Estonian Constitution; s 19(3) of the Finnish Constitution; Art 70D of the Hungarian Constitution; Art 32 of the Italian Constitution; Art 111 of the Latvian Constitution; Art 53 of the Lithuanian Constitution, Art 11(5) of the Luxembourg Constitution; Art 22(1) of the Netherlands Constitution; Art 68 of the Polish Constitution; Art 64(1) of the Portuguese Constitution; Art 34 of the Romanian Constitution; Art 40 of the Spanish Constitution; Art 51 of the Slovenian Constitution; Art 43 of the Spanish Constitution. According to the former UN Special Rapporteur on the Right to Health, Paul Hunt, over 100 national constitutional provisions now include the right to health, the right to health care, or health-related rights such as a right to a healthy environment. Paul Hunt, ‘The human right to the highest attainable standard of health: new opportunities and challenges’, Transactions of the Royal Society of Tropical Medicine and Hygiene (2006) 100, pp 603–607, p 603, cited Toebes et al (above n 12), p 91.

956

Tamara Hervey and Jean McHale

Art 35 – Health Care

D. Analysis I. General Remarks With only three substantive judicial citations of Article 35 EU CFR in the CJEU’s case 35.17 law,24 and two Opinions of Advocates General relying in part on the provision in their reasoning,25 the potential of this right, or perhaps ‘principle’,26 is as yet unrealised in Union law. Other jurisdictions, especially Colombia,27 India,28 Canada29 and South Africa,30 have relied on the ‘right to health care’ and/or related rights to challenge federal or state policies with respect to health care provision, so the potential is there for the CJEU and/or national courts to rely on Article 35, but this has not taken place. The general reluctance of European courts to find economic and social rights justiciable31 may militate against this potential. The EU Fundamental Rights Agency (FRA) has worked on the right to health in vari- 35.18 ous contexts, particularly on health rights of vulnerable people.32 The FRA hopes that its work will translate into legislation, at both Union and national level.

II. Scope of Application The right to health, as found in international and national law, has multiple and con- 35.19 tested meanings,33 with respect both to the types of obligations it imposes and the substantive content of those obligations. 24 Case C-544/10 Deutsches Weintor (Judgment of 6 September 2012); Case C-84/11 Susisalo (Judgment of 21 June 2012); Joined Cases C-570 and C-571/07 Pérez and Gómez [2010] ECR I-4629. A fourth case, Joined Cases C-267 and C-268/10 Rossius and Collard was found inadmissible for lack of jurisdiction (Order of the Court 23 May 2011). A fifth case involving a challenge to Slovak compulsory immunization law is pending, C-459/13 Siroka, but does not seem to fall within the scope of EU law. 25 Case C-444/05 Stamatelaki [2007] ECR I-3185; Case C-137/09 Josemans [2010] ECR I-13019. 26 On the difference between ‘rights’, ‘freedoms’ and ‘principles’ in the EU CFR, see Peers’ and Jääskinen’s commentaries in this volume, and see further below in section V. 27 The Colombian Constitutional Court has recognised an absolute right to access a minimum core of health care, available to those who are otherwise unable to afford such care, see, eg, Case T-760/2008. 28 See, eg, Paschim Banga Khet Mazdoor Samity v State of West Bengal [1996] INSC 659, relying on Art 21, Constitution of India, on the right to life. 29 See, eg, Chaoulli v Quebec (Attorney General) [2005] 1 SCR 791, 2005 SCC 35. The idea of a freestanding ‘right to health’ is not constitutionally recognised, but the principle of equality (or non-discrimination) provides the jurisprudential basis for litigation concerning the ‘right to health’. 30 See, eg, Minister of Health v Treatment Action Campaign (TAC) 2002 (10) BCLR 1075 (CC). For further discussion of the comparative context see T Hervey, ‘Health Equality, Solidarity and Human Rights in European Union law’ in J Dias et al (eds), Citizenship and Solidarity in the EU: from the Charter of Fundamental Rights to the Crisis, the state of the art (Brussels, PIE Peter Lang, 2014). 31 P O’Connell, Vindicating Socio-Economic Rights: International Standards and Comparative Experiences (London, Routledge, 2012); Toebes et al (above n 12), pp 102–103; Jääskinen’s commentary. 32 See, for instance, European Agency for Fundamental Rights, Inequalities and multiple discrimination in access to and quality of health care (Luxembourg, Publications Office of the EU, 2013); Involuntary placement and involuntary treatment of persons with mental health problems (Luxembourg, Publications Office of the EU, 2012); The Situation of Roma in 11 Member States (Luxembourg, Publications Office of the EU, 2012); The Racial Equality Directive: application and challenges (Luxembourg, Publications Office of the EU, 2012); European Monitoring Centre on Racism and Xenophobia, Breaking the barriers: Romani women and access to public health care (Luxembourg, EUMC, 2003). 33 See T Murphy, Health and Human Rights (Oxford, Hart Publishing, 2013); M Minow, Human Rights Program, Harvard Law School and François-Xavier Bagnoud Center for Health and Human Rights Workshop,

Tamara Hervey and Jean McHale

957

Part I – Commentary on the Articles of the EU Charter

35.20

With so little jurisprudence to go on, it is difficult to be certain of the scope of application of Article 35. In general, approaches to the ‘right to health’ range from a procedural approach, through a ‘reasonableness’ review, to a ‘minimum core’ approach. The ‘minimum core’ concept, for instance as described by Brigid Toebes in her review of international human rights texts, comprises ‘maternal and child care, including family planning; immunisation against the major infectious diseases; appropriate treatment of common diseases and injuries; and provision of essential drugs’, along with an ‘adequate supply of safe water and basic sanitation; and freedom from serious environmental health threats’.34 It would seem unquestionable that the Member States of the Union allocate sufficient resources to respect the right to health in that minimal sense.35 The FRA has defined the right to health along the lines of a ‘minimum core’ defini35.21 tion, by reference to work of the World Health Organization, and the UN CESCR.36 The right involves, as a minimum, access to ‘essential primary healthcare’ and to ‘primary and emergency medical care’.37 Implicitly, such access means being covered by medical insurance, in countries where that is how the national health system is structured.38 It also, implicitly, includes basic public health protection.39 35.22 In terms of personal scope, the FRA has stressed that the right to health applies to all people, irrespective of their status.40

Economic and Social Rights and the Right to Health, September 1993, www.law.harvard.edu/programs/HRP/ Publications/economic1.html, p 4. 34 B Toebes, The Right to Health as a Human Right in International Law (Antwerp, Intersentia/Hart, 1999), 243–89 and table on p 289; see also B Toebes, ‘The Right to Health’ in A Eide, C Krause and A Rosas (eds), Economic, Cultural and Social Rights (The Hague, Kluwer, 2001). Note in her 2012 book, p 99, Toebes states that the ‘minimum core’ approach is yet to be accepted by a court—we would contend that the Colombian Supreme Court in case T-760/2008, or the Indian Supreme Court in Paschim Banga Khet Mazdoor Samity v State of West Bengal [1996] INSC 659 may provide examples of such an acceptance. 35 But see below, in terms of guaranteeing the right to health for ‘outsiders’, for instance asylum-seekers. 36 CESCR (1990) General Comment No 3 The nature of States parties obligations (Art 2(1)), 14 December 1990; CESCR (2008) General Comment No 19 The right to social security (Art 9)), 4 February 2008; and CESCR (2000) General Comment No 14 The Right to the highest attainable standard of health (Art 12), 11 August 2000. 37 EU Fundamental Rights Agency, Fundamental Rights of Migrants in an Irregular Situation in the European Union, February 2011 http://fra.europa.eu/fraWebsite/attachments/FRA_2011_Migrants_in_an_irregular_ situation_EN.pdf; EU FRA, Respect for and protection of persons belonging to minorities http://fra.europa.eu/ fraWebsite/attachments/FRA-Report-Respect-protection-minorities-2011_EN.pdf. 38 See EU Fundamental Rights Agency, The situation of Roma in 11 Member States May 2012 http://fra. europa.eu/fraWebsite/attachments/FRA-2012-Roma-at-a-glance_EN.pdf. 39 See, eg, EU FRA, Coping with a Fundamental Rights Emergency: the situation of persons crossing the Greek land border in an irregular manner 2011, http://fra.europa.eu/fraWebsite/attachments/Greek-bordersituation-report2011_EN.pdf. Access to HIV prevention, treatment, care, and support is also included EU FRA factsheet http://fra.europa.eu/fraWebsite/attachments/AIDS_2010_FRA_factsheet.pdf. 40 EU Fundamental Rights Agency, Fundamental Rights of Migrants in an Irregular Situation in the European Union (February 2011), http://fra.europa.eu/fraWebsite/attachments/FRA_2011_Migrants_in_an_irregular_ situation_EN.pdf. In Case C-571/10, Kamberaj (24 April 2012), the CJEU, relying in part on Art 34 EU CFR, held that the long-term residency Directive 2003/109/EC, even though it limits non-discriminatory access to social assistance entitlements to ‘core benefits’, could apply to housing benefit. Presumably the reasoning would be extended to core health care benefits, especially as the Directive itself refers to ‘assistance in case of illness, pregnancy’ in Recital 13. EU law on the common asylum system is also relevant. The qualification Directive 2011/95/EU requires Member States to grant access to health care to refugees or those with ‘subsidiary protection’, on the same basis as nationals (Art 30(1)); special mention is made of ‘beneficiaries of international protection who have special needs, such as pregnant women, disabled people, persons who have undergone torture, rape or other serious forms of psychological, physical or sexual violence or minors who have been victims of any form of abuse, neglect, exploitation, torture, cruel, inhuman and degrading treatment or who have suffered from armed conflict’, who are entitled to adequate healthcare, including treatment

958

Tamara Hervey and Jean McHale

Art 35 – Health Care

III. Specific Provisions As far as we are aware, only one judicial review claim has so far been heard by the 35.23 CJEU, on the basis that a Union law or policy failed to ensure a high level of health protection.41 In Deutches Weintor,42 the CJEU considered the interpretation and validity of secondary Union law covering nutritional claims on food labelling. The relevant Regulation43 provides that ‘beverages containing more than 1.2% by volume of alcohol shall not bear health claims’.44 The CJEU held, by reference to whether any improvements in one’s physical condition on ingestion of the wine concerned are fleeting or sustained, that ‘easily digestible’ constitutes such a claim. The CJEU then turned to the question of whether the prohibition of such a product description nonetheless breaches Articles 15(1) and 16 EU CFR, on freedom to pursue an occupation, and to conduct a business. It found that ‘the prohibition does not in any way affect the actual substance’ of those freedoms.45 More interestingly for our purposes, however, the CJEU also reframed the question, stating that ‘it is important also to take into account’ Article 35 EU CFR, second sentence, which provides that ‘a high level of human health protection shall be ensured in the definition and implementation of all the Union’s policies and activities’.46 Its rationale in so doing was that health protection is among the principal aims of the Regulation.47 The CJEU took the view that assessment of the validity of the Regulation must reconcile such competing fundamental rights, striking a ‘fair balance’ between them.48 The Union legislature was entitled to prohibit such health claims, in order to ensure a high level of health protection for consumers.49 As Kenner has pointed out,50 the ruling in Deutches Weintor does not rely on the ‘right to health care’ per se, but rather on the second sentence of Article 35, which is reflected also in various provisions of the TFEU.51 In this respect, the CJEU’s reasoning falls short of conceptualising Article 35

of mental disorders when needed (Art 30(2)). The reception conditions Directive 2013/33/EU provides that applicants for asylum must be given ‘an adequate standard of living for applicants, which guarantees their subsistence and protects their physical and mental health’ (Art 17(2)), although this may be means tested. When implementing the Directive, Member States must take into account the needs of vulnerable applicants, including ‘persons with serious illnesses’, ‘persons with mental disorders’, disabled people, elderly people and pregnant women. And Directive 2008/115/EC on common standards and procedures for returning illegally staying third-country nationals (the returns Directive) gives safeguards pending return of third-country nationals, including ‘emergency health care and essential treatment of illness’ (Art 14(1)(b)). These provisions apply even to some of the categories of third-country nationals which Member States may exclude from the Directive (Arts 4(4), 2(2)(a)). See further below. 41 In addition, one staff case, which settled out of court, included the argument that a reassignment in the place of work from Rome to Brussels of an ill person constituted a breach of Art 35 EU CFR, see Case F-64/06 S v European Parliament [2007] OJ C199/53; removed from the register [2008] OJ C223/63. 42 Case C-544/10 Deutsches Weintor (6 September 2012). 43 Regulation 1924/2008/EC of the European Parliament and of the Council on nutrition and health claims made on foods [2008] OJ L404/9. 44 Art 4(3). 45 Para 58. 46 Para 45. 47 Para 45, referring to Regulation 1924/2008/EC, Recitals 1 and 18. 48 Paras 44–47. 49 Para 52. 50 J Kenner, ‘The Court of Justice of the European Union and Human Rights in 2012’ in W Benedek, F Benoît-Rohmer, W Karl, M Nowak (eds), European Yearbook on Human Rights (Antwerp, Intersentia, 2013). 51 Arts 9 and 168(1).

Tamara Hervey and Jean McHale

959

Part I – Commentary on the Articles of the EU Charter

as an individual fundamental (social) right in the usual sense, seeing it rather as a crosscutting requirement applicable to Union policies and activities. 35.24 We are unaware of any judicial review claims brought in national courts against national implementing acts.52 It is conceivable that Article 35 could be the basis for a claim challenging, for instance, austerity measures within the eurozone.53 Cases before the Greek and Portuguese courts have considered their constitutionality,54 and, as noted above, several complaints are pending before the ECSR, although these concern pensions, social security and housing rights, rather than the right to health. An attempt to rely on Article 35 before the CJEU to challenge a Member State (Belgium) allowing manufacture, importation, promotion, and sale of tobacco products to continue within its territory, even though Belgium officially recognises that tobacco is seriously harmful to health, was struck out for lack of jurisdiction of the CJEU.55 The logic of the plaintiffs’ argument would appear to have been that the Member State was implementing Union (free movement) law, and hence the matter fell within the EU CFR. However, one cannot help feeling that the politics of the situation, given that every Member State not only allows the sale of tobacco products, but also relies on public revenues from their importation and sale, make this an unfortunate test case. Article 35 can be used to interpret Union law, for instance in the context of free move35.25 ment or competition law. Advocate Ruiz-Jarabo Colomer has mentioned Article 35 in a case concerning free movement of patients.56 In it, he conceptualised Article 35 as ‘a personal entitlement, unconnected to a person’s relationship with social security’. However, this individualistic approach to Article 35 has not been taken up by the CJEU. On the contrary, the CJEU appears sensitive to the context in which realisation of the right to health care takes place—that of national health care systems. Two decisions of the CJEU, concerning the consistency of national laws regulating pharmacies with internal market law, have relied on Article 35 with respect to whether restrictions on freedom of establishment are justified.57 In both of these, the CJEU, in finding the national laws justified, referred to the obligation to ensure a high level of health protection in the definition and implementation of all Union policies. Advocate General Bot relied on Article 35 as part of his argument that the sale of marijuana in ‘coffee shops’ falls outside the scope of Union free movement law.58 These examples suggest that, in terms of the

52 Although we have been entirely unable to conduct an exhaustive search in this respect. See, in general, N Fahy, ‘Who is shaping the future of European health systems?’ [2012] British Medical Journal 344:e1712. 53 See further Ward’s commentary on Art 51 in this volume. 54 Portugal: ruling of Constitutional Court 5 April 2013, see www.economist.com/blogs/charlemagne/ 2013/04/portugals-bailout. Greece: Στε.Ολ 668/2012 and ΕιρΑθ 599/2012. One of the applicants in 668/2012 has apparently applied to the European Court of Human Rights. In September 2012, the Council of Europe’s Committee of Ministers adopted a Resolution (CM/ResCSS (2012) 8 on the application of the European Code of Social Security and its Protocol) to the effect that the fiscal austerity measures being implemented in Greece ‘are affecting the sustainability of the national social security system’, although this does not relate the austerity measures to human rights breaches per se. 55 Joined Cases C-267 and 268/10 Rossius and Collard (Order of the Court 23 May 2011). 56 Case C-444/05 Stamatelaki [2007] ECR I-3185. 57 Case C-84/11 Susisalo (Judgment of 21 June 2012); Joined Cases C-570 and 570/07 Pérez and Gómez [2010] ECR I-4629. 58 Case C-137/09 Josemans [2010] ECR I-13019.

960

Tamara Hervey and Jean McHale

Art 35 – Health Care

Union’s internal competencies, the right to health may alter the discourse of litigation, but does little to alter the outcomes.59 The FRA has been active in promoting the right to health of various vulnerable 35.26 groups. In so doing, it has identified examples of best-practice, highlighted particularly problematic breaches of the right to health, and called for revisions to both Union and national legislation. In its reporting on the position of minorities in the Union, the FRA has pointed out that the Racial Equality Directive60 obliges Member States to ensure equal treatment of persons irrespective of racial or ethnic origin in ‘social protection, including social security and health care’. Yet members of racial and ethnic minority groups, in particular Roma and people from North Africa, reported discrimination from health care staff,61 and endemic structural discrimination, including in access to health care, remains a problem. The CJEU’s case law on the Racial Equality Directive confirms that it involves a generous interpretation of both direct and indirect discrimination,62 although it does not cover discrimination on grounds of nationality.63 The Long Term Residents Directive gives entitlements to ‘social security, social assistance and social protection as defined by national law’, though Member States may restrict these to ‘core benefits’.64 Such core benefits include access to core health care rights.65 Article 35 could also be used to interpret the legislation determining the Union’s 35.27 common European asylum system. Third-country nationals with refugee status and those obtaining ‘subsidiary protection’66 are entitled to access health care on the same basis as nationals of the Member State granting international protection.67 Member States must provide ‘adequate health care, including treatment of mental disorders where needed’, to ‘beneficiaries of international protection who have special needs, such as pregnant women, disabled people, persons who have undergone torture, rape or other serious forms of psychological, physical or sexual violence or minors who have

59 T Hervey, ‘The right to health in EU law’ in T Hervey and J Kenner (eds), Economic and Social Rights under the EU Charter of Fundamental Rights (Oxford, Hart Publishing, 2003) 193–222, 206–12. 60 Council Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22, Art 3(1)(e). 61 EU FRA, Respect for and Protection of persons belonging to minorities 2008-2010, http://fra.europa.eu/ fraWebsite/attachments/FRA-Report-Respect-protection-minorities-2011_EN.pdf, p 51; EU FRA The situation of Roma in 11 Member States http://fra.europa.eu/fraWebsite/attachments/FRA-2012-Roma-at-a-glance_ EN.pdf; EU Monitoring Centre on Racism and Xenophobia, 2003, Breaking the barriers: Romani women and access to public health care, http://fra.europa.eu/fraWebsite/attachments/ROMA-HC-EN.pdf. 62 Case C-54/07 Firma Feryn [2008] ECR I-5187; Case C-415/10 Meister v Speech Design Carrier Systems (19 April 2012). 63 Case C-571/10 Kamberaj (24 April 2012). 64 Council Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents [2004] OJ L16/44–53, Art 11(1)(d) and (4). 65 In Case C-571/10 Kamberaj (24 April 2012), the CJEU held that the provision applied to housing benefit. The preamble of Directive 2003/109/EC defines ‘core benefits’ as at least ‘minimum income support, assistance in the case of illness, pregnancy, parental assistance and long-term care’, Recital 13. The CJEU referred to Recital 13 in Kamberaj, confirming the non-exhaustive nature of the list. See further White’s commentary on Art 34 in this volume. 66 As defined by the qualification Directive 2011/95/EU of the European Parliament and of the Council on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), [2011] OJ L337/9, Art 2 (d)–(g). 67 Art 30(1).

Tamara Hervey and Jean McHale

961

Part I – Commentary on the Articles of the EU Charter

been victims of any form of abuse, neglect, exploitation, torture, cruel, inhuman and degrading treatment or who have suffered from armed conflict’.68 35.28 The reception conditions Directive69 provides that asylum-seekers,70 who make an application on the territory (including at the border)71 are entitled to an adequate standard of living, which protects their physical and mental health.72 Applicants are entitled to ‘necessary health care’, which includes, at least, ‘emergency care and essential treatment of illnesses and of serious mental disorders’.73 Entitlements may be means tested,74 and need not be as favourable as those provided for nationals.75 They may also be reduced (or in some cases withdrawn) in various circumstances, such as if the applicant does not comply with reporting duties, or has not lodged an application for international protection as soon as reasonably practicable after arrival in the Member State, unless this is for a justifiable reason, or has concealed the extent of their financial resources.76 The CJEU has confirmed that Member States may not reduce or withdraw entitlements in other circumstances,77 and an interpretation of this provision relying on Article 35 EU CFR would confirm this approach. In any event, Member States must ‘under all circumstances ensure access to health care in accordance with’ the specific rules in the Directive.78 The Directive does not apply in the case of a mass influx of displaced persons, if the Union’s temporary protection Directive is applied.79 In the national legislation implementing the reception conditions Directive, Member States must take into account the specific needs of ‘vulnerable persons’, which include ‘disabled people, elderly people, pregnant women … persons with serious illnesses, persons with mental disorders and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, such as victims of female genital mutilation’.80 Victims of torture and violence must have access to appropriate medical and psychological treatment or care.81 Vulnerable applicants who are detained in accordance with the Directive must be regularly monitored for health, including mental health, needs, and given ‘adequate support’.82 Member States may screen applicants under the Directive, on public health grounds.83

68

Art 30(2). Directive 2013/33/EU of the European Parliament and of the Council laying down standards for the reception of applicants for international protection (recast) [2013] OJ L 180/96. 70 That is, applicants for ‘international protection’ as defined in Directive 2011/95/EU, Art 2(h), ie thirdcountry nationals or stateless persons who can be understood to be seeking refugee status or subsidiary protection. 71 Not those who request diplomatic asylum to Member States’ embassies, Art 3(2). 72 Art 17(2). 73 Art 19(1). 74 Art 17(3) and (4). 75 Art 17(5). 76 Art 20. 77 Case C-179/11 CIMADE and GISTI (27 September 2012) [57]. 78 Art 20(5). 79 Art 3(3). That situation is covered by Directive 2001/55/EC [2001] OJ L212/12, which provides similar entitlements to at least emergency care and essential treatment of illness, Art 13(2) and (4) (for people with special needs). 80 Art 21. 81 Art 25. 82 Art 11. 83 Art 13. 69

962

Tamara Hervey and Jean McHale

Art 35 – Health Care

Under the returns Directive,84 where third-country nationals are subject to a decision 35.29 that they must return either to their country of origin or to another country,85 pending their return, Member States must ensure that the ‘principle’ of provision of ‘emergency health care and essential treatment of illness’ is taken into account as far as possible.86 This entitlement extends to certain third-country nationals which Member States may exclude from protection under the Directive,87 such as those who have been apprehended by the border authorities because of an irregular crossing of an external EU border, and who do not subsequently obtain an authorisation to stay in that Member State.88 Vulnerable third-country nationals detained under the Directive, in order to prepare their return, or carry out the process of return, are entitled to emergency health care and essential treatment of illness.89 Concerns have been raised about public health conditions in detention centres.90 In particular, the position of children91 has been highlighted, with significant breaches of their right to health, in contravention of the UN Convention on the Rights of the Child. The FRA has also identified uneven protection for the right to health care for irregu- 35.30 lar migrants in the Union, both ‘undetected’ and ‘non-removed’ people. In the Opinion of the FRA, migrants in an irregular situation should, as a minimum, be entitled by law to access necessary healthcare services. Such healthcare should not be limited to emergency care only, but should also include other forms of necessary healthcare, such as the possibility to see a general practitioner or receive necessary medicines. The same rules for payment of fees and exemption from payment should apply to migrants in an irregular situation as to nationals. EU Member States should disconnect healthcare from immigration control policies. They should not impose a duty to report migrants in an irregular situation upon healthcare providers or authorities in charge of healthcare administration. The absence of this duty to report should be clearly communicated to them.

A recent FRA project concerns inequalities and multiple discrimination in health care, 35.31 and is based on Articles 21 and 35 EU CFR.92 It is collecting evidence on the experience of three particularly vulnerable groups in accessing health care: women with a migrant/ethnic minority background, including women with disabilities, trying to access reproductive health care; older people with a migrant/ethnic minority background, including those with disabilities; and migrant/ethnic minority young people 84 Directive 2008/115/EC of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L348/98. 85 This could be a country of transit, or another third country, see Art 3(3). 86 Art 14(1)(b). 87 Art 4(4)(a). 88 Art 2(2)(a). 89 Art 16(3). 90 Médicins Sans Frontières, Not Criminals (2009), www.aerzte-ohne-grenzen.at/fileadmin/data/pdf/ reports/2009/MSF_Report_Malta_2009.pdf; EU FRA, Coping with a fundamental rights emergency: the situation of persons crossing the Greek land border in an irregular manner http://fra.europa.eu/fraWebsite/ attachments/Greek-border-situation-report2011_EN.pdf. 91 Human Rights Watch, Left to Survive, www.hrw.org/sites/default/files/reports/greece1208webwcover_0. pdf; CommDH, Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, Human Rights of Asylum Seekers (Strasbourg, 2009); EU FRA Separated asylum-seeking children in EU Member States: a comparative report, http://fra.europa.eu/fraWebsite/attachments/SEPAC-comparative-report_EN.pdf all accessed July 2012. See Lamont’s commentary on Art 24 in this volume. 92 http://fra.europa.eu/fraWebsite/attachments/FRA-Factsheet_InequMultDiscrimination_EN.pdf.

Tamara Hervey and Jean McHale

963

Part I – Commentary on the Articles of the EU Charter

aged 18–25 with intellectual disabilities. The FRA seeks to feed into the Commission’s proposal for a Union ‘horizontal directive’ on non-discrimination.93 The European Parliament has also linked the right to health with inequality.94 35.32 In terms of the Union’s external relations law and policy,95 human rights clauses in trade and cooperation agreements reaffirm values and principles and express human rights ‘conditionality’.96 The use of such clauses to promote an environment respectful of human rights is more important than actually using the penalty of treaty suspension. However, the Union has been slow to use such an approach with respect to social rights, such as the right to health. In terms of health services, the WTO’s General Agreement on Trade in Services (GATS) does not cover ‘services supplied in the exercise of governmental authority’.97 Thus health services provided by a public (regional or national) monopoly free at the point of receipt and financed through taxation would not fall within GATS.98 However, where the market sector is covered by GATS, Article 35 EU CFR could be used to interpret aspects of the Union’s common commercial policy, such as extra-Unioncross-border health service provision where only the service itself moves (telemedicine, outsourced medical transcription); movement of service recipients (medical tourism outside of the Union); commercial presence in the host state (foreign companies and foreign direct investment providing health services); and movement of human service providers/ professionals (movement of medical professionals into the Union to provide services).99 Another area of Union external relations law and policy that is important here relates 35.33 to Union development aid. The two Regulations that appear to be the only legislative measures that explicitly mention Article 35 EU CFR100 have now been replaced by the Union’s Development Cooperation Regulation.101 The Union is the largest donor of official development assistance in the world. Its approach to development assistance is to work through multi-agency cooperative global health institutions, such as the Global Fund to fight HIV/AIDS, Tuberculosis and Malaria.102 The Union’s development

93 COM (2008) 426 final, 2 July 2008. This has been discussed regularly in Council, including in December 2011 and June 2013, but with no significant progress. On the possibilities for the equality principle of the EU CFR, see further Bell’s commentary on equality, and Kilpatrick’s commentary on non-discrimination in this volume. 94 See European Parliament Resolution 2010/2089(INI) on reducing health inequalities in the EU, 8 February 2011. 95 See further generally Moreno-Lax and Costello’s commentary in this volume. 96 That is, spell out the suspension rights of parties to an international agreement in the event of nonrespect for those values and principles in the context of human rights clauses. 97 Defined as ‘any service which is supplied neither on a commercial basis, nor in competition with one or more service suppliers’, Art I:3(c) GATS. 98 M Krajewski, ‘Patient Mobility Beyond Calais: Health Services Under WTO Law’ in J van de Gronden et al (eds), Health Care and EU Law (The Hague, TMC Asser Press/Springer, 2011). 99 See H Jarman, ‘Trade in Services and the Public’s Health: A Fortress Europe for Health’ in SL Greer and P Kurzer (eds), European Union Health Policies (Abingdon, Routledge, 2013). 100 Regulation (EC) 1567/2003 on aid for policies and actions on reproductive and sexual health and rights in developing countries [2003] OJ L224/1–6; Regulation (EC) 1568/2003 on aid to fight poverty diseases (HIV/AIDS, tuberculosis and malaria) in developing countries [2003] OJ L224/7–12. 101 Regulation 1905/2006 establishing a financing instrument for development cooperation [2006] OJ L378/41, as amended. The proposed 2014–2020 Union multiannual financial framework continues the approach of Union support for development cooperation in the area of health, as part of human development, in both the ‘geographic’ and the ‘thematic’ aspects of the Union’s development policy. 102 For further discussion, see S Bartsch, ‘The Global Fund to Fight AIDS, Tuberculosis and Malaria’ in W Hein, S Bartsch and L Kohlmorgen (eds), Global Health Governance and the Fight Against HIV/AIDS (Basingstoke, Palgrave Macmillan, 2007) 146–71.

964

Tamara Hervey and Jean McHale

Art 35 – Health Care

cooperation policy is focused around the Millennium Development Goals.103 The Regulation organises the Union’s work in this respect into geographic programmes104 and thematic programmes,105 and focuses around four elements related to the right to health: — —

—

—

access to health services for the poor and other disadvantaged groups; the crisis in human resources in healthcare, linked to the migration of doctors, nurses and other key healthcare workers. There is an urgent need to strengthen the ability of many developing countries to train, support and retain enough healthcare personnel; the main poverty-related diseases (HIV/AIDS, malaria and tuberculosis), with the aim of helping developing countries to achieve universal access to prevention and treatment for all in need by 2010; sexual and reproductive health and rights, in the countries with the worst indicators for sexual and reproductive health, and the worst status for their citizens in terms of sexual and reproductive rights, in particular where governments have been unable or unwilling to take effective action on their own.106

103

www.un.org/millennium/summit.htm. Regulation (EC) 1567/2003, Art 5(2) EU action aimed at ‘(a) supporting the implementation of policies aimed at poverty eradication and at the achievement of the MDGs; … (b) addressing the essential needs of the population with prime attention to primary education and health, in particular by: Health: (i) increasing access to and provision of health services for lower income population groups and marginalised groups, including women and children, persons belonging to groups subject to ethnic, religious or any other discrimination and persons with disabilities, with a central focus on the related MDGs, namely reducing child mortality, improving maternal and child health and sexual and reproductive health and rights as set out in the Cairo Agenda of the International Conference on Population and Development (ICPD), addressing poverty diseases, in particular HIV/AIDS, tuberculosis and malaria; (ii) strengthening health systems in order to prevent human resource crises in the health sector; (iii) enhancing capacities particularly in areas such as public health and research and development.’ 105 Regulation (EC) 1567/2003, Art 12: ‘2. To achieve the objective referred to in paragraph 1 and consistent with Article 11, the programme shall include the following areas of activity: (a) Good health for all: (i) fight against poverty diseases targeting the major communicable diseases such as laid down in the European Programme for action to confront HIV/AIDS, malaria and tuberculosis, in particular:—increase the affordability of key pharmaceuticals and diagnostics for the three diseases in accordance with the provisions of the TRIPS Agreement as clarified in the Doha Declaration on the TRIPS Agreement and Public Health;—encourage public and private investment in research and development for new treatments, new medicines, particularly vaccines, microbicides and innovative treatments;—support global initiatives targeting the major communicable diseases in the context of poverty reduction, including the Global Fund to fight HIV/AIDS, Tuberculosis and Malaria; (ii) in line with the principles agreed at the ICPD and ICPD + 5, support actions to improve reproductive and sexual health in developing countries and to secure the right of women, men and adolescents to good reproductive and sexual health and provide financial assistance and appropriate expertise with a view to promoting a holistic approach to, and the recognition of, reproductive and sexual health and rights as defined in the ICPD Programme of Action, including safe motherhood and universal access to a comprehensive range of safe and reliable reproductive and sexual health care and services, supplies, education and information, including information on all kinds of family planning methods, including:—reducing maternal mortality and morbidity rates, with particular reference to the countries and populations where these are highest; (iii) improve equitable access to health providers, commodities and health services by supporting:—interventions to address the human resources crisis in health;—health information systems with the ability to generate, measure and analyse disaggregated performance data to ensure better health and development outcomes and sustainability of delivery systems;—improved vaccination and immunisation coverage and promotion of the availability of, and access to, existing or new vaccines;—fair mechanisms for financing equitable access to health care; (iv) keeping a balanced approach between prevention, treatment and care, with prevention as a key priority, acknowledging that its effectiveness is increased when linked with treatment and care.’ 106 http://ec.europa.eu/europeaid/what/health/index_en.htm. 104

Tamara Hervey and Jean McHale

965

Part I – Commentary on the Articles of the EU Charter

35.34 HIV/AIDS and communicable diseases are explicitly mentioned for several of the geographic programmes. Access to ‘essential medicines’,107 considered to be an element of the right to health, is also an important part of the EU’s development and trade policies. At least arguably, the EU’s ‘new generation’ trade and development agreements do little to support this aspect of the right to health, as they prohibit states parties from taking advantages of flexibilities in the WTO’s TRIPS agreement that would otherwise allow developing and least developed countries, for instance, to issue compulsory licences for manufacture and marketing of in-patent medicines in cases of national emergency, such as ‘HIV/AIDS, tuberculosis, malaria and other epidemics’.108

IV. Limitations and Derogations 35.35 Article 52(6) EU CFR provides that ‘full account shall be taken of national laws and practices as specified in this Charter’. There is nonetheless some tension here with Article 52(1).109 The first sentence of Article 35 explicitly states that everyone has the right to health care ‘under the conditions established by national laws and practices’. This provision implies that national laws and practices themselves limit the enjoyment of the right to health care, which is, of course, the case in all national health care systems. However, the extent to which national laws and practices are subject to scrutiny for human rights compliance depends upon whether the content of the right includes a ‘minimum core’ (which presumably would mean that departure from that minimum core would be unlawful), or only a reasonableness or procedural scrutiny.110 The FRA has taken a ‘minimum core’ approach, combining the right to health with 35.36 non-discrimination, and focusing on breaches of the right to health of the most vulnerable people within the Union. While this leaves significant discretion to the Member States in terms of the content and delivery of the right to health, it does focus on the rights of the most vulnerable. In this respect, the principle of non-discrimination is an important brake on limitations and derogations from the right to health.

V. Remedies 35.37 There are no express provisions in Union law on remedies for breach of Article 35. Presumably a Union institution, body, or agency which was found to breach Article 35 would be subject to the declaratory remedy in Article 264 TFEU. But there is no clarity

107 A concept that emerged in the 1970s, when the WHO first produced a list of medicines that satisfy the priority health needs of a population, see W Hein, ‘Global Health Governance and WTO/TRIPS’ in W Hein, S Bartsch, L Kohlmorgen, Global Health Governance and the Fight against HIV/AIDS (London, Palgrave Macmillan, 2007). 108 See the WTO ‘Doha Declaration’, 2001. See further E Jackson, Law and the Regulation of Medicines (Oxford, Hart, 2012); T Hervey and J McHale, European Union Health Law (Cambridge, CUP, 2014 forthcoming). 109 See further here the discussion in Peers’ chapter in this volume. 110 The provisions of Union law discussed above on long-term residents, refugees and others with ‘international protection’, and asylum applicants, are examples where such a ‘minimum core’ of health care rights is either express or implied. See further the discussion of Art 52(5) in this volume.

966

Tamara Hervey and Jean McHale

Art 35 – Health Care

as to whether Article 35 is an individually enforceable right in Union law: it may be that it is only a ‘principle’ in the sense of Article 52(5) EU CFR, in which case it is judicially cognisable only in ruling on interpretation and validity of Union acts, and not per se justiciable at the suit of an individual.111 The Cologne Council, at which the EU CFR was originally promulgated, distinguished between ‘economic and social rights’ (of which Article 35 is undoubtedly an example) and mere ‘objectives for action by the Union’.112 This distinction is also reflected in the constitutional traditions of some Member States, which contrast justiciable rights and ‘directive principles of social policy’.113 However, the EU CFR itself does not make such a distinction. Although Article 35 itself refers to the ‘right’ to health care, the explanations refer to the ‘principles’ set out therein. Given that Article 52(5) EU CFR gives lesser judicial cognition to ‘principles’ than to ‘rights’, and that the underlying aim of the EU CFR is to enhance human rights protection in the Union, we have taken the view here that the term ‘right’ (although one hedged with exceptions and caveats) is the preferable interpretation for Article 35 EU CFR. Others may well disagree, pointing out, perhaps, that Article 35 belongs in the part of the EU CFR entitled ‘solidarity’.114

E. Evaluation In a review of around 10 years ago, Hervey found a lack of connection between Article 35 35.38 EU CFR and other provisions of European and international law embodying the right to health.115 While in terms of detailed substantive law, this remains broadly the position, the policy discourse and legal context has changed significantly. From the proposal for the Patients’ Rights Directive116 to aspects of the Europe 2020 strategy for growth,117 the Union is now beginning to frame some of its policy activity in terms of the right to health. The acceptance of Article 35 as part of the Union’s legal landscape

111 See Goldsmith’s argument in terms of ‘principles’ as opposed to ‘rights and freedoms’, in Lord Goldsmith, ‘A Charter of Rights, Freedoms and Principles’ (2001) 38 Common Market Law Review 1201–16. K Lenaerts and P Foubert, ‘Social Rights in the Case-Law of the European Court of Justice’ (2001) 28 Legal Issues of Economic Integration, 267–96, 271: ‘It seems, however, obvious, that the social rights contained in the Charter cannot as such serve as a basis for claims by EU citizens against the Community or a Member State. They should rather be seen as a “touchstone” against which Community and Member State action can be tested.’ Cf M Gijzen, ‘The Charter: a milestone for social protection in Europe?’ (2001) 8 Maastricht Journal of European and Comparative Law 33–48, 42: ‘the Charter has the potential to become the first legally binding document which guarantees both fundamental socio-economic rights and which provides, at the same time, for a system of individual petition’. 112 See Cologne European Council Conclusions, June 1999. 113 B Hepple, ‘The EU Charter of Fundamental Rights’ (2001) 30 Industrial Law Journal 225–31; see, for instance, the Spanish constitution and the Irish constitution, Art 45. 114 See further Jaaskinen’s commentary on the content of social rights in this volume. 115 T Hervey, ‘We Don’t See a Connection: The “Right to Health” in the EU Charter and European Social Charter’ in G de Búrca and B de Witte (eds), Social Rights in Europe (Oxford, OUP, 2005). 116 COM (2008) 414 final. 117 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Solidarity in health: reducing health inequalities in the EU, COM (2009) 567 final.

Tamara Hervey and Jean McHale

967

Part I – Commentary on the Articles of the EU Charter

has changed the contexts within which Union law is made, and certain actors may be able to capitalise on this change.118 35.39 The relevance of Article 35, in particular in combination with the principle of nondiscrimination, to the position of the most vulnerable people within the Union has been the subject of considerable attention from the FRA. However, with a few notable exceptions, this is yet to be reflected in Union legislation. 35.40 There is scope for further reliance on Article 35 in the context of free movement law and competition law claims, where the challenge is to an element of national health systems. The CJEU seems to be increasingly sympathetic to the need to apply a reasonably generous standard of justification where the collective realisation of the right to health is jeopardised by individual litigation based on free movement or competition. This is consistent with the idea of health services as services of general interest, and reflects a growing sympathy of the CJEU to those aspects of European welfare systems, where challenged by individual litigants relying on Union internal market law, perhaps following Article 3(3) TEU’s notion of a ‘social market economy’.119 A possible emerging trend is scrutiny of Union law on fiscal or economic gover35.41 nance which has effects on national health systems through requiring (significant) budget reductions which are achieved through cuts to health systems. For instance, reports from Greece suggest that fiscal austerity measures, imposed by the International Monetary Fund and the Union, led the Ministry of Health to call for a 40 per cent cut to hospital budgets in 2011.120 To date, in general, national courts have been unsympathetic to such arguments in related circumstances, on the basis that such governmental actions are reasonable.

118 For example, Lisa Waddington has shown how the disability lobby exerted its influence on the Union policy-making process, moving from a ‘charity based’ to a ‘dignity based’ provision; see L Waddington, Disability, Employment and the European Community (Antwerp, Maklu, 1995). 119 V Hatzopoulos and T Hervey, ‘Coming into line: The EU’s Court Softens on Cross Border Healthcare’ (2012) 8 Health Economics Policy and Law 1–5. 120 A Kentikelenis and I Papanicolas, ‘Economic crisis, austerity and the Greek public health system’ (2012) 22 European Journal of Public Health 4–5. Human rights scholars, such as Keith Ewing, have argued that the Greek austerity measures are contrary to European human rights law, and have suggested that the European Court of Human Rights would have jurisdiction to hear such a claim, see http://neoskosmos.com/news/ en/greek-austerity-illegal-says-uk-professor, accessed May 2013. The CJEU held in Case C-370/12 Pringle (27 November 2012), that Art 51(1) and (2) EU CFR mean that the European Stability Mechanism is not subject to scrutiny under the EU CFR, because the Member States are not implementing Union law when they establish such a mechanism.

968

Tamara Hervey and Jean McHale

Article 36 Article 36 Access to Services of General Economic Interest The Union recognises and respects access to services of general economic interest as provided for in national laws and practices, in accordance with the Treaties, in order to promote the social and territorial cohesion of the Union.

Text of Explanatory Note on Article 36 This Article is fully in line with Article 14 of the Treaty on the Functioning of the European Union and does not create any new right. It merely sets out the principle of respect by the Union for the access to services of general economic interest as provided for by national provisions, when those provisions are compatible with Union law.

Select Bibliography P Bauby, ‘From Rome to Lisbon: SGI in Primary Law’ in E Szyszczak, J Davies, M Andenaes and T Bekkedal (eds), Legal Developments in Services of General Interest (The Hague, TMC Asser Press, 2011). J Davies and E Szyszczak, ‘Universal Service Obligations: Fulfilling New Generations of Services of General Economic Interest’ in E Szyszczak, J Davies, M Andenaes and T Bekkedal (eds), Legal Developments in Services of General Interest (The Hague, TMC Asser Press, 2011). EU Network of Independent Experts on Fundamental Rights, Commentary of the Charter of Fundamental Rights of the European Union, http://158.109.131.198/catedra/images/experts/ COMMENTARY%20OF%20THE%20CHARTER.pdf. J van de Gronden and C Stefan Rusu, ‘22. Services of General (Economic) Interest post-Lisbon’ in M Trybus and L Rubini (eds), The Treaty Of Lisbon and the Future Of European Law and Policy (Cheltenham, Edward Elgar, 2012) 413–35. C Mak, Fundamental Rights and Digital Content Contracts (2012) Amsterdam Law School Legal Studies Research Paper No 2012-67, Centre for the Study of European Contract Law Working Paper No 2012-06, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2081943. U Neergaard, ‘The Concept of SSGI and Asymmetries Between Competition and Free Movement Law’ in U Neergaard et al (eds), Social Services of General Interest in the EU (The Hague, TMC Asser, 2012). W Sauter, ‘Services of General Interest and Universal Service in EU Law’, www.nza.nl/104107/230942/ Research-paper-‘Services-of-General-Economic-Interest’-2008-05.pdf. TILEC DP 2008-017. E Szyszczak, ‘Legal Tools in the Liberalisation of Welfare Markets’ in U Neergaard et al (eds) Integrating Welfare Functions into EU Law (Copenhagen, DJØF, 2009).

A. Article 36 and the Scope of EU Law EU internal market law (including procurement law and policy), competition law and 36.01 state aids law can all impact on services of general economic interest (SGEI), especially the policy of liberalisation of networked services. The spill-over from these policy

Part I – Commentary on the Articles of the EU Charter

areas creates a number of complex issues. Article 14 TFEU gives the EU a competence to regulate SGEI but to date this competence has not been used, with the European Commission preferring to use new governance and soft law.

B. Interrelationship of Article 36 with Other Provisions of the Charter 36.02 Article 36 is located in the chapter on Solidarity in the Charter. A number of other Charter provisions make reference to social rights that are often linked with social rights, and SGEI found at the national level, for example: Article 29—right of access to placement services; Article 34—social security and social assistance; Article 35—healthcare; Article 37—environmental protection; Article 38—consumer protection. No mention is made as to how Article 36 interacts with these other provisions or the outcome in the event of conflict between national and EU law. Healthcare is one of the rights contained in the Charter where the overlap with Article 36 is noticeable in that this right creates the notion of a universal right: ‘Everyone has the right of access to preventative health care and the right to benefit from medical treatment under the conditions established by national laws and practices.’ But the EU is increasingly making inroads into other aspects of the provision of social SGEI.1 36.03 It has been argued that a refusal of access to a SGEI could undermine the right to human dignity found in Chapter 1 of the Charter.2 This is described as an ‘inviolable right’. 36.04 It is a worth pointing out that when addressing access to SGEI—whether at national or EU level—access to many commercial SGEI are second-order social rights, whereby the enjoyment of the right is contingent upon possessing access to first-order rights, especially ownership of property—in order to access telecoms, water, gas, electricity, postal services. Viewed in this way the inclusion of Article 36 is a very radical move to extend the concept of fundamental rights beyond minimal ideas of social rights and towards ideas of universal access to social and welfare benefits, as well as basic utilities such as water, gas, electricity and postal services. 36.05 The idea of a universal right to access to a SGEI could be a valuable tool in cases normally handled under a discrimination law concept requiring comparisons between individuals and groups. One example would be the position of Roma in the EU, where their different lifestyle is often used as a device to deny claims of discrimination in access to local public services such as housing, education, welfare benefits and connection to utilities. The use of a concept of access to an SGEI would create a minimum (or floor) of rights of access to SGEI.

1 See the essays in U Neergaard et al (eds), Social Services of General Interest in the EU (The Hague, TMC Asser, 2012). 2 Reference is made to the ruling of the Court of Appeal in Brussels of 25 January 1988, [1989] JLMB 1132.

970

Erika Szyszczak

Art 36 – Access to Services

C. Sources of Article 36 ‘Rights’ and ‘Principles’ Article 36 of the Charter would fit within the organising concept of a ‘principle’ of the 36.06 Charter, although the discussion of the protection of a national constitutional ‘right’ could embrace the concept of a right of a Member State to define access to an SGEI under Article 36 of the Charter. 36.07 The UK House of Lords European Union Committee concluded: it seems clear that articles of the Charter which make express reference to national law must be different from articles which do not make such references. If [rights] are to some extent enforceable rights, the question arises as to the effect of the reference to national law on the interpretation of the scope of the right guaranteed.3

The Committee then goes on to examine two provisions of the Charter (the right of 36.08 access to health care (Art 25) and the right to strike (Art 28)) that rely on national law to assess whether the CJEU might use the Charter to supplement national law where there is no EU legislative competence. The analysis and conclusions relating to health care are useful for the discussion of Article 36. The Committee concludes that: reference to national law and practices prevents Article 35 itself from being held to establish a minimum right of access to medical treatment. Such a right could only be established (if at all) by reference to other international instruments and constitutional practices.4

The substantive content of the principles protected by Article 36 of the Charter are to 36.09 be found in national laws, policies and practices but if the House of Lords’ Committee’s analysis is correct, inroads into national competence may be made through international and EU norms. One of the first mapping processes of the role and content of SGEI was carried out for CEEP.5 This study reveals the diversity of concepts of SGEI and basic requirements for the provision of SGEI across the EU.

D. Analysis I. General Remarks The immediate relationship between Article 36 of the Charter and the scope of EU law is 36.10 to explore the interaction of Article 36 of the Charter and Article 14 TFEU. Article 36 of the Charter may be seen, or explained, as part of the reaction in the 1990s on the part of some (but not all) Member States to the increasing commercialisation of national public (and social) services, which carried the attendant risk that the EU rules on the internal market and competition law (including state aid) could be applied where the public

3

European Union Committee, The Treaty of Lisbon: an impact assessment (HL 2007–08, 62-I) para 5.24. Ibid, para 5.28. 5 European Centre of Employers and Enterprises (CEEP), Mapping of the Public Services, www.ceep.eu/ index.php?option=com_content&view=article&id=44&Itemid=132. 4

Erika Szyszczak

971

Part I – Commentary on the Articles of the EU Charter

service activities are regarded as ‘economic’. This view is reinforced by the position of Article 36 of the Charter in the chapter headed ‘Solidarity’.

II. Scope of Application 36.11 Article 36 of the Charter applies to SGEI, without defining what is understood by the concept. The term ‘services of general economic interest’ is not used in national laws, but national definitions of public and social services would be used to define the scope of an SGEI as understood by EU law, either through secondary law concepts of universal service obligations, or soft law communications from the European Commission or European Court case law. The words ‘in accordance with the Treaty’ signify that the full scope of the TFEU/ 36.12 TEU should apply, and it is most likely that the Citizenship provisions along with the internal market (free movement) rules and competition rules will apply and create the contentious issues of how to balance national concepts alongside EU concepts on access to sensitive SGEI, especially in times of budget cuts and austerity measures. The Article would apply to the EU Institutions when considering EU law and 36.13 policy. It would be used as a teleological tool and aid to interpretation by the European Courts. However, a scenario could emerge whereby a non-state provider of an SGEI was asked to conform to national law when providing the SGEI, but relied upon different EU law concepts to challenge the national provisions. It is unlikely that a non-state body or individual could rely upon the right. The territorial scope of the Article presumably applies only to the EU, and is unlikely to have any extraterritorial effects, except perhaps where a non-EU provider is commissioned to supply an SGEI in a Member State and its actions produce effects within the EU. Given the depletion of natural resources in the EU and the globalisation of some services (for example postal services), the commissioning of SGEI on a commercial basis to replace state functions (especially of a ‘bankrupt’ EU Member State) is not beyond the realms of imagination.

III. Specific Provisions 36.14 In the 1990s there had been an increase in litigation in the national courts when what is now Article 106(1) TFEU was used in combination with the competition rules (and sometimes the free movement rules) to challenge the alleged anticompetitive activities of state monopolies and undertakings granted exclusive rights. This form of litigation was opportunist and ran the risk of chipping away at complex national structures and networks of public services: a classic form of deregulation without EU competence or consensus to rebuild a Europeanised form of public services. The role played by Article 106(2) TFEU was crucial in providing a shield from the full application of EU market law to SGEI where the application of the market rules would obstruct or hinder the SGEI tasks assigned to undertakings. However, this did not stem the political momentum to reduce public expenditure, as well as adapt public services to meet consumer demands for greater modernisation and efficiency and the litigation triggered processes of liberalisation across the EU. 972

Erika Szyszczak

Art 36 – Access to Services

The Treaty of Amsterdam 1997, in what was Article 16 EC (now, with amendments, 36.15 Article 14 TFEU), attempted to provide some protection for national public services, but the final text was a compromise, creating much debate as to how far it protected national public services from the application of EU law.6 36.16 Article 14 TFEU states: Without prejudice to Article 4 of the Treaty on European Union or to Articles 93, 106 and 107 of this Treaty, and given the place occupied by services of general economic interest in the shared values of the Union as well as their role in promoting social and territorial cohesion, the Union and the Member States, each within their respective powers and within the scope of application of the Treaties, shall take care that such services operate on the basis of principles and conditions, particularly economic and financial conditions, which enable them to fulfil their missions. The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall establish these principles and set these conditions without prejudice to the competence of Member States, in compliance with the Treaties, to provide, to commission and to fund such services.

Article 14 TFEU maintains the link with the competition rules of the Treaty, but also 36.17 confirms a role for SGEI as a Europeanised concept in the role that SGEI may play in territorial and social cohesion of the Union. As a result of the Treaty of Lisbon 2007, the second sentence of Article 14 TFEU con- 36.18 fers, for the first time, a non-exclusive legislative competence on the Union in the field of SGEI. This is extraordinary, because Article 4 TFEU does not mention SGEI as an area where the Union and Member States share competence. Indirectly there is shared competence in areas where SGEI may contribute to Union policies: the internal market, social policy, economic, social and territorial cohesion, the environment, consumer protection, trans-European networks, energy and common concerns in the area of public health. The creation of future EU legislation is covered by the ordinary legislative procedure, under Articles 52 and 114 TFEU giving the European Parliament a role as co-legislator on an equal footing with the Council. Previously, the internal market legal base of Article 114 TFEU and the competition law provision of Article 106(3) TFEU were the legal bases providing the means to regulate aspects of SGEI in the wider liberalisation programmes of the EU. Paradoxically, and surprisingly, after over a decade of political and academic discus- 36.19 sion as to whether there was a legal base for the EU to regulate SGEI, the European Commission announced before the Treaty of Lisbon was ratified that it would not use the new legal base for legislative regulation.7 Instead in the post-Treaty of Lisbon period, the European Commission has concentrated its efforts on building a network (or constellation) of stakeholders, using various forms of soft law to issue communications relating to

6 See: M Ross ‘Article 16 and Services of General Interest: From Derogation to Obligation?’ (2000) 25 European Law Review 22; M Ross, ‘Promoting solidarity: from public services to a European model of competition’ (2007) 44 Common Market Law Review 2007, 1057. 7 European Commission, Services of General Interest, including social services of general interest: a new European Commitment, COM (2007) 725 final, pp 9–11. A position confirmed in Mario Monti, A New Strategy For the Single Market. At the Service of Europe’s Economy and Society, 9 May 2010, p 74, available at: http://ec.europa.eu/internal_market/strategy/docs/monti_report_final_10_05_2010_en.pdf: ‘It has been proposed to address services of general economic interest in a horizontal framework regulation. However, the consultation has made clear that a proposal for a framework regulation would have limited added value, if any, and that its chances of being adopted would be very small.’

Erika Szyszczak

973

Part I – Commentary on the Articles of the EU Charter

SGEI, especially in the areas of state aid and procurement modernisation.8 It is noticeable, in the recent review of the financing of SGEI through a modernisation of the AltmarkMonti-Kroes package,9 that Article 14 TFEU was not used as the legal base and it has been argued that Article 14 TFEU cannot be used to regulate measures relating to the application of the state aid rules and SGEI.10 Thus a broader explanation for the reluctance to use the new legal base may be that the focus of EU policy has been on issues relating to the financing of SGEI and the compatibility of these measures with the state aid rules.11 36.20 Protocol No 26 of the Treaty of Lisbon 2007 is also relevant for the assessment of Article 36 and its relationship with EU law. Protocols are part of the Treaty and are legally binding. Protocol No 26 uses the over-arching term ‘Services of General Interest’ as an EU organising concept, but does not provide a definition or explanation of the term. Protocol No. 26 Article 1 The shared values of the Union in respect of services of general economic interest within the meaning of Article 14 of the Treaty on the Functioning of the European Union include in particular: — the essential role and the wide discretion of national, regional and local authorities in providing, commissioning and organising services of general economic interest as closely as possible to the needs of the users; — the diversity between various services of general economic interest and the differences in the needs and preferences of users that may result from different geographical, social or cultural situations; — a high level of quality, safety and affordability, equal treatment and the promotion of universal access and of user rights.

36.21 The Protocol refers to Article 14 TFEU, repeating the concept of ‘shared values’ of the Union and the Member States, but also emphasises the local and national aspects of providing SGEI, especially in providing SGEI as closely as possible to local needs. It also shifts the focus to the needs of users. These are values developed by the European Commission in its soft law communications.12 Schweitzer notes that the Protocol does not refer to competition, free movement or proportionality but also argues that it is

8 See E Szyszczak, ‘Soft Law and Safe Havens’ in U Neergaard et al (eds), Social Services of General Interest in the EU (The Hague, TMC Asser, 2012). 9 European Commission, Communication from the Commission on the application of the European Union State aid rules to compensation granted for the provision of services of general economic interest [2012] OJ C8/4; European Commission, Commission Decision of 20 December on the application of Article 106(2) of the Treaty on the Functioning of the European Union to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest [2012] OJ L7/ 3; European Commission, Communication from the Commission, European Union framework for State aid in the form of public service compensation [2011] OJ C8/15; Commission Regulation on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid granted to undertakings providing services of general economic interest [2012] OJ L114/8. 10 See M Rusche, ‘The Almunia Package: Legal Constraints, Policy Procedures, and Political Choices’ in E Szyszczak and J van de Gronden (eds), Financing Services of General Economic Interest Reform and Modernization (The Hague, TMC Asser Press, 2013). 11 See the discussion by Rusche ibid. 12 These can be obtained at: http://ec.europa.eu/competition/state_aid/legislation/sgei_archive_en.html.

974

Erika Szyszczak

Art 36 – Access to Services

unlikely to impact upon the future interpretation of Article 106(2) TFEU or change the direction of SGEI policy.13 A purpose of Protocol No 26 is to reiterate in primary law that the Member States 36.22 retain competence in the sphere of non-economic services of general interest. This, however, may be a false hope when the application of EU law and the principle of non-discrimination on grounds of nationality is raised in litigation challenging access to services in a Member State. Even in relation to matters not involving a cross-border interest, there are arguments that aspects of EU law will apply to public services and public employment. 36.23 Article 2 of Protocol No 26 states: The provisions of the Treaties do not affect in any way the competence of Member States to provide, commission and organise non-economic services of general interest.

In the White Paper of 2004, the European Commission noted that ‘there is broad 36.24 agreement that the Community should not be given additional powers in the area of non-economic services.’ The legal term ‘non-economic services of general interest’ (NESGI) was first introduced into EU law by Article 2 of the Directive of 12 December 2006 on services in the internal market14 which excluded NESGI from the scope of the Directive. There is no legal definition of NESGI in EU law and thus reliance is placed upon interpretation of national public services by the European Courts.15 Article 36 of the Charter recognises a concept of ‘Services of General Economic 36.25 Interest (SGEI)’, but gives no further definition. This immediately creates conceptual issues because the Article protects national rules and national concepts of access to SGEI. Yet the term ‘SGEI’ is a deliberate EU concept first created in what is now Article 106(2) TFEU (without further definition) to avoid confusion with national concepts of ‘public service’.16 The European Commission and the European Courts have always maintained that it is within the competence of the Member States to define an SGEI with the intervention of EU law only in cases of manifest error.17 Over time the European Commission (mainly though soft law communications18 but also its own decision-making case law) and the European Courts have given greater precision to the concept. One argument put forward for not defining SGEI or entrenching the concept in 36.26 EU legislation or constraining the definition in national law is that it is regarded as a dynamic and evolutionary concept, especially as technology develops: The range of services that can be provided on a given market is subject to technological, economic and societal change and has evolved over time …

13 H Schweitzer, ‘Services of General Economic Interest: European Laws Impact on the Role of Markets of Member States’ in M Cremona (ed), Market Integration and Public Services in the European Union (Oxford, OUP, 2011) 11, 56. 14 Directive 2006/123/EC on services in the internal market [2006] OJ L376/36. 15 See the discussion by U Neergaard ‘The Concept of SSGI and Asymmetries Between Competition and Free Movement Law’ in U Neergaard et al (eds), Social Services of General Interest in the EU (The Hague, TMC Asser, 2012). 16 See P Bauby, ‘From Rome to Lisbon: SGI in Primary Law’ in E Szyszczak, J Davies, M Andenaes and T Bekkedal (eds), Legal Developments in Services of General Interest (The Hague, TMC Asser Press, 2011). 17 See Case T-289/03 BUPA [2008] ECR II-81 [166] and European Commission communications cited in n 7. 18 The Commission’s soft law communications can be found at: http://ec.europa.eu/services_general_ interest/index_en.htm.

Erika Szyszczak

975

Part I – Commentary on the Articles of the EU Charter

Given that the distinction is not static in time … it would neither be feasible nor desirable to provide a definitive a priori list of all services of general interest that are to be considered non-economic.19

36.27 This has allowed aspects of telecoms, broadcasting and even the idea of access to banking services to be considered capable of being defined as an SGEI, 20 and in electronic communications, providing fast broadband connection.21 36.28 EU law only applies to activities that are economic in character. The European Commission and the European Courts have a central role to play in determining this concept. Thus the concept has emerged as an EU concept through case law recognising national SGEI and general definitions: in Community practice there is broad agreement that the term refers to services of an economic nature which the Member States or the Community subject to specific public service obligations by virtue of a general interest criterion.22

36.29 The historic ring-fencing of SGEI in the interpretation of Article 106(2) TFEU allowed the Member States to negotiate special rules for public service obligations in the transport sector and SGEI-type activities in the liberalisation programmes of telecoms, postal services and utilities which developed in the EU from the late 1980s. 36.30 The European Commission has attributed a set of common elements to an EU concept of SGEI, derived from concepts of universal service obligations developed in these EU liberalisation programmes: in particular: universal service, continuity, quality of service, affordability, as well as user and consumer protection.23

36.31 These common elements are now set out in primary law in Protocol No 26, using different terminology: — a high level of quality, safety and affordability, equal treatment and the promotion of universal access and of user rights.

36.32 A limitation of the EU model of SGEI based upon concepts of universal service obligations is that it has emerged in the context of economic activities and in fully, or partially, liberalised markets for newly commercialised networked activities. In these situations consumers are usually paying for a commercial service. But many national SGEI are also of a social nature (for example, the provision of healthcare, education, social housing) and are provided as universal services to nationals of the Member State territory (or to foreigners who are lawfully resident in the territory). Often these are universal rights and are free services, or highly subsidised. It is possible to adapt the commercial SGEI

19

European Commission, Green paper on services of general interest, COM (2003) 270 final, p 14. See the discussion by C Mak, Fundamental Rights and Digital Content Contracts (2012) Amsterdam Law School Legal Studies Research Paper No 2012-67, Centre for the Study of European Contract Law Working Paper No 2012-06. Available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2081943; see also M Monti (n 7): ‘An EU framework for financial inclusion complementing the ongoing comprehensive reform of financial services regulation at EU level would allow an important part of the population, in particular in the new member States, to reap more fully the benefits of the single market.’ 21 Ibid. 22 European Commission, Green Paper on services of general interest, COM (2003) 270 final, p 15. 23 European Commission, White Paper on services of general interest, COM (2004) 374 final, p 7. 20

976

Erika Szyszczak

Art 36 – Access to Services

model to accommodate the increasingly commercialised provision of social services in the Member States, for example, by recognising an inner core of universal services where access and quality is guaranteed notwithstanding whether the provider is the state, a non-state body or a hybrid undertaking.24 An issue that may emerge is that of the concept of access to SGEI becoming more 36.33 Europeanised and less within the discretion of the Member State. Already it may be equated with the EU concept of universal service obligations (uso) found in EU secondary legislation and policy in the liberalised sectors.25 Indeed this appears to be the genesis of the text of Article 36 of the Charter according to the authors of the Commentary of the Charter of Fundamental Rights of the European Union in 2006.26 Within the soft law discourse created by the European Commission there are a number of general statements on the content, nature and scope of universal service obligations and the following provide a flavour of the Europeanised concept: to guarantee access for everyone, whatever the economic, social or geographic situation, to a service of a specified quality at an affordable price.27

Within the same Green Paper an alternative definition is provided, based upon EU 36.34 legislation on uso in electronic networks: The concept of a universal service refers to a set of general interest requirements ensuring that certain services are made available at a specified quality to all consumers and users throughout the territory of a Member State, independently of geographical location, and in the light of specific national conditions, at an affordable price.28

36.35

Resort is also made to vague definitions: In a liberalized market environment a universal services obligation guarantees that everybody has access to the service at an affordable price and that the service quality is maintained and, where necessary improved.29

In contrast, the White Paper uses language of essential services and expands the functional 36.36 and substantive aspects of access to uso: It establishes the right of everyone to access certain services considered as essential and imposes obligations on service providers to offer defined services according to specified conditions including complete territorial coverage and at an affordable price.30

24 In the context of healthcare, see E Szyszczak, ‘Modernising Healthcare: Pilgrimage for the Holy Grail?’ in M Krajewski et al (eds), The Changing Legal Framework for Services of General Interest in Europe (The Hague, TMC Asser Press, 2009). See also W Sauter, Services of General Economic Interest (SGEI) and Universal Service Obligations (USO) as an EU law Framework for Curative Health Care, TILEC Discussion Paper DP 2007-029. 25 Although the term ‘public service obligations’ is also used, and this is the terminology used by the European Courts, see J Davies and E Szyszczak, ‘Universal Service Obligations: Fulfilling New Generations of Services of General Economic Interest’ in E Szyszczak, J Davis, M Andenaes and T Bekkedal (eds), Legal Developments in Services of General Interest (The Hague, TMC Asser Press, 2011). 26 EU Network of Independent Experts on Fundamental Rights, Commentary of the Charter of Fundamental Rights of the European Union (June 2006), http://158.109.131.198/catedra/images/experts/ COMMENTARY%20OF%20THE%20CHARTER.pdf. 27 European Commission, Green paper on services of general interest, COM (2003) 270 final, p 4. 28 Ibid, p 16. 29 Ibid. 30 European Commission, White Paper on services of general interest, COM (2004) 374 final, p 8.

Erika Szyszczak

977

Part I – Commentary on the Articles of the EU Charter

36.37 There are many sources in EU law where the idea of universal service obligations are emerging, including the right of access, but also addressing the quality of SGEI. For example, in the telecoms sector there is now a specific Directive addressed to the regulation of uso.31 There is also a Communication from the European Commission on uso in e-communications.32 In other sectors involving networked industries, universal service and SGEI have been defined at Community level. These include natural gas,33 electricity,34 postal services35 and electronic communications.36 Other examples can be found in the transport sector.37 36.38 Legal issues giving rise to conflicts could arise where a Member State is obliged to implement EU obligations that run counter to national levels of protecting access to a uso in a particular sector. The scenario could emerge where a Member State proposes a uso to be provided by a non-state body and minimises the obligations relating to access, to make the uso attractive to a private provider. This raises the issue of how far an individual fundamental right could be protected using Article 36 of the Charter. The nature of the justiciability of such rights is discussed later. 36.39 Article 36 operates to safeguard the Member States’ competence to create and provide SGEI. It is phrased in a general and rather vague way, using the words ‘recognises’ and ‘respects’. Given the increased litigation in challenging the compatibility of protected national SGEI against EU law relating to free movement and competition, resulting in greater Europeanisation of SGEI, Article 36 of the Charter occupies an anomalous position in EU law. And it could be argued that Article 36 of the Charter and Article 14 TFEU are uneasy, rather than complementary, bedfellows. 36.40 Another explanation of the role of Article 36 of the Charter may be by locating it within the recognition of national constitutional diversity or respect for national constitutional identity. A provision on national constitutional identity was introduced in the Treaty of Maastricht 1993 but was not made justiciable until the introduction of Article 4(2) TEU.38 Together with Article 53 TFEU, this clause may give protection to a Member State 36.41 wishing to rely upon national constitutional provisions regulating access to SGEI.

31 Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) [2002] OJ L108/51. 32 Communication on universal service in e-communications: report on the outcome of the public consultation and the third periodic review of the scope in accordance with Article 15 of Directive 2002/22/EC COM (2011) 795; Staff Working document SEC (2011) 1398. 33 Directive 2009/73/EC concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC [2009] OJ L211/94. 34 Directive 2009/72/EC concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC [2009] OJ L211/55. 35 Directive 2008/6/EC amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services [2008] OJ L52/3. 36 The EU Framework consists of five Directives: the Framework Directive (2002/21/EC), Authorisation Directive (2002/20/EC), Access Directive (2002/19/EC), Universal Service Directive (2002/22/EC), Privacy and Electronic Communications (2002/58/EC); all as amended by the Better Regulation Directive (2009/140/EC) and Citizens’ Rights Directive (2009/136/EC). 37 The EU legislation can be found at http://ec.europa.eu/competition/sectors/transport/legislation.html. 38 Already there have been references to the CJEU using this provision: Case C-208/09 Sayn-Wittgenstein [2010] ECR I-13693; Case C-391/09 Runevicˇ-Vardyn [2011] ECR I-3787; Case C-399/11 Melloni (Opinion of AG Bott 2 October 2012).

978

Erika Szyszczak

Art 36 – Access to Services

It also creates incentives for a Member State to introduce concepts of SGEI at the constitutional level.39 One area of potential conflict in relation to the compatibility of national rules on 36.42 access to SGEI and EU law may be in the fact that many national eligibility rules for social services are framed to protect nationals of the Member State, denying access and eligibility to foreigners. Increasingly the European Court is extending the scope of the Citizenship provisions of the EU (Arts 18 and 20 TFEU) in relation to access to welfare benefits.40 Thus national rules restricting access to SGEI may fall foul of the Citizenship of the Union provisions, but a Member State may want to invoke Article 36 of the Charter to justify the retention of discriminatory and exclusive rules, especially to retain control over its social welfare budget. A weakness of Article 36 of the Charter is that it is most likely that individuals or 36.43 consumer groups will be the most affected by any EU legislation, or policy, affecting access to a SGEI. But the Charter is not addressed to individuals. The direct challenge by individuals using EU law could only be made to a Member State implementing any EU legislation. Another area which has led to much contentious litigation before the European 36.44 Courts and involving the Commission, is whether a challenge to the way in which a Member State finances a SGEI might interfere with the principle protected in Article 36 of the Charter, that of facilitating access to an SGEI. This aspect of the compatibility of EU law and Article 36 of the Charter is raised by the commentators from the the EU Network of Independent Experts on Fundamental Rights in their commentary on the Charter published in 2006. The recent reform and modernisation of the state aid rules relating to the financing of SGEI has led to greater Europeanisation of this area, making inroads into the way the Member States assign a SGEI and how it is financed.41 The emphasis upon SGEI in the modernisation of the EU procurement rules may also affect the way a Member State designs the provision of access to SGEI.42 For instance Fiedziuk argues: ‘Access to services of general economic interest (SGEIs) of good quality and at affordable prices is important for the well-functioning of the European society.’43 The European Commission favours the use of procurement for a commercial SGEI. A social SGEI will usually have an asymmetric relationship between the provider and

39 Or to modify national concepts of SGEI to be included in the national constitutional provisions. For an analysis of the different historical, cultural and legal organisational models of public services in the EU, see P Bauby and MM Similie, Mapping of the Public services in the European Union and the 27 Member States, (Bruxelles, 2010), www.actionpublique.eu; P Bauby, L’européanisation des services publics (Paris, Presses de Sciences Po, 2011). 40 Case C-85/96 Sala [1998] ECR I-2691; Case C-34/09 Zambrano [2011] ECR I-1177. See A Tryfonidou, ‘SSGIs and the free movement of workers and Union citizens’ in U Neergaard et al (eds) Social Services of General Interest in EU Law (The Hague, TMC Asser Press, 2012); A Tryfonidou, ‘Redefining the Outer Boundaries of EU Law: The Zambrano and McCarthy rulings’ (2012) 18 European Public Law 493. 41 For commentary see E Szyszczak, ‘Modernising State Aid and Financing Services of General Economic Interest’ (2012) 3(4) Journal of European Competition Law and Practice 332. For a wider set of essays, see E Szyszczak and J Van de Gronden (eds), Financing Services of General Economic Interest (The Hague, TMC Asser Press, 2013). 42 See Szyszczak ibid and the essays in E Szyszczak and J van de Gronden (eds), Financing Services of General Economic Interest (The Hague, TMC Asser Press, 2013). 43 N Fiedziuk, ‘Putting Services of General Economic Interest Up for Tender: Reflections on Applicable EU Rules’ (2013) 50 Common Market Law Review 87, 87.

Erika Szyszczak

979

Part I – Commentary on the Articles of the EU Charter

36.45

36.46

36.47

36.48

36.49

the consumer, but nevertheless ought to be subject to the procurement processes and rules, because of the financial size of the operation. With the increasing liberalisation and privatisation of SGEI provision, a potential regulatory gap may appear since an individual would not be able to invoke the Charter directly against a non-state provider of an SGEI. In contrast to this view, Micklitz has argued that the Charter, read with the developing acquis communautaire of universal services, ‘justifies the existence of an enforceable right of access to services of general economic interest’.44 However, it is submitted that this assertion may be qualified by a closer linguistic reading of Article 36 of the Charter. Article 36 of the Charter is a safeguard for the Member States’ competence in the area of access to SGEI, and thus any EU attempt to legislate in the field could make inroads into a Member States’ competence and should respect the Member States’ national laws regarding access to SGEI. However, the reference to observance and compatibility of SGEI with Articles 4, 93, 106 and 107 TFEU is the major constraint upon Article 36 of the Charter. The EU competition law provisions are mentioned explicitly, but the internal market provisions may also be used to challenge the Member States’ organisation of SGEI. This would then involve a balancing act as to how far Member State laws and policies which are recognised as a constitutional value in the Charter and the TFEU should take precedence over the objectives of integration. This kind of litigation could seriously question and undermine the role of Article of the Charter.45 Protocol No 26 reinforces the idea of diversity and local delivery of culturally specific SGEI. This can be enhanced by the use of Article 36 of the Charter to protect distinctive national SGEI. An important development in Protocol No 26 is that greater emphasis is placed upon the content of SGEI, as part of the shared values of the Union recognised in Article 14 TFEU, with reference to a high level of quality, safety and affordability, equal treatment as well as the promotion of universal access and of user rights. In December 2011 the European Commission adopted a Communication of a Quality Framework which provides further principles upon which SGEI should be provided.46 In conclusion, Article 36 of the Charter is a difficult Article to analyse. On one level it is very limited, addressing only access to SGEI and not going any further to protect issues of quality of SGEI. It sits uneasily with the moves over the last two decades to Europeanise SGEI. It would seem to be part of the ‘left-overs’ from the Treaty of Amsterdam 1997. It is another political compromise, like Article 16 EC introduced by the Treaty of Amsterdam 1997 (now, with amendments, Art 14 TFEU) whereby the French delegation in particular would have liked to include a much stronger protection

44 H-W Micklitz, Social justice and access in private law, EUI Working Papers Law 2011/02, pp 25–26, http:// papers.ssrn.com/sol3/papers.cfm?abstract_id=1824225. 45 S De Vries, ‘The Protection of Fundamental Rights Within Europe’s Internal market After Lisbon—An Endeavour for More Harmony’ in De Vries et al (eds), The Protection of Fundamental Rights in the EU After Lisbon (Oxford, Hart Publishing, 2013); E Szyszczak, ‘Building a Socio-economic Constitution: A Fantastic Object?’ (2012) 35(5) Fordham International Law Journal 1365. 46 European Commission, A Quality Framework for Services of General Interest in Europe, COM (2011) 900, http://ec.europa.eu/services_general_interest/docs/comm_quality_framework_en.pdf. See also the discussion by E Szyszczak, ‘Legal Tools in the Liberalisation of Welfare Markets’ in U Neergaard et al (eds), Integrating Welfare Functions into EU Law (Copenhagen, DJØF, 2009) on the creation of consumer-citizenship ideas and soft governance techniques to enhance the quality of SGEI.

980

Erika Szyszczak

Art 36 – Access to Services

of national public services. It is formulated as a principle and not creating a subjective or substantive right. In many areas of secondary law relating to liberalisation, EU law has delivered much 36.50 stronger and more detailed concepts and rights, especially in relation to access to SGEI addressing particular vulnerable consumer groups.

IV. Limitations and Derogations Article 36 of the Charter does not contain any limitations and derogations other than 36.51 the idea that the purpose of the provision is to promote social and territorial cohesion of the Union. Thus a national measure that does not fulfil these aims could be vulnerable and fall outside of the scope of protection. When applying the derogation found in Article 106(2) TFEU to measures restrictive of trade or anticompetitive measures there is the proviso that the Member State measure must satisfy the principle of proportionality. It should be able to show that the application of the Treaty rules would obstruct the performance of the SGEI tasks assigned to the particular bodies providing the SGEI47 and also that trade (between the Member States) ‘must not be affected to such an extent as would be contrary to the interests of the Community’.

V. Remedies The right protected in Article 36 of the Charter refers to the protection of access to an 36.52 SGEI recognised in national law. Thus a Member State would have standing to use judicial review to challenge an EU law that interfered with that right. The right contained in the Charter would also have a teleological role in the interpretation of case law, either in the Decisions taken by the European Commission exercising powers under the competition rules, or considering an infringement action against a Member State and in cases before the European Courts. The notion of an individual right emerging is tenuous, but the Charter could have a role as an interpretative tool where a Member State or the EU creates regulation and policy for an SGEI. The complexity and confusion and lack of clarity of the provision may not necessarily be of a benefit to the Member States, as the European Commission creates a greater Europeanisation of the concept of access to SGEI, alongside issues of the quality of SGEI, through liberalisation programmes and soft law communications.

E. Evaluation To date, Article 36 of the Charter has not received very much attention, either in case 36.53 law or academic comment. Although at first reading Article 36 would appear to protect

47 Except where the European Commission is bringing an infringement action, and then it would appear that the burden of proof is reversed: Case C-157/94 Commission v Netherlands [1997] ECR I-5699.

Erika Szyszczak

981

Part I – Commentary on the Articles of the EU Charter

Member State interests, it is part of a growing body of policy-making creating the Europeanisation of SGEI where the EU Institutions recognise the competence of the Member States to define, organise, fund and deliver SGEI, but this must be compatible with EU law, especially with regard to competition and state aid rules (particularly regarding the funding of a universal service obligation). Writing in May 2008, Sauter was of the opinion that neither Article 14 TFEU nor Article 36 of the Charter ‘add little to [Article 106(2) TFEU] or to the case law of the Court on this provision’.48 36.54 A major stumbling block may be where the Member State wishes to exclude the access of non-nationals from a range of SGEI when EU law, especially the Citizenship concept, requires that the principle of non-discrimination should apply. Overall, the impact of EU law (especially the impact of the citizenship, internal market and competition law provisions) may make inroads into the Member States’ scope for manoeuvre in this field. 36.55 Furthermore, the concept of a fundamental right to access SGEI is being defined in secondary law of the EU addressing liberalisation and where conflicts occur between national standards and EU standards some important decisions will have to be taken on the issue of supremacy of EU law over national law and the relationship between the Charter of Fundamental Rights and the provisions of secondary EU law.

48 W Sauter, ‘Services of General Interest and Universal Service in EU Law’ TILEC DP 2008-017, at p 10. Available at www.nza.nl/104107/230942/Research-paper-‘Services-of-General-Economic-Interest’-2008-05.pdf.

982

Erika Szyszczak

Article 37* Article 37 Environmental Protection A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and assured in accordance with the principle of sustainable development.

Text of Explanatory Note on Article 37 The principles set out in this Article have been based on Articles 2, 6 and 174 of the EC Treaty, which have now been replaced by Article 3(3) of the Treaty on European Union and Articles 11 and 191 of the Treaty on the Functioning of the European Union. It also draws on the provisions of some national constitutions.1

Select Bibliography F Benoît-Rohmer, ‘Article 37—Protection de l’environnement’ in EU Network of Independent Experts on Fundamental Rights, ‘Commentary on the Charter of Fundamental Rights of the European Union’ (June 2006), http://ec.europa.eu/justice_home/cfr_cdf/index_en.htm. C Coffey, ‘The EU Charter of Fundamental Rights: the Place of the Environment’ in K Feus (ed), The EU Charter on Fundamental Rights: Text and Commentaries (London, Federal Trust, 2000). K Hectors, ‘The Chartering of Environmental Protection: Exploring the Boundaries of Environmental Protection as a Human Right’ (2008) 17(3) European Energy and Environmental Law Review 165. A Kiss, ‘Environmental and Consumer Protection’ in S Peers and A Ward (eds), The EU Charter of Fundamental Rights (Oxford, Hart Publishing, 2004). M Lombardo, ‘The Charter of Fundamental Rights and the Environmental Policy Integration Principle’ in G Di Federico (ed), The EU Charter of Fundamental Rights—From Declaration to Binding Instrument (Heidelberg, Springer, 2011). A Lucarelli, ‘Article 37—Environmental Protection’ in WBT Wolk (ed), Human Rights in Europe—Commentary on the Charter of Fundamental Rights of the European Union (Durham, NC, Carolina Academic Press, 2010). J Meyer, Kommentar zur Charta der Grundrechte der Europäischen Union, 2nd edn (Basel, Helbing & Lichtenhahn, 2006). N de Sadeleer, ‘Enforcing EUCHR Principles and Fundamental Rights in Environmental Cases’ (2012) 81 Nordic Journal of International Law 39.

* The authors are very grateful to Clemens Konrad and Annalisa Savaresi for their excellent research assistance. 1 Explanations relating to the Charter of Fundamental Rights [2007] OJ C 303/17 (Explanatory Notes), p 27.

Part I – Commentary on the Articles of the EU Charter

A. Field of Application of Article 37 37.01 Article 37 belongs to the category of ‘principles’ in the Charter, and lays down the duties of public authorities in relation to environmental integration in policy-making and implementation. It does not, however, sanction any individually justiciable right to environmental protection, or to an environment of any particular quality. As will be seen, this contrasts with the approach taken in many of the national constitutions of the Member States,2 which not only place a responsibility on governmental authorities to protect the environment, but also recognise an autonomous ‘right to environment’.3 In omitting any reference to environmental rights, Article 37 fails to take a stance on the ‘still controversial notion of a [substantive] right to a decent environment’ under international environmental law.4 Moreover, it falls short of incorporating in the Charter environmental rights of a procedural character (ie access to environmental information, participation in decision-making concerning the environment, and access to justice in environmental matters), which are generally recognised under international environmental law.5 This lacuna is even more striking, given that the realisation of these procedural guarantees is already an international obligation binding on the Union and its Member States under the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters.6 Short of asserting any right related to the environment, we will explore whether Article 37 may nevertheless influence the interpretation and application of EU law and of Charter provisions guaranteeing individual rights. 37.02 In light of its cross-cutting, mainstreaming, nature, the field of application of the principle of environmental integration enshrined in Article 37 is not, a priori, limited to measures adopted in the field of environmental policy,7 or any other particular area of EU law. Quite the contrary, the requirement to integrate a ‘high level of environmental protection’ and ‘the improvement of the quality of the environment’ extends, in principle, to all Union policies, both internal and external. The reference to ‘policies of the Union’ seems to indicate that Article 37 applies to, and binds primarily, the Union institutions,8 and in particular the Commission, the Council and the European Parliament for their legislative functions. Yet, Article 52(5) of the Charter clarifies that the provisions containing principles, such as Article 37, ‘may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise

2

Eg Spanish Constitution (as amended in 2011) Art 45; see further section C.II below. A Boyle, ‘Human Rights or Environmental Rights: A Reassessment?’ (2007) 18 Fordham Environmental Law Review 471, 478–82. 4 A Boyle, ‘Human Rights and the Environment: Where Next?’ (2012) 23(3) European Journal of International Law 613, 616. 5 Rio Declaration on Environment and Development (12 August 1992) UN Doc A/CONF 151/26 vol 1 Annex I (Rio Declaration), Principle 10. 6 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 25 June 1998, 2161 UNTS 447 (Aarhus Convention), to which the EU and almost all of its Member States are parties: see further section D below. 7 That is, acts adopted pursuant to Arts 191(4) and 192 TFEU (below n 72). 8 Explanatory Note, at 32: ‘the Charter applies primarily to the institutions and bodies of the Union, in compliance with the principle of subsidiarity’. 3

984

Elisa Morgera and Gracia Marín Durán

Art 37 – Environmental Protection

of their respective powers.’ Therefore, not only EU institutions and other bodies are required to ‘observe’ the principle of environmental integration, but also the Member States themselves whenever they are implementing EU law. The latter may be understood as applying to Member States’ measures falling ‘within the scope of ’ EU law, thereby including measures taken by Member States not only with a view to implementing, but arguably also derogating from, Union rules.9 It is quite difficult to detail specific instruments of EU law falling within the field of 37.03 application of Article 37,10 for two reasons. First, in light of the prolific environmental law-making activity of the EU, it has been argued that ‘there is European legislation in almost every conceivable field of environmental policy,’11 and indeed EU environmental law covers issues ranging from climate change, to biodiversity, water, air pollution, noise, dangerous substances, genetically modified organisms, waste, nuclear safety, as well as including horizontal measures on environmental assessments, integrated pollution prevention and control, integrated product policy and environmental liability.12 This means that about 70–80 per cent of environmental law implemented in the Member States is of EU origin.13 Second, several pieces of EU legislation other than environmental legislation itself may be considered as falling within the scope of application of Article 37, as they have implemented, to different degrees, the principle of environmental integration, with the most prominent examples found in the areas of the Common Agricultural Policy, the Common Fisheries Policy, transport, energy, and external policies.14 Accordingly, the scope of application of Article 37 is wide-ranging, if not almost all-encompassing, both at EU and Member State level, although, as will be shown, the enforceability of the principle faces significant limitations.

B. Interrelationship of Article 37 with Other Provisions of the Charter While the Charter does not explicitly establish a direct link between Article 37 and 37.04 other provisions, some of the Charter rights ‘shall’, and others may, be interpreted as including environmental rights. Within the first group, Charter rights which correspond 9 D Anderson and C Murphy, The Charter of Fundamental Rights: History and Prospects in Post-Lisbon Europe, EUI Working Papers LAW 2011/08, p 8, on the basis of Case C-260/89 Elliniki Radiophonia Tiléorassi AE and Panellinia Omospondia Syllogon Prossopikou v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas and Nicolaos Avdellas and others [ERT] [1991] ECR I-2925 [43]. 10 A list of EU legislation ‘related’ to Art 37 is nonetheless offered by the European Union Agency for Fundamental Rights at http://infoportal.fra.europa.eu/InfoPortal/infobaseShowContent.do?btnCat_413&btn CountryBread_169. 11 J Jans and H Vedder, European Environmental Law (Groningen, Europa Law Publishing, 2012) 253. 12 Ibid, ch 8 for a relatively succinct but incisive overview. 13 L Kramer, ‘Regional Economic International Organizations: The European Union as an Example’ in D Bodanski et al (eds), The Oxford Handbook of International Environmental Law (Oxford, Oxford University Press, 2007) 860. 14 For a succinct overview, see L Kramer, EU Environmental Law, 7th edn (London, Sweet & Maxwell, 2011) ch 11; and for a more comprehensive examination, see N Dondth, Integration of Environmental Protection into Other EC Policies—Legal Theory and Practice (Groningen, Europa Law Publishing, 2003); G Marín Durán and E Morgera, Environmental Integration in the EU’s External Relations—Beyond Multilateral Dimensions (Oxford, Hart Publishing, 2012).

Elisa Morgera and Gracia Marín Durán

985

Part I – Commentary on the Articles of the EU Charter

to the rights protected under the European Convention on Human Rights (ECHR) must be given the ‘same meaning and scope’ by virtue of Article 52(3) of the Charter. Among these, the following rights15 have been interpreted by the European Court of Human Rights (ECtHR) as providing indirect protection with regard to environmental matters:16 —

—

—

Article 2 of the Charter on the right to life corresponds to Article 2 ECHR, which has been interpreted as placing a positive obligation on States to protect individuals’ lives from dangerous activities, such as nuclear tests, the operation of chemical factories with toxic emissions or waste-collection sites, whether carried out by public authorities themselves or by private companies;17 Article 7 of the Charter on respect for private and family life corresponds to Article 8 ECHR, which has been interpreted as giving rise to a positive duty for States, under certain circumstances, to protect individuals from environmental factors that directly and seriously affect their private and family life, or their home;18 and Article 17 of the Charter on to the right to property corresponds to Article 1 of Protocol No 1 to the ECHR, which has been interpreted as imposing a positive obligation on states to put in place environmental standards necessary to protect individuals’ peaceful enjoyment of their possessions.19

37.05 In addition, Article 11 of the Charter on freedom of information corresponds to Article 10 ECHR,20 which has been interpreted as giving rise to a positive obligation for public authorities to establish effective and accessible procedures that would enable individuals to seek all relevant and appropriate environmental information when their right to life, or/and their right to respect for private and family life, are threatened.21 Article 42, however, is the most relevant provision in the Charter in relation to access to environmental

15

Explanatory Notes, 33–34. Council of Europe, Manual on Human Rights and the Environment—Principles derived from the Case law of the European Court of Human Rights, 2nd edn (Strasbourg, Council of Europe Publishing, 2012). The literature is extensive: for a discussion connected to the purpose of the present chapter, see N de Sadeleer, ‘Enforcing EUCHR Principles and Fundamental Rights in Environmental Cases’ (2012) 81 Nordic Journal of International Law 39, 60–73. 17 See summary of relevant ECtHR case law in Council of Europe, n 16 above, 35–41. 18 See summary of relevant ECtHR case law in Council of Europe, n 16 above, at 44–60. The environmental dimension of Art 8 ECHR has been extensively covered by other commentaries on Art 37 of the Charter, noting in particular the wide margin of appreciation left to public authorities in the Hatton II case (Hatton and Others v UK (2003) Report 2003-VIII), see eg, F Benoît-Rohmer, ‘Art 37—Protection de l’environnement’ in EU Network of Independent Experts on Fundamental Rights, ‘Commentary on the Charter of Fundamental Rights of the European Union’ (June 2006), p 316, available at http://ec.europa.eu/justice_home/cfr_cdf/ index_en.htm; K Hectors, ‘The Chartering of Environmental Protection: Exploring the Boundaries of Environmental Protection as a Human Right’ (2008) 17(3) European Energy and Environmental Law Review 165, 169–70; M Lombardo, ‘The Charter of Fundamental Rights and the Environmental Policy Integration Principle’ in G Di Federico (ed), The EU Charter of Fundamental Rights—From Declaration to Binding Instrument (Heidelberg, Springer, 2011) 235–38. It should be noted, however, that the ECtHR case law has further evolved on this point, notably in Tas‚kin and Others v Turkey App no 46117/99 [2004] ECHR 621. For a discussion, see de Sadeleer, n 16 above, 64–72. 19 See summary of relevant ECtHR case law in Council of Europe, n 16 above, 62–73. 20 Explanatory Notes, 21. 21 See summary of relevant ECtHR case law in Council of Europe, n 16 above, 76–85. 16

986

Elisa Morgera and Gracia Marín Durán

Art 37 – Environmental Protection

information, which is based on EU law22—namely Article 15(3) TFEU and Regulation 1049/2001 on access to documents.23 These provide a significant level of access to environmental information,24 and have been complemented by more specific rules under the so-called Aarhus Regulation (1367/2006).25 While the environmental dimension of the above-mentioned provisions of the 37.06 Charter derives from either other sources in EU law, or the case law of the ECtHR, this does not exclude the possibility for other Charter provisions to be ‘greened’ when read in conjunction with Article 37. This may be the case of the right of EU citizens26 to refer to the Ombudsman cases of maladministration by Union institutions or bodies (Art 43 of the Charter), since the notion of maladministration could, for instance, include departures from guidelines and procedures to implement environmental integration.27 It may well be the case also of the right to petition the European Parliament (Art 44 of the Charter), which could provide an avenue to enquire about the observance of the environmental integration principle in the legislative process.

C. Sources of Article 37 As stated in the Explanatory Notes to the Charter, both EU law (Arts 3(3) TEU, 11 and 37.07 191 TFEU) and some Member States’ constitutions are sources of Article 37 of the Charter. It should thus be emphasised that, as opposed to other Charter provisions, the drafters of the Charter did not wish to draw inspiration from relevant UN treaties, notably the Aarhus Convention in relation to procedural environmental rights (discussed below), or the case law of the ECtHR that has gradually developed an environmental dimension to certain rights protected under the European Convention on Human Rights (discussed above).28

I. EU Law At a first glance, the wording of Article 37 appears to be a combination of Article 3(3) 37.08 TEU, which is part of the general provisions setting forth core objectives of the Union,29 22

Explanatory Notes, 28. Regulation (EC) 1049/2001 regarding public access to European Parliament, Council and Commission documents [2001] OJ L145/43. 24 M Lee, EU Environmental Law (Oxford, Hart Publishing, 2005) 128–29 and 131–32; Kramer, EU Environmental Law, n 14 above, 137. 25 Regulation (EC) 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies [2006] OJ L264/13. 26 Or of any natural or legal person residing or having its registered office in a Member State (Art 228 TFEU; Art 44 Charter). 27 The argument has been put forward by Marín Durán and Morgera, above n 14, p 288, and was inspired by A Alemanno, ‘The Better Regulation Initiative at the Judicial Gate: A Trojan Horse within the Commission’s Walls or the Way Forward?’ (2009) 15(3) European Law Journal 382, 388. 28 See section B above. 29 Former Art 2 EC Treaty. 23

Elisa Morgera and Gracia Marín Durán

987

Part I – Commentary on the Articles of the EU Charter

and Article 11 TFEU,30 which proclaims environmental integration as a general principle of EU law. In fact, environmental integration was first introduced in EU primary law by the Single European Act of 198631 as a principle within the title conferring express competence on environmental matters to the then European Economic Community.32 It was only with the Treaty of Amsterdam of 199733 that environmental integration was upgraded to a general principle of EU law.34 37.09 Article 3(3) TEU provides that the EU ‘shall work’, inter alia, for a ‘high level of protection and ‘improvement of the quality of the environment’.35 Both of these terms have been reiterated in Article 37 as the object of the environmental integration principle, but cannot be found in the text of Article 11 TFEU. This and other differences can, in fact, be noticed when comparing the language of Article 37 with that of Article 11 TFEU, which provides ‘environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development’ (emphases added). The inclusion of environmental protection in the Charter thus raises a number of interpretative questions, when examined against the backdrop of the acquis of the EU Treaties: is Article 37, in essence, just a reaffirmation of Article 11 TFEU, or are the textual differences emphasised above of any legal significance? 37.10 Finally, the Explanatory Notes also refer to Article 191 TFEU, which is the legal basis for EU environmental policy, as a source of Article 37 of the Charter. Article 191 TFEU is broadly formulated and allows for including all conceivable environmental issues within the remit of EU environmental competence. It sets out four objectives in its first paragraph for EU action (both internal and external) in the field of the environment, namely: ‘preserving, protecting and improving the quality of the environment’; ‘protecting human health’; ‘ensuring the prudent and rational utilisation of natural resources’, and ‘promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change’. In addition, Article 191(2) TFEU lays down a number of principles to guide law-making and interpretation, namely: a high level of environmental protection; precaution; prevention; rectification at source; and the polluter pays.36 Against this background, the interpreter may wonder whether Article 191 TFEU has, in fact, served as a source of Article 37 beyond the literal

30

Former Art 6 EC Treaty. Single European Act [1987] OJ L169/1 (SEA). 32 Title VII ‘Environment’ SEA. For an overview of the emergence and evolution of EU competence on environmental matters, see Marín Durán and Morgera, above n 14, pp 9–13. 33 Treaty of Amsterdam [1997] OJ C340/1 (Treaty of Amsterdam). 34 See Marín Durán and Morgera, above n 14, pp 25–28, for an overview of the emergence and evolution of the environmental integration principle. 35 These terms were added to former Art 2 EC Treaty by the Treaty of Amsterdam. 36 See also Art 191(3) TFEU, listing a number of criteria that the EU legislator ‘shall take into account’ when ‘preparing’ its policy on the environment (e.g. available scientific and technical data; environmental conditions in the various regions of the EU; potential benefits and costs of action or lack of action). Because of the comparatively weaker language of this provision, however, such criteria may exert less influence, than the objectives and principles, in determining the content of the environmental protection requirements to be integrated pursuant to Art 11 TFEU. For a more detailed examination of Art 191 TFEU, see Marín Durán and Morgera, n 14 above, pp 13–17. 31

988

Elisa Morgera and Gracia Marín Durán

Art 37 – Environmental Protection

reference to the ‘high level of environmental protection’. All these questions will be addressed in section D below.

II. National Constitutional Law The Explanatory Notes state that Article 37 of the Charter draws inspiration from ‘the 37.11 provisions of some national constitutions’ (emphasis added), with no further indication as to the relevant countries. In fact, a brief overview of the constitutional texts37 reveals the lack of ‘constitutional traditions common to the Member States’38 with regard to environmental rights. In the constitutions of some Member States, environmental protection is expressly 37.12 recognised and protected, not only as a duty of governmental authorities, but also as a right (and duty) of the individual. For instance, the Spanish Constitution first declares that ‘everyone has the right to enjoy an environment suitable for the development of the person, as well as the duty to preserve it’.39 It then directs public authorities to ‘watch over a rational use of all natural resources with a view to protecting and improving the quality of life and preserving and restoring the environment, by relying on an indispensable collective solidarity’.40 Any infringement of these provisions is subject to criminal or administrative sanctions, as provided in national law, as well as to an obligation to repair the damage caused.41 A trend towards proclaiming a substantive right to the environment is also found in the constitutional texts of Central European countries, which have acceded to the EU since 2004. For instance, the Slovakian Constitution first stipulates that ‘everyone has the right to an auspicious environment’,42 and is equally ‘obliged to protect and enhance the environment and the cultural heritage’.43 A procedural right to environmental information is also guaranteed,44 and the State is generally directed to ‘look after an economical use of natural resources, ecological balance, and effective environmental care’.45

37 This section is based on the translated texts of the national constitutions provided by the European Union Agency for Fundamental Rights: http://infoportal.fra.europa.eu/InfoPortal/infobaseShowContent.do. 38 Case C-11/70 Internationale Handelsgesellschaft [1970] ECR 1125 [4]. 39 Spanish Constitution (as amended in 2011), Art 45(1). 40 Ibid, Art 45(2). 41 Ibid, Art 45(3). See also, Art 23(4) of the Belgian Constitution (as amended in 2012) on the ‘right to enjoy the protection of a healthy environment’; and Art 20 of the Finnish Constitution (as amended in 2011) stating that ‘public authorities shall endeavour to guarantee for everyone the right to a healthy environment and for everyone the possibility to influence the decisions that concern their own living environment’; Art 66 of the Portuguese Constitution (as amended in 2005) stating that ‘everyone shall possess the right to a healthy and ecologically balanced human living environment and the duty to defend it’, and setting out in detail the principal responsibilities of the state. 42 Constitution of the Slovak Republic (as amended in 2004), Art 44(1). See also Art 53 of the Estonian Constitution (as amended in 2011); Art 18 of the Hungarian Constitution (as amended in 2010); Art 115 of the Latvian Constitution (as amended in 2009); Art 5 of the Polish Constitution (1997); Art 72 of the Slovenian Constitution (as amended in 2006). 43 Constitution of the Slovak Republic (as amended in 2004), Art 44(2). 44 Ibid, Art 45 reads: ‘Everyone has the right to timely and complete information on the state of the environment and the causes and consequences of its condition’. 45 Ibid, Art 44(4).

Elisa Morgera and Gracia Marín Durán

989

Part I – Commentary on the Articles of the EU Charter

37.13

Short of a right-based formulation, other national constitutions do nonetheless recognise environmental protection as a constitutional value, and require the state to protect the environment. For instance, the German Constitution declares that ‘mindful also of its responsibility toward future generations, the State shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action’.46 Similarly, the Greek Constitution affirms that ‘the protection of the natural and cultural environment constitutes a duty of the State’, and as a result, it is bound to adopt ‘special preventive or repressive measures for the preservation of the environment’.47 Using softer terms, the Dutch Constitution also requires the public authorities to concern themselves with ‘keeping the country habitable and to protect and improve the environment’.48 These constitutional obligations on the State to protect the environment have been considered as equivalent, in fact, to the recognition of an individual right, since the concerned persons can ask public authorities to respect it.49 Even though there are a number of EU Member States where environmental protec37.14 tion is not present in the formal constitutional text, or which lack such a text altogether,50 the environment may be protected in the national ‘constitutional framework’ via other laws51 and/or case law.52 To be sure, the presence or absence in national constitutions of a right to the environment, or/and of a public duty to protect it, may be determined by several legal and other factors, and the exact implications ultimately depend on how national courts interpret and use existing constitutional provisions. Yet, the overview just exposed appears to show that the constitutional provisions on environmental protection in most Member States are more ambitious, even if only in terms of asserting governmental responsibilities, than the letter of Article 37 of the Charter. This may be explained by the heightened concern of a minority of Member States about ‘avoiding the doubt’ that the solidarity rights under Title IV of the Charter created justiciable rights, such as a right to a healthy environment, where such a right was not already provided for under national laws.53

46

Basic Law of the Federal Republic of Germany (as amended in 2010), Art 20(a). Greek Constitution (as amended in 2008), Art 24(1), spelling out also in more detail the principal responsibilities of the state (Art 24(2)–(6)). 48 Dutch Constitution (as amended in 2002), Art 21. See also Art 2(2) of the Swedish Constitution (as amended in 2012). 49 A Kiss, ‘Environmental and Consumer Protection’ in S Peers and A Ward (eds), The EU Charter of Fundamental Rights (Oxford, Hart Publishing, 2004) 253. 50 This is notably the case of the common law countries such as the UK. See, Boyle, ‘Human Rights or Environmental Rights: A Reassessment?’, above n 3, p 482. 51 Eg French Code on the Environment (as amended in 2012); Arts 7 and 35 of the Charter of Fundamental Rights and Freedoms of the Czech Republic (as amended in 1999). See further, A Lucarelli, ‘Art 37—Environmental Protection’ in WBT Wolk (ed), Human Rights in Europe—Commentary on the Charter of Fundamental Rights of the European Union (Durham, NC, Carolina Academic Press, 2010) 221–22. 52 The Italian Constitutional Court, for instance, interpreted the right to health that is protected by the Italian Constitution as including the right to a healthy environment: Italian Constitutional Court judgment n 5172 of 6 October 1976. In addition, the Italian Constitution has been amended so as to include an explicit competence for the state, which is shared with the regions, to protect the environment and ecosystems: Art 117 of the Italian Constitution, as amended by Constitutional Law No 3/2001. 53 Art 1(2) of the UK-Poland Protocol; see discussion by Anderson and Murphy, above n 9, pp 11–12. 47

990

Elisa Morgera and Gracia Marín Durán

Art 37 – Environmental Protection

D. Analysis I. General Remarks As already emerging from the review of national constitutions, Article 37 of the Charter 37.15 is a clear manifestation of a lack of consensus among the Member States on a ‘substantive’ human right to the environment.54 Such disagreement is reflected also at the international level. The EU and its Member States are parties to the Aarhus Convention, one of the very few legally binding international agreements that makes reference to a substantive right to a healthy environment in an operative provision: In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decisionmaking and access to justice in environmental matters in accordance with the provisions of this Convention.55

It follows from the above that the substantive right to a healthy environment is only 37.16 recognised by the Aarhus Convention as a rationale for guaranteeing procedural environmental rights, which constitute the core of the Convention.56 In fact, this interpretation was specifically spelt out in the UK Declaration to the Aarhus Convention: The United Kingdom understands the references in article 1 … to the ‘right’ of every person ‘to live in an environment adequate to his or her health and well-being’ to express an aspiration which motivated the negotiation of this Convention and which is shared fully by the United Kingdom. The legal rights which each Party undertakes to guarantee under article 1 are limited to the rights of access to information, public participation in decision-making and access to justice in environmental matters in accordance with the provisions of this Convention.57

The controversial nature of a substantive right to a healthy environment at these various 37.17 levels may explain its absence from the Charter. What remains less clear, however, is the choice of the drafters of the Charter not to incorporate the procedural environmental rights that are binding on the EU and its Member States as a matter of international law, or at least to those procedural environmental rights that have been long protected under EU law, notably the right to access environmental information.58 Nonetheless, pursuant

54 According to C Coffey, ‘The EU Charter of Fundamental Rights: the Place of the Environment’ in K Feus (ed), The EU Charter on Fundamental Rights: Text and Commentaries (London, Federal Trust, 2000) 132, ‘limited discussion of the possibility of explicitly incorporating environmental rights into the EU Treaties’ had occurred during the last Intergovernmental Conference leading to the adoption of the Amsterdam Treaty, on the basis of a proposal by the Commission to include a ‘right to a healthy environment, and the duty to ensure it’. According to J Meyer, Kommentar zur Charta der Grundrechte der Europäischen Union, 2nd edn (Basel, Helbing & Lichtenhahn, 2006) para 5, the proposal for an environmental provision in the Charter was made ‘relatively late’ in the Convention and the views of the members ‘diverged considerably.’ 55 Aarhus Convention, Art 1. 56 Council of Europe, above n 16, p 12. 57 Declaration of the Kingdom of Great Britain and Northern Ireland, available at: http://treaties.un.org/ Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-13&chapter=27&lang=en. 58 For an overview, see Jans and Vedder, above n 11, pp 368–77.

Elisa Morgera and Gracia Marín Durán

991

Part I – Commentary on the Articles of the EU Charter

to Article 53 of the Charter on level of protection,59 the procedural environmental rights recognised under the Aarhus Convention may not be ‘restricted or adversely affected’ by the interpretation of the Charter. 37.18 Absent any proclamation of environmental rights in the Charter, the analysis in the subsequent sections will first explore what the principle of environmental integration means and what its legal significance is in EU law, drawing on Article 11 TFEU as the main source of Article 37 of the Charter. The analysis will return to the question of the relevance of the Aarhus Convention in the discussion of remedies.

II. Specific Provisions 37.19 The rationale behind the principle of environmental integration first promulgated in Article 11 TFEU, and then in Article 37 of the Charter, lies in the realisation that progress in the environmental field by itself is not sufficient and may be countered by developments in other policy fields that disregard environmental protection requirements.60 To put this in EU law terms, the very essence of the environmental integration principle resides in the fact that Treaty provisions other than the environmental legal bases61 may be used by the EU legislator to adopt measures that may (negatively) affect the environment. In broad terms, the environmental integration principle calls therefore for a ‘continuous greening’ of Union policies.62 Yet, what does environmental integration exactly mean in EU law? And does it have a different meaning under Article 37 of the Charter and Article 11 TFEU? As anticipated above, the language of these two provisions differs in a number of 37.20 ways. First of all, the object of Article 37 of the Charter refers to a ‘high level of environmental protection’ and to the ‘improvement of the quality of the environment’, whereas that of Article 11 TFEU refers to ‘environmental protection requirements’ more broadly. Two interpretative questions arise: what do ‘high level of environmental protection’ and ‘improvement of the quality of the environment’ mean?; and does the differently worded object of environmental integration under Article 11 TFEU have any bearing on the interpretation of Article 37 of the Charter? As to the first question, none of the terms is defined in the EU Treaties. The expres37.21 sion ‘high level’ of environmental protection is considered ‘one of the most important substantive principles of European environmental policy’.63 It is in fact reiterated as a principle of EU environmental policy in Article 191 TFEU, although it is made subject to consideration of the ‘diversity of situations in the various regions of the Union’.64 While this expression cannot be understood as allowing the EU to adopt the lowest common denominator among the Member States’ standards of environmental protection,65 the

59 M Cartabia, ‘Article 53—Level of Protection’ in G Di Federico (ed), The EU Charter of Fundamental Rights—From Declaration to Binding Instrument (Heidelberg, Springer, 2011). 60 J Holder and M Lee, Environmental Protection: Law and Policy (Cambridge, Cambridge University Press, 2007) 164. 61 Namely, Arts 191(4) and 192 TFEU (below n 72). 62 Kramer, EC Environmental Law, above n 14, p 20. 63 Jans and Vedder, above n 11, p 41. 64 Art 191(2) TFEU; see section C.I above. 65 Kramer, EC Environmental Law, above n 14, pp 11–12.

992

Elisa Morgera and Gracia Marín Durán

Art 37 – Environmental Protection

Court of Justice clarified that such a level of protection does not necessarily have to be the highest that is technically possible.66 Overall, it can be concluded that the principle reflects a moving target—the idea of continuous improvement of the environmental protection standards across the Member States.67 The expression ‘improvement of the quality of the environment’ is perhaps easier to interpret as implying that any measure leading to environmental degradation runs counter to the spirit of Article 37 of the Charter.68 However, none of these clarifications serves to establish what it is exactly that needs to ‘be integrated’ in Union policies pursuant to the environmental integration principle. It seems therefore useful and necessary to rely on the more precise wording of Article 11 TFEU, as one of the sources of Article 37, with a view to shedding light on the interpretation of the latter. The substance of the ‘environmental protection requirements’ that are the object of 37.22 the integration obligation in Article 11 TFEU is to be inferred from (albeit not explicitly limited to) the objectives and principles of EU environmental policy prescribed in Article 191 TFEU.69 This indirectly serves to clarify also the role of Article 191 TFEU as a source of Article 37 of the Charter. Those objectives are framed in very broad terms.70 Rather than seeking to (unduly) restrict the substantive scope of EU environmental competence, Article 191 TFEU leaves the EU legislator a wide margin of appreciation in deciding what action and measures, if any, are necessary to achieve the environmental objectives stipulated in the Treaty.71 The substantive content of EU environmental policy is therefore gradually defined by the EU political institutions72 as they adopt measures in pursuance of the broadly framed Treaty objectives, whether unilaterally or by concluding international agreements. By the same token, the broad formulation of Article 191 TFEU supports a non-restrictive interpretation of the substantive scope of Article 11 TFEU: ultimately, it is a matter of political choice which specific environmental issues are to be integrated in the ‘Union policies and activities’.73 In addition, the ‘environmental integration requirements’ under Article 11 TFEU include the environmental principles laid down in Article 191(2) TFEU, which go beyond a ‘high level of environmental protection’.74 Besides the object of environmental integration, other textual differences may be 37.23 noted between Article 37 of the Charter and 11 TFEU, notably in defining the scope

66 Case C-284/95 Safety High-Tech v S & T Srl [Safety High-Tech] [1998] ECR I-4301; see Jans and Vedder, above n 11, p 42. 67 Kramer, EC Environmental Law, above n 14, p 12. 68 Benoît-Rohmer, above n 18, p 315. 69 Jans and Vedder, above n 11, p 23. 70 See section C.I above. 71 See also Art 192 TFEU, granting the EU legislator a more general power to decide ‘what action is to be taken by the Union in order to achieve the objectives referred to in Article 191’. 72 That is, the Commission, the Council and the European Parliament, as the adoption of measures in this policy field is generally subject to the ‘ordinary legislative procedure’, see Arts 192(1) and 294 TFEU. The conclusion of agreements with third countries and international organisations based on Art 191(4) TFEU is undertaken in accordance with the general procedure laid down in Art 218 TFEU, also involving the three institutions. 73 Case C-157/96 The Queen and Ministry of Agriculture, Fisheries and Food, Commissioners of Customs & Excise ex parte National Farmers Union et al [National Farmers Union] [1998] ECR I-2211. 74 See section C.I above; and for instance Case T-13/99 Pfizer Animal Health v Council [2002] ECR II-3305 [114]–[115] in relation to the application of the precautionary principle to measures adopted to protect human health in the context of the common agricultural policy. Note that this is the case that is explicitly referred to in the Explanatory Notes to the Charter (at 35).

Elisa Morgera and Gracia Marín Durán

993

Part I – Commentary on the Articles of the EU Charter

of application. Whereas Article 37 succinctly refers to ‘policies of the Union’, Article 11 TFEU is more specific, and arguably comprehensive, in referring, first, both to the ‘definition’ and ‘implementation’ of Union policies, and second, not only to EU ‘policies’ but also its ‘activities.’ As to the latter, it could be inferred that the Charter takes a more restrictive approach and excludes Union’s activities that are not formally labelled as ‘policies’ of the EU in the Treaty.75 This would be the case, for instance, of competition rules and the internal market freedoms. As to the former, Article 11 TFEU encompasses both the stages of ‘definition’ (which includes every step of the EU legislative processes, such as identification of policy objectives, development of proposals and adoption of legislation, as well as their review) and of ‘implementation’ (which includes the adoption of further implementing acts and of decisions outside the legislative process, and enforcement).76 37.24 In addition, while both Article 37 of the Charter and Article 11 TFEU contain a link to ‘sustainable development’, they seem to differ in approach. Under Article 11 TFEU, environmental integration is conceived as a means for the realisation of sustainable development as a broader ‘objective’ (ie ‘with a view to promoting sustainable development’). Conversely, the language of Article 37 seems to subordinate environmental integration to sustainable development (ie ‘in accordance with’), which appears to be elevated as to the ‘main principle and bearer of an outright value’.77 The concept of sustainable development is primarily an international construct, and was first conceived in the area of international environmental law.78 However, sustainable development is not a monolithic, well-defined, notion in international law, and arguably even less so in EU law. Since the Treaty of Amsterdam, sustainable development has been part of the ‘raison d’être’ of the EU, given its inclusion among the foundational objectives of the Union’s internal and external action as a whole.79 Just as for any other objectives, the EU Treaties do not offer a precise definition of sustainable development, and the Court of Justice of the EU (CJEU) has not engaged (thus far) with its interpretation. In EU legislation and policy documents, this concept has been interpreted flexibly and adapted to different contexts and new developments.80 This lack of precise definition renders it difficult to identify the exact implications of 37.25 the link between environmental integration and sustainable development in Articles 37 of the Charter and Article 11 TFEU. However, in declaring that environmental integration needs to be carried out in respect of the principle of sustainable development, Article 37 renders the need for a definition of such a principle more pressing.81 It should be noted that the ‘inflationary use’ of sustainable development by the EU has been criticised as putting forward a separate concept from environmental protection,

75

In Arts 3–6 TFEU. Dhondt, above n 14, pp 45–52. 77 Lucarelli, above n 51, p 233. See also de Sadeleer, n 16 above, p 48. 78 What is traditionally considered the first definition of sustainable development is that proposed by the World Commission on Environment and Development, Our Common Future (Oxford, Oxford University Press, 1987) (Brundtland Report), ch 2, para 1: ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’. See also, Rio Declaration, particularly Principles 1–3. 79 Arts 2, 3(3) and (5), and 21(2)(f) TEU. 80 See Marín Durán and Morgera, above n 14, pp 35–40. 81 Lucarelli, above n 51, p 233. 76

994

Elisa Morgera and Gracia Marín Durán

Art 37 – Environmental Protection

and for the lack of systematic attempts to assess whether self-proclaimed sustainable development measures comply with environmental protection requirements.82 This has led to concerns over a risk of ‘squeezing out’ environmental protection from sustainable development,83 to the benefit of the other two pillars (social and economic development).84 The textual and contextual analysis thus far seems to indicate a more restrictive 37.26 enunciation of the principle of environmental integration under the Charter, when compared to the acquis of the EU Treaties. However, a systemic, rather than literal, interpretation of Article 37 in light of the broader and more precise wording of Article 11 TFEU seems preferable for ensuring a harmonious relationship between the Charter and the EU Treaties.85

III. Legal Nature Having established the meaning of environmental integration in EU law, we can now 37.27 turn to the legal nature and strength of Article 37. Article 51 of the Charter distinguishes between ‘rights’ which the institutions and bodies of the Union, or its Member States when implementing EU law, ‘shall respect’, on the one hand, and ‘principles’ which they ‘shall observe’, on the other hand. This distinction, which is given more precise elaboration in Article 52 of the Charter, is of legal significance: while it seems clear that ‘rights’ are justiciable and can be invoked by individuals before the courts, the degree of justiciability and direct effect of ‘principles’ is not as straightforward.86 Notwithstanding the importance of this distinction, the Charter does not offer a neat catalogue of ‘rights’ and ‘principles’,87 nor is it always possible to conclusively assert from the wording of a particular Charter provision whether it contains a ‘right’ or a ‘principle’.88 Nevertheless, there is little doubt that Article 37 of the Charter, which is the object of our analysis, belongs to the category of ‘principles’.89 It articulates a principle of environmental integration, without any further legal content in the sense of a ‘fundamental right’. Article 37 addresses the duties of public authorities in relation to environmental 37.28 protection: that is, to ensure that a ‘high level of environmental protection’ and ‘the improvement of the quality of the environment’ is integrated into ‘the policies of the

82 L Kramer, ‘Sustainable Development in the EC’ in H Bugge and C Voight (eds), Sustainable Development in International and National Law (Groningen, Europa Law Publishing, 2008) 391–93. 83 See A Ross-Robertson, ‘Is the Environment Getting Squeezed Out of Sustainable Development?’ (2003) Summer Public Law 249. 84 The Political Declaration of the World Summit on Sustainable Development, Document UN Doc A/CONF.199/20 Resolution 1, 4 September 2002 (WSSD Declaration), para 5 recognises: ‘three interdependent and mutually reinforcing pillars of sustainable development: economic development, social development and environmental protection’. See further, Marín Durán and Morgera, above n 14, p 41. 85 R Schutze, ‘Three “Bills of Rights” for the European Union’ (2011) 30 Yearbook of European Law 131, 146. This would be in line with the spirit of Art 52(2) of the Charter, albeit reference is only made to ‘rights’ in that context. 86 Ibid, p 98. 87 The Explanatory Notes (p 35) only offer a non-exhaustive list of the principles recognised in the Charter, which notably includes Art 37. 88 Explanatory Notes (p 35), noting that some provisions of the Charter may contain elements of both a ‘right’ and a ‘principle’. 89 The Explanatory Notes on Art 37 (p 33), indeed, make reference to the ‘principles set out in this Article’.

Elisa Morgera and Gracia Marín Durán

995

Part I – Commentary on the Articles of the EU Charter

Union’, ‘in accordance with the principle of sustainable development’. Its wording differs strikingly from that of a classical right provision: the term ‘right’ itself is omitted, as are similar terms used in other Charter provisions that do grant and protect individual rights (eg ‘everyone is entitled’,90 ‘no one shall be subjected, held, required’91). In addition, the provision ‘take[s] care not to specify any beneficiary’ of EU policies, thereby avoiding the creation of an ‘individual entitlement guaranteed to the victims of pollution’.92 Article 37 is thus a declaration of principle, which can be interpreted as being of a ‘policy-objective’ nature.93 As such, it does not embody a right that could be enforced by individuals before the CJEU or the national courts of the Member States. Against this background, to what extent does it impose a legal obligation upon the 37.29 EU political institutions to integrate environmental concerns into Union policies? Is it intended to be a mere procedural rule requiring the EU legislator to consider the environmental dimension of other Union policies, or does it demand a substantive integration of environmental concerns? And how much discretion is left to the EU legislator in assessing and balancing environmental and other (at times) conflicting policy objectives? At first sight, there seem to be three views on the legal significance of the environ37.30 mental integration principle. The first, and weakest, interpretation would view the principle largely as a procedural tool, imposing a duty to simply ‘take into account’ environmental concerns in the development of other Union policies, while leaving the EU decision-makers with a broad discretion as to whether or not to adjust such policies in practice. The second, and stronger, interpretation of the principle would, instead, require the EU decision-makers to pursue environmental aims in a systematic manner alongside the specific sectoral objectives of other Union policies. In other words, it would demand substantive integration of environmental objectives into other Union policies, without however prescribing a clear precedence of environmental objectives over other EU policy objectives. Finally, under the third and strongest interpretation, environmental protection requirements would need to be applied at all times in priority to other (potentially conflicting) policy objectives.94 In our view, the legal significance of the environmental integration principle needs to 37.31 be first inferred on the basis of a close analysis of the wording of Article 37 Charter and Article 11 TFEU. Both of these provisions are clearly framed in mandatory and justiciable terms: ‘must be integrated’. Furthermore, in the EU Treaties, Article 11 TFEU stands out as the only integration clause that uses the term ‘must’, as opposed to ‘shall aim at’95 or ‘shall take into account’96 which are found in other mainstreaming clauses, and would

90

Eg Arts 34(2) and 46 of the Charter. Eg Arts 4, 5(1), 49(1), and 50 of the Charter. 92 De Sadeleer, above n 16, p 44. 93 Kiss, above n 49, p 252; A Lucarelli, above n 51, p 230. 94 See S Kingston, ‘Integrating Environmental Protection and EU Competition Law: Why Competition Isn’t Special?’ (2010) 16(6) European Law Journal 780, 788. 95 Which is used in Art 8 TFEU (gender equality) and Art 10 TFEU (non-discrimination). 96 Which is used in Art 9 TFEU (employment and social protection) and Art 12 TFEU (consumer protection). Art 13 TFEU on animal welfare uses also a weaker term (‘pay full regard’). 91

996

Elisa Morgera and Gracia Marín Durán

Art 37 – Environmental Protection

appear to limit more significantly the margin of institutional discretion.97 Since its early case law on Article 11 TFEU, the Court seems to have endorsed an interpretation of the principle as legally binding.98 As later noted by Advocate General Jacobs: ‘As its wording shows, [Article 11 TFEU] is not merely programmatic: it imposes legal obligations.’99 In addition, the use of the terms ‘be integrated’ in both provisions points to a sub- 37.32 stantive legal obligation, rather than a mere policy guideline or procedural rule that could be easily satisfied by the EU legislator through a superficial examination of the environmental implications of the measure envisaged (eg by simply taking note of the environment in a preambular recital).100 Both provisions require that environmental objectives and principles are pursued and applied in all Union policies in a systemic manner. That being said, they do not prescribe a clear precedence for environmental protection to the detriment of other EU policy objectives. This is further corroborated by Article 7 TFEU requiring the Union to ensure consistency between all its policies and activities,101 as well as the lack of a hierarchy between the environmental integration principle and other mainstreaming clauses in EU primary law.102 Nonetheless, Article 11 TFEU and Article 37 of the Charter impose a general obligation on the EU institutions to carry out, at the very least, an integrated and balanced assessment of all the relevant environmental aspects when defining and implementing Union policies.103

IV. Limitations and Derogations While it is plain that the environmental integration principle is construed as a legal 37.33 obligation under both Article 37 of the Charter and Article 11 TFEU, it is less clear the extent to which these provisions are judicially cognisable and enforceable. In this regard, Article 52(5) of the Charter states that provisions containing principles, such as Article 37, ‘shall be judicially cognisable only in the interpretation of [acts that implement them] and in the ruling on their legality’. Such a restriction is not placed on ‘rights’ and ‘freedoms’ referred to elsewhere in Article 52 of the Charter. If read literally and in

97 Dhondt, above n 14, pp 101–03; E Psychogiopoulou, ‘The Integration of Cultural Considerations in EU Law and Policies’ (Doctoral thesis, European University Institute, 2006), pp 68–73, offering a comparative analysis of the legal strength of the environmental integration requirement. 98 Case C-62/88 Greece v Council [Chernobyl I] [1990] ECR I-1527 [20] (referring to former Art 130r(2) SEA): ‘That provision, which reflects the principle whereby all Community measures must satisfy the requirements of environmental protection, implies that a Community measure cannot be part of Community action on environmental matters merely because it takes account of those requirements’ (emphasis added). The Court reiterated this interpretation in Case C-405/92 Etablissements Armand Mondiet v Société Armement Islais [Mondiet] [1993] ECR I-6133 [27]. 99 Opinion of AG Jacobs in Case C-379/98 PreussenElektra [2001] ECR I-2099 [231]. 100 M Wasmeier, ‘The Integration of Environmental Protection as a General Rule for Interpreting Community Law’ (2001) 38(1) Common Market Law Review 159, 164. 101 Art 7 TFEU reads: ‘The Union shall ensure consistency between its policies and activities, taking all of its objectives into account and in accordance with the principle of conferral of powers’. 102 H Vedder, ‘The Treaty of Lisbon and European Environmental Policy’ (2010) 22(2) Journal of Environmental Law 285, 289. Before the Lisbon Treaty, environmental integration, together with gender equality (former Art 3(2) EC Treaty, now Art 8 TFEU) were the only mainstreaming requirements enjoying the status of general principle of EU law. With the Lisbon Treaty, this prominent position has been extended to employment and social and human health protection (Art 9 TFEU), non-discrimination (Art 10 TFEU), consumer protection (Art 12 TFEU), and animal welfare (Art 13 TFEU). 103 Jans and Vedder, above n 11, p 23.

Elisa Morgera and Gracia Marín Durán

997

Part I – Commentary on the Articles of the EU Charter

isolation, Article 52(5) of the Charter would seem to impose a significant limitation on the justiciability of Article 37: it can only be invoked before a court to challenge the legality of an act implementing (ie explicitly referring to) the principle of environmental integration, but presumably not to aid the interpretation of provisions in EU acts that do not implement (ie make no reference to) the principle. 37.34 However, the case law on Article 11 TFEU104 does not make such a distinction, and is less restrictive on the justiciability of the environmental integration principle. Article 11 TFEU has been relied upon by the Court not only to review the legality of EU acts specifically ‘implementing’ environmental integration,105 but more generally. Given its status of general principle of EU law,106 Article 11 TFEU is crucial to the interpretation of EU law as a whole, both primary and secondary law, whether it explicitly or implicitly gives effect to the principle of environmental integration.107 That is, the CJEU may only opt for an interpretation whose effects are positive or neutral on the environmental interests involved. An interpretation which does not favour the proper integration of environmental protection requirements in EU law or, ultimately, their reconciliation with other competing policy goals, is a priori inconsistent with Article 11 TFEU, and would need to be justified on the basis of Treaty exceptions or other overriding reasons.108 A systemic interpretation of Article 37 of the Charter, in light of Article 11 TFEU and its status as general principle of EU law, would therefore require a broader justiciability than that suggested by the letter of Article 52(5) of the Charter. 37.35 It would seem evident, as a consequence, that any piece of EU legislation that has a harmful effect on the environment breaches a clear Treaty obligation (Art 11 TFEU) and may be subject to annulment by the Court.109 However, such a breach may be difficult to

104 Note that the relevant case law relates to former Art 6 EC Treaty, and most of it has dealt with the role of that provision in the choice of the appropriate legal basis of EU acts, rather than with its implications for the normative content of such acts: Case Chernobyl I, above n 98; Case 155/91 Commission v Council (Waste Directive) [1993] ECR I-939; Opinion 2/00 pursuant to Article 300(6) EC, Cartagena Protocol [2001] ECR I-9713; Case C-336/00 Republik Österreich v Martin Huber [2002] ECR I-7699; Case C-94/03 Commission v Council (re Rotterdam Convention) [2006] ECR I-1; Case C-178/03 Commission v European Parliament [2006] ECR I-107. For an overview of this case law, see M Cremona, ‘Coherence and EU External Environmental Policy’ in E Morgera (ed), The External Environmental Policy of the European Union—EU and International Law Perspectives (Cambridge, Cambridge University Press, 2012) 45–51; and Dhondt, above n 14, pp 169–75. 105 Most obviously in Case Safety High-Tech, above n 66; and Case C-341/95 Bettati v Safety Hi-Tech [Bettati] [1998] ECR I-4355. See Dhondt, above n 14, pp 144–64 for an overview of case law applying former Art 6 EC Treaty (now Art 11 TFEU) and Art 174 EC (now Art 191 TFEU) in judicial review cases. 106 See Kingston, above n 94, p 787. 107 Former Art 6 EC Treaty was used as a tool in interpreting Treaty provisions as well as secondary law in eg: Opinion of AG Jacobs in Case Preussen Elektra, above n 99 [231]–[232]; Joined Cases T-74/00 etc, Artegodan and Others v Commission [2002] ECR II-4945 [183]–[184]; Opinion of AG Jacobs in Case C-126/01 Ministère de l’Économie, des Finances et de l’Industrie v GEMO SA [2003] ECR I-13769 [65]–[67]; Opinion of AG Alber in Case C-444/00 The Queen on the application of Mayer Parry Recycling Ltd v The Environment Agency and Secretary of State for Environment, Transport and the Regions [2003] ECR I-6163 [124]. 108 See Wasmeier, above n 100, pp 160–63 and 175–76; and more generally, F Jacobs, ‘The Role of the European Court of Justice in the Protection of the Environment’ (2006) 18(2) Journal of Environmental Law 185. 109 An action for annulment can be brought pursuant to Art 263 TFEU: ‘The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European

998

Elisa Morgera and Gracia Marín Durán

Art 37 – Environmental Protection

prove in practice. This is because of the broad discretion that is generally left to the EU political institutions in implementing and striking a balance between the various policy objectives and principles in the Treaties, with the exercise of judicial review usually being restricted to verifying that the competent institution did not clearly exceed the bounds of its discretion or misuse its powers.110 For instance, in disputes over the lawfulness of an ozone depletion regulation,111 the CJEU confirmed the wide discretionary powers of the EU institutions with respect to the Treaty-based environmental objectives and principles, and justified it on the need for a margin of institutional appreciation in making complex assessments of and balancing between these objectives and principles. It is therefore hard to imagine a situation where the environmental integration principle 37.36 could, in practice, be the successful basis of a legal challenge of an EU measure which does not (or does not sufficiently) integrate environmental protection requirements.112 There appear to be no cases in which the Court has accepted that a particular piece of EU legislation is invalid just because it fails to take proper account of the environmental integration principle. Nor does there appear to be any cases where the principle has been relied on in order to challenge the validity of national legislation.113 A second limitation to the justiciability of the environmental integration principle 37.37 emerges from the Explanatory Notes on Article 52(5) of the Charter, which provide that ‘principles’, unlike rights, in the Charter do not ‘give rise to direct claims for positive action by the Union’s institutions or Member States authorities’.114 In other words, Article 37 of the Charter cannot provide the basis for challenging a failure to act on the part of the EU institutions.115 A paradoxical result will ensue: that the EU legislator may be condemned for mis-implementing the principle of environmental integration, but not for failing to act upon it altogether. It has been noted, furthermore, that the Charter approach in this regard appears stricter than that of the CJEU in relation to the enforceability of EU environmental Directives, whereby an individual can challenge before a national court a national agency for failing to take action under the Directive.116 In essence, actual environmental integration into Union policies is largely a matter of 37.38 legislative and executive discretion, with which the EU judiciary is unlikely to interfere. At most, the role of the Court in operationalising the principle lies in its willingness to use it as tool to interpret EU law as a whole.

Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties.’ 110 See eg Cases C-331/88 The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex p Fedesa and others [1990] ECR I-4023 [8]; Case Mondiet, above n 98 [32]; Case C-180/96 United Kingdom v Commission [1998] ECR I-2265 [60]; and C-120/97 Upjohn v The Licensing Authority [1999] ECR I-223 [34]. On this point, see Psychogiopoulou, above n 97, pp 74–80. 111 Case Bettati, above n 105, esp [32]–[35]; Case Safety Hi-Tech, above n 66, esp [34]–[37]; Opinion of AG Léger in Bettati case. 112 For a similar view, see Cremona, above n 104, p 39; and Dohnt, above n 14, p 181. 113 D Denman, ‘The Charter of Fundamental Rights’ (2010) 4 European Human Rights Law Review 349, 354. 114 Explanatory Notes, p 35. 115 An action for failure to act can be brought pursuant to Art 265 TFEU. 116 De Sedeleer, above n 16, p 45, relying on Case C-237/07 Janecek [2008] ECR I-06221.

Elisa Morgera and Gracia Marín Durán

999

Part I – Commentary on the Articles of the EU Charter

V. Remedies 37.39 Article 47 of the Charter declares the right to an effective remedy and to a fair trial in instances where ‘rights and freedoms guaranteed by the law of the Union are violated’. At first sight, the relevance of this provision to Article 37 of the Charter itself seems rather limited given that, as we have seen, it falls short of ‘guaranteeing’ any individual ‘right’ to environmental protection. At the same time, as we have also noted,117 Article 47 of the Charter must be given the ‘same meaning and scope’ than corresponding provisions in the ECHR, in this case Articles 6(1) and 13.118 These two provisions have been interpreted by the ECtHR as guaranteeing access to justice and an effective remedy in environmental matters.119 In principle, therefore, EU and national courts should apply Article 47 of the Charter in light of this case law. This interpretation is further supported by the international obligations related to access to justice in environmental matters that bind the EU and its Member States under the Aarhus Convention.120 37.40 In practice, however, access to justice and remedies in environmental matters are particularly deficient at both EU and Member State level. At Member State level, there is still a significant level of disparity in the national procedures on access to courts for environmental matters,121 partly due to the lack of progress on the Commission’s legislative proposal for a Directive implementing the provisions in the Aarhus Convention on access to justice in environmental matters at the Member State level.122 Furthermore, levels of implementation at national level remain unsatisfactory with regards to specific provisions on access to justice in existing EU environmental law.123 The CJEU has, however, seized the opportunity to assert that national regulations on access to justice in environmental matters need to be interpreted so as to give full effect to the standards of the Aarhus Convention and avoid making the exercise of the right impossible, or excessively difficult, in practice.124 37.41 At EU level, on the other hand, the CJEU has ‘obstinately clung to its rigid [Plaumann] doctrine’ on standing, and ‘practically barred’ environmental NGOs and individuals from bringing cases to EU courts to review the legality of EU environmental acts.125 The practice has continued after the adoption of the Charter, and does not seem

117

By virtue of Art 52(3) of the Charter; see section B above. Explanatory Notes, pp 34 and 29, respectively. 119 See summary of relevant ECtHR case law in Council of Europe, above n 16, p 94–109; and de Sadeleer, above n 16, pp 63–64. 120 Aarhus Convention Art 9. 121 N de Sadeleer, G Roller and M Dross (eds), Access to Justice in Environmental Matters and the Role of NGOs: Empirical Findings and Legal Appraisal (Groningen, Europa Law Publishing, 2005). 122 Commission, ‘Proposal for a Directive of the European Parliament and of the Council on Access to Justice in Environmental Matters’ COM (2003) 624 final, Brussels 24 October 2003. 123 C Poncelet, ‘Access to Justice in Environmental Matters—Does the European Union Comply with its Obligations?’ (2012) 24(2) Journal of Environmental Law 287, 289–95; and Jans and Vedder, above n 11, 228–37. 124 Case C-240/09 Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky [2011] ECR I-1255 [46]–[51]. 125 Poncelet, above n 123, p 298. See also L Kramer, ‘Environmental Justice in the European Court of Justice’ in J Ebbesson and P Okowa (eds), Environmental Law and Justice in Context (Cambridge, Cambridge University Press, 2009). 118

1000

Elisa Morgera and Gracia Marín Durán

Art 37 – Environmental Protection

likely to change, notwithstanding the amendments introduced by the Lisbon Treaty.126 As a result, the EU has already been censured by the Aarhus Convention Compliance Mechanism,127 which has found that if the [relevant] jurisprudence of the EU Courts … were to continue, unless fully compensated for by adequate administrative review procedures, the [EU] would fail to comply with Article 9(3)–(4) of the Convention.128

Against this background, it should be regrettably noted that the scope for administrative 37.42 review of EU acts under the Regulation implementing the Aarhus Convention at the level of the EU institutions129 is very narrow and applied in an ‘extremely restrictive’ manner.130 It seems therefore hardly capable of ‘fully compensating’ for the lack of access to justice to EU courts.131 Indeed, the General Court has explicitly affirmed that this provision is ‘not compatible’ with the relevant provision of the Aarhus Convention.132 This poor practice in relation to access to justice in environmental matters within the 37.43 EU sheds light on yet another motive behind the unwillingness of the drafters of the Charter to proclaim any environmental rights. Without the shadow of a doubt, there is a host of compelling legal arguments for the CJEU to depart from its (excessively) restrictive approach to standing, notably a consistent interpretation of Articles 37 and 47 of the Charter with the Aarhus Convention, as well as with the relevant ECtHR case law.133 Fears of ‘opening the floodgates’ could be kept at bay, as suggested by Pallemaerts, by creating a specialised court dealing with environmental issues through an act of the European Parliament and the Council.134 But political rather than legal considerations seem to be preventing this development: the reluctance not only of (some) Member States, but also of the ‘EU institutions to be challenged by environmental organisations’.135

126 See new provision in Art 263(4) TFEU and pessimistic views on whether it can have any impact on access to justice for environmental matters at EU level by Jans and Vedder, above n 11, p 250. 127 A non-judicial body that reviews compliance with the Aarhus Convention by its parties, including on the basis of communications from the public: Aarhus Convention, Art 15. 128 Communication to the Aarhus Convention Compliance Committee ACCC/C/2008/32, 2008; in particular, the Compliance Committee’s Findings and Recommendations (2011) UN Doc ECE/MP PP/C 1/2011/4/ Add 1 [88] (emphasis added). 129 Regulation (EC) 1367/2006 on the application of the provisions of the Aarhus Convention to Community institutions and bodies [2006] OJ L264/13, Arts 10–11. 130 J Jans and G Harryvan, ‘Internal Review of EU Environmental Matters: It’s True. Baron Van Munchausen Doesn’t Exist! Some Remarks on the Application of the So-called Aarhus Regulation’ (2010) 3(2) Review of European and Administrative Law 53. 131 Jans and Vedder, above n 11, p 249. 132 Case T-338/08 Stichting Natuur en Milieu and Pesticide Action Network Europe v European Commission (Judgment of 14 June 2012) [76]–[83]. 133 Jans and Vedder, above n 11, p 244; Poncelet, above n 123, p 302; M Pallemaerts, ‘Access to Justice at EU Level’ in M Pallemaerts (ed), The Aarhus Convention at Ten: Interactions and Tensions between Conventional International Law and EU Environmental Law (Groningen, Europa Law Publishing, 2011) 273–312, 311. 134 By virtue of Art 257(1–3) TFEU: Pallemaerts, above n 133, p 372. 135 Poncelet, above n 123, p 307.

Elisa Morgera and Gracia Marín Durán

1001

Part I – Commentary on the Articles of the EU Charter

E. Evaluation 37.44 Unlike some of the constitutions of the EU Member States, Article 37 of the Charter does not proclaim a substantive right to a healthy environment. In fact, it even fails to codify and elevate to a constitutional level procedural environmental rights that are already binding upon the EU and its Member States, both under international and EU secondary law. Rather than embodying a ‘limit’ on public authorities’ action in order to protect an individual right to environmental protection, or a positive obligation to act to fulfil such a right, Article 37 articulates a principle of environmental integration as an ‘aim’ for public authorities,136 thereby simply providing a ‘yardstick against which to measure the relative success (or otherwise) of Union/national regulatory activities.’137 37.45 Against this background, prominent scholars have argued that ‘an exceptional occasion has been missed’ to make progress in a field of fundamental importance for the life of European citizens, especially in the context of the rule of the free market138 Indeed, one may question: what is the place of an environmental integration principle in a Charter of ‘Fundamental Rights’, and indeed its added value to Treaties acquis? Given its status of general principle of EU law, Article 11 TFEU already plays, as we have seen, a significant role as a source of interpretation of EU primary and secondary law, and at least potentially as a basis for reviewing the legality of EU acts. In this regard, Article 37 of the Charter adds nothing to Article 11 TFEU, but actually attempts to limit the substantive scope and degree of justiciability of the environmental integration principle.139 Does this mean, in essence, that Article 37 is only of a symbolic value,140 a mere reminder to readers of a possible environmental dimension of the Charter? Or, as cautiously advanced by AG Léger, a sign that environmental protection will be accorded ‘increasing importance’ in the future?141 Taking an optimistic standpoint, one could foresee an added-value in Article 37 and 37.46 its inclusion in a Charter of ‘Fundamental Rights’ as an additional legal argument, and ‘persuasive authority’,142 for ‘greening’ the practice of EU institutions—both political and judicial—vis-à-vis procedural environmental rights guaranteed under the Aarhus Convention in the future. This is particularly pressing for access to justice in environmental matters at EU level which, as we have seen, is not only below ECHR standards,143 but has also been censured by the Aarhus Convention Compliance Committee. Ultimately, if the very rationale for ‘constitutionalising’ the Charter was ‘the need for robust and accessible judicial protection for individuals against the ever-increasing powers of the Union and of the Member States when acting within the scope of Union

136

Schutze, above n 85, p 146. M Dougan, ‘The Treaty of Lisbon 2007: Winning Minds, not Hearts’ (2008) 34 Common Market Law Review 617, 663. 138 Kiss, above n 49, p 268. 139 Along similar lines, see Hectors, above n 18, pp 167–68, considering Art 37 as a ‘politically-driven weakened version of what European legal practice is now in general’. 140 Lombardo, above n 18, p 221. 141 Opinion of AG Léger in Case C-277/02 EU-Wood-Trading GmbH [2004] ECR I-11957 [9]. 142 Art 37 was explicitly referred as such by the ECtHR in Hatton and Others v UK (2002) 34 EHRR 1; see comments in Anderson and Murphy, above n 9, p 16. 143 Schutze, above n 85, p 155. 137

1002

Elisa Morgera and Gracia Marín Durán

Art 37 – Environmental Protection

law’,144 then improved individual access to justice in environmental matters is not only urgent from the viewpoint of intensive and ambitious EU environmental law internally, but also increasingly desirable in relation to its external environmental action.145 Possibly the EU’s ambition to lead in the global fight against climate change146 may lead it to consider the role of environmental rights more broadly within its legal system.147 From a more pragmatic perspective, judicial references to Article 37 of the Charter 37.47 have been thus far limited in both quantitative and qualitative terms,148 with the notable exception of AG Colomer’s bold statement: Environmental protection currently occupies a prominent position among Community policies. Furthermore, the Member States also have a crucial responsibility in that area. Community citizens are entitled to demand fulfillment of that responsibility under Article 37 of the Charter of Fundamental Rights of the European Union, which guarantees a high level of environmental protection and the improvement of the quality of the environment. Accordingly, the main elements of any measure which strays from the general criteria aimed at protecting the environment must be duly specified, since that is an embodiment of the rational exercise of power, as well as being a tool which, if necessary, enables the measure to be reviewed subsequently.149

However, this seems as of yet an isolated instance, which does not suggest that Article 37 37.48 is set to acquire increasing importance in the near future.

144

Anderson and Murphy, above n 9, p 20. D Augenstein, ‘The Human Rights Dimension of Environmental Protection in EU External Relations After Lisbon’, in E Morgera (ed), above n 104, pp 263–86. 146 Eg, S Oberthür and M Pallemaerts, The New Climate Policies of the European Union: Internal Legislation and Climate Diplomacy (Brussels, VUB Press, 2010); and K Kulovesi, ‘Climate Change in EU External Relations: Please Follow my Example (or I Might Force You to)’ in E Morgera (ed), above n 104. 147 Perhaps at the instigation of the European Parliament: C Cournil et al, Human Rights and Climate Change: EU Policy Options (European Parliament, August 2012), www.europarl.europa.eu/committees/fr/ studiesdownload.html?languageDocument=EN&file=76255. 148 To the authors’ best knowledge on the basis of research conducted on the website of the CJEU and EU Fundamental Rights Agency. Note, however, that there are increasing references to Art 37 in the preamble of recent EU environmental acts: Jans and Vedder, above n 11, p 25. 149 Opinion of AG Colomer in Case C-87/02 Commission v Italy [2004] ECR I-05975 [36] (emphasis added). 145

Elisa Morgera and Gracia Marín Durán

1003

Article 38 Article 38 Consumer Protection Union policies shall ensure a high level of consumer protection.

Text of Explanatory Note on Article 38 The principles set out in this Article have been based on Article 169 of the Treaty on the Functioning of the European Union.

Select Bibliography M Dani, ‘Assembling the Fractured European Consumer’ (2011) 36 European Law Review 362. J Davies, ‘Entrenchment of New Governance in Consumer Policy Formulation: a platform for European Consumer Citizenship Practice?’ (2009) 32 Journal of Consumer Policy 245. V Mak, ‘Two levels, one standard? The multi-level regulation of consumer protection in Europe’ in J Devenney and M Kenny (eds), European Consumer Protection: Theory and Practice (Cambridge, CUP, 2012). H Micklitz, J Stuyck and E Terryn, Cases, Materials and Text on Consumer Law (Oxford, Hart Publishing, 2010). H Micklitz (ed), The Many Concepts of Social Justice in European Private Law (Cheltenham, Edward Elgar, 2011). I Ramsay, ‘Regulation and the Contribution of the EU Single Market: the Contribution of Consumer Law’ (2010) 50 Canadian Business Law Journal 322. H Unberath and A Johnston, ‘The Double-Headed Approach of the ECJ concerning Consumer Protection’ (2007) 44 Common Market Law Review 1237. S Weatherill, EU Consumer Law and Policy (Cheltenham, Edward Elgar, 2013).

A. Field of Application of Article 38 As will be elaborated more fully below, EU ‘consumer protection’ comprises two 38.01 principal fields of activity. The first is the application of the Treaty provisions on free movement, where it has been common since the landmark Cassis de Dijon case1 to find rulings in which national measures that purport to protect the consumer collide with cross-border trade integration. The second is in the development of EU legislation affecting the consumer, adopted infrequently pursuant to Article 169 TFEU, the Treaty provision explicitly devoted to consumer protection, but much more commonly

1 Case 120/78 Rewe-Zentrale AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 649 (Cassis de Dijon).

Part I – Commentary on the Articles of the EU Charter

pursuant to Article 114 TFEU governing the harmonisation of laws in the service of the internal market. Article 38’s reference to ‘Union policies’ ensures that it is directed at the Union’s insti38.02 tutions and Member States in so far as they are responsible for the implementation of those policies. There is no awkwardly unclear tension between Article 38 and Article 51 of the Charter. However, the particular sensitivity of Article 38 concerns its programmatic character—the extent to which it serves as an operationally useful instrument of law and/or policy. This is addressed below.

B. Interrelationship of Article 38 with Other Provisions of the Charter 38.03 There is no explicit connection to be found in Article 38. However, several of the issues that are raised by appreciation of Article 38 also apply to similarly worded and motivated provisions, such as Article 37 on Environmental Protection. Moreover, the right to an effective remedy, stipulated by Article 47, is plainly relevant to (inter alia) consumers; so too that Article’s reference to the availability of legal aid as a means to ensure effective access to justice.

C. Sources of Article 38 Rights 38.04 As is already suggested by the ‘Explanation’ on Article 38 of the Charter, the place to search for the sources of Article 38 is the Treaty itself—and the relevant material pre-dates the entry into force in 2009 of the Treaty of Lisbon. In this sense Article 38 draws on existing material in EU law, and it is not a leap into the unknown or the little known. In fact, the Explanation—that the principles set out in Article 38 ‘have been based on Article 169 of the Treaty on the Functioning of the European Union’—is incomplete. The Treaty is in fact rich in material that nourishes the commitment in Article 38 that ‘Union policies shall ensure a high level of consumer protection’. It is, however, to Article 169—the sole provision in Title XV of Part Three of the 38.05 TFEU, entitled Consumer Protection—that one should look to discover the most obvious and direct source of Article 38 of the Charter. Article 169(1) provides that In order to promote the interests of consumers and to ensure a high level of consumer protection, the Union shall contribute to protecting the health, safety and economic interests of consumers, as well as to promoting their right to information, education and to organise themselves in order to safeguard their interests. [Emphasis added.]

38.06 Article 169(2) then adds that the Union shall contribute to the attainment of these stated objectives through two routes: first, by adopting measures pursuant to Article 114 in the context of the completion of the internal market; and second, by the adoption of measures which support, supplement and monitor the policy pursued by the Member States. The legislative procedure applicable to the first of these two routes is contained 1006

Steve Weatherill

Art 38 – Consumer Protection

in Article 114 itself. It is governed by the ordinary legislative procedure and envisages a carefully managed procedure involving Commission authorisation should a Member State wish to apply standards stricter than those agreed at EU level. The legislative procedure applicable to the second of these routes is the ordinary legislative procedure and Article 169(4) makes explicit that Member States may maintain or introduce more stringent protective measures, provided that such measures be compatible with the Treaties and that the Commission be notified of them. Article 169’s provisions, especially, for present purposes, the direction in its first paragraph to ensure a high level of consumer protection through Union action, should be read in conjunction with Article 12 TFEU. This provides that ‘Consumer protection requirements shall be taken into account in defining and implementing other Union policies and activities’. This so-called cross-cutting or mainstreaming provision used to be embedded within the Consumer Protection title itself in the version of the Treaty that applied prior to the entry into force of the Treaty of Lisbon in 2009, but the Lisbon amendments brought it out of that ghetto, and relocated it more prominently towards the front of the TFEU, doubtless thereby to increase its profile. The result is that consumer protection is an EU legislative competence in its own right, but also one that is constitutionally stipulated to infuse the elaboration of all policies shaped by the EU. It is this wider, deeper understanding of the place of consumer protection in the EU that is expressed by Article 38 of the Charter. Article 114 TFEU also refers to the protection of the consumer. Article 114 governs (in short) legislative harmonisation. It provides that for the achievement of the objectives set out in Article 26 (which concern the internal market), the EU acting in accordance with the ordinary legislative procedure shall ‘adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market’—which may embrace and has embraced EU harmonisation of national consumer protection law—and that according to Article 114(3), ‘The Commission, in its proposals envisaged in paragraph 1 concerning health, safety, environmental protection and consumer protection, will take as a base a high level of protection, taking account in particular of any new development based on scientific facts.’ This constitutional linkage of the making of harmonised rules to the quality of the environment (re-)regulated by the EU—that a high level of protection be the base—is supplemented by the additional direction in Article 114(3) that ‘Within their respective powers, the European Parliament and the Council will also seek to achieve this objective.’ In sum, the Explanation for Article 38 of the Charter is incomplete. There is more to the role of consumer protection in the EU than Article 169 TFEU. In particular, there are Articles 12 and 114(3) TFEU as well. Accordingly, Article 38 of the Charter has a sweep which is only in part sourced in Article 169 TFEU alone. Were one to stand back and survey the more distant background that has inspired the rhetoric that treats consumer rights as fundamental rights, one might look back to a famous speech on the role of the consumer by President Kennedy in 1962, which focused on four rights—concerning safety, choice, information and representation. In the EU this found an echo at the so-called ‘Paris Summit’ of 1972, which launched a political commitment to construct more than mere economic integration on the foundation of the (then) EEC, and which generated a Council Resolution of 14 April 1975 on a preliminary programme for a consumer protection and information Steve Weatherill

1007

38.07

38.08

38.09

38.10

Part I – Commentary on the Articles of the EU Charter

policy.2 Point 3 of the Annex summed-up consumer interests in a statement of five basic rights: (a) (b) (c) (d) (e)

the right to protection of health and safety, the right to protection of economic interests, the right of redress, the right to information and education, the right of representation (the right to be heard).

38.11 But this was to some extent deceptive. Point 4 of the Annex recalled the constitutional constraints. It added that consumer policy would be amplified ‘by action under specific Community policies such as the economic, common agricultural, social, environment, transport and energy policies as well as by the approximation of laws, all of which affect the consumer’s position’. There was at the time no explicit legislative competence in the field of consumer protection granted by the Treaty, and even though Article 169 TFEU now performs that role, it is of carefully limited scope. It is fanciful to treat it as the basis for creating generally applicable and legally enforceable ‘rights’. And so even though one could see Article 38 of the Charter as—finally—the moment at which the EU has been emancipated from its constitutional constraints and instead liberated as a true protector of ‘consumer rights’, the practical reality is unlikely to be quite so auspicious. It does not of itself extend the scope of the EU’s legislative competence, nor does it contain rights apt for direct enforcement in concrete cases which demand action by the EU’s institutions.

D. Analysis I. General Remarks 38.12 The most obviously intriguing questions surrounding Article 38 of the Charter ask whether it makes any significant change in the positioning of consumer protection in EU law—and, even more pointedly, whether it even achieves any change at all. As explained above, the sources of Article 38 are sources that are perfectly familiar in existing EU law and policy, and this invites a cautious, even sceptical, appreciation of the potential transformative impact of Article 38 of the Charter. Admittedly, Article 38 carries an immediate appearance of a statement of significant 38.13 constitutional weight. It locates the pursuit of a high level of consumer protection as a binding commitment within the broader Charter discourse of ‘fundamental rights’. It is relatively uncommon to find consumer protection granted a specifically constitutional authority at national level,3 and the ‘consumer’ is not mentioned at all in the European Convention on Human Rights and Fundamental Freedoms. Article 38 of the Charter therefore appears to promise that the EU is an unusually assiduous guarantor of consumer protection. And the commitment made by Article 38 is not confined to economic

2

[1975] OJ C92/1. Cf M Jagielska and M Jagielski, ‘Are consumer rights human rights?’ in J Devenney and M Kenny (eds), European Consumer Protection: Theory and Practice (Cambridge, CUP, 2012). 3

1008

Steve Weatherill

Art 38 – Consumer Protection

activities, but rather attaches to all ‘Union policies’. This high level of commitment is reflected in the Commission’s recently published document, ‘A European Consumer Agenda—Boosting confidence and growth’: In line with the Treaty (Article 12 TFEU) and the Charter of Fundamental Rights (Article 38), the Agenda develops a systematic approach to integrating consumer interests into all relevant policies and puts a special emphasis on tackling problems faced by today’s consumers in the food chain, energy, transport, digital and financial services sectors.4

On the other hand, as is already suggested by the ‘Explanation’ on Article 38 and discussed 38.14 further under ‘Sources’ above, it is far less clear whether Article 38 is at bottom anything more than a reassertion of the existing concern for consumer protection found in the Treaty on the Functioning of the European Union. Articles 12 and 169 TFEU offer the current expression of a concern for consumer protection already written into EU law with effect from the entry into force of the Maastricht Treaty in 1993. Article 114(3)’s concern for consumer protection has been in the Treaty since 1987. It might in this vein be thought revealing that Article 38, having been proudly mentioned on page 2 of the above-mentioned Agenda, is not mentioned at all elsewhere in the document and plays no part in its attempt to put a shape on future substantive policy elaboration. True, Article 38’s formally binding character may constitute an elevation of earlier engagement with concerns to protect the consumer expressed by the Court and the EU legislature: though even here one must reckon with the reservations that, first, there was anyway already ample evidence of such substantive concern and that, second, in any event, the assertion that a ‘high level’ of consumer protection shall be ensured is lacking justiciability. The following analysis seeks to show how Article 38 may come to play a role in the 38.15 development of EU law. The principal argument is that Article 38 fits easily into the existing structure by which consumer protection is considered in EU law; but that it is unlikely to cause any significant alteration, if any, to the outcome of particular debates and disputes. More ambitious analysis, however, is necessarily speculative in considering the role of Article 38, than would be true of several other more high-profile provisions of the Charter. Article 38 has been of negligible significance so far in Union lawmaking. It is beginning to become visible in legislative activity, but not in radically transformative fashion. This is discussed below. By the end of 2012 it had formed a part just once in the reasoning in the judgments of the EU’s judicial institution, and even then its role was marginal. In Association belge des consommateurs test-achats ASBL v Commission the applicant, a non-profit-making organisation charged with the task of protecting the consumer, sought annulment of both a Commission Decision declaring a merger in the energy sector compatible with the common market, pursuant to Regulation 139/2004, and a refusal by the Commission to refer the case in part to the Belgian authorities, as is possible under the Regulation.5 In determining whether such an organisation is entitled to a right to be heard in the context of the relevant administrative procedure before the Commission the General Court was required to determine (inter alia) whether the merger concerned products or services used by final consumers. In finding that it did, the General Court decided that the relevant provision of procedural Regulation

4

COM (2012) 225, 22 May 2012, p 2. Case T-224/10 Association belge des consommateurs test-achats ASBL v Commission (Judgment of 12 October 2011). 5

Steve Weatherill

1009

Part I – Commentary on the Articles of the EU Charter

802/2004 should not be interpreted in restrictive terms apt to limit its application to cases in which a merger has direct effects on markets concerning ultimate consumers. Secondary effects suffice. In reaching this conclusion the Court relied, inter alia, on Article 153(2) EC, which it observed has essentially the same wording as Article 12 TFEU, its post-Lisbon successor, and it also added that ‘Article 38 of the Charter of Fundamental Rights of the European Union ... provides that EU policies must ensure a high level of consumer protection’.6 But it offered no further analysis of the Charter, and elsewhere in the judgment no further reference to the Charter is made (and the application by the consumer organisation was in any event found inadmissible). The Charter seems on this slim evidence to be supportive of a pro-consumer interpretation of relevant provisions of EU law. But, as will be explained more fully below, that has long been the Court’s practice. Article 38 was mentioned in the reference made to the Court in Eva Martín Martín v 38.16 EDP Editores SL but, as will be elaborated below, it played no part in the Court of Justice’s reasoning at all.7 Similarly, and also considered more fully below, the claims made by the applicant in Cristina Pigui v Commission included reference to Article 38 of the Charter, but the Order of the General Court ignores it.8 In addition, as at the end of 2012 there were five cases pending before the Court in which Article 38 was mentioned in the preliminary reference. In Valeri Hariev Belov v ChEZ Elektro Balgaria AD and ChEZ Raspredelenie Balgaria AD9 and Denise McDonagh v Ryanair Ltd,10 both considered more fully below, Opinions have been delivered by Advocates General (Kokott and Bot respectively) in which no weight is placed on Article 38. Asociación de Consumidores Independientes de Castilla y León,11 Cash v Guncˇaga12 and Esteban García13 have not reached the stage of an Opinion. 38.17 It is, in sum, improbable that Article 38 is apt to exert any transformative effect on EU consumer law and policy.

II. Scope of Application 38.18 No particular issues arise as regards the material or personal scope of Article 38.

III. Specific Provisions (a) Shared Competence in Consumer Protection 38.19 Article 4(2)(f) TFEU identifies consumer protection as a competence shared between the Member States and the European Union. And this sharing is reflected in the two 6 7 8 9 10 11 12 13

1010

Ibid [43]. Case C-227/08 Martín Martín v EDP Editores SL [2009] ECR I-11939. Case T-382/11 Cristina Pigui v Commission (Order of 9 July 2012). Case C-394/11 Valeri Hariev Belov v ChEZ Elektro Balgaria AD and ChEZ Raspredelenie Balgaria AD. Case C-12/11 Denise McDonagh v Ryanair Ltd. Case C-413/12 Asociación de Consumidores Independientes de Castilla y León. Case C-373/12 Cash v Guncˇaga. Case C-451/12 Esteban García.

Steve Weatherill

Art 38 – Consumer Protection

principal areas in which the development of EU consumer law and policy may be tracked and in which the impact of Article 38 falls to be assessed: 1. In the application of the Treaty provisions on free movement, where the frequent defence of national measures that purport to protect the consumer but which impede cross-border trade, integration requires the Court to make an assessment of the purpose of (national) consumer protection in the context of the wider impetus towards EU market integration which itself is designed to serve the consumer interest in better functioning markets which generate wider choice and more intense competition. 2. In the development of EU legislation affecting the consumer, which one might anticipate would be primarily the preserve of Article 169 TFEU, the Treaty provision explicitly devoted to consumer protection, but which in fact is primarily the preserve of Article 114 TFEU governing the harmonisation of laws in the service of the internal market. One may readily expect Article 38 to be used as a way to capture the constitutional 38.20 embedding of attention to consumer interest in EU law. However, although that will certainly be a presentational change, it is far less clear that the change will be of any substance. Structurally the analysis seems unlikely to alter. Consumer protection has always been part of the story of EU free movement law and EU legislative harmonisation. (b) Free Movement Law In the famous Cassis de Dijon case—more properly, Rewe-Zentrale AG v 38.21 Bundesmonopolverwaltung für Branntwein—the Court was asked to interpret (what is now) Article 34 TFEU in the context of German technical standards which were presented as measures of consumer protection but which had the effect of excluding from the German market products made in France according to different technical standards.14 The result was, in effect, a collision of competing understandings of the consumer interest—that pursued at national level by the German product specification and the interest in product market integration yielding intensified consumer choice which was driven by the EU’s free movement rules. The importance of the case is that the Court was in principle prepared, as it put it, to determine whether the German rules ‘serve a purpose which is in the general interest and such as to take precedence over the requirements of the free movement of goods, which constitutes one of the fundamental rules of the Community’.15 They did not—and so market autonomy prevailed over the choices made by the German regulator—but the Cassis ruling established a judicial readiness to test the worth of competing locations for the promotion of the consumer interest. Where EU free movement law is judged to hold the stronger cards, as in Cassis de Dijon 38.22 itself, the result is the deregulation of national markets and a rise in consumer choice. In Commission v Germany, the so-called Beer Purity case, the Court observed in this vein that the purpose of EU free movement law is to promote dynamic change in the market: consumers’ conceptions which vary from one Member State to the other are also likely to evolve in the course of time within a Member State. The establishment of the common market is, it

14 15

Case 120/78 Cassis de Dijon (n 1). Ibid [14].

Steve Weatherill

1011

Part I – Commentary on the Articles of the EU Charter

should be added, one of the factors that may play a major contributory role in that development ... the legislation of a Member State must not ‘crystallize given consumer habits so as to consolidate an advantage acquired by national industries concerned to comply with them’.16

38.23 Germany could not deny use of the name Bier to products made according to recipes different from those mandated under long-standing German laws on purity. Suppression of false claims is permitted, but otherwise the expectation is that consumers should be allowed to choose between existing and new products on the market. 38.24 An analogous preference for using EU free movement law to favour the opportunity for consumer choice to dismantle the local economic status quo emerges in Commission v France, a case concerning a restriction on the free movement of services caused by a French law requiring tourist guides to hold local accreditation: a licence requirement imposed by the Member State of destination has the effect of reducing the number of tourist guides qualified to accompany tourists in a closed group, which may lead a tour operator to have recourse instead to local guides employed or established in the Member State in which the service is to be performed. However, that consequence may have the drawback that tourists who are the recipients of the services in question do not have a guide who is familiar with their language, their interests and their specific expectations. Moreover, the profitable operation of such group tours depends on the commercial reputation of the operator, who faces competitive pressure from other tour companies; the need to maintain that reputation and the competitive pressure themselves compel companies to be selective in employing tourist guides and exercise some control over the quality of their services.17

38.25 Market integration is a policy designed to serve the consumer interest—even where the national measures that are rendered inapplicable in so far as they impede inter-state trade are themselves portrayed at national level as measures of consumer protection. 38.26 The rather few cases in which the Court has displayed a willingness to accept that market integration should be halted because the interest of the consumer is better served by retaining local regulation have tended to involve initiatives that target the protection of particular vulnerable types of consumer. In Buet the Court took a favourable view of the compatibility with Article 34 TFEU of French rules banning ‘doorstep selling’ of certain educational materials: canvassing at private dwellings exposes the potential customer to the risk of making an ill-considered purchase. To guard against that risk it is normally sufficient to ensure that purchasers have the right to cancel a contract concluded in their home. It is necessary, however, to point out that there is greater risk of an ill-considered purchase when the canvassing is for enrolment for a course of instruction or the sale of educational material. The potential purchaser often belongs to a category of people who, for one reason or another, are behind with their education and are seeking to catch up. That makes them particularly vulnerable when faced with salesmen of educational material who attempt to persuade them that if they use that material they will have better employment prospects. Moreover, as is apparent from the documents, it is as a result of numerous complaints caused by such abuses, such as the sale of out-of-date courses, that the legislature enacted the ban on canvassing at issue … In those circumstances it is permissible for the national legislature of the Member State to consider that

16 17

1012

Case 178/84 Commission v Germany [1987] ECR 1227 [32]. Case C-154/89 Commission v France [1991] ECR I-659 [19]–[20].

Steve Weatherill

Art 38 – Consumer Protection

giving consumers a right of cancellation is not sufficient protection and that it is necessary to ban canvassing at private dwellings.18

The Court is clearly impressed by the focus of the national measure on a particular group of identified vulnerable consumer. This contrasts with the type of untargeted intervention condemned as unjustified ‘over-regulation’ in Cassis de Dijon, Beer Purity and Tourist Guides. Where the threat to the consumer posed by an unfamiliar import concerns health and safety, rather than potential harm to economic interests, the Court tends to be particularly circumspect in assessing justifications advanced by the regulating state. In Eyssen it found Dutch restrictions on preservatives in cheese to be justified, even though they separated the Dutch market from other national markets in the EU, where a more permissive approach was preferred.19 The Court was satisfied that the identified risk justified the Dutch caution, even if the danger to health was not conclusively proven. Such cases are commonly examined under the label of the ‘precautionary principle’ today.20 One would readily anticipate that Article 38 of the Charter would become the subject of express reference in free movement cases of this type: it would frame the acceptance in principle that a Member State may advance justifications rooted in the protection of the consumer as a basis for restraining inter-state trade. This structural pattern, whereby the Charter would serve to confirm existing analytical approaches in free movement law, is visible in Commission v Austria.21 Austria had banned lorries over 7.5 tonnes from carrying certain goods—those with an ‘affinity to rail’—from using a section of motorway in the Inn valley. This was found to have a substantial effect on the free movement of goods between northern Europe and northern Italy. In assessing whether the intervention was justified, the Court referred to (what were then) Articles 2, 3, 6 and 152(1) EC and Articles 35 and 37 of the Charter as sources of respect for health and environmental protection. But it then found the ‘radical’ traffic ban to go too far.22 Austria had not sufficiently considered alternative less restrictive methods of achieving its ends, including applying a lower permanent speed limit in preference to the prevailing variable speed limit. The ruling demonstrates how the Charter fits easily into the familiar structure of free movement law as an amplification of the relevant material relied on to assess whether a restriction is justified. Article 38 would fit easily into this model, though as yet no case in which Article 38 has been cited concerning free movement has been decided by the Court. However, it seems improbable that Article 38 would change anything. The admittance of the protection of the economic interest of consumers into the material apt to justify inter-state trade barriers is the consequence of the Court’s ambitious elaboration of the relevant provisions of the Treaty. Such a justification is not explicitly written into Article 36 TFEU. Article 38 of the Charter makes concern for a high level of consumer protection binding across the whole sweep of EU activities, and in that sense it could be read as a prevention of judicial backtracking. And if one believes the Court has hitherto

18 19 20 21 22

Case 382/87 Buet [1989] ECR 1235. Case 53/80 Eyssen [1981] ECR 409. Eg Case C-41/02 Commission v Netherlands [2004] ECR I-11375. Case C-28/09 Commission v Austria (Judgment of 21 December 2011). Ibid [140].

Steve Weatherill

1013

38.27

38.28

38.29

38.30

38.31

Part I – Commentary on the Articles of the EU Charter

been unduly dismissive of consumer protection expressed through national measures, then one might regard Article 38 as a lever to force re-balancing. However, the structure of the analysis will not change. Nor, if one is of the view that the Court has already—in cases such as Buet and Eyssen—shown sensitivity to properly justified measures of national consumer protection, should one expect any different outcome simply because Article 38 of the Charter is cited as part of the legal analysis. (c) Legislative Consumer Protection under Article 169 38.32 The legislative route to the shaping of a consumer protection programme for the EU takes one immediately to Article 169 TFEU. As explained above, Article 169(2) envisages two different routes to consumer policy-making, one of which is (by cross-reference in Art 169(2)(a)) Article 114 TFEU on harmonisation and the other, Article 169(2)(b) TFEU, is the ‘independent’ competence, originally created under the Maastricht Treaty and so available to the EU since 1993. However, although Article 169(2)(b) does not go so far as to exclude explicitly harmonisation, nevertheless it is narrow in scope, since it confines the EU to ‘measures which support, supplement and monitor the policy pursued by the Member States’. It has been very little used in practice. A system of information on home and leisure accidents was established pursuant to Article 169.23 Directive 98/6 on the indication of prices offered to consumers is a product of Article 169.24 And Article 169 TFEU serves as the legal basis for the creation of a ‘stakeholder dialogue group’ in the area of public health and consumer protection, first set up in 2007.25 38.33 One may readily anticipate that Article 38 will prove presentationally important, and that it will adorn the Preambles to legislative proposals and adopted measures. But it seems improbable that this is any sort of change of policy or substance. In particular, the carefully written restraints on EU legislative competence found in Article 169 are not loosened by Article 38 of the Charter. (d) Legislative Harmonisation and the Consumer Interest 38.34 EU consumer policy in its legislative dimension is predominantly the product of Article 114 TFEU, which deals with, in short, harmonisation. Article 114 is not sectorspecific—it is not targeted at consumer protection (or anything else) in particular. Aside from the exceptions in Article 114(2), which are of no present relevance, any national measure may be subjected to the discipline of harmonisation, provided only that variation in national regulatory practice causes harm to the functioning of the EU’s internal market. Consumer protection is one of the areas in which some patterns of national regulatory variation have been replaced by a harmonised EU regime. In so far as national measures of consumer protection serve to impede inter-state trade but are considered justified according to the standards recognised by the Court, it falls to the legislature to intervene and select the techniques of consumer protection that shall

23 24 25

1014

Decision 3092/94 [1994] OJ L331/1; Decision 95/184 [1995] OJ L120/36. [1998] OJ L80/27. Decision 2007/602 [2007] OJ L234/13, amended in 2011, [2011] OJ C299/6.

Steve Weatherill

Art 38 – Consumer Protection

be applied across the territory of the EU. So harmonisation is about setting common standards—but that involves a sensitive choice between a range of possible approaches and techniques. Harmonisation of national consumer laws is an exercise in vertical allocation of regulatory responsibility. It locates at EU level the need for an EU understanding of the nature and purpose of consumer law. And there is a large batch of legislative material which reveals choices between and tensions among chosen EU techniques for protecting the consumer in the context of the harmonised (re-)regulation of the internal market—mandatory information disclosure, protection from unfair terms and unfair commercial practices, and so on.26 The Treaty is not blind to the inevitable association between market-making and 38.35 selection of the appropriate common techniques for regulating that market. Article 114(3) recognises that attention has to be paid to the quality of the regulatory environment which underpins the internal market. As mentioned above, it provides that ‘The Commission, in its proposals envisaged in paragraph 1 concerning health, safety, environmental protection and consumer protection, will take as a base a high level of protection, taking account in particular of any new development based on scientific facts’; and that ‘Within their respective powers, the European Parliament and the Council will also seek to achieve this objective’. Article 169(1)—also mentioned above— provides that ‘[i]n order to promote the interests of consumers and to ensure a high level of consumer protection, the Union shall contribute to protecting the health, safety and economic interests of consumers, as well as to promoting their right to information, education and to organise themselves in order to safeguard their interests’. And legislative output faithfully reflects the notion that harmonisation concerns the 38.36 establishment of common rules designed to promote market integration which also are based on appreciation of the need to determine what shall be the quality of the regulated environment—that, in particular, it shall pursue a high level of consumer protection. For example, the first Recital of Directive 2002/65 on distance marketing of consumer financial services provides that: It is important, in the context of achieving the aims of the single market, to adopt measures designed to consolidate progressively this market and those measures must contribute to attaining a high level of consumer protection, in accordance with Articles 95 and 153 of the Treaty.27

Still more striking is Directive 2005/29 concerning unfair business-to-consumer 38.37 practices in the internal market.28 This is based on Article 95 EC, now Article 114 TFEU, and its Preamble addresses consumer protection ahead of market integration. Its first Recital states that: Article 153(1) and (3)(a) of the Treaty provides that the Community is to contribute to the attainment of a high level of consumer protection by the measures it adopts pursuant to Article 95 thereof.

26 See eg H Micklitz, J Stuyck and E Terryn, Cases, Materials and Text on Consumer Law (Oxford, Hart, 2010); S Weatherill, EU Consumer Law and Policy (Cheltenham, Edward Elgar, 2013); J Basedow, ‘Freedom of Contract in the European Union’ (2008) 16 European Review of Private Law 901; F Gomez, ‘The Harmonization of Contract Law through European Rules: a Law and Economics Perspective’ (2008) 4 European Review of Contract Law 89. 27 [2002] OJ L271/16. 28 [2005] OJ L149/22.

Steve Weatherill

1015

Part I – Commentary on the Articles of the EU Charter

38.38 Only then does the explanation for the measure turn to the market-making objective lying behind harmonisation: The laws of the Member States relating to unfair commercial practices show marked differences which can generate appreciable distortions of competition and obstacles to the smooth functioning of the internal market ... These disparities cause uncertainty as to which national rules apply to unfair commercial practices harming consumers’ economic interests and create many barriers affecting business and consumers. These barriers increase the cost to business of exercising internal market freedoms, in particular when businesses wish to engage in cross border marketing, advertising campaigns and sales promotions.

38.39 Precisely the same inversion is found in other measures, for example in Directive 99/44 on certain aspects of the sale of consumer goods and associated guarantees.29 It is exactly here that Article 38 of the Charter can be expected to fit comfortably 38.40 into the pre-existing structure of EU legislative practice affecting the consumer. One would readily expect Article 38 of the Charter, which in its purpose is in alignment with Articles 114(3) and 169 TFEU (ex Arts 95(3) and 153 EC), to join them in adorning the Preambles to measures of legislative harmonisation. But, again, it is improbable that this would amount to any change of substance. The Commission’s Proposal for a Directive on alternative dispute resolution for 38.41 consumer disputes, published in November 2011 conforms to this expectation.30 Its first Recital provides: Article 169(1) and Article 169(2)(a) of the Treaty on the Functioning of the European Union (TFEU) provide that the Union is to contribute to the attainment of a high level of consumer protection through the measures adopted pursuant to Article 114 thereof. Article 38 of the Charter of Fundamental Rights of the European Union provides that Union policies shall ensure a high level of consumer protection.

38.42 But the narrative is not consistent, which suggests that this is largely rhetorical flourish rather than operationally significant reference to Article 38. Directive 2011/83 on consumer rights31 does not mention Article 38 at all—probably because even though adopted after the entry into force of the Treaty of Lisbon in December 2009 its drafting history pre-dates that landmark.32 It contains in its 66th (and penultimate) Recital only the conventional anodyne assertion that: ‘This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union.’ The Court has embraced this constitutional linkage between market-making and the 38.43 quality of the (re-)regulated environment. In Germany v Parliament and Council, the so-called ‘Second Tobacco Advertising case’, it found that Directive 2003/33 on the harmonisation of laws relating to the advertising and sponsorship of tobacco products was valid, rejecting German complaints about (inter alia) want of legal base in the Treaty.33

29

[1999] OJ L171/12. COM (2011) 793. Formal adoption in 2013 looks likely. 31 [2011] OJ L304/64. 32 The Commission adopted a proposal for a Directive on Consumer Rights in October 2008, COM (2008) 614, but the finally adopted Directive is a much attenuated version: see S Weatherill, ‘The Consumer Rights Directive: how and why a quest for “coherence” has (largely) failed’ (2012) 49 Common Market Law Review 1279. 33 Case C-380/03 Germany v Parliament and Council [2006] ECR I-11573. 30

1016

Steve Weatherill

Art 38 – Consumer Protection

The Directive, the Court concluded, was properly based on (what is now) Article 114 TFEU. What is more, the Court explained, once a sufficient market-making contribution is identified to locate the measure as a constitutionally secure product of Article 114, the Union legislature ‘cannot be prevented from relying on that legal basis on the ground that public health protection is a decisive factor in the choices to be made’. And it cited in support Articles 152(1) and 95(3) EC, which are now Articles 168(1) and 114(3) TFEU.34 This acceptance that setting a harmonised standard involves attention to the needs of both market integration and health protection led the Court to explain that accordingly the measures chosen by the EU legislature may consist in requiring all the Member States to authorise the marketing of the product or products concerned, subjecting such an obligation of authorisation to certain conditions, or even provisionally or definitively prohibiting the marketing of a product or products.35

So it is constitutionally feasible for the EU to impose a harmonised ban on unsafe 38.44 products as part of a broader regime designed to open up the EU market for safe products. The same logic dictates that Directive 2005/29 bans unfair business-to-consumer practices in the internal market, thereby to open up the market for fair practices which may lawfully be exported across the territory of the whole EU.36 And Directive 93/13, another measure based on (what is today) Article 114 TFEU, prohibits use of unfair terms in consumer contracts across the whole EU, thereby to create a common legal regime that will facilitate sale of goods and supply of services throughout the internal market.37 Precisely how intrusive the EU rules shall be is determined through the political debate within the legislative process. Appreciation of the substance of the EU’s legislative commitment to consumer protection involves inquiry into the extent to which the chosen harmonised standards represent an adequate reflection of the need to protect the consumer from market imperfections and inequities. The allegation that the EU’s harmonisation programme carries an emphasis on market-making which subverts protective and distributive aspects carefully inscribed over time into national law has been made with particular force where the EU turns its sights on national (consumer) contract law.38 There lurk competing ‘rationalities’.39 This inquiry escapes the scope of this contribution. The structural point is the key here. There would no logical difficulty in lodging what was then Article 153 EC and is now Article 169 TFEU on consumer protection within the analysis presented by the Court in the Second Tobacco Advertising case (above). And equally Article 38 of the Charter could be cited alongside the several other relevant provisions in underlining the proper role of a high level of consumer protection in the setting of EU harmonised standards. Once again, the message holds 34

Ibid [9], [40]. Ibid [43]. See similarly Cases C-154/04 and C-155/04 Alliance for Natural Health [2005] ECR I-6451 [33]; Case C-210/03 Swedish Match [2004] ECR I-11893 [34]. 36 [2005] OJ L149/22. 37 [1993] OJ L95/29. 38 Eg H-W Micklitz, ‘The expulsion of the concept of protection from the consumer law and the return of social elements in the civil law: a bittersweet polemic’ (2012) 35 Journal of Consumer Policy 283; M Hesselink, ‘European Contract Law: a Matter of Consumer Protection, Citizenship, or Justice?’ (2007) 15 European Review of Private Law 323; R Sefton-Green, ‘Choice, Certainty and Diversity: Why More is Less’ (2011) 7 European Review of Contract Law 134. 39 R Michaels, ‘Of Islands and the Ocean: The Two Rationalities of European Private Law’ in R Brownsword, H-W Micklitz, L Niglia and S Weatherill (eds), The Foundations of European Private Law (Oxford, Hart Publishing, 2011). 35

Steve Weatherill

1017

Part I – Commentary on the Articles of the EU Charter

that Article 38 could be integrated into the legal analysis without any need for structural change, and likely without altering the outcome either. (e) Justiciability of the Norm 38.45 Article 52(5) of the Charter directs that ‘The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers’ and that they ‘shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality’. And, as encountered above, the Explanation on Article 38 holds that it sets out ‘principles’. However, the likelihood of aggressive judicial intervention is very low. 38.46 It would in principle be possible to argue that an EU legislative measure is invalid for failure to meet the requirements set out in Articles 12, 114(3) and 169 TFEU and Article 38 of the Charter—that it fails to achieve a high standard of consumer protection. In practice such an outcome is improbable. The commitments made to consumer protection lack the necessary precision to provide the basis for judicial intervention into legislative choices. The Court has made clear that the direction to pursue a high level of consumer 38.47 protection does not mean that the finally agreed harmonised norm must comply with the highest standard found among the Member States. The Court ruled in the Deposit Guarantee case that the mere fact that a measure of harmonisation may require a diminution in national standards in some Member States is not a basis for annulment of the measure.40 A degree of political compromise is inevitable, and the Court is alert to leave space for its shaping. However, it is at least possible to imagine that were the Court to find a manifest legislative neglect to take into consideration the protective quality of the harmonised rule, or a manifest error of appraisal regarding the applicable conditions, then it would be prepared to annul the adopted act.41 However, provided that the Union legislature is sufficiently conscientious to ensure citation of the relevant provisions on consumer protection in the Preamble to adopted legislation, it seems improbable that the Court would find any such measure invalid. Article 38 of the Charter would not change the basic assumption that laces the ruling in Deposit Guarantee that it is constitutionally possible for EU measures of harmonisation to cause some depreciation in existing standards of consumer protection in some Member States. (f) Commercial Freedom and Consumer Protection 38.48 EU legislation is periodically challenged for interference with commercial freedom. Here too Article 38 is apt to play a role in the legal analysis, albeit that there are as yet no illustrations in the Court’s case. An example is provided by Deutsches Weintor eG v Land Rheinland-Pfalz, in which Article 38 was not mentioned—but readily could have been.42 Regulation 1924/2006 harmonises rules governing nutrition and health claims made

40 41 42

1018

Case C-233/94 Germany v Parliament and Council (deposit guarantees) [1997] ECR I-2405. Cf Case C-284/95 Safety Hi-Tech v S & T [1998] ECR I-4301 [37]. Case C-544/10 Deutsches Weintor eG v Land Rheinland-Pfalz (Judgment of 6 September).

Steve Weatherill

Art 38 – Consumer Protection

about food. Pursuant to the Regulation a German public authority prohibited use of the phrase ‘easily digestible’ in connection with wines. This was challenged by a German wine growers’ cooperative. In a preliminary ruling, the Court of Justice first found that the matter concerned a ‘health claim’ which fell within the scope of the Regulation. It then turned to consider whether the restriction placed on the cooperative was compatible with the first subparagraph of Article 6(1) TEU, and proceeded to examine the Charter. On the one hand, Article 15(1) of the Charter grants the right to engage in work and to pursue a freely chosen or accepted occupation and Article 16 guarantees the freedom to conduct a business. On the other, Article 35 of the Charter requires that a high level of human health protection be ensured in the definition and implementation of EU policies and activities. The Court was therefore required ‘to reconcile the requirements of the protection of those various fundamental rights protected by the Union legal order’ and to strike ‘a fair balance between them’.43 The Court emphasised that alcoholic beverages ‘represent a special category of foods that is subject to particularly strict regulation’44 and cited existing case law in which national restrictions on advertising of such products have been held to be compatible with EU law despite their trade-restrictive effect.45 It added that It is essential that all claims in relation to such beverages are entirely unambiguous, so that consumers are in a position to regulate their consumption while taking into account all the inherent dangers associated with such consumption, and in so doing to protect their health effectively.46

This led the Court to observe that the problem with the claim made, which highlighted 38.49 only the easy digestion of the wine, was its likely encouragement of consumption with increased risks for consumers’ health inherent in excessive consumption of alcohol, and that consequently ‘the prohibition of such claims is warranted in the light of the requirement to ensure a high level of health protection for consumers’.47 This heavy reliance placed on Article 35 of the Charter therefore brought the Court 38.50 to the conclusion that this legislative regime was based on a reconciliation of the several fundamental rights at stake, striking a fair balance between them. It was compatible with EU law. Article 38 was not cited, but it easily could have been. It would have fitted within the structure of the analysis. However, it would have done no more than strengthen the finding already reached by the Court that the EU’s rules were lawful. (g) Judicial Interpretation of the Legislative Acquis affecting the Consumer The Court’s role in the legislative elaboration of EU consumer law has not been con- 38.51 fined solely to questions of validity. It has frequently asserted that as a matter of EU law the interest in securing a high level of consumer protection shall guide interpretation of the acquis. Here too Article 38 seems likely to serve only to confirm such an approach.

43

Ibid [47], citing the seminal ruling in Case C-275/06 Promusicae [2008] ECR I-271. Ibid [48]. 45 Eg Joined Cases C-1/90 and C-176/90 Aragonesa de Publicidad Exterior and Publivía [1991] ECR I-4151; Case C-262/02 Commission v France [2004] ECR I-6569; Case C-429/02 Bacardi France [2004] ECR I-6613. 46 Case C-544/10 Deutsches Weintor (n 42) [50]. 47 Ibid [52]. 44

Steve Weatherill

1019

Part I – Commentary on the Articles of the EU Charter

38.52

In Simone Leitner the Court adopted a wide interpretation of Directive 90/314 on package travel, insisting that it covers compensation for non-material damage suffered by consumers, even though this matter was not explicitly addressed in the text of the Directive.48 Part of the Court’s reasoning was that compensation for non-material damage arising from the loss of enjoyment of the holiday ‘is of particular importance to consumers’.49 In similar vein in Quelle AG v Bundesverband, German sales law was found to provide inadequate protection to the consumer because it permitted the supplier to require the consumer who has a non-conforming product replaced to pay an indemnity to cover use, in contradiction to the Court’s reading of Directive 99/44—which, however, did not explicitly address this issue.50 The Court stated that: That interpretation is also consistent with the purpose of the Directive which, as stated in the first recital in the preamble thereto, is to ensure a high level of consumer protection.51

38.53 There is admittedly something unsettling about the Court’s readiness to interpret Directives in this manner. It is not entirely predictable and it is troubling from the perspective of legal certainty. In so far as the reach of EU legislation is being in effect extended by such boldness in the case law, one must reckon with a kind of ‘judicial competence creep’.52 Be that as it may, the Court’s approach seems entrenched, and Article 38 is likely to be treated as confirmation of it. Once again Article 38 does not promise any structural change to the applicable legal principles, but rather fits comfortably within them. And there are already hints of this pattern in the very limited amount of case law that has so reached the Court of Justice in which Article 38 has been invoked. 38.54 In Denise McDonagh v Ryanair Ltd an Irish court invited the Court of Justice to define the scope of the obligation to provide care for passengers in the event of cancellation of a flight which is imposed on air carriers by Regulation 261/2004.53 The background to the dispute was the notoriously disruptive eruption of the Eyjafjallajökull volcano in Iceland in the spring of 2010. The reference directed attention only to Articles 16 and 17 of the Charter and Advocate General Bot, in his Opinion of 22 March 2012, followed suit. He mentioned Article 38 only en passant and placed no weight on it: As the French Government has noted, Article 169(1) TFEU provides that the European Union must promote the interests of consumers and ensure a high level of consumer protection … Similarly, Article 38 of the Charter provides that EU policies must ensure a high level of consumer protection. Furthermore, as observed in point 37 above, Regulation No 261/2004 seeks to ensure a high level of protection for air passengers, regardless of whether they are denied boarding or whether their flight is cancelled or delayed, since they are all caused similar serious trouble and inconvenience connected with air transport.

48

Case C-168/00 Simone Leitner [2002] ECR I-2631. Ibid [22]. 50 Case C-404/06 Quelle AG v Bundesverband [2008] ECR I-2685. 51 Ibid [36]. 52 See eg S Weatherill, ‘Interpretation of Directives: the Role of the Court’, in A Hartkamp et al (eds), Towards a European Civil Code (Alphen aan der Rijn, Wolters Kluwer, 2011); J Basedow, ‘The Court of Justice and Private Law: Vacillations, General Principles and the Architecture of the European Judiciary’ (2010) 18 European Review of Private Law 443; C Mak, ‘Hedgehogs in Luxembourg? A Dworkinian Reading of the CJEU’s Case Law on principles of Private Law and Some Doubts of the Fox’ (2012) 20 European Review of Private Law 323. 53 Case C-12/11 Denise McDonagh v Ryanair Ltd. 49

1020

Steve Weatherill

Art 38 – Consumer Protection

The Court has not yet ruled, but the Advocate General’s approach fully conforms to an 38.55 expectation that Article 38 will find a place in the legal analysis alongside Article 169(1) in asserting the EU’s commitment to a high level of consumer protection, but that it will engineer no substantive change. Eva Martín Martín v EDP Editores SL promised much more than it delivered, as an 38.56 interrogation of the role of Article 38 of the Charter.54 The reference, made by a Spanish court in Salamanca, was appealingly short and precise, and included Article 38: Must Article 153 EC, in conjunction with Articles 3 EC and 95 EC, Article 38 of the Charter of Fundamental Rights of the European Union, and Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises, specifically Article 4 thereof, be interpreted as meaning that a court seised of an appeal against a judgment given at first instance may, of its own motion, declare a contract which falls within the scope of that directive void, where no plea of nullity was raised at any point by the defendant consumer when submitting a defence to the order for payment procedure, at the hearing, or during the appeal?

The background is that the Court has on several occasions been asked to address matters 38.57 of (in short) national procedural law in the context of the application of national measures implementing EU Directives harmonising laws designed to protect the consumer. It has shown itself prepared to address matters that lie beyond the explicit reach of the EU legislative acquis, and has used the generally applicable EU law principles of equivalence and effectiveness to assert a degree of supervision of national procedural choices. In Cofidis SA, for example, a case arising in connection with Directive 93/13 on unfair terms, the Court ruled that the Directive precludes a national provision which, in proceedings brought by a seller or supplier against a consumer on the basis of a contract concluded between them, prohibits the national court, on expiry of a limitation period, from finding, of its own motion or following a plea raised by the consumer, that a term of the contract is unfair.55 Banco Español de Crédito v Joaquín Calderón Camino concerns a Spanish rule precluding a court before which an application for repayment of a loan has been made against a consumer from assessing whether a term concerning interest on late payments is unfair, where the consumer has not lodged an objection.56 On the one hand that is likely to harm consumers; on the other, the rule doubtless helps to achieve speedy and efficient administration of civil justice. The Court found that the Spanish rule did not meet the requirements of effectiveness under EU law, and so national law must therefore yield to EU law. But the fine margins involved in such adjudication are well illustrated by appreciation that in her Opinion in the case, Advocate General Trstenjak had emphasised the virtue of national autonomy and had proposed that the Court should find no breach of the effectiveness principle. Eva Martín Martín v EDP Editores SL concerned Directive 85/577, not Directive 38.58 93/13, and concerned the role of the national court in circumstances where the trader has failed to advise the consumer of the right to withdraw from a contract within a specified period, as mandated by the Directive. It raises similar questions about the depth of EU law’s intrusion into national procedural autonomy, here in the particular

54 55 56

Case C-227/08 Martín Martín (n 7). Case C-473/00 Cofidis SA [2002] ECR I-10875. Case C-618/10 Banco Español de Crédito v Joaquín Calderón Camino (Judgment of 14 June 2012).

Steve Weatherill

1021

Part I – Commentary on the Articles of the EU Charter

context of a consumer’s failure to raise the point in court proceedings. The Court delivered a relatively short judgment and concluded that the Directive does not preclude a national court from declaring, of its own motion, that a contract falling within the scope of that Directive is void on the ground that the consumer was not informed of his right of cancellation, even though the consumer at no stage pleaded that the contract was void before the competent national courts. But, apart from simple repetition of the reference made by the national court, it did not mention Article 38 of the Charter at all. The Opinion of Advocate General Trstenjak inquires more deeply than the Court into the question of whether one should interpret the Directive as placing an obligation on a national court to make inquiries, rather than simply not precluding it from doing so, and she too at least mentioned Article 38 of the Charter. She correctly observes that at the relevant time the Charter did not form part of the (then) Community legal order, but added that following existing practice, ‘the provisions of the Charter can therefore be used as an aid to interpreting the provisions of Directive 85/577, but it will not be possible to rely on them in answering the question referred’.57 But she made no further use of Article 38 at all, save only to cite it without further comment in a footnote attached to the sentence ‘The aim of a high level of consumer protection is therefore the same in the case of Directives 93/13 and 87/102 as in the case of Directive 85/577.’58 38.59 Association belge des consommateurs test-achats ASBL v Commission is, as mentioned above, the only case in which the Court has made any play of Article 38 in interpreting EU law—though even here the use made is marginal and does not at all suggest any different direction from that which would have been anticipated in the absence of reliance on Article 38.59 38.60 In Valeria Marcinová, a case lodged before the Court on 23 January 2012,60 a Slovak court asked: Do Articles 38 and 17 of the Charter of Fundamental Rights of the European Union in conjunction with Article 169 TFEU preclude the application of national legislation under which, on the basis of an agreement on deductions from salary, such deductions are made from the consumer in the absence of any judicial control of unfair clauses and according to which the consumer has no direct possibility of annulling those deductions?

38.61 The matter was subsequently abandoned and the reference withdrawn.61 There seems no particular reason to suppose Article 38 of the Charter would have played any role in disposing of such a case beyond that expected under Article 169 TFEU, but it is likely that such reference to Article 38 in consumer cases will become normal. Similar observations attach to the reference for a preliminary ruling from the Komisia 38.62 za zashtita ot diskriminatsia in Bulgaria which was lodged on 25 July 2011: Valeri Hariev Belov v ChEZ Elektro Balgaria AD and ChEZ Raspredelenie Balgaria AD.62 This is a rather quirky case concerning rules governing the installation of electricity meters, in which one of the questions asked by the referring Bulgarian court combines Article 38 of the

57 58 59 60 61 62

1022

Ibid [44]. Ibid [72]. Case T-224/10 Association belge des consommateurs test-achats (n 5). Case C-30/12 Valeria Marcinová. Order of 4 October 2012. Case C-394/11 Valeri Hariev Belov (n 9).

Steve Weatherill

Art 38 – Consumer Protection

Charter with several Directives on energy supply to ask whether the final consumer of electricity enjoys an entitlement to check meter readings regularly. The background lies in a practice in some districts of the Bulgarian city of Montana of attaching electricity meters to electricity poles at a height of 7 metres, which renders them inaccessible to consumers, while elsewhere electricity meters are installed at a much lower and accessible maximum height of 1.70 metres. The districts in question are inhabited not by unusually tall people, but rather primarily by people belonging to the Roma community. Advocate General Kokott, in an Opinion published on 20 September 2012, chose to avoid entirely Article 38 of the Charter, preferring instead to focus on the application of Directive 2000/43 to such practices, examining issues pertaining to discrimination and justification rooted in prevention of fraud. Three preliminary references mentioning Article 38 are pending before the Court 38.63 and have not yet elicited an Advocate General’s Opinion. Two of them, Asociación de Consumidores Independientes de Castilla y León63 and Esteban García 64 emanate from the same industrious court in Salamanca that made the reference in Eva Martín Martín.65 Both invite the Court to interpret Directive 93/13 on unfair terms in the light of Article 38 as well as relevant Treaty provisions, including Article 169 TFEU, in relation to matters of civil procedure. Cash v Guncˇaga,66 a reference from a Slovak court, also concerns Directive 93/13 and cites Articles 38 and 47 of the Charter in asking whether a court examining a contract term should take into account a ruling of a court in another Member State which concerns comparable factual circumstances. Article 38 of the Charter is becoming common currency in consumer law cases. The 38.64 impression is that Article 38 is likely to become a regular visitor to the judgments of the Court involving the interpretation of legislative material affecting the consumer. It will strengthen an interpretative preference to adopt a pro-consumer approach. But that has long been embedded within EU law, and so Article 38 of the Charter does not seem apt to add anything of substance to the directions already found in Articles 12, 114(3) and 169 TFEU. And, to conclude in sober fashion, one should be aware of the limits of the power of 38.65 the interpretative obligation in favour of the consumer developed by the Court. El Corte Inglés SA v Cristina Blázquez Rivero67 concerned the application of Directive 87/102 on consumer credit before a national (Spanish) court. The Court had pressed on it the argument that it should abandon its refusal to treat Directives as incapable of horizontal direct effect in the wake of the insertion into the Treaty of a commitment to a high level of consumer protection by the (then recent) amendments made by the Maastricht Treaty. The Court was not moved. It treated the predecessor to the current Article 169 as, first, tying the EU to contribute to attaining a high level of consumer protection and, second, granting the EU a defined legislative competence. But it would go no further: In so far as it merely assigns an objective to the Community and confers powers on it to that end without also laying down any obligation on Member States or individuals, Article 129a

63 64 65 66 67

Case C-413/12 Asociación de Consumidores Independientes de Castilla y León (n 11). Case C-451/12 Esteban García (n 13). Case C-227/08 Martín Martín (n 7). Case C-373/12 Cash v Guncˇaga (n 12). Case C-192/94 El Corte Inglés SA v Cristina Blázquez Rivero [1996] ECR I-1281.

Steve Weatherill

1023

Part I – Commentary on the Articles of the EU Charter

[now Article 169 TFEU] cannot justify the possibility of clear, precise and unconditional provisions of Directives on consumer protection which have not been transposed into Community law within the prescribed period being directly relied on as between individuals.68

38.66 As was similarly evident above in examining the limited justiciability of the Treaty commitments to consumer protection as a basis for judicial review of adopted legislation, there are no sharp edges to the relevant EU provisions which are apt to achieve a radical alteration in existing law. Article 38 of the Charter may feasibly be employed in order to seek to persuade the Court to change its mind and strengthen the legal protection of the consumer by embracing the horizontal direct effect of Directives. But if the Court does rely on Article 38 in making that shift, it is likely that Article 38 will have been treated as a convenient cover for a change of mind within the Court. On its own, Article 38 is too soft an obligation to mandate such a change. Similarly cautious observations are properly directed at the right to an effective remedy stipulated by Article 47. 38.67 Admittedly the damage to the consumer interest done by the Court’s refusal to grant horizontal direct effect to Directives is to some extent mitigated by its recognition that an individual, including a consumer, may seek compensation in the event that a Member State fails to put in place the envisaged regime. The Court has made this plain in (inter alia) cases involving national mishandling of the consumer acquis,69 and this approach confirms that these measures of legislative harmonisation are concerned not only with integration of markets but also their (re-)regulation. Moreover, it is possible in principle for a consumer to claim compensation before a national court for harm suffered where there is a causal relationship between that harm and a practice prohibited by the Treaty competition rules70 and perhaps also, though not uncontroversially, by other Treaty rules as well.71 It should, however, be grasped that obstacles to effective access to justice loom large where consumers are invited to pursue such claims for compensation. The rejected option of simply allowing invocation of Directives in proceedings involving private parties would be a far more convenient method of advancing the consumer interest in the EU.

IV. Limitations 38.68 No explicit limits are to be found in Article 38. It is, however, pertinent to point out that its direction to ensure a ‘high level’ of consumer protection does not lay down an absolute standard. As explained in section D.III, Member States may be required to set aside measures of consumer protection in so far as they constitute obstacles to interstate trade which are not justified under EU law. Moreover, although an EU legislative measure may in principle be challenged for failure to attain the stipulated high level of

68

Ibid [20]. Eg Case C-91/92 Paola Faccini Dori [1994] ECR I-3325 (Dir 85/577 on ‘doorstep selling’); Case C-178/94 Erich Dillenkofer [1996] ECR I-4845 (Dir 90/314 on package travel). 70 Joined Cases C-295/04 to C-298/04 Vincenzo Manfredi [2006] ECR I-6619. 71 Cf N Reich, ‘Horizontal Liability in EC law: Hybridization of remedies for compensation in case of breaches of EC rights’ (2007) 44 Common Market Law Review 705. K Apps, ‘Damages claims against trade unions after Viking and Laval’ (2009) 34 European Law Review 141; Leczykiewicz, D, ‘The Constitutional Dimension of Private Law Liability Rules in the EU’ in D Leczykiewicz and S Weatherill (eds), The Involvement of EU Law in Private Law Relationships (Oxford, Hart Publishing, 2012). 69

1024

Steve Weatherill

Art 38 – Consumer Protection

consumer protection, it is improbable that the Court would interfere with a properly reasoned legislative choice. In particular it has made plain that the direction to pursue a high level of consumer protection does not mean that the finally agreed harmonised norm must comply with the highest standard found among the Member States.72

V. Remedies No specific issues arise in connection with remedies for violation of Article 38: orthodox 38.69 patterns of supervision both at EU level and through proceedings initiated before national courts are in principle available. The principal difficulty, elaborated above, is that the nature of Article 38 dictates that it will be rare indeed to succeed in demonstrating that it has been violated. Its commitment to consumer protection lacks the necessary precision to provide the basis for judicial intervention into legislative choices. As far as private parties are concerned, one should also appreciate that the restric- 38.70 tive rules governing standing of non-privileged applicants make it improbable that a challenge at EU level would even be admissible in a case concerning consumer interests, given that the impact of an EU measure is typically diffused widely among many affected individuals.

E. Evaluation Article 38 of the Charter is best summarised as conveying an immediate impression 38.71 that is much more significant than is probably likely to emerge as the practical reality. It appears to elevate Union commitment to ‘a high level of consumer protection’ to a constitutionally superior position, engaging the discourse of fundamental rights. However, the substance of Article 38 is already to be found in Articles 12, 114(3) and 169 TFEU. These provisions have played their part in the shaping of EU consumer law—in judging national barriers to trade, in developing EU legislation and in the interpretation of that legislation. Article 38 of the Charter fits easily into the existing structure by which consumer protection is considered in EU law, but it is unlikely to cause any significant, if any, alteration to the outcome of particular debates. Article 38 is likely to prove simply one more, doubtless regularly visible, statement of the EU’s role in pursuing a high level of consumer protection.

72

Case C-233/94 Germany v Parliament and Council (deposit guarantees) (n 40).

Steve Weatherill

1025

Article 39 Article 39 Right to Vote and to Stand as a Candidate at Elections to the European Parliament 1. Every citizen of the Union has the right to vote and to stand as a candidate at elections to the European Parliament in the Member State in which he or she resides, under the same conditions as nationals of that State. 2. Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot.

Text of Explanatory Note on Article 39 Article 39 applies under the conditions laid down in the Treaties, in accordance with Article 52(2) of the Charter. Article 39(1) corresponds to the right guaranteed in Article 20(2) of the Treaty on the Functioning of the European Union (cf. also the legal base in Article 22 of the Treaty on the Functioning of the European Union for the adoption of detailed arrangements for the exercise of that right) and Article 39(2) corresponds to Article 14(3) of the Treaty on European Union. Article 39(2) takes over the basic principles of the electoral system in a democratic State.

Select Bibliography LFM Besselink, ‘Case C–145/04, Spain v. United Kingdom, judgment of the Grand Chamber of 12 September 2006; Case C-300/04, Eman and Sevinger, judgment of the Grand Chamber of 12 September 2006; ECtHR (Third Section), 6 September 2007, Applications Nos 17173/07 and 17180/07, Oslin Benito Sevinger and Michiel Godfried Eman v. the Netherlands (Sevinger and Eman)’, (2008) 3 Common Market Law Review 787–813. HUJ d’Oliveira, ‘European Citizenship: Its Meaning, Its Potential’, in R Dehousse (ed), Europe after Maastricht: An Ever Closer Union? (Munich, Law Books in Europe, 1994). Y Mény (ed), Building Parliament: 50 years of European Parliament History, (Luxembourg, Office for Official Publications of the European Communities, 2009). S Pinder, ‘Steps Towards a Federal European Parliament’ (2000) 35 International Spectator: Italian Journal of International Affairs 13–20. F Piodo, Towards direct elections to the European Parliament (Brussels, European Communities, 2009). P Reuter, La Communauté européenne du charbon et de l’acier (Paris, Librarie Générale de Droit et de Jurisprudence, 1953). R Rubio-Marin, ‘Transnational Politics and the Democratic Nation-State: Normative Challenges of Expatriate Voting and Nationality Retention of Emigrants’, (2006) 81 New York University Law Review 190. J Shaw, ‘Sovereignty at the Boundaries of the Polity’, in N Walker (ed), Sovereignty in Transition (Oxford, Hart Publishing, 2003) 461–500. ——, The Transformation of Citizenship in the European Union: Electoral Rights and the Restructuring of Political Space (Cambridge, CUP, 2007). ——, ‘Citizenship: contrasting dynamics at the interface of integration and constitutionalism’, in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford, OUP, 2011) 575–609. —— and S Day, ‘European Union electoral rights and the political participation of migrants in host polities’ (2002) 8 International Journal of Population Geography 183–99.

Part I – Commentary on the Articles of the EU Charter

A. Field of Application of Article 39 39.01 Article 39 applies to the institutions, bodies, offices and agencies of the Union and, more significantly in this context, to the Member States, in fulfilling their pre-existing obligations under Union law with respect to the guaranteeing of European parliamentary electoral rights.1 39.02 Specifically, Article 39 applies to Member States in their implementation of the Direct Elections Act 1976.2 Once agreed to by the Member States, the Direct Elections Act could only take effect once implemented at the national level. The Act provides for free, secret, direct and universal elections to the European Parliament. In the absence of a uniform electoral procedure, which has not thus far been agreed upon,3 Member States may apply their own electoral procedure to enfranchise citizens of the Union in European Parliament elections within the fairly loose confines set out in the Direct Elections Act.4 Article 39 also applies to Member States with respect to their transposition of Council 39.03 Directive 93/109/EC,5 which lays down detailed arrangements for, inter alia, the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals.

B. Interrelationship of Article 39 with Other Provisions of the Charter 39.04 Article 39 of the Charter does not refer explicitly to any other provisions of the Charter. However, it is closely related to Article 40 (on the right to vote and to stand as a candidate at municipal elections) within the broad scheme of Union citizenship, and is also connected with Article 12(2), which governs the role of political parties in the European Union. Furthermore, Article 39 is also indirectly interrelated with some of the more general provisions of the Charter to the extent that it comes within their field of application. 1

Charter of Fundamental Rights of the European Union, Arts 51 and 52 generally (2012/C 326/02). The Council Decision and Act concerning the election of the representatives of the European Parliament by direct universal suffrage [1976] OJ C27/5. 3 Although there has been no agreement on a uniform electoral procedure, there has been a steady convergence of electoral systems in the period since the first direct elections of the European parliament in 1979: for example, the universal adoption of proportional representation and abolition of the dual mandate of Members of the European Parliament to the European Parliament and their respective national Parliaments in 2002 and the formal establishment of political parties at EU level in 2003/4. 4 The Direct Elections Act stipulates, inter alia, that: elections are to be by direct universal suffrage and should be free and secret; members of the European Parliament are to be elected on the basis of proportional representation, using the list system or the single transferable vote; in accordance with its specific national situation, each Member State may establish constituencies for elections to the European Parliament or subdivide its electoral area in a different manner, without generally affecting the proportional nature of the voting system; Member States may set a minimum threshold for the allocation of seats; and each Member State may set a ceiling for candidates’ campaign expenses. 5 Directive 93/109/EC, [1993] OJ L329/34. See also Directive 2013/1/EU, [2013] OJ L26/27, discussed at n 55 below. 2

1028

Lamin Khadar and Jo Shaw

Art 39 – Right to Vote and Stand: European Parl

(a) The Right to Vote and to Stand as a Candidate at Municipal Elections As will be discussed in more detail below, although the first direct European Parliament 39.05 elections were held in 1979, Union citizens did not have any explicitly articulated and justiciable electoral rights, in the Treaties or elsewhere in EU law, until the 1992 Maastricht Treaty. When a limited range of EU electoral rights were finally instituted in 1993 along with the status of ‘Union citizenship’, this represented for the EU institutions, especially the Commission and the European Parliament, the culmination of a longstanding debate.6 What is interesting is that the right to equal treatment for non-national Union citizens voting and standing as candidates in European Parliament elections (now Arts 20(2)(b) and 22(2) TFEU) was introduced together with, and under the same provision as, a right to equal treatment for non-national Union citizens voting in municipal elections (now Arts 20(2)(b) and 22(1) TFEU). The explanation for this arrangement can be discerned by reference to what can be described as the ‘twin roots’ of the Maastricht Treaty electoral rights framework.7 These have been described by D’Oliveira as ‘the emergence of a Community or Union collectivity’ in tandem with the extension of the ‘principles of democracy’ within the institutions of the Union.8 On this view, the Maastricht Treaty electoral rights framework emerged out of the twinning, by the Parliament, of two issues, ie on the one hand, the development of free movement rights under the Treaty and the desire promote the political integration of EU citizens who had taken advantage of their free movement rights and, on the other hand, the struggle towards greater formal democratisation of the institutions of European integration through increased popular participation. From this perspective, Articles 39 and 40 of the Charter are historically connected 39.06 within the schemes of European integration and institutional democratisation as articulated through the concept of Union citizenship and its associated rights in the Treaties. (b) Political Parties of the Union The idea of political parties at Union level has been invested with the most meaning in 39.07 the context of the European Parliament, and, consequently, Articles 12(2) and 39 CFR are intimately related. (c) General Charter Provisions with which Article 39 is Indirectly Related Article 39 CFR is also interrelated with the general provisions of the Charter, at Articles 51 39.08 to 53, to the extent that its application must be in accordance with such provisions.9

6 J Shaw, ‘Sovereignty at the Boundaries of the Polity’, in N Walker (ed), Sovereignty in Transition (Oxford, Hart Publishing, 2003) 461–500. 7 Ibid. 8 HUJ d’Oliveira, ‘European Citizenship: Its Meaning, Its Potential’, in R Dehousse (ed), Europe after Maastricht: An Ever Closer Union? (Munich, Law Books in Europe, 1994) 142–43. See also J Shaw and S Day, ‘European Union electoral rights and the political participation of migrants in host polities’ (2002) 8 International Journal of Population Geography 183–99. 9 By way of example, in Case C-145/04 Spain v UK [2006] ECR I-07917, both the UK and the European Commission relied on Art 53 CFR to justify the UK extension of European parliamentary voting rights beyond EU citizens to include also so-called ‘Qualifying Commonwealth Citizens’.

Lamin Khadar and Jo Shaw

1029

Part I – Commentary on the Articles of the EU Charter

C. Sources of Article 39 Rights I. ECHR 39.09 Article 3, Protocol 110 of the European Convention on Human Rights (ECHR) (1950) provides that: The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

39.10 Article 3 was initially understood as merely recognising the principle of universal suffrage and creating an obligation on states to hold free elections (rather than conferring any substantive rights).11 However, in later years, the position changed and the European Commission of Human Rights (EComHR) began to interpret Article 3 as implying, within the framework of universal suffrage, ‘certain individual rights, such as the right to vote and the right to stand for election’.12 However, there was never any illusion that such rights were absolute. Some of the early jurisprudence on this point is instructive: in the 1974 case, X v the Netherlands,13 the EComHR noted that: [although] the Commission … has ruled that the undertaking of the Contracting Parties to hold free elections implies the recognition of universal suffrage … it does not follow that Article 3 accords the right unreservedly to every single individual to take part in elections. It is indeed generally recognised that certain limited groups of individuals may be disqualified from voting, provided that this disqualification is not arbitrary. [Emphasis added.]

39.11 This caveat to the right to universal suffrage was echoed by the European Court of Human Rights in Mathieu-Mohin and Clerfayt v Belgium,14 where the Court made plain that: [t]he rights in question are not absolute. Since Article 3 recognises them without setting them forth in express terms, let alone defining them, there is room for implied limitations … In their internal legal orders the Contracting States make the rights to vote and to stand for election subject to conditions which are not in principle precluded under Article 3 … They have a wide margin of appreciation in this sphere. [Emphasis added.]

39.12 The debate over just how wide this ‘margin of appreciation’ actually is, in practice, has continued to the current day and will be discussed in more detail below.

II. UN Treaties 39.13 While the UN treaties will, in practice, have little bearing on the interpretation of Article 39 CFR, a lot can be learned about the genesis and historical scope of the principle

10

Protocol 1 was signed in Paris on 20 March 1952. DJ Harris, E Bates, M O’Boyle, C Warbrick and C Buckley, Law of the European Convention on Human Rights (Oxford, OUP, 2009) 712, fn 10. 12 Alliance des Belges v Belgium, N° 8612/7 9 (1979), reference to App nos 6745/76 and 6746/76 v Belgium (1976). 13 X v the Netherlands App no 6573/74 (1974). 14 Mathieu-Mohin and Clerfayt v Belgium App no 9267/81 (1981) [52]. 11

1030

Lamin Khadar and Jo Shaw

Art 39 – Right to Vote and Stand: European Parl

of universal suffrage, as articulated at Article 39(2), by looking at these treaties. Moreover, the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) are occasionally referred to in ECtHR judgments as relevant law for interpretive purposes.15 39.14 Article 21 Universal Declaration of Human Rights (UDHR) (1948) provides that: 1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. 2. Everyone has the right of equal access to public service in his country. 3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

39.15

Article 25 ICCPR (1966) provides that: Every citizen shall have the right and the opportunity […] without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country.

It can be seen from the above that the UN treaties allocate political membership on the 39.16 basis of nationality, ie recognising political rights as citizens’ rights rather than human rights. The ICCPR goes so far as to explicitly restrict political rights to ‘citizens’, while the UDHR grants everyone the right to take part in the ‘government of his country’ (perhaps implicitly excluding non-citizens).16 However, it should be pointed out that, in a footnote to a 2006 report on the rights of non-citizens, the UN Office of the Commissioner for Human Rights, responsible for monitoring the implementation of the ICCPR, did go so far as to assert that: States should consider granting the right to participate in public life at the local level, including the right to vote in local elections, to long-term non-citizen residents.17

39.17

Meanwhile, Article 5(c) ICERD (1965) provides that: States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: … (c) Political rights, in particular the right to participate in elections-to vote and to stand for election-on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service.

15 See eg Sitaropoulos and Others v Greece (No 2) App no 42202/07 (2012) and Sejdic´ and Finci v Bosnia and Herzegovina App nod 27996/06 and 34836/06 (2009). 16 R Rubio-Marin, ‘Transnational Politics and the Democratic Nation-State: Normative Challenges of Expatriate Voting and Nationality Retention of Emigrants’ (2006) 81 New York University Law Review 190, 199, fn 4. 17 UN Office of the Commissioner for Human Rights, The Rights of Non-Citizens (2006) fn 8.

Lamin Khadar and Jo Shaw

1031

Part I – Commentary on the Articles of the EU Charter

39.18 The ICERD is notable as an exception in terms of the language used, firstly in so far as it is structured around state obligations and not rights and secondly, in that, prima facie, it appears to leave some normative space for the inclusion of non-citizens within the scope of the proffered undertakings. However, in a 2004 report, the Committee on the Elimination of Racial Discrimination, responsible for monitoring the implementation of the Convention, noted that: [S]ome of these rights [in the Convention], such as the right to participate in elections, to vote and to stand for election, may be confined to citizens.18

39.19 It appears that for the time being at least, it is entirely legitimate under the UN Treaties for states to exclude non-citizens from the protective umbrella of the principle of universal suffrage. 39.20 In addition, Article 29, the Convention on the Rights of Persons with Disabilities, provides that: States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others.

39.21 The non-discriminatory application of universal suffrage rights in the context of disability is gaining increasing currency as an issue in the EU and will be discussed in more detail below.

III. Council of Europe Treaties 39.22 Article 6 of the Convention on the Participation of Foreigners in Public Life at Local Level (1992) provides for the right to vote for resident non-citizens at the local level. However, the provision is only currently in force in six Contracting States: the Netherlands, Norway, Iceland, Denmark, Sweden and Finland. It offers, however, some of the backdrop against which votes for non-citizens have become an increasing issue in the EU and its Member States.

IV. Other Sources 39.23 Without a doubt, the most important background sources of Article 39 CFR are the EU Treaties themselves. This is especially so given that, as mentioned earlier, the CFR only applies within the scope of Union law and does not prima facie extend or modify any rights already guaranteed under the Treaties. 39.24 The provisions set out below will be dealt with in more detail in the following sections of this chapter; for present purposes, it will be sufficient to note that, of all the law analysed so far in this section, the EU Treaties are notable in that they explicitly provide for the safeguarding of electoral rights for specific categories of non-citizen residents in all EU Member States.

18 Committee on the Elimination of Racial Discrimination, General recommendation on discrimination against non-citizens (2004) Art 3.

1032

Lamin Khadar and Jo Shaw

Art 39 – Right to Vote and Stand: European Parl

The relevant provisions are as follows:

39.25

Article 20(2)(b) TFEU: Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia: … (b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;

Article 22(2) TFEU: [E]very citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.

Article 10 TEU: 1. The functioning of the Union shall be founded on representative democracy. 2. Citizens are directly represented at Union level in the European Parliament. … 3. Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen. 4. Political parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union. [Emphasis added.]

Article 14(3) TEU: The members of the European Parliament shall be elected for a term of five years by direct universal suffrage in a free and secret ballot.

A quick comparison between these EU Treaty provisions and Article 39 CFR reveals that 39.26 Article 39(1) CFR loosely corresponds to Articles 20(2)(b) and 22(2) TFEU, whereas Article 39(2) CFR loosely corresponds to Articles 10(3) and 14(3) TEU. The former set of provisions can be described as ‘EU citizen equal treatment rights’, whereas as the latter could be broadly described as ‘universal suffrage rights’.

D. Analysis I. General Remarks It is worth setting out, in some detail, the history and evolution of European parlia- 39.27 mentary electoral rights, because it is these pre-existing rights that give substance to Article 39 CFR. Lamin Khadar and Jo Shaw

1033

Part I – Commentary on the Articles of the EU Charter

39.28

In the long history of European integration, there can be discerned a laboured yet persistent drive towards the effective political representation of European citizens. The ideal of a European Parliament which would be directly elected by universal suffrage can be traced back to the birth of the European Parliament itself (or rather, the ‘Common Assembly’19 of the European Coal and Steel Community (ECSC), as it was then known). This fact is recorded in Article 21(1) of the 1951 Treaty Establishing the European Coal and Steel Community (the Treaty of Paris), which provides that: The Assembly shall consist of delegates whom the Parliaments of each of the member states shall be called upon to appoint once a year from their own membership, or who shall be elected by direct universal suffrage, according to the procedure determined by each respective High Contracting Party. [Emphasis added.]

39.29 In its initial iteration then, the ideal of direct elections to the Assembly by universal suffrage is framed as an option20 (which was never exercised by the Member States). Just six years later, by virtue of Article 2(2) of the 1957 Convention on Certain Institutions Common to the European Communities, Article 21 of the Treaty of Paris was amended and the following provision was introduced as Article 21(3): The Assembly shall draw up proposals for elections by direct universal suffrage in accordance with a uniform procedure in all Member States. The Council shall, acting unanimously, lay down the appropriate provisions, which it shall recommend to Member States for adoption in accordance with their respective constitutional requirements.

39.30 In its second iteration, the ideal of direct elections to the Assembly by universal suffrage is framed in less ambitious terms, as a goal to be achieved by the Assembly and the Council working jointly at some unspecified future point in time.21 Subsequent to this, Article 21(3) of the Treaty of Paris was reiterated in Article 138(3) of the 1958 Treaty establishing the European Economic Community (the Treaty of Rome) and so, in any event, it is evident that almost from the very beginning, the architects of the European Communities had envisaged the creation of a Parliament that would be directly elected by universal suffrage. It is also interesting to note that a ‘uniform procedure’ for elections was envisioned—something that would prove very difficult to achieve. Furthermore, as just indicated, neither the Treaty of Paris nor the Treaty of Rome provided any timetable for achieving elections of the Parliament by direct universal suffrage and ultimately, in spite of these clearly articulated early intentions, it would take almost 30 years to actually achieve this goal. Throughout the 1960s, the Parliament framed the debate around the effective politi39.31 cal representation of European citizens in terms of ‘building Europe’22 and establishing

19 The title was changed from ‘Assembly’ to ‘Parliament’ by Resolution of the Assembly of 30 March 1962, 1045. 20 This option was introduced on a proposal from the Foreign Affairs Committee of the French National Assembly, see P Reuter, La Communauté européenne du charbon et de l’acier (Paris, Librarie Générale de Droit et de Jurisprudence, 1953) 59. 21 This provision results from a proposal made by the Italian delegation to the Intergovernmental Conference that drafted the Rome Treaties. See F Piodo, Towards direct elections to the European Parliament (Brussels, European Communities, 2009) 15. 22 Ninth General Report on the Activities of the Community, 1 February 1960 to 31 January 1961.

1034

Lamin Khadar and Jo Shaw

Art 39 – Right to Vote and Stand: European Parl

democracy to support this aim.23 This debate was likely energised by the perceived lack of legitimacy of the Parliament and with respect to the decision-making process within the Community institutions more generally.24 Indeed, for the first few decades of its life, the Assembly (and subsequently the Parliament) was populated by parliamentarians appointed by the executives of their respective Member States. This arrangement also reveals one of the major early obstacles to the introduction of direct elections, ie that there seems to have been a significant fear that ‘anti-European’ parties (such as the French and Italian Communist parties), if permitted to be elected to the Assembly, would obstruct the development of the Community.25 Another obstacle seems to have been that the Parliament remained relatively powerless, in legislative terms, until the 1970s, and so it was argued that, in view of its limited powers, direct elections were not warranted.26 The overarching problem can possibly be boiled down to a lack of political will on the part of the executives of the Member States; in the early days of the European Communities, priority was given to economic integration over political integration, and so the Parliament, while receiving a limited degree of support,27 encountered significant opposition. For example, although the Assembly had adopted a proposal for a uniform electoral procedure for direct elections to the European Parliament as early as 1960,28 it received a lukewarm response from the foreign ministers of the Member States, and very little action was actually taken with respect to this proposal throughout the 1960s.29 The status quo changed in the 1970s when—partially as a result of the election in 39.32 March 1974 of Valéry Giscard d’Estaing, a supporter of direct elections, as French President—the attitude of the Member States’ executives became more conducive to the idea of direct elections to the Parliament.30 The final communiqué of the Summit of Heads of State or Government in Paris of December 1974 maintained that direct elections to the European Parliament should take place ‘as soon as possible’.31 The communiqué even went so far as to direct the Council of Ministers to reach a decision by the end of 1976.32 To that end, the decision to hold direct elections was taken in Rome in December 1975 by the European Council and, on 20 September 1976, the Council

23 ‘The European Parliament demands that the application of the principles of constitutional theory based on democracy and the primacy of law should be reinforced in order to endure the future development of the Community.’ 4 Bulletin de la Communauté Européene du Charbon et de l’Acier, Chronologie Années 1950–1960 (Luxembourg, 1967) p 68. 24 Y Mény (ed), Building Parliament: 50 years of European Parliament History (Luxembourg, Office for Official Publications of the European Communities, 2009) 35. 25 Ibid 9. 26 J Shaw, The Transformation of Citizenship in the European Union: Electoral Rights and the Restructuring of Political Space (Cambridge, CUP, 2007) 103. 27 The Italian government had introduced measures concerning the direct elections of Italian Members of the European Parliament, and in 1968 Christian Democrat MEPs asked the Italian Government to invite other European governments to begin the direct election of their members; see Cahiers de documentation européenne, October-Décembre 1969, Parliament Européen, 69. 28 The proposal is to be found in a Resolution dated 17 May 1960, Journal Officiel 1960, 834, Art 7. 29 A communiqué from the six Foreign Ministers announced that five Member States were willing to take it under consideration, but France did not consider it the right time, see above n 21, Towards direct elections to the European Parliament, 25. 30 Above at n 24, Y Mény (ed), Building Parliament: 50 years of European Parliament History, 36. See also S Pinder, ‘Steps Towards a Federal European Parliament’ (2000) 35 International Spectator: Italian Journal of International Affairs 15. 31 Ibid. 32 Ibid.

Lamin Khadar and Jo Shaw

1035

Part I – Commentary on the Articles of the EU Charter

39.33

39.34

39.35

39.36

Act on Direct Elections was adopted. Finally, after almost 30 years of effort, the first European parliamentary elections were held in 1979. Although, as already noted,33 the 1976 Act lays down some limited ‘uniform’ aspects of elections to the European Parliament,34 ultimately, the Member States are left with very wide discretion in terms of implementation. Indeed, the ‘uniform procedure’ for European Parliament elections, promised as early as 1957 in the Treaty of Paris, was still no nearer to being realised. It is important to remember that, at this early stage in its development, the nascent right to vote35 in European parliamentary elections was only secured at the national level, to the citizens of the Member States resident in those states. The adoption of the 1976 Act had no impact, as such, on the rights of European citizens at the level of EU law. Rather, it merely recommended the Member States should implement provisions at the national level allowing for free, secret, direct and universal elections to the European Parliament.36 In this light, soon after the first direct elections in 1979, the Parliament settled down to examine the criteria for extending the right to vote as an entitlement under EU law. However, the period of ‘Eurosclerosis’37 (ie the period of political stalemate, in terms of European integration, and economic stagnation) throughout the early 1980s largely side-lined the voting rights debate for a number of years. It was not until the mid-80s, when Jacques Delors took over from Gaston Thorn as President of the Commission, that the debate truly gained some momentum once again. Delors quickly introduced a timetable for the completion of the internal market before 1992.38 This initiative proved to be a catalyst for Treaty reform and led, via the 1992 Treaty of Maastricht, to the first concrete legal development, at the EU law level, in relation to the European parliamentary voting and candidacy rights, of European citizens. The Treaty of Maastricht and the formal creation of ‘citizenship of the Union’ (now to be found in Art 20 TFEU) saw the introduction of limited equal treatment rights for nationals of the Member States in local and European parliamentary elections (now to be found in Arts 20(2)(b) and 22 TFEU). It warrants mentioning that the creation of ‘citizenship of the Union’ did not affect, in any way, the quality of national citizenship or the competence of Member States to determine their citizenry. Union citizenship only had a constitutional impact upon the Member States within the confines of the principle of ‘additionality’ as now set out in Article 9 TEU39 and Article 20(1) TFEU.40 It should also be recalled that while there was now, thanks to the Maastricht Treaty, a right of equal treatment (in the context of voting in European parliamentary elections) for Union citizens exercising their free movement rights, there was still no universal

33

See above at n 4. Most of the limited aspects of uniform procedure contained in the 1976 Act were introduced by amendment in 2002. See more on this below in the discussion of Council Decision 2002/772/EC. 35 NB the Direct Elections Act made no reference to a right to stand as a candidate. 36 The Council Decision and Act concerning the election of the representatives of the European Parliament by direct universal suffrage [1976] OJ C27/5. 37 Coined by Herbert Giersch at a Lecture delivered in Sydney on 20 August 1985, at the Regional Meeting of the Mont Pelerin Society. 38 Commission White Paper on completing the Internal Market COM (85) 310. 39 Ie, ‘Citizenship of the Union shall be additional to and not replace national citizenship.’ 40 Ie, ‘Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.’ 34

1036

Lamin Khadar and Jo Shaw

Art 39 – Right to Vote and Stand: European Parl

right to vote at the level of EU law. That is to say, there was still no explicit EU law right to vote in European Parliament elections which would embrace all Union citizens, ie including those who remained ‘static’. This would not formally come to pass until the Treaty of Lisbon, 14 years later, although jurisprudence from the ECtHR implicitly established the universality of the right to vote in European Parliament elections as early as 1999.41 The original EP electoral rights provision (Art 8(b) of the Treaty Establishing the 39.37 European Community (the ‘TEC’, now the TFEU)) was implemented in 1993 through Directive 93/109/EC,42 which specifically addresses the issue of the equal treatment rights of ‘mobile’ EU citizens who have exercised their free movement rights to move from their Member State of nationality to a second Member State. Directive 93/109/EC is structured around the concept of the ‘Community voter’, ie the national of one Member State (and consequently a citizen of the Union) who is resident in another Member State and who therefore has the right to vote in European Parliament elections by virtue of the Directive.43 In summary, the Directive essentially sets out the requirements to be met by such mobile EU citizens wishing to vote or stand as a candidate in their country of residence.44 Additionally, the Directive sets out some minimal procedural requirements and permissions, in terms of information exchange between Member States and the exercise of voting rights, and a further provision in relation to derogations.45 The 1998 Commission report on the implementation of the Directive indicated that the Directive had been applied by all EU Member States to the elections to the European Parliament of June 1994.46 Indeed, while implementation has been, broadly speaking, without upset,47 contention has arisen primarily as regards the circumstances in which national electoral law can curtail the Treaty rights which the Directive implements (see further on this at sections D.III and D.IV below).48 Directive 93/109 does not affect the rights of the nationals of a Member State to 39.38 vote and stand in European Parliament elections in their own country, whatever their circumstances. In other words, it does not regulate the question of whether Member

41

See Matthews v United Kingdom App no 24833/94 (1999), discussed in more detail below. Directive 93/109/EC, [1993] OJ L329/34. Art 22(1) was implemented through Directive 94/80/EC, [1994] OJ L368/38. 43 Above at n 26, Shaw, The Transformation of Citizenship in the European Union, 132. 44 See Directive 93/109/EC, Arts 3 to 6. 45 Ibid Arts 7 to 13 and Art 14 respectively. 46 Report from the Commission to the European Parliament and the Council on the application of Directive 93/109/EC—Voting rights of EU citizens living in a Member State of which they are not nationals in European Parliament elections COM (97) 731. 47 There was some disappointment on the part of the Commission in relation to information exchange between the Member States. See Communication from the Commission of 18 December 2000 on the application of Directive 93/109/EC to the June 1999 elections to the European Parliament—Right of Union citizens residing in a Member State of which they are not nationals to vote and stand in elections to the European Parliament COM (2000) 843. 48 See also Report from the Commission of 27 October on the election of Members of the European Parliament and on the participation of European Union citizens in the elections for the European Parliament in the Member State of residence COM (2010) 605 which notes that, ‘while in general, EU countries have correctly transposed and implemented Directive 93/109/EC, a few countries impose conditions on non-national EU citizens, thereby creating obstacles to the exercise of their right to vote and to stand as a candidate in their countries of residence; in certain cases contrary to the directive. Furthermore, a number of EU countries must also take further measures to ensure that they comply with the obligation to provide sufficient information to citizens on the exercising of their rights.’ 42

Lamin Khadar and Jo Shaw

1037

Part I – Commentary on the Articles of the EU Charter

States must allow external voting in European Parliament elections. It should also be noted that the Directive allows considerable scope for national variation in implementation measures and, consequently, left unattained the promise of a ‘uniform procedure’ for European parliamentary elections which, as already noted, was made as long ago as 1957. However, by virtue of the case law of the CJEU, which will be discussed in further detail below, while Member States do enjoy substantial discretion in determining the substance of European parliamentary electoral rights for the users of such rights (within the confines of the Directive), they are nonetheless bound to respect the general principles of EU law and are precluded from treating different categories of EU citizens who are in the same circumstances in a way that discriminates between them. Moreover in 2002, nearly 50 years after the initial promise was made, some signifi39.39 cant progress was made in respect of uniform electoral procedure.49 Council Decision 2002/772/EC, although leaving a great deal at the discretion of the Member States, went some way towards standardising elements of European Parliament election procedure.50 The Decision amended the 1976 Direct Elections Act51 and, amongst other things, introduced proportional representation for European Parliament elections. Member States were, however, left with discretion to implement this amendment by way of either the adoption of a list or single transferable vote system. Other notable amendments made by the Decision were the elimination of the dual mandate of European Parliament Members such that they were no longer responsible to their Member State parliaments, and the introduction of a requirement that any minimum threshold for the allocation of seats to a party set by a Member State should not exceed 5 per cent.52 39.40 The most significant recent development in the evolution of European parliamentary electoral rights has, of course, been ushered in with the 2007 Treaty of Lisbon. The major innovation of the Treaty of Lisbon was to link the citizenship provisions in the TFEU (ie in this context, Arts 20(2)(b) and 22(2) TFEU) to the new provisions on democratic representation in Title II of the reworked TEU (ie Art 10 TEU).53 The Treaty developments can arguably be understood as a codification of the position taken by the ECtHR

49 For more detail on the debate around uniform electoral procedure, see inter alia: Resolution on the draft uniform electoral procedure for the election of Members of the European Parliament [1993] OJ C115; Resolution on the European Parliament’s guidelines for the draft uniform electoral procedure [1991] OJ C280; Resolution on a draft uniform electoral procedure for the election of members of the European Parliament [1982] OJ C87; and Case C-41/92 Liberal Democrats v European Parliament [1993] ECR I-03153. 50 Council Decision 2002/772/EC, Euratom [2002] OJ L283/1. 51 The 1976 Act was also amended on another occasion, in 1993. The amendments in 1993, adopted partly to account for the unification of Germany and the planned enlargement, introduced a scheme for the allocation of seats per Member State (Decision 93/81 [1993] OJ L33/15). 52 Although Member States are indeed left with wide discretion in terms of implementation under the 1976 Act, this does not mean that the widest possible application of the Act’s provisions will always be favoured. A recent and notable example of this can be found in two cases heard before the German Constitutional Court on the interpretation of s 2(7) of the Europawahlgesetz (Cases BVerfG of 9 November 2011, 2 BvC 4/10, 2 BvC 6/10, 2 BvC 8/10). Art 2(a) of the 1976 Act provides that: ‘Member States may set a minimum threshold for the allocation of seats. At national level this threshold may not exceed 5 per cent of votes cast.’ In spite of this permission under the Act, the German Constitutional Court ruled that just such a 5 per cent hurdle applicable under s 2(7) Europawahlgesetz (designed to stop small parties from entering the European Parliament) was unconstitutional and therefore void. 53 J Shaw, ‘Citizenship: contrasting dynamics at the interface of integration and constitutionalism’, in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford, OUP, 2011) 575–609.

1038

Lamin Khadar and Jo Shaw

Art 39 – Right to Vote and Stand: European Parl

and CJEU in a number of important cases which had broadly confirmed that European citizens have a right, as a matter of democratic principle, to vote for ‘their’ parliament.54 The Treaty of Lisbon, by linking the rights of non-national Union citizens to equal treatment (ie the rights of the ‘Community voter’) to the rights to democratic participation and representation (ie the ideal of direct universal suffrage stemming from the Treaty of Paris), for the first time, arguably established the universal right of Union citizens, regardless of whether they are ‘mobile’ or ‘static’, to participate in the democratic life of the union by voting or standing for elections to the European Parliament. Thus, as set out above, Article 10(2) TEU provides that ‘Citizens are directly represented at Union level in the European Parliament’, and Article 10(3) TEU states that ‘Every citizen shall have the right to participate in the democratic life of the Union.’ Another recent development has come in the form of an amendment to Directive 39.41 93/109/EC. The new Directive 2013/1/EU, adopted on 20 December 2012, makes it easier for non-national EU citizens to stand for election in the host state.55 The amending Directive eliminates the requirement on non-national candidates to secure an attestation from their home state as to their eligibility to stand for election. There was some concern that candidates were having trouble identifying the relevant authorities empowered to issue such attestation. The Directive has simplified this procedure for the candidate by shifting the burden to the Member States. Candidates are now only required to sign a formal declaration that they are eligible to stand, and the state of residence will then be required to request the candidate’s home state to confirm. The home state will then have the obligation of verifying that the candidate has no judicial or administrative decisions against his/her name depriving the candidate of the right to stand. If the home state does not respond to the requesting state within five days, the candidate will automatically be admitted. This amendment was based on an original (and much broader) 2006 proposal from 39.42 the European Commission, which was re-launched and stripped down (ie removing a proposal on the subject of double voting which had proved contentious amongst Member States), in 2011. The new rules will now be implemented in time for the European Parliament elections in 2014. Although they will not be dealt with in extensive detail in this chapter, the most recent 39.43 debates on the subject of European parliamentary electoral rights, revolve around issues of voter participation, participatory democracy and the electoral rights of physically disabled persons and persons with mental health impairments (which will be discussed in more detail below).56

54 See Matthews v United Kingdom App no 24833/94 (1999)—discussed in more detail below. See also House of Lords Select Committee on Constitution Written Evidence, Memorandum by Professor J Shaw, Salvesen Chair of European Institutions, University of Edinburgh. 55 Directive 2013/1/EU [2013] OJ L26/27. 56 For more information see Fundamental Rights Agency, Fundamental rights: challenges and achievements in 2011, Chapter 7: Participation of EU citizens in the Union’s democratic functioning (European Union Agency for Fundamental Rights, 2012) available from http://fra.europa.eu.

Lamin Khadar and Jo Shaw

1039

Part I – Commentary on the Articles of the EU Charter

II. Scope of Application 39.44 The substance of the rights guaranteed by Article 39 CFR will be dealt with in more detail in the following sections; this section merely sets out, in broad and abstract terms, the scope of Article 39 CFR. 39.45 A discussion on the scope of Article 39 CFR can be usefully distributed between ‘territorial scope’, ‘jurisdictional scope’, ‘vertical scope’, ‘personal scope’ and ‘protective scope’: — By territorial scope, we should understand that while Article 39 CFR applies to all Union citizens, it is within the competence of Member States to limit the rights it guarantees by residence requirements. — By jurisdictional scope, we should recognise that Article 39 CFR will (generally) not apply in jurisdictions which fall outwith EU Treaty framework or where the European Parliament cannot be characterised as a ‘legislature’. — By vertical scope, we should recall that, in the current state of EU law, it is for the Member States to determine who to include in the electorate for the purposes of the rights specified at Article 39 CFR and that they have a wide margin of appreciation in this respect. — By personal scope, we should understand that, as noted earlier, Article 39 CFR applies to both static and mobile Union citizens and does not require the exercise of free movement rights in order to be activated.57 — By protective scope, we should observe that, on the basis of CJEU and ECtHR jurisprudence, it is prudent to view Article 39 CFR primarily as an EU law nondiscrimination and equal treatment right and secondarily, as a guarantee against the irrational implementation or application by Member States of the electoral rights which Article 39 CFR guarantees. 39.46 Having set the broad parameters, in the following section, we will explore the scope of Article 39 CFR in more detail as we try to understand the substance of the rights which this provision guarantees.

III. Specific Provisions 39.47 The aim in this section is to try to understand more about the likely interpretation of Article 39 CFR and the substance of the rights which are guaranteed. It will therefore be necessary to explore, in a little bit of detail, a range of very important cases that have arisen from the ECtHR and the CJEU on the subject of electoral rights for European parliamentary elections, ie Matthews v United Kingdom,58 Spain v United Kingdom59 and Eman and Sevinger v College van burgemeester en wethouders van Den Haag.60

57 See Matthews v United Kingdom (above n 54), Spain v United Kingdom (above n 9), and the Treaty of Lisbon. 58 Ibid Matthews v United Kingdom. 59 See Spain v United Kingdom (above n 9). 60 Case C-300/04 Eman and Sevinger v College van burgemeester en wethouders van Den Haag [2006] ECR I-8055.

1040

Lamin Khadar and Jo Shaw

Art 39 – Right to Vote and Stand: European Parl

(a) Important Cases Matthews v United Kingdom In 1994, Ms Denise Matthews, a British citizen and a resident of Gibraltar,61 applied 39.48 at her local Electoral Registration Office to register as a voter in the 1994 European Parliament elections. The Electoral Registration Officer replied in the following terms: The provisions of Annex II of the EC Act on Direct Elections of 1976 limit the franchise for European parliamentary elections to the United Kingdom. This Act was agreed by all member States and has treaty status. This means that Gibraltar will not be included in the franchise for the European parliamentary elections.

Sure enough, Annex II of the Direct Elections Act provided that ‘[t]he United Kingdom 39.49 will apply the provisions of this Act only in respect of the United Kingdom’. Ms Matthews took her case to the EComHR, claiming that there had been a breach of her right to participate in elections to choose ‘the legislature’ contrary to Article 3, Protocol 1 of the ECHR. Article 3 provides: The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature. [Emphasis added.]

It should be mentioned that the TEC applied to Gibraltar by virtue of what is now 39.50 Article 355(3) TFEU,62 which provided that the Treaty applied to the European territories for whose external relations a Member State was responsible. While there are some areas of EU law that did not, at the time, have effect in Gibraltar, European Community legislation concerning, inter alia, such matters as free movement of persons, services and capital, health, the environment and consumer protection all applied in Gibraltar. The argument between the parties was framed around the question of whether the 39.51 European Parliament, at the relevant time, had the characteristics of a ‘legislature’ in Gibraltar. The UK contended that, at the time, the European Parliament continued to lack both of the most fundamental attributes of a legislature: the power to initiate legislation and the power to adopt it. Ultimately, the ECtHR held that even though Gibraltar was excluded from certain 39.52 areas of Community activity, there remained significant areas where Community activity had a direct impact in Gibraltar.63 The European Parliament’s involvement in specific legislative processes and the general democratic supervision of the EU’s activities was enough to render it part of the legislature of Gibraltar for the purposes of Article 3 and, on that basis, there had been a violation of Article 3 as the very essence of Ms Matthews’ right to vote to choose the legislature had been denied.64

61 Gibraltar is a dependent territory of the United Kingdom. It forms part of Her Majesty the Queen’s Dominions, but is not part of the United Kingdom. The United Kingdom Parliament has the ultimate authority to legislate for Gibraltar, but in practice exercises it rarely. 62 Formerly Art 299(4) TEC. 63 See Matthews v United Kingdom (above n 54) [53]. 64 Ibid [54].

Lamin Khadar and Jo Shaw

1041

Part I – Commentary on the Articles of the EU Charter

Spain v United Kingdom 39.53 As just noted above, in Matthews v United Kingdom, the ECtHR had held that the UK was in breach of Article 3, Protocol 1 of the ECHR in failing to hold European Parliament elections in Gibraltar. To comply with the ECtHR decision and for the purpose of holding such elections in future, the UK enacted the European Parliament (Representation) Act 2003,65 which made Gibraltar part of the constituency of southwest England and granted the right to vote to persons registered in Gibraltar, including both EU citizens and, in line with the constitutional traditions in the UK, also so-called ‘Qualifying Commonwealth Citizens’.66 In the context of Gibraltar, this meant that a group of around 200 Commonwealth citizens (ie not citizens of the Union) residing in Gibraltar were rendered eligible to vote for the European Parliament elections. 39.54 Spain objected to a number of measures that the UK had adopted to implement the Matthews case, but chiefly to the inclusion of Commonwealth citizens in the franchise, and requested the Commission to bring an enforcement action against the UK. However, making no headway with the Commission, Spain brought an enforcement action itself under Article 226 TEC (now Art 258 TFEU). Spain contended, inter alia, that by including Commonwealth citizens, the UK was in breach of Articles 18967 and 19068 TEC, under which the right of suffrage was, Spain argued, confined to EU citizens. Spain also sought to rely on Article 19(2) TEC (now Art 22(2) TFEU), asserting that the language of the provision expressly confined the right to ‘citizens of the Union’. In support of its argument, Spain also referred to Article 39 CFR. Spain noted that the provision ‘uses the expression ‘[e]very citizen of the Union’, and not the term ‘everyone’ or an expression referring to national law’.69 Spain also contended that the right to vote of a national of a non-Member State cannot be described as a ‘human right’ or a ‘fundamental freedom’.70 Meanwhile, the European Commission, in support of the UK’s case, argued that the wording of Article 39 CFR should not be viewed as requiring the right to vote to be limited to Union citizens.71 The ECJ, as it then was, held that the Treaty did not expressly state who was entitled 39.55 to vote in European Parliamentary elections, nor did it state that its provisions were confined to EU citizens alone.72 The Court maintained that Article 19(2) TEC was a

65

European Parliament (Representation) Act 2003 c 7, Pt 2. In the UK, all Commonwealth citizens who are resident in the UK and who have leave to enter or remain in the UK or do not require leave to enter or remain in the UK (‘Qualifying Commonwealth Citizens’) are entitled to vote in all forms of elections in the UK. See Representation of the People Act 1983 ss 1 and 2; Scotland Act 1998 s 11; Government of Wales Act 2006 s 12; Northern Ireland Assembly (Elections) Order 2001 s 4(1); Elected Authorities (Northern Ireland) Act 1989 s 1(c); Local Government Act 2000 s 43(1)(a); and Local Government Act 2000 s 45(4). 67 Ie ‘The European Parliament, which shall consist of representatives of the peoples of the States brought together in the Community, shall exercise the powers conferred upon it by this Treaty’. 68 Ie ‘The representatives in the European Parliament of the peoples of the States brought together in the Community shall be elected by direct universal suffrage’. 69 See Spain v United Kingdom (above n 9) [42]. 70 Ibid. 71 Ibid [56]—although it should be noted that the Court went on to say that the United Kingdom and the Commission interpreted Art 39 CFR as not permitting the right to vote currently conferred by a Member State on third-country nationals to be impaired. This begs the question: what would the position be if a Member State, let’s say the UK, chose to enfranchise a new group of third country nationals in European Parliament elections? 72 Ibid [65]–[70]. 66

1042

Lamin Khadar and Jo Shaw

Art 39 – Right to Vote and Stand: European Parl

rule of equal treatment between citizens of the Union and could not be interpreted in a way that would prevent a Member State from extending the right to vote to those with whom it had a close link.73 The final choice of who to include in the electorate was, the Court said, ‘in the current state of Community law’, a matter for individual Member States to determine.74 The Court supported its position by referring to the ‘constitutional traditions’ of the UK (ie enfranchising resident Commonwealth citizens in all UK elections).75 The UK had therefore not been in breach of the Treaty by including Commonwealth citizens in the Gibraltar electorate. The Court made no reference to Article 39 CFR—this being before the Treaty of Lisbon.76 Eman and Sevinger v College van Burgemeester en Wethouders van Den Haag In 2004, Mr Michiel Eman and Mr Oslin Sevinger, two Netherlands citizens, resident 39.56 on the island of Aruba,77 applied to be entered on the register which was maintained in the Netherlands, for European Parliament elections. The College van Burgemeester en Wethouders (ie the municipal executive) of Den Haag, rejected their application on the basis of the Kieswet (ie the Netherlands Electoral Act). The Kieswet granted the right to vote in European Parliament elections to all Netherlands nationals with the exception of those resident in Aruba and in the Netherlands Antilles.78 Mr Eman and Mr Sevinger instituted proceedings against the decision of the municipal executive before the Raad van State (the Council of State),79 claiming that the Netherlands Electoral Act infringed the provisions in the TEC on Citizenship,80 and infringed Articles 18981 and 19082 TEC read in conjunction with Article 3, Protocol 1 of the ECHR which, they argued, granted the right to vote in European Parliament elections to all citizens of Member States, including those residing in overseas countries. The matter was referred to the ECJ for clarification, inter alia, as to the correct interpretation of the relevant Treaty provisions and, essentially, seeking to ascertain whether a Member State must grant the right to

73

Ibid [76]. Ibid [78]. 75 Ibid [79]. 76 It has been suggested that this omission was on account of the Court’s desire not to accord too much weight to a document which was not, at the time, legally binding. See LFM Besselink, ‘Case C-145/04, Spain v. United Kingdom, judgment of the Grand Chamber of 12 September 2006; Case C-300/04, Eman and Sevinger, judgment of the Grand Chamber of 12 September 2006; ECtHR (Third Section), 6 September 2007, Applications Nos 17173/07 and 17180/07, Oslin Benito Sevinger and Michiel Godfried Eman v. the Netherlands (Sevinger and Eman)’, (2008) 3 Common Market Law review 787–813. 77 Aruba is one of the four constituent countries that form the Kingdom of the Netherlands, together with the Netherlands, Curaçao, and Sint Maarten, whose citizens share a Dutch nationality. The legislature in Aruba is largely autonomous; however, there are a few areas, such as foreign affairs, defence and nationality which are still regulated by acts of the Staten-Generaal (legislature for the Kingdom of the Netherlands). 78 Besselink, above, n 76. 79 In the Netherlands, the Council of State is a constitutionally established advisory body to the government. 80 See the Treaty Establishing the European Community, Part Two (Arts 17–22) instituting citizenship of the Union for all Member State nationals and articulating certain Citizens’ rights such as the right to equal treatment for non-national Union citizens wishing to vote in European Parliament elections in the Member State in which they reside (Art 19(2) TEC). 81 Ie ‘The European Parliament, which shall consist of representatives of the peoples of the States brought together in the Community, shall exercise the powers conferred upon it by this Treaty’. 82 Ie ‘The representatives in the European Parliament of the peoples of the States brought together in the Community shall be elected by direct universal suffrage’. 74

Lamin Khadar and Jo Shaw

1043

Part I – Commentary on the Articles of the EU Charter

39.57

39.58

39.59

39.60

vote in European elections to persons who, although possessing its nationality, resided in an overseas territory which was covered by special association arrangements with the Community. It should be briefly mentioned that Aruba was an overseas country or territory (OCT) for the purposes of the TEC. This meant that EC law did not, in principle, apply to it expect in relation to the special regime contained in Part Four of the TEC (ie Art 299(3) TEC (now Art 355(2) TFEU), which should be distinguished from the separate provisions, mentioned above, for Member States’ European territories, such as Gibraltar, under Art 299(4) TEC). The ECJ held that persons, who possessed the nationality of a Member State, and who resided or lived in a territory which was one of the OCTs referred to in Article 299(3) TEC, could rely on the rights conferred on citizens of the Union in the Treaty.83 Furthermore, the Treaty did not expressly state who was entitled to vote in European Parliamentary elections84 and in the current state of Community law, the definition of the persons entitled to vote and to stand for election fell within the competence of each Member State acting in compliance with Community law.85 The ECJ further noted that Member States were not required to hold elections to the European Parliament in OCTs under the TEC and that since the provisions of the Treaty did not apply to OCTs, the European Parliament could not be regarded as their ‘legislature’ within the meaning of Article 3, Protocol 1 of the ECHR.86 The Court further stated that the TEC did not confer an unconditional right to vote and to stand as a candidate in elections to the European Parliament and that, in view of ECtHR jurisprudence, it was not inappropriate for Member States to use residence as a criterion for determining who could vote and stand in such elections.87 However, such provisions must not be applied arbitrarily, unreasonably or in contravention of the principle of equal treatment.88 It should be noted that the reference to considerations of reasonableness and arbitrariness was made in the context of a discussion on ECHR jurisprudence on Article 3, Protocol 1 ECHR. It is notable that the Court relied on such jurisprudence to come to its conclusion that it was not inappropriate for Member States to use residence as a criterion. Finally, the ECJ noted that it had not been demonstrated, in this case, that the principle of equal treatment had not been infringed, given that all those Netherlands expatriate citizens who resided in other parts of the world (ie outside of the Netherlands’ OCTs), were entitled to vote in European Parliament elections, while those residing in OCTs, such as Aruba, were disenfranchised.89

83

Above n 60 [27]–[29]. Ibid [40]–[44]. 85 Ibid [45]. 86 Ibid [46]–[48]. 87 Ibid [51]–[55]. 88 Which as one of the general principles of Community law, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment was objectively justified—see ibid [54]–[60]. 89 Ibid. 84

1044

Lamin Khadar and Jo Shaw

Art 39 – Right to Vote and Stand: European Parl

(b) The Scope of Article 39 CFR Having set out the relevant case law, we can now explore, by reference to that case law, the likely scope of Article 39 CFR. The case law illustrates how the CJEU has been very cautious in defining the scope of the rights guaranteed under EU law. With respect to jurisdictional scope, in Matthews, the ECtHR made it plain that the right to vote and stand in European parliamentary elections should be limited to jurisdictions in relation to which the European Parliament can accurately be characterised as a ‘legislature’. Meanwhile, in Eman and Sevinger, the ECJ confirmed that since the provisions of the Treaty did not apply to OCTs, the European Parliament could not be regarded as a ‘legislature’ in such territories within the meaning of Article 3, Protocol 1 of the ECHR. This jurisprudence limits the scope of Article 39 CFR by reference to the legal reach of the EU Treaty framework, ie Union citizens who do not reside in jurisdictions that are bound by the Treaties will not have an absolute right to vote and stand in European Parliament elections and will only be enfranchised where the relevant Member State has determined to enfranchise them. With respect to vertical scope, it is clear from the jurisprudence that, in absence of any further Treaty developments, it is for the Member States, and not the CJEU, to determine the contours of the electorate for the purposes of European parliamentary elections. In Spain v UK, the Court framed its reasoning in terms of the ‘competence of Member States’ to extend the right to vote to those with whom they have a ‘close link’ and in terms of the ‘current state of Community law’ and the ‘constitutional traditions’ of the UK. Again, in Eman and Sevinger, the Court stipulated that, ‘in the current state of Community law, the definition of the persons entitled to vote and to stand for election falls within the competence of each Member State’.90 The reliance by the Court on this line of reasoning illustrates the deference it feels bound to give, as a consequence of the current EU law framework, to the constitutional arrangements of the Member States. In this sense, Article 39 CFR can be viewed as vertically limited in that any vertical bond that exists between citizens and the Union in this context is necessarily mediated by national law. The discretion granted to Member States in this respect also permits the circumscription of the territorial scope of Article 39 CFR. This was confirmed by the CJEU in Eman and Sevinger, where the Court made clear that:

39.61

39.62

39.63

39.64

[T]here is nothing which precludes the Member States from defining, in compliance with Community law, the conditions of the right to vote and to stand as a candidate in elections to the European Parliament by reference to the criterion of residence in the territory in which the elections are held.91

However, as discussed above, Article 39 CFR does arguably appear to be pervasive in 39.65 terms of its personal scope (ie it applies to both static and mobile Union citizens). Certainly the Treaty of Lisbon seems to elevate what was originally a right of equal treatment to mobile EU citizens, into a right, albeit not absolute, of all Union citizens, to participate in the democratic life of the Union by voting and standing in European Parliament elections. However, Eman and Sevinger and Spain v UK were decided prior

90 91

Ibid [45]. Ibid [61].

Lamin Khadar and Jo Shaw

1045

Part I – Commentary on the Articles of the EU Charter

to the changes brought in by the Treaty of Lisbon, and so the exact contours of this right in light of these Treaty amendments are yet to be settled by the CJEU. 39.66 The question that remains, however, is ‘what is the protective scope of Article 39 CFR?’ In other words, once we have taken into account the various ways in which the electoral rights that Article 39 purports to guarantee can be limited by reference to territory, jurisdiction and the current EU law framework (ie personal and vertical scope), what remains of the substance of such rights? In this respect, the jurisprudence reveals not only the right to non-discrimination on grounds of nationality—as explicitly provided for in the relevant EU law provisions—but also, an equal treatment principle, which is not limited by reference to nationality, and which perhaps hints at a guarantee against the arbitrary or unreasonable application or implementation by Member States, of European parliamentary electoral rights. 39.67 Indeed, the willingness of the ECJ, in Eman and Sevinger, to extend general principles of EU law (ie equal treatment) to protect citizens of the Union, even though such citizens fell outwith the jurisdictional scope (as defined in section D.II, above) of the EU Treaty framework, is the true innovation of this case. Furthermore, the reference made by the Court to considerations of the arbitrariness and rationality of relevant legal provisions adds another dimension to the equal treatment principle in this context. The question that follows from this is to what extent the protective scope of Article 39 39.68 CFR, emerging from Eman and Sevinger, can be said to also cover third country nationals to whom European parliamentary electoral rights have been extended by virtue of national law? In other words, what happens when the principles emerging from Eman and Sevinger are combined with those emerging from Spain v UK? Once third country nationals (who are also, by definition, not Union citizens) residing in Member States or territories covered by European parliamentary rights have been brought within the purview of Article 39 because a Member States has exercised its discretion, is there, under EU law, an obligation on the Member State to apply those provisions in a manner that is rational, consistent and in accordance with the principle of equal treatment? Moreover, if such third country nationals are afforded some form of guarantee of equal treatment or protection against irrationality and arbitrariness, does such protection derive from Article 39 CFR, from Article 3, Protocol 1 of the ECHR, or from general principles of EU law? Unfortunately, the answers to these questions remain presently out of reach and can only be clarified by the CJEU.

IV. Limitations and Derogations (a) Limitations and Derogations from Article 39 CFR under the Charter 39.69 The Charter provides at Article 52(1) that: Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

39.70 This provision remains to be comprehensively interpreted by the CJEU; however, given that by virtue of Articles 52(2) and (3) CFR, Charter rights (like Art 39 CFR) which are 1046

Lamin Khadar and Jo Shaw

Art 39 – Right to Vote and Stand: European Parl

provided for under the Treaties or which correspond to rights existing under the ECHR, are to be interpreted within the limits of existing law (see more on this directly below), it is not likely that this provision will have any dramatic novel effect in the short term. (b) Limitations and Derogations from Article 39 CFR on Grounds of EU Law The likely limitations on Article 39 CFR under EU law have already been extensively 39.71 explored in the context of the above discussion on the likely scope of the provision. Consequently here we will only discuss derogations under EU law. As has already been noted above, in accordance with Article 52(2) of the Charter, 39.72 Article 39 applies under the conditions laid down in and within the limits defined by the Treaties. Moreover, as also noted above, Directive 93/109/EC (which implements the relevant Treaty provisions) provides scope for derogation at Article 14. The Directive provides for exceptions to the principle of equal treatment between 39.73 national and non-national voters where this is deemed to be justified by complications which are specific to a Member State. Such exceptions are deemed to be justified where the proportion of Union citizens of voting age, resident in a Member State of which they are not a national, is much greater than the average within the Union as a whole. Article 14(1) provides: If … in a given Member State, the proportion of citizens of the Union of voting age who reside in it but are not nationals of it exceeds 20 % of the total number of citizens of the Union residing there who are of voting age, that Member State may, by way of derogation … : (a) restrict the right to vote to Community voters who have resided in that Member State for a minimum period, which may not exceed five years; (b) restrict the right to stand as a candidate to Community nationals entitled to stand as candidates who have resided in that Member State for a minimum period, which may not exceed 10 years.

In effect, this derogation is only granted to and applied by Luxembourg, where in 2007, 39.74 the proportion of non-national citizens of the Union, of voting age, was 37.87 per cent of the total number of Union citizens of voting age.92 (c) Limitation of Article 39 CFR by Virtue of the ECHR Although not explicitly referred to in the explanation of Article 39 CFR, Article 52(3) 39.75 provides that: In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.

92 For more information, see: Report from the Commission to the European Parliament and to the Council of 20 December 2007 on granting a derogation pursuant to Art 19(2) of the EC Treaty, presented under Art 14(3) of Directive 93/109/EC on the right to vote and to stand as a candidate in elections to the European Parliament (COM (2007) 846) and Report from the Commission to the European Parliament and to the Council of 27 January 2003 on granting a derogation pursuant to Art 19(2) of the EC Treaty, presented under Art 14(3) of Directive 93/109/EC on the right to vote and to stand as a candidate in elections to the European Parliament (COM (2003) 31).

Lamin Khadar and Jo Shaw

1047

Part I – Commentary on the Articles of the EU Charter

39.76 It would not be difficult to argue that the rights provided for by Article 39 CFR (certainly the universal suffrage right at Art 39(2)) correspond to the rights articulated at Article 3, Protocol 1 ECHR. Certainly, Matthews v United Kingdom would suggest that this is the case. Moreover, in Eman and Sevinger the ECJ referred to ECHR jurisprudence concerning the limitation of Article 3, Protocol 1 on grounds of residence and linked this jurisprudence to the right to vote and stand in European Parliament elections. The ECJ asserted that: Having regard to [ECHR jurisprudence], the criterion linked to residence does not appear, in principle, to be inappropriate to determine who has the right to vote and to stand as a candidate in elections to the European Parliament.93

39.77 This cross-reference quite clearly suggests a correspondence between the right to vote and to stand as a candidate in elections to the European Parliament as contained at Article 39 CFR and the rights guaranteed by Article 3, Protocol 1 ECHR. 39.78 It would not then be overly presumptuous to suggest that the limitations to Article 3, Protocol 1 ECHR as expressed within the ECtHR case law (such as limitations on the basis of residence) would likely apply to Article 39 CFR (with the caveat that Union law may— although it does not currently—provide more extensive protection). Under the following headings we will explore the main categories of limitation that exist under ECHR case law. Limitation on Grounds of Criminal Convictions/Incarceration 39.79 Recent ECtHR cases such as Hirst v the United Kingdom (No 2)94 and Scoppola v Italy (No 3)95 have confirmed that it is within the competence of states to disenfranchise prisoners so long as there is no general and automatic disenfranchisement of all serving prisoners. Several EU Member States, including Denmark, Finland, Ireland, Spain and Sweden 39.80 have no form of disenfranchisement for imprisoned offenders. In other states, disenfranchisement depends on the nature of the offence committed or the duration of the sentence; while in yet others prisoners are only allowed to vote at certain elections. However, currently, the UK, Bulgaria, Estonia and Hungary all apply a blanket disenfranchisement in respect of all serving prisoners.96 39.81 The issue of the effect of Article 39 CFR in relation to disenfranchisement of prisoners from voting in European Parliament elections has not been tested within the European courts, as the cases have concentrated on the interface between the ECHR

93

Above n 60 [54]–[55]. Hirst v United Kingdom (No 2) App no 74025/01 (2006). 95 Scoppola v Italy (No 3) App no 126/05 (2012). 96 The House of Commons Library Standard Note, ‘Prisoners’ voting rights’, SN/PC/01764, 5 November 2012; and the House of Commons Library Standard Note, ‘Prisoners’ voting rights’, SN/PC/1747, 17 May 2011. The UK has refused to lift its current disenfranchisement of all serving prisoners (except those on remand), and during Prime Minister’s questions, on 24 October 2012, David Cameron told MPs that, ‘No one should be under any doubt—prisoners are not getting the vote under this government.’ The UK had been given six months from the date of the Grand Chamber judgment in Scoppola (n 95) (22 May 2012) to put forward proposals with a view to dealing with the established problems with UK law from the perspective the ECHR, and draft legislation—which stands little present prospect of being adopted by Parliament—was duly put forward in November 2012, which offers a number of options which would satisfy the Court of Human Rights, such as allowing prisoners serving sentences of less than four years to vote: see J Rozenburg, ‘Prisoner Votes: Government is playing for more time’, The Guardian, 22 November 2012, www.guardian. co.uk/law/2012/nov/22/prisoner-votes-government-more-time. 94

1048

Lamin Khadar and Jo Shaw

Art 39 – Right to Vote and Stand: European Parl

and national elections. The issue was, however, recently considered in a case before the UK Supreme Court. Ultimately, the Supreme Court adopted a very narrow reading of Article 39 which confided its application to the ‘Community voter’ scenario (discussed in section D above) ie where a national of one Member State resides in another Member State and therefore has the right to vote in European Parliament elections on the same terms as nationals of the Member State of residence. Therefore, Article 39 was not found to materially alter the position of UK prisoners wishing to vote in European Parliament elections.97 The case is discussed in more detail in section E. Limitation on Grounds of Residence Requirements As has been discussed extensively above, both the ECtHR and the CJEU have determined 39.82 that it is within the competence of states to apply residence requirements to electoral rights. In Doyle v United Kingdom, the ECtHR established that stipulating a residence or 39.83 length-of-residence requirement for citizens wishing to vote did not fall foul of Article 3, Protocol 1 ECHR.98 In Eman and Sevinger, it was held that it was not inappropriate for Member States to use residence as a criterion for determining who could vote and stand in such elections.99 Limitation on Grounds of Mental Health Problems As with persons convicted of offences, persons suffering from mental impairments are 39.84 legally disenfranchised in the majority of EU states, which still link the loss of legal capacity to disenfranchisement.100 There seem to be three broad approaches to mental impairment: total exclusion, case-by-case consideration and full participation. In 2010, in Alajos Kiss v Hungary, the ECtHR overturned a blanket provision 39.85 which denied voting rights to mentally disabled people under partial guardianship in Hungary.101 The ECtHR held that: The Court cannot accept … that an absolute bar on voting by any person under partial guardianship, irrespective of his or her actual faculties, falls within an acceptable margin of appreciation. Indeed, while the Court reiterates that this margin of appreciation is wide, it is not all-embracing … In addition, if a restriction on fundamental rights applies to a particularly vulnerable group in society, who have suffered considerable discrimination in the past, such as the mentally disabled, then the State’s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question.102

The Court went on to say that ‘the treatment as a single class of those with intellectual 39.86 or mental disabilities is a questionable classification, and the curtailment of their rights must be subject to strict scrutiny.’103 The Court thus concluded that ‘an indiscriminate

97 R (on the application of Chester) v Secretary of State for Justice & McGeoch (AP) v The Lord President of the Council and another Scotland) [2013] UKSC 63, see esp [45]–[59]. 98 Doyle v the United Kingdom App no 30158/06 (2007). 99 Above n 60 [51]–[55]. 100 Above n 56 p 189. See also for additional details Fundamental Rights Agency, The right to political participation of persons with mental health problems and persons with intellectual disabilities, Report, October 2010. 101 Alajos Kiss v Hungary App no 38832/06 (2010). 102 Ibid [42]. 103 Ibid [44].

Lamin Khadar and Jo Shaw

1049

Part I – Commentary on the Articles of the EU Charter

removal of voting rights, without an individualised judicial evaluation and solely based on a mental disability necessitating partial guardianship, cannot be considered compatible with the legitimate grounds for restricting the right to vote.’104 On the basis of this decision, Hungary adopted a new Basic Law which entered into force on 1 January 2012 by virtue of which a judge is to decide on a case-by-case basis whether guardianship warrants disenfranchisement. 39.87 The Alajos Kiss ruling casts doubt on the total exclusions applied by a vast number of EU Member States.105 (d) Limitation of Article 39 CFR by Virtue of Disability 39.88 The limitations in the context of disability are not legal impediments, but practical impediments. 39.89 The EU ratified the UN Convention on the Rights of Persons with Disabilities in 2011 which, as noted above, provides at Article 29: States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others.

39.90 Furthermore in November 2011, the Committee of Ministers of the Council of Europe adopted a Recommendation on the participation of persons with disabilities in political and public life which calls on Council of Europe Member States to guarantee persons with disabilities the right to vote and the right to stand for election in a manner equal to that of any other citizen.106 39.91 However, in 2011, the Organisation for Security and Cooperation in Europe, reported that the right to vote, for persons with disabilities, was a matter of serious concern and went so far as to make detailed recommendations for five EU Member States (Bulgaria, Cyprus, Estonia, Finland and Latvia).107 Disability will likely be an impediment to the effective exercise of Article 39 CFR rights throughout the EU, for example, by way of lack of access to polling stations,108 or the lack of Braille templates for blind voters.109

V. Remedies 39.92 While no express remedies for breach of Article 39 CFR are stipulated, there are hints in the Charter, in the case law and in Directive 93/109/EC. 39.93 The right to an effective remedy as per Article 47 CFR (eg where an individual has been refused entry on the electoral register), would logically require the inclusion of that individual on the relevant electoral register. However, that leaves open the question of what would be an appropriate remedy where the relevant election has already taken

104

Ibid. Above n 56 p189. 106 Above n 56 p186. 107 Ibid. 108 Ibid. In Latvia in 2011 only 46% of polling stations were accessible, in the Netherlands, 83% and in Poland, just 33%. 109 As is the case in Portugal. 105

1050

Lamin Khadar and Jo Shaw

Art 39 – Right to Vote and Stand: European Parl

place and the individual concerned has been irrevocably disenfranchised with respect to that election. This point was discussed by the ECJ, as it was called at the time, in the Eman and 39.94 Sevinger case. The Court states, at paragraph 69–71: [T]he principle of liability on the part of a Member State for damage caused to individuals as a result of breaches of Community law for which it can be held responsible is inherent in the system of the Treaty, and ... a Member State is thus required to make reparation for the damage caused where the rule of law infringed is intended to confer rights on individuals, the breach is sufficiently serious and there is a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties (Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029, paragraphs 31 and 51, and Case C-224/01 Köbler [2003] ECR I-10239, paragraphs 30 and 51) ... Subject to the right of reparation which flows directly from Community law where the conditions referred to [above] are satisfied it is for the national law of each Member State to determine the rules allowing legal redress for a person who, because of a national provision that is contrary to Community law, has not been entered on the electoral register for the election of the members of the European Parliament … and has therefore been excluded from participation in those elections. Those remedies, which may include compensation for the loss caused by the infringement of Community law for which the State may be held responsible, must comply with the principles of equivalence and effectiveness.110

It appears then that the likely remedies for a breach of Article 39 CFR would either be 39.95 inclusion on the electoral register or, where the election has already taken place, whichever remedies would be applicable in the relevant Member State (which may include, but would not be limited to, compensation for loss). This issue was considered in the UK in the recent Supreme Court case of Chester and McGeoch, in the context of prisoner disenfranchisement.111 While a number of claims brought before the UK courts already on the basis of the UK’s failure to implement the original Hirst (No 2) judgment of the ECtHR have ‘succeeded’ in the sense that the courts have recognised the incompatibility of UK law with the ECHR,112 no meaningful remedies, such as damages, have yet been awarded. In Chester and McGeoch, it was argued by the applicants that damages should be awarded to the claimants who had allegedly been denied their EU ‘right to vote’ under the treaties and the CFR read together with ECtHR jurisprudence. The United Kingdom Supreme Court hinted that damages might (arguably), in principle, be available in such circumstances (according to the Brasserie du Pêcheur and Factortame principles). However, the Court did not believe that there was any individual EU law right to vote and considered that, even if there was, no damages would be available under EU or national law to the claimants in the cases in question.113 39.96 Additionally, Directive 93/109/EC, Article 11(2) provides: Should a person be refused entry on the electoral roll or his application to stand as a candidate be rejected, the person concerned shall be entitled to legal remedies on the same terms as the legislation of the Member State of residence prescribes for voters and persons entitled to stand as candidates who are its nationals.

110 111 112 113

Ibid [69]–[71]. Above n 97. Eg Smith v Scott 2007 SC 345; 2007 SLT 137; 2007 SCLR 268. Above n 97 [69]–[83].

Lamin Khadar and Jo Shaw

1051

Part I – Commentary on the Articles of the EU Charter

39.97 The principle of non-discrimination on grounds of nationality therefore also applies to any remedies that are provided under national law.

E. Evaluation The same essential rights were at once claimed as the inalienable heritage of all human beings and as the specific heritage of specific nations, the same nation was at once declared to be subject to laws, which would supposedly flow from the Rights of Man, and sovereign, that is, bound by no universal law and acknowledging nothing superior to itself [and] from then on human rights were protected and enforced only as national rights.114

39.98 In this famous passage on the 1789 French Declaration of the Rights of Man and of the Citizen, Hanna Arendt draws our attention not only to the power vacuum that exists beyond the sovereign, but also to the stark difference between ‘human rights’ and ‘citizens’ rights’. While citizens’ rights are concrete and enforceable by an identifiable political and judicial authority, human rights are, to some extent, aspirational and intangible.115 39.99 Nowhere is this contrast between human rights and citizens’ rights more apparent than in the context of the ‘right’ to universal suffrage as formulated in international human rights law. The ideal of universal human suffrage, as articulated in many international treaties, has historically been subject to the (virtually unquestioned) caveat that this principle does not extend to non-citizens. It has, in international practice, been perfectly legitimate for states to exclude non-citizens from the scope of their franchise without any suggestion arising that the principle of universal suffrage was being encroached upon.116 Although the position has moved on somewhat, the lacuna identified by Arendt is still very relevant today in the context of universal suffrage rights. 39.100 The rights accorded under the EU Treaties to citizens of the Union to vote and stand in European parliamentary elections are entirely sui generis in that, on the one hand, they allocate political membership on the basis of Member State nationality (ie recognising political rights as citizens’ rights rather than human rights in line with the historical status quo) and on the other hand, they are accorded to all ‘citizens’ of the supranational union (regardless of nationality) such that they also, in some way, transcend nationality. These rights have evolved out of the unprecedented experiment that is the European integration project, and they are very much the creature of that project. From this perspective, Article 39 CFR is merely the latest stage in this evolutionary trajectory and is every bit as unique and unprecedented as what it follows. 39.101 Indeed, Article 39 CFR is a curious combination of a classic universal suffrage right, of the variety found in many international human rights treaties (ie Article 39(2)) and

114

H Arendt, The Origins of Totalitarianism (London, Andre Deutsch, 1986) 291. A distinction is often made between absolute and relative human rights, where absolute rights are rights that everyone has against everyone else and relative human rights are rights that every member of every legal community has in her respective legal community, see eg R Alexy, ‘Discourse Theory and Human Rights’ (1996) 9 Ratio Juris 209 and 210. 116 New Zealand, where non-nationals have been entitled to vote since 1975, is perhaps the most complete exception to this. 115

1052

Lamin Khadar and Jo Shaw

Art 39 – Right to Vote and Stand: European Parl

a distinctly ‘Union-esque’ EU citizenship right guaranteeing special protections for mobile EU citizens (ie Art 39(1)). Even more curious, perhaps, is the order in which the two limbs of the provision have been articulated. One would expect the more general principle of universal suffrage to have been set out first and the more specific non-discrimination right to have been set out second. It could perhaps be postulated that the drafters of Article 39 adopted this rather peculiar arrangement so as to prevent the broader universal suffrage right (of somewhat unknown legal application in the EU context) from ‘infecting’ the rather more specific and historically contingent EU citizenship right. It seems likely that the most obvious place to look, if trying to assess the potential future substance of the universal suffrage right at Article 39(2), is to the jurisprudence of the ECtHR (especially if we note the wording of Art 52(3) CFR as discussed above). Perhaps the development of Article 39(2) will shadow the cautious jurisprudence of that Court, which has struck a delicate balance between recognising the historical right of the sovereign to demarcate the demos on the one hand, and extending the ostensibly universal right to human suffrage to ever more groups of individuals on the other. The question that pervades ECHR jurisprudence, as noted above, is: how wide a ‘margin of appreciation’ do states have when determining the electorate? Recent cases such as Hirst v United Kingdom (No 2)117 and Scoppola v Italy (No 3)118 have confirmed that it is within the competence of states to disenfranchise prisoners so long as there is no general and automatic disenfranchisement of all serving prisoners. The ECtHR has also established that stipulating a residence or length-of-residence requirement for citizens wishing to vote is within the competence of states119 and, in Sitaropoulos v Greece (No 1),120 that Article 3, Protocol 1, does not obligate States to enfranchise their expatriate citizens. Moreover, in Hirst v United Kingdom (No 2), the ECtHR also confirmed that the setting of a minimum age threshold equally does not fall foul of Article 3.121 The Court has, however, constrained the margin somewhat, noting for example, as noted above, in Alajo Kiss v Hungary122 and in Hirst (No 2) that the margin of appreciation should also be narrower where legislation disenfranchised a particularly vulnerable group in society.123 In the 2012 case of Sitaropoulos v Greece (No 2), the Court repeated its oft-recited caution that: it is for the [ECtHR] to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions to which the right to vote and the right to stand for election are made subject do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they meet the requirements of lawfulness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate.124

117

Above n 94. Above n 95. 119 Above n 98. 120 Sitaropoulos and Others v Greece (No 1) App no 42202/07 (2010) (confirmed in Sitaropoulos and Others v Greece (No 2) App no 42202/07 (2012)). 121 Above n 94. 122 Above n 101. 123 Ibid [41]. 124 See Sitaropoulos and Others v Greece (No 2) (n 120) [64]. 118

Lamin Khadar and Jo Shaw

1053

39.102

39.103

39.104

39.105

Part I – Commentary on the Articles of the EU Charter

39.106

The ECtHR has had fewer occasions to deal with an alleged violation of an individual’s right to stand as a candidate for election under Article 3. In Ždanoka v Latvia, the court noted that the ‘margin of appreciation’ was historically narrower with respect to the right to vote than the right to stand as a candidate and involved different considerations: As regards the right to stand as a candidate for election, i.e. the so-called ‘passive’ aspect of the rights guaranteed by Art. 3 of Protocol No. 1, the Court has been even more cautious in its assessment of restrictions in that context than when it has been called upon to examine restrictions on the right to vote, i.e. the so-called ‘active’ element of the rights under Art. 3 of Protocol No. 1. In the Melnychenko judgment … the Court observed that stricter requirements may be imposed on eligibility to stand for election to Parliament than is the case for eligibility to vote. In fact, while the test relating to the ‘active’ aspect of Art. 3 of Protocol No. 1 has usually included a wider assessment of the proportionality of the statutory provisions disqualifying a person or a certain group of persons from the right to vote, the Court’s test in relation to the ‘passive’ aspect of the above provision has been limited largely to a check on the absence of arbitrariness in the domestic procedures leading to disqualification of an individual from standing as a candidate.125

39.107 This position was echoed in the more recent case of Sitaropoulos (No 1).126 Meanwhile, in Melnychenko v Ukraine, the Court also recognised that legislation establishing domestic residence requirements for a parliamentary candidate was, in principle, compatible with Article 3.127 Furthermore, in Glimmerveen and Hagenbeek v Netherlands, the EComHR declared inadmissible two applications concerning the refusal to allow the applicants, who were the leaders of a banned organisation with racist and xenophobic tendencies, to stand for election.128 Although the Court has been more forthright in cases like Alajo Kiss and Hirst (No 2), 39.108 on the whole, the basic premise that states are to have a considerable amount of discretion with respect to determining the scope of the franchise (and electoral procedure more generally) remains relatively unchanged. Taking the jurisprudence emanating from the ECtHR together with the CJEU case 39.109 law analysed earlier in this chapter, the current status quo can be summed up in the following way: while states are to have considerable discretion to determine the contours of their political communities, such discretion is not, as it once was, absolute: it is subject to international and regional oversight and regulation and it is fettered by considerations of reasonableness, equality, proportionality and the legitimacy of the ostensible aims being pursued. The key question, with respect to Article 39 CFR, and especially Article 39(2), is 39.110 whether these provisions will, through their future interpretation by the CJEU, have any transformative effect on the ‘margin of appreciation’ currently accorded to EU Member States to determine the electorate. Will these provisions, over time, further erode the state sovereignty to determine the electorate? In McGeoch v Lord President of the Council Court of Session,129 an attempt was made 39.111 by lawyers for the claimant to extend the municipal franchise to prisoners in Scotland

125 126 127 128 129

1054

Ždanoka v Latvia App no 58278/00 (2006) [115]. See Sitaropoulos and Others v Greece (No 1) (n 120) [41]–[45]. Melnychenko v Ukraine App no 17707/02 (2006) [53]–[67]. Glimmerveen and Hagenbeek v the Netherlands App nos 8348/78 and 8406/78 (1979). See McGeoch v Lord President of the Council [2011] CSIH 67.

Lamin Khadar and Jo Shaw

Art 39 – Right to Vote and Stand: European Parl

by arguing that the convicted prisoner disenfranchisement provisions under UK law were incompatible with rights granted under Article 20(2)(b) TFEU and Article 40 CFR. However, the Scottish courts held that the EU law did not confer upon the nationals of a Member State the right to vote in municipal elections in that state (ie only mobile EU citizens were covered by the provisions). The Court was very careful to distinguish the right to vote in municipal elections from the right to vote in European parliamentary elections, noting that while the franchise for municipal elections did not fall within the scope of EU law, the franchise for European elections did, under Article 14 TFEU (upon which Art 39(2) CFR is based). This begged the question of what would happen if European Parliament elections were brought into play, and this is precisely what happened in the conjoined appeals to the UK Supreme Court in Chester and McGeoch. In this case, the claimants argued that their right to vote in EP elections deriving from the EU treaties and Article 39 CFR taken together with the ECtHR jurisprudence, was violated by the UK’s application of an indiscriminate ban on prisoner voting. However, the UK Supreme Court took the position, contrary to the position taken in this chapter, that the Lisbon Treaty innovations taken together with the coming into force of the Charter, could not be read as establishing an individual right to vote for citizens of the Union in EP elections. The Supreme Court adopted a very narrow reading of both the ECtHR and CJEU jurisprudence discussed above and also the Treaty provisions together with Article 39 CFR. In reaching its conclusions, the Supreme Court played down the universal suffrage component of the EU legislation, failing to discuss in any detail either Article 10(3) TEU or Article 39(2) CFR. Finding that EU law contained no individual right to vote in EP elections, the Court refused to make a reference to the CJEU denying the European Court the opportunity to articulate its understanding of both the character of the universal suffrage right in relation to EP elections and also the scope of the Member States’ margin of appreciation in that context.130 We find the Supreme Court’s reading of the relevant European law excessively nar- 39.112 row. We maintain that the law, certainly post-2009, does suggest an individual right to vote for Union Citizens in EP elections. Moreover, we would argue that, if the EU really does ‘own’ the franchise to European Parliament elections, following the reasoning of the Scottish courts in the earlier McGeoch case, and as would seem to follow from an argument based on understanding the EU as an emergent constitutional polity, it is arguable that, although at the present time it remains within the competence of Member States to extend the franchise to certain non-EU citizens (as Spain v UK shows), Member States are not permitted to exclude certain groups of EU citizens from the franchise altogether, as Eman and Sevinger hints at (especially if this is not done proportionately or rationally). This is an interesting question, given the number of EU Member States that still disenfranchise both prisoners and persons with mental impairments. Moreover, if EU Member States are indeed prohibited from excluding certain

130 Above n 97 [43]–[68]. We suggest that the position taken by the Supreme Court and its refusal to make a reference to the CJEU can perhaps best be understood in light of the UK’s current stalemate with the Strasbourg Court and the unwillingness of the (Conservative led) Coalition Government to grant any form of voting rights to prisoners. See the discussion in BBC News, ‘Prisoner voting: Government urges Supreme Court to uphold ban’, www.bbc.co.uk/news/uk-22855483; See also, the UK Parliamentary report on Prisoners’ voting rights (October 2013), SN/PC/01764, http://www.parliament.uk/briefing-papers/SN01764.

Lamin Khadar and Jo Shaw

1055

Part I – Commentary on the Articles of the EU Charter

groups of EU citizens from the European Parliament franchise altogether, is that now on the basis of EU law general principles, CJEU case law, or ECHR case law? All of these, as already noted, are likely relevant for the interpretation of Article 39 CFR by virtue of Article 52 CFR. These may be the most important questions to come before the courts of both the Member States and of the EU in the coming years on the question of the scope of the right of universal suffrage.

1056

Lamin Khadar and Jo Shaw

Article 40 Article 40 Right to Vote and to Stand as a Candidate at Municipal Elections Every citizen of the Union has the right to vote and to stand as a candidate at municipal elections in the Member State in which he or she resides under the same conditions as nationals of that State.

Text of Explanatory Note on Article 40 This right corresponds to the right guaranteed by Article 20(2) of the Treaty on the Functioning of the European Union (cf. also the legal base in Article 22 of the Treaty on the Functioning of the European Union for the adoption of detailed arrangements for the exercise of that right). In accordance with Article 52(2) of the Charter, it applies under the conditions defined in these Articles in the Treaties.

Select Bibliography G van den Berghe, Political Rights for European Citizens (Aldershot, Gower, 1982). N Dubajic, ‘Le vote des étrangers au Luxembourg: évolution de 1999 à 2005’ (2007) (XIX) 114 Migration Société 129–40. JA Frowein and W Peukert, Europäische MenschenRechtsKonvenion, 2nd edn (Kehl, Engel Verlag, 1997). K Groenendijk, ‘Local Voting Rights for Non-Nationals in Europe: What We Know and What We Need to Learn’, in Bertelsmann Stiftung, European Policy Centre and Migration Policy Institute (eds), Delivering Citizenship (Gütersloh, Verlag Bertelsmann Stiftung, 2008). ——, ‘Political Participation and Immigrant Integration’, in K Sieveking (ed), Wechselwirkungen von Migration und Integration im europäischen Mehrebenensystem (Baden-Baden, Nomos, 2011) 73–87. D Jacobs, ‘The debate over enfranchisement of foreign residents in Belgium’ (1999) 25 Journal of Ethnic and Migration Studies 649–63. K Jeffers, Inclusive Democracy in Europe, Contributions from the 2011 EUDO Dissemination Conference on Inclusive Democracy and the EUDO online forum debate on national voting rights for EU citizens residing in other Member States (European Union Democracy Observatory, EUDO eBook) www.eudo.eu. S Magiera, ‘Article 40’, in M Meyer (ed), Charta der Grundrechte der Europäischen Union (BadenBaden, Nomos, 2012) 512–18. R Schunda, Das Wahlrecht von Unionsbürger (Berlin, Peter Lang, 2003). J Show, ‘Sovereignty at the Boundaries of the Polity’, in N Walker (ed), Sovereignty in Transition (Oxford, Hart Publishing, 2003). MF Verdier, ‘Le droit de vote et d´éligibilité des citoyens de l´Union européenne aux elections municipals Nouvelle manifestation concrete de la citoyenneté européenne’ (1999) Revue trimestrielle de droit européen 59ff. M Verpeaux, ‘Article II-100’, in L Burgorgue-Larsen A Levade, F Picod (eds), Traité établissant une Constitution pour l’Europe Partie II: La Charte des droit Fondamentaux de l’Union, Commentaire article par article, Vol II (Brussels, Bruylant, 2005) 514–24.

Part I – Commentary on the Articles of the EU Charter

U Wölker, Zu Freiheit und Grenzen der politischen Betätigung von Ausländern, Veröffentlichungen des Max-Planck-Instituts für ausländisches öffentliches Recht und Völkerrecht Vol 95 (Berlin/ Heidelberg, Springer Verlag, 1982).

A. Field of Application of Article 40 40.01 The Union is founded on the value of respect for democracy (Art 2 TEU). The criteria for eligibility of a country for accession to the Union agreed by the European Council in Copenhagen in 1993 require, among others, that all citizens of the country should be able to participate, on an equal basis, in political decision-making at every single governing level, from local municipalities up to the highest, national, level. This also requires free elections with a secret ballot, and the right to establish political parties without any hindrance from the state. 40.02 Article 40 implicitly refers to Article 20(2)(b) and Article 22(2) of the TFEU by using identical wording. It does not extend the field of application of Union law beyond those two provisions in the TFEU. Article 40 is directed primarily at the Member States and their national and local bodies responsible for the organisation of municipal elections. 40.03 Article 40 only applies to municipal elections. There is no Union law covering elections of political bodies at a higher level, leaving asides elections for the European Parliament covered by Article 39 of the Charter. Article 40 provides neither for a harmonisation of national law on local elections, besides the equal treatment rule, nor for voting rights for third-country nationals.

B. Interrelationship of Article 40 with Other Provisions of the Charter 40.04 Article 39(1) of the Charter grants Union citizens a similarly worded right to vote and stand as a candidate at elections to the European Parliament in their Member State of residence. Article 39(2) provides that the EP elections are ‘by direct universal suffrage in a free and secret ballot’. The absence of such a clause in Article 40 does not mean that Member States are free not to apply those four requirements at the municipal level. Provisions on elections in human rights treaties and the Copenhagen criteria restrict the discretion of Member States. 40.05 Article 12 of the Charter guarantees the right to freedom of assembly and association to everyone ‘in particular in political, trade union and civic matters’. The reference to political matters implies that this freedom also extends to membership and founding of political parties. In an earlier draft of what later became Article 12(2) it was stipulated: ‘Every citizen of the Union has the right to join and to form political parties.’1 That sentence was deleted during the negotiations in the Convention, which originally

1

Art B in the President’s draft, Council document (CHARTE) 4170/00, CONVENT 17 of 20 March 2000¸ p 3.

1058

Kees Groenendijk

Art 40 – Right to Vote and Stand: Municipal Elections

drafted the Charter, but its content is included in the more generally worded Article 12(1). The Convention rejected a Spanish amendment excluding nationals of other Member States from the right to establish a political party.2 The right to vote or stand for election would be restricted in practice if the voter or the candidate would be unable to become member of an existing party or found a new political party. Article 47 of the Charter grants every EU citizen an effective remedy against any 40.06 decision of national authorities concerning the right to vote and stand for election in municipal elections in their Member State of residence.

C. Sources of Article 40 Rights I. ECHR The view that political activities of non-citizens can be restricted originates in tradi- 40.07 tional international law. This view was still prevalent in the first half of the twentieth century, as is reflected in Article 16 ECHR stipulating: ‘Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.’ With the closer cooperation of European states, this view became gradually more problematic.3 The Council of Europe’s Parliamentary Assembly already in 1977 was advising the deletion of Article 16 ECHR.4 The European Court of Human Rights held in the case of the expulsion of a German MEP from French overseas territories in Polynesia that her possession of the nationality of a Member State of the European Union and, in addition to that, her status as a Member of the European Parliament, did not allow Article 16 ECHR to be raised against her, especially as the people of those territories take part in the European Parliament elections.5 This judgment effectively excludes the possibility of an EU Member State invoking Article 16 against a national of another Member State. A similar provision was not included in later human rights treaties. Article 3 of the First Protocol (1952) guarantees the right to free elections: ‘The High 40.08 Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.’ The European Court of Human Right in its first judgment on Article 3 stressed that ‘it enshrines a characteristic principle of democracy’ and that it ‘does not create any obligation to introduce a specific system … such

2

Council document (CHARTE) 4332/00, CONVENT 28 of 25 May 2000, p 423 (amendment 334). JA Frowein and W Peukert, Europäische MenschenRechtsKonvenion, 2nd edn (Kehl, Engel Verlag, 1997) 487. 4 Parl Ass Recommendation 799 (1977) on the political rights of aliens, Recommendation 903 (1980) on the right of aliens to vote and stand in local authorities elections and Recommendation 951 (1982) on voting rights of nationals of Council of Europe Member States; cf the limited Recommendation R (18) 18 concerning participation at municipal level adopted by the Committee of Ministers on 6 November 1981. 5 Piermont v France App no 15778/89 (ECtHR, 27 April 1995), A Vol 314 [64]; see also Hirst App no 74025/01 (ECtHR, 6 October 2005), and Greens and MT v UK App no 60041/08 (24 November 2010) on the voting rights of detained persons. 3

Kees Groenendijk

1059

Part I – Commentary on the Articles of the EU Charter

as proportional representation or majority voting with one or two ballots’.6 The use of the term ‘people’ could allow for different interpretation as to the personal scope of Article 3. But the Strasbourg Court held that this article implies ‘the principle of equality of treatment of all citizens in the exercise of their right to vote and their right to stand for election’, thus restricting this right to citizens.7 The reference to the legislature in Article 3 appears to imply that it does not apply to municipal elections.8

II. UN Treaties 40.09 The 1948 Universal Declaration of Human Rights in its Article 21(1) recognises the right of everyone ‘to take part in the government of his country, directly or through freely chosen representatives’. This provision also relates to national elections. It does not specify whether the term ‘his country’ is determined by the nationality or the residence of a person. Article 25 ICCPR explicitly limits its guarantee of political rights to citizens: Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country.

40.10 The UN Human Rights Committee held that the right to freedom of association, including the right to form and join organisations and associations concerned with political and public affairs, is an essential adjunct to the rights protected by Article 25 ICCPR.9 Specific provisions prohibiting discrimination with respect to political rights are 40.11 to be found in Article 5 CERD (‘political rights, in particular the right to participate in elections—to vote and to stand for election—on the basis of universal and equal suffrage … without distinction as to race, colour, or national or ethnic origin’) and in Article 7 CEDAW (‘ensure to women, on equal terms with men, the right … to vote in all elections and public referenda and to be eligible for election to all publicly elected bodies’). With respect to persons with disabilities, state parties are obliged to ensure effective and full participation ‘in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected’ (Art 29 CRPD). The relevant provisions in ICCPR, CERD and CEDAW also cover municipal elections.10 Article 41 ICMWR guarantees voting rights only in the migrants’ country of origin.

6

Mathieu-Mohin and Clerfayt App no 113 (ECtHR 2 March 1987) 22 and 24. Ibid 22–23. 8 X v UK App no 5155/71 (EComHR 12 July 1976), Decisions and Reports, Vol 6, 14; also G van den Berghe, Political Rights for European Citizens (Aldershot, Gower, 1982) 208; for the opposite view, P van Dijk and GJH van Hoof, De Europese Conventie in theorie en praktijk (Nijmegen, Ars Aequi Libri, 1990) 537. 9 General Comment No 25 on the right to participate in public affairs, voting rights and the right of equal access to public service, adopted on 12 July 1996, CCPR/C/21/Rev 1/Add 7, para 26. 10 Human Rights Committee in General Comment No 25, paras 3, 5 and 6. 7

1060

Kees Groenendijk

Art 40 – Right to Vote and Stand: Municipal Elections

III. Council of Europe In 1992 the Council of Europe adopted the Convention on the right to participate in 40.12 political life at local level.11 Article 6 of the Convention provides that ‘every foreign resident’, irrespective of his nationality, after five years of lawful residence has the right to vote and stand for election in local authority elections under the same conditions as nationals. The Convention’s preamble refers to the need to improve integration of immigrants12 and observes that immigrants generally have the same duties as citizens at the local level. The Convention can be seen as an implicit partial amendment of Article 16 ECHR. In 2013, six EU Member States had ratified the Convention (Denmark, Finland, France, Italy, Netherlands and Sweden) and five others had signed only (Cyprus, Czech Republic, Lithuania, Slovenia and the UK). Italy excluded the provision on municipal voting rights from its ratification. Detailed rules have been codified in the Code of Good Practices in Electoral Matters, adopted in 2002 by the Venice Commission.13 The ECtHR referred to this code in two judgments in 2010.14

IV. Other Sources Several Member States had to amend their constitutions after 1992 to allow for nationals 40.13 of other Member States to vote in municipal elections, eg Belgium, Germany, France and Poland.15 In Belgium the required amendment entered into force only in 1999.16 In Denmark, Finland, Ireland, Netherlands, Spain, Sweden and the UK the constitutional law already allowed for the participation of non-nationals in municipal elections. The Spanish Constitution (Art 13(2)) allows non-nationals to vote on the basis of reciprocity. Most of the Member States in the second group and Belgium did extend voting rights in municipal elections to third-country nationals as well. As of 1977, Member States of the Nordic Union started to grant municipal voting rights, first to the resident nationals of other Nordic states, and later to all non-national residents.17 The Netherlands followed this example by introducing a provision at the constitutional revision of 1983 in view of the discussions on extension of voting rights to nationals of other EEC countries, but the revision covers all non-national residents.

11

ETS No 144 adopted 5 February 1992. That aim is also mentioned in the 14th preamble to Directive 94/80/EC. 13 The Code was adopted on 5 July 2002 (CDL-AD (2002) 23 rev. 14 Grosar v Romania App no 78039/01 (ECtHR, 2 March 2010) [22] and Aliyev v Azerbaijan App no 18705/06 (ECtHR, 8 April 2010) [54]. 15 Art 8 of the Belgian Constitution, Art 28(1) of the German Constitution, Art 3 of the French Constitution and Conseil Constitutionel 9 April 1992, Decision No 92-308 [21]–[37]; see M Verpeaux, ‘Article II-100’, in L Burgorgue-Larsen, A Levade and F Picod (eds), Traité établissant une Constitution pour l’Europe Partie II: La Charte des droit Fondamentaux de l’Union, Commentaire article par article, Vol II (Brussels, Bruylant, 2005) 514–24. 16 Act of 18 December 1998 adopted after the judgment of the CJEU of 9 July 1998 in Case C-323/97 Commission/Belgium [1998] ECR I-4281; see D Jacobs, ‘The debate over enfranchisement of foreign residents in Belgium’ (1999) 25 Journal of Ethnic and Migration Studies 649–63. 17 K Groenendijk, ‘Local Voting Rights for Non-Nationals in Europe: What We Know and What We Need to Learn’, in Bertelsmann Stiftung, European Policy Centre and Migration Policy Institute (eds), Delivering Citizenship (Gütersloh, Verlag Bertelsmann Stiftung, 2008). 12

Kees Groenendijk

1061

Part I – Commentary on the Articles of the EU Charter

40.14

Detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals are laid down in Council Directive 94/80/EC adopted on 19 December 1994.18

D. Analysis I. General Remarks 40.15 Political rights of nationals of Member States, working or living in another Member State, gradually developed since 1957.19 The EEC Treaty did not provide for political rights for nationals of Member States. On the contrary, Article 48(4) provided that the free movement provisions on equal treatment of workers in the EEC Treaty ‘shall not apply to employment in the public service’. Similar restrictions apply with regard to the right to establishment and to provision of services.20 After 1980, the remit of that exclusion was considerably reduced due to persistent action of the Commission and a gradual development of the case law of the Court, eventually restricting the exclusion solely to posts involving the direct or indirect participation in the exercise of public law powers and duties designed to safeguard the general interest of the state and other public authorities, demanding a special relationship of allegiance to the state.21 40.16 Workers from other Member States in 1968 were granted equal treatment as regards trade union rights only for membership and the active right to vote in trade union elections. They were entitled to be elected as member of workers councils, but could be excluded from posts in public law bodies representing workers.22 The right to be elected as a trade union official was added by the Council in 1976.23 The right to be elected in public law bodies representing workers was acquired 15 years later as a result of the Court’s judgments in ASTI I and ASTI II.24 The issue of granting nationals of Member States who make use of their free move40.17 ment rights and reside in another Member State the right to participate in municipal elections in that other Member State has been debated in the EEC since the 1970s. The Parliament repeatedly tabled this issue.25 The first communication of the Commission on this extension of voting rights in municipal elections dates from 1975.26 Another

18

[1994] OJ L368/38; for the Commission’s proposal, see [1994] OJ C105. For the early decades, see G van den Berghe, Political Rights for European Citizens (Aldershot, Gower, 1982) chs 1, 2 and 8. 20 Still to be found in Arts 45(4), 51 and 62 TFEU. 21 Case C-405/01 Colegio de Oficiales [2003] ECR I-10391, CJEU and Case C-114/97 Commission v Spain [1998] ECR I-6717, CJEU. 22 Art 8 of Regulation EEC 1612/68, [1968] OJ L257. 23 After the amendment of Art 8 of Regulation 1612/68 by Regulation EEC 312/76, [1976] OJ L39/2. 24 Case C-213/90 ASTI I [1991] ECR I-3507, CJEU and Case C-118/92 ASTI II [1994] ECR I-1891, CJEU. 25 In written questions already in the early 1970s: see [1972] OJ C32/10 and [1973] OJ C85/11 and the Vetter report of 6 November 1987, PE 115.057. 26 [1975] Bull EC, no 7, pp 23 et seq. 19

1062

Kees Groenendijk

Art 40 – Right to Vote and Stand: Municipal Elections

communication of 198627 was followed by a proposal for a Directive in 1988 and an amended proposal in 1989. Both proposals were based on Article 235 EEC Treaty but not accepted by the Council.28 In Maastricht the Member States agreed to insert Article 8b(1) in the EC Treaty providing that ‘(e)very citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State.’ This right was to be exercised ‘subject to detailed arrangements’ to be adopted before 1995 by the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament. These detailed arrangements could provide for ‘derogations where warranted by problems specific to a Member State’. The arrangements were laid down in time in Directive 94/80/EC.29 The Amsterdam Treaty turned Article 8b into Article 19(1) ECT, only deleting the deadline for the secondary legislation that had already been adopted. The Treaty of Lisbon retained the provision as Article 22(2) TFEU adding a more general definition in the list of primary rights of Union citizens in Article 20(2) TFEU. As noted above, Article 40 Charter, like Articles 20 and 22(2) TFEU, does not impose 40.18 full harmonisation of Member States’ electoral systems.30

II. Scope of Application Article 40, like Articles 20(2) and 22 TFEU, does not guarantee voting rights in municipal 40.19 elections for all Union citizens. It constitutes an application of the principle of nondiscrimination between nationals and non-nationals. It is a corollary to the right of free movement and residence enshrined in the Treaty.31 The personal scope of application of Article 40 is limited to resident nationals of other Member States. Article 40 does not guarantee voting rights of Union citizens resident in the Member State of their nationality.32 This is apparent from the first sentence of Article 22(2) TFEU: ‘every citizen of the Union residing in a Member State of which he is not a national’. Those words were included in the original proposal for Article 40, but they were deleted during negotiations in the Convention. This also happened to the original second sentence: ‘This right shall be exercised in accordance with the detailed arrangements laid down in the Treaty establishing the European Community.’33 Both elements are now covered by Article 52(2) of the Charter; see the reference to that provision in the official explanations to Article 40. As noted above, Directive 94/80/EC affects neither the national law of Member States 40.20 concerning the voting right of their own nationals residing abroad, nor the voting rights of third-country national residents in those states.34 Several members of the Convention

27

COM (86) 487 of 7 October 1986, BullEC 1986, no 7. COM (88) 371, [1988] OJ C246/3 and COM (89) 524, [1989] OJ C290/4. 29 n 18 above. 30 Fourth preamble of Directive 94/80/EC. 31 Third preamble of Directive 94/80/EC and COM (95) 184, p 14. 32 Case C-535/08 Pignataro [2009] ECR I-50, CJEU [17]: Arts 17 and 18 ECT do not affect the voting rights of Italian citizens resident in Italy. 33 Art D in the President’s draft, CHARTE 4170/00, CONVENT 17 of 20 March 2000. 34 Art 1(2) of Directive 94/80/EC. 28

Kees Groenendijk

1063

Part I – Commentary on the Articles of the EU Charter

proposed amendments to extend the municipal voting rights to resident third-country nationals but without success.35 40.21 Article 40 clearly does not apply to national elections, but Member States may provide in their national law for voting rights of nationals of other Member States in parliamentary elections.36 In Ireland, resident British nationals may vote in national elections and in the UK, nationals of Ireland as well as Commonwealth citizens may vote in parliamentary elections.37 A European citizens’ initiative (‘Let me vote’) (in accordance with Art 24 TFEU), with the aim of granting EU citizens residing in another Member State the right to vote in all political elections in their country of residence, on the same conditions as the nationals of that state, started in May 2012.38

III. Specific Provisions 40.22 The definition of the term municipal election in Article 2(1)(b) of Directive 94/80/EC refers to elections by direct and universal suffrage to appoint the members of the representative council. This definition excludes municipal referenda from the material scope of the Directive and supports the position that such referenda are not covered by Article 40.39 In some Member States (eg Finland), the national law grants resident nationals of other Member States the right to vote in local referenda. Member States have to inform the Commission what are the ‘basic local government units’ to which the provision on municipal elections apply.40 Union citizens are free to choose whether they want to take part in the municipal 40.23 elections in the Member State in which they reside. If voting is compulsory in that Member State, voters who have applied for registration and are entered on the electoral role are obliged to vote.41 The Union citizen can end this obligation by having his name removed from the electoral rolls.42 Article 40 of the Charter recognises the right to vote and to stand as a candidate in municipal elections in the Member State of residence, but it does not deprive a Union citizen of the right to vote and to stand as a candidate in the Member State of which he or she is a national.43

35

CHARTE 4332/00 CONVENT 28 of 25 May 2000, pp 640, 659 and 727 (amendments 525, 539 and 596). Art 12(4) of Directive 94/80/EC. 37 s 1(1)(c) Representation of the People Act 2000. 38 Commission’s registration number: ECI (2012) 000006; see ec.europa.eu/citizens-initiative/public/ sitemap under ‘Open initiatives’; for a debate on this initiative see www.eudo-citizenship.eu/commentaries/ citizenship-forum/594-should-eu-citizens-living-in-other-members-states-vote-there-in-national-elections, and K Jeffers, Inclusive Democracy in Europe, Contributions from the 2011 EUDO Dissemination Conference on Inclusive Democracy and the EUDO online forum debate on national voting rights for EU citizens residing in other Member States (European Union Democracy Observatory, EUDO eBook) wwweudoeu. 39 S Magiera, ‘Article 40’, in M Meyer (ed), Charta der Grundrechte der Europäischen Union (Baden-Baden, Nomos, 2012) 517 fn 86. 40 For an updated version of the relevant Annex to Directive 94/80/EC, see the Commission’s implementing decision of 19 July 2012 amending the list of ‘basic local government units’ in [2012] OJ L192/29. 41 Art 7(1) and (2) of Directive 94/80/EC. 42 Art 8(3) of Directive 94/80/EC. 43 Sixth preamble to Directive 94/80/EC. 36

1064

Kees Groenendijk

Art 40 – Right to Vote and Stand: Municipal Elections

Directive 94/80/EC gives detailed rules on the conditions for the right to vote and 40.24 to stand as a candidate, registration on electoral rolls and exclusion.44 Where voting is not compulsory, Member States may provide for automatic registration.45 If a certain period of residence in the Member State is required, residence in other Member States has to be taken into account. Requirements with regard to residence in the municipality should apply irrespective of the nationality of the Union citizen.46 Certain offices may be reserved for nationals of the Member State: elected head, deputy or member of the governing college of the municipal executive.47 Equal voting rights implies full equality not only on the day of the election but also 40.25 in the preparation of the lists of candidates by the parties48 and other political activities relating to the elections, such as the right to be a member of or found a political party; for the relevance of Article 12 Charter on this point see under section B. The Commission was insisting on equal treatment in this respect already in 2002.49 In 2010 the Commission requested Member States to ensure that EU citizens can be members of and found political parties in the Member State of residence. The Commission announced it was looking into this issue with regard to 10 Member States whose national law restricted those rights to their own nationals, since such restrictions constitute an obstacle to the exercise of electoral rights.50 The German rule that non-citizens may not constitute the majority of the membership of a political party or its board51 arguably is incompatible with the principle of equal treatment of Union citizens of other Member States. Finland agreed to drop a rule requiring the support of 5,000 Finish nationals to found a political party.52

IV. Limitations and Derogations 40.26 The limitation of Article 52(2) of the Charter applies to Article 40. Article 22(2) TFEU stipulates that the secondary legislation may provide for deroga- 40.27 tions ‘where warranted by problems specific to a Member State’. Article 12 of Directive 94/80/EC provides for three kinds of derogations. Article 12(1) allows for certain derogations if the proportion of nationals of other Member States exceeds 20 per cent of the total number of the resident Union citizens of voting age in that Member State. That derogation was formulated generally, but with a view to the exceptional situation of Luxembourg. Article 12(2) explicitly allows Belgium to apply similar derogations for a limited number of municipalities. Belgium has not invoked this provision. The third derogation in Article 12(3), applying to a Member State that allows resident nationals of 44 The Commission reported on the application of Directive 94/80/EC in COM (2002) 260, COM (2005) 382 and COM (2012) 199; see also COM (2001) 506, p 14 en COM (2005) 382. 45 Art 7(3). 46 Art 4. 47 Art 5(3). 48 See Magiera (n 39), pp 515–16. 49 COM (2002) 260, p 4. 50 COM (2010) 603, p 18 and COM (2012) 99, p 14. The Member States mentioned are Bulgaria, the Czech Republic, Finland, Germany, Greece, Latvia, Lithuania, Slovakia, Spain and Poland. 51 Para 2(3)(1) Parteiengesetz. 52 European Commission, 2011 Report on the Application of the EU Charter of Fundamental Rights (DG Justice, 2012) 71.

Kees Groenendijk

1065

Part I – Commentary on the Articles of the EU Charter

other Member States to vote for the national parliament, also has never been invoked. The Commission has periodically checked whether the invocation of the derogation by Luxembourg is still warranted, and each time given a positive answer. In 2011 the proportion of resident non-national Union Citizens of voting age was 43 per cent (up from 29 per cent in 1995). In 2003 Luxembourg reduced its very strict residence requirements to five years for both the active and the passive right to vote, and extended those rights to resident third-country nationals also.53 The fears that had prevailed in the 1990s, apparently, were overcome after the effects of granting voting powers to part of the resident nationals of other Member States had become apparent and valued more positively.

V. Remedies 40.28 Article 10(2) of Directive 94/80/EC provides that non-nationals EU residents are entitled to legal remedies on similar terms as the laws of the Member State of residence prescribe for voters and persons entitled to stand for elections who are its nationals. Article 47 of the Charter requires that those remedies are effective as well.

E. Evaluation 40.29 At first sight, Article 40 offers nothing new compared with Articles 20 and 22 TFEU. The additional value of the Charter lies in combination with other rights of the Charter, such as Article 12 and Article 47, for the exercise of municipal voting rights. On the basis of limited data in the early reports of the Commission some commen40.30 tators tended to conclude that little use was made of the voting rights in municipal elections in other Member States.54 Commentators often blamed the potential voters and proposed explanations like the supposed limited political horizon of EU migrants or their primary interest being with their state of origin.55 Little attention was paid to the possibility that administrative barriers in Member States requiring individual registration by voters might be a major cause of low participation in those Member States. According to the Commission, at the end of 2010 there were 8 million Union citizens of voting age living in another Member State. In the majority (14) of the Member States, registration on the electoral rolls is automatic with the registration of the residence in the municipality. In Spain, where a special registration on the electoral rolls is still required, more than 50 per cent of non-national EU residents applied for registration on the electoral rolls after the authorities sent them a personal letter on this issue. A considerable proportion of EU migrants appeared to be interested in their voting rights, once the information and administrative barriers had been overcome. In Member States that still require individual application for registration, such as Belgian, Cyprus, Greece, Italy

53 See COM (2002) 260, p 8, COM (2005) 382, p 4, COM (2012) 99, p 12 and N Dubajic, ‘Le vote des étrangers au Luxembourg: évolution de 1999 à 2005’ (2007) (XIX) 114 Migration Société 129–40. 54 COM (2001) 506 and COM (2002) 260. 55 D Chalmers et al, European Union Law, Text and Materials (Cambridge, Cambridge University Press, 2006) 575.

1066

Kees Groenendijk

Art 40 – Right to Vote and Stand: Municipal Elections

and Portugal, the proportion of registered non-national EU citizens is only 10 per cent or less. The Commission over the years has started infringement procedures against each of the latter Member States in order to end unlawful barriers to registration or other forms of non-compliance with Directive 94/80/EC. On the other hand, Luxembourg did lower the originally high barriers for participation (long residence requirements) after the first municipal elections where nationals of other Member States could vote. The fears regarding ‘polarisation between lists of national and nonnational candidates’ mentioned in 1994 in the fourteenth preamble to Directive 94/80/ EC, apparently were overcome. There are few data on the use of voting rights by those registered on the electoral rolls, since after registration no distinction is made between national and non-national voters. It was reported that in France, one-third of the nonnational EU citizens who stood for election were elected, and in Sweden almost 20 per cent. In Austria, Luxembourg and Spain a significant number of non-national EU citizens were members of municipal councils.56 The granting of municipal voting rights to resident nationals of other Member States 40.31 as a fundamental right and an expression of the principle of equal treatment may have a wider impact. In several Member States (eg Belgium, Luxembourg, Netherlands and Slovenia), the prospect of or the actual obligation to grant voting rights to nationals of other Member States paved the way for extension of municipal voting rights to residents of non-EU countries too. A similar development occurred in the Nordic countries during the 1980s: voting rights were first granted to nationals of other Nordic countries, and later on to all non-nationals with several years of residence in the country.

56

COM (2012) 99.

Kees Groenendijk

1067

Article 41 Article 41 Right to Good Administration 1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union. 2. This right includes: (a) the right of every person to be heard, before any individual measure which would affect him or her adversely is taken; (b) the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy; (c) the obligation of the administration to give reasons for its decisions. 3. Every person has the right to have the Union make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States. 4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.

Text of Explanatory Note on Article 41 Article 41 is based on the existence of the Union as subject to the rule of law whose characteristics were developed in the case-law which enshrined inter alia good administration as a general principle of law (see inter alia Court of Justice judgment of 31 March 1992 in Case C-255/90 P Burban [1992] ECR I-2253, and Court of First Instance judgments of 18 September 1995 in Case T-167/94 Nölle [1995] ECR II-2589, and 9 July 1999 in Case T-231/97 New Europe Consulting and others [1999] ECR II-2403). The wording for that right in the first two paragraphs results from the case-law (Court of Justice judgment of 15 October 1987 in Case 222/86 Heylens [1987] ECR 4097, paragraph 15 of the grounds, judgment of 18 October 1989 in Case 374/87 Orkem [1989] ECR 3283, judgment of 21 November 1991 in Case C-269/90 TU München [1991] ECR I-5469, and Court of First Instance judgments of 6 December 1994 in Case T-450/93 Lisrestal [1994] ECR II-1177, 18 September 1995 in Case T-167/94 Nölle [1995] ECR II-2589) and the wording regarding the obligation to give reasons comes from Article 296 of the Treaty on the Functioning of the European Union (cf. also the legal base in Article 298 of the Treaty on the Functioning of the European Union for the adoption of legislation in the interest of an open, efficient and independent European administration). Paragraph 3 reproduces the right now guaranteed by Article 340 of the Treaty on the Functioning of the European Union. Paragraph 4 reproduces the right now guaranteed by Article 20(2)(d) and Article 25 of the Treaty on the Functioning of the European Union. In accordance with Article 52(2) of the Charter, those rights are to be applied under the conditions and within the limits defined by the Treaties. The right to an effective remedy, which is an important aspect of this question, is guaranteed in Article 47 of this Charter.

Select Bibliography E Barbier de la Serre, ‘Procedural Justice in the European Community Case Law Concerning the Rights of the Defence: Essentialist and Instrumental Trends’ (2006) 12 European Public Law 225.

Part I – Commentary on the Articles of the EU Charter

P Craig, EU Administrative Law, 2nd edn (Oxford, Oxford University Press, 2012). C Eckes and J Mendes, ‘The Right to be Heard in Composite Administrative Procedures: Lost in between Protection?’ (2011) 36 European Law Review 651. T Heukels and A McDonnell (eds), The Action for Damages in Community Law (Alphen aan den Rijn, Kluwer Law International, 1997). H Hofmann, G Rowe and A Türk, Administrative Law and Policy of the European Union (Oxford, Oxford University Press, 2012). K Kanska, ‘Towards Administrative Human Rights in the EU. Impact of the Charter of Fundamental Rights’ (2004) 10 European Law Journal 296. K Lenaerts and J Vanhamme, ‘Procedural Rights of Private Parties in the Community Administrative Process’ (1997) 34 Common Market Law Review 531. M Levitt, ‘Access to the File: the Commission’s Administrative Procedures in Cases under Articles 85 and 86’ (1997) 34 Common Market Law Review 1413. J Mendes, Participation in EU Rulemaking: A Rights-based Approach (Oxford, Oxford University Press, 2011). H Nehl, Principles of Administrative Procedure in EC Law (Oxford, Hart Publishing, 1999). I Rabinovici, ‘The Right to Be Heard in the Charter of Fundamental Rights of the European Union’ (2012) 18 European Public Law 149. J Schwarze, European Administrative Law, revised edn (London, Sweet & Maxwell, 2006). T Schilling, ‘Language Rights in the European Union’ (2008) 9 German Law Journal 1219. T Tridimas, The General Principles of EU Law, 2nd edn (Oxford, Oxford University Press, 2006).

A. Article 41 and the Scope of EU Law 41.01 It is made clear in the Explanations accompanying the Charter that Article 41 is based in part on a general principle of EU law as elaborated by the EU courts, and in part on specific Treaty articles. Article 41 is therefore congruent with the scope of these respective aspects of EU law. 41.02 The general principles of EU law bind the EU institutions, bodies, offices and agencies, and also Member State institutions when they act within the scope of EU law. There has been debate as to whether the scope of application of the Charter is more limited because of Article 51(1), which provides that Member States are only bound by the Charter when they are implementing EU law. The better view, which fits the Charter Explanations, is that this has not altered the previous law and that Member States remain bound by the Charter when they act within the scope of EU law.1 It should nonetheless be acknowledged that Article 41 on its face is framed in terms 41.03 of EU institutions, bodies, offices and agencies, and there is CJEU authority for this literal interpretation.2 There is however also case law based expressly on the assumption that Article 41 binds Member States when they act within the scope of EU law,3 and this interpretation is reinforced by the fact that the rights specified in Article 41(2),

1

P Craig, EU Administrative Law, 2nd edn (Oxford, Oxford University Press, 2012) ch 16. Case C-482/10 Teresa Cicala v Regione Siciliana (Judgment of 21 December 2011) [28]. 3 Case C-277/11 MM v Minister for Justice, Equality and Law Reform, Ireland and Attorney General (Judgment of 22 November 2012) [81]–[94]. 2

1070

Paul Craig

Art 41 – Right to Good Administration

especially the right to be heard, have been treated by the CJEU as binding on Member States as general principles of law when they act within the scope of EU law.

B. Interrelationship of Article 41 with Other Provisions of the Charter The Charter provision that is most relevant to Article 41 is Article 47, which is concerned with the right to an effective remedy and to a fair trial. It provides:

41.04

Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.

The second paragraph of Article 47 is especially connected to Article 41. It is based on Article 6 ECHR and imposes an obligation to give a fair and public hearing within a reasonable time, which should be held before an independent and impartial tribunal established by law.4 Article 42 of the Charter is also interrelated with Article 41. Article 42 provides that any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium. It is moreover important to note Article 48 of the Charter: everyone charged shall be presumed innocent until proved guilty according to law, and respect for the rights of the defence of anyone who has been charged shall be guaranteed.

41.05

41.06

C. Sources of Article 41 Rights The principal source of the rights contained in Article 41 of the Charter is the case law 41.07 of the EU courts. Articles 41(1) and (2), as the Explanations to the Charter make clear, are based on the general principle of law concerning the right to be heard and the rights of the defence. Article 41(3) is based on Article 340 TFEU, and Article 41(4) is grounded on Articles 20(2)(d) and 25 TFEU. The principal source for the interpretation of these provisions is therefore the case law of the EU courts concerning the general principle of law and the relevant provisions of the TFEU respectively. The European Convention on Human Rights is relevant as a source in relation to some aspects of the right to be heard. Article 6 ECHR is of particular relevance in this respect. 4

Explanations Relating to the Charter of Fundamental Rights [2007] OJ C303/17.

Paul Craig

1071

Part I – Commentary on the Articles of the EU Charter

D. Analysis I. General Remarks 41.08 Two general remarks can be made concerning Article 41. First, the ‘fit’ between the constituent parts of Article 41 and the right to good administration is imperfect. Articles 41(1)–(2) can readily be regarded as part of the right to good administration, and so too can the obligation to make good damage in Article 41(3). The connection between good administration and language rights in Article 41(4) is more indirect. Secondly, the divide between Article 41 and Article 47 is questionable. Article 41(2)(a) deals with the right to be heard. Article 47 requires that the hearing should be conducted by a person who is impartial and independent. The elements dealt with by the respective Articles are however part of the overall right to a fair hearing, and it would have been preferable for them to have been included in the same provision of the Charter.

II. Scope of Application (a) Article 41(1) 41.09 Article 41(1) provides that every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time5 by the institutions, bodies, offices and agencies of the Union. It is a substantive provision in its own right, and is not exhausted by the three sub-parts of Article 41(2).6 This is made clear by the wording of Article 41(2), which states that the rights ‘include’ those specifically listed in Article 41(2) (a)–(c). It is therefore open to a claimant to rely on Article 41(1) for aspects of the right to good administration that do not readily fall within the more specific parts of Article 41(2). It remains to be seen how broadly the EU courts interpret Article 41(1). An expansive interpretation would include many of the issues listed by the EU 41.10 Ombudsman in the Code of Good Administrative Behaviour7 as part of the right to good administration, which include non-discrimination, proportionality, objectivity, impartiality and independence, legitimate expectations, the right to be heard, and the provision of reasons and fairness. A narrower reading of Article 41(1) would give protection to rather more discrete 41.11 rights, which are not specifically listed in Article 41(2), such as the obligation to give careful consideration to the claimant’s case exemplifies. This might be regarded as part of the right to be heard, and hence come within Article 41(2)(a), but this is strained

5

See, eg, Case T-67/01 JCB Service v Commission [2004] ECR II-49. K Kanska, ‘Towards Administrative Human Rights in the EU. Impact of the Charter of Fundamental Rights’ (2004) 10 European Law Journal 296; A Ward, ‘Access to Justice’, in S Peers and A Ward (eds), The EU Charter of Fundamental Rights, Politics, Law and Policy (Oxford, Hart Publishing, 2004) ch 5. 7 European Ombudsman, The European Code of Good Administrative Behaviour (2005), available at www.ombudsman.europa.eu/resources/code.faces. See also, the CEDEFOP Decision on Good Administrative Behaviour [2011] OJ C285/3. 6

1072

Paul Craig

Art 41 – Right to Good Administration

because the duty can be owed even though there is no formal hearing. It can nonetheless still be regarded as part of the duty to act fairly within Article 41(1).8 (b) Article 41(2)(a) The scope of application of the right to be heard is broad in certain respects and narrow 41.12 in others. It is broad insofar as the right benefits every person, which includes legal as well as natural persons, and it was moreover assumed in MM that the right to be heard in Article 41(2)(a) was applicable against Member State institutions when they act in the scope of EU law.9 It is narrow insofar as it only applies to individual determinations. It does not include any right to be heard or participate in the making of norms that are general or legislative in nature. There is, moreover, a difficult issue concerning the precise scope of the right to be 41.13 heard in relation to individual determinations. The formulation in Article 41(2)(a) accords a right to be heard where there is an individual measure that adversely affect a person. This formulation does not require that the contested measure should be initiated against the claimant, although some requirement of this kind is included in some other language versions of the Charter. It has been argued that the English language Charter formulation does not cohere with some case law, which required that the contested measure should be initiated against the claimant. The author however also acknowledged that the case law varied across different subject matter areas, and that the general trend was towards an emphasis on adverse impact, either by expanding the notion of initiated against, or by not requiring it in certain types of case.10 (c) Article 41(2)(b) The principal issues concerning the scope of application of Article 41(2)(b) on access to the file concerns the subject matter areas to which the right applies. The right of access was initially developed in the context of competition law, and was then extended to customs, in the manner explicated below. There is however no reason for it to be confined to these areas. The case law never limited application of the right to these areas. To the contrary, the courts reasoned analogically and applied the right to the sphere of customs when the issue was argued in that type of case. The right of access was rationalised as being part of the rights of the defence, and this rationale is equally applicable to all subject matter areas where the rights of the defence are applicable. This conclusion is reinforced by the wording of Article 41(2)(b), which is framed in general terms and is not confined to specific subject matter areas.

8 See, eg, Case T-54/99 max.mobil Telekommunikation Service GmbH v Commission [2002] ECR II-313; Case T-211/02 Tideland Signal Ltd v Commission [2002] ECR II-3781 [37]. 9 Case 277/11 MM (n 3). 10 I Rabinovici, ‘The Right to Be Heard in the Charter of Fundamental Rights of the European Union’ (2012) 18 European Public Law 149.

Paul Craig

1073

41.14

Part I – Commentary on the Articles of the EU Charter

(d) Article 41(2)(c) 41.15 This Article imposes a duty on the administration to give reasons for its decisions. The foundation for this provision is the Treaty article enshrining a duty to give reasons that has been present since the inception of the Rome Treaty. The Treaty obligation is however broader than Article 41(2)(c), since the former has never been limited to the administration. Thus Article 190 EEC imposed a duty to give reasons in relation to all Regulations, Directives and decisions made by the Council and Commission. Article 296 TFEU now imposes a duty to give reasons in relation to all legal acts. It provides that ‘legal acts shall state the reasons on which they are based and shall refer to any proposals, initiatives, recommendations, requests or opinions required by the Treaties’. The Treaty has therefore always imposed a duty to give reasons in relation to legislative acts as well as administrative acts. 41.16 It is unlikely that Article 41(2)(c) will be read more narrowly than Article 296 TFEU. The Explanations that accompany the Charter state expressly that the wording of Article 41(2)(c) comes from Article 296 TFEU. If the issue were to arise, the CJEU might interpret ‘administration’ within the Charter provision broadly so as to include all institutional acts with legal effect, drawing on the wording from the Explanations for support. It could alternatively choose to give priority to Article 296 TFEU, the rationale being that Treaty articles and the Charter have the same legal status, and that in the absence of fit between the two, the CJEU is therefore entitled to give preference to the provision that is broader and hence more protective of rights, which in this instance would be Article 296 TFEU. It is possible that Article 41 might be interpreted more broadly than Article 296 41.17 TFEU, since the word ‘administration’ might be taken to include national administration, thereby requiring it to provide reasons when it acts in the scope of EU law, as would be the case when a national agency is part of a scheme of shared administration. An obligation to give reasons by national administration has in any event been imposed in particular cases, where it is regarded as necessary to safeguard other important principles of EU law.11 (e) Article 41(3) 41.18 This Article of the Charter replicates Article 340 TFEU. The two Articles are in substance the same, save for the fact that the obligation to make good the damage in Article 340 is predicated on the assumption that the damage was the result of non-contractual liability, whereas this condition is not present in the Charter Article. It is, however, doubtful whether any difference was intended in this respect. The Explanations that accompany the Charter simply state that Article 41(3) ‘reproduces’ the right in Article 340 TFEU, and there is nothing to indicate any difference between the two provisions. It follows, as affirmed by the Explanations, that Article 52(2) of the Charter, which provides that rights recognised by the Charter for which provision is made in the Treaties

11

1074

See, eg, Case 222/86 Unectef v Heylens [1987] ECR 4097 [15].

Paul Craig

Art 41 – Right to Good Administration

shall be exercised under the conditions and within the limits defined by those Treaties, is applicable to Article 41(3). The scope of application of Article 41(3) will follow that of Article 340 TFEU. In tem- 41.19 poral terms, the basic limitation period for such actions is five years.12 The term ‘institutions’ has been interpreted broadly to cover not only those listed in Article 13 TEU, but also other EU bodies established by the Treaty that are intended to contribute to attainment of Union objectives.13 The EU courts have held that it would be contrary to principle if the EU when it acts through a body established pursuant to the Treaty could escape the consequences of Article 340(2). This coheres with earlier authority holding the EU liable for acts performed by bodies to which the EU has delegated governmental functions.14 It should also be noted that EU legislation will often make specific provision for damages liability for agencies and the like.15 Thus the enabling regulations for agencies contain provisions identical to Article 340(2). The action for damages under Article 340 TFEU is regarded as independent and 41.20 autonomous. The fact that the contested provision has not been annulled will not normally bar a damages action.16 This general rule is however subject to exceptions. Thus a damages action will be held inadmissible if it is aimed at securing withdrawal of a measure that has become definitive where the damages action would in effect nullify the legal effects of that measure. This would be the case where the applicant sought payment in a damages action of an amount precisely equal to a duty paid by it pursuant to a measure that had become definitive.17 Subject to this caveat, a damages action can be pursued even if the relevant measure has not been annulled. The normal remedy under Article 340 is damages for loss suffered. Article 340(2) 41.21 is however framed in terms of ‘non-contractual liability’, which can cover restitution,

12 Art 46 of the Statute of the Court of Justice, http://curia.europa.eu/jcms/upload/docs/application/ pdf/2008–09/statut_2008–09–25_17–29–58_783.pdf. For discussion as to when the period begins, see, Case T-201/94 Kusterman v Council and Commission [2002] ECR II-415; Case T-261/94 Schulte v Council and Commission [2002] ECR II-441; Case C-282/05 P Holcim (Deutschland) AG v Commission [2007] ECR I-2941; Case C-51/05 P Commission v Cantina sociale di Dolianova Soc coop arl [2008] ECR I-5341. 13 Case C-370/89 SGEEM and Etroy v EIB [1992] ECR I-6211; Case T-209/00 Lamberts v Commission [2002] ECR II-2203; Case 234/02 P European Ombudsman v Frank Lamberts [2004] ECR I-2803. 14 Case 18/60 Worms v High Authority [1962] ECR 195. 15 See, eg, Council Regulation (EC) 58/2003 of 19 December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes [2003] OJ L11/1, Art 21(1); Council Regulation 1210/90/EEC on the establishment of the European Environment Agency [1990] OJ L120/1, Art 18. 16 Case 5/71 Aktien-Zuckerfabrik Schöppenstedt v Council [1971] ECR 975; Cases 9 and 11/71 Compagnie d’Approvisionnement de Transport et de Crédit SA et Grands Moulins de Paris SA v Commission [1972] ECR 391; Case T-178/98 Fresh Marine Company SA v Commission [2000] ECR II-3331 [45]–[49]; Case T-99/98 Hameico Stuttgart GmbH v Council and Commission [2003] ECR II-2195 [37]–[38]; Case 234/02 P Lamberts (n 13); Case T-47/02 Danzer and Danzer v Council [2006] ECR II-1779 [27]; Case T-193/04 Hans-Martin Tillack v Commission [2006] ECR II-3995 [97]–[98]. 17 Case 543/79 Birke v Commission [1981] ECR 2669 [28]; Cases C-199 and 200/94 Pesqueria VascoMontanesa SA (Pevasa) and Compania Internacional de Pesca y Derivados SA (Inpesca) v Commission [1995] ECR I–3709 [27]–[28]; Case T–93/95 Laga v Commission [1998] ECR II-195; Case C-310/97 P Commission v AssiDomän Kraft Products AB [1999] ECR I-5363 [59]; Case T-178/98 Fresh Marine Company SA v Commission [2000] ECR II-3331 [50]; Cases T-44, 119, 126/01 Eduardo Vieira Sa, Vieira Argentina SA and Pescanova SA v Commission [2003] ECR II-1209 [214]–[216]; Case T-47/02 Danzer and Danzer v Council [2006] ECR II-1779 [28]; P Mead, ‘The Relationship between an Action for Damages and an Action for Annulment: The Return of Plaumann’, in T Heukels and A McDonnell (eds), The Action for Damages in Community Law (Alphen aan den Rijn, Kluwer Law International, 1997) ch 13.

Paul Craig

1075

Part I – Commentary on the Articles of the EU Charter

notwithstanding the fact that the requirement to ‘make good any damage caused’ by its institutions, does not fit perfectly with restitution. The CJEU affirmed in Masdar that although unjust enrichment did not fit perfectly with the criteria for recovery in cases of non-contractual liability, it would be contrary to the principle of effective judicial protection if Articles 274 and 340(2) were construed to preclude such recovery.18 The CJEU has applied restitutionary principles where there has been unjust enrichment by an individual against the EU, as exemplified by staff cases.19 A restitutionary claim may also arise where payment is made to public bodies that have no right to the money,20 such as where a Member State has imposed a levy that is illegal under EU law, or where an illegal charge has been levied by the EU. (f) Article 41(4) 41.22 Article 41(4) is framed in terms of a right to write to one of the EU institutions in an official language and receive an answer in that language. The EU institutions are listed in Article 13 TEU. The analogous Treaty provision, Article 20(2)(d), is broader, including also among the addressees of any such communication, the European Ombudsman and advisory bodies of the Union. The Explanations accompanying the Charter state that Article 41(4) reproduces the right in Article 20(2)(d) TFEU and that as a consequence Article 52(2) of the Charter should be applicable, such that rights recognised by this Charter for which provision is made in the Treaties must be exercised under the conditions and within the limits defined by those Treaties. 41.23 On this view Article 41(4) would be read congruently with Article 20(2)(d) TFEU to include advisory bodies, as well as the institutions stricto sensu. This still leaves open the breadth of the term ‘advisory bodies’ within Article 20(2)(d). The most sensible construction would be to read it as a reference to bodies, offices and agencies of the EU. Not all such bodies are purely advisory, since some can make binding determinations in individual cases. It would however be absurd to construe Article 20(2)(d), and hence also Article 41 of the Charter, as applicable only to such bodies that were strictly advisory, and not to include those that could make some binding determinations.

III. Specific Provisions (a) Specific Provisions: Article 41(1): The General Clause 41.24 The scope of application of Article 41(1) was considered above. The obligation to give careful consideration to the claimant’s case provides a good example of a right that could be regarded as part of the duty to act fairly within Article 41(1).21

18

Case C-47/07 P Masdar (UK) Ltd v Commission [2008] ECR I-9761. Case 18/63 Wollast v EEC [1964] ECR 85, 98; Case 110/63 Willame v Commission [1965] ECR 649, 666; Case 36/72 Meganck v Commission [1973] ECR 527; Case 71/72 Kuhl v Council [1973] ECR 705. 20 A Jones, Restitution and European Community Law (London, Mansfield Press, 2000); R Williams, Unjust Enrichment and Public Law, A Comparative Study of England, France and the EU (Oxford, Hart Publishing, 2010). 21 See, eg, Case T-54/99 max.mobil (n 8); Case T-211/02 Tideland Signal Ltd (n 8) [37]. 19

1076

Paul Craig

Art 41 – Right to Good Administration

The CJEU developed early in its jurisprudence an obligation that care should be 41.25 exercised in particular when discretionary determinations were made in relation to individual cases,22 and this was applied in the context of competition23 and state aids.24 The administration is under a duty carefully to examine the relevant factual and legal aspects of the individual case.25 The principle is exemplified by the decision in Technische Universitat Munchen.26 The Technical University of Munich sought to import an electron microscope from Japan. Its application for exemption from customs duties was rejected because apparatus of equivalent scientific value was manufactured in the EU, this decision having been reached after having consulted experts in the area. The CJEU held that where the Union institutions have a power of appraisal, then respect for rights guaranteed by the EU legal order was especially important. This included the right of the person to make his views known, the right to have an adequately reasoned decision and the duty of the competent institution to examine carefully and impartially all relevant aspects of the individual case. It was only in this way that the courts could ‘verify whether the factual and legal elements upon which the exercise of the power of appraisal depends were present’.27 The CJEU annulled the decision, finding a breach of the duty of care by the Commission through its reliance on experts who did not possess the requisite technical knowledge in the relevant area.28 The principle has been developed by the CFI, especially in relation to competition and state aids. In the context of competition the principle of care operates both with respect to the 41.26 decision whether to pursue an investigation and as to the conduct of the investigation if it is pursued.29 The Commission has limited resources with which to pursue competition violations, thus it will choose which infringements are worthy of its attention. The Commission cannot therefore be compelled to conduct an investigation.30 It is, however, obliged ‘to examine carefully the factual and legal aspects of which it is notified by the complainant’31 in order to decide whether they indicated behaviour likely to distort competition, and the CJEU verifies whether this had been done. Where the Commission decides to conduct an investigation it has to investigate with the degree of care that enables it to assess the factual and legal considerations submitted by the complainant.32 In the context of state aids, the principle of care has been similarly important, although 41.27 the EU courts have differed as to what it required. The CFI’s judgment in Sytraval33

22 Cases 16–18/59 Geitling, Mausegatt and Prasident v High Authority [1960] ECR 17, 20; Case 14/61 Koninklijke Nederlandsche Hoogovens en Staalfabrieken NV v High Authority [1962] ECR 253. 23 Case 56/65 Societe La Technique Miniere (LTM) v Maschinenbau Ulm GmbH [1966] ECR 235, 248; Cases 56 and 58/64 Consten & Grundig v Commission [1966] ECR 299, 374. 24 Case 120/73 Gebruder Lorenz GmbH v Germany [1973] ECR 1471, 1481. 25 Case 16/90 Nolle v Hauptzollamt Bremen-Freihafen [1991] ECR I-5163. 26 Case C-269/90 Hauptzollamt Munchen-Mitte v Technische Universitat Munchen [1991] ECR I-5469. 27 Case C-269/90 (n 26) [14]. 28 Ibid [135]; Case T-241/00 Azienda Agricola ‘Le Canne’ Srl v Commission [2002] ECR II-1251 [53]–[54]. 29 Case 210/81 Demo-Studio Schmidt v Commission [1983] ECR 3045. 30 Case T-24/90 Automec Srl v Commission [1992] ECR II-2223; Case T-432/05 EMC Development AB v European Commission [2010] ECR II-1629 [59]–[60]; Case T-427/08 Confédération européenne des associations d’horlogers-réparateurs (CEAHR) v Commission [2010] ECR II-5865 [157]–[160]. 31 Case T-24/90 Automec (n 30) [79]. 32 Case T-7/92 Asia Motor France SA v Commission [1993] ECR II-669 [36]; Case T-154/98 Asia Motor France SA v Commission [2000] ECR II-3453 [53]–[56]. 33 Case T-95/94 Sytraval and Brink’s France v Commission [1995] ECR II-2651.

Paul Craig

1077

Part I – Commentary on the Articles of the EU Charter

represented a high point in the application of the principle. The applicant sought the annulment of a decision rejecting a complaint about a state aid. The CFI held that the Commission was under a duty to give a reasoned answer to each of the objections raised in the complaint.34 It held further that the Commission came under an ‘automatic obligation to examine the objections which the complainant would certainly have raised if it had been given the opportunity of taking cognizance of that information’,35 and that the Commission’s duty to give reasons could require an exchange of views and arguments with the complainant.36 The CJEU was far more circumspect when the Sytraval case was appealed.37 It held that the Commission was not under an obligation to conduct an exchange of views with the complainant, nor was there an obligation to engage in an adversarial debate with the Commission. The CJEU nonetheless concluded that the Commission might be obliged to extend its investigation of a complaint beyond mere examination of the facts and law brought to its attention by the complainant.38 41.28 The precise boundaries of the principle of care or diligent and impartial administration remain uncertain.39 The CFI and CJEU are nonetheless willing to apply the principle in areas other than state aids and competition, in order to enhance the accountability of the Union administration.40 (b) Specific Provisions Article 41(2)(a): The Right to be Heard Applicability 41.29 The EU courts have protected the right to be heard in individual decisions, irrespective of whether this requirement was found in the relevant Treaty article, regulation, directive or decision.41 This principle was established in the early case law,42 MM is authority for the proposition that the right to be heard in Article 41(2)(a) is applicable against Member State institutions when they act in the scope of EU law.43

34

Ibid [62]. Ibid [66]. 36 Ibid [78]. 37 Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-1719. 38 Ibid [62]. 39 Compare, eg, Case T-54/99 max.mobil (n 8) and Case T-211/02 Tideland Signal Ltd (n 8) [37], with Case C-141/02 P Commission v T-Mobile Austria GmbH [2005] ECR I-1283 [68]–[75]. 40 See, eg, Case T-13/99 Pfizer Animal Health SA v Council [2002] ECR II-3305 [170]–[172]; Case T-413/03 Shandong Reipu Biochemicals Co Ltd v Council [2006] ECR II-2243; Case C-405/07 P Netherlands v Commission [2008] ECR I-8301 [55]–[57]. 41 D Curtin, ‘Constitutionalism in the European Community: The Right to Fair Procedures in Administrative Law’, in J O’Reilly (ed), Human Rights and Constitutional Law, essays in Honour of Brian Walsh (Dublin, Round Hall Press, 1992) 293; J Schwarze, ‘Developing Principles of European Administrative Law’ [1993] Public Law 229; G Nolte, ‘General Principles of German and European Administrative Law—A Comparison in Historical Perspective’ (1994) 57 Modern Law Review 191; J Schwarze, ‘Towards a Common European Public Law’ (1995) 1 European Public Law 227; K Lenaerts and J Vanhamme, ‘Procedural Rights of Private Parties in the Community Administrative Process’ (1997) 34 Common Market Law Review 531; H Nehl, Principles of Administrative Procedure in EC Law (Oxford, Hart Publishing, 1999) 70–99; P Craig, EU Administrative Law, 2nd edn (Oxford, Oxford University Press, 2012) chs 11–12; Rabinovici (n 10). 42 Case 17/74 Transocean Marine Paint v Commission [1974] ECR 1063 [15]; Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461 [9]. 43 Case 277/11 MM (n 3). 35

1078

Paul Craig

Art 41 – Right to Good Administration

The precise circumstances in which there is a right to be heard was considered above.44 Article 41(2)(a) is framed in terms of individual measures that adversely affect the claimant, with no specific requirement that the contested measure should be initiated against the claimant. Some cases predicated the right to be heard on the fact that there was adverse impact from a procedure initiated against the claimant. The case law has however evolved and varied across different subject matter areas, and the general trend has been an emphasis on adverse impact, either by expanding the notion of initiated against, or by not requiring it in certain types of case.45 The right to be heard was regarded as part of the fundamental rights jurisprudence in Al-Jubail.46 The CJEU held that it must be observed not only where it might lead to penalties, but also where the investigative proceedings prior to the adoption of the anti-dumping duty might directly and adversely affect the undertakings. The provisions concerning hearings contained in the relevant regulation on dumping did not provide all the necessary procedural guarantees and therefore could be complemented by recourse to the fundamental right itself.47 The right to be heard can be raised by the Court of its own motion.48 The application of the right to be heard can be difficult where the administration of the particular scheme is divided or shared between the EU and the Member States, as in the context of customs or the Structural Funds. It can be problematic locating the right to be heard at national or Union level or an admixture of the two.49 This difficulty is exemplified by case law concerning the right to be heard in sanction cases.50 The CJEU has however imposed a right to be heard in composite proceedings, even where it was not provided for at one stage of the proceedings.51 This is exemplified by Lisrestal,52 which concerned the European Social Fund, the administration of which is shared. The Commission issued a decision to the Portuguese ministry requiring the repayment of funding to Lisrestal on the grounds that it had mismanaged the funds. The regulation gave no opportunity for the firm to comment before the decision was made, although this was given to the national ministry. The CFI held that the right to be heard was applicable in all proceedings

44

Section D.II(b). Case T-450/93 Lisrestal v Commission [1994] ECR II-1177; Case C-32/95 P Commission v Lisrestal [1996] ECR I-5373; Case T-50/96 Primex Produkte Import-Export GmbH & Co KG v Commission [1998] ECR II-3773 [59]; Case C-462/98 P MedioCurso-Etabelecimento de Ensino Particular Ld v Commission [2000] ECR I-7183 [36]; Case C-395/00 Distillerie Fratelli Cipriani SpA v Ministero delle Finanze [2002] ECR I-11877 [51]; Case T-102/00 Vlaams Fonds voor de Sociale Integratie van Personen met een Handicap v Commission [2003] ECR II-2433 [59]; Case C-349/07 Sopropé—Organizações de Calçado Lda v Fazenda Pública [2008] ECR I-10369 [37]; Rabinovici (n 10). 46 Case C-49/88 Al-Jubail Fertilizer v Council [1991] ECR I-3187 [15]. See also Cases T-33–34/98 Petrotub and Republica SA v Council [1999] ECR II-3837; Case C-458/98 P Industrie des Poudres Spheriques v Council and Commission [2000] ECR I-8147 [99]; Case C-141/08 P Foshan Shunde Yongjian Housewares & Hardware Co Ltd v Council [2009] ECR I-9147 [83]; Case T-410/06 Foshan City Nanhai Golden Step Industrial Co, Ltd v Council [2010] ECR II-879 [109]–[111]. 47 Case C-49/88 Al-Jubail (n 46) [16]; Case T-260/94 Air Inter SA v Commission [1997] ECR II-997 [60]. 48 Case C-291/89 Interhotel v Commission [1991] ECR I-2257 [14]; Case C-367/95 P Sytraval (n 37) [67]. 49 C Eckes and J Mendes, ‘The Right to be Heard in Composite Administrative Procedures: Lost in between Protection?’ (2011) 36 European Law Review 651. 50 Case T-228/02 Organisation des Modjahedines du peuple d’Iran v Council and UK [2006] ECR II-4665; Case T-256/07 People’s Mojahedin Organization of Iran v Council [2008] ECR II-3019; Case T-284/08 People’s Mojahedin Organization of Iran v Council [2008] ECR II-3487; Case T-85/09 Yassin Abdullah Kadi v Commission [2010] ECR II-5177. 51 Case C-269/90 Technische Universitat Munchen (n 26) [25]; Case T-50/96 Primex Produkte (n 45). 52 Case T-450/93 Lisrestal (n 45), affirmed in Case C-32/95 P (n 45). 45

Paul Craig

1079

41.30

41.31

Part I – Commentary on the Articles of the EU Charter

initiated against a person liable to culminate in a measure adversely affecting him. It was a fundamental principle of Community law that applied even in the absence of specific rules concerning the proceedings in question.53 The CJEU, confirming the CFI’s decision, stated that the right to be heard would apply because the measure would significantly affect the applicant’s interests, in this instance the loss of funding.54 41.32 The approach of the EU courts is markedly different in relation to norms of a legislative nature, where the applicant seeks a right to participate, be consulted or intervene in the making of the provision. The EU courts have consistently resisted such claims.55 They have denied consultation rights unless they are expressly provided by the relevant Treaty article, or by a Regulation, Directive or decision. 41.33 The Atlanta case is the leading authority.56 The applicant sought compensation for damage caused by a Community Regulation concerning the banana market. It argued that the CFI had erred in finding that the right to be heard in an administrative procedure affecting a specific person could not be transposed to the process leading to a regulation, more especially because it was irrelevant to the individual concerned whether his legal situation was affected as a result of an administrative or a legislative procedure. The applicant sought to rely on Al-Jubail to show that the absence of a Treaty provision requiring consultation in relation to a legislative procedure did not allow a hearing to be dispensed with.57 41.34 The CJEU rejected the argument. It held that the case law according a right to be heard related only to acts of direct and individual concern to the applicant. It could not be extended to the procedure culminating in legislation involving a choice of economic policy and applying to the generality of traders concerned. The only obligations of consultation incumbent on the Union legislature were those laid down by the Treaty article in question.58 This approach has been reaffirmed by later authority.59 The CJEU has moreover used the wording of Article 41 of the Charter, which specifies a right to be heard before an individual measure adversely affecting the applicant is taken, to reinforce its conclusion that hearing rights do not cover measures of general application.60 Content 41.35 There is no general, detailed procedural code, and the content of hearing rights is determined by a mixture of case law, combined with sector-specific legislation. The CJEU has insisted that notice should be given of the nature of the case and that the individual

53 Case T-450/93 Lisrestal (n 45) [42]; Cases C-48 and 60/90 Netherlands v Commission [1992] ECR I-565 [44]; Case C-135/92 Fiskano v Commission [1994] ECR I-2885 [39]; Case T-50/96 Primex Produkte (n 45) [59]. 54 Case C-32/95 P (n 45) [33]; Case T-102/00 Vlaams Fonds voor de Sociale Integratie (n 45) [60]; Case T-260/94 Air Inter (n 47) [65]; Case T-50/96 Primex Produkte (n 45) [60]; Case T-290/97 Mehibas Dordtselaan BV v Commission ECR [2000] ECR II-15. 55 Craig (n 41) ch 11; J Mendes, Participation in EU Rulemaking: A Rights-based Approach (Oxford, Oxford University Press, 2011) chs 4–5. 56 Case C-104/97 P Atlanta AG v Commission [1999] ECR I-6983. 57 Ibid [31]–[32]. 58 Ibid [35]–[39]. 59 Case C-258/02 P Bactria Industriehygiene-Service Verwaltungs GMbH v Commission [2003] ECR I-15105 [43]; Case C-263/02 P Commission v Jégo-Quéré & Cie SA [2004] ECR I-3425 [47]; Case T-13/99 Pfizer Animal Health SA v Council [2002] ECR II-3305 [487]. 60 Case C-221/09 AJD Tuna Ltd v Direttur tal-Agrikoltura u s-Sajd and Avukat Generali (17 March 2011) [49].

1080

Paul Craig

Art 41 – Right to Good Administration

should have a right to respond to it.61 There is a right of access to the file, and a duty to give reasons, both of which are considered below. The right to be heard will not necessarily require an oral hearing.62 The CJEU will normally leave it to the Commission to make the initial determination as to whether the hearing should be oral, or whether the opportunity to make written observations should suffice. The EU courts may decide that the right to be heard requires an oral hearing in a particular case, and this might also be stipulated by sector-specific legislation. There is no right to engage in cross-examination,63 but it may be granted directly by sector-specific legislation, or the EU courts may infer a right to cross-examine from the provisions applicable in a particular area.64 Separation of Functions There are certain circumstances where the Commission acts as both prosecutor and 41.36 judge, which can be inconsistent with Article 6(1) ECHR. The CJEU has in the past rejected such arguments on the basis that the Commission is not a tribunal and hence not bound by Article 6(1)65 (although it was bound to observe the procedural safeguards of EU law, such as the right to a fair hearing). The CJEU’s reasoning concerning Article 6(1) was problematic, because Article 6(1) stipulates that where civil rights and obligations etc are in issue, they must be decided by a tribunal that is independent. The CJEU’s conclusion could however be rationalised using the Strasbourg case law to the effect that determinations of civil rights and obligations by administrative authorities that are not independent can be accepted, provided that there is adequate appeal or judicial review to a tribunal or court that does conform to Article 6(1). The CFI has in effect adopted this reasoning,66 as has Advocate General Sharpston.67 The Union administration and legislature have responded to the concerns voiced by claimants. Since 1982 the Commission has appointed a hearing officer to preside over the hearing and to ensure that the rights of the defence are properly protected, and legislation now requires hearings to be conducted by an independent hearing officer.68 (c) Specific Provisions Article 41(2)(b): Access to the File Access to the file may be relevant before the decision is made by the administration, 41.37 or after it has been made when an applicant seeks to challenge the decision by judicial

61 Cases C-48 and 66/90 Netherlands and Koninklijke PTT Nederland NV and PTT Post v Commission [1992] ECR 565; Cases C-402 and C-415/05 P Kadi (n 46) [348]; Cases C-399 and 403/06 Hassan and Ayadi v Council and Commission [2009] ECR I-11393 [83]–[86]; Case C-135/92 Fiskano AB v Commission [1994] ECR I-2885. 62 J Schwarze, European Administrative Law, revised edn (London, Sweet & Maxwell, 2006) 1363–64. 63 Cases T-122–124/07 Siemens AG Österreich and others v Commission (3 March 2011) [233]–[234]; Case T-191/06 FMC Foret v Commission (16 June 2011) [139]; Case T-439/07 Coats Holdings Ltd v Commission (27 June 2012) [174]. 64 Case 141/84 Henri de Compte v European Parliament [1985] ECR 1951. 65 Cases 209–215, 218/78 Van Landewyck SARL v Commission [1980] ECR 3125 [79]–[81]; Cases 100– 103/80 Musique Diffusion Française v Commission [1983] ECR 1825. 66 Case T-348/94 Enso Espanola SA v Commission [1998] ECR II-1875 [60]–[65]; Case T-351/03 Schneider Electric SA v Commission [2007] ECR II-2237 [181]–[183]. 67 Case C-272/09 KME Germany v Commission (10 Feb 2011) [67]–[70]. 68 Commission Regulation (EC) 773/2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty [2004] OJ L123/18, Art 14.

Paul Craig

1081

Part I – Commentary on the Articles of the EU Charter

review. Access facilitates understanding of the evidentiary basis on which the decision is to be made or has been made, and of the reasoning underlying it, thereby placing the individual in a better position to put counter-arguments when exercising the right to be heard, or challenging the decision by way of judicial review. Access to the file and access to documents as protected by Article 15(3) TFEU and Article 42 of the Charter can function as alternate routes to the same goal.69 41.38 EU law accords access to the file as part of the rights of the defence. The initial jurisprudence was developed in relation to competition law, but has been extended to other areas. The application of the principle is not especially difficult where the decision affects only one party or a small number of parties. It can however be problematic when the administrative decision affects a multiplicity of parties, even more so where the litigation is complex and generates a large amount of documentation, as exemplified by some cases on horizontal cartels. The EU courts have placed limitations on access in such instances, but such limits have only been necessary because of the breadth of the initial principle concerning access to the file. 41.39 The early jurisprudence on access arose in competition proceedings.70 The CJEU initially held in VBVB71 that there was no legal obligation to disclose the complete file, only those documents on which the Commission had based its decision. The Commission chose not to stick to the legal letter of this judgment, and permitted access, except where, for example, information covered by professional secrecy was involved. The CFI in Hercules72 gave legal force to this administrative practice. The Commission is obliged to make available all documents obtained in the investigation, save where they involve business secrets of other undertakings, confidential information, or internal Commission documents.73 This was regarded as part of a wider principle of equality of arms, allowing addressees of a decision to examine the file so that they could effectively put their views on the evidentiary basis of the Commission decision.74 It was not for the Commission alone to decide which documents were useful to the undertakings, which should have the opportunity to examine them to determine their probative value for the applicants’ defence. The EU courts could however decide not to annul for failure to grant access unless this adversely affected the right to a hearing. A right to access to the file is now included in the regulations governing competition.75

69

Case C-139/07 P Commission v Technische Glaswerke Ilmenau GmbH [2010] ECR I-5885 [59]. J Schwarze, European Administrative Law, revised edn (London, Sweet & Maxwell, 2006) 1341–57; M Levitt, ‘Access to the File: the Commission’s Administrative Procedures in Cases under Articles 85 and 86’ (1997) 34 Common Market Law Review 1413; C-D Ehlermann and B Drijber, ‘Legal Protection of Enterprises: Administrative Procedure, in particular Access to Files and Confidentiality’ [1996] European Commercial Law Review 375; H Nehl, Principles of Administrative Procedure in EC Law (Oxford, Hart Publishing, 1999) ch 5. 71 Cases 43, 63/82 VBVB and VBBB v Commission [1985] ECR 19 [25]. 72 Case T-7/89 SA Hercules Chemicals NV v Commission [1991] ECR II-1711 [53]–[54]; Case T-65/89 BPB Industries plc and British Gypsum Ltd v Commission [1993] ECR II-389. 73 Commission Notice on internal rules of procedure for access to the file [1997] OJ 1997 C23/3, now overtaken by Commission Notice on the rules for access to the Commission file in cases pursuant to Articles 81 and 82 EC, Articles 53, 54 and 57 of the EEA Agreement and Council Regulation 139/2004 [2005] OJ 325/7. 74 Cases T-30–32/91 Solvay SA v Commission [1995] ECR II-1775; Case T-36–37/91 ICI v Commission [1995] ECR II-1847 [93]; Case C-51/92 P Hercules Chemicals NV v Commission [1999] ECR I-4235; Case T-175/95 BASF Lacke & Farben AG v Commission [1999] ECR II-1581; Cases C-238, 244–45, 247, 250, 252 and 254/99 P Limburgse Vinyl Maatschappij v Commission [2002] ECR I-8375; Case T-5/02 Tetra Laval BV v Commission [2002] ECR II-4381 [89]–[91]. 75 Reg 773/2004 (n 68) Arts 15–16. 70

1082

Paul Craig

Art 41 – Right to Good Administration

The EU courts have applied the reasoning on access to the file from competition cases to other areas. Thus in Eyckeler the CFI reasoned by analogy from the competition cases and held that access to the file was equally important in challenging customs’ decisions. It stated that if the right to be heard was to be exercised effectively, there must be access to non-confidential documentation relied on by the Commission when it made the contested decision.76 It was not open to the Commission to exclude documents that it did not consider relevant, since these might well be of interest to the applicant. The CFI concluded that it would be a serious breach of the rights of the defence if the Commission could unilaterally exclude from the administrative procedure documents that might be detrimental to it.77 The ease with which the CFI reasoned by analogy from competition to customs signifies the generalisation of access to the file as an aspect of the right to be heard, irrespective of the subject-matter area in question, and this is in accord with the formulation in the Charter of Fundamental Rights. The precise boundaries of access to the file were tested in complex litigation in Aalborg Portland.78 The case concerned a long-running Commission investigation into agreements and concerted practices engaged in by a number of European cement producers. The documentation supporting the alleged practices was very large. The Commission therefore did not append to the statement of objections the documents supporting its conclusions. It prepared a box of documents that was made available for each addressee relating to the statement of objections addressed to that firm. The Commission refused access to the chapters of the statement of objections which they had not received, and refused to grant access to all documents in the investigation file. The CJEU reiterated the right of access to the file, which meant that ‘the Commission must give the undertaking concerned the opportunity to examine all the documents in the investigation which may be relevant for its defence’,79 including incriminating and exculpatory evidence. Failure to provide access to the file will lead to annulment of the decision. The failure to provide such access when the Commission makes its determination is not remedied by the mere fact that access is possible at the stage of judicial review. The GC considered issues of law and its hearing could not therefore replace a full investigation of the kind that would be undertaken in the initial administrative procedure. Moreover, belated disclosure of documents in the file could not return the claimant to the situation it would have been in if it had been able to rely on those documents in presenting its written and oral observations to the Commission.80

76

Case T-42/96 Eyckeler & Malt AG v Commission [1998] ECR II-401 [79]–[80]. Ibid [81]. See also, Case T-50/96 Primex Produkte (n 45) [57]–[70]; Cases T-186, 187, 190, 192, 210, 211, 216–18, 279–80, 293/97 and 147/99 Kaufring AG v Commission [2001] ECR II-1337 [185]; Case T-205/99 Hyper Srl v Commission [2002] ECR II-3141; Case T-53/02 Ricosmos BV v Commission [2005] ECR II-3173 [71]–[74]. 78 Cases C-204–05, 211, 213, 217, 219/00 P Aalborg Portland v Commission [2004] ECR I-123. See also, Case T-161/05 Hoechst GmbH v Commission [2009] ECR II-3555; Case T-58/01 Solvay SA v Commission [2009] ECR II-4781; Case T-66/01 ICI v Commission [2010] ECR II-2631; Case C-407/08 P Knauf Gips KG v European Commission [2010] ECR I-6375; Case T-186/06 Solvay SA v Commission [2011] ECR II-2839; Case T-112/07 Hitachi v Commission [2011] ECR II-3871; Case T-151/07 Kone v Commission [2011] ECR II-5313; Case T-197/06 FMC Corp v European Commission [2011] ECR II-3179; Case C-110/10 P Solvay SA v Commission [2011] ECR I-439 [47]–[52]. 79 Cases C-204–205/00 P Aalborg Portland (n 78) [68]. 80 Ibid [103]; Case C-110/10 P Solvay (n 78) [51]. 77

Paul Craig

1083

41.40

41.41

41.42

41.43

Part I – Commentary on the Articles of the EU Charter

41.44

The CJEU has slightly modified the burden on the claimant in this type of case. In Aalborg Portland it held that it was for the applicant to show that the result would have been different if incriminating evidence not communicated to the applicant had been relied on by the Commission in reaching its decision,81 although where the document not communicated was exculpatory, it was only necessary to show that its non-disclosure was able to influence disadvantageously the Commission decision.82 In the later Solvay case it expressed the test in the following manner: where access to the file, and particularly to exculpatory documents, is granted at the stage of the judicial proceedings, the undertaking concerned has to show, not that if it had had access to the nondisclosed documents the Commission decision would have been different in content, but only that those documents could have been useful for its defence.83 41.45 The general principle of access to the file is subject to a number of limitations. There is no access to business secrets and confidential information, but the Commission cannot make a general reference to confidentiality to justify a total refusal to disclose documents in its file, nor can it give blank pages on the ground that they contained business secrets without providing a more comprehensible non-confidential version, or a summary of the documents.84 There is no general principle that the parties must receive copies of all documents taken into account in the case of other persons.85 There is no right for access to documentation that is irrelevant and bears no relation to the allegations of fact or law in the statement of objections.86 41.46 It was for the GC to make these determinations in the light of a provisional examination of certain evidence to see whether the documents ‘could have had a significance which ought not to have been disregarded’.87 The GC in performing this task used an ‘objective link’ criterion: there has to be some objective link between the document not disclosed and the finding against the relevant undertaking. The CJEU upheld this test.88 41.47 The application of the access principle to complex litigation of this kind is undoubtedly problematic. There are, as the applicants claimed in argument,89 difficulties in the GC applying the objective link criterion, since it will not have the same knowledge and understanding of the situation as the Commission. The CJEU’s approach is nonetheless explicable. It is reluctant to allow what may well be years of Commission investigation into a complex cartel to be overturned through annulment whenever the undertaking can point to something in the mass of documents that it did not have access to. (d) Specific Provisions Article 41(2)(c): Duty to Give Reasons 41.48 The following analysis is predicated on the assumption, considered above, that Article 41(2)(c) will be interpreted in accord with the CJEU’s case law on Article 296 TFEU.

81 82 83 84 85 86 87 88 89

1084

Cases C-204–205/00 P Aalborg Portland (n 78) [73]. Ibid [74]–[75]. Case C-110/10 P Solvay (n 78) [52]. Case T-410/03 Hoechst GmbH v Commission [2008] ECR II-881 [152]–[153]. Cases C-204–205/00 P Aalborg Portland (n 78) [70]. Ibid [126]. Ibid [76], [77], [101]. Ibid [129]. Ibid [115].

Paul Craig

Art 41 – Right to Good Administration

There are a number of policy rationales for the duty to provide reasons. From the perspective of affected parties, it makes the decision-making process more transparent, so that they can know why a measure has been adopted. From the perspective of the decision-maker, an obligation to give reasons will help to ensure that the rationale for the action has been thought through, since having to explain oneself, and defend the rationality of one’s choice, is always a salutary exercise. From the perspective of the CJEU, the existence of reasons facilitates judicial review, by, for example, enabling the Court to determine whether a decision was disproportionate. These policy arguments are reflected in the oft-repeated judicial statements that reasons inform the addressee of the decision of the factual and legal grounds on which it is based, thereby enabling the person to decide whether to seek judicial review and facilitate the exercise of that review by the EU courts. Thus, as the CJEU stated early in its jurisprudence,90

41.49

41.50

In imposing upon the Commission the obligation to state reasons for its decisions, Article 190 is not taking mere formal considerations into account but seeks to give an opportunity to the parties defending their rights, to the court of exercising its supervisory functions and to Member States and to all interested nationals of ascertaining the circumstances in which the Commission has applied the Treaty.

The most common general formulation of the scope of the duty to give reasons is to be found in the Sytraval case:91

41.51

[I]t is settled case that the statement of reasons required by Article 19092 of the Treaty must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community court to exercise its powers of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question.

The obligation to give reasons will normally require specification of the Treaty article on which the measure was based; the factual background to the measure; and the purposes 90 Case 24/62 Germany v Commission [1963] ECR 63, 69; Case T-7/92 Asia Motor France SA v Commission [1993] ECR II–669 [30]; Case T-387/94 Asia Motor France SA v Commission [1996] ECR II-961 [103]; Case 187/99 Agrana Zucker und Stark AG v Commission [2001] ECR II-1587 [83]; Case T-241/00 Azienda Agricola ‘Le Canne’ Srl v Commission [2002] ECR II-1251 [54]; Case T-206/99 Metropole Television SA v Commission [2001] ECR II-10 [44]. 91 Case C-367/95 P Sytraval (n 37) [63]; Cases 296 and 318/82 Netherlands and Leeuwarder Papierwarenfabriek v Commission [1985] ECR 809 [19]; Case C-316/97 P European Parliament v Gaspari [1998] ECR I-7597 [26]; Case C-301/96 Germany v Commission [2003] ECR I-9919 [87]; Case C-76/00 P Petrotub (n 45) [81]; Case C-89/08 P Commission v Ireland [2009] ECR I-11245 [77]; Case C-280/08 P Deutsche Telekom AG v European Commission [2010] ECR I-9555 [131]; Case T-24/05 Alliance One International, Inc v Commission [2010] ECR II-5329 [149]; Case C-403/10 P Mediaset SpA v Commission [2011] ECR I-117 [113]; Case T-300/10 Internationaler Hilfsfonds eV v Commission (Judgment of 22 May 2012) [181]; Case T-111/08 MasterCard, Inc and Others v Commission (Judgment of 24 May 2012) [309]. 92 Now Art 296 TFEU.

Paul Craig

1085

41.52

Part I – Commentary on the Articles of the EU Charter

behind it. This is exemplified by the Tariff Preferences case,93 where the CJEU annulled a Council measure in part because the legal basis of the measure had not been specified. In Germany v Commission94 the Court held that it was sufficient to set out in a concise, clear, and relevant manner the principal issues of law and fact upon which the action was based, such that the reasoning which led the Commission to its decision could be understood. Where a decision established a new principle, or applied it in a novel fashion, there would have to be sufficient reasons in the decision itself,95 but on some occasions the Court will sanction the incorporation of reasons from another instrument.96 41.53 Article 296 TFEU applies to all legal acts, legislative, delegated and implementing. The degree of specificity as regards reasons will depend on the nature of the contested measure. In Beus97 the CJEU recognised that the requirement to state the reasons on which a measure was based would depend on its nature. In the case of a regulation, it might suffice for the preamble to indicate the rationale for its adoption, and the objectives it was intended to achieve. It was not necessary for the regulation to set out the factual basis of the measure, which was often complex, nor was it necessary for the relevant measure to provide a complete evaluation of those facts. Where a measure was of a general legislative nature, it was necessary for the EU authority to show the reasoning which led to its adoption, but it was not necessary for it to go into every point of fact and law. Where the essential objective of the measure had been clearly disclosed, there was no need for a specific statement of the reasons for each of the technical choices that had been made.98 41.54 The Court may demand greater particularity where the measure challenged is of an individual, rather than legislative nature. Thus in Germany v Commission,99 Germany produced an alcoholic drink called Brenwein, which was made from wine much of which was imported from outside the EU. The establishment of the common external tariff resulted in significant cost increases, and therefore the German government asked the Commission for permission to import 450,000 hectolitres of this wine at the old, lower rate of duty. The Commission acceded to this request in principle, but only for 100,000 hectolitres. The Commission justified this decision on the grounds that there was ample wine production in the EU, and that the grant of the requested quota would lead to serious disturbances on the relevant product market. The CJEU found the Commission’s reasoning to be insufficiently specific concerning the size of any EU surplus, and that it was unclear why there would be serious disturbances in the market. 41.55 The context in which individual decisions are taken will be important in determining the extent of the duty to give reasons. Thus the EU courts have held that in stating the reasons for its decisions the Commission is not obliged to adopt a position on all

93

Case 45/86 Commission v Council [1987] ECR 1493. Case 24/62 (n 90). 95 Case 73/74 Papiers Peints de Belgique v Commission [1975] ECR 1491. 96 Case 16/65 Schwarze [1965] ECR 877. 97 Case 5/67 Beus [1968] ECR 83, 95; Case C-205/94 Binder GmbH v Hauptzollamt Stuttgart-West [1996] ECR I-2871. 98 Case C-122/94 Commission v Council [1996] ECR I-881 [29]; Case C-84/94 United Kingdom v Council [1996] ECR I-5755 [74], [79]. 99 Case 24/62 Commission v Germany (n 90); Case T-5/93 Tremblay v Commission [1995] ECR II-185. 94

1086

Paul Craig

Art 41 – Right to Good Administration

the arguments relied on by the parties. It is sufficient if it sets out the facts and legal considerations having decisive importance for the decision.100 (e) Specific Provisions Article 41(3): Damages Actions against the EU Discretionary Acts The EU courts have developed different tests for liability depending upon whether the decision-maker has discretion or not. The Schöppenstedt case101 established the general test for recovery in those cases where the decision-maker has some meaningful discretion:

41.56

In the present case the non-contractual liability of the Community presupposes at the very least the unlawful nature of the act alleged to be the cause of the damage. Where legislative action involving measures of economic policy is concerned, the Community does not incur non-contractual liability for damage suffered by individuals as a consequence of that action, by virtue of the provisions contained in Article 215, second paragraph, of the Treaty, unless a sufficiently flagrant violation of a superior rule of law for the protection of the individual has occurred. For that reason the Court, in the present case, must first consider whether such a violation has occurred.

This test will most commonly apply in relation to EU legislation where there is some 41.57 significant discretion, as exemplified by regulations and directives made under the Common Agricultural Policy. The test is also applicable where the contested provision is not legislative in form, but where the primary decision-maker nonetheless possessed some real discretion. This is apparent from Bergaderm.102 The applicant sought damages for losses suf- 41.58 fered by the passage of a Directive, which prohibited the use of certain substances in cosmetics. It claimed that the Directive should be regarded as an administrative act, since it only concerned the applicant and therefore it should suffice to show illegality per se, rather than having to prove a sufficiently serious breach. The CJEU rejected the argument, stating that ‘the general or individual nature of a measure taken by an institution is not a decisive criterion for identifying the limits of the discretion enjoyed by the institution in question’.103 The same point is evident in Antillean Rice.104 The applicants challenged aspects of 41.59 the basic Council Decision which governed the relationship between the overseas countries and territories (OCTs) and the EC. They also challenged a Commission Decision, which introduced safeguard measures for rice originating in the Dutch Antilles, for breach of the Council Decision. The applicants argued that the CFI was wrong to

100

See cases cited in n 90 above. Case 5/71 Aktien-Zuckerfabrik Schöppenstedt (n 16) [11]. 102 Case C-352/98 P Laboratoires Pharmaceutiques Bergaderm SA and Goupil v Commission [2000] ECR I-5291. 103 Ibid [46]. See also, Case C-472/00 P Commission v Fresh Marine A/S [2003] ECR I-7541 [27]; Case C-312/00 P Commission v Camar Srl and Tico Srl [2002] ECR I-11355 [55]; Case C-440/07 P Commission v Schneider Electric SA [2009] ECR I-6413 [160]–[161]; Case T-16/04 Arcelor SA v European Parliament and Council, 2 March 2010 [141]–[143]. 104 Case C-390/95 P Antillean Rice Mills NV v Commission [1999] ECR I-769 [56]–[62]; Case C-312/00 P Camar (n 103) [55]–[56]. 101

Paul Craig

1087

Part I – Commentary on the Articles of the EU Charter

have required proof of a sufficiently serious breach, since the contested measures were decisions. The CJEU rejected the claim. It held that the Commission enjoyed a wide discretion in the field of economic policy, which meant that liability was dependent on showing a sufficiently serious breach of a superior rule of law for the protection of the individual. The fact that the contested measure took the form of a Decision was not decisive, since the test for damages liability depended on the nature of the measure in question and not its form. 41.60 It was clear, prior to the Lisbon Treaty, that whether an act was subject to the Schöppenstedt test would be dependent on the substance of the measure, and not the legal form in which it was expressed.105 This meant that it was always open to an applicant in what is now an Article 340(2) action to claim that the measure, although called a regulation, was in reality an administrative decision.106 The converse was also true: it was possible for a measure to be a decision for some purposes, but to be a legislative act for the purposes of Article 340(2).107 It is however clear after the Lisbon Treaty that the definition of a legislative act is a matter of form: any act that is passed in accord with a legislative procedure is a legislative acts for the purposes of the Lisbon Treaty, and acts not enacted in accord with such a procedure do not qualify as legislative acts, irrespective of their substance.108 41.61 The applicant must show that the damage resulted from breach of a superior rule of law for the protection of the individual. Superior is sometimes equated with ‘important’, and sometimes with a more formalistic conception of one rule being hierarchically superior to another. It is apparent from the case law that three differing types of norm can, in principle, qualify in this respect.109 41.62 First, many Treaty provisions fall within this category. A commonly cited ground in cases under Article 340(2) is the ban on discrimination contained in Article 40(2) TFEU, in the context of the Common Agricultural Policy (CAP). A second ground is that a regulation is in breach of a hierarchically superior regulation.110 A third ground which has been held capable of sustaining the claim in damages is where the EU legislation is held to infringe certain general principles of law such as proportionality, legal certainty, or legitimate expectations.111 The principle of sound administration does not, in itself, confer rights upon individuals, except where it constitutes the expression of specific rights such as the right to have affairs handled impartially, fairly and

105 Case C-390/95 P Antillean Rice (n 104) [60]; A Arnull, ‘Liability for Legislative Acts under Article 215(2) EC’, in Heukels and McDonnell (n 17) 131–36. 106 Case C-119/88 Aerpo and Others v Commission [1990] ECR I-2189; Case T-472/93 Campo Ebro and Others v Commission [1995] ECR II-421. 107 Cases T-481/93 and 484/93 Vereniging van Exporteurs in Levende Varkens v Commission (Live Pigs) [1995] ECR II-2941; Case C-390/95 P Antillean Rice (n 104) [62]. 108 Art 289 TFEU. 109 Rules of the World Trade Organization (WTO) cannot generally be relied on in this context, Case C-149/96 Portugal v Council [1999] ECR I-8395; Case T-18/99 Cordis Obst und Gemuse Grosshandel GmbH v Commission [2001] ECR II-913; Case C-377/02 Leon Van Parys NV v BIRB [2005] ECR I-1465; Case T-383/00 Beamglow Ltd v European Parliament, Council and Commission [2005] ECR II-5459; Cases C-120–121/06 P FIAMM v Council and Commission [2008] ECR I-6513 [111]–[112]. 110 Case 74/74 Comptoir National Technique Agricole (CNTA) SA v Commission [1975] ECR 533. 111 The duty to give reasons does not appear to qualify as a superior rule of law for these purposes: Case 106/81 Julius Kind KG v EEC [1982] ECR 2885; Case C-119/88 Aerpo (n 106) [19]; Cases T-466, 469, 473, 474, 477/93 O’Dwyer v Council [1996] ECR II-207 [72]; Cases T-64 and 65/01 Afrikanische Frucht-Compagnie GmbH v Council and Commission [2004] ECR II-521 [128].

1088

Paul Craig

Art 41 – Right to Good Administration

within a reasonable time, the right to be heard, the right to have access to files, or the obligation to give reasons for decisions, for the purposes of Article 41 of the Charter of Fundamental Rights.112 The individual must prove not only that there has been breach of a superior rule of law for the protection of the individual, but also that the breach was flagrant. This has been the most important control device used by the courts. Its meaning has altered over time. The older case law revealed two senses of the term flagrant violation/serious breach. In some cases this condition was used to deny recovery where the loss was not deemed to be sufficiently serious, as exemplified by Bayerische HNL.113 In other cases the CJEU interpreted the requirement of flagrant violation to refer to the seriousness of the breach, as exemplified by Amylum,114 where recovery was denied because the institutional error did not verge on the arbitrary.115 The conditions in Bayerische HNL and Amylum were cumulative. An applicant had to show both that the effects of the breach were serious, in terms of the quantum of loss suffered, and also that the manner of the breach was arbitrary. These hurdles were not easy to surmount, particularly the second. There have been significant shifts in the CJEU’s later jurisprudence. The major change came in Bergaderm.116 When considering state liability in damages the CJEU in Brasserie du Pêcheur/Factortame117 held that the test should not be different from that used to determine the EU’s liability under Article 340(2). This cross-fertilisation between the test for the EU’s damages liability and that of the Member States was carried further in Bergaderm, where the CJEU completed the circle by explicitly drawing on the factors mentioned in Brasserie du Pecheur/Factortame to determine the meaning of flagrant violation for the purposes of liability under Article 340(2). In Bergaderm the CJEU held that the rules for liability under Article 340(2) take account, as do those in relation to state liability in damages, of ‘the complexity of situations to be regulated, difficulties in the application or interpretation of the texts and, more particularly, the margin of discretion available to the author of the act in question’.118 It affirmed that the test for damages liability was in general the same irrespective of whether the Union or the Member State inflicted the loss: the rule of law infringed must be intended to confer rights on individuals; there must be a sufficiently serious breach; and there had to be a direct causal link between the breach and the damage.119 This means that under Article 340(2) the seriousness of the breach will be dependent upon factors articulated in the case law on state liability such as the relative clarity of the rule which has been breached; the measure of discretion left to the relevant authorities; whether the error of law was excusable or not; and whether the breach was intentional

112

Case T-193/04 Tillack (n 16) [116]–[117]. Cases 83, 94/76, 4, 15, 40/77 Bayerische HNL Vermehrungsbetriebe GmbH & Co KG v Council and Commission [1978] ECR 1209. 114 Cases 116 and 124/77 Amylum NV and Tunnel Refineries Ltd v Council and Commission [1979] ECR 3497. 115 Ibid [19]. 116 Case C-352/98 P Laboratoires Pharmaceutiques Bergaderm (n 102). 117 Cases C-46 and 48/93 Brasserie du Pêcheur SA v Germany; R v Secretary of State for Transport, ex p Factortame Ltd [1996] ECR I-1029. 118 Case C-352/98 P Laboratoires Pharmaceutiques Bergaderm (n 102) [40]. 119 Ibid [41]–[42]. 113

Paul Craig

1089

41.63

41.64

41.65

Part I – Commentary on the Articles of the EU Charter

or voluntary. Where the Member State or the EU institution has only considerably reduced, or even no discretion, the mere infringement of EU law may be sufficient to establish the existence of a sufficiently serious breach. The decisive issue for the purposes of damages liability is not the individual or general nature of the act adopted, but the discretion available to the institution when it was adopted. This approach has been followed in later cases.120 41.66 Thus, for example, in Arcelor121 the claimant sought damages for loss caused by a Directive concerned with greenhouse gas emissions. The CFI reiterated the test from Bergaderm and held that it was for the claimant to show the serious breach. This required it to show a manifest and serious failure to have regard for the limits of the broad discretion enjoyed by the Union legislature when exercising its environmental powers. It emphasised the breadth of the discretionary power in this area, stating that it required the Union legislature to evaluate ‘ecological, scientific, technical and economic changes of a complex and uncertain nature’ and to balance ‘the various objectives, principles and interests set out in Article 174 EC’.122 The rationale for the test for liability set out above is that the EU institutions often 41.67 have to make difficult discretionary choices. A test for liability based on illegality per se would render the decision-makers susceptible to a potentially wide liability, and would run the risk that the court might ‘second-guess’ the decisions made by the Council and Commission as to how the variables concerning the discretion should be balanced in any particular instance. Such a strict test for damages liability might also deter the courts from finding illegality. The crucial issue is then how the phrase ‘flagrant violation’ or ‘serious breach’ should be interpreted. The interpretation in the early case law required something akin to arbitrary action and this was too restrictive. The more liberal approach in Brasserie du Pêcheur/Factortame, which was adopted in Bergaderm, is therefore to be welcomed. Non-Discretionary Acts 41.68 The test for liability for non-discretionary acts was subtly altered in the recent jurisprudence. The traditional approach, prior to Bergaderm, was that where the contested measure did not entail any meaningful discretionary choice then it would normally suffice to show illegality, causation, and damage.123 Discretionary measures, by way of contrast, would be subject to the further requirement of showing a sufficiently serious breach.

120 Case C-472/00 P Fresh Marine A/S (n 7); Case C-312/00 P Camar (n 103); Case C-198/03 P Commission v CEVA Santé Animale SA and Pfizer Enterprises Sàrl [2005] ECR I-6357; Case C-282/05 P Holcim (Deutschland) AG v Commission [2007] ECR I-2941; Case T-304/01 Julia Abad Pérez v Council of the European Union and Commission [2006] ECR II-4857; Case T-364/03 Medici Grimm KG v Council [2006] ECR II-79; Cases T-3/00 and 337/04 Athanasios Pitsiorlas v Council and ECB [2007] ECR II-4779; Case T-94/98 Alfonsius Alferink v Commission [2008] ECR II-1125; Case T-212/03 My Travel Group plc v Commission [2008] ECR II-1967. 121 Case T-16/04 Arcelor (n 103). 122 Ibid [143]. 123 Cases 44–51/77 Union Malt v Commission [1978] ECR 57; Cases T-481 and 484/93 Live Pigs (n 107); Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057 [16]; Case C-146/91 KYDEP v Council and Commission [1994] ECR I-4199; Cases C-258 and 259/90 Pesquerias de Bermeo SA and Naviera Laida SA v Commission [1992] ECR I-2901; Case T-336/94 Efisol v Commission [1996] ECR II-1343 [30]; Case T-178/98 Fresh Marine (n 16) [54]; Cases T-79/96, 260/97, 117/98 Camar Srl and Tico Srl v Commission [2000] ECR II-2193 [204]–[205]; Case T-333/03 Masdar (UK) Ltd v Commission [2006] ECR II-4377 [59]–[62].

1090

Paul Craig

Art 41 – Right to Good Administration

The more recent jurisprudence continues to distinguish between discretionary and 41.69 non-discretionary acts, but does so within the unitary framework of the sufficiently serious breach test. The modern formulation, set out in Bergaderm and applied in subsequent cases, is as follows. It is necessary for the applicant to prove that the rule of law infringed was intended to confer rights on individuals; there must be a sufficiently serious breach; and a causal link between the breach and the resultant harm. Where however the EU institution has considerably reduced or no discretion, the mere infringement of EU law ‘may’ be sufficient to establish the existence of the sufficiently serious breach.124 The CJEU therefore continues to distinguish between the test for liability for discretionary and non-discretionary acts, but within the framework of the sufficiently serious breach test. Where there is no or considerably reduced discretion, the mere breach of Community law ‘may’ suffice to establish the existence of the sufficiently serious breach. The general or individual nature of the measure is, as seen from Bergaderm125 and Antillean Rice,126 not a decisive criterion when identifying the limits of discretion possessed by an institution. This is correct in principle. Many administrative measures involve discretionary choices that are just as difficult as those made in the context of legislative action, and the line between the two may be difficult to draw.127 If the EU courts decide that there is no meaningful discretion, and therefore that the 41.70 mere infringement of EU law may suffice to establish a sufficiently serious breach, there may still be issues concerning the meaning of illegality. The mere proof of an error will not, however, always ensure success in a damages action. The Court may construe illegality narrowly, or define it so as to preclude liability unless there has been some culpable error, or something equivalent thereto.128 Thus in Fresh Marine129 the applicant sought damages because the Commission had erroneously decided that the company was in breach of an undertaking it had given in relation to the dumping of salmon. The CFI held that a mere infringement of EU law could suffice for liability, because the alleged error did not involve complex discretionary choices by the Commission. However it then defined the relevant error leading to illegality to be lack of ordinary care and diligence by the Commission, and took account of the applicant’s contributory negligence.130

124 Case C-352/98 P Laboratoires Pharmaceutiques Bergaderm (n 102) [42]–[44]; Case C-472/00 P Fresh Marine A/S (n 7) [26]–[27]; Case C-312/00 P Camar (n 103) [54]–[55]; Cases T-198/95, 171/96, 230/97, 174/98, and 225/98 Comafrica SpA and Dole Fresh Fruit Europa Ltd & Co v Commission [2001] ECR II-1975 [134]–[136]; Case T-283/02 EnBW Kernkraft GmbH v Commission [2005] ECR II-913 [87]; Case T-139/01 Comafrica SpA and Dole Fresh Fruit Europe & Co Ltd v Commission [2005] ECR II-409 [142]; Case T-94/98 Alfonsius Alferink (n 120); Case T-16/04 Arcelor (n 103) [141]; Case C-440/07 P Schneider (n 103) [160]; Case T-341/07 Jose Maria Sison v Council [2011] ECR II-7915 [33]–[41]; Case C-221/10 P Artegodan GmbH v Commission and Germany (Judgment of 19 April 2012) [80]. 125 Case C-352/98 P Laboratoires Pharmaceutiques Bergaderm (n 102) [46]; Case T-178/98 Fresh Marine (n 16) [57]. 126 Case C-390/95 P Antillean Rice (n 104) [56]–[62]. 127 Case T-390/94 Aloys Schröder v Commission [1997] ECR II-501; Cases T-458 and 523/93 ENU v Commission [1995] ECR II-2459; Case C-390/95 P Antillean Rice (n 104); Case T-178/98 Fresh Marine (n 16) [57]; Case T-79/96 Camar Srl (n 123) [206]; Case C-64/98 Petrides Co Inc v Commission [1999] ECR I-5187 [26]–[28]. 128 Cases 19, 20, 25, 30/69 Denise Richez-Parise v Commission [1970] ECR 325. 129 Case T-178/98 (n 16) [61]. 130 Ibid [57]–[61] [82]; Cases T-198/95, 171/96, 230/97, 174/98, and 225/98 Comafrica (n 124) [144] [149]; Case T-341/07 Jose Maria Sison (n 124) [40].

Paul Craig

1091

Part I – Commentary on the Articles of the EU Charter

Causation and Damage 41.71 An applicant must show causation and damage in any action, irrespective of whether the contested measure is discretionary or non-discretionary in nature. Claims for damages have often fallen at this hurdle.131 There is a causal link for the purposes of Article 340 where there is a certain, direct causal nexus between the fault committed by the institution concerned and the injury pleaded, the burden of proof of which rests on the applicants.132 It can be difficult to prove that EU action caused the loss.133 Thus in Scan Office Design the applicant failed in its damages claim, because although it had established some serious faults by the Commission in procurement procedure, it could not show that it should have been awarded the contract.134 The applicant must show not only that the Union action caused the loss,135 but also that the chain of causation has not been broken by either the Member State or the applicant. If the loss arises from an independent or autonomous act by the Member State, the EU is no longer liable.136 If, however, this conduct has been made possible by an illegal failure of the Commission to exercise its supervisory powers, then this failure will be considered to be the cause of the damage.137 Similarly, the EU will be liable where it committed the wrong, and hence any damage caused by implementation of the invalid EU act by national authorities that had no discretion will be attributable to the Union.138 It is not entirely clear what type of conduct by the applicant will break the chain of causation. Negligence, or contributory negligence, will suffice either to defeat the claim or to reduce the damages.139 If the individual ought to have foreseen the possibility of certain events which might cause loss, then the possibility of claiming damages will be diminished or lost.140 Particular problems of causation can arise where the illegality consists of omissions by an EU institution.141 41.72 The claimant will also have to show that the damage is of kind that is recoverable under EU law. The general objective is to place the victim in the situation that would

131 A Toth, ‘The Concepts of Damage and Causality as Elements of Non-Contractual Liability’, in Heukels and McDonnell (n 17) 192. 132 Case T-304/01 Julia Abad Pérez (n 120); Cases T-252, 271–72/07 Sungro SA v Council and Commission [2010] ECR II-55 [47]. 133 Cases 64, 113/76, 167, 239/78, 27, 28, 45/79 Dumortier Frères SA v Council [1979] ECR 3091; Case C-419/08 P Trubowest Handel GmbH and Viktor Makarov v Council and Commission [2010] ECR I-2259. 134 Case T-40/01 Scan Office Design SA v Commission [2002] ECR II-5043; Cases T-3/00 and 337/04, Athanasios Pitsiorlas (n 120); Case T-42/06 Bruno Gollnisch v European Parliament [2010] ECR II-1135 [110]. 135 Case C-363-4/88 Finsider v Commission [1992] ECR I-359 [25]; Case T-57/00 Banan-Kompaniet AB and Skandinaviska Bananimporten AB v Council and Commission [2003] ECR II-607 [40]; Case T-333/01 Karl Meyer v Commission [2003] ECR II-117 [32]. 136 Case 132/77 Société pour l’Exportation des Sucres SA v Commission [1978] ECR 1061, 1072–73; Case T-261/94 Schulte v Commission [2002] ECR II-441 [57]. 137 Cases 9 and 12/60 Vloeberghs v High Authority [1961] ECR 197, 240; Case 4/69 Alfons Lütticke GmbH v Commission [1971] ECR 325, 336–38. 138 Case T-210/00 Etablissments Biret et Cie SA v Council [2002] ECR II-47 [36]–[37]. 139 Case 145/83 Adams v Commission [1985] ECR 3539, 3592; Case T-178/98 Fresh Marine (n 16). 140 Case 59/83 SA Biovilac NV v EEC [1984] ECR 4057; Case T-514/93 Cobrecaf v Commission [1995] ECR II-621, 643; Case T-572/93 Odigitria v Council and Commission [1995] ECR II–2025, 2051–2052; Case T-184/95 Dorsch Consult [1998] ECR II-667. 141 Case T-304/01 Julia Abad Pérez (n 120); Case T-138/03 ÉR v Council and Commission [2006] ECR II-4923.

1092

Paul Craig

Art 41 – Right to Good Administration

have pertained if the wrong had not been committed.142 Losses will only be recoverable if they are certain and specific, proven and quantifiable.143 It is however possible to maintain an action ‘for imminent damage foreseeable with sufficient certainty even if the damage cannot yet be precisely assessed’.144 The idea that the damage suffered must be specific, in the sense that it affects the applicant’s interests in a special and individual way, is found in various guises in CJEU decisions. Thus, in Bayerische HNL the Court emphasised that the effects of the regulation did not exceed the bounds of economic risk inherent in the activity in question.145 The applicant will have the onus of proving that the damage occurred. The damage must also be quantifiable and come within the types of damage that are recoverable.146 The CJEU will grant damages for losses actually sustained and will exceptionally award for non-material damage.147 It is willing in principle also to give damages for lost profits, but is reluctant to do so.148 There are, however, exceptional cases where it will award lost profits, subject to a duty to mitigate loss.149 Damages will normally be the relief claimed under Article 340. The CFI however 41.73 held in Galileo150 that the combined effect of Articles 268 and 340 TFEU is that the EU courts have the power to impose on the Union any form of reparation that accords with the general principles of non-contractual liability common to the laws of the Member States, including, if it accords with those principles, compensation in kind, if necessary in the form of an injunction to do or not to do something. EU Servants Article 340(2) specifically allows for loss to be claimed where it has been caused either 41.74 by the Union institutions or by the acts of its servants ‘in the performance of their duties’. The CJEU has construed this provision narrowly. Thus in Sayag151 an engineer employed by Euratom was instructed to take Leduc, a representative of a private firm, on a visit to certain installations. He drove him there in his own car, having obtained a travel order enabling him to claim expenses for the trip from the Community. An accident occurred and Leduc claimed damages in the Belgian courts against Sayag.

142 Case C-308/87 Grifoni v EAEC [1994] ECR I-341 [40]; Cases C-104/89 and 37/90 Mulder and Others v Council and Commission [2000] ECR I-203 [51], [63]; Case T-260/97 Camar Srl v Council [2005] ECR II-2741 [97]. 143 Toth (n 131) 180–91; Case T-139/01 Comafrica (n 124) [163]–[168]; Case T-99/98 Hameico Stuttgart (n 16) [67]; Case C-243/05 P Agraz, SA and Others v Commission [2006] ECR I-10833; Cases T-3/00 and 337/04 Athanasios Pitsiorlas (n 120); Case T-452/05 Belgian Sewing Thread (BST) NV v European Commission [2010] ECR II-1373 [163]–[168]. 144 Cases 56–60/74 Kampffmeyer v Commission and Council [1976] ECR 711, 741; Case T-79/96 Camar Srl (n 123) [207]; Case T-260/97 Camar Srl (n 142) [91]; Case T-279/03 Galileo International Technology LLC v Commission [2006] ECR II-1291 [123]. 145 Cases 83, 94/76, 4, 15, 40/77 Bayerische HNL (n 113). 146 Case 238/78 Ireks-Arkady v Council and Commission [1979] ECR 2955, 2998–99. 147 Case T-84/98 C v Council [2000] ECR IA-113 [98]–[103]; Case T-307/01 Jean-Paul François v Commission [2004] ECR II-1669 [107]–[111]; Case T-48/01 François Vainker and Brenda Vainker v European Parliament [2004] ECR IA-51 [180]. 148 Cases 5, 7, 13–24/66 Kampffmeyer v Commission [1967] ECR 245, 266–67; Case T-160/03 AFCon Management Consultants v Commission [2005] ECR II-981 [112]–[114]; Case 74/74 CNTA (n 110) 550. 149 Cases C-104/89 and 37/90 Mulder v Council and Commission [1992] ECR I-3061. 150 Case T-279/03 Galileo (n 144) [63]. 151 Case 9/69 Sayag v Leduc [1969] ECR 329; Case T-124/04 Jamal Ouariachi v Commission [2005] ECR II-4653 [18].

Paul Craig

1093

Part I – Commentary on the Articles of the EU Charter

It was argued that Sayag was driving the car in the performance of his duties, and that therefore the action should have been brought against the Community. The CJEU held that the Community was only liable for those acts of its servants which, by virtue of an internal and direct relationship, were the necessary extension of the tasks entrusted to the institutions. A servant’s use of his private car for transport during the course of his duties could only satisfy this condition in exceptional circumstances, notwithstanding that Sayag had obtained a travel order for the journey. The range of acts done by its servants for which the Community will accept responsibility is therefore more limited than in most Member States. No justification for the limited nature of this liability is provided by the CJEU. 41.75 If the Community is not liable then an action can in principle be brought against the servant in his or her personal capacity in a national court and governed by national law. However, Article 343 TFEU provides that the Union shall enjoy in the Member States such privileges and immunities as are necessary for the performance of its tasks, under the conditions laid down by the 1965 Protocol on the Privileges and Immunities of the European Union as amended.152 Article 12(a) of the Protocol provides that servants have immunity from suit in national courts in relation to ‘acts performed in their official capacity’.153 One would expect that where the EU is liable under Article 340(2), because the servant is acting in the performance of her duties, then it would follow that the servant would not be personally liable, since he or she would be deemed to be acting in an official capacity. The interrelationship between these two provisions is more problematic, and the CJEU has held that the servant’s personal immunity and the scope of the EU’s liability for the acts of the servant are separate issues.154 Lawful Acts 41.76 The preceding discussion has been concerned with liability in damages for unlawful acts. Individuals may also suffer loss flowing from lawful EU acts.155 The problem of loss being caused by lawful governmental action is not peculiar to the Union. Thus, French law recognises a principle of égalité devant les charges publiques, and German law the concept of Sonderöpfer, allowing loss caused by lawful governmental action to be recovered, albeit in limited circumstances.156 There can be difficulties in deciding when to grant such compensation, since legislation will often explicitly or implicitly aim to benefit one section of the population at the expense of another.

152

[1967] OJ L152/14. See now, Protocol (No 7) On the Privileges and Immunities of the European Union, Art 11. 154 Case 5/68 Sayag v Leduc [1968] ECR 395, 402. 155 H Bronkhorst, ‘The Valid Legislative Act as a Cause of Liability of the Communities’, in Heukels and McDonnell (n 17) ch 8. 156 Ibid 155–59. 153

1094

Paul Craig

Art 41 – Right to Good Administration

Claims for lawfully caused loss have been advanced frequently and most have been rejected.157 The leading case is Dorsch Consult,158 which arose out of the Gulf war. The EC, acting pursuant to a UN Security Council resolution, passed a regulation banning trade with Iraq. The Iraqi government retaliated with a law that froze assets of companies doing business in Iraq, where those companies were based in countries that imposed the embargo. The applicant was such a company. It argued that it should be compensated for its loss, even if the EC had acted lawfully. The CFI emphasised that if liability for lawful acts were recognised by EC law, it was necessary for the applicant to prove damage and causation. Such liability could only be incurred if the damage affected a particular circle of economic operators in a disproportionate manner in comparison with others (unusual damage) and exceeded the economic risks inherent in operating in the sector concerned (special damage), where the legislative measure that gave rise to the alleged damage was not justified by a general economic interest. The CFI concluded that the applicant had not met these criteria. The CFI’s judgment was framed conditionally: if such liability were to exist, then the conditions listed would have to be satisfied. This was stressed on appeal to the CJEU.159 It has been emphasised again in FIAMM,160 where the CJEU was even more wary about admitting the existence of any such principle of liability in EU law. It reiterated that no such principle yet existed in EU law and that if it did it would be subject to the stringent conditions set out above. The CJEU noted that there was no consensus in the laws of the Member States as to whether liability for lawful acts of a legislative nature existed.161

41.77

41.78

Joint Liability The preceding analysis was based on the assumption that the EU committed the unlawful act. There can, however, be cases where the EU and the Member States share liability.162 Joint liability can arise where the EU wrongfully authorises national action that is in breach of EU law, such as in Kampffmeyer,163 where the Commission wrongfully confirmed a decision taken by the German government that suspended zero-rated import licences for maize, in circumstances where firms had acted in reliance on the

157 Cases 9 and 11/71 Compagnie d’Approvisionnement de Transport et de Crédit SA and Grands Moulins de Paris SA v Commission [1972] ECR 391 [45]; Cases 54–60/76 Compagnie Industrielle et Agricole du Comté de Loheac v Council and Commission [1977] ECR 645 [19]; Case 59/83 SA Biovilac NV v EEC [1984] ECR 4057, 4080–81; Case 265/85 Van den Bergh & Jurgens BV and Van Dijk Food Products (Lopik) BV v EEC [1987] ECR 1155; Case 81/86 De Boer Buizen v Council and Commission [1987] ECR 3677. 158 Case T-184/95 Dorsch Consult Ingenieurgesellschaft mbH v Council [1998] ECR II-667, upheld on appeal, Case C-237/98 P Dorsch Consult Ingenieurgesellschaft mbH v Council [2000] ECR I-4549. See also, Case T-99/98 Hameico Stuttgart (n 16) [60]; Case T-170/00 Forde-Reederie GmbH v Council and Commission [2002] ECR II-515 [56]; Cases T-64–65/01 Afrikanische Frucht-Compagnie GmbH and Internationale Fructimport Gesellschaft Weichert & Co v Council and Commission [2004] ECR II-521 [150]–[156]; Case T-383/00 Beamglow (n 109) [173]–[174]; Cases C-120–21/06 P FIAMM (n 109). 159 Case C-237/98 P Dorsch Consult (n 158) [19]. 160 Cases C-120–21/06 P FIAMM (n 109) [164]–[176]. 161 Ibid [175]. 162 A Durand, ‘Restitution or Damages: National Court or European Court?’ (1975–6) 1 European Law Review 431; T Hartley, ‘Concurrent Liability in EEC Law: A Critical Review of the Cases’ (1977) 2 European Law Review 249; W Wils, ‘Concurrent Liability of the Community and a Member State’ (1992) 17 European Law Review 191; P Oliver, ‘Joint Liability of the Community and the Member States’, in Heukels and McDonnell (n 17) ch 16. 163 Cases 5, 7, 13–24/66 Kampffmeyer v Commission [1967] ECR 245.

Paul Craig

1095

41.79

Part I – Commentary on the Articles of the EU Charter

zero-rating and had concluded contracts to buy maize on that assumption. The decision was annulled164 and the applicants sought compensation from the Commission under what is now Article 340. The CJEU held that the Commission acted unlawfully so as to give rise to damages liability, but that the extent of the EU’s liability should be determined after the conclusion of actions in the German courts brought by the firms affected. This has been criticised on the ground that there was no reason to require the applicants to proceed initially in the German courts, and that the CJEU’s rationale was based implicitly on the assumption that the German authorities were primarily liable, with the EU bearing only a residual liability.165 We should however distinguish the claim for the return of the levies paid from the more general tort action. Primary liability for the former should rest with Germany, given that it imposed the levy and received the funds. There is however no reason in relation to the latter why the EU’s liability should be seen as secondary to that of the Member State. The CFI nonetheless more recently reaffirmed Kampffmeyer.166 41.80 Issues concerning joint liability can also arise where the Member State applies unlawful Union legislation. This can occur, for example, in the context of the CAP, where EU regulations will often be applied by national intervention boards. The general rule is that it is the national intervention boards, and not the Commission, which are responsible for the application of the CAP, and that an action must normally be commenced in the national courts.167 The CJEU has also held that an action must be commenced in the national courts where a trader is seeking payment of a sum to which he believes himself to be entitled under EU law, although this decision was heavily influenced by the wording of the relevant EU regulations.168 There are, however, situations in which it is possible to proceed against the EU directly,169 the most important being where there would be no remedy available in the national courts,170 and where the EU has committed a tortious wrong to the applicant.171 (f) Specific Provisions Article 41(4): Language Rights 41.81 Article 41(4) provides that every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language. This is based on Article 20(2)(d) TFEU, which was hitherto Article 21(3) EC. The EU has 23 official and working languages: Bulgarian, Czech, Danish, Dutch, 41.82 English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovene, Spanish and

164

Cases 106 and 107/63 Toepfer v Commission [1965] ECR 405. Oliver (n 162). 166 Case T-138/03 ÉR (n 141). 167 Case 96/71 R and V Haegeman Sprl v Commission [1972] ECR 1005. 168 Case 99/74 Société des Grands Moulins des Antilles v Commission [1975] ECR 1531. 169 Case 175/84 Krohn & Co Import-Export GmbH & Co KG v Commission [1986] ECR 753. 170 Case 281/82 Société à responsabilité limitée Unifrex v Commission and Council [1984] ECR 1969; Case 20/88 Roquette Freres v Commission [1989] ECR 1553; Case T-167/94 Nolle v Council and Commission [1995] ECR II-2589; Case T-18/99 Cordis (n 109) [28]. 171 Case 126/76 Dietz v Commission [1977] ECR 2431; Case T-18/99 Cordis (n 109) [26]. The principle in Dietz may not apply if the national authorities were partially to blame for the loss caused to the applicant as in Cases 5, 7, 13–24/66 Kampffmeyer (n 163). 165

1096

Paul Craig

Art 41 – Right to Good Administration

Swedish. The first Community Regulation determining official languages was passed in 1958,172 which specified Dutch, French, German and Italian as the official and working languages of the EU. The number has increased since then, but there are fewer official languages than Member States, since some share common languages. There are two formal consequences of inclusion in the list of official languages: documents can be sent to EU institutions and a reply received in any of these languages; and EU legal acts are published in the official and working languages, as is the Official Journal. Constraints of budget and time mean however that relatively few working documents are translated into all languages. The European Commission employs English, French and German in general as procedural languages, whereas the European Parliament provides translation into different languages according to the needs of its Members.173 It has been argued that language rights, including the right to use a minority language, should be regarded as general principles of EU law.174 There are however considerable difficulties with this view,175 and it should in any event be acknowledged that the EU, by recognising 23 official languages, goes considerably further in this respect than any other international organisation.176

41.83

41.84

IV. Limitations and Derogations The limitations and derogations that can be made to the specific rights enshrined in Article 41 have been considered in the course of the preceding analysis. It should also be noted in this respect that Article 52(2) of the Charter, which provides that rights recognised by the Charter for which provision is made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties, is applicable to Articles 41(3) and 41(4).177

41.85

V. Remedies The remedies for breach of Article 41 will be the same as those applicable for breach of a general principle of law, or for violation of the Treaty obligations that are relevant to Article 41. Thus if there is a breach of a general principle of law concerning the right to be heard by an EU institution the normal remedy will be annulment pursuant to Article 263 TFEU if there is a direct action, or a finding of invalidity pursuant to Article 267 TFEU if there is an indirect action. If the breach of the general principle of law has been committed by the Member State then the CJEU will rule accordingly under Article

172 Regulation 1/1958 determining the languages to be used by the European Economic Community [1958] OJ L17/385, as amended. 173 http://ec.europa.eu/languages/languages-of-europe/eu-languages_en.htm. 174 I Urrutia and I Lasagabaster, ‘Language Rights as a General Principle of Community Law’ (2007) 8 German Law Journal 479. 175 T Schilling, ‘Language Rights in the European Union’ (2008) 9 German Law Journal 1219. 176 Ibid. 177 Explanations relating to the Charter (n 4).

Paul Craig

1097

41.86

41.87

Part I – Commentary on the Articles of the EU Charter

267 TFEU, with the consequence that the Member State will be under an obligation to remedy the breach, through, for example, the provision of a hearing that complies with the right to be heard. If the breach of the general principle of the right to be heard flows from national legislation that falls within the scope of EU law, the Member State will be under an obligation to remedy the breach by amending the legislation. 41.88 The EU courts may however take account of the effect of the breach before deciding whether to annul the contested decision. Thus, for example, infringement of the reasonable time principle does not, as a general rule, lead per se to annulment of a decision taken at the culmination of the administrative procedure. The court will consider whether the elapsing of an excessive period is likely to affect the content of the decision adopted at the end of the administrative procedure.178 41.89 The normal remedy in the event of an action under Article 340 TFEU will be the award of damages to the claimant. If there is a breach of Article 41(4) of the Charter through failure to reply to an inquiry in the same language as the inquiry was made in, the remedy would in formal terms be annulment of the initial answer, which would carry with it an obligation to respond in the correct terms as demanded by Article 41(4).

E. Evaluation 41.90 Articles 41(1) and 41(2)(a)–(b) of the Charter are based on a general principle of law as developed by the EU courts, and Article 41(c) and Articles 41(3) and 41(4) are modelled on existing Treaty provisions. There is therefore a very considerable volume of existing jurisprudence to guide the interpretation and scope of Article 41. The CJEU has been bold in developing general principles of law, including that relating to hearings, access to the file and the like. It is also natural, as with any large volume of case law, for there to be decisions that are contestable, and this has been exemplified in the preceding discussion. The most interesting issue going forward will be the interpretation accorded by the CJEU to the chapeau provision in Article 41(1).

178

1098

See, eg, Case F-33/08 V v Commission (Judgment of 21 October 2009).

Paul Craig

Article 42 Article 42 Right of Access to Documents Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.

Text of Explanatory Note on Article 42 The right guaranteed in this Article has been taken over from Article 255 of the EC Treaty, on the basis of which Regulation (EC) No 1049/2001 has subsequently been adopted. The European Convention has extended this right to documents of institutions, bodies and agencies generally, regardless of their form (see Article 15(3) of the Treaty on the Functioning of the European Union). In accordance with Article 52(2) of the Charter, the right of access to documents is exercised under the conditions and within the limits for which provision is made in Article 15(3) of the Treaty on the Functioning of the European Union.1

Select Bibliography D Adamski, ‘How Wide is the “Widest Possible”? Judicial Interpretation of the Exceptions to Right of Access to Official Documents Revisited’ (2009) 46 Common Market Law Review 521–49. ——, ‘Approximating a Workable Compromise on Access to Official Documents: The 2011 Developments in the European Courts’ (2012) 49 Common Market Law Review 521–58. A Buijze, ‘The Principle of Transparency in EU Law’ (Utrecht, PhD thesis, Utrecht University, 2013). D Curtin, ‘Citizens’ Fundamental Right of Access to Information: An Evolving Digital Passepartout?’ (2000) 37 Common Market Law Review 7–41. ——, ‘Official Secrets and the Negotiation of International Agreements. Is the EU Executive Unbound?’ (2013) 50(2) Common Market Law Review 423–58. J Heliskoski and P Leino, ‘Darkness at the Break of Noon: The Case Law on Regulation No 1049/2001 on Access to Documents’ (2006) 43 Common Market Law Review 735–81. M Hillebrandt, D Curtin and A Meijer, ‘Transparency in the EU Council of Ministers. An Institutional Analysis’ (2014) 20 European Law Journal 1–20. LN González Alonso, Carta de Los Derechos Fundamentales de la Unión Europea. Comentario artículo por artículo—Artículo 42 (Bilbao, Fundación BVA, 2008) 678–95. H Kranenborg, Toegang tot Documenten en Bescherming van Persoonsgegevens in de Europese Unie: Over de Openbaarheid van Persoonsgegevens (The Hague, Kluwer Law International, 2007). P Leino, ‘Just a Little Sunshine in the Rain: The 2010 Case Law of the European Court of Justice on Access to Documents’ (2011) 48 Common Market Law Review 1215–52. J Ziller, ‘Article II-102—Droit d’Accès aux Documents’ in A Levade, F Picod and L BurgorgueLarsen (eds), Traité établissant une Constitution pour l’Europe. Commentaire article par article. Partie II: La Charte des droits fondamentaux de l’Union (Bruxelles, Bruylant, 2005) 538–50.

1 Explanations Relating to the Charter of Fundamental Rights [2007] OJ C303/17. To the authors’ knowledge there is no judgment of the Court of the European Union or Opinion of Advocates General that refers to the explanation of Art 42.

Part I – Commentary on the Articles of the EU Charter

A. Field of Application of Article 42 42.01 Since Article 42 is based on a Treaty article (initially Art 255 of the EC Treaty), it needs to be exercised under the conditions and within the limits defined in the Treaty (specifically in Art 15(3) TFEU), by virtue of Article 52(2) of the Charter (see the explanations).2 As previously was the case with Article 255 EC, Article 15(3) TFEU specifies that the right of access to documents be subject to ‘the principles and the conditions’ defined in accordance with that same Treaty article. This means that they are essentially established in Regulation 1049/2001, which contains the principles and rules that govern access to documents,3 in Regulation 1367/2006, that applies the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to the Union institutions and bodies, and in the rules of procedure of the institutions, bodies, offices and agencies.4 The revision process of Regulation 1049/20015 will—if and when ultimately completed— be of relevance for the (revised) field of application of Article 42. 42.02 Article 51 of the Charter does not seem to restrict or broaden the scope of application of the right of access to documents as enshrined in Article 42. The latter is also explicitly addressed to ‘the institutions, bodies, offices, and agencies of the Union’ (Art 51(1) of the Charter).6 Moreover, by its very nature, the right of access to documents does not lend itself to expanding or modifying the competences of the Union as such—the risk to which Article 51(2) of the Charter adverts. It cuts across the various fields of competence of the Union, as it refers to the documents held by the Union as a result of its activity within the areas of competence defined by the Treaties.7 It pertains to the mode

2 On the different scope of application of the right in ex-Art 255 EC and current Art 15(3) TFEU, see below section D.II. 3 Regulation (EC) 1049/2001 regarding public access to European Parliament, Council and Commission documents [2001] OJ L145/43. As will be seen below, Regulation (EC) 1367/2006 on the application of the provisions of the Aarhus Convention on access to Information, public participation in decision-making and access to justice in environmental matters to Community institutions and bodies [2006] OJ L264/13 is equally relevant in determining the field of application of Art 42 of the Charter, albeit in a specific policy field. 4 European Council Rules of Procedure 2009/882/EU [2009] OJ L315/51; Council Rules of Procedure 2009/937/EU [2009] OJ L325, as amended by European Council Decision 2010/594/EU [2010] OJ L263; Council Decision 2010/795/EU [2010] OJ L338; and Council Decision 2011/900/EU [2011] OJ L346; Commission Rules of Procedure [2000] OJ L308, as amended by Commission Decision 2010/138/EU [2010] OJ L55 and Commission Decision 2011/737/UE [2011] OJ L296; Parliament Rules of Procedure [2013] nyr; Rules of Procedure of the Court of Justice [2012] OJ L265/1. Regulations that create European agencies often include a clause on the application of Regulation 1049/2001 (for example, Art 41 of Regulation 178/2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety [2002] OJ L31/1; Art 72 of Regulation 1095/2010 establishing a European Supervisory Authority (European Securities and Markets Authority) [2010] OJ L331/84. 5 Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents [2008] COM/2008/0229 final and Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) 1049/2001 regarding public access to European Parliament, Council and Commission documents [2011] COM/2011/0137 final. 6 On the meaning of these terms, see the commentary to Art 51, in this volume. 7 The notion of document in Art 3(a) Reg 1049/2001 specifies that document ‘shall mean any content … concerning a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility.’

1100

Deirdre Curtin and Joana Mendes

Art 42 – Right of Access to Documents

of operating of the Union—it is an instrument to ensure that Union decisions are taken as openly as possible—not requiring Union action that would go beyond the powers conferred on it by the Treaties. However, it would be wrong to assume that respect of the right of access to documents does not require positive action of the Union with a view to ensuring compliance. Examples would be the need to set up registers of documents or the need to take the necessary measures to inform the public of their rights under the regulation on access to documents, as prescribed, respectively, in Articles 11 and 14 of Regulation 1049/2001. As mentioned, Article 42 is based on a Treaty article and, therefore, needs to be exer- 42.03 cised under the conditions and within the limits defined in the Treaty. For this reason, the reference to the Member States in Article 51(1) of the Charter when applied to Article 42 confirms at the Charter level what would already result from Regulation 1049/2001. While there is no mention in Article 42 of the fact that Member States are also bound by the right of access to documents when acting within the scope of Union law,8 this follows from Regulation 1049/2001. Regulation 1049/2001 specifies that it does not affect national legislation on access to documents (preamble, paras 15, 16). However, it clearly defines obligations of the Member States within its scope of application. Thus, documents originating from the Member States may be disclosed subsequent to the agreement of the Member State concerned (Art 4(3)); when asked to disclose a Union document in its possession, Member States are bound either to consult with the institution concerned or to refer the request to them (‘unless it is clear that the document shall or shall not be disclosed’) and shall in any event not ‘jeopardise the attainment of the objectives’ of the regulation (Art 5); access to sensitive documents of the Member States may also be disclosed under the Union rules on access to documents (Arts 9(1) and 9(5)); Member States need to cooperate with the Union in providing information to the citizens (Art 14(2)). It is important to recall that ‘document’, for the purposes of Regulation 1049/2001, always concerns a ‘matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility’.9 Therefore, the duties of the Member States mentioned all refer to documents falling within the scope of Union action. Another important point to bear in mind when considering the relevance of 42.04 Article 51 of the Charter to the field of application of Article 42 is that, unlike other Charter rights that by force of Article 51 may be considered to bind only the Union and the Member States in the conditions therein specified, the right of access to documents can also be exercised vis-à-vis documents of private parties in the terms defined in Regulation 1049/2001 (Arts 4(4) and 3(b)). Third parties may include standardisation bodies or other private regulatory bodies that are involved in EU regulation.

8 The expression ‘when … implementing Union law’ (Art 51(1) of the Charter) is understood here as meaning ‘when [acting] within the scope of Union law’, in accordance with the Explanations (n 1 above). See further the commentary to Art 51, in this volume. 9 See n 7 above.

Deirdre Curtin and Joana Mendes

1101

Part I – Commentary on the Articles of the EU Charter

B. Interrelationship of Article 42 with Other Provisions of the Charter 42.05 Article 42 is conceptually linked to the right to good administration (Art 41), in particular, to Article 41(2)(b), the right of every person to have access to his or her file. They are both rights of access to information, even if their rationales are quite different. While the right of access to the file is one of the core rights of the defence in administrative procedures (together with the right to be heard—Art 41(2)(a)—and with the right to have a reasoned decision—Art 41(2)(c)), Article 42 is more broadly ‘intended to secure a more significant role for citizens in the decision-making process and to ensure that the administration acts with greater propriety, efficiency and responsibility vis-à-vis the citizens in a democratic system’.10 Their respective scope and the legal regimes of exceptions are also different.11 The right of access to the file is limited to the documents included in an administrative file. It is defined in sector legislation, subject to the exceptions defined therein in accordance with Article 41(2)(b) of the Charter (it needs to respect ‘the legitimate interest of confidentiality and of professional and business secrecy’), and typically requires the demonstration of a specific interest in having access.12 By contrast, the right of access to documents refers to any document falling within the scope of Article 42, subject to the rules and exceptions defined in Regulation 1049/2001, and it can be exercised irrespective of the applicant’s interest in having access to the documents requested.13 The link between Articles 41 and 42 of the Charter can also be framed in broader 42.06 terms. According to the European Ombudsman, lack of access to documents constitutes an instance of maladministration.14 The contribution of the Ombudsman in ensuring compliance with the right of access to documents has been decisive for the development of this right.15 Both rights thus play an important role in shaping the relationships between the Union and its citizens.16 But these observations also substantiate a conceptual link between Article 42 and Article 43 of the Charter, since access to documents is part of the

10 Case T-211/00 Kuijer v Council [2002] ECR II-485 [52]; Case T-84/03 Maurizio Turco v Council [2004] ECR II-4061 [53]; Case T-403/05 MyTravel Group plc v Commission [2008] ECR II-2027 [49]. 11 See further J Mendes, Participation in EU Rulemaking: A Rights-based Approach (Oxford, Oxford University Press, 2011) 241–48. 12 Eg competition law procedures—Art 27(2) of Council Regulation 1/2003 on the implementation of the rules on competition laid down in Arts 81 and 82 of the Treaty [2003] OJ L1/1, and Art 8 of Commission Regulation (EC) 773/2004 relating to the conduct of proceedings by the Commission pursuant to Arts 81 and 82 of the EC Treaty [2004] OJ L123/18. 13 See further sections D.II and D.IV. 14 See, among many others, Special Report by the European Ombudsman to the European Parliament following the own-initiative inquiry into public access to documents [1998] 616/PUBAC/F/IJH, OJ C044. This is just one among the many and significant decisions of the Ombudsman on access to documents. 15 See further, I Harden, ‘The European Ombudsman’s Efforts to Increase Openness in the Union’ in V Deckmyn (ed), Increasing Transparency in the European Union? (Maastricht, European Institute of Public Administration, 2002); A Peters, ‘The European Ombudsman and the European Constitution’ (2005) 42 Common Market Law Review 697, para 5.4; S Douglas-Scott, Constitutional Law of the European Union (Harlow, Longman, 2002) 145. 16 See also, R Bifulco, ‘Article 42—Right of Access to Documents’ in WBT Mock (ed), Human Rights in Europe. Commentary on the Charter of Fundamental Rights of the European Union (Durham, NC, Carolina Academic Press, 2010) 262.

1102

Deirdre Curtin and Joana Mendes

Art 42 – Right of Access to Documents

broad concept of good administration. For this reason, the right to complain to the Ombudsman, enshrined in Article 43, can be a remedy in the case of non-compliance with Article 42 (see section D.V). The exceptions to the right of access to documents specified in Article 4 of Regulation 42.07 1049/2001 indicate links with other provisions of the Charter. Thus the privacy and the integrity of the individual, as well as the protection of personal data, as protected in Articles 7 and 8 of the Charter, justify an exception to the right of access to documents in case those rights would be undermined by disclosure (Art 4(1)(b) of Regulation 1049/2001). One could also invoke the right to the integrity of the person protected by Article 3 of the Charter, but the exception enshrined in Article 4(1)(b) of Regulation 1049/2001—which refers to the ‘privacy and integrity of the individual’—seems to constitute ‘an indivisible provision’ to be ‘examined and assessed in conformity with the European Union … legislation concerning the protection of personal data’.17 Integrity is treated as one exception together with the protection of privacy (eg in cases where information concerning the reputation of persons is at stake).18 It should also be noted that the right to privacy does not always work as an exception to the right of access to documents. If a person seeks access to documents containing personal data about her, the right to privacy can constitute the very justification for exercising the right of access.19

C. Sources of Article 42 Rights On the subject of access to documents the main and indeed only really substantive 42.08 source is Article 15 TFEU and this is consequently where our focus lies. Indeed, according to the ‘Explanations’, the origin of Article 42 of the Charter is Article 255 EC, the predecessor of current Article 15 TFEU. The origins of this provision can be traced back to Declaration No 17 on the Right of Access to Information, included in TEU, signed in Maastricht on 7 February 1992. In the aftermath of the difficulties faced by the ratification process of the Maastricht Treaty, the Conclusions of European Council held in Edinburgh in December 1992 (and Birmingham, October 1992), as well as in Copenhagen in June 1993, stressed the commitment to a ‘more open Community’, which included improving access to information.20 The right of access to documents acquired a legal basis in the Treaty after the Amsterdam revision (1997). The enlargement of 1995, when Sweden and Finland became members of the EU was also significant in the constitutionalisation of the right of access to documents, since this right had in these countries a firm constitutional status already for centuries.21

17 Case C-28/08 P Commission v Bavarian Lager [2010] ECR I-6055 [59]; Case T-82/09 Dennekamp v Parliament [2011] ECR II-00418 [39]. 18 Case T-300/10 Internationaler Hilfsfonds v Commission (22 May 2012) [99]. 19 We are grateful to Steve Peers for pointing this out. 20 See, in more detail, section D.I. 21 J Ziller, ‘Article II-102—Droit d’Accès aux Documents’ in A Levade, F Picod and L Burgorgue-Larsen (eds), Traité établissant une Constitution pour l’Europe. Commentaire article par article. Partie II: La Charte des droits fondamentaux de l’Union (Bruxelles, Bruylant, 2005) 538–50, 542. See too, M Hillebrandt, D Curtin and A Meijer, ‘Transparency in the EU Council of Ministers. An Institutional Analysis’ (2014) 20 European Law Journal, 1–20.

Deirdre Curtin and Joana Mendes

1103

Part I – Commentary on the Articles of the EU Charter

42.09

Normative links can also be established with other primary sources such as Article 19 of the Universal Declaration of Human Rights and Article 10 of the European Convention of Human Rights. The European Court of Human Rights has reluctantly recognised a right of access to public documents on the basis of the latter, but not at the time when the Charter was elaborated.22 The Council of Europe Convention on Access to Official Documents (Tromsø, 18 June 2009) is also posterior to the signing of the Charter.23 To the authors’ knowledge, there is no official recognition of other explicit sources for Article 42 of the Charter, except for ex-Article 255 of the EC Treaty and the fact that the European Convention on Human Rights, the common constitutional traditions, primary and secondary Community legislation, international conventions (Council of Europe, UN) and rulings by the Court of Justice (CJ) and the General Court (GC) (collectively referred to as the CJEU) and the European Court of Human Rights constituted general sources of inspiration for the provisions of the Charter.24

D. Analysis I. General Remarks 42.10 The political system of the European Union was traditionally not known for its transparency, either in terms of its institutional design or in terms of the full range of its rule-making outputs. The right of access to documents became a core dimension of the principle of transparency, and, as such, also of democracy in the EU. This follows from the sequence of events and legal acts that ultimately led to the introduction of Article 255 EC in the Amsterdam Treaty. The manner in which change was ‘kick-started’ by a number of exogenous events has been detailed elsewhere.25 Specific transparency-related measures adopted pre-Amsterdam were viewed as a 42.11 matter of discretion for the affected institutions themselves, to do with their internal functioning and hence falling under their respective rules of procedure. This essentially self-regulatory approach meant that initially the tendency was to view the principle of public access as at most a voluntarily assumed specific principle of administrative law

22 According to the Court, ‘it is difficult to derive from the Convention a general right of access to administrative data and documents’—Loiseau v France ECHR 2003-XII [7]. See, however, the more recent decision: Társaság a Szabadságjogokért v Hungary App no 37374/05 (ECtHR, 14 April 2009). 23 Available at http://conventions.coe.int/Treaty/Commun/ListeTraites.asp?CM=8&CL=ENG. The Convention draws on Art 19 of the Universal Declaration of Human Rights, on Arts 6, 8 and 10 of the European Convention for the protection of human rights and fundamental freedoms, on the United Nations Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus, 25 June 1998) and on the Council of Europe Convention for the protection of individuals with regard to automatic processing of personal data of 28 January 1981. 24 On rulings of the CJEU that were determinant for the establishment of the right of access to documents, see section D.I. For references to national constitutions that also enshrined a right of access to documents, see R Bifulco, ‘Article 42’ 262–63. 25 For an overview of the emergence of the EU transparency agenda, see S Peers, ‘From Maastricht to Laeken: The Political Agenda of Openness and Transparency in the European Union’ in Deckmyn (n 15), 7–32. More recently see M Hillebrandt, D Curtin and A Meijer, ‘Transparency in the EU Council of Ministers. An Institutional Analysis’ (2014) 20 European Law Journal 1–20.

1104

Deirdre Curtin and Joana Mendes

Art 42 – Right of Access to Documents

that has gradually, through the medium of case law, acquired some procedural flesh and substance.26 That case law is in line with more general procedural case law emphasising the nature of procedural discretion in balancing the various interests at stake. Public access to documents was not considered a ‘general principle’ of European law but rather overlaps with certain other well-established general principles (such as the principle of legal certainty and the principle of non-discrimination) in areas of EU law other than specifically access to documents.27 The technique of legal interpretation used by the CJEU during this foundational 42.12 period involved a type of teleological reasoning which placed the initial Code of Conduct adopted by two decision-making institutions in the context of its broader democratic purpose.28 The CJEU tended to emphasise the underlying purpose of access to documents, namely to provide the ‘public’, the citizens, with a means of controlling the abuse of power and corruption, as well as resting on general notions of public control of the activities of public institutions. Thus, the CJEU developed what can be termed a constitutional perspective on access to documents provisions avant la lettre. Only later were these ‘rights’ given an explicitly constitutional foundation, first in the Treaty of Amsterdam, then in the Charter on Fundamental Rights and later in the Constitutional Treaty taken over in the Lisbon Treaty. In the decade since the Treaty of Amsterdam included a specific Treaty provision on openness and access to documents, it seems to now be acknowledged that there is a general EU legal principle of the right of access to documents, even if the CJEU has not explicitly proclaimed it as such.29 The democratic relevance of the right of access to documents is now reflected in 42.13 the Treaty of Lisbon. Unlike former Article 255 EC, Article 15 TFEU frames the right of access to documents, placing it squarely as a dimension of the broader principle of transparency, ie, a dimension of a principle that grounds the functioning of the Union, by virtue of its systematic insertion in the Treaty.30 Yet, while the Constitutional Treaty had placed both transparency and access to documents squarely in the title dedicated to ‘the democratic life of the Union’ (Title IV of Pt I, Art I-50), the Lisbon Treaty moved this corresponding provision to the TFEU, severing it from the title of the TEU dedicated to the ‘provisions on democratic principles’.31 Without access to the preparatory works of the Lisbon Treaty, it is difficult to explain the meaning of this apparent ‘downgrading’ of the status of the right of access to documents. However, there are enough indications in the Treaty to ground the claim that access to documents, as the legal limb of the broader principle of transparency (Art 15, in particular para 3, TFEU), retains a fundamental

26 On this case law see further, D Curtin, ‘Citizens’ Fundamental Right of Access to Information: An Evolving Digital Passepartout?’ (2000) 37 Common Market Law Review 1, 7–21. 27 For a very general discussion see S Prechal and M de Leeuw, ‘Dimensions of Transparency: The Building Blocks for a New Legal Principle?’ (2007) 1 Review of European Administrative Law 51. 28 See further, D Curtin, ‘Betwixt and Between: Democracy and Transparency in the Governance of the EU’ in JA Winter, D Curtin, AE Kellerman, B de Witte (eds), Reforming the Treaty on European Union (The Hague, Kluwer Law International, 1996) 95–121 and D Curtin, ‘The Fundamental Principle of Open Decision-Making and EU (Political) Citizenship’ in D O’Keeffe and P Twomey (eds), Legal Issues of the Amsterdam Treaty (Oxford, Hart Publishing, 1999) 71–92. 29 See A Buijze, ‘The Principle of Transparency in EU Law’ (Utrecht, PhD thesis, Utrecht University, 2013). 30 Title II (Provisions Having General Application). 31 Title II of the TEU. On this, see also LN González Alonso, Carta de Los Derechos Fundamentales de la Unión Europea. Comentario artículo por artículo (Bilbao, Fundación BVA, 2008) 678–95, 681–82.

Deirdre Curtin and Joana Mendes

1105

Part I – Commentary on the Articles of the EU Charter

political meaning as a core element of the democratic life of the Union, in particular the references to transparency in Articles 10(3) TEU (which is mirrored in the preamble of Regulation 1049/2001) and in Articles 11(2) and 11(3) TEU.32 In any event, the Treaty of Lisbon moved the Treaty provision regarding the right of access to documents from Part V of the EC Treaty (provisions governing the institutions)33 to Part I of the TFEU (principles).34 This different systematic insertion is arguably consequential for the interpretation of Article 42, in the light of the explanations of the Charter, of Article 52(2) of the Charter and of Article 6(1) third subparagraph of the TEU. It remains to be seen whether this will be reflected in future case law on the right of access to documents, in particular whether it might soften the reluctance of the CJEU to explicitly recognise it as a fundamental right.35 42.14 The above observations presuppose that the right of access to documents is read in the light of the corresponding Treaty provision, in line with Article 52(2) and (7) of the Charter and Article 6(1) TEU, third subparagraph, and with the ‘Explanations’ of the Charter. This raises the broader issue of the added value of placing the right of access to documents in the category of fundamental rights, ie of the added value of Article 42. In fact, its wording is virtually the same as that of Article 15(3) TFEU.36 Does Article 42 have any independent meaning, or is it ‘merely a neutral confirmation’37 of Article 15(3) TFEU? The latter seems to be the most appropriate reading of Article 42. In this sense, Article 42 is an example that supports the critical view of those who claim that the Charter is more about lending ‘symbolic legitimacy’ to the Union, rather than a text with a specific legal contribution to the status of fundamental rights.38 It may indeed be difficult to discern the added value of considering the right of access to documents as a fundamental right. The contribution that Article 42 makes seems to be minimal: it explicitly recognises this right as a citizen’s right, since it is inserted in Chapter V of the Charter.39 The reason why this is arguably a minimal contribution is that Article 20(2) TFEU contains a non-exhaustive list of citizens’ rights, and the link between access to documents and citizenship was already made by Regulation 1049/2001, which explicitly refers to ‘citizens’ rights’ (Art 11). One could, at first sight, argue that as a fundamental

32

In a similar vein, González Alonso, ibid 684. Specifically, c 2 (Provisions Common to the Institutions) of Title I (Provisions Governing the Institutions) of Pt V (Institutions of the Community). 34 See n 30 above. 35 A Flanagan, ‘EU Freedom of Information: Determining Where the Interest Lies’ (2007) 13 European Public Law 595, 597. See also MP Broberg, ‘Access to Documents: A General Principle of Community Law?’ (2002) 27 European Law Review 194. See too, P Craig, EU Administrative Law (Oxford, Oxford University Press, 2006) 359. 36 There are a few minor differences: any citizen ‘shall have’ a right of access to documents (Art 15(3) TFEU) instead of any citizen ‘has’ this right; documents of the ‘Union institutions [etc]’ (Art 15(3) TFEU) instead of documents of the ‘institutions [etc]’. Art 15(3) has one important specification—the right is ‘subject to the principles and conditions to be defined in accordance with this paragraph’—but the same consequence results from the combination of Arts 42 and 52(2) of the Charter. 37 K Lenaerts and E de Smijter, ‘A ‘Bill of Rights’ for the European Union’ (2001) 38 Common Market Law Review 273, 282. 38 J Baquero Cruz, ‘What is Left of the Charter? Reflections on law and political mythology’ (2008) 15 Maastricht Journal of European and Comparative Law 65. 39 While Art 20(2) TFEU does not explicitly include the right of access to documents as a citizen’s right. See González Alonso (n 31) 684–85. While a citizen’s right, it is also recognised to any natural or legal person residing or having its registered office in a Member State, as mentioned in the text above (section D.II). 33

1106

Deirdre Curtin and Joana Mendes

Art 42 – Right of Access to Documents

right, access to documents would be subject to the guarantees of Article 52(1) of the Charter. This would certainly be an important added value. However, the Charter rights for which provision is made in the Treaty have a specific regime of limitations—those defined in the Treaty (Art 52(2) of the Charter) and, as a result, on the basis of the Treaty— a regime that was originally conceived precisely to address citizens’ rights.40

II. Scope of Application The right of access to documents can be exercised by any citizen of the Union or by 42.15 any natural or legal person residing or having its registered office in a Member State. Compared to the beneficiaries of the right to good administration (Art 41) this is a restriction: not every person has the right of access to documents. One could justify this restriction arguing that access to documents is a right of the EU citizens, which is moreover a precondition for the exercise of their political rights under the Treaty provision on participatory democracy.41 Yet, Article 11 TEU also seems to be broader. Not all of its provisions are restricted to citizens: it refers to representative associations, without any specification regarding where they have registered office, it refers to citizens, but also to ‘parties concerned’, who arguably can be non-residents and legal persons without a registered office in a Member State. As noted by Ziller, this restriction of the personal scope of application of the right of access to documents is difficult to justify, given that non-citizens, non-residents and persons not registered in a Member State also may have an objective interest in accessing documents of the Union (eg companies investigated for anti-dumping). It should be noted, however, that Regulation 1049/2001 specifies that the institutions (as well as bodies, offices and agencies, in a corrective reading imposed by the Treaty and Charter modifications) may also grant access to documents to ‘any natural or legal person not residing or not having its registered office in a Member State’.42 The scope of the beneficiaries of this right can therefore be extended at the discretion of the institutions, bodies, offices and agencies (‘may’). Even if it seems that, given the wording of the Charter and the Treaty, their right will in any event not have the status of fundamental right.43 In any case, a person who applies to have access to a document is not obliged to state the reasons why access is requested (Art 6(1) of Regulation 1049/2001). Regulation 1049/2001 thereby confirms that access ought to be granted irrespective of an assessment of the interest of the applicant in having the document requested.44

40 L Burgorgue-Larsen, ‘Art 112—porteé et interprétation’ in A Levade, F Picod and L Burgorgue-Larsen (eds) (n 21) 658–88, 672–74. 41 Ziller, ‘Article II-102’ (n 21) 547. 42 Art 2(2) Regulation 1049/2001, emphasis added. 43 See, however, the reflections above on the added value of naming access to documents a ‘fundamental right’. 44 See Case T-194/04 Bavarian Lager v Commission [2007] ECR II-4523 [92] and Joined Cases T-391/03 and T-70/04, Franchet and Byk v Commission [2006] ECR II-2023 [82]. This point was made earlier by the Court with regard to the situation under Decision 94/90, see, eg Case T-124/96 Interporc v Commission [1998] ECR II-231 [48]: ‘From its overall scheme, it is clear that Decision 94/90 is intended to apply generally to requests for access to documents. By virtue of that decision, any person may request access to any unpublished Commission document, and is not required to give a reason for the request.’

Deirdre Curtin and Joana Mendes

1107

Part I – Commentary on the Articles of the EU Charter

Article 42 applies to documents of the ‘institutions, bodies, offices and agencies of the Union’45 (and not only to European Parliament, Council and Commission documents, to which the 2001 wording of Art 42 was restricted). The current formulation of Article 42 reflects the changes that had been introduced in the 2004 Treaty Establishing a Constitution for Europe (in what would have been its Article II-102) and that were taken up in the Lisbon Treaty (currently Art 15(3) TFEU).46 This is justified by the fact, contrary to its predecessors, the Treaty now explictly acknowledges the existence of bodies, offices and agencies.47 At the same time, to some extent, this extension of the personal (passive) scope of the right of access to documents represents the Charter and the Treaty catching up with reality. In fact, before this change was introduced at the constitutional level, many agencies were already bound by the right of access to documents, and by Regulation 1049/2001 by virtue of their founding statutes.48 This was in line with the spirit of Regulation 1049/2001—the preamble of which makes explicit reference to the need for agencies to comply with its provisions in order to ‘ensure the full application of this Regulation to all activities of the Union’ (Recital 8)—and with the Joint Declaration made by the European Parliament and the Council in 2001, according to which the European Parliament, the Council and Commission committed themselves to extending the regime of Regulation 1049/2001 to ‘agencies and similar bodies created by the legislator’.49 42.17 Since Article 42 needs to be read in the light of Article 15(3) TFEU, it is important to mention that the latter is also more detailed than Article 255 EC and now includes specific provisions applicable to some of the institutions. Thus, the CJEU, the European Central Bank and the European Investment Bank are only subject to the provisions regulating the right on access to documents ‘only when exercising their administrative tasks’ (Art 15(3) TFEU, fourth subpara). The meaning and scope of ‘administrative tasks’ is uncertain. This specification may well be have been intended to exclude access to documents produced when these institutions exercise their core non-administrative functions: jurisdictional activities of the CJEU, documents pertaining to the monetary policy of the Union (in the case of the ECB), the financing of investment programmes and the granting of loans and guarantees in accordance with Article 309 TFEU (in the case of the EIB). However, it is questionable if this broad understanding of this exception is in accordance with the principle of transparency as enshrined in the Treaty. In addition, Article 15(3) TFEU specifies in more general terms that the European Parliament and the Council are bound to ‘ensure publication of the documents relating to the legislative procedures’ in accordance with the regulation on access to documents (fifth subpara). 42.16

45

See the commentary on Art 51 of the Charter in this volume. The current formulation of Art 42 reiterates the wording of Art 15(3), first para, TFEU, as its original wording reproduced Art 255 EC. 47 Ziller, ‘Article II-102’ (n 21) 547. 48 See, eg, Art 28 of Council Regulation 2007/2004 establishing a European Agency for the management of operational cooperation at the external borders of the member states of the European Union and Art 41 of Regulation 178/2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety. 49 Joint declaration relating to Regulation (EC) 1049/2001 regarding public access to European Parliament, Council and Commission documents [2001] OJ L145. 46

1108

Deirdre Curtin and Joana Mendes

Art 42 – Right of Access to Documents

Article 42 explicitly provides that it applies to documents of the institutions, bodies, 42.18 offices and agencies of the Union ‘whatever their medium’. This is the second modification made to the original wording of Article 42, which was originally silent in this respect. It is merely a clarification that dissipates any doubt on the type of documents that can be requested. It does not change in any way the legal rules on access to documents that preceded this change.50 The same specification is enshrined in the definition of document according to Regulation 1049/2001: document means ‘any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility’ (Art 3(a), emphasis added). In the explanatory memorandum to the 2008 Commission proposal to amend Regulation 1049/200151 the Commission noted that its proposal maintained ‘the wide definition of the concept of “document” in Article 3(a). However, a “document” only exists if it has been transmitted to its recipients or circulated within the institution or has been otherwise registered.’ The amended Article then stipulated that ‘“document” means any content whatever its medium … drawn-up by an institution and formally transmitted to one or more recipients or otherwise registered, or received by an institution; data contained in electronic storage, processing and retrieval systems are documents if they can be extracted in the form of a printout or electronic-format copy using the available tools for the exploitation of the system.’ This adopted text contained major changes when compared to an earlier version circulated for the Commission meeting of 30 April 2008.52 That earlier version had been to the effect that (in part): ‘“document” shall mean … drafted or received by an institution and transmitted to one or more recipients or circulated within the institution or otherwise recorded.’ The adopted draft omits the word circulated, a category that covers many Commission documents53 and ‘transmitted’ is changed to ‘formally transmitted’, which may only cover the final versions of COM and SEC documents. The EP proposed to amend the definition of ‘document’ as meaning ‘any data content 42.19 whatever its medium … concerning a matter falling within the sphere of responsibility of a Union institution, body, office or agency. Data contained in electronic storage, processing and retrieval systems, including external systems used for the institution’s work, constitute a document, notably if they can be extracted using any reasonably available tools for the exploitation of the system concerned.’54 The Commission subsequently indicated that this proposed amendment could not be accepted as ‘extending the scope

50

Ziller, ‘Article II-102’ (n 21) 539. See n 3 above. 52 See www.statewatch.org/news/2008/may/03eu-access-reg-comments-def-doc.htm. 53 Ibid. 54 On 11 March 2009, the European Parliament adopted a total of 92 amendments to the Commission’s text, but adjourned its vote on the legislative resolution and, hence, the formal conclusion of its first reading of the legislative proposal. At its plenary session on 6 May 2009, the Parliament decided to postpone the vote on the legislative resolution and it has not since been adopted. In the meantime some further work on the recast of the regulation continued by both the Council and the Commission. See http://ec.europa.eu/prelex/ detail_dossier_real.cfm?CL=en&DosId=196983. 51

Deirdre Curtin and Joana Mendes

1109

Part I – Commentary on the Articles of the EU Charter

to external databases would include “documents” which are neither in the institutions’ possession nor within their sphere of responsibility.’55 42.20 It should be noted that, despite the fact that the concept of a ‘document’ as currently regulated is not necessarily a written text, the right of access to documents covers documents, and not information in general. Therefore, it does not imply a duty on the part of the institutions to reply to any request for information.56 Nevertheless, the notion of document as specified in Regulation 1049/2001 is quite broad and it is difficult to discern in which situation a request for information would not be a request to access a document.57 Yet, as the discussion on the notion of document in the Commission’s proposal to revise Regulation 1049/2001 reveals, the broad notion of document may be seen as a legislative choice, which can be revised, restricted within the limits of an objective definition of ‘document’ and still apparently conform with Article 42 of the Charter and Article 15(3) TFEU. 42.21 Another important aspect of the scope of the right of access to documents is that, under the current legislative rules, access refers to ‘all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union’ (Art 2(3), emphasis added). This contrasts with the 1993 Code of Conduct of the Council and of the Commission, which preceded Regulation 1049/2001, whose scope was limited to documents authored by the institutions. This means that the scope of the Regulation also extends to documents of third parties, ie ‘any natural or legal person, or any entity outside the institution concerned, including the Member States, other Community or non-Community institutions and bodies and third countries’ (Art 3(b) of the Regulation). 42.22 When assessing the scope of the right of access to documents, it is important to mention that both the Treaty and the regulation make a distinction regarding access to administrative documents and access to legislative documents. While undoubtedly access refers to ‘all documents held by an institution [body, organism or agency]’, as mentioned, the Treaty stresses that access to documents relating to legislative procedures shall be ensured by the Parliament and by the Council. In addition, Regulation 1049/2001 indicates that ‘wider access should be granted to documents in cases where the institutions are acting in their legislative capacity’ (Recital 6 of the preamble), and, accordingly, it determines that ‘documents drawn up or received in the course of a legislative procedure shall be made directly accessible’ (Arts 2(4) and 12). Hence, in prin-

55 On 20 March 2011 the Commission presented a new proposal for a modification of the existing regulation with a view to aligning it to the new institutional scope of the right of public access in the Lisbon Treaty (Art 15(3) TFEU). The 2008 Commission proposal was not withdrawn. The European Parliament subsequently considered that the procedure relating to the 2011 Commission proposal had lapsed as a result of the European Parliament incorporation of the contents of the 2011 proposal into the procedure relating to the 2008 proposal. See n 54 above. 56 Joined Cases T-109/05 and T-444/05 NLG v Commission [2011] ECR II-2479 [129]: ‘le droit d’accès du public à un document des institutions ne vise que des documents et non pas des informations entendues de manière plus générale et n’implique pas pour les institutions le devoir de répondre à toute demande de renseignements d’un particulier’; see also Case T-190/10 Egan and Hackett v Parliament (28 March 2012) [96]. 57 In both cases quote in the note above, the Court considered that the request made refers to a document. In Egan and Hackett v Parliament, the Court considered a public register to be a document (ibid [97]). See González Alonso (n 31) 693, who considers that, given the broad notion of document, Art 42 effectively enshrines a right to access information, since the determinant element is the content of the document requested and not its form.

1110

Deirdre Curtin and Joana Mendes

Art 42 – Right of Access to Documents

ciple, a specific request should not be needed in order to have access to such documents. The reality, however, is different.58 The CJ has equally stressed the importance of access to legislative documents in a landmark judgment, Turco, in which it held that increased transparency, citizens’ closer participation in EU decision-making processes, legitimacy and accountability to the citizen—fostered by the right of access to documents—‘are clearly of particular relevance where [the institutions are] acting in [their] legislative capacity’.59 The Court stressed that ‘openness in that respect contributes to strengthening democracy by allowing citizens to scrutinise all the information which has formed the basis of a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights.’60

III. Specific Provisions One of the main issues currently debated in the literature is the scope of the right of 42.23 access to documents vis-à-vis the scope of the right of access to a file. As mentioned above, their rationales and scope vary, but they inevitably overlap regarding documents that form part of an administrative file of an investigation and access to which is regulated in sector rules, mainly in the areas of competition law and state aids.61 Such sector rules usually distinguish between the rights of access of the parties involved in the proceedings and third parties, whose access is rather limited.62 Third parties have therefore sought access on the basis of general rules on access to documents in order to avoid the restrictions that result from sector rules. The two Courts (CJ and GC) have given contradictory answers to this issue, when interpreting the exceptions to the right of access to documents under Article 4(2), third indent (the protection of the purpose of inspections, investigations and audits) and under Article 4(3). This question will be developed below where the functioning of the exceptions to the right of access to documents is explained. Documents shall be made accessible to the public either following a written appli- 42.24 cation or directly in electronic form or through a register (Art 2(4) of Regulation 1049/2001). The details of the procedures for the processing of applications are found in Articles 6 to 8 of Regulation 1049/2001. As a result of Article 11 of Regulation 1049/2001, the institutions have drawn up registers of documents currently available online.63 58 See Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v Council [2008] ECR I-4723 and Case T-529/09 Sophie in ‘t Veld v Council (4 May 2012). 59 Sweden and Turco v Council (n 58) [45] and [46]. 60 Ibid [46]. 61 On the notion of file, see M Levitt, ‘Access to the File: The Commission’s Administrative Procedures in Cases under Articles 85 and 86’ (1997) 34 Common Market Law Review 1413–44, 1420–23 and S Bartelt, ‘Commentary to Case T-2/03 Verein für Konsumenteninformation v Commission (2006) 43 Common Market Law Review 191–206, 200–01. 62 See, in more detail, with regard to competition law, K Cseres and J Mendes, ‘Consumers’ Access to EU Competition Law Procedures: Outer and Inner Limits’ (draft, on file with the authors). 63 See, eg, European Parliament’s Register of Documents, which has reference to documents produced or received by the European Parliament since 3 December 2001, the date on which Regulation (EC) 1049/2001 came into effect (access available at www.europarl.europa.eu/RegistreWeb/search/simple.htm?language=EN); European Commission document register (access available at http://ec.europa.eu/transparency/regdoc/ registre.cfm?CL=en) and the Public Register of Council documents (access available at www.consilium. europa.eu/documents/access-to-council-documents-public-register).

Deirdre Curtin and Joana Mendes

1111

Part I – Commentary on the Articles of the EU Charter

IV. Limitations and Derogations (a) Introduction 42.25 The limitations of the right of access to documents are enshrined in Article 4 of Regulation 1049/2001, which, in accordance with the Treaty, thereby protects public and private interests (and in some cases, other fundamental rights) that could be jeopardised by the disclosure of the documents requested under the right of access (Art 15(3), second subpara). Article 4 distinguishes two categories of exceptions: mandatory and non-mandatory. The first category refers to situations in which disclosure would undermine the protection of interests specified in Article 4(1). When the public interests of public security, defence and military matters, international relations, and the financial, monetary or economic policy of the Community or a Member State would be undermined by disclosure, the institutions ‘shall’ refuse access. The same applies when the privacy and the integrity of the individual are at stake. The second category refers to situations in which disclosure would undermine the protection of interests specified in Article 4(2) and (3), but in these cases, the refusal to disclose in order to protect the interests mentioned is only mandatory when there is not an overriding interest in granting access. This second category is usually labelled ‘non-mandatory exceptions’, because countervailing public interests to disclose need to be considered, even where the interests protected could be harmed (‘the institutions shall refuse access where disclosure would undermines the protection of … unless there is an overriding public interest in disclosure’, emphasis added). As they derogate from the principle of the widest possible public access to documents, 42.26 both types of exceptions must be interpreted and applied strictly.64 Two main consequences follow from this principle. First, in case of refusal to disclose, it is incumbent upon the entity that was requested to grant access to justify how disclosure of that document could specifically and effectively undermine the interest protected by the exception upon which it is relying.65 Secondly, the risk of the public interest being undermined must be reasonably foreseeable and not purely hypothetical.66 Therefore, examination of the documents requested in the light of the competing interests involved in a request of access must be specific in nature. The mere fact that a document concerns an interest protected by an exception is not sufficient to justify application of that exception.67 However, in a more recent strand of cases, the CJEU has also (inconsistently) followed a different position, acknowledging the possibility of general presumptions of non-disclosure.68 It has based such a presumption on the applicant’s lack of access to the

64 Case C-266/05 P Sison v Council [2007] ECR I-1233 [63]; Case C-64/05 P Sweden v Commission [2007] ECR I-11389 [66], and Joined Cases C-514/07 P, C-528/07 P and C-532/07 P Sweden and Others v API and Commission [2010] ECR I-8533 [36]. 65 Sweden and Turco v Council (n 58) [49]; Sweden and Others v API and Commission (n 64) [72]. 66 Kuijer v Council (n 10) [55] and [56]; Sweden and Turco v Council (n 58) [43]. 67 Case T-2/03 Verein für Konsumenteninformation v Commission [2005] ECR II-1121 [69]; see also, to that effect, Joined Cases T-110/03, T-150/03 and T-405/03 Sison v Council [2005] ECR II-1429 [75]. 68 See, further, D Adamski, ‘Approximating a Workable Compromise on Access to Official Documents: The 2011 Developments in the European Courts’ (2012) 49 Common Market Law Review 521, 524–46; P Leino, ‘Just a Little Sunshine in the Rain: The 2010 Case Law of the European Court of Justice on Access to Documents’ (2011) 48 Common Market Law Review 1215–52.

1112

Deirdre Curtin and Joana Mendes

Art 42 – Right of Access to Documents

document requested under sector rules and have equally applied it to documents that are part of the correspondence between the Commission and a Member State investigated for a possible infringement of EU law.69 In this line of case law, it is incumbent upon the applicant to demonstrate that a given document is not covered by the presumption. The presumption may also be rebutted if there is a higher public interest in disclosure.70 Commentators have criticised this development, arguing, inter alia, that it reverses the principle of widest possible access and the rule according to which the person who requests access to a document does not need to reason his or her application. They also point to the practical difficulties in rebutting the presumption.71 This strand of case law is also problematic in view of the requirements of the duty to give reasons for a decision of (non-) disclosure. According to settled case law, the purpose of the obligation to state the reasons is, first, to provide the person concerned with sufficient information to make it possible to determine whether the decision is well founded, or whether it is vitiated by an error which may permit its validity to be contested and, secondly, to enable the CJEU to review the lawfulness of the decision.72 Arguably, general presumptions of non-disclosure hinder the first rationale of the duty to give reasons, when it comes to justifying a refusal to grant access to a document. What follows is a selective and illustrative analysis of some important trends in 42.27 the case law of the CJEU regarding some of the exceptions of Article 4 of Regulation 1049/2010.73 Our aim is to discuss rather schematically a few pressing issues regarding the interpretation of the limits and derogations to the right of access to documents, as well as the difficulties that this interpretation raises with regard to a limited selection of exceptions. In terms of the ‘mandatory exceptions’ (Art 4.1) we focus on international relations as illustrative of an important ‘diplomatic’ line in the case law and approach to the subject. In terms of the non-mandatory exemptions (Art 4.2), our focus is on ‘the purpose of inspections, investigations and audits’ as this exemplifies the more ‘administrative’ line in the case law. (b) The Mandatory Exemption for ‘International Relations’ The concept of ‘international relations’ to which the third indent of Article 4(1)(a) 42.28 of Regulation 1049/2001 refers is a concept peculiar to EU law and is not therefore dependent on the meaning attributed to it by the national laws of the Member States.74

69 See, respectively, Case C-139/07 P Commission v TGI [2010] ECR I-5885 [61], and Case T-29/08 LPN v Commission [2011] ECR II-6021 [121]. 70 It is not fully clear from the case law whether the institution needs to consider the existence of an overriding interest in disclosure of its own motion (see Opinion of AG Kokott in MyTravel (n 10) [104] and fn). 71 Adamski (n 68) 526; Leino (n 68) 1251; O Brouwer and J Blockx, ‘Access to Documents Relating to EU Competition and State Aid Cases pursuant to Regulation 1049/2001. Towards a Rebuttable Presumption as a “Fig Leaf ” for Intransparency?’ in T Baumé, E Oude Elferink, P Phoa and D Thiaville (eds), Today’s Multilayered Legal order: Current Issues and Perspectives, Liber Amicorum in Honour of Arjen W.H. Meij (Zutphen, Paris Legal Publishers, 2011) 39–51, 49–48. See also D Adamski, ‘How Wide is the “Widest Possible”? Judicial Interpretation of the Exceptions to Right of Access to Official Documents Revisited’ (2009) 46 Common Market Law Review 521. 72 See Case T-187/03 Scippacercola v Commission [2005] ECR II-1029 [66]. See also WWF v Council (below, n 77) [36]; and Sison v Council (n 64) [80]. 73 See for a more detailed analysis, Adamski (n 68); and Leino (n 68). 74 Case T-59/09 Germany v Commission (14 February 2012) [62].

Deirdre Curtin and Joana Mendes

1113

Part I – Commentary on the Articles of the EU Charter

This concept does not cover communications between Member States and the EU institutions. If that were not the case, a significant proportion of the documents relating to EU activities would be removed from the scope of the public right of access to documents of the institutions. That would undermine the objective of transparency pursued by Regulation 1049/2001 and would be incompatible with the principle set out above that the exceptions listed in Article 4(1), (2) and (3) of Regulation 1049/2001 must be narrowly construed and applied.75 42.29 In general terms, the exception can be invoked if it is clear that disclosure would harm the EU’s international relations with third countries76 or undermine its position in international negotiations.77 The correct scope of this exception is under appeal to the Court of Justice and is likely to be laid down in an authoritative manner in a case brought by an MEP, Sophie in ‘t Veld. Its context was that of a bilateral international agreement between the EU and the United States, allowing the latter to have access to financial messaging data stored by SWIFT, a private company based in the EU, and to be processed by the US Terrorist Financing Tracking Program (TFTP). Prior to the Council authorisation to open negotiations with the United States on this agreement, a Council Legal Service opinion on the competence of the EU to negotiate such an agreement and its legal basis was distributed within the Council and to the Member States. Sophie In ‘t Veld, an MEP and also Vice-Chairperson of the Committee on Civil Liberties, Justice and Home Affairs, did not get access to this document via the privileged access rules that applied at that time in the relations between the Council and the EP. She used the formal procedural route offered by the Access Regulation as a member of the public and was also denied access in that context. 42.30 The Council refused access to the legal service opinion on the basis of Article 4(1)(a) and the second indent of Article 4(2) of the Access Regulation. Its rationale for maintaining secrecy was process based.78 The Council reasoned that ‘disclosure of [document 11897/09] would reveal to the public information relating to certain provisions in the envisaged Agreement … and, consequently, would negatively impact on the [European Union]’s negotiating position and would also damage the climate of confidence in the on-going negotiations.’79 It also stated that disclosure would reveal elements of the position taken by the EU and therefore undermine its negotiating position. According to the applicant, the exception relating to the protection of the public interest in the field of international relations in Article 4(1)(a) of the Access Regulation was not applicable because the legal basis for the negotiations ‘is an issue of internal EU law which is not likely to have an impact on the substance of negotiations and, hence, on the international relations of the European Union’.80 42.31 The applicant’s plea in this regard was only partly upheld by the General Court (GC). It considered that the document was specifically drawn up for the opening of negotiations

75

Ibid [65]. Kuijer II, Case C-239/00 P Council v Kuijer OJ C247 of 26 August 2000 (removed from register on 7 February). 77 Case T-264/04 WWF EPP v Council [2007] ECR II-911 [41]. 78 Curtin, ‘Official Secrets and the Negotiation of International Agreements. Is the EU Executive Unbound?’ (2013) 50 (2) Common Market Law Review 423–58. 79 Sophie in ‘t Veld v Council (n 58) [6]. 80 Ibid [27]. 76

1114

Deirdre Curtin and Joana Mendes

Art 42 – Right of Access to Documents

and that the analysis it contained was therefore linked to the envisaged international agreement. It thus fell within the scope of the exception relating to international relations, if it could be shown that this public interest would be actually undermined. The Court held that this could be shown insofar that disclosure of some elements of the document would reveal part of the strategic objectives pursued by the EU. The Court accepted that ‘disclosure of those elements would damage the climate of confidence in the negotiations which were on-going at the time the contested decision was adopted.’81 The Court thus drew a very important line regarding what could be revealed and what not in the context of international negotiations. It did not accept that disclosure of the analysis of the negotiations’ legal basis would weaken the Council’s negotiating position as such. The Council had argued it would do so, because the controversy could give rise to confusion regarding its competence and thus weaken its negotiating position. The applicant, on the other hand, argued that transparency about the legal basis would enhance the legitimacy of the Council as a negotiating partner. The Court held that the non-disclosure for this reason could not be justified. It seemed to imply that the (hypothetical and not proven) weakening of the Council’s negotiating position would not justify secrecy whereas proven damage to the negotiating strategy as a whole of the Council during ongoing negotiations would justify secrecy. More generally, in the view of the Court, the Council had failed to balance the protected 42.32 interest against the public interest in disclosure. The fact that the envisaged agreement affected the fundamental right of protection of personal data, constituted a clear public interest that had to be taken into account by the Council. There was thus an overriding public interest in disclosure, because ‘it would contribute to conferring greater legitimacy on the institutions and would increase EU citizens’ confidence in those institutions’. The Court held that the Council had failed to adequately take into account the subject matter affected by the envisaged agreement. For these reasons, the General Court ruled that the document should be disclosed, except for those parts that related to the strategic objectives pursued by the EU. This is one of the few cases where the Court actually rules on the public interest and comes out in favour of it, rather than finding procedural faults.82 This case stands, for now (pending the result of the appeal), as an example of how 42.33 the GC has put considerable pressure on the diplomacy paradigm that has informed much of the Council’s work throughout the process of EU integration. This secretive paradigm remains strongly anchored, and is more visible in the international relations activities not only of the Council, but also of the Commission. Yet, the Court’s case law on the subject of public access is still evolving, and the extent to which it might effectively change the diplomatic habits of the institutions remains very much open. Given the fact that some recent EU international negotiations have rather direct effect on the rights and interests of citizens the trend towards more public access in the public interest at certain stages of the negotiations may be expected to continue. The fact that the Lisbon Treaty gave increased powers to the EP is a relevant legal development in this respect. In particular, the EP has interpreted the provision according to which it is to be ‘immediately and fully informed at all stages of the (negotiating) procedure’ (Art 218(1) TFEU) as requiring access to documents in the negotiations conducted by the Council or the

81 82

Ibid [33]–[36] and [57]–[59]. See, for example, the approach adopted by the CJEU in Commission v Bavarian Lager (n 17).

Deirdre Curtin and Joana Mendes

1115

Part I – Commentary on the Articles of the EU Charter

Commission at all stages of the procedure: pre-negotiation, ongoing negotiations and the final outcome (and implementation). The EU executive institutions disagree and have resisted up until now efforts by the EP both collectively and some of its members individually to obtain access to the various stages of the negotiation processes of international agreements. (c) The Non-Mandatory Exemption for Inspections, Investigations and Audits 42.34 This provision applies when disclosure of documents requested under Regulation 1049/2001 may endanger the completion of inspections, investigations or audits.83 It is designed not to protect investigations as such, but rather the purpose of those investigations, eg in the case of infringement procedures, the purpose of the investigations is to ensure that the Member State concerned ultimately complies with EU law.84 As briefly mentioned above, the interpretation of this exception has been at the core of the question where to draw the line between the right of access to documents and the right of access to the file. These rights, and the regulations that define the conditions under which they can be exercised, have different objectives and there are no settled legislative rules that would define their respective scopes of application.85 In particular, when according to sector rules, interested parties other than those directly concerned by an investigation do not have the right to consult the documents in the Commission’s administrative file, should they be granted access via Regulation 1049/2001? 42.35 This issue has been widely debated following the judgment of the GC in Verein für Konsumenteninformation (VKI).86 In this case, the Court set aside the specific rules on access to the file to grant Verein für Konsumenteninformation—a consumer organisation, third party to a competition law procedure—access to the documents of the file it requested, on the basis of the general rules on access to documents. Access would have been denied if the GC had enforced the sector rules applicable to this case. However, in a subsequent case, the CJ significantly overturned the possibility of resorting to Regulation 1049/2001 to broaden access to documents in an administrative file by third parties to investigative procedures (Technische Glaswerke Ilmenau—TGI).87 Deciding on appeal, the Court ruled that the specific rules on access to the file—in this case, those applicable in the context of state aid procedures—should be taken into account when interpreting the exceptions on access to documents established in Regulation 1049/2001.88 In addition, the fact that the applicant did not have access to the file in the administrative procedure, according to the applicable sector rules, grounded a general presumption that disclosure would in principle undermine the protection of the

83

Case T-391/03 and 70/04 Franchet and Byk v Commission [2006] ECR II-2023 [109]. Case T-36/04 API v Commission [2007] ECR II-3201 [133]. See also T-471/08 Toland v European Parliament [2011] ECR II-2717 [44]–[45]. 85 Case C-404/10 P Commission v Éditions Odile Jacob (28 June 2012) [109], [110]. 86 See n 67 above and, among others, Leino (n 68) 1241–46. See also decisions from the European Ombudsman on refusal of access to the Commission’s administrative file in a state aid investigation case: 1735/2010/MHZ Opened on 20 Sep 2010—Decision on 03 May 2011; and refusal to grant public access to documents in a competition law procedure case: 2953/2008/FOR Opened on 09 Dec 2008—Decision on 27 Jul 2010. 87 Leino (n 68) 1224–28. 88 Commission v TGI (n 69) [58]. For a critical analysis of this case, see Leino (n 68) 1226–27. 84

1116

Deirdre Curtin and Joana Mendes

Art 42 – Right of Access to Documents

objectives of investigation activities.89 This countered the case law according to which the institution refusing access must demonstrate ‘how access to that document could specifically and effectively undermine the protected interest’ and ‘that the risk to the interest protected must be reasonably foreseeable and not purely hypothetical’.90 Since this ruling, the CJ and the GC have given contrary signs on which line of case 42.36 law to pursue in order to interpret this and other exceptions of Article 4(2) and (3).91 For example, in another case regarding the protection of the ‘purpose of inspections, investigations and audit’, the GC has extended the possibility of establishing a general presumption to documents exchanged between the Commission and a Member State in the framework of infringement procedures.92 More recently, the CJ forcefully upheld its judgment in TGI with regard to the exceptions covered by the first and third indent of Article 4(2) and Article 4(3) of Regulation 1049/2001. According to the Court, allowing third parties to resort to the general rules on access to documents to gain access over documents they would not be entitled to under sector rules would call into question these rules, which would otherwise apply.93 If there is no provision in either of the regulations at issue in that case that establishes primacy of one over the other, they need to be interpreted in a way that ensures their coherent application.94 In practice, this amounts to recognising general presumptions of non-access, the compatibility of which with the regulation on access to documents is highly questionable.95 One may argue that sector rules constitute lex specialis whose content is grounded on a delicate balance of the interests at stake in each policy field, and that as such, they ought to prevail over the general rules on access to documents. Yet, as much as a solution is needed to ensure the effet utile of sector regimes on access to the file, this could clash with the principle of widest possible access and is, as such, detrimental also to Article 42 of the Charter. General presumptions are not the necessary solution to ensure the compatibility of sector rules on access to the file with the rules of Regulation 1049/2001.96 Their legitimacy should be assessed against their impact on the scope of protection of Article 42 of the Charter, and the fact that the limits to the exercise of this right are defined in the Treaty—or, we argue, on the basis of the Treaty provisions on transparency which frame the right of access to documents.

89

Commission v TGI (n 69) [55]–[58]. Sweden and Turco v Council (n 58) [49], [43]. 91 On the discrepancies of the courts in their ruling on access to documents, see Adamski (n 68) 521–22. On this specific issue, see ibid 529–30, 542–43. 92 LPN v Commission (n 69) [123]–[127]. 93 Case C-477/10 P Commission v Agrofert (28 June 2012) [62], [63]; Commission v Éditions Odile Jacob (n 85) [121]–[122]. 94 Commission v Éditions Odile Jacob (n 85) [110]. 95 Ibid [118]; Agrofert (n 93) [62], [63]. 96 Arguing that sector regimes could be revised to reflect a more balanced equation between access and the interests that a lawful refusal protects, see Leino (n 68) 1246. 90

Deirdre Curtin and Joana Mendes

1117

Part I – Commentary on the Articles of the EU Charter

V. Remedies 42.37 As follows from the illustration above, the right of access to documents has been enforced and developed by the CJEU. Case law is one of the main sources to understand not only the scope but also the tensions inherent in this right. The main judicial remedy is the action of annulment of EU acts that refuse access or only grant partial access, which can be filed under the conditions specified in Article 263 TFEU. In addition to judicial remedies, the right to complain to the European Ombudsman under Article 228 TFEU is an equally important remedy. As mentioned above, the decisions and reports of the Ombudsman have been also crucial in developing the right of access to documents. The intervention of the Ombudsman is particularly important in cases where it may not be so much the legality of the refusal or partial access that is at issue but more the administrative behaviour of the EU institutions and bodies. The EO’s inquisitorial procedures, allow him to access administrative files and also to make files public during the proceedings and are perhaps the most potent machinery for opening windows on public information yet devised.

E. Evaluation 42.38 Article 42 of the Charter seems to place the right of access to documents quite far away from the early years when this right was gradually constructed on the basis of codes of conduct of the three decision-making institutions (Commission, Council and the European Parliament) and the Court’s case law, which on the whole kept pressure on the institutions to behave fairly and to devise adequate systems of scrutiny. The principled statement in Turco—‘increased openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system’97—is now reflected at the Treaty level (Art 15 TFEU). Article 42 of the Charter should be interpreted in this light. 42.39 Access to documents has acquired the status of a rather fundamental norm in the EU legal and constitutional system, to which Article 42 certainly lends added symbolism. Still, one may question the added value of approaching the right of access to documents as a fundamental right. The Charter is binding and the right of access to documents is now explictly a means of ensuring openness (Art 15 TFEU), acquiring also by force of the Treaty specific democratic connotations. These two changes in the Lisbon Treaty may affect the doubts we have expressed regarding the consequences of considering the right of access to documents as a fundamental right. However, the manner in which they may influence the current status of this right is not clear. 42.40 At the same time, the right of access to documents has also in recent years become highly ‘legalised’ on many crucial issues such as the meaning of the exceptions, the relationship with national legal provisions and the relationship with other legal rights that

97

1118

Sweden and Turco v Council (n 58) [45], reiterating the preamble of Regulation 1049/2001.

Deirdre Curtin and Joana Mendes

Art 42 – Right of Access to Documents

also enjoy a fundamental status (eg privacy and data protection98). The case law of the CJEU has played and continues to play a crucial role in this respect. This is also one of the greatest challenges of the right of access to documents. The Courts in Luxembourg, once seen as the ‘unsung hero’ of those seeking to open up the inner institutional workings of the EU, are now at times perceived to give an unnecessarily generous interpretation to the scope and meaning of several key exceptions to the legal right.99 The former tendency is still maintained in some of the recent cases, such as the Sophie in ’t Veld judgment discussed above. The latter is reflected in the line of case law that, in an attempt to reconcile sector rules on access to the file with the general rules on access to documents, has provided for general presumptions of non-disclosure. In our view, this line of case law appears as particularly problematic, as it risks compromising the scope of protection granted to the right of access to documents by Article 42 of the Charter. The fate of the Turco case, where the CJ defended in fundamental terms the relevance of oppeness,100 remains in the balance and it is at times hard to fault the Court(s) for consistency. The role of the Courts is crucial in concretising the constitutional provisions on 42.41 openness and democracy. It remains to be seen to some extent how they will attempt to balance the primordial provisions of the Treaty after Lisbon and the ongoing practices (and perhaps diplomatic habits) of the institutions across a broad range of policy areas. It is clear that courts in such circumstances do more than simply interpret a given set of rules; they fill gaps, explain ambiguities and decide who wins and who loses,101 not only with regard to individual litigants but also much more structurally and politically in an institutional sense. Whether and how Article 42 of the Charter will be used in the Courts’ reasoning will be of fundamental importance in assessing the added value in substance of conceptualising access to documents as a fundamental right.

98 See further, H Kranenborg, Toegang tot Documenten en Bescherming van Persoonsgegevens in de Europese Unie: Over de Openbaarheid van Persoonsgegevens (The Hague, Kluwer Law International, 2007). 99 See further, J Heliskoski and P Leino, ‘Darkness at the Break of Noon: The Case Law on Regulation No 1049/2001 on Access to Documents’ (2006) 43 Common Market Law Review 735. 100 Sweden and Turco v Council (n 58) [45]. 101 J Heliskoski and P Leino, ‘Darkness at the Break of Noon: The Case Law on Regulation No 1049/2001 on Access to Documents’ (2006) 43 Common Market Law Review 781.

Deirdre Curtin and Joana Mendes

1119

Article 43* Article 43 European Ombudsman Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to refer to the European Ombudsman cases of maladministration in the activities of the institutions, bodies, offices or agencies of the Union, with the exception of the Court of Justice of the European Union acting in its judicial role.

Text of Explanatory Note on Article 43 The right guaranteed in this Article is the right guaranteed by Articles 20 and 228 of the Treaty on the Functioning of the European Union. In accordance with Article 52(2) of the Charter, it applies under the conditions defined in these two Articles.

Select Bibliography S Cadeddu, ‘The proceedings of the European Ombudsman’ (2004) 68 Law and Contemporary Problems 161. PN Diamandouros, ‘The European Ombudsman and the Application of EU Law by the Member States’ (2008) 1 Review of European Administrative Law 5. ——, ‘The relationship between the principle of good administration and legal obligations’ in C Baudenbacher, C Gulmann, K Lenaerts, E Coulon and E Barbier de la Serre (eds), Liber Amicorum en I’honneur de/in honour of Bo Vesterdorf (Brussels, Bruylant, 2007) 315–41. B Driessen, Transparency in EU Institutional Law: A Practitioner’s Handbook, 2nd edn (Alphen aan den Rijn, Kluwer Law International, 2012). I Harden, ‘When Europeans complain: the role of the European Ombudsman’ (2000) 3 Cambridge Yearbook of European Legal Studies 199. Also published in French as ‘À l’ecoute des griefs des citoyens de l’Union europeenne: la mission du mediateur europeen’ (2001) 3 Revue du Droit de I ‘Union europeenne 573. HCH Hofmann, GC Rowe and AH Türk, Administrative Law and Policy of the European Union (Oxford, Oxford University Press, 2011). A Peters, ‘The European Ombudsman and the European Constitution’ (2005) 42 Common Market Law Review 697. A Tsadiras, ‘The European Ombudsman’s remedial powers: an empirical analysis in context’ (2013) European Law Review 52.

A. Field of Application of Article 43 According to the Charter explanations, Article 43 guarantees the same right as Articles 20 43.01 and 228 TFEU. Article 20(2)(d) TFEU provides for citizens of the Union to have, inter alia, ‘the right ... to apply to the European Ombudsman’. Article 228 TFEU empowers the Ombudsman to receive complaints from any citizen of the Union, or any natural

Part I – Commentary on the Articles of the EU Charter

43.02

43.03

43.04

43.05

43.06

or legal person residing or having its registered office in a Member State. The Treaty of Lisbon added that the Ombudsman ‘shall examine such complaints and report on them’. The subject matter of this chapter is thus the right to complain to the European Ombudsman. Proactive elements of the Ombudsman’s work are discussed only insofar as they relate to the handling of complaints.1 Article 228 TFEU applies to the Euratom Treaty.2 Although Article 20 TFEU does not so apply, it is submitted that the above-mentioned addition to Article 228 made by the Treaty of Lisbon implies an obligation on the Ombudsman to deal with complaints and that, correspondingly, the field of application of Article 43 extends, in substance, to the Euratom Treaty. The Ombudsman’s original mandate, established by the Maastricht Treaty, did not include what were then known as the second and third pillars (respectively, the Common Foreign and Security Policy and Cooperation in Justice and Home Affairs). Subsequently, the Treaty of Amsterdam, which reshaped the third pillar, also brought it within the Ombudsman’s mandate.3 The Treaty of Lisbon brought the Common Foreign and Security Policy within the Ombudsman’s mandate.4 As amended by the Treaty of Lisbon, Article 228(4) TFEU provides for the European Parliament to lay down the regulations and general conditions governing the performance of the Ombudsman’s duties after seeking an opinion from the Commission and with the consent of the Council. Parliament first adopted a decision under this provision in 1994, and last amended it in 2008.5 The decision is generally known as the Statute of the Ombudsman (hereafter, ‘the Statute’). As foreseen by Article 14 of the Statute, the Ombudsman adopted implementing provisions. In accordance with rule 205 of the Rules of Procedure of the European Parliament, the Statute and the implementing provisions are annexed to the Rules of Procedure, for information. They are also published on the Ombudsman’s website.6 Regulation 1049/2001, which gives effect to the fundamental right of access to documents held by the institutions (Art 42 of the Charter), expressly provides for complaint to the Ombudsman as a remedy.7 Some legal instruments establishing EU agencies also mention the possibility of complaining to the Ombudsman,8 as does the Commission’s

*

This chapter expresses the personal views of the author and not those of the European Ombudsman. For an overall view of the institution see I Harden, ‘External scrutiny bodies’ in E Jones, A Menon and S Weatherill (eds) The Oxford Handbook of the European Union, (Oxford, Oxford University Press, 2012) ch 27. 2 Art 106a Euratom. 3 Art 41 of the TEU, as amended by the Treaty of Amsterdam. 4 J-C Piris, The Lisbon Treaty: A Legal and Political Analysis (Cambridge, Cambridge University Press, 2010) 69. (The effect of Art 28(1) of the pre-Lisbon EU Treaty was to exclude the Common Foreign and Security Policy from the European Ombudsman’s mandate. When Art 28 of the pre-Lisbon EU Treaty became Art 41 of the EU Treaty, as amended by the Treaty of Lisbon, Art 28(1) was not retained.) 5 Decision of the European Parliament 94/262/ECSC, EC, Euratom of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman’s duties [1994] OJ L113/15, as last amended by Decision of the European Parliament 2008/587/EC, Euratom of 18 June 2008 [2008] OJ L189/25. 6 www.ombudsman.europa.eu. 7 Regulation (EC) 1049/2001 regarding public access to European Parliament, Council and Commission documents [2001] OJ L145/43, Art 8. 8 See, for example, Art 47 of Regulation 439/2010 establishing a European Asylum Support Office [2010] OJ L232/11; Recital 24 of Regulation 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice [2011] OJ L286/1. 1

1122

Ian Harden

Art 43 – Ombudsman

Communication on relations with the complainant in respect of infringements of Union law, which was originally adopted in 2002 and revised in 2012.9 Provisions concerning the Ombudsman remedy are also to be found in memoranda 43.07 of understanding with the European Data Protection Supervisor (EDPS) and the European Investment Bank (EIB). The MoU with the EDPS10 aims to avoid duplication of inquiries. It recognises that where complaints could be dealt with by either the Ombudsman or the EDPS, complainants may choose the authority to which to address their complaint and should receive adequate information on which to base their choice. The provisions of the MoU between the Ombudsman and the EIB11 are discussed below, in section D.II. The Ombudsman is one of the persons to whom, under certain conditions, members 43.08 of staff may make ‘whistleblower’ disclosures.12 The Commission and Council adopted codes of good administrative behaviour, 43.09 which mention the Ombudsman remedy.13 These codes were inspired by the European Code of Good Administrative Behaviour (hereinafter, ‘the Code’). The Code results from an own-initiative inquiry by the Ombudsman, whose draft was approved, with some modification, by a Resolution of the European Parliament.14 Parliament also invited the Ombudsman to apply the principles in the Code in examining whether there is maladministration, so as to give effect to the citizens’ right to good administration in Article 41 of the Charter.15 The Code’s provisions are not, as such, legally binding.16 Parliament’s resolution of 6 September 2001, approving the Code, called on the Commission to submit an appropriate proposal for a regulation containing a code of good administrative behaviour. Since there was no specific legal basis for such a regulation, the resolution envisaged its adoption on the basis of what is now Article 352 TFEU. The European Parliament has subsequently referred repeatedly to this call. In January 2013, Parliament adopted a resolution with recommendations to the Commission on a Law of Administrative Procedure of the European Union.17 The recommendations include the principles contained in the Code, alongside certain other provisions.

9 COM/2002/0141 final, [2002] OJ C244/5; COM (2012) 154 final (not published in the OJ, but available through Eur-lex). 10 [2007] OJ C27/21. 11 [2008] OJ C244/1. 12 Art 22b of the Staff Regulations: http://ec.europa.eu/civil_service/docs/toc100_en.pdf. 13 Commission Decision of 17 October 2000 amending its Rules of Procedure by annexing a Code of Good Administrative behaviour for staff of the European Commission in their relations with the public [2000] OJ L267/63; Decision of the Secretary-General of the Council/High Representative for Common Foreign and Security Policy of 25 June 2001 on a code of good administrative behaviour for the General Secretariat of the Council of the European Union and its staff in their professional relations with the public [2001] OJ C189/1. 14 European Parliament resolution on the European Ombudsman’s Special Report to the European Parliament following the own-initiative inquiry into the existence and the public accessibility, in the different Community institutions and bodies, of a Code of Good Administrative Behaviour (C5–0438/2000–2000/2212 (COS)), 6 September 2001. 15 European Parliament resolution on the annual report on the activities of the European Ombudsman (C5–0302/2001–2001/2043(COS)), 6 September 2001. 16 Order of the Court of First Instance of 24 April 2007 in Case T-132/06 Gorostiaga Atxalandabaso v Parliament (not published) [73]; Case T-121/08 PC-Ware Information Technologies BV v Commission [2010] ECR II-01541 [90]. 17 European Parliament resolution of 15 January 2013 with recommendations to the Commission on a Law of Administrative Procedure of the European Union (2012/2024(INI)).

Ian Harden

1123

Part I – Commentary on the Articles of the EU Charter

43.10

Given that the Ombudsman’s mandate is explicitly limited to the Union’s institutions, bodies, offices and agencies, it is not immediately obvious that Article 51 of the Charter has any practical bearing on the right to complain to the Ombudsman. Even though the boundary between the national and the Union levels is not always clear-cut, the grey areas concern the implementation of Union law. However, two considerations are worth mentioning in this regard. 43.11 First, the second sentence of Article 51(1) requires the Member States to respect the rights, observe the principles and promote the application of the Charter. This could be of relevance to the exercise of the right to complain by, for example, persons held in detention.18 43.12 Second, the need to respect the principle of subsidiarity constitutes additional support (if such were needed) for the Ombudsman’s consistent approach that a person should be considered as residing in the Union for purpose of the right to complain if he or she is physically present in a Member State. Any other approach, such as requiring, for example, a person to be legally resident, would require the Ombudsman to examine questions that are properly for national authorities to determine.

B. Interrelationship of Article 43 with Other Provisions of the Charter 43.13 The European Ombudsman is the only generalist non-judicial institution dealing with complaints against the EU institutions, bodies, offices and agencies. Within the scope of the Ombudsman’s mandate, such complaints may, in principle, be based on failure to comply with any of the rights and principles contained in the Charter. The right to complain to the Ombudsman about maladministration is clearly linked 43.14 to the right to good administration (Art 41). The concept of maladministration will be examined in section D.II below. It is important to point out already, however, that maladministration and the legal right to good administration are distinct concepts and that maladministration may be found in cases where the individual right has not been infringed. The right to complain to the Ombudsman is also closely linked to Article 42 (right of 43.15 access to documents) through the concept of citizenship.

C. Sources of the Article 43 Right 43.16 The most obvious sources of the Article 43 right are the provisions of EU law mentioned in section A above. The ‘sources’ referred to below, some of which post-date the establishment of the European Ombudsman, represent international recognition of the importance of the right to complain to an ombudsman. They are not, however, sources in a historical sense. Indeed, the establishment of an Ombudsman by the European

18 Indeed, the Ombudsman wrote to the German authorities in 2003 and 2009 concerning censorship of correspondence addressed to the European Ombudsman by prisoners.

1124

Ian Harden

Art 43 – Ombudsman

Union may be considered as a source of Council of Europe Recommendation 1615 on the Institution of Ombudsman (see section C.II below), rather than vice versa.

I. UN Treaties No UN Treaty expressly provides for the right to complain to an ombudsman. However, the Optional Protocol to the Convention against Torture (OPCAT) and the Convention on the Rights of Persons with Disabilities (CRPD) contain provisions requiring there to be independent national institutions. Some states have designated ombudsmen for this purpose under one or both Conventions.19 The OPCAT foresees in its Article 17 that ‘Each State Party shall maintain, designate or establish … one or several independent national preventive mechanisms for the prevention of torture at the domestic level.’ The CRPD (which the European Union as such has signed and ratified) requires there to be a framework, including one or more independent mechanisms, to promote, protect and monitor the implementation of the Convention.20 At the time of writing, the EU framework is in the process of being established, with the European Ombudsman as one of the participating institutions. Both the OPCAT and the CRPD require due consideration to be given to the so-called ‘Paris Principles’, which are annexed to a UN General Assembly Resolution adopted in 1994.21 Other relevant provisions are contained in General Assembly Resolutions 63/169 and 65/207 on the role of the Ombudsman, mediator and other national human rights institutions in the promotion and protection of human rights.22 Article 9 of the Aarhus Convention of 1998 (Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters) contains provisions similar to those in Council of Europe Recommendation Rec (2002) 2 and the Convention on Access to Official Documents, which are discussed in the next section.

43.17

43.18

43.19

43.20

43.21

II. Council of Europe Treaties The Council of Europe adopted a recommendation encouraging the establishment of 43.22 ombudsman institutions in 1975, followed by further recommendations in 1985 and 2003.23 The 2003 Recommendation notes that the development of methods of human

19 The designated national preventive mechanisms are listed on the website of the United Nations High Commissioner for Human Rights: www2.ohchr.org/english/bodies/cat/opcat/mechanisms.htm; www.ohchr. org/Documents/Countries/NHRI/Chart_Status_NIs.pdf. 20 Art 33(2). 21 Principles relating to the Status of National Institutions (the Paris Principles) adopted by General Assembly resolution 48/134 of 20 December 1993. 22 A/RES/63/169, 20 March 2009; A/RES/65/207, 28 March 2011. 23 Recommendation 757 (1975) on the conclusions of the meeting of the Assembly’s Legal Affairs Committee with the Ombudsmen and Parliamentary Commissioners in Council of Europe member states (Paris, 18–19 April 1974); Recommendation No R (85) 13 of the Committee of Ministers to Member States on the Institution of the Ombudsman; Recommendation 1615 on the Institution of Ombudsman, 8 September 2003.

Ian Harden

1125

Part I – Commentary on the Articles of the EU Charter

rights protection has influenced the role of the ombudsman and that respect for human rights is fundamental to the concept of good administration. It includes (point 7) criteria that an ombudsman should meet. These criteria are better adapted to the ombudsman institution than the UN’s Paris Principles, which were inspired by the idea that the power to investigate and report on complaints is optional, rather than a core function of national human rights institutions. 43.23 There is also a Recommendation of the Council of Europe’s Committee of Ministers on access to official documents, as well as a Convention on the same subject (not yet in force), both of which foresee that States Parties will provide access to a review procedure before a court of law or another independent and impartial body established by law. If review is by a court of law, applicants should also have access to an expeditious and inexpensive review procedure, involving either reconsideration by a public authority or review by an independent and impartial body established by law.24

III. Other Sources 43.24 Ombudsman is a (gender-neutral) Swedish word, and the institution has deep historical roots in Sweden, where the King’s Supreme Ombudsman was appointed in 1713 to ensure that the law was observed and that public officials carried out their duties during the King’s absence. This role developed into the office of Chancellor of Justice, with power to supervise the courts and other public authorities, deal with complaints and prosecute officials and ministers for unlawful actions. Conflict between the Executive and the Legislature over the office of Chancellor of Justice was resolved by the Parliament’s election of a justitieombudsman (‘Ombudsman of Justice’) in 1809.25 The Ombudsman’s task was to carry out the same functions, but on behalf of Parliament rather than the Executive. An ombudsman based on the Swedish pattern was created in Finland in 1919, as part of Finland’s new constitution following independence. The Danish Ombudsman was the third to be created, in the early 1950s.26 In contrast to the Swedish and Finnish institutions, the Danish Ombudsman neither prosecutes officials, nor supervises the courts. Few of the ombudsman institutions subsequently established worldwide possess either of these powers. 43.25 During the second half of the twentieth century, many countries in the world established ombudsmen, either as a response to problems of bureaucracy associated with the growth of the state, or as a mechanism to protect human rights. 43.26 None of the original six Member States had an ombudsman when the European Economic Community was founded in 1958. By the early 1990s, when the Maastricht Treaty was being negotiated, seven of the then 12 Member States had a national

24 Recommendation Rec (2002) 2, adopted by the Committee of Ministers on 21 February 2002, c IX; Council of Europe Convention on Access to Official Documents, CETS No 205, 18 June 2009, Art 8(1). At the date of writing, seven of the EU Member States have signed the Convention and three of those have also ratified it. 25 See the website of the Swedish Parliamentary Ombudsmen: www.jo.se. 26 A constitutional provision was adopted in 1953, and implementing legislation in 1954. The first ombudsman took office in 1955. See S Hurwitz, ‘The Danish Parliamentary Commissioner for civil and military administration’ (1958) Public Law 236.

1126

Ian Harden

Art 43 – Ombudsman

ombudsman.27 Three others28 later established such an office, and all the states that joined the Union in the enlargements of 1995, 2004 and 2007 had national ombudsmen at the date of their accession. At the time of writing, 26 of the 28 Member States have a national ombudsman.29 Many of these institutions are established by the national constitution. During the Maastricht Treaty negotiations on political union, Spain and Denmark 43.27 put forward suggestions involving a ‘European Ombudsman’.30 Whereas the Spanish idea was that this institution might act in support of citizens’ rights vis-à-vis the Member States’ administrations, the Danish proposal was for an ombudsman with a mandate only for the European Union level. The latter idea was the one that found its way into the Treaty. Finally, mention should also be made of the EU equality directives, which require 43.28 each Member State to designate a body or bodies for the promotion of equal treatment of all persons without discrimination on the grounds of racial or ethnic origin, or sex. These bodies may form part of agencies charged at national level with the defence of human rights or the safeguard of individuals’ rights.31 Nine Member States have designated their national ombudsman for this purpose. The Directives do not apply, as such, to the EU institutions, bodies, offices and agencies. However, the latter are bound by the relevant Charter rights and the right to complain to the European Ombudsman may be used to defend those rights.

D. Analysis I. General Remarks The institution of the Ombudsman gives citizens of the Union an alternative non- 43.29 judicial remedy to protect their interests. That alternative remedy meets specific criteria and does not necessarily have the same objective as judicial proceedings.32 An essential difference between Ombudsman proceedings and judicial proceedings is that the

27 Denmark (1955), United Kingdom (1967), France (1973), Portugal (1975), the Netherlands (1982), Spain (1982), Ireland (1984). The dates cited are those of the appointment of the first ombudsman, which in the case of Ireland occurred four years after the enabling legislation. 28 Belgium, Greece and Luxembourg. 29 For a survey, see: G Kucsko-Stadlmayer, European Ombudsman-Institutions: A Comparative Legal Analysis Regarding the Multifaceted Realisation of an Idea (Vienna/New York, Springer, 2008). 30 See C Moreiro González, ‘The Spanish proposal to the inter-governmental conference on political union’ and P Biering, ‘The Danish proposal to the inter-governmental conference on political union’ in P Nikiforos Diamandouros (ed), The European Ombudsman: Origins, Establishment, Evolution (Luxembourg, Office for Official Publications of the European Communities, 2005) 27–37, 38–51. 31 Art 13 of Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22; Art 12 of Council Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services [2004] OJ L373/37; Art 20 of Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) [2006] OJ L204/23. 32 Case T-209/00 Lamberts v European Ombudsman [2002] ECR II-2203 [65]; Case C-167/06 P Komninou v Commission [2007] ECR I-141 [44].

Ian Harden

1127

Part I – Commentary on the Articles of the EU Charter

43.30

43.31

43.32

43.33

former do not result in legally binding decisions.33 Unlike the Court, the Ombudsman can neither annul unlawful acts, nor make binding awards of damages. The Ombudsman’s procedures involve both an adjudicative mode, in which the focus is on the question of whether there is maladministration or not, and a dispute resolution mode, associated with consensual solutions.34 The implementing provisions envisage that an inquiry may be closed with a ‘critical remark’ if it is no longer possible for the institution concerned to eliminate an instance of maladministration that does not have general implications. When the Ombudsman finds maladministration for which he considers that the complainant should receive redress, the normal procedure is to propose a friendly solution in accordance with Article 3(5) of the Statute.35 The institution is not obliged to accept such a proposal. However, in the absence of good reasons, failure to do so normally leads to a draft recommendation in accordance with Article 3(6) of the Statute.36 In cases where the Ombudsman considers that the institution is unlikely to accept a friendly solution, or that a friendly solution would not be appropriate (for example, where the complainant does not seek redress, or where redress is no longer possible), the Ombudsman may proceed directly to a draft recommendation, on which the institution concerned must send a detailed opinion within three months. The same is true if the maladministration that has been identified affects the public interest, rather than the individual interest of the complainant. If the detailed opinion is not satisfactory, the final step available to the Ombudsman is a special report to the European Parliament, in accordance with Article 3(7) of the Statute. Such a report may contain recommendations. The Ombudsman’s declared policy is to make special reports only in relation to important matters where Parliament is able to take action in order to assist the Ombudsman.37 Other cases are closed with a critical remark. The responsible committee of Parliament (the Committee on Petitions) may draw up a report on any case of maladministration identified by the Ombudsman.38 Its practice is to do so only when the Ombudsman makes a special report. Since the Ombudsman cannot compel the institutions to put maladministration right, he must rely on the cogency of his arguments, the moral authority of the office and the force of parliamentary and public opinion to persuade the institutions to accept his findings and suggestions. In 2012, the Ombudsman published for the first time an overall rate of compliance for the previous year: 82 per cent. This figure does not relate solely to individual redress for complainants, but also includes general improvements

33 Case T-103/99 Associazione delle cantine sociali venete v European Ombudsman and European Parliament [2000] ECR II-4165 [50]–[54] (Order of the Court of First Instance of 22 May 2000); Komninou v Commission (n 32). 34 PN Diamandouros, ‘The relationship between the principle of good administration and legal obligations’ in C Baudenbacher, C Gulmann, K Lenaerts, E Coulon and E Barbier de la Serre (eds), Liber Amicorum en l’honneur de/in honour of Bo Vesterdorf (Brussels, Bruylant, 2007) 315–41. 35 ‘As far as possible, the Ombudsman shall seek a solution with the institution or body concerned to eliminate the instance of maladministration and satisfy the complaint.’ See also Art 6 of the implementing provisions. 36 ‘If the Ombudsman finds there has been maladministration, he shall inform the institution or body concerned, where appropriate making draft recommendations. The institution or body so informed shall send the Ombudsman a detailed opinion within three months.’ See also Art 8 of the implementing provisions. 37 See the Ombudsman’s Annual Report for 1998, pp 27–28. 38 See r 205(2) of the European Parliament’s Rules of Procedure.

1128

Ian Harden

Art 43 – Ombudsman

to the quality of administration, such as action to prevent similar maladministration recurring in the future. The fact that the Ombudsman does not make legally binding decisions makes it possi- 43.34 ble for the Ombudsman to be more accessible than the Court. The right to complain is not dependent on meeting a test of direct and individual concern, or indeed on demonstrating any specific interest in the maladministration that is alleged: actio popularis complaints on behalf of the public interest are possible.39 Nor is the possibility to complain limited to acts that have legal effects. Finally, as will be explained in the next section, whilst the concept of maladministration includes unlawful acts and omissions that fall within the Ombudsman’s mandate, it is not limited to them. Natural and legal persons may thus complain to the Ombudsman in certain cases 43.35 where they could not bring judicial proceedings. The converse is also true. In particular, the Ombudsman remedy cannot be used to challenge the political work of the European Parliament or to contest Union legislation. These points will be explained in section D.IV below.

II. Scope of Application This section will analyse the scope of application of the right to complain to the 43.36 Ombudsman in terms of three elements: (a) who may complain; (b) about what; and (c) against whom? (a) Who May Complain? Article 43 provides for ‘any citizen of the Union and any natural or legal person residing or having its registered office in a Member State’ to have the right to complain. For a number of reasons, the question of whether or not a person is entitled to complain rarely gives rise to controversy. As already mentioned in section A above, the Ombudsman’s consistent view is that a person should be considered as residing in the Union for the purposes of the right to complain if he or she is physically present in a Member State. Furthermore, Article 228 TFEU empowers the Ombudsman to conduct inquiries on his own initiative as well as on the basis of complaints. When a complaint is made by a person who is not entitled to do so, the Ombudsman may, therefore, decide to inquire into the matter on his own initiative. In such cases, the Ombudsman uses procedures similar to those for inquiries into complaints. From the perspective of the complainant, therefore, there may be little difference between an Ombudsman inquiry into the complaint and an own-initiative inquiry into the matters raised in the complaint. In practice, the Ombudsman normally takes the view that it would be detrimental to the public image of the Union not to clarify an allegation of maladministration against one of its institutions solely because the complainant does not have the right to complain. The Memorandum of Understanding between the Ombudsman and the

39 On this point, see the Opinion of Advocate General Trstenjak in Case C-331/05 P Internationaler Hilfsfonds v Commission [2007] ECR I-5475 [26], [59].

Ian Harden

1129

43.37

43.38

43.39

43.40

Part I – Commentary on the Articles of the EU Charter

EIB40 formalises this practice in relation to complaints against the EIB. The background to this provision is the growing volume of EIB lending for projects outside the EU, which is based on EU external cooperation and development policies. The assurance provided by the MoU benefits, in particular, non-EU citizens who are affected by projects financed by the EIB in third countries. (b) Concerning What? 43.41 The Article 43 right is to complain about maladministration, a term which neither the Treaty nor the Statute explains. The first annual report of the Ombudsman, for the year 1995, stated that it is better not to attempt a rigid definition. Instead, the report offered a threefold categorisation of maladministration, which has remained the basic organising principle of the Ombudsman’s work ever since. The first and second categories consist, respectively, of failure to comply with legal rules or principles and failure to respect human or fundamental rights. The third category originally consisted of a list of examples, such as abuse of power, unfairness, discrimination, avoidable delay, and lack or refusal of information. It was later explained that it consists of failure to comply with the principles of good administration. In response to a call from the European Parliament in 1997 for a definition of malad43.42 ministration, the Ombudsman thought it best to produce his own: ‘maladministration occurs when a public body fails to act in accordance with a rule or principle which is binding upon it.’ This formal definition added little to the three categories, which are examined in more detail below. Unlawful Conduct 43.43 The European Ombudsman has consistently taken the view that unlawful behaviour that falls within his mandate constitutes maladministration.41 This position is in line with the general understanding worldwide that the functions of the ombudsman institution include legality review.42 As will be explained below, however, there may be maladministration even if the institution concerned has acted lawfully. The fact that the Ombudsman’s review encompasses legality does not in any way 43.44 qualify the general statement made above that Ombudsman proceedings do not result in legally binding decisions. The Ombudsman cannot annul legal acts, or make binding awards of damages. However, the Ombudsman can and does take a view, for example, on whether the refusal of access to a document was lawful, or whether the conditions for non-contractual liability are met in a particular case. Dealing with some cases may require the Ombudsman to take a view on a question of legal interpretation. The

40

[2008] OJ C244/1. Para 45 of the judgment in Case T-294/03 Gibault v Commission [2005] ECR SC I-A-141; II-635 suggests otherwise, but is based on a misunderstanding of the previous decision to which it refers, ie Joined Cases T-219/02 and T-337/02 Lutz Herrera v Commission [2004] ECR-SC I-319, II-1407 [101]. Not every illegal act constitutes maladministration, however, because limits exist to the Ombudsman’s remit: see IG Dimitrakopoulos, ‘Is an Illegal Community Act Necessarily an Instance of Maladministration, in the Sense of Article 195 EC?’ (2009) 2 (1) Review of European Administrative Law 45–55. 42 See, for example, the UK Ombudsman’s Principles of Good Administration, which begin: ‘All public bodies must comply with the law…’. 41

1130

Ian Harden

Art 43 – Ombudsman

Ombudsman’s views on such questions are not, of course, authoritative. If and when the Court gives a different interpretation from that of the Ombudsman, the latter revises his view for the future. This happened, for example, as regards the interpretation of one of the exceptions contained in Regulation 1049/2001 on access to documents and its implications for the relationship between that Regulation and the one on data protection.43 Human and Fundamental Rights The entry into force of the Treaty of Lisbon, which gave the Charter of Fundamental 43.45 Rights the same legal value as the Treaties, increased the degree of overlap between this category and the first (unlawful behaviour). A distinction between the two remains important, however, in relation to the Ombudsman remedy. First, the question of whether a particular human rights instrument is legally binding 43.46 on the EU institutions is not decisive in Ombudsman proceedings. The Ombudsman took the view, for example, that once the Presidents of the European Parliament, Council and Commission had proclaimed the Charter of Fundamental Rights at the Nice summit in the year 2000, failure by the EU institutions to respect its provisions would constitute maladministration. Second, even when a right is legally binding on the institution concerned, the relevant 43.47 question in Ombudsman proceedings is not limited to whether the institution has complied with its strict legal obligations. This point is perhaps best developed through an example. In a case concerning entitlement to an allowance for a handicapped child under the Staff Regulations, the Ombudsman’s letter opening the inquiry not only identified the relevant legal questions, but also highlighted Article 26 of the Charter and invited the Commission to consider in light of that Article whether a more favourable decision to the complainant would be possible in the circumstances of the case.44 Principles of Good Administration It seems obvious that the concepts of good administration and maladministration 43.48 are closely linked. Indeed, they represent positive and negative ways of expressing the same idea. Article 41 of the Charter guarantees the right to good administration. According to 43.49 the explanations of that Article, its contents are based on ‘the existence of the Union as subject to the rule of law whose characteristics were developed in the case law which enshrined inter alia good administration as a general principle of law’ (emphasis added). It would be a mistake, however, to think that the (singular) principle of good administration as mentioned in the explanation of Article 41 is identical to the (plural) principles of

43 See Case C-28/08 P Commission v Bavarian Lager [2010] ECR I-6055. The Ombudsman had previously expressed a different view, which subsequently found support in the judgment of the (then) Court of First Instance, reversed on appeal. Similarly, when the then Court of First Instance interpreted the term ‘legal advice’ in the second indent of Art 4(2) of Regulation 1049/2001 in a sense contrary to the views expressed in a Special Report by the Ombudsman, the latter followed and applied the CFI’s interpretation until it was reversed by the Court of Justice. 44 Case 899/2011/TN. In the event, as well as granting the allowance to the complainant, the Commission made a systemic change that would apply to similar cases in the future.

Ian Harden

1131

Part I – Commentary on the Articles of the EU Charter

good administration to which the Ombudsman refers. On the contrary, Article 41 of the Charter does not provide an exhaustive account of the latter, for two reasons. First, the elements specifically mentioned in Article 41 do not necessarily cover 43.50 everything that individuals can reasonably expect by way of good administration when they interact with the EU institutions.45 The European Code of Good Administrative Behaviour (which the Ombudsman drafted: see section A above) also contains provisions concerning, for example, courtesy and helpfulness. 43.51 Second, by its very nature, the right to good administration concerns the treatment of natural and legal persons. Moreover, the underlying case law consists mainly of judgments in cases that met the exacting locus standi requirements to bring direct proceedings in the Union courts. Aspects of good administration that primarily relate to the public interest come before the Court less frequently and thus remain undeveloped in the case law. For these reasons, good administration as a legal right is focused on the handling of individual cases to which a natural or legal person is a party. 43.52 The Ombudsman has not produced, nor yet announced plans to produce, guidance on aspects of good administration that relate primarily to the public interest, analogous to the Code’s elaboration of how individuals should be treated. However, the Public Service Principles published by the Ombudsman in June 2012 are clearly based on a conception of the public interest dimension of good administration.46 Limits to the Concept of Maladministration 43.53 Although the Ombudsman has generally interpreted the term widely, certain limits to maladministration have been identified. 43.54 First, the Ombudsman has consistently taken the view that the political work of the European Parliament, including the work of its committees, does not raise possible issues of maladministration. Given that a central administrative service receives and registers petitions to Parliament, the Ombudsman deals with allegations that the complainant sent a petition to Parliament and did not receive an acknowledgement of receipt. The Ombudsman declines, however, to deal with complaints against the handling of registered petitions by the Committee on Petitions, or against its decisions. The Ombudsman thus interprets his role in relation to this particular fundamental right (Art 44 of the Charter) more narrowly than the judicial remedy.47 43.55 The Ombudsman has taken the view that certain kinds of decision by the Bureau of the European Parliament are of an administrative nature and therefore potentially give rise to maladministration. Other kinds of decision are considered as forming part of the political work of Parliament, including the hearing of appeals against disciplinary decisions made by the President of Parliament. For the same reason, the Ombudsman declined to deal with a complaint from a Member which called into question the

45 To recall briefly, Art 41 states that every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union. It goes on to mention certain specific elements. In summary, these are: hearings before decisions, access to one’s own file, the giving of reasons, compensation for damage, the right to receive an answer to correspondence, and a duty of the institution to answer in the same Treaty language. 46 www.ombudsman.europa.eu/en/resources/publicserviceprinciples.faces. 47 See Case T-308/07 Tegebauer v European Parliament (Judgment of the General Court of 14 September 2011) and Case T-160/10 J v European Parliament (Judgment of the General Court of 27 September 2012).

1132

Ian Harden

Art 43 – Ombudsman

contents of Parliament’s Rules of Procedure.48 Assessing the adequacy of an institution’s answer to questions put by the Committee on Petitions, or to a Parliamentary Question, as well as the action to be taken in response to missing or unsatisfactory answers, also form part of the political work of Parliament.49 Second, the Ombudsman’s established practice before the Treaty of Lisbon was to 43.56 decline to deal with complaints against the substance of Regulations and Directives, on the ground that ‘the concept of maladministration does not include challenges to the merits of legislation’. There were three main reasons (not all of which might apply in every case) underlying this exclusion: (i) to deal with such a complaint would risk examining the political work of Parliament; (ii) the presumption of legality—the Ombudsman could hardly criticise an Institution for applying an act that had not been annulled by the Court; (iii) since the Ombudsman cannot annul legal acts, it would be pointless and misleading to open an inquiry into a complaint that could only be satisfied by annulment. Given the Treaty of Lisbon’s distinction between legislative and non-legislative acts, 43.57 the Ombudsman no longer uses the above formula when dealing with complaints against non-legislative acts. Each case is examined to establish whether one or more of the above reasons applies to the case in question. The Ombudsman considered admissible, for example, a complaint concerning the Commission’s refusal to extend a deadline laid down in a Commission Regulation, given that it seemed possible for the Commission itself to decide to revise the Regulation in question, without annulment by the Court.50 Finally, it is important to note that the Ombudsman’s inquiries do not constitute 43.58 disciplinary proceedings and do not examine allegations against specific officials. The Ombudsman’s role is limited to checking whether the responsible institutions (including the European Anti-Fraud Office, OLAF) have themselves dealt properly with such allegations. The Ombudsman also deals with complaints relating to the institutions’ responsibilities to help and advise victims of harassment and to protect whistleblowers. (c) Against Whom? The Article 43 right is to complain against the institutions, bodies, offices or agencies of 43.59 the Union, with the exception of the Court of Justice acting in its judicial role. Article 2(1) of the Statute provides that no action by any other authority or person may be the subject of a complaint to the Ombudsman. Article 13 TEU lists the seven Union institutions. There is, however, no definitive 43.60 catalogue of bodies, offices and agencies. The Ombudsman’s approach is first to ask whether an entity against which a complaint is directed forms part of the Union level of governance, as opposed to being a Member State body, or a non-Union international organisation. If the answer is yes, then the Ombudsman regards himself as competent to

48 Cases 1156/2008/CHM and 1176/2008/WP; see the Ombudsman’s Annual Report for 2008, p 30. It also seems unlikely that the Ombudsman would have dealt with the question at issue in Cases C-237/11 and C-238/11 France v Parliament (Judgment of 13 December 2012). 49 See for example, Case 2299/2011/GG. 50 Case 526/2011/RA.

Ian Harden

1133

Part I – Commentary on the Articles of the EU Charter

43.61

43.62

43.63

43.64

inquire into maladministration in its activities. A second question that may then arise is whether to address the inquiry to the entity itself, or to another Union institution that is responsible for it. The question of whether an entity possesses legal personality is relevant to (though not necessarily decisive for) the second question, but not the first.51 As regards the first question, the Ombudsman has consistently taken the view that public authorities of the Member States fall outside his remit. This approach establishes a clear division of labour with the national ombudsmen and similar bodies, which exist in every Member State, except Italy. Cooperation between the European Ombudsman and ombudsmen in the Member States takes place in the framework of the European Network of Ombudsmen. Shared administration, however, and the growth of networks of various kinds linking the EU and the Member State levels of administration,52 create certain grey areas. For example, the Commission promotes and coordinates the SOLVIT network of centres in each Member State’s national administration. The network tries to solve cross-border problems in the application of EU law by public authorities, affecting businesses or citizens. The European Ombudsman has taken the view that the SOLVIT centres are parts of the national administration, and thus fall within the mandate of national ombudsmen rather than his own.53 However, complainants may also make an infringement complaint to the Commission, whose handling of such complaints does fall within the European Ombudsman’s remit (see further below, section E). In dealing with a complaint against the Committee of European Banking Supervisors (CEBS), the Ombudsman made some general observations concerning entities established by EU institutions. The Ombudsman addressed his request for an opinion to CEBS. However, before the deadline for a response expired, CEBS was replaced by the European Banking Authority (EBA), which sent the opinion. Whilst not contesting the Ombudsman’s competence to deal with the case, the EBA pointed out that CEBS was a limited liability company established under the laws of England and Wales. The Ombudsman noted that the Commission Decision54 establishing CEBS did not give it legal personality, but took the view that an entity established by an act adopted in the implementation of the Treaties cannot escape review by the Ombudsman in relation to an alleged instance of maladministration, whether or not it possesses legal personality.55 The fact that CEBS Secretariat Ltd had acquired legal personality through registration as a company under the law of a Member State did not alter the position. The Ombudsman has considered several complaints directed against national central banks (NCBs) as falling outside his mandate.56 None of these complaints raised issues relating to the responsibilities of NCBs as part of the European System of Central Banks

51

See Case OI/1/2010/MMN [30]. See generally, P Craig, ‘Shared Administration and Networks: Global and EU Perspectives’ in G Anthony, J-B Auby, J Morison and T Zwart (eds) Values in Global Administrative Law (Oxford, Hart Publishing, 2011); C Harlow and R Rawlings, ‘Promoting accountability in multi-level governance: a network approach’ (2007) 13 European Law Journal 542–62. 53 Complaint 1781/2004/OV, decision of 24 March 2006. See M Lottini, ‘Correct Application of EU Law by National Public Administrations and Effective Individual Protection: The Solvit Network’ (2010) 3(2) Review of European Administrative Law 5–26. 54 Commission Decision 2004/5/EC of 5 November 2003 [2004] OJ L3/28. 55 Case 2497/2010/FOR. See also Case OI/1/2010/MMN. 56 1860/2010/(BEH)NF, 1605/2011/ELB, 153/2012/KRW, 1325/2012/MF. 52

1134

Ian Harden

Art 43 – Ombudsman

(ESCB), which is governed by the decision-making bodies of the European Central Bank (ECB).57 If a future complaint were to do so, the Ombudsman might treat it as being as directed against the ECB, rather than raise the contentious question of whether NCBs might fall directly within his mandate as regards their responsibilities as part of the ESCB. Entities Established under International Law The Ombudsman has consistently taken the view that entities established by interna- 43.65 tional Treaty, Convention or Agreement, other than the Union Treaties, fall outside his remit. This was the case, in particular, for the European Molecular Biology Laboratory;58 the Centre for the Development of Industry and the Technical Centre for Agricultural and Rural Cooperation,59 both established under the Lomé Convention; Eurocontrol;60 and the European Schools.61 However, the Ombudsman deals with complaints concerning the European Schools, insofar as the complaints are directed against the Commission. The Ombudsman’s approach is to consider that the Commission has a general responsibility for the Schools, arising from its representation on the Governing Boards and the provision of funding from the Union budget, but that this responsibility does not extend to matters of internal management. A slightly different approach was originally taken as regards the European University 43.66 Institute (EUI). In dealing with the first complaint against the EUI, neither its President nor the Ombudsman considered it necessary to take a definite stand on the question of the Ombudsman’s competence. In a subsequent case, however, the EUI contested the Ombudsman’s competence and the latter closed the case as falling outside his mandate.62 The Ombudsman has taken the view that the European Financial Stability Facility 43.67 and the European Stability Mechanism fall outside his mandate, because they were established as organisations outside the framework of the Union.63 Does an EU Entity Constitute a Separate Body? The Ombudsman does not regard the second question (ie, whether a particular entity 43.68 that forms part of the EU institutional framework constitutes a separate body, office or agency) as concerning the scope of his remit. If a particular entity is not separate, then another EU institution or body should be responsible for any maladministration in its activities. The term ‘should be’ signals, however, the reason why the question is important. To the extent that responsibilities are unclear, or that no one is ready to take responsibility, the value of the Ombudsman remedy is reduced. On the other hand, the

57

Art 282 TFEU. Case 374/96/PD (reported in the Ombudsman’s 1996 Annual Report). 59 Cases 41/97/(VK)OV and 218/98/OV (reported in the Ombudsman’s 1998 Annual Report). 60 Cases 911/99/ME and 1113/99/PR. 61 Cases 199/23.10.95/EP/B/KT (1996 Annual Report) and 989/97/OV (1997 Annual Report). 62 Cases 659/2000/GG and 2225/2003/PB. 63 Case 2113/2012/MF. (The question of whether possible maladministration in the activities of the Commission or the ECB in the framework of the ESM Treaty would come within the Ombudsman’s mandate remains open.) 58

Ian Harden

1135

Part I – Commentary on the Articles of the EU Charter

Ombudsman remedy offers a way of bringing such problems to light and encouraging their resolution. 43.69 In practice, solutions are normally found in cooperation with other institutions. For example, the Ombudsman asks the Commission for opinions on complaints concerning the activities of its various advisory Committees.64 However, the Ombudsman addresses the various EU agencies65 separately, including the Executive Agencies. In the latter case, the Ombudsman copies correspondence to the Commission, at the latter’s request. The same approach has been adopted for the Anti-Fraud Agency (OLAF), which is part of the Commission, but has functional independence. 43.70 Problems have arisen as regards EU missions to third countries. In a case concerning the European Union Police Mission (EUPM) in Sarajevo, the Ombudsman took the view that the Council was responsible for ensuring that the EUPM’s actions respected the principle of the rule of law and the fundamental rights recognised by the European Union.66 In a follow-up case, the Ombudsman requested the Council’s assistance to ensure that the complainant received the compensation due to him. In response, the Council essentially put the Ombudsman in contact with the Head of the EUPM.67 In light of this experience, the Ombudsman dealt with a complaint against the European Union Police Mission in the Palestinian Territories (EUPOL COPPS) by addressing EUPOL COPPS directly.68 Although it contested the Ombudsman’s competence, EUPOL COPPS answered on the substance and gave a satisfactory follow up to the Ombudsman’s critical remarks. 43.71 The Ombudsman conducted a general own-initiative inquiry with the aim of clarifying responsibility for preventing and correcting possible instances of maladministration in the activities of Common Security and Defence Policy missions.69

III. Specific Provisions (a) Admissibility of Complaints 43.72 Article 2 of the Statute lays down certain conditions for the admissibility of complaints: the author and the object of the complaint must be identified; the complaint must be preceded by appropriate administrative approaches to the institution or body concerned; it must be made within two years of the date on which the facts on which it is based came to the attention of the complainant; and, in the case of complaints concerning work relationships between the Union institutions and their officials and servants,

64 See, for example, Case 2558/2009/DK concerning the Scientific Committee on Health and Environmental Risks. 65 A list of agencies can be found on the Europa website: http://europa.eu/index_en.htm. 66 Case 1200/2003/OV. 67 Case 471/2004/OV. See also Case 1519/2011/AN. 68 OI/1/2010/MMN. 69 OI/12/2010/MMN. The Ombudsman intended to make the various documents in this inquiry available on his website, but refrained from doing so after objections from the Council, the Commission and the European External Action Service.

1136

Ian Harden

Art 43 – Ombudsman

all possibilities for submission of internal administrative requests and complaints must have been exhausted.70 The Ombudsman’s interpretation and application of these requirements is guided by 43.73 an understanding of their purpose. Appropriate Administrative Approaches The requirement that a complaint be preceded by appropriate administrative approaches 43.74 promotes efficiency. By giving the institution or body concerned the possibility to resolve the matter itself, the need for a complaint to the Ombudsman may be avoided. Furthermore, if a complaint is subsequently lodged, the institution’s response to the prior administrative approaches may assist the Ombudsman in understanding the issues and framing an eventual inquiry. In light of this purpose, it is not considered appropriate to require the complainant to make administrative approaches if the complaint is made in the public interest, the institution is aware of the issue concerned and has already had the opportunity to define its position.71 Furthermore, where there is more than one complaint about a subject, it would be formalistic to require every complainant to repeat the administrative approaches made by one of them.72 The appropriate administrative approaches to follow when applying for public access 43.75 to documents under Regulation 1049/200173 are those set out in Articles 7 and 8 of the Regulation. A complaint to the Ombudsman may be made if the applicant has made a confirmatory application and that application has either been rejected (wholly or partially), or the institution has failed to reply within the deadline set out in Article 8.74 The Memorandum of Understanding between the Ombudsman and the European 43.76 Investment Bank (EIB) provides for the EIB to establish a complaints mechanism, to which complainants will normally be expected to have recourse before turning to the Ombudsman.75 Complaints Concerning Work Relationships between Institutions and Officials Before a complaint may be made concerning work relationships between the Union 43.77 institutions and their officials and servants, all possibilities for submission of internal administrative requests and complaints must have been exhausted. The Statute makes particular reference in this regard to Article 90(1) and (2) of the Staff Regulations. The latter provisions lay down procedures by which persons to whom the Staff Regulations apply may (i) request a decision concerning them and (ii) complain against either a decision adversely affecting them, or a failure to adopt a measure prescribed by the Staff

70

Art 2(3), (4) and (8). See, for example, Cases 619/98/GG and 1212/2006/ELB. 72 See, for example, Case 2139/2010/AN. 73 Regulation (EC) 1049/2001 regarding public access to European Parliament, Council and Commission documents [2001] OJ L145/43, Art 8. 74 Case 465/2010/FOR [17]. 75 [2008] OJ C244/1. The MoU refers to Art 2(4) of the Statute in this context and explicitly states that the Ombudsman considers that the record of how the EIB has dealt with the matters raised in the complaint through its own internal mechanisms and procedures is the appropriate starting point for his own review. Complaints should therefore include an explanation of why the complainant contests the record, or the EIB’s position as set out therein. 71

Ian Harden

1137

Part I – Commentary on the Articles of the EU Charter

Regulations. Some institutions, such as the European Central Bank and the European Investment Bank, have their own Staff Regulations, which differ from the general ones. 43.78 The case law of the courts gives candidates in a competition for the selection of officials the option to use the Article 90(2) complaint procedure against decisions adversely affecting them. A negative decision on such an Article 90(2) complaint may be contested in proceedings before the Civil Service Tribunal (CST). However, the case law also allows a candidate to contest the original decision before the CST directly, without first making an Article 90(2) complaint. The European Personnel Selection Office has suggested that candidates should not be entitled to complain to the Ombudsman unless they first use the Article 90(2) procedure. The Ombudsman’s view is that to interpret Article 2(8) broadly, so as to make it apply to candidates in competitions, would constitute an unjustified limitation of the Article 43 right. Furthermore, the general requirement to make appropriate administrative approaches can be met by the candidate requesting a review of the decision, rather than obliging him or her to use the cumbersome procedure of Article 90(2).76 The Two-Year Time-Limit 43.79 The Ombudsman applies the two-year time-limit with an eye to encouraging bona fide attempts by the complainant to resolve the problem through administrative approaches: the time-limit runs from the date when the institution concerned adopts a definitive position. (b) Grounds for Inquiries 43.80 Article 228 TFEU provides that the Ombudsman ‘shall conduct inquiries for which he finds grounds’, whilst Article 3 (1) of the Statute says that the Ombudsman shall ‘conduct all the enquiries which he considers justified’. 43.81 The Ombudsman’s established practice is to consider that there are no grounds to inquire into a complaint if the Committee on Petitions of the European Parliament is dealing with a petition on the same subject, or if it has already dealt with such a petition, unless there is significant new evidence.77 The Memorandum of Understanding between the Ombudsman and the European Data Protection Supervisor provides for both of them to exercise similar self-restraint.78 The Ombudsman has also sometimes taken the view, on a case-by-case basis, that the work of the Anti-Fraud Office (OLAF) or the Court of Auditors removes any grounds for an Ombudsman inquiry. 43.82 More generally, the Ombudsman does not open or pursue inquiries, if no useful purpose would be served by doing so.

76

OI/6/2012/MHZ. Case 452/2010/BEH [18] and earlier cases cited therein. The same approach should logically apply to temporary Committees of Inquiry established under Art 226 TFEU. 78 See the first indent of section B of the MoU. Cases in which the Ombudsman has applied this provision include, for example, 2676/2009/ANA and 2384/2011/AN. 77

1138

Ian Harden

Art 43 – Ombudsman

(c) ‘Whistleblower’ Disclosures Article 22a of the Staff Regulations requires officials to report possible cases of fraud, 43.83 corruption, other illegal activity, or professional conduct which may constitute a serious failure to comply with the obligations of officials. They may comply with this obligation by informing either (i) a hierarchical superior, or (ii) OLAF. Under the conditions laid down in Article 22b of the Staff Regulations, an official who has complied with the above obligations may further disclose the information to the Ombudsman, or to the President of one of four institutions (the European Parliament, the Council, the Commission, or the Court of Auditors). An official or other servant who makes a disclosure (popularly known as a ‘whistleblower’) in accordance with these provisions has immunity from prejudicial action by his or her institution.79 The Ombudsman treats whistleblower disclosures as complaints, unless the person 43.84 making the disclosure states explicitly that he or she does not wish to make a complaint. The whistleblower thus has the normal procedural rights of complainants (see the next sub-section). The appropriate administrative approaches for a whistleblower are to comply with the condition laid down in Article 22b; ie, to have previously disclosed the same information to OLAF, or to his or her institution, and to have allowed sufficient time for appropriate action. The Ombudsman may also open an inquiry on his own initiative in order to take up 43.85 matters brought to his attention by a whistleblower.80 (d) The Procedural Rights of Complainants Complaint to the Ombudsman is free of charge, given that no provision requires or authorises any charge to be made. A complainant may approach the Ombudsman directly or through a Member of the European Parliament.81 The Ombudsman’s practice is to accept that a complainant may be represented by another person, including a lawyer, if he or she so wishes.82 The Implementing Provisions provide for the Ombudsman to send the opinion of the institution concerned to the complainant and for the latter to have the opportunity to submit observations.83 The same procedure is followed for other possible steps in the inquiry, such as replies to further inquiries and detailed opinions on draft recommendations, as well as to reports of inspections of documents and hearings of witnesses. Article 13.1 of the Implementing Provisions provides for the complainant to have the right to see the Ombudsman’s file on his or her complaint. There are exceptions for (i) documents that the Ombudsman has inspected and which the institution concerned has identified as confidential, and (ii) testimony from officials, if the Ombudsman has decided to take such testimony in confidence.

79

This is a summary of the main effects of complex and rebarbative provisions. See for instance Case OI/8/2004/GG. 81 Art 228 TFEU. 82 The costs of legal representation before the Ombudsman are not recoverable in subsequent judicial proceedings: Case C-331/05 P Internationaler Hilfsfonds v Commission [2007] ECR I-05475. 83 Art 4.6. 80

Ian Harden

1139

43.86 43.87

43.88

43.89

Part I – Commentary on the Articles of the EU Charter

43.90

Article 2(3) of the Statute provides that the complainant may request that his or her complaint be treated confidentially. The Ombudsman may also decide to classify a complaint as confidential in order to protect the rights of the complainant or of third parties.84

IV. Limitations and Derogations 43.91 In accordance with Article 52.2, referred to in the explanations of Article 43, the limitations and derogations applicable to the Ombudsman’s work by virtue of EU primary and secondary law also extend to the Article 43 right. 43.92 In particular, the Ombudsman’s mandate does not include the Court of Justice of the European Union acting in its judicial role. ‘The Court of Justice of the European Union’ includes not only the Court of Justice itself, but also the General Court and specialised courts such as the Civil Service Tribunal.85 The judicial role includes questions of access to judicial documents. 43.93 Other provisions govern the relationship between the Ombudsman’s inquiries and the work not just of the Union Courts, but of courts generally. Article 228 TFEU excludes inquiries ‘where the alleged facts are or have been the subject of legal proceedings’. The Statute contains two related provisions. Article 1(3) states that the Ombudsman may not intervene in cases before courts or question the soundness of a court’s ruling. Article 2(7) provides that ‘when the Ombudsman, because of legal proceedings in progress or concluded concerning the facts which have been put forward, has to declare a complaint inadmissible or terminate consideration of it, the outcome of any inquiries he has carried out up to that point shall be filed without further action’. 43.94 These provisions were applied, for example, when the complainant had already contested before a Member State court the adequacy of a report made by OLAF.86 However, the fact that the complainant was seeking the annulment of a Commission Regulation imposing anti-dumping duties did not prevent the Ombudsman from dealing with a complaint against a decision refusing access to related documents, since there was no indication that the General Court would examine that decision during the proceedings.87 The above provisions have not been applied in cases where a Union court is dealing 43.95 with the same issue of legal interpretation rather than the same factual circumstances. In such cases, however, the Ombudsman may consider that there are no grounds to open, or to continue, an inquiry. It has already been explained that the Ombudsman considers that the political work 43.96 of the European Parliament falls outside his mandate and that, for this and other reasons, the Ombudsman does not deal with complaints that question the validity of legislation. 84 Implementing Provisions, Art 10.1. Since the immunity under Art 22b of the Staff Regulations only concerns disclosure to the Ombudsman, whistleblower complaints are normally classified as confidential in the interests of the complainant, unless the complainant expressly requests public treatment. In the latter case, the Ombudsman may consider it appropriate to classify the case as confidential in order to protect the interests of third parties. 85 Art 19(1) TEU. 86 Case 2930/2008/JMA. 87 Case 1039/2008/FOR.

1140

Ian Harden

Art 43 – Ombudsman

V. Remedies This section will examine judicial proceedings in relation to the Ombudsman remedy 43.97 from two perspectives. The first is that of a complainant who pursues a judicial remedy against an institution after having received a decision from the Ombudsman on a complaint about the same matter. The second is that of a complainant who seeks a judicial remedy against the Ombudsman himself. (a) Judicial Remedies against an Institution Following a Complaint to the Ombudsman Complaints submitted to the Ombudsman do not suspend the time-limits for appeals in 43.98 administrative or judicial proceedings.88 Given the short time-limit to bring actions for annulment under Article 263 TFEU, it is not possible to complain to the Ombudsman concerning a decision and then seek to use the Ombudsman’s findings to support such an action. Moreover, neither the Treaty nor the Statute imposes an obligation on institutions that have been the subject of a complaint to re-examine their position.89 Nor, according to the General Court, can any recommendations of the Ombudsman following a complaint constitute ‘substantial new facts’ that would prevent a further decision being merely confirmatory in nature.90 However, an applicant who complains to the Ombudsman against a decision refus- 43.99 ing access to documents under Regulation 1049/2001 does not, in substance, lose the opportunity subsequently to bring the matter before the Court, because it is possible to make a further application for access. The institution concerned must make a new decision, which may be contested through an action for annulment.91 The time-limits for bringing an action for damages based on contractual or non- 43.100 contractual liability make it possible to complain to the Ombudsman and subsequently go to the Court. It has already been explained that the Ombudsman has no power to make legally binding decisions. Furthermore, whilst unlawful acts and omissions that fall within the Ombudsman’s mandate constitute one aspect of maladministration, there can be maladministration even when the institution concerned behaves lawfully. Conceptually, therefore, a finding of maladministration by the Ombudsman cannot automatically imply that there is illegal behaviour that could be sanctioned by the Court. Nor can there be any automaticity as regards the acceptance in judicial proceedings of the Ombudsman’s findings of fact, or inferences from facts. Were it otherwise, the Ombudsman would become, in effect, a kind of lower court, bound by rules of judicial procedure, rather than ‘an alternative non-judicial remedy [which] meets specific criteria and does not necessarily have the same objective as judicial proceedings’.92

88

Statute, Art 2(6). Case C-521/03 P Internationaler Hilfsfonds v Commission (Order of the Court (Fourth Chamber) of 7 December 2004) [49]. 90 Case T-442/11 Evropaïki Dynamiki v Commission (Order of the General Court (Third Chamber) of 24 October 2012) [87]–[88]. 91 Case C-362/08 P Internationaler Hilfsfonds v Commission [2010] ECR I-669 [56]–[57]. 92 Case T-209/00 Lamberts v European Ombudsman [2002] ECR II-2203 [65]; Case C-167/06 P Komninou v Commission [2007] ECR I-141 [44]. 89

Ian Harden

1141

Part I – Commentary on the Articles of the EU Charter

43.101

In actions based on non-contractual liability, the Ombudsman’s conclusions may constitute evidence of a violation of the legal principle of sound (or good) administration, but are not in themselves binding on the Court, which must make its own legal evaluation of the facts and evidence, including the Ombudsman’s decision, and draw its own conclusions.93 Thus, in the Tillack case, the fact that the Ombudsman found an act of maladministration did not mean, in itself, that OLAF’s conduct constituted a sufficiently serious breach of a rule of law within the meaning of the case law on noncontractual liability.94 43.102 As regards cases concerning the performance of the duties arising from a contract with an EU institution, the Ombudsman does not seek to determine whether there has been a breach of contract by either party, but limits this aspect of his inquiry to examining whether the institution has provided a coherent and reasonable account of the legal basis for its actions and why it believes that its view of the contractual position is justified. (b) Judicial Proceedings against the Ombudsman Actions for Annulment and for Failure to Act 43.103 The General Court has rejected as inadmissible actions brought against the Ombudsman for annulment and for failure to act.95 In doing so, it basically invoked two considerations: (i) Under the pre-Lisbon Treaties, the Ombudsman was neither among the institutions or bodies referred to in the first paragraph of Article 230 EC, nor a Community institution within the meaning of Article 232 EC.96 (ii) Under the Treaty and the Statute, the Ombudsman’s duty is limited to informing the complainant as soon as possible of the action taken following a complaint. The Ombudsman does not have the power to take binding measures and his reports do not produce legal effects vis-à-vis third parties. They are, therefore, not capable of being challenged in an action for annulment. In consequence, an action for failure to act will not lie against the Ombudsman either, since such an action may only be brought if the act requested would be a measure capable of being challenged in annulment proceedings.97

93 Case T-394/03 Flavia Angeletti v Commission [2006] FP-I-A-2-00095; FP-II-A-2-0041 [157]; Case C-167/06 P Komninou v Commission [2007] ECR I-141, [44]. (The word ‘evidence’ here translates the French indice in Angeletti and simple indice in Komninou). 94 Case T-193/04 Hans-Martin Tillack v Commission [2006] ECR II-3995 [128]. It is worth noting that the European Court of Human Rights made extensive use of the Ombudsman’s findings in deciding that there was a violation of Art 10 of the European Convention on Human Rights: Tillack v Belgium App no 20477/05 (27 November 2007). 95 Case T-290108 AJ Apostolov v European Ombudsman (Order of the President of the Court of First Instance of 15 December 2008) not reported; Case T-196/08 Srinivasan v Ombudsman (Order of the Court of First Instance of 3 November 2008) not reported, but see also Case C-580108 P Srinivasan v Ombudsman (Order of the Court of 25 June 2009) [2009] ECR I-110; Case T-144/06 Catherine O’Loughlin v European Ombudsman and Ireland (Order of the Court of First Instance of 5 September 2006) not reported; Case T-103/99 Associazione delle Cantine Sociali Venete v European Ombudsman and European Parliament (Order of the Court of First Instance of 22 May 2000) [2000] ECR II-4165. 96 Associazione delle Cantine Sociali Venete (n 95) [46]; O’Loughlin (n 95) [15]. 97 Associazione delle Cantine Sociali Venete (n 95) [51]; Srinivasan (n 95) [10]–[12].

1142

Ian Harden

Art 43 – Ombudsman

The first of these considerations presumably no longer applies following the Treaty of 43.104 Lisbon because Articles 263 and 265 TFEU envisage actions against bodies, offices and agencies of the Union, as well as against institutions. As regards the second consideration, the changes made by the Treaty of Lisbon cast 43.105 no doubt on its continuing validity. However, it should be noted that, subsequent to the above-mentioned case law, the General Court annulled, for lack of reasoning, a decision that a petition to the European Parliament was inadmissible.98 According to the judgment, whilst the action taken by Parliament in response to a petition that has been declared admissible may not be susceptible to judicial control, because of its political nature, a decision that a petition is inadmissible affects the very essence of the right of petition and is therefore subject to an action for annulment. It cannot be excluded that a similar analysis might be applied, in the future, to the Ombudsman’s decisions on whether complaints fall within his mandate and meet the criteria of admissibility. It seems likely and desirable, however, that the Court will continue to be vigilant to prevent legal proceedings against the Ombudsman becoming a way to evade the procedural rules that apply to direct actions brought by natural and legal persons. Non-Contractual Liability A complainant may bring an action for damages against the Ombudsman, based on 43.106 the latter’s alleged mishandling of the complaint. In order to determine whether there is non-contractual liability, the Court reviews the manner in which the Ombudsman has dealt with the complaint. In doing so, however, regard must be had to the specific nature of the Ombudsman’s function and the fact that he enjoys very wide discretion as regards the merits of complaints and the way in which he deals with them.99 At the date of writing, no complainant has succeeded in establishing the non-contractual liability of the Ombudsman on the merits, though damages were awarded to a Commission official whom the Ombudsman had named in a decision on a complaint.100

E. Evaluation To recall, this chapter deals only with the right to complain to the Ombudsman. The 43.107 following evaluation does not, therefore, include the Ombudsman’s proactive role in protecting, promoting and monitoring good administration and fundamental rights. It will be argued that the added value of the Ombudsman remedy has two aspects. 43.108 First, it provides an alternative route to redress when an institution has harmed or neglected the complainant’s rights or interests. Second, it constitutes a mechanism of public participation and thus contributes to the empowerment of citizens and civil society organisations. The distinction between the two aspects is ultimately of limited

98 Case T-308/07 Tegebauer v European Parliament (Judgment of the General Court of 14 September 2011) [21]. See also Case T-160/10 J v European Parliament (Judgment of the General Court of 27 September 2012). 99 Case C-234/02 P Lamberts v European Ombudsman [2004] ECR I-2803. See in particular paras 50, 52, 63. 100 Case T-412/05 M v European Ombudsman [2008] ECR II-197. An action for damages brought by a complainant is ongoing at the time of writing: Case T-217/11 Staelen v Mediator [2011] OJ C204/24.

Ian Harden

1143

Part I – Commentary on the Articles of the EU Charter

value for at least two reasons. First, some complainants seek redress in order to achieve changes in policies or procedures, so that what happened to them does not also happen to others in the future. Second, and more fundamentally, individuals also have rights and interests in regard to their participation in the work of the institutions. For heuristic purposes, however, it seems useful to consider the two aspects separately.

I. The Ombudsman Remedy as an Alternative Route to Redress 43.109 As already mentioned, there are cases in which redress may be sought through judicial proceedings, but not through the Ombudsman remedy. For example, decisions that form part of the political work of the European Parliament may only be contested before the Court. 43.110 Situations also exist in which it is possible to choose either to bring proceedings before the Court or to complain to the Ombudsman. Two points are of general relevance in such cases. First, although the Ombudsman cannot deliver a legally binding decision, he may persuade the institution concerned to provide redress. Second, a complainant does not have to be legally represented and cannot be made liable in costs if the complaint is unsuccessful. 43.111 In some situations, only the Ombudsman remedy offers a realistic prospect of obtaining redress, either because it is doubtful whether the maladministration constitutes illegality, or because of differences in the procedural and formal requirements governing court proceedings and complaints to the Ombudsman. 43.112 The above points will be developed through concrete examples of the specific contexts in which the Ombudsman remedy is often invoked by complainants who are seeking redress. (a) Information Quality and Management 43.113 Complainants have used the Ombudsman remedy to contest the quality, or the management, of information. For example, trade associations representing airlines twice succeeded in obtaining the correction of information published by the Commission about EU law concerning air passengers’ rights; first in general and, some years later, as regards disruption caused by volcanic ash.101 In another case, the Commission accepted a friendly solution and acknowledged that it had gone beyond the available evidence in communicating with a company about a possible conflict of interest involving the complainant.102 OLAF accepted a draft recommendation in relation to a press release about the complainant, although it failed to implement the recommendation properly.103 Finally under this heading, a complainant company obtained confirmation that the Commission’s failure to take minutes of a meeting held in the framework of competition

101 102 103

1144

Cases 1475/2005/GG and 1301/2010/GG. Case 3264/2008/GG. Case 1840/2002/GG.

Ian Harden

Art 43 – Ombudsman

proceedings was an instance of maladministration, regardless of whether it might also constitute an infringement of the complainant’s rights of defence.104 (b) The Right to an Answer The Ombudsman remedy provides an effective way to obtain an answer to correspon- 43.114 dence and thus gives useful effect to the corresponding right, which is expressly mentioned as part of Article 41 of the Charter. The Ombudsman’s approach goes beyond merely seeking to obtain replies to requests for information. In particular, a citizen who requests an institution to change its position on some issue can reasonably expect that the answer, if negative, will allow him/or her to understand why it will not do so.105 Naturally, the more cogent and reasonable the citizen’s arguments, the more is expected from the institution by way of response. The existence of the Ombudsman remedy thus encourages constructive dialogue between the person seeking redress and the institution concerned. (c) The Award and Performance of Grants and Contracts As the result of an own-initiative inquiry by the Ombudsman, the Commission agreed 43.115 to leave a short period between announcing the result of a tender procedure and signing the contract, in order to permit a judicial challenge to be launched.106 Although the Ombudsman remedy does not constitute an alternative non-judicial route for preventing signature of a contract, it can be used to obtain ex gratia compensation for maladministration in relation to the award of contracts and grants.107 Complainants have also succeeded in obtaining financial redress in numerous cases 43.116 brought to the Ombudsman concerning disputes about the performance of grants and contracts. For example, the Commission agreed to accept costs as eligible on the basis of legitimate expectations and not to recover sums, even though supporting financial documentation was delivered late.108 The Commission also agreed to abandon the requirement that all beneficiaries of grants under the 7th Research Framework Programme ensure that the funds received generate interest.109 As mentioned above, the time-limits for judicial proceedings normally make it feasi- 43.117 ble to go to court after first trying the Ombudsman remedy. However, in the contractual context, there may be little overlap between the questions addressed by the Ombudsman and those that the Court considers legally relevant.110 This point also applies to the position of subcontractors, who can bring cases to the Ombudsman in circumstances

104

Case 1935/2008/FOR. See, for example, Case 1841/2012/TN. Since the Ombudsman deals with the cases through a simplified procedure, few of them are published. 106 OI/2/2002/IJH and see COM (2003) 395 final. 107 See, for example, Case 258/2009/GG. See also Case 1658/2008/PB, in which the Commission adopted, in substance, the solution proposed by the Ombudsman of organising a new tender rather than extending the validity of a contract awarded through a procedure criticised by the Ombudsman. 108 See eg, Cases 53/2010/OV and 2605/2009/MF. 109 Case 1786/2010/PB. 110 See, for example, Case T-424/08 Nexus Europe (Ireland) v Commission (Judgment of the General Court of 19 May 2010). 105

Ian Harden

1145

Part I – Commentary on the Articles of the EU Charter

where a judicial remedy would not be available; for example, as regards the right to be heard.111 (d) Access to Information and Documents 43.118 The right to an answer, mentioned above, can be used to obtain information.112 Furthermore, Regulation 1049/2001 expressly provides for the Ombudsman remedy as a route to challenge the refusal of a confirmatory application for access to documents.113 Neither the right to an answer under Article 41 of the Charter, nor the right of access to documents (Art 42) requires the person concerned to have any special interest in the matter concerned. However, requests are often made by persons who do have such an interest, some of whom have used the Ombudsman remedy successfully to contest a refusal.114 (e) Infringement Complaints 43.119 The established case law does not allow natural or legal persons to challenge, through judicial proceedings, a decision by the Commission to refrain from invoking the infringement procedure of Article 258 TFEU against a Member State.115 In contrast, the Ombudsman remedy is available to a person who is dissatisfied with the Commission’s handling of an infringement complaint. Moreover, in response to the Ombudsman’s criticisms and suggestions, the Commission adopted a Communication in 2002, setting out certain procedural guarantees for complainants.116 Ombudsman inquiries sometimes lead the Commission to respond positively to complainants whose economic interests are at stake.117 The infringement procedure of Article 258 TFEU is not intended, however, as a mechanism to provide redress for individuals against Member States and the availability of the Ombudsman remedy against the Commission does not alter this fact. The main impact of the Ombudsman remedy as regards the infringement procedure concerns, therefore, opportunities for public participation.

111 See, for example, Case 2449/2007/VIK. Jacques Ziller contrasts this and other Ombudsman cases with Case C-433/10 P Mauerhofer v Commission (Order of the Order of the Court of Justice of 31 March 2011): see his contribution to the conference Towards an EU administrative procedure law? held in Brussels, 15–16 March 2012, available on-line through www.reneual.eu. 112 Where such information constitutes personal data of the complainant, the latter may also have rights as a data subject to obtain and correct the information. 113 For an in-depth analysis of the cases from a practitioner perspective, see B Driessen, Transparency in EU Institutional Law: A Practitioner’s Handbook, 2nd edn (Alphen aan der Rhein, Kluwer Law International, 2012). 114 See, for example, Cases 1581/2010/GG and 292/2011/AN. 115 As regards actions for failure to act and for annulment, see: Case 247/87 Star Fruit v Commission [1989] ECR 291 [11]–[13]; Case C-29/92 Asia Motor France and Others v Commission [1992] ECR I-3935 [21]; Case C-107/95 P Bundesverband der Bilanzbuchhalter v Commission [1997] ECR I-947. As regards actions for damages, see Case T-202/02 Makedoniko Metro and Mikhaniki AE v Commission [2004] ECR II-181 (Order of the Court of First Instance of 14 January 2004) [43]. 116 ‘Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law’ [2002] OJ C244/5. The Communication was updated in 2012: COM (2012) 154 final. 117 See, for example, Cases 1623/2009/FOR and 1260/2010/RT.

1146

Ian Harden

Art 43 – Ombudsman

II. The Ombudsman Remedy as an Instrument of Public Participation The Commission’s long-standing practice of inviting complaints about infringements 43.120 facilitates public participation in maintaining the rule of law. Anyone may file an infringement complaint with the Commission free of charge and complainants are not required to demonstrate any specific interest in the matter. In practice, most complaints to the Ombudsman concern either the length of time the Commission is taking to deal with an infringement complaint, or its decision to close a case. As regards delay, the Ombudsman’s approach is that, whenever investigation takes 43.121 longer than the normal one year maximum announced in the 2002 Communication, the Commission should give reasons. Furthermore, the Commission is not entitled indefinitely to delay its decision on a given case.118 As regards closure of a case, the Commission should provide adequate reasons for its intention to close and give the complainant the opportunity to provide further information and/or arguments.119 In dealing with complaints against the Commission that contest the latter’s reason- 43.122 ing, the Ombudsman has to stay on a relatively narrow path, particularly when the Commission takes the view that there is no infringement of EU law. The Ombudsman cannot take a position as to whether there is an infringement, because this would involve inquiring into the actions of the Member State authorities. Moreover, although the Ombudsman may seek to persuade the Commission to change its view as to the correct interpretation of EU law, it is not necessarily maladministration if the Commission declines to do so. In some cases, however, Ombudsman inquiries have resulted in the Commission opening, or reopening, infringement investigations.120 Furthermore, the Ombudsman remedy provides a ‘forum of accountability’, meaning, in this context, that the Commission must explain and justify its handling of infringement cases to civil society actors.121 (a) Transparency Transparency, or openness, is a public good, which is conceptually linked to participative as 43.123 well as to representative democracy. Complainants have achieved some notable successes in using the Ombudsman remedy to obtain access to documents in the public interest; for example, clinical study reports, adverse reaction reports and certain internal audit reports held by the European Medicines Agency.122 The flexible nature of the Ombudsman remedy sometimes allows for creative win-win solutions in the public interest.123

118

See, for example, Cases 289/2005/GG and 3453/2005/GG. See, for example, the Circus animals case 3307/2006/JMA. 120 As for example, in relation to the Malagrotta Landfill: see Cases 791/2005/FOR and 1446/2010/FOR. 121 See for example, the Vienna Airport cases 1532/2008/(WP)GG and 2591/2010/GG. The term ‘forum of accountability’ is used by M Bovens, ‘New Forms of Accountability and EU-Governance’ (2007) 5 (1) Comparative European Politics 104–20. 122 Cases 2560/2007/BEH, 2493/2008/FOR, 3106/2007/FOR, 2914/2009/DK. See also Case 2293/2008/TN in which, following the Ombudsman’s critical remark, the Commission rapidly accepted the applicant’s new request for access. 123 See, for example, Case 2016/2011/AN. 119

Ian Harden

1147

Part I – Commentary on the Articles of the EU Charter

(b) Governance Issues 43.124 Complainants, especially non-governmental organisations, increasingly have recourse to the Ombudsman remedy to raise issues concerning governance of the EU institutions. The term ‘governance’ here refers to matters such as accountability arrangements, the representation of different interests in decision-making, conflicts of interest and other ethical issues. 43.125 As regards conflicts of interest, complainants have successfully brought to light problems in the European Food Safety Authority (EFSA)124 and opportunities for improvement in the Commission’s procedures in relation to the acceptance of gifts and the appointment of special advisers.125 Even though a complaint concerning the President of the European Central Bank’s membership of the ‘Group of Thirty’ was ultimately unsuccessful on the merits, the complaint ensured that the matter was thoroughly and publicly discussed.126 Other complaints have raised complex issues concerning the procedures and criteria 43.126 for selecting members of expert groups, and other advisory bodies.127 Furthermore, several inquiries examined alleged imbalances in stakeholder groups established by the EU financial supervisory authorities.128 43.127 Through using the Ombudsman remedy, complainants also achieved systemic improvements in the Commission’s administration of its Register of Interest Representatives (lobbyists) and obtained an answer from the European Council concerning the personal use of service cars.129 (c) Public Consultation and Dialogue 43.128 The Ombudsman deals with complaints based on the Commission’s communication on standards of consultation,130 including a complaint aimed at ensuring that consultations directed at the general public are conducted in all languages.131 The ‘dialogue’ provisions of the Treaty of Lisbon (Article 11(2) TEU and Article 17(3) TFEU) gave rise to complaints from those who felt themselves wrongly excluded by the Fundamental Rights Agency, or inadequately included by the Commission.132

124 See the draft recommendation in case 775/2010/ANA (also mentioned in the European Court of Auditors’ Special Report 15/2012, Management of conflict of interest in selected EU Agencies). A further inquiry into a complaint against EFSA concerning an alleged conflict of interest is ongoing at the time of writing: 622/2012/ANA. 125 Cases 1341/2008/MHZ and 476/2010/ANA. 126 Case 1339/2012/FOR. 127 See Cases 2558/2009/DK, 1151/2008/ANA, 1682/2010/BEH, 2522/2011/VIK (the latter two inquiries are ongoing at the time of writing). 128 Cases 1321/2011/(PMC)EIS, 1875/2011/EIS, 1876/2011/EIS, 1966/2011/EIS (European Banking authority) 1874/2011/EIS, 1877/2011/EIS (European Insurance and Occupational Pensions Authority; 1967/2011/EIS (European Securities and Markets Authority). 129 Cases 3072/2009/MHZ and 808/2011/MHZ. 130 ‘Towards a reinforced culture of consultation and dialogue—General principles and minimum standards for consultation of interested parties by the Commission’, COM (2002) 704 final. 131 Case 640/2011/AN. 132 Cases 2097/2011/RA and 565/2012/ER. The latter inquiry is ongoing at the time of writing.

1148

Ian Harden

Art 43 – Ombudsman

As mentioned above, the Ombudsman remedy makes the right to an answer (Article 41 43.129 of the Charter) an instrument for constructive dialogue. Its scope is not limited to the complainant’s own affairs, but also extends to issues of public interest and policy. The Ombudsman is careful, however, not to be drawn into the substance of issues that fall outside his mandate.133

III. Future Trends This section will briefly explore possible future trends for the Ombudsman remedy along three axes. First, it will identify existing contexts where complainants might wish, in the future, to use the remedy. Second, it will identify possible changes to the powers and functioning of the institution that could enhance the usefulness of the remedy. Finally, it will mention two possible lines of development of the Union that could have an impact on the remedy. As the cases mentioned in the preceding sub-section demonstrate, there is already a certain level of public awareness of the Ombudsman as an ‘integrity institution’, which complainants can activate as regards ethics and governance issues. The Ombudsman’s publication of a set of public service principles in July 2012 seems likely to increase such awareness. Furthermore, knowledge of the Ombudsman’s general competence to deal with complaints against the EU institutions based on human and fundamental rights may be enhanced by the institution’s role in the United Nations Convention on the Rights of Persons with Disabilities. Finally, as regards existing contexts, the European Citizens Initiative (ECI) may give rise to complaints against the Commission, as regards both procedure and substance. Interesting questions could arise about the interaction between the Commission’s impact assessment process and the ECI. Possible changes to the powers and functioning of the Ombudsman include those that would require legislative or even Treaty changes, as well as those that could be implemented under the existing legal framework with the cooperation of other institutions. As regards the first type, some ombudsman institutions in Europe (for example, the Spanish, Portuguese and Polish) are empowered to refer legislation to their constitutional court. A Treaty change would be needed to create an analogous role for the European Ombudsman, thereby enlarging the scope of the Ombudsman remedy for citizens. It has sometimes been suggested that the value of the Ombudsman remedy would be enhanced by giving the Ombudsman powers to make legally binding decisions, to represent complainants in court, or to bring court proceedings on their behalf. In the view of the present author, these ideas (all of which would require legislation) are misconceived and would de-nature the institution. On the other hand, intervention in direct actions against EU institutions that raise important issues of principle concerning fundamental rights, especially the rights to good administration and to access to documents, could benefit complainants. In 2013, the Ombudsman requested leave to intervene in an action for annulment in a case concerning access to documents. The General Court

133

See, for example, Case 973/2012/ANA.

Ian Harden

1149

43.130

43.131

43.132

43.133

Part I – Commentary on the Articles of the EU Charter

granted leave.134 A further measure that could be introduced with the cooperation of other institutions is to speed up the handling of complaints about refusal of access to documents, an area where rapid results have already been achieved in some cases.135 43.134 As regards possible developments of the European Union that could have an impact on the Ombudsman remedy, ingenious constructions designed to circumvent political and legal problems risk narrowing its scope. For example, the Ombudsman has already had occasion to note with regret that, in setting up the European Financial Stability Facility and the European Stability Mechanism outside the framework of the Union, the EU Member States concerned made no provision for an ombudsman remedy.136 On the other hand, the many fields in which administration is shared between the EU and Member States levels make the quality of public administration in the Member States a matter of common concern. In order for ombudsman remedies in the European Union to be fully effective, at both the EU and the national levels, deeper cooperation within the framework of the European Network of Ombudsmen may be required in the future.137

134 Case T-44113 AbbVie Inc and AbbVie Limited v European Medicines Agency (Order of the Court of 11 September 2013). 135 See, for example, Case 2609/2010/BEH. 136 Case 2113/2012/MF. 137 PN Diamandouros, ‘The European Ombudsman and the Application of EU Law by the Member States’ (2008) 1(2) Review of European Administrative Law 5–37; C Harlow and R Rawlings, ‘Promoting accountability in multi-level governance: a network approach’ (2007) 13 European Law Journal 542–62.

1150

Ian Harden

Article 44 Article 44 Right to Petition Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to petition the European Parliament.

Text of Explanatory Note on Article 44 The right guaranteed in this Article is the right guaranteed by Articles 20 and 227 of the Treaty on the Functioning of the European Union. In accordance with Article 52(2) of the Charter, it applies under the conditions defined in these two Articles.

Select Bibliography European Parliament resolution on European citizens right to petition A5–0429/2001 of 27.11.2001. M Horspool, The Concept of Citizenship in the European Union in The European Union after Lisbon (Heidelberg, Springer, 2012) 279–93. H Lax, ‘Om framställningar till Europaparlamentet’ in H Kaila (ed), Yksilön oikeusasema Euroopan unionissa (Turku/Åbo, Åbo Akademi. Institutet för mänskliga rättigheter, 2008) 491–99. M Lindfelt, Legitimacy, Constitutionalism and European Integration in Legitimacy: the Treasure of Politics (Frankfurt am Main, Peter Lang, 2011) 123–39. ——, Fundamental Rights in the European Union. Towards Higher Law of the Land? A Study of the Status of Fundamental Rights in a Broader Constitutional Setting (Åbo, Åbo Akademi University Press, 2007). Report on the deliberations of the Committee on Petitions during the year 2009 (2009/2139 (INI)) 7.6.2010. Report on the institution of the petition at the dawn of the 21st century according to which the time between the registration and initial consideration of a petition can be up to one year A5–088/2001 of 19.3.2001.

A. Field of Application of Article 44 The right to petition as an extrajudicial instrument is recognised in many constitutions 44.01 of the Member States of the EU. It is an instrument mainly connected with the office of Ombudsman, having the role of supervising courts and other public authorities dealing with unlawful actions.1 The right to petition to the European Parliament was formally

1 The origin of the office of Ombudsman is strongly connected with the Nordic countries. In 1809, Sweden created its Ombudsman of Justice. The Ombudsman institution was created in Finland in 1919. Both Finland and Sweden upheld the Office of Chancellor of Justice and the Ombudsman institution dealing with complaints.

Part I – Commentary on the Articles of the EU Charter

recognised in Treaty context with the adoption of the Treaty of Maastricht in 1992, transforming petitions based on Community custom to a protected right recognised in treaty context. Article 20 provides for the right of every citizen of the Union to petition the European Parliament in accordance with Article 227 (ex Art 194 EC). Article 227 provides as follows: Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have the right to address, individually or in association with other citizens or persons, a petition to the European Parliament on a matter which comes within the Union’s fields of activity and which affects him, her or it directly.

44.02 There is in other words a close link between Article 44 of the Charter with the right to petition recognised in EU treaty law. Article 44 however does not apply to any right of petition that may be recognised and exist under national law. Article 44 is limited solely to the right to petition to the European Parliament in matters falling within the scope of EU law.

B. Interrelationship with Other Provisions of the Charter 44.03 It is clear that the right to petition the European Parliament has a close connection to the right to apply to the European Ombudsman in cases of maladministration. Article 20 TEU is formulated as follows: The right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.2

44.04 The office of the European Ombudsman was established by the Treaty of Maastricht to deal with complaints of maladministration by the institutions and bodies of the European Community. This was a new way of bringing the EU closer to its citizens and a follow-up to the right to petition to the Parliament. The Ombudsman has a very wide discretion with regard to the merits of complaints, ie how he deals with the complaint.3 The Ombudsman’s first and most essential task is to establish whether a Community institution or body has acted lawfully. An inquiry into alleged maladministration should identify the facts and the rules and principles which the institutions and bodies have failed to respect. Failure to act in accordance with the law is maladministration. Administrative irregularities and omissions, abuse of power, negligence, unlawful procedures, unfairness, malfunction or incompetence, discrimination, avoidable delay and failure to provide information would all fall within the mandate of the Ombudsman, while the Committee on Petitions would tend to deal with complaints having a political dimension. 2 A complaint to the Ombudsman must concern a possible maladministration in the activities of the Union institutions and bodies, with the exception of the Court of Justice or the Court of First Instance in their respective judicial role. The notion of ‘activity’ is to be interpreted broadly, extending also to inactivity by the institutions and bodies of the Union. The European Parliament elects the Ombudsman for a period of five years. On the office and mandate of the Ombudsman, see commentary on Article 43 in this volume. 3 Case T-209/00 Lamberts v European Ombudsman (Judgment of 10 April 2002) [57].

1152

Mats Lindfelt

Art 44 – Right to Petition

Article 44 is also linked with Article 41 of the Charter recognising the right to good 44.05 administration. The EU institutions and bodies shall act fairly, impartially and within a reasonable time in order to fulfil the requirement of good administration. Article 41 also recognises that ‘every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language’. The right to petition and to submit a petition may be done so in all official EU languages.4 Article 47 of the Charter guarantees the right to an effective remedy, stating that 44.06 ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.’ This article is especially a guarantee for the right to an effective remedy and a fair trial before a court of law, but can also be implicitly interpreted as a guarantee for the right to petition as a form of non-judicial remedy for enforcement of EU law.

C. Sources of Article 44 Rights The Charter guarantees the right to petition under the same conditions as provided for 44.07 in Articles 20 and 227 of the EC Treaty, in accordance with Article 52(2) of the Charter.5 In accordance with Annex VI of the Rules of Procedures of the European Parliament, the Committee of Petitions ‘is responsible for matters relating to petitions [Art 20], considerations thereof and action to be taken in connection therewith, and relations to the Ombudsman’. Chapter XXIII of the Rules of Procedure provides in Articles 201, 202 and 203 for details with regard to the functioning of the Committee on Petitions and the right to petition in itself.6 The right to petition is recognised in the Inter-American Declaration of the Rights 44.08 and Duties of Man, Article XXIV of which provides that ‘Every person has the right to submit respectful petitions to any competent authority, for reasons of both general or private interest, and the right to obtain a prompt decision thereon’.7 A parliament, as a democratic institution and a legislator, has an important role in the providing the judicial and non-judicial structure of monitoring and upholding the standards of democratic principles and fundamental rights standards. A parliament has several ways of exercising its powers vis-à-vis government policy and accomplishment of the policy chosen. Parliamentary work in itself is usually carried out outside the framework of plenary session, through committees responsible for legislative proposals within specified fields.

4

On the right to good administration, see commentary on Art 41 in this volume. Art 52(2) of the Charter: ‘Rights recognized by this Charter which are based on the Community Treaties or by the Treaty on European Union shall be exercised under the Conditions and within the Limits defined by those treaties’. Art 44 has as its basis former EC treaty provisions, as confirmed in the EU Charter Presidium explanations relating to the complete text of the Charter. CHARTE 4473/00, Convent 49. 6 The text of the Rules of Procedure of the European Parliament are published on the European Parliament website www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+RULES-EP+20090714+RULE201+DOC+XML+V0//EN&language=EN&navigationBar=YES. 7 American Declaration of the Rights and Duties of Man, OAS Res XXX, adopted by the Ninth International Conference of American States (1948). The declaration is not a legally binding treaty. 5

Mats Lindfelt

1153

Part I – Commentary on the Articles of the EU Charter

44.09

The European Parliament is also divided into committees having specific roles in addressing human rights issues.8 The Committee on Petitions has a specific role in handling all petitions submitted by private or judicial persons to the European Parliament falling within the scope of EU affairs. The Committee has a specific role in addressing petitions from EU citizens carrying out investigations in order to resolve possible infringements of citizens’ rights falling within the scope of EU law, and by working with national authorities on issues related to the implementation and application of European laws. The right to petition is an integral part of the EU citizenship concept, as provided for in the Lisbon Treaty.9 With the establishment of EU citizenship in 1993 in the Maastricht Treaty, the European Union wanted to place the Member State citizens at the centre of EU activities and strengthen the sense of European citizenship and identity. The right to petition to the European Parliament is part of a broader concept of EU citizenship.10 44.10 The origin of the right to petition to the European Parliament can be found in an EP resolution of 1977 demanding the right to petition for citizens of the Community.11 In 1981, after the first direct elections to the European Parliament, the European Parliament amended its Rules of Procedure, formally endorsing the right of petition for Community citizens. The Committee on Petitions was established in 1987. The right to petition was recognised as a fundamental right in Article 23 of the Declaration of Fundamental Rights and Freedoms in 1989, providing that ‘Everyone shall have the right to address written requests or complaints to the European Parliament’.12

D. Analysis I. General Remarks 44.11 The right to address the European Parliament as well as the European Ombudsman offers a cheap and a relatively easy way to make a complaint regarding the activity or inactivity of Union institutions as well as Member States in implementing EU legislation and carrying out Union policies at the national level. In addition to these institutions separately mentioned in treaty context, citizens have the option of addressing the European Commission having a specific mandate to oversee the application of Union

8 The Committee on Civil Liberties, Justice and Home Affairs, the Committee on Women’s Rights and Gender Equality and the Committee on Foreign Affairs with its subcommittee on human rights dealing with human rights issues in third countries. 9 Consolidated version of the Treaty on functioning of the European Union [2010] OJ C83. Art 20 of the Lisbon Treaty provides that citizens have the right to ‘petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language’. 10 On the concept of citizenship in the European Union, see M Horspool, The Concept of Citizenship in the European Union in The European Union after Lisbon (Heidelberg, Springer, 2012) 279–93. 11 [1977] OJ C/299/26. 12 Declaration of Fundamental rights and Freedoms [1989] OJ C120/51. The declaration by the Parliament is a non-legislative resolution.

1154

Mats Lindfelt

Art 44 – Right to Petition

law.13 These options including the right to petition are to be seen as citizenship instruments that fall outside the scope of judicial remedies, but come closer to what can be identified as forming part of citizenship initiative and democratic channels for the citizens to make his or her voice heard. The Lisbon Treaty has strengthened the element of democracy in the EU by, for example, creating a role for national parliaments in European matters, and introducing a European Citizens’ Initiative.14 The trend of strengthening the democratic input into the legislative process has been taken a step further with the Lisbon Treaty in Article 11 by the creation of a citizens’ legislative initiative, which provides that ‘not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties’. The European Citizens’ Initiative is intended as creating an ever-closer union amongst the Union’s citizens. This new instrument for citizens to initiate new legislation within the scope of EU law gives the citizen the right to petition in cases where the Commission may have omitted to take legislative action. The petition might perhaps function as a useful fundamental right to challenge the Commission, by mobilising European grass-roots opinion in the generation of policy initiatives for deliberation by the European Parliament, in cases where the Commission may have been acting passively.

II. Scope of Application (a) Admissibility Criteria The right to submit a petition is not restricted to EU citizens, despite the formulation in 44.12 Article 20 that only citizens have the right to petition the European Parliament. Article 227 in the treaty makes it clear that non-citizens, natural or legal persons, residing or having their registered office in a Member State also have the right to address the European Parliament. Ratione personae, the right to submit a petition therefore includes citizens of the EU, residents of the Member States, and legal persons having their registered office in a Member State. The field of admissibility ratione personae was extended in 1993 by the European Parliament amending its Rules of Procedure by adding a new paragraph providing for the possibility of natural or legal persons being neither citizens of the EU nor residing in a Member State or having a registered office in a Member State to submit a petition being registered and filed separately. In accordance with Article 201(10) of the Rules of Procedure, the President shall send a monthly record of such petitions to the Committee on Petitions, which may wish to consider petitions considered worthwhile, ie raising issues falling within the activities of the Union. Non-resident citizens have in other words no automatic right to address the European Parliament ratione personae.

13 In accordance with Art 17 TEU, ‘The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union.’ 14 National parliaments act as ‘watchdogs’ with reference to the principle of subsidiarity.

Mats Lindfelt

1155

Part I – Commentary on the Articles of the EU Charter

This is, however, a result of the European Parliament’s willingness to include a possibility of allowing the right of non-citizens to submit petitions falling under EU law. 44.13 A petition may be sent by post or by an online form in one of the official languages of the Union in accordance with Article 20(3). Petitions written in any other language will be subject of consideration only if the petitioner has attached a translation or summary in one of the official languages of the EU.15 Article 201(2) of the Rules of Procedure provides that the author must be identified, ie the petition shall include the name, nationality and permanent address of the petitioner. The petitioner may request the petition to be treated confidentially. There is a formal requirement that the petitioner, natural or legal person, must be affected directly by measures taken by the institutions and bodies under EU law or by an activity falling within the scope of Union law. The locus standi requirement has been interpreted broadly, in that there is no requirement for a petitioner to prove an exclusive interest in order for a petition to meet admissibility criteria. Actio popularis are therefore excluded, as the right to petition must be exercised based on a certain interest to file a petition. Matters falling within the Union’s field of activity affect the individual more and more directly without there being a need to demonstrate exclusive interest. Environmental pollution may constitute as an example. In the event of an environmental catastrophe, the resulting pollution might have effects affecting a large amount of people directly.16 A petition may be submitted individually or in association with other citizens or persons.17 Besides the above-mentioned formal requirements of admissibility ratione personae, the petition must fulfil requirements ratione materiae. 44.14 In accordance with Article 227, the petition must fall within the Union’s field of activity. Article 201(1) of the Rules of Procedure of the European Parliament, however, provides that any citizens and natural or legal person have the right to petition ‘on a matter which comes within the European Union’s fields of activity and which affects him, her directly’. Furthermore, Article 201(5) provides that ‘petitions entered in the register shall be forwarded by the President to the Committee responsible, which shall ascertain whether the petitions registered fall within the sphere of activities of the European Union’. This does not, however, mean that the right to petition would generally have been extended to include the activities of the institutions of the Union to cover the second and third pillars. The European Parliament Rules of Procedure in Article 201 provide only for a general right to receive petitions with regard to the activities of the Union’s institutions. Consequently, the second and third pillar matters are excluded from the issues being subject to a petition. Petitions rationae materiae are therefore admissible concerning the content of the EU treaty and secondary legislation connected with the action by Union institutions and bodies and Member States implementing EU law. 44.15 Some 40–50 per cent of petitions are declared inadmissible.18 These mostly concern internal matters of the Member States falling outside the scope of Union law. The right to petition to the European Parliament is now recognised in treaty context providing a

15

Rules of Procedure of the European Parliament, Art 201(3). During the parliamentary year 2003–04, the Committee of Petition received 15 collective petitions with over 1,000 signatories each. 17 Rules of Procedure of the European Parliament, Art 201(1). 18 Report on the deliberations of the Committee on Petitions during the year 2009 (2009/2139 (INI)). 16

1156

Mats Lindfelt

Art 44 – Right to Petition

legal basis for the right to petition formerly being based on custom.19 The EU Charter has now recognised the right to petition to the European Parliament as a fundamental right of Union law, also forming part of binding treaty law.20 The Committee on Petitions, on the basis of an opinion of the legal service of the European Parliament, has made it a general rule to suspend consideration of petitions at the same time being subject to consideration by a national or EU court.21 Petitions can be directed against the institutions and bodies of the Union as well as to Member States implementing EU law. A complaint directed against the European Ombudsman regarding alleged maladministration can therefore also be sent to the European Parliament as a petition, but not the other way around.

III. Specific Provisions (a) Examination of Petitions The scope of the right to petition is broad. Besides the requirement that the petition 44.16 must fall within the activities of the EU competence, the petition may consist of an individual or collective complaint or a request for an intervention or concern the legislative activity of the Union. Admissible petitions can either be transferred to the Commission requesting for action or information, be forwarded to the legal service of the European Parliament or forwarded to other parliamentary committees requesting for information or opinion. Most of the petitions concern the activities or inactivity of the Member States concerning issues of Union law. Petitions are may be referred to other standing Committees of the European Parliament for an opinion or information or be sent to the Commission for request of further information or be an incentive for the Commission to take appropriate action needed.22 Petitions can roughly be divided into three categories. First, petitions where the peti- 44.17 tioner calls on the Union to legislate or modify its legislation. Secondly, petitions drawing upon alleged infringements of the rights embodied in the EU Charter of Fundamental Rights; and thirdly petitions where the petitioner draws attention to an infringement or improper implementation of Union law being of disadvantage of an individual’s legitimate interest or his or her personal rights.23 Most of the work of the Committee on Petitions is devoted to petitions concerning infringements of the rights guaranteed under the treaties or secondary legislation, while greater attention has been given to petitions

19 See Inter-institutional declaration by the Commission, the European Parliament and the Council [1989] OJ C120/90. 20 Report on the deliberations during the parliamentary year 2009 A7–0186/2010 of 7.6.2010. The EP received 1,506 petitions in 2007 and 1,849 petitions in 2008. In comparison, during the parliamentary year 1985–86 a total of 234 petitions were filed by the European Parliament and during parliamentary year 1992–93 a total of 900 petitions were filed by the European Parliament. 21 See report on the institution of the Petition at the dawn of the 21st century A5–0088/2001, p 12 of 19.3.2001. 22 The Commission has, contingent upon the resources being available to conduct investigations, undertaken to supply written and oral information on petitions at the request of the Committee of Petitions. This is based upon the inter-institutional agreement between the European Parliament, Commission and the Council of 1990. 23 See European Parliament resolution on European citizens right to petition A5–0429/2001 of 27.11.2001, pp 7–8.

Mats Lindfelt

1157

Part I – Commentary on the Articles of the EU Charter

concerning calls for new or modified legislation by the European Union, being aware that the European Parliament has not the power to initiate new legislation. In particular, the European Parliament receives a great number of petitions dealing with issues of the environment, freedom of movement, fundamental rights and justice, consumer protection, internal market, employment and social affairs.24 The environment represents the biggest concern amongst the citizens. This is hardly surprising as the division of labour between the EU and the Member States as to competences is by no means clear to the citizen. Almost half of the petitions are deemed inadmissible due to confusion as to which matters fall within the competence of the EU and which fall within the mandate of the Member States. Another field that is expected to raise petitions to the European Parliament is questions concerning the field of applications of fundamental rights protected by the European Union. This is due to the new constitutional status of the EU Charter of Fundamental Rights. The EU fundamental rights doctrine is connected with the scope of application of EU law and more generally, on the abstract level, follows the division of competence between the EU and the Member States.25

IV. Limitations 44.18 Article 52(2) sets out in a rather straightforward manner that, when a Charter provision is based on EU treaty provisions, it shall be exercised under the same conditions and within the limits defined by those treaties. The intention is therefore that the Charter provisions should not in any way alter the scope of the rights based on provisions in the EU treaties. Article 52(2) no doubt was intended to be a neutral confirmation of the provision that are based on treaty provisions without widening or reducing the scope of application or the level of protection.26 The right to petition, as forming part of the EU fundamental rights catalogue, is given the status of a fundamental right within the EU legal order without altering the scope of application from its original treaty provision.

V. Remedies 44.19 Petitions to the European Parliament and complaints to the European Ombudsman are the two main ways by which the European citizens and persons residing within the EU are able to address the Union institutions with regard to monitoring the implementation of EU law a posteriori. These two institutions represent a means of direct communications with regard to institutional activity of the Union contributing to the reinforcement of democratic control over EU legislation and administration constituting a powerful control over the daily activities of the EU and the Member States in implementing EU law. The Ombudsman will, however, not instigate an inquiry if for instance the Committee on Petitions has dealt with the matter and no new evidence is brought to

24

Report on the deliberations of the Committee on petitions during the year 2009. M Lindfelt, Fundamental Rights in the European Union. Towards Higher Law of the Land? A Study of the Status of Fundamental Rights in a Broader Constitutional Setting (Åbo, Åbo Akademi University Press, 2007) 130. 26 Ibid p 143. 25

1158

Mats Lindfelt

Art 44 – Right to Petition

the attention of the Ombudsman.27 The office of the Ombudsman and Committee on Petitions in the Parliament deals with cases of complaints of EU citizens and are to be seen as complementary instances, rather than competing organs. The Ombudsman is a quasi-judicial body dealing with individual complaints and allegations of maladministration by EU bodies, while the Committee on Petitions is dealing with issues of a more broad character concerning problems in administration in the European Union. If a petition concerns an alleged infringement of Union law by a Member State, 44.20 the Commission may start proceedings before the ECJ under Article 258 TEU. The petitioner is, however, not in a position to sue an EU institution directly as a result of a petition having been successful in the Committee on Petitions. The European Parliament can however instigate annulment proceedings, ie judicial review of acts adopted by EU institutions before the European Court of Justice, under Article 263(2) TEU. A petitioner can also instigate similarly instigate annulment proceedings as a result of a ‘successful petition’ on the basis of Article 263(4) stating ‘that any natural of legal person may, under the conditions laid down in the first and second paragraphs institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures’. The threshold is high, as it must fulfil the criteria of both direct and individual concern. The judicial protection offered under EU law is based primarily on the preliminary rulings procedure, and secondly on Article 230(4) of the TEC.

E. Evaluation I. A Tool for Democratic Control Fundamental rights as a concept are in the national constitutional traditions seen as 44.21 the core of the legal order constituting the foundation of a legal order. Constitutional fundamental rights are ‘to be understood as the ultimate limit to the powers of the legislative branch, the executive branch and the judiciary. Fundamental rights are an important value in the modern European (national) constitutional setting together with democracy and respect for the rule of law’.28 Respect for fundamental rights is to be seen as a precondition for the validity of specific laws. The right to petition has been part and parcel of ‘constitutional doctrine’ of the European Union with the introduction of the citizenship concept in 1993. With adoption of the EU Charter of Fundamental Rights in 2000 as an inter-institutional agreement and now forming part of the ‘constitutional treaty for the European Union’, the right to petition to the European Parliament is recognised as a constitutionally protected fundamental right, this forming as an essential tool, together with other extrajudicial tools, for citizens democratic control over the implementation and execution of European Union law. The fundamental right to petition and how it can be used and executed by the citizens has been made relatively easy for the ordinary citizen to make his or her voice heard. This instrument has been

27 28

Complaint 646/97, Annual Report of 1997, p 29. Lindfelt (n 25), p 291.

Mats Lindfelt

1159

Part I – Commentary on the Articles of the EU Charter

introduced by the Union precisely in order to make the distance between Brussels and the EU citizen closer in cases where the citizen’s voice can be heard in a concrete way. Mistrust towards the European project is now more evident than ever before. In times of great mistrust, it is important to underline the existence of openness and the possibility for direct contact between the citizens and the European Union, which have been strengthened by the constitutional recognition of the right to petition. Citizens’ petitions to the parliament play also a significant role for the Commission in addressing and taking action against Member States concerning the implementation and application of Union law within the Member States.29 44.22 The institution of the petition is important not only for the citizens, but also for the Union institutions themselves. The institutions and bodies of the Union have a direct link of information provided for by the citizens with regard to problems encountered in implementing Union law. The Committee on Petitions can offer the EU and the Member States an overview of problems encountered by the citizens with regard to European and national administration. The petition therefore can have an important role to play in the overall development and integration of the Union. Despite the importance of the right to petition, problems with these institutions occur. A big problem constitutes in the delays, which build up in the processing of petitions, ie the time between the registration of a petition and its initial consideration.30 To this end, the Committee of Petitions has drawn attention to the need, inter alia, to review the 1989 Inter-institutional agreement in order to shorten the time required to deal with petitions by defining a clear, coherent and binding framework for cooperation with the European Parliament.31 44.23 In light of the wish to bring the EU closer to its citizens by making the institution of petition better known among the citizens of the EU, it is natural that the institution handling petitions also is in a position to do so within a reasonable timeframe.32 The constant increase in the number of petitions each year shows that this recognised right has earned its place among the fundamental rights identified in the EU charter of fundamental rights as a constitutionally important right to be protected by the European Union and its institutions. The European Parliament has made it technically easy to submit a petition to the Committee on Petitions, drawing the attention of Parliament to matters of citizens’ concern. Public awareness of this particular right is however not very high as the number of petitions could be much higher than some 2,000 petitions received in recent years. It is in fact a low figure, bearing in mind that the democratic deficit that has been on the agenda for the last 20 years or so has given rise to no significant increase of petitions in terms of figures. What however is problematic is the relatively high percentage of applications deemed as inadmissible. This suggests clearly that the EU has a big task in raising public awareness of the European Union and its mission for EU citizens.33

29 H Lax, ‘Om framställningar till Europaparlamentet’ in H Kaila (ed), Yksilön oikeusasema Euroopan unionissa (Turku/Åbo, Åbo Akademi. Institutet för mänskliga rättigheter, 2008) 497. 30 See report on the institution of the petition at the dawn of the 21st century, according to which the time between the registration and initial consideration of a petition can be up to one year. A5–088/2001 of 19.3.2001, p 11. 31 Ibid p 13. 32 See Report on the deliberations of the Committee on Petitions during the parliamentary year 2002–03. A5–0239/2003 of 19.6.2003, pp 9–11. 33 M Lindfelt, Legitimacy, Constitutionalism and European Integration in Legitimacy: the Treasure of Politics (Frankfurt am Main, Peter Lang, 2011) 129–45.

1160

Mats Lindfelt

Article 45 Article 45 Freedom of Movement and of Residence 1. Every citizen of the Union has the right to move and reside freely within the territory of the Member States. 2. Freedom of movement and residence may be granted, in accordance with the Treaties, to nationals of third countries legally resident in the territory of a Member State.

Text of Explanatory Note on Article 45 The right guaranteed by paragraph 1 is the right guaranteed by Article 20(2)(a) of the Treaty on the Functioning of the European Union (cf. also the legal base in Article 21; and the judgment of the Court of Justice of 17 September 2002, Case C-413/99 Baumbast [2002] ECR I-7091). In accordance with Article 52(2) of the Charter, those rights are to be applied under the conditions and within the limits defined by the Treaties. Paragraph 2 refers to the power granted to the Union by Articles 77, 78 and 79 of the Treaty on the Functioning of the European Union. Consequently, the granting of this right depends on the institutions exercising that power.

Select Bibliography M Dougan, ‘The Constitutional Dimension to the case law on Union Citizenship’ (2006) 31 European Law Review 613. D Kochenov, ‘The essence of EU citizenship emerging from the last ten years of academic debate: beyond the cherry blossoms and the moon?’ (2013) 62 International Comparative Law Quarterly 97. E Spaventa, Free Movement of Persons in the European Union: Barriers to Movement in their Constitutional Context (Alphen-aan-der-Rhein, Kluwer Law International, 2007). MJ Van den Brink, ‘EU Citizenship and EU Fundamental Rights: Taking EU Citizenship Rights Seriously?’ (2012) 39 Legal Issues of European Integration 272.

A. Field of Application of Article 45 Title V of the Charter, by and large, reproduces provisions of the TEU/TFEU. For this 45.01 reason, it has been criticised in that its provisions appear, at least at first sight, to be redundant. This is especially the case in relation to Article 45 Charter which, as other provisions in the same title, is addressed only to citizens (para 1), or provides no substantive right (para 2). Its first paragraph reproduces Article 20(2)(a) TFEU, providing a right to move and reside for Union citizens; pursuant to Article 52(2) Charter any TFEU/TEU Treaty-derived right must be exercised ‘under the conditions and within the limits’ defined by the relevant Treaty itself, hence excluding, bar some very creative interpretation, any autonomous life for Treaty-derived Charter rights.

Part I – Commentary on the Articles of the EU Charter

45.02

Article 45(2), on the other hand, seems tautological: given that the Charter does not modify, or affect, the repartition of competences between Member States and Union,1 the fact that the Charter provides that a competence conferred by the Treaties on the Union ‘may be’ exercised appears to add very little to the status quo. 45.03 Be that as it may, this is not to deny the absolute centrality of the free movement rights for the European integration project, both the most tangible and the most successful rights conferred by the Treaty (and now also by the Charter) on individuals. Furthermore, it is the exercise of these rights that might act as a trigger for the enjoyment of Union fundamental rights,2 whether as general principles or as Charter rights. And the very inclusion of EU Citizens’ rights in the Charter confirms the gradual shift, first rendered explicit in the Maastricht Treaty with the creation of Union citizenship, from the internal market to a more citizen-focused European Union.3

B. Interrelationship of Article 45 with Other Provisions of the Charter 45.04 The impact of Article 45 Charter appears to be very limited: first of all, only Article 45(1) is justiciable; secondly, given that it reproduces a Treaty right, it merely reinforces existing obligations already binding both on the European Union institutions and on the Member States. Indeed, the Treaty right is more wide-ranging than the Charter equivalent, since it is a free-standing right, ie it can be exercised autonomously without the need to establish any other link with EU law (as is the case for Charter rights). In fact, it is through the exercise of the Treaty free movement provisions that citizens might establish a link with EU law that allows them to claim a Charter right.4 45.05 The Charter provisions most relevant to Article 45 are Articles 15 and 21. In particular, Article 15(2) Charter provides for the right of Union citizens to seek employment or/ and work as employed or self-employed in any of the Member States. Article 21(2) Charter, on the other hand, reproduces the prohibition of discrimination on grounds of nationality within the scope of application of the Treaties. As we shall see in more detail below, the rights granted by Article 45 Charter encompass the right to move in order to seek or take up employment/self-employed activity; one of the most tangible

1

See Art 6 TEU and Art 51(2) Charter. EU fundamental rights, and now the Charter, apply to national rules only insofar as the Member State is implementing EU law, or acting within its scope. The latter situation arises when an act of the state is derogating or limiting one of the rights of free movement (see eg Case C-260/89 ERT [1991] ECR I-2925; Case C-36/02 Omega [2004] ECR I-9709). Hence, the free movement rights have also been used with the sole aim of enforcing fundamental rights claim against the Member States; see eg Case C-60/00 Carpenter [2002] ECR I-6279. 3 See also G de Búrca, Human Rights: the Charter and Beyond, Jean Monnet Working Papers, 2001, http:// centers.law.nyu.edu/jeanmonnet/archive/papers/01/013601.html. 4 Following the proclamation of the Charter there were some doubts as to whether its provisions applied to Member States only when they implemented EU law (as the text of Art 51 seems to suggest) or also when they act within the scope of EU law, as the Court’s case law and logic would demand. The explanations to Art 51 also indicated the latter as the correct interpretation; this has now been confirmed by the Court, see eg Case C-256/11 Dereci (Judgment of 15 November 2011) and Case C-617/10 Fransson (Judgment of 26 February 2013). 2

1162

Eleanor Spaventa

Art 45 – Freedom of Movement and of Residence

benefits arising from the right to move is the ability to claim (though not necessarily to obtain) equal treatment in relation to almost all matters, including social security and welfare provision. On the other hand, Article 52(2) Charter limits the possibility for an autonomous 45.06 ‘life’ of Article 45; the former provision states that Treaty-derived rights ‘shall be exercised under the conditions and within the limits defined by those Treaties’.5 As we shall see in more detail below, those limits include both the limitations contained in the Treaty itself; and the limitations contained in secondary legislation, and especially in Directive 2004/38.6 Article 52(1) Charter, the general derogation clause, provides that all limitations to Charter rights must meet the necessity and proportionality requirements. In relation to the free movement provisions, the same requirements have long been established through the case law of the Court of Justice.7

C. Sources of Article 45 Rights As mentioned above, and as clarified in the explanations, Article 45(1) Charter repro- 45.07 duces verbatim Article 20(2)(a) TFEU. The right to move and reside within the territory of the Member States was first introduced by the Maastricht Treaty, before then movement being a prerogative of those economically active.8 As we shall see in more detail below, the right to move and reside in Member States is qualified in Article 21 TFEU, which refers to ‘limitations and conditions laid down in the Treaty and by the measures adopted to give them effect’. The most relevant ‘limitations and conditions’ are those contained in Directive 2004/38, which are the focus of detailed examination further below. Movement rights can also be limited for reasons of public health, public security and public policy.9 Article 45(2) refers to the power granted to the Union by Title V (Part III) of the 45.08 TFEU in relation to migration and movement of third country nationals. It should be recalled that the United Kingdom and Ireland—unless they make an ad hoc decision to the contrary—and Denmark do not take part in those measures.10 Consequently, even should Article 45(2) Charter be found to be more than merely declaratory, its application would be confined to the EU institutions and to those Member States participating to the adoption of the above-mentioned measures.

5

See Case C-233/12 Gardella (Judgment of 4 July 2013) [39]. Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L229/35 (hereinafter Directive 2004/38). 7 See in relation to citizenship residency rights, eg Case C-413/99 Baumbast and R [2002] ECR I-7091. 8 It should be noted that ‘passive economic actors’, ie those whose economic link consists in parting with money, and in particular tourists, were afforded some protection by Art 56 TFEU which extended to service recipients following the ruling in Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377; for tourists see eg Case 186/87 Cowan [1989] ECR 195; Case C-45/93 Commission v Spain [1994] ECR I-911. Even following the introduction of Union Citizenship, the Court relied on Art 56 TFEU in order to establish a link with the Treaty and afford equal treatment in relation to court proceedings in Case C-274/96 HO Bickel and V Franz [1998] ECR I-1121. 9 See Directive 2004/38 as well as Arts 45(3) and 52(1) TFEU. 10 See Protocol 21 on the position of the United Kingdom and Ireland in respect of the area of freedom security and justice; and Protocol 22 on the position of Denmark. 6

Eleanor Spaventa

1163

Part I – Commentary on the Articles of the EU Charter

D. Analysis I. General Remarks 45.09 The significance of Article 45 seems to be rather limited, since the Charter applies only to the EU Institutions and to the Member States when they are implementing Union law. As a result, Article 45 could be relevant in the review of acts of the EU institutions, but since the latter are in any event bound by the Treaty, and since Treaty provisions are lex specialis, it is very unlikely that challenges to the legality of EU acts would be based on the Charter rather than the TFEU. The same can be said in relation to Member States implementing Union law. For the rest, the Charter does not grant free standing rights; rather the enjoyment of Charter rights is conditional upon the individual having established a link with Union law, link which is most commonly created through the exercise of one of the free movement or citizenship rights contained in the TFEU. It is hence very difficult to foresee circumstances where Article 45 Charter could be usefully relied upon by individuals.

II. Scope of Application—Article 45(1) 45.10 The free movement rights contained in Article 45 Charter are dependent upon possession of Union citizenship; this in turn is, for the time being, conditional upon possession of the nationality of one of the Member States. Consistently, the Court has clarified that it is for national law alone to determine who is a citizen;11 more controversially, the Court has also held that the withdrawal of national citizenship might fall within the scope of Union law, and hence be subjected to scrutiny in relation to proportionality and fundamental rights, if it entails the loss of Union citizenship status, ie when the individual does not possess citizenship of another EU Member State.12 The right to move and reside within the EU is subject to the requirements contained 45.11 in the Treaty and in secondary legislation, especially the conditions now detailed in Directive 2004/38. When approaching the analysis of the free movement rights, a caveat is necessary: those rights are conferred to Union citizens directly by the Treaty (and now by the Charter); this means that any limitation or condition imposed on the exercise or enjoyment of those rights by either the Member States or the Union legislature must be necessary and proportionate;13 and must not deprive the movement/residence rights of their substance.14

11 And it is for national law alone to determine who is a citizen: Case C-369/90 Micheletti [1992] ECR I-4239; Case C-192/99 R v S of S for the Home Department Ex p Kaur [2001] ECR I-1237; C-200/02 Chen v S of S for the Home Department [2004] ECR I-9925. 12 Case C-135/08 Rottmann [2010] ECR I-1449; on the broader constitutional significance of the Rottmann decision, see D Kochenov and R Plender, ‘EU Citizenship: from an incipient form to an incipient substance? The discovery of the Treaty text’ (2012) 37 European Law Review 369; and T Konstadines, ‘La Fraternité Européenne? The extent of national competence to condition the acquisition and loss of nationality from the perspective of EU citizenship’ (2010) 35 European Law Review 401. 13 Eg Baumbast and R (n 7); see also below section D.IV(b). 14 Case C-34/09 Ruiz Zambrano [2011] ECR I-1177.

1164

Eleanor Spaventa

Art 45 – Freedom of Movement and of Residence

III. Right to Move, Right to Enter and Right to Exit All Union citizens have a right to move freely across the territory of the Union, upon 45.12 production of a valid document.15 No exit/entry visas or similar can be imposed on Union citizens; visas might be imposed on third country national family members, although those are obtained as a matter of right and not as a matter of discretion.16 The only reasons why Member States might limit the right of Union citizens and their family members to exit/enter their territory are those listed in the Treaty and detailed in Directive 2004/38: public policy, public security and public health. The latter can be used to justify a limit to movement only in the first three months of residence, and solely for infectious diseases listed by the World Health Organisation.17 As we shall see in more detail below, public policy and public security are also narrowly construed.18 Furthermore, limits to the right to move must always satisfy the proportionality test so that the longer the stay of the Union citizen in the host country, the more difficult it is for the Member State to deport them.19 It should be noted that Directive 2004/38 applies only to Union citizens who ‘move 45.13 to or reside in a Member State other than that of which they are national’,20 so that actions against the citizen’s own Member State continue to be covered exclusively by the TFEU.21 The issue of whether the Treaty provisions, and the Charter by implication, might be invoked lacking the cross-border element, ie in purely internal situations, is an open one.22

15 See generally c II Directive 2004/38. Failure to produce a document is not in itself a sufficient reason for the Member State to deny admission; rather the national authorities have to give the Union citizen (and her family member) reasonable time to prove identity (or family ties); see Art 5(4) Directive 2004/38 and Case C-459/99 MRAX [2002] ECR I-6591. 16 It should be noted that Directive 2004/38 grants rights to residence and equal treatment also to third country national family members, as listed in Art 2(2) Directive 2004/38; however, the scope of application of Art 45(1) Charter is more limited, as it applies only to Union citizens. 17 See Article 29 Directive 2004/38. 18 See Arts 27 et seq Directive 2004/38; but recently CJEU has been more lenient in accepting deportation for public policy/security reasons; see below n 62. 19 See Art 28 Directive 2004/38 which also provides a different regime for permanent residents, who can be expelled only on ‘serious’ grounds of public policy and security; and for Union citizens who have stayed in the host country longer than 10 years, who can only be expelled on ‘imperative’ grounds of public policy and security. Surprisingly, the Court has interpreted those conditions less strictly than previous case law might have suggested, see eg Case C-348/09 PI v Oberbürgermeisterin der Stadt Remscheid (Judgment of 22 May 2012). 20 Art 3(1) Directive 2004/38. 21 Cf also Case 175/78 R v Saunders [1979] ECR 1129. 22 See eg E Spaventa, ‘Seeing the Wood Despite the Trees? On the Scope of Union Citizenship and its Constitutional Effects’ (2008) Common Market Law Review 13; C Dautricourt and S Thomas, ‘Reverse discrimination and free movement of persons under Community law: all for Ulysses, nothing for Penelope?’ (2009) 34 European Law Review 433; A Lansbergen and N Miller, ‘European citizenship rights in internal situations: an ambiguous revolution? Decision of 8 March 2011, Case C-34/09 Gerardo Ruiz Zambrano v Office national de l’emploi (ONEM)’ (2011) 7 European Civil Law Review 287; P Van Elsuwege, ‘European Union Citizenship and the Purely Internal Rule Revisited: Decision of 5 May 2011, Case C-434/09 Shirley McCarthy v. Secretary of State for the Home Department’ (2011) 7 European Civil Law Review 308.

Eleanor Spaventa

1165

Part I – Commentary on the Articles of the EU Charter

IV. Right to Reside 45.14 The Union citizen’s right to reside ‘freely’ within the territory of the Member States is heavily qualified: following the introduction of Directive 2004/38, there are three different types of residence rights, which very much depend on duration of stay.23 The only truly ‘free’ right to reside is that of short-term visitors,24 ie Union citizens that travel to another Member State for a period of less than three months (which accounts for the great majority of movement within the Union).25 In this case, no condition can be imposed on visitors and they enjoy a qualified right to equal treatment, which excludes them from entitlement to social assistance.26 Furthermore, the right to stay of shortterm visitors can be terminated if they become an unreasonable burden on the social assistance system of the host Member State.27 45.15 Union citizens wishing to move and reside in another Member State for more than three months have to satisfy given requirements: either (a) they must be economically active; or (b) they must be economically independent, ie possess sufficient resources and comprehensive health insurance so as not to become an unreasonable burden on the host welfare system. After five years of lawful residence,28 Union citizens gain a right to permanent residence which is unconditional (ie no requirement to be satisfied) and entitles them to a full right to equal treatment.29 (a) Economically Active Migrants 45.16 Union Citizens who move in order to seek or exercise an economic activity as employed or self-employed enjoy an unconditional right to move and reside in any of the Member States,30 coupled with a full right to equal treatment.31 The rights for economically 23 This has been very appropriately termed ‘incremental approach’ to citizenship rights by C Barnard, ‘EU Citizenship and the Principle of Solidarity’ in M Dougan and E Spaventa (eds), Social Welfare and EU Law (Oxford, Hart Publishing, 2005) 157, 166. 24 Art 6 Directive 2004/38. 25 For statistical data see http://epp.eurostat.ec.europa.eu/statistics_explained/index.php/Tourism_trends, for tourism; and compare with data on internal migration available on http://epp.eurostat.ec.europa.eu/ statistics_explained/index.php/Migration_and_migrant_population_statistics. 26 See Art 24(2) Directive 2004/38; social assistance has been interpreted very narrowly in the context of work-seekers; see Joined Cases C-22 and C-23/08 Vatsouras and Koupatantze [2009] ECR I-4585, although it is doubtful whether that interpretation would extent to visitors who have no link with the employment market. 27 Art 14(1) Directive 2004/38; however pursuant to para 3 of the same article, expulsion can never be the automatic consequence of recourse to social assistance. 28 The Court has clarified that lawful residence before accession of the Union citizen’s home state to the EU might be taken into account towards the five years provided the conditions contained in the Directive were satisfied during the (prior) stay; see eg Case C-424 and 425/10 Ziolkowski et al (Judgment of 21 December 2011); Joined Cases C-147 and 148/11 Czop and Punakova (Judgment of 6 September 2012). The same reasoning applies to periods of residence accrued before the deadline for transposition of Directive 2004/38 expired (30 April 2006), see Case C-162/09 Lassal [2010] ECR 9217. 29 See Art 24 Directive 2004/38. 30 They are also protected upon returning to their home country, eg Case C-370/90 Singh [1992] ECR I-4265, and see below section D.V. 31 In relation to work seekers those rights are somehow more limited; if the work-seeker has not secured a job within three months of arrival, they might be asked to prove that they are still looking for, and have a genuine chance of finding, employment (Art 14(4)b). As mentioned above, work-seekers do not enjoy a full right of equal treatment, see Art 24(2) Directive 2004/38.

1166

Eleanor Spaventa

Art 45 – Freedom of Movement and of Residence

active migrants were included in the Treaty from its inception, being at the core of the European integration project, and were supplemented by generous provisions contained in secondary legislation.32 The free movement rights were innovative and ambitious for their time, granting an unqualified right to work in any of the Member States without being discriminated on grounds of nationality and without having to satisfy any immigration requirement (including work permits of any sort);33 the right to access social assistance and welfare provision in the host state on an equal basis to its own nationals;34 and granting extensive rights to migrants’ family members, including educational rights for their children.35 Furthermore, and in keeping with its teleological interpretation of the Treaty, the Court of Justice, from the very beginning, gave a broad interpretation to the personal and material scope of those rights. For instance, in order to be protected by the free movement of workers, freedom of establishment or free movement of services provisions, the Union citizens must perform (or receive) services for remuneration, since an ‘economic’ element is a precondition for the enjoyment of those rights. However, the Court was satisfied that whilst an element of remuneration is always necessary in order to be qualified as worker or self-employed, this might take the form of remuneration in kind (eg board and lodging), rather than be limited to monetary compensation.36 Similarly, whilst in order to be covered by the Treaty a service needs to be an ‘economic service’, ie a service provided for remuneration, it is immaterial whether the remuneration is paid by the recipient or by a third party. What matters is that someone at some stage has paid for it.37 The quantum of remuneration is also irrelevant, provided that the economic activity is genuine and not marginal or ancillary. For this reason, part-time workers, even when working only a few hours a week, are

32 Eg Directive 64/221 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health [1964] OJ Sp Ed 117; Regulation 1612/68 on the freedom of movement of workers within the Community [1968(1)] OJ Sp Ed 475; Directive 68/360 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families [1968(I)] OJ Sp Ed 485; Directive 73/148 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services [1973] OJ L172/14. All of the above legislation but for Regulation 1612/68 has been repealed by Directive 2004/38. 33 Originally Arts 48, 52 and 59 EEC, Directive 68/360 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families [1968(I)] OJ Sp Ed 485; Directive 73/148 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services [1973] OJ L172/14. 34 Art 7(2) Reg 1612/68. 35 See Art 12 Reg 1612/68; this has been generously interpreted so that a parent no longer working can gain a right to reside as a result of their children’s right to continue education in the host Member State, eg Case C-310/08 Ibrahim [2010] ECR I-1065; Case C-480/08 Texeira [2010] ECR I-1107; Czop and Punakova (n 28), which also clarified that the same reasoning does not apply if the parent is/was self-employed; and Case C-529/11 Alarape and Tijani (Judgment of 5 May 2013). 36 Case 196/87 Steymann [1988] ECR 6159. 37 Case 352/85 Bond van Adverteerders [1988] ECR 2085; on the other hand, if the economic element is lacking, the Treaty free movement of service provisions do not apply; see Case C-159/90 Grogan [1991] ECR I-4685. This is also true in relation to the resources necessary to gain a right to reside in relation to economically inactive people: there, the Court has held that such resources can be provided by a third party dismissing the Member State’s objection that that would leave the Union citizen (and hence the host state) more vulnerable to a change in circumstance; see Case C-408/03 Commission v Belgium (citizenship) [2006] ECR I-2647; and also Chen and others (n 11).

Eleanor Spaventa

1167

Part I – Commentary on the Articles of the EU Charter

included in the notion of ‘worker’,38 and as such have access to all welfare benefits on equal grounds to own-citizens. This means, of course, that the host welfare system can be relied upon by those workers who earn less than the minimum wage/threshold and who would then qualify for means-tested benefits. 45.17 As mentioned above, an economic migrant benefits from a full right to equal treatment in relation to all matters covered by the Treaty; this right not to be discriminated on grounds of nationality has been interpreted broadly, to encompass both discrimination in law (direct discrimination) and in fact (indirect discrimination). In particular, the latter concept has been pivotal to eradicate barriers resulting from long-standing regulatory habits, and the Court has made clear that neither intention, nor statistical information are relevant for a finding of indirect discrimination. Rather, it held that conditions imposed by national law must be regarded as indirectly discriminatory where, although applicable irrespective of nationality, they affect essentially migrant workers … or the great majority of those affected are migrant workers … where they are indistinctly applicable but can more easily be satisfied by national workers than by migrant workers … or where there is a risk that they may operate to the particular detriment of migrant workers.39

45.18 The right not to be discriminated against encompasses also the right to equal treatment in relation to welfare benefits and social assistance, so that any benefit payable by virtue of an individual’s status as a worker or residence on national territory, where the extension of the benefit to nationals of other Member States might facilitate free movement of workers’ protection, is also available to economic migrants.40 Furthermore, the Court also included, at least to a certain extent, work-seekers in the notion of ‘worker’, to ensure that work-seekers would benefit from the right to move to another Member State in order to seek employment.41 This case law has now been codified in Directive 2004/38 so that those looking for a job can move without having to satisfy any additional requirement; and can stay beyond the initial three months provided they continue to seek employment and have a genuine chance of being engaged.42 Pursuant to Article 24(2) Directive 2004/38, Member States are not obliged to confer entitlement to social assistance to work seekers; however, the Court has interpreted this exception narrowly and held that a benefit aimed at facilitating access to the employment market is not caught by the exclusion contained in Article 24(2) Directive 2004/38.43 45.19 If economically active migrants have always enjoyed protection in EU law, the situation is different for non-economically active citizens; as mentioned above, their Treaty status is of more recent derivation, and their rights are the result of an extensive hermeneutic effort by the Court. Whilst, at first, Member States appeared rather suspicious of this expansive

38

Eg Case 53/81 Levin [1982] ECR 1035; Case 139/85 Kempf [1986] ECR 1741. See for a comprehensive definition of the right not to be discriminated on grounds of nationality Case C-237/94 John O’Flynn v Adjudication Officer [1996] ECR I-2617 [18]. 40 Art 7(2) Reg 1612/68, see eg Case 207/78 Even [1979] ECR 2019. In Case 59/85 Reed [1986] ECR 1283, the Court interpreted the concept of equal treatment in social advantages encompasses equal treatment in relation to residency rights of one’s partner/spouse. 41 See Case 316/85 Lebon [1987] ECR 2811, which held that work-seekers did not enjoy a right to equal treatment in relation to social advantages; the case law then developed in light of the introduction of Union citizenship in Case C-138/02 Collins [2004] ECR I-2703; see generally M Dougan, ‘Free Movement: the Workseeker as a Citizen’ (2001) 4 Cambridge Yearbook of European Legal Studies 94. 42 Cf Art 14(4)(b) Directive 2004/38. 43 Vatsouras (n 26). 39

1168

Eleanor Spaventa

Art 45 – Freedom of Movement and of Residence

jurisprudential interpretation, some even questioning whether the citizenship provisions introduced by the Maastricht Treaty bestowed any new rights at all,44 slowly the case law came to be accepted and was eventually codified in its entirety in Directive 2004/38. We will limit our analysis to the residence rights of non-economically active citizens; when considering the limitations and conditions imposed on movement for this class of citizens, it should be remembered that the legislature and the Court are attempting to strike a difficult balance: on the one hand, the introduction of Union citizenship was the result of a new stage in integration where the European project emancipated itself, at least partially, from its predominant (if not exclusive) economic roots. On the other hand, the ambitions of citizenship have to be reconciled with the reality of the nation state, and especially of welfare provision still divided across national lines.45 The result is a compromise between rhetoric and reality, so that whilst important progress has been made (not least the Charter), rights in European law are still conditional upon the satisfaction of a multiplicity of requirements which, inevitably, privilege certain categories of people (able and/or wealthy migrants) over others (static citizens; disabled, elderly and less economically solvent individuals).46 (b) Economically Inactive Citizens: Union Citizenship in the Case Law of the Court In order to understand the rights of non-economically active citizens, it is necessary 45.20 to briefly recall the development of such rights in the case law of the Court since, as mentioned above, it is this case law that provided the basis for codification in Directive 2004/38; and it is this case law which still informs the latter’s interpretation.47 At the time when the Maastricht Treaty was adopted, non-economically active 45.21 Union citizens derived their rights of residence from three residency Directives which made the right to reside contingent upon the possession of sufficient resources and comprehensive health insurance, so that the migrant Union citizen would not become an ‘unreasonable burden’ on the public finances of the host Member State.48 Since Article 21 TFEU (and Art 8a Maastricht Treaty before then) explicitly subjects the right of residence and movement to the limitations and conditions contained therein and in secondary legislation, most Member States believed that the citizenship, movement 44 See eg the submissions of the French and British governments in Case C-85/96 M M Martínez Sala v Freistaat Bayern [1998] ECR I-2691, as summarised by AG La Pergola, esp at paras 15 et seq. 45 On Union citizenship and welfare provision see eg M Dougan and E Spaventa (eds), Social Welfare and EU Law (Oxford, Hart Publishing, 2005); G de Búrca (ed), EU Law and the Welfare State. In Search of Solidarity (Oxford, OUP, 2005); U Neergaard, R Nielsen and LM Roseberry (eds), The Role of Courts in Developing a European Social Model: Theoretical and Methodological Perspectives (Copenhagen, DOJ Publishing, 2010); M Ross and Y Borgmann-Prebil (eds), Promoting Solidarity in the European Union (Oxford, OUP, 2010); RCA White, ‘Social Solidarity and Social Security’ in A Arnull, C Barnard, M Dougan and E Spaventa (eds), A Constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood (Oxford, Hart Publishing, 2011) 301. 46 On these issues see also M Ross, ‘The Struggle for EU Citizenship: Why Solidarity Matters’ in A Arnull, C Barnard, M Dougan and E Spaventa (eds), A Constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood (Oxford, Hart Publishing 2011) 283; and more generally N Nic Shuibhne, ‘The Resilience of EU Market Citizenship’ (2010) 47 Common Market Law Review 1597. 47 On the complex interaction between Treaty free movement provisions and secondary legislation see eg K Engsig Sorensen, ‘Reconciling secondary legislation with the Treaty rights of free movement’ (2011) 36 European Law Review 339. 48 Directive 90/364 on a general right to residence [1990] OJ L180/26 (hereinafter Directive 90/364); Directive 90/365 on retired persons [1990] OJ L180/28 (hereinafter Directive 90/365); Directive 93/96 on students [1993] OJ L317/59 (hereinafter Directive 93/96); as said above, tourists were (and are) also protected under the provisions relating to the free movement of services; see above n 7.

Eleanor Spaventa

1169

Part I – Commentary on the Articles of the EU Charter

and residence rights introduced in the Treaty were not innovative,49 rather codifying at Treaty level free movement rights already contained in secondary legislation.50 45.22 The Court, however, followed a different path, and in a series of judgments found that the right to move enshrined in Article 21 TFEU was capable of triggering the right to equal treatment (also in relation to welfare benefits).51 Finally, in the case of Baumbast,52 the Court also recognised that the citizenship provisions bestowed upon Union citizens a directly effective right of residence in other Member States. This right could legitimately be subjected to limitations and conditions contained in secondary legislation, amongst which the requirements of economic self-sufficiency and comprehensive health insurance. However, given ‘the fundamental status’ of Union citizenship, the Member States had to apply those conditions having due regard to the principle of proportionality and fundamental rights. In this way, the Court sought to balance the ambitions of supranational citizenship with the budgetary reality of welfare states funded by national communities. As a result, several elements must be taken into account to determine the actual ‘quantum’ of rights of the individual migrant: the link with the host community;53 the nature (economic or not) of the request;54 and ultimately whether the migrant is a ‘deserving’ one, whether her requests are reasonable and in good faith, or rather an attempt to engage in ‘welfare tourism’.55 45.23 It is open to debate whether this rather Victorian approach to citizenship entitlement, which juxtaposes the ‘deserving’ to the ‘undeserving’ citizen, often merely on grounds of wealth, is to be welcomed; or whether it further promotes integration as an essentially elitist project. Be as it may, the compromise made by the Court is fully incorporated in the provisions of Directive 2004/38, which repealed most of the relevant pre-existing secondary legislation. The Right to Reside and the Right to Equal Treatment of Economically Inactive Citizens 45.24 As said above, pursuant to the provisions of Directive 2004/38, economically inactive citizens have a qualified right to reside in a Member State other than that of their

49 See submissions of the French and British governments in Martínez Sala (n 44), as summarised by AG La Pergola esp at paras 15 et seq. 50 On the other hand, the scholarship had already identified in the free movement of workers provisions (pre-Maastricht) the nucleus of an incipient European citizenship, see eg E Meehan, Citizenship and the European Community (London, Sage Publications, 1993); D O’Keeffe, ‘Union Citizenship’ in D O’Keeffe and PM Twomey (eds), Legal Issues of the Maastricht Treaty (London, Chancery Law, 1994) ch 6. 51 Martínez Sala (n 44), and see S O’Leary, ‘Putting flesh on the bones of European Union citizenhip’ (1999) 24 European Law Review 68; Case C-184/99 R Grzelczyk [2001] ECR I-6193; Case C-224/98 D’Hoop [2002] ECR I-6191. 52 Baumbast and R (n 7), and see M Dougan and E Spaventa, ‘Educating Rudy and the (non-)English patient: A double-bill on residency rights under Article 18 EC’ (2003) 28 European Law Review 699. 53 Eg Collins (n 41); Case C-209/03 Bidar [2005] ECR I-2119; on the notion of real link see C O’Brien, ‘Real links, abstract rights and false alarms: the relationship between the ECJ’s “real link” case law and national solidarity’ (2008) 33 European Law Review 643. 54 Eg Baumbast and R (n 7). 55 This said, the Court has taken a slightly stricter, and perhaps surprising, approach in Case C-158/07 Förster [2008] ECR I-8507, noted O Golynker (2009) 46 Common Market Law Review 2021; S O’Leary, ‘Equal treatment and EU citizens: A new chapter on cross-border educational mobility and access to student financial assistance’ (2009) 34 European Law Review 612.

1170

Eleanor Spaventa

Art 45 – Freedom of Movement and of Residence

nationality.56 If a citizen meets the requirements of sufficient resources and comprehensive health insurance, the right to reside is automatic, and can only be refused on public health, public policy or public security grounds. However, if the citizen does not satisfy all of the requirements provided for by the Directive, they might be able to claim a right to reside in another Member State pursuant to the Treaty provisions (Arts 20 and 21 TFEU, reproduced in the Charter); whether, in practice, they will be successful in their claim will depend on the actual circumstances of the case, and in particular on the application of the principle of proportionality and of fundamental rights. Thus, it might be disproportionate to deny the right to reside to a Union citizen who has already established a link with the host territory by virtue of having lived there for a certain period of time; who has family ties in the host-territory; who has never relied on the host state’s welfare provision; and who fails to satisfy the requirements contained in the Directive only by a small margin (see by analogy the ruling in Baumbast).57 On the other hand, claiming a Treaty right to reside might be considerably more difficult for a person who has no resources at all; a more tenuous link with the host state; and who finds herself in rather more difficult circumstances (see by analogy ruling in Trojani).58 Once a Union citizen is lawfully resident in another Member State, they have a right 45.25 not to be discriminated against on grounds of nationality, pursuant to Article 18 TFEU59 and Article 24(1) Directive 2004/38. However, whilst economically active Union citizens, together with those who have acquired the right to permanent residency,60 enjoy a full right to equal treatment, economically inactive Union citizens have more limited rights, so as to shelter national welfare budgets from welfare tourism. For this reason, Member States might legitimately deny entitlement to social assistance and maintenance aid for students to economically inactive Union citizens.61 And yet this does not mean that a lawfully resident citizen can never get relief from the host state; Article 14 of Directive 2004/38 codifies the principle of proportionality as developed in the case law so as to clarify that recourse to social assistance cannot automatically lead to expulsion. A Union citizen (whether or not economically active) who is lawfully resident in the 45.26 host state can be deported only for reasons of public policy and public security;62 being derogations from a fundamental Treaty right, those reasons are interpreted narrowly

56 Following the ruling in Case C-148/02 Garcia Avello [2003] ECR I-11635, it was thought that dual nationality might also allow claimants to rely on Union citizenship against one of their Member State of nationality; however in Case C-434/09 McCarthy [2011] ECR I-3375, the Court seems to at least considerably limit (if not altogether exclude) the relevance of dual nationality for claiming rights against one of the Member States of nationality in case of dual nationality. 57 Baumbast and R (n 7). 58 Case C-456/02 Trojani [2004] ECR I-7574. 59 Reproduced in Art 21(2) Charter. 60 This is acquired after five years of lawful residency; see generally c IV Directive 2004/38. 61 Art 24(2) Directive 2004/38. 62 As mentioned above, Member States can also rely on the public health derogation in relation to restriction to entrance and in the first three months of stay of the Union citizen; however, after that initial period, Member States can no longer rely on reasons of public health to exclude an individual from their territory since either the illness would have been contracted in the host territory or it would already have had the time to spread. Member States can also rely on the derogations to justify imposing a prohibition on leaving the national territory, although that is a more rare occurrence; see recently Case C-249/11 Byankov (Judgment of 4 October 2012); Case C-434/10 Aladzhov (Judgment of 17 November 2011); Case C-430/10 Gaydarov (Judgment of 17 November 2011).

Eleanor Spaventa

1171

Part I – Commentary on the Articles of the EU Charter

and are subject to the principle of proportionality.63 Furthermore, public policy and security can only be invoked in relation to the personal conduct of the individual, so that reasons of general prevention64 cannot be used to justify an expulsion measure.65 And the offending personal conduct must represent ‘a genuine, present and sufficient threat affecting one of the fundamental interests of society’.66 This means that not only it is difficult for Member States to rely on the derogations unless the conduct in question is also sanctioned when performed by nationals,67 but also that not all criminally sanctioned behaviour can give rise to a deportation order. Hence, expulsion can never be the automatic consequence of a custodial sentence68 and can never be permanent.69 45.27 When considering an expulsion measure, Member States are under a Union law obligation to respect the citizen’s fundamental rights and to comply with minimum procedural safeguards.70

V. The Right to Move and Claims against the Member State of Origin 45.28 As mentioned above, the rights detailed in Directive 2004/38 apply only against a Member State different from that of nationality. However, the Treaty free movement rights, and by implication Article 45(1) Charter, can also be relied upon in order to challenge barriers to movement imposed by the Member State of origin. This had already been established, to a certain extent, in pre-citizenship case law: thus, Member States have never been allowed to impose restrictions on the economic migrant’s right to leave their own territory.71 Furthermore, the Court also held that Member States could not penalise migrant own citizens upon return to their home country;72 and that, in certain circumstances, own citizens should be equated to Union migrants so as to enjoy Union derived rights.73 The same principles apply also post-citizenship, so that a Member State cannot penalise its own citizens for having moved abroad.74 However, the broadening of the scope of the Treaty as a result of the weakening of the economic link required in order to benefit from rights in Union law, also determined a much wider range of situations in which Union citizens might face (and challenge) a barrier to movement imposed by their own Member State. 45.29 For instance, following the introduction of Union citizenship, any residence requirement imposed on benefit claimants now needs to be justified since, by definition, a

63 See Arts 27 and 28 Directive 2004/38 codifying pre-existing case law. Rather surprisingly, in recent years the Court seems to have taken a broader view of the reasons which might justify expulsion; see eg PI (n 19). 64 In French ordre public, which is a narrower concept than public policy. 65 See Art 27(2) Dir 2004/38, and Case 67/74 Bonsignore [1975] ECR 297. 66 Art 27(2) and before Case 30/77 R v Bouchereau [1978] ECR 1999 (emphasis added). 67 Joined Cases 115 & 116/81 Adoui and Cornuaille v Belgium [1982] ECR 1665. 68 Art 33 Dir 2004/38 and Bouchereau (n 66). 69 Art 32 Dir 2004/38 and Case C-348/96 Calfa [1999] ECR I-11. 70 See Arts 30 et seq Directive 2004/38. 71 Luisi and Carbone (n 8). 72 Case C-419/92 Scholz v Opera Universitaria di Cagliari [1994] ECR I-517. 73 Singh (n 30). 74 D’Hoop (n 51).

1172

Eleanor Spaventa

Art 45 – Freedom of Movement and of Residence

residence requirement is a barrier to movement.75 Thus, in Pusa a regime which took into account tax paid on a pension in the country of origin but not tax paid in the (new) country of residence was found by the Court to be incompatible with Article 21 TFEU.76 In Nerkowska the payment of a pension granted to civilian war victims was made conditional upon residence in the national territory; the Court found that there was no justification for such a requirement which hence was incompatible with Article 21 TFEU.77 On the other hand, in De Cuyper the Court accepted that a residence condition imposed on recipients of unemployment benefits was justified by the need to monitor compliance with the statutory requirements upon which the benefit was dependent.78 As a result of Union citizenship, then, any residence requirement imposed by the Member State of origin must undergo the necessity and proportionality test;79 this is not to say, however, that the Court is blind to the needs of Member States: hence if the benefit is conditional upon continued assessment of entitlement then it is fairly easy for the residence requirement to be justified. The potential to challenge rules of the Member State of origin does not exhaust itself 45.30 to residence requirements since the Court has construed the scope of the Treaty citizenship provisions in a very broad way. In the case of Garcia Avello,80 the claimants complained about Belgian rules on surnames, which prevented children having dual Belgian and Spanish nationality being registered in Belgium according to the Spanish custom of including both the father’s and the mother’s surname. The Belgian government argued that the situation lacked an intra-Union link, since the case involved Belgian nationals complaining about Belgian rules, and that therefore the Treaty did not apply (the children not having yet moved). The Court found that dual nationality alone was sufficient to bring the case within the scope of the Treaty, and that Belgian rules breached the principle of non-discrimination by treating citizens with dual nationality in the same way as Belgian-only nationals. And that the rules could result in a barrier to movement since the children in question might at a certain stage want to go to Spain where they might want to use their Spanish surname, in which case having certificates and documents under the different Belgian surname would have been inconvenient.81 The case law on barriers imposed by one’s own Member State is possibly that which 45.31 most radically broadens the scope of the Treaty, not least since it contributes to further blurring the distinction between areas of national competence and Union law. As a result there is no possibility for Member States to erect a fence to protect their own national sovereignty, and any rule, whatever the subject matter, might fall within the

75 Consistent case law in relation to the Treaty free movement provisions has found that a residence requirement is automatically indirectly discriminatory since more likely to be satisfied by own nationals than by non-nationals; see eg Case 33/74 Van Binsbergen [1974] ECR 1299. 76 Case C-224/02 Pusa [2004] ECR I-5774. 77 Case C-499/06 Nerkowska [2008] ECR I-4004. 78 Case C-406/04 De Cuyper [2006] ECR I-6971. 79 On these issues see G Davies, ‘“Any place I hung my hat?” or: Residence is the new Nationality’ (2005) 43 European Law Journal 11. 80 Garcia Avello (n 56); see also Case C-353/06 Grunkin and Paul [2008] ECR I-7639. 81 In McCarthy (n 56), the Court seems to limit considerably the scope of Garcia Avello.

Eleanor Spaventa

1173

Part I – Commentary on the Articles of the EU Charter

scope of the Treaty if it affects in any way the rights of Union citizens to move and/or exercise their citizenship rights.82 45.32 The expansion of the scope of the Treaty as a result of the introduction of the citizenship provisions, and the consequent blurring of a neat distinction between spheres of influence/competence (if ever there was one), led to questions as to whether there was still scope for the purely internal situation rule, according to which the Treaty free movement provisions, including citizenship, can only apply when there is an intra-European link.83 This question is of paramount constitutional importance, for pragmatic and constitutional reasons alike: factually, it affects the extent to which individuals might by-pass their own constitutional processes in order to seek judicial review of legislation in relation to proportionality (and fundamental rights); constitutionally, it might highlight a further evolution in the European integration process towards a more mature, and more intrusive, constitutional system where citizens are right holders regardless of their status as migrants. Furthermore, and particularly relevant in this context, once a situation falls within the scope of the Treaty, the Charter applies, at least to a certain extent. Hence, the broader the scope of EU law, the more union citizens will be able to claim Charter rights.

VI. Nature of Charter Rights—and Purely Internal Situations 45.33 The analysis carried out above focused on the Court’s interpretation, and the legislative elaboration, of the Treaty rights which are reproduced in the Charter. However, and as mentioned earlier, it should be remembered that differently from Treaty rights, Charter rights are not free-standing. In other words, in order to rely on a Charter right, a claimant must have already brought themselves within the scope of the Treaty or of Union law. In the former case, the claimant would rely directly on the Treaty, since the Charter free movement right does not add (or subtract) anything from the Treaty provision it reproduces. However, it might be wondered whether there is space for an autonomous role of Article 45(1) Charter in those cases in which the Member State is implementing Union law; or when the action is directed against a Union institution. It should be made clear from the inception that both situations are also covered by the Treaty: when a Member State is implementing Union law it has to exercise its discretion compatibly with the Treaty; and the same can be said about Union institutions. Rather, the issue is whether it could be argued that, differently from the Treaties, the Charter might also be relevant in purely internal situations since the cross-border rationale appears to be immaterial to Charter rights. So, take by means of example, the situation in which a Member State in implementing EU law imposes a residence requirement in a given municipal location in order to be eligible for a given benefit. It would be, at least theoretically, possible for an individual to claim that such a restriction is a breach 82 Not relevant in this context since it relates to Art 20 TFEU as foundational of Union citizenship, is the case law which further blurs the distinction between purely internal situation and situation of Union relevance by limiting the ability of Member States to act in a way which might deprive Union citizens of the enjoyment of the substance of the rights attaching to Union citizenship. See Ruiz Zambrano (n 14); and Rottmann (n 12). 83 See, from a huge literature, N Nic Shuibhne, ‘Free Movement of Persons and the Wholly Internal Rule: Time to Move On?’ (2002) 39(4) Common Market Law Review 731–71 and A Tryfonidou, Reverse Discrimination in EC Law (Deventer, Kluwer, 2009).

1174

Eleanor Spaventa

Art 45 – Freedom of Movement and of Residence

of Article 45(1) without having to also establish an intra-Union link, ie the potential intention to move in another Member State. Since the Charter’s aims are not the same as the Treaties’ aims, restricting its field of application to cross-border situations might be considered inconsistent with the idea of meaningful protection of citizens’ (and not just migrants’) rights. On the other hand, it could also be argued, and as mentioned at the beginning of this contribution, that Article 52(2) Charter constitutes an absolute bar to an autonomous life of Treaty derived rights. In any event, the circumstances in which such an autonomous interpretation would be of use are rather marginal.

VII. Article 45(2) So far we have focussed on the right to move and reside enshrined in the first paragraph 45.34 of Article 45 Charter. This, as explained above, is confined to Union citizens. The second paragraph of the same article, on the other hand, is addressed to non-Union citizens and states that movement and residence rights may be granted in accordance to the Treaties to legally resident third-country nationals. The reference to ‘legal residence’ as a precondition for enjoyment of rights makes this provision particularly relevant to those TCNs who have no family ties with migrant Union citizens. In the case of the latter, rights are derived from the Union citizen—in a way, they are instrumental to maximising the citizen’s enjoyment of their own right to move—and for this reason there is no lawful residence requirement.84 On the other hand, Article 45(2) simply recalls the fact that, since the Treaty of Amsterdam, the Union might grant rights to move and reside to third-country nationals.85 Measures adopted in this context include for instance those giving effect to the Schengen area,86 the common immigration policy and the like. As mentioned in the introduction, this provision seems merely declaratory and not capable of independent application.

VIII. Remedies As discussed above, it is very unlikely that Article 45 would be of direct relevance to 45.35 Union citizens since Article 45(2) seems not justiciable, whilst Article 45(1) merely reproduces existing Treaty provisions. Hence, the remedies available to individuals

84

See Case C-127/08 Metock [2008] ECR I-6241. Eg Directive 2003/109 concerning the status of third country nationals who are long term residents [2003] OJ L16/44, amended by Directive 2011/51 [2011] L132/1, consolidated version http://eur-lex.europa. eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2003L0109:20110520:EN:PDF; on barriers to movement in this context see Case C-508/10 Commission v Netherlands (Judgment of 26 April 2012); Directive 2009/50 on the conditions of entry and residence for the purposes of highly qualified employment (Blue Card Directive) [2009] L155/17; Directive 2004/114 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service [2004] OJ L375/12; and Directive 2005/71 on a specific procedure for admitting third-country nationals for the purposes of scientific research [2005] OJ L289/15. For a critique of the Union policy on free movement of TCNs see A Wiesbrock, ‘Free movement of third-country nationals in the European Union: the illusion of inclusion’ (2010) 35 European Law Review 455. 86 See eg Regulation 562/2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (2006) OJ L105/1, and Arts 19-22 and 25 of the Schengen Convention (OJ 2000 L239), as amended by Regs 265/2010 ([2010] OJ L85/1) and 610/2013 ([2013] OJ L182/1). 85

Eleanor Spaventa

1175

Part I – Commentary on the Articles of the EU Charter

whose right to free movement has been breached would be those available in the case of breaches of Treaty provisions. As a result, should an institution have breached the free movement right, it would be liable for damages insofar as the provisions relating to the non contractual liability of the Union would be applicable.87 In the case of a breach caused by the Member State, Francovich damages would be available provided the criteria for Member State liability are satisfied.88

E. Evaluation 45.36 Article 45 Charter is not set to be one of the ‘revolutionary’ provisions of the Charter, and one might wonder whether it will ever be subjected to interpretation by the Court of Justice. The reasons for this are clear: the first paragraph of the Article reproduces verbatim one of the central provisions of the Treaty on the Functioning of the European Union. Given the subserviency of Charter rights to their original sources, and given that the Treaty rights, unlike the Charter equivalent, are free standing, it is difficult to imagine situations in which an individual might benefit from reliance on Article 45(1) Charter rather than on Articles 20/21 TFEU. The same can be said in relation to the obligation to respect the Charter imposed on Union institutions and Member States when implementing Union law, since institutions and Member States are equally bound by the Treaties. It would be surprising, then, if the Court were to rely on the Charter right with preference to the Treaties in those situations. Article 45(2) seems also of little practical relevance since, as mentioned above, it is declaratory in character and it is difficult to foresee a situation in which it could be justiciable. 45.37 This of course, begs the question as to why those rights, which at best merely duplicate existing provisions, were introduced at all. The answer is not difficult to gauge: the Charter was drafted without knowledge of its future position amongst the sources of Union law; the drafting Convention did not know what its legal status would be; and whether it would be incorporated in the Treaties; whether it would be an Annex therein; or whether it would exist in a parallel dimension. Furthermore, in drafting the Charter the aim was to make rights more visible, and the Cologne mandate explicitly provided that the Charter should contain the rights pertaining to Union citizens.89 And it is not surprising that, if the intention was to create a comprehensive catalogue of rights recognised by the European Union, those rights which are directly granted by the Union and that are central to its project and functioning, could not be omitted. Thus, the fact that those rights are of little practical relevance should not detract from the symbolic importance of their inclusion in the Union fundamental rights instrument. It might not matter much that those rights are included, but it would have mattered a great deal if they had been excluded.

87 See generally AA Dashwood, M Dougan, B Roger, E Spaventa and D Wyatt, Wyatt and Dashwood’s European Union Law, 6th edn (Oxford, Hart Publishing, 2011) ch 6 section V. 88 See generally ibid ch 9 section VC. 89 Presidency Conclusions, Cologne, 3 and 4 June 1999, 150/99 REV 1, Annex IV.

1176

Eleanor Spaventa

Article 46 Article 46 Diplomatic and Consular Protection Every citizen of the Union shall, in the territory of a third country in which the Member State of which he is a national is not represented, be entitled to protection by the diplomatic and consular authorities of any Member State, on the same conditions as the nationals of that State.

Text of Explanatory Note on Article 46 The right guaranteed in this Article is the right guaranteed by Article 20 of the Treaty on the Functioning of the European Union (cf. also the legal base in Article 23). In accordance with Article 52(2) of the Charter, it applies under the conditions defined in these two Articles.

Select Bibliography CF Amerasinghe, Diplomatic Protection (Oxford, OUP, 2008). C Closa, ‘Citizenship of the Union and Nationality of the Member States’ (1995) 32 Common Market Law Review 487. J Crawford, The International Law Commission’s Articles on State Responsibility; Introduction, Text and Commentaries (Cambridge, CUP, 2002). ——, A Pellet and S Olleson, The Law of International Responsibility (Oxford, OUP 2010). E Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 3rd edn (Oxford, OUP, 2008). ——, The Intergovernmental Pillars of the European Union (Oxford, OUP, 2002). RK Gardiner, Treaty Interpretation (Oxford, OUP, 2008). C Hilson, ‘What’s in a Right? The relationship between Community, fundamental and citizenship rights in EU law’ (2004) 29 European Law Review 636. House of Commons Select Committee on European Scrutiny, ‘Diplomatic and consular protection of Union citizens in third countries’, (16th Report 2006–07). International Law Association’s Committee on Diplomatic Protection of Persons and Property, Final Report (Toronto, 2006) 353. R Jennings and AD Watts (eds) Oppenheim’s International Law, 9th edn (London and New York, Longman, 1996). LT Lee and J Quigley, Consular Law and Practice, 3rd edn (Oxford, OUP, 2008). I Macleod, ID Hendry and S Hyett, The External Relations of the European Communities (Oxford, OUP, 1996). M Mendelson, ‘The Formation of Customary International Law’ (1998) 272 Recueil des cours. M Moraru, ‘The Protection of EU Citizens in the World: A Legal Assessment of the EU Citizen’s Right to Protection Abroad’, in J Larik and M Moraru (eds), Ever Closer to Brussels—Ever Closer to the World? EU External Action after the Lisbon Treaty, EUI Working Paper 2011/10. P Okowa, ‘Admissibility and the Law on International Responsibility’, in MD Evans (ed), International Law, 3rd edn (Oxford, OUP, 2010). AI Saliceti, ‘The Protection of EU Citizens Abroad: Accountability, Rule of Law, Role of Consular and Diplomatic Services’ (2011) 17 European Public Law 91. I Roberts (ed), Satow’s Diplomatic Practice, 6th edn (Oxford, OUP, 2009).

Part I – Commentary on the Articles of the EU Charter

I Stein, ‘Diplomatic Protection under the European Union Treaty’ (Interim Report on International Law Association Report on the 70th Conference, New Delhi, 2002) 277. A Vermeer-Künzli, ‘Exercising Diplomatic Protection: The Fine Line Between Litigation, Démarches and Consular Assistance’ (2006) 66 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 321. P Vigni, ‘Diplomatic and consular protection: Misleading Combination or Creative Solution’, EUI Law Working Paper 2010/11. RA Wessel, The European Union’s Foreign and Security Policy (Deventer, Kluwer, 1999).

A. Field of Application of Article 46 46.01 The entitlement conferred by Article 46 is unusual among the provisions of the Charter in that it operates only outside the territory of the European Union. It has a double purpose—first, to strengthen the practical application of the concept of citizenship of the Union, and in this way support the perception of European solidarity among citizens and, secondly, through the establishment of common protection arrangements to strengthen the identity of the Union as perceived in third countries. It does not cover diplomatic or consular protection by EU Member States of their own citizens. Article 46 is among those provisions of the Charter whose substance is repeated, and 46.02 for whose implementation powers are given in the Treaty on the Functioning of the European Union. Article 20 of the TFEU (ex Art 17 TEC) lists the entitlement to diplomatic and consular protection among the rights to be enjoyed by citizens of the Union, and it provides that the right ‘shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.’ Article 23 TFEU amends and extends ex Article 20 TEC. It repeats the wording of Article 46 of the Charter, but then replaces the previous treaty obligation to ‘establish the necessary rules among themselves’ with an obligation to ‘adopt the necessary provisions’. Member States are also required to ‘start the international negotiations required to secure this protection’. The Treaty of Lisbon also conferred new implementing powers in Article 23 as follows: The Council, acting in accordance with a special legislative procedure and after consulting the European Parliament, may adopt directives establishing the coordination and cooperation measures necessary to facilitate such protection.

46.03 A Commission proposal for a Council Directive on consular protection for citizens of the Union abroad was made on 14 December 2011 and is currently under discussion (see further below).

B. Interrelationship of Article 46 with Other Provisions of the Charter 46.04 Article 46 is largely self-contained and has the primary purposes outlined in the previous section. It can however be said to reinforce the principle of non-discrimination among EU citizens (Art 21), the right to life (Art 2) and the rights to a fair trial and effective defence (Arts 47 and 48). 1178

Eileen Denza

Art 46 – Diplomatic and Consular Protection

C. Sources of Article 46 Rights The Treaty on European Union, as originally signed at Maastricht in 1992, established 46.05 the new concept of Citizenship of the Union, providing that every person with the nationality of a Member State should be a citizen of the Union, and that ‘Citizenship of the Union shall complement and not replace national citizenship.’ Among the rights conferred by citizenship of the Union was an entitlement (Art 8c EC) in identical terms to Article 46 of the Charter.1 To this was added an obligation for the Member States to ‘establish the necessary rules among themselves and start the international negotiations required to secure this protection’. Article 8c, unchanged, became Article 20 when the EC Treaty was amended by the Treaty of Amsterdam signed in 1997. In 1995 the Member States carried out the obligation to ‘establish the necessary 46.06 rules among themselves’. These took the form of a Decision of the Representatives of the Governments of the Member States meeting within the Council regarding protection for citizens of the European Union by diplomatic and consular representations,2 and a parallel implementing Decision containing practical Guidelines in an Annex.3 The Decisions are regarded as international agreements among the Member States—a form sometimes used where there is no clear legal base in the Treaties for a Community or Union instrument.4 The first Decision provides that the diplomatic and consular representatives must respond to a request for protection from an entitled citizen from another Member State, provided that the requesting person establishes his nationality by producing his or her passport or identity card. If these have been lost or stolen, any other proof of nationality may be accepted, if necessary after verification with the central authorities or the nearest diplomatic or consular representation of the state whose nationality is claimed by the applicant. The key obligation, in Article 3, provides that ‘Diplomatic and consular representa- 46.07 tives which give protection shall treat a person seeking help as if he were a national of the Member State which they represent.’ Diplomatic and consular representations may agree under Article 4 on practical arrangements for management of applications for protection. Article 5 lists five specific forms of protection available, and provides that assistance may also be provided in other circumstances. Article 6 provides that except in cases of extreme urgency, no financial assistance may be given or expenditure incurred without permission of the authorities of the applicant’s state, and unless there is express waiver by those authorities, the applicant must undertake to repay or refund this. The Guidelines in the parallel implementing Decision set out detailed procedures to be followed in providing assistance in the five cases listed in Article 5 of the first decision: death of a citizen of the European Union; serious accident or illness; arrest or detention; assistance to victims of violent crime; and relief and repatriation of financially

1 See C Closa, ‘Citizenship of the Union and Nationality of the Member States’ (1995) 32 Common Market Law Review 487. 2 Decision 95/553/1995, [1995] OJ L314/73. 3 Council doc 11107/95; I Macleod, ID Hendry and S Hyett, The External Relations of the European Communities (Oxford, OUP, 1996) 219. 4 See RA Wessel, The European Union’s Foreign and Security Policy (Deventer, Kluwer, 1999) 192, 279–80.

Eileen Denza

1179

Part I – Commentary on the Articles of the EU Charter

distressed applicants. Methods of self-help which might be available to financially distressed applicants are also listed. 46.08 In 1996 a further Decision of the Representatives of the Member States meeting within the Council5 established a common format emergency travel document, described in Annex I, for issue to citizens of the Union entitled to assistance under the terms of Article 8c of the Treaty establishing the European Community (now Art 23 TFEU). It was agreed that this would assist the provision of genuine help to citizens of the Union in distress and provide a demonstration of the practical benefits of Union citizenship. Annex I set out the rules for the issue of an emergency travel document (valid for a single journey to the applicant’s Member State of origin). Clearance from that Member State of origin must first have been obtained. In the case of nationals of certain Member States it is a requirement to retain the applicant’s passport as security for repayment, and so clearance may be made dependent on retention of the passport, even if this would not otherwise be required by the Member State issuing the emergency travel document. 46.09 In 2006 the Guidelines drawn up in 1995 were updated. Consular Guidelines on the protection of EU citizens in third countries were agreed by the Council Working Party on Consular Affairs, endorsed by the Political and Security Committee and adopted by the Council.6 The Guidelines are non-binding, but are in line with the Guidelines on cooperation between Member States’ missions and Commission delegations in third countries and within international organisations in CFSP matters. The revision was in part a response to the Asian Tsunami disaster, and the new Guidelines provide for coordination among local posts of the Member States on fair distribution of consular burdens, availability of local legal advice, updating of travel advice, voluntary registration by EU citizens, contingency planning for disasters, possible evacuation and for medical support teams.

I. Commission Proposals and Research 46.10 Later in 2006, the Commission issued a Green Paper setting out further ideas for progress in the implementation of the right to diplomatic and consular protection.7 Some of these (for example extending the right to family members of Union citizens who are not themselves Union citizens) went beyond the scope of the treaty right, but others were practical. The Commission, for example, suggested a recommendation calling on the Member States to print the terms of the entitlement to protection in passports of EU citizens, wider participation by Member States in the Council of Europe Convention on the transfer of corpses8 (designed to simplify administrative formalities for repatriating human remains), and research into effective and less costly tools for analysing DNA (often a necessary prerequisite to repatriation). 46.11 Before the entry into force of the Treaty of Lisbon, the Commission embarked on the CARE Project (Citizens’ Consular Assistance Regulation in Europe) designed principally to carry out a review of the regulations of the 27 Member States on diplomatic 5

Decision 96/409/CFSP, [1996] OJ L168/4. Council doc PESC 534/COCON 14, with REV 1 and REV 2 adopted 26.6.2006. 7 COM (2006) 712 final. The Green Paper was the subject of a Report by the House of Commons European Scrutiny Committee, 16th Report, 2006-07. The UK Government’s response to the Green Paper is at Annex I to this Report. 8 Council of Europe Treaty Series Convention No 80. 6

1180

Eileen Denza

Art 46 – Diplomatic and Consular Protection

and consular assistance of their citizens in third countries. This would help to establish what further steps were needed for the practical implementation of the right of EU citizens under the Charter of Fundamental Rights to diplomatic and consular assistance in third countries where their own Member State was unrepresented. The CARE Project was funded by the Commission’s Fundamental Rights and Citizenship Programme, and Reports were compiled in the first instance by national correspondents with appropriate expertise from each Member State, responding to a standard format questionnaire.9 The resulting Report, accompanied by comparative analysis, is available online under 46.12 the title ‘Consular and Diplomatic Protection: Legal framework in the Member States’. It contains a wealth of national and regional laws and practice on consular and diplomatic protection, on regional arrangements and on national approaches to the most appropriate direction of further work to implement the entitlement to protection under Article 46 of the Charter and under the EU Treaties of citizens of the EU.10 A CARE Database enables access in the original language, or in English or French, to national legislation, case law, administrative guidelines and other materials as well as relevant international conventions and EU documents.11 As noted above, on 14 December 2011 the Commission made a proposal under Article 23 46.13 of the Treaty on the Functioning of the European Union for a Council Directive on consular protection for citizens of the Union abroad.12 The proposal is currently under discussion in the Council.13 The proposed Directive would repeal and replace Decision 95/553/EEC of the Representatives of the Member States meeting within the Council.

II. National Implementing Measures The information in the CARE Report just described shows that since Member States regard 46.14 the Charter right taken together with the implementing measures as having direct effect, they have not taken specific implementing action. Table 3 in the Report sets out the legal basis for giving consular protection in each Member State—this may be a constitutional provision, legislation to give effect to the 1963 Vienna Convention on Consular Relations or consular instructions to overseas posts issued by the Ministry of Foreign Affairs.

D. Analysis I. General Remarks To understand the scope of the entitlement to diplomatic or consular protection, it is important to bear in mind the context and the purposes for which it was originally established. This was not done with the primary purpose of enlarging the possibilities offered under international conventions of protecting nationals of other states, although

9 10 11 12 13

A description is at www.careproject.eu/index.php/en/about-the-project. The Final Report was issued on 1.12.2010 and is available at www.ittig.cur.it. At www.careproject.eu/database. (COM) 2011 881 final. For a progress report, see Council doc 17517/12.

Eileen Denza

1181

46.15

Part I – Commentary on the Articles of the EU Charter

these form part of the international background. As to diplomatic protection, Articles 45 and 46 of the 1961 Vienna Convention on Diplomatic Relations make express provision for a sending state to entrust the protection of its interests and of its nationals to a third state either if relations are broken or a diplomatic mission is recalled (Art 45) or in other cases (Art 46). These possibilities are used extensively among Member States of the European Union, but they envisage long-term arrangements distinct from the kind of one-off protection contemplated by Article 46 of the Charter of Fundamental Rights.14 Article 3 of the Convention lists among the functions of a diplomatic mission: ‘protecting in the receiving State the interests of the sending State and of its nationals’. The substantive rules relating to diplomatic protection in the formal sense form part of the international law on state responsibility. They are reflected in draft Articles on Diplomatic Protection drawn up by the International Law Commission in 2006.15 Article 3 of those Articles provides in paragraph 1 that ‘The State entitled to exercise diplomatic protection is the State of nationality’ and authorises the protection of other persons only in exceptional circumstances not relevant to what is envisaged under Article 46 of the Charter. There is no prohibition under international law on one state seeking to protect a national of another state, but as there is no inherent right, the attempt to protect could be rejected by the defendant state. ‘Protecting the interests of the sending State and of its nationals’, as used in Article 3 of the Vienna Convention on Diplomatic Relations, has however a wider and looser sense than ‘diplomatic protection’ in the formal sense of the term. A right to the protection by the diplomatic authorities of a state is not the same as a right to formal diplomatic protection by the state itself. 46.16 For consular protection, the 1963 Vienna Convention on Consular Relations offers the same possibilities for long-term protection by one state of the interests of another. Article 8 however also provides that Upon appropriate notification to the receiving State, a consular post of the sending State may, unless the receiving State objects, exercise consular functions in the receiving State on behalf of a third State.

46.17 Practice on consular protection shows that consular posts frequently protect nationals of other states in exceptional circumstances—for example, they protect refugees and stateless persons, and their own long-term residents, under special arrangements such as those among states of the British Commonwealth. They protect nationals entitled under those arrangements, and in cases of conflict or natural disaster they extend protection to non-nationals more generally for humanitarian reasons. Again, although there is no entitlement to exercise such consular protection, there appears to be no indication that objections have been raised by the states where such protection has been extended.16

14 For detail, see E Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 3rd edn (Oxford, OUP, 2008) 44–45, 484–96, esp 494 on practice among EU Member States; I Roberts (ed), Satow’s Diplomatic Practice, 6th edn (Oxford, OUP, 2009) 6.15–6.20, 7.18. 15 UN doc A.CN4/L 684. See J Crawford, The International Law Commission’s Articles on State Responsibility; Introduction, Text and Commentaries (Cambridge, CUP, 2002); J Crawford, A Pellet and S Olleson, The Law of International Responsibility (Oxford, OUP, 2010). On diplomatic protection see CF Amerasinghe, Diplomatic Protection (Oxford, OUP, 2008); P Okowa, ‘Admissibility and the Law on International Responsibility’, in MD Evans (ed), International Law, 3rd edn (Oxford, OUP, 2010) esp 476–90. 16 See LT Lee and J Quigley, Consular Law and Practice, 3rd edn (Oxford, OUP, 2008) 55–64, 204–09; Satow’s Diplomatic Practice (n 14) 18.19–18.20.

1182

Eileen Denza

Art 46 – Diplomatic and Consular Protection

The purposes for which the right to protection by diplomatic and consular authorities 46.18 was originally included among the rights of citizenship of the European Union were twofold—first to give greater practical substance to the new concept of citizenship, and secondly to strengthen the international identity of the European Union in third countries. As to the first of these, it can be seen from Article 20 TFEU that apart from the right to move and reside freely within the territory of the Member States which is overwhelmingly the main benefit of EU citizenship, the other rights to be enjoyed by EU citizens are of symbolic importance but of somewhat limited practical value. The right to protection from any EU diplomatic or consular mission anywhere in the world (provided that the Member State of nationality was unrepresented there) could be seen as opening up possibilities of safer travel and residence in the wider world parallel to the rights of free movement given to citizens within the territory of the Union itself. The arrangements for collective protection may also be seen as implementing one of the fundamental objectives of the Union set out in Article 3(5) of the TEU, as amended by the Treaty of Lisbon, which begins: In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens.

As to the second purpose, the right of the EU citizen to protection by the diplomatic and consular authorities of another EU Member State should be read along with the Article in the Treaty on European Union which within the framework of the common foreign and security policy makes provision for more intensive cooperation among diplomatic and consular missions of the Member States in third countries. As revised by the Treaty of Lisbon, Article 35 (ex Art 20) of the TEU inter alia makes specific provision for these overseas missions as follows:

46.19

They shall contribute to the implementation of the right of citizens of the Union to protection in the territory of third countries as referred to in Article 20(2)(c) of the Treaty on the Functioning of the European Union and of the measures adopted pursuant to Article 23 of that Treaty.

In practice, EU diplomatic and consular posts have built up systematic collaboration 46.20 since the early days of European Political Cooperation on such matters relevant to protection as risk assessment (both political and practical), information on competent local interpreters and lawyers and problems in securing access to persons arrested or detained. On matters outside those expressly listed in the Decisions described above—such as requests for pardon or early release or complaints of ill-treatment—it has been practice for interventions by a Member State other than that of which the applicant is a national to be taken in liaison with the Member State of the applicant’s nationality. But neither in routine cases nor in these more sensitive cases has there been any public evidence of objection by third states on grounds of lack of locus standi.17 The interplay between action on the ground in third countries, the formulation of 46.21 Union foreign policy and the assertion of the Union’s values and identity is also apparent

17

E Denza, The Intergovernmental Pillars of the European Union (Oxford, OUP, 2002) 164–66.

Eileen Denza

1183

Part I – Commentary on the Articles of the EU Charter

from Article 32 (ex Art 16) of the TEU on strengthening systematic cooperation. This emerges more clearly from the original version, which provided: Member States shall inform and consult one another within the Council on any matter of foreign and security policy of general interest in order to ensure that the Union’s influence is exerted as effectively as possible by means of concerted and convergent action.18

46.22 The extended version of this Article provides expressly that The diplomatic and consular missions of the Member States and the Union delegations in third countries shall contribute to formulating and implementing the common approach.

II. Background—Diplomatic Protection, Protection by Diplomatic Missions and Consular Protection 46.23 Before considering the extent of the entitlement of an EU citizen to protection in a third state from diplomatic and consular authorities of a Member State other than his own, it is important to distinguish in international law and practice between diplomatic protection in the formal sense of the term, protection by diplomatic missions in the broader and looser sense envisaged in Article 3 of the Vienna Convention on Diplomatic Relations, and protection or assistance by consular posts. 46.24 Diplomatic protection is described in the following terms in the draft Articles drawn up by the International Law Commission in 2006: For the purposes of the present draft articles, diplomatic protection consists of the invocation by a State, through diplomatic action or other peaceful means, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility.19

46.25 Before any right of diplomatic protection in the formal sense may be exercised, it is essential that the individual or legal entity has exhausted local remedies—that is, legal possibilities of action through the courts or administrative bodies of the defendant state. In the case of consular assistance or protection20 on the other hand, there is no requirement of exhaustion of local remedies—indeed the object is often to give the individual practical assistance in the pursuit of remedies against local officials, or through local civil or criminal courts. Diplomatic protection in the formal sense is also exercised by means of action taken with the central government authorities of the state, whereas consular assistance or protection is normally exercised by means of action with local bodies or authorities. Article 3 of the Vienna Convention lists among the functions of a diplomatic mission: 46.26 (b) protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law.

46.27 The protection which may be given by a diplomatic mission in practice falls short of ‘diplomatic protection’ in the formal sense. It is the sending state which may formally extend 18

See ibid 155. UN doc A/CN.4/L 684. 20 Some Member States use only the expression ‘consular assistance’ and not the term ‘consular protection’, or use it in a similar sense to ‘diplomatic protection’. Most however do not distinguish precisely between ‘consular assistance’ and ‘consular protection’. 19

1184

Eileen Denza

Art 46 – Diplomatic and Consular Protection

diplomatic protection if it determines that its national has exhausted local remedies and espouses his claim on the basis that an international wrong to itself has been committed. Before this point, the diplomatic mission may make informal representations, and indeed it may transmit formal notice of an international claim by the sending state, but it does not on its own initiative extend formal ‘diplomatic protection’. Whether assistance or protection is performed by diplomatic or by consular officers does not determine whether it is consular assistance, or amounts to informal or formal diplomatic protection. In modern diplomacy, many individuals simultaneously hold both diplomatic and consular titles. There is also substantial overlap between diplomatic and consular functions. Consular assistance may well be provided by diplomatic officers, and consular officers are by Article 17 of the Vienna Convention on Consular Relations authorised in exceptional circumstances to perform diplomatic acts.21 The broad distinction between consular assistance and diplomatic protection is illustrated by the case of R v Secretary of State ex p Butt,22 decided by the UK Court of Appeal in 1999. In judicial review proceedings it was argued that because extensive consular assistance by way of visits and insistence on medical and legal advice had been provided to nine British nationals on trial in Yemen, the Secretary of State was obliged further to make diplomatic representations to have allegations of torture investigated and a retrial ordered. The Court held that his decision not to intervene at diplomatic level until local remedies had been exhausted was not justiciable by way of judicial review.

46.28

46.29

III. Scope of the ‘Right’ to Protection The right accorded by Article 46 of the Charter on Fundamental Rights is essentially 46.30 one based on non-discrimination: the applicant citizen is entitled in a third state to whatever treatment is available to nationals of the Member State providing services through its diplomatic or consular missions in that state. This follows from the terms of the Article, which describes the entitlement to protection as applying ‘on the same conditions as nationals of that State’. The relevant treatment in each case is described in the laws, practices and consular instructions of the Member State asked to provide similar service by a national of another Member State. There being no harmonised standards in regard to the scope or level of protection provided by Member States of the EU, this implies that the level of protection to which the applicant citizen is entitled varies from mission to mission. It is therefore not easy for the EU citizen to find out whether a specific benefit or entitlement might be available to him in a third country from a diplomatic or consular mission of a Member State other than his own. Some of the reticence shown by Member States to giving wide publicity to the entitlement under Article 46 of the Charter appears to be based on a concern about ‘consular shopping’, by which applicants in need of protection might seek out the diplomatic or consular mission of the Member State providing the most favourable treatment to its own nationals. Saliceti suggests that non-discrimination implies that in the context of an emergency

21 On the functions of a diplomatic mission and performance of consular functions by diplomatic missions, see, generally Satow’s Diplomatic Practice (n 14) 6.17–6.24, and on consular protection and diplomatic protection, ibid 20.2 and 20.3. 22 Court of Appeal, Civil Division FC3 99/6610/4.

Eileen Denza

1185

Part I – Commentary on the Articles of the EU Charter

evacuation, the officers of the protecting Member State may not give preference to their own nationals, but must fill the evacuating aircraft on a basis of quotas allocated among EU nationalities.23 46.31 In the majority of the Member States, its nationals are not entitled to protection from their diplomatic or consular services as a legal right.24 This is confirmed by the national responses contained in the CARE Project Report Consular and Diplomatic Protection legal framework in the Member States, which was described above.25 The comparative analysis of these responses divides Member States into five categories: (1) those where there is a constitutional provision accepted as providing a right to consular protection (Bulgaria, Estonia, Hungary, Latvia, Lithuania, Poland, Portugal and Romania); (2) those having a legislative provision interpreted as providing a right to consular protection (Denmark, Finland, Greece, Slovakia and Slovenia); (3) those where there is no specific provision, but it is argued that a right may be deduced from national legislation and case law (Italy and Sweden); (4) those where any national legislative requirement is of such a discretionary character that a right cannot be established (Germany, Greece, Czech Republic, France, Luxembourg and Spain); (5) those where consular protection is a matter of policy (Austria, Belgium, Cyprus, Ireland, Malta, Netherlands and the UK).26 46.32 This discrepancy in regard to any right under national law to consular protection means that the non-national citizen will not have a right to any specific form of protection where it is not available to nationals of the Member State whose mission he approaches. His right extends only as far as the treatment given under national law to nationals of the Member State, and no further. 46.33 There have been attempts by applicants in national courts to require intervention as of right by their own diplomatic or consular authorities, but these have had limited success. The German Federal Constitutional Court has confirmed the discretionary character of the duty to protect under German law.27 The French Conseil d’Etat has determined that a decision to grant or refuse diplomatic protection to a citizen was in principle a governmental act which could not be reviewed under French administrative jurisdiction.28 In the UK case of R v Secretary of State for Foreign and Commonwealth Affairs ex p Abbasi,29 the English Court of Appeal held that the published policy of the UK Government on its practice regarding the grant of diplomatic protection was capable of giving rise to a legitimate expectation that such assistance as was described in the two relevant leaflets would be provided. The position is broadly similar in the Netherlands, where in the case of Van Dam v Netherlands30 a court held that there was 23 AI Saliceti, ‘The Protection of EU Citizens Abroad: Accountability, Rule of Law, Role of Consular and Diplomatic Services’ (2011) 17 European Public Law 91, 97. 24 See Amerasinghe, Diplomatic Protection (n 15) 82–83. 25 Available at www.ittig.cur.it. 26 Ibid, at pp 608–14, including Table 11. 27 Hess-Entscheidung, 7.7 1975 90 ILR 387. 28 Conseil d’Etat 25 March 1988, no 65022. 29 R v Secretary of State for Foreign and Commonwealth Affairs ex p Abbasi [2002] EWCA Civ 1598; [2003] UKHRR 76. 30 Van Dam v Netherlands, Civil Court (The Hague), 25.11.2004, Rolnummer 02/43, LIN: AR7484.

1186

Eileen Denza

Art 46 – Diplomatic and Consular Protection

no right to consular assistance, and that it depended on the circumstances what specific actions could be expected from a diplomatic or consular mission, as well as on political considerations. Under modern international law, the position is that the state has a right to extend diplomatic and consular protection to its own nationals, but has no duty to protect— although there are some indications that the position may be changing. The International Court of Justice in the Barcelona Traction Case stated that:

46.34

within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and to whatever extent it sees fit, for it is its own right that the State is asserting. Should the natural or legal person on whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international law. All they can do is to resort to municipal law, if means are available, with a view to furthering their cause or obtaining redress … The State must be viewed as the sole judge to decide whether its protection will be granted, to what extent it is granted, and when it will cease. It retains in this respect a discretionary power the exercise of which may be determined by considerations of a political or other nature, unrelated to the particular case.31

It was proposed to the International Law Commission that the law should be progressively developed so as to place states under a legal duty to extend protection in certain circumstances, but this view was not accepted in the final formulation of the draft articles on Diplomatic Protection.32

46.35

IV. Whether ‘Diplomatic Protection’ in the Formal Sense is Covered It is clear from the wording of Article 46, when read together with the implementing provisions in Articles 20 and 23 of the Treaty on the Functioning of the European Union, that it does not cover ‘diplomatic protection’ in the formal sense. The entitlement under Article 46 of the Charter, which is reflected precisely in Articles 20(c) and 23 of the TFEU, is not a right to ‘diplomatic protection’, but a right to enjoy ‘the protection of the diplomatic and consular authorities of any Member State’. This reading of the exact words of the provision is supported by the object and purpose of the provision which is to offer emergency or at least short-term protection to EU citizens who find in a third country that their own Member State is unrepresented there. As explained above, diplomatic protection in the sense defined by the International Law Commission is not exercised by overseas embassies on their own initiative, but results from a carefully considered decision by the government of the protecting state that its national has exhausted local remedies, where these exist, and that the failure to provide appropriate satisfaction to the individual amounts to an injury to the protecting state itself. This interpretation of Article 46 is supported by the practice of Member States33— which shows that even for matters towards the more sensitive end of the spectrum of what might be described as consular assistance, such as requests for pardon or for

31

[1970] ICJ Reports 44. UN doc A/CN.4/L 684, Arts 2, 7 and 8; Amerasinghe: Diplomatic Protection (n 15) ch 9 pp 87–89. 33 See, for example, UK response to the Commission’s Green Paper on Diplomatic and consular protection of Union citizens in third countries, printed as Annex I to House of Commons Select Committee on European Scrutiny 16th Report 2006–07. 32

Eileen Denza

1187

46.36

Part I – Commentary on the Articles of the EU Charter

repatriation, any action taken under the auspices of Article 46 by another Member State is always taken in association with the Member State whose national is directly affected. There are no recorded instances where one Member State has exercised a formal right of diplomatic protection on behalf of a national of another Member State, throughout the 30 years that the substance of Article 46 has been in effect.34 Nor does there appear to be any need for such extension of the normal international rules regarding the diplomatic protection of nationals. 46.37 What is however within the scope of Article 46 is assistance provided by a diplomatic mission—which may take the form of the exercise of a consular function, such as help with access to local lawyers, interpreters and officials during attempts to seek redress, or perhaps protection in a broader sense such as assistance with the collection of evidence, or informal representations to the Ministry of Foreign Affairs not amounting to diplomatic protection in the formal sense of the term. Such assistance may later be helpful in the lodging of an international claim or formal exercise of diplomatic protection—but it will be the EU citizen’s own Member State which will ultimately bring any formal claim. 46.38 Much of the comment which has appeared on the scope of the entitlement fails to distinguish between protection in the broad sense—which may be exercised by diplomatic missions among their functions—and ‘diplomatic protection’ in the formal sense defined in the Articles of the International Law Commission—which can only be exercised by a state following the exhaustion of local remedies by its national. The confusion has been compounded by the fact that the pre-existing Treaty entitlement was given the title ‘Diplomatic and Consular Protection’ when the Charter was first drafted, and has retained that Title following the Treaty of Lisbon. Some commentators have argued that the addition of the title resolved ambiguity and extended the entitlement to ‘diplomatic protection’ in the formal sense. But in fact there was no previous ambiguity, and the term ‘Diplomatic and Consular Protection’ must be given a collective construction reflecting the precise terms of its content as well as the context of its formulation and subsequent practice by Member States in its implementation.35

V. Specific Provisions (a) The Aspects of Protection Covered by Article 46 46.39 Article 5(1) of the 1995 Decision of the Representatives of the Governments of the Member States, which was described above, makes clear that the applicant EU citizen is entitled to non-discriminatory treatment in the five cases listed, namely

34 The position is accurately analysed by P Vigni in ‘Diplomatic and consular protection: Misleading Combination or Creative Solution’, EUI Law Working Paper 2010/11. A Vermeer-Künzli, in ‘Exercising Diplomatic Protection: The Fine Line Between Litigation, Démarches and Consular Assistance’ (2006) 66 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 321 gives extensive critical analysis of practice, but fails to cite the TEU provision accurately. 35 Art 31.1 of the 1969 Vienna Convention on the Law of Treaties: ‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’ For analysis, see RK Gardiner, Treaty Interpretation (Oxford, OUP, 2008) 3–50, and, on the more ‘teleological’ approach of the European Court of Justice to inter-EU treaties, ibid 120–22.

1188

Eileen Denza

Art 46 – Diplomatic and Consular Protection

(a) (b) (c) (d) (e)

assistance in cases of death; assistance in cases of serious accident or serious illness; assistance in cases of arrest or detention; assistance to victims of violent crime; the relief and repatriation of distressed citizens of the Union.

The practical arrangements set out in that Decision and the related implementing 1995 Decision relate only to those specific cases. Article 5(2) provides:

46.40

In addition, Member States diplomatic representatives or consular agents serving in a nonmember State may, in so far as it is within their powers, also come to the assistance of any citizen of the Union who so requests in other circumstances.

The use of the word ‘may’ implies that the offer of assistance in circumstances outside 46.41 those identified in Article 5(1) is discretionary. The descriptions of the national practice of the Member States in the Report on Consular and Diplomatic Protection: Legal Framework in the EU Member States36 show that some Member States are more generous in extending assistance on the discretionary basis of Article 5(2) than others. Article 5(2) on its face reduces the entitlement under Article 46 of the Charter which appears to give an unrestricted entitlement to protection. There are some consular functions which appear to be within the scope of ‘protection’ but are not listed in Article 5(1)—for example safeguarding the interests of children and other persons lacking full capacity, particularly where guardianship or trusteeship is required in respect of such persons.37 Consular functions which cannot be said to relate to protection—for example the 46.42 issue of passports or visas, the transmission of judicial and extra-judicial documents or the performance of registration functions—are outside the scope of Article 46. In most cases the diplomatic or consular officer would not be competent or entitled to perform those functions in regard to non-nationals. Where performance of other kinds of assistance would be legally possible, there is no impediment to action by the requested diplomatic or consular officer within the discretion given to him by his own national instructions—but discrimination on the basis of nationality is not precluded by Article 46. (b) Further Action by Member States under Article 23 TFEU, First Indent Member States adopted ‘the necessary provisions … required to secure this protection’ in the form of the 1995 Decision of the Representatives of the Governments of the Member States meeting within the Council38—already described—and its companion implementing Decision.39 There have been supplementary implementing internal measures taken within the framework of the Council Working Party on Consular Affairs, COCON—for

36

Available at www.ittig.cur.it. Listed among consular functions in Art 5(h) of the Vienna Convention on Consular Relations. It has been argued that the limited cover granted under the 1995 Decision is incompatible with the Treaty entitlement: see T Stein, ‘Diplomatic Protection under the European Union Treaty’ (Interim Report on International Law Association Report on the 70th Conference, New Delhi, 2002) 277, 278. 38 Decision 95/553/EC, [1995] OJ L314/73. 39 Council doc 11107/95 of 17.11.1995. 37

Eileen Denza

1189

46.43

Part I – Commentary on the Articles of the EU Charter

example regarding coordination of travel advice and changes to it, and the development of the concept of a ‘lead state’ particularly in cases of emergency. Member States have taken the view in the light of their practical experience of extending consular protection, that more detailed internal arrangements are best determined by missions in each capital or other place in a third country. Coordination sur place has the advantage of being adapted to local circumstances and easily adapted in the event of emergency. 46.44 More controversial is the requirement in Article 23 for Member States to ‘start the international negotiations required to secure this protection’. The then Presidency notified the 1995 Decision to third states, and this met with no protest or objection. The Commission has however consistently suggested that Article 23 TFEU requires each Member State to embark on specific negotiations with all non-Member States—so entailing approximately 170 x 28 sets of negotiations. The responses set out in the CARE Project Report already described—Consular and Diplomatic Protection: Legal Framework in the EU Member States—show that no Member State has embarked on negotiations for this specific purpose alone. Where negotiations for a new or revised consular convention with a non-Member State are independently under way, a few states have however taken the opportunity to confirm in any resulting instrument the right set out in Article 46 of the Charter.40 46.45 It must be questioned whether such a massive negotiating enterprise is in fact legally required by the terms of Article 23. When the provision first came into force in 1993, it might well have been thought that a mission of one Member State seeking to exercise protective functions on behalf of a national of another Member State was likely to encounter resistance from the authorities of the host state, and it is not disputed that the host state is entitled under international law to deny the right of another state to exercise protective functions other than in respect of its own nationals. Twenty years later there is no evidence that such resistance has been a practical obstacle. This has been confirmed by the replies given by all the Member States to the specific question on the matter.41 The absence of any recorded cases of objection confirms the view that an extensive negotiating exercise would be quite disproportionate to any possible result in terms of increased legal certainty. Consular protection by one Member State of the nationals of another has also taken place under the terms of two regional agreements, the 1962 Helsinki Treaty of Cooperation among the five Scandinavian states42 and the 1999 Agreement on Consular Cooperation among the three Baltic states43 and again there is no record of objections having been raised by third states. It cannot therefore now be maintained that such international negotiations are in practice ‘required’ to secure protection for unrepresented EU citizens. 46.46 It is also likely that attempts to negotiate specific acknowledgment of a right by one EU Member State to protect a national of another would be counter-productive. NonMember States in the face of attempts to protect in specific cases have in fact raised no objection—either for humanitarian reasons knowing that the individual applicant is

40 For example Portugal, in negotiating an Agreement with Russia in 2001: ‘Consular and Diplomatic Protection: Legal Framework in the Member States’, available at www.ittig.cur.it, p 374. 41 See the national responses and analysis in the document ‘Consular and Diplomatic Protection’, cited in n 39. 42 Denmark, Sweden, Finland, Iceland and Norway. 43 Estonia, Latvia and Lithuania.

1190

Eileen Denza

Art 46 – Diplomatic and Consular Protection

in distress or regarding the matter as de minimis. Numerous examples of acquiescence by third states have therefore built up the case for asserting that there has developed a customary international law exception to the restricted right of protection deriving from the special nature of the relations between Member States of the Union.44 But attempts to secure a general and binding guarantee of such entitlement from non-Member States would be another matter, and could well give rise to rejection which would undermine the growing acquiescence in the practice. Member States have therefore acted with good judgement and prudence in taking the view that further deliberate action under the terms of Article 23 is not in fact ‘required’ in order to secure the right given under Article 46 of the Charter.45 (c) Further Action by the Council under Article 23 TFEU, Second Indent 46.47

Article 23 as revised by the Treaty of Lisbon provides that The Council, acting in accordance with a special legislative procedure and after consulting the European Parliament, may adopt directives establishing the coordination and cooperation measures necessary to facilitate such protection.

As explained above, Member States have preferred to build up practical coordination 46.48 and cooperation at the level of local posts, where informal arrangements may be easily adapted to local circumstances and difficulties. In its 2011 Report on Consular protection for EU citizens in third countries,46 the Commission stated that it would shortly ‘submit legal proposals establishing the coordination and cooperation measures necessary to facilitate consular protection for unrepresented EU citizens and addressing the issue of financial compensation of consular protection in crisis situations’. For this purpose it would hold discussions with the Parliament, the Council, the Member States, the European External Action Service and other stakeholders. In December 2011, as noted above, the Commission duly proposed a Directive on consular protection for citizens of the Union abroad.47 This would repeal and replace Decision 1995/553/EEC. It would clarify the concept of ‘accessible representation’, whose absence triggers the entitlement, clarify which EU Member State has a duty to assist and how coordination with the Member State of nationality is to take place, formalise arrangements for local coordination among EU posts and make more precise rules for crisis situations and for financial reimbursement. It would extend the entitlement to family members of EU citizens who are nationals of third countries. It would not however extend the entitlement to cover other forms of ‘protection’.

44 On practice in the formation of a rule of customary international law, see M Mendelson, ‘The Formation of Customary International Law’ (1998) 272 Recueil des cours, cc II and V; Jennings and Watts (eds), Oppenheim’s International Law, 9th edn (London and New York Longman, 1996) 25–31. 45 See the Final Report of the International Law Association’s Committee on Diplomatic Protection of Persons and Property (Toronto, 2006) which states (p 389) that following the adoption of the 1995 Decision, ‘The interpretation given to Article 20, however, in a way rendered “international negotiations with third States” unnecessary and member states seem to have understood that protection is limited exclusively to “consular protection”, particularly to assistance in cases of death, serious accident or illness, arrest or detention, violent crime, and to the relief and repatriation of distressed citizens.’ 46 COM (2011) 149/2, p 13. 47 COM (2011) 881 final. The European Parliament Report of 10. 10. 2012 on the proposal is A7-0288/2012.

Eileen Denza

1191

Part I – Commentary on the Articles of the EU Charter

(d) Information 46.49 It is also common ground among the Member States and the Commission that the biggest obstacle to fully effective implementation of the right to protection of unrepresented Union citizens from missions or posts of other Member States is not the absence of full legal implementation or enforcement, but widespread lack of awareness of the facility. In spite of the numerous examples of the extension of protection reported by the Member States, and attempts by the Commission and by Member States to spread information about it to travellers, it is apparent that a significant proportion of EU citizens are unaware of the possibility of obtaining help in this way. It is of course the case that many citizens are unaware of the exact scope of protection to be secured from their own embassies or consulates abroad until they actually find themselves in unexpected difficulties—and this in spite of efforts by all Member States to make available to its citizens through leaflets, through the internet or on passports the scope of what can and cannot be expected.48 So the proportion of EU citizens who fail to obtain available and necessary protection abroad from another Member State’s mission through ignorance is probably much smaller than the proportion of citizens polled other than in crisis situations who fail to answer correctly a question about an entitlement which at the time is to them purely hypothetical. Most Member States and the Commission have made significant efforts to improve availability of online information, and there has been some consideration given to setting up a single emergency phone number which could be used to obtain information about possible help in any place in a non-Member State. In 2009 the Commission issued a recommendation that Member States should repro46.50 duce the first sentence of what is now Article 23 in national passports issued after 1 July 2009. Most Member States accepted this recommendation.49 (e) Crisis Situations 46.51 The right to protection on a non-discriminatory basis from another Member State is of most importance and secures the greatest publicity in the context of crises whether caused by natural disaster or by political events. Special contingency planning has taken place among diplomatic and consular posts for such events, and most Member States accord a higher degree of protection in these circumstances—for example including non-EU family members of EU citizens in evacuation arrangements. The Treaties give no express role to the Commission in the implementation of the Charter right to protection from diplomatic and consular missions of another Member State, but the EU delegations may assist upon request particularly with coordination. The Commission also play a role in measures to respond to crises through the Civil Protection Mechanism set up by the Council in 2007.50 When the mechanism is activated, the Monitoring and Information Centre will provide information about civil protection facilities—such as

48 The UK, for example, has successively provided a leaflet ‘Get it right before you go’ with passports, an online travel advertisement ‘What we can do to help’, and currently (since 2009) comprehensive advice ‘Support for British nationals abroad: A guide’, available online at www.fco.gov.uk or in hard copy. 49 COM (2011) 149/2, p 6. At that time only six Member States had declined to follow the recommendation, or had not yet decided whether to do so. 50 Council Decision 2007/779/EEC.

1192

Eileen Denza

Art 46 – Diplomatic and Consular Protection

transport, medical assistance and evacuation—available from the participating states, including the EEA states as well as EU members. The Mechanism was used following the terrorist attacks in Mumbai in 2008 and to assist with the evacuation of Europeans during the Libyan crisis in 2011.51 The Libyan crisis also highlighted the importance of the Charter right to protec- 46.52 tion—only eight Member States were represented in Tripoli, while at the outset there were 6,000 EU citizens in need of protection.52 As pointed out by Madalina Moraru: While the number of Union citizens in need of protection abroad increases, the number of consular and diplomatic representations of the Member States decreases, mainly due to the financial crises that recently affected each of them. The result is that a number, higher than ever before, of Union citizens cannot obtain protection in third countries from their home Member States.53

VI. Limitations Pursuant to Article 52(2) of the Charter, the limitations and derogations relevant to the right set out in Article 46 of the Charter are those set out in the EU measures giving effect to this right. These limitations have been discussed above.

46.53

VII. Remedies It is common ground among the Member States and the Commission that the right as implemented in Article 23 TFEU is subject to judicial review and has direct effect. Under ordinary rules of EU law, the same would be true of many provisions in a Directive under Article 23 TFEU if adopted by the Council. The position of the Member States emerges from their responses as set out in the Report on Consular and Diplomatic Protection: Legal framework in the EU Member States.54 The Commission in its 2011 Communication55 stressed that national courts have to apply Article 23 like any other provision of Union law: ‘Unrepresented EU citizens have the right that their request for consular protection is duly considered: a refusal decision is subject to judicial review and in accordance with established case-law on State liability may render liable for harm caused.’ There appear however to be no reported cases confirming this. It is apparent from the statistical information supplied by the Member States that they have extended protection when asked by EU citizens other than their own nationals, both extensively and on a basis of non-discrimination, and that other avenues of 51

COM (2011) 149/2, p 8. Ibid, p 3. 53 ‘The Protection of EU Citizens in the World: A Legal Assessment of the EU Citizen’s Right to Protection Abroad’, in J Larik and M Moraru (eds), Ever Closer to Brussels—Ever Closer to the World? EU External Action after the Lisbon Treaty, EUI Working Paper 2011/10. 54 At www.ittig.cur.it, pp 623–29. See also C Hilson, ‘What’s in a Right? The relationship between Community, fundamental and citizenship rights in EU law’ (2004) 29 European Law Review 636. The right to protection appears to fall under all three categories of right, though it might be arguable whether it is ‘fundamental’. 55 COM (2011) 149/2, p 4. 52

Eileen Denza

1193

46.54

46.55

Part I – Commentary on the Articles of the EU Charter

complaint or redress are available in the event of refusal. These include recourse by way of complaint to the Ministry of Foreign Affairs, to the national Ombudsman or to an administrative tribunal. The disappointed citizen could also complain to the European Commission or to the European Parliament.56 46.56 So the absence of case law does not indicate that the system is not working effectively when requests are lodged by unrepresented EU citizens at the posts of other Member States. The EU citizen who fails to secure the emergency assistance requested at the first mission he approaches is likely to try another mission, contact his own authorities elsewhere, or press friends, family or the local authorities for more effective help. Embarking on costly litigation in an unfamiliar jurisdiction is unlikely to be uppermost in his mind as a remedy for what in most cases will be a short-term problem.

E. Evaluation 46.57 The right of the EU citizen living or travelling abroad in a place where his own Member State is not represented to benefit on a non-discriminatory basis from protection from a diplomatic mission or consular post of any other Member State is one of real and increasing importance. It has to a significant extent achieved its original purposes of enhancing the practical application of European citizenship, intensifying diplomatic and consular cooperation outside the Union and strengthening the perceived identity of the Union in third countries. This positive evaluation is based on appraisal of practice and in particular on the extensive use of the facility reported by the Member States in the context of the Project organised by Citizens Consular Assistance Regulation in Europe (CARE). 46.58 The academic comment by contrast has been very limited, much of it based on misunderstandings of the Treaty texts, unfamiliarity with diplomatic and consular practice, and an obsession with testing the effectiveness of Treaty provisions by reference to decided cases—of which in this context there are no useful examples. It is argued above that the provision should not be assessed by reference to the number of citizens unaware in the abstract of the existence of the facility or supposing that it entitles them to the treatment which would be given by a hypothetical mission of their own Member State. The proper test lies in the number of citizens assisted in conditions of actual individual difficulty or collective crisis. This is not to say that the recent efforts to improve awareness through information on individual passports, on internet websites and at ports should not be stepped up—but this is already happening. 46.59 The Member States have kept their focus on making the Charter right effective in practice—which has usually meant strengthening of cooperation and contingency arrangements in individual posts. They have accepted that there would be no practical benefit from trying to negotiate specific acknowledgment of their right to protect all EU citizens from non-Member States, and little purpose in seeking further to harmonise divergent consular practices or creating an individual ‘right’ to diplomatic or consular services in all national laws. What would increase the effectiveness of the right would be 56

1194

Saliceti, ‘The Protection of EU Citizens Abroad’ (n 23).

Eileen Denza

Art 46 – Diplomatic and Consular Protection

some of the clarifications proposed by the Commission regarding when the entitlement is triggered and improving local coordination. It might in the future also be possible to extend the cover to include other aspects of ‘protective’ consular functions such as, for example, child abduction. One might hope for greater publicity to be given to the growing use of the right to common protection for overseas missions—but given the current climate of financial retrenchment in overseas representation it would be unrealistic to suppose that governments will seek to highlight that services financed by their own taxpayers are freely available to fellow citizens of the European Union.

Eileen Denza

1195

Article 47 Article 47 Right to an Effective Remedy and to a Fair Trial 1. Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. 2. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. 3. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.

Text of Explanatory Note on Article 47 The first paragraph is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Union law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined that right in its judgment of 15 May 1986 as a general principle of Union law (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313). According to the Court, that general principle of Union law also applies to the Member States when they are implementing Union law. The inclusion of this precedent in the Charter has not been intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to admissibility for direct actions before the Court of Justice of the European Union. The European Convention has considered the Union’s system of judicial review including the rules on admissibility, and confirmed them while amending them as to certain aspects, as reflected in Articles 251 to 281 of the Treaty on the Functioning of the European Union, and in particular in the fourth paragraph of Article 263. Article 47 applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law. The second paragraph corresponds to Article 6(1) of the ECHR which reads as follows: ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.’ In Union law, the right to a fair hearing is not confined to disputes relating to civil law rights and obligations. That is one of the consequences of the fact that the Union is a community based on the rule of law as stated by the Court in Case 294/83, ‘Les Verts’ v European Parliament

Part I – Commentary on the Articles of the EU Charter

(Judgment of 23 April 1986, [1986] ECR 1339). Nevertheless, in all respects other than their scope, the guarantees afforded by the ECHR apply in a similar way to the Union. With regard to the third paragraph, it should be noted that in accordance with the case-law of the European Court of Human Rights, provision should be made for legal aid where the absence of such aid would make it impossible to ensure an effective remedy (ECHR judgment of 9 October 1979, Airey, Series A, Volume 32, p 11). There is also a system of legal assistance for cases before the Court of Justice of the European Union.

Select Bibliography P Aalto, Public Liability in EU law: Brasserie, Bergaderm and beyond (Oxford, Hart Publishing, 2011). A Arnull ‘The Principle of Effective Judicial Protection in EU law: an Unruly Horse?’ (2011) 36 European Law Review 51. S Balthasar, ‘Locus Standi Rules for Challenges to Regulatory Acts by Private Applicants: the New Art. 263(4) TFEU’ (2010) 35 European Law Review 15. J Engström, ‘The Principle of Effective Judicial Protection after the Lisbon Treaty’ (2011) 4 Review of European Administrative Law 53. A Eser, ‘Artikel 47’ in J Meyer (ed), Charta der Grundrechte der Europäischen Union, 3rd edn (Baden-Baden, Nomos, 2011). D-U Galetta, Procedural Autonomy of EU Member States: Paradise Lost? (Heidelberg, Springer, 2010). H Hofmann, G Rowe and A Türk (eds), Administrative Law and Policy of the European Union (Oxford, Oxford University Press, 2011). D Leczykiewicz, ‘Effective Judicial Protection of Human Rights After Lisbon: Should National Courts be Empowered to Review EU Secondary Law’ (2010) 35 European Law Review 326. K Lenaerts, ‘The Rule of Law and Coherence of the Judicial System of the European Union’ (2007) 44 Common Market Law Review 1625. ——, ‘Le traité de Lisbonne et la protection juridictionnelle des particuliers en droit de l’Union’ (2009) 45 Cahiers de Droit Européen 711. R O’Connell, ‘Cinderella comes to the Ball: Article 14 and the right to non-discrimination in the ECHR’ (2009) 29 (2) Legal Studies: The Journal of the Society of Legal Scholars 211. L Pech, ‘“A Union founded on the Rule of Law”: Meaning and Reality of the Rule of Law as a Constitutional Principle of EU Law’ (2010) 6 European Constitutional Law Review 359. S Peers and M Costa, ‘Judicial Review of EU Acts after the Treaty of Lisbon’ (2012) 8 European Constitutional Law Review 82. M Poelemans, La sanction dans l’ordre juridique communautaire (Bruxelles, Bruylant, 2004). S Prechal and R Widdershoven, ‘Effectiveness or Effective Judicial Protection: A Poorly Articulated Relationship’ in T Baumé (ed), Today’s Multilayered Legal Order: Current Issues and Perspectives. Liber Amicorium in Honour of Arjen W.H. Meij (Paris, Legal Publishers, 2011) 283. ——, ‘Redefining the Relationship between “Rewe-effectiveness” and Effective Judicial Protection’ (2011) Review of European Administrative Law 31. D Shelton, Remedies in International Human Rights Law, 2nd edn (Oxford, Oxford University Press, 2006). W van Gerven, ‘Of Rights, Remedies and Procedures’ (2000) 37 Common Market Law Review 501. J Wakefield, ‘Retrench and Reform: The Action for Damages’ (2009) 28 Yearbook of European Law 390. A Ward ‘Locus Standi under Article 230(4) of the EC Treaty: Crafting a Coherent Test for a “Wobbly Polity”’ (2003) 32 Yearbook of European Law 45. ——, ‘National and EC Remedies under the EU Treaty; Limits and the Role of the ECHR’ in C Barnard and O Odudu (eds), The Outer Limits of the Treaty (Oxford, Hart Publishing, 2011) 329. 1198

Angela Ward

Art 47 – Right to an Effective Remedy

——, ‘Damages under the EU Charter of Fundamental Rights’ (2012) 12 ERA Forum 589. ——, Judicial Review and the Rights of Private Parties in EU Law (Oxford, Oxford University Press, 2007).

A. Field of Application Article 47 of the Charter applies wherever EU law guarantees ‘rights and freedoms’, 47.01 a concept which does not appear to have any independent meaning (see section D.II below). Given its wide scope, the question of whether Article 47 is applicable to a particular dispute is indistinguishable from the question of whether (pursuant to Article 51 of the Charter) the Charter applies in the first place. Therefore, once there is a sufficient link to EU law for the Charter to apply at all, in accordance with the case law on Article 51, an effective remedy and a fair trial (as further defined in Art 47) has to be ensured.1

B. Interrelationship with Other Provisions of the Charter While Article 47 is obviously interrelated to all of the remaining provisions of the Charter, it has a particularly strong connection with certain of those provisions. First of all, Article 8 of the Charter provides for specific remedies: a right of access and rectification as regards personal data, plus an obligation on Member States to establish an independent supervisory authority to ensure the effective application of data protection rights. Secondly, the general principle of equality set out in Article 20 overlaps with the rule that remedies for breach of EU law rules should be the same as those for the breach of comparable rules of national law.2 Thirdly, Article 41 provides for partly overlapping protection in the context of administrative procedure, expressly as regards the EU institutions and other EU bodies and implicitly, at least to some extent, with respect to Member State administrative entities. Article 41 protection includes damages. However, damages liability also arises under Article 47, although in a different context. Thus damages liability will also be addressed in the following commentary on Article 47.3 Fourthly, again as regards the EU institutions, bodies, offices or agencies, Articles 43 provides for possible complaints to the EU Ombudsman, Fifthly, Article 44 sets out the right to petition the European Parliament. Finally, Article 48 provides for specific protection for the rights of the defence, overlapping with the second sentence of

1 On the outer limit of Art 47, and the types of initiative falling beyond its reach, see most notably the judgment of the Court of 27 November 2012 in Case C-370/12 Thomas Pringle v Government of Ireland, and the View of Advocate General Kokott of 26 October 2012. For a commentary on this case, see S Adams and FJ Parras, ‘The European Stability Mechanism through the legal meanderings of Union’s constitutionalism: Comment on Pringle’ (2013) European Law Review. 2 For a detailed discussion of the principle of equivalence, see section D.IV. 3 See section D.V and section D.III.

Angela Ward

1199

47.02

47.03

47.04

47.05

Part I – Commentary on the Articles of the EU Charter

Article 47(2). The rights of the defence will therefore be addressed in the chapter in this volume on Article 48, rather than here in the commentary on Article 47.

C. Sources of Article 47 Rights DINAH SHELTON4 47.06 The Article 47 guarantees of an effective remedy and a fair trial are well established in global and regional human rights law. This corpus of international human rights law forms an important source of law for the application and development of Article 47.5 The relevant rules as elaborated by international human rights bodies will be considered in this section, by way of introduction to an analysis of the principles that have been elaborated by the Court of Justice on the various elements of Article 47. 47.07 As noted above in section A, Article 47 does more than guarantee an effective remedy for breach of the Charter of Fundamental Rights. Rather, it is broadly concerned with ensuring effective enforcement of EU law guaranteed ‘rights and freedoms’. Nonetheless the focus of international human rights law has been on the provision of remedies for breaches of human rights. That development will be detailed in this section. 47.08 The right to an effective remedy under international law when human rights have been breached will first be addressed, followed by discussion of the relevant international human rights principles concerning three of the substantive elements of Article 47, namely the right to a ‘fair and public hearing’ by ‘an independent and impartial tribunal previously established by law’ and the right to ‘legal aid’. 47.09 Under international law, the enforcement of all human rights is first and foremost the responsibility of each state, which is bound to comply in good faith with norms of customary international law and with the treaties in force to which the state is a party (pacta sunt servanda).6 Indeed, the Vienna Declaration and Program of Action affirmed that ‘the promotion and protection of human rights and fundamental freedoms is the first responsibility of government’.7 If a state fails, by an act or omission attributable to it, to comply with any international obligation, the law of state responsibility requires the cessation of the breach and generates a new legal duty to afford reparation for any harm caused by the violation.

I. An ‘Effective Remedy’ 47.10 The right to a remedy, or the obligation of states to provide a remedy, when human rights are violated is expressly guaranteed by most global and regional human rights instruments. These texts guarantee the same two requisites of a remedy that are set forth in Article 47: the procedural right of effective access to a fair hearing, and the 4 Professor of International Law, George Washington University Law School, Commissioner of the InterAmerican Commission on Human Rights. 5 Case 11/70 International Handelsgessellschaft [1970] ECR 125. 6 Vienna Convention on the Law of Treaties, Art 26 (1969) 1155 UNTS 331. 7 Vienna Declaration and Program of Action, UN Doc A/CONF.157/23 (1993), para 1.

1200

Dinah Shelton

Art 47 – Right to an Effective Remedy

substantive right to adequate redress. These elements have been further developed in the case law of human rights bodies. Although no definition of the term ‘remedy’ is found, the European Court of Human Rights has been clear in finding that it does not cover discretionary actions or matters of grace, such as the British ‘petition to the Queen’.8 A state that breaches its human rights obligations has the primary duty to afford redress to the victim of the violation. The role of international tribunals is subsidiary, but the authority of human rights tribunals to afford remedies is uncontested. Judicial bodies have inherent power to remedy breaches of law in cases within their jurisdiction. In addition, human rights treaties sometimes explicitly confer competence to afford redress on the organs they create to hear cases. Where states fail to provide the necessary remedies for human rights violations, international institutions are the forum of last resort. In general, the reparation provided through an effective remedy should be proportional to the gravity of the violations and damages suffered. The measures taken should include restitution, whenever possible, to restore the victim to the situation existing before the violation occurred. These can involve restitution of property or money, release of detainees, reinstatement of an individual wrongfully or arbitrarily discharged, or other measures to eliminate the wrong.9 Rehabilitation should include medical and psychological care as well as legal and social services. Increasingly, human rights bodies include a right to know the truth among the required measures of redress, under the heading of satisfaction. Other measures of satisfaction include apologies, acknowledgement of responsibility, and commemoration memorials to the victims. Compensation is required for pecuniary and moral damages in most cases. In addition, human rights bodies consistently insist on measures to guarantee non-repetition of the violation. Given this widespread recognition of the right to a remedy in law and practice, many consider it to be a norm of customary international law. The Universal Declaration of Human Rights10 provides that ‘[e]veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or laws.’ At the regional level, the European Convention on Human Rights modelled its general remedial provision— Article 13—on Article 8 of the Universal Declaration of Human Rights. The European Court of Human Rights has interpreted Article 13 as guaranteeing an effective remedy ‘to everyone who claims that his rights and freedoms under the Convention have been violated’.11 The remedy provided must be ‘as effective as can be having regard to the restricted scope for recourse inherent’ in the case.12 With respect to the denial of the right to life, deemed to be ‘one of the most fundamental in the scheme of the Convention’, the remedies must be guaranteed for the benefit of the relatives of the victim. Where those relatives have an arguable claim that

8 Greece v United Kingdom App no 299/57, YB II (1958–1959) 186, 192. On the meaning of the right to an effective remedy in EU law, see section D.III. 9 See M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 2nd edn (Kehl/Strasbourg/ Arlington, NP Engel, 2005) 70–71. 10 GA Res 217A (III), UN Doc A/810, 10 Dec 1948. 11 Klass v Germany (1979) ECHR Series A no 28. 12 Ibid [31], [69].

Dinah Shelton

1201

47.11

47.12

47.13 47.14

47.15

47.16

Part I – Commentary on the Articles of the EU Charter

the victim has been unlawfully killed by agents of the state, the notion of an effective remedy for the purposes of Article 13 entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the relatives to the investigatory procedure. Other human rights tribunals are equally insistent that there is a general duty of governments in all case of gross human rights violations, such as torture, arbitrary executions and enforced disappearances, to conduct thorough criminal investigations in order to bring the perpetrators to justice, deriving from the right to an effective remedy. In case of ‘serious doubt’, the respondent state has the burden of proving that existing 47.17 remedies are effective.13 The notion of an effective remedy may require, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible, including effective access by the complainant to the investigative procedure.14 In other instances, the possibility of obtaining compensation may constitute an adequate remedy.15 In contrast, a remedy is ineffective if, considering well-established case law, it does not offer any real chance of success.16 47.18 The requirements of Article 13 are broader than the procedural obligation under Article 2 to conduct an effective investigation. Because of the high standard of proof at the European Court, the conclusion on the merits does not dispense with the requirement that the government conduct an effective investigation into the substance of the allegation. The Council of Europe’s Committee of Ministers reinforced Article 13 with a recommendation adopted in 1984 that calls on all Council of Europe member states to provide remedies for governmental wrongs.17 Judicial remedies are not necessarily required under international human rights law to enforce substantive breach of human rights. The European Court of Human Rights indicates that if judicial remedies are not provided the powers and procedural guarantees of the alternative remedies are relevant factors for determining the effectiveness of the remedy provided.18 Moreover, it may be possible to cumulate remedies to indicate that even if no single remedy is effective, the aggregate of remedies will be. 47.19 In addition to Article 13, European Convention Article 5(5) requires compensation for breach of the right to be free from arrest in violation of the provisions of Article 5. When applicable, it requires a legally binding award of compensation.19 The state may require proof of damage resulting from the breach and probably has a wide margin of appreciation in regard to the quantum:20 Article 3 of Protocol 7 provides for compensation in cases of a reversed criminal conviction. Article 4 of Protocol 7 provides for the

13

Akdivar v Turkey (Judgment of 16 Sept 1996) [68]. Dogan and Others v Turkey (Judgment of 29 June 2004) [106]–[108]. Frederiksen and Others v Denmark App no 127/97, Reports 56 (1988) 237. 16 Costell-Roberts v United Kingdom App no 13134/87, Reports 67 (1991) 216. 17 Recommendation No R (84) 15 on Public Liability, adopted by the Committee of Ministers on 18 September 1984. 18 Klass (n 11) [67]; Silver and Others v United Kingdom (1983) ECHR Series A no 61 [113]. 19 Brogan v United Kingdom (1988) ECHR Series A no 145B and Fox, Campbell and Hartley v United Kingdom (1990) ECHR Series A no 182. 20 Wassink v Netherlands (1990) ECHR Series A no 185A. 14 15

1202

Dinah Shelton

Art 47 – Right to an Effective Remedy

possibility of reopening the case following a fundamental defect during the criminal proceeding. While the principle of full redress applies in domestic proceedings, the European Court of Human Rights has held that it is not the regional body’s role ‘to function akin to a domestic tort mechanism court in apportioning fault and compensatory damages between civil parties’. Rather, it held that ‘its guiding principle is equity, which above all involves flexibility and an objective consideration of what is just, fair and reasonable in all the circumstances’.21 Among global instruments, the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 contains three separate articles on remedies. The first, Article 2(3), obliges the States Parties to the Covenant to afford an effective remedy to a victim notwithstanding that the violation has been committed by persons acting in an official capacity; to ensure that claims are heard by competent judicial, administrative or legislative authorities; and to ensure that the competent authorities shall enforce such remedies when granted. Articles 9(5) and 14(6) add that anyone unlawfully arrested, detained, or convicted shall have an enforceable right to compensation or be compensated according to law. The Human Rights Committee has identified the kinds of remedies required, depending on the type of violation and the victim’s condition. The Committee has indicated that a state that has engaged in human rights violations, in addition to treating and compensating the victim financially, must undertake to investigate the facts, take appropriate action, and bring to justice those found responsible for the violations. The Committee’s recommended actions have included: public investigation to establish the facts; bringing to justice the perpetrators; paying compensation; ensuring non-repetition of the violation; amending the offending law; providing restitution; and providing medical care and treatment. In the case of Hugo Rodriguez v Uruguay,22 the Committee affirmed that amnesties for gross violations of human rights are incompatible with the duty to provide effective remedies to the victims of those abuses. Nor are purely disciplinary and administrative remedies adequate and effective within the meaning of Article 2(3) for particularly serious violations. Several texts require compensation be paid to victims. The United Nations Convention against Torture, (adopted 10 December 1984, in force 26 June 1987) 1465 UNTS 85, Article 14, specifies as follows: ‘Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.’ Among treaties adopted by the specialised agencies, the ILO Convention No 169 Concerning Indigenous and Tribal Peoples in Independent Countries23 also refers to ‘fair compensation for damages’ (Art 15(2)), ‘compensation in money’ (Art 16(4)) and full compensation for ‘any loss or injury’ (Art 16(5)).24

21 Case of Varnava and Others v Turkey [GC] (merits and just satisfaction) App no 16064/90 (18 September 2009) [2009] Reports and Judgments and Decisions 2009. 22 Rodríguez v Uruguay Communication No 322/1988, UN Doc CCPR/C/51/D/322/1988 (1994). 23 Adopted 27 June 1989, in force 5 September 1991 (1989) 28 ILM 1382. 24 With regard to damages for breach of the EU Charter of Fundamental Rights see section D.V.

Dinah Shelton

1203

47.20

47.21

47.22

47.23

Part I – Commentary on the Articles of the EU Charter

Non-monetary remedies may be specified. In General Recommendation No 525 the Committee on the Elimination of Discrimination against Women announced that States Parties should make more use of temporary special remedial measures such as positive action, preferential treatment, or quota systems to advance women’s integration into education, the economy, politics and employment. The Working Group on Involuntary or Enforced Disappearances also made reference to non-monetary remedies in a commentary to Article 19 of the 1992 UN Declaration on the Protection of All Persons from Enforced Disappearance. The Working Group noted that the Declaration imposes a primary duty to establish the fate and whereabouts of disappeared persons as an important remedy for victims. There is also a right to adequate compensation. Compensation is deemed ‘adequate’ if it is ‘proportionate to the gravity of the human rights violation (eg the period of disappearance, the conditions of detention, etc) and to the suffering of the victim and the family’. Amounts shall be provided for any damage, including physical or mental harm, lost opportunities, material damages and loss of earnings, harm to reputation, and costs required for legal or expert assistance. In the event of the death of the victim, as a result of an act of enforced disappearance, the victims are entitled to additional compensation. Measures of rehabilitation should be provided, including medical and psychological care, rehabilitation for any form of physical or mental damage, legal and social rehabilitation, guarantees of non-repetition, restoration of personal liberty, family life, citizenship, employment or property, return to the place of residence, and similar forms of restitution, satisfaction and reparation that may remove the consequences of the enforced disappearance. The United Nations has elaborated texts that indicate required or appropriate rem47.25 edies for specific kinds of violations. The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power26 contains broad guarantees for those who suffer pecuniary losses, physical or mental harm, and ‘substantial impairment of their fundamental rights’ through acts or omissions, including abuse of power. Victims are entitled to redress and to be informed of their right to seek redress. The Declaration specifically provides that victims of public officials or other agents who, acting in an official or quasi-official capacity, violate national criminal laws, should receive restitution from the state whose officials or agents are responsible for the harm inflicted. Abuse of power that is not criminal under national law but that violates internationally recognised norms relating to human rights should be sanctioned and remedies provided, including restitution and/or compensation, and all necessary material, medical, psychological, and social assistance and support. In 2005 the General Assembly adopted the Basic Principles and Guidelines on the Right to Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.27 The text did not create any new substantive international or domestic legal obligations, but instead identified mechanisms, modalities, procedures and methods for implementing existing legal obligations. The various forms of reparation identified are restitution, rehabilitation, compensation, satisfaction and guarantees of non-repetition. 47.24

25 26 27

1204

7th Sess 1988, UN Doc A/43/38. UN GA Res 40/34, 29 Nov 1985. UN GA Res A/RES/60/147, 16 Dec 2005.

Dinah Shelton

Art 47 – Right to an Effective Remedy

The European Court of Human Rights (ECtHR) has inferred the right to know the 47.26 truth as part of the right to be free from torture or ill-treatment, the right to an effective remedy and the right to an effective investigation and to be informed of the results.28 The Court has held that a state’s failure to conduct an effective investigation ‘aimed at clarifying the whereabouts and fate’ of ‘missing persons who disappeared in life-threatening circumstances’ constitutes a continuing violation of its procedural obligation to protect the right to life.29 In cases of enforced disappearances, torture and extrajudicial executions, the ECtHR has highlighted that the notion of an effective remedy for the purposes of Article 13 of the European Convention on Human Rights entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the relatives to the investigatory procedure. Humanitarian law also contains norms relating to remedies in case of a breach. 47.27 Article 3 of the Hague Convention Regarding the Laws and Customs of Land Warfare obliges contracting parties to indemnify for a violation of the regulations. Similarly, Protocol I to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts states that any party to a conflict who violates the provisions of the Geneva Conventions or the Protocol ‘shall ... be liable to pay compensation’.

II. A ‘Fair and Public Hearing’ Beginning at least from the Magna Charta (1215), concepts of fair trial and due 47.28 process of law have been foundational in domestic and, later, international law. The International Covenant on Civil and Political Rights (ICCPR) states that in the determination of ‘rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing’.30 This requirement forms the core of due process of law. It requires states to take positive measures to set up by law independent and impartial tribunals, providing them with competence to hear and decide on redress for victims of human rights violations. The right of a fair hearing includes the principle of equality of arms between the par- 47.29 ties. In addition, other procedural rights concerning evidence and finality and enforcement of judgments are protected under international human rights law.31 In the case of Golder v United Kingdom32 the European Court of Human Rights inter- 47.30 preted the right to a fair hearing in Article 6 as including the right of access to justice.

28 Tas v Turkey App no 24396/94 (ECtHR, 14 November 2000); Cyprus v Turkey App no 25781/94 (ECtHR, 10 May 2001). 29 Cyprus v Turkey App no 25781/94 (ECtHR, 10 May 2001) [136]. 30 International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171, Arts 9–14, Can TS 1976 No 47, 6 ILM 368 (entered into force 23 March 1976), Art 14(1) [ICCPR]. On the meaning of the right to a fair and public hearing under the law of the ECHR and in EU law, see section D.VIII. 31 On equality of arms, see, eg Ivcher Bronstein v Peru, Inter-AmCtHR Series C no 74 [107]; Dombo Beheer VB v Netherlands (ECtHR, 18 February 1997); Niderost-Huber v Switzerland ECHR 1997-I 107–08 [23]. On finality and enforcement of judgments, see, eg Taskin and Others v Turkey App no 46117/99 (ECtHR, 10 November 2004) 621. 32 Golder v United Kingdom (1975) ECHR Series A no 18.

Dinah Shelton

1205

Part I – Commentary on the Articles of the EU Charter

47.31

47.32

In addition to this general provision, Article 5(4) guarantees a right of habeas corpus. The nature of the hearing required depends on the type of violation. In the face of torture, the ECtHR held in Krastanov v Bulgaria, that civil and administrative proceedings are inadequate; criminal prosecution of the perpetrator is required.33 According to the Court, there should be no hindrance in law or fact to the ability to institute proceedings, unless the action is justified by and proportionate to a legitimate aim. Similarly, in Isayeva and Others v Russia it was held that, in light of the gravity of the breach of Article 2, Article 13 required effective prosecution of the persons responsible for the attack, full access by the victims to the investigation and appropriate compensation for the loss and damage suffered. This case also set forth criteria for testing the effectiveness of a remedy. They were (1) the investigation must be public and not left to the initiative of the victims; (2) the investigating body must be independent; (3) the inquiry must be carried out in a manner such as to lead to a determination whether the use of deadly force was justified under the circumstances, and (4) the investigation must be prompt. In general, an individual applicant ‘must have a bona fide opportunity to have his case tested on its merits and, if appropriate, to obtain redress’.34 On the modalities of judicial procedure, states may impose reasonable restrictions, including statutes of limitations or a requirement of legal representation, to ensure the proper administration of justice.35 The right of access thus may be subject to limitations, particularly regarding the conditions of admissibility of an appeal; however, limitations must not restrict exercise of the right in such a way or to such an extent that the very essence of the right is impaired.36 Any restrictions must pursue a legitimate aim and there must be reasonable proportionality between the means employed and the aim sought to be achieved.37 Neither the ICCPR nor the ECHR include due process and access to justice among the list of non-derogable rights, but the Human Rights Committee in General Comment No 29, States of Emergency (Art 4)38 asserts that states parties may ‘in no circumstances’ invoke Article 4 for deviating from ‘fundamental principles of fair trial, including the presumption of innocence’ (para 11). General Comment 32 (2007) provides further detail on the right to a fair and public hearing by a competent independent and impartial tribunal.39 The right to equality before courts and tribunals and to a fair trial is called a key element of human rights protection and a procedural means to safeguard the rule of law. As such, the guarantees of fair trial may never be made subject to measures of derogation that would circumvent the protection of non-derogable rights.40 The ‘requirement of competence, independence and impartiality of a tribunal in the

33

Krastanov v Bulgaria (Judgment of 30 September 2004) 458 [43]. Leander v Sweden (1987) ECHR Series A no 116. 35 Cf Stubbings v United Kingdom (1997) 23 EHRR 213, Hennings v Germany (1992) ECHR Series A no 251A. 36 Ashingdane v United Kingdom (1985) ECHR Series A no 93, 24–25 [57]. 37 FE v France (Judgment of 30 October 1998); Fayed v United Kingdom (1994) ECHR Series A no 294-B, 49–50 [65]; Bellet v France (1995) ECHR Series A no 333-B, 41 [31]; and Levages Prestations Services v France ECHR 1996–V 1543 [40]. On the meaning of right of access to a court in EU law, see section D.VI. 38 CCPR/C/21/Rev 1/Add 11, 31 Aug 2001. 39 CCPR/C/GC/32, 23 Aug 2007. 40 Comm No 64/1995, Lindon v Australia [19]. 34

1206

Dinah Shelton

Art 47 – Right to an Effective Remedy

sense of article 14, para 1, is an absolute right that is not subject to any exception’.41 The notion of fair trial includes the guarantee of a fair and public hearing. Equality before courts includes equality of access, that parties to proceedings are 47.33 treated without any discrimination. No distinction permitted regarding access to courts and tribunals that are not based on law and justified on objective and reasonable grounds.42

III. ‘Within a Reasonable Time’ The speed with which a remedy can be exercised may be relevant in assessing its effec- 47.34 tiveness.43 A hearing within a reasonable time is required by Article 6(1) ECHR and Article 8(1) of the ACHR, as well as ICCPR Article 14(3)(c). The European Court of Human Rights has interpreted Article 6(1) to require not only a fair trial but also a judgment within a reasonable time. What constitutes a reasonable time depends upon the circumstances and the complexity of the case, taking into account the conduct of all parties to the case. At the ICCPR, the burden of proof for justifying any delay and showing that a case was particularly complex rests with the State Party.

IV. ‘By an Independent and Impartial Tribunal Previously Established by Law’ Some international agreements explicitly call for the development of judicial remedies 47.35 for the rights they guarantee, although effective remedies may also be supplied by nonjudicial bodies. Article 2(3)(b) of the ICCPR defines the general obligation to provide an effective remedy by specifying that all persons have a right to a decision by a competent domestic authority, if possible a judicial body. General Comment No 3 issued by the Committee on Economic, Social and Cultural Rights, concerning the nature of state obligations pursuant to Covenant Article 2(1), proclaimed that appropriate measures to implement the Covenant might include judicial remedies with respect to rights that may be considered justiciable. It specifically pointed to the non-discrimination requirement of the treaty and cross-referenced to the right to a remedy in the Covenant on Civil and Political Rights. A number of other rights also were cited as ‘capable of immediate application by judicial and other organs’. Access to justice may require affording individuals recourse to tribunals to obtain 47.36 preventive measures when a violation is threatened. The Convention on the Elimination of Racial Discrimination44 Article 6, requires that States Parties assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other state institutions, against any acts of racial discrimination in violation of the Convention, as well as the right to seek from such tribunals

41

Comm No 262/1987, Gonzalez del Rio v Paru [5.2], [25]. Comm No 202/1986, Ato del Avellanal v Peru [10.2]. Selmouni v France App no 25803/94, Reports 88B (1997) 55. On the meaning of a ‘reasonable time’ in EU and ECHR law, see section D.VIII. 44 Adopted 21 December 1965, entered into force 4 January 1969, 660 UNTS 195. 42 43

Dinah Shelton

1207

Part I – Commentary on the Articles of the EU Charter

47.37

47.38

47.39

47.40

just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination. The language of this provision anticipates the use of injunctive or other preventive measures against discrimination, as well as compensation or other remedies for consequential damages. A similar provision requiring effective protection of women from discrimination is found in Article 2(c) of the Convention on the Elimination of All Forms of Discrimination against Women.45 The Universal Declaration of Human Rights and several global and regional treaties similarly refer to the right to legal protection for attacks on privacy, family, home or correspondence, or attacks on honour and reputation. The European Convention requires a fair hearing before an independent tribunal for determination of all civil rights and obligations and any criminal charge. According to the European Court of Human Rights, Article 13 does not necessarily require judicial remedies. See for example Klass and Others v Germany,46 where it was held that Article 13 guarantees an effective remedy ‘to everyone who claims that his rights and freedoms under the Convention have been violated’. See also Silver v United Kingdom,47 where the Court stated that ‘[a]n individual who has an arguable claim to be the victim of a violation of one of the rights in the Convention is entitled to a national remedy in order to have his claim decided and if appropriate to obtain redress.’ The European Court tests whether a tribunal is ‘independent’ for the purposes of Article 6(1), by examining, inter alia, the manner of appointment of its members and their term of office, the existence of safeguards against outside pressures and the question whether it presents an appearance of independence. As to the condition of ‘impartiality’ within the meaning of that provision, there are two tests applied: the first seeks to determine the personal conviction of a particular judge in a given case and the second to ascertain whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect. When applied to a body sitting as a bench, it means determining whether, quite apart from the personal conduct of any of the members of that body, there are ascertainable facts which may raise doubts as to its impartiality. Appearances may be of some importance and in deciding whether there is a legitimate reason to fear that a particular body lacks impartiality, the standpoint of those claiming that it is not impartial is important. It is not, however, decisive; what is decisive is whether the fear can be held to be objectively justified.48 Where investigatio