Fundamental Rights Challenges: Horizontal Effectiveness, Rule of Law and Margin of National Appreciation 3030727971, 9783030727970

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Cristina Izquierdo-Sans Carmen Martínez-Capdevila Magdalena Nogueira-Guastavino  Editors

Fundamental Rights Challenges Horizontal Effectiveness, Rule of Law and Margin of National Appreciation

Fundamental Rights Challenges

Cristina Izquierdo-Sans • Carmen Martínez-Capdevila • Magdalena Nogueira-Guastavino Editors

Fundamental Rights Challenges Horizontal Effectiveness, Rule of Law and Margin of National Appreciation

Editors Cristina Izquierdo-Sans Faculty of Law Universidad Autónoma de Madrid Madrid, Spain

Carmen Martínez-Capdevila Faculty of Law Universidad Autónoma de Madrid Madrid, Spain

Magdalena Nogueira-Guastavino Faculty of Law Universidad Autónoma de Madrid Madrid, Spain

ISBN 978-3-030-72797-0 ISBN 978-3-030-72798-7 https://doi.org/10.1007/978-3-030-72798-7

(eBook)

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG. 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

I can only begin by thanking my colleagues and fellow travelers in Project DER 2016-78646P. Some of them joined us from the beginning: Pedro Cruz Villalón, Laurence Burgorgue-Larsen, Daniel Sarmiento, Carmen Martínez-Capdevila, Magdalena Nogueira-Guastavino, Marian Ahumada, Nuria Bermejo, and Fernando Pastor. Needless to say, they were an excellent team. Each and every one of them has formidable intellectual talents and is committed to the study of fundamental rights. I was incredibly lucky, and I tried to make the best of this opportunity. They have all contributed ideas, activities, and proposals to the project, and their commitment was always encouraging. Daniel Sarmiento, always brilliant and innovative, organized the first seminar. He brought to our team José Antonio Gutiérrez-Fons, who wrote an interesting study for this volume. Daniel Sarmiento is also responsible for the final design of the book, resulting from the seminar held in Strasbourg on April 3 and 4, 2019. Within the framework of the project, we wanted to carry out one last activity with a certain international profile in cooperation with a particularly prominent institution in the field of human rights. Hence the idea of holding a seminar with the Council of Europe with the invaluable help of my friend—and legal officer at the Council—Amaya Úbeda. As for the subject matter of the seminar, although the project was mainly focused on the horizontal effect of fundamental rights, I realized that some members of the team were devoting increasing attention to the issue of human rights and the rule of law. Moreover, the national margin of appreciation was beginning to play a leading role in the determination of the core content of fundamental rights by international courts. I wanted all this to be the subject of discussion in our final activity and that is how we brought it together under the initial heading “Current Human Rights Issues.” In this context, we incorporated Paz Andrés Sáenz de Santa María, Javier García Roca, Manuel López-Escudero, José María Rodríguez de Santiago, Luis Arroyo, and Juan Ignacio Ugartemendia to the team. Obviously, it was a winning bet. As could not be otherwise, our starting point was the effect of fundamental rights among private parties. Marian Ahumada reflects about why we always come back to the endless debate on whether or not fundamental rights have a horizontal effect. In v

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her opinion, this question has no single answer—or at least not one that can provide long-lasting criteria. Against this background, Juan Ignacio Ugartemendia offers an excellent overview of the path followed by the CJEU. He explains how the adoption of the CFREU has fostered recognition of such effect within the CJEU, albeit only with regard to rights that can be invoked “as such”—that is, not with regard to the provisions of the Charter containing “principles” that require implementing legislation either of the EU or the Member States. Carmen Martínez-Capdevila clarifies an important point: the CJEU’s recent acknowledgment that individuals are directly bound by certain provisions of the Charter suggests that the CJEU does not intend to deal with the concept of “State” in this regard. It will no longer be so important to determine whether or not a certain body is an “emanation” of the State because in either case it will be bound by the Charter. However, the notion of “State” becomes more relevant when it comes to principles enshrined in the Charter and implemented through Directives. In the event of lack of or incorrect transposition, CJEU’s classic case law on the vertical direct effect of directives comes into play. Following this clarification, Magdalena Nogueira studies in depth one of the issues pointed out by J. I. Ugartemendia: CJEU’s unambiguous declaration that the right to paid holiday qualifies as a fundamental right directly applicable to relationships between private parties. Although it is implemented in a Directive, the right to paid annual leave applies pursuant to Art. 31(2) CFREU, which thus imposes the right’s horizontal effect in private employment relationships. In spite of these developments, Nuria Bermejo considers that the case law of the CJEU does not provide sufficient elements to generally state that the fundamental rights enshrined in the Charter have horizontal direct effect (with the only exceptions of fundamental rights granted or acknowledged within private law relationships—in Ugartemendia’s words, rights that can be invoked “as such”). However, even if fundamental rights do not entail by themselves obligations on private parties, they acquire horizontal effect through a legislative expression that determines their “social enforceability,” along with the courts’ interpretation and application. Fundamental rights intended to be effective within the private sphere are also covered by the aforesaid exception. According to N. Bermejo, this technique extends the direct horizontal effect of fundamental rights. The first part of the book ends with a brilliant analysis of the Samira Achbita judgment by Pedro Cruz Villalón. The case is particularly well chosen, as it brings into our debate the clash between a right unquestionably linked to individuals (such as the prohibition of discrimination) and a substantive right. Such clashes are not uncommon, and P. Cruz alerts us to the fact that the obligation imposed on private parties by the prohibition of discrimination does not always endorse the exercise of the conflicting substantive right—in this case, religious freedom. The second part of the book focuses on human rights and the rule of law. Laurence Burgorgue-Larsen begins by stating that the hitherto valid model of the rule of law is exhausted. Democratic disenchantment and social despair in European countries have fueled populism. Therefore, liberal democracies should offer more complex and sophisticated solutions than the guarantee of human rights, which requires a global reassessment of our contemporary societies. L. Burgorgue-Larsen ventures some proposals in that regard. Going from the general to the specific, three

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authors address some issues that affect the EU as a community of law. First, Paz Andrés explains—as thoroughly as always—the importance of the judicial dimension to counter the threats to the independence of the judiciary. Judicialization can be neither the only nor the first instrument to work out all deficiencies, but as long as the risks do not disappear and the remaining legal and political approaches remain unfeasible, we need the CJEU and the ECtHR—each in its role. The conclusion is hardly disputable. Manuel López-Escudero bluntly points to a downgrading of the requirements of the rule of law in the EMU since the 2008 crisis. The Financial assistance mechanisms have greatly complicated legal regulation and eroded the clarity that the requirements of the rule of law impose on any EU law provision, excluding the judicial control of the CJEU and the application of the CFREU as a limit to State actions. To reverse this situation, financial assistance mechanisms should be brought under the auspices of EU law. In the last contribution of this second part, Fernando Pastor considers the interplay between the principle of effectiveness and the right to an effective remedy, each with its own scope under EU law. This work shows how potential overlap is limited to situations of indirect administration where EU law is implemented by national authorities instead of EU institutions. The third part of the book deals with a topical issue in the field of human rights: States’ margin of appreciation. José Antonio Gutiérrez-Fons focuses on the elements used by the CJEU to determine the scope of this margin of appreciation and identifies a variable geometry defined by the subject matter, the nature of the right in question, as well as the seriousness of the interference and its purpose. Remarkably enough, the origin of the limitation of the right—EU or Member State—is not a factor of that geometry. J. A Gutiérrez-Fons also explains that the CJEU does not apply double standards, which is as relevant as welcome, and highlights that both European unity and national diversity must be consistent with the CFREU. Javier García Roca and I focus on the ECtHR. Javier G. Roca considers the national margin of appreciation in the ECtHR and the “new” approach on procedural review and reasonable decisionmaking. The problem seems to be that the case law construction of this margin is somewhat fragile, it resorts to various criteria and it is often overly dependent on context, which leads to legal uncertainty and to a certain lack of predictability in ECtHR’s decisions. The procedural review approach—relying on the quality of a given procedure—can be useful in certain cases. However, procedural flaws are not the only defects subject to assessment in a convention-based review. For my part, I have long advocated for a different dynamic in Strasbourg. Protocols No. 15 and 16 are above all a call for the co-responsibility of the States in ensuring compliance with the ECHR. They reinforce the leading role of the national courts, strengthening their collaboration with the ECtHR and general cooperation so that the European system can continue to fulfill its essential role with a significantly lower workload. In my work, I focus on the margin of appreciation enjoyed by the national courts when interpreting the law. Finally, José María Rodríguez de Santiago and Luis Arroyo speak of a silent revolution regarding the margin of appreciation in domestic law. The long-established case law of the Spanish Constitutional Court on economic rights and freedoms has been extremely deferential towards the legislature and the

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government. The traditionally ill-defined judicial oversight is shifting in a questionable direction: the exclusion of the proportionality test. Although clarity is always welcome when it comes to judicial review, excluding the proportionality test does not seem appropriate to examine the limits imposed on lawmakers. Especially when it is replaced by much less strict standards drawn from the ECtHR, such as fair balance, reasonable connection, or necessity. This work warns of the implicit danger since the ECtHR and the Spanish Constitutional Court must each fulfill their own function. If the reader has come this far, he or she will understand my gratitude to all those who have contributed to this work, which is an extremely interesting, rich, and rigorous investigation of relevant and current legal issues in the field of human rights. I would especially like to thank Pedro Cruz Villalón, whose generosity has not diminished over time. He continues to be an inspiration for those of us who admire and appreciate him. Finally, for different personal reasons, I delayed the publication of this book, but Carmen Martínez-Capdevila and Magdalena Nogueira were always there to help overcome the final hurdles. That is why today they are, on their own merits, co-editors of this volume. To them, my friends, my deepest and most sincere thanks. Madrid, Spain 25 January 2021

Cristina Izquierdo-Sans

Contents

Part I

The Effectiveness of Fundamental Rights in Relations Between Private Individuals

The Recurring Debate on the Horizontal Effect of Fundamental Rights. Constitutional Approaches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Marian Ahumada

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The Horizontal Effect of the EU Charter of Fundamental Rights in the Case Law of the Court of Justice . . . . . . . . . . . . . . . . . . . . . . . . . Juan Ignacio Ugartemendia

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The Concept of ‘State’ for the Purposes of the EU Charter of Fundamental Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Carmen Martínez-Capdevila

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A Principle Vanishes and a Right Arises: Paid Annual Leave As a Fundamental Right and Its Impact on Liability for Breach of EU Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Magdalena Nogueira-Guastavino Fundamental Rights and Horizontal Direct Effect Under the Charter . . . Nuria Bermejo The Horizontal Effect of Social Rights in the Light of the European Social Charter and the European Committee of Social Rights’ Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amaya Úbeda de Torres Still on Hijab Bans in the Workplace. À propos de, Joseph H. H. Weiler, ‘Je suis Achbita!’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pedro Cruz Villalón

35 51

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Part II

Contents

Human Rights and the Rule of Law

Populism and Human Rights. From Disenchantment to Democratic Riposte . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Laurence Burgorgue-Larsen Rule of Law and Judicial Independence in the Light of CJEU and ECtHR Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Paz Andrés Sáenz de Santa María Judicial Protection Against Austerity Measures in the EU . . . . . . . . . . . 189 Manuel López-Escudero The Overlap Between the Principles of Effectiveness and Effective Judicial Protection in Union Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 Fernando Pastor-Merchante Part III

The National Margin of Appreciation in Luxembourg and Strasbourg

The Margin of Appreciation in the Case Law of the Court of Justice: Proportionality and Levels of Fundamental Rights Protection . . . . . . . . 231 José A. Gutiérrez-Fons International Deference, The Vague National Margin of Appreciation and Procedural Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245 Javier García-Roca The National Margin of Appreciation in the Reform of the Strasbourg System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277 Cristina Izquierdo-Sans A Silent Revolution. Property and Free Enterprise Before the Spanish Constitutional Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289 José María Rodríguez de Santiago and Luis Arroyo Jiménez

Part I

The Effectiveness of Fundamental Rights in Relations Between Private Individuals

The Recurring Debate on the Horizontal Effect of Fundamental Rights. Constitutional Approaches Marian Ahumada

1 A Typical Debate in Constitutional Democracies with Constitutional Jurisdiction Why do scholars return again and again to the horizontal effect of fundamental rights? The arguments have not essentially changed for over half a century, and the positions remain opposed. Meanwhile, the courts apply a rather constant case law on the issue. Academic literature questions the doctrinal consistency of such case law— case laws, strictly speaking—and the correctness of some judicial decisions. However, an intriguing aspect of this recurring debate is that although it is common to underscore its practical significance, it takes place on an eminently theoretical plane, focusing mainly on the premises of judicial decisions and only secondarily on the results. This does not mean that the resolution of the cases is disregarded or overlooked. Scholars admit that the same (correct) outcome can be reached by different paths, but some of them are not deemed acceptable from a doctrinal point of view—and doctrinal inconsistencies could lead to contradictions in the case law. In this matter, the essential point is not to settle specific disputes, but to correctly frame the broader issue. Cruz Villalón has rightly pointed out that the terms Drittwirkung, horizontal effect or state action do not refer to a notion or concept but are different ways of naming a problem.1 The issue is not to determine “whether” fundamental rights have effect in private law relationships. It is widely accepted that they do. However, everything else is discussed: whether such effect is direct or indirect, whether all or only some fundamental rights have it, in all cases or in certain circumstances, who

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Or more precisely, a set of problems. See Cruz Villalón (2006), pp. 227–228.

M. Ahumada (*) School of Law, Universidad Autónoma de Madrid, Madrid, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Izquierdo-Sans et al. (eds.), Fundamental Rights Challenges, https://doi.org/10.1007/978-3-030-72798-7_1

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determines the extent of such effects and how, with what guarantees or safeguards, and with what legal consequences. The answers to these questions do not depend only (maybe not even mainly) on previous doctrinal positions regarding the concept of fundamental rights and their role in the constitutional system. As important as the substantive, rights-centered approach is the structural or institutional perspective, including complex competence and procedural issues. The answer is driven by the constitutional design, both in terms of recognition and enunciation of fundamental rights, as well as their guarantees (with or without a specialized constitutional jurisdiction, individual constitutional complaints, or ordinary courts empowered to apply the constitution directly or strictly subject to statute law determinations). Also relevant is the legal tradition, i.e., the various techniques for regulating private law relationships (the weight of codes, common law, special legislation or even customary law), without ignoring issues of territorial jurisdiction in federal states where—as in the United States—private law is primarily regulated at state rather than federal level. When all these factors are taken into consideration, it is easier to understand the different approaches adopted by the various legal and constitutional systems.2 It is thus a mistake to think in terms of universal solutions supposedly valid for any constitutional system. However, the complexity of the issue does not explain the persistence of the debate over such a long time. There is something else that turns the question of horizontal effect into an endless academic debate. In the introduction to an interesting comparative study,3 Renáta Uitz suggests that on a more abstract level the debate on horizontal effect, with all its technical complexities and far-reaching implications, relates to another discussion: the need to rethink and revise the approach of post-World War II democracies to certain essential issues such as the rule of law, human rights or constitutional jurisdiction. According to many authors, a change in approach is required to adapt to the new state and social reality of the twenty-first century.4 This would explain the resurgence and renewed interest in this debate. Besides the usual considerations on the blurring between the public and private spheres, the consequences of privatizing traditionally public functions, or the power transferred to new “intermediate bodies” such as large corporations with enormous

“[D]octrines as Drittwirkung or state action appear when certain conditions prevail: constitutional norms protecting rights are addressed to the legislative or the supreme executive power, rights are viewed as directed against the state, courts wish to grant horizontal rights, and courts have the power to refuse the application of some statute allowing for infringement by an individual on the rights of other individual. If this is true, it is understandable that in legal systems where these conditions do not exist there is no need for a concept similar to that of third party effect. The French legal system seems to be a good example of such a system”, Troper (2005), pp. 118–119. 3 Sajó and Uitz (2005). 4 “The discourse on the horizontal effect of constitutional rights is reminiscent of a fin de siècle search for a grand conception of constitutionalism, rule of law, human rights and also of constitutional adjudication which reflects post-post WWII developments in constitutional democracies” p. 13. 2

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economic influence and international presence, the debate on horizontal effect has recently focused on new situations. Among these are, for instance, the changing demand for rights in increasingly complex and plural societies, the rise of non-discriminatory regulation, the growing relevance of economic and social rights, or the challenges that technological advances pose for the protection and guarantee of fundamental rights.5 All this, without forgetting the new venue for discussion opened by the implementation of the European Charter of Fundamental Rights. Nevertheless, and leaving aside the question of the effect of the rights enshrined in the Charter, the arguments have not essentially changed in this renewed debate— now more aware of present conditions and circumstances. For some, what defines fundamental rights is that they are genuine subjective public rights, thus imposing correlative obligations upon public authorities with respect to their holders as established in the constitution. For others, the defining feature is that these rights are incorporated into the constitution because they protect goods and interests of fundamental importance to individuals in a democracy, and thus must be guaranteed against any intrusion—either public or private, by action or by omission. These positions are not mutually exclusive at the outset, but they lead to opposite practical conclusions regarding the effect of fundamental rights in relations between individuals. Since both views find support in the theory and practice of current constitutionalism, the controversy is potentially endless. The discussion on the horizontal effect of fundamental rights is characteristic of contemporary constitutional democracies founded on democratic constitutions. It is not an isolated debate. On the contrary, it is intricately linked to other issues concerning the direct applicability and immediate effect of constitutional provisions, the role of the legislature and the judiciary in interpreting and defining fundamental rights, and the guarantee of constitutional rights and remedies. These questions give rise to constitutional interpretation issues while showing the complex division of functions and balance of powers. They also reflect the conflicting dynamics between stability and change inherent to the model of constitutional democracy that became widespread after World War II. It is not by chance that the debate on the effect of rights usually emerges in the early years of each country’s constitution, coinciding with the formation of the constitutional doctrine. Interpretation issues that always arise from “new” rules are magnified and take on a special significance when it comes to “new beginning” constitutions in transitional contexts.6 How the question is framed and resolved in the first instance will determine not only the general understanding of the effect of rights in the constitutional system, but also to a large extent the distribution of tasks between the legislature and the judiciary in this regard. As many authors have pointed out, the existence of a constitutional

5 Among the most recent comprehensive works after the comparative study by Sajó & Uitz (eds), van der Walt (2014), Thomas (2015) and Mathews (2018). For a specific comparative study on the influence of fundamental rights on the interpretation of private law, see Trstenjak (2017). For a recent assessment of the issue in Spain, see Izquierdo Sans and Rodríguez de Santiago (2017). 6 I use the expression “new beginning” in the sense coined by Ackerman (1997).

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jurisdiction and its greater or lesser “activism” are determining factors for the further development of the discussion.7

2 The Different Relation of Public Authorities and Individuals with Fundamental Rights: Obligation to Guarantee vs. Obligation to Respect Although largely built on the criticism of case law, the academic debate on horizontal effect concerns less the correct resolution of specific cases than the premises or conditions of litigation to guarantee the protection of fundamental rights. The eminently academic nature of this debate and its extension through time have led to the development a specific, specialized jargon.8 More importantly, the debate has become separate and self-referencing, ignoring its immediate connection to other constitutional issues—some of them already mentioned. This is unfortunate. Even if for methodological purposes it may be helpful to separately examine different aspects of a complex issue, losing perspective is a major drawback. By focusing on enforceability from the rights holders’ point of view, the debate on the horizontal effect of fundamental rights has neglected the role of the legislature and the ordinary political process in defining the system of rights and freedoms. This, in turn, begs the question as to what type of democracy leaves to the judiciary’s discretion essential issues regarding the content and scope of rights with no other guidance than somewhat vague constitutional provisions. Advocates of extending the effect of fundamental rights to the sphere of relations between individuals often argue that theirs is not an ideological position.9 What some interpret as an impingement on self-determination (hence an undue restriction of individual freedom) would only be the result of the constitution’s legal effect: constitutional provisions, including those on fundamental rights, are binding on all—without any legal sphere exempt or alien to the constitution. The question, however, is more complex. There are other arguments that must be considered to decide which response is most consistent with the constitution. It is worth recalling that, save for the oft-cited exception of Ireland, all other case law on horizontal effect denies that the infringement of a fundamental right by an individual should be treated as an act against the constitution, as is the case with violations

7 For an interpretation of the famous Lüth judgment (Jan.15, 1958) of the German Federal Constitutional Court as characteristic of the “new beginning” period—deliberately seeking to mark a clear and sharp break with Nazism and the previous legal order—see for example Ackerman (1997), pp. 796–797 or Schlink (1993), pp. 722 et seq. 8 Terms like state action, Drittwirkung (or third-party effect), horizontal effect, optimization commands, duty to protect, constitutional torts, and pairs of opposites as direct vs. indirect effect, subjective public rights vs. order of objective values, or negative vs. positive rights. 9 See, for example, Bilbao Ubillos JM (2017), p. 44, Ferreres Comella (2008) p. 1184.

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attributable to public authorities.10 The reason is that fundamental rights bind public authorities in a different way: constitutional provisions that embody rights also operate as limits, entitlements, and mandates to public authorities, which are entrusted with the task of facilitating their exercise and ensuring their protection. This is absolutely not the case with individuals. Although they are bound by fundamental rights, their obligation is not to guarantee but to respect them.11 On the other hand, to the extent that fundamental rights are held by individuals, disputes on alleged infringements of fundamental rights usually involve a clash of rights. This will require the judge to weigh them in order to determine whether a violation has actually occurred, and in the event of conflict which right should prevail. Constitutions may occasionally include rules guaranteeing fundamental rights directly addressed to individuals. The Thirteenth Amendment to the U.S. Constitution, prohibiting slavery, is a prime example. That is also the case with Article 35(1) of the Spanish Constitution, which specifically prohibits discrimination on the basis of sex in relation to workers’ rights. There is no doubt that in such cases any infringement by those to whom the provision is addressed entails a violation of the constitution. Apart from these situations, the constitutional wording is rarely decisive in determining the horizontal effect of a given right. In anticipation of the problem, some constitutions have attempted to provide certain guidelines. That was the case, for instance, of the Portuguese and Greek constitutions in Europe, and several others in Latin America and Africa. With varying formulations, they expressly acknowledge the possibility that fundamental rights may impose obligations upon non-state actors, albeit never in general but under certain conditions (when the nature of the right so allows or as determined by law under specific circumstances). These constitutions take a stand for the expansive effect of fundamental rights, but in practice the problems of enforcing the obligations stemming therefrom vis-à-vis individuals will not be greatly different from those posed by constitutions with no express recognition of horizontal effect.12

3 Democratic Constitutions for Democratic Societies There is another way to justify the expansive effect of constitutional rights in contemporary democratic constitutions. Conceived as non-neutral constitutions13 aimed at establishing a working democracy, their approach to rights differs from

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Thomas (2015), p. 29. “The difference between “respecting” rights and securing them is absolutely key. . . by focusing on the notion of respect, the issue of “horizontal effect” seems so much less controversial” Wright (2014), p 293. 12 With regard to Portugal, Pereira da Silva (2016), for the case of Colombia Julio Estrada (2000). 13 On the notion of non-neutral constitution, altering the status quo and fostering social developments and redistribution of power and resources, see Susntein (1993), pp. 68 et seq. 11

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that of old liberal constitutions.14 In particular, when the adoption of the constitution puts an end to a non-democratic period (whatever its form: totalitarianism, dictatorship, colonial regime), it makes little sense to assume that individuals enjoyed prior rights that the constitution only has to preserve. On the contrary, instead of mere relying on the assumption that individuals are born free and equal in rights, these new-beginning constitutions entrust public authorities with a variety of tasks aimed at shaping an inclusive, tolerant, and ultimately democratic society of individuals effectively free and equal in rights.15 Much has been written about the problems of “overconstitutionalization”16 (undermining the ordinary political process), the risks of “total constitutions”17 (reducing the scope of legislation), or the questionable advantages of “leading constitutions” (including a comprehensive public policy program with mandates, tasks and goals to be achieved). Some authors identify this type of constitution with a new form of constitutionalism: “neo-constitutionalism”18 or “transformative constitutionalism.”19 Its distinctive feature would be the central role now played by constitutional law in the legal system, thereby displacing the traditional position of legislative codes. This movement does not arise from the supremacy of the constitution, but from the expansion of its material content. Other characteristics would be the pervasiveness of fundamental rights, the inevitable protagonism of the judiciary, the lack of trust in the legislature, and the eminent position of constitutional jurisdiction—in charge of ensuring compliance with the constitution and, as its supreme interpreter, entrusted with determining the content of vague constitutional provisions.

14 According to L’Hereux-Dubé there is a clear contrast between constitutional philosophies behind the American Bill of Rights and contemporary charters and human rights documents, “more concentrated on balancing the rights of individuals and those of society, and on recognizing the importance of group identity and group values”. As important as the purpose of protecting individuals from infringements of their freedom by the state is the goal to guarantee the dignity and equality of all people “and to ensure that the attributes of democratic societies are respected”, L’Hereux-Dubé (1998), pp. 35–36. 15 The concept of “democratic society” may be vague, but that has not prevented it from jumping from political science essays to human rights declarations. A reference to “democratic society” appears in Article 29(2) of the Universal Declaration of Human Rights, as well as in Articles 8(2), 9 (2), 10(2) and 11(2) of the European Convention on Human Rights). The notion evokes a society where the rights inherent to a democracy are enjoyed and adequately protected. That is why judges invoke this notion to measure whether specific limitations of rights are acceptable and “necessary in a democratic society.” (An example of the use of this standard regarding limitations on freedom of expression in ECtHR, Castells v. Spain, judgments of 23 April 1992, paragraph 42, and Fuentes Bobo v. Spain, judgment of 29 February 2000, paragraph 43). 16 Schlink (1993). 17 Kumm (2006). 18 Comanducci et al. (2009). 19 Originally coined to explain the force of the development clauses of the Constitution of South Africa by Klare (1998), the notion has been embraced by Latin American constitutionalism.

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The constitutionalization of private law is fostered by a conception of the system of rights as an objective order of values, and of constitutional rights not only as subjective public rights but also as objective legal principles in the terms of German constitutional case law. The constitution becomes a normative blueprint for the whole society.

4 A Problem Without “One” Solution When it comes to the issue of horizontal effect, no single answer emerges from theory, or at least not one without practical drawbacks. Contemporary constitutionalism has regarded the expansive effect of fundamental rights beyond the classic sphere of vertical relations as inevitable in transitional processes—as a means to adapt as swiftly as possible the pre-constitutional regulation to the new constitutional order. Such expansive effect also strengthens the culture of rights, but it remains to be seen whether in the long run it will provide better and fuller effect to fundamental rights. Regarding the form of horizontal effect, Kumm sees no practical difference for protection purposes between the model of direct applicability advocated by the literature and the procedural approach (i.e., indirect effect) usually adopted by constitutional courts.20 A word of caution is in order. On the one hand, as warned by international rights bodies, it would be a step backwards if the recognition of the direct obligation of non-state subjects towards rights holders were to allow states to shirk all responsibility for violations not directly attributable to public authorities. For this reason, it is preferable that the burden to protect should be on the state. On the other hand, although in the area of labor law the recognition of fundamental rights has traditionally sought to compensate the subordination of workers to the company, recent case law has broken new ground. Upholding the religious freedom of employers may justify the introduction of special rules with potential impact on employees.21

References Ackerman B (1997) The rise of World Constitutionalism. Va Law Rev 83:771–797 Bilbao Ubillos JM (2017) La consolidación dogmática y jurisprudencial de la drittwirkung: una visión de conjunto. In: Izquierdo Sans C, Rodriguez de Santiago JM (eds) Los derechos fundamentales en las relaciones entre particulares. Anuario de la Facultad de Derecho de la Universidad Autónoma de Madrid

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Kumm and Ferreres Comella (2005), p. 251. According to Tushnet the theoretical contrast between models would not be that relevant: “It is not clear to me why a theory of state duty is less radical than a theory that individuals are directly bound. I believe. . . that the theories are precisely equivalent” Tushnet (2003), p. 84 fn 22. 21 See Justice Ginsburg dissent to the US Supreme Court majority opinion in the case Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania et al., decided July 8, 2020.

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Comanducci P, Ahumada M, González Lagier P (2009) Positivismo jurídico y neoconstitucionalismo. Fundación Coloquio Jurídico Europeo, Madrid Cruz Villalón P (2006) Derechos Fundamentales y Derecho Privado, en La curiosidad el jurista persa y otros estudios sobre la Constitución. CEPC, Madrid Ferreres Comella V (2008) La eficacia de los derechos constitucionales frente a los particulares incluido en Estudios sobre la Constitución Española. Homenaje al Profesor Jordi Solé Tura. CEPC, Madrid, pp 1173–1187 Izquierdo Sans C, Rodríguez de Santiago JM (eds) (2017) Los derechos fundamentales en las relaciones entre particulares. Anuario de la Facultad de Derecho de la Universidad Autónoma de Madrid, Madrid, p 21 Julio Estrada A (2000) La eficacia de los derechos fundamentales entre particulares. Universidad Externado de Colombia, Bogotá Klare K (1998) Legal culture and transformative constitutionalism. South Afr J Human Rights 14 (1):146–188 Kumm M (2006) Who is afraid of the total constitution? Constitutional rights as principles and the constitutionalization of private law. German Law J 7:341–370 Kumm M, Ferreres Comella V (2005) What is so special about constitutional rights in private litigation? A comparative analysis of the function of state action requirements and indirect horizontal effect. In: Sajó A, Uitz R (eds) The constitution in private relations: expanding constitutionalism. Eleven International, The Hague L’Hereux-Dubé C (1998) The importance of dialogue: globalization and the international impact of the Rehnquist Court. Tulsa Law Rev 34:15–40 Mathews J (2018) Extending rights’ reach. Oxford University Press, Oxford Pereira da Silva J (2016) A eficácia dos direitos fundamentais nas relações entre privados. Um problema de geometria viariável. Fundamentos 9:101–141 Sajó A, Uitz R (eds) (2005) The constitution in private relations: expanding constitutionalism. Eleven International, The Netherlands Schlink B (1993) German constitutional culture in transition. Cardozo Law Rev 14:712–736 Susntein C (1993) The partial constitution. Harvard University Press, Cambridge Thomas J (2015) Public rights, private relations. Oxford University Press, Oxford Troper M (2005) Who needs a third party effect doctrine? –the case of France. In: Sajó A, Uitz R (eds) The constitution in private relations: expanding constitutionalism. Eleven International, The Hague Trstenjak V (2017) Private law and fundamental rights. In: Schauer M, Verschraegen B (eds) General reports of the XIXth congress of the international academy of comparative law, Ius Comparatum – global studies in comparative law. Springer, Dordrecht, p 24 Tushnet M (2003) The issue of state action/horizontal effect in comparative constitutional law. I. CON 1:79–98 van der Walt J (2014) The horizontal effect revolution and the question of sovereignty. Walter de Gruyter, Berlin Wright J (2014) A damp squib? The impact of Section 6 HRA on the common law: horizontal effect and beyond. Public Law:289–305

The Horizontal Effect of the EU Charter of Fundamental Rights in the Case Law of the Court of Justice Juan Ignacio Ugartemendia

1 Theoretical Approaches to the Horizontal Effect of the CFREU Article 51.1 of the Charter of Fundamental Rights of the European Union (CFREU) expressly lists the parties addressed and bound by it: “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 (. . .).” This provision only refers to the CFREU’s binding effect on public authorities—either of the EU or of Member States, i.e., its vertical effect. It remains silent on its “horizontal” or inter privatos effect, that is, amongst individuals or private parties (also known as Drittwirkung). This silence has given rise to different and conflicting views on whether the CFREU also directly binds individuals. For descriptive purposes, these views can be grouped into two broad categories. On the one hand, those who deny the (direct) binding effect of the Charter among private parties. From this perspective, fundamental rights only have such direct relevance between States and private parties (vertical effect). The rights enshrined in the Charter have no immediate effect on private legal arrangements in the sense of depriving of validity those that contravene them. Accordingly, these rights only bind individuals indirectly, i.e., through domestic legislation. This is the position held, among others, by Advocate General V. Trstenjak in her Opinion in the Maribel Domínguez1 case, based on three 1 Opinion delivered on 8 September 2011, Case C-282/10, EU:C:2011:559 (see also her Opinion delivered on 29 March 2007, Case C-80/06, Carp, EU:C:2007:200).

J. I. Ugartemendia (*) Faculty of Law, Universidad del País Vasco/Euskal Herriko Unibertsitatea (UPV/EHU), Donostia-San Sebastián, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Izquierdo-Sans et al. (eds.), Fundamental Rights Challenges, https://doi.org/10.1007/978-3-030-72798-7_2

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main arguments:2 (1) The above-mentioned omission of Article 51.1; (2) Private individuals cannot satisfy the legislative proviso contained in Article 52.1 of the Charter (“Any limitation on the exercise of rights and freedoms recognized by this Charter must be provided for by law”), a requirement that can naturally be directed only at the EU and its Member States; and 3) As shown by the ECHR system, the protection of fundamental rights does not require them to be “directly binding” on private parties. It is enough for individuals to be able to rely on the “duty of protection” incumbent on public authorities, that is, the relevant protective measures the EU and its Member States must adopt (“positive obligations,” in the words of the ECtHR). According to this first stance, individuals are only bound “indirectly” by the Charter through the rules implementing or specifying the duty of protection. From a different point of view, the horizontal effect of the Charter is not completely ruled out. This is the position of Advocate General Pedro Cruz Villalón in his Opinion in the AMS case.3 The supporting arguments can be summarized as follows: (1) Nothing in the wording of Article 51.1—either in the preparatory works or the Explanations—suggests the intention of addressing the horizontal effect of the Charter. The focus was instead on its scope and binding nature regarding the EU and the Member States;4 (2) Keep in mind that the horizontal effect of fundamental rights is “an old and well-established” concept in EU law, for example with regard to the “fundamental freedoms of movement,” as well as to specific principles such as non-discrimination on grounds of sex5 or equal pay for male and female workers for equal work.6 Therefore, horizontal effect not being an unknown concept to EU law, “it would be paradoxical if the incorporation of the Charter into primary law actually changed that state of affairs for the worse”7; (3) The problem of “Drittwirkung” is that it adopts very varied forms, although it “is usually imposed, immediately and directly, by the public authorities themselves.” It can thus be read in terms of their “duty of protection,” following the approach of the ECtHR.8 In any case, there are rights that, by their very structure, can only be invoked before public

2

Paragraphs 80 et seq. of her Opinion delivered in Maribel Domínguez. In this regard, see, for example, Leczykiewicz (2013), p. 480 et seq.; Lenaerts and Gutiérrez-Fons (2014), pp. 1578–1580. 3 Opinion delivered on 18 July 2013, Case C-176/12, AMS or Association de Médiation Sociale, EU: C:2013:491, in particular paragraphs. 28 et seq. 4 This issue was recently confirmed by the Court of Justice. See, for example, Joined Cases C-569/ 16 and 570/16, Bauer, Judgment (Grand Chamber) of 6 November 2018, EU:C:2018:87, paragraphs 87–88. 5 See in this regard paragraph 34 of the Opinion (notes 6 and 7). 6 Already since the Case 43/75, Defrenne II, Judgment of 8 April 1976, EU:C:1976:56. 7 Paragraph 35 of the Opinion. 8 Paragraph 36 of the Opinion. In this regard, it should be borne in mind that individuals holding a position or exercising powers similar to those of public authorities may be bound by the fundamental rights of the EU in the same way as them (this would be the case, for example, of trade unions, sports federations, beneficiaries of public subsidies, public service concessionaires, etc.). See Sarmiento (2018), p. 203.

The Horizontal Effect of the EU Charter of Fundamental Rights in the Case. . .

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authorities (and not among private individuals),9 just like there are other rights “whose relevance in relationships governed by private law it would be inconceivable to deny”10; and (4) Furthermore, the 2007 version of the Charter inserted the distinction between “rights” and “principles” in its Articles 51.1 and 52.5: “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 cognizable only in the interpretation of such acts and in the ruling on their legality.” The Charter encompasses both “rights” and “principles” within the general category of “fundamental rights,” without establishing two separate groups. In fact, a “right” might actually embody a “principle.”11 However, many fundamental rights enshrined in the Charter are not immediately enforceable, so they must rely on the intermediation of public authorities (either national or European). Obviously, such intermediation implies that their horizontal effect (as rights) can only be indirect. In sum, the Charter contains both rights inherently lacking horizontal effect and others that may have such effect—albeit normally through implementing legislation. .

2 An Overview of the CJEU’s Case Law As explained above, the case law of the CJEU had already envisaged the horizontal effect of fundamental rights prior to the entry into force of the Charter (2009). The Court had recognized such inter privatos effect regarding the “fundamental freedoms of movement”,12 the principle of non-discrimination on grounds of sex13 (current Article 21.1 CFREU), the principle of equal pay for male and female

9 For instance, the principles of legality and proportionality of criminal offences and penalties (Article 49 CFREU); the right to good administration (Article 41 CFREU); or the right to diplomatic and consular protection (Article 23 TFEU and 46 CFREU). 10 Paragraph 38 of the Opinion. Think, for example, of the principle of non-discrimination by reason of sex, the freedom of association or the right to take collective action. 11 In this regard, see paragraphs 44–45 of the Opinion. Also Alonso García (2014), p. 393 et seq. 12 In his Opinion, Advocate General P. Cruz Villalón refers to the following judgments of the CJEU (paragraph 34, note 6): Case 36/74, Walrave and Koch, Judgment of 12 December 1974, EU: C:1974:140, paragraph 17; Case 13/76, Donà, Judgment of 14 July 1976, EU:C:1976:115, paragraph 17; Case C-415/93, Bosman, Judgment of 15 December 1995, EU:C:1995:463, paragraph 82; joined Cases C-51/96 y C-191/97, Deliège, Judgment of 11 April 2000, EU:C:2000:199, paragraph 47; Case C-281/98, Judgment of 6 June 2000, Angonese, EU:C:2000:296, paragraph 31; Case C-309/99, Wouters and others, Judgment of 19 February 2002, EU:C:2002:98, paragraph 120; and Case C-438/05, International Transport Workers’ Federation y Finnish Seamen’s Union, known as “Viking Line”, Judgment of 11 December 2007, EU:C:2007:772, paragraph 33. 13 See, in this regard, Case 149/77, Defrenne, Judgment of 15 June 1978, EU:C:1978:130.

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workers for equal work14 (Article 157 TFEU, current Article 23 CFREU), or the right to take collective action as a general principle of EU law15 (Article 28 CFREU). Linked to the above, and fostered by the entry into force of the Charter, the Court developed a new case law recognizing the horizontal effect of certain rights when they “converge” with a directive aimed at their protection. In other words, a horizontal effect based on the connection or “convergence” (confluencia)16 between fundamental rights and directives (which contribute to ensuring their observance).

3 Drittwirkung Through “Directives Which Contribute to Ensuring Observance of Fundamental Rights” Let us briefly describe the main features and arguments of this new case law developed after the entry into force of the Charter in 2009 and embodied in ten preliminary rulings of the Court of Justice—all of them issued by the Grand Chamber and with landmark Opinions of the Advocates General (especially in the first cases). The key starting point was provided by Advocate General Yves Bot in his Opinion in the Kücükdeveci case: “given the ever increasing intervention of Community law in relations between private persons, the Court will, in my view, be inevitably confronted with other situations which raise the question of the right to rely, in proceedings between private persons, on directives which contribute to ensuring observance of fundamental rights. Those situations will probably increase in number if the Charter of Fundamental Rights of the European Union becomes legally binding in the future, since among the fundamental rights contained in that charter are a number which are already part of the existing body of Community law in the form of directives.”17

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Already in its Case 43/75, Defrenne II, cit. in note 7, the Court ruled that the principle that men and women should receive equal pay for equal work under (then) Article 119 EEC (current Article 157 TFEU) may be relied upon before the national courts in cases of discrimination arising directly from legislative provisions or collective labor agreements, as well as when men and women receive unequal pay for equal work which is carried out in the same establishment or service, whether private or public. Under this article with horizontal direct effect, “each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.” This horizontal binding effect not only applies to contracts between individuals, but also extends to all collective agreements designed to regulate employment relationships (Case C-281/97, Krüger, Judgment of 9 September 1999, EU:C:1999:396, paragraph 20) and to “unilateral action by an employer vis-à-vis his employees” (Case C-333/97, Susanne Lewen, Judgment of 21 October 1999, EU:C:1999:512, paragraph 26). 15 See, for instance, Case C-341/05, Laval, Judgment (Grand Chamber) of 18 December 2007, EU: C:2007:809, paragraph 91, in the same terms as the Judgment in the Viking Line case, cit., paragraph 44. 16 In the words of Cruz Villalón (2017), p. 101 et seq. 17 Opinion of Advocate General Y. Bot, delivered on 7 July 2009, Case C-555/07, EU:C:2009:429, paragraph 90.

The Horizontal Effect of the EU Charter of Fundamental Rights in the Case. . .

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See below some examples of this “directives-rights” connection or, in other words, directives that contribute to ensuring observance of fundamental rights: – The principle of non-discrimination (Article 21 CFREU) on grounds of sex, disability, religion, etc. in relation to Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation; – Workers’ right to information and consultation within the undertaking (Article 27 CFREU), in connection with Directive 2002/14/EC of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community; – The right to fair and just working conditions (Article 31 CFREU) linked to Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organization of working time; – And many other rights (protection in the event of unjustified dismissal, prohibition of child labor, reconciliation of family and professional life, etc.) and the corresponding directives. The decisions of the CJEU recognizing the Drittwirkung of fundamental rights based on their convergence with certain directives can be divided into two groups. The first group includes the original or first cases where the Court has successfully admitted the inter privatos invocation or application of a fundamental right based on its connection with a directive. These are the following judgements: Mangold,18 Kücükdeveci (2010),19 Prigge and others (2011),20 and Dansk Industri (2016).21 All of them concerned the general principle of EU law of non-discrimination on grounds of age (also enshrined in Article 21.1 CFREU). In short, the key elements of the case law defining this new approach to the horizontal effect of fundamental rights are the following: (1) The existence of a link or connection between the fundamental right and a directive; in the aforementioned cases, Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation; (2) Within that connection, the directive “gives concrete expression to” (or specifies), without establishing it, the principle of equal treatment in employment and occupation—a general principle of EU law (currently also enshrined in Article 21.1 CFREU);22 (3) The horizontal direct effect acts as exclusion. In particular, if the national court finds it impossible to interpret the domestic law (in the framework of a private legal relation) in accordance with this principle “as

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Case C-144/04, Judgment (Grand Chamber) of 22 November 2005, EU:C:2005:709, prior to the entry into force of the Charter. 19 C-555/07, Judgment (Grand Chamber) of 19 January 2010, EU:C:2010:21. 20 Case C-447/09, Judgment (Grand Chamber) of 13 September 2011, EU:C:2011:573. 21 C-441/14, Judgment (Grand Chamber) of 19 April 2016, EU:C:2016:278. 22 See Dansk Industri, cit., paragraphs 22-23 and 35; Kücükdeveci, cit., paragraphs 20-21 and 50; Prigge, cit., paragraph 38.

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given concrete expression” by the directive,23 then it must set aside any conflicting national provisions,24 thus (directly and immediately) depriving of legal validity any legal arrangement or transaction that do not comply with it. These judgments provide examples of such potential conflicts: in Kücükdeveci, the opposition or contradiction would occur because the German Civil Code gave rise to discrimination (prohibited by EU law) concerning the calculation of the notice period for the dismissal of workers under a certain age. In Dansk Industri (or Ajos), to give another example, because the Danish Act on salaried employees does not allow that severance allowance was payable if the employee joined, at a certain age, a retirement pension plan paid by his employer. In addition to all this, in order to recognize the horizontal direct effect, (4) the fundamental right must be “sufficient in itself to confer on individuals an individual right which they may invoke as such,” without need for specific implementing regulations. If the fundamental right is not sufficient in itself, then it would not be either in combination with a directive. The Court established this requirement in its judgment in AMS (Association de Médiation Social),25 a judgment confirming its earlier case law (Kücükdeveci). However, this case law was not considered applicable in that instance since, precisely, the fundamental right in question (the right to information and consultation of employees in undertakings under Article 27 CFREU) was not sufficient in itself to generate the direct enforceability of the subjective position. It did not confer on individuals a specific right which could be invoked as such (in this case, the prohibition of excluding specific categories of workers—accompaniedemployment contracts, apprentices—from the calculation of staff numbers for the purposes of appointing a trade union representative, which the French Labor Code did not comply with). In any event, the important point is that the Court has applied this requirement in practically all its subsequent judgments on this matter.

23 With regard to the relation between the directive and the general principle in question, the Dansk Industri judgment will point out that “the scope of the protection conferred by the directive does not go beyond that afforded by that principle. The EU legislature intended by the adoption of the directive to establish a more precise framework to facilitate the practical implementation of the principle of equal treatment and, in particular, to specify various possible exceptions to that principle, circumscribing those exceptions by the use of a clearer definition of their scope” (paragraph 23). 24 Dansk Industri, cit., paragraphs 35-37; Kücükdeveci, cit., paragraph 51; Mangold, cit., paragraph 77. See also Case C-176/12, AMS, Judgment (Grand Chamber) of 15 January 2014, EU:C:2014:2, paragraph 47; Case C-414/16, Egenberger, Judgment (Grand Chamber) of 17 April 2018, EU: C:2018:257, paragraphs 79 and 82; and Case C-68/17, IR / JQ, Judgment (Grand Chamber) of 11 September 2018, EU:C:2018:696, paragraph 68. 25 AMS, cit., paragraph 47. See also more recent decisions: Egenberger, cit., paragraph 76 (concerning the prohibition of all discrimination on grounds of religion or belief), and para. 78 (concerning the right to an effective remedy and to a fair trial under Article 47 CFREU); IR / JQ, cit., paragraph 69 (concerning the prohibition of all discrimination on grounds of religion or belief).

The Horizontal Effect of the EU Charter of Fundamental Rights in the Case. . .

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The second group includes six judgments issued by the Court from 2018 onwards. Three of them (Egenberger;26 IR/JQ;27 and Cresco Investigation GmbH v. Markus Achatzi28) concern the principle of non-discrimination on grounds of religion or belief under Article 21(1) CFREU in connection with Directive 2000/78. The other three relate to the horizontal invocation of fundamental rights enshrined in Article 31(2) CFREU (fair and just working conditions). In particular, they refer to the right to paid annual leave (Bauer et al.; and Max Planck Gessellschaft29), and the right to a limitation of maximum working hours and to daily and weekly rest periods (CCOO30). In these three cases, the relevant right was considered in connection with Directive 2003/88 concerning certain aspects of the organization of working time. All these judgments share the aforementioned characteristics, including their approach to the direct effect in terms of excluding the application of any incompatible national provision or the validity of any private legal arrangement based on it.31 However, some specificities that appear in them are worth mentioning. First of all, the Egenberger ruling recognizes expressly and overtly the horizontal direct effect of a right enshrined in the Charter. In particular, it states that the prohibition of all discrimination on grounds of religion (which is mandatory as a general principle of EU law and is laid down in Article 21.1 CFREU) “is sufficient in itself to confer on individuals a right which they may rely on as such in disputes between them in a field covered by EU law.”32 In its reasoning, the Court refers to the AMS case,33 and all its

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Case C-414/16, Egenberger, cit. Case C-68/17, IR / JQ, cit., paras. 62 et seq. 28 Case C-193/17, Judgment (Grand Chamber) of 22 January 2019, EU:C:2019:43. 29 Joined Cases C-569/16 and 570/16, Bauer, cit., and Case C-684/16, Judgment (Grand Chamber) of 6 November 2018, EU:C:2018:874. 30 Case C-55/18, Judgment (Grand Chamber) of 14 May 2019, EU:C:2019:402. On this last Judgment and its implications: Nogueira-Guastavino (2019), p. 929 et seq. 31 For instance, excluding the application of the German General Law on equal treatment (AGG) for giving rise to a difference of treatment (discrimination) on grounds of religion not justified under EU law in a recruitment procedure (Egenberger); or for allowing an unjustified dismissal on grounds of religion (IR/JQ). In Cresco Investigation, to set aside the Austrian legislation under which Good Friday was a public holiday only for employees who were members of certain Christian churches—those employees being the only ones entitled to be paid if required to work on that day. In Bauer, the German Federal Law on leave (BGBl), in relation to the German Civil Code, since it provided that the right to paid annual leave (paid by a public or private employer) was lost upon the worker’s death, precluding an allowance in lieu from forming part of the estate of the deceased. In CCOO, the direct effect would be that the Directive 2003/88, interpreted in the light of Article 31(2) CFREU (and of Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage), precluded a national provision (Article 34 of the Spanish Workers’ Statute) that, as interpreted by the national case law, does not require employers to set up a system enabling the duration of time worked each day by each worker to be measured (paragraph 71). 32 Paragraph 76. 33 In particular, paragraph 47 (which refers to the principle of non-discrimination on grounds of age established in the Kücükdeveci case). It is worth noting that, according to Advocate General Y. Bot, “recognition of the potential possibility of relying directly on provisions of the Charter in horizontal disputes (. . .) constitutes the major contribution” of the AMS judgment (Opinion delivered on 27

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subsequent decisions will reiterate this recognition based on Egenberger.34 In addition, the Court formally and expressly recognizes that, although Article 51.1 CFREU is addressed to the public authorities without considering whether individuals may be directly required to comply with certain provisions of the Charter, it does not preclude such a possibility.35 Secondly, from the Egenberger judgment (with the precedent of the AMS case), the fundamental right in question is referred to as meaningful and operational under the Charter itself rather than as a general principle of EU law. Also noteworthy is the possible variation in the role played by the directive in its connection with the fundamental right for the purposes of the latter’s horizontal effect. According to the first group of decisions, the directive “gives concrete expression” to the fundamental right without establishing it, thus providing a more precise framework for its implementation. The second group of judgments, in turn, seems to weaken the role of directives by insisting on their lack of horizontal effect36 and stressing the possibility of invoking the fundamental right in question in disputes between private parties.37 In any event, directives play an essential role in this relation, since in their absence the crucial element connecting the specific case to the EU system of fundamental rights would be missing.38 As is well known, the fundamental rights guaranteed in the legal order of the EU are only applicable to national situations governed by EU law (Article 51 CFREU).39 If the public or private legal relation does not fall within the scope of the relevant directive, the EU system of fundamental rights simply does not apply.40 Therefore, the horizontal effect only comes into play on matters within the regulatory competence of the EU. Otherwise, the case will not be subject to any fundamental rights of the EU (being the directive the only element of connection with the Union law). However, the fact that a directive is required does

29 May 2018, Joined Cases C-569/16 and C-570/16, Bauer, EU:C:2018:337, paragraph 77). That recognition (also with a reference to AMS) can also be read in Dansk Industri, cit., paragraph 36. 34 See IR/JQ, cit., paragraph 69; Bauer, cit., paragraph 85; Max Planck Gessellschaft, cit., paragraph 78; and Cresco Investigation, cit., paragraph 76. The CCOO judgment does not refer to this recognition. 35 Bauer, cit., paragraphs 87 and 88; Max Planck Gessellschaft, cit., paragraphs 76 and 77 (following in both cases the Opinion of Advocate General Y. Bot in Bauer, cit., paragraphs 77 and 78). In this regard, see L.S. ROSSI (2019). 36 Bauer, cit., paragraphs 76 et seq.; Max Planck Gessellschaft, cit., paragraphs 64 et seq.; Cresco Investigation, cit., paragraphs 72-73. 37 Bauer, cit., paragraphs 79 et seq.; Max Planck Gessellschaft, cit., paragraphs 69 et seq.; Cresco Investigation, cit., paragraphs 76 et seq. In this regard, the CCOO judgment is closer to the first group. 38 See, for instance, Kücükdeveci, cit., paragraphs 23 et seq., especially para. 25; AMS, cit., paragraph 43; or Bauer, cit., paragraph 53. 39 As recalled in AMS, cit., paragraphs 42 and 43; or, previously, in Case C-617/10, Åkerberg Fransson, Judgment (Grand Chamber) of 26 February 2013, EU:C:2013:105, paragraph 19. 40 See in this regard Rossi (2019), cit.

The Horizontal Effect of the EU Charter of Fundamental Rights in the Case. . .

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not mean that the horizontal effect is “indirect”—i.e., resulting from regulatory mediation—since directives lack horizontal effect by definition.41 Finally, the requirement to interpret national law in conformity with EU law (both in relation to the directive and the fundamental right) is confirmed even with greater emphasis.42 The CJEU recalls43 that this includes “the obligation for national courts to change their established case law, where necessary, if it is based on an interpretation of national law that is incompatible” with EU law.44 In sum, the fundamental rights of the EU can only have horizontal direct effect where such “conforming interpretation” is not possible. In that event, the conflicting national provision must be set aside.45 Therefore, the horizontal direct effect is treated as subsidiary to the requirement to interpret national law in conformity with EU law.

4 Closing Remarks 1. EU law recognizes the horizontal effect of some fundamental rights (at an internal level). This already occurred before the entry into force of the CFREU by reference to the fundamental freedoms and certain general principles of EU law (subsequently also enshrined in the CFREU). 2. The CFREU does not address the question of Drittwirkung. However, the CJEU has considered that some fundamental rights (understood as general principles and/or rights enshrined in the CFREU) can have such horizontal effect in cases that bring them into connection with directives that contribute to ensuring their observance. According to this trend, particularly clear in the case law following the entry into force of the CFREU, that horizontal effect only comes into play wherever the Union has regulatory competence in the field of fundamental rights. As pointed out by the Spanish Supreme Court, strictly speaking this would not amount to recognizing the directive’s horizontal effect, but “the direct effect of the fundamental right of the European Union implemented as such by it.”46 In

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See, for instance, Ugartemendia (2018), p. 21 et seq. Egenberger, cit., paragraphs 70 et seq.; IR/JQ, cit., paragraphs 62 et seq.; Bauer, cit., paragraphs 64 et seq.; Max Planck Gessellschaft, cit., paragraph 80; and Cresco Investigation, cit., paragraphs 74 et seq. 43 Since Dansk Industri, cit., paragraphs 33 y 34. 44 Egenberger, cit., paragraphs 72 and 73.; IR/JQ, cit., paragraphs 64 and 65; Bauer, cit., paragraph 68. 45 Egenberger, cit., paragraph 82; IR/JQ, cit., paragraphs 68 et seq.; Bauer, cit., paragraphs 86 et seq.; Max Planck Gessellschaft, cit., paragraph 80; and Cresco Investigation, cit., paragraph 80. 46 Judgment of the Spanish Supreme Court 2728/2016, of 8 June 2016, Employment division (Rec. 207/2015), ES:TS:2016:2728, Legal Ground 11, para. 2 (emphasis added). Along the same lines, see Judgment of the same division of the Spanish Supreme Court: 4408/2016, of 17 October 2016 (Rec. 36/2016), Zardoya-Otis, ES:TS:2016:4408, Legal Ground 7, para. 2.E. 42

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addition to giving concrete expression and a more precise framework to the fundamental right, the directive would determine that the case falls within the regulatory competence of the EU—and therefore, under the scope of the system of fundamental rights of the Union itself. 3. It is worth noting that, since the entry into force of the CFREU, this type of Drittwirkung was mostly developed in relation to the principle of non-discrimination under Article 21 CFREU (either on grounds of age or religion). Last year, this recognition extended to solidarity rights, in particular those enshrined in Article 31(2) CFREU (fair and just working conditions), and specifically the right to paid annual leave and the right to a limitation of maximum working hours and to daily and weekly rest periods. 4. The Court of Justice has recognized the horizontal effect of the fundamental rights enshrined in the CFREU when they are sufficient in themselves to confer on individuals an individual right which they may invoke as such. However, such horizontal effect is not granted to the provisions of the Charter containing “principles” [to which allude the Article 51(1) or 52(5)], that is, those fundamental rights that require implementing legislation either of the EU or the Member States. That is also the case of the “principles governing economic and social policy” under Chapter 3, Title I of the Spanish Constitution. At this point, some authors have rightly questioned why the fundamental rights conceived in the CFREU as “principles” (e.g., workers’ right to information and consultation under Article 27) could not be similarly relied upon in connection with a directive. There is no apparent reason why the compatibility of national legislation with the “principle” could not be analyzed in light of the concrete expression given to it by the relevant directive.47

References Alonso García R (2014) Sistema jurídico de la Unión Europea. Civitas-Thomson Reuters, Madrid Cruz Villalón P (2017) La incidencia de la carta (DFUE) en la confluencia de la eficacia horizontal de los derechos fundamentales y la ineficacia horizontal de las directivas: de Kücükdeveci a Dansk Industri. AFDUAM 21:101–120 Leczykiewicz D (2013) Horizontal Application of the Charter of Fundamental Rights. Eur Law Rev 38:479–498 Lenaerts K, Gutiérrez-Fons JA (2014) The Charter in the EU Constitutional Edifice. In: Peers S, Hervey T, Kenner J, Ward A (eds) The EU Charter of fundamental rights. A commentary. CH Beck-Hart-Nomos, Oxford and Portland, pp 1578–1580

47

See in this regard the Opinion of Advocate General P. Cruz Villalón delivered on 18 July 2013, AMS, cit., paragraphs 60 et seq.; see also his work, already mentioned (2017), p. 113, and Alonso García (2014), p. 295.

The Horizontal Effect of the EU Charter of Fundamental Rights in the Case. . .

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Nogueira-Guastavino M (2019) La STJUE de 14 de mayo de 2019, CCOO/Deutsche Bank (C-55/ 18), relativa a la obligación de llevar un registro de la jornada diaria de trabajo y la aplicación horizontal de obligaciones instrumentales. Revista de Derecho Comunitario Europeo 64:929–961 Rossi LS (2019) The relationship between the EU Charter of Fundamental Rights and Directives in horizontal situations, EU Law Anal. http://eulawanalysis.blogspot.com/2019/02/the-relation ship-between-eu-charter-of.html Sarmiento D (2018) El Derecho de la Unión Europea. Marcial Pons, Madrid Ugartemendia JI (2018) Los mecanismos de eficacia equivalente a la eficacia horizontal de las directivas. Viejas consideraciones y nuevos apuntes. Revista Española de Derecho Europeo 68:21–53

The Concept of ‘State’ for the Purposes of the EU Charter of Fundamental Rights Carmen Martínez-Capdevila

1 Introduction Referring to the field of application of the Charter of Fundamental Rights of the EU (CFREU), Article 51(1) states that its provisions are addressed to the institutions, bodies, offices and agencies of the Union “and to the Member States only when they are implementing Union law.” Therefore, Member States are bound by the Charter where and to the extent that they apply EU law. This is hardly surprising, since EU law is typically implemented by Member States. In the words of Eeckhout (2002), “The Charter may well state that it is binding on the Member States ‘only’ when implementing EU law (. . .) but this exception-style formulation in fact conceals that this is the real importance of the Charter from the perspective of the European citizen.”1 This provision does not introduce any novelty. On the contrary, as can be seen in the explanations relating to the Charter, it takes up the classic case law of the Court of Justice of the EU (CJEU) on the position of Member States with regard to fundamental rights as general principles of EU law. The Wachauf judgment, among others, provides a perfect example. At that time, the CJEU considered that Community rules which, upon the expiry of the lease, had the effect of depriving the lessee, without compensation, of the fruits of his labor and of his investments in the tenanted holding would be incompatible with the requirements of the protection of fundamental rights in the (then) Community legal order. It then added that, “Since those requirements are also binding on the Member States when they implement

1

Eeckhout (2002), p. 992.

C. Martínez-Capdevila (*) Faculty of Law, Universidad Autónoma de Madrid, Madrid, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Izquierdo-Sans et al. (eds.), Fundamental Rights Challenges, https://doi.org/10.1007/978-3-030-72798-7_3

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Community rules, the Member States must, as far as possible, apply those rules in accordance with those requirements.”2 That case law and Article 51(1) CFREU clearly identify two conditions for extending the application of fundamental rights beyond the EU’s own institutional framework. First, a Member State must be involved; and second, it must be implementing EU law. This chapter examines the first requirement in order to address the following issues: the meaning of “Member State” for the purposes of Article 51(1) CFREU (Sects. 2 and 3); the extent to which this concept determines the enforceability of the Charter (Sect. 4); and whether the notion of “State” in the context of the direct effect of directives plays some role on this matter (Sect. 5). The final section of the chapter presents some concluding remarks (Sect. 6).3

2 “Member State” Under Article 51(1) CFREU, in Light of the Explanations The reference to Member States in Article 51(1) CFREU gives rise to two comments in the Explanations. The first one acknowledges that the Charter does not innovate but reproduces preexisting case law. The second comment concerns the actual content of the concept of “State.” As can be read at the end of the second paragraph of the explanation, “Of course this rule, as enshrined in this Charter, applies to the central authorities as well as to regional or local bodies, and to public organisations, when they are implementing Union law.” This sentence was already included (in identical terms) in the final draft of the Explanations to the 2000 version of the Charter,4 and it does not seem to have raised any controversy among the members of the first Convention. The State is thus deemed to include all the authorities at the various territorial levels within a country’s political and territorial structure, as well as any body governed by public law. The underlying rationale is that the internal distribution of powers and the organizational model of the Member States cannot exempt them from their obligations under EU law. In international law this is known as “the

2

Case 5/88, Wachauf, Judgment of 13 July 1989, EU:C:1989:321, paragraph 19. In the same sense, see Case C-260/89, ERT, Judgment of 18 June 1991, EU:C:1991:254, paragraph 43; Case C-2/92, Bostock, Judgment of 24 March 1994, EU:C:1994:116, paragraph 16; Case C-309/96, Annibaldi, Judgment of 18 December 1997, EU:C:1997:631, paragraph 13; Case C-292/97, Karlsson, Judgment of 13 April 2000, EU:C:2000:202, paragraph 37; or, Case C-198/13, Julián Hernández, Judgment of 10 July 2014, EU:C:2014:2055, paragraph 33. 3 Most of the literature has focused on the second element, i.e., the fact that Member States will only be subject to Article 51(1) CFREU when implementing EU law. See in this regard Besselink (2001), pp. 76–79; Eeckhout (2002), pp. 975–979; Groussot et al. (2011); Lenaerts (2012), pp. 378–387; or Ward (2014), pp. 1433–1447. 4 Eeckhout (2002), pp. 955–956.

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principle of the unity of the State”—counterpoint to the principle of selforganization. In the words of AG Bot, “In order to ensure that enforcement of Community law does not depend on the political, institutional and administrative organisation of the Member States and in order not to interfere in that organisation, the Court of Justice applies the principle of international law that the subject of law which enters into commitments and which is bound to comply with its commitments is the State as such, viewed as a single organic and functional entity.”5 While there is no univocal definition of “State” under EU law (it must be interpreted in light of the purpose of the relevant provision),6 the attribution to the State of the conduct of infra-State and public-law bodies is deeply rooted in this legal order when it comes to identifying the State as an entity bound by EU law.7 This is the case, for instance, with respect to Member States’ infringements of EU law,8 the invocability of directives having direct effect,9 State aid,10 or public procurement.11 The literature has never questioned the Explanations in this particular point, although some authors have regretted the lack of a more extensive definition of “State.” Among them, Picod (2018) looks at the CJEU’s case law on the notion of “State” in connection with the internal market freedoms (which points in the same direction as the case law on the direct effect of directives). In his opinion, the explanation regarding Article 51 CFREU should also include persons or bodies that, regardless of their public or private law status, fulfill a public interest purpose and are endowed with special powers over those whose activities they regulate.12 5 Opinion delivered on 7 June 2007, Joined Cases C-7/06 P to 10/06 P, Beatriz Salvador García, EU: C:2007:324, point 126. 6 Quoting Haguenau, AG Ruiz-Jarabo Colomer referred to a “variable geometry approach” followed by the CJEU in its definition of “State,” which thus “changes according to the field under consideration and exhibits the pragmatism employed to secure the effectiveness of Community law, in order thus to satisfy the desire for integration inherent in the Treaty” (Opinion delivered on 12 January 2006, Case C-417/04 P, Regione Siciliana v Commission, EU:C:2006:28, point 43). 7 A different issue is the content of the concept of “State” for the purposes of the institutional provisions of the Treaties and, in particular, those regarding judicial remedies before the CJEU (Case C-95/97, Région Wallonne v Commission, Order of 21 March 1997, EU:C:1997:184, paragraph 6; and, Case C-180/97, Regione Toscana v Commission, Order of 1 October 1997, EU:C:1997:451, paragraph 6). 8 See, inter alia, Case C-417/99, Commission v Spain, Judgment of 13 September 2001, EU: C:2001:445; Case C-423/00, Commission v Belgium, Judgment of 17 January 2002, EU: C:2002:32, paragraph 16; and, Case C-383/00, Commission v Germany, Judgment of 14 May 2002, EU:C:2002:289, paragraph 18. 9 Case 103/88, Fratelli Costanzo, Judgment of 22 June 1989, EU:C:1989:256, paragraph 31; Joined Cases C-253/96 to C-256/96, Kampelmann, Judgment of 4 December 1997, EU:C:1997:585, paragraph 46; or, Case C-122/17, Smith, Judgment (Grand Chamber) of 7 August 2018, EU: C:2018:631, paragraph 45. 10 Case 248/84, Germany v Commission, Judgment of 14 October 1987, EU:C:1987:437, paragraph 17. 11 Case C-323/96, Commission v Belgium, Judgment of 17 September 1998, EU:C:1998:411, paragraph 27. 12 Picod (2018), p. 725.

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The same could be argued of bodies that are directly or indirectly subject to the authority or control of the State.13 No case has required the CJEU to give a ruling for or against those arguments. In fact, as explained in the following section, its case law on the concept of “State” has been rather uncontroversial. In any case, the fact that an organization or entity cannot be identified with the State for the purposes of Article 51(1) CFREU does not necessarily mean that they escape its application. Indeed, the recognition of the horizontal direct effect of some rights enshrined in the Charter ensures that such entities will be subject to the Charter whenever they implement EU law (in connection with those specific rights)—even if they are not included within the concept of State.14 Furthermore, the specific content of the concept of “State”—even for the purposes of the Charter—will vary depending on the right in question. In this sense, it seems clear that the right to an effective remedy, enshrined in Article 47 CFREU and recognized as having direct effect by the CJEU,15 can be hardly invoked against any of these bodies, regardless of whether they may be considered “emanations” of the State.

3 “Member State” Under Article 51(1) CFREU, in the Case Law of the CJEU Until now, the CJEU has only applied the Charter to Member States in the context of actions by core state (i.e., judicial or administrative) authorities or some infra-state body. There has not been a single case in which the national body involved was a public law entity or other type of organization. Two features define the rulings of the CJEU on this matter: First, they have raised no controversy. The concept of “State” in the context of Article 51(1) CFREU has not triggered any debate calling the CJEU to pronounce on a specific instance. The reason for this lack of debate is that almost all cases submitted to the CJEU regarding State action connected with the Charter concerned a national public authority which was undoubtedly part of the “State.” Several examples illustrate this point: the Melloni case concerned the conformity with Articles 47 and 48 CFREU of an action by the Spanish High Court (Audiencia

13

See Case 249/81, Commission v Ireland, Judgment of 24 November 1982, EU:C:1982:402, paragraph 15 (on free movement of goods); and Case C-188/89, Foster, Judgment of 12 July 1990, EU:C:1990:313, paragraph 18, and Case C-413/15, Farrell, Judgment of 10 October 2017, EU:C:2017:745, paragraphs 22-29 (on the ability to rely on directives having direct effect). 14 Regarding the horizontal effect of the Charter, see Sect. 4 infra. 15 Case C-414/16, Egenberger, Judgment (Grand Chamber) of 17 April 2018, EU:C:2018:257, paragraph 78.

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Nacional);16 in Åkerberg Fransson, the CJEU addressed the ability to rely on Article 50 CFREU before a Swedish criminal court of first instance in the context of criminal proceedings;17 in N.S., the issue was whether the British Secretary of State was subject to the Charter when deciding on an asylum application under Regulation 343/2003;18 finally, Jawo concerned the conformity with Article 4 CFREU of the decision of the German Federal Office for Migration and Refugees ordering the transfer to another Member State of an asylum seeker.19 In all four cases, it was clear that the national bodies should be considered “State,” and none of the intervening Governments challenged this point. At the most, some of them rejected that the relevant action implemented EU law.20 Second, the case law of the CJEU on Article 51(1) CFREU lacks any justification when it addresses the action of bodies whose consideration as “State” might not be so obvious. Thus, in the Bauer case, the CJEU failed to explain why the German city of Wuppertal was part of the “State” for the purposes of Article 51(1) CFREU.21 AG Bot also ignored this issue in his Opinion.22 Both the Judges and the Advocate General assumed that was the case and failed to provide any explanation.23 This, in turn, shows that the notion of “State” is so well established in other sectors of EU law that it has naturally, automatically permeated the scope of the Charter, since its application to infra-State bodies is based on the concept of “State” used in those other frameworks.24 Now that the CJEU has partially recognized the horizontal direct effect of the Charter, identifying whether a specific body is part of the “State” becomes somewhat secondary, since it will no longer determine its enforceability.

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Case C-399/11, Melloni, Judgment (Grand Chamber) of 26 February 2013, EU:C:2013:107. Case C-617/10, Åkerberg Fransson, Judgment (Grand Chamber) of 26 February 2013, EU: C:2013:105. 18 Joined Cases C-411/10 and C-493/10, N.S., Judgment (Grand Chamber) of 21 December 2011, EU:C:2011:865. 19 Case C-163/17, Jawo, Judgment (Grand Chamber) of 19 March 2019, EU:C:2019:218. 20 See Case C-617/10, Åkerberg Fransson, cit. in note 17, paragraph 16; and, Joined Cases C-411/10 and C-493/10, N.S., cit. in note 18, paragraph 61. 21 Joined Cases C-569/16 and C-570/16, Bauer, Judgment (Grand Chamber) of 6 November 2018, EU:C:2018:871. 22 Opinion delivered on 29 May 2018, Joined Cases C-569/16 and C-570/16, Bauer, EU: C:2018:337. 23 This would confirm a point made by Sarmiento (2018), in the sense that the CJEU has endeavored to reduce the importance of the Explanations, which are rarely mentioned in the case law of the CJEU concerning the Charter (p. 194). 24 See notes 8–11. 17

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4 Horizontal Application of the Charter and Partial Loss of Relevance of the Concept of “State” In recent years, the CJEU has acknowledged that individuals are directly bound by certain provisions of the Charter in areas governed by EU law, even if Article 51 (1) makes no reference to them. Consequently, the notion of “State” has become less relevant for these purposes. Unlike with the direct effect of directives, it will no longer be so important to determine whether a certain body is an “emanation” of the State (arguably the most problematic scenario, especially when it comes to private law entities). In those cases, whatever its consideration (State or private party), that body will be bound by the Charter. This case law begins in April 2018 with the Egenberger judgment on the prohibition of all discrimination on grounds of religion or belief under Article 21 (1) CFREU.25 It is the first time the CJEU states unequivocally that a provision of the Charter “is sufficient in itself to confer on individuals a right which they may rely on as such in disputes between them in a field covered by EU law.” The Court specifies that, “Article 21 of the Charter is no different, in principle, from the various provisions of the founding Treaties prohibiting discrimination on various grounds, even where the discrimination derives from contracts between individuals.” Also, “the fact that a court may, in a dispute between individuals, be called on to balance competing fundamental rights which the parties to the dispute derive from the provisions of the FEU Treaty or the Charter” does not call into question the court’s obligation to guarantee the full effectiveness of Article 21(1) by disapplying if need be any contrary provision of national law.26 In September 2018, in the IR case and in relation to the same right to non-discrimination based on religion, the Court reaffirmed that, “The prohibition of all discrimination on grounds of religion or belief, now enshrined in Article 21 of the Charter, is (. . .) a mandatory general principle of EU law and is sufficient in itself to confer on individuals a right that they may actually rely on in disputes between them in a field covered by EU law.”27 This judgment was handed down in response to a request for a preliminary ruling from a national court hearing a dispute between

25

Case C-414/16, Egenberger, cit. in note 15. In Kücükdeveci, the CJEU had already recognized the horizontal effect of the prohibition of discrimination on the grounds of age, but it based its argument on the fact that it was a general principle of EU law rather than a principle enshrined in Article 21 (1) CFREU (Case C-555/07, Kücükdeveci, Judgment—Grand Chamber- of 19 January 2010, EU: C:2010:21, esp. paragraphs 27, 50 and 51). Given that the Charter had by then become a binding instrument (in contrast to when it delivered its Mangold judgment along the same lines, Case C-144/ 04, Judgment of 22 November 2005, EU:C:2005:709), it is possible that the approach of the CJEU (reiterated in DI; Case C-441/14, Judgment of 19 April 2016, EU:C:2016:278) was a way of sidestepping the issue finally addressed in Egenberger, i.e., the horizontal effect of Article 21 (1) CFREU. 26 Paragraphs 76–80 (emphasis added). 27 Case C-68/17, IR, Judgment (Grand Chamber) of 11 September 2018, EU:C:2018:696, paragraph 69.

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private individuals. Unlike in the Egenberger case, in this instance the CJEU did not find it necessary to point out that Directive 2000/78 gave specific expression to the general principle of non-discrimination under Article 21(1). This provision was sufficient in itself to confer on individuals a right which they may rely on as such, even without combining it with a directive. This same reasoning was expressed in Cresco regarding the same provision of the Charter,28 as well as in Bauer and Shimizu on the right to paid annual leave under Article 31(2) CFREU.29 It is worth noting that only in Bauer and Shimizu (which were not the first pronouncements in this regard) did the CJEU consider the literal wording of Article 51(1) CFREU. It pointed out that this provision simply did not address the question of whether the provisions of the Charter may be a direct source of obligations for individuals—so no conclusion could be drawn from it: “[I]t should be noted that, although Article 51(1) of the Charter states that the provisions thereof are addressed to the institutions, bodies, offices and agencies of the European Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing EU law, Article 51(1) does not, however, address the question whether those individuals may, where appropriate, be directly required to comply with certain provisions of the Charter and cannot, accordingly, be interpreted as meaning that it would systematically preclude such a possibility.”30 A few months earlier (in July 2018), in his Opinion in Cresco, AG Bobek referred to the literal wording of Article 51(1) CFREU to argue against granting horizontal direct effect to the Charter’s provisions.31 This debate was not entirely new for the Court. Like AG Bobek, AG Trstenjak had interpreted Article 51(1) CFREU in the sense that the Charter’s provisions could not be addressed to private parties.32 According to AG Cruz Villalón, this inference was “clearly hasty,” since “there is nothing in the wording of the article or, unless I am mistaken, in the preparatory works or the Explanations relating to the Charter, which suggests that there was any intention, through the language of that article, to address the very complex issue of the effectiveness of fundamental rights in relations between individuals.”33 By recognizing the horizontal effect of certain rights in the Charter in the context of employment relations, the CJEU upheld the position of AG

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Case C-193/17, Cresco, Judgment (Grand Chamber) of 22 January 2019, EU:C:2019:43. Joined Cases C-569/16 and C-570/16, Bauer, cit. in note 21; and, Case C-684/16, Shimizu, Judgment (Grand Chamber) of 6 November 2018, EU:C:2018:874. 30 Joined Cases C-569/16 and C-570/16, Bauer, cit. in note 21, paragraph 87; and, Case C-684/16, Shimizu, cit. in note 29, paragraph 76. That was the position of AG Bot in his Opinion in Bauer (cit. in note 22, points 77 and 78). 31 Opinion delivered on 25 June 2018, EU:C:2018:614, points 131 ss., esp. point 140. 32 Opinion delivered on 8 September 2011, Case C-282/10, Domínguez, EU:C:2011:559, points 80–83. 33 Opinion delivered on 18 July 2013, Case C-176/12, Association de médiation social (AMS), EU: C:2013:491, points 28–32. 29

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Cruz Villalón—giving this instrument a legal effect beyond what would result from a first reading of Article 51(1) CFREU. Article 51(1) also reflects a distinction between rights and principles. Its second sentence states that the institutions, bodies, offices and agencies of the Union, as well as the Member States, shall “respect the rights, observe the principles and promote the application thereof.” The former create individual or subjective rights that (depending on the terms) may be invoked in disputes between private parties, whereas principles lack such legal effect and require implementing measures giving specific expression to them. It is precisely in that latter context where the concept of “State” coined by the CJEU regarding the direct effect of directives could become more relevant.

5 The Interplay Between the Concept of “State” Regarding the Direct Effect of Directives and the Charter Several provisions of the Charter proclaim the existence of a right while referring to the conditions under EU and national law. That is clearly the case with Article 27 CFREU on workers’ right to information and consultation within the undertaking, which must be guaranteed “in the cases and under the conditions provided for by Union law and national laws and practices.” Similarly, other provisions of the Charter set out rights in unspecified terms that require complementing measures—even if not expressly stated. The conditions for exercising the right outlined in the Charter must be specified by an instrument adopted by the EU or its Member States. As the CJEU held in Glatzel regarding Article 26 CFREU on the integration of persons with disabilities, in order for such provisions to be fully effective, they must be given more specific expression in EU or national law. In other words, those articles cannot by themselves confer on individuals a subjective right which they may invoke as such.34 According to the right/principle dichotomy used in the Charter and echoed in the second sentence of Article 51(1) and in Article 52(5) CFREU, the rights enshrined in the two types of (non-self-executing) provisions mentioned above are, strictly speaking, principles. When the act specifying a principle in the Charter (what AG Cruz Villalón calls “act giving specific substantive and direct expression to the content of a principle”)35 is an EU directive, there arises the concept of “State” as an entity bound by this type of instruments and against which the provisions having direct effect are enforceable by individuals.

34 35

Case C-356/12, Glatzel, Judgment of 22 May 2014, EU:C:2014:350, paragraph 78. See his Opinion in AMS, cit. in note 33.

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This was the context that gave rise to the judgment of the CJEU in Association de médiation social (AMS).36 In particular, the case concerned Article 27 CFREU and Directive 2002/14 establishing a general framework for informing and consulting employees in the European Community. The French Court of Cassation (Cour de cassation)—hearing the dispute between AMS and its employee appointed as union representative—requested the CJEU to determine whether the fundamental right of workers to information and consultation, recognized by Article 27 CFREU, and as specified in the provisions of Directive 2002/14, could by itself or in conjunction with the said Directive be invoked in a dispute between private individuals so as to preclude the application of an allegedly conflicting national implementing measure (Article L. 1111-3 of the French Labor Code). In its judgment, the CJEU recalled its settled case law according to which even a clear, precise and unconditional provision of a directive seeking to confer rights or impose obligations on individuals cannot of itself apply in proceedings exclusively between private parties.37 Then, the Court considered whether, like in Kücükdeveci,38 Article 27 CFREU, by itself or in conjunction with the provisions of Directive 2002/14, could be invoked in a dispute between individuals in order to disapply the national provision not in conformity with the Directive. Relying on the wording of Article 27 CFREU, the Court concluded that, in order to be fully effective, such provision must be given more specific expression in EU or national law.39 That was the essential difference with Article 21(1) CFREU at issue in Kücükdeveci: the principle of non-discrimination on grounds of age is sufficient in itself to confer on individuals a subjective right which they may invoke as such.40 Therefore, the defendants in the main proceedings could not rely on Article 27 CFREU as such in order to set aside the national provision which was not in conformity with Directive 2002/14.41 According to the CJEU, this finding could not be called into question by considering Article 27 CFREU in conjunction with the provisions of Directive 2002/14, given that, since that article by itself does not suffice to confer on individuals a right which they may invoke as such, it could not be otherwise if it is considered in conjunction with that directive.42

36

Case C-176/12, Association de médiation social (AMS), Judgment (Grand Chamber) of 15 January 2014, EU:C:2014:2. In his Opinion in Kücükdeveci, AG Bot had already suggested the Court to consider “whether the designation of rights guaranteed by directives as fundamental rights [contained in a charter that would become legally binding] does or does not strengthen the right to rely on them in proceedings between private parties” (opinion delivered on 7 July 2009, Case C-555/07, ECLI:EU:C:2009:429, point 90), but the CJEU did not address the issue in its judgment. 37 Paragraphs 36 and 37. 38 Cit. in note 25. 39 Paragraph 45. 40 Paragraph 47. 41 Paragraph 48. 42 Paragraph 49.

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Therefore, the case law of the CJEU on the direct effect of directives becomes relevant in the field of fundamental rights when the act specifying a principle in the Charter is precisely a directive. As is well known, the concept of “State” is paramount to that case law, given that directives can only have vertical direct effect. AG Cruz Villalón had suggested another approach in his Opinion. He advocated a specific treatment for this type of directives, so that in conjunction with the Charter’s provision given specific expression they could be relied upon in disputes between individuals—potentially entailing the non-application of any conflicting national legislation. AG Cruz Villalón based his reasoning on four arguments. First, the cooperation of the EU legislature required by Article 27 CFREU does not entail unlimited delegation in favor of the legislature, in particular where such delegation may lead to undermining the meaning of the second sentence of Article 52(5) CFREU (according to which the principles in the Charter may be invoked for the purposes of ensuring the legality of the acts giving them specific expression). Indeed, that would be the result if, by adopting a directive, the legislature deprived individuals— in disputes among private parties—of the judicial review of validity ensured by the Charter. Second, there are very few directive provisions that can be said to give specific substantive and direct expression to the content of a principle. Therefore, the settled case law on the direct effect of directives should remain intact with respect to almost all the provisions of present and future directives. Third, based on the CIA Security, Mangold and Kücükdeveci judgments,43 AG Cruz Villalón’s proposal should be considered consistent with the development of the case law, which has allowed, also in a very specific way, objective review of national acts in the light of directives in disputes between private parties. Fourth, AG Cruz Villalón clarified that his proposal should not result in a situation of legal uncertainty (as alleged by Germany in its written observations). Rather, it should produce the opposite result; what could cause a situation of uncertainty is the possibility that the legislature might unilaterally alter the effectiveness of the general provisions of the Charter.44 As persuasive as the above reasoning was, the CJEU did not accept it and rejected the possibility of invoking, in disputes among private parties, directives that give concrete expression to principles in the Charter. A different question worth considering is that the CJEU has recently clarified— and lightened—the requirements to identify a specific body, even governed by private law, as an “emanation” of the State, thereby admitting the enforceability against it of the provisions of a directive that have direct effect. The landmark judgment in Foster45 raised the question as to whether its two conditions were cumulative or alternative. In October 2017, the Farrell judgment specified that it was the latter. Hence, a body or organization with special powers beyond those

43 Case C-194/94, CIA Security, Judgment of 30 April 1996, EU:C:1996:172. For Mangold and Kücükdeveci, see note 25. 44 Opinion cit. in note 33, points 74–78. 45 Cit. in note 13.

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which result from the normal rules applicable to relations between individuals will be considered an “emanation” of the State for the purposes of the vertical direct effect of directives, even if it is not subject to the authority or control of the State (as was the case in the main proceedings).46 With this extensive interpretation of the “Foster test,” the CJEU broadened the concept of “State” regarding the direct effect of directives and, therefore, the scope of the entities against which the directive provisions giving specific expression to principles in the Charter may be invoked.

6 Conclusions Now that the CJEU has recognized the horizontal effect of certain rights in the Charter, the concept of “State” for the purposes of Article 51(1) CFREU has somewhat lost importance. Being part of the State is no longer necessary for an entity to be subject to the Charter and to set aside any conflicting national provision. In this regard and in light of the case law mentioned in Sect. 4, maybe there is not much room for Picod’s proposal to include within the concept of State those persons or bodies that, regardless of their public or private law status, fulfill a public interest purpose and are endowed with special powers over those whose activities they regulate.47 The same applies to bodies that are directly or indirectly subject to the authority or control of the State. On the one hand, such persons or bodies will rarely be bound by provisions like Article 47 CFREU on the right to an effective remedy and to a fair trial—only enforceable against the State in the strictest sense. On the other, the fact that these persons or bodies should be subject to other provisions in the Charter which the CJEU has recognized as having horizontal effect (e.g., the right to non-discrimination and to annual paid leave under Articles 21 and 31(2) CFREU respectively) does not depend on their consideration as “emanations” of the State. On a separate issue, by rejecting the horizontal direct effect of directives that give specific expression to the principles in the Charter (AMS judgment), the CJEU has deepened the gap between the two elements of the rights/principles dichotomy. Not only rights can have direct effect, but they can also be invoked in disputes among private individuals—depending on the terms of the relevant provision. Principles, in turn, do not create subjective rights enforceable by private parties and cannot be relied upon against another individual when the EU act that gives them concrete expression is a directive. In this latter case, the full effectiveness of the Charter will

46 Case C-413/15, Farrell, cit. in note 13. This supposedly clarifying case law does not specify whether the special powers given to the relevant body must be linked to the performance of a task in the public interest conferred upon it by the Member State (paragraphs 28, 33 and 34). In the same line, see Case C-17/17, Hampshire, Judgment of 6 September 2018, EU:C:2018:674, paragraphs 54 and 55; and, Case C-168/18, Günther Bauer, Judgment of 19 December 2019, EU:C:2019:1128, paragraph 48. 47 See Sect. 2, supra.

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depend on the correct and timely transposition of the directives by the Member States. This different approach regarding the rights enshrined in the Charter and the directives giving specific expression to its principles seems to be in contradiction with the idea of the Charter as a coherent and articulated system, endowed with greater autonomy regarding fundamental rights, as pointed by Cruz Villalón (2017)48 and suggested by other judgments of the CJEU.49

References Besselink LFM (2001) The Member States, the National Constitutions and the Scope of the Charter. Maastricht J Eur Comp Law 8:68–80 Cruz Villalón P (2017) La Incidencia de la Carta (DFUE) en la Confluencia de la Eficacia Horizontal de los Derechos Fundamentales y la Ineficacia Horizontal de las Directivas: De Kücükdeveci a Dansk Industri. In: Izquierdo Sans C, Rodríguez de Santiago JM (eds) Anuario de la Facultad de Derecho de la Universidad Autónoma de Madrid 21. Los Derechos Fundamentales en las Relaciones entre Particulares, Facultad de Derecho de la UAM, BOE, Madrid, pp 101–120 Eeckhout P (2002) The EU Charter of fundamental rights and the federal question. Common Mark Law Rev 39:945–994 Groussot X, Pech L, Petursson GT (2011) The Scope of application of Fundamental Rights on Member States’ action: in search of certainty in EU adjudication. Eric Stein Working Paper 1 Lenaerts K (2012) Exploring the limits of EU Charter of fundamental rights. Eur Const Law Rev 8:375–403 Martínez Capdevila C (2019) La eficacia horizontal de los derechos fundamentales en la Unión Europea: el Tribunal de Justicia prefiere ir por libre. In: Martín y Pérez de Nanclares J (ed), González Herrera D (coord.), El diálogo judicial en la protección de los derechos fundamentales. Tirant lo Blanch, Valencia, pp 89–95 Picod P (2018) Article 51. Champ d’application. In: Picod F, Van Drooghenbroeck S (eds) Charte des droits fondamentaux de l´Union européenne. Commentaire article par article. Bruylant, Bruxelles, pp 719–736 Sarmiento (2018) El Derecho de la Unión Europea, 2nd edn. Marcial Pons, Madrid Ward A (2014) Article 51. In: Peers S, Hervey T, Kenner J, Ward A (eds) The EU Charter of fundamental rights. A commentary. Hart, Oxford, pp 1413–1454

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Cruz Villalón (2017), pp. 118–120. See in this regard Martínez Capdevila (2019).

A Principle Vanishes and a Right Arises: Paid Annual Leave As a Fundamental Right and Its Impact on Liability for Breach of EU Law Magdalena Nogueira-Guastavino

1 The Right to Paid Annual Leave As Acknowledged Internationally and in Terms of Comparative Law All relevant international instruments grant workers the right to paid annual leave. These provisions either expressly mention the fact that annual leave must be paid, or they simply acknowledge the right to paid holiday in general terms subject to national legislation and/or standard practice in the relevant country. Similarly, many EU countries’ Constitutions lay down guarantees regarding working conditions, including the workers’ right to annual periods of rest. Among others, the Constitutions of Luxembourg (Article 11(5)), Spain (Art. 40), Portugal (Art. 59(1)(d)) and, more expressively, Italy (Art. 36) provide for this right. However, in these countries, the essence and scope of the said constitutional right is further specified in pieces of ordinary domestic legislation. On the contrary, new Member States’ Constitutions thoroughly define this entitlement. See, for instance, how the Slovak, Polish, Hungarian, Latvian and Lithuanian Constitutions comprehensively acknowledge the right to a minimum period of paid annual leave. Within the European Union, ever since the Treaty of Rome, EU primary law has sought consistency in this matter. As was the case regarding gender equality, this quest for homogeneity is probably intended to avoid employment disparities that could lead to social dumping. This is why it has become something of a mantra that “Member States shall endeavor to maintain the existing equivalence between paid

This chapter has been written in January 2020. M. Nogueira-Guastavino (*) School of Law, Universidad Autónoma de Madrid, Madrid, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Izquierdo-Sans et al. (eds.), Fundamental Rights Challenges, https://doi.org/10.1007/978-3-030-72798-7_4

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holiday schemes.” Except for the numbering,1 this wording has remained unchanged and can be found in Art. 158 of the Treaty on the Functioning of the European Union (hereinafter, TFEU) currently in force. Article 7 of both the first Directive on the organization of working time, dated 1993, and of Directive 2003/88/EC, whose legal basis was Art. 137 TEC, currently Art. 158 TFEU (providing that the Union shall support and complement the activities of Member States, seeking to improve the working environment to protect workers' health and safety), is worded as follows: “1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice. 2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.” Article 17 of Directive 2003/88 enables Member States to set aside or derogate certain provisions. However, regarding Article 7 of the said Directive, no exceptions (or, better said, derogations) are allowed. In this vein, the right to paid holiday is laid down in Art. 31(2) under Title IV of the Charter of Fundamental Rights of the European Union (hereinafter, CFREU): “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.” With hindsight, one could argue that the entitlement to paid annual leave is a fundamental social (workers’) right. In fact, since long ago, this right could have been considered a “general principle of EU law,” given that it could be drawn from the constitutional traditions common to the Member States (as the CJEU pointed out in its Judgment of 17 December 1970, Case C-11/70, Internationale Handelgesellschaft, EU:C:1970:114) as well as from the international human rights treaties to which Member States are parties (as stated in CJEU Judgment of 14 May 1974 in Nold, EU:C:1974:51), in spite that it is not expressly set out in the European Convention on Human Rights (ECHR).2 Nevertheless, it has only recently been acknowledged as a fundamental right in the European Union directly applicable in private-private relationships. Its tortuous road to this acknowledgment makes full sense. Indeed, the very structure of this entitlement has always raised some doubts, particularly regarding the clarity and non-conditional nature of its wording. The issue has been whether it is an 1

This provision was renumbered as Article 143 under the Treaty of Amsterdam. Then, it became numbered Art. 142 following the Treaty of Nice and in the Lisbon Treaty. 2 The Court highlighted its particular importance both in Case C-4/73, Nold, Judgment of 14 May 1974, EU:C:1974:51 and in Case C-36/75, Rutili, Judgment of 28 October 1975, EU:C:1975:137.

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unconditional clearly-worded right or rather an entitlement that requires further public action for the right’s enforcement; not only to lay down the conditions to exercise the right, but also to specify the actual meaning of “paid” inherent to this right. Actually, certain rulings seem to have expressly rejected this horizontal direct effect.3 This chapter examines how this right and the application thereof has unfolded. More specifically, it addresses how the Court has dealt with the structure and wording of this entitlement in its latest rulings. In these recent judgments, the Court unambiguously declares, as in Mangold or Kücükdeveci, that the right to paid holiday qualifies as a fundamental right directly applicable to relationships between private parties. Although it is implemented in a Directive, the right to paid annual leave applies pursuant to Art. 31(2) CFREU (not under the Directive). Also, this CFREU provision is the one imposing the right’s horizontal effect in private employment relationships.4

2 The Interpretation of the Right to Paid Annual Leave Prior to the Post-Lisbon Union’s CFREU. The Right to Paid Annual Leave As a “Particularly Important Principle of Community Social Law” Prior to the entry into force of the CFREU, which under Art. 6(1) TEU shall have the same legal value as the Treaties, the Court of Justice had declared, for the very first time, that the entitlement of every worker to paid annual leave must be regarded as a particularly important principle of Community social law (para. 43). This bold statement can be found in the landmark CJEU Case C-173/99, BECTU (Broadcasting, Entertainment, Cinematographic and Theatre Union), Judgment of 26 June 2001, EU:C:2001:356. This ruling declared that, with regard to both the objective of the Directive (back then Directive 93/104), and to its “scheme,” paid annual leave “constitutes a social right directly conferred by that [D]irective on every worker as [a] minimum requirement” (para. 47). Thus, without expressly mentioning it, the judgment was already

3 Grand Chamber, Case C-282/10, Maribel Domínguez, Judgment of 24 January 2012, EU: C:2012:33. The Court boldly rejected that the Directive on the organization of working time be relied upon in relationships between private parties (para. 37). Also, the CJEU failed to specifically address whether the right to paid annual leave could be considered a general principle of European Union social law and if, as such, it could be applied to private-private relationships. However, the Court does refer to the right to paid holiday as an individual right laid down in a Directive having direct effect vis-à-vis the State, adding that, if the employer cannot broadly qualify as a State or public authority, the Francovich doctrine should apply (Joined Cases C-6/90 and C-9/90). 4 The Court clearly declares this direct effect, although only regarding relationships between private parties and public bodies (i.e., vertical direct effect), in Case C-282/10, Maribel Domínguez, Judgment of 24 January 2012, EU:C:2012:33, paragraphs 33–38.

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declaring or asserting the right’s direct effect.5 The Court included some other bold statements in this regard. It declared that Art. 7 of the Directive (providing for the right to paid annual leave) was one of the few Directive provisions to which no derogations applied, adding that the aforesaid Article 7 covered all sectors of activity within the scope of the Directive, both public and private, as well as workers employed under a contract of indefinite duration and those employed under a fixed-term contract (this was actually a key point for the trade union, since its members often engaged in short-term contracts with the same employer that prevented them from meeting the conditions for entitlement to paid annual leave). Furthermore, this issue allowed to unravel part of the complex structure of paid holiday. The case showed that Member States may very well define “the conditions for entitlement to, and granting of, such leave” in their “national legislation and/or practice.” However, quite a different thing is that they preclude the existence and enjoyment of the right, which would be contrary to EU law (para. 53). Declaring that paid annual leave qualified as a particularly important principle of Community (Union) social law in June 2001 was very significant. Especially considering that the first Charter of Fundamental Rights of the European Union (which had just been recently proclaimed in Nice on 7 December 2000) provided for this workers’ entitlement as a “solidarity right” under Chapter IV. Nonetheless, the BECTU Judgment fails to mention the Charter in spite of the importance placed thereon by AG Tizzano.6 None of the subsequent judgments on this matter dared to rule that this “particularly important” principle actually amounted to a “general principle” of EU law, i.e., a long-lasting way to acknowledge fundamental rights within the Union. Rather, the abovementioned judgments simply reiterated the particular significance of this principle of social law, although there were many referrals to preliminary rulings in the context of proceedings between private parties.7

5 The Court clearly declares this direct effect, although only regarding relationships between private parties and public bodies (i.e., vertical direct effect), in Case C-282/10, Maribel Domínguez, Judgment of 24 January 2012, EU:C:2012:33, paragraphs 33–38. 6 See Opinion of AG Tizzano delivered on 8 February 2001, where he boldly asserted that the right to paid annual leave amounted to a fundamental social right under the Charter. See the references to the fundamental social right to paid holiday in the Opinion of AG Trstenjak delivered on 24 January 2008 in Joined Cases Shuz Hoff and Stringer and Others ratifying such status as “fundamental social right.” 7 Neither the Case C-342/01, Merino Gómez v. Sociedad Continental Industrias del Caucho, S.A., Judgment of 18 March 2004, EU:C:2004:160, paragraph 29, nor the subsequent rulings, went any further than highlighting such “particular importance” of the right to paid holiday as a principle of Community (Union) social law: see CJEU Cases C-131/04 and C-257/04, Robinson-Steele, Judgment of 16 March 2006, EU:C:2006:177, paragraph. 48; Case C-124/05, Federatie Nederlandse, Judgment of 6 April 2006, EU:C:2006:244, paragraph 28; Joined Cases C-350/06 and C-520/06, Schultz-Hoff, Judgment of 20 January 2009, EU:C:2009:18, paragraph 22; Case C-277/08, Vicente Pereda, Judgment of 10 September 2009, EU:C:2009:542, para. 18; Case C-486/ 08, Zentralbetriebsrat der Landeskrankenhäuser Tirols/Land Tirol, Judgment of 22 April 2010, EU: C:2010:215, para. 28.

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Under Article 6(1) TEU, the new Charter of Fundamental Rights, solemnly proclaimed in Lisbon in 2007, had the same legal value as the Treaties. The enactment of this new Charter only prompted the Court of Justice to emphasize the importance of the said CFREU in its subsequent rulings on workers’ paid holidays, as in Case C- 155/10, Williams and Others v. British Airways plc, Judgment of 15 September 2011, EU:C:2011:588, on the components comprising the workers’ “paid” annual leave. In this decision, the Court pointed out that Article 7 of Directive 2003/88 lays down “a particularly important principle of Community social law” (para. 17), a provision from which that Directive allows no derogation, and simply underlined that “[t]he 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” (para. 18). Nevertheless, without drawing any further conclusions from such statement, or from the fact that the proceedings involved private parties, the CJEU ruled that workers must receive their “normal remuneration” (para. 19) during paid leave. In the specific case at hand, this “normal remuneration” means the worker’s basic salary plus “all the components intrinsically linked to the performance of the tasks which he is required to carry out under his contract of employment and in respect of which a monetary amount, included in the calculation of his total remuneration, is provided and (...)” also “all the elements relating to his personal and professional status” (para. 31). Although some subsequent decisions on paid holiday affecting individuals emphasize that the right to paid annual leave is “not only” a particularly important principle of social law, but that it “is also expressly laid down” in Article 31 (2) CFREU (having the same legal value as the Treaties), without clarifying if, on that grounds, this entitlement qualifies as an individual right directly applicable to private-private relationships,8 others do not refer to the Charter at all. Surprisingly,

8

This is stated in Grand Chamber Case C-214/10, KHS AG v. Winfred Schulte, Judgment of 22 November 2011, EU:C:2011:761, para. 37. This ruling decides on whether Directive 2003/88/ EC allows for collective agreements limiting the accumulation of entitlements to paid annual leave of workers who are unfit for work for several consecutive reference periods by a carry-over period of 15 months on the expiry of which entitlement to paid annual leave lapses. In this regard, see also CJEU Judgment of 8 November 2012 in the proceedings brought by Mr. Heimann and Mr. Toltschin against their old employer, Kaiser GmbH (Joined Cases C-229/11 and C-230/11, EU:C:2012:693). In this ruling, the Court accepts that the leave payment be reduced on the basis of short-time working if agreed in a social plan concluded between the undertaking and its works council, since it qualifies as a suspension and not as the employee’s inability to work “as a result of an illness.” This judgment also sets forth that “[t]he right to paid annual leave is, as a principle of European Union social law, expressly laid down in Article 31(2) of the Charter of Fundamental Rights of the European Union, which Article 6(1) TEU recognizes as having the same legal value as the Treaties” (para. 22); this could entail the acknowledgment of the right to paid holiday as a general principle of Union law absorbed by the Charter. Otherwise, it could entail a confirmation that paid annual leave is a social principle merely qualifying as a guiding principle in terms of Art. 51 CFREU. In Case C-539/12, Lock and British Gas Trading Limited, Judgment of 22 May 2014, EU:C:2014:351, regarding the notion of normal remuneration and the amount of commission to be received, the Court solely points out that the right to paid annual leave is a particularly important

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this is the case in Domínguez, where the CJEU rules that it is for the national court to determine the employer’s legal nature, whilst implying that the Directive has vertical effect given that the employer qualifies as a public body operating in the field of social security. In this Domínguez case, there is no mention whatsoever of the Charter, despite the fact that AG Trstenjak clearly focuses on it in her Opinion dated 8 September 2011, which provides legal foundations to the Domínguez Judgment. No clarification can be found in either CJEU Case C-78/11, Asociación Nacional de Grandes Empresas de Distribución (ANGED), Judgment of 21 June 2012, EU:C:2012:372, or in Case C-118/13, Bollacke, Judgment handed down on 12 June 2014, EU:C:2014:1755, concerning the entitlement to an allowance in lieu of paid annual leave outstanding upon termination of the employment relationship in the event of the employee’s death. However, in Case C-118/13, the Court does declare (although omitting any reference to the Charter) that receiving this financial compensation upon termination of the employment relationship because of the worker’s death is essential to ensure the effectiveness of the entitlement to paid annual leave. This ruling also finds that “[i]n order to ensure respect for that fundamental workers’ right affirmed in EU law, the Court may not make a restrictive interpretation of Article 7(2) of Directive 2003/88 at the expense of the rights that workers derive from it” (para. 22). Nonetheless, this judgment fails to mention any issues regarding the application of the right to paid annual leave in private-private relationships, in spite that (as shown below) it is an identical case to the one settled in Bauer and Broßonn. In this ruling, the Court finally clarifies the nature and status of this particularly important principle, as well as its role in private-private relationships. Only as late as 2013, the CJEU was asked for the first time, in a compelling and unambiguous manner, if Art. 31(2) CFREU (granting the fundamental EU workers’ right to paid annual leave) could be directly invoked in proceedings between private parties “for the purpose of establishing whether the EU institutions and the Member States have observed those fundamental rights when implementing EU law,” setting aside any contrary domestic law provision. Despite the right approach of the French Cour de Cassation, in its Case C-316/13, Fenoll, Judgment of 26 March 2015, EU: C:2015:200, the CJEU circumvents the issue. The Court avoids the matter by ruling that the Charter was not “aligned” with the Treaties in terms of legal value at the time of the facts of the case, so Art. 31(2) CFREU is not apt, rationae temporis, to apply to a situation such as that in the main proceedings (para. 45). Consequently, not being able to construe national law provisions in conformity with Directive 2003/88, Art. 7 thereof “may not be invoked in a dispute between individuals, such as that in the main proceedings, in order to ensure the full effect of that right to paid annual leave and to render inapplicable any conflicting provision of national law.” Notwithstanding the foregoing, the party adversely affected by the incompatibility of

principle of European Union social law; it adds that this “entitlement” is “expressly guaranteed” by Article 31(2) CFREU, having the same legal value as the Treaties pursuant to Art. 6(1) TEU (para. 14).

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national law with EU law may rely on the case law deriving from the judgment in Francovich and Others (C-6/90 and C-9/90) in order to obtain compensation for any damage suffered. In sum, it was sufficiently clear that the right to paid annual leave was an important principle for the Court of Justice. However, despite its importance for the Court, it remained an entitlement that, if not granted by the private employer, required workers to initiate proceedings against their State claiming damages for the breach of EU law, provided that the competent national court was unable to interpret the relevant national law provision in conformity with the objectives pursued by Directive 2003/88.

3 A Principle Vanishes: The Fundamental Right to Paid Annual Leave Regardless of the Employee’s Death or the Employer’s Inactivity, Although Limited to Four Weeks Since the BECTU Ruling, prominent Advocates General have claimed that the right to paid annual leave should be considered a fundamental right. However, the CJEU always refused to make such a bold statement. The Court also chose not to use its usual terminology, and it failed to qualify this right as a “general principle” of EU law. Conversely, the CJEU came up with a new category: the right to paid holiday would become “a particularly important principle of European Union social law.” This new category failed to clarify the entitlement’s nature and was most certainly misleading. In Bollacke, the Court first explicitly acknowledged that the right to paid annual leave was a “fundamental workers’ right affirmed in EU law” (para. 22). And it did so in a private dispute, that between Mrs. Bollacke and her late husband’s former employer. None of the subsequent rulings would go as far as this judgment. They simply reiterated that workers’ entitlement to paid holiday was a “particularly important principle of social law” and that it was enshrined in the Charter.9 Nevertheless, in Bollacke, the Court just did what it was asked to do by the referring court: interpreting Art. 7 of Directive 2003/88. The CJEU ultimately concluded that, subject to the Bundesarbeitsgericht case law, where the employment relationship is terminated by the death of the worker, the entitlement to paid annual leave is lost

9

Regardless if these are proceedings between private parties, see: Case C-219/14, Kathleen Greenfield v. The Care Bureau Ltd., Judgment of 11 November 2015, EU:C:2015:745 paras. 26-27; Case C-396/13, Sähköalojen ammattiliitto ry v. Elektrobudowa Spółka Akcyjna, Judgment of 12 February 2015, EU:C:2015:86, paras. 64-65. This sort of mantra was repeated in Case C-178/ 15, Sobczyszyn v. Szkoła Podstawowa w Rzeplinie, Judgment of 30 June 2016, EU:C:2016:502, para. 20; Case C-214/16, Conley King and The Sash Window Workshop Ltd. and Richard Dollar, Judgment of 29 November of 2017, paras. 32-33.

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without conferring a right to an allowance in lieu of outstanding leave. The CJEU settled the case exclusively relying upon the Directive, without even mentioning the CFREU or the direct applicability thereof in case there was no room for a conforming or compatible interpretation. However, Bollacke was a Judgment delivered by the First Chamber with no Conclusions. This ruling reviewed German law and the interpretation thereof by the Supreme Court. Thus, unsurprisingly, the German Court (which dissented from the decision) urged the CJEU to settle the case unambiguously. The declaration that paid annual leave is a fundamental social right directly applicable to private-private relationships within the scope of EU law results from two requests for preliminary rulings made by the Bundesarbeitsgericht (Federal Labor Court, Germany). Unsurprisingly, these were ruled by the CJEU Grand Chamber on 6 November 2018: Joined Cases C-569/16 and C-570/16, Stadt Wuppertal v. Maria Elisabeth Bauer (C-569/16), and Volker Willmeroth, in his capacity as owner of TWI Technische Wartung und Instandsetzung Volker Willmeroth e.K., v. Martina Broßonn (C-570/ 16), EU:C:2018:871.10 In this case, the German Court asked the CJEU if two pieces of national legislation (to be read together), preventing payment of an allowance to the legal heirs of a worker in lieu of outstanding paid annual leave, were in accordance with EU law. Mrs. Bauer requested Stadt Wuppertal (Wuppertal City Council) payment of an allowance corresponding to the 25 days of outstanding paid annual leave which her husband had not taken by the time of his death. Mrs. Broßonn’s claim was along the same lines; she sought payment corresponding to the 32 days of outstanding annual leave which her husband had not taken after having been unable to work due to illness for roughly 7 months. This ruling provides a perfect chance for a “case study,” since it settles two sets of proceedings. The first involves a public employer, whereas in the latter the employer is a private entity. Accordingly, the case paved the way for the CJEU’s grand declaration, as well as for clearing all doubt on the direct effect of the right to paid annual leave (a solidarity right) in private-private relationships. The CJEU had already set forth in Bollacke that Article 7 of Directive 2003/88 precluded any domestic practice or legislation providing that the entitlement to paid annual leave is lost without conferring entitlement to an allowance in lieu of leave outstanding where the employment relationship is terminated by the employee’s death. In this connection, the referring court in Bauer and Broßonn inquired about whether the same applies where national law “precludes an allowance in lieu from forming part of the estate of the deceased.” The referring court added that a joint reading of the applicable provisions (i.e., Art. 7(4) BUrlG in connection with Art. 1922(1) BGB), leads to the lapsing of the right to paid annual leave upon the worker’s death, so that it cannot be turned into an entitlement to an allowance in lieu or be part of the estate. Finally, the court also points out that any other

10 About the importance of this sentence see Nogueira-Guastavino (2019), Panasci (2019) and Leczykiewicz (2020).

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interpretation of the aforesaid provisions would be contra legem and therefore cannot be upheld. The latter issue was overlooked by the referring court in Bollacke. In Bauer and Broßonn, the CJEU recalls that the purpose of the right to paid annual leave is twofold. On the one hand, it is intended to ensure that workers actually enjoy a rest period, with a view to ensuring effective protection of their health and safety, thereby enjoying a period of relaxation and leisure whilst receiving their normal remuneration (paras. 40–42). On the other hand, the Court also notes that, upon termination of the employment relationship, and thus when workers cannot actually enjoy their paid holiday to which they were entitled, Article 7 (2) of the Directive provides that workers have the right to receive an allowance in lieu for the days of annual leave that they were unable to take, in order to prevent this impossibility from leading to a situation in which the worker loses all enjoyment of that right, even in pecuniary form (para. 43). This right to an allowance is subject to no condition whatsoever other than: (1) that the employment relationship has terminated and (2) that the relevant worker has not taken all the annual leave to which he/she was entitled on the date that such relationship ended. Note that the reason why the employment relationship was terminated is irrelevant. According to the Court, the worker’s decease inevitably deprives him/her from enjoying the period of rest and relaxation attached to the right to paid annual leave to which he/she was entitled at the time of his/her death. However, the employee’s death does not retroactively entail the total loss of the right thus acquired, since this entitlement includes a second aspect of equal importance (para. 46), namely the entitlement to a payment, which is “purely pecuniary in nature” and, as such, is therefore intended to become part of the relevant person’s assets. Thus, the employee’s death “cannot retrospectively deprive his estate and, accordingly, those to whom it is to be transferred by way of inheritance, from the effective enjoyment of the financial aspect of the right to paid annual leave” (para. 48). The CJEU makes a leap in its reasoning by stressing the importance that paid annual leave, as a principle of EU social law, is expressly laid down in Article 31 (2) CFREU, having the same legal value as the Treaties (para. 51). The Court also emphasizes that fundamental rights guaranteed in the Union’s legal order apply “in all situations governed by EU law” (para. 52). Insofar as the disputed national legislation “is an implementation of Directive 2003/88,” the Court declares that Article 31(2) of the Charter is intended to apply to the case at hand (para. 53). The Court then thoroughly reviews the wording of Article 31(2) of the Charter, with the aim of examining its structure and to decide whether (1) it qualifies as a right stricto sensu, or otherwise if (2) the Grand Chamber’s case law in Case C-176/ 12, Association de médiation sociale, EU:C:2014:2 applies, and thus it qualifies as a merely “guiding” principle (in spite of its particular importance) as was decided regarding Art. 27 CFREU in the aforesaid case. In this regard, the Court of Justice asserted that the provision grants to all workers the “right” to an “annual period of paid leave” (para. 54). Also, the CJEU claims that, taking into consideration the explanations relating to Art. 31 CFREU, in accordance with Articles 6(1) TEU and 52(7) of the Charter, this entitlement is based on the Directive on the organization of working time and on Article 2 of the European Social Charter, as well as on point

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8 of the 1989 Community Charter of the Fundamental Social Rights of Workers. Accordingly, the right to an annual period of paid leave enshrined in the Charter should be equated to the right to paid annual leave in Article 7(1) of Directive 2003/ 88 (para. 57, emphasis added); thus, Member States can limit this right only if they abide by “the strict conditions” set forth in Article 52(1) CFREU and, in particular, by the essential or core content of that entitlement. In a nutshell: “Member States may not derogate from the rule laid down in Article 7 of Directive 2003/88, read in the light of Article 31(2) of the Charter, that the right to paid annual leave acquired cannot be lost at the end of the leave year and/or of a carry-over period fixed by national law, when the worker has been unable to take his leave” (para. 59). Also, Member States may not lawfully enact legislation under which a worker’s death retroactively deprives him/her of the right to paid annual leave acquired before his/her death, and, accordingly, his/her legal heirs of the allowance in lieu thereof by way of the financial settlement of those rights (para. 61). In conclusion, the concerned worker has the right to an allowance in lieu of non-taken paid holiday that may be passed on by inheritance to his/her legal heirs (para. 62). Having interpreted this provision, the Court examines (see paras. 65 et seq.) whether a national provision must be set aside in a case involving private parties. In this vein, the CJEU reiterates its well-known doctrine: disapplying domestic provisions is only allowed where it is impossible to interpret such national provision in light of the Directive’s wording and purpose, taking the whole body of domestic law into consideration and even modifying established case law, where necessary, if it is based on an interpretation of national law that is incompatible with the objectives of a Directive. The Court also recalls that, being unconditional and sufficiently precise, Art. 7 of Directive 2003/88 produces direct effect, and can therefore be invoked by an individual against a State where this Member State has failed to implement the Directive in domestic law or where it has failed to do so correctly, regardless of the capacity in which the latter is acting, whether as an employer or as a public authority, in order to prevent the State from taking advantage of its own failure to comply with EU law. As for Article 7(2) of the Directive, the CJEU stated that such provision does not lay down any condition for entitlement to an allowance in lieu other than first, that the employment relationship has ended and, secondly, that the worker has not taken all the annual leave to which he/she was entitled on the date that such relationship ended. That entitlement is directly conferred, so Art. 7(2) also produces direct effect (para. 73). Having examined these common aspects, we will now delve into those elements that may differ depending on whether the employer is a private entity or a public authority. In Mrs. Bauer’s case, since her husband worked for a City Council (Stadt Wuppertal), if the court is unable to perform a conforming interpretation it should disapply the relevant national provision and seek that the legal heir receives payment from the employer of an allowance in lieu of paid annual leave (note that this paid leave should have not been taken by the worker before his/her death) acquired under Arts. 7 of the Directive and 31(2) of the Charter. The Directive provision, read in the light of the Charter, suffices to set aside the non-conforming national provision.

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In contrast, regarding Mrs. Broßonn, in her capacity as her late husband’s heir, considering that her husband worked for a private company, the Court will once again cite the mantra that Directive provisions have no horizontal effect (i.e., they cannot be extended to the sphere of relations between individuals). This is regardless if they grant individual rights in a sufficiently precise and unconditional manner, insofar as Directives cannot by themselves impose obligations on an individual and cannot therefore be relied upon as such against an individual (para. 76). On this basis, the mantra also has bearing on the consideration of the entitlement to paid annual leave as a particularly important principle of EU social law. The Court emphasizes that the “principle is itself mainly derived both from instruments drawn up by the Member States at EU level, such as the Community Charter of the Fundamental Social Rights of Workers,” and from international instruments on which Member States have cooperated or to which they are party, namely (1) “the European Social Charter, to which all Member States are parties [insofar] as they ratified it in its original version, its revised version or both versions, also referred to in Article 151 TFEU,” or (2) Convention No 132 of the ILO, of 24 June 1970, on paid annual holiday “which recital 6 of Directive 2003/88 states must be taken into account.” The CJEU concludes by applying the Mangold doctrine to the right to paid holiday. More specifically, the Court points out that the right to paid annual leave was established neither by Article 7 of Directive 93/104 nor by Article 7 of Directive 2003/88. Rather, in the Court’s view, it is “based (...) on various international instruments,” adding that, “as an essential principle of EU social law” it is “mandatory in nature” (para. 83, emphasis added), without referring in particular to the cases and conditions provided by Union law and national legislation or practice, as opposed to Article 27 CFREU, which led to the Judgment of 15 January 2014, Association de médiation sociale (C-176/12), EU:C:2014:2. It is worth underlining that the CJEU focuses on the Charter’s wording, and not on the Directive’s, to determine the nature of paid annual leave, considering that Art. 7(1) of the Directive expressly states that paid annual leave of at least 4 weeks will be “in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice,” which could have hindered the final conclusion. Accordingly, the CJEU ruled that the workers’ entitlement under Art. 31 (2) CFREU may be actually relied on “in disputes between them and their employer in a field covered by EU law and therefore falling within the scope of the Charter” (para. 85). In other words, if the domestic piece of legislation cannot be interpreted “in a manner ensuring its compliance with Article 31(2) of the Charter, it will therefore be required, in a situation such as that in the particular legal context of Case C-570/16, to ensure, within its jurisdiction, the judicial protection for individuals flowing from that provision and to guarantee the full effectiveness thereof by disapplying if need be that national legislation.” This landmark ruling makes an additional contribution. It is a significant insight, at least for EU legal dogmatics, since it expressly dispels all doubt as to the parties bound by the Charter; the Court of Justice, along the lines of AG Cruz Villalón in his Opinion in AMS (subsequently repeated by the Court in Max Planck) rules out the

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possibility that Article 51 CFREU excludes individuals from its scope of application, because, inter alia, as regards Art. 31(2) CFREU, “the right of every worker to paid annual leave entails, by its very nature, a corresponding obligation on the employer, which is to grant such periods of paid leave” (para. 90). In conclusion: either (1) subject to the direct application of the Directive to the public employer, read together with the Charter, as in Mrs. Bauer’s case, or (2) subject to the direct application of Article 31(2) CFREU if the employer is a private entity (horizontal effect), as was the case with Mrs. Broßonn, national authorities should disapply the national provision inasmuch as it conflicts with the right enshrined in EU law if no compatible interpretation of that provision proves possible. The Charter of Fundamental Rights of the European Union is thus directly applicable to private-private relationships, thereby confirming within the scope of labor law and employment what had already been generally declared in Egenberger (C-414/16) and Cresco Investigation (C-193/17) in connection with the principle of non-discrimination on grounds of religion or belief. On the same date of the Bauer and Broßonn Judgment, the Court of Justice handed down two more rulings on paid annual leave. Although the factual backgrounds were very different, the cases were clearly interconnected. These decisions ruled on whether a worker may accumulate periods of annual leave not taken throughout the years subsequently seeking an allowance in lieu upon termination of the employment relationship (CJEU Case C-619/16, Kreuziger v. Land Berlin, Judgment of 6 November 2018, EU:C:2018:872, and Case C-684/167, Max-PlanckGesellschaft zur Förderung der Wissenschaften v. Tetsuji Shimizu, Judgment of 6 November 2018, EU:C:2018:874). The CJEU’s lines of reasoning are similar in both cases, as well as the increasingly stringent requirements imposed on employers based on the fact that paid annual leave qualifies as an EU “fundamental right” giving rise to obligations incumbent upon private parties. Also, the Court of Justice imposes requirements and obligations on the basis that employment relationships are asymmetrical or uneven in nature. This line of reasoning can be found in subsequent decisions. The Court repeated that Art. 31(2) CFREU, in conjunction with Art. 7 of Directive 2003/88, applies directly with horizontal effects if only an interpretation of national law contra legem is possible. See, for instance, CJEU Judgment of 13 December 2018, Case C-385/17, Hein. This decision deals with the conditions allowing to limit the time effects of CJEU judgments. Also, it declares that it is contrary to EU law to protect, on the basis of national law, the employers’ legitimate expectations arising from the case law of the highest national courts upholding the lawfulness of disputed collective agreement provisions. More recently (and disregarding CJEU Judgment of 13 March 2019, Case C-437/17, GmbH, since it rules on an alleged discrimination on the basis of nationality regarding a worker’s right to paid annual leave), the CJEU Grand Chamber provides us with late developments in its Judgment of 19 November 2019 (Joined Cases C-609 and 610/17, TSN). In particular, these developments are as follows: within the scope of EU law, the “fundamental” right to paid annual leave has been limited to a 4-week period. The Court of Justice has considered that the legal framework applicable to a period exceeding 4 weeks is a domestic legal issue.

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Thus, failing to carry over such excess leave in case of illness is neither within the scope of Article 31(2) CFREU nor contrary to Directive 2003/88.

4 Some Answered Questions and Their Impact on Member State Liability for Breach of EU law The most recent cases allow to settle some pending issues: • The scope of Art. 51 CFREU includes individuals and private parties, who can also be bound by certain rights enshrined in the Charter. • The legal nature of this distinct category (previously referred to by the CJEU as a particularly important principle of Community or Union social law) has ended up being equated to the general principles of EU law; under the Charter, the legal notions covered by this category now qualify as fundamental rights as long as they have equal contents and scope. • Confirmation of those stances11 differentiating between general principles of EU law and guiding principles, to be subsequently implemented, laid down in the CFREU. • Definition of those features or characteristics required by a given right to have direct horizontal effect amongst individuals and private parties; also, the focus will now be on how the relevant right is worded in the Charter, but not on the actual wording of the concerned Directive’s provision. Alongside the aforesaid conclusions, these rulings have a less obvious yet tremendously significant implication, i.e., in practice, the reversal of liability for breaches of EU law. To this date, since the right to paid annual leave provided in a Directive was not directly applicable to privately employed workers, employees went through a heap of trouble to obtain compensation for the Member State’s breach or misapplication of EU law. However, as paid annual leave now qualifies as a fundamental right, all red tape and judicial burdens will have to be borne by the employer. The application of the fundamental right, as well as payment of allowances in lieu of leave not taken prior to termination of the employment relationship will allow employers whose domestic law is contrary to Art. 31(2) CFREU to seek relief before national courts for a damage they assume but have not directly caused.12 Finally, it is worth underlining the concerns raised by these rulings regarding their application to other cases, such as that of de Diego Porras. This case involved the principle of non-discrimination between fixed-term workers and permanent workers regarding redundancy payments (compensation for contract termination). The CJEU

11

Nogueira-Guastavino (2017). Regarding State liability for breach of EU law and whether it is in line with Union standards, see: Lock (2012), Cobreros Mendazona (2015), González Alonso (2016) and NogueiraGuastavino (2018). 12

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considered that the lack of differences in treatment between permanent workers and fixed-term workers constitutes a principle of EU social law (de Diego Porras I, para. 27). This debate was meant to be settled by the preliminary ruling requested by the Galicia High Court of Justice in Norte Facility. However, it was far from settled, since the CJEU rejected that there was a breach of the EU law provisions at hand. As clearly shown in Diego Porras II, the Court can change its mind easily. For the time being, we will have to wait for the CJEU’s determination as to whether the principle of equal treatment and non-discrimination on the basis of employment contracts is a particularly important principle (an essential one, for that matter) or merely a guiding principle. The fact that in de Diego Porras I the Court stated that this principle “cannot be interpreted restrictively” was a hint that such principle could be equated to what, at that time, remained a particularly important principle, i.e., the entitlement to paid holiday. These concerns still exist, mostly because there is no such right generally acknowledged neither in international instruments nor by the constitutional traditions common to Member States. Nonetheless, there was no general acknowledgment either concerning non-discrimination on the basis of age, yet this right provided the basis for the Mangold doctrine. So far, we will have to await a future ruling to see if there is a major development also in this regard. All in all, we are confronted with a new social era, probably driven by the EU social pillar, that seems to walk along with the Brexit challenge and the rise of populism. Hopefully, fewer years will be needed to advance effective social solidarity rights within the context of private-private relationships. Something remains quite obvious, however: once again, the construction of the Drittwirkung, now at a EU level, takes shape within the employment or social domain.

References Cobreros Mendazona E (2015) Responsabilidad patrimonial del Estado por incumplimiento del Derecho de la Unión Europea. Iustel González Alonso A (2016) La responsabilidad del Estado legislador por vulnerar el Derecho Europeo o la Constitución; un análisis comparativo. Revista Española de Derecho Constitucional 106:381–429 Leczykiewicz D (2020) The judgment in Bauer and the effect of the EU Charter of Fundamental Rights in horizontal situations. Eur Rev Contract Law 16(2):323–333 Lock T (2012) Is private enforcement of EU law through state liability a myth? An assessment 20 years after Francovich May 2012. Common Market Law Rev 49(5):1675–1702 Nogueira-Guastavino M (2017) La Carta de Derechos Fundamentales de la Unión Europea: una lectura social de sus disposiciones generales, in Balance y perspectivas de la política laboral y social europea. XXVII Congreso de Derecho del Trabajo y de la Seguridad Social. Cinca, Madrid, pp 69–240 Nogueira-Guastavino M (2018) La eficacia de las Directivas y la responsabilidad del Estado por su incumplimiento, in Derecho Social de la Unión Europea: aplicación por el Tribunal de Justicia. Francis Lefevre, Madrid, pp 91–121 Nogueira-Guastavino M (2019) El final de un principio y el comienzo de un derecho: las vacaciones anuales retribuidas como derecho fundamental y su repercusión en materia de responsabilidad

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por incumplimiento del Derecho de la Unión Europea: comentario a las sentencias Bauer y Brobonn. Revista del Ministerio de Empleo y Seguridad Social 142:449–464 Panasci MA (2019) The right to paid annual leave as an EU fundamental social right. Comment on Bauer et al.: Joined Cases C-569/16 and C-570/16 Stadt Wuppertal v. Maria Elisabeth Bauer and Volker Willmeroth v. Martina Broßonn. Maastricht J Eur Comp Law 26(3):441–448

Fundamental Rights and Horizontal Direct Effect Under the Charter Nuria Bermejo

1 Opening Remarks The horizontal direct effect of fundamental rights, i.e., whether they are binding on private relationships, thus being enforceable between private parties, has been extensively debated by national legal scholarship, mostly in mainland Europe. This debate evidences that there is no clear and unambiguous answer within Member States or domestic legal orders.1 Therefore, there is neither an easy approach to the rights enshrined in the Charter of Fundamental Rights of the European Union (CFREU or the “Charter”) under EU law.2 As in many national Constitutions, the Charter lacks specific provisions in this regard but, admittedly, it fails to mention private parties as the addressees of these fundamental rights provisions.3 The CFREU is worded as follows: “The provisions of this Charter are addressed to the institutions and bodies of the Union,” as well as to Member States when they implement EU law (Article 51(1) CFREU).4 Member States implement Union law 1 Jarass (2016a), pp. 33–34, confirming that this matter has barely been discussed in the United Kingdom and the United States. 2 Lohsse and Schulze (2016), pp. 16–21. 3 Lohsse and Schulze (2016), p. 22. As for the silence of Constitutions on the horizontal direct effect of fundamental rights, see Cruz Villalón (1988), p. 105. 4 This rule resembles other Member State constitutional provisions. See, for instance, Article 1 (3) GG of the German Constitution (“Die nachfolgenden Grundrechte binden Gesetzgebung, vollziehende Gewalt und Rechtsprechung als unmittelbar geltendes Recht”), or Article 53(1) of the Spanish Constitution, which provides that “[t]he rights and freedoms recognised in Chapter 2 of the present Part are binding on all public authorities. Only by an act which in any case must respect their essential [core] content, could the exercise of such rights and freedoms be regulated, which shall be protected in accordance with the provisions of section 161(1)(a).”

N. Bermejo (*) School of Law, Universidad Autónoma de Madrid, Madrid, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Izquierdo-Sans et al. (eds.), Fundamental Rights Challenges, https://doi.org/10.1007/978-3-030-72798-7_5

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when transposing Directives or enforcing EU law provisions through domestic pieces of legislation, but also when adopting any provisions or acts falling within the scope of EU law.5 At first, the wording of this provision suggests that the Charter intended to limit the effectiveness of the rights enshrined therein to subordinate or unequal relationships. Nonetheless, as recently declared by the Court of Justice of the European Union (CJEU) in Shimizu: [. . .] it should be noted that, although Article 51(1) of the Charter states that the provisions thereof are addressed to the institutions, bodies, offices and agencies of the European Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing EU law, Article 51(1) does not, however, address the question whether those individuals may, where appropriate, be directly required to comply with certain provisions of the Charter and cannot, accordingly, be interpreted as meaning that it would systematically preclude such a possibility.6

The Court of Justice has also found that the principle of non-discrimination (Article 21 CFREU) and the right to paid annual leave (Article 31(2) CFREU) can be relied on by individuals in private relationships. Indeed, both in Bauer and Shimizu, based on its previous case law, the CJEU points out that “the Court has, in particular, already held that the prohibition laid down in Article 21(1) of the Charter is sufficient in itself to confer on individuals a right which they may rely on as such in a dispute with another individual (Judgment of 17 April 2018, Egenberger, Case C-414/16, [...] paragraph 76), without, therefore, Article 51(1) of the Charter precluding it.”7 In Cresco, the Court asserted that “[t]he prohibition of all discrimination on grounds of religion or belief is mandatory as a general principle of EU law. That prohibition, which is laid down in Article 21(1) of the Charter, is sufficient in itself to confer on individuals a right which they may rely on as such in disputes between them in a field covered by EU law.”8 However, as shown below, these insights are not enough to conclude that fundamental rights enshrined in the Charter have a horizontal direct effect.

This chapter discusses the effectiveness of fundamental rights established in the Charter in private relationships. As shown below, these fundamental rights do not have a horizontal direct effect on a general basis. And they lack this effect because they qualify as principles that impose upon public authorities–not individuals–an optimization command, which determines their application. Based on this fundamental rights sketch, we will show that fundamental rights and freedoms granted to individuals in the Charter are only effective in private relationships to the extent determined by the relevant legislation (see Sects. 3.1 and 3.2). Thus, the judiciary

5

Case C-617/10, Åkerberg Fransson, Judgment of 26 February 2013, EU:C:2013:105, paragraphs 45 and 46. 6 Case C-684/16, Shimizu, Judgment of 6 November 2018, EU:C:2018:874, paragraph 76. Advocate General Cruz Villalón had already taken this stance in his opinion delivered on 18 July 2013, Case C-176/12, Association de Médiation Sociale, EU:C:2013:491, paragraphs 28–35. 7 Joined Cases C-569/16 and C-570/16, Bauer, Judgment of 6 November 2018, EU:C:2018:871, paragraph 89, and Case C-684/16, cit. in note 6, paragraph 78. 8 Case C-193/17, Cresco, Judgment of 22 January 2019, EU:C:2019:43, paragraph 76.

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should only apply and interpret these pieces of legislation on a case-by-case basis (see Sect. 3.5 below). A different issue altogether is that certain fundamental rights could bring along such requirement or command also regarding private relationships (see Sect. 2). Furthermore, human dignity—which is inextricable tied to the essence of human being–can be directly enforced within the scope of private relations (see Sect. 3.4). Accordingly, to the extent that fundamental rights must be construed as optimization commands vis-à-vis public authorities that require a legislative expression to render them applicable to private relationships, they are not, by themselves, a limit to private or personal autonomy, which is an expression of free will (see Sect. 4 below).

2 What Type of Norms Are Fundamental Rights? In order to examine the horizontal direct effect of fundamental rights, it is worth determining what type of norms they are. As aptly pointed out by Alexy, fundamental rights are principles, not rules.9 Principles are norms commanding that something be performed to the highest degree. Thus, fundamental rights can be defined as optimization commands for certain legal content from which rights can be inferred vis-à-vis public authorities, given that such commands are addressed to public authorities.10 This definition covers both fundamental rights from domestic legal orders and those enshrined in the Charter. There are no grounds to construe the latter otherwise. In contrast with fundamental rights, other provisions—such as “principles” within the meaning of Article 52(5) CFREU—do not provide for such a command. Rather, they require legislative measures to implement them and further define their substance. Therefore, they do not give rise to individual rights vis-à-vis public authorities.11 Within the scope of the Charter, the following qualify as “principles:” the rights of the elderly (Article 25 CFREU); integration of persons with disabilities (Article 26 CFREU); workers’ right to information and consultation within the undertaking (Article 27 CFREU); the right to protection in the event of unjustified or unfair dismissal (Article 30 CFREU); the right of access to health care (Article 35 CFREU); the right of access to services of general economic interest

9

See Alexy (1993), pp. 81–82. Ibid, pp. 140–141. 11 Menéndez (2004), pp. 161–166. Consequently, out of the list of rights and principles laid down in the Charter, only those providing for optimization commands giving rise to individual rights vis-à-vis public authorities qualify as fundamental rights. Any rights and principles whose content depends on a specific legislative expression, whether by the EU or national legislatures, will not be considered as fundamental rights. Ibid, pp. 179 and 182–183. See also Case C-176/12, Association de Médiation Sociale, Judgment of 15 January 2014, EU:C:2014:2, paragraphs 44–48. 10

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(Article 36 CFREU); environmental protection (Article 37 CFREU), and consumer protection (Article 38 CFREU).12 These principles provide for “more open-ended” commands, so they cannot give rise to individual rights. They must be implemented by acts of the European Union or the Member States. “Those implementing acts must be understood as acts necessary to give specific legislative expression to a ‘principle’ and having no other purpose than that of providing it with sufficient substance for it to attain substantive independence and, ultimately, become a judicially cognisable right.”13 Certainly, these provisions do not suffice to confer individual rights which may be invoked as such.14 However, this does not preclude that they be used as interpretative and validity criteria for the courts and tribunals (see Article 52(5) CFREU).15

The distinct element of this definition of fundamental rights is that, as opposed to rules, there is no such thing as fulfilment or non-fulfilment.16 Fundamental rights provide prima facie reasons and lay down prima facie commands, i.e., non-definitive requirements or commands.17 Therefore, fundamental rights cannot be generally considered to prevail over each other no matter what. The transition from a prima facie right to a final or definitive right–which entails acknowledging that an individual is entitled to something–is subject to an assessment of preference.18 This has a direct implication for any conflicts between fundamental rights in a given case. These fundamental rights clashes must be solved determining which right “outweighs” the other. This is not a matter of validity, but a matter of balancing.19

12 Ibid, pp. 182–183 and Lohsse and Schulze (2016), p. 23. Regarding workers’ right to information and consultation (Article 27 CFREU), see the Opinion by AG Cruz Villalón in Case C-176/12, cit. in note 6, points 51–53, and Judgment of 15 January 2014, Association de Médiation Sociale, EU: C:2014:2, paragraphs 45–48. As for the right to paid annual leave (Article 31(2) CFREU), which had been listed as a principle by several scholars, see Joined Cases C-569/16 and C-570/16, cit. in note 7, paragraph 58, where the Court defines it as a fundamental right only requiring that lawmakers determine its exact duration. In this vein, see also Case C-684/16, cit. in note 6, paragraph 74. 13 Opinion delivered by AG Cruz Villalón in Case C-176/12, cit. in note 6, point 62. 14 Case C-176/12, cit. in note 11, paragraph 47. 15 For further detail, see the Opinion delivered by AG Cruz Villalón in Case C-176/12, cit. in note 6, points 61-71. In these terms, this principle may be relied on in disputes between individuals (see, points 38–42). Also, see the scholarly work by Mangas (2008a), p. 819. 16 Alexy (1993), pp. 86–87. Díez-Picazo Giménez (2013) specifies that certain Spanish Constitution fundamental rights (Constitución Española, CE) are structured as rules, such as those set out in Article 17 CE– “[. . .] the person arrested must be set free or handed over to the judicial authorities within a maximum period of seventy two hours” or in Article 18 CE–“no entry or search may be made without the consent of the householder or a legal warrant, except in cases of flagrante delicto.” (pp. 11–12). Regarding EU law, Menéndez (2004) acknowledges that a fundamental right can contain a principle and a rule at the same time (p. 184). 17 Alexy (1993), pp. 99–103. Although principles are sometimes reinforced by arguing in their favour, they do not quite become rules. 18 Ibid, pp. 102–103. 19 Ibid, pp. 89–90. See Díez-Picazo Giménez (2013), pp. 11–12.

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Insofar as this optimization command embedded in fundamental rights targets public authorities, it goes without saying that fundamental rights entail freedom and equality safeguards vis-à-vis public authorities.20 On the one hand, fundamental rights ban any intervention or interference by public authorities (a prohibition to intervene or Abwehrssverbot) with their scope of freedom. Simultaneously, on the other hand, fundamental rights give rise to a right to protection, thereby imposing upon public authorities a duty to protect individuals in their relations with others (Schutzgebot).21 In this regard, “[o]nly the individualization [or ‘subjectivization’] of rights to protection accurately reflects the ‘original and everlasting meaning of fundamental rights’ as individual rights.”22 Public authorities are thus forced to implement specific legislative and regulatory initiatives and to take specific action, in order to define the legal scope or legal spheres of these right holders whilst drawing appropriate boundaries between them.23 Note that fundamental rights holders being entitled to a right to protection by public authorities does not specifically impose on the state how to afford such protection. Since fundamental rights are essentially optimization commands, they require the greatest protection to the extent actually and legally possible.24 Under these circumstances, public authorities– and legislators in particular (see Sect. 3 below)–are free to choose the most suitable means to maximize the fundamental rights at stake, although ensuring the effectiveness thereof.25 Exceptionally, there are fundamental rights defined as such in the private sphere, and thus within the scope of private relationships.26 See for instance, gender equality in marriage (Article 32(1) CE), or equal pay (Article 23(1) CFREU).27 These rights

20

Starck (2002), pp. 70 and 72. On the twofold dimension of fundamental rights as “prohibitions to intervene” (Abwehrssverbot) and “duties of protection” (Schutzgebot), see Canaris (1984), pp. 212–213 and 225–226, and Alfaro (1993), pp. 66, 69–70. On the individual right to protection, see Alexy (1993), pp. 435 and 437. In fact, Canaris notes that one of public authorities’ (or the state’s) primary duties is to protect individuals from other individuals (ibid, 225–226). See also, von Münch (1997) who points out as purpose for fundamental rights imposing on public authorities a “public duty of protection.” (pp. 46–48). Concerning the Charter, in this connection, see Mangas (2008a), p. 819. 22 Alexy (1993), pp. 439–440. 23 Alexy (1993), pp. 435 and 446. Along these lines, see the Opinion of AG Cruz Villalón in Case C-176/12, cit. in note 6, point 36. 24 Ibid, p. 448. 25 Ibid, pp. 446–448. This is why Fornasier (2015) considers that this way of applying fundamental rights to private relations broadens the regulatory options for lawmakers than merely imposing them directly (p. 34). 26 Alfaro (2015a), p. 2. See also Cruz Villalón (2017), referring to fundamental rights “to be exercised within the firm.” (p. 112). 27 In the scholarly literature, regarding gender equality in marriage, see Starck (2002), pp. 71–72. He considers also included in this category trade union freedom. See also Alfaro (2015a) on equal pay (pp. 1 and 4). The right to paid annual leave is considered effective in private relationships within firms (see Joined Cases C-569/16 and C-570/16, cit. in note 7, paragraph 90; see also Case C-684/ 16, cit. in note 6, paragraph 79). In this regard, the Court of Justice states that it entails “[. . .] by its 21

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are somewhat in line with the so-called “two-way rights” (derechos bidireccionales), meaning that they are not only granted vis-à-vis public authorities, but also with respect to private parties.28 The key to determine the effectiveness of these rights in private relationships is not the legal interest involved, but rather the sphere where these rights are granted. If certain fundamental rights are acknowledged within private relationships–for example, in unequal or subordinate relationships like employer-employee relationships, where trade union freedom or collective bargaining apply–, they will be effective between private parties.29 The effectiveness of these rights in private law relations is therefore immediate due to the right’s structure.30 To this end, the protected legal interest and its ties to private law are not significant by themselves. No matter how intense the connection between the right to private property with private law may be, the right to property (Article 17 (1) CFREU) still targets public authorities, who may only take citizens’ property on grounds of “public utility” and upon payment of fair compensation.31 When fundamental rights are not granted within private relationships, regardless of the legal interest at stake and its connection with private law, as shown below, they will be as effective between private parties as determined by lawmakers.

3 Fundamental Rights in Private Relationships 3.1

Optimization Command and Legislative Action

The approach to fundamental rights discussed above determines their effectiveness in private relationships. Defined as optimization commands addressed to public authorities, fundamental rights can have no effect in private relationships, because they do not allow to establish guiding criteria to govern private-private relations or to limit individuals’ behaviour towards their counterparts. Legislative action is required, balancing the rights at stake, in order for fundamental rights to fulfil this purpose. Otherwise, an individual entitled to a fundamental right could interfere with another fundamental right holder’s freedom. Note that this outcome would be to

very nature, a corresponding obligation on the employer, which is to grant such periods of paid leave.” 28 This notion is taken from Cruz Villalón (1988), pp. 106–107. Let us recall that “two-way rights” is a broader category, encompassing freedom of expression, freedom of association (including its negative dimension, the right to decline membership) or freedom of assembly; these rights and freedoms may not be addressed to private parties after all. 29 Lohsse and Schulze (2016), p. 19. According to them, there is no need to resort to the Drittwirkung in these cases. 30 Ibid, p. 16. 31 However, Beladíez (2017) considers that the key is the protected legal interest, and it subsequently specifies that their scope depends on the type of legal relationship where they are exercised (pp. 92–93).

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contrary to some national Constitutions—i.e., the Spanish Constitution (CE), which provides, on the one hand, that “the inviolable rights [...] inherent” to every individual, alongside “the respect for the law and for the rights of others,” are “the foundation of political order and social peace” (Article 10(1) CE), and on the other hand, that [o]nly by an act which in any case must respect their essential [core] content, could the exercise of such rights and freedoms be regulated” (Article 53 (1) (CE)). Furthermore, it would be incompatible with the Charter, which in the same vein, provides that “[a]ny 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” (Article 52(1) CFREU).32 Thus, in order for fundamental rights to be effective in private relationships, they need a legislative expression, i.e., legislative measures, or legislative action, to implement them.33 As discussed before (see Sect. 2 above), fundamental rights that have been granted within private relationships are an exception to this. It is worth examining how legislators fulfil this duty of protection regarding conflicts between fundamental rights, i.e., cases where fundamental rights granted to an individual clash with others (inter alia, the well-known clashes between freedom of expression and the rights to honour and privacy). Enforcing certain fundamental rights in private relations can ultimately restrict other rights, thereby overstepping and limiting the right holder’s sphere of freedom.34 Therefore, lawmakers should determine the “social enforceability” of fundamental rights.35 At this point, it is worth emphasizing the importance of understanding that fundamental rights are optimization commands or, in other words, principles (1) that can be fulfilled to varying degrees, having regard to what is actually and legally possible in each case, and (2) that should be fulfilled to the greatest extent possible (see Sect. 2 above). Therefore, we need lawmakers to take action in order to maximize “the amount of fundamental right” that should be acknowledged within private relationships in the event of clashes with other fundamental rights.36 Indeed, legislators are in the best position to do this, since they can take into account all the elements and interests at stake to solve any conflicts between fundamental rights. It is not for the judiciary to strike the aforesaid balance, but (1) to enforce it on a case-by-case basis and, where appropriate, (2) to ensure that lawmaking and the courts’ interpretation and adjudication fulfils the duty of protection entailed by the fundamental rights at stake (see Sect. 3.4 below).

32

Regarding Spanish law, see Alfaro (1993), p. 69. With regard to the Charter, see Menéndez (2004), p. 180. 33 Alfaro (2017), p. 5. 34 Díez-Picazo Giménez (2012), pp. 148–149. See, among other German scholarly works, Hesse (2011), p. 172. 35 Alfaro (1993), p. 73. 36 Alexy (1993), pp. 86–87. See also, Paz-Ares, Alfaro (2003), pp. 5972–5973. This explains why the “legislative action” and the fundamental right enshrined in the Charter are not identical. In a similar vein, see Fornasier (2015), p. 45.

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N. Bermejo Lawmakers try to strike a fair balance by preventing registration of distinctive signs contrary to the right of honour or human dignity in spite that free enterprise (the freedom to conduct a business) and freedom of expression are at stake–see Article 7(1)(f) of the EU Trademark Regulation, preventing registration of trademarks or distinctive signs contrary to public policy or to accepted principles of morality.37

The foregoing does not mean that it rests on legislators to grant or acknowledge fundamental rights. In these cases, legislators are not acknowledging a right, but rather turning it into positive statutory private law, thereby defining its scope in its interactions with other rights. Within EU law, this task has been entrusted to the legislator, who must now draft the provisions defining the said scope of conflicting rights balancing all duties of protection in order to preserve the rights’ essence (see Article 52(1) CFREU).38 As noted above, legislators are in the best position to do this, since they can take into account all the elements and interests involved. Legislators hereby ensures social peace, preventing private parties from determining the scope of conflicting rights on their own. Perhaps, that is why it has been authoritatively held that “Drittwirkung should be left to lawmakers.”39 This approach to the effectiveness of fundamental rights does not undermine their fundamental nature. They remain “fundamental,” regardless if they are deemed to have horizontal direct effect. Fundamental rights qualify as fundamental because, by imposing an optimization command on public authorities, they are binding on public authorities’ legal decision-making.40 Accordingly, they are granted or acknowledged regardless of legislators. They stem from the Constitution–or the Charter, within EU law–, and they are subsequently enforced upon public authorities. If a given legislature passes a legal provision, whether a public or private law rule, it must ensure compliance with, and the protection of, fundamental rights. Hence, fundamental rights have an impact on various legal domains through this lawmaking activity, obviously including private law. Private law thus becomes an additional instrument–like criminal law, for instance–to shape the duty of protection imposed on lawmakers by fundamental rights.41 But this legislative action aimed at fulfilling

37

As repeatedly noted by the General Court, the grounds for refusal of registration of trademarks contrary to public policy provided in Article 7(1)(f) of the EU Trademark Regulation are intended to preserve social and democratic values preventing signs contrary to core EU values, such as human dignity, integrity and individual freedom (Arts. 2, 3 and 6 CFREU), from being registered as EU trademarks. This was the case with “La mafia se sienta a la mesa”, referring to a criminal organization originating in Italy, or “Paki”, which in English is considered a racial slur. In this regard, Cases T-526/09, PAKI, Judgment of 5 October 2011, EU:T:2011:564, paragraph 15, and T-1/17, La Mafia SE SIENTA A LA MESA, Judgment of 15 March 2018, EU:T:2018:146, paragraph 36. 38 Menéndez (2004), pp. 179–180. 39 Cruz Villalón (1988), p. 113. In a similar vein, see Jarass (2016a), pp. 50–51. 40 Menéndez (2004), pp. 177–179. 41 Canaris (1984), p. 227. See also, Hesse (1995): “In case of conflicts, civil law faces a daunting challenge: it must find, by itself, the way and the extent of fundamental rights’ influence by balancing the fundamental rights at stake.” (p. 60). Ibid, pp. 62–63.

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the aforesaid duty of protection also evidences the noticeable impact of fundamental rights on private lawmaking.42

3.2

Legislative Action in EU Law

Lawmakers must balance the fundamental rights laid down in the CFREU to determine their effectiveness in private relationships, as stated in many Court of Justice rulings.43 Consider, for example, the Court’s decision in Promusicae. This case involved a conflict between the right to property and the right to an effective remedy, on the one hand, and the right to privacy, on the other. In response to the request for a preliminary ruling, the Court found that it is for the EU legislator–as well as for domestic legislatures–to strike a balance between competing fundamental rights through EU Directives and domestic provisions transposing or implementing them: 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 of personal data. Second, they result from the adoption by the Member States of national provisions transposing those Directives and their application by the national authorities. [. . .] 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.44

42 In this connection, see Díez-Picazo Giménez (2012), p. 148. His interpretation being that, in this case, private law is directly affected by fundamental rights, which impact any provision, Alfaro (1993), pp. 71 and 76. Among German scholarly work, see Lohsse and Schulze (2016), pp. 24–25. Nevertheless, this should not be regarded as a “constitutionalization” of private law or as the subordination thereof to constitutional law. However, see Cherednychenko (2007), p. 142. 43 In this vein, see Starke (2016), p. 219. 44 Case C-275/06, Promusicae, Judgment of 29 January 2008, EU:C:2008:54, paragraphs 66 and 68. This line of reasoning can be found in other rulings. See Case C-314/12, Constantin Film Verleih, Judgment of 27 March 2014, EU:C:2014:192, paragraph 46, within the framework of Directive 2001/29, on the harmonisation of certain aspects of copyright and related rights in the information society. The case involved a conflict between the right to property–namely intellectual property– and the freedom to conduct a business. See also Case C-70/10, Scarlet Extended, Judgment of 24 November 2011, EU:C:2011:771, paragraphs 44–46, within the framework of a number of Directives, related, essentially, with the protection of copyright and privacy, as well as with the processing of personal data. The Court stresses the need to balance the right to property against other fundamental rights at stake, such as the freedom to conduct a business, the right to privacy and freedom of information. In Case C-580/13, Coty German, Judgment of 16 June 2015, EU: C:2015:485, paragraphs 34–43, the Court assessed the compatibility with Directive 2004/48, on the enforcement of intellectual property rights, of a domestic provision on banking secrecy allowing to deny access to banking information of a private party that was selling counterfeit perfumes

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Therefore, this case should not be deemed as an example of the “irradiation effect” that fundamental rights would have on private relationships–if there was no prior balancing by legislators–and which would require to interpret any national provisions implementing EU Directives in the light of fundamental rights.45 Conversely, in this case, the Court of Justice clearly states that (1) the EU legislator has balanced the fundamental rights at stake in the set of abovementioned Directives, and (2) the implementing or transposing domestic provisions must abide by, or ensure, the “fair balance between the various competing fundamental rights” struck by such Directives.46 Indeed, the Court has further specified that balancing the fundamental rights at issue (and thus fulfilling the duty of protection imposed by fundamental rights on legislators) is not only for the EU legislator, but also for national legislatures. It did so in Lindqvist. The case involved a conflict between Mrs. Lindqvist’s freedom of expression as a catechist, and the right to privacy and data protection of the individuals whose information she posted on her website. The Court found that: The mechanisms allowing those different rights and interests to be balanced are contained, first, in Directive 95/46 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. Second, they result from the adoption, by the Member States, of national provisions implementing that Directive and their application by the national authorities.47

From this standpoint, the CJEU ruling in Egenberger should neither be considered an expression of fundamental rights’ horizontal direct effect.48 The facts of the case evidence that there was a conflict between fundamental rights: on the one hand, the German Evangelical Church’s religious freedom, construed as the freedom to make decisions based on their ethos (Article 10 CFREU); on the other, the principle of non-discrimination on grounds of religion suffered by a potential worker who was ultimately excluded in a recruitment procedure for not having any specific religious beliefs (Article 21 CFREU) and the right to an effective remedy (Article 47 CFREU). This conflict should have been solved by applying a national provision–the Allgemeines Gleichbehandlungsgesetz, AGG (German General Act on Equal Treatment)–transposing Directive 2000/78 establishing a general

online. The Court found that this provision disregarded the balance achieved by the EU legislator in the abovementioned Directive between property rights–tied to intellectual property rights in particular–and effective legal protection, on the one hand, and the processing of personal data, on the other. 45 Jarass (2016b) considers that this is the Court of Justice’s approach (§ 51 RdN 32). 46 Hesse speaks about “balancing or weighing.” See note 41 above. 47 Case C-101/01, Bodil Lindqvist, EU:C:2003:596, Judgment of 6 November 2003, paragraph 82. 48 Case C-414/16, Egenberger, Judgment of 17 April 2018, EU:C:2018:257. However, Colombi (2019) considers that it is a paramount example of horizontal direct effect (pp. 294–305). See also, Azpitarte (2019), p. 1575.

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framework for equal treatment in employment and occupation.49 This Directive expressly declares its purpose (i.e., to define the scope of the principle of non-discrimination on grounds of religion, inter alia, within employment relationships). And, as confirmed by the Court of Justice, the purpose of the relevant domestic provisions is to prevent and eliminate all forms of discrimination, including any discrimination on the grounds of religion or belief.50 In the words of the CJEU, Article 4(2) of the Directive (to which the Court devotes most of its interpretative efforts) “sets out the criteria to be taken into account in the balancing exercise which must be performed in order to ensure a fair balance between those competing fundamental rights.”51 Self-evidently, the application of the fundamental rights at stake in this case relies on the balance struck by the EU legislator in the Directive. As shown above, national legislators must abide by this balance when transposing the EU Directive into the national legal order. There could be two main objections to this. First, one could claim that in the case at hand the Court of Justice has been forced to apply the right to an effective remedy directly (Article 47 CFREU) to make up for the misimplementation of the Directive. Second, that, based on the rights set out in the Charter, the Court has considered that domestic courts and tribunals should set aside a national provision contrary to the Charter rights. Both objections are untenable. As for the right to an effective remedy, the CJEU found that the evangelical church’s decision to exclude the candidate with no “confessional faith” had to be subject to judicial review, in order to assess whether such decision fulfilled the criteria laid down in the Directive enabling the coexistence of fundamental rights. Nevertheless, this cannot be construed as meaning that the right to an effective remedy had a direct effect in this private relationship. In fact, this need for judicial review is put into effect through two Directive provisions (Articles 9 and 10). The national legislator was required to implement these two provisions into national legislation, yet he failed to do so.52 The Court is thus confirming the misimplementation–or, better said, the defective transposition–of the Directive into national law, which breaches the duty of protection of the fundamental rights at stake (inter alia, the right to an effective remedy). And, as pointed out before, the Charter imposes this duty of protection both on EU and national legislators. This is precisely what allows to explain how fundamental rights act “as a palliative” for the lack of horizontal direct effect of Directives, once it becomes impossible to interpret national provisions in a manner consistent with EU law (i.e., disapplying any contrary provision of national legislation or setting aside 49 Council Directive 2000/78/EC, of 27 November 2000, establishing a general framework for equal treatment in employment and occupation (OJ 2000, L 303, p. 16). 50 “The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief [. . .] with a view to putting into effect in the Member States the principle of equal treatment” (Article 1). 51 Case C-414/16, cit. in note 48, paragraph 52. 52 In this connection, see Case C-414/16, cit. in note 48, paragraphs 48, 49, 54 and 59. The same line of reasoning can be found in Case C-68/17, IR, Judgment of 11 September 2018, EU:C:2018:696, paragraphs 43-45.

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incompatible national case law).53 Nevertheless, it should not be construed as an example of the right’s horizontal direct effect.54 Additionally, in response to the third question–whether a national provision that cannot be interpreted in conformity with the Directive can be set aside–the Court raises the mandatory nature of fundamental rights and the possibility that individuals can rely on an individual right in court. The Court’s line of reasoning does not contradict our approach to the horizontal direct effect of fundamental rights. Our stance is consistent with the claim that Articles 21 and 47 CFREU are “sufficient in itself [themselves] and does [do] not need to be made more specific by provisions of EU or national law to confer on individuals a right which they may rely on as such.”55 Along with the “guarantee of non-interference,” fundamental rights entail a duty of protection for right holders vis-à-vis public authorities (see Sect. 2 above). In the case at issue, fundamental right holders may consider that national legislators have disregarded such duty of protection when transposing the Directive that struck a balance between fundamental rights. If so, these right holders may seek that the competent courts interpret the national provision in conformity with the EU Directive–within the limits set out by CJEU case law56—so that it fulfils such duty of protection (see Sect. 3.5 below). Ultimately, as a branch of the state, a national court “would be required to secure within its jurisdiction the judicial protection for individuals flowing from Articles 21 and 47 of the Charter, and to guarantee the full effectiveness of those articles by disapplying if need be any contrary provision of national law.”57 Based on such consistent interpretation, it is understandable that the Court of Justice enables the domestic court, when hearing the case, (1) to depart from settled national case law (stating that, where the church differentiates between activities “close to” and activities “remote from” proclamation of the church’s message, courts should not review whether that distinction is justified); and (2) to set aside the interpretation of the provision contrary to the Directive including the EU legislator’s balance between the fundamental rights at stake.58 The CJEU already did this in Mangold and Kücükdeveci, urging the national court to disapply

53 With regard to this “palliative role,” see the Opinion of AG Y. Bot delivered on 25 November 2015, Case C-441/14, Dansk Industri, EU:C:2015:776, paragraph 47. Consequently, the Court of Justice found that the application of a national provision which was contrary to principle of non-discrimination on grounds of age, “as given concrete expression” in Directive 2000/78, must be precluded in disputes among private persons (see Judgment of 19 April 2016, EU:C:2016:278, paragraph 27). 54 In contrast, see Azpitarte (2019), p. 1572. 55 Case C-414/16, cit. in note 48, paragraphs 76–78 and Case C-68/17, cit. in note 52, paragraph 69. Regarding the non-discrimination principle, this line of reasoning can also be found in Case C-193/ 17, cit. in note 8, paragraph 76. 56 Case C-176/12, cit. in note 11, paragraphs 38–39, preventing an interpretation of national law contra legem. Likewise, Case C-193/17, cit. in note 8, paragraph 74. 57 Case C-414/16, cit. in note 48, paragraph 79. 58 Case C-414/16, cit. in note 48, paragraphs 72-73 and 81-82. See also, Case C-68/17, cit. in note 52, paragraphs 64-65 and 70-71, along with Case C-684/16, cit. in note 6, p. 60.

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certain domestic provisions that had not been amended by the legislator when implementing Directive 2000/78, in order to guarantee the full effectiveness of the general principle of non-discrimination in respect of age as implemented in the Directive.59 Having set aside the case law or specific provision incompatible with EU law, the competent domestic court should rule on the case, applying and interpreting any applicable national law provisions that are in conformity with the balance struck by the EU legislator to ensure the optimization of the fundamental rights involved as determined in the Directive.60 In accordance with well-known case law, we must rule out the possibility of directly applying the Directive striking the balance.61 One could argue that in Cresco the Court got a little closer to acknowledging the principle of non-discrimination’s horizontal direct effect.62 However, this ruling still applies prior case law. In this case, the Court examines an exception to the principle of non-discrimination on the grounds of religion provided by the Austrian legislator. In particular, it involves a piece of legislation granting the right to a public holiday on Good Friday only to employees who are members of certain Christian churches. The Court found a direct discrimination under Article 2 of Directive 2000/78. Such discrimination was deemed unreasonable for the protection of freedom of religion of employees favoured by this measure (Article 5 of Directive 2000/78), since it cannot be considered necessary, there being alternative measures allowing to safeguard the said fundamental right.63 As a result, based on the principle of non-discrimination, the Court ruled that “[i]n such a situation, a national court must set aside any discriminatory provision of national law, without having to request or await its prior removal by the legislature, and must apply to members of the disadvantaged group the same arrangements as those enjoyed by the persons in the other category.” Note that the Court backed up its line of reasoning with earlier case law.64 According to that case law, the consistent interpretation requirement allows for setting aside the provision that is unreasonable in the light of the Directive. After disapplying the discriminatory restriction–i.e., granting the right to a holiday on Good Friday only to employees affiliated to certain churches–persons within the disadvantaged category will be afforded the same advantages as those enjoyed by persons within the favoured category.65 Self-evidently, the non-discrimination principle has no horizontal direct effect in this case. Rather, national law is once again interpreted in conformity with Directive 2000/78, which enforces the principle of non-discrimination in private relationships. By setting aside the discriminatory restriction–granting the right to a public holiday on Good Friday only to employees who are

59 Case C-144/04, Mangold, Judgment of 22 November 2005, EU:C:2005:709, paragraphs 74-78, and Case C-555/07, Kücükdeveci, Judgment of 19 January 2010, EU:C:2010:21, paragraphs 53-56. In line with the body, see Fornasier (2015), p. 44. 60 In this connection, see Case C-282/10, Maribel Domínguez, Judgment of 24 January 2012, EU: C:2012:33, paragraph 27. On this aspect, among the scholars, see Alfaro (2015a), p. 6. 61 Case C-555/07, cit. in note 59, paragraph 46 and Case C-282/10, cit. in note 60, paragraph 37. 62 “Therefore, if it proved to be the case that national provisions could not be interpreted in a manner which was consistent with Directive 2000/78, the referring court would nevertheless be obliged to guarantee individuals the legal protection afforded to employees under Article 21 of the Charter and to guarantee the full effect of that article.” 63 Case C-193/17, cit. in note 8, paragraphs 60–61 and 67–68. 64 Case C-193/17, cit. in note 8, paragraph 80. 65 Case C-406/15, Milkova, Judgment of 9 March 2017, EU:C:2017:198, paragraphs 66–69 and cited case law.

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Fundamental rights intended to be effective within the private sphere (see Sect. 2 above) pose a different issue altogether. Bauer and Shimizu aptly exemplify this. It is thus understandable that the Court of Justice makes the following statement: “[T]he national court, before which a dispute between the legal heir of a deceased worker and the former employer of that worker has been brought, must disapply that national legislation and ensure that the legal heir receives payment from the employer of an allowance in lieu of paid annual leave acquired under those provisions and not taken by the worker before his death. That obligation on the national court is dictated by Article 7 of Directive 2003/88 and Article 31(2) of the Charter where the dispute is between the legal heir and an employer which has the status of a public authority, and under the second of those provisions where the dispute is between the legal heir and an employer who is a private individual” (emphasis added).66

Before the Charter entered into force, the Court of Justice had reached a similar conclusion with regard to the principle of equal pay. In Defrenne, the CJEU found that Article 157 TFEU (ex Article 141 TEC)–requiring Member States to “ensure that the principle of equal pay for male and female workers for equal work or work of equal value [be] applied”–was a mandatory provision thus enforceable in contracts between individuals.67 By doing so, the Court of Justice implemented this fundamental right through a specific mandatory provision, such as a Treaty provision (now Article 157 TFEU) from which it can be inferred a clear and unambiguous obligation in the field of employment on which individuals can rely before national courts.68 The Court of Justice hence declared the following: “since [the relevant provision] is mandatory in nature, the prohibition on discrimination between men and women applies not only to the action of public authorities, but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals.”69

Once this fundamental right is set out in Article 23 CFREU and defined as a right effective in private relationships, individuals may directly rely on it without prejudice to any further specification or implementation by Article 157 TFEU.70

66 Case C-569/16 and C-570/16, cit. in note 7, paragraph 92. See also, Case C-684/16, cit. in note 6, paragraph 81. 67 Case C-43/75, Defrenne, Judgment of 8 April 1976, EU:C:1976:56, paragraph 39. In this regard, see Sarmiento (2017), p. 4. 68 Ibid refers to this case as the first one where the horizontal direct effect of a Treaty provision, addressed to Member States, is acknowledged for private relationships (p. 4). 69 Case C-43/75, cit. in note 67, paragraph 40. 70 In this regard, see Alfaro (2015a), p. 4.

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Fundamental Rights and Freedoms of Movement

There could be a new argument against the previous analysis of the effect of fundamental rights in private law relationships, based on the effectiveness of freedoms of movement. Indeed, the Court of Justice has found that EU freedoms have a horizontal direct effect under certain circumstances.71 One could argue that there is no reason why fundamental rights should not be granted this effect. However, this view cannot be shared. Admittedly, just like fundamental rights, these freedoms are addressed to Member States.72 Ultimately, it is Member States who may somehow create obstacles to the free movement of production factors.73 Nonetheless, this conclusion does not apply to fundamental rights for two reasons. Firstly, the so-called market access freedoms are not generally effective in private relationships. They are intended to ensure that market participants can access the market, which does not depend on private parties, but on Member States, who are actually able to prevent or remove entry barriers to guarantee that participants from other states can enter the market. As is the case with fundamental rights, the application of access freedoms to private law relations requires specific legislative action (for instance, by means of competition law).74 Secondly, and more importantly, the CJEU has acknowledged that freedoms of movement are only horizontally effective under very specific circumstances. This clarification by the Court has been originally made when enforcing the prohibition of discrimination on grounds of nationality (Article 21(2) CFREU).75 In this case, freedoms of movement are actually implementing the principle of non-discrimination on grounds of nationality,76 thereby embodying such principle in primary law which, as is well-known, has direct effect. Therefore, based on this “legislative” action through the Treaties, individuals can directly rely on EU freedoms, not only vis-à-vis public authorities, but also in private relationships as an implementation of the aforementioned principle. Accordingly, horizontal direct effect of freedoms of movement does not provide an argument against our approach to the effect of fundamental rights stated above, but rather a line of reasoning supporting such approach.

3.4

Human Dignity in Private Relationships

The foregoing should be qualified or nuanced with regard to human dignity (Article 1 CFREU). Human dignity is closely linked to the inherent worth of individuals and 71

On this case law, see Sarmiento (2017), pp. 3–6. Cherednychenko (2007), p. 202, note 10. 73 Sarmiento (2017), p. 3. 74 Ibid, p. 3. 75 Ibid, p. 6. He examines Case C-281/98, Angonese, Judgment of 6 June 2000, EU:C:2000:296. 76 Ibid, p. 6. 72

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the protection thereof, so it is shaped differently than other fundamental rights.77 Due to its inextricable ties to the essence of human beings, human dignity cannot be limited or restricted, not even on the grounds of protecting other fundamental rights enshrined in the Charter.78 This makes sense, since fundamental rights’ ultimate purpose is to secure human dignity.79 It follows that human dignity requires no specific legislative action for it to be relied on by individuals in private relationships, and can have an horizontal direct effect. This close connection with the inherent worth of individuals also explains why human dignity is inalienable, inviolable and also why it allows for no limitation or derogation, not even as an exercise of personal autonomy.80 The CJEU case law has embraced this idea, which was largely established in Omega.81 The dispute arises from a ban (prohibition order) issued by German authorities on games taking place in Omega’s establishment. The game involved a “laserdrome” where players had to kill other players with gun-type laser targeting devices. Players wore tags fixed on their jackets that turned them into human targets. This activity was developed by the German company Omega using children’s toy guns at first and then equipment supplied by the British company Pulsar, which ended up being Omega’s licensee. This case was referred for a preliminary ruling to the Court of Justice by the German Supreme Court, which was asked to assess the legality of the administrative decision imposing the aforesaid ban. The case entails a clash between the freedom to provide services and the free movement of goods, on the one hand, and respect for human dignity, on the other. The Court of Justice found that respecting human dignity falls within the public order treaty clause justifying a restriction of the abovementioned freedoms. The Court added that the contested order (which solely banned shooting at human targets) did not go beyond what is necessary to attain the objective of protecting human dignity.82 If we were able to set aside the facts connected with free movement, we could easily approach the case as a conflict between the freedom to conduct a business (free enterprise) and human dignity, which would lead to a similar solution. Since human dignity overrides free enterprise–keep in mind that “[h]uman dignity is inviolable” (Article 1 CFREU)–there is no need to balance the fundamental rights at stake, and there can be a restriction of free enterprise, like the one imposed by German authorities, to secure human dignity. However,

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Alexy (1993) points out that this fundamental right sometimes operates as a rule and some others as a principle. He adds that a distinct feature of human dignity is that there is a high degree of certainty regarding its precedence over conflicting principles within the fully protected sphere of human worth (pp. 106–107). 78 Concerning this connection with the inherent worth of individuals, see the Opinions of AG C. Stix-Hackl, in Case C-36/02, Omega, EU:C:2004:162, paragraph 75 and AG Poiares Maduro, in Case C-303/06, Coleman, EU:C:2008:61, point 9. Amongst other scholarly works, see Escarejo (2019), p. 65, including additional references. See also, Sobrino (2008), who underlines that human dignity is absolute, non-derogable and not subject to any limitation under any other fundamental rights provided in the Charter (p. 108). 79 Alexy (1993), p. 37. 80 Alfaro (2017), p. 9; Sobrino (2008), see note 78 above. 81 Case C-36/02, Omega, Judgment of 14 October 2004, EU:C:2004:614. 82 Case C-36/02, cit. in note 81, paragraphs 34–35.

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note that in order for this restrictive measure to be legitimate, it must fulfil the principle of proportionality (Article 52(1) CFREU).

The foregoing has obvious direct consequences for private relationships regarding any contract provisions deemed contrary to human dignity. Contracts and contract law provide a fertile ground for the most intense conflicts between human dignity and other fundamental rights enforceable within private law relationships (see Sect. 4 below).

3.5

The Role of the Judiciary in Fulfilling the Optimization Command

What has been discussed so far regarding fundamental rights’ distinct features and the role of legislators has an immediate impact on the role of the judiciary. Having empowered legislators to determine the “social enforceability” of fundamental rights, it is for judicial authorities to apply and interpret the provisions used by lawmakers to determine the scope of fundamental rights in private relationships.83 Accordingly, the judiciary gives effect to this duty of protection imposed by fundamental rights on public authorities in the interest of fundamental right holders. Where legislators have failed to take action and fulfil their duty, judicial authorities will not be entitled to supersede them; in such cases, courts of justice are not entitled, by themselves, to strike the balance needed to enforce these rights in private relationships (relying, for instance, on general clauses of public order, good faith or morality). Judicial authorities have been removed from that task in favour of legislators, who are better suited for it.84 Thus, courts of justice are not required to strike this balance by interpreting private law in the light of a set of fundamental rights that would permeate the whole legal order. As for the Charter, it is for domestic judicial authorities to interpret and apply the provisions used by EU and national legislators to balance competing fundamental rights. Most certainly, regarding a national provision implementing a Directive that included such balance, courts of justice must interpret such national provision in conformity with the Directive.85 But the role of the judiciary in fulfilling this duty of protection is not as simple as this. The Court of Justice has further specified that “[. . .] Member States must not only interpret their national law in a manner consistent with Community law, but also make sure they do not rely on an interpretation of wording of secondary legislation which would be in conflict with the fundamental rights protected by the Community legal order or with the other general principles of

Alfaro (1993) explaining that the process of interpretation leads to the “concretization” or realization of the rules for them to be applied to a specific case (pp. 73 and 75). 84 Hesse (1995), p. 65. 85 Case C-414/16, cit. in note 48, paragraph 79. 83

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Community law.”86 Thus, national judicial authorities must give effect to this duty of protection not only by ensuring that domestic legislators have abided by the balance between conflicting rights struck by the Directive, but also making sure that the balancing performed by the EU legislator allows to comply with the aforesaid duty of protection. Where the courts are in doubt about the compatibility of these provisions with EU secondary legislation or with the Charter, they should or they must– depending on the court hearing the case–refer a preliminary ruling to the CJEU (Article 267 TFEU). The Court of Justice is thus called upon to act as a Constitutional Court, ensuring that legislators comply with the duty of protection.87 Preliminary rulings will be on validity if the referring court is not sure about the compatibility with the Charter of an EU secondary law provision, and thus the ruling will determine if the EU legislator has fulfilled the duty of protection required by the fundamental rights at issue. The case Test-Achats ASBL aptly exemplifies this: when ruling on the question referred by the Belgian Constitutional Court, the CJEU found that Article 5(2) of Directive 2004/113 was invalid on the grounds that it was contrary to Articles 21 and 23 CFREU–prohibition of discrimination based on sex and equality between men and women.88 Nonetheless, the Court of Justice will also be entitled to review the fulfilment of this duty of protection following an action for annulment brought under Article 263 TFEU against secondary legislation incompatible with any fundamental rights set out in the Charter.89 Preliminary rulings will be on interpretation where the Court of Justice rules on the compatibility with EU law–including the Charter–of a national provision transposing a Directive determining the “social enforceability” of fundamental rights.90 The Court will thus be able to establish whether the national legislator’s transposition has (1) abided by the balancing performed by the EU legislator and (2) fulfilled the duty of protection.91 That is exactly what it did in Mangold and Kücükdeveci (see Sect. 3.2 above). The Court of Justice notes that “it is for the national court, hearing proceedings between individuals, to ensure that the principle of non-discrimination on grounds of age, as

86 Case C-101/01, cit. in note 47, paragraph 87; C-305/05, Ordre des barreaux francophones et germanophone, Judgment of 26 June 2007, EU:C:2007:38, paragraph 28, and Case C-275/06, cit. in note 44, paragraph 68. 87 See the insights of Díez-Hochleitner (2013), pp. 5 and 8. 88 Case C-236/09, Association belge des Consommateurs Test-Achats, Judgment of 1 March 2011, EU:C:2011:100. 89 For example, see Case C-377/98, The Netherlands v European Parliament and Council, Judgment of 9 October 2001, EU:C:2001:523, deciding on the application for annulment against Directive 98/44/EC, of 6 July 1998, on the legal protection of biotechnological inventions, for being contrary to human dignity (among other grounds). As for the scholarly works, Mangas (2008a) points out this possibility (p. 820). 90 Mangas (2008b), p. 842. 91 As acknowledged, on a general basis, Mangas (2008a), p. 817.

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given expression in Directive 2000/78, is complied with, disapplying if need be any contrary provision of national legislation.”92 Judicial review of compliance with the duty of protection is not limited to legislators’ actions. It can also cover the activity of national courts. Indeed, within the framework of preliminary rulings on interpretation, the Court of Justice can make sure that the interpretation performed by Member State courts is not “in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality.”93 If the Court of Justice finds that the interpretation is incompatible with the said rights, domestic courts should cease to apply such interpretation and interpret the provision otherwise (i.e., accordingly with the EU law rules where the legislator struck the balance between the competing rights).94

4 Fundamental Rights and Personal Autonomy As shown above, except for human dignity, fundamental rights do not entail, by themselves, obligations on private parties. Rather, they are enforced amongst private parties through a legislative expression that determines their “social enforceability,” along with the courts’ interpretation and application. Fundamental rights intended to be effective within the private sphere are also covered by the aforesaid exception. We still have to address the extent to which fundamental rights can limit free will. Note that personal autonomy manifests itself as the possibility of designing one’s own life responsibly and in a self-determined manner.95 Individual decisions made as an exercise of autonomy are valid inasmuch as they are wanted and accepted by the parties (stat pro ratione, voluntas), so that they can avail of their legal sphere as they see fit.96 In this vein, personal autonomy must be construed as an expression of human dignity, insofar as it amounts to an essential part of the free development of personality and to the utmost expression of individual freedom.97

92 Case C-555/07, cit. in note 59, paragraph 56. Along the same lines, see also Case C-144/04, cit. in note 59, paragraph 78. 93 Case C-275/06, cit. in note 44, paragraph 68. 94 Case C-414/16, cit. in note 48, paragraphs 72 and 73 and Case C-68/17, cit. in note 52, paragraphs 64 and 65. 95 On this approach to personal autonomy, see Hesse (1995), pp. 75–77. 96 Alfaro (2015b), p. 1. 97 Hesse (1995), p. 75. See Alfaro (1993), p. 94; von Münch (1997), p. 50. More recently, Lohsse and Schulze (2016) recall that personal autonomy is a constitutionally protected principle (p. 29). In contrast, Ramos (2016) argues that personal autonomy is inextricably linked to the core or essence of fundamental rights (pp. 247–249). Based on this claim, he suggests that the potential conflicts between personal autonomy and fundamental rights should be solved by striking a fair balance and weighing the interests at stake. Ibid, pp. 250–264.

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N. Bermejo This idea can be found in the Opinion of AG Poiares Maduro in Coleman v. A. Law and S. Law, where he provides that personal autonomy dictates that individuals “should be able to design and conduct the course of their lives through a succession of choices among different valuable options. The exercise of autonomy presupposes that people are given a range of valuable options from which to choose. When we act as autonomous agents making decisions about the way we want our life to develop our ‘personal integrity and sense of dignity and self-respect are made concrete’.” He adds that “a commitment to autonomy means that people must not be deprived of valuable options in areas of fundamental importance for their lives by reference to suspect classifications.”98

These insights are particularly significant regarding fundamental rights, since they lead to the conclusion that free will cannot be limited or restricted by a general duty to respect fundamental rights.99 As discussed before, fundamental rights solely impose duties on public authorities (see Sect. 2 above). Consequently, individuals should be able to define the scope of their fundamental rights through agreements, as long as such agreements do not entail a waiver of these rights. As is well-known, fundamental rights qualify as res extra comercium and therefore they are inalienable. As a result, any waiver of fundamental rights shall be deemed null and void, just like any waiver of the exercise of these rights being equivalent to waiving the rights altogether; for example, waiving the exercise of a fundamental right indefinitely.100 Therefore, under freedom of contract, each contracting party must protect itself through its own consent (or lack thereof) from any unbearable or unacceptable fundamental rights restrictions. However, and here comes the problem, individual consent sometimes does not suffice to provide such protection.101 In these cases, in order to fulfil the duty of protection required by fundamental rights, lawmakers must take action by passing mandatory provisions that limit personal autonomy. Thus, any agreements contrary to mandatory provisions limiting personal autonomy will be null and void (see, for instance, Article 1255 of the Spanish Civil Code).102 Courts and tribunals should invalidate such agreements by applying the restrictive mandatory provision. Note, however, that judicial authorities are not entitled to add further restrictions or limitations other than those expressly laid down in the provision limiting free will.103 Similarly, insofar as any agreements limiting fundamental

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Case C-303/06, cit. in note 78, points 9 and 11. Hesse (2011): “An unlimited connection of individuals with fundamental rights would entail a restriction of their personal autonomy, which could lead to a significant limitation of personal freedom, thereby reshaping private law’s meaning and distinct nature.” (p. 172). See also, von Münch (1997), pointing out that both fundamental rights and private autonomy “are an integral part of a democratic, liberal and social legal order subject to the rule of law.” (pp. 49–50). 100 Alfaro (1993), pp. 99–100. 101 Ibid, p. 94. 102 Article 1255 of Spanish Civil Code is worded as follows: “The contracting parties may establish any covenants, clauses and conditions deemed convenient, provided that they are not contrary to the laws, to morals or to public policy.” 103 Alfaro (1993), pp. 96–99, as well as the further elaboration on this idea in those pages. 99

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rights can qualify as a waiver of rights, they should be considered null and void if they undermine human dignity (see, for instance, an enslavement agreement).104 Keep in mind that, due to its very nature, human dignity has horizontal direct effect with no need for any legislative measures (see Sect. 3.3 above). The previous case differs from those situations where the mere performance in natura of the agreement undermines human dignity. The agreement will be deemed valid, yet not enforceable in that way.105 Based on the foregoing, individuals may exercise their freedom and refuse to enter into agreements with other individuals, unless such refusal constitutes an unlawful exercise of their freedom contrary to human dignity (Articles 1 CFREU and 7(2) of the Spanish Civil Code).106 For example, the owner of a business open to the public cannot refuse the entry of persons on grounds of ethnicity or sexual orientation, because it would amount to a degrading treatment for those persons.107 As has been authoritatively put, “persons who are refused entry based on their race have no chance to recover their loss of dignity resulting from such refusal by creating their ‘whatever-race-only’ association. That would not afford them the relevant status–equality–but rather it would confirm and consolidate their situation of discrimination (‘equal but separate’).”108 In this vein, the Court considered that a practice of an electricity distributor, which imposed a different and unfavourable treatment on the inhabitants of certain ethnic group, had an “offensive and stigmatising nature”.109 The practice consisted in placing electricity meters on pylons at a height of seven metres in certain urban districts–whose inhabitants were in most part of Roma origin–with the purpose of avoiding unlawful connections. This made extremely difficult, or even impossible, for consumers of those districts–and only for them–to check the consumption. The Court considered that such a practice was, at least, “[. . .] liable to constitute an apparently neutral practice putting persons of a given ethnic origin at a particular disadvantage compared with other persons, within the meaning of Article 2(2)(b) [of Directive 2000/43].” Since this practice inflicts a different and unfavourable treatment on a specific group based on racial grounds, it would amount to an exercise of freedom imposing an offensive and stigmatizing treatment for that group of persons. Therefore, it should be con-

104

Ibid, pp. 103–104. Ibid, pp. 104-105. 106 Ibid, pp. 106-107. 107 Alfaro (2015a), pp. 1–2. 108 Alfaro (1993), pp. 116 and Alfaro (2015b), p. 3. 109 Case C-84/14, CHEZ Razpredelenie Bulgaria, Judgment of 16 July 2015, EU:C:2015:480, paragraph 87. 105

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sidered contrary to the (equal) human dignity–in other words, discriminatory–, unless it could be justified.110 A different case is the nationwide stadium ban imposed on a Bayern Munich fan recently assessed by the German Constitutional Court. This case has been considered a national example of the principle of equal treatment’s horizontal direct effect.111 However, in fact this two-year stadium ban must be construed as an exclusion to enter into agreements (“refusal to contract”) where the fan’s dignity is not undermined, since the ban (1) was not unreasonable or arbitrary (it was actually imposed because the fan caused personal injury and damage to property) and, as concluded by the German Constitutional Court, (2) was reasonable or proportionate.112

5 Conclusions Based on our findings, there are not sufficient elements to generally state that the fundamental rights enshrined in the Charter have horizontal direct effect. The CJEU case law discussed herein does not prove us wrong. The only exceptions are human dignity and fundamental rights granted or acknowledged within private law relationships. This approach to fundamental rights’ effectiveness in private relationships does not entail that the protection thereof be weaker or that fundamental rights be disregarded by a whole sphere of the legal order. Admittedly, declaring the horizontal direct effect of fundamental rights neither adds anything to their fundamental nature nor enhances the protection thereof. As shown above, their fundamental nature does not stem from their erga omnes effect. Rather, the fundamental nature of fundamental rights arises from the fact that their acknowledgment does not depend on legislators. Accordingly, fundamental rights are not subject to an enhanced protection solely because they are deemed effective in private relationships. Fundamental rights achieve their greatest protection where lawmakers abide by the “optimization command”–entailed by fundamental rights–and afford right holders an appropriate protection through the relevant provisions (whether private or public law, or domestic or EU provisions) subsequently interpreted and applied by judicial authorities. It is for the Court of Justice to ensure the fulfilment of this command or requirement. Where Member States breach their duties and fail to

Case C-84/14, cit. in note 109, operative paragraph 4: “such a measure would be capable of being objectively justified by the intention to ensure the security of the electricity transmission network and the due recording of electricity consumption only if that measure did not go beyond what is appropriate and necessary to achieve those legitimate aims and the disadvantages caused were not disproportionate to the objectives thereby pursued.” 111 1BvR3080/09. This ruling is available at: https://www.bundesverfassungsgericht.de/ SharedDocs/Entscheidungen/DE/2018/04/rs20180411_1bvr308009.html. See the English translation of this ruling at https://www.bundesverfassungsgericht.de/SharedDocs/Downloads/EN/2018/ 04/rs20180411_1bvr308009en.pdf?__blob¼publicationFile&v¼1. 112 On these matters, see Alfaro (2018), p. 1. 110

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transpose the EU Directive providing the EU legislator’s balance between rights at stake (or do so defectively), the Court of Justice forces domestic courts to set aside or disapply the implementing provision at issue, which is not only incompatible with the Directive, but also contrary to the fundamental right at stake. Where national law cannot be interpreted in conformity with the relevant EU Directive, national courts are not entitled to apply the Directive directly to enforce the fundamental right at hand. This evidences, however, an additional issue, that is, the lack of horizontal direct effect of Directives, which must be addressed according to a well-known case law (i.e., right of the aggrieved party to obtain a reparation in accordance with national law on liability where a damage has been suffered and it is due to a breach by the State of its obligation).113

References Alexy R (1993) Teoría de los Derechos fundamentales. Centro de Estudios Constitucionales, Madrid Alfaro J (1993) Autonomía privada y derechos fundamentales. ADC LXVI:57–122 Alfaro J (2015a) Drittwirkung en el Derecho europeo, available at https://almacendederecho.org/ drittwirkung-en-el-derecho-europeo, pp 1–6 Alfaro J (2015b) Libertad contractual y principio de igualdad, available at https:// almacendederecho.org/libertad-contractual-y-principio-de-igualdad, pp 1–4 Alfaro J (2017) De nuevo sobre la Drittwirkung de los derechos fundamentales, available at https:// almacendederecho.org/nuevo-la-drittwirkung-los-derechos-fundamentales, pp 1–10 Alfaro J (2018) “Sanciones” privadas y Drittwirkung, available at https://derechomercantilespana. blogspot.com/2018/05/sanciones-privadas-y-drittwirkung.html, pp 1–5 Azpitarte M (2019) Comentario del artículo 51 CDFUE. In: López Castillo A (ed) La Carta de Derechos Fundamentales de la Unión Europea. Diez años de jurisprudencia. Tirant lo Blanch, Valencia, pp 1561–1620 Beladíez M (2017) La eficacia de los derechos fundamentales entre particulares. Algunas consideraciones sobre el distinto alcance que pueden tener estos derechos cuando se ejercen en una relación jurídica de derecho privado o de derecho público. In: Izquierdo Sans C, Rodríguez de Santiago JM (eds) Los derechos fundamentales en las relaciones entre particulares, Anuario de la Facultad de Derecho de la Universidad Autónoma de Madrid. BOE, Madrid, pp 75–97 Canaris W (1984) Grundrechte und Privatrecht. AcP 184:201–246 Cherednychenko O (2007) Fundamental Rights, contract law and protection of the weaker party. Sellier European Law Publishers, München Colombi A (2019) The direct effect of EU fundamental rights. Eur Const Law Rev 15:294–305 Cruz Villalón P (1988) Derechos fundamentales y Derecho privado. Anales de la Academia Sevillana del Notariado:99–114 Cruz Villalón P (2017) La incidencia de la Carta (DFUE) en la confluencia de la eficacia horizontal de los derechos fundamentales y la ineficacia horizontal de las Directivas; de Kücükdeveci a Dansk Industri. In: Izquierdo Sans C, Rodríguez de Santiago JM (eds) Los derechos

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Case C-91/92, Faccini Dori, Judgment of 14 July 1994, EU:C:1994:292, paragraph 29, and Joined Cases C-46/93 and C-48/93, Brasserie du Pêcheur, Judgment of 5 March 1996. See also Fornasier (2015), p. 36.

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fundamentales en las relaciones entre particulares, Anuario de la Facultad de Derecho de la Universidad Autónoma de Madrid. BOE, Madrid, pp 101–120 Díez-Hochleitner J (2013) El Derecho a la última palabra: ¿Tribunales constitucionales o Tribunal de Justicia de la Unión? Working Paper IDEIR 17:1–38, available at https://www.ucm.es/data/ cont/docs/595-2013-11-07-el%20derecho%20a%20la%20última%20palabra.pdf Díez-Picazo Giménez LM (2012) Sobre la eficacia entre particulares de los derechos fundamentales. In: García de Enterría E, Alonso García R (eds) Administración y Justicia. Un análisis jurisprudencial. Liber Amicorum Tomás Ramón Fernández, vol 1. Thomson Reuter Civitas, Madrid, pp 141–154 Díez-Picazo Giménez LM (2013) Sistema de derechos fundamentales, 4th edn., Chapter I, Aproximación a la idea de derechos fundamentales (Proview version) Escarejo L (2019) Comentario del artículo 1 CDFUE. In: López Castillo A (ed) La Carta de Derechos Fundamentales de la Unión Europea. Diez años de jurisprudencia. Tirant lo Blanch, Valencia, pp 61–83 Fornasier M (2015) The impact of EU fundamental rights on private relationships: direct or indirect effect? Eur Rev Private Law 1:29–46 Hesse K (1995) Derecho constitucional y Derecho privado. Civitas, Madrid Hesse K (2011) El significado de los derechos fundamentales. In: Cruz Villalón P, Azpitarte Sánchez M (eds) Escritos de Derecho Constitucional. Centro de Estudios Políticos y Constitucionales, Madrid, pp 151–175 Jarass H (2016a) EU-Grundrechte und Privatrecht. In: Heiderhoff B, Lohsse S, Schulze R (eds) EU-Grundrechte und Privatrecht. Nomos, Baden Baden, pp 31–58 Jarass H (2016b) Charta der Grundrechte EU, 3rd edn. Beck, München Lohsse S, Schulze R (2016) EU-Grundrecthe im Privatrecht – Entwicklung, Interaktion und Perspektiven. In: Heiderhoff B, Lohsse S, Schulze R (eds) EU-Grundrechte und Privatrecht. Nomos, Baden Baden, pp 11–30 Mangas A (2008a) Comentario del artículo 51 CDFUE. In: Mangas A (ed) Carta de Derechos Fundamentales de la Unión Europea. Fundación BBVA, Bilbao, pp 811–825 Mangas A (2008b) Comentario del artículo 52 CDFUE. In: Mangas A (ed) Carta de Derechos Fundamentales de la Unión Europea. Fundación BBVA, Bilbao, pp 828–851 Menéndez AJ (2004) Some elements of a theory of European Fundamental Rights. In: Menéndez AJ, Eriksen EO (eds), Fundamental Rights through Discourse. On Robert Alexy’s Legal Theory. European and Theoretical Perspectives. ARENA Report 9:159–199 Paz-Ares C, Alfaro J (2003) Un ensayo sobre la libertad de empresa. In: Estudios homenaje a Luis Díez-Picazo, vol IV. Thomson–Civitas, Madrid, pp 5971–6040 Ramos D (2016) Fundamental Rights and private law –a blueprint for analysis with Spanish eyes. In: Heiderhoff B, Lohsse S, Schulze R (eds) EU-Grundrechte und Privatrecht. Nomos, Baden Baden, pp 227–271 Sarmiento D (2017) Las libertades de circulación y su efecto horizontal, available at https:// almacendederecho.org/las-libertades-circulacion-efecto-horizontal, pp 1–6 Sobrino JM (2008) Comentario del artículo 1 CDFUE. In: Mangas A (ed) Carta de los Derechos Fundamentales de la Unión Europea. Fundación BBVA, Bilbao, pp 107–126 Starck C (2002) Derechos fundamentales y Derecho privado. Revista Española de Derecho Constitucional 66:65–89 Starke MF (2016) EU Grundrechte und Vertragsrecht. Mohr Siebeck, Tübingen Von Münch I (1997) Drittwirkung de Derechos fundamentales en Alemania. In: Salvador Coderch P (ed) Asociaciones, derechos fundamentales y autonomía privada. Civitas, Madrid, pp 25–53

The Horizontal Effect of Social Rights in the Light of the European Social Charter and the European Committee of Social Rights’ Case Law Amaya Úbeda de Torres

1 Introduction The European Social Charter is a human rights instrument focussing on social rights, although it is often ignored and much less known than its counterpart treaty within the Council of Europe, the European Convention on Human Rights. The follow-up to the Charter and the respect of the respective obligations by the States is monitored by the European Committee of Social Rights, an expert body composed of 15 members.1 It carries out two supervisory functions: the system of periodic reports, which results in conclusions that are published once a year and which performs a complete examination of the situation in each State every 4 years,2 and the system of collective complaints. The latter is an innovative and sui generis system, which exists since 1995 and opens a space for social dialogue, promoting the horizontal effect of social rights. The advantages of the system of collective complaints within the Charter lie in the creation of a single multi-dimensional space for dialogue (or multilevel dialogue, depending on the different terminology used),3 in which the role of social actors (entrepreneurs, trade unions and civil society associations specialised in social

The opinions expressed in this contribution are those of the author and do not necessarily reflect the views of the Council of Europe. 1

See Jimena Quesada (2015), pp. 99–127; Lukas (2020), pp. 127–141. For an analysis of the reporting procedure, see Harris and Darcy (2001). 3 There are extensive works on fundamental rights and multilevel protection, as well as crossfertilisation; in the field of social rights, see Pons (2015). 2

A. Ú. de Torres (*) European Committee of Social Rights, Council of Europe, IE University, Madrid, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Izquierdo-Sans et al. (eds.), Fundamental Rights Challenges, https://doi.org/10.1007/978-3-030-72798-7_6

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rights) becomes essential. The collective complaints have been key for encouraging and triggering national reform, as the cases introduced do not concern individual claims, but have a collective perspective. The goal of this contribution will be to analyse how the mechanism of collective complaints and the interpretation given by the European Committee of some articles of the Charter has fostered, though the promotion of dialogue with social actors, the horizontal effect of social rights. In the first part of this chapter, the collective dimension of the system of collective complaints and its advantages for building dialogue between the State and social actors will be discussed. Indeed, collective complaints have helped identifying positive obligations for the States, as well as obligations for non-state actors, especially companies, in certain sectors. The second section will present instances of dialogue that have been fostered by case law of the European Committee of Social Rights. Complaints regarding abortion, the right to health and the obligation to guarantee access of the most vulnerable parts of society to health facilities, environmental cases, decisions concerning austerity measures, as well as very recent cases regarding the right to equality at work, including equal pay, illustrate the multiplication of the horizontal effect of the social rights contained in the European Social Charter.

2 A Unique Multilevel Mechanism: The Collective Complaint Procedure The collective complaints system has profoundly changed the system of monitoring of social rights. The Protocol of Collective Complaints, which was adopted in 1995,4 introduced for the first time a hybrid mechanism, which is in between a traditional reporting mechanism and an individual complaints procedure. It allows a certain category of in abstracto control of conventionality between an adopted law, a practice or a national situation and one or several provisions of the European Social (revised) Charter. Indeed, the collective complaints mechanism is more effective and pro-active than the reporting system; in addition, it is adversarial in nature. The mechanism follows a quasi-judicial approach, as there are complainant organisations, which have standing status to introduce complaints against one of the Respondent States. However, it has been criticised based on different aspects: first and foremost, the limitation deriving from the fact that only 15 States have ratified the Protocol, which represents less than one third of all Council of Europe members. The other criticisms are traditionally based on what some authors have perceived as procedural

4 Additional Protocol to the European Social Charter Providing for a System of Collective Complaints, CETS 158, adopted 9 November 1995, entered into force 1 July 1998.

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weaknesses and relate to the exhaustion of domestic remedies and the criteria of admissibility.5 However, the collective complaints mechanism is not a pure ex-post facto redress mechanism. Its main goal is not only to redress an already existing violation, but it also serves as a bridge to build preventive solutions. Indeed, complainant organisations may denounce a legal or practical situation as being contrary to the Charter, thereby opening a forum for social dialogue with the State under an international supervision. As regards the criteria of admissibility, they have evolved through the interpretation developed by the Committee, dispelling some of the criticisms and reinforcing the adversarial character and the consistency of the autonomous notions6 used in more than 20 years of decision-making, with almost 150 complaints decided up to December 2020 and 195 complaints introduced up to March 2021. The collective complaints mechanism is therefore primarily a tool for dialogue between different stakeholders in the field of social rights. There are three main features which clearly explain the way in which the dialogue takes place: first, concerning the organisations with competence to bring collective complaints; second, regarding the collective element of the contents of the complaints submitted; and lastly, through the simplicity of the admissibility phase and the lack of exhaustion of domestic remedies, which renders the dialogue direct and straightforward.

2.1

Who Can Launch the Dialogue? The Role of the Complainant Organisations

Concerning the organisations which are allowed to present complaints, Article 1 of the Additional Protocol to the European Social Charter of 1995 refers to the following: (a) international organisations of employers and trade unions referred to in Article 27§2 of the Charter;7 (b) other international non-governmental organisations which have consultative status with the Council of Europe and have been put on a list established for this purpose by the Governmental Committee;8

5

See among others, Churchill and Khaliq (2004), Cullen (2000) and Sudre (1996). For example, in Dermato-Venerologues v France, Admissibility,13 June 2005 at para. 5, the Committee stated that the idea of representativeness is an autonomous concept and would not be determined by reference to national laws on the subject. 7 The Council of Europe has designated the following: the European Trade Union Confederation (ETUC), BUSINESSEUROPE and the International Organisation of Employers (IOE). 8 This list is established by the Governmental Committee in accordance with the following procedure as decided by the Committee of Ministers (decision of 22 June 1995): INGOs which hold participatory status with the Council of Europe and which consider themselves particularly competent in any of the fields covered by the Charter are invited to express their wish to be included on a special list of INGOs entitled to submit complaints; each application must be supported by detailed and accurate documentation aiming to show in particular that the INGO has access to authoritative sources of information and is able to carry out the necessary verifications and obtain appropriate 6

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(c) representative national organisations of employers and trade unions within the jurisdiction of the Contracting Party against which they have lodged a complaint. Article 2 of the Protocol of 1995 refers to the possibility that Sates can declare that they will also accept complaints from national NGOs. Up to date, Finland is the only state to have issued such a declaration and accepted national NGOs’ complaints.9 Most of the complaints introduced so far come from the organisations of trade unions and employers in the field of employment rights and pensions, particularly in relation to Articles 5 and 6 of the European Charter concerning freedom of association and collective bargaining. International NGOs have made complaints relating to many other provisions, such as in the field of the right to education, housing, protection of the family or treatment of children. These organisations and NGOs therefore have the opportunity to identify specific national reforms or transnational problems affecting several States and to engage in a direct dialogue with the States. The collective complaints mechanism provides an opportunity for this. In exchange for allowing social stakeholders to contribute to this process and for accepting the introduction of collective complaints, States have less reporting obligations. Indeed, states parties, which have accepted the collective complaints procedure are subjected to a simplified reporting procedure and have to submit a national report only every 2 years.10 The simplified report is reduced in scope, as it targets only information on the follow-up measures adopted in response to the decisions of the Committee on collective complaints. It further implies that when States accept the mechanism of collective complaints, there is a presumption established in their favour under the reporting mechanism, as the only issues which will be monitored are those raised within the collective complaints. The Committee

legal opinions, etc, in order to draw up complaint files that meet basic requirements of reliability; all applications are transmitted to the Governmental Committee, accompanied by an opinion of the Secretary General which reflects the degree of interest and participation shown by the INGO in its normal dealings with the Council of Europe; an application is considered accepted by the Governmental Committee unless it is rejected in a ballot by a simple majority of votes cast; inclusion on the special list is valid for a period of four years, after which it lapses, unless the organisation applies for renewal in the 6-month period preceding the expiry date. The procedure described above applies to renewal applications. The list can be consulted on the Council of Europe website under “Social Charter”, www.socialcharter.int. See also Churchill and Khaliq (2004), pp. 417, 424. 9 The concept of ‘representativeness’ for national non-governmental organisations is the same, mutatis mutandis, as for national trade unions. For the purposes of the collective complaints procedure, the representativeness of trade unions is an autonomous concept which has a different scope from the national representativeness concept. This applies even more to associations. It is therefore incumbent on the Committee gradually to establish the nexus of criteria enabling it to assess the representativeness of national organisations, taking account, inter alia, of their social purposes fields of activity, see The Central Association of Carers in Finland v. Finland, Complaint No. 70/2011, decision on admissibility of 7 December 2011, § 6; Finnish Society of Social Rights v Finland, Complaint No 107/2014, decision on admissibility and on the merits of 6 September 2016, §§28–30. 10 Governmental Committee of the European Social Charter and the European Code of Social Security, Ways of streamlining and improving the reporting and the monitoring system of the European Social Charter, Decision 4.7 during the 1196th meeting, 2-3 April 2014, (CM(2014)26)).

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will not evaluate other possible problems. It is therefore a much more collaborative and open exchange mechanism than the reporting one, in which social actors, namely the complainant organisations, have the responsibility to act as watchdogs of the Charter, as they have the key to launch the process and ensure its success. This system entered into force for all states parties which ratified the Protocol since October 2014 and, in case of further ratifications, will enter into force 1 year after the acceptance of the collective complaints procedure. As the 15 states which have accepted the procedure have to present reports once every 2 years, they are divided into two groups. The groups facilitate identifying which States have to report every other year.11 Organisations can not only introduce complaints, but they can also present written observations to a pending collective complaint lodged by another organisation once it has been declared admissible and during the merits phase. To develop this role, similar to one of a third intervention or an amicus curiae before an international court, the rules have remained very flexible and other international organisations, such as the European Union Commission, local NGOs or equality national bodies have often contributed to this procedure.

2.2

The Collective Aspect of the Dialogue: A Mechanism Without Individual Victims

The second feature of the mechanism is the collective approach. This is based on three elements. The first element is that there are no specific or identifiable victims that have to be part of the collective complaint. This reinforces the fact that the collective complaints system is not only a classic human rights monitoring tool victim-oriented, established to seek reparation once a violation against individuals has happened. Actually, the Committee does not grant pecuniary compensations: if it declares a violation of the provisions of the Charter, it does so by identifying those general measures that could be adopted by the State to fulfil its obligations. The collective complaints mechanism is therefore a way of putting a specific problem up for discussion, which can already affect a group of people (a specific category or workers, or pensioners, or migrant children or vulnerable populations such as Roma) with a view to finding a solution to a structural deficiency or a general policy, legislation or practice in the field of social rights. The second element is that the complainant organisation has to present in which way the State’s reforms or actions that have been adopted have a negative impact in one or more of the provisions of the Charter. It is not the protection of individual

11

Group A is made up of eight states: Belgium, Bulgaria, Finland, France, Greece, Ireland, Italy, and Portugal. Group B consists of seven states: Croatia, Cyprus, the Czech Republic the Netherlands, Norway, Slovenia, and Sweden.

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rights which is at stake and are threatened by the State action, but the compatibility of the State’s policies and measures with the rights of the society as a whole. The third element concerns the fact that complaints have no specific time limit: they can be lodged in the moment in which the specific policy or legislative actions have been adopted or once problems in practice have arisen and demonstrate the policy’s or law’s negative implications in the effectiveness of social rights.

2.3

The Immediacy of the Dialogue: The Simplicity of the Admissibility Phase

The collective approach goes hand in hand with the absence of the requirement to exhaust domestic remedies before bringing a complaint before the Committee. Indeed, as stated before, complaints can be lodged at any moment against any specific national situation. If the State reacts positively to the complaint and enters into dialogue with the complainant organisation, engaging in a process for changing its law or practice, the Committee will take its decision in light of the situation as it is on the date of the decision and not as it was in the moment in which the complaint was introduced.12 According to Article 4 of the Protocol, the complaint shall be lodged in writing, relate to a provision of the Charter accepted by the Contracting Party concerned and indicate in what respect the latter has not ensured the satisfactory application of this provision. The Committee’s Rules of Procedure set out that a complaint must be signed by a person authorised to represent that complainant organisation. In general, the Committee has taken a generous approach to admissibility. In addition to the possibility of rejecting a complaint on because an authorising signature is missing or because the complaint does not relate to a provision of the Charter which has been accepted by the State, the Committee has also assessed during the admissibility phase if the complaint was sufficiently grounded and the alleged violations of the Charter were clearly explained, although it has evaluated this the issue of the sufficient reasoning has also been used in a cautious manner. Indeed, the Committee could not introduce a threshold that is as high as that of the European Court of Human Rights in its admissibility phase and declare a complaint manifestly ill-founded, given that the requirements of prior exhaustion of domestic remedies and victim status do not exist. It is therefore sufficient if the complaint explains how the specific situation violates one of the provisions of the Charter. However, the Committee has rejected cases in which the complainant organisation has not been precise enough or has not indicated its claims in a clear manner.13

12 The average duration of the admissibility stage is 6 months, while the average duration of the phase on the merits is around 30 months. 13 See, among others, Collective Complaint No. 28/2004, para. 8.

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With a simplified procedure and a flexible approach, the basis for a horizontal dialogue within the State has been created under the auspices of the European Committee of Social Rights which, once it declares the complaint admissible, proceeds to the merits stage. Although a hearing is possible, almost all complaints are dealt with in writing and, in the end, a decision is adopted. The decision is not published immediately but is instead transmitted to the Committee of Ministers. The rationale for this delay is to give even more time to the State to comply or change the legislation or practice. The complainant and the defendant state are not permitted to publish the decision at this stage. The decision is published, and communicated to the Council of Europe’s Parliamentary Assembly, only after the Committee of Ministers has acted, or, if not, after 4 months.14 The decisions taken by the Committee within the collective complaints mechanism also show that they are well-adapted to be used by national institutions and bodies, mainly judges and courts in the context of specific individual cases, thereby promoting a control of compatibility at the domestic level between the legislation or practices and the Charter. This will be demonstrated though the presentation of specific cases, which have put the accent on the direct impact of the Charter and the Committee’s case law on private actors. Indeed, the cases do not only identify State obligations, but also the obligations of private actors, such as corporations, undertakings or private companies providing services. Social actors such as trade unions and INGOs can therefore launch an international mechanism, which sets the basis for a horizontal dialogue within the State and contributes to further identifying direct obligations for non-state actors stemming from the Charter, therefore implying positive obligations for States.

3 A Rich Case Law Illustrating the Construction of Direct Obligations for Private Actors The Committee’s case law in the last 20 years has become a very rich and complex field. However, for the purposes of this contribution, only those cases will be presented in which in which the Committee has identified that the Charter imposes direct obligations for private actors, particularly enterprises and undertakings and which have triggered and can trigger new instances of horizontal dialogue. The areas chosen are cases in relation to environmental rights; cases concerning abortion; cases

14

Under Article 9 of the Protocol, the Committee of Ministers receives the ECSR’s report on each complaint and is expected to adopt a resolution on the complaint. Article 9 stipulates that if the ECSR has found an unsatisfactory application of the ESC, the Committee of Ministers ‘shall adopt, by a majority of two-thirds of those voting, a recommendation addressed to the Contracting Party concerned.’ [emphasis added]. In practice, despite the fact that most of the complaints to reach the merits stage have led to at least some findings of non-compliance, the Committee of Ministers has adopted very few recommendations for ensuring implementation.

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in the field of economic crisis and labour reform and finally, cases in the field of the fight against gender pay gap.

3.1

Cases Concerning the Protection of a Healthy Environment: Positive Obligations and Private Actors

The Committee of Social Rights has developed its case law to include the recognition of the “right to a healthy environment”, embodied in the right to health under Article 11 of the Charter. The cases adopted in this respect against Greece, and particularly the collective complaint Marangopolous Foundation v Greece,15 is nevertheless a very interesting decision in terms of identifying the State’s positive obligations and how to proceed in cases when the violation of the Charter provisions comes from a private actor. In this case, the Committee found that Greece had violated the right to health by failing to fight air pollution, relying on a wide range of internationally recognised environmental standards.16 The context of the case was as follows: Greece is the second-largest lignite producer in the European Union and the fifth-largest in the world.17 The complainant organisation submitted that lignite mining causes air pollution in the form of fine particles and gas emissions. Greece however alleged in its defence that the mining operations were undertaken by a private entity and therefore, following classic rules of iternational responsibility, that the acts of that private company could not be imputable to the State. The key issue at stake was therefore how to consider the State’s obligations and the private company obligations. The Committee stated from the outset that, as to whether the matters complained of could be imputed to the State, the private entity (Public Power Corporation, referred to as DEH) was, until its partial privatisation in 2001, solely answerable to the Greek state. After that date, it had private law status. However, as a signatory to the Charter, Greece is required to ensure compliance with its undertakings, irrespective of the legal status of the economic agents whose conduct is at issue. Moreover, DEH's activities were clearly subject to the general legislation on the environment and under Act 2773/1999 on the liberalisation of the Greek electricity market, the Greek Government was required to supervise those activities. Finally, the State still held a majority of the DEH's shares (51.12% in 2005). The Committee addressed next the second objection submitted by the State, relating to the lack of the Committee’s jurisdiction rationae temporis. The Protocol

15

European Committee of Social Rights, Marangopoulos Foundation for Human Rights (MFHR) v. Greece, Collective Complaint No. 30/2005, 2006. 16 Such as the United Nations Framework Convention on Climate Change, the Kyoto Protocol, as well as provisions and directives of the European Union. 17 Trilsch (2009), pp. 529–538.

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establishing the collective complaints mechanism only came into force in Greece in 1998. The Committee noted that the origin of several of the complaints was longterm exposure to air pollution, partly preceding 1998, whose effects had either been felt continuously since lignite mining began in the regions concerned or may only be felt several years after exposure. The Committee considered that under these circumstances, it had to assume that there was a continuous fact happening. Noting Article 14 of the Draft Articles prepared by the International Law Commission on responsibility of states for internationally wrongful acts,18 it resulted that “the breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with what is required by that obligation”.19 The Committee, applying an interpretation grounded in international Law, considered the notion of a “continuing violation” and found that there may be a breach of the obligation to prevent damage arising from air pollution for as long as the pollution continues. The breach may even be progressively compounded if sufficient measures are not taken to put an end to it, even if originally this pollution is coming from a private actor. Particularly, the Committee recalled that: (. . .) “Act 2947/2001 gives responsibility for monitoring private and public operators' compliance with environmental legislation to a special environmental inspectorate, which according to the Marangopulos Foundation has only been operational since 2004, something the Government does not deny, and that of the 78 posts in the inspectorate, there are only 28 in the general section and southern Greece and four in northern Greece. (. . .) Information supplied by the complainant organisation shows that when air quality measurements reveal that emission limit values have been exceeded, as in the case of the Aghios Dimitrios plant, the penalties imposed in the form of fines are limited and have little deterrent effect. The Government confines itself to stating that the financial penalties satisfy the proportionality principle and fails to show that when checks carried out reveal violations this leads to effective measures with a direct impact on emission levels.”20

In the end, and on the basis of the positive obligations of the State in respect of the private corporation DEH, the Committee found that Greece had failed to show that the checks concerned were sufficiently effective and that penalties adopted were deterrent enough to avoid pollution.21

18

Official records of the General Assembly of the United Nations, 56th session, Supplement No. 10, A/56/10. 19 Collective Complaint, Marangopoulos Foundation for Human Rights (MFHR) v. Greece, op. cit., §193. 20 Ibid, §§ 206 and 209. 21 Ibid, § 215.

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The Protection of Health and the Obligations Identified for Private Services in the Case of Abortion

In the decision International Planned Parenthood Federation—European Network (IPPF EN) v. Italy,22 the issue concerned the high number of objecting medical practitioners and other health personnel electing to be conscientious objectors, which rendered the possibility of enacting the “Norms on the social protection of motherhood and the voluntary termination of pregnancy” (“Act No. 194/1978”) allowing for the termination of pregnancy, very difficult to implement. This was considered a breach of the right to health guaranteed by Article 11 of the Charter. The issue was therefore that as the State had a legislative framework allowing abortion in some situations, it was prevented from structuring its legal framework in a way which would limit real possibilities to obtain an abortion. In particular, the State is under a positive obligation to create a procedural framework enabling a pregnant woman to effectively exercise her right of access to lawful abortion.23 As part of these positive obligations that arise by virtue of this fundamental right, States must therefore provide appropriate and timely health care on a non-discriminatory basis, including services relating to sexual and reproductive health. As a result, a health care system which does not provide for the specific health needs of women will not be in conformity with Article 11, or with Article E of the Charter taken together with Article 11. In this particular case, the Committee had to rule on how the manner in which sexual and reproductive health care services were organised in Italy and their impact on the enjoyment of the right to protection of health provided for under Article 11 of the Charter, not on whether individuals enjoy a right to obtain an abortion or whether individuals should benefit from a right to conscientious objection. In this respect and as concerns the horizontal effect of the Charter, the Committee assessed that the conclusion of agreements between public hospitals and private health providers to deliver abortion services was not as such contrary to the Charter. However, there would be a violation if this type of agreements had a negative impact upon the protection of the right to health. The problem in this case concerned the identification of direct obligations to private operators, aimed at obtaining a declaration that the State’s positive obligations has been violated. The complaint highlighted that, in essence, women, particularly those who were disadvantaged because of their territorial location or lack of economic means, were denied effective access to abortion services. Indeed, even 22 European Committee of Social Rights, Collective Complaint No. 87/2012, decision of 10 September 2013. 23 In line with the European Court of Human Rights case law, see P. and S. v. Poland, Application No. 57375/08, judgment of 30 October 2012, Tysiąc v. Poland, § 116-124, R.R. v. Poland, § 200). The legal framework devised for the purposes of the determination of the conditions for lawful abortion should be “shaped in a coherent manner which allows the different legitimate interests involved to be taken into account adequately and in accordance with the obligations deriving from the Convention” (A, B and C v. Ireland [GC], Application no. 25579/05, judgment of 16 December 2010, § 249)”.

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though abortion was a service whose cost was fully covered by the “National Health Service”, women were denied access to abortion facilities due to deficiencies in service provision caused by health personnel choosing to exercise their right of conscientious objection; this constitutes discrimination. Only those women with the means to cover the substantial economic costs that would arise if they would be forced to travel to another region or abroad could seek treatment, but the others would not benefit from it in spite of being a medical treatment prescribed in the legislation.

3.3

Economic Crisis and Reinforcement of Dialogue Between International and National Actors

The case of the 2008 economic crisis and the Greek austerity measures have been the object of many studies.24 Following collective complaints No. 65/2011 and 66/2011, lodged by Greek trade unions, the flexibilisation measures, which further contributed to rendering the labour market more precarious, were assessed and several violations of the European Social Charter were found by the Committee (and particularly, of Articles 4§1, 7§7, 10§2, 12§3 of the Charter). Greek legislation passed in 2010 was the object of the Committee’s scrutiny. Namely: the introduction of dismissal without notice or compensation of employees in an open-ended contract during an initial period of 12 months; the entitlement to annual holiday with pay, systematic arrangements for apprenticeships and training, as well as on social security coverage; and domestic legislation allowing employers to pay persons entering labour market, aged less than 25 years, a smaller percentage of the national minimum wage. The Committee stated that greater employment flexibility to reduce unemployment and encourage employers to take on staff should not result in depriving broad categories of employees, particularly those who have not had a stable job for a long time, of their fundamental rights in the field of labour law, protecting them from arbitrary decisions by their employers or from economic fluctuations”.25 In the field of social security systems, the Committee adopted five other decisions on the merits against Greece.26 In its decisions, the Committee considered that even though restrictions of the benefits available in a national social security system do not necessarily breach the Charter, the cumulative effect of restrictions introduced as “austerity measures”, together with the procedures applied to put them into place, may amount to a violation of the right to social security. In conclusion, the Committee held that due to the cumulative effect of the restrictive measures and the procedures adopted to put them into place, certain regulations introduced by the Government of Greece from May 2010 onwards, modifying both public and private 24

See, among others, Mellado et al. (2014). See Salcedo Beltrán (2014), pp. 30, 33–45. 26 Collective Complaints No. 76, 77, 78, 79 and 80/2012, adopted on 7 December 2012. 25

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pension schemes, constituted a violation of Article 12§3 (right to social security) of the Charter. What is the relevance of these decisions for the discussion on dialogue between different actors, national and international? There are three essential aspects which can be inferred from these decisions: first, the respect for the law of other international bodies, such as in this case the EU, cannot Result in an exception from the state’s obligations to respect the Charter. In this regard, one of the arguments of the Greek Government had been that the rights had been restricted pursuant to other international obligations, namely those deriving from the loan arrangement with the EU institutions and imposed by the so-called Troika institutions: the European Commission and the European Central Bank together with the International Monetary Fund.27 The “dialogue” between national governments and other institutions needs to respect a certain standard of protection and follow the Charter. The second aspect is that there again appears to be a need for some space to balance, from a collective perspective, the factor of an economic crisis justifying the State’s policies and legislative measures against the basic protection of the society as a whole. The need to maintain “a sufficient level of protection for the benefit of the most vulnerable members of society” and to avoid large-scale pauperisation of the population was essential in the reasoning of the Committee, and helped pinpoint the obligation of the State to regulate a labour market in the hands of private actors. Finally, there is a reference to a horizontal dialogue within the State: precisely because of the collective aspect of the complaints’ mechanism, it results from the decisions that such procedure is not the most suited procedure to claim specific individual rights, such as property rights of pensioners or others, against the State.28 The role of domestic courts is also decisive, as they can apply a control of conventionality of domestic legislation and the Charter, in the light of both the Committee’s decisions as well as the European Court of Human Rights’ case law.29

3.4

Horizontal Dialogue in the Fight for Equality: The Case of the Equal Pay Complaints

The last group of cases brought before the Committee and selected as part of the discussion about the impact of the Charter on private actors are the complaints which 27

The same was found in Collective Complaint No. 111/2014, General Confederation of Labour v Greece, decision of 23 March 2017. 28 Individuals can in this case lodge complaints before the European Court of Human Rights, as happened regarding the privatisation or reduction of pensions, for example, in: Ichtigiaroglou v. Greece, application no.12045/06, judgment of 19 June 2008; Tsoukalas v. Greece, application no. 12286/08, judgment of 22 July 2010; Kokkinis v. Greece, application no. 45769/06, judgment of 6 November 2008, or Reveliotis v. Greece, application no. 48775/06, judgment of 4 December 2008. 29 See in this respect Jimena Quesada (2014).

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were lodged by the international NGO University Women Europe (UWE) and which concern the 15 States which have accepted the complaints procedure (Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Finland, France, Greece, Ireland, Italy, the Netherlands, Norway, Portugal, Slovenia and Sweden). The decisions became public on 29 June 2020. These decisions are quite unique in assessing the principle of equal pay between women and men from the Charter’s point of view. Moreover, it was the first time that the Committee had to decide on a transversal issue with decisions concerning all 15 States that are part of the collective complaints system. 14 out of the 15 States were found to be in violation of one or more of the obligations to guarantee the right to equal pay and the right to equal opportunities in the workplace.30 However, the European Committee also noted various positive developments. Measures taken by some States in recent years have led to measurable progress in reducing gender pay gaps, although progress is slow. The ECSR’s decisions clearly demonstrate that problems and practices, such as segregation in the labour market, lack of pay transparency, secrecy regarding pay levels, obstacles to access effective remedies and retaliatory dismissals, continue to exist and prevent full realisation of the equal pay principle. The decisions have put the spotlight on the historic inequalities affecting women in the labour market and has sent a clear message that they are not compatible with our quest for safeguarding human rights. The decisions follow a classic approach in that they identify obligations for the States, mainly: • To recognise the right to equal pay for equal work or work of equal value in their legislation; • To ensure access to effective remedies for victims of pay discrimination; • To ensure and guarantee pay transparency and enable pay comparisons; • To maintain effective equality bodies and relevant institutions in order to ensure equal pay in practice. Moreover, they also assess the obligation to adopt measures to promote pay equality, by collecting reliable and standardised data to measure and analyse the gender pay gap and by designing effective policies and measures aimed at reducing the gender pay gap on the basis of an analysis of the data collected. The States are under an obligation to show measurable progress in reducing the gender pay gap. The Committee found that in 2017, women’s gross hourly earnings were on average 16% below those of men in the European Union area.31 This gap had narrowed only slightly compared to 2010, where it stood at 17.1%. Even though certain States have managed to reduce the gender pay gap in a significant manner (such as Belgium,

30 Sweden was the only State which was not found in violation of its obligations under Articles 43 and 20 of the Charter in the context of this collective complaint (Collective Complaint No. 138), as all steps have been taken and thee have been an achievement of measurable progress in reducing gender pay gap. 31 Based on Eurostat data for all Member States including, United Kingdom.

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Cyprus and Sweden), in others the gender pay gap decreased very slowly or remained stagnant (as in the case of France, Norway and the Netherlands) while in others there has even been an increase in the gender pay gap over the last 10 years (notably in Slovenia and Bulgaria). As regards more particularly the issue of the vertical segregation, the decisions highlight the State’s positive obligations to tackle this phenomenon in the labour market, by means of, inter alia, promoting the advancement of women in decision-making positions within private companies. This obligation may entail introduction of binding legislative measures to ensure equal access to management boards of companies, including by setting specific quotas or targets in both the public and private sectors that will promote parity. Measures designed to promote equal opportunities for women and men in the labour market must include promoting an effective parity in the representation of women and men in decision-making positions, and this in both the public and private sectors. In this respect, the Committee identified a series of specific elements directly applicable to private actors, and therefore promoting another example of horizontal dialogue. First, it observed that pay transparency is instrumental in the effective application of the principle of equal pay in practice. States should therefore adopt the necessary measures in order to ensure pay transparency in practice, by entitling employees to request and receive information on pay levels, imposing on employers the production of disaggregated data by gender, promoting the concept of equal pay in collective agreements at the enterprise level, using gender-neutral job evaluation systems, etc. For the purposes of comparison of the work actually performed, the pay system must be based on criteria relevant for the performance of work. Systems of professional classification and promotion must rely on criteria that are gender neutral and do not result in indirect discrimination. This implies that employers must allow these comparisons and access to pay data. As regards the scope for job comparisons, it cannot be limited to the same enterprise. Domestic law must make provision for comparisons of pay and jobs to extend outside the company concerned where this is necessary for an appropriate comparison. The Committee views this as a crucial means of ensuring that job appraisal systems are effective under certain circumstances, particularly in companies where the workforce is largely, or even exclusively, female. For example, the pay comparison should be extended to the group of companies owned by the same person or controlled by a holding or a conglomerate, as well as to outsourced employees. Concerning dismissal as the consequence of a worker’s claim about equal pay, the employee should be able to file a complaint for unfair dismissal. In this case, the employer must reintegrate her/him in the same or a similar post. If this reinstatement is not possible, she/he has to pay compensation, which must be sufficient to compensate the worker and to deter the employer from future dismissals. Finally, the Committee further made reference to the impact of positive action within private companies to improve the proportion of women on management boards of the largest publicly listed companies. Indeed, it can be concluded on the basis of the decisions that countries which took positive action, either legally binding or not, managed to obtain measurable progress. However, in countries where no particular action (apart from self-regulation by companies) has been taken, the

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situation remained almost stagnant, and well below the standard of having at least 40% of women in management boards of companies when they are underrepresented.32

4 Conclusion The study of the European Committee’s case law, adopted within the framework of its collective complaints’ mechanism, show that the European Social Charter has been interpreted, through the decisions adopted, as a tool well-adapted to promote social dialogue. It allows a direct dialogue, as it establishes a direct contact between social stakeholders (the complainant organisations) and the State, with repercussions for private actors. It is also a mechanism which promotes an immediate dialogue, as it does not require exhaustion of domestic remedies and is truly collective in nature. Finally, it further enhances an effective dialogue, as it does not only imply a horizontal effect for corporations and undertakings, identifying the positive obligations that States have in ensuring respect for social rights in practice, but it also sets the standards for a multilevel dialogue. Social actors have the key to set the system in motion lodging a collective complaint, launching an exchange both at the national level, including among all authorities of the State and, particularly, the judges, as well as at the international level, facilitating the creation of common basic standards through the Committee’s consistent interpretation based on its decisions on the merits. The limits derive only from external factors to the mechanism: the fact that only 15 States have accepted it to this day and the lack of implementation and real follow-up, left in the hands of the Committee of Ministers of the Council of Europe.

References Churchill R, Khaliq U (2004) The collective complaints system of the European Social Charter: an effective mechanism for ensuring compliance with economic and social rights? Eur J Int Law 15 (3):417–424 Cullen H (2000) The collective complaints mechanism of the European social charter. Eur Law Rev 25:18 Harris D, Darcy J (2001) The European social charter. Transnational Publishers, New York Jimena Quesada L (2014) The European Social charter: the committee and the protection of social rights in times of economic crisis. In: Conference on Protecting economic and social rights in times of economic crisis: what role for the judges?, Ouro Preto, Brazil, 5–6 May 2014, accessible in https://venice.coe.int/webforms/documents/?pdf¼CDL-LA(2014)003-e

32

See Parliamentary Assembly Resolution of the Council of Europe, PACE Resolution 1715(2010) on the wage gap between women and men, adopted by the Standing Committee, acting on behalf of the Assembly, on 12 March 2010.

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Jimena Quesada L (2015) El Comité Europeo de Derechos Sociales: sinergias e impacto en el sistema internacional de Derechos Humanos y en los ordenamientos nacionales. Revista europea de derechos fundamentales 25:99–127 Lukas K (2020) The European Social Charter. In: Binder C, Piovesan F, Úbeda de Torres A, Hofbauer JA (eds) Research handbook on international law and social rights. Edward Elgar, Cheltenham, pp 127–141 Mellado CLA, Jimena Quesada L, Salcedo Beltrán C (2014) La jurisprudencia del Comité Europeo de Derechos Sociales frente a la crisis económica. Bomarzo, Albacete Pons M (2015) Modelo social europeo y protección de los derechos sociales fundamentales, Reus Salcedo Beltrán C (2014) Jurisprudencia del Comité Europeo de Derechos Sociales y período de prueba del Contrato de Apoyo a Emprendedores. La aplicación del control de convencionalidad en España Lex social: revista de los derechos sociales 4(2):29–56 Sudre F (1996) Le protocole additionel a' la Charte Sociale Européenne prévoyant un système de réclamations collectives. Revue générale de droit international public 96(3):715–739 Trilsch M (2009) European Committee of social rights: the right to a healthy environment. Int J Const Law 7(3):529–538. https://doi.org/10.1093/icon/mop019

Still on Hijab Bans in the Workplace. À propos de, Joseph H. H. Weiler, ‘Je suis Achbita!’ Pedro Cruz Villalón

1 Introduction Two years ago, commenting on a judgment delivered by the Court of Justice of the European Union (CJEU or Court of Justice),1 Joseph Weiler made a resounding statement regarding religious freedom. I am not sure his message has been echoed as much as it deserves.2 As shown below, the judgment was part of a pair or a couple,3 and as such has been repeatedly discussed.4 This twofold case law has given rise to a considerable number of comments and analyses5 since March 2017.6 In March 2020, the Fundación Coloquio Jurídico Europeo had scheduled a workshop on this case

1 Samira Achbita, Centrum voor gelichkheid van kansen en voor racismebestrijding and G4S Secure Solutions NV (C-157/15), 14 March 2017. ECLI:EU:C:2017:203. Request for a preliminary ruling from the Hof van Cassatie (Court of Cassation, Belgium). Opinion of Advocate General Juliane Kokott, 31 May 2016, ECLI:EU:C:2016:382. 2 Weiler (2017), pp. 989–1018. 3 Along with Asma Bougnaoui, Association de défense des droits de l’Homme (ADDH) and Micropole SA (C-188/15), 14 March 2017. ECLI:EU:C:2017:204. Request for a preliminary ruling from the Cour de cassation (Court of Cassation, France). Opinion of Advocate General Eleanor Sharpston, 13 July 2016, ECLI:EU:C: 2016:553. 4 See, for instance: Cloots (2018), Soldevilla Fragoso (2017), Giles (2017), Hennette-Vauchez (2017), Solomon (2017), Spaventa (2017) and Wagner(2018). 5 See fn. 4 above. 6 And even before that, in Hennette-Vauchez and Wolmark (2016) already discussed the Opinion of Advocate General Juliane Kokott hal-univ-paris10.archives-ouvertes.fr.

P. C. Villalón (*) School of Law, Universidad Autónoma de Madrid, Madrid, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Izquierdo-Sans et al. (eds.), Fundamental Rights Challenges, https://doi.org/10.1007/978-3-030-72798-7_7

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law having Weiler himself as a keynote speaker.7 The following considerations depart from this so far frustrated workshop. In a nutshell: these paired cases involve two Muslim female employees who, under slightly different circumstances, were dismissed on the sole ground that they disregarded their employers’ instruction to give up wearing their hijab or Islamic headscarf during working hours. Both cases came almost simultaneously to the CJEU by way of preliminary reference, where the relevant domestic courts asked the Court of Justice about a couple of provisions of Directive 2000/78 on equal treatment in employment and occupation.8 Whereas the CJEU’s decision in Achbita spontaneously legitimized the dismissal, the Court’s ruling in Bougnaoui found the dismissal unlawful.9 It is rather uncommon for a scholarly commentary on a judgment to start with the first person of the singular.10 Indeed, it reads ‘Je suis Achbita!’, with an exclamation mark, somehow resembling Émile Zola’s denouncement in 1898: ‘J’accuse!’.11 Zola however did not cry out that he was Dreyfus; he did not say ‘Je suis Dreyfus!’. Through this critical claim, Weiler identifies himself with Muslim worker Samira Achbita. To this effect, he invokes an imaginary and much closer proxy character: Chaya Cohen ( born Levi), a Jewish woman whose chance of facing the same situation would be anything but hypothetical. This identity-based approach is essential to understand the ultimate purpose of Weiler’s work. Let us disregard occasional particularly harsh remark on the CJEU’s job.12 Rather, we will focus on what really matters. Weiler’s message can be expressed in simple terms: in our societies, those within the European Union, religion is not playing the role it should. Indeed, what we observe is “a largely secular society that has lost its knowledge, sensibility and even patience with religion.”13 If the CJEU’s decision in Achbita is able to underpin

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This workshop was suspended in extremis because of the COVID-19 outbreak in Madrid. Workshop no. 83 of the Fundación Coloquio Jurídico Europeo, “El Tribunal de Justicia UE sobre el pañuelo islámico en el lugar de trabajo. A propósito de los casos Achbita y Bougnaoui”; speakers: Joseph H. H. Weiler and Pedro Cruz Villalón; moderator of the discussion: Marián Ahumada; scheduled for 12 March 2020. 8 Council Directive 2000/78/EC, of 27 November 2000, establishing a general framework for equal treatment in employment and occupation. 9 See the CJEU’s DecNat database (http://www.aca-europe.eu/index.php/fr/dec-nat-fr) for national court decisions arising from judgments delivered as a result of requests for preliminary rulings. For Achbita, see Hof van Cassatie, arrest van 09/10/2017, Samira Achbita et Centrum voor gelijkheid van kansen en voor racismebestrijding / G4S Secure Solutions NV, at: http://jure.juridat.just.fgov. be/pdfapp/download_blob?idpdf¼N-20171009-1. For Bougnaoui, https://www.courdecassation.fr/ jurisprudence_2/chambre_sociale_576/2484_22_38073.html, explanatory note at: https://www. courdecassation.fr/jurisprudence_2/notes_explicatives_7002/relative_arret_37989.html. 10 Although not quite the only case: S Hennette-Vauchez (2019). 11 “J’accuse! Lettre au Président de la République,” L’Aurore, 13 January. 12 “I find it hard to understand how the hands of whoever drafted and signed the judgment in Achbita did not tremble when writing these words: (. . .).” (See fn. 2, p. 15). 13 See fn.2, p. 8.

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such a thesis, it will be easier to understand the importance placed by Weiler on an apparently simple judgment from a formal standpoint.

2 Keywords: A Pair or a Binomial Before getting into the subject, it is worth outlining some categories that intermingle within this matter taking the form of pairs or binomials. First, as noted above and in line with Court of Justice’s previous decisions,14 this twofold case law is founded on a pair of cases (Achbita and Bougnaoui). Although they are not joined cases,15 it is the closest thing there is to it. They were both decided by the Grand Chamber, with the same composition and the same judge-rapporteur. Also, case deliberations apparently took place in parallel and the rulings were delivered on the same date. However, note that the cases were not assigned to the same advocate general, but rather, willingly, to two different ones. This is clearly reflected in the different tone of the opinions, as highlighted by Weiler. It was possibly also a deliberate decision to assign both cases to women. By upholding the prohibition on wearing an Islamic headscarf in one of the cases and disallowing it on the other, the CJEU purposefully sends out a clear message regarding the importance of the circumstances in this kind of cases: the same requirement can be legitimate under certain circumstances yet illegitimate given a different context. Above all, as often occurs with these pairings, the purpose of the Court of Justice is to produce case law where two cases provide real-time support to each other. Concerning the substance of this case law, note a first pair or binomial regarding the clash between (1) the prohibition of discrimination in employment and occupation; and (2) several substantive fundamental rights that can be undermined due to a discriminatory treatment or on the occasion thereof. So for instance, the prohibition of age discrimination is self-exhausting, i.e., it does not affect any other fundamental rights.16 However, a different issue altogether is that religious freedom be affected (along with other fundamental rights), as in the case at hand. Accordingly, this matter often gives rise to an amalgam of the legal reasoning related to the prohibition of discrimination, i.e., the “relational dimension,” and the arguments regarding fundamental rights restrictions, occasionally stemming from other fundamental right holders (horizontal effect), i.e., the “substantive dimension.” In our case, the prohibition of discrimination first and simultaneously affects the exercise of religious freedom. For its part, and excluding the case of employment in

14 Typically, in the well-known rulings dated 26 February 2013: Åkerberg (C-617/19) and Melloni (C-399/11). 15 As opposed to a well-known example from Digital Rights Ireland and Seitlinger, related to two requests for preliminary rulings: one from the High Court of Ireland, and the other from the Verfassungsgerichtshof (Austrian Constitutional Court) (C-293/12). 16 Reasonably leaving aside the protection of the elderly.

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the public sector, the employers’ obligation not to give unequal treatment to workers is twofold: on the one hand, the principle of non-discrimination is qualified by the horizontal effect of fundamental rights. On the other, private employers are also entitled to their own freedom to conduct a business (Article 16 of the Charter of Fundamental Rights of the European Union (CFREU)), thus requiring to strike a balance between the conflicting fundamental rights. There is still an additional fundamental right to be mentioned in this regard. Perhaps because it is too obvious, this case law is oblivious to the right to work. According to Article 15 CFREU, “everyone” has the right to engage in work.17 There is no doubt that the prohibition at stake equally affects religious freedom and the right to work. In these cases, employers actually force certain employees to choose between adhering to their religion or being dismissed. This is implicitly Weiler’s point: You need a solid foundation in order to impose such a tough choice to an employee. Let us focus on the relational dimension of this case law, which is the main dimension concerned. Within this dimension, there is another major pair: direct discrimination and indirect discrimination.18 Put simply, direct discrimination arises immediately from someone being treated differently, either (1) because such unequal treatment is expressly contained in the written or unwritten policy rules of the enterprise; or (2) because someone is actually being treated differently than someone else there being no pre-existing provision prohibiting such treatment. Conversely, regarding indirect discrimination, there is always a provision or criterion with a general scope in the enterprise whose expression or wording lacks an element or distinction related to the treatment itself; in other words, these provisions or criteria are, as the Directive says, “apparently neutral” (Art. 2(2) (b)), but depending on the context to which the rule is meant to apply, there may be discriminatory consequences.19 This means that in this second case the circumstances or the context where the rule applies are decisive when dealing with indirect discrimination. Selfevidently, since the legal or normative context is concerned (Normbereich), it goes beyond the circumstances of the specific case at hand. The context can be traced back to a previous moment, shaped by a set of relatively stable characteristics that can hardly be considered purely circumstantial.

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Nevertheless, see paragraph 71 of Advocate General Sharpston in Bougnaoui, referring to the Opinion of Advocate General Poiares Maduro in Coleman (C-303/2006). 18 “Article 2. For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1 (...): (a) direct discrimination shall be taken to occur where one person is treated less favorably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1; (b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons (. . .).” 19 Religion being the first consideration mentioned in the Directive.

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Additionally, the Directive is clearly more lenient towards indirect discrimination than towards direct discrimination. The latter is only permitted given a “genuine and determining occupational requirement” and insofar as “the objective is legitimate and the requirement is proportionate” (Art. 4(1)20). In other words, the occupational activity, due to its very nature or characteristics, requires specific conditions that are certainly not within the reach of all presumptive candidates to the work position, thus having an inevitable discriminatory effect. Conversely, indirect discrimination, which arises from the context where the employer’s provision or criterion applies, simply requires in order to be legitimate that any disadvantage resulting from this requirement be “objectively justified by a legitimate aim” and that the means of achieving the relevant aim be “appropriate and necessary,”.21 As for indirect discrimination, there are no requirements inherent to the occupational activity, but a rather vague criterion, such as what may be generally beneficial to the employer. Interestingly, both of these cases depart from tremendously easy questions given the circumstances; they are almost textbook examples. Asma Bougnaoui was hired in July 2008 as a design engineer. At the time, according to the company, she was warned that she “would not be able to wear the veil [headscarf] in all circumstances”. A year later, the company asked her to refrain from wearing the hijab when providing services to a specific customer that had so required. Asma Bougnaoui was dismissed solely because she refused to follow this singular instruction. The question referred by the domestic court relates to whether the said wish of the company’s customer can constitute a genuine and determining occupational requirement within the meaning of the Directive, where an affirmative response would entail that the dismissal be considered legitimate.22 So worded, the answer to the question was simple. As aptly stated in paragraph 40 of the short ruling, a requirement that is objectively dictated by the nature of the occupational activity at stake greatly differs from such a subjective consideration like the employer’s willingness

20 Article 4. (...) Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. 21 “(. . .) unless: b) 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)). 22 The question was worded as follows: “Must Article 4(1) of Directive 2000/78 be interpreted as meaning that the wish of a customer of an information technology consulting company no longer to have the information technology services of that company provided by an employee, a design engineer, wearing an Islamic headscarf, is a genuine and determining occupational requirement, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out?”

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to take account of the particular wishes of the customer. Consequently, the answer was a plain and simple “no.”23 The question in Achbita was equally simple, also having regard to the circumstances. Here, the existence of an initially non written rule banning the use of visible signs of religious or political ideology was undisputed. Once more, the referring court simply asked the Court of Justice to confirm that such a rule does not amount to direct discrimination.24 Again, the CJEU answers affirmatively in plain and simple terms.25 The difference with Bougnaoui lies in the fact that this affirmative response almost forces the Court of Justice to further complete the answer by inquiring about whether the said rule would be legitimate from the perspective of an indirect discrimination. Weiler’s commentary, and thus my analysis from now on,26 focuses on this latter part of Achbita’s ruling.27 I will first discuss the two sets of conflicting interests, particularly those of Ms. Achbita and the company, and I will subsequently examine the categories applied to decide the case.

3 It Is the Religion, Stupid! Regarding the religious significance of the issue at hand, there is a visible contrast between the Achbita ruling and Weiler’s analysis thereof. Whereas the CJEU does not consider itself particularly competent to enter into religious considerations, and it simply states what religious freedom actually covers, Weiler is willing to discuss religion; in fact, it may be said that he speaks from the perspective of a religious person or a man of faith.28 Here comes his first complaint, freely worded “You do not know what this is all really about, you do not know what wearing the hijab means to an observant Muslim.” This is essential, since, as highlighted by Advocate General Kokott, religious freedom belongs to a short list of fundamental rights,29 requiring the right holders of religious freedom to cooperate when determining its content on a case-by-case basis. Obviously, Weiler is ready to accept that not

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The CJEU had previously declared that it lacked sufficient data to determine that there was a prior rule or internal practice that could amount to indirect discrimination, which should in any case be determined by domestic courts. 24 The question simply reads: “Should Article 2(2)(a) of Directive 2000/78 be interpreted as meaning that the prohibition on wearing, as a female Muslim, a headscarf at the workplace does not constitute direct discrimination where the employer’s rule prohibits all employees from wearing outward signs of political, philosophical and religious beliefs at the workplace?” 25 Paragraphs 30 to 32 of the judgment. 26 It is worth highlighting here how simple and short the rulings are in contrast with the complexity and sophistication of the respective Opinions issued by the advocates general. 27 Paragraphs 33 to 44. 28 “Samira Achbita, you are my sister” (See fn. 2, p. 15). 29 Paragraph 34.

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everything goes, in the sense that not anything declared as a religious belief by an individual is worthy of protection, but there should be no doubt that public authorities have no choice but to allow right holders to broadly define the scope of religious freedom in the circumstances of the case.30 This is how Weiler manages to send two messages. First, he tells the Court of Justice that it made a huge mistake by considering the use of an Islamic headscarf as a mere wish on the part of Ms. Achbita to make visible her religious identity, where in fact she was obeying a compulsory religious mandate. This is regardless that, even if it was solely a public expression of one’s own religious beliefs, this would still fall within the scope of religious freedom,31 but this is not the case. In the case at hand the hijab is worn to comply with a religious mandate, which is completely different. Weiler carefully discusses and exemplifies the difference between externally manifesting one’s faith (whether as a Muslim or a Jew) and complying with “divinely ordained” rules (wearing the Islamic headscarf or veil in this case). The CJEU either ignores this distinction or, at best, has been unable to get into it. According to Weiler, this has major implications: instead of weighing the cost of removing the hijab as a violation of a religious rule, the CJEU weighs what is wrongly supposed to be Samira Achbita’s desire to externally manifest that she is an observant Muslim.32 Accordingly, her chances of successfully objecting to the employer’s requirement are “fatally” reduced.33 In sum, review of the employer’s behavior should have been much stricter than it was, which would have also impacted the sense of the CJEU’s response. If I have understood correctly, Weiler complains about the absence, both in the ruling itself and in the foregoing opinion of the Advocate General, of any acknowledgment whatsoever of a “nomos” different from all kind of rulings dictated by earthly authorities. Within the scope of religious freedom, which encompasses a set of different behaviors, there should be some sort of core content, identified in this nomos, worthy of protection. Weiler takes nevertheless another step ahead and sends his second message. Within revealed religions, he provides a contrast between what he calls “ritualistic religions” (i.e., Judaism and Islam), on the one hand, and Christianity, on the other, where “the ritual [has been rendered] useless.” Whereas the first two religions give a prominent role to a myriad of rituals in religious practice, including the use of a hijab, the “Christian Revolution,” in Weiler’s words, has abjured the ritualistic dimension of faith in order to place “the interior of the human subject”34 at the core of religion. There is a clear consequence: a provision preventing the external manifestation of faith, or visible signs thereof, would undermine ritualistic religions

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Also, according to Advocate General Sharpston in Bougnaoui, wearing the hijab is part of the external manifestation of religion (paragraph 87). 31 Eweida and Others v. The United Kingdom, Judgment of 15 January 2013. 32 See an expressive view in paragraph 114 of the Opinion of Advocate General Kokott. 33 See fn. 2, p. 6. 34 Ibid., p. 8.

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in a much higher degree than ‘de-ritualized’ religions like Christianity actually do. This would equate to acknowledging in a company’s provision or internal standard like the one at hand a specific form of indirect discrimination, resulting from the contrast between some religions and others, which should be tested under the Directive. I do not pretend to be an authority in the matter, but Weiler’s stance in this point appears questionable in its generality. His reasoning seems to suggest that the various ways of externally practicing Christianity are for the most part personal initiatives alien to religious practice, similar to what it means for a religious (not cultural) Jew to sport the Star of David.35 In a well-known and cited example36 of European Court of Human Rights (ECtHR) case law, Nadia Eweida insists on manifesting her Christian faith by visibly wearing a cross.37 This gesture, according to the said approach, would merely reflect an additional feature of her personality, regardless that the gesture itself may fall within the scope of religious freedom. I would nevertheless venture that public confessions or public displays of faith have been an essential feature of Christian identity from the very beginning.38 Be it as it may, from the outside, nobody can tell from the outside whether one of such gestures and manifestations do have or not a crucial meaning for the person involved. From this point, we discuss the CJEU’s approach, i.e., we examine the rule applied to Ms. Achbita from the perspective of indirect discrimination. However, interestingly enough, the Court of Justice directly assesses if there are reasons that would render this discrimination admissible (a legitimate aim and appropriate and necessary means), disregarding the actual premise of it all: whether there is an indirect discrimination on the grounds of religion or belief. Instead, the CJEU simply states that it cannot be ruled out that the national court might conclude that there is such an indirect discrimination.39 Nonetheless, this should have been the first question to be answered by the Court of Justice. Would the CJEU accept Weiler’s approach that discrimination revolves around the contrast between one revealed religion and the others? It is impossible to know for sure, but I venture to suggest the following.

“. . .compromising or limiting the right of communicating one’s faith to others through the wearing of some sign is not quite as serious as preventing that same person from actually practicing and living that faith or forcing them to violate it” (See fn. 2, p.6), but it would be necessary to check with the competent religious authorities every time. 36 See fn. 36. 37 See fn. 31. 38 “Whoever acknowledges me before others, I will also acknowledge before my Father in heaven” (Matthew, 10:32). 39 “In the present case, it is not inconceivable that the referring court might conclude that the internal rule at issue in the main proceedings introduces a difference of treatment that is indirectly based on religion or belief, for the purposes of Article 2(2)(b) of Directive 2000/78, if it is established— which it is for the referring court to ascertain—that the apparently neutral obligation it encompasses results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage” (paragraph 34). 35

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Regarding discrimination on the grounds of religion, I would argue that indirect discrimination is not based on the contrast between one revealed religion and the others. Rather, I am of the view that indirect discrimination revolves around the consideration that, without getting into anyone’s beliefs, there are workers for which the dress policy in question is too costly or burdensome in some cases whereas it barely has an impact on others. The first can be the case of practicing religious persons, although we should not necessarily rule out persons with motivations other than religion. In my opinion, there is no doubt that religious motives are clearly identifiable within this context. One could always argue that almost the same applies to a trivial matter like a smoking ban, which is more burdensome for some workers than for others, but this is a completely different issue: the disputed rule in this case compromises a fundamental right, not purely personal habits. All in all, perhaps the key is to downplay the relational approach to this issue, i.e., the non-discrimination based approach (the Directive’s approach, as a matter of principle), otherwise focusing on the substantive right at stake, with no contrast or comparison whatsoever. Ultimately, we could tackle the problem by emphasizing the scope of religious freedom’s horizontal effect eventually striking a fair balance between religious freedom and other conflicting rights and freedoms. Indeed, when discussing this issue, we constantly go back and forth from the relational to the substantive approach, which prevents focusing on what we discuss each time. In conclusion, although it is required by the structure of preliminary rulings, the Directive decisively and excessively restrains the discussion, and it hinders a direct analysis based on substantive fundamental rights. Let us examine the employer’s perspective.

4 It Is the Economy, Stupid! As noted above, a given situation qualifying as an indirect discrimination by an employer can be deemed legally admissible based on the interplay between aims and means. This section only addresses the aims or, in the words of the Directive, the existence of a “legitimate aim” that can be “objectively justified.” Considering that failing to comply with the disputed rule can entail the worker’s dismissal, the rule should leave no doubt about the legitimacy of the aim pursued. Put differently, not any beneficial outcome for the company arising from the discriminatory treatment can legitimize such a burdensome measure as a dismissal. This required underlying legitimacy gives rise to an essential category in order to decide the case: employers seek an image and a work environment characterized by ideological neutrality. In this context, ideological neutrality means that workers must give up wearing any clothing or attire showing in any way that they adhere to a particular religion or belief. Furthermore, and this is important, ideological neutrality does not impose any specific obligation on employers to abide by the dictates of their conscience; ideological neutrality is an option for the employer. In fact, in the case at hand, the employer freely decided that its company be ideologically neutral,

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meaning what we explained above. It is also noteworthy that the employer makes this decision because it benefits the company, at least in the employer’s opinion. This business or economic rationale of the employer’s decision allows the CJEU to connect ideological neutrality as a free option of the enterprise with a fundamental right: the freedom to conduct a business enshrined in Article 16 CFREU. Therefore, the role of the freedom to conduct a business is twofold. On the one hand, it reinforces the legitimacy of the aim pursued, which is ultimately a business benefit. On the other, it turns the conflict into a clash between fundamental rights making it necessary to strike a fair balance between both rights. The point is that, when it comes to legitimizing a possible discrimination on the grounds of religion or belief, the Court of Justice accepts and even embraces this ideological neutrality at the inevitable cost of religious freedom.40 Weiler questions neutrality or, better said, a dimension thereof. Indeed, in his view neutrality can also be achieved by granting to all workers the right to manifest their religious allegiance through their attire. He uses the case of the dress policies in universities as an example, a field arguably far away from employment issues. Having examined how the CJEU assesses if there is an objectively justified legitimate aim, we should now discuss the ancillary conditions required to deem the rule admissible, i.e., the conditions necessary to find that the rule does not qualify as an indirect discrimination. Explicitly, the Directive only requires that the means be appropriate and necessary (and, implicitly, that they be proportionate as well41). It is worth discussing all of this below.

5 The Ritual of Proportionality Weiler denounces the fact that Achbita has been decided dismissing the third step of the proportionality test, the so-called strict proportionality or proportionality stricto sensu, once the two previous steps, i.e., the appropriateness and the necessity assessments had been fulfilled.42 It suffices to say that, after examining the Court’s assessment of the aimed pursued (ideological neutrality), the Court of Justice was not particularly concerned whether by the appropriateness or the necessity of the rule. The hijab ban in the workplace is, almost by definition, appropriate or suitable to achieve the aim pursued, as well as it is also necessary to achieve such aim and that for the same reasons and almost by definition too. Regarding appropriateness, the ban on wearing visible signs of religious beliefs by workers is perfectly suitable “An employer’s wish to project an image of neutrality towards customers relates to the freedom to conduct a business that is recognised in Article 16 of the Charter and is, in principle, legitimate, notably where the employer involves in its pursuit of that aim only those workers who are required to come into contact with the employer’s customers” (paragraph 38). 41 The Directive only mentions proportionality regarding direct discrimination (Article 4). Obviously this does not allow potential indirect discriminations to bypass a proportionality assessment. 42 Paragraph 43. 40

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to achieve ideological neutrality. As for necessity, the CJEU’s reasoning just mentions that it must be verified if the worker can be transferred to another position not involving any visual contact with customers provided that this does not place an additional burden on the company. Therefore, it is hard not to agree with Weiler: the Court easily tends to uphold the requirements and prerogatives of the freedom to conduct a business when in conflict with other substantive rights. In any event: what about the third step, the strict proportionality test? or, in other words, what about the cost-benefit balancing between the potential benefit for the company and any potential harm for the worker? Regardless of how we call it, “third step of the proportionality test” or otherwise, the point is that all of these questions are absolutely pertinent and legitimate. By leaving a blank space in his commentary, Weiler graphically shows how the Court deals with this third step of the proportionality analysis in Achbita: it does not. In fact, as pointed out by Weiler, the CJEU passes on to the national court the duty to perform this proportionality test: the Court of Justice delegates to the domestic court the task of performing a more comprehensive analysis of all the circumstances of the case. This is Weiler’s main complaint about the decision in Achbita. I wholly agree with Advocate General Kokott that the CJEU should not have the final say about the proportionality of any rule of this kind by way of a preliminary reference. She is totally right when she argues that the Luxembourg Court cannot give a valid response throughout the Union sufficiently taking into account all the circumstances of the case.43 However, I also agree with Weiler that the CJEU fell short in its duty to provide criteria and standards to guide the proportionality assessment. Advocate General Kokott provided a few elements that can be used to perform a proportionality test, but her starting point is actually the premise that Weiler questioned from the very beginning: the rule does not affect “religion per se” but rather the external manifestation thereof.44 Departing from this premise, the criteria and standards provided by the Opinion do not suffice to weigh the legitimacy of the disputed rule.45 And, as stated above, the judgment simply examines the possibility of transferring the worker to another position not involving any visual contact with customers. In my view, from the perspective of discrimination on the grounds of religion, the case of Samira Achbita deserved at any rate a more thorough response, but unequal treatment on the basis of religion or belief is not the only dimension present in the case at hand.

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Paragraph 99. Paragraph 114. 45 The size and conspicuousness of the religious symbol; the nature of the employee’s activity; the context in which she has to perform that activity, and the national identity of the Member State concerned (paragraph 141). 44

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6 Discrimination, Cubed In the final passages of her Opinion (par. 121) Advocate General Kokott includes the following remark, without in the case at hand any further consequence, but which in my view is of crucial importance::“(I)t is important to take into account, when striking a balance between the interests involved, whether differences of treatment on other grounds are also present. The fact, for example, that a ban imposed by the employer puts not only employees of a particular religion but also employees of a particular sex, color or ethnic background at a particular disadvantage (Article 2(2) (b) of Directive 2000/78) might indicate that that ban is disproportionate.” The Advocate General points here to an aggregation of possibly concurrent indirect discriminations. If this were the case, so it is implied, the absence of proportionality in the employer’s conduct would be clear. Unfortunately, she rules out this possibility right away, although the Achbita case could have provided an excellent example of accumulated discriminatory treatments. Let us contemplate them one by one. The Advocate General begins by noting that the unequal treatment could affect workers of a particular religion. This is an interesting stance, particularly considering that it is the basis of Weiler’s approach: unequal treatment of some religions with respect to others, in his view from the said ritualistic perspective. The point here is that religious discrimination in general could be the first one present. This is not really disputed, without prejudice to its justification. Secondly, the Advocate General hypothetically wonders if this unequal treatment could have a particular impact on the grounds of gender. Keep in mind that non-discrimination of women is granted the utmost protection in EU law; indeed, it is distinctly addressed by the CFREU.46 At least within the French and Belgian societies, the ban on wearing the headscarf affects Muslim female employees much more severely than men: the case of a Sikh who wishes to perform his duties in a Dastar (turban), which is often raised as a counterargument, lacks the extent needed to challenge this gender-based reality. It is not by chance that the hijab has become as prominent as it is, over many other visible signs or external manifestations of religious beliefs. The hijab is, for so to speak, objectively sexist. In any event, this would lead to a first additional form of indirect discrimination, that the Advocate General simply notes as a possibility. The Advocate General finally raises en passant the possibility, with no specific implications, that the rule could have an impact on workers of a particular ethnic background. Yet again, in light of the circumstances of the case, this is more than a possibility: by discriminating against Muslim female employees within the French and Belgian societies, the employers are discriminating with utmost probability against female workers with a North African background. We are not dealing with practicing Muslims called Maribel Domínguez, Vera Egenberger, or Gabrielle Defrenne (to cite a few famous examples named after women), but with someone Article 23, “Equality between men and women,” paragraph 1:“Equality between men and women must be ensured in all areas, including employment, work and pay.”

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not by chance named Samira Achbita or, in the paired case, Asma Bougnaoui. Furthermore, take into account that a public entity called “Center for equal opportunity and to fight against racist discrimination” (“Centrum voor gelijkheid van kansen en voor racismebestrijding”) was a co-claimant or co-requesting party along with Ms. Achbita. The indirect discrimination at hand strikes hard on female workers with this ethnic background; they are the ones who struggle to access visible jobs, within a work environment with little cultural diversity. To sum up: a combination of an indirect discrimination on the grounds of religion with additional indirect discriminations on the basis of ethnic background and gender could have helped the Court of Justice and consequently the national court to take a step in the opposite direction. In any event, the case should aptly be depicted as that of a practicing female Muslim employee, most likely with a North African background, who is dismissed for not following the employer’s instruction to give up wearing the Islamic headscarf in the workplace. She cannot help being a woman, nor being (most probably) of North African descent, nor crucially being a practicing Muslim. At least, and Weiler would agree with this last point, if we asked Ms. Achbita she would probably answer along the lines of Martin Luther at a notorious occasion: that she cannot help it.47 Ultimately, she is dismissed for reasons that are all of them beyond her reach, reasons for which she has no choice.

7 Recap In Weiler’s view, the case is clear: the CJEU has left Ms. Achbita helpless or, better said, the CJEU has made it way too easy for the national court to leave her helpless. In my view, the dismissal made possible by the answer given by the Court of Justice in the Achbita case is very problematic considering all dimensions of the same. Reducing everything to whether the company could transfer the employee without excessive costs to another position not involving visual contact with customers falls short of the extent of the matter at stake.48 If the employer was a public entity, the above arguments would suffice to uphold the worker’s protection. However, since we are dealing with a private employer, the intrinsic difficulty of horizontal effect makes caution mandatory. This might be the stage at which to refer the matter to the national court as the better prepared court to assess all the circumstances. Finally, and in this I yet again agree with Weiler, I do miss here a reference to Article 22 CFREU: “The Union shall respect cultural, religious and linguistic diversity.” This “diversity” is a characteristic of the society or societies that make “Ich kann nicht anders” (“I have no alternative”). Allegedly in the Diet of Worms in 1521. Keep in mind that Advocate General Kokott began her Opinion by stating that both in Achbita and in the parallel Bougnaoui case,“the Court is expected to give a landmark decision the impact of which could extend beyond the specific context of the main proceedings and be ground-breaking in the world of work throughout the European Union, at least so far as the private sector is concerned” (paragraph 6). 47 48

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up the Union. The requirement, i.e., “to respect,” is not very far-reaching. There is no such thing as a commitment by the Union to promote this diversity. However, there is a clear acknowledgment of this diversity. In particular, regarding religious diversity, one of the three forms expressly mentioned, I consider that Article, 22 CFREU clearly encourages a common reflection at Union level on this largely new European reality. Respecting religious diversity, it entails moving forward and removing these forms of unequal treatment in private-private relationships, particularly in the area of employment and occupation. Weiler asks for a far greater understanding of, and empathy with, religion within the Union. This claim is addressed to public authorities, but also to society as a whole, to the individuals and private companies concerned. Undoubtedly, empathy towards religion within the said spheres does exist, but it is often unequal and arguably insufficient. Various elements of diverse national identities are here present, some of them unobjectionable, notably laicism. Directive 2000/78 certainly does not require empathy towards religion, but it does urge everyone to afford equal treatment in terms of religious beliefs. Finally, Weiler’s wake-up call includes a claim for more and greater attention to our societies’ religious dimension, with a view to consider the phenomenon of religion in itself and not simply confirming that neither the European Convention on Human Rights (ECHR) nor the CFREU determine what religious beliefs truly are. Weiler is surely aware that a closer inquiry in the matter will produce numerous shades of grey. Whatever the case, there is certainly a point in his wake-up call as particularly addressed to the European judges.

References Cloots E (2018) Safe harbor or open sea for corporate headscarf bans? Common Market Law Rev 55:589–624 Giles J (2017) A hoped for coherent and permissive EU religious freedom policy: the Bougnaoui and Achbita cases”. PILARs Case Comments, The Open University Law School (A hoped for coherent and permissive EU religious freedom policy: the Bougnaoui and Achbita cases (open. ac.uk): 1–19 Hennette-Vauchez S (2017) Equality and the market: the unhappy fate of religious discrimination in Europe. Eur Constitutional Law Rev 13:744–758 Hennette-Vauchez S (2019) Nous sommes Achbita (CJUE 14 mars 2017, aff. C-157/15). Revue trimestrielle de droit européen 55:105–116 Hennette-Vauchez S, Wolmark C (2016) Plus vous discriminez, moins vous discriminez. A propos des conclusions de l'avocat générale dans l'affaire CJUE Achbita, C-157/15, Semaine sociales Lamy: hhal-01647281i: 5–8 Soldevilla Fragoso S (2017) Libertad religiosa y velo islámico en el empleo: STJUE de 14 de marzo de 2017, asunto C-157-2015. Actualidad administrativa 7–8:65–68

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Solomon S (2017) The right to religious freedom and the threat to the established order as a restriction ground: some thoughts on account of the Achbita Case, Ejil Talk, Blog of the European Journal of International Law Spaventa E (2017) What is the point of minimum harmonization of fundamental rights? Some further reflections on the Achbita case, EU Law Analysis, 2017; 21 march Wagner S (2018) Kopftuch in Beschäftigungsverhältnissen – Zu den Auswirkungen der EuGHUrteile in den Rechtssachen Achbita u.a. (Rs. C-157/15) und Bougnaoui u.a. (Rs. C-188/15). EuR Europarecht 53:724–751 Weiler JHH (2017) Je suis Achbita! Eur J Int Law 28:989–1018. [Translation into French: (2019) “Je suis Achbita!: Á propos d’un arrêt de la cour de justice de l’Union européenne sur le hijab musulman (CJUE 14 mars 2017, aff. C-157/2015)”, Revue trimestrielle de Droit européen, 55:85-104; translation into Spanish; (2018) ¡Je suis Achbita!, El Cronista del Estado social y democrático de Derecho, 73:4-15]

Part II

Human Rights and the Rule of Law

Populism and Human Rights. From Disenchantment to Democratic Riposte Laurence Burgorgue-Larsen

1 Introduction Populism. There is no denying the term has a pejorative ring to it. It belongs on the “dark side of politics” as linguist Marie-Anne Paveau puts it. Based on a random search for the actual contexts and occurrences of this “loanword” in a ragbag of communication media, she has confirmed what common sense instinctively tells us: the undeniable deprecatory connotation of this word in -ism.1 Human Rights. This is the exact opposite. Although human rights have always come under discussion as to their foundations, their nature, their holders, and their universal character,2 it cannot be asserted out of hand that there is—when uttering the words “human rights”, which have been in the world’s legal heritage ever since 1789—so powerful a negative charge, especially in ordinary parlance, as is induced by the term “populism”.3

1

Paveau (2012), p. 84. There is a mass of literature that is critical of human rights. The “classic” reference in French is the opus of Villey (1983). For a recent review, see Lacroix and Pranchere (2016). A classic in the English-speaking world is Dembour (2010), pp. 1–20. A publishing success that shook up received ideas on the genealogy of human rights is Moyn (2012). Does it go so far as to rewrite the history of human rights? It was harshly criticized as revisionist from all quarters of academia (e.g. Sajó 2018). In this respect, it should be pointed out that Lacroix and Pranchère’s book purports to be a “response”, especially in the French-speaking academic world, to Samuel Moyn’s new historical approach. 3 That being so, it will be acknowledged that today it is no easy matter to speak about, teach, or simply defend human rights in the way it was 10 or 15 years ago. Times change; winds shift and unquestioning support for human rights is no longer self-evident. 2

L. Burgorgue-Larsen (*) School of Law, Université Paris 1 Panthéon Sorbonne, Paris, France e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Izquierdo-Sans et al. (eds.), Fundamental Rights Challenges, https://doi.org/10.1007/978-3-030-72798-7_8

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On the face of it, then, it seems odd and even inappropriate to associate the two terms. Yet, these two words and the political implications they convey follow particularly winding and complex trajectories that cross over and under, in and out, for the worst and for the best. The worst is the instrumentalization by populist logics of the weaknesses inherent in human rights and of the mechanisms for their judicial protection;4 the best is the riposte from human rights courts and tribunals against the devastating effects of populist regimes. Before examining these complex not to say tortuous interactions, it is hardly possible to dispense with the crucial step of determining whether those scholars who have studied populism5—its history, its characteristics, and its objectives—have managed to define it. This is particularly the case when recalling its linguistic “proximity” with the word “popular”, which systematically entails all manner of confusion and ideological amalgam.6 Indeed, “while populism is automatically associated with a certain style of appeal to the people, the symbolic affirmation of popular sovereignty also characterizes the classical representation. And this is where the problem lies: populists and democrats fight to monopolize the reference to the sovereign People to whom both accept to be subordinate.”7 Hence it is worthwhile scrutinizing the upsurge of populism (Sect. 2) in order to understand its workings over time and across space.8 Only after this necessary incursion into the history of populism will it be possible to examine the way in which populist logics and/or governments feed on social disenchantment, which is actually, fundamentally, a democratic disenchantment with regard to the power of transformation of the rule of law (and of which human rights are an essential pillar). Hence, understanding the upsurge in populism involves an uncompromising examination of the workings of democratic systems, which are not free from 4 It has been decided here to address the law and institutions of human rights as comprehensively as possible, encompassing both constitutional courts, which are designed to protect “fundamental rights” (to take up the constitutional terminology specific to them) internally, as it were, and regional courts for the protection of rights (here essentially the European Court of Human Rights and the Inter-American Court of Human Rights) whose purpose is to save democratic systems from national interest (raison d’Etat) and to protect individuals as far as can be done. 5 This is what Hermet dubs “the scholarly definitions of populism.” See Hermet (2012), p. 71. 6 “Among the misunderstandings afflicting democratic debate, one of the most consequential is the confusion maintained, not without ulterior motives, between the adjective ‘popular’ and its derived form ‘populist’”, see Slama (2011), p. 64. Slama takes the view that actually all the consistent features in populism show that it is “the exact reverse of the content the word popular refers to. The two terms are etymological relatives but political opposites.” Popular, in its political meaning, dates from the nineteenth century and is rooted in the working-class world that “looks upwards” and has “faith in the future”; “‘popular’ corresponds to an aspiration towards individual betterment and democratic equality”. Populism by contrast is all about an idealized past. 7 Hermet (2012), p. 71. 8 Obviously, it has been impossible to review what is happening on every continent within this globalizing analysis. However, the countries examined—Venezuela, Bolivia, and Ecuador for Latin America; Poland and Hungary for Europe—have been chosen from continents where the regional courts for the protection of human rights have been confronted with the populist upsurge (ECHR and IACHR).

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malfunctions, especially when they are fitted into vaster politico-institutional construction kits like the European Union. Democratic weaknesses (Sect. 3) will therefore be scrutinized for any shortcomings bound up with human rights law and its guarantee mechanisms and that might explain the use of objective features by populist leaders and parties that feed into their policies. Having critiqued the workings of democracy and having reviewed the weaknesses of human rights law and its implementation, the next job will be to decipher the effects of populist parties coming to power. When populist discourse succeeds in creating forceful logics that end up winning power, the effects on the elementary principles of democratic regimes are devastating. Unlike with traditional attacks on democracy through military coups—in which the governing authorities are imprisoned or even eliminated, the constitution confiscated, and a state of emergency decreed—the coming to power of populist leaders through the ballot box brings about a disintegration of democracy which may go entirely unnoticed at first. Tanks have not rolled into town and country, troops are not out on the streets, the constitution is still in place, institutions still operate, and opponents still speak out (at first). However, although the democratic veneer remains intact, the democratic substance is being gnawed away. Confronted with this dangerous dismantling of democracy (Sect. 4), although human rights law and human rights institutions are directly affected, they attempt to fight back at the same time. However, the democratic riposte is not devoid of multiple difficulties (Sect. 5).

2 The Upsurge of Populism Examination of the multiple studies of populism reveals that it is impossible to come up with factors for a common definition accepted by the broad majority of commentators (Sect. 2.1). Contrariwise, the factors having enabled the emergence, the development, in short the grafting of populism within many kinds of society— wherever the state and whatever the individual histories specific to its construction—reveal significant causal convergences (Sect. 2.2).

2.1

The Impossibility of Converging on a Definition

The literature on populism is both plethoric and disconcerting. Plethoric because, ever since the first historical manifestations of the populist phenomenon in the late nineteenth century and up until the most recent and deeply destabilizing manifestations in the early twenty-first century, academics—primarily sociologists joined by historians and political scientists—have pored over the phenomenon continually. Hence, immersion in the world of learned studies on populism proves extraordinarily rich in terms of epistemology. It follows in some sense the three “ideal types” that relate the upsurge of populism by geographical areas and historical periods.

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“Agrarian populism” in Russia and the United States in the nineteenth century; “socio-economic populism” in Latin America in the mid twentieth century, and “xenophobic populism” in Europe in the late twentieth and early twenty-first centuries.9 Typologies of the kind—variations on which will be found among different authors10—demonstrate the definitional aporia by the a contrario argument. It is in this way that the literature on populism is disconcerting: being one of the most contentious and most discussed concepts in the social sciences, it has never enabled a definition to emerge that is accepted by everyone everywhere. Academic output on the subject has been and continues more often than not to be “sectorized” and fragmented. Accordingly, when Gino Germani, an Argentinian sociologist of Italian extraction11 comes up with a definition of populism in his book Authoritarianism, Fascism and National Populism,12 as “a strategy for mobilization that transgresses the rules of representative democracy”,13 it derives directly from his study of fascism and Peronism. Similarly, when the Brazilian political scientist Hélio Jaguaribe14 highlights the “paramount role of personal charisma in the relationship between the populist leader and his loyal supporters”, he highlights a classic feature of the Latin American political panorama ever since the Conquista, in which the figure of the Caudillo is ever present.15 Closer to us in time, when the Secretary General of the Council of Europe produces a report given over entirely to populism in Europe, he identifies populism by asserting that “it describes those who invoke the proclaimed will of ‘the people’ in order to stifle opposition and dismantle

9 These “ideal types” are considered to be the commonest in the specialized literature. See Mudde and Rovira Kaltwasser (2013), p. 494. Although the French literature does not use these terms, a foray into the historical approach reveals broadly the same sequencing. See Hermet (2012), pp. 62–74. 10 British political science specialist Margaret Canovan made a distinction between “agrarian populism” and “political populism”, see Canovan (1981). G. Hermet mentions the “populism of the Ancients” and “populism of the Moderns”, see Hermet (2012), p. 74; in his 2001 book (Les populismes dans le monde, voir plus bas), he speaks of “founding populisms” and “consolidated populism”. It should be emphasized here that major studies only began to flourish in political studies in France from the 1990s onwards. They generally deciphered the French case by analysing a few foreign (usually European only) examples. One noteworthy exception is the book by G. Hermet that explores Indian-Pakistani, Arab-Islamic and far-eastern worlds. Hermet (2001). See also Meny and Surel (2000); Reynié (2011). 11 Born in Italy in 1911, he emigrated to Argentina in 1934 to flee Mussolini’s authoritarian regime which had placed him under constant surveillance. In 1966, he decided to leave the Argentina of Juan Perón and continue his work as a sociologist in the United States. He died in Rome in 1979 after recovering his Italian citizenship. This information is from the review of his book (Authoritarianism, Fascism and National Populism) by Celarent (2013), pp. 590–596. 12 Germani (1978), p. 71. 13 Cited by Hermet (2012), p. 71. 14 Jaguaribe (1967). 15 Lynch (1992).

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checks and balances which stand in their way”;16 in that he bases his argument on the excesses observed in many a European country. In addition to being “sectorized”, the literature may also have been “committed” to the extent of providing an apology of populism. In the late 1970s, the work of the Argentinian Ernesto Laclau irradiated the intellectual landscape on the question using a Marxist analysis.17 As a figurehead in this area, he presented a constructive view of it arguing that it includes “any hegemonic political project applicable to situations in which there are unsatisfied social demands. Articulating these unsatisfied demands is the primary objective of the populist leader”.18 His Belgian partner, Chantal Mouffe, helped to make the rhetoric famous in Europe, even advising movements that drew inspiration from it, like the “La France insoumise” movement.19 As will have been understood, there is no consensus-based definition in sight that would agree systematically on populism whatever the authors, their speciality, or their analytical approach. The recent essay by the political theorist Jan-Werner Müller confirms this to a tee. Because in point of fact, “les chercheurs battent tout de suite en retraite” whenever it comes to supplying a definition that everyone accepts.20 It is quite simply impossible. The entries in the Oxford Handbook of Populism published in late 201721—while attesting to the sociological importance of the phenomenon and offering analyses that demonstrate the worldwide explosion of populism22—also convey that, given the diversity of its manifestations, and of the different uses of populist rhetoric, it is impossible to provide a consensus-based definition of it. In actual fact, like many other concepts that go to the heart of political phenomena (democracy, nationalism, fascism, etc.) it is vague and cannot be pinned down. That is what makes it so successful.23 However, with the passage of time and with historical and political hindsight with respect to the populist phenomenon or populist phenomena, many specialists have proposed not definitions but supposedly permanent characteristics that transcend

16 Jagland (2017), p. 4. He also came up with a negative definition: “populism is not a catch-all label for every person or movement which rocks the establishment; misusing the term will only render it meaningless.” 17 Laclau (1977). 18 The analysis here is by Alejandra Salinas on the works of Ernesto Laclau, see Salinas (2012), pp. 187–207. 19 Pierre Birnbaum demonstrated this masterfully, Birnbaum (2017), pp. 163–173. 20 Müller (2017), p. 30. 21 Rovira Kaltwasser et al. (2017). 22 The phenomenon has extended well beyond Latin America (its traditional chosen land), western Europe and the United States, to lay hold on central and eastern Europe, the “post-Soviet” states, Africa, Asia, Australia and New Zealand. See Part II of Rovira Kaltwasser et al. (2017). 23 Pascal Ory emphasizes this pointedly: “Vagueness as applied to political concepts is far from being exclusive to populism. To take just one concept most often associated with it, ‘democracy’ is far from blindingly clear”, Ory (2017), p. 35. He goes on to say of populism that “the concept cannot fail to maintain some degree of uncertainty because, in some sense, that is what it was created for”, p. 45.

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time and place. Beyond the fact that three core concepts—the people, the elite, and the general will24—are intrinsically bound up with populism, specialists underscore certain characteristics. It is noteworthy that once again, although there is no unanimity on this, these peculiar and supposedly enduring features enable us to come as close as can be to actual populism. Accordingly, for the Dutch political scientist Case Mudde and his Chilean colleague Cristóbal Rovira Kaltwasser, although the presence of a charismatic leader is regularly observed in the history of some forms of populism (especially in Latin America), they do not see this as a “defining attribute” of populism.25 Conversely, they emphasize that it is a binary, Manichean ideology, or a world view that sets the “pure people” against the “corrupt elite”.26 For the French sociologist and historian Guy Hermet, the distinctive common feature is “a relationship with time that is completely at odds with time as it usually is in politics” which is governed by the longue durée “confronted with the impossibility of meeting all demands at once”. For Hermet, “populism’s relationship with immediacy is its distinctive core”.27 As he sees it, “the only permanent feature of populism (. . .) appears to be the systematic exploitation of the popular dream of the immediate fulfilment of the demands of the masses”.28 If we turn now to the works of the German political theorist Jan-Werner Müller, what characterizes populism at bottom, i.e. its core claim is “Us, and only Us are representing the true People” ‘Nous – et seulement nous – représentons le peuple véritable’.) In other words, while criticism of the elites is a necessary criterion, it is not a sufficient one. Alongside the anti-Elite rhetoric, the anti-pluralism approach is key.29 This latest point is especially important because Müller is not alone in pointing out this distinguishing feature. Alain-Gérard Slama says the same thing in an eye-opening paper when he asserts that populism is based on an “anti-Enlightenment” strand of thought: “on the one side, anti-individualism, expressed in loathing of the squire and the bourgeois, and on the other side, anti-materialism conflated with anti-capitalism. In contrast to this loathsome modernity, populism endeavours in one way or another to bring about a return to values that reassure:

24 Mudde and Rovira Kaltwasser (2013), p. 590 et seq. These concepts are broad enough, not to say hazy enough, to include whatever populist leaders wish depending on the histories specific to their movement and their country. This explains why populism arises across the political spectrum from far right to far left. 25 Mudde and Rovira Kaltwasser (2013). 26 Ibid, p. 377: “In fact, it would be erroneous to equate populism with charismatic or strong leadership. In this chapter, we will try to shed light on this complex relationship, arguing, in the main, that neither charismatic nor strong leadership is inherent in populism. While it is true that these elements are relevant in most manifestations of populism, we maintain that populism is first and foremost a Manichean world view or ideology that assumes that society is characterized by a distinction between the ‘pure people’ and the ‘corrupt elite’.” 27 Hermet (2012), p. 73. 28 Ibid, p. 72. 29 Müller (2017), p. 31. He reiterated this approach concisely in Rovira Kaltwasser et al. (2017), under the entry “Populism and constitutionalism”.

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communitarian values in the territorial, ethnic, and religious sense; identity values in the deterministic and normalizing sense of the rejection of all-out pluralism; corporatist values in the sense of belonging to the group, to the line of inheritance, to the craft and trade”.30 It could also be pointed out here that it is this anti-pluralism that alarmed the Secretary General of the Council of Europe in the context of his 2017 report.31 From this handful of incursions into scholarly works on populism,32 a photofit picture of its permanent features can be pieced together: a binary world view (People versus Elite) that excludes the complexity of the real world; a mistrusting or even delegitimizing relation with any critical approach that fails to comply with the wishes of the “People” as embodied in the voice of the Leader and/or of the populist party (Pluralism versus Sectarianism); a particular relationship with Time (the long term of ordinary politics versus the promise of immediate results). Although there is no question of achieving consensus on a definition, it will have been observed that there are shared characteristics over the course of time. This is not negligible. These are all factors that it is important to consider when examining the complex relations between populism and human rights. That noted, the fact remains that the causes of the emergence of populism are more readily identifiable. It is found that regardless of time and place, populist movements on the one side and populist regimes on the other—i.e. movements that have eventually come to power—exploit frustrations borne of economic and social change (industrialization in the nineteenth century; economic depression in the inter-war years; globalization and mass migration in the late twentieth and early twenty-first centuries). In a word, populism as a rule has fed on economic crises that have led to major political upheaval.33 Populist leaders stir up emotions and rant against the frustrations that heap up. Social and more broadly democratic disenchantment is at the core of the upsurge in populism.

2.2

The Astonishing Convergence of Causes: Social Disenchantment

This exploitation of manifold social frustrations engendered by wholesale economic upheaval is very often (but not systematically) set in place through there being a charismatic leader who—playing on emotions and not on reason—uses a highly specific rhetoric articulated around the same antagonism of the People versus Others, promising that People radical and immediate change in the established order.

30

Slama (2011), p. 67. Jagland (2017). 32 Some studies even slate academic work on this topic. See Jeanpierre (2012), pp. 150–164. 33 To the extent that some commentators consider its relation with land important. A-G. Slama points out that “[i]t is not insignificant that movements the world over that have laid claim to being populist since the nineteenth century have, without exception, been tied to the land”, op. cit., p. 66. 31

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Whereas the Others may take on different faces “beyond times and cultures”34—the bourgeois, the “gros” (under the Fourth Republic in France), corporations, elites, oligarchies, the Establishment which is protean (political, economic, media, judicial, national, international etc.)—, one thing that is sure is that the figure of the People is invariably idealized, as is the past, which embodies a Golden Age to be recovered at all costs. “The return to values that reassure”35 is at the core of the populist matrix. Let us work quickly through the different historical instances of upsurges of populism to get a measure of the convergence of the causes: populism has always fed on crises engendered by major economic upheaval. The historical overview of disenchantment (Sect. 2.2.1) will provide insight into two “contemporary disenchantments” that have seen populism come to govern in Latin America and in Central and Eastern Europe. This close-up on the present-day will provide an opportunity to show that (geographical and cultural remoteness notwithstanding) the mainspring of populism still as ever lies in social helplessness that has developed—at the dawn of the twenty-first century—within liberal constitutional democracies, which is a distinguishing feature compared with historical experiences. Accordingly, social disenchantment in itself is overlain by liberal democratic disenchantment. This hardly spares the role and place of constitutional courts as sureties for fundamental rights, with those courts being a consubstantial cog in modern constitutionalism (Sect. 2.2.2).

2.2.1

A Historical Overview of Disenchantment

Most commentators trace the earliest populist manifestations to Czarist Russia on the one side and the United States on the other.36 On the one side are the Russian Narodniki37 of the generations of 1840–1870, who were open to the argument developed by Alexander Herzen. As members of the intelligentsia, they valued an “agrarian communitarianism” to face up to what they thought to be social destruction deriving from capitalism. As intellectuals “of upper class or petty bourgeois social origins” they were the “initiators of national-populism, [. . .] had only contempt for the modernizing project of Czarism and exalted the ethnic vision of ‘Little Mother

34

Slama (2011), p. 67. Ibid, p. 67. These values may be communitarian values in the territorial, ethnic, and religious sense; identity values in the deterministic and normalizing sense of the rejection of all-out pluralism; corporatist values in the sense of belonging to the traditional group, to the craft and trade. 36 Mudde and Rovira Kaltwasser (2013), p. 495. They categorized it as “agrarian popularism”, as did Canovan. See also Slama (2011), p. 66; Hermet, “Permanences et mutations du populisme”, op. cit., p. 63. French historian Pascal Ory in his essay—Peuple souverain. De la révolution populaire à la radicalité populiste, Paris, Gallimard, 2017,—also devotes many enlightening pages to this emergence of populism in the late nineteenth century, esp. pp. 37–41. 37 The translation of Narodnik/Narodnichestvo was to be, in “the international historiography of the revolutionary movement, rendered by the terms ‘populist/populism’”, P. Ory, op. cit., p. 40. 35

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Russia’ consistent with the idealized model of its peasant communities”.38 On the other side, the Grangers movement around 1870 and then the members of the People’s Party in 1890 who defended rural dwellers in the west and south who were ruined by the banks and railroads of the east. Historian Pascal Ory, in a brilliant and closely-written essay,39 relates these two experiences—which were on the left of the political spectrum and were both resounding failures—by pointing out their common ground. First, “the conviction that political society must go back to its roots in a people forgotten by the established institutions”; then the fact that “the essence of the said people relates to a myth of the nation, of which it is supposedly the soundest pillar”; and lastly “that the discourse is built on denouncing the economically dominant or supposedly so, the big landowners, major capitalist firms, and financial circles”.40 One must read the French literature on populism to gauge the importance in the same period of Boulangism which “arose in a society traumatized by the Paris Commune and shaken by the defeat of 1871 by the German Empire” and that suffered “since 1885 from a protracted economic depression”. It was above all the first time that it was discovered how malleable populist surges crossed the political spectrum from one extreme to the other, i.e. from “the idealist left to the radical right”.41 Whereas the Great War had promoted other themes (communism, social democracy, liberalism, fascism)—the concept was to emerge again in the Americas after the Second World War and in the wake of the economic depression of the 1930s. An additional factor is associated with it, that of charismatic leadership in the tradition of the Caudillos. The populist experiments of Getúlio Vargas in Brazil in the 1930s (1930–1945)42 and the post-war experiments of Juan Domingo Perón in Argentina (1946–1955)43 were “all based on a corporatist ideology that claimed to ensure economic and social order with the backing of impoverished peasants who migrated to the cities”.44 Many commentators agree that the Peronist example is paradigmatic of the populist experience of the time. Juan Perón’s career speaks reams on this. Having begun his political career in the military government (1943–1946), he became its Minister of Labour. That enabled him to form many networks with the trade unions generally and the poor, the “shirtless” (descamisados) in particular. After winning the elections in 1946,45 he introduced radical reforms (nationalization

38

Hermet (2012), p. 63. Ory (2017). 40 Ory (252), p. 42. 41 Hermet (2012), p. 64. 42 He then returned to power between 1950 and 1954. 43 Ousted by a coup in 1955, Juan Perón and his wife—the famous Evita—came back to power in 1973. 44 Slama (2011), p. 67. 45 Peronism and on the couple that Juan Perón and Eva Perón formed, has been a constant source for literature, filmmaking, and academic writing. Among the wide ocean of references, readers are referred to the tremendous “true novel” by Olivier Guez, see Guez (2017). They can (re)discover the 39

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of the economy, establishment of certain welfare rights, votes for women) to the extent that Argentinian society was deeply divided (nowadays we would say “polarized”) and continued to be so, structurally. While the 1990s were the years of new populist governments in Latin America (wavering between authoritarianism and dictatorship), they were all at the time for the market and economy and determined to control inflation and bank on growth—the Brazil of Fernando Collor de Mello (1990–1992), the Peru of Alberto Fujimori (1990–2000), and the Argentina of Carlos Menem (1989–1999). In short, they were on the political right. The 2000s were to mark an important turning point, not to say a clean break. While a number of countries became constitutional democracies and the cycle of authoritarian dictatorships came to an end, the new figureheads of populism were politically on the left, denouncing the failure of the elites and their corruption along with continuing social inequalities: Hugo Chávez in Venezuela (1998–2013) followed by Nicolás Maduro (2013–), Evo Morales in Bolivia (2006–), and Rafael Correa in Ecuador (2007–2017). They came to power and radically altered the political landscape by deliberately opting for a new kind of constitutionalism. In Europe, the economic crisis of the late 2000s combined with certain collateral effects of globalization created industrial wastelands in many regions, further impoverishing the working class—with rising unemployment—and orchestrating the onset of the backsliding of the middle classes.46 As if the picture were not sombre enough, the migrant and terrorist crises were superimposed on economic instability and the European Union was placed centre-stage. A European Union that was losing its meaning, losing its sense of direction, with no long-term vision (capable only of reacting not acting), having lost the heading set in the 1980s and 1990s when everything seemed to be going right for it.47 Whereas Europe had been immune to populism on the whole, it experienced a massive bout of it in the late 1990s and early 2000s when extreme right parties were included in certain governments, with the Northern League in Italy or the Freedom Party of Austria (FPÖ). It is a form of populism in which national identity is at its high point, and the focus falls on migration, crime, and corruption, and European integration is held in contempt. It is the archetype of an elitist organization that steals away popular sovereignty and is consequently disconnected from the aspirations of the “People”. While populist

shady dealings of Juan Perón—fascinated by Hitler’s Germany and Mussolini’s Italy—with the Nazis, who were welcomed with open arms from 1946 onwards, when he was in the ascendancy. 46 Many economists have associated economic globalization with the populist backlash. For a detailed analysis of this interactions, see Rodrik (2017). 47 Likewise, for analyses showing the connection between unemployment further to the economic crisis, the failure of the European institutions to address and solve these difficulties and the rise of populism, see Algan et al. (2017), pp. 309–382, esp. pp. 374–375: “Our results imply that the loss of confidence in national and European political institutions and the rise of populism are related to the crisis-driven increase in unemployment (. . ./. . .). The Great Recession, coupled with the relative weakness of European institutions and the indecisiveness of policymakers in coping with its severe consequences, led to a dramatic decline in citizens’ confidence in political and even legal institutions.”

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leaders and parties were long in opposition (like the Front national of Jean-Marie and Marine Le Pen in France), while others have taken on increasing importance in the political landscape of their states—like the Party for Freedom (PVV) of Geert Wilders in the Netherlands, the Europhobic and anti-migrant party Alternative for Germany (AfD) and again in Germany the anti-migrant party Pegida—some simply embody the height of success of “xenophobic populism”—to take up the “ideal type” of C. Mudde and C. Rovira Kaltwasser48—because they have come to power through the ballot box in the heart of Europe (Viktor Orbán in Hungary (2011–) and Jaroslaw Kacyński in Poland)49 and more recently, in an extraordinary scenario in Italy where two forms of populism—one identity-based, xenophobic and of the far right (the League of Matteo Salvini), the other claiming to be neither on the left or right, but “anti-system” (the Five Star Movement of Luigi Di Maio)—have managed to enter into a pact on government.50 In the context of this ideal type of “xenophobic populism”, Muslims become the perfect target (as a consequence at one and the same time of the terrorist attacks of 11 September 2001 and of the “migrant crisis”) enabling the obverse of identity to be magnified and transformed into national “purity”. “The defence of national identity threatened by economic and cultural globalization—and first by migration—is what roots populist movements most deeply in their respective countries, from Marine Le Pen to Donald Trump”, Pascal Ory writes.51 The same observation holds without difficulty with respect to Poland, Hungary, and the other countries of Eastern Europe.52 To confine ourselves to this radical populism that feeds primarily on nationalism53 would be to provide an incomplete outline of the populist scenario, at least in Europe. The political landscape is not straightforward because parties claiming to support left-wing “values” are classified also under the “populist” label: from “La France insoumise” of Jean-Luc Mélenchon54 to Podemos in Spain by way of Syriza in Greece. They share the common point with the parties mentioned above of being

48

Mudde and Rovira Kaltwasser (2013), p. 497 et seq. Jaroslaw Kaczyński, currently a member of parliament and former prime minister between 2006 and 2007, is president of the Law and Justice Party (PiS) formed in 2001. He became the strongman of the country again through the sweeping victory of his party in the 2015 legislative elections. This ultraconservative formation has many points in common with the Fidesz of Hungarian Viktor Orbán (unbridled sovereignism and moral conservatism articulated through a discourse that magnifies national identity), see Sect. 4. 50 Laudani (2018), Badie and Vidal (2018), pp. 234–239. 51 Ory (2017), p. 76. 52 Rupnik (2017), pp. 69–85; Serrut (2017), pp. 135–160. 53 As P. Ory shows wonderfully in chapter 3 “Génie du populisme” of Ory (2017), pp. 72–90. 54 Birnbaum (2017). The author cites several excerpts from various recent books by J-L. Mélenchon. They contain all the populist rhetoric opposing the People to a corrupt Elite that should be driven from power. In Mélenchon (2017), p. 12, the president of la France insoumise writes: “The people will dethrone the little oligarchy of the rich, the golden caste of politicians who serve their interests and the mediacrats who enthral minds. Away with them! It will!” 49

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anti-European (denouncing the perverse effects of the liberal logic advocated by the European Union)55 and generally of any institution that is thought elitist and disconnected from the aspirations of the true People (such as the media); however, in principle they do not share the identity-based and xenophobic discourse of the far right parties.

2.2.2

A Close-Up of Two Contemporary Instances of Disenchantment

What do Hugo Chávez, Rafael Correa, and Evo Morales have in common with Viktor Orbán? At first sight, nothing, because the histories of the continents where these leaders came to power have nothing in common and because each of the countries (Venezuela, Ecuador, Bolivia, and Hungary) have their own particular histories. And yet social disenchantment and more broadly disenchantment with liberal constitutional democracy has expressed itself through the ballot box to bring these politicians to power. In Latin America, the first three denounce the aporias of Neo-constitutionalism of the 1990s, for which liberal constitutionalism provided the analytical framework. It seems it was not “transformational”. Let us return an instant to the enthusiasm of the 1990s in this continent. The hallmark of those years was a consensus about the need to consolidate liberal democratic systems. With the end of the wave of military regimes and the failure of experiments in “real socialism”, constitutional democracy seemed the only reasonable alternative. It was the only legitimate mechanism for electing rulers, while the elected rulers had to abide by the fundamental rights of all, notably those of minorities. All of the intellectual discourse of the time revolved around how to achieve these objectives (while the question of their relevance was not raised at any point). It was a matter, then, of bestowing effective controls on constitutional democracies; institutionalizing the judiciary so that it should be independent and impartial; subjecting military and police forces to civilian supervision; fostering a civil society that was aware of the importance of safeguarding fundamental rights, and so on. Interestingly, at the time even the Latin American left finally rallied around this mainstream approach.56 So much enthusiasm was met by disillusionment. The broken promises of liberal constitutionalism were the source of

55 Rodrik (2017), p. 25, shows that certain economic policies—similar to those in operation in Latin America—had specific impacts in Spain and Greece giving rise to far left populist parties. 56 The left hoped that a far-reaching social transformation would come from the new forms of organization that had emerged as part of the democratic transition and that national and transnational NGOs would be able to mobilize the courts and tribunals effectively to enforce the catalogue of fundamental rights (and more specifically economic and social rights), enshrined both nationally and internationally. This expectation of social change through judicial action was the consecration of a sort of “reconciliation” of the Latin American left with the right; see Couso (2015), p. 5. In the early 1970s, many intellectuals saw law as an obstacle to social change; this was the case for example of Eduardo Novoa Monreal, an influential legal advisor to Salvador Allende, see Novoa Monreal (1975).

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social disenchantment. Popular frustration peaked in many countries. Not only was no significant advance observed in terms of reducing poverty and inequality—the widest gaps in the world occurred on this continent—but also the fight against the rampant corruption of many political and economic “elites” of the region was not conducted vigorously, with political parties often the accomplices of such states of affairs. Hence, first in Venezuela,57 and then in Bolivia and Ecuador, a new policy was promoted, and that much more easily because the political parties of liberal constitutional democracies were unable to react effectively as they were mired in party politics—a factor that greatly facilitated the emergence of charismatic leaders. These leaders very aggressively set about wholesale constitutional restructuring and introduced major redistribution policies, which went down particularly well with the least favoured sectors of society. Some intellectuals supported such approaches by openly defending the idea that it was necessary and better still legitimate to adopt “radical” democratic systems characterized by a marked concentration of power in the hands of the executive so as to put an end to exclusion and inequality. Two Spanish constitutional scholars who were fully committed to this process—Roberto Viciano Pastor and Rubén Martínez Dalmau, professors at the University of Valencia—theorized this new approach using the expression Nuevo constitucionalismo58 in order to mark it apart from what in the 1990s had been termed Neo-constitutionalism.59 Against this background, it was not complicated to appeal to the “People”, to its legitimate frustrations and disappointments and to its necessary reinvestment in politics to swiftly bring about a radical change in the established order. It is a remarkable thing that despite a different context and a different political history, the Hungarian scenario that brought Viktor Orbán to power in 2011 was driven by the same type of disenchantment. Disillusionment with liberal constitutional democracy was intensified by a “national” economic crisis (from 2005–2006 on) and supplemented and amplified by the worldwide shock of 2008. In a forceful analysis,60 Pál Sonnevend takes apart the mechanism of some elements which, with hindsight, take on special significance. His analysis is confirmed by other academics such as Professor Gabor Halmaï of the European University Institute in Florence.61 The democratic transition of 1989 took on an elitist touch, having been conducted through National Roundtable talks that did not lead to popular but only parliamentary approval. Although it underwent a complete overhaul by way of several 57

Valadés (2017), p. 13. Viciano Pastor and Martínez Dalmau (2010); by the same authors, Viciano Pastor and Martínez Dalmau (2011). 59 Miguel Carbonell, a Mexican professor of constitutional law, was one of many to write extensively on Neo-constitutionalism, proposing a precise analytical scheme for identifying its main features. The prolific literature includes Carbonell (2003). For a presentation in French, see Herrera (2017). 60 Sonnevend (2017), pp. 123–145. 61 Halmai, “Hungary and Poland: How the EU Can and Should Cope with Illiberal Member States”, available online on the website of the European University Institute in Florence. 58

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reforms, the Constitution remained formally that of 1949—i.e. that of the former communist regime—because the political forces were unable to find the necessary consensus to adopt a new constitutional charter.62 In this context, it was for the Constitutional Court—presided by Lázlo Sólyom63—to impart some normative coherence. It cleverly managed to do this using the actio popularis procedure (Section 1(b) and Section 21 (2) of Act XXXII of 1989 of the Constitutional Court).64 The Court ultimately filled the gaps in the constitution, developed abundant legal precedents on fundamental rights (the death penalty, euthanasia, abortion, freedom of religion, separation of Church and State, return of property confiscated by the communist regime, and so on), and became involved in all issues concerning the democratic transition.65 While it became noticeably active on all these questions,66 the same could not be said of social rights. Although it had reduced the number of social rights compared with the Soviet Constitutions, the reformed Hungarian Constitution still had a bold catalogue (right to work, right to form trades unions, rights to health, social security, and education). In practice, though, the Court interpreted them as “mere state goals”67 and “refrained from actively promoting policies aimed at eliminating inequalities”. Although it was lily-livered on the general question of social rights, “it did make considerable efforts to mitigate the effects of austerity measures which became necessary in the transition from a socialist to a market economy”.68 In the midst of a substantial political crisis in 2006—which exposed the shortterm political manoeuvring of the incumbent prime minister to hang on to power69— the entire legitimacy of the political and constitutional system that had presided over the transition—and was therefore still fragile—was hard hit. At the same time, the

62 Ibid., p. 127: “The constitutional reform was formally adopted as an act modifying the communist constitution (officially entitled Act XX of 1949 on the Constitution), although this Act did in fact amount to a new constitution. In essence, nothing in the previous constitution remained unchanged, except the capital of Hungary and the national anthem.” 63 He presided the Court from 1990 to 1998 and subsequently became President of the Republic of Hungary until 2010. 64 This allows any natural person or legal entity to challenge the constitutional character of legislation without having to show they are individually affected by the said legislation. 65 Sonnevend (2017), p. 129: “It is fair to say that the Constitutional Court shaped the transition on the basis of its ideal of the rule of law as much as the political process did.” 66 Ibid., p. 130: “the agenda of the Court clearly went beyond the traditional self-understanding of the judiciary. The motivation behind such actions was also clear: The Court tried to consolidated the rule of law and democracy in the shortest possible time under unstable political circumstances, while at the same time attempting to prevent backlash.” 67 Ibid., p. 130. 68 Ibid., p. 131. 69 Ibid., p. 133: “The direct cause of the crisis was a behind closed doors speech of then Prime Minister Ferenc Gyurcsány, which was later leaked to the press. In that speech, the prime minister fiercely proclaimed that his party only pretended to govern in order to win the next elections, applied ‘hundreds of different tricks to survive’ the economic difficulties, and that they ‘were lying in the morning, in the evening and at night’.”

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austerity measures implemented to counter earlier (between 2002 and 2006) poor budget management, compounded by the worldwide 2008 crisis, had devastating consequences for the standard of living of Hungarians and their support for the values of the liberal democratic system. The frailties of liberal constitutionalism that orchestrated the transition then became glaring and—compounded with the political and economic difficulties of the moment—could do nothing to prevent Viktor Orbán’s Fidesz from coming to power: a Constitution that was prepared and adopted in an elitist manner and failed to secure any “emotional attachment” among the population; a highly polarized political class ready to impose on the population economic hardship and problems of corruption that arose at regular intervals; its frustration and even its fear at seeing an overly activist and independent, unaccountable Constitutional Court that was unable to impose its will without any clear and sound basis for this in the constitutional text.70 While there is no doubt that social disenchantment—rooted in the imperfect workings of liberal constitutionalism—forms the common ground between contemporary populist experiments in Latin America and in Hungary, the consequences in political terms were worlds apart. Hugo Chávez, Evo Morales, and Rafael Correa took over from right-wing governments that had imposed a specific economic doctrine that proved devastating for the working classes: the populist wave came therefore from the left of the spectrum. Viktor Orbán, by contrast, took over from socialist and liberal parties of government that were unable to responsibly take up the many challenges deriving from the democratic transition; the populist upsurge came therefore from the far right. In the history of these disillusionments—the history of the failure of democratic societies to convince the population of the relevance of the liberal constitutional model, especially in a period of economic crisis—what is the extent of the responsibility of human rights law and its ensuing litigation—i.e. litigation over “fundamental rights” in the Constitutional Courts and litigation over “human rights” in the regional courts? Did such litigation enable the populist discourse to spread even more vigorously? Might it have contributed to the impossibility of reducing inequalities to the point of being incapable of promoting inclusion? Although these are necessary questions in the context of critical examination of the working of modern democratic regimes, the answers jurists can come up with can be only particularly modest at best. The populist question is complex enough in itself—on the boundaries of history, politics, and economics—for the specialist on law to feel humble and advance with measured steps. The few points that follow are therefore only lines of thought—that it would be worth taking a good deal further when the time is right— about certain democratic weaknesses of constitutional democracies.

The concept of an “invisible Constitution” fuelled these fears. See Sajó (1995), pp. 253–267. For a synthetic presentation of activism of the Hungarian Court in the early 1990s, see Brown and Waller (2016), pp. 817–850. 70

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3 Democratic Weaknesses Safeguarding democracy once it has been established is a constant struggle. If most of the major western democracies have been suffering for more than 20 years now from a deep crisis of representativeness, although its causes are many and complex, one of them is the inability, the incompetence, and/or worse still the renunciation— faced with the rapidly changing world—of political parties, intellectuals, universities, and the mass media to continue to defend their political traditions, to commend arts and culture, to pass on knowledge, and to foster critical thinking.71 This is not the place to decipher the many weaknesses besetting democracies that exist in a “spiritual vacuum”72 in which consumer society has wiped clean the slate of ideas and of arts and culture, in which many divides threaten the social and political bond.73 What is in question is whether human rights law—inherent in contemporary democratic foundations—reveals any weaknesses, any flaws—or more simply limits—that could explain the grafting of populist discourse, which feeds on economic crises allied with a profound disenchantment with the political classes that have not been equal to the challenges. The first weakness is the binary classification of rights that consigns economic and social rights to the backwaters as legal accessories, while it can be considered that only the unconditional justiciability of those rights might enable a real transformation of societies through social inclusion and the reduction of social inequalities. The conceptual revolution promoted by a whole branch of legal thought in the Americas and in Europe relating to the need to change the cursor when these rights are at issue has not yet become fundamentally part of the structure of protective instruments such as the legal precedents of the constitutional courts and of the regional human rights courts (Sect. 3.1). The second difficulty concerns the extreme difficulty in making protection by the courts effective once it has been granted. Put otherwise, even where there is progressive social legal precedent, two types of hurdle arise. First the hurdle of actually implementing bold legal decisions, which fundamentally questions their capacity to transform things. Second, the hurdle of the correlated criticism of misplaced judicial activism. A bold legal initiative is soon denounced by members of the political classes who are always ready whenever it may serve their interests to 71

The inspiring essay by Dutch writer Rob Riemen is worth pondering: Riemen (2018), 171 p. In addition to considering we are seeing the return of fascism (based on the lessons of history), he does not elude the responsibility of many political, intellectual, and media actors for this: “The contemporary fascism is once again the result of political parties that have renounced their own intellectual tradition, of intellectuals who have cultivated a pleasure-seeking nihilism, of universities not worthy of their description, of the greed of the business world, and of mass media that would rather be the people’s ventriloquist than a critical mirror”, pp. 84–85. 72 This is the expression used by Riemen (2018), p. 85, not in a religious sense but rather in an intellectual and literary sense. 73 Rosanvallon (1998), p. 12: “Democracies are furrowed by disappointment, as if they embodied a betrayed and disfigured ideal.”

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wield the classical but hard-hitting criticism of “government by the judiciary” (Sect. 3.2).

3.1

The Eternal Classification of Rights

Whichever way we look, whether towards internal constitutional rights or towards instruments of international law, the observation is identical. Contemporary law, despite incontrovertible advances in formally enshrining social, economic and cultural rights,74 is still run through by a conceptual divide as to their nature. The world over, social rights are and will continue to be a subject of debate: their nature and therefore their justiciability continue to prompt questions; there are numerous arguments to avoid excessive involvement by the courts in this area.75 Constitutional (Sect. 3.1.1) and treaty-based (Sect. 3.1.2) systems, which are both the outcome of political consensus at a time t, reflect this lack of consensus about the equal observance of social rights on the one hand and of civil and political rights on the other. Although studies show that ever more constitutions worldwide are enshrining social rights, the lists of such rights are far from uniform. The social rights that are consecrated are not identical, they do not enjoy the same standing, and they do not have the same legal scope. Interpreting them, far from occurring in a vacuum, depends on a series of sociological elements relating to the power or lack of power of left-wing parties, the commitment from civil society, and also the profile of the actors and the legal traditions promoting or not a degree of legal activism, etc. All of this produces a highly contrasted landscape when it comes to the scope of social rights within states.76 Hence, while recent philosophical studies have come up with theoretical foundations for the promotion of social rights so that people’s elementary needs can be satisfied;77 and while inventive jurists have come up with new ways to structure the law to make social rights claimable,78 the fact remains that positive law is still a long way from having integrated these conceptual revolutions, even if the

“Economic, social, and cultural rights” (ESC) is the commonly accepted international terminology. For the sake of simplicity (and to avoid too frequent repetition of ESC) I shall generally speak of “social rights”. 75 Diane Roman very clearly sets out the two classical arguments against social rights being fully justiciable: the democratic argument (it is for the parliament to make budgetary choices and address general economic and social issues); the technical argument (the hit-and-miss and gradual character of their implementation). See Roman (2012), pp. 29–43. 76 It is worth reading the impressive study of comparative law by Jung et al. (2014), pp. 1043–1098. No fewer than 195 constitutions are reviewed to evaluate the number and standing of economic and social rights included in them. 77 The work by Amartya Sen (on equality), Martha Nussbaum (on vulnerability and capacities), and John Rawls (on justice) is significant in this respect. 78 Among the abundant literature, see Carbonell and Ferrer Macgregor (2014); Arango (2012). 74

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last twenty years have seen a significant rise worldwide in the number of legal decisions about social rights.79

3.1.1

On the National Scale

On the scale of national rights it may happen that social rights radiate across the constitutional field(s). This is the case in Latin America,80 the continent with the highest level of constitutional recognition of social rights.81 Following on from Mexico, which is reputed for being the cradle of “social constitutionalism”,82 Latin America—traumatized by the divides and social inequalities that run through it from north to south—has a long tradition in social matters that has not been belied by the wave of reforms of the 1990s introducing liberal constitutional democracy.83 The constituent assemblies did not skimp with economic and social rights, and also instituted direct mechanisms—like the amparo84 or similar procedures—to ensure direct compliance.85 Accordingly, of the 498,200 acciones de tutela (the equivalent of the amparo) in Colombia in 2014, almost a quarter (118,281, 23.74%) concerned the right to health.86 Although Columbia is known on the continent therefore for having done a great deal for social rights and more specifically for the right to health,87 it is hardly possible to generalize. A more precise map shows that the courts in fact find it hard to move away from the classical schemes pertaining to the dichotomy between civil and political rights and economic and social rights. A serving of activism is invariably needed to give full effect to the texts. This activism

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Literature in English shows this amply. Langford (2008), 740 p; Gargarella et al. (2006). Research shows this is also the case in South Africa (the Constitutional Court in Johannesburg is famed for its avant-garde decisions on social rights) and in South Asia (the Indian Supreme Court is the winner in terms of commitment in this area). For lack of space and time, Africa and Asia have been omitted for the overall analysis of the causes and effects of populism in their regions. A huge field of research is opening up here for the medium to long term. 81 Jung et al. (2014), see figure 6. 82 See on this point the celebrated Mexican Constitution of 1917, the Constitution de Querétaro— which was the first to introduce large-scale social constitutionalism. 83 Carozza (2003), pp. 281–313. 84 Brewer Carias (2008). 85 For a remarkable glimpse of the trends of Latin American constitutionalism at the turn of the 1990s and 2000s and the very broad scope given to rights in general and social rights in particular, see Uprimny (2011), pp. 1587–1609. 86 Defensoría del Pueblo (2015). 87 The Colombian Constitutional Court has drawn political and doctrinal attention in this respect for introducing original precedents in this area. In particular it was when the Court was presided by José Manuel Cepeda—the current President of the International Association of Constitutional Law—that the guidelines on social justice were laid down. The recent publication in English of the leading cases of the Colombian Constitutional Court will provide a better understanding of this original litigation; see Cepeda and Landau (2017). 80

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is not uniform within one and the same country (among social rights themselves), let alone between countries and across eras.88 The European panorama is not uniform either. A striking summa divisio can be observed between east and west. The constitutions of eastern countries are particularly generous with respect to social rights.89 In addition to enshrining them in number (the right to education is included in all constitutions as is the right to health, except in Bosnia-Herzegovina, whereas workers’ rights, standard social rights, and environmental rights are in one in three of the constitutions),90 their justiciability too is very often recognized, as in Latin America. The right to education and health are justiciable under all but four constitutions (Bosnia-Herzegovina, Bulgaria, the Czech Republic, and Slovakia), which in point of fact, do not grant justiciability to any fundamental right. The contrast is startling with western European countries, most of whose constitutions, although they mention social rights (workers’ rights such as the right to strike being widespread) do not anoint them as justiciable, and their normative scope is generally for policymaking only. Consequently, in countries where there are direct legal remedies for the protection of fundamental rights in the constitutional courts, social rights are excluded (as for example in Spain91 or Andorra92), precisely because they are seen as interpretative features merely to guide the action of the legislature. Beyond this question of procedural order—which is in point of fact Champeil-Desplats (2012), pp. 223–235: “The inventiveness of part of Latin American legal doctrine on the question of social rights and the repercussions it may cause in the courts cannot be accurately gauged without recalling that apart from the massive number of appeals with regard to the right to health in Brazil and Colombia, accommodation of appeals based on social rights remains mitigated for the time being” (p. 235). 89 Even if the constituent processes revealed recurrent tension that the constituent assemblies had to arbitrate on: on one side, consideration for popular expectations as to the social duties of the welfare state and on the other the need to prepare the transition to the market economy. See Sadurski (2001). 90 Jung et al. (2014), see figure 5. 91 The Spanish Constitution circumscribes the field of application of the remedy of amparo to those rights protected by Section 14 (equality before the law) and to Chapter 2, Division 1 of the Constitution entitled “Fundamental Rights and Public Liberties” which cover the right to life and physical and moral integrity, freedom of ideology, freedom and security, the right to honour, personal and family privacy and the right to one’s own image, the right to free movement and residence of Spaniards within the national territory, freedom of opinion, the right to unarmed peaceful assembly, the right of association, to participate in public affairs, to effective protection of the courts, the principle of legality, the right to education, the right to join a union and the right to petition. Economic, social, and cultural rights or direct remedy of rights (remedy of amparo) which the Constitution significantly names “principles of policy” are therefore excluded. For the alarming report of the ESC Rights Committee on the situation in Spain (published in 2012), see Torrecuadrada García-Lozano (2013), pp. 53–56. 92 In Andorra, the right enshrined in Chapter V of the Constitution on “Rights, and economic, social and cultural principles” and the right to private property, the right of enterprise, the right to work, the right to health protection, to the rational use of natural resources, and the rights of consumers do not fall within the scope of the remedy of empara. Only those rights mentioned in Chapter III and IV of Title II of the Constitution can be the subject of remedies for the protection of fundamental rights. Needless to say they concern only civil and political rights. 88

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fundamental—the guardians of the constitution in Europe will not be keen to play the card of judicial activism against the lawmaker. They will leave the legislature considerable leeway in determining social policies. This reflects the very enduring distribution of tasks between the representatives of the people, who are to determine—depending on their political colouring—the social contours of the state, and the courts, which are not legislatures, and intend only marginally to correct any waywardness that proves manifestly unconstitutional. Studies go further and show that when the court has to balance the freedom of enterprise and the freedom of work, the apportionment will very often lead it, as in France, to give precedence to the former,93 leaving little scope for the “social constitution”. The summa divisio between western and Eastern Europe must, though, be relativized in practice. Because although social rights are legion in the constitutional catalogues in the east, and although justiciability is taken seriously, it is the constitutional courts that, in specific political contexts such as the context of democratic transition for example, have had to strike a learned balance between judicial activism and judicial reserve. The Hungarian case is symptomatic in this respect. While being activist in constructing the rule of law, the Constitutional Court has been measured in social affairs, even if it has endeavoured to lessen the impacts of austerity measures on citizens’ lives.94 As a result, the plaguing issue of the place and role of the constitutional court within democratic systems crops up again.

3.1.2

On the International Scale

The picture is quite as diverse internationally. Either social rights are noticeably absent (as is the case with the European Convention on Human Rights),95 or they are struck by the syndromes of progressiveness (making their realization subject to the state having sufficient financial resources, as with article 26 of the American Convention) or conditionality (with them only acquiring normative status after intervention by the legislature, as with the “Principles” in the in the European Union’s Charter of Fundamental Rights at the core of Chapter IV on Solidarity).96 When social rights do have pride of place in the texts (International Covenant on Economic, Social and Cultural Rights, European Social Charter), it is the very structure of the protection mechanisms that reduces their scope, either by setting

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Fontaine and Supiot (2017), pp. 754–763. Sonnevend (2017), p. 131: “It shall suffice to know that the Constitutional Court refrained from actively promoting policies aimed at eliminating inequalities. Yet it did make considerable effort to mitigate the effect of austerity measures which became necessary in the transition from a socialist to a market economy.” 95 For an historical explanation of such absence, see Madsen (2005), pp. 133–146. 96 For the story behind the introduction of “principles” into the Charter of Fundamental Rights, see Braibant (2001). For a presentation of ECJ case law on the principles, see Nivard (2018), pp. 31–75 and Parisot (2018), pp. 367–411. For a presentation of the national application of ECJ case law, particularly on the principles, see Burgorgue-Larsen (2017). 94

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up committees with no function as courts of law and whose jurisdiction is optional,97 or by limiting justiciability to certain rights. This is the case of the San Salvador Protocol to the American Convention on Human Rights (that was adopted in 1988 and came into force in 1999), which makes only two rights justiciable—the right to form trade unions (article 8) and the right to education (article 13).98 Needless to say, then, that under these technical conditions, it is anything but easy for human rights courts to grapple with the question of social exclusion and social marginalization (in a word, with poverty), without overstepping their functions as laid down by the texts, under penalty of being criticized for judicial activism, which takes on a very particular aspect in the international arena. Immediately the legitimacy of the court, which is readily tarred as “foreign”, is virulently called into question. This does not mean that the European and Inter-American Court of Human Rights have remained deaf, dumb, and blind to the social dimensions of the cases brought before them. They have generally tried even harder in their interpretations of the law—drawing on civil and political rights and magnifying the principle of the indivisibility of rights—to approach social issues indirectly.99 However, this mediated approach is not ideal. Above all, and this is the vicious circle of these issues in times of economic crisis, of withdrawal into sovereignism, and of forceful contestation of international courts, those courts may wish to avoid aggravating the movement of state-level distrust towards them. This at any rate is the position of the European Court of Human Rights, which it shall be seen differs radically from the position of its Inter-American counterpart. The Strasbourg Court passed on addressing poverty in the framework of its jurisprudential policy. In its decision of 6 November 2017 in the case of Garib100 (by twelve votes to five), the Grand Chamber side-stepped the opportunity which, for the first time in the history of its litigation, was given to it of ruling on poverty. By refusing to lay on the table the combination of rules (article 14 together with article 2 of Protocol No. 4 on freedom of movement) that would have enabled it to adjudicate on the discriminatory character of a statute designed to address the impoverishment of certain districts of Rotterdam (and which led to the expulsion

97 This is the case of the Committee on Economic and Social Rights created by the optional protocol of the International Covenant on Economic, Social and Cultural Rights and of the European Committee of Social Rights. 98 Ruiz-Chiriboga (2011), pp. 159–186. 99 For the European system of human rights, see the doctoral thesis by Nivard (2012); see also the analyses resulting from the study day on La justice sociale saisie par les juges en Europe, Burgorgue-Larsen (2013). For the case law of the Inter-American Court of Human Rights on economic and social rights grasped essentially through civil and political rights, see BurgorgueLarsen and Úbeda de Torres (2011), pp. 613–639. 100 ECHR, Gd Ch, 6 November 2017, Garib v. Netherlands, chron. Burgorgue-Larsen (2018), esp. pp. 157–160.

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of a Dutch woman living on welfare contributions and raising her two children alone) the Court failed to address the issue that feeds all forms of populism.101 The case law of the Inter-American Court took a turn that is a world away from European caution. While the scope of article 26 of the American Convention had always been at the centre of multiple doctrinal disputatio, and the Court of San José had warily opened up a new horizon in 2009 by considering the principle of “nobacksliding” on social rights justiciable,102 it brought about a real conceptual revolution in a major judgment against Peru in Lagos del Campo.103 The Court came up with a new interpretation of article 26, considering that “the economic and social standards” it refers to derive both from the OAS Charter and the American Declaration on the Rights and Duties of Man (two texts with important social provisions). Having asserted the justiciability of article 26—cutting short years of controversy—and having used the technique of “derivation”, the Court will be able as and when cases arise to address and protect an unprecedented number of economic and social rights.104 European reserve on the one side and Inter-American audacity on the other. In both instances, it could be argued that these approaches will only feed populism. The European Court could be accused of not taking “real people” affected by poverty

Populist belief is that the “true People” is ignored or despised by the state apparatus and representatives of an Elite that is disconnected from the suffering of the People. 102 IACHR, 1 July 2009, Preliminary Objections, Merits, Reparations and Costs, Acevedo Buendía et al. [Discharged and retired employees of the Comptroller], Series C no 198. 103 IACHR, 31 August 2017, Preliminary Objections, Merits, Reparations and Costs, Lagos del Campo v. Peru, Series C no 340. The case concerned the dismissal of a worker for serious misconduct further to his public statements as a workers’ representative. The domestic courts, and more specifically the Supreme Court overturned the trial court’s ruling and approved the dismissal on elliptic grounds. Having been fired, he was unable to draw a pension and could not find other work. His family life and health were affected (§152). Peru was found (by five votes to two) to have infringed both the right to “job security” (el derecho a la estabilidad laboral) recognized by article 26 (in conjunction with articles 1(1), 13, 8, and 16 of the Convention) and the right of freedom of association of workers recognized by articles 16 and 26 (in conjunction with articles 1(1), 13, and 8 of the American Convention). 104 In the six months that followed the revolution of the Lagos del Campo decision, the Court confirmed its new approach drawn from the derivation of rights both in the Petroperú case and its advisory opinion at the request of Colombia (IACHR, Opinion, 15 November 2017, Environment and Human Rights, OC-23/17). In the case involving Peru, the Court declared the right to work had been violated with respect to more than a hundred workers because they had no access to an effective legal remedy pursuant to article 8(1) and 25 (IACHR, 30 November 2017, Preliminary Objections, Merits, Reparations and Costs, Dismissed Employees Petroperú et al. v. Peru, Series C no 344, §195). Under the request for an advisory opinion presented on 14 March 2016 by the Colombian government, the Court took the opportunity of being asked about the obligations of states with respect to the protection of the environment in the Caribbean region under the text of the treaty, to enshrine the justiciability of the right to a healthy environment (§57), which was further considered as an “autonomous” right. Jurisprudential policy seems to be well implanted and the Court takes every opportunity it has to further it: IACHR, 8 February 2018, Merits and Reparations and Costs, San Miguel de Sosa et al. v. Venezuela, Series C no 348; IACHR, 8 March 2018, Poblete Viches et al. v Chile, Merits and Reparations and Costs, Series C no 349). 101

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seriously and it might come across as the archetype of an international judicial “Elite” disconnected from national issues; whereas the Inter-American Court might be accused of being ultra-activist, failing to abide by the summa divisio between legislature and judiciary, between the body that makes law and the body that should do no more than interpret it. It is a complex balance, and worse still an infernal balance in which the role of the courts is still at issue. Is it for the courts to promote and therefore shape case law with a social air about it? Is that not fundamentally the role of the lawmakers, by developing public policies with social aims? If the legislature is supposed to be at the crux of laying down social policies (preferably in agreement with the executive), then judicial reserve is conceivable or at least can be justified. However, if the legislature tips the scales in other directions for which economic approaches are pressing and/or if it fails to take social issues and necessities seriously—to the detriment of the vast majority of the population and of its living conditions—is not some degree of legal activism conceivable? At this stage—whether it is considered that it is for the political forces (exclusively) to determine social policies or whether in contradistinction it is thought that the courts have their part to play in the complex equation—the fact remains that populism more often than not instrumentalizes another elementary characteristic of the law, highlighted in the context of human rights litigation: its slow and difficult implementation.

3.2

The Impossibility of Immediate Interpretation of Rights

Even if human rights litigation did conceal advances—in what might be termed the avant-garde “social case law” of constitutional and international courts—what could be said of their actual concrete implementation? Courts can indeed do a great deal; but they cannot do everything. They cannot serve as the enforcers of their own decisions. For this they rely on other actors of the political and societal spectrum. Whether internal or international, the courts fundamentally require the loyal cooperation of representatives of the other two constituted branches of power—parliamentary assemblies by way of national administrations—but also more generally of civil society, in order to trigger the processes of implementation which may entail major impacts.105 It is significant in this respect to observe that the question of the enforcement of court rulings and beyond that their impact has for some years now been at the heart of substantial doctrinal analyses. The literature in this regard shows that jurists (above all in continental systems of law) can no longer settle for a narrow technical 105

A distinction must be made between the actual enforcement of a legal decision and its impact on society. Apart from being two separate concepts, sociological analyses have shown that a court ruling may be duly enforced but have no impact or conversely not be enforced and still have substantial political and social impact. Analytical combinations are not restricted to these two situations. See on this subject the fascinating book edited by Langford et al. (2017).

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analysis of decisions. They must embark upon the analysis of the consequences of decisions with the support of other disciplines (as in sociology), in order to provide an accurate account of the real world. Beyond the question of the execution of legal decisions in general106 and of the question of civil and political rights in particular, the enforcement of rulings in social matters is barely beginning to be the subject of specific research. Activist lawyers and specialized academics have rung alarm bells after observing the high degree of non-execution of national (and international) decision on social matters. It is therefore very clearly established that the case law on social matters that has come about in recent years has not on the whole been reflected by wholesale legal and social upheavals. The transformative power of law and more especially of court rulings on social issues is directly in question. It can be readily perceived that liberal democracies, through a complex combination of both technical (pertaining to the structure and nature of human rights law on social matters) and political (the existence of numerous obstacles at the time of implementation) factors, lie at the source of the extraordinary difficulty in coming to grips with social inequalities in order to eradicate them. The determination having being made, remedies are required. These involve making closer study of the obstacles to implementation so as not to repeat the same errors indefinitely. At stake in this, in the long term, is the continuation of the liberal democratic mechanism that can no longer simply apprehend the social question at the margins. It goes without saying here that the prime responsibility lies with the political actors; even so they must be equal to the challenge. A theoretical and empirical study published in late 2017—supervised by Professors Langford (Oslo), Rodríguez Garavito (Bogotá), and Rossi (Buenos Aires)107—looks to propose an analytical framework within which to evaluate carefully the question of both enforcement and the impact of legal rulings in economic and social matters, emphasizing the importance of four “variables”.108 Beyond the legal variable—which in itself raises a whole host of questions about the nature of the right, the profile of the claimants, the control measures ordered by the court, the nature (continental or common law) of the legal system, the judicial culture, etc.—, the importance is gauged of the political variable (with respect to the characteristics of the state and political system in question, the capacity of the state structure to implement legal decisions in social matters, of the institutional agreements within the various government structure to do this, etc.), but also the socio-economic variable (relative to the level of economic development, wealth differentials, the ethnic and territorial fragmentation of the country, the extent of political support for social policies, etc.), and the societal variable (the strength or otherwise of “non institutional social agents” and the extent of their interaction).109

106

This has always attracted North American literature, which is very much prone to sociological analyses of law. Horvitz (1977); Spriggs (1997), pp. 567–593. 107 Langford et al. (2017). 108 Langford et al. (2017), pp. 16–61, esp. 29–31. 109 Ibid, esp pp. 29–31.

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The diversity of variables to ensure swift and effective enforcement of social case law is such that it is plainly impossible to infer any generalities for certain. What is sure is that they demonstrate the tremendous complexity of the question of implementation and that in any event implementation cannot be fast and immediate as populists would have their supporters believe. Is it not symptomatic to see that, despite some remarkable jurisprudential work in many respects, the European and Inter-American systems suffer, quite literally, from the problem of the non-enforcement of their rulings? How can societies by transformed or the calls of the excluded by answered if the courts are powerless in the face of structural problems of non-enforcement? Has the ECHR not just recognized that there is a threshold beyond which the court can do no more? The decision of 12 October 2017 to strike off the case of Burmych v. Ukraine110 more than adequately shows the fundamental limits of the enforcement of decisions highlighting systemic problems (the celebrated “pilot decisions”). There comes a point where the courts can only take a back seat to politics. Yet these factors bolster the populist discourse which, as emphasized, develops a most unusual relationship with time, as

110

ECHR, Gd. Ch., 12 October 2017, Burmych and Others v. Ukraine (striking-out), req. no 46852/ 13. The Burmych judgment was despairing for unconditional defenders of the right to individual redress who, like the seven dissenting judges, did not hide their helplessness and their anger, in asserting that “la Cour tire une balle dans son propre pied, c’est-à-dire la prééminence du droit au sein des Etats membres” (pt 39), by casting “milliers de personnes désespérées dans une situation d’incertitude juridique” (pt. 41 of the dissenting opinion of judges Yudkivska, Sajò, Bianku, Karakas, De Gaetano, Laffranque, and Motoc). The reason for their anger? The use of article 37 (1)(c) to strike out the Burmych case together with 12,142 pending applications (which the Court had previously decided to join, without having precisely examined the facts and allegations of the violation), so as to forward them to the Committee of Ministers of the Council of Europe. Why was such a decision made? Because the execution of a pilot judgment against Ukraine—ECHR, Gd. Ch., 15 October 2009, Ivanov v. Ukraine—revealing a systemic problem of protracted non-execution of court rulings and of absence of effective domestic remedies for this, was never duly executed by the Ukrainian authorities. What are the procedural consequences of this judicial policy? The rewriting of the Convention concerning the respective roles of the Committee of Ministers and the Court (§141, §172, §194, §199). The Court considers that by handing down the pilot judgment in Ivanov, it had duly completed its judicial mission as defined by article 19 (§197); hence, the issues raised in Burmych (and in the 12,142 applications of the same type) “sont indissociables de la procédure de l’arrêt pilote”. Consequently, they should be dealt with in the context of the execution procedure in Ivanov and notified to the Committee of Ministers “en sa qualité d’organe ayant dans le système de la Convention la responsabilité de veiller à ce que toutes les personnes touchées par le problème systémique constaté dans un arrêt pilote obtiennent justice et réparation” (§198). In seeking to save at all costs the effectiveness of the European system for guaranteeing rights—by preventing the resources of the Court being over-affected and by preventing the suffrance time of cases from lengthening (§174)—the Court played to the full the card of subsidiarity (§197). Hence, it raised to the level of the political instance the examination of several thousand applications (which it declined to examine), leading the dissident judges to say that this was a return to the system of 1950 that bestowed a judicial function on the state representatives (pt 15 of the common dissenting opinion)! . . . Was this a refusal to carry out its judicial task of examining individual requests or was it judicial lucidity in the face of systemic problems that place constant strain on the role of the Court? Pragmatism will satisfy some, while losing sight of the ideals introduced by article 34 will be much regretted by others. A balance is hard to strike.

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it promises immediate advantageous social achievements. The delay of political deliberation like the delay specific to the execution of court judgments cannot, then, by definition square with the populist logic that will systematically denigrate the judicial system as being unable to bring about any radical and immediate transformation of societies. Although certain characteristics of democratic systems (and their legal machinery) have contributed (even indirectly) to the rapidity and ease with which populist logics have arisen, one thing is certain: once in power, these logics deconstruct and dismantle point by point what it is that constitutes the very essence of democracy. While populist rhetoric points up what are usually very real problems—to win votes from the disappointed and/or desperate—history shows that there is no question, once in power, of solving those problems. Revenge wins out over reform. Although slow, the democratic deconstruction that is triggered is inexorable even so. The processes set in motion by populist governments literally destroy from the inside what it is that has formed the basis of the constitutional compact ever since the 1789 Declaration with its article 16, the immutable wording of which continues to serve as a compass of the first order.

4 Democratic “Deconsolidation” When populist rhetoric manages to persuade to the point of enabling its authors to gain power, the repercussions are marked by incontrovertible political convergences: they verge on a democratic hold-up. It is not instantly apparent that liberal democracy has been taken hostage, and that is indeed the crux of the matter. It might even go almost unnoticed, initially at least. The vehicle for it is not the classical coup d’état— the Golpe de Estado is generally confined to the history books111—but the instrumentalization of the despair of some (those left by the wayside by the economic crisis), the indifference or even the narcissism of others (in consumer societies where acquiring things is what matters), and the nostalgia of many for “their” country which they see being transformed to the point of being unrecognizable (in the face of the major cultural and religious upheavals experienced by many societies with Judeo-

It is enlightening to read Levitsky and Ziblatt (2018), pp. 3–4: “There is another way to break a democracy. It is less dramatic but equally destructive. Democracies may die at the hands not of generals but of elected leaders – presidents or prime ministers who subvert the very process which brought them to power. Some of these leaders dismantle democracy quickly as Hitler did in the wake of 1933 Reichstag fire in Germany. More often, though, democracies erode slowly, in barely invisible steps. (. . .) Blatant dictatorship – in the form of fascism, communism or military rule – has disappeared across much of the world. Military coups and other violent seizures of power are rare. Most countries hold regular elections. Democracies still die but by different means (. . .) Democratic backsliding today begins at the ballot box.”

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Christian underpinnings).112 These feelings attest more generally to a far-reaching disenchantment with liberal democracy—“this unique mixture of individual freedom and popular sovereignty”.113 Now, be it the Americas or Europe, democracy and the principles of the rule of law are the nucleus of their political DNA. This is true on the scale of internal constitutional systems obviously,114 but also in the context of the “principles” and/or “values” that structure the regional systems. The Member States of the Council of Europe recognize the “principles” of the rule of law and of upholding human rights and fundamental freedoms (Statute, article 3);115 the Member States of the Organization of American States promote and consolidate representative democracy and “proclaim” fundamental freedoms (OAS Charter articles 2 (b) and 3(l)),116 while setting out the major bonds between democracy and the Inter-American system in the Inter-American Democratic Charter (essentially the Preamble and Part I).117 As for the states of the European Union, they share the common “values”118 on which the European Union is “founded” (TEU article 2119 and Charter of the Fundamental Rights of the European Union).

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Societies that are suffering from large waves of emigration. Many young graduates from eastern countries leave to live and work abroad, which reinforces the feeling, for those who remain, of being “invaded” by migrants and prompts them to become involved in a staunch defence of their “identity”, which they believe to be endangered. 113 Mounk (2018a, b), p. 26. 114 Arnold (2014), pp. 679–676. 115 Article 3 of the Statute of the Council of Europe states: “Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as specified in Chapter I”. 116 Article 2(b) of the OAS Charter reads: “The Organization of American States, in order to put into practice the principles on which it is founded and to fulfill its regional obligations under the Charter of the United Nations, proclaims the following essential purposes: (. . .) b. To promote and consolidate representative democracy, with due respect for the principle of non-intervention;” Article 3(l) states: “The American States proclaim the fundamental rights of the individual without distinction as to race, nationality, creed, or sex;”. 117 Recitals 8 and 9 of the Preamble to the Inter-American Democratic Charter are significant: “Bearing in mind that the American Declaration on the Rights and Duties of Man and the American Convention on Human Rights contain the values and principles of liberty, equality, and social justice that are intrinsic to democracy; Reaffirming that the promotion and protection of human rights is a basic prerequisite for the existence of a democratic society, and recognizing the importance of the continuous development and strengthening of the inter-American human rights system for the consolidation of democracy;”. Likewise Part I entitled “Democracy and the InterAmerican System” is made up of six articles that recognize in turn the importance of representative democracy, the rule of law, and the protection of human rights. Article 3 is especially significant: “Essential elements of representative democracy include, inter alia, respect for human rights and fundamental freedoms, access to and the exercise of power in accordance with the rule of law, the holding of periodic, free, and fair elections based on secret balloting and universal suffrage as an expression of the sovereignty of the people, the pluralistic system of political parties and organizations, and the separation of powers and independence of the branches of government.” 118 Skouris (2009), pp. 701–713. 119 It reads: “This Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to

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In this context, in dismissing the liberal constitutional model, it is also the values and principles specific to these international organizations—thought up and created after the Second World War—that citizens also dismiss. The divide is a gaping one and the danger of an anti-liberal spillover is very real. If citizens are no longer convinced of the legitimacy of this model, they allow themselves to be enthralled by or even to plebiscite authoritarian regimes.120 The “democratic consolidation” that was thought irreversible is no longer; deconsolidation of democracy is in operation, to take up the striking expression of Roberto Stefan Foa and Yascha Mounk.121 After measuring—with the tools of social sciences—the democratic disenchantment set out above, the two authors consider that theories on democratic “consolidation” no longer hold. Those theories worked on the principle that once established democracy could not but become stronger, improve, and become rooted; in a word, once underway, the democratic process was inexorably positive (a one-way street).122 Yet, today, citizens’ disaffection with the liberal democratic model is such that— because they are no longer convinced of its advantages—it is easy for populist discourse to spread and populist regimes to come to power; and it is easy for them to remain in control of states because the rapid dismantling of democracy from all quarters muzzles the opposition and organizes the granting of all powers to the populist party dominated by its leader.

minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” 120 Galston (2018), pp. 5–19. 121 Stefan Foa and Mounk (2017), pp. 5–15. Stefan Foa is a specialist of opinion polls in social sciences at Melbourne; Mounk is a young political scientist at Harvard doing research on the crisis of political liberalism. That research has been materialized by the simultaneous publication of the work in English (Mounk (2018a) and in French (Mounk (2018b). 122 Ibid, pp. 8–9: “Political scientists have long assumed that what they call ‘democratic consolidation’ is a one-way street: Once democracy in a particular country has been consolidated, the political system is safe, and liberal democracy is here to stay. Historically, this has indeed been the case. So far, democracy has not collapsed in any country that has experienced at least two government turnovers as a result of free and fair elections. But a large part of the reason that liberal democracy proved to be so stable in the past was its ability to persuade voters of its advantages. (. . .) What happens to the stability of wealthy liberal democracies when many of their citizens no longer believe that their system of government is especially legitimate or even go so far as to express open support for authoritarian regime forms? To answer this question, we need to conceive of the possibility that democratic consolidation might not be a one-way street after all. Democracy comes to be the only game in town when an overwhelming majority comes of a country’s citizens embraces democratic values, reject authoritarian alternatives, and support candidates or parties that are committed to upholding the core norms and institutions of liberal democracy. By the same token, it can cease to be the only game in town when, at some later point, a sizable minority of citizens loses its belief in democratic values, becomes attracted to authoritarian alternatives, and starts voting for “antisystem” parties, candidates, or movements that flout or oppose constitutive elements of liberal democracy. Democracy may that be said to be deconsolidating.” (Emphasis added).

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In this context, two essential matrices of the liberal democratic constitutional pact are deliberately and meticulously destroyed by populist regimes: the separation of powers (Sect. 4.1) and the protection of human rights (Sect. 4.2).

4.1

The Dismantling of the Separation of Powers

One of the visible effects of populist policies is the disappearance of mechanisms for countering authority. Checks and balances are no more. Democratic decline or the backsliding of democracy is characterized by the development of strategies designed to weaken, dominate, or quite bluntly wipe out the institutional processes that are part of the separation of powers. Ultimately, the party embodying populist logic holds full powers within the parliament and of course at the apex of government. The stealing away of the classical modes of democratic functioning is therefore promoted and activated for the benefit of an over-powerful executive incarnated by the charismatic leader123 who supposedly embodies the voice of the “People”, the only “political body” that counts. Based on this globalizing and hold-all promotion of the “People”—which is never identified—power is cleverly concentrated in the hands of the executive branch. Alongside this, the judicial branch of government— and especially the constitutional court, which is normally a necessary counterweight within liberal democracies—is brought under supervision and all criticism silenced. The backstop of human rights, rattled by the setting aside of the principle of the separation of power and of an independent judiciary, is thus directly threatened. The actual practice of populist governments proves that this all-out attack on factors inherent in the post-war democratic constitutional models may be made—in legal terms—in various ways: either by constitutional reform in due and proper form (as in the cases of Venezuela, Ecuador, and Peru in Latin America and the Hungarian scenario in Europe) (Sect. 4.1.1); or by legislative overhaul, which makes the principles enshrined in the constitution inoperative, with the constitution remaining in place but being meaningless (this is the case in Poland) (Sect. 4.1.2).124

4.1.1

Dismantling by Way of Constitutional Reform

Constitutions of a particular type have come into being on both sides of the Atlantic. Some have put in place what Latin American doctrine has called a Nuevo constitucionalismo—the subject of prolific literature on the American

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The leader and/or his (or her) party. Apart from these examples, the specialized literature shows very clearly that democratic backsliding is spreading rapidly to other countries of central and Eastern Europe such as Bulgaria, Romania, and Slovakia. Among a wealth of literature, see Rupnik (2017), pp. 69–85; Macovei (2018), pp. 127–144. 124

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continent125—while others—like the Hungarian constitution of 2011—have promoted what looks to be a “populist constitutionalism”. It is beginning to be deciphered by a part of the community of constitutional scholars which has appraised the perpetuity of the phenomenon.126 And for good reason, as it is through the slant of the constituent assembly that populist leaders decide to dismantle liberal democracy. Put otherwise, they use the tools of modern constitutionalism—political break with the past through constitutional change—to weaken its liberal conception.127

In Latin America Chilean political scientist Javier Couso has clearly shown how three radical regimes were set up in Venezuela, then Bolivia, and in Ecuador following the same “scenario”.128 The action unfolded in four acts. First, power was secured and hands laid on the executive by electoral processes under the former constitutional systems, while making use of revolutionary rhetoric promising to radically change the established order. Upon coming to power, referendums were called for to consult the people about the idoneity (fitness for purpose) of a new constitution, as a symbol of the establishment of a new political era. The third act involved the formation of a new constituent assembly to draft the text of a new constitution, while the fourth act saw a second referendum to ratify that document. Although the existing constitutions were plainly violated according to Javier Couso—insofar as they did not provide for the adoption of substitution mechanisms under such circumstances—, the forceful and repeated popular approval gave unprecedented legitimacy to these processes which, furthermore, did not give rise to any mass violence.129 The Venezuelan, Bolivian, and Ecuadorian constitutions were adopted in 1999 for the first130 and 2008 for the other two.131 If the latter two are often lauded, it must be seen as the effect of an impressive specificity: they attribute rights to Pacha Mama (“Mother Nature”). They have also pushed multi-ethnic logic a long way in the distribution of power. The Venezuelan Constitution of 1999 was also lauded because it introduced a particularly modern clause that was rightly considered to be one of the major

125

See footnote 58. Halmai (2018a, b, c). By the same author, Halmai (2017a), pp. 33–45. 127 It is worth referring here to the analysis by Luigi Corrias who sets out what he sees as three readings of a constitutional theory of populism; see Corrias (2016), pp. 6–26. 128 Couso (2015), p. 8. The author significantly uses the term “guión” (scenario). 129 Anglo-Saxon doctrine is divided on these constitutional changes. While they are considered “unconstitutional” and seen as vehicles for future authoritarian excesses by some (see for example Landau 2013), they are viewed conversely as necessary by others to end the vicious circle of exclusion and social injustice (see Braver 2018). 130 Constitution of 30 December 1999, OJ of the Republic of Venezuela no 36.860. 131 Bolivian Constitution of 25 January 2009 and Ecuadorian Constitution of 28 September 2008. 126

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innovations of the constitutional text.132 It granted constitutional rank to international treaties on human rights signed and ratified by Venezuela and provided for their primacy in the internal order when their standards as to the enjoyment and exercise of rights are more favourable than those laid down by the Constitution (article 23).133 Although these new constitutions are therefore in some respects highly original and interesting, they are no less worrying when we examine the new means they put in place for distributing roles among the constituted powers. It is an edifying observation. Power is clearly concentrated in the hands of the executive branch and the power of the judiciary is plainly weakened. This is there for all to judge. The executive wields impressive power insofar as it has exorbitant authority especially with regard to what is found in presidential systems of liberal constitutions. This is the case in Ecuador for the dissolution of the Assembly by the President when it “repeatedly without justification obstructs implementation of the National Development Plan or because of a severe political crisis and domestic unrest”;134 or in Venezuela the option of decreeing a state of emergency without consulting the legislative branch and with no judicial review of the said decree for a week.135 As concerns the weakening of the principle of the separation of powers to the detriment of the judicial branch (Judicatura), there is no room for ambiguity either. In Bolivia and Ecuador the judiciary is placed under “popular supervision” or supervision of the executive.136 In Venezuela the judiciary is subordinate in practice to the government, as a result of the permanent supervision of the bodies tasked with appointing judges and which are controlled by the executive branch. The upshot is that in these three countries there is no independent judiciary.137 It is worth dwelling a moment here on the Venezuelan case. To paraphrase Gabriel García Marquez, it could be said that Venezuela provides a chronicle of a dismantling foretold. It suffices to read Alan Brewer Carías—one of, if not the greatest of, Latin American comparative law scholars—to understand the continuing destruction of all the democratic mechanisms of his native country, which had been one of the wealthiest, most developed, and most stable states of the continent since

132

Brewer Carías (1999), p. 161. The original text of article 23 reads: “Los tratados, pactos y convenciones relativas a derechos humanos, suscritos y ratificados por Venezuela, tiene jerarquía constitucional y prevalecen en el orden interno, en la medida en que contengan normas sobre su goce y ejercicio más favorables a las establecidas por esta Constitución y la ley de República, y son de aplicación directa por los tribunales y demás órganos del Poder Público.” 134 Art. 148 of the Ecuadorian Constitution. 135 Art. 339 of the Venezuelan Constitution. 136 Article 182 of the Bolivian Constitution and article 198 of the Ecuadorian Constitution. 137 Lastly, it should be emphasized that bicameralism was abolished in Ecuador and Venezuela so as to make the relationship between the sovereign power and the people and organs of the state, and more specifically the executive, more fluid. 133

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1958.138 As if bearing witness for history, there is not an episode of this tragic “deconsolidation” that has not been recorded by A. Brewer Carías in his countless works, which are eloquently accurate and thorough.139 A number of his Latin American colleagues have also contributed to deciphering the country’s democratic meltdown.140 It arises from these many writings that democracy vanished both because of the executive clamp-down on the judiciary initially (and more especially on the Constitutional Chamber of the Supreme Court of Justice, SCJ),141and then by a continuing series of non-constitutional acts that spread through populist practice culminating in 2015, 2017, and 2018 in three paroxysmal events that finally dug the grave of Venezuelan democracy. In 2015, when the opposition won the legislative elections for the first time, the Constitutional Chamber of the SCJ 2015 declared the elections invalid.142 On 1 May 2017, a new constituent process was launched by decree (no 2830)143 in blatant contradiction of articles 347 and 348 of the Constitution.144 It ended in the abrogation of the 1999 Constitution and the convening of early elections. Although Nicolás Maduro was officially proclaimed to have been re-elected on 20 May 2018, the date marked above all a popular rebellion characterized by the rejection of what was an electoral masquerade: 82.7% of the population did not turn out to vote. What will the next step in this democratic hold-up be? For the time being, it is turning into widespread pauperization and a massive exodus of the population to neighbouring countries: Colombia, Peru, and Bolivia. The populist rhetoric on social justice and on the end of poverty and exclusion shows how inane it is. The initially generous redistribution policies are changing over the long term and without a more comprehensive vision into a large-scale human disaster. It is impossible to say

138

It should be remembered that it is an oil-producing country and a founder member of OPEC that has the world’s leading hydrocarbon reserves (ahead of Saudi Arabia), income from which meant it was long the wealthiest country in Latin America. 139 All his work (books, articles in legal journals, press articles, lectures) are on line on his site: www.allanbrewercarias.com. 140 Brewer Carías and García Soto (2017). 141 Transforming the system of constitutional system justice into a system of constitutional in-justice as it is called in Brewer Carías (2007). 142 Brewer Carías (2015). 143 It was denounced by very many Latin American constitutionalists in the collection of texts put together by Brewer Carías and García Soto (2017), passim. 144 Article 347 reads: “The original constituent power rests with the people of Venezuela. This power may be exercised by calling a National Constituent Assembly for the purpose of transforming the State, creating a new juridical order and drawing up a new Constitution.” Article 348 states: “The initiative for calling a National Constituent Assembly may emanate from the President of the Republic sitting with the Cabinet of Ministers; from the national Assembly, by a two-thirds vote of its members; from the Municipal Councils in open session, by a two-thirds vote of their members; and from 15% of the voters registered with the Civil and Electoral Registry.”

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whether there will be a transition from populism to a dictatorship145 in due and proper form and whether the rhetoric of the People versus the Others will be superseded by arbitrary arrests and executions, and enforced disappearances, with tanks and the sound of jackboots becoming everyday features. What is true today is that in this long process of disintegration attacks on the mechanisms for protecting human rights have come to a head.146 It is crucial to hammer home that the on-going process of democratic disintegration began with the judiciary coming under the supervision of the executive. From as early as the year 2000, the Constitutional Chamber of the Supreme Court was simply the agent of the executive within the state.147 From that point on the worm was in the fruit and, it might be added, the writing was on the wall. This point should be deeply disturbing for Europeans: the same scenario is unfolding today in the very heart of the Union which is certainly no longer a “club” of democratic states attached to the values of article 2 TEU and the values of the Council of Europe which, in addition to Hungary and Poland, is composed of countries like Turkey and Russia that are governed by two authoritarian populists.148

In Europe The adoption of a new Constitution in Hungary in 2011 did not go unnoticed.149 It caused a stir in the Venice Commission,150 both because of its content151 and the way in which it was approved, keeping the opposition and members of civil society out of the constituent process. How could it have been promoted so easily? Hungary’s Professor Gábor Halmai152 clearly shows what enabled Viktor Orbán’s party to win the 2010 elections and to be in a position of force to set in motion the

145

One of the latest studies by Alan Brewer Carías takes the view that the most recent episode in this sad disintegration of democracy has plunged Venezuela into dictatorship: Brewer Carías (2018). 146 See the “difficult riposte” below. 147 Brewer Carías (2009), pp. 383–418. 148 Instel (2018), pp. 189–195; Radvanyi (2018), pp. 202–208. 149 Badó and Mezei (2017), pp. 109–127. 150 The new Hungarian Constitution, adopted on 18 April 2011 by the National Assembly and signed by the President of the Republic on 25 April 2011, came into force on 1 January 2012. The new constitution has given rise to lively exchanges both nationally and internationally (see the CDL opinions (2011) 016 and CDL (2011) 001 of the European Commission for Democracy through Law (the Venice Commission), resolution no 12490 filed on 25 January with the Parliamentary Assembly of the Council of Europe, the declaration of the Council and the Commission, and the resolution of the European Parliament of 5 July 2011. See also the Editorial comment by Azoulai (2012), pp. 871–883. 151 On one side the new Constitution expressly enhances some of the rights enshrined in the Charter of Fundamental Rights of the European Union—see Berkes (2017), pp. 425–464—on the other, it exacerbates many a nationalist element. 152 Currently at the European University Institute in Florence.

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legislative and constitutional reform mechanisms in its wake. Dissatisfaction of much of the population was running high both with the government in office at the time and with the transition process itself.153 It was easy, then, for Fidesz to instrumentalize this feeling vociferating that there was no question in 1989/1990 of any real democratic transition. The time was therefore ripe for a “genuine” revolution that Fidesz was to set in motion. It is crucial here to notice a common feature with other populist scenarios: the speed with which once in power the government acts to dismantle what is the very essence of the rule of law: the separation of powers together with, what is normally the key to this, the independence of the courts of law. Even before the Constitution came into force on 1 January 2012, the Hungarian Parliament had prepared and adopted a series of legislative texts profoundly altering the democratic working of the country. They concerned freedom of the press, criminal law, family law, and the law of nationality, electoral law, the statute of churches and last but not least the workings of the Constitutional Court. The “deconsolidation” did not stop there: in the final days of 2011, the Parliament adopted a “Transitional Provision to the Basic Law” of constitutional rank the purpose of which was to stand in for the new constitution that had not yet come into force.154 From then on, the authorities embodied in the person of Viktor Orbán never stopped unravelling the democratic acquis of the separation of powers and opposing the European Union, which embodied a corrupt Establishment remote from the concerns of the unified Hungarian “People”, in a discourse that played on feelings of identity. As of this constitutional reform, populist rhetoric continued to rage so as to enable Fidesz and its leader to remain in power: fake news became the “official narrative” once the free press was muted.155 The policy was openly called for and posted: it was and more than ever still is brandished as a banner of Hungarian national identity. The speech by Viktor Orbán on 26 July 2014 is emblematic of it.156

Halmai (2018a, b, c) “Before the 2010 elections, most voters had grown dissatisfied not only with the government, but also with the transition itself, more than in any other East Central European country. Fidesz fed these sentiments by claiming that there had been no real transitions in 1989–1990, and that the previous nomenklatura had merely converted its lost political power into economic influence, pointing to the previous two prime ministers of the Socialist Party, both of whom became rich after the transition owing to privatization. Fidesz’s populism was directed against all elites, including the elites who designed the 1989 constitutional system (in which Fidesz had also participated), claiming that it was time for a new revolution”, pp. 3–4. 154 Professor Halmai affirms that “These new laws have been uniformly bad for the political independence of state institutions, for the transparency of law and for the future of human rights in Hungary”, see Halmai (2018a, b, c), p. 4. 155 See the interview with Peter Kreko, Director of the Atlanticist and liberal think tank Political Capital in Le Monde of 9 April 2018. 156 Speech of Prime Minister Victor Orbán on the 25th anniversary of the State Free University. Reproduced on the Hungarian government’s official website, http://www.kormany.hu/en/theprime-minister/the-prime-minister-s-speeches/prime-minister-viktor-orban-s-speech-at-the-25thbalvanyos-summer-free-university-and-student-camp. An English translation appears on the website “Budapest Beacon”. 153

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He assert that “the new state that we are building is an illiberal state, a non-liberal state” that “does not deny foundational values of liberalism, [such] as freedom” but “does not make this ideology a central element of state organization” which “applies a specific, national particular approach”. He goes on to say that “it is impossible to build a new state based on illiberal and national functions within the European Union”. By transforming an expression to the point of making it the trademark of populist constitutionalism, he quite simply instrumentalized what American political scientist Fareed Zacharia had described in an article in the journal Foreign Affairs in 1997. The Next Wave. The American diplomat Richard Holbrooke pondered a problem on the eve of the September 1996 elections in Bosnia, which were meant to restore civic life to that ravaged country. “Suppose the election was declared free and fair,” he said, and those elected are “racists, fascists, separatists, who are publicly opposed to [peace and reintegration]. That is the dilemma.” Indeed it is, not just in the former Yugoslavia, but increasingly around the world. Democratically elected regimes, often ones that have been reelected or reaffirmed through referenda, are routinely ignoring constitutional limits on their power and depriving their citizens of basic rights and freedoms. From Peru to the Palestinian Authority, from Sierra Leone to Slovakia, from Pakistan to the Philippines, we see the rise of a disturbing phenomenon in international life—illiberal democracy.157

Fareed Zacharia was obviously alarmed by the phenomenon. Conversely, Viktor Orbán changed it into the banner of what he wants and thinks will be a new political era. Hence he creates an ontological break with the construction of the post-war constitutional and international model, highlighting in his discourse all the failures of liberal democracy that came about in Hungary in 1990. Such an approach is not consistent with being in the EU, which is based on values (article 2 TEU) that the member state no longer recognizes. The confrontation between “models” could not be more paroxysmal.

4.1.2

Dismantling by Legislative Revision

What can be said of the Polish case,158 except that democracy was dismantled without touching the Constitution of 2 April 1997? Largely inspired by the Hungarian approach of Fidesz,159 the Law and Justice Party (PiS), which came to power in 2015, deployed an array of legislative measures in all directions to make a lighting attack on anything that might impede the action of the newly elected authorities. In the space of barely two years no fewer than thirteen statues were enacted that had far-reaching effects on the architecture of the entire judicial system. In other words, apart from being swift, the dismantling was systemic as W. Sadursky rightly

157

Zacharia (1997), pp. 22–45. Sadurski (2018). 159 “Budapest to Warsaw” was the expression Kacyński used when his party (the PiS) came to power in 2015. 158

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emphasizes.160 Accordingly the key elements of the workings and powers of the Constitutional Court, the Supreme Court, the ordinary law courts, the National Council of Judiciary, of the prosecution services, and of the National School of Judiciary were altered in depth.161 The common point in these legislative reforms is the granting of power to the executive and to the legislature (which is also in the hands of the PiS and more specifically of one man, Kacyńsky), to intervene significantly in the composition, powers, administration, and operation of these various institutions without the Constitutional Court having any say. Professor Wojciech Sadursky—who has examined the Polish situation in particular depth— considers that it is a display of “anti-constitutional populist backsliding”, which he considers the most suitable way to describe the situation in his country. He shows quite plainly that the adoption of numerous statutes was clearly intended to circumvent specific constitutional provisions both in the area of justice (constitutional and ordinary) and in the area of pluralism in the media in particular. He suggests that power has become so highly centralized that the headquarters of the PiS has become the emblem for it.162 In such a context, Adam Bodnar—Poland’s Ombudsman who represents one of the rare institutions that are still independent in Poland—sets out the issues most accurately: “Poland is currently facing new challenges – how to protect human rights in a country where constitutional review is subject of political manipulation and where the Constitution of 2 April 1997 was de facto changed via legislative means, while the original text of the Constitution remains intact?”163 These two European countries in the geographical and institutional senses of the word—both are located in the heart of Europe and both are members of the European Union—although pervaded by several differences are driven by a common obsession: the obsession of not losing their “identity” as white Christian countries.164 This 160

Sadurski (2018), pp. 4–5. Bodnar (2018), pp. 639–662. The beginning of the article by Adam Bodnar, Defender of the Polish People summarizes everything: “In 2015–2017 the attempt to dismantle rule of law guarantees was undertaken in Poland. The new government of the ‘Law and Justice’ party (PiS) won the majority in elections in October 2015. A number of reforms were introduced. Most importantly, the independence of the Constitutional Court was undermined. The paralysis of the typical daily operation of the Constitutional Court allowed the ruling majority to pass legislation that aimed to centralize state power. The legislation (except for one law) was never verified by the Constitutional Court. In 2017, the ruling majority passed legislation threatening judicial independence, most notably the Supreme Court and the National Council of Judiciary.” pp. 639–640. 162 Sadurski (2018), p. 10: “‘Nowogrodzka’ (the Warsaw address of the PiS headquarters, where Kaczyński has his main office) became synonymous with the true locus of power. When ministers need a strategic decision to guide their action, they ‘go to Nowogrodzka Street’.” 163 Bodnar (2018), p. 640. 164 Adam Bodnar’s testimony is edifying in this respect: “Another set of anti-constitutional actions by the government was its policy towards refugees and migrants. Poland is one of the most homogenous member states of the European Union, with 98% of the population belonging to the Polish nation, and over 90% being Roman Catholic. The migration crisis in Europe coincided exactly with the electoral campaign. Therefore, the topic of migration and relocation of refugees within the EU, according to the scheme agreed on by the EU, was subject of intense discussion during the electoral campaign and its aftermath. The argument of a general fear of the Polish society 161

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“cultural war” as Jacques Rupnik calls it is a major factor in this nationalist populist closure.165 In this context, infringements of human rights cannot but arise systematically.

4.2

Human Rights Flouted

Populist regimes have a very odd relationship with human rights. They proclaim themselves champions of the defence of economic and social rights, ignored by liberal regimes, while they make a head-on attack on a key number of civil and political rights, particularly to maintain their grip on the People of whom they are supposedly the embodiment.166 One of these rights soon becomes a favourite target: freedom of expression. Any critical comment is presented ipso facto as illegitimate. Criticism of the policy conducted by the populist leader is analysed ipso facto as an attack on the “People”. The circle is completed. Here we are dealing with exactly what both the German academic Jan-Werner Müller and the Secretary General of the Council of Europe pointed up: anti-pluralism is intrinsically related to populism (Sect. 4.2.1).167 Beyond a radical assault on the freedom of expression (affecting the press, political opponents, NGOs, etc.) it is also and probably even more fundamentally the equal dignity of human beings that is directly denied (Sect. 4.2.2).

towards migration was used both as a justification of certain legislative reforms (especially surveillance powers of secret service as well as methods to increase popular support of government policies. In consequence, Poland has refused to participate in the EU relocation scheme.” See Bodnar (2018), pp. 650–651. 165 Rupnik (2018), pp. 24–38. This cultural war is waging not only in Poland and Hungary but beyond the borders of the old continent. It can be found in the speeches of Vladimir Putin who lambasts the decadence and permissiveness of Europe (which disregards traditional values, especially on marriage and sexual orientation) or of Donald Trump who, on an official trip to Warsaw, encouraged Poland to serve as a rampart of western civilization for “the family, freedom, the country and for God”, see Rupnik (2018), p. 27. 166 This is typical in Latin America. The theoretical article (although based on multiple experiences of populism in Latin America) by the Argentinian Marcelo Alegre (see Alegre 2016), shows wonderfully well how populist regimes and “Kirchnerism” foremost have a symbiotic relationship with human rights. Although therefore the populist government of Nestor and then Cristina Kirchner have had as their standard the preservation of human rights (and especially the fight against impunity) on the other hand the observation of infringements of numerous rights has been equally blatant. For a presentation of nuances between populisms in Latin America (and more specifically between Venezuela and Argentina), see Saint-Upéry (2018), pp. 157–163. 167 See above.

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Delegitimized Freedom of Expression

Being able to express oneself freely is the mark of a thriving democracy. Criticism (from the political opposition, trade unions, human rights activists), satire (even in poor taste), in short opposition of all kinds, are the hallmark of a system in which multiple voices, and notably those of political minorities but also those of “entertainers” may speak out without fear, without being afraid of any “chilling effect”. This is very rapidly no longer the case in populist regimes which organize a delegitimization of any challenge from whatever quarter: the opposition (if it succeeds in becoming structured), the press (if it is not silenced), and the representatives of civil society, NGOs, and academics (if their operating resources are not restricted or even cut off). Delegitimization of criticism is only the first stage in this offensive. The second is to reduce it and even to reduce it to naught. Such scenarios occur whichever the continents, whatever the position on the political spectrum of the populist regimes, from Chávez and Maduro to Donald Trump, Kacyński, Orbán, Putin, and Erdogan. Multiple stratagems are at work ultimately to ensure the adoption of laws that whittle away the freedom of the media, that restrict or prohibit the possibility for NGOs, and especially foreign NGOs, to express critical opinions. Such strategies have major impacts on electoral processes which no longer unfold in a peaceful setting where all points of view may be expressed (Hungary)168 and in which opposition leaders are arbitrarily imprisoned (Venezuela).169

4.2.2

The Equal Dignity of Human Beings Flouted/Repudiated

Populist discourse and populist governments incontrovertibly share a common feature: the valorization, better still the idealization of the “People” (who are never identified). The People can do anything, the People are worth everything. They have a single common interest and are built up into a “political unit”. This approach to the “People” is in outright contradiction with what forms the matrix of human rights based on plurality and the protection of minorities and, beyond that, on the protection of “all” human beings. Hence, the first attack made by populist discourse and practice concerns the negation of the philosophy underlying human rights. The logic inherent in human rights implies that the human being, regardless of condition, sex, origin, nationality, and so on has the right to protection of his or her rights. No matter

168

For concrete references on the Hungarian case and the infringements of freedom of expression (and reactions of the Venice Commission and the UN Human Rights Committee), see the report by ecologist MEP J. Sargentini (2018). It is worth pointing out an alarming item of information the MEP tells of. On 13 April 2018 the OSCE representative for media freedom firmly condemned the publication by Figyelö magazine in Hungary of a list of 200 people who colluded (with some 1500 others) to “overthrow the government” (point 32 of the report). 169 The case of political opponent Leopoldo López is significant.

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whether he or she is an admirable person or a despicable criminal,170 a national or a foreign citizen, an all-powerful individual or one of the “Wretched of the Earth”.171 The divide with populist rhetoric gapes wide indeed. Conditional upon the historical context and the politico-economic situation in which the populist movement and/or government fits, it could at its convenience and depending on circumstances, and ideological contacts either denounce the protection of foreigners (right-wing populism), or condemn the protection of turncoats, criminals, or terrorists, or both.172 Worse still, it may also revive a nauseating antiSemitic discourse as with the hate-speech propagated by Viktor Orbán in Hungary in order to remain in power.173 Populist discourse by appealing to emotions more than reason,174 can very readily instrumentalize the logic inherent in the protection of rights, change it either into a weakness or a form of complicity in order to criticize the fact that the “People”, the “true People” are forgotten or worse still denigrated by an Elite, a judicial oligarchy, “on high” that serves only its own interests and/or the interests of “Others”. In this context, it is particularly easy to take apart the protective mechanism of a regional court for the protection of rights; to criticize protection that applies to the “Other” but not to the “People”. When the European Court considers that the transfer of migrants to Libya by the Italian authorities is a “collective expulsion of aliens” prohibited by article 4 of Protocol No. 4;175 when it suspends expulsion measures because of a “real risk” of creating an “irreversible situation” or “irreparable

The example often presented here is the case of Ilse Koch also known as the “Bitch of Buchenwald”. Although she was a former concentration camp warden that did not “deprive her [. . .] of the rights and freedoms defined in the Convention.” (Com. EDH, 1962, Ilse Koch v. RFA, Reports, no 8, p. 91). 171 The celebrated expression from the Internationale was used as a title by Franz Fanon: Les Damnés de la terre (1961); The Wretched of the Earth (1963). 172 Donald Trump, in engaging in his rhetoric on the “Wall” meant to stem illegal immigration of Mexicans who were presented as aliens and criminals to boot. The same logic inspired the ban on nationals from several duly identified Arab Muslim countries from entering U.S. territory. 173 Viktor Orbán, as part of his legislative campaign in April 2018—after eight years in power— went so far as to use anti-semitic discourse against George Soros (the famous U.S. philanthropist of Hungarian origin) and his “plan”—dubbed a “plot”—for the “invasion” of Hungary by “hordes” of Muslim migrants. The leader of the European People’s Party (EPP) in the European Parliament, Manfred Weber (of which Fidesz is a member), went to Budapest to lend a hand to the Hungarian leader in winning the elections. The complacency of the EPP, which is the major right and centreright party, with the Hungarian government is tragic and has not prompted widespread indignation, apart from those who are aware of the simply unacceptable character of this alliance. See the analysis by Garton Ash (2018). 174 See the enlightening article by Pierre Birnbaum in the journal Cités. He brilliantly deciphers the language of La France insoumise that is resolutely inspired by the work of Chantal MOUFFE for whom “emotions play a part in politics”: they can be used to mobilize an “us” by mobilizing passions. The “people” is thereby formed into a unified “us” through the emotions. See Birnbaum (2017), pp. 163–173. 175 ECHR, Gd Ch., 23 February 2012, Hirsi Jamaa et al. v. Italy. 170

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prejudice” for foreigners facing expulsion;176 when it prohibits states from expelling aliens, even if illegal immigrants, who are seriously ill;177 when it considers that asylum seekers must be detained in decent conditions;178 when it considers that an alien, even having entered the country illegally, has the right to continue to live in the Netherlands in which country she has started a family;179 when it excludes any difference in treatment based on nationality for the allocation of welfare services (consequently by recognizing the entitlement of aliens),180 and so on; there is in that a big mistake from the point of view of certain populist movements and regimes with regard to the “People” whose rights are not protected. Similarly when the European Court forces a state to change the life sentence of a criminal (who had killed his wife) to a thirty-year term;181 when it condemns a state to revise the blanket and automatic prohibition of the right to vote for prisoners;182 when it reminds states that criminals affiliated with terrorism, whether Islamic,183 or Basque184 are entitled to the guarantees of the Convention, especially from the perspective of article 5. . .; when the fate of prisoners and their conditions concerns it to the point of issuing pilot judgments,185 forcing states to take general measures to address these problems systematically. . . the populists have a field day. This protective generosity towards the Other (the alien and/or criminal) merely feeds the populist language that lambasts the Elites, especially judges (including and probably above all international judges) , who forget the real “People”—who take the form either of national citizens attached to their identity and security (in the Hungary of Viktor Orbán, the Poland of Kacyński, the United Kingdom of the Tories, or the United States of Trump), or anyone attached to their decent living conditions (in the Spain of Podemos or Greece of Syriza).186 Yet, if we set aside the protective case law referred to above and the difficulties for the courts either to address social issues plainly and simply or to have their legal judgments on social matters rapidly executed, all short-cuts and simplifications are possible for populists.

176

ECHR, 19 September 2013, R.J. v. France; ECHR, 10 October 2013, K.K. v. France; ECHR, 14 November 2013, Z.M. v. France; ECHR, 19 December 2013, N.K. v. France. 177 ECHR, Gd Ch., 13 December 2016, Paposhvili v. Belgium. 178 ECHR, M.S.S. v. Belgium; ECHR, Gd Ch., 3 November 2014, Tarakhel v. Switzerland. 179 ECHR, Gd Ch., 3 October 2014, Jeunesse v. The Netherlands. 180 ECHR, 9 July 2009, Zeïbek v. Greece; ECHR, 28 October 2010, Fawsie v. Greece; ECHR, 28 October 2010, Saidoun v. Greece. 181 ECHR, Gd Ch., 17 September 2009, Scoppola v. Italy (no. 2). 182 ECHR, Gd Ch., 6 October 2005, Hirst v. United Kingdom (no. 2). 183 ECHR, 17 January 2012, Othman v. United Kingdom. 184 ECHR, 30 June 1999, Herri Batasuna and Batasuna v. Spain; ECHR, 2 October 2008, Leroy v. France; ECHR, 26 January 2012, Sagarzazu v. France. 185 ECHR, 8 January 2013, Torreggiani and others v. Italy; ECHR, 25 November 2014, Vasilescu v. Belgium. 186 For an article presenting the populist discourse on human rights of Podemos (centred on social justice) and of the Tories (centred on security), with a common hatred of the European Union, see Nash (2016), pp. 1295–1308.

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It will be ever so easy to make the “People” believe that it is forgotten or even denigrated by the courts, by these Elites that are cut off from reality. Logically, the overvaluation of the “People”, of their interests and of their wants, calls directly into question the forms of representing them eventually to the point of dismantling the principle of the separation of powers. Confronted with this democratic “deconsolidation”, in what way are the mechanisms of court protection of human rights capable of fighting back?

5 The Democratic Riposte The Dictionnaire historique de la langue française defines riposte as a sharp and swift response to an aggressive interlocutor. The term is “borrowed again in fencing to denote an attack that immediately follows a parry (1640)”.187 This scholarly dictionary also emphasizes that it was a big hit in the military domain. It has therefore been chosen on purpose here. It is a real war of values that is shaping up worldwide and that will without a doubt structure the state of power relations within and between states for many years to come. The populist turn being experienced in Europe, the United States, Latin America, and other countries in Asia,188 and Africa189 is not transient. It is a groundswell in which liberal democracy is no longer the ideal horizon and even less is it idealized, but a movement in which authoritarianism commands overwhelming support. Confronted with this unprecedented regression since the end of the World War Two and the concomitant rise of modern constitutionalism and of multilateralism, what is to be done over the long term? What is the right response to it; the right strategy to deploy to allay the fears (sometimes legitimate, sometimes unduly exacerbated) of an ever-growing part of the population, while holding out against discourse and policies that, in the long run, are the destroyers of human rights and freedoms? The riposte needs to be ambitious (Sect. 5.1.3). For this, the riposte must be sustained and powerful; it must mobilize all those who believe in the virtues of political liberalism on pain of heading for a long period into large-scale democratic recession. This riposte has already made itself felt. There is no denying the evidence: the riposte is no easy matter (Sect. 5.1). It has begun to materialize through the mechanisms for the protection of rights; however, there are no guarantees it will prove effective: numerous stratagems have been put in place to weaken or annihilate it.

187 Rey (1998), p. 3258. (La riposte “désigne une réponse vive et rapide à un interlocuteur agressif”. Le terme est “réemprunté en escrime pour désigner une attaque qui suit immédiatement la parade (1640)”). 188 One need only think of the Philippines of Rodrigo Dutertre (See Camroux 2018, pp. 214–221) or the South Korea of Park Geun-Hye when she was still in power. 189 Carbone (2005).

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The Difficult Riposte

Faced with this Machiavellian instrumentalization of the mainsprings specific to democracies, it is noteworthy that many types of actors have reacted. Courts—both constitutional190 and international191—have played their part in the riposte. They have protected both freedom of expression (especially that of the media, the courts, and/or of the opposition) and the independence of the judiciary, two factors that now structure the “populist dispute” with the organs that protect rights.

5.1.1

The Judicial Riposte

In Hungary, when the Constitutional Court was still independent, it was able to fight back against the blatant attacks on free speech. In its judgment no 165/2011 (XII. 20.) of 19 December 2011 it found certain articles of the statute on the media to be unconstitutional. Ultimately, it was futile. No allowance had been made for the constitutional subterfuge by the parliament. On 11 March 2013, it added a “Fourth Amendment” to the 2011 Constitutions, the objective of which was to reactivate the most controversial legislative provisions on press law that had been nullified by the Constitutional Court. Similarly, when the Constitutional Court was still in the majority independent, it was able on 16 July 2012 to find unconstitutional192 the sudden change in rules on the retirement age entailing the forced retirement overnight of some 274 judges.193 Again, the riposte failed to bear fruit. Apart from the Although constitutional courts may hold good through “bad” political weather, one thing is sure: once their composition has been revised, once their independence has been eroded, the riposte is annihilated. It no longer strikes home. The courts become merely the puppets of the executive branch as pointedly attested to by the Venezuelan case. 191 International courts may riposte for so long as populist governments do not denounce the protective texts underpinning their jurisdiction. 192 It had been lowered from 70 to 62 years with the entry into force of the new Constitution on 1 January 2012. The new rule also applied to Hungarian prosecutors and solicitors. 193 Halmai (2017b), pp. 471–488. Gábor Halmai detailed the Court’s reasoning also pointing out that the decision was supplemented by two separate opinions of judges freshly appointed by the executive, p. 479: “Judges elected through the governing party’s new two-thirds parliamentary majority, without the consent of any opposition party, wrote a number of dissenting opinions explaining their views. Some (Justices Balsai and Dienes-Oehm) argued that judicial independence only guarantees independence of decision-making in the concrete case and does not guarantee a continuing judicial appointment. As a result, judges may never be removed from particular cases, but the Constitution does not protect them from being removed from their positions by a general law. Others (Justices Szívós, Lenkovics and Szalay) noted that the retirement age was lowered both in the pension law and also in a constitutional amendment, which meant to them that the Court could not review it because the Court had no power to review constitutional amendments. These justices had a point: different sources of law said different things on the retirement age. But only the constitution said that judges must retire by the “general retirement age”, and that is precisely what the Court’s majority opinion said was problematic in the new pension law, because, in fact, no retirement age was ‘general’. Still others (Justices Pokol and Stumpf) argued that the judges had no 190

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point that, on the day after the judgment was handed down, Viktor Orbán declared that the new system, although held to be unconstitutional, would remain in place, the intervention of the Constitutional Court in this matter was slow and shows the limits inherent in the very act of adjudicating. The Court ruled a year after the first applications had been filed and emphasized that it was unable to enforce the judges return to work.194 At this stage, it was thought that European procedures would effectively counter these limitations of the internal order. This was the whole point of being a member state both of the European Union and of the Council of Europe. The European Commission, which was monitoring developments closely,195 decided to activate the procedure for failure to fulfil an obligation under article 258 TFUE. On 6 November 2012, the ECJ found Hungary had infringed the legislative framework arising from Directive 2000/78/EC in terms of infringement of the principle of non-discrimination on the grounds of age.196 Contrary to the Constitutional Court and the view of Advocate General Kokott (pts 54–55), the Luxembourg Court did not breathe a word about violation of the principle of the independence of the courts. It preferred to play the technical card, basing its argument on what is in the end classical case law on non-discrimination matters, rather than engaging head-on in a battle for compliance with a point relating to upholding the rule of law. The economic DNA of the project of European integration undoubtedly explains this lack of backbone, despite there being articles (article 2 and 7 TEU) and a major text (the Charter of Fundamental Rights which has been raised to the status of primary law) that would have fully authorized a more ambitious approach. In any event, the European Court of Human Rights was able to play its part in the riposte supplementing as it were the technical approach of the ECJ. Whereas the Hungarian Parliament was passing a statute ad hominem in order to remove András Baka from the Presidency of the Supreme Court,197 the Grand Chamber handed down an exceptional judgment that will remain among the greatest of its recent “repertoire”. It defended unflinchingly what is fundamentally important in times of democratic

standing to bring the case in the first place either because they should have gone first to the labour courts (Pokol) or because they had already been fired and so their cases were moot (Stumpf).” 194 Halmai (2017b), p. 479. 195 As did the European Parliament which also stood up to be counted expressing its “serious concern” regarding the deteriorating quality of democracy in Hungary (Resolution of 16 February 2012 on “recent political developments in Hungary” (2012/2511(RSP). 196 ECJ, 6 November 2012, Commission v. Hungary, case C-286/12, ECLI:EU:C:2012:687. Point 81 of the judgment reads: “In the light of all of the foregoing, it must be held that, by adopting a national scheme requiring compulsory retirement of judges, prosecutors and notaries when they reach the age of 62 – which gives rise to a difference in treatment on grounds of age which is not proportionate as regards the objectives pursued – Hungary has failed to fulfil its obligations under Articles 2 and 6(1) of Directive 2000/78.” 197 András Baka sat as a judge at the ECHR for 17 years (1991–2008) and then at the Court of Appeal of Budapest (for one year), before being elected to preside the Supreme Court by the Hungarian Parliament for a six-year mandate due to end on 22 June 2015. His reputation and ability meant he had also been unanimously elected president of the network of presidents of the Supreme Courts of the European Union member states for a two-year term of office (2011–2013).

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“deconsolidation”, the independence of the judiciary. The judgment confirms a standard laid down by numerous soft law documents which—from the early 1980s—have sought to draw up codes of good practice for states so as to ensure the independence of the courts. From the United Nations198 by way of the Council of Europe,199 the principles are legion and testify to the vital need to fight any undermining of democracy involving an infringement of judicial independence. On the front of the mandatory retirement of judges and of the ad hoc side-lining of Justice Baka from his office as president of the Supreme Court, Hungary did not remain inactive. On the first point, it passed statute XX of 2013, which provides that the age at which judges are to stop working will be gradually lowered? to 65 years over a ten-year period and sets out criteria for their reinstatement and compensation. While the European Commission considered the matters was settled,200 the Human Rights Institute of the International Bar Association stated in its 2015 report that a majority of the ousted judges had not been reinstated in their original positions, particularly as they had already been filled. . . As for the execution of the Baka judgment, the information published by the Committee of Ministers of the Council of Europe amply shows that the individual and general measures that were to be adopted by Hungary are far from sufficient and complete.201 Generally, although Hungary continues its dialogue with supranational instances and continues to be part of the European treaty system, it still continues with its populist agenda as it sees fit. In this sense, some hoodwinking is going on. Although the ECJ continues to riposte, reminding Hungary of its obligations as a state party to the Convention (and especially its obligation to execute its judgments pursuant to article 46(2) of the TEU),202 although the Council of Europe does the same (reminding it of the importance of complying with the values in article 3 of the Statute of the Council 198

Basic Principles on the Independence of the Judiciary, Res. 40/32 and 40/146 of 1985. European Charter on the Statute for Judges of 8–10 July 1998; recommendation of the Committee of Ministers on judges of 17 Nov. 2010; many opinions of the Venice Commission and Magna Carta of the Consultative Council of European Judges of November 2010. 200 European Commission, 20 November 2013, IP/13/1112. 201 CM/Notes/1280/H46-15, see the website of the Committee of Ministers of the Council of Europe and more specifically the thumbnail: Execution of judgments of the European Court of Human Rights. 202 The judgment in Gazsó is significant (ECHR, 16 July 2015, Gazsó v. Hungary, no. 48322/12). One of its key passages reads: “34. From Hungary’s accession to the Convention system and up to 1 May 2015, more than 200 judgments have involved the finding of a violation by Hungary concerning the excessive length of civil proceedings. In 2014 alone, violations of the right to a hearing within a reasonable time in civil cases were found on 24 occasions. Moreover, the Government have concluded friendly settlements and submitted unilateral declarations in numerous cases concerning the length of civil proceedings; these applications were subsequently struck out of the list of cases. 35. The Court notes that the respondent State has failed so far to put into effect any measures actually improving the situation, despite the Court’s substantial and consistent case law on the matter. 36. The systemic character of the problems identified in the present case is further evidenced by the fact that, on 1 May 2015, approximately 400 cases submitted against Hungary and concerning the same issue are pending before the Court’s various judicial formations, and the number of such applications is constantly increasing.” 199

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of Europe);203 although the Parliament of the European Union acted responsibly on 12 September 2008 when Hungary openly flouted the values of article 2 of the TEU, Viktor Orbán’s regime is playing for time and continuing to dismantle the liberal political regime by attempting moreover to instrumentalize all the mainsprings of the EU to form an illiberal front in its midst. Today the Constitutional Court is no longer independent. Its composition has been overhauled and its members promote the importance of “Hungarian identity” while deciding they are not bound by the case law put in place by the “former” Constitutional Court in the 1990s. Will a Venezuelan type scenario come about in Hungary? It is impossible to predict the future. But at this point, it might be useful to present the follow-up to the chronicle of death foretold of this Latin American democracy. It will be discovered that once populist logic is taken to the extreme, once the country’s legal system is under supervision, it can obviously no longer serve as an effective check while international mechanisms for their part prove ineffective. This descent into hell is all the more paradoxical as the Latin American continent attaches great importance to the rule of law. The rule of law has been largely materialized in legal norms by being enshrined via the Inter-American Democratic Charter,204 as one of the underpinnings of democracy: “The constitutional subordination of all state institutions to the legally constituted civilian authority and respect for the rule of law on the part of all institutions and sectors of society are equally essential to democracy” (article 4(2)).205 In this context, the Inter-American Court has not been without merit in defending the separation of powers as it did back in 2001 in a historical judgment against Peru. It affirmed there that “one of the principal purposes of the separation of public powers is to guarantee the independence of judges”.206 In another series of judgments handed down against Venezuela in 2008 (Apitz Barbera),207 2009 (Reverón Trujillo),208 and 2011 (Chocrón chocrón),209 it specified that independence should be maintained by the state, both institutionally (where it is the legal system as a whole whose independence must be preserved) and individually (where judges must be able to safeguard their independence and have it safeguarded). Although the international judicial riposte did come about,210 it came at a time when the “deconsolidation” of democracy was already well advanced. While on 5 August 2008, the Inter-American Court found there had been a violation

203

Especially through the unstinting work of technical expertise and diplomatic dialogue of the Venice Commission. 204 Adopted on 11 September 2001 under the aegis of the Organization of American States. 205 The original text reads: “La subordinación constitucional de todas las instituciones del Estado a la autoridad civil legalmente constituida y el respeto al Estado de derecho de todas las entidades y sectores de la sociedad son igualmente fundamentales para la democracia.” 206 IACHR, 31 January 2001, Constitutional Court v. Peru, Series C no. 71, § 73. 207 IACHR, 5 August 2008, Apitz Barbera v. Venezuela, Series C No. 182, § 55. 208 IACHR, 30 June 2009, Reverón Trujillo v. Venezuela, Series C No. 197, § 67. 209 IACHR, 1 July 2011, Chocrón Chocrón v. Venezuela, Series C No. 227, § 97. 210 For a more general analysis of these questions, see Negishi (2016), pp. 243–264.

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of the right to be tried by an independent court in the case of Apitz Barbera versus Venezuela, the counterattack by the Constitutional Chamber of the Higher Court of Justice (under the control of the executive) was not slow in coming. In an absurd judgment of 18 December 2008, the Constitutional Chamber made the constitutional provisions—and especially the celebrated article 23211—literally meaningless so as to declare the judgments made by the IACHR against Venezuela could not be executed.212 Not stopping at this general declaration of non-execution, the Chamber enjoined the executive to denounce the Inter-American Convention. It did so on 6 September 2012.213 The decision took effect one year later. . .

5.1.2

The Political Riposte

While judges are in a position to take a front seat in the riposte, the same is true of politicians. In Europe, the Venice Commission in the context of the Europe of FortySeven, by way of the European Commission and European Parliament within the European Union have all moved up to the “front line” in an effort to slow or even stop the democratic disintegration in Poland and Hungary. A certain amount of engineering was even implemented since the Commission launched the “early warning mechanism” as a sort of ante-chamber214 of article 7 TEU.215 What may 211

See note 125. Ayala Corao (2013), pp. 503–568; Brewer Carías (2009), pp. 89–136. 213 It was by way of a diplomatic memorandum dated 6 September 2012 (no. 000125)—presented on 10 September 2012 to the Secretary General of the OAS—that Venezuela denounced the InterAmerican Convention; the effects of the Convention ended one year later on 10 September 2013. 214 According to the forceful expression of Mangas Martín (2018), pp. 1–12, esp. p. 2. Literature on article 7 of the TUE gains relevance, see Halmai (2018a, b, c). 215 Article 7 TEU states: “1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine if there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure. The Council shall regularly verify that the grounds on which such a determination was made continue to apply. 2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the European Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2 after inviting the Member State in question to submit its observations. 3. Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of the Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons. The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State. 4. The Council, acting by a qualified majority, may decide subsequently to vary or revoke measures taken under paragraph 3 in response to the changes in the situation which led to their being imposed. 5. The voting arrangements applying to the European Parliament, the European 212

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at first have appeared as a welcome assurance of diplomatic flexibility was soon changed into a reprehensible policy of wait-and-see and complacency. For if the Commission was bound fast, at any price, to the idea that dialogue should not be broken off, the Polish government played for time and continued to pull apart the democratic fabric of the country with the utmost cynicism. How could it be thought that dialogue might work with a country that had clearly broken with the values embodied in article 2 of the TEU? Yet, as early as January 2017, an imposing array of NGOs was beseeching the Commission to abandon the early warning mechanism and to activate article 7(1) of the TEU promptly. A year went by before the Commission found the resolve to respond to this urgent and responsible request on 21 December 2017. A wasted year216. . . On 12 September 2018 it was the turn of the European Parliament to activate article 7(1) TEU, on the basis of the report by ecologist MEP Judith Sargentini which went over all of the deliberate violations of the rule of law in Hungary point by point. From attacks on the working of the constitutional and electoral system by way of attacks on the independence of justice, free speech, academic freedom, freedom of belief, freedom of association, to attacks on privacy and data protection, equal treatment, the rights of refugees and economic and social rights, the report made a clinical review of the “deconsolidation”.217 At this point, it is a proven fact that despite the reactions (far too late but real enough) of the “guardian” of the treaties one the one side and the European Parliament on the other, the further points of procedure of article 7 will not be completed (unless there is some exceptional but most unlikely change in circumstances). While it can be hoped that the Council of Ministers may put together the four fifths majority provided for by article 7(1) TEU in order to officially “determine there is a clear risk of a serious breach”,218 the fact is today that the existence of three populist government regimes with the European Union (Italy, Hungary, and Poland), including two from the Visegrad Group, means it is impossible to reach the unanimity necessary to trigger article 7(2), which is the only way to suspend the voting rights of countries that have deliberately opted to break with the values of article 2 TEU. In the context of the OAS, beyond the decisions of the Inter-American Commission and the judgments of the Inter-American Court on Human Rights, the political Council and the Council for the purposes of this Article are laid down in Article 354 of the Treaty on the Functioning of the European Union.” 216 This is the irrefutable criticism made by Pech and Scheppele (2017), pp. 3–47. 217 The report published on 4 July 2018 was drafted as part of the work of the European Parliament’s Commission on Civil Liberties, Justice and Internal Affairs. It was approved by 448 votes for, 197 against, and 48 abstentions by European Members of Parliament. This victory was only possible with the support of many of the members of the European People’s Party (115 for, 57 against, and 28 abstentions), that is the majority conservative party within the Strasbourg parliament, of which Viktor Orbán’s Fidesz is a part. This was the first time a responsible attitude was adopted by this party whose president, Manfred Weber, had been very conciliatory until then with Hungary, even helping with the legislative elections of spring 2018 by going to Budapest. 218 At the time of writing (late September 2018), the Council of Ministers has still not adopted any decision, while the European Commission was first seized of the matter in December 2017. Yet it has been seen that time invariably works for the populist regimes.

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organs of the pan-American organization have stepped in to try to bring Venezuela back to the path of political dialogue and observance of the principles set out in the Inter-American Democratic Charter. Although points of non-compliance with the text were identified as early as 1999,219 on 30 May 2016 Secretary General Luis Almagro, confronted with the violations of the “constitutional order” and pursuant to article 20 of the Charter, brought the matter before the President of the Permanent Council of the OAS for it to organize its convocation. The report by the Secretary General is further testimony of the protracted deconstruction of democracy.220 Although on 23 June 2016, a historical meeting enabled the Permanent Council to face up to its responsibilities in the situation, calling on Venezuela to reinstate the essential elements for the rule of law and although there were many subsequent turns of events, the outcome was once again a denunciation and therefore deliberate isolationism. The Constitutional Chamber of the Supreme Court of Justice, in a decision of 28 March 2017,221 enjoined the President of the Republic to denounce the OAS Charter. There, too, Nicolás Maduro did so: in a decision of 27 April 2017, he advised the OAS Secretary General that Venezuela was denouncing the treaty and withdrawing from the pan-American organization.222 There were both judicial and political ripostes in Venezuela but to no avail. In Poland and Hungary, the ripostes had contrasting results. The judicial responses did manage to reframe some aspects of the deconsolidation, however, they did so only marginally (ECJ) and when they were irrefutable their impact was limited (ECHR). The political ripostes were slow and studded with compromise. They remain highly symbolic for the time being. Does that mean that the tools and mechanisms specific to liberal institutions are inadequate? Does it mean that liberal regimes are weak when confronted with rogue states that deliberately deck themselves in popular legitimacy and instrumentalize all the procedures specific to the rule of law? The answer unfortunately is heading down the path towards a “yes”. The evil is deeprooted. The riposte will need to be more ambitious than the simple “activation” of the guarantee mechanisms initially provided for states that cooperated honestly and in good faith.

5.1.3

The Ambitious Riposte

Democratic disenchantment and social despair in many countries are such that the riposte will have to be resolutely ambitious and ingenious so that liberal democratic 219

The offences against the Democratic Charter are summarized in Brewer-Carías and Aguiar (2012), pp. 511–534. See also Brewer-Carías (2010). 220 Communication of the OAS Secretary General of 30 May 2016, Informe sobre la situación en Venezuela en relacion con el cumplimiento de la Carta democrática interamericana (OSG-243). 221 Constitutional Chamber of the Supreme Court of Justice (SC/TSJ), judgment no. 155 of 28 March 2017, case of MP Hector Rodríguez Castro v. Agreement of the National Assembly on the Reactivation of the Inter-American Democratic Charter (no. 17-0323). 222 Ayala Corao (2017).

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regimes might win the battle. In reality, the outline solutions lie well beyond the workings of (domestic and international) mechanisms to guarantee rights. It is all the aspects of the working of contemporary societies that will need to be sifted through and thought out again: from the “reinvention” of democracy (Pierre Rosanvallon) to its “refoundations” with a radical form of “nesting” (Dominique Rousseau),223 there is no shortage of calls for change. And for good reason. Societies have failed to transform themselves in line with the technological, economic, and social changes that have taken hold in the late twentieth and early twenty-first centuries. The elementary demand for social justice was not taken seriously (enough) whereas the (inevitable) cultural and ethnic diversity was not digested, as it was not properly supported. These two factors are the basis of the fears and anxieties of many people who can no longer find their place in a world village in which there is permanent instability and aggressions take on many forms (the aggression of Islamic terrorism being the form that causes the most anxiety).224 Hence the temptation is great to draw into one’s shell, to close up, and to fence off the territory in economic, social, and human terms. Nationalism, which puts up fences and walls in minds, is insidiously reasserting itself. It appears clearly from the writings of intellectuals who have engaged in a clinical analysis of the causes and manifestations of populism that the road will be long and difficult when it comes to winning this war of values between liberalism (the marker of change of post-war political regimes) and populism. The first step will be to critically review the malfunctioning of the liberal democratic systems in order to understand, to grasp, to feel the disenchantment and despair.225 It would be a serious political mistake not to engage in such introspection.226 Yasha Mounk has set about such a task with unrivalled analytical finesse and accuracy. He has avoided none of the complex questions.227 The life of this young specialist of political science is both the outcome of the horrors of the totalitarian past and the possibilities presented by the present, that of a global and open world;228 this is without doubt one of the keys 223

Rousseau (2018). Europe is more especially the target of what is sometimes characterized as “Islamo-fascist” terrorism, the aim of which is political domination. Books like Soumission by M. Houellebecq or 2084 by Boualem Sansal may either fantasize about fears (Soumission being a fictional projection of what might happen in France if Islamism were to take power), or exorcize the past (2084 being a fable for addressing the realities of the havoc wrought by Islamism in Algeria). 225 It is worth mentioning the book by two Mexican intellectuals—Moreno Uriegas and Ángeles Ángeles (2018)—which also emphasizes the need for this. My warm thanks to Sergio Garcia Ramirez for making me a gift of the book, as he knew I was working on these questions. 226 It is self-evident that such critical introspection for the European continent must also be conducted with regard to the workings of the European Union. The EU must urgently think again about how it works (to make it more democratic) and to take the position of social justice seriously (so that it can compete with the “market economy”), Müller (2017). 227 Mounk (2018a, b). 228 We discover as we read that his grandfather, Leo, was born in Lviv in 1913 (he is now buried in a small town in Sweden). It is interesting to point out a remarkable coincidence with the book by Philippe Sands (2017). This masterful book is the result of a personal and historical enquiry into the 224

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to his gut attachment to liberal democracy. He has endeavoured to decipher all the causes of the emergence of populism, while not concealing any of the weaknesses of the workings of democracy in the present day. Above all, he sets out “remedies”. In these “inclement times”, this is, obviously, what is most urgent to come up with and the trickiest to implement. As might be expected, his proposals revolve around the three axes of politics, the economy, and education. Promoting “inclusive patriotism” that must be the counterpart of the nationalism of exclusion; “repairing” the economy by overhauling the principles of taxation, by coming to grips with the question of housing and employment; and lastly by refounding what he calls “civic religion” by educating citizens. It is a huge job of work and it will take time (one or two generations?) to put the democratic building kit back the right way round. As can be seen, such proposals go beyond the strict legal approach centred on law and on rights-protection mechanisms. It is politicians, in charge of national destinies, who will necessarily have to accept their responsibilities; it is also citizens—who being sceptical of populist rhetoric, witnesses of medium and long-term aporias of the exercise of power by populist regimes—who will have to mobilize to oppose attacks on the post-war liberal democratic regime.229 To rein in reason of state, to prevent ultra vires acts, to protect individual freedoms will have to become the citizenry’s reason for being in the years to come. In this context, the “actors” who contribute to upholding human rights also have their part to play in this democratic reconquest. First of all the activists who gravitate around the universe of national and international NGOs. They will have to adjust their agenda to take much more account of social despair, the despair of those left by the wayside of the competitive market economy. The human rights movement in recent years has deployed all its energy in fighting to protect minorities that are discriminated against (sexual, religious, and ethnic minorities). This commitment has been all the stronger because those minorities have been active, promoting a conceptualization of a right of recognition (of their multiple identities). Without abandoning non-discrimination with regard to these groups as an important issue—particularly as populist regimes

origins of his family and the family of Raphaël Lemkin (inventor of the concept of genocide) and of Hersch Lauterpach (inventor of the concept of crime against humanity). We learn that Sands’ grandfather (also called Leo) was born at Lviv, as were Raphaël Lemkin and Hersch Lauterpach. This city underwent numerous changes of territory arising from the upheavals of the twentieth century. At the time of the Austro-Hungarian Empire it was known as Lemberg. With regard to Yasha Mounk, we learn that he “grew up in Germany”, studied in France, Italy, and the United States and that he wrote his PhD in political science at Harvard. He has just been granted American citizenship. In short, he is a young academic who has used his skills to make the best of “fortunate” globalization by undertaking to gain an education in several countries while remaining deeply marked by his family history. 229 It is worth pointing out, for example, that Poles marched in number through the streets of Warsaw to mark their attachment to the separation of powers and the independence of the courts and to the European Union. In other words, democratic deconstruction does not go without reaction from the citizenry. In this sense, there are grounds for optimism. Such mobilizations, however, need to be lasting and vigorous in all states where populist regimes are in place now and in the future.

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take them for targets—it will be fundamental to refocus as swiftly as possible on the fight against social exclusion and inequalities.230 Social rights, which are enshrined in many a constitution, need to be very much at the heart of major public policies. NGOs will have to help in promoting this social turn. Similarly, the social criterion of the principle of non-discrimination needs to be at the heart of strategic litigation in the courts. The criterion of “social origin”—found in many constitutions but also in regional human-rights conventions231—and largely disregarded until now by human rights actors, must be re-discovered and activated intelligently so that the many forms of discrimination against poverty can be effectively countered. Next constitutional and international judges. They are obviously at the heart of the battle because they contribute to setting the standards. The supervision (of compliance with the constitution and with conventions) contributes to forming a standard designed to safeguard rights and freedoms including for minorities. They are obviously therefore essential for the safeguarding of the rule of law, the liberal matrix of democracy (for so long as the executive has not taken away their function as a check on government). First they will have to accept no compromise on the safeguarding of rights and of the acquis of recent years. Free speech must be upheld in the presence of “ideas that clash, shock, or worry”; the right to security like the right not to be subject to inhuman and degrading treatment must not yield to the terrorist peril; tolerance must not be erased in the face of the growing multi-ethnic character of societies, etc. As well as maintaining this heading, there is also a need to venture into an area that has been too timidly explored for now, that of economic and social rights. Although we have recalled that the courts are not legislatures, it is certainly not incongruous to think about “restoring balance”. Internally, balance will

230 Alston (2017), pp. 1–15. It is worth pointing out that the inter-American system has already taken up this question. It should be said that it is the continent where economic and social inequalities are starkest. See Interamerican Commission On Human Rights, Poverty and Human Rights, 7 September 2017, OAS/Ser.L/V/II.164. Doc. 147. 231 To speak only of the European and American Conventions on Human Rights, the wording of the “non-discrimination” clauses should be recalled. These hold great potential for the fight against social exclusion and poverty. Article 14 of the European Convention reads: “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.” (Emphasis added). Article 1 of Protocol No. 12 is even more comprehensive in that it applies to all types of rights recognized by the laws of states parties and no just those guaranteed by the European Convention: “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.” (Emphasis added). The wording of Article 1(1) of the American Convention makes it possible to develop even more ambitious strategic litigation because, apart from the criterion relating to social origin it includes the criterion of “economic situation”: “The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.” (Emphasis added).

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have to be restored for the benefit of workers’ rights over the right of free enterprise and requirements of free competition; internationally, safeguarding decent living conditions, which implies in particular access to housing and health care, will have to be taken into consideration more promptly when evaluating restrictions on rights. And lastly, teachers. Educating by cultivating and mobilizing all of the humanities; teaching by fostering inquisitive and open minds, especially through the handing down of the lessons of the past.232 The “value of education” (El valor de educar) to take up the title of the book by Spanish philosopher Fernando Savater is a major issue.233 Now, reviewing the education dispensed in higher education on all the continents is a source of consternation. The competitive rationale of the marketplace has invaded higher education where competition now rages. Universities have become a sort of corporate branch and must increasingly “professionalize” their courses to be in step with the outside world. To put up any resistance to this trend is “old-fangled” and even “reactionary”. And what of the students in all that? Held hostage between fears engendered by an unstable world in which the speed of transformations is mind-bending, a globalized economy that transforms them into compulsive and narcissistic consumers, and higher education that is becoming privatized, they are no longer educated to be citizens. They are thought of as the future vital forces of the market and no longer brought up to be members of a community based on values. To modify these underlying trends that appear worldwide (with varying intensity) is no mean challenge. This is undoubtedly one of the most important challenges for the future. Teachers in one way or another in all sectors and at all levels of education will have to commit to becoming again the transmitters of culture and knowledge. From primary school to university, they will have to take stock of the populist danger, which is the danger of the strategic organization of mind-numbing backsliding; they will have to fight to demonstrate the benefits (despite its weaknesses) of liberal democracy for the safeguarding of freedom. It was certainly no chance matter that René Cassin used the money from his 232

Riemen is very pessimistic particularly as he likens populism in reality to fascism that each time round will take on the colours of the time and of a culture specific to a state and/or continent: “The use of the term populist is only one more way to cultivate the denial that the ghost of fascism is haunting our societies again and to deny the fact that liberal democracies have turned into their opposite: mass democracies deprived of the spirit of democracy”, see Riemen (2018), p. 19. He also says in his essay: “Fascism, because of its distressing lack of ideas and its absence of universal values, would always take on the form and colours of its time and culture. Thus fascism in the United States would be religious and anti-black, in Western Europe it would be secular and antiIslam, in Eastern Europe it would be Catholic or Orthodox and anti-Semitic. But fascist techniques are identical everywhere: the presence of a charismatic leader; the use of populism to mobilize the masses; the designation of the based group as victims (of crises, of elites, or of foreigners); and the direction of all resentment toward an ‘enemy’. Fascism has no need for a democratic party with members who are individually responsible; it needs an inspiring and authoritative leader who is believed to have superior instincts (making decisions that don’t require supporting arguments), a faction leader who can be followed and obeyed by the masses. The context in which this form of politics can dominate is a crisis-tested mass society that hasn’t learned the lessons of the twentieth century”, p. 84. 233 Savater (1997).

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Nobel Peace Prize to create a centre entirely for education (the Institut international des droits de l’homme which has become the Fondation Cassin).234 He knew that it was vital, tirelessly generation after generation, to pass on knowledge. My conclusion will be short and bold, saying that we need to educate, in order to avoid; avoid the swing, at any cost; after, it is too late.

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Fanon F (1963) The wretched of the earth. Grove Press, New York Fontaine L, Supiot A (2017) Le Conseil constitutionnel est-il une juridiction sociale? Droit social 9:754–763 Galston WA (2018) The populist challenge to liberal democracy. J Democr 29(2):5–19 Gargarella R, Domingo P, Roux T (2006) Courts and social transformation in new democracies: an institutional voice for the poor? Routledge, Aldershot/Burlington Garton Ash T (2018) El autoritarismo dentro de Europa. El País, 17 May 2018 Germani G (1978) Authoritarianism, fascism and national populism. Transaction Book, New Brunswick Guez O (2017) La disparition de Josef Mengele. Grasset, Paris Halmai G (2017a) From a Pariah to a model? Hungary’s rise to an illiberal member state of the EU. Eur Yearb Hum Rights:33–45 Halmai G (2017b) The early retirement age of the Hungarian judges. In: Nicola F, Davies B (eds) EU law stories: contextual and critical histories of European jurisprudence. Cambridge University Press, Cambridge, pp 471–488 Halmai G (2018a) Hungary and Poland: how the EU can and should cope with illiberal member states. Quaderni costituzionali 38(2):313–339 Halmai G (2018b) Is there such thing as ‘populist constitutionalism’? Fudan J Humanit Soc Sci 11:323–339 Halmai G (2018c) The possibility and desirability of economic sanction: rule of law conditionality requirements against illiberal EU Members States. EUI Working Paper Law 2018/06, Department of Law European University Institute Hermet G (2001) Les populismes dans le monde. Une histoire sociologique. XIX-XXème siècle. Fayard, Paris Hermet G (2012) Permanences et mutations du populisme. Critique 1 (no 776-777) Herrera CM (ed) (2017) Le Constitutionnalisme latino-américain: entre renouveau juridique et essor démocratique? Editions Kimé, Paris Horvitz DL (1977) The courts and social policy. The Brookings Institution, Washington DC Instel A (2018) Rupture et continuité dans la politique autoritaire d’Erdogan. In: Badie B, Vidal D (eds) Le Retour des populismes, L’état du monde 2019. La découverte, Paris, pp 189–195 Jagland T (2017) State of democracy, human rights and the rule of law in Europe. Populism – how strong are Europe’s checks and balances?, Council of Europe, Strasbourg Jaguaribe H (1967) Problemas do desenvolvimiento latinoamericano. Civilizaçao Brasileira, Rio de Janeiro Jeanpierre L (2012) Les populismes du savoir. Critique 1:150–164 Jung C, Hirshl R, Rosevear E (2014) Economic and social rights in national constitutions. Am J Comp Law 62:1043–1098 Laclau E (1977) Politics and ideology in Marxist theory. Capitalism. Fascism. Populism. Verso, London Lacroix J, Pranchere J-Y (2016) Le procès des droits de l’homme. Généalogie d’un scepticisme démocratique. Seuil, Paris Landau D (2013) Abusive constitutionalism. UC Davis Law Rev 47(1):189–260 Langford M (ed) (2008) Social rights jurisprudence: emerging trends in international and comparative law. Cambridge University Press, Cambridge Langford M, Rodríguez Garavito C, Rossi J (eds) (2017) La lucha por los derechos sociales. Los fallos judiciales y la disputa política por su cumplimiento. DeJusticia, Bogotá Laudani R (2018) De Berlusconi au Mouvement 5 étoiles. In: Badie B, Vidal D (eds) Le Retour des populismes, L’état du monde 2019. La découverte, Paris, pp 234–239 Levitsky S, Ziblatt D (2018) How democracies die? What history reveals about our future. Crown Publishing Group, New York Lynch J (1992) Caudillos in Spanish America, 1800–1850. Clarendon Press, Oxford Macovei OA (2018) L’Etat illibéral dans l’Union européenne, essai de conceptualisation. Civitas Europa 1(40):127–144

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Rule of Law and Judicial Independence in the Light of CJEU and ECtHR Case Law Paz Andrés Sáenz de Santa María

Judicial independence is a cornerstone of the rule of law. Indeed, the notion of judicial independence is gaining relevance as a result of the judiciary reforms implemented in many non-liberal democracies. As pointed out by the Venice Commission: “The judiciary must be independent and impartial. Independence means that the judiciary is free from external pressure, and is not controlled by the other branches of government, especially the executive branch. This requirement is an integral part of the fundamental democratic principle of the separation of powers. The judges should not be subject to political influence or manipulation. Impartial means that the judiciary is not -even in appearance- prejudiced as to the outcome of the case.”1 As has also been stated, “[t]he impartiality and independence of judges and prosecutors is not a prerogative or privilege granted in their own interest, but in the interest of the rule of law and of all those who seek and expect justice. In a democratic state, the powers of the state function as a system of checks and balances that holds each accountable in the interest of society as a whole. Judges and prosecutors must exercise their duties independently, respecting and preserving this system of checks and balances.”2

1

Report on the rule of law—Adopted by the Venice Commission at its 86th plenary session (Venice, 25-26 March 2011), CDL-AD(2011)003rev-e (https://www.venice.coe.int/webforms/ documents/?pdf¼CDL-AD(2011)003rev-e; all websites have last been accessed on 14 April 2021). 2 “Challenges for judicial independence and impartiality in the member states of the Council of Europe,” Report prepared jointly by the Bureau of the CCJE and the Bureau of the CCPE for the attention of the Secretary General of the Council of Europe as a follow-up to his 2015 report entitled “State of Democracy, Human Rights and the Rule of Law in Europe – a shared responsibility for democratic security in Europe,” 24 March 2016, p. 17 (Information Documents, SG/Inf(2016)3rev, https://rm.coe.int/168066d624). P. Andrés Sáenz de Santa María (*) School of Law, Universidad de Oviedo, Oviedo, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Izquierdo-Sans et al. (eds.), Fundamental Rights Challenges, https://doi.org/10.1007/978-3-030-72798-7_9

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Both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) have often addressed judicial independence. However, only recently have they tied judicial independence with the rule of law. This chapter seeks to examine both courts’ contributions from the perspective of the connection the courts have established in their case law between these two notions or principles.

1 The CJEU and Judicial Independence: From a Narrow Approach to a Constitutional Perspective The CJEU has traditionally dealt with the independence of the judiciary with reference to the notion of “national court or tribunal” in connection with Article 267 TFEU and with the power or ability of domestic judicial authorities to request preliminary rulings. Nevertheless, as evidenced by its recent case law, the Court of Justice is beyond this narrow approach. It has moved from this specific vision tied to the EU notion of national court or tribunal (characterized by a certain degree of flexibility aimed at encouraging judicial dialogue), to a constitutional dimension whereby, through a creative interpretation of the second subparagraph of Article 19 (1) TEU, considers that the principle of judicial independence is inherent to this provision.

1.1

The Classic Dimension: Judicial Independence and Preliminary Rulings

Ever since the Vaassen-Göbbels case,3 judicial independence is one of the elements that make up the autonomous concept of national court or tribunal (also referred to as national judicial authority), which has also become increasingly important in the case law. CJEU case law often refers to the Wilson case, where the Court ruled that the concept of independence is twofold: the first aspect of this concept, which is external, presumes that judicial authorities are protected against external intervention or pressure liable to jeopardize the independent judgment of its members as regards proceedings before them; the second aspect, which is internal, is linked to impartiality and seeks to ensure a level playing field for the parties to the proceedings and their respective interests with regard to the subject-matter of those proceedings.4 However, it is a dimension exclusively tied to the preliminary ruling mechanism, related to specific cases and where the rule of law goes unmentioned.5 3

Case 61/65, Vaassen-Göbbels, Judgment of 30 June 1966, EU:C:1966:39. Case C-506/04, Wilson, Judgment of 19 September 2006, EU:C:2006:587, paragraphs 51-52. 5 Nonetheless, there is an exception: Judgment of 4 February 1999 delivered in Köllensperger and Atzwanger, C-103/97. When ruling on whether an Austrian body (the Landesvergabeamt) was 4

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The Constitutional Dimension: Judicial Independence and Rule of Law

The CJEU is currently developing a new line of case law, moving beyond the traditional approach and claiming the ability to review those domestic law measures potentially affecting judicial independence. The Court’s line of reasoning awards a very prominent role to the preservation of the rule of law.

1.2.1

Laying the Foundations of This Relationship: Article 19 TEU and Judicial Independence

The CJEU took a qualitative leap in the case involving the Associação Sindical dos Juízes Portugueses (ASJP)6 drawing on the budgetary austerity measures related to the financial assistance granted to Portugal. In the words of Sarmiento (2018): “An apparently obscure case about judge’s remunerations turned into a huge constitutional dispute about judicial independence.” As regards the material scope of the second subparagraph of Article 19(1) TEU, the CJEU points out that such provision relates to “the fields covered by Union law,” irrespective of whether Member States are implementing Union law, within the meaning of Article 51(1) of the Charter.7 Accordingly, it separates or detaches the material scope of application of both provisions.8 Secondly, it connects Art. 19 with Art. 2 TEU, by claiming that the first, which gives concrete expression to the value of the rule of law stated in Article 2 TEU, entrusts the responsibility for ensuring judicial review in the EU legal order not only to the Court of Justice, but also to national courts and tribunals.9 It also states that every Member State must ensure that the bodies which, as “courts or tribunals” within the meaning of EU law, come within its judicial system in the fields covered by that law, meet the requirements of effective judicial protection.10 Furthermore, the CJEU ties this right to judicial independence also on the basis of Art. 47 of the EU Charter on Fundamental

independent, the Court of Justice reviewed a provision from a piece of legislation whose capacity to guarantee such independence was in question. The CJEU asserted that “[i]t is not for the Court to infer that such a provision is applied in a manner contrary to the Austrian Constitution and the principles of a State governed by the rule of law” (paragraph 24). 6 Case C-64/16, Judgment of the CJEU (Grand Chamber) of 27 February 2018, EU:C:2018:117. 7 Paragraph 29. 8 In the view of Roeben (2019, p. 39): “TEU Art. 19 as interpreted by Portuguese Judges effectuates the meta-norm of judicial protection by overriding the limits that Charter Art. 51 imposes”. 9 Paragraph 32. As noted by Spieker (2019): “In establishing this connection, the Court seems to render Article 2 TEU judicially applicable. It implicitly rejected an isolated, direct application of Article 2 TEU and opted for a ‘combined approach.’ The CJEU uses a provision containing a specific obligation to ‘operationalise’ the values enshrined in Article 2 TEU”. 10 Paragraph 37.

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Rights.11 Along these lines, the Court further elaborates on the elements or aspects of judicial independence as follows: The concept of independence presupposes, in particular, that the body concerned exercises its judicial functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, and that it is thus protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions.12

The Court of Justice ultimately considers that, like the protection against removal from office of the members of the body concerned, the receipt by those members of a level of remuneration commensurate with the importance of the functions they carry out constitutes a guarantee essential to judicial independence.13 Nonetheless, given the general and temporary nature of the salary-reduction measures, the Court concluded that the independence of the members of the Tribunal de Contas (Portuguese Court of Auditors) was not impaired.14 Through this innovative approach, the Grand Chamber dismissed the Opinion of AG Saugmandsgaard Øe, who had argued that Art. 19 TEU was primarily procedural in nature; that the concept of ‘effective judicial protection’ must not be confused with the ‘principle of judicial independence,’ and that the second subparagraph of Article 19(1) TEU must be interpreted as meaning that it does not enshrine a general principle of EU law according to which the independence of judges sitting in all the courts of the Member States should be guaranteed.15 When examining this landmark ruling, some commentators have underlined “that the Court considered Article 19(1) TEU as a systemic requirement, which could be used in abstracto to challenge national measures affecting the independence of judges”.16 In order to apply this requirement, it would suffice to confirm that the affected courts or tribunals have potential jurisdiction over questions of EU law.17 Also, the obligation to provide effective judicial protection “becomes incumbent upon the Union,” thereby limiting Member States’ scope of autonomy to arrange their judicial system.”18 According to Sarmiento (2018): For the very first time, the Court stated that Article 19 TEU, as a self-standing rule, is a relevant parameter of review. And of all the principles enshrined in Article 19 TEU, the

11

Paragraph 41. Paragraph 44. 13 Paragraph 45. 14 Paragraphs 46–51. 15 See points 61, 64 and 66–67. 16 Pech and Platon (2018), p. 1839. 17 Ibid. As has been underlined by K. Lenaerts (2018, p. 8): “where a national court qualifies as a ‘court or tribunal’ as defined by EU law and such a court enjoys jurisdiction to rule on questions of EU law, that court acts as a European court and accordingly, Article 19(1) TEU protects its independence”. 18 García-Valdecasas Dorrego (2019), p. 84. 12

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Court focused on independence, which, according to the Court, is not a principle only relevant for Union courts, but also for national courts. Article 19 TEU has thus been transformed into a crucial rule on the judiciary of the Union, understood in a federal sense, as a judiciary of the federation and its States.

Accordingly, some scholars have aptly argued that “in the ASJP Judgment, the Court of Justice has laid the foundations to have a say in the preservation of the rule of law, and particularly when securing the independence of domestic courts.”19 As noted by Bonelli and Claes (2018): The political objectives of the Court’s decision are clear: Luxembourg wants to clarify that the organization of the national judiciaries is not exclusively a matter for each of the Member States separately, but that Member States are under an obligation, contained in primary EU law and supervised by the Court of Justice, to ensure that their courts and judges are independent ‘in the fields covered by EU law.’20

The case Minister for Justice and Equality (Deficiencies in the system of justice),21 which was settled 5 months later, upholds, embraces and actually reiterates the ASJP Judgment’s line of reasoning regarding Article 19 and the role of the rule of law. This ruling also ties effective judicial protection (or the right to an effective remedy) to judicial independence. In fact, it highlights that the latter is essential for the proper functioning of preliminary rulings and European Arrest Warrants (EAWs), and it also notes that there are two aspects to judicial independence, one of them being external in nature and the other one being internal.22 Nonetheless, from the perspective of the EAW procedure, it could be regrettable that the CJEU has failed to draw all the consequences from its line of reasoning by stating that, in order for a national court to be exempt from the mandatory execution of the EAW, the executing judicial authority must, as a first step, assess, on the basis of material that is objective, reliable, specific and properly updated concerning the operation of the system of justice in the issuing Member State, whether there is a real risk, connected with a lack of independence of the courts of that Member State on account of systemic or generalized deficiencies there, of the fundamental right to a fair trial being breached. Also, that authority must, as a second step, assess specifically and precisely whether, in the particular circumstances of the case, there are substantial grounds for believing that, following his surrender to the issuing Member State, the requested person will run that risk.23 In practice, this two-pronged test makes it extremely difficult to suspend a EAW even if there are systemic deficiencies regarding the independence of the issuing Member State’s judicial system.24

19

García-Valdecasas Dorrego (2019), p. 76. Bonelli and Claes (2018), p. 623. 21 Case C-216/18 PPU, LM, Judgment of the CJEU (Grand Chamber) of 25 July 2018, EU: C:2018:586. 22 Paragraphs 50–54, 63–67. 23 Paragraphs 61 and 68 respectively. See a critical commentary on this approach in Pech and Wachowiec (2019). See also, Platon (2019a). 24 For this reason, the ruling has drawn some criticism. See Rizcallah (2018a)); Id. Rizcallah (2018b), van Ballegooij and Bárd (2018) and Scheppele (2018). 20

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The Court of Justice probably wanted its decision not to have a negative impact on the EAW mechanism or on judicial cooperation. However, one cannot help thinking that this legal and political cautiousness has had a collateral effect: loosening the strictness shown in the previous case. In conclusion, note that in the Carlos Escribano Vindel case25 the Court reassessed the ties between judicial independence and salary-reduction measures. Yet again, for the purposes of this chapter, note that the CJEU embraced and applied the ASJP doctrine,26 thereby turning the ASJP case into a landmark decision in this matter.

1.2.2

Systemic Deficiencies in the Rule of Law and Judicial Independence

The existence of rule-of-law-related systemic or generalized deficiencies in certain Member States has provided the CJEU with a unique opportunity to further consolidate its new role in preserving judicial independence as a cornerstone of the rule of law. The Court has most certainly seized this opportunity. In this regard, one could easily guess that when the Court delivered its Judgment in ASJP, it was already thinking of the Polish case. By that time, the European Commission had already submitted its Proposal for a Council Decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law.27 From a procedural standpoint, both the European Commission, by bringing direct actions against Member States for the breach of TEU provisions,28 and Polish courts, through preliminary ruling requests,29 are further advancing the CJEU’s action, by calling for decisions on several measures adopted in Poland that affect the judiciary. The preeminence of infringement actions has proven right those who advocated for this instrument to tackle systemic breaches of EU law.30 As opposed to its highly criticized stance in the Hungary case, where it has merely filed actions based on the violation of secondary law,31 the European Commission decided to bring

25

Case C-49/18, Judgment of 7 February 2019, EU:C:2019:106. See paragraphs 62–67. As for whether the specific measure had an impact on judicial independence, in Escribano Vindel the CJEU added some nuances (see García-Valdecasas Dorrego (2019) p. 89). 27 COM(2017) 835 final. In the words of Sarmiento (2018), the decision “is certainly not mostly about Portuguese judges, but rather about Polish and Hungarian judges”. Also, according to Bonelli and Claes (2018, p. 636): “The ruling of the Court of Justice in C-64/16 can best be understood by shifting the attention from Lisbon to Warsaw”. 28 Cases 619/18, 192/18 and C-791/19. 29 Joined cases C-585/18, C-624/18 and C-625/18; Joined cases C-558/18 and C-563/18; Joined cases C-522/18 and C-668/18; Case C-537/18; Case C-623/18; Case 824/18. 30 Scheppele (2013); Id. Scheppele (2016), Hillion (2016) and Schmidt Bogdanowicz (2018). 31 From the standpoint of judicial independence, the relevant one is Case C-286/12 on the retirement of judges. 26

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infringement proceedings against the Republic of Poland in connection with the retirement and appointment of Supreme Court judges. The Commission based its claim on the second subparagraph of Article 19(1) TEU and Article 47 of the Charter.32 This historical ruling against Poland was preceded by proceedings for interim measures. The application for interim measures was granted by an Order of the Vice-President of the Court dated 19 October 2018,33 and subsequently upheld by Order of the Court of 17 December 2018.34 However, this is an exceptional case, because both orders had retroactive effects, thus providing for the reinstatement of the judges that had been forced to retire. Thus, the Judgment of 24 June 2019 (Grand Chamber) Commission v. Poland (Independence of the Supreme Court),35 is most certainly a landmark ruling due to its staunch defence of the rule of law, and particularly of judicial independence being an inherent element thereof, as a cornerstone of the European Union. As expected, the previous case law played a very prominent role in the Court of Justice’s line of reasoning. Departing from the common values referred to in Article 2 TEU, including the rule of law, the Court relies again on the second subparagraph of Article 19(1) TEU, taking the same approach as in the ASJP case.36 The CJEU concluded that “every Member State must, under the second subparagraph of Article 19(1) TEU, ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by EU law meet the requirements of effective judicial protection.”37 Therefore, “to ensure that a body such as the Sąd Najwyższy (Supreme Court) is in a position to offer such protection, maintaining its independence is essential, as confirmed by the second paragraph of Article 47 of the Charter, which refers to access to an ‘independent’ tribunal as one Specifically, the European Commission requested that the Court declare that, first, by lowering the retirement age of the judges appointed to the Sąd Najwyższy (Supreme Court, Poland) and by applying that measure to the judges in post appointed to that court before 3 April 2018 and, secondly, by granting the President of the Republic the discretion to extend the period of judicial activity of judges of that court beyond the newly fixed retirement age, the Republic of Poland has failed to fulfil its obligations under the combined provisions of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union. The influence of the ASJP Judgment was evident in the Commission’s action, since in this case the Commission had criticized that these provisions were relied on in the referral for a preliminary ruling, contending that the referring court had not set out the reasons for choosing those specific EU law provisions (see paragraph 19 of Judgment of 27 February 2018). 33 Case C-619/18 R, EU:C:2018:852. Interestingly enough, the Order fails to mention the ASPJ case or Article 19 TEU. The legal foundations included in this Order briefly refer to the case Minister for Justice and Equality (Deficiencies in the system of justice) (see paragraph 20). 34 Case C-619/18 R, EU :C :2018 :1021 (text rectified by order of 2 July 2019). The legal grounds included in the Order refer to the ASPJ case and to the second subparagraph of Art. 19(1) TEU (see paragraphs 40 and 43–44), although the case Minister for Justice and Equality (Deficiencies in the system of justice) retains a more significant presence (see paragraphs 40–42, 66–67, 74 and 77). 35 Case C-619/18, EU:C:2019:531. By Order of 15 November 2018 (EU:C:2018:910), the case was determined under the expedited procedure. 36 See paragraphs 42–50 and 54. 37 Paragraph 55. 32

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of the requirements linked to the fundamental right to an effective remedy.”38 The CJEU asserted the following: That requirement that courts be independent, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial, which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded.39

The foregoing allows to consider that “the national rules called into question by the Commission in its action may be reviewed in the light of the second subparagraph of Article 19(1) TEU;”40 after this review, the Court declared the infringement with respect to the two complaints alleged by the Commission, i.e., it upheld both of the Commission’s complaints or, in other words, the Commission’s action in its entirety. It is worth underlining how the CJEU does not only reiterate both aspects –external and internal– inherent to judicial independence,41 but also further elaborates on the elements that have a specific bearing on the case at hand: “76. The principle of irremovability requires, in particular, that judges may remain in post provided that they have not reached the obligatory retirement age or until the expiry of their mandate, where that mandate is for a fixed term. While it is not wholly absolute, there can be no exceptions to that principle unless they are warranted by legitimate and compelling grounds, subject to the principle of proportionality. Thus it is widely accepted that judges may be dismissed if they are deemed unfit for the purposes of carrying out their duties on account of incapacity or a serious breach of their obligations, provided the appropriate procedures are followed. 77. In that latter respect, it is apparent, more specifically, from the Court’s case law that the requirement of independence means that the rules governing the disciplinary regime and, accordingly, any dismissal of those who have the task of adjudicating in a dispute must provide the necessary guarantees in order to prevent any risk of that disciplinary regime being used as a system of political control of the content of judicial decisions [. . .]”. It has been stated that the ruling renders judicial independence a quasi-absolute principle and that it intends to place judicial independence at the core of the EU constitutional order.42 Moreover, the judgment strengthens the central role of Article 19 TEU as an essential provision to ensure that Member States (1) secure judicial

38

Paragraph 57. Paragraph 58. 40 Paragraph 59. 41 See paragraphs 72–75; see also paragraph 108. 42 Simonelli (2019). 39

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independence and (2) address systemic or generalized deficiencies as required, without disregarding Article 47 of the Charter, which supplements or supports the Court’s arguments.43 Afterwards, the Judgment dated 5 November 2019 (Grand Chamber), Commission v. Poland (Independence of the Ordinary Courts),44 settled the second infringement action brought by the Commission in response to the measures adopted in Poland allegedly undermining judicial independence. In this case, the Commission requested the Court to declare that the Republic of Poland failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter as a result of the legal provisions on the retirement age applicable to judges of the ordinary Polish courts and in granting the Minister for Justice (Poland) the right to decide whether to authorize extension of the period of active service as a judge.45 This decision reproduces word for word the paragraphs of the Judgment of 24 June 2019 on the second subparagraph of Article 19(1) TEU46 and on the independence of courts and tribunals,47 and it concludes by declaring the infringement. In its turn, the Judgment (Grand Chamber) handed down on 19 November 2019 in A.K., in response to three requests for a preliminary ruling from the Polish Supreme Court, has dealt with the independence of the Polish Supreme Court’s Disciplinary Chamber.48 Focusing on Article 47 of the Charter, the CJEU restates the aspects inherent to judicial independence not only relying on its previous case law,49 but also referring to that of the European Court of Human Rights (ECtHR).50 The Court of Justice then provides the Polish court with a series of interpretative

As put forward by Pingel (2019, p. 831): “La position est habile. Elle offre, d’une part, à la Cour une base de compétence élargie (le champ d’application matériel de l’Art. 19 TUE, tel que interprété par l’arrêt Associação Sindical dos Juízes Portugueses, est plus étendu que celui de l’Art. 47 de la Charte) sans l’obliger à renoncer à se référer, à titre subsidiaire, aux droits protégés par la Charte”. 44 Case C-192/18, EU:C:2019:924. 45 The Commission’s action also referred to the infringement of Article 157 TFEU and Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation. These breaches related to the distinctions made by the Polish legislation between women and men concerning the retirement age for judges of the ordinary Polish courts and public prosecutors in Poland. 46 See paragraphs 98–107. 47 See paragraph 108–115. 48 Joined cases C-585/18, C-624/18 and C-625/18, EU:C:2019:982. The decision rendered by the CJEU has given rise to a Judgment of the Polish Supreme Court dated 5 December 2019. This ruling declared that the Polish National Council of the Judiciary does not guarantee the right to effective judicial protection because it is neither impartial nor independent from the legislative or the executive branches of Government. The Polish Supreme Court also ruled that the so-called Disciplinary Chamber is not a court within the meaning of EU law and Polish law (Supreme Court of Poland, Judgment of 5 December 2019, A.K., PO 7/18); see Zelazna (2019). 49 See paragraphs 120–125. 50 See paragraphs 126–130. 43

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standards, implying that the CJEU does not consider that the Disciplinary Chamber (exclusively made up of judges appointed by the National Council of the Judiciary) qualifies as an independent body.51 As opposed to the approach in its two prior decisions on infringement actions, the Court has only briefly referred to the rule of law52 and to Articles 2 and 19 TEU,53 and it has mostly relied on Article 47 of the Charter. Because of this, some authors have regretted that the judgment failed to clarify the role and actual relationship between those two provisions. Admittedly, Advocate General Tanchev somehow fostered this approach by warning that the situation arising in the main proceedings is one in which a Member State is implementing Article 47 of the Charter within the meaning of Article 51(1) thereof, therefore, strictly speaking, it is not necessary for the Court to decide whether there has also been a breach more broadly of the second subparagraph of Article 19(1) TEU.54 However, he made the following clarification: “[G]iven that Article 47 of the Charter and the second subparagraph of Article 19 (1) TEU share common legal sources and are circumscribed by the broader matrix of general principles of EU law, there is a ‘constitutional passarelle’ between the two provisions, and the case law concerning them inevitably intersects.”55 In its ruling, the CJEU embraces this connection between both provisions56 and reaches the following conclusion: “In those circumstances, it does not appear necessary to conduct a distinct analysis of Article 2 and the second subparagraph of Article 19 (1) TEU.”57 In turn, the Court failed to uphold Tanchev’s considerations clearly linking the “structural” or generalized deficiencies with the breach of the second 51

See paragraphs 132–154. See paragraphs 120 and 124. 53 See paragraphs 167–169. 54 Opinion delivered on 27 June 2019, EU:C:2019:551; see point 77. 55 Paragraph 85. Advocate General Tanchev had already elaborated on this concept in his Opinion delivered in Case C-192/18 (Opinion delivered on 20 June 2019, point 97, EU:C:2019:529). 56 “The principle of the effective judicial protection of individuals’ rights under EU law, referred to in the second subparagraph of Article 19(1) TEU, is a general principle of EU law which is now enshrined in Article 47 of the Charter, so that the former provision requires Member States to provide remedies that are sufficient to ensure effective legal protection, within the meaning in particular of the latter provision, in the fields covered by EU law” (paragraph 168). In the view of Platon (2019b): “Surely, by insisting on the substantial proximity between Article 47 and Article 19, the Court suggests that the two standards are the same, but a clarification would be welcome”. Precisely the fact that in A.K. it did not base its decision on Article 19 TEU and left it to the referring court the deduction of the appropriate consequences on the independence of the Discipline Chamber of the Polish Supreme Court had been invoked by Poland to oppose the Commission’s claims in its request for interim measures in the case C-791/19 R; in its Order of 8 April 2020 (EU:C:2020:277), the Court has not taken account of that argument, recalling that, in the context of the question referred for a preliminary ruling, it is not for it to rule on the compatibility of a national provision with the rules of EU law but to provide the national court with all the elements of interpretation necessary for it to assess the conformity itself, so the relevance of the elements identified by the CJ in that case in assessing the independence of the Disciplinary Chamber is not limited only to that particular case (paragraphs 73–76). 57 Paragraph 169. 52

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subparagraph of Article 19(1) TEU.58 In Commission v. Poland (Independence of the Ordinary Courts), Advocate General Tanchev was even more clear when pointing out that if an alleged breach of independence and impartiality is pleaded in the context of a structural failing, it has to be examined in the light of Article 19 (1) TEU, whereas if the alleged breach arises in a context in which a Member State is implementing EU law under Article 51(1) of the Charter, Article 47 becomes directly relevant.59 Recently, in the Judgment (Grand Chamber) of 26 March 2020, Miasto Łowicz (Judges’ disciplinary regime),60 despite finding the questions referred to it inadmissible, the Court offers considerations as to the importance of judicial independence in ensuring the power of the court to refer a question for a preliminary ruling. According to the Court, “provisions of national law which expose national judges to disciplinary proceedings as a result of the fact that they submitted a reference to the Court for a preliminary ruling cannot therefore be permitted. . . Indeed, the mere prospect, as the case may be, of being the subject of disciplinary proceedings as a result of making such a reference or deciding to maintain that reference after it was made is likely to undermine the effective exercise by the national judges concerned of the discretion and the functions referred to in the preceding paragraph”,61 the CJ then adds that “for those judges, not being exposed to disciplinary proceedings or measures for having exercised such a discretion to bring a matter before the Court, which is exclusively within their jurisdiction, also constitutes a guarantee that is essential to judicial independence. . . which. . . is, in particular, essential to the proper working of the judicial cooperation system embodied by the preliminary ruling mechanism under Article 267 TFEU”.62 It is not adventurous to think that this obiter dictum prefigures the decision on the third infringement action brought by the Commission against Poland regarding the Polish domestic legislation on the disciplinary regime of the judiciary.63 While the judgment is still pending, the Order of 8 April 2020 (Grand Chamber),64 which 58

See paragraphs 145–152. Opinion delivered on 20 June 2019, EU:C.2019:529; see paragraph 101. 60 Cases C-558/18 and C-563/18, EU:C:2020:234. 61 Paragraph 58. 62 Paragraph 59. 63 Case C-791/19. In the application, the Commission request to the Court to declare the infringement of the second subparagraph of Article 19(1) TEU because the disputed provisions: (1) allow the content of judicial decisions to be treated as a disciplinary offence; (2) fail to guarantee the independence and impartiality of the Disciplinary Chamber of the Supreme Court, which has jurisdiction for the review of decisions issued in disciplinary proceedings; (3) confer on the President of the Disciplinary Chamber of the Supreme Court the discretionary power to designate the competent disciplinary court of first instance in cases concerning judges of the ordinary courts and, therefore, (4) fail to guarantee that disciplinary cases are adjudicated on by a court ‘established by law’; (5) fail to guarantee that disciplinary cases against judges of the ordinary courts are heard within a reasonable period, and thus vi) fail to guarantee the rights of the defence of accused judges of the ordinary courts (OJ C 413, 9.12.2019, p. 36). 64 EU:C:2020:277. An interesting commentary on this Order can be seen in Pech (2020). 59

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reiterates and is based on the previous case law,65 adds one more piece in the defence of the rule of law by the CJEU in upholding the Commission’s application for interim measures and suspending, to an unprecedented extent, the application of the rules relating to the Disciplinary Chamber of the Supreme Court until the ruling of the sentence that will put an end to the case. With this Order, which comes to join the aforementioned dictates in the case Commission v. Poland (Independence of the Supreme Court), the CJ demonstrates its strong determination to safeguard judicial independence as a cornerstone of the rule of law and in this regard, it is worth noting the assertion that the absence of guarantees of independence is likely to cause serious and irreparable harm to the EU legal order; on the other hand, the CJ has reiterated the relationship between the second subparagraph of article 19 (1) TEU and judicial independence in the Judgments (Grand Chamber) of 2 March 2021, A.B. and 20 April 2021, Reppublika.66

1.2.3

The Preliminary Ruling As a Procedural Way to Deal with the Breakdown of the Rule of Law: A Few Issues

The fact that in Associação Sindical dos Juízes Portugueses the CJEU considered admissible the request for a preliminary ruling, as well as the role as a “reviewer” undertaken by the Court itself, opened the way for national courts to request the CJEU to rule on domestic provisions potentially affecting judicial independence, as is already the case. From the perspective of judicial independence, this is a remarkable aspect of this ruling. However, looking at the matter from the standpoint of the preliminary ruling procedure, the CJEU’s stance does cast some issues. First: is it possible to reconcile the admissibility of preliminary references with a subsequent Court of Justice’s decision declaring that the referring court is no longer an independent tribunal because of the domestic provisions? The question is definitely pertinent if we consider that the Court in Associação Sindical dos Juízes Portugueses recalled that the independence of national courts and tribunals is, in particular, essential to the proper working of the judicial cooperation system embodied by the preliminary ruling mechanism under Article 267 TFEU, in that, in accordance with the settled case law, that mechanism may be activated only by a body responsible for applying EU law which satisfies, inter alia, that criterion of independence.67 Pech and Platon (2018) have addressed the matter with utmost clarity: “Since Article 19(1) TEU empowers the Court to review whether a national measure affects the independence of most national courts, this raises the question of how this “Article 19

65

See in particular paragraphs 29–34 and 65–72. See Order of 8 April 2020, paragraphs 92–93; Judgment of the Court (Grand Chamber) 2 March 2021, case C-824/18, A.B., EU:C:2021:153, paragraphs 108–121; Judgment of the Court (Grand Chamber) 20 April 2021, case C-896/19, Reppublika v Il Prim Ministru, EU:C:2021:311, paragraphs 37, 39, 45–46, 52. 67 Paragraph 43. 66

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(1) test” relates, if at all, to the “Article 267 test” (i.e., whether the body that made a request for a preliminary ruling is a “court or tribunal”). Is the latter likely to spill over the former? Surely, being independent is one of the necessary, sine qua non features of a court. Does it mean that the ECJ could reject, as inadmissible, any request for a preliminary ruling by courts which may no longer be considered independent due to a national general measure?”68

Second: what are the potential consequences on the EU notion of national court (which used to be inherently flexible in order to encourage judicial dialogue) of the developments based on Article 19 TFEU and the new role undertaken by the CJEU when reviewing judicial independence? This is also a very suitable question, given that the requirement of independence had been the least strict in the Court’s case law. As noted by Bonelli and Claes (2018): In the Portuguese judges’ decision, the case law on Article 267 TFEU served as an important source for the principle of ‘judicial independence.’ But that case law is not entirely coherent; the Court has not, generally speaking, been strict in interpreting the requirements created under Article 267 TFEU, including that of ‘independence.’ On the basis of such decisions as Köllensperger and Atzwanger and Gabalfrisa, it has been suggested that the Court has applied ‘a lax criterion of judicial independence.’ The core concern of the Court has not been (. . .) to protect the right of individuals to an independent tribunal, but rather, perhaps even on the contrary, to broaden access to the preliminary reference procedure. This is done in order to guarantee, to the greatest extent possible, uniform application of Union rights and their effective protection. For example, even bodies not formally recognised as courts or tribunals under national law, and only loosely independent from the parties including the administration, have been brought within the scope of Article 267 TFEU, especially when they take final decisions affecting rights deriving from Union law.69

In his Opinion delivered in A.K., Advocate General Tanchev already pointed out that “due to Article 52(3) of the Charter, EU law guarantees judicial independence, at minimum, to the standard set by Article 6(1) ECHR (. . .). That being so, if the case law elaborated by the Court with respect to the criterion of independence under Article 267 TFEU (in the context of determining whether a particular body can make a reference for a preliminary ruling to the Court) were to fall short of the ‘minimum

68 Pech and Platon (2018), p. 1842. A different yet also interesting situation arises where the request for a preliminary ruling relates to the independence of a domestic judicial authority other than the referring court. This was the case in the referral from the Polish Supreme Court (Labour and Social Insurance Chamber) regarding the new Disciplinary Chamber. In its Judgment of 19 November 2019 (Grand Chamber), the CJEU listed the elements to be taken into consideration as to determine if the relevant court meets the requirements of effective judicial protection, which needs to be determined by the national requesting court. Also, the CJEU added that, if the referring court concluded that the relevant domestic tribunal failed to meet these requirements, “the principle of the primacy of EU law must be interpreted as requiring the referring court to disapply the provision of national law which reserves jurisdiction to hear and rule on the cases in the main proceedings to the abovementioned chamber, so that those cases may be examined by a court which meets the abovementioned requirements of independence and impartiality and which, were if not for that provision, would have jurisdiction in the relevant field” (Joined cases C-585/18, C-624/18 and C-625/18, cit., paragraphs 171-172). This response is fairly surprising, since it is worth inquiring about whether the national court has room to implement the CJEU’s approach under its domestic legislation. 69 Bonelli and Claes (2018), p. 638.

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threshold of protection’ guaranteed by Article 6(1) ECHR, it would in any event have to brought up to that standard.”70 Therefore, it has already been confirmed that the Court of Justice could raise the standard of independence (or, better said, tighten up the requirement of independence) regarding the notion of “national court or tribunal” within the meaning of Article 267 TFEU.71 Clearly overruling the Gabalfrisa case, in the Judgment of 21 January 2020 handed down in Banco de Santander,72 the CJEU invoked the cases Associação Sindical dos Juízes Portugueses and Commission v. Poland (Independence of the Supreme Court) to claim that the Spanish Central Tax Tribunal (Tribunal Económico Administrativo Central) does not qualify as a court or tribunal for the purposes of Article 267 TFEU.73 Accordingly, from the perspective of the preliminary ruling mechanism, there has been an unexpected collateral effect. The point is that, although this interpretative shift makes sense from the perspective of the rule of law,74 it is a lot harder to understand from the viewpoint of preliminary rulings, since it deprives several bodies of a chance (that they did have before) to engage in judicial dialogue with the CJEU. Finally, the Miasto Łowicz case75 has highlighted the limits of the mechanism of the preliminary ruling to address systemic deficiencies in relation to the rule of law 70

Opinion, cit., point 114. García-Valdecasas Dorrego (2019, p. 86, n. 37) had previously noted that “the Court of Justice may very well deny the status of courts or tribunals to administrative bodies that had already been acknowledged as judicial authorities in the light of its considerations in ASJP” (own translation). 72 Case C-274/14, EU:C:2020:17. 73 The connection between this shift and the new developments related to Article 19 TEU and the rule of law are clearly evidenced by the Opinion of Advocate General Hogan: “EU law has not stood still since the [J]udgment of 21 March 2000, Gabalfrisa and Others (C-110/98 to C-147/98, EU:C:2000:145) was decided. Article 2 TEU now provides that the Union is founded on the value of respect for the rule of law. Article 19(2) TEU provides that the judges and Advocates General of the Court of Justice ‘shall be chosen from persons whose independence is beyond doubt’. Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) provides for a guarantee of an effective remedy and a hearing before an ‘independent and impartial tribunal’. In line, perhaps, with these Treaty and Charter developments, the Court has subsequently developed an impressive line of case law addressing the requirements of judicial independence. Much of this contemporary case law has been summarized by the Court in its Judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses” (Opinion delivered on 1 October 2019, points 4-5, EU:C:2019:802). 74 Simonelli (2018) has put forward that, within the notion of judicial independence as construed in the context of the preliminary ruling mechanism, the CJEU “does not include a key aspect: the discretion of the executive in the appointment and re-appointment of judges. Therefore, this notion of judicial independence may result inadequate to tackle the legislative reforms in Poland, which are posing a serious threat to the independence of the Polish judiciary. In particular, according to the Court’s previous case law, the unfettered discretion of the President of the Republic in deciding whether or not to renew the judges’ mandate –as provided for by Article 37 of the new Polish law on the Supreme Court– should not constitute an issue for the independence of the judges.” Thus, “a rethink of the notion of judicial independence as emerges from the previous case law of the Court is all the more necessary”. 75 See note 60. 71

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because the Court rules that the requests for a preliminary ruling made by two regional courts of Poland also relating to the disciplinary system of judges in that country are inadmissible because the disputes in the main proceedings are not substantively connected to EU law, in particular to the second subparagraph of Article 19(1) TEU to which the questions referred relate, and that the referring courts are not therefore required to apply that law, or that provision, in order to determine the substantive solution to be given to those disputes.76 In its argument, the CJ recalls the differences between the infringement proceedings and the mechanism of the preliminary ruling as it regards the role it plays, implicitly highlighting the advantages of the former in this area: the task of the Court must be distinguished according to whether it is requested to give a preliminary ruling or to rule on an action for failure to fulfil obligations. Whereas, in an action for failure to fulfil obligations, the Court must ascertain whether the national measure or practice challenged by the Commission or another Member State, contravenes EU law in general, without there being any need for there to be a relevant dispute before the national courts, the Court’s function in proceedings for a preliminary ruling is, by contrast, to help the referring court to resolve the specific dispute pending before that court.77

2 The ECtHR and Judicial Independence: The Limitations of the Individual Protection System The rule of law is one of the Council of Europe’s main pillars. Thus, unsurprisingly, the Council seeks to safeguard judicial independence78 whilst it states its concerns about the threats thereto. In its 2019 Report, the Secretary General includes a warning:

The Court considers that “it is not apparent from the orders for reference that there is a connecting factor between the provision of EU law to which the questions referred for a preliminary ruling relate and the disputes in the main proceedings, and which makes it necessary to have the interpretation sought so that the referring courts may, by applying the guidance provided by such an interpretation, make the decisions needed to rule on those disputes” (paragraph 52), so “those questions do not therefore concern an interpretation of EU law which meets an objective need for the resolution of those disputes, but are of a general nature” (Paragraph 53). The Court clarifies that this impediment was not raised in the previous cases Associação Sindical dos Juízes Portugueses and A.K. (see paragraphs 49 and 51). Thus, “the Court limits preliminary references under Article 19(1)(2) TEU to procedures, in which the challenges to Article 19(1)(2) TEU form part of the legal assessment – be it as the object of the main procedure or as a preliminary question (e.g. to establish jurisdiction). This excludes challenges external to the main procedure, such as the threat of disciplinary measures” (Spieker 2020). 77 Paragraph 47. 78 In particular, by means of the work of the Venice Commission of the Council of Europe, the Group of States against Corruption (GRECO), the Consultative Council of European Judges (CCJE), and the Consultative Council of European Prosecutors (CCPE). Independence and impartiality of the judiciary and individual judges is included in the Rule of Law Checklist adopted by the 76

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Judicial independence has been subject to heightened attention in the past four years. While some positive developments were noted in a few countries, efforts to interfere with the work and composition of national judiciaries –including constitutional courts– have increased. Where such political interference occurs, it puts judicial independence under stress and threatens to erode the separation of powers. [. . .] It appears that some political actors no longer see the separation of powers as inviolable. When the integrity and role of the judiciary are questioned, public trust in the justice system is lost and the authority of the rule of law is weakened. The undermining of the independence of the judiciary by the executive, attempts to replace judges and, finally, efforts to alter constitutions for nefarious purposes are dangerous trends. These are clear threats to democratic societies and democratic security. They must be countered.79

The Parliamentary Assembly, on the other hand, deals with the matter both generally and with respect to specific member States. In Resolution 2188 (2017), the plenary body points out the following: The Assembly has thoroughly examined the situation in five member States: Bulgaria, the Republic of Moldova, Poland, Romania and Turkey. Although the list of problems found in these States does not encompass all of those to be found in Council of Europe member States, the Assembly is concerned about some recent developments which put at risk the respect for the rule of law, and, in particular, the independence of the judiciary and the principle of the separation of powers. This is mainly due to tendencies to limit the independence of the judiciary though attempts to politicize the judicial councils and the courts (mainly in Bulgaria, Poland and Turkey), the massive revocation of judges and prosecutors (Turkey) or attempts to do so (Poland). . . .80

As for the ECtHR, the application of Article 6(1) of the European Convention on Human Rights (ECHR) has given rise to a consistent and settled case law on the aspects to be considered when determining if a given judge or court is independent and impartial.81 The ECtHR has even ruled on the characteristics that national judicial councils (also designated as councils of judges) should have,82 although

Venice Commission in 2016 (https://www.venice.coe.int/images/SITE%20IMAGES/Publications/ Rule_of_Law_Check_List.pdf). 79 Ready for Future Challenges-Reinforcing the Council of Europe, Report by the Secretary General for the Ministerial Session in Helsinki, 16-17 May 2019, p. 15 (https://rm.coe.int/168093af03). The 2018 report (State of Democracy, human Rights and the rule of law-Role of institutions-Threats to institutions, expressed similar concerns; Report by the Secretary General of the Council of Europe, 2018, pp. 13-16 (https://search.coe.int/cm/Pages/result_details.aspx? ObjectId¼09000016807bfcb6). 80 New threats to the rule of law in Council of Europe member States: selected examples, paragraph 6. 81 In his Judgment of 19 November 2019, the CJEU has summarized this ECtHR’s case law (see paragraphs 126–129). 82 For instance, see Olujic v. Croatia, Judgment of 5 February 2009, Application no. 22330/05, CE: ECHR:2009:0205JUD002233005; Ozpinar v. Turkey, Judgment of 19 October 2010, Application no. 20999/04, CE:ECHR:2010:1019JUD002099904; Ramos Nunes de Carvalho v. Portugal, Judgment of 21 June 2016, Applications no. 55391/13, 57728/13 and 74041/13, CE: ECHR:1106JUD005539113; Paluda v. Slovakia, Judgment of 23 May 2017, Application no. 33392/13, CE:ECHR:2017:0523JUD003339212; Denisov v. Ukraine, Judgment of

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the line of reasoning in these decisions is not expressly tied to the rule of law. However, individual complaints arising from measures adopted by states signatories of the ECHR where there are systemic deficiencies in the rule of law related to judicial independence have resulted in interesting decisions. In the case Volkov v. Ukraine,83 the ECtHR found a violation of Article 6 (1) ECHR regarding the dismissal of a Supreme Court judge. Concerning the enforcement of the judgment, and relying on Article 46 ECHR, the Court asserted that: the present case discloses serious systemic problems as regards the functioning of the Ukrainian judiciary. In particular, the violations found in the case suggest that the system of judicial discipline in Ukraine has not been organized in a proper way, as it does not ensure sufficient separation of the judiciary from other branches of State power. Moreover, it does not provide appropriate guarantees against abuse and misuse of disciplinary measures to the detriment of judicial independence, the latter being one of the most important values underpinning the effective functioning of democracies.84

Furthermore, the Court stated that, for the proper execution of the judgment, the respondent State was required to take urgent measures aimed at reforming the system of judicial discipline, including legislative amendments. Similarly, having regard to the exceptional circumstances, the Court urged the respondent State to reinstate the applicant to the post of judge of the Supreme Court at the earliest possible date.85 Remarkably, this was the first time that the ECtHR made such a decision, relying on Article 46 to determine both general and individual measures in cases involving systemic dysfunctions. The ECtHR has also ruled on allegedly undue political interference on the Hungarian judiciary in the Baka case. The applicant was removed from his office as President of the Supreme Court by means of a constitutional reform after criticizing the new legislation on the judicial system. The applicant alleged that there had been a breach of Articles 6(1) and 10 of the Convention. In its 2016 ruling,86 the Grand Chamber failed to address the issue of judicial independence, and settled the case by focusing exclusively on individual terms. It did conclude, however, that both provisions had been violated. The ECtHR reached this conclusion in spite that the International Commission of Jurists, along with other civil rights organizations acting as third-party interveners, submitted to the Grand Chamber that the case had to be examined within the general context of events in Hungary and in the light of the importance of the rule of law and judicial independence.87 25 September 2018, Application 76639/11, CE:ECHR:2018:0925JUD007663911 and Ástráðsson v. Iceland, Judgment of 19 March 2019, Application no. 26374/18, CE: ECHR:2019:0312JUD002637418). 83 Judgment of 9 January 2013, Application no. 21722/11, CE:ECHR:2013:0109JUD002172211. 84 Paragraph 199. 85 See paragraphs 200–202 and 208. 86 Case Baka v. Hungary, Judgment of 23 June 2016, Application no. 20261/12, CE: ECHR:2016:0623JUD002026112. 87 See paragraphs 136–139.

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This ruling mentions the rule of law many times, mostly because it relies on soft law of the Council of Europe and other international organizations connecting the rule of law,88 but it does not tackle the structural problem underlying the individual case, which actually involved judicial independence, not only access to a court and freedom of expression.89 In this regard, note that two judges who supported the judgment submitted a Joint Concurring Opinion claiming that the said ruling had left much unsaid:90 “In view of the crucial importance of this case for the rule of law, the independence of the judiciary and the determination of the Court’s role in upholding these values in Europe, we find it imperative to state, urbi et orbi, what was left unsaid.”91 Their contribution strengthens the contents of the judgment, but it also acknowledges the gaps in the decision.92 Therefore, certain authors have pointed out that the ruling failed for not taking the qualitative leap to the case’s structural dimension.93 Nevertheless, it would be unfair to require the ECtHR to be as intense or strict as the CJEU when protecting judicial independence as a cornerstone of the rule of law. The fact that the European Union’s core values are enshrined in the TEU, the specific reference to “access to justice” (effective judicial protection) in Article 19(1) TEU, along with Article 47 of the EU Charter and the potential provided by preliminary rulings and infringement actions facilitates the role of the Court of Justice, which is most certainly willing to exercise its powers. Conversely, the ECtHR’s individual right-oriented approach, and the fact that judicial review is implemented by means of individual complaints, narrow the ECtHR’s scope of action to tackle potential systemic risks entailed by the violations of judicial independence, which is not protected by the ECHR as an individual right.94 The ECHR is ill-equipped to address

88

See paragraphs 57–87. Along these lines, see Vincze (2015), pp. 451 and 453. 90 “[W]e consider that much was left unsaid in the written judgment. Some important features of this case were either not dealt with at all or merely touched upon indirectly” (Joint Concurring Opinion of Judges Pinto de Albuquerque and Dedov, paragraph 1). 91 Ibid. 92 Both Judges assert that, when declaring the violation of Article 6(1) ECHR given the circumstances of the case, the Court “affirms the Convention’s supra-constitutional effect, in order to override the contradicting domestic constitutional provision. In so doing, the Court affirms itself as the European Constitutional Court, with power to declare domestic constitutional provisions devoid of any legal effects within the relevant domestic legal order” (Joint Concurring Opinion, para. 1). They also point out that, “although not stated explicitly,” the ruling should have consequences on the basis of Article 46 ECHR, i.e., that Hungary must proceed to a declaration of nullity of the controversial domestic legislation and it must reinstate the applicant as President of the Supreme Court for the entire duration of his interrupted term. In spite the Volkov precedent, the ECtHR did not consider this option in the case (see Joint Concurring Opinion, para. 24). 93 Kosar and Šipulová (2018). 94 As acknowledged by Kosar and Šipulová (2018, p. 101), the ECHR “does not provide for institutional protection of the independence of judiciary in the context of the principle of the separation of powers”. In a Report on the independence of the judiciary, the Venice Commission argued that “the right to an independent and impartial tribunal is first of all guaranteed by Article 89

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structural problems. Thus, the Court is encountering jurisdictional constraints. These restrictions are counterbalanced by the ECtHR’s sensitivity to the contributions of other Council of Europe bodies; in fact, the Court often cites these bodies’ submissions on judicial independence in member States.

3 A Joint Effort That Is Still Ongoing The case law of both courts examined herein yields uneven results. The CJEU seems to be better off. However, as explained above, the disparities are due to the differences regarding the judicial review systems and the regulatory approach of the two international organizations involved. As is the case with many other issues, the protection of judicial independence as an inherent element of the rule of law should not be dealt with in comparative terms, but rather in terms of cooperation. This has been the approach of both the European Union and the Council of Europe in recent documents. The European Commission has noted that the relationship of the EU with the Council of Europe is particularly relevant in the promotion of the rule of law. The EU institutions and Member States could develop this further with a view to promoting a common rule of law culture (...) within Europe.95 Furthermore, in its Resolution 2273 (2019), the Parliamentary Assembly of the Council of Europe recalls that this organization and the European Union rely on strong standards in the field of human rights, the rule of law and democracy to achieve their respective institutional goals.96 Therefore, the Council of Europe invites the European Union to support the effective application of benchmarks at European level, using the Council of Europe’s “rule of law standards,” including the case law of the European Court of Human Rights.97 To this date, the contributions of both courts have proven the importance of the judicial dimension to counter the threats to the independence of the judiciary. Selfevidently, this judicialization of the matter can be neither the only nor the first instrument to work out all deficiencies. However, as long as the risks do not

6 of the European Convention on Human Rights (. . .). The case law of the Court sheds light on a number of important aspects of judicial independence but, by its very nature, does not approach the issue in a systematic way” (Report on the Independence of the Judicial System. Part I: The Independence of Judges, adopted by the Venice Commission at its 82nd Plenary Session (Venice, 12-13 March 2010), para. 13, https://www.venice.coe.int/webforms/documents/?pdf¼CDL-AD (2010)004-e). 95 Further strengthening the Rule of Law within the Union, COM(2019) 163 final, 3 April 2019, p. 11. The Commission has reiterated this idea (Strengthening the rule of law within the Union. A blueprint for action, COM (2019) 343 final, 17 July 2019, p. 7). 96 Establishment of a European Union mechanism on democracy, the rule of law and fundamental rights, paragraph 4. 97 Ibid., para. 16.1.

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disappear and the remaining legal and political approaches remain unfeasible, we will always have the CJEU and the ECtHR.

References Bonelli M, Claes M (2018) Judicial serendipity: how Portuguese judges came to the rescue of the Polish judiciary. Eur Constitutional Law Rev 14:622–643 García-Valdecasas Dorrego MJ (2019) El Tribunal de Justicia, centinela de la independencia judicial desde la Sentencia Associação Sindical dos Juízes Portugueses (ASJP). Revista Española de Derecho Europeo 72:75–79 Hillion C (2016) Overseeing the rule of law in the EU: legal mandate and means. In: Closa C, Kochenov D (eds) Reinforcing rule of law oversight in the European Union. Cambridge University Press, Cambridge, pp 59–81 Kosar D, Šipulová K (2018) The Strasbourg Court meets abusive Constitutionalism: Baka v. Hungary and the rule of law. Hague J Rule Law:83–110 Lenaerts K (2018) The Court of Justice and National Courts: a dialogue based on mutual trust and judicial independence, introductory lecture given during the scientific conference “Application of the European law in jurisprudence at the Supreme Administrative Court of Poland, 19 March 2018: 17 pp. http://www.nsa.gov.pl/opinions-speeches/the-court-of-justice-of-the-europeanunion-president-039-s-introductory-lecture-given-during-the-scientific-conference-applicationof-the-european-law-in-jurisprudence-held-on-19-march-2018,news,215,535.php Pech L (2020) Protecting Polish judges from the ruling party’s “Star Chamber”: the Court of Justice’s interim relief order in Commission v Poland (Case C-791/19 R), Verfassungsblog, 9 April 2020, https://verfassungsblog.de/protecting-polish-judges-from-theruling-partys-starchamber/ Pech L, Platon S (2018) Judicial independence under threat: the Court of Justice to the rescue in the ASJP case. Common Market Law Rev 55:1827–1854 Pech L, Wachowiec P (2019) 1095 Days Later: From Bad to Worse Regarding the Rule of Law in Poland (Part II). Verfassungsblog, 17 January 2019, https://verfassungsblog.de/1095-days-laterfrom-bad-to-worse-regarding-the-rule-of-law-in-poland-part-ii/ Pingel I (2019) L’affaire Indépendance de la Cour Suprême devant la Cour de Justice: réflexions sur ‘L’indispensable liberté des juges’. Eur Papers 4(3):823–837, http://www.europeanpapers.eu/ en/europeanforum/affaire-independance-de-cour-supreme-devant-la-cour-de-justice Platon S (2019a) Confiance mutuelle et crise de l’État de droit dans l’Union européenne. L’Observateur de Bruxelles (115):16–22 Platon S (2019b) Writing between the lines. The preliminary ruling of the CJEU on the independence of the Disciplinary Chamber of the Polish Supreme Court. EU Law Analysis [Blog], 26 November 2019, http://eulawanalysis.blogspot.com/2019/11/writing-between-lines-prelimi nary.html Rizcallah C (2018a) Arrêt ‘LM’: un risque de violation du droit fondamental à un tribunal indépendant s’oppose-t-il à l’exécution d’un mandat d’arrêt européen ? J de Droit Européen:348–350 Rizcallah C (2018b) Dear colleague, are you independent enough? The fate of the principle of mutual trust in case of systemic deficiencies in a Member State’s System of Justice. EU Law Analysis [Blog], 4 July 2018, http://eulawanalysis.blogspot.com/2018/07/dear-colleague-areyou-independent.html Roeben V (2019) Judicial protection as the meta-norm in the EU judicial architecture. Hague J Rule Law 12:29–62. https://discovery.dundee.ac.uk/ws/portalfiles/portal/32506818/Final_ Published_Version.pdf

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Sarmiento D (2018) On constitutional mode. Despite our Differences [Blog], 6 March 2018 (https:// despiteourdifferencesblog.wordpress.com/2018/03/06/on-constitutional-mode/) Scheppele KL (2013) EU Commission v. Hungary: The Case for the “Systemic Infringement Action. Verfassungsblog, 22 November 2013 (https://verfassungsblog.de/eu-commission-vhungary-the-case-for-the-systemic-infringement-action/) Scheppele KL (2016) Enforcing the basic principles of EU law through systemic infringement actions. In: Closa C, Kochenov D (eds) Reinforcing rule of law oversight in the European Union. Cambridge University Press, Cambridge, pp 105–132 Scheppele KL (2018) Rule of law retail and rule of law wholesale: the ECJ’s (Alarming) “Celmer” Decision. Verfassungsblog, 28 July 2018, https://verfassungsblog.de/rule-of-law-retail-andrule-of-law-wholesale-the-ecjs-alarming-celmer-decision/ Schmidt M, Bogdanowicz P (2018) The infringement procedure in the rule of law crisis: how to make effective use of article 258 TFEU. Common Market Law Rev 55:1061–1100 Simonelli MA (2018) Quod Licet Iovi Non Licet Bovi. The Appointment Process to the Court of Justice and the Reform of Judiciary in Poland. European Law Blog, 7 November 2018, https:// europeanlawblog.eu/2018/11/07/quod-licet-iovi-non-licet-bovi-the-appointment-process-tothe-court-of-justice-and-the-reform-of-judiciary-in-poland/ Simonelli MA (2019). Thickening up judicial independence: the ECJ ruling in Commission v. Poland (C-619/18). European Law Blog, 8 July 2019, https://europeanlawblog.eu/2019/07/ 08/thickening-up-judicial-independence-the-ecj-ruling-in-commission-v-poland-c-619-18/ Spieker LD (2019) Commission v. Poland – a stepping stone towards a strong ‘Union of Values’. Verfassungsblog, 30 May 2019, https://verfassungsblog.de/commission-v-poland-a-steppingstone-towards-a-strong-union-of-values/ Spieker LD (2020) The Court gives with one hand and takes away with the other: The CJEU’s judgment in Miasto Łowicz. Verfassungsblog, 26 March 2020, https://verfassungsblog.de/thecourt-gives-with-one-hand-and-takes-away-with-the-other/ van Ballegooij W, Bárd P (2018) The CJEU in the Celmer case: One Step Forward, Two Steps Back for Upholding the Rule of Law Within the EU. Verfassungsblog, 29 July 2018, https:// verfassungsblog.de/the-cjeu-in-the-celmer-case-one-step-forward-two-steps-back-for-uphold ing-the-rule-of-law-within-the-eu/ Vincze A (2015) A dismissal of the president of the Hungarian Supreme Court: ECtHR Judgment Baka v. Hungary. Eur Public Law 21(3):445–456 Zelazna E (2019) The Rule of law crisis deepens in Poland After A.K. v. Krajowa Sadownictwa and CP, DO v. Sad Najwyzszy. Eur Papers 4(3):907–912, http://europeanpapers.eu/en/ europeanforum/rule-of-law-crisis-deepens-in-poland

Judicial Protection Against Austerity Measures in the EU Manuel López-Escudero

1 Introduction The economic governance of the Eurozone has undergone a major reform as a result of the financial crisis of 2008 and the subsequent sovereign debt crisis of several countries of the European Union (“EU”, hereinafter).1 The most significant element of this reform has been the development of financial assistance mechanisms for Eurozone countries with financing problems. The EU member states have had to create ex novo these mechanisms in the absence of legal base in the founding treaties, in which there was only the legal basis of Article 143 TFEU to help EU countries that have not reached the final stage of economic and monetary union (“EMU”, hereinafter) in case of balance-of-payments problems. The legal articulation of these financial assistance mechanisms has been quite complex, since instruments of international law have been used, together with the EU’s own mechanisms, and the formal and informal institutions and bodies of the EU have managed the latter and have participated in the performance of the first. This mixture of EU law with international law instruments controlled by the Eurozone countries has generated a regulation of financial assistance mechanisms of a hybrid nature and of extreme complexity.2 The States that are eligible for an adjustment program are in a very difficult economic and financial situation and the implementation of the program involves a

1

Amtembrink (2014), p. 77; Lenaerts (2013), pp. 753–769; Chiti and Teixeira (2013), pp. 683–708; Ioannidis (2016), p. 1237; López-Escudero (2015), pp. 361–433. 2 Fromont (2017), pp. 429–465; Repassi (2017), pp. 1123–1156; Poulou (2017), pp. 991–1026. M. López-Escudero (*) School of Law, Universidad de Granada, Granada, Spain Court of Justice of the European Union, Luxembourg City, Luxembourg e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Izquierdo-Sans et al. (eds.), Fundamental Rights Challenges, https://doi.org/10.1007/978-3-030-72798-7_10

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very hard adjustment effort with very intense social consequences that generate inequalities. The economic measures included in each program depend on the situation of the requesting State, but its extent and level of realization is very significant and show the loss of economic sovereignty of the assisted State. These measures relate, among other issues, to: – privatization of companies and public services; – national tax reforms and measures to combat tax evasion; – remodeling of public administration with reductions in jobs and salaries of officials, as well as measures to eliminate corruption; – restructuring measures of social security and the national health system to rationalize its operation and ensure its viability; – restructuring of the banking system; – measures related to labor market reform and the promotion of employment and social inclusion; – reform of the national judicial system; and – competitiveness promotion measures in the most important economic sectors. The level of intrusion into state competences over economic and budgetary policy is enormous. These adjustment program measures have had and have, without a doubt, a negative impact on the fundamental rights of citizens, especially those of a socio-economic nature. In this contribution, I will address, first, the difficulties for the CJEU of exercising its judicial control over the regulatory framework of bailouts to the countries of the Eurozone, given the hybrid nature of its new legal instruments. Secondly, I will analyse the impact of adjustment programs on fundamental rights and the difficulties experienced by national and European judges in using the EU Charter of Fundamental Rights (“EU Charter”, hereafter) as a limit to the human rights restrictions caused by the application of these programs.3 Both issues are closely related.

2 Judicial Control on Economic Adjustment Programs To address the balance of payments difficulties of countries that have not adopted the euro, the TFEU offered a solid legal basis. Article 143 TFEU, developed by Regulation (EC) No 332/2002,4 instituted a mechanism for medium-term financial assistance for states with balance of payments difficulties. It has benefited several EU countries affected by the crisis, but not belonging to the euro area, such as Hungary,

3

I have written two previous articles about this subject: Campos Sánchez-Bordona and LópezEscudero (2018), pp. 249–286; López-Escudero (2018), pp. 189–230. 4 Council Regulation (EC) No 332/2002 of 18 February 2002 establishing a facility providing medium-term financial assistance for Member States’ balances of payments, OJ L 53, 23.2.2002, p. 1, modified by Council Regulation (EC) No 431/2009 of 18 May 2009, OJ L 128, 27.5.2009, p. 1.

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Latvia and Romania. This assistance is therefore granted through a mechanism regulated by EU law and applied by the EU institutions in the exercise of their usual powers, although these non-euro area countries received assistance combined with IMF loans. The regulation of financial assistance for non-euro area countries through rules exclusively pertaining to EU law has facilitated their jurisdictional control by the Court of Justice. In the Florescu judgment,5 the CJEU ruled that the Memorandum of Understanding (MoU) between the European Community and Romania, concluded in Bucharest and Brussels on June 23, 2009, adopted in the framework of assistance to Romania, should be considered an act adopted by an EU institution, within the meaning of Article 267 TFEU that may be subject to the interpretation of the CJEU.6 This MoU, according to the Court, does not require the adoption of national legislation (as was the case of Romanian regulations), which prohibits the combination of a net public-sector retirement pension with income from activities carried out in public institutions if the amount of the pension exceeds the amount of the average gross national salary on the basis of which the State social security budget was drawn up. In addition, the Court understood that Article 6 TEU and Article 17 (1) of the Charter do not oppose such national regulations, which prohibit the combining of a net public-sector retirement pension with income from activities carried out in public institutions if the amount of that pension exceeds a certain threshold. However, this medium-term financial assistance mechanism was not usable by the euro area countries,7 because Article 125 TFEU establishes the no-bailout rule, according to which each State generates, is responsible and assumes its debts exclusively. Several countries reached very high levels of indebtedness in 2010 (Greece, Ireland, Portugal and, to a lesser extent, countries such as Spain, Belgium or Italy) that, together with a bad economic situation, raised doubts about their solvency and affected the stability of the entire euro area, requiring financial assistance. The articulation of these mechanisms has developed under the pressure of the markets and in tow of the imperative needs to carry out the bailouts. Its legal articulation has been marked by the recourse of the States to instruments of public international law, which have been interconnected with norms of EU law, giving rise to very complex financial assistance mechanisms.8 In the spring of 2010, the EU countries solved the first Greek bailout with crossed bilateral loans and immediately created a provisional financial assistance mechanism

5 Case C-258/15, Florescu and others, Judgment of 13 June 2017, EU:C:2017:448. See the comments of Markakis and Dermine (2018), pp. 665–672. 6 See the comments of Asín Cabrera (2018), pp. 191–213. 7 Allemand and Martucci (2012), pp. 17–99; De Gregorio Merino (2012), p. 1635; De La Rosa (2016), p. 513; Martucci (2015); Ioannidis (2016), p. 1237; Thym and Wendel (2012), p. 737. 8 The use of instruments of public international law to articulate the rescue mechanisms of Eurozone countries have been well analysed by De Witte (2013); Pastor Palomar (2014), pp. 283–310.

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for the euro area countries, the so-called European Financial Stabilization Mechanism (EFSM). Given the persistence of the debt crisis, the EU decided in 2012 to replace this provisional mechanism with a permanent one, the European Stability Mechanism (ESM), created through an international agreement between the countries of the euro area,9 also modifying EU primary law (new paragraph 3 of Article 136 TFEU) to establish a legal basis for this type of financial assistance mechanism for the future.10 The relationship of this international organization called ESM with EU law was intensified with the adoption of Regulation No 472/2013.11 On the one hand, this Regulation increases the hybridization of procedures and regulatory acts adopted by the ESM and the EU in bailouts, increasing the complexity of the regulatory framework. On the other hand, this Regulation rules more clearly and intensifies the participation of the EU and its institutions in the preparation of adjustment programs and in the implementation of the measures to put into practice these bailouts. Under the aegis of the EFSM and after the ESM, the second and third bailouts of Greece, the Irish and Portuguese rescue, the rescue of the Spanish financial sector and the Cypriot rescue have been developed. Taking into account the hybrid nature of this regulatory framework and its complexity, how intensely has the CJEU exercised its jurisdictional control over the acts adopted in the bailouts?

2.1

From Pringle to the Ledra and Malis Rulings

The profile of such jurisdictional control over anti-crisis measures was set with the famous Pringle ruling, which legitimized the policy of financial assistance to the countries of the euro area, articulated by the Member States outside EU law. In this case, the ECJ said that Article 136(3) TFEU confirms that Member States have the power to establish a stability mechanism and is further intended to ensure, by providing that the granting of any financial assistance will be made subject to strict conditionality, that the mechanism will operate in a way that will comply with European Union law. That amendment does not confer any new competence to the Union and the amendment of Article 136 TFEU, which is effected by Decision 2011/

9

Treaty establishing the European Stability Mechanism, text available on https://www.esm.europa. eu/sites/default/files/20150203_-_esm_treaty_-_en.pdf. 10 2011/199/EU, European Council Decision of 25 March 2011 amending Article 136 of the Treaty on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the euro, OJ L 91, 6.4.2011, p. 1. 11 Regulation (EU) No 472/2013 of the European Parliament and of the Council of 21 May 2013 on the strengthening of economic and budgetary surveillance of Member States in the euro area experiencing or threatened with serious difficulties with respect to their financial stability, OJ L 140, 27.5.2013, p. 1.

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199, creates no legal basis for the Union to be able to undertake any action which was not possible before the entry into force of the amendment of the TFEU. The fact that the ESM Treaty makes use of the Union’s institutions, in particular the Commission and the ECB, is not, in any event, capable of affecting the validity of Decision 2011/199, which in itself only provides for the establishment of a stability mechanism by the Member States and is silent on any possible role for the Union’s institutions.12 The Court also considered (paragraph 161) that “the duties conferred on the Commission and ECB within the ESM Treaty, important as they are, do not entail any power to make decisions of their own. Further, the activities pursued by those two institutions within the ESM Treaty solely commit the ESM.” The ECJ in Pringle accepted the use of international law instruments to build the stability mechanism and it considered acceptable that the Member States and the organs of the Union had acquired new powers going beyond the EU acquis to deal with the 2008 crisis and therefore did not refer to the Treaties to frame their choices.13 As a result, the Court rejected the possibility of establishing substantial limits to rescues organized by the ESM.14 The reasoning of the ECJ was crystal clear: “[. . .] the Member States are not implementing Union law, within the meaning of Article 51(1) of the Charter, when they establish a stability mechanism such as the ESM where, as is clear from paragraph 105 of this judgment, the EU and FEU Treaties do not confer any specific competence on the Union to establish such a mechanism” and “it follows from the foregoing that the general principle of effective judicial protection does not preclude either the conclusion by the Member States whose currency is the euro of an agreement such as the ESM Treaty or their ratification of it.” The Court also insisted that the duties conferred to the Commission and ECB within the ESM Treaty, important as they are, do not entail any power to make decisions of their own. Further, the activities pursued by those two institutions within the ESM Treaty solely commit the ESM.15 On the day of the Pringle judgment, which is more than a coincidence, the General Court resolved the two ADEDY cases,16 related to decisions requiring Greece to transpose into domestic law measures to reduce expenditure in the public service aimed at reducing the salaries and bonuses of civil servants. The General Court dismissed the actions for annulment because of the applicants’ lack of locus standi, considering that they had not succeeded in demonstrating that they were directly concerned by the contested acts.

12

Case C-370/12, Pringle, Judgment of 27 November 2012, EU:C:2012:756, paragraphs 72–74. Yannakopoulos (2016), p. 5. 14 See Martín Rodríguez (2016), p. 269. 15 Case C-370/12, Pringle, cit. in note 12, paragraph 161. 16 Case T-215/11, ADEDY and others v Council, Order of 27 November 2012, T:2012:627; and Case T-541/10, Order of 27 November 2012, EU:T:2012:626. 13

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In the case of Sindicato dos Bancários do Norte and others17 concerning the compatibility between the reductions in wages in the public sector and the prohibition of discrimination, the Court declared itself manifestly incompetent and rejected the request for a preliminary ruling on the grounds that the provisions of the Portuguese law concerned did not implement EU law within the meaning of Article 51 (1) of the Charter. The same expeditious approach was also applied to the two other Portuguese cases concerning the abolition of Christmas holiday bonuses, which were paid to the employees of a public insurance company in Portugal.18

2.2

The Malis Case

This formalistic and unsatisfactory jurisprudence was reviewed, in part, by the Grand Chamber of the CJEU in two cases concerning the Cypriot rescue, which resulted in the Malis and Ledra judgments, pronounced the same day. The facts were related to the Cypriot rescue but the appellant’s strategies diverge.19 During the first few months of 2012, certain banks established in Cyprus, including Cyprus Popular Bank and Bank of Cyprus, encountered financial difficulties. The Republic of Cyprus thus submitted a request to the President of the Eurogroup for financial assistance from the ESM. Cyprus and the other Member States whose currency is the euro reached a political agreement after complex negotiations on a draft memorandum of understanding in March 2013. On 18 March 2013, the Republic of Cyprus declared a bank holiday on 19 and 20 March 2013, extended until 28 March 2013 in order to avoid a run on the banks. On 25 March 2013, the Eurogroup made a statement indicating that it had reached an agreement with the Cypriot authorities on the key elements of a future macroeconomic adjustment programme, which was supported by all the Member States whose currency is the euro, as well as by the Commission, the ECB and the IMF. In addition, the Eurogroup welcomed the plans for the restructuring of the financial sector that were mentioned in the annex to that statement. On the same day, the Governor of the Central Bank of Cyprus put Bank of Cyprus and Cyprus Popular Bank into resolution. The Commission then embarked upon new discussions with the Cypriot authorities with a view to finalising the memorandum of understanding.

17

Case C-128/12, Sindicato dos Bancários do Norte and others, Order of 7 March 2013, EU: C:2013:149. 18 Case C-665/13, Sindicato Nacional dos Profissionais de Seguros e Afins, Order of 21 October 2014, EU:C:2014:2327; and Case C-264/12, Sindicato Nacional dos Profissionais de Seguros e Afins, Order of 26 June 2014, EU:C:2014:2036. It was pointed out that in doing so, the Court went against its settled case law, according to which it was being benevolent in rephrasing the questions which may come under EU law and in refusing to consider issues only when they have absolutely no connection with EU law (Kilpatrick 2015, pp. 393–421). 19 Laulhé Shaelou and Karatzia (2018), pp. 249–268.

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The ESM’s Board of Governors decided to grant stability support to the Republic of Cyprus in the form of a financial assistance facility of EUR 10 million and the memorandum of understanding was signed on 26 April 2013. Seven Cypriot citizens, who had deposits in the BoC or Laïki that had suffered a substantial reduction in their value, brought appeals before the General Court seeking the annulment of the Eurogroup’s statement of 25 March 2013 concerning the restructuring of the Cypriot banking sector. By five orders of 16 October 2014,20 the Court dismissed the actions for annulment as being inadmissible. It held that the ESM could not be considered as part of the Union’s institutions and that the Eurogroup’s statement could not be attributed to the Commission and the ECB or produce legal effects towards third parties. The applicants brought appeals, which were resolved by the Court in Mallis.21 In Mallis, the Court considered that the General Court correctly held that the Eurogroup statement could not be regarded as a joint decision of the Commission and the ECB. The Eurogroup is a forum for discussion, at ministerial level, between representatives of the Member States whose currency is the euro, and not a decisionmaking body, and is an informal meeting of the Ministers of Economy of the Member States. There was nothing to support that the Eurogroup is under the control of the Commission or the ECB or that it acts as an agent of those institutions.22 Next, the Court corroborated the General Court’s analysis according to which the contested statement could not be imputed to the Commission or to the ECB under an alleged control that these institutions would exercise over the MES. It therefore held that the Commission and the ECB could not be regarded as authors of the adoption of that statement. It also considered that the functions entrusted to the Commission and the ECB under the ESM Treaty did not involve the exercise of any specific decision-making power, because the activities exercised by these institutions within the framework of this Treaty engaged only the ESM. Finally, the Court noted that the adoption by the Cypriot authorities of the legal framework necessary for the restructuring of banking establishments cannot be regarded as having been imposed by a supposed joint decision of the Commission and the ECB, which would have been materialized by the Eurogroup statement of

20 Case T-327/13, Mallis and Malli v Commission and ECB, Orders of General Court of 16 October 2014, EU:T:2014:909; Case T-328/13, Tameio Pronoias Prosopikou Trapezis Kyprou v Commission and ECB, Order of 16 October 2014, EU:T:2014:906; Case T-329/13, Chatzithoma v Commission and ECB, Order of 16 October 2014, EU:T:2014:908; Case T-330/13, Chatziioannou v Commission and ECB, Order of 16 October 2014, EU:T:2014:904; and Case T-331/13, Nikolaou v Commission and ECB, Order of 16 October 2014, EU:T:2014:905. 21 Joined Cases C-105/15 P to C-109/15 P, Mallis and others v Commission and ECB, Judgment of 20 September 2016, EU:C:2016:702. 22 Paragraphs 51 to 62 of contesting orders and paragraphs 47 and 49 of Mallis Judgment (cit. in note 21). The inapplicability of the Charter to the Eurogroup is negative from the point of view of the protection of fundamental rights given its power as regards rescue measures, according to Poulou (2017), pp. 1005–1007.

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March 2013. According to the Court’s opinion, this declaration was purely informative in nature and aimed to inform the public of the existence of a political agreement between the Eurogroup and the Cypriot authorities reflecting a common intention to pursue the negotiations in accordance with the statement’s terms.23 The appeals were dismissed as unfounded and the General Court orders were confirmed in a ruling founded on the wording of Protocol No 14 on the Eurogroup, annexed to the FEU Treaty. Furthermore, there is no analysis concerning the real power of the Eurogroup on ESM and its influence on the articulation of the Cypriot rescue. In fact, the Malis ruling closed the door on the applicants’ opportunity to sue the statement (declaration) of the institutional forum that has the real political power to activate and delineate the measures adopted by Cypriot authorities. In legal terms, the content of the founding Treaties conditioned the solution of the Court, but it was unfair to immunize the Eurogroup against the appeals related to crisis measures decided in last instance by this informal forum of euro area economic ministries.

2.3

The Ledra Case

Ledra Advertising, a company established in Cyprus, and several Cypriot individuals were holders of deposits with the BoC or the Laïki. The application of measures agreed with the Cypriot authorities has resulted in a substantial reduction in the value of these deposits. The individuals and the company concerned then brought actions before the General Court, against the Commission and the ECB. They ask to be paid a compensation, equivalent to the reduction in the value of their deposits, allegedly suffered because of the adoption of the Memorandum of Understanding of 26 April 2013. The General Court declared in part inadmissible and in part unfounded their actions seeking, first, annulment of paragraphs 1.23 to 1.27 of this Memorandum concluded between the Republic of Cyprus and the ESM on 26 April and, secondly, compensation for the damage pleaded by the appellants resulting from the inclusion of those paragraphs in the Memorandum of Understanding and an infringement of the European Commission’s supervisory obligation.24 In the appeal procedure against these orders, the appellants put forward a plea alleging errors committed by the General Court when assessing the conditions under which the EU may incur non-contractual liability. The Ledra judgment followed the approach of the Mallis ruling as regards to the admissibility of actions for annulment against the interventions of the Commission and the ECB in the ESM decision-making processes. The Court recalls its Pringle

23

Joined Cases C-105/15 P to C-109/15 P, Mallis, cit. in note 21, paragraphs 59 and 60. Case T-289/13, Ledra Advertising v Commission and ECB, Order of 10 November 2014, EU: T:2014:981; Case T-291/13, Eleftheriou and Papachristofi v Commission and ECB, Order of 10 November 2014, not published, EU:T:2014:978, and Case Theophilou v Commission and ECB, Order of 10 November 2014, not published, EU:T:2014:979. 24

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case law, according to which the functions entrusted to the Commission and the ECB under the ESM Treaty, important as they are, do not entail any power to make decisions of their own. Furthermore, the activities pursued by those two institutions within the ESM Treaty commit the ESM alone. Consequently, the fact that one or more EU institutions may play a certain role within the ESM framework does not modify the nature of its acts, which fall outside the EU legal order. Following this reasoning, the Court considered that an action for annulment is not admissible in these cases.25 However, the Court reoriented its case law in the Ledra judgment towards increased judicial review of the participation of the EU institutions in the ESM rescue measures with regards to claims for compensation.26 Firstly, it should be recalled that the Pringle judgment had established the non-application of the EU Charter of Fundamental Rights only with regard to the Member States and that the Court had not said anything about the possible opposability of the Charter to the EU institutions in the context of the ESM Treaty.27 Advocate General Kokott had even claimed that, as an EU institution, the Commission remained fully bound by its law, including the EU Charter of Fundamental Rights, even when acting within the EMS framework, but she did not observe any violation of EU law in the missions that the ESM Treaty had entrusted to it.28 Secondly, whilst the precedents arguments were liable to restrict the admissibility of an action for annulment (Article 263 TFEU), they cannot prevent unlawful conduct linked, as the case may be, to the adoption of a memorandum of understanding on behalf of the ESM from being raised against the Commission and the ECB in an action for compensation under Article 268 TFEU and the second and third paragraphs of Article 340 TFEU. The tasks entrusted to the Commission and the ECB under the ESM Treaty do not alter the powers that the TEU and the TFEU confer on them. Thus, the Commission retains, within the framework of the ESM Treaty, its role as guardian of the Treaties, as set out in Article 17(1) TEU, so that it must refrain from signing a memorandum of understanding whose consistency with EU law it doubts. It follows that the General Court erred in law deciding that it did not have jurisdiction to consider an action for compensation based on the illegality of the MoU.29 The Court decided that the appeals should therefore be upheld and the orders under appeal set aside. The case being ready for judgment, the Court decided to give final judgment and to rule on the appellants’ claims, under Article 268 TFEU and the second and third

25 Joined Cases C-8/15 P to C-10/15 P, Ledra Advertising and Others v Commission and ECB, Judgment of 20 September 2016, EU:C:2016:701, paragraphs 53 and 54, AG Wathelet Opinion, point 53. 26 See the comments of Combos (2019), pp. 123–127. 27 Koukiadaki (2015), pp. 53–73. 28 Position of the AG Kokott delivered on 26 October 2012, C-370/12, Pringle, EU:C:2012:675, points 176 and 177. Same opinion by Peers (2013), pp. 51–53; Craig (2013), pp. 281–282. 29 Joined Cases C-8/15 P to C-10/15 P, Ledra, cit. in note 25, paragraphs 55–60.

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paragraphs of Article 340 TFEU, relating to compensation for the damage allegedly suffered as a result of, first, the inclusion by the Commission and the ECB of the disputed paragraphs in the MoU of 26 April 2013 and, secondly, the Commission’s inaction in breach of the obligation to ensure, in the context of the adoption of this MoU, that the latter was in conformity with EU law. In that regard, the Court recalled its case law according to which the undertaking of the non-contractual liability of the Union is subject to the fulfillment of three conditions, namely the unlawfulness of the conduct alleged against the EU institution, the fact of damage and the existence of a causal link between the conduct of the institution and the damage complained of. As regards the first condition (a sufficiently serious breach of a rule of law intended to confer rights on individuals), the Court accepted the application of the Article 17(1) of the Charter on the protection of the right of property to the EU institutions in this case. However, the restrictions of this applicants’ right (losses of the bank deposits) was justified in this case by the objective of ensuring the stability of the banking system in the euro area, and having regard to the imminent risk of financial losses to which depositors with the two banks concerned would have been exposed if the latter had failed.30 The Ledra case opens the door to a limited judicial scrutiny by the ECJ on the hybrid measures against the crisis adopted by the ESM and the EU institutions. It is an indirect judicial control because it is articulated by using the action for compensation under Article 268 TFEU and the second and third paragraphs of Article 340 TFEU. The use of the annulment action against these hybrid measures against the crisis was closed in Ledra as well as in the Mallis rulings.

2.4

An Alternative Approach to Mallis and Ledra Case Law

The Mallis and Ledra cases provide us with a good example about the complex legal framework of the measures against crisis. It was very difficult for individuals to find the challengeable act and the appropriate legal remedy to assert their rights. In the present case, Mallis and others had challenged the statement of the Eurogroup of 23 March 2013, which captured the agreement between Cyprus and its creditors on the rescue, while Ledra and others had appealed against the MoU, signed by the Commission, on behalf of the MES, and by Cyprus, on the economic adjustment program that organised the rescue. The other possibility would have been to attack the Council decisions that repeat the measures of the Cypriot MoU (see implementing decision n  2013/46331) or to ask the national judges for the nullity

30

Joined Cases C-8/15 P to C-10/15 P, Ledra, cit. in note 25, paragraphs 66–75. 2013/463/EU: Council Implementing Decision of 13 September 2013 on approving the macroeconomic adjustment programme for Cyprus and repealing Decision 2013/236/EU, OJ L 250, 20.9.2013, p. 40. 31

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of the measures adopted by the Cypriot State in application of the MoU and suggest that they refer preliminary rulings to the Court of Justice. In my opinion,32 the ECJ could have followed a less formalist approach in the Mallis and Ledra judgments, taking account in particular of the links which EU law maintains (Council Decisions 2013/236 and 2013/46333) with the declaration by the Eurogroup and the ESM, and then with the MoU of 26 April 2013. The Eurogroup played a key role in providing financial assistance to Member States in difficulty, in particular through its involvement in the ESM. The ESM is chaired by the Eurogroup: the ministers of the Eurogroup form the ESM’ Board of Governors, the ESM’ president is that of the Eurogroup and the ESM’ Board of Directors has the same composition as that of the Eurogroup Working Group. We could therefore consider that, through the ESM, the Eurogroup has acquired decision-making power, which the TFEU does not recognise. In this context, the Court reasoning considering the statements of the Eurogroup with clearly “normative” content as acts of an informative nature (the legality of which could not be checked) is not adequate to guarantee a complete system of judicial review of acts with normative content producing effects on individuals.34 Moreover, it would also have been possible to follow a less formalistic approach in the Ledra and Mallis cases by taking into account the Regulation No 472/2013,35 applicable to the Cypriot rescue. In the Ledra judgment, the Court considered that the Cypriot MoU was an act derived from the ESM Treaty, imputable to the ESM and not to the Commission, insofar as the latter acted “within the limits of the powers granted to them by Article 13(3) of the ESM Treaty.”36 However, the Court, like its Advocate General Wahl, failed to refer to Regulation No 472/2013 and to the fact that the content of this MoU was included in the Council Implementing Decision

32

See also Fromont (2017), pp. 444–454. 2013/236/EU: Council Decision of 25 April 2013 addressed to Cyprus on specific measures to restore financial stability and sustainable growth, OJ L 141, 28.5.2013, p. 32, and 2013/463/EU: Council Implementing Decision of 13 September 2013 on approving the macroeconomic adjustment programme for Cyprus and repealing Decision 2013/236/EU, OJ L 250, 20.9.2013, p. 40. 34 AG Wathelet Opinion in Mallis, point 132 says: “It is true that that sequence of events shows that the Euro Group clearly carries considerable political weight and that the Member States feel bound by the agreements concluded within that forum. However, this is not sufficient to support the view that the contested statement produced binding legal effects with respect to third parties within the meaning of the Court’s case-law.” (Opinion delivered on 21 April 2016, Joined Cases C-105/15 P to C-109/15 P, Mallis and others v Commission and ECB, EU:C:2016:294). 35 Regulation (EU) No 472/2013 of the European Parliament and of the Council of 21 May 2013 on the strengthening of economic and budgetary surveillance of Member States in the euro area experiencing or threatened with serious difficulties with respect to their financial stability, OJ L 140, 27.5.2013, p. 1. Council decisions based on the economic adjustment programs adopted based on Regulation No 472/2103 are Union acts and its compatibility with the Charter can always be raised by individuals before the Court, if they are active legitimation, or before national judges. See, Lenaerts and Gutiérrez-Fons (2017), p. 440. 36 Joined Cases C-8/15 P to C-10/15 P, Ledra, cit. in note 25, paragraph 52. 33

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2013/463. Article 7 of said Regulation imposed on the Commission the duty to ensure compliance, through the MoUs, with the various decisions of the Council. Likewise, the ESM also had to take into account Union law.37 In such circumstances, the Court might have been able to determine whether the action for annulment against the Cypriot MoU would have been possible as far as its content was taken up by a decision of the Council.

3 Adjustment Programs and Protection of Fundamental Rights The essential content of the adjustment programs of Greece, Portugal, Ireland, Spain and Cyprus consists in the adoption of tough economic adjustment measures by these States, as a counterpart to the financial assistance received and with the aim of improving the competitiveness of their economy. These austerity measures entail a reduction in public revenues for the provision of essential public services, such as education, health, social assistance or justice, so that citizens with lower economic resources will have a greater difficulty in accessing them, unable to finance with their personal resources the private supply of these services.38 The impact of these austerity measures on the enjoyment of human rights of the most disadvantaged layers of the population has been and still is very considerable.39 The judicial control by the CJEU on economic adjustment measures with an impact on fundamental rights has also been complicated and has led to jurisprudence that we could describe as unsatisfactory from the perspective of the requirements of the rule of law. The hybrid nature of the instruments applied by the EU to offer financial assistance to the Member States of the euro area is, without a doubt, the main reason that has hindered the jurisdictional control by the CJEU of adjustment measures that restrict fundamental rights. According to Article 51, first paragraph, of the EU Charter of Fundamental Rights, the EU institutions must respect the Charter in all their areas of intervention while the Member States must respect it only when they are implementing Union law. Taking into account this distinction, the Court developed a different test to control EU member State measures restricting the fundamental rights and the EU

Article 13 (3) in fine of the ESM Treaty: “The MoU shall be fully consistent with the measures of economic policy coordination provided for in the TFEU, in particular with any act of European Union law, including any opinion, warning, recommendation or decision addressed to the ESM Member concerned.” 38 See the deep written by Ivankovic Tamamovic (2015). See also the Report of the Independent Expert Juan Pablo Bohoslavsky to the UN Human Rights Council on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of human rights, particularly economic, social and cultural rights, A/HRC/31/60, 12, January 2016. 39 See, among other, the doctrinal analysis of Ghailani (2017), pp. 165–194; Salomon (2015), pp. 655–689; De Schutter (2017), pp. 77–107. 37

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institutions actions that hindered these rights in the framework of EU rescues and adjustment programmes. In both cases, the protection of economic stability is recognised as a limit to the liability of the EU institutions and Member States.

3.1

The Member States Economic Measures Restricting Human Rights

Concerning Member States, the starting point of the CJEU’s position is found in the famous Pringle ruling. This judgment firmly stated that Member States do not apply Union law, within the meaning of Article 51.1 of the EU Charter when establishing a stability mechanism such as the ESM, for whose establishment the TEU and TFEU do not attribute any specific competence to the Union.40 Based on this conclusion, the CJEU considered itself in a laconic and expeditious manner incompetent and declined by order the answer to numerous questions referred for a preliminary ruling from Portugal, which questioned the compatibility with the fundamental rights of the EU Charter of restrictive measures adopted by the member states in execution of the economic adjustment programs applied to receive financial assistance.41 The Court considered that the order for reference did not contain any concrete evidence to show that the national measures at issue in these cases were aimed at implementing Union law precisely within the meaning of Article 51 of the Charter. From a formalistic legal perspective it may be a logical conclusion, but from the substantive legal perspective, more attached to the requirements of the rule of law, I believe that these are actions by states that ultimately depend on EU decisions (Eurogroup, Euro Summit, Council, Commission and ECB), between which the “screen” of the ESM is interposed. This intervention of international organizations, fully controlled by the Euro area countries, should not have prevented an adequate jurisdictional control by the CJEU of adjustment measures of a hybrid nature with an impact on fundamental rights. Advocates general Wathelet and Øe proposed to take into account not only the material links existing between the ESM Treaty and EU law, but also the fact that when a Member State of the euro area complies with the conditionality of the financial assistance provided by the ESM, it also complies with EU law, in particular 40 Case C-370/12, Pringle, cit. in note 12, paragraphs 180 y 181, and Opinion of the Advocate General Kokott, cit. in note 28, point 193. On the same day, the General Court adopted the Orders in ADEDY (Case T-215/11 and Case T-541/10, both cit. in note 16), in which he considered that a trade union and several civil servants lacked active legitimacy to attack the Greek Government’s measures of drastic wage reductions taken under Greece’s first bailout. 41 Case C-128/12, Sindicato dos Bancários do Norte and others, cit. in note 17, paragraph 12; Case C-665/13, Sindicato Nacional dos Profissionais de Seguros e Afins, cit. in note 18, paragraph 19; and Case C-264/12, Sindicato Nacional dos Profissionais de Seguros e Afins, cit. in note 18, paragraph 14. See the criticism of this case law by Fromont (2016), p. 469.

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the Council decision reiterating this conditionality adopted under Regulation No. 472/2013. In his opinion in the Mallis case42 concerning losses of bank account savers of more than 100,000 euros in Cypriot banks intervened in the framework of the Cypriot rescue, AG Wathelet said “the Council decisions thus addressed to a Member State support the view that national measures adopted pursuant to commitments entered into by a Member State vis-à-vis the ESM constitute an implementation of EU law even though the MoU does not constitute an act of EU law, provided, however, that those measures are reproduced in the Council decision adopted after the MoU has been signed.”43 And he added that “Even if individuals cannot demonstrate that they are directly concerned by such implementing decisions, the Member States are in any case required by the second subparagraph of Article 19 (1) TEU to provide ‘remedies sufficient to ensure effective legal protection’. . . national courts must be able to refer to the Court of Justice for a preliminary ruling questions on the validity of implementing decisions and the compatibility of macroeconomic adjustment programmes with the FEU Treaty, the general principles of EU law and the Charter.” In this case, the Court did not follow the AG Wathelet approach and resolved the appeal by confirming the judgment of the General Court that considered inadmissible the appeal for annulment against the Eurogroup Declaration of March 25, 2013, which gave the green light to the Cypriot rescue and contained in its annex a good part of the adjustment measures collected later in the MoU of Cyprus.44 The AG Øe in his opinion in the Associação Sindical dos Juízes Portugueses case followed also a less formalistic orientation. In this case, a Portuguese judicial association considered contrary to article 47 of the Charter (the right to effective judicial protection) a Portuguese law that reduced the salaries of judges, since it affected their independence. This rule had been adopted in execution of the MoU containing the economy adjustment program for Portugal. AG Øe considered that the adoption of measures to reduce remuneration in the public sector provided for in article 2 of Portuguese Law No. 75/2014 constituted an application of the provisions of EU law, within the meaning of Article 51 of the Charter because they were related to the same EU decisions.45 Therefore, the Court of Justice was competent to respond to the request for a preliminary ruling also to the extent that it referred to Article 47 of the Charter.46

42

Opinion in Mallis, cit. in note 34. Opinion in Mallis, cit. in note 34, point 91. 44 See Germain (2017), p. 166. 45 Council Implementing Decision 2012/409 of 10 July 2012 on granting Union financial assistance to Portugal, and also on the Council Recommendation of 18 June 2013 with a view to bring an end to the situation of an excessive government deficit in Portugal. 46 Opinion of AG Øe delivered on 18 May 2017, C-64/16, Associação Sindical dos Juízes Portugueses, EU:C:2017:395, points 50–53. 43

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However, he proposed correctly that the second subparagraph of Article 19 (1) TEU and Article 47 of the Charter must be interpreted as meaning that they do not preclude general measures to reduce remuneration in the public administration that are applied to the judges under national legislation such as that at issue in the main proceedings. The right to judicial protection, within the meaning of Article 47 of the Charter, includes the requirement that the independence of the members of the tribunal be guaranteed by the payment to them, having regard to the responsibilities which they assume, of sufficient high and stable remuneration, in order to protect them against any external interference or pressure that might undermine the neutrality of the judicial decisions that they must take. However, in a situation of great economic crisis, such as that experienced during the period preceding the adoption of the Portuguese measures, the principle of judicial independence cannot be understood as making it impossible to change their remuneration, although such an operation must clearly remain within reasonable proportions in order to avoid making judges vulnerable to pressure that might be borne on them. In addition, the measures to reduce the remuneration at issue affected not only the judges but also a large number of persons active in the civil service. Thus the judges were in no way exclusively or even specifically targeted.47 The judgment of the CJEU adopted the same solution but with a different reasoning linked to the application of Article 19 (1) TEU and not based on Article 47 of the Charter.48 In effect, the Court concluded that the second subparagraph of Article 19(1) TEU must be interpreted as meaning that the principle of judicial independence does not preclude general salary-reduction measures, such as those applied to the Portuguese judges, linked to requirements to eliminate an excessive budget deficit and to an EU financial assistance programme, from being applied to the members of the Tribunal de Contas (Court of Auditors).49

47

Ibidem, points 77–80. See Morgades Gil (2019), pp. 51–52. 49 C-64/16, Associação Sindical dos Juízes Portugueses, Judgment of 27 February 2018, EU: C:2018:117, paragraphs 46–52. The arguments of the Court were as follow: 48

– the salary-reduction measures at issue were adopted because of mandatory requirements linked to eliminating the Portuguese State’s excessive budget deficit and in the context of an EU programme of financial assistance to Portugal; – these measures provided for a limited reduction of the amount of remuneration, up to a percentage varying in accordance with the level of remuneration; – the measures were applied not only to the members of the Tribunal de Contas (Court of Auditors), but, more widely, to various public office holders and employees performing duties in the public sector, including the representatives of the legislature, the executive and the judiciary; – those measures cannot, therefore, be perceived as being specifically adopted in respect of the members of the Tribunal de Contas (Court of Auditors). They are, on the contrary, in the nature of general measures seeking a contribution from all members of the national public administration to the austerity effort dictated by the mandatory requirements for reducing the Portuguese State’s excessive budget deficit; – the salary-reduction measures were temporary in nature.

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Following this approach, the Court did not clarify in Associação Sindical dos Juízes Portugueses if the Member States’ measures adopted in the framework of the MoUs related to the euro area countries’ rescues constitute an application of the provisions of EU law, within the meaning of Article 51 of the Charter. This question remains open.

3.2

The EU Institutions Interventions in EU Rescues Restricting Human Rights

As regards the application of the Charter to the EU institutions in the context of anticrisis measures, the Ledra judgment clarified the question. It should be recalled that the Charter binds institutions in all their spheres of activity, including when they act outside the framework of the Union. In this regard, the Court stated: “the Charter is addressed to the EU institutions, including . . . when they act outside the EU legal framework. Moreover, in the context of the adoption of a memorandum of understanding such as that of 26 April 2013, the Commission is bound, under both Article 17(1) TEU, which confers upon it the general task of overseeing the application of EU law, and Article 13(3) and (4) of the ESM Treaty, which requires it to ensure that the memoranda of understanding concluded by the ESM are consistent with EU law . . . to ensure that such a memorandum of understanding is consistent with the fundamental rights guaranteed by the Charter.”50 We must welcome this clarification by the Court,51 which enshrines the obligation for the Commission to refrain from signing any MoU incompatible with Union law in general and with the Charter in particular and which dissipates the doubt on the application of the Charter to the institutions of the Union acting within the framework of the ESM.52 Doctrine had pointed out the inconsistency in allowing the Union institutions to elude the application of the Charter simply by means of acting outside Union law.53 However, the reasoning of the Court would have been more convincing by referring to Regulation No 472/2013, which expressly provides for compliance with Articles 152 TFEU and 28 of the Charter by MoUs.54 Likewise, the reference to Article 51(1) of the Charter would have been necessary in order to have a clearer reasoning on the applicability of the Charter to the institutions when they act for the ESM and outside of EU law.

50

Joined Cases C-8/15 P to C-10/15 P, Ledra, cit. in note 25, paragraph 67. The legal doctrine underlines the character of Ledra Judgment as leading case (Donaire Villa 2018, pp. 154–156). 52 See Fromont (2017), p. 459. 53 Barnard (2013), p. 53; Kilpatrick (2015), pp. 393 and seq.; Poulou (2014), p. 1145. 54 Article 1 (4), and 7 (1), fifth paragraph 5, of the Regulation 472/2013. 51

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In spite of the acceptation by the Court of the application to the Commission of the Charter in the framework of the Cypriot rescue, I will just recall that in the Ledra judgment the Court did not recognise the non-contractual liability of the Union. In effect, the Court accepted the application of the Article 17(1) of the Charter on the protection of the right of property to the EU institutions in Ledra. However, the restrictions of this applicants’ right (losses of the bank deposits) was justified in this case by the objective of ensuring the stability of the banking system in the euro area.

3.3

Financial Stability as a Limit to Fundamental Rights

In the still few cases where the Court has decided to exercise judicial review of anticrisis measures, the scope of this review has always been limited. In my view, there are two circumstances, which explain the Court’s limited review of the substance of the anti-crisis measures. Namely, first, the margin of appreciation of the institutions of the Union concerning the adoption of economic policy measures and, secondly, the relevance that the objective of preserving the financial stability of the Union has taken on as a justification for measures restricting fundamental rights. With regard to the adoption of economic policy measures, the Court has always been reluctant to analyse their merits while recognising a broad discretion in the political and technical institutions of the Union (Commission, Council, ECB), as well as to the Member States in their implementation. This reluctance of the Court to exercise a thorough review can be seen in the Florescu judgment when it states, “given the particular economic context, Member States have broad discretion when adopting economic decisions and are in the best position to determine the measures likely to achieve the objective pursued.”55 The General Court in the Sotiropoulou judgment follows a similar approach with regard to the margin of appreciation of the institutions of the Union. This judgment resolves the dispute relating to a claim for extra-contractual liability made by sixtyfour Greek pensioners following successive reductions in their retirement pensions adopted on the basis of a series of decisions adopted by the Council in the course of the procedure for excessive deficit opened against Greece under Article 126 TFEU. The General Court analyses whether the Council, in adopting the contested decisions, has manifestly and grossly disregarded the limits of this discretion in order to determine the existence of a sufficiently serious breach of EU law. It concluded that the Council had not exceeded the limits of its broad discretion and that it was not manifestly unjustified to provide for the adoption of measures of economy concerning various expenditures, including those linked to retirement systems.56

55

Case C-258/15, Florescu, cited in note 5, paragraph 57. Case T-531/14, Sotiropoulou and others v Council, Judgment of 3 Mai 2017, EU:T:2017:297, paragraphs 83–87. Legal writers consider that the General Court missed an opportunity to strengthen its judicial control over anti-crisis measures, given that the Greek authorities had very 56

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The broad discretion of the ECB in matters of monetary policy was also invoked by the General Court in order to exclude the responsibility of the ECB in the Accorinti and Nausicaa cases,57 brought by private holders opposing Greek public debt restructuring in 2012. The financial stability of the euro area was also accepted by the General Court in its Sotiropoulou ruling in which it considered that the reduction in the amount of pensions was a measure aimed at ensuring budgetary consolidation, reducing public expenditure and supporting the Greek pension system. Consequently, this measure also met some of the general interest objectives pursued by the Union, namely those of ensuring the budgetary discipline of the Member States whose currency is the euro and ensuring the financial stability of the euro area.58 In Chrysostomides and others, the General Court refers to an objective of public interest pursued by the European Union, namely that of ensuring the stability of the banking system of the euro area as a whole, and it says that “financial services play a central role in the economy of the European Union. In so far as banks, an essential source of funding for businesses, are often interconnected, the failure of one or more banks is liable to spread rapidly to other banks, either in the Member State concerned or in other Member States and, as a result, to produce negative spill-over effects in other sectors of the economy.”59 In this case, the protection of the stability of the banking system of the euro area as a whole justified, in the opinion of the General Court, the Cypriot measures adopted in the framework of the Cypriot rescue in order to restructure the Laïki bank.60 By these measures, the depositors of more than

little room for manoeuvre in adopting the economic measures envisaged in detail by Council decisions, themselves considered as binding legal acts (Adalid 2017, p. 360). 57 Case T-79/13, Accorinti and others v ECB, Judgment of 7 October 2015, EU:T:2015:756, and Case T-749/15, Nausicaa Anadyomène v ECB, Judgment of 24 January 2017, EU:T:2017:21. 58 Case T-531/14, Sotiropoulou, cit. in note 56, paragraphs 88–90. 59 Case T-680/13, Chrysostomides and others v Council, Commission, ECB, Eurogroup and European Union, Judgment of the General Court of 13 July 2018, EU:T:2018:486, paragraph 255 (Judgment confirmed on appeal in case C-597/18 P, Council v K. Chrysostomides & Co. and others, and case C-603/18 P, Chrysostomides and others v Council and others, Judgement of 16 of December 2020, EU:C:2020:1028 ). See, to that effect, joined cases C-8/15 P to C-10/15 P, Ledra, cit. in note 25, paragraphs 71 and 72 and the case law cited; ECtHR, 10 July 2012, Grainger and Others v United Kingdom, CE:ECHR:2012:0710DEC003494010, paragraphs 39 and 42, and ECtHR, 21 July 2016, Mamatas and Others v Greece, CE:ECHR:2016:0721JUD 006306614, paragraph 103. 60 Case T-680/13, Chrysostomides, cit. in note 59, paragraph stated: “In the present case, first, it should be noted that the adoption of the harmful measures was a response to a situation in which, if they were not recapitalised, the banks concerned would have been exposed to a risk of a run as of the expiry of the closure period of the banks ordered on 18 March 2013, so that they would have risked having to cease their operations and would have been threatened by a disorderly default. As the ECB pointed out in reply to the Court’s measures of organisation of procedure, the effects of such defaults were likely to be systematic, threatening the Republic of Cyprus with a sovereign default and risking a spread to other banks, in particular Cypriot banks. The confidence of depositors in those banks and the solvency of the Republic of Cyprus, guarantor of certain debts of Laïki, would have been affected and the stability of the entire Cypriot banking system threatened. As the

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100,000 euros and the shareholders of this bank suffered relevant financial losses (bail in rescue), restricting their property rights. The same approach was followed by the CJEU in the Florescu ruling. However, it accepted the financial stability of the euro area, as a reason for justifying the restrictive national measures (salary reduction for Romanian judges), by the exceptional context of the global financial and economic crisis. The European Court of Human Rights (ECHR) also recognized a wide margin of appreciation for States in the context of the economic crisis to take general economic measures restricting human rights and the financial stability was also accepted as a justification for these restrictions.61

4 Some Concluding Remarks The difficulties encountered by the Court of Justice in exercising judicial control over anti-crisis measures stem from the difficulty of the courts to rule on the validity of the economic policies of the political institutions and, above all, from the fact that the financial assistance mechanisms for the euro area countries were created outside the framework of EU law. This last element caused the conformation of a complex legal framework where several Union institutions, in relation to international organizations, either linked to it (ESM) or being independent (IMF), organized rescues by means of the adoption of hybrid legal acts of varied legal nature. The elimination of this “anomaly” (in other words, the use of instruments of international law) in the articulation of financial assistance to the euro area would undoubtedly make the task of the Court easier in order to control austerity measures restricting the rights of the Charter. The solution was present in the proposal on the creation of a European Monetary Fund (EMF) as part of the measures to complete the Economic and Monetary Union.62 This EMF would substitute the ESM and become an EU organ or agency. At least for now, the euro area countries are reluctant to accept this transformation and envisage only reforming the ESM Treaty. In my opinion, it is more complicated to eliminate the difficulties experienced by the General Court and the Court of Justice to scrutinize the validity of the austerity measures adopted by the EU institutions and EU Member States in the framework of EU rescues in favour of the EU countries with serious financial troubles. These

Commission and the ECB noted, a risk of contagion to other Member States, or to the entire banking system of the euro-zone, could then not be excluded.” 61 Judgment of 21 July 2016, Mamatas and others v Greece, CE:ECHR:2016:0721JUD006306614, and also judgments of 7 May 2013, Koufaki and Adedy v Greece, CE: ECHR:2013:0507DEC005766512; of 8 October 2013, Da Conceição Mateus and Santos Januário v Portugal, CE:ECHR:2013:1008DEC006223512; and of 1 September 2015, da Silva Carvalho Rico v Portugal, CE:ECHR:2015:0901DEC001334114. 62 Proposal for a Council Regulation on the establishment of the European Monetary Fund COM/2017/0827 final - 2017/0333 (APP).

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austerity measures are always complex economic or financial decisions, adopted by technical or political institutions. The courts can only exercise a limited judicial control but it is important that this scrutiny take place to stop disproportionate restrictions on human rights. The CJEU case law on austerity measures still under construction and the approach open by the Ledra ruling should be followed to reinforce the judicial protection for human rights during the economic and financial crisis.

References Adalid S (2017) Les retraités grecs et le choc des méthodes. Revue des affaires européennes – Law Eur Aff 2:353–362 Allemand F, Martucci F (2012) La nouvelle gouvernance économique européenne. Cahiers de droit européen 1:17–99 Amtembrink F (2014) General Report. In: Nneergaard U, Jacqueson C, Danielsen JH (eds) The economic and Monetary Union: constitutional and institutional aspects of the economic governance within the EU, XXVI FIDE Congress. DJOF Publishing, Copenhagen, pp 35–90 Asín Cabrera MA (2018) Los Memorándums de Entendimiento sobre condiciones de políticas sectoriales financieras y su impacto en los Derechos Fundamentales. Revista Vasca de Administración Pública 100-II:191–213 Barnard C (2013) The Charter in time of crisis: a case study of dismissal. In: Countouris, Freedland (eds) Resocialising Europe in a time of crisis. Cambridge University Press, Cambridge, p 267 et seq Campos Sánchez-Bordona M, López-Escudero M (2018) Le contrôle de la Cour de justice sur les mesures contre la crise économique. In: Paschalidis P, Wildemeersch J (eds) L’Europe au présent! Liber amicorum Melchior Wathelet. Bruylant, Brussels, pp 249–286 Chiti P, Teixeira G (2013) The constitutional implications of the European responses to the financial and public debt crisis. CMLRev 4:683–708 Combos K (2019) Constitutional review and the economic crisis: in the courts we trust. Eur Public Law 25(1):123–127 Craig P (2013) Pringle and use of EU institutions outside the EU legal framework: foundations, procedure and substance. EuConst 9:281–282 De Gregorio Merino (2012) Legal developments in the economic and Monetary Union during the debt crisis: the mechanisms of financial assistance. CMLRev 49(5):1613–1646 De La Rosa S (2016) La gouvernance économique et le sens de l’intégration. Revue trimestrielle de droit européen 52(3):513–536 De Schutter O (2017) Social rights in the new socio-economic architecture of the European Union. Journal européen des droits de l’homme/Eur J Hum Rights 2:77–107 De Witte B (2013) Using international law in the Euro crisis. ARENA Working Paper n 4 Donaire Villa F (2018) El Tribunal de Justicia y la tutela de los derechos en la Unión Económica y Monetaria europea. Revista Vasca de Administración Pública 100-II:154–156 Fromont L (2016) L’application problématique de la Charte des droits fondamentaux aux mesures d’austérité: vers une immunité juridictionnelle. Journal européen des droits de l’homme 4:469–495 Fromont L (2017) Protection juridictionnelle des particuliers face aux politiques d’austérité: la fin de l’imbroglio juridique? Commentaire des arrêts Ledra Advertising e.a. et Mallis et Malli e.a. de la Cour de justice du 20 septembre 2016. Cahiers de droit européen 2:429–465

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Germain J (2017) La protection par l’Union européenne des droits fondamentaux contre les programmes d’ajustement macroéconomiques. Commentaire des arrêts Ledra Advertising Ldt e.a. et Konstantinos Mallis e.a. de la CJUE. Revue de l’Union européenne 606:166–170 Ghailani D (2017) Les atteintes aux droits fondamentaux: dommages collatéraux de la crise de la zone euro? In: Vanhercke B, Natali D, Bouget D (eds) Bilan social de l’Union européenne 2016. European Trade Union Institute (ETUI) and OSE, Brussels, pp 165–194 Ioannidis M (2016) Europe’s new transformations: how the EU economic constitution changed during the Eurozone crisis. CMLRev 4:1237 et seq Ivankovic Tamamovic A (2015) The impact of the crisis on fundamental rights across Member States of the EU: comparative analysis. European Parliament, Brussels. http://www.europarl. europa.eu/RegData/etudes/STUD/2015/510021/IPOL_STU(2015)510021_EN.pdf Kilpatrick C (2015) Are the bailouts immune to EU social challenge because they are not EU law? EuConst 10(3):393–421 Koukiadaki A (2015) La crise économique et les droits collectifs des travailleurs en Europe. Revue française des affaires sociales 3:53–73 Laulhé Shaelou L, Karatzia A (2018) Some preliminary thoughts on the Cyprus bail-in litigation: a commentary on Mallis and Ledra. Eur Law Rev 2018(2):249–268 Lenaerts K (2013) EMU and the European Union’s constitutional framework. ELRev 6:753–769 Lenaerts K, Gutiérrez-Fons JA (2017) The European Court of Justice as the guardian of the rule of EU social law. In: Vandenbroucke F, Barnard C, De Baere G (eds) A European Social Union after the crisis. Cambridge University Press, Cambridge, pp 407–450 López-Escudero M (2015) La nueva gobernanza económica de la Unión Europea: ¿una auténtica unión económica en formación? Revista de Derecho Comunitario Europeo 50:361–433 López-Escudero M (2018) La degradación de las exigencias del Estado de derecho en el ámbito de la unión económica y monetaria. In: Liñán Nogueras DJ, Martín Rodríguez P (eds) Estado de derecho y Unión Europea. Tecnos, Madrid, pp 189–230 Markakis M, Dermine P (2018) Bailouts, the legal status of Memoranda of Understanding, and the scope of application of the EU Charter: Florescu. CMLRev 3:665–672 Martín Rodríguez P (2016) A missing piece of European Emergency Law: legal certainty and individuals’ expectations in the EU response to the crisis. Eur Const Law Rev 12(2):265–293 Martucci F (2015) L’ordre économique et monétaire de l’Union européenne. Bruylant, Brussels Morgades Gil S (2019) Tutela judicial efectiva y medidas de ayuda a Estados en el marco de la UEM: jurisprudencia del TJUE y comparación con otros ámbitos del Derecho de la Unión europea. In: Olesti Rayo A (ed) La profundización de la Unión Económica y Monetaria. Marcial Pons, Barcelona, pp 27–54 Pastor Palomar A (2014) El derecho internacional en los mecanismos de rescate financiero en la zona euro. In: Aldecoa Luzárraga F, Fernández Liesa C, Abad Castelos M (eds) Gobernanza y reforma internacional tras la crisis financiera y económica: el papel de la Unión Europea. Marcial Pons, Madrid, pp 283–310 Peers S (2013) Towards a new form of EU law?: The use of EU institutions outside the EU legal framework. EuConst 9:37–72 Poulou A (2014) Austerity and European social rights: how can courts protect Europe’s lost generation? German Law J 15(6):1145–1176 Poulou A (2017) Financial assistance, conditionality and human rights protection: what is the role of the EU Charter of Fundamental Rights? CMLRev 54(3):991–1026 Repassi R (2017) Judicial protection against austerity measures in the euro area: Ledra and Mallis. CMLRev 54(4):1123–1155 Salomon M (2015) Of austerity, human rights and international institutions. Eur Law J 21 (4):655–689 Thym D, Wendel M (2012) Préserver le respect du droit dans la crise: la Cour de justice, le MES et le mythe du déclin de la Communauté de droit. Cahiers de droit européen 3:737–743

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The Overlap Between the Principles of Effectiveness and Effective Judicial Protection in Union Law Fernando Pastor-Merchante

1 Introduction From a rule of law perspective, one of the main innovations brought about by the entry into force of the Treaty of Lisbon in 2009 was the codification of the principle of effective judicial protection, which is now enshrined by Articles 19 of the Treaty on European Union (TEU) and 47 of the Charter of Fundamental Rights (CFR). In the Union legal order, the principle of effective judicial protection is a spin-off of the principle of effectiveness, since it was born in the context of the case law on the standards that bind Member States in the exercise of their procedural autonomy.1 This is probably the reason why, ten years after the codification of the principle of effective judicial protection, its relationship with the principle of effectiveness remains unclear. In its case law, the Court of Justice sometimes refers to these principles as cumulative and independent from each other.2 At times, it embeds the principle of effectiveness within the principle of effective judicial protection.3 There are other occasions when it presents the principle of effective judicial protection as a manifestation of the principle of effectiveness.4 The issue has also attracted the attention of legal scholarship and some authors have made forecasts about the

1 Case 14/83, Von Colson, Judgment of 10 April 1984, EU:C:1984:153; Case 222/84 Johnston, Judgment of 15 May 1986, EU:C:1986:206. 2 Case C-12/08, Mono Car Styling, Judgment of 16 July 2009, EU:C:2009:466, paragraph 49. 3 Case C-286/06, Impact, Judgment of 15 April 2008, EU:C:2008:223, paragraphs 47–48. 4 Case C-61/14, Orizzonte, Judgment of the Court of 6 October 2015, EU:C:2015:655, paragraph 48.

F. Pastor-Merchante (*) Pérez-Llorca IE Chair of Commercial Law, IE University, Segovia & Madrid, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Izquierdo-Sans et al. (eds.), Fundamental Rights Challenges, https://doi.org/10.1007/978-3-030-72798-7_11

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decline5 or the outright disappearance of the principle of effectiveness,6 as a result of its absorption by the constitutionally more prominent principle of effective judicial protection.7 The contribution that this chapter seeks to make concerns the frame rather than the substance of this debate. Indeed, the purpose of this chapter is to compare the scope of application of both principles and to show that the situations where they overlap are actually quite restricted. The chapter starts with a brief account of the origins, rationale and implications of the principles of effectiveness (Sect. 2) and effective judicial protection (Sect. 3). It then spells out the main commonalities and differences between their respective scopes of application, so as to demarcate the area of overlap where both principles project themselves (Sect. 4). The last part of the chapter reflects upon the interplay between both principles in that area, showing that it is a function of the stakeholders whose interest are at stake in each case. In order to do so, the analysis draws on the conceptual toolkit of economic regulation and on the notions of ‘regulated actors’ and ‘regulatory beneficiaries’ (Sect. 5).

2 The Principle of Effectiveness in Union Law The principle of effectiveness was formulated for the first time in Rewe, in the context of a dispute over the restitution of charges having equivalent effect raised by Germany, in violation of the rules on free movement laid down by the Treaties.8 German administrative law conditioned the possibility of restituting such charges upon the revocation of the administrative measures that had approved them in the first place, but the time limit for doing so had already elapsed. The question was whether national time limits could stand in the way of the right to restitution that the affected importer derived from Community law. In response to this question, the Court famously enunciated what would subsequently be known as the ‘principle of procedural autonomy’. The principle of procedural autonomy is neither a principle9 nor a competence allocation standard.10 However, it is a ‘convenient abbreviation’11 for the residual rule that where (or to the extent that) Union law does not specify the institutional, procedural or remedial conditions that govern its enforcement at the national level, these issues are governed by the domestic laws of Member States. This is just one of the many ways in which

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Widdershoven (2019), p. 23. Arnull (2018), p. 1026. 7 Bonelli (2019), p. 51. 8 Case 33/76, Rewe, Judgment of 16 December 1976, EU:C:1976:188. See also Case 45/76, Comet, Judgment of 16 December 1976, EU:C:1976:191. 9 Arzoz Santisteban (2013), p. 72. 10 Kakouris (1997), p. 1389. 11 Arnull (2011), p. 52. 6

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Union law ‘piggybacks’ on the institutional and legal architecture of its Member States.12 Needless to say, Union law is not indifferent to the outcomes produced by the subsidiary application of the domestic laws of Member States. Indeed, Rewe imposed two constraints on the procedural autonomy of Member States.13 On the one hand, the so-called ‘principle of equivalence’ embodies an anti-discrimination rule according to which the enforcement of Union law may not be subject to ‘less favourable’ conditions than the enforcement of similar actions grounded in national law. On the other hand, and more to the point, the so-called ‘principle of effectiveness’ provides that the domestic procedural laws of Member States may not make the regular enforcement of Union law ‘impossible in practice’ (as the Court put in Rewe)14 or ‘virtually impossible or excessively difficult’ (as it put it in later cases).15 The Court derived these constraints from the principle of sincere cooperation, which is nowadays enshrined in Article 4(3) TEU. According to the text of that provision, the principle of sincere cooperation has two dimensions. In its reciprocal dimension, the principle of sincere cooperation demands that Member States cooperate and assist each other in the fulfilment of the tasks and obligations that they have agreed upon in the Treaties. In its unilateral dimension, the principle of sincere cooperation imposes upon Member States two different but complementary obligations: the positive obligation to take any appropriate measure to comply with the obligations that they derive from the Union legal order; the negative obligation to refrain from taking any measure which could jeopardize the attainment of the Union’s objectives. The principle of effectiveness fulfils the function of a backstop clause, in the sense that it seeks to avoid that the domestic rules that govern the enforcement of Union law at the national level hinder the achievement of its objectives. In this sense, the first mandate derived from this principle is the duty of consistent interpretation, which demands that national courts (and national operators in general) make everything that they can to align the interpretation of their domestic law with the demands stemming from Union law.16 The malleability of national law and the interpretative creativity of national judges are not boundless, which is why the second mandate derived from the principle of effectiveness is the duty to set aside national procedural rules that impede the achievement of the outcomes mandated by Union law.17 The standard understanding of this principle is that it does not provide a sufficient legal basis for the administration of ‘new remedies’ (i.e. remedies which are not

12

Lenaerts et al. (2014), p. 107. Although this may be changing, as a result of the increased proceduralisation of Union secondary law: see Dubos (2015) and Eliantonio and Muir (2015). 13 Case 33/76, Rewe, cit. in note 8, paragraph 5. 14 Ibid. 15 Case C-312/93, Peterbroeck, Judgment of 14 December 1995, EU:C:1995:437, paragraph 12. 16 Case C-286/06, Impact, cit. in note 3, paragraph 99; Case C-69/10, Samba Diouf, Judgment of 28 July 2011, EU:C:2011:524, paragraph 60. 17 Case C-312/93, Peterbroeck, cit. in note 15, paragraph 21.

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foreseen under the national laws of Member States). However, certain jurisprudential decisions seem to contradict this claim.18 In reality, it is probably more accurate to say that the principle of effectiveness does require a positive action by Member States where their domestic procedural laws are unfit to achieve the outcomes mandated by Union law. After all, the duty of sincere cooperation from which the principle of effectiveness hangs imposes on Member State the positive obligation to take all appropriate measures to comply with the obligations that they derive from the Union legal order. In fact, the ‘no new remedies’ rule simply reflects the fact that national courts often lack the power to make these adjustments (a task that lies with the political branches of government). From the perspective of Union law, these adjustments are nevertheless mandatory and the failure to make them may be relevant in the context of infringement proceedings and/or in the context of actions for damages brought by affected individuals against Member States. The rationale of the principle of effectiveness is strongly instrumental, in the sense that it is not primarily concerned with the protection of the rights and interests of specific applicants but rather with ensuring compliance with Union law. This is the reason why the application of this principle may be ‘favourable or detrimental’ to individuals, depending on the content of the rules stake: ‘If these rules confer rights on individuals, the application of this principle is favourable, as the principle will strengthen observance of these rights. If these rules impose obligations, the principle may work against their interests’.19 The instrumental rationale of the principle of effectiveness explains the analytical framework that informs the application of this principle, which tends to adopt a contextual and systemic perspective. The perspective is contextual because national procedural rules are not considered in isolation, but rather in connection to the general body of law that governs the enforcement of Union law. As the Court put it in Van Schinjndel and Peterbroeck, ‘whether a national procedural provision renders application of Community law impossible or excessively difficult must be analyzed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances’.20 The perspective is systemic because what matters is the impact that national procedural rules have upon the enforcement of Union law at the aggregate level, rather than in the individual circumstances of the case. Hence the focus on the ‘overall scheme of the national legal system’21 or on the effects of national provisions ‘in a considerable number of cases’,22 to give but a few examples.23

18

Arnull (2018), p. 54. Widdershoven (2019), p. 8. 20 Case C-430/93, Van Schijndel, Judgment of 14 December 1995, EU:C:1995:441, paragraph 19; Case C-312/93, Peterbroeck, cit. in note 15, paragraph 14. 21 Case C-432/05, Unibet, Judgment of 13 March 2007, EU:C:2007:163, paragraph 41. 22 Case C-105/14, Taricco, Judgment of 8 September 2015, EU:C:2015:555. 23 See also Becker (2007), p. 1056. 19

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The underlying idea seems to be that the principle of effectiveness tolerates some degree of under-enforcement so long as errors remain marginal and that it only comes into play where national procedural arrangements represent a systemic obstacle for the achievement of distinct outcomes mandated by Union law. Of course, this is reinforced by the possibility to justify some departures from the principle of effectiveness on the basis of other overriding principles. This idea was already implicit in Rewe, where the Court described the contested time-limits as ‘reasonable’.24 However, it was formulated more explicitly in Van Schinjdel and Peterbroeck, where the Court held that ‘the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure, must, where appropriate, be taken into consideration’.25 The implications of this ‘procedural rule of reason’26 have been fleshed out in subsequent cases.27

3 The Principle of Effective Judicial Protection in Union Law As noted in the introduction, in the context of the Union legal order, the principle of effective judicial protection is a spin-off of the principle effectiveness, because the origins of the former lie in the case law on the latter. Indeed, the principle of effective judicial protection was formulated for the first time in the Von Colson case.28 A German male-only prison refused to hire two female applicants, despite the fact that they were more qualified than the recruited male applicants. The dispute fell under the scope of the Directive on equal treatment, which obliged Member States to make the necessary arrangements to ensure that victims of sex discrimination can ‘pursue their claims by judicial process’. Under German law, bringing judicial proceedings on sex discrimination grounds was possible, but it was not clear whether German courts could grant any remedy other than the compensation of the travel expenses and other direct costs incurred by discriminated applicants. In response to a preliminary question, the Court of Justice made it clear that ‘although (. . .) full implementation of the directive does not require any specific form of sanction for unlawful discrimination , it does entail that that sanction be such as to guarantee real and effective judicial protection’ and that a ‘purely nominal compensation’ would fall short of this requirement.29 The answer of the Court of Justice could have been framed against the principle of effectiveness.

24

Case 33/76, Rewe, cit. in note 8. Case C-312/93, Peterbroeck, cit. in note 15; Case C-430/93, Van Schijndel, cit. in note 20. 26 Prechal (1998), p. 681. 27 Case C-453/00, Kühne & Heitz, Judgment of 13 January 2004, EU:C:2004:17; Case C-224/01, Köbler, Judgment of 30 September 2003, EU:C:2003:513. 28 Case 14/83, Von Colson, cit. in note 1. 29 Ibid, paragraph 23–24. 25

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Indeed, its reliance on the principle of sincere cooperation and its insistence on the need to ensure that sanctions have a ‘real deterrent effect on the employer’ echo Rewe and its jurisprudential progeny. In this sense, there is little doubt that the Court used the concept of ‘effective judicial protection’ to tailor its response to the phrasing of the directive and of the preliminary question. However, the incorporation of the notion of ‘effective judicial protection’ to the language of the Court would have tremendous consequences in subsequent cases. In the Johnston case, decided two years later, the Court was confronted with another preliminary reference on the same provision of the Directive on equal treatment. Mrs. Johnston’s contract as a member of the police corps was not renewed, as a result of a policy which favored male over female officials on ‘public order’ grounds. The British provisions on sex discrimination obliged national courts to treat a certificate signed by the Secretary of State as conclusive evidence that particular deviations from the principle of non discrimination were justified on public policy grounds. Confronted with this provision via the preliminary reference procedure, the Court of Justice categorically denied its conformity with the ‘principle of effective judicial protection’ enshrined by the directive.30 However, the most interesting aspect of the case is that in order to reach that conclusion the Court affirmed for the first time that the requirement of judicial control stipulated by the directive actually reflects a ‘general principle’ of the Community legal order.31 The foundations of the principle of effective judicial protection lie in the constitutional traditions common to the Member States’ and in Articles 6 and 13 of the European Convention for the Protection of Human Rights (ECHR). However, it is now enshrined in Article 47 CFR, which provides 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’. It is also mentioned in Article 19(1) TEU, which obliges Member States to ‘provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. As discussed below, the principle of effective judicial protection targets both Union institutions and Member States, which is one of the main differences between its scope of application and the scope of application of the principle of effectiveness. The rationale behind the principle of effective judicial protection is non-instrumental, in the sense that it protects the procedural position of affected stakeholders as a ‘distinctive goal in itself’.32 This is the reason why it is always ‘favourable’ for individuals33 and why it may hinder rather than facilitate the achievement of the substantive outcomes mandated by Union law—an important difference with the principle of effectiveness, which is further discussed below. The requirement of effective judicial protection has many facets. The formal dimension of the right to effective judicial protections guarantees the possibility to

30

Case 222/84, Johnston, cit. in note 1, paragraph 20. Ibid, paragraph 18. 32 Krommendijk (2016), p. 1406. 33 Widdershoven (2019), p. 17. 31

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challenge the decisions made by Union institutions or by national authorities acting within the sphere of application of Union law.34 In this dimension, the right is concerned with ‘access’ to judicial proceedings. The substantive dimension of the right further guarantees the availability of effective means of redress or, to put it differently, the capacity of courts to grant effective remedies in any of the situations mentioned before.35 In this dimension, the right is concerned with the ‘outcome’ of judicial proceedings. Finally, the procedural dimension of the right guarantees the principle of audi alteram partem36 and the absence of unjustified restrictions upon the capacity of applicants to obtain the legal redress to which they are entitled.37 In this dimension, the right is concerned with the ‘process’ that drives judicial proceedings. The analytical framework that governs the application of the principle of effective judicial protection gives more weight to the individual circumstances of each applicant than the principle of effectiveness. This may not come out as obvious in the preliminary rulings of the Court of Justice, because the Court normally leaves the analysis of the factual circumstances of each case to national courts. In general, though, the kind of systemic considerations that one finds in the case law on the principle of effectiveness are foreign to the case law on effective judicial protection. The individual approach is even more evident in the judgments issued in response to direct actions against the legislative or administrative action of the Union institutions.38 Of course, systemic or societal considerations can find their way into these cases at the justification stage, where the principle of effective judicial protection is weighted against other constitutional values and principles.39 In any event, the point to note is that the trigger that pulls the principle of effective judicial protection are the obstacles faced by individual applicants in their judicial endeavors.

4 The Scope of Application of the Principles of Effectiveness and Effective Judicial Protection Their common origin and similarities notwithstanding, there are certain factors that differentiate the respective scopes of application of the principles of effectiveness and effective judicial protection. This section reviews the most obvious and

34 Case C-13/01, Safalero, Judgment of 11 September 2003, EU:C:2003:447; Case C-279/09, DEB, Judgment of 22 December 2010, EU:C:2010:811. 35 Case 14/83, Von Colson; Case C-467/01, Eribrand, Judgment of 19 June 2003, EU:C:2003:364. 36 Case C-472/11, Banif, Judgment of 21 February 2013, EU:C:2013:88. 37 Case 222/84, Johnston, cit. in note 1; Case C-662/13, Surgicare, Judgment of 12 February 2015, EU:C:2015:89. As far as appeals are concerned, Case C-128/09, Boxus, Judgment of 18 October 2011, EU:C:2011:667. 38 Case C-386/10, Chalkor, Judgment of 8 December 2011, EU:C:2011:815. 39 Article 52(2) CFR. See e.g. Case C-279/09, DEB, cit. in note 34.

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important ones. Yet, indirectly, the analysis carried out in this section also demarcates the area of overlap between both principles.

4.1

Levels of Government Subject to the Principles of Effectiveness and Effective Judicial Protection

One of the most obvious differences between the scope of application of the principles of effectiveness and effective judicial protection concerns the levels of government subject to each of them. In theory, the principle of effectiveness only targets national authorities. This is because the principle of procedural autonomy operates in the ‘indirect administration’ context, where the task of enforcing Union law lies with the national authorities of Member States rather than with the executive organs of the European Union. Consequently, this is also the context where the equivalence and effectiveness limitations stemming from Rewe come into play. On the contrary, the principle of effectiveness binds both Union and national authorities.40 Thus, it is relevant in the ‘direct’ as well as in the ‘indirect’ administration context, which is why it has great unifying force as a ‘single code of procedure’ for the whole Union judicial architecture.41 Actually, it also plays an important role in the ‘composite administration’ context, where it prevents the emergence of judicial protection gaps within transnational networks.42 Some scholars consider that the principle of effectiveness formulated in Rewe is just one of the multiple dimensions of a broader ‘meta-principle’, which also includes the mandate that falls upon the institutions of the Union to ensure the fulfilment of the goals set by the Treaties and the effet utile of Union law.43 The endorsement of this view would diffuse the differences between the principle of effectiveness and effective judicial protection on this front. There are certainly some merits to the claim that Rewe reflects a deep-seated concern for the problem of compliance in Union law and that this concern manifests itself in many other rules and principles. However, the operation of these other rules and principles differs so much from the principle of ‘Rewe-effectiveness’ that it seems justified to treat them separately. In any event, the comparison of the levels of government subject to the principles of effectiveness and effective judicial protection shows that there is an area of

40

Article 51 CFR. Roeben (2020), p. 40. See also Safjan (2013), p. 1. 42 Case C-97/91, Borelli, Judgment of 3 December 1992, EU:C:1992:491; Case C-562/12, Liivimaa Lihaveis MTÜ, Judgment of 17 September 2014, EU:C:2014:2229. See also, in the context of judicial cooperation in criminal matters, Case C-216/18 PPU, LM, Judgment of 25 July 2018, EU: C:2018:586. 43 Ortino (2015). 41

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overlap where both may come into play: ‘indirect administration’ situations where national authorities apply or implement Union law, in the broad sense given to that phrase by the case law.44 A contrario, this means that in ‘direct administration’ situations where the enforcement of Union law is carried out by the Commission (as in antitrust), the Council (as in antidumping), the European Central Bank (as in banking supervision) or the Union agencies (as in some risk regulation areas) applicants can only rely on the principle of effective judicial protection to defend their procedural prerogatives.

4.2

Nature of the Remedies Subject to the Principles of Effectiveness and Effective Judicial Protection

The second difference between the scope of application of the principles of effectiveness and effective judicial protection concerns the nature of the remedies subject to each of them. The principle of effectiveness is blind to the nature of the remedies that secure the enforcement of Union law, which is why it is relevant in disputes involving the procedural guarantees that govern administrative procedures45 as well as in disputes involving the procedural guarantees that govern judicial proceedings. As far as the latter are concerned, the principle of effectiveness deploys its effects in judicial proceedings for the review of administrative action (public enforcement)46 as well as in horizontal litigation between private actors (private enforcement).47 It is even applicable in the criminal context, where Member States choose to attach criminal sanctions to violations of Union law.48 As its denomination indicates, the principle of effective judicial protection is exclusively concerned with the protection that the judiciary affords to those affected by the enforcement of Union law. Disputes involving issues such as the information and participatory rights that interested parties enjoy in the administrative context fall outside the scope of application of this principle, which is an important difference with the principle of effectiveness. However, the fact that this type of disputes cannot be framed against the principle of effective judicial protection should not hide the fact that they can nevertheless be framed against its twin principle of the rights of the defence, which actually gathers the administrative procedural guarantees that many

44

Case C-682/15, Berlioz, Judgment of 16 May 2017, EU:C:2017:373, paragraph 40. Case C-430/93, Van Schijndel, cit. in note 20; Joined cases C-223 to 225/05, van der Weerd, Judgment of 7 June 2007, EU:C:2007:318. 46 Case C-312/93, Peterbroeck, cit. in note 15. 47 Case C-439/93Case C-453/99, Courage, Judgment of 20 September 200, EU:C:2001:465; Joined Cases C-295 to 298/04, Manfredi, Judgment of 13 July 2006, EU:C:2006:461. 48 Case C-105/14, Taricco, cit. in note 22. 45

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national legal orders derive from their judicial due-process clauses.49 Furthermore, the distinction between administrative and judicial issues is not always very neat, as shown by the relevance that the administrative duty to provide reasons has from the perspective of the right to judicial review.50 These qualifications notwithstanding, the comparison between the nature of the remedies covered by each principle makes it possible to refine even further the perimeter of their overlapping areas: it is one where judicial remedies are at stake that both principles may potentially come into play.

4.3

The Subject Matter of the Disputes Covered by the Principles of Effectiveness and Effective Judicial Protection

The last difference between the scope of application of the principles of effectiveness and effective judicial protection concerns the subject matter of the disputes that fall within their purview—or, to put it differently, the nature of the subjective legal positions protected by each of them. The scope of application of the principle of effectiveness is very broad. The principle of effectiveness was formulated for the first time in cases involving the enforcement of directly effective provisions of Community law, such as the prohibition on charges having equivalent effect that was at stake in Rewe and in Comet or the prohibition against sex discrimination that was at stake in Johnston.51 By definition, directly effective provisions are a source of subjective actionable rights for individuals. However, the principle of effectiveness also operates in situations where the provisions whose enforcement is at stake do not enjoy direct effect.52 Thus, the scope of application of the principle of effectiveness is not restricted to situations where Union rights are at stake. On the contrary, the text of Article 47 CFR restricts the scope of application of the principle of effective judicial protection to situations where the ‘rights and freedoms’ guaranteed by Union law are at stake. At first sight, this clause suggests the application of the principle of effective judicial protection is always ancillary to the protection of other substantive rights recognized by the Union legal order. However, the ‘rights and freedoms’ clause has actually lost much of its significance as a result of two different developments. On the one hand, the recognition that reliance on a generic right against ‘arbitrary or disproportionate’ actions by public

49

Article 41 CFR. Case 222/86, Heylens, Judgment of 15 October 1987, EU:C:1987:442. 51 Case 222/84, Johnston, cit. in note 1. 52 E.g., Joined Cases C-6 and 9/90, Francovich, Judgment of 19 November 1991, EU:C:1991:428. 50

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authorities suffices to trigger the principle of effective judicial protection has considerably extended the scope of application of the principle.53 On the other hand, the Court of Justice has favored a broad interpretation of the scope of application of the principle of effective judicial protection, as a structural principle of the Union legal order. As already noted, the principle of effective judicial protection is not only enshrined in Article 47 CFR but also in Article 19 TEU. As foreseen by some scholars,54 the implications of this provision have been far-reaching, because it has allowed the Court to read into the Treaty structural requirements regarding national judiciaries. In famous cases such as the ones on the salary cuts of the members of the Portuguese Court of Auditors or on the retirement age of the judges of the Polish Supreme Court, the principle of effective judicial protection of Article 19 TEU has been used as a standard to assess the conformity of the architecture of national judiciaries with the rule of law in the European Union.55 This not the place to delve into these cases. The point to note is that, albeit based on Article 19 TEU rather than on Article 47 CFR, this jurisprudential trend has contributed to diffusing the difference between the principles of effectiveness and effective judicial protection even further—at least in so much as they apply to Member States.

5 The Overlap Between the Principles of Effectiveness and Effective Judicial Protection The preceding analysis has identified the main factors that differentiate the scope of application of the principles of effectiveness and effective judicial protection. Indirectly, the analysis has also served to identify the situations where both principles may come into play, namely situations where the enforcement of Union law is in the hands of national authorities and where judicial guarantees and remedies are at stake. It is in this type of overlapping situations where it is necessary to reflect upon the interplay between these principles.

53

Case C-682/15, Berlioz, cit. in note 44, paragraph 51. Bonelli (2019), p. 55. Arnull (2011), p. 68. 55 Case C-64/16, Associação Sindical dos Juízes Portugueses, Judgment of 27 February 2018, EU: C:2018:117; Case C-619/18, Commission v Poland, Judgment of 24 June 2019, EU:C:2019:531. 54

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The Concepts of Regulated Actors and Regulatory Beneficiaries

In order to do so, this section relies on the conceptual apparatus of economic regulation and more precisely on the notions of ‘regulated firms’ (or ‘actors’) and ‘regulatory beneficiaries’.56 By definition, economic regulation seeks to steer the behavior of some actors, which is why it imposes on them prohibitions and obligations. These stakeholders can be referred to as ‘regulated firms’, a concept that encompasses employers—in the case of occupational health and safety regulation—, producers and traders—in the case of consumer protection regulation—, and pharmaceutical companies—in the case of pharma regulation—, to give but a few examples. In the Union context, it is probably better to refer to ‘regulated actors’, since the addressees of the prohibitions and obligations laid down by Union law target legal as well as natural persons. The restrictions imposed on regulated actors often generate positive externalities for other parties, which can therefore be termed as ‘regulatory beneficiaries’. This would include employees, consumers and users in each of the aforementioned examples. Thus, both concepts rely on factual considerations, rather than on legal technicalities such as the type of subjective legal position held by each actor (e.g., rights vs interests) and the legislative intent or scope of protection of regulatory provisions (and, e.g., their objective vs subjective nature). Granted, the concepts of regulated actors and regulatory beneficiaries reflect a simplified account of a complex reality. To begin with, any body of regulation (or, more generally, any body of law) can have asymmetric effects, in the sense that some of its provisions may represent a ‘burden’ and others a ‘benefit’ for the very same actor. Furthermore, substantive and procedural provisions are often intertwined, in the sense that ‘regulated actors’ for the purposes of a substantive prohibition may be the ‘beneficiaries’ of the procedural guarantees attached to it. Finally, and as explained below, the matter is further complicated by the fact that judicial proceedings are multi-sided disputes, where claims made by ‘regulated actors’ and ‘regulatory beneficiaries’ often fly across each other. These qualifications notwithstanding, the use of these concepts may bring some clarity to the interplay between the principles of effectiveness and effective judicial protection within the area of overlap between their respective scopes of application. The next two subsections show that their interplay is a function of the players whose procedural protection is at stake: the ‘regulated actors’ that bear the burden of the substantive constraints imposed by Union law or the ‘beneficiaries’ that profit from such regulation.

56 The following discussion (and examples) build on the use of these concepts made in a different context and jurisdiction by Mendelson (2007). However, see Ostlund (2019), p. 27, who employs the notion of ‘beneficiaries of Union rules and rights’ in order to explain the tension between ‘effectiveness’ and ‘individual procedural protection’ in Union law.

The Overlap Between the Principles of Effectiveness and Effective Judicial. . .

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223

The Procedural Protection of Regulated Actors

The first scenario comprises situations where regulated actors are the ones whose procedural protection is at stake. The theory of economic regulation posits that regulated firms normally have a strong incentive to favor under-enforcement, since the burden of regulatory constraints falls upon their shoulders. This is the reason why their judicial endeavors normally seek to secure a lenient application of the regulatory framework to which they are subject. If we translate these ideas to the realm of Union law, it becomes clear that the principle of effectiveness cannot match this litigation strategy, because its purpose is to maximize rather than restrain the enforcement of the substantive rules that form the Union legal order. This is the reason why the procedural protection of regulated actors normally relies on the principle of effective judicial protection (or its twin principle the rights of the defence, if the controversy revolves around administrative guarantees). This point can be illustrated with Textdata, a case dealing with one of the directives on the accounting disclosure obligations that fall upon the shoulders of subsidiary branches opened by parent companies in other Member States.57 Under Austrian law, failure to comply with those obligations within the deadline prescribed by legislation triggered the automatic imposition of a periodic sanction, without any prior notice or hearing. Textdata was a company established in Germany, whose Austrian subsidiary was the target of such an automatic sanction. One of the issues that arose in the appeal was the conformity of the Austrian system of sanctions with Union law. Interestingly, the referring court interrogated the Court of Justice on its conformity with the ‘principle of effective judicial protection (principle of effectiveness)’, as if both could be equated.58 However, the Court of Justice reframed the question, focusing on the principle of effective judicial protection alone.59 The Court was silent on the issue, but it is obvious that the principle of effectiveness was not the problem in that case. Actually, the severe system of sanctions foreseen by Austrian law fared well in terms of ‘effectiveness’ and the question was whether it fared too well—in other words, whether it was too harsh from the perspective of the procedural guarantees embodied by the principle of effective judicial protection. This is not to say that the principle of effectiveness may not be relevant in this type of cases. Judicial proceedings are multi-sided disputes fueled by the contradictory interests of different parties (including the ‘public’ interest represented by state authorities). While the principle of effectiveness cannot afford procedural protection to regulated actors, this principle may nevertheless come into play in support of other

57 Eleventh Council Directive 89/666/EEC of 21 December 1989 concerning disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another State (OJ 1989 L 395, p. 36). 58 Case C-418/11, Textdata Software GmbH, Judgment of 26 September 2013, EU:C:2013:588, paragraph 25. 59 Ibid, paragraph 70.

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interests. This is very clear, for example, in cases dealing with the recovery of illegally granted Union funds or State aid, which typically come down to a conflict between the principle of effectiveness (which demands full and swift recovery of sums granted in violation of Union law) and the principle of effective judicial protection (or other principles invoked in defense of the recipients, such as unjust enrichment or legitimate expectations).60 It is also clear in cases like Taricco, which do not turn on the procedural protection of regulated actors (persons subject to criminal prosecution for VAT-related fraud) but rather on the conformity of national limitation periods with the effectiveness of Union law (in that case, the directives on VAT).61 The upshot is that in the first scenario there is no risk of conflation between the principles of effectiveness and effective judicial protection. From the perspective of regulated actors, these two principles serve ‘contrasting purposes’62 and the only one that can afford them with some procedural protection is the principle of effective judicial protection. The main challenge in this type of cases is to balance the contradictory requirements stemming from these principles. This is not the place to carry out a comprehensive analysis of this issue. Suffice it to say that in some cases the Court gives priority to the principle of effective judicial protection, even if this has a cost from the perspective of the effective implementation of Union law.63 In others, and especially when mutual recognition is at stake, the Court gives precedence to the principle of effectiveness, even if this means “less” effective judicial protection.64

5.3

The Procedural Protection of Regulatory Beneficiaries

The second scenario comprises situations where regulatory beneficiaries are the ones whose procedural protection is at stake. The theory of economic regulation posits that regulatory beneficiaries normally have a strong incentive to favor a strict enforcement of the regulatory framework from which they profit. Consequently, their incentive bias is diametrically opposed to that of regulated entities, in the sense that their judicial endeavors are more likely to push for over- than for underenforcement. Given its instrumental logic, the principle of effectiveness fits very well with this type of litigation strategy, since this is the context in which the mandate to remove or sidestep the obstacles that hinder the enforcement of Union law takes on its full

60 E.g., Joined cases 205 to 215, Deutsche Milchkontor, Judgment of 21 September 1983, EU: C:1983:233. 61 Case C-105/14, Taricco, cit. in note 22. 62 Safjan (2013), p. 3. 63 Case C-662/13, Surgicare, cit. in note 37, paragraph 33. 64 Case C-399/11, Melloni, Judgment of 26 February 2013, EU:C:2013:107.

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meaning. Not in vain, the seminal cases at the origin of the principle of effectiveness fell within this scenario. Rewe and Comet were the beneficiaries of the prohibition on measures having equivalent effect and the question was whether custom authorities could rely on national time-limits to resist the enforcement of that prohibition. There are many other examples of this approach, including most of the case law on the recovery of charges levied in violation of Union law,65 on state liability for infringements of Union law,66 on the ex officio application of Union law,67 on the doctrine of administrative finality,68on the principle of res judicata69 and on the availability of interim remedies for claims based on Union law.70 However, the point to note is that the principle of effective judicial protection can also afford procedural protection to the regulatory beneficiaries of Union law, because its non-instrumental logic is blind to the substantive interests at stake in each case. In cases that revolve around the procedural protection of regulated entities, the principle of effective judicial protection can be used as a shield against the rigor of Union law. However, in cases that turn on the procedural protection of regulatory beneficiaries, the very same principle can be used as a sword in order to promote the strict enforcement of Union law. This is the reason why the seminal cases at the origin of the principle of effective judicial protection also fell within this scenario: after all, what was at stake both in Johnston and in Von Colson, was the protection afforded to the eponymous applicants by the Directive against sex discrimination.71 They could all have been framed in effectiveness terms and the outcome would probably have been the same. It is therefore in this scenario where the distinction between the principles of effectiveness and effective judicial protection is not always easy. Unibet illustrates this idea. The Swedish Law on Lotteries prohibited advertising and Unibet was convinced that this prohibition was contrary to the freedom of establishment and to provide services. From the perspective of that freedom, Unibet was the ‘beneficiary’ of Union law. One of the problems was that, under Swedish law, individuals were not allowed to trigger the abstract review of legislation. The question submitted by the referring court was whether this was compatible with the principle of effective judicial protection, but the same problem could have been framed in terms of effectiveness: does the absence of a free-standing action to challenge the conformity of legislative rules with Union law compromise the effectiveness of the latter? It is

65

Case 68/79, Hans Just, Judgment of 27 February 1980, EU:C:1980:57. Joined Cases C-6 and 9/90, Francovich, cit. in note 52; Joined Cases C-46 and 48/93, Brasserie du Pêcheur, Judgment of 5 March 1996, EU:C:1996:79. 67 Case C-312/93, Peterbroeck, cit. in note 15; Case C-430/93, Van Schijndel, cit. in note 20. 68 Case C-453/00, Kühne & Heitz, cit. in note 27; Joined cases C-392 and 422/04 i-21 and Arcor, Judgment of 19 September 2006, EU:C:2004:836. 69 Case C-119/05 Lucchini, Judgment of 18 July 2007, EU:C:2007:434. 70 Case 106/77, Simmenthal, Judgment of 9 March 1978, EU:C:1978:49. 71 See also Case C-326/96, Levez, Judgment of the Court of 1 December 1998, EU:C:1998:577. 66

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therefore not surprising that, in its preliminary ruling, the Court of Justice referred to both standards.72 In Unibet, the Court did not elaborate on the nature of the relationship between both principles. In subsequent cases, there has been some hints in that direction, but they have not always been clear or consistent. For example, in cases like Impact the Court has affirmed that the requirements of equivalence and effectiveness derive from the principle of effective judicial protection and that failure to comply with those requirements carries with it an infringement of that principle (as if the principle of effectiveness was a sub-principle of the principle of effective judicial protection).73 In cases like Orizzonte, the Court has hinted at the seemingly opposite idea that ‘the principle of effectiveness (. . .) implies a requirement of judicial protection’ (as if the principle of effective judicial protection was a sub-principle of the principle of effectiveness).74 Finally, in cases like Mono Car Styling, the Court has held that Union law requires ‘in addition to observance of the principles of equivalence and effectiveness, that the national legislation does not undermine the right to effective judicial protection’ (as if both principles were cumulative and independent from each other).75 This is not necessarily a problem and it may actually be a good thing that the Court avoids getting trapped in a conceptual ‘straitjacket’, which may not fit all possible situations.76In any event, the point to note is that the discussion on the relationship between the principles of effectiveness and effective judicial protection belongs to this scenario—and to this scenario alone. It is only where the procedural protection of the beneficiaries of Union law is at stake that the non-instrumental logic of the principle of effective judicial protection can be put at the service of the instrumental goal of ensuring compliance with substantive Union law, which is what blurs the distinction between both principles. It is therefore in this context where it makes sense to claim that the principle of effectiveness may become redundant77 or that its application could end up being marginal, if restricted to the relatively few issues that cannot be easily framed in terms of effective judicial protection (e.g., ex officio application of Union law, doctrine of administrative finality, doctrine of res judicata).78 It is also in this context where legal scholarship should embed the main debates regarding the interplay between these principles, as well as any attempts to build a principled theory on the topic. In this sense, it is definitely necessary to reflect upon

72

Case C-432/05, Unibet, cit. in note 21, paragraphs 43 and 47. Case C-286/06, Impact, cit. in note 3, paragraphs 47–48. See also Joined Cases C-317 to 320/08, Alassini, Judgment of 18 March 2010, paragraph 47. 74 Case C-61/14, Orizzonte, cit. in note 4, paragraph 48. 75 Case C-12/08, Mono Car Styling, cit. in note 2, paragraph 49. This tripartite classification of the case law is based on Krommendijk (2016), Bonelli (2019), and Widdershoven (2019). 76 Krommendijk (2016), p. 1417. 77 Arnull (2018), p. 1026. 78 Widdershoven (2019), pp. 23 and 29. 73

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the precedence of the principle of effective judicial protection as a direct extension of Union law, which allegedly preempts procedural autonomy—and hence equivalence and effectiveness themselves.79 The implications stemming from the connection of the principle of effective judicial protection from the ECHR are also worth exploring.80 So are the hypotheses that the principle of effective judicial protection is more demanding than the principle of effectiveness,81 but that the opposite could be true where secondary legislation is at stake.82 The challenges are manifold and this is not the place to address them into depth. The purpose of this chapter was to place them in the right frame.

6 Conclusion This chapter has carried out a comparison of the respective scopes of application of the principles of effectiveness and effective judicial protection. The analysis has shown that their area of potential overlap is restricted to situations where two premises are met. First, the scopes of application of both principles only overlap in indirect administration situations, where the enforcement of Union law is discharged by national authorities rather than by the Union institutions themselves (for the principle of effectiveness only targets Member States, at least in the restrictive sense in which the principle is employed here). Secondly, their scopes of application only overlap when judicial remedies and guarantees are at stake (for the principle of effective judicial protection does not project its effects upon administrative procedures, unlike its twin principle of the rights of the defence). Within this overlapping area, the chapter has shown that the interplay between the principles of effectiveness and effective judicial protection is a function of the stakeholders whose procedural position is at stake. In order to support this claim, the chapter has relied on the conceptual framework of economic regulation and on the concepts of ‘regulated actors’ and ‘regulatory beneficiaries’. Where the procedural protection of regulated actors is at stake, the only principle that can afford them with procedural protection is the principle of effective judicial protection, because the principle of effectiveness normally demands a strict enforcement of the prohibitions and obligations against which those actors normally litigate. In this scenario, there is therefore no risk of conflation between both principles. It is only where the procedural position of regulatory beneficiaries is at stake that the risk of conflation exists, because in that scenario the non-instrumental logic of the principle of effective judicial protection ca be put at the service of the effectiveness of the

79

Van Cleynenbreugel (2012), p. 91. Prechal and Widdershoven (2011), p. 47; Krommendijk (2016), p. 1417; Widdershoven (2019), p. 22. 81 Widdershoven (2019), p. 21. 82 Krommendijk (2016), p. 1417. 80

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substantive provisions of Union law. It is therefore in that context—and in that context alone—where the debate on the relationship between both principles should be embedded.

References Arnull A (2011) The principle of effective judicial protection in EU law: an unruly horse? ELR 36:51–70 Arnull A (2018) Remedies before national courts. In: Schütze R, Tridimas T (eds) Oxford principles of European law, vol I. Oxford University Press, Oxford, pp 1011–1039 Arzoz Santisteban X (2013) Revisión de actos administrativos nacionales en Derecho administrativo europeo. Civitas, Cizur Menor Becker F (2007) Application of Community law by Member States’ public authorities: between autonomy and effectiveness. CMLR 44:1035–1056 Bonelli M (2019) Effective judicial protection in EU law: an evolving principle of a constitutional nature. REAL 12:35–62 Dubos O (2015) The origins of the proceduralisation of EU law: a grey area of European Federalism. REAL 8:7–26 Eliantonio M, Muir E (2015) Concluding thoughts: legitimacy, rationale and extent of the incidental proceduralisation of EU law. REAL 8:177–204 Kakouris C (1997) Do the Member States possess judicial procedural autonomy? CMLR 34:1389–1412 Krommendijk J (2016) Is there light on the horizon? The distinction between “Rewe effectiveness” and the principle of effective judicial protection in Article 47 of the Charter after Orizzonte. CMLR 53:1395–1418 Lenaerts K, Maselis I, Gutman K (2014) EU procedural law. Oxford University Press, Oxford Mendelson N (2007) Regulatory beneficiaries and informal agency policymaking. Cornell Law Rev 92:397–452 Ortino M (2015) A reading of the EU constitutional legal system through the meta-principle of effectiveness. Cahiers de droit européen 52:91–114 Ostlund A (2019) Effectiveness versus procedural protection: tensions triggered by the EU law mandate of ex officio review. Nomos Verlag, Baden-Baden Prechal S (1998) Community law in national courts: the lessons from van Schijndel. CMLR 35:681–706 Prechal S, Widdershoven R (2011) Redefining the relationship between ‘Rewe-effectiveness’ and effective judicial protection. REAL 4:31–50 Roeben V (2020) Judicial protection as the meta-norm in the EU judicial architecture. Hague J Rule Law 12:29–62 Safjan M (2013) A Union of Effective Judicial Protection. Addressing a multi-level challenge through the lens of Article 47 CFREU. Speech delivered at King’s College London Van Cleynenbreugel P (2012) The confusing constitutional status of positive procedural obligations in EU law. REAL 5:81–100 Widdershoven R (2019) National procedural autonomy and general EU law limits. REAL 12:5–34

Part III

The National Margin of Appreciation in Luxembourg and Strasbourg

The Margin of Appreciation in the Case Law of the Court of Justice: Proportionality and Levels of Fundamental Rights Protection José A. Gutiérrez-Fons

1 Introduction The margin of appreciation in the case law of the Court of Justice of the European Union (the ‘Court of Justice’) may be examined from two different, albeit complementary, perspectives.1 On the one hand, it relates to the limitations that the EU institutions or, where appropriate, the Member States may impose on the exercise of a fundamental right enshrined in the Charter of Fundamental Rights of the European Union (the ‘Charter’). Notably, the extent of that margin largely depends on the way in which the principle of proportionality is applied to the EU or national measure in question. The less intrusive a proportionality review is, the wider the margin of appreciation enjoyed by the Member States will be. On the other hand, the margin of appreciation may also be explored in the light of the vertical allocation of powers provided by the authors of the Treaties. It begs the question whether a Member State may apply its own level of fundamental rights protection or whether EU harmonisation prevents such a Member State from doing so. The purpose of this contribution is thus to look at the principle of proportionality and at the levels of fundamental rights protection. It unfolds as follows. Section 2 posits that the principle of proportionality does not apply in the same fashion to all fundamental rights enshrined in the Charter, but varies according to a number of factors such as the fundamental right at issue. In Sect. 3, it is posited that whether a Member State may apply its own constitutional standards depends on the existence or absence of EU harmonisation. Where the EU legislator has laid down a uniform All opinion expressed herein are personal to the author. 1

See, generally, Lenaerts and Gutiérrez-Fons (2020).

J. A. Gutiérrez-Fons (*) Court of Justice of the European Union, Luxembourg, Luxembourg e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Izquierdo-Sans et al. (eds.), Fundamental Rights Challenges, https://doi.org/10.1007/978-3-030-72798-7_12

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level of fundamental rights protection and that level complies with the Charter, Member States are prevented from applying a higher level of protection. This shows that the EU is governed by the principle of democracy, since it is for the EU legislator to strike the right balance between European unity and national diversity.

2 The Margin of Appreciation and the Principle of Proportionality 2.1

General Observations on the Principle of Proportionality

When a Member State implements EU law and imposes limits on the exercise of a fundamental right, such a Member State must comply with the requirements set out in Article 52(1) of the Charter. Unlike the ECHR, which lays down a specific limitation clause for each right that may be subject to limitations, the authors of the Charter chose a provision of general application. Article 52(1) of the Charter is thus ‘a general limitation clause’,2 which lays down the requirements that any limitation on the exercise of a fundamental right must fulfil in order to comply with EU law.3 The wording of Article 52(1) of the Charter is inspired by the case law of the Court of Justice prior to the entry into force of the Treaty of Lisbon.4 That case law draws, in turn, on the case law of the European Court of Human Rights (the

2

Burgorgue-Larsen (2005), p. 662. However, no limitation is possible as regards rights which are absolute, such as human dignity (Article 1), the right to life (Article 2), and the prohibition of torture, inhuman or degrading treatment or punishment (Article 4). According to the explanations relating to the Charter of Fundamental Rights, [2007] OJ C 303/17, ‘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’. The same applies to the right to life. Case C-112/00, Schmidberger, judgment of 12 June 2003, EU:C:2003:333, para. 80 (in which the Court of Justice, referring to the ECHR, held that ‘the right to life or the prohibition of torture and inhuman or degrading treatment or punishment [. . .] admit of no restriction’). As regards Article 4, see Joined Cases C-404/15 and C-659/15 PPU, Aranyosi and Căldăraru, judgment of 5 April 2016, EU:C:2016:198, para. 56; Case C-182/15, Petruhhin, judgment of 6 September 2016, EU:C:2016:630, para. 56; Case C-578/16 PPU, C. K. and Others, judgment of 16 February 2017, EU:C:2017:127, para. 59; Case C-353/16, MP (Subsidiary Protection of victims of past tortures), judgment of 24 April 2018, EU:C:2018:276, para. 36; Case C-216/18 PPU, Minister for Justice and Equality (Deficiencies in the system of justice), judgment of 25 July 2018, EU:C:2018:586, point 45, and Case C-220/18 PPU, Generalstaatsanwaltschaft (Conditions of detention in Hungary), judgment of 25 July 2018, EU: C:2018:589, para. 58. 4 See, e.g., Case C-62/90, Commission v Germany, judgment of 8 April 1992, EU:C:1992:169, para. 23; Case C-44/94, Fishermen’s Organisations and Others, judgment of 17 October 1995, EU: C:1995:325, para. 55, and Case C-292/97, Karlsson and Others, judgment of 13 April 2000, EU: C:2000:202, para. 45. 3

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‘ECtHR’).5 Article 52(1) of the Charter provides that any limitation on the exercise of the rights and freedoms recognised by the Charter must be ‘provided for by law’. It must also respect the essence of those rights and freedoms, and be compatible with the principle of proportionality. This means that ‘limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the [EU] or the need to protect the rights and freedoms of others’. Article 52(1) of the Charter lays down two types of legitimate objectives, namely objectives ‘of general interest recognised by the [EU]’, on the one hand, and objectives relating to ‘the need to protect the rights and freedoms of others’.6 The objectives ‘of general interest recognised by the [EU]’ cover both the objectives mentioned in Article 3 TEU and those protected by specific Treaty provisions.7 As the case law shows, the Court of Justice has recognised as being ‘of general interest’ a wide variety of objectives ranging from the establishment of a common organisation of the market,8 passing through the protection of health and safety,9 to the maintenance of international security.10 As regards the objectives relating to ‘the need to protect the rights and freedoms of others’,11 the words ‘the rights and freedoms of others’ include not only the fundamental rights of third parties12 but also all the subjective rights conferred on those parties by EU law, in particular by the Treaty provisions on free movement.13As regards conflicts between fundamental rights, or between fundamental rights and fundamental freedoms, the Charter does not introduce a

5 ECtHR, Fogarty v. United Kingdom, judgment of 21 November 2001, CE: ECHR:2001:1121JUD003711297, § 33. 6 Burgorgue-Larsen (2005), p. 670. 7 Article 36 TFEU and Articles 45 (3) and 52 TFEU. 8 Case 44/79, Hauer, judgment of 13 December 1979, EU:C:1979:290. 9 Case C-293/97, Standley and Others, judgment of 29 April 1999, EU:C:1999:215. 10 Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat International Foundation v Council and Commission, judgment of 3 September 2008, EU:C:2008:461. As regards the objectives ‘of general interest recognised by the Union’ in the context of the internal market, see Barnard (2009), p. 245. 11 For a detailed discussion on this subject, see Brems (2008). 12 As regards a conflict between the right to privacy and freedom of expression, see Case C-101/01, Lindqvist, judgment of 6 November 2003, EU:C:2003:596, para. 86, and Case C- 73/07, Satakunnan Markkinapörssi and Satamedia, judgment of 16 December 2008, paras 53 to 56. 13 See Case C-112/00, Schmidberger, cit. in note 3; Case C-36/02, Omega, judgment of 14 October 2004, EU:C:2004:614; Case C-438/05, International Transport Workers’ Federation and Finnish Seamen’s Union (also known as ‘Viking Line’), judgment of 11 December 2007, EU:C:2007:772, and Case C-341/05, Laval un Partneri, judgment of 18 December 2007, EU:C:2007:809.

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hierarchy.14 Since they all stand on an equal footing, conflicts between them must be solved by having recourse to balancing.15 Thus, Article 52(1) of the Charter states that any limitation on the exercise of fundamental rights must be compatible with the principle of proportionality, regardless of the type of objective pursued. It is therefore for the EU’s political institutions, and, where appropriate, the national authorities participating in the implementation of EU law, to show that the limitation in question is appropriate for attaining objectives ‘of general interest recognised by the [EU]’ and/or objectives relating to ‘the need to protect the rights and freedoms of others’. It is also for them to demonstrate that the measure at issue is necessary.

In accordance with the Court of Justice’s case law, ‘the principle of proportionality requires [. . .] that the measures adopted do not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question, since the disadvantages caused by the legislation must not be disproportionate to the aims pursued’.16 The principle of proportionality contains three requirements.17 First, the measure at issue which limits the exercise of one or more fundamental rights must be ‘appropriate’ to attain the legitimate objectives pursued.18 Second, that measure must not exceed what is ‘necessary’ to attain those objectives.19 Third and last, the measure in question must be proportionate ‘strictusensu’: ‘the disadvantages caused must not be disproportionate to the aims pursued’.20

14 It goes without saying that I refer here to the fundamental rights and freedoms recognised by the Charter which are not absolute. See De Schutter and Tulkens (2008), p. 179. 15 Case C-101/01, Lindqvist, cit. in note 12, para. 86; Case C- 73/07, Satakunnan Markkinapörssi and Satamedia, cit. in note 12, paras 53 to 56; Case C-438/05, Viking Line, cit. in note 13, para. 79, and Case C-341/05, Laval un Partneri, cit. in note 13, para. 94. 16 To that effect, see Joined Cases C-96/03 and C-97/03, Tempelman and van Schaijk, judgment of 10 March 2005, EU:C:2005:145, para. 47; Case C-83/14, CHEZ Razpredelenie Bulgaria, judgment of 16 July 2015, EU:C:2015:480, para. 123; Case C-601/15 PPU, N., judgment of 15 February 2016, EU:C:2016:84, para. 54 and Case C-473/16, F, judgment of 25 January 2018, EU:C:2018:36, para. 56. 17 Opinion of Advocate General Kokott delivered on delivered on 31 May 2016, Case C-157/15, G4S Secure Solutions, EU:C:2016:382, point 95, Opinion of Advocate General Bobek delivered on 16 March 2016, Case C-134/15, Lidl, EU:C:2016:169, points 36 et seq., and Opinion of Advocate General Saugmandsgaard Øe delivered on 19 July 2016, Joined Cases C-203/15 and C-698/15, Tele2 Sverige and Others, EU:C:2016:572, point 174. See also von Danwitz (2012), p. 367; Van Drooghenbroeck and Rizcallah (2018), p. 1101. 18 Case C-396/17, Leitner, judgment of 8 May 2019, EU:C:2019:375. 19 Case C-283/11, Sky Österreich, judgment of 22 January 2013, EU:C:2013:28, paras 54 to 57; Case C-443/13, Reindl, EU:C:2014:2370, para. 39, and Case C-83/14, CHEZ Razpredelenie Bulgaria, judgment of 16 July 2015, EU:C:2015:480, paras 120 to 122. 20 Case C-283/11, Sky Österreich, cit. in note 19, paras 58 to 67. See also Case C-83/14, CHEZ Razpredelenie Bulgaria, cit. in note 19, paras 123 to 127; Case C-601/15 PPU, N., cit. in note 16, paras 68 and 69, and Case C-524/15, Menci, judgment of 20 March 2018, EU:C:2018:197, paras 58 and 59.

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The Court of Justice does not always distinguish between the second and third requirements.21 However, as Van Drooghenbroeck and Rizcallah observe, the proportionality ‘strictu sensu’ becomes relevant when the Court is called upon to resolve a conflict between fundamental rights.22 As the Court held in Sky Österreich, ‘[w]here several rights and fundamental freedoms [. . .] are at issue, the assessment of the possible disproportionate nature of a provision of [EU] law must be carried out with a view to reconciling the requirements of the protection of those different rights and freedoms and a fair balance between them’.23

2.2

The Intensity of the Proportionality Review

When examining whether an EU measure is compatible with the principle of proportionality, the Court of Justice has consistently held that ‘the EU legislature must be allowed broad discretion in an area [. . .] which entails political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue’.24 However, the complex nature of the assessments which the EU legislature is required to make in such areas is not, in itself, sufficient to justify a loose application of the principle of proportionality.25 As the Court of Justice observed in Digital Rights, ‘[w]ith regard to judicial review of compliance with [the principle of proportionality], where interferences with fundamental rights are at issue, the extent of the EU legislature’s discretion may prove to be limited, depending on a number of factors, including, in particular, the area concerned, the nature of the right at issue guaranteed by the Charter, the nature and seriousness of the interference and the object pursued by the interference’.26 Thus, such a number of factors makes the intensity of proportionality review subject to ‘a variable geometry’.27 As regards, for example, the freedom to conduct a business, the Court of Justice has held that, ‘in the light of the wording of Article 16 of the Charter, which differs 21

Van Drooghenbroeck and Rizcallah (2018), p. 1105; von Danwitz (2012), p. 372. Van Drooghenbroeck and Rizcallah (2018), p. 1106. 23 Case C-283/11, Sky Österreich, cit. in note 19, para. 60. 24 See Case C-58/08, Vodafone and Others, judgment of 8 June 2010, EU:C:2010:321, paras 51 and 52, and Case C-508/13, Estonia v Parliament and Council, judgment of 18 June 2015, EU: C:2015:403, para. 29. 25 Lenaerts and Gutiérrez-Fons (2018) and Tridimas (2018). 26 Joined Cases C-293/12 and C-594/12, Digital Rights Ireland and Others, judgment of 8 April 2014, EU:C:2014:238, para. 47 (referring to ECtHR, S. and Marper v. United Kingdom [GC], judgment of 4 December 2008, CE:ECHR:2008:1204JUD003056204, § 102). 27 Van Drooghenbroeck and Rizcallah (2018), p. 1106. 22

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from the wording of the other fundamental freedoms laid down in Title II thereof, yet is similar to that of certain provisions of Title IV of the Charter, the freedom to conduct a business may be subject to a broad range of interventions on the part of public authorities which may limit the exercise of economic activity in the public interest’. ‘That circumstance’, the Court of Justice observed, ‘is reflected, inter alia, in the way in which Article 52(1) of the Charter requires the principle of proportionality to be implemented’.28 This point is illustrated by the ruling of the Court in Lidl.29 In that case, the referring court asked the Court of Justice whether Article 5(4) (b) of Commission Regulation No 543/2008 was valid in the light of Article 16 of the Charter. Article 5(4)(b) establishes the obligation to indicate the total price and the price per weight unit on the pre-packaging or on a label attached thereto, applicable to the retail sale of fresh pre-packaged poultrymeat.30 The applicant in the main proceedings, a discount supermarket, displayed such information by means of labels fixed on shelves. German authorities prohibited that supermarket from doing so on the ground that such display did not comply with the requirements set out in Article 5 (4)(b) of Commission Regulation No 543/2008. The applicant challenged that prohibition before the referring court, on the ground that it was contrary to its freedom to conduct a business. AG Bobek observed, first, that the EU legislature enjoys a broad discretion in the field of agriculture and, second, that the freedom to conduct a business is subject to a wide range of interventions on the part of public authorities, which may limit the exercise of economic activity in the public interest. Accordingly, he took the view that the proportionality review should be limited to ascertaining whether the provision of the Commission Regulation in question was ‘manifestly inappropriate’ for attaining the objective pursued.31 The Court of Justice agreed with the Advocate General. It held that Article 5(4) (b) of Commission Regulation No 543/2008 was valid, since the information displayed by the applicant was not as effective as that provided for by that provision. It reasoned that ‘solely the indication of the total price and the price per weight unit enables, in the case of products whose packaging units may not have the same weight, adequate consumer information to be guaranteed.’ Moreover, the obligation at issue was not ‘disproportionate’ given that ‘the indication of the total price and the price per weight unit, laid down by Article 5(4) of Regulation No 543/2008, [was]

28

Case C-283/11, Sky Österreich, cit. in note 19, paras 46 and 47. See also Case C-348/12 P, Council v Manufacturing Support allocation Kala Naft, judgment of 28 November 2013, EU: C:2013:776; Case C-477/14, Pillbox 38, judgment of 4 May 2016, EU:C:2016:324, paras 158 and 159; Case C-134/15, Lidl, judgment of 30 June 2016, EU:C:2016:498, para. 34, and Case C-201/ 15, AGET Iraklis, judgment of 21 December 2016, EU:C:2016:972, para. 86. 29 Case C-134/15, Lidl, cit. in note 28. 30 Commission Regulation (EC) No 543/2008 of 16 June 2008 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 as regards the marketing standards for poultry meat, [2008] OJ L 157/46. 31 See Opinion of Advocate General Bobek, Case C-134/15, Lidl, cit. in note 17, point 36.

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only one part of the information having to be included on the pre-packaging or on a label attached thereto under that provision’.32 By contrast, cases such as Digital Rights,33 Ryneš,34 N.,35 and K.36 show that the Court of Justice may also apply a rather strict version of the principle of proportionality. In Digital Rights, the Court of Justice ruled that ‘in view of the important role played by the protection of personal data in the light of the fundamental right to respect for private life and the extent and seriousness of the interference with that right caused by Directive 2006/24, the EU legislature’s discretion is reduced, with the result that review of that discretion should be strict’.37 In the same way, the Court has also applied a strict version of the principle of proportionality in relation to limitations on the exercise of the right to liberty enshrined in Article 6 of the Charter, such as the detention of a person requesting international protection on national security or public order grounds.38 Similarly, the General Court held that, when the Parliament limits the freedom of expression of MEPs, such interference ‘dictates the General Court to carry out the most rigorous review’.39 Furthermore, in Ministerio Fiscal, AG Saugmandsgaard Øe noted, in the light of the judgments of the Court of Justice in Digital Rights and Tele2 Sverige, that compliance with the principle of proportionality requires ‘[the] establishment of a link between the seriousness of the interference found and the seriousness of the reason that could justify the interference’.40 For its part, the Court of Justice concurred with the Advocate General’s reading of the case law.41 Only the fight against serious crime may justify a serious interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter.42 Conversely, where an interference is not serious, it may be justified by the objective of preventing, investigating, detecting and prosecuting ‘criminal offences’ in general.43

32

Case C-134/15, Lidl, cit. in note 28, para. 39. Joined Cases C-293/12 and C-594/12, Digital Rights Ireland and Others, cit. in note 26. 34 Case C-212/13, Ryneš, judgment of 11 December 2014, EU:C:2014:2428, para. 28. 35 Case C-601/15 PPU, N., cit. in note 16, para. 56. 36 Case C-18/16, K., judgment of 14 September 2017, EU:C:2017:680. 37 Joined Cases C-293/12 and C-594/12, Digital Rights Ireland and Others, cit. in note 26, para. 48. See also Case C-473/12, IPI, judgment of 7 November 2013, EU:C:2013:715, para. 39 and the caselaw cited. 38 Case C-601/15 PPU, N., cit. in note 16, para. 56, and Case C-18/16, K., cit. in note 36, para. 40. 39 Case T-352/17, Korwin-Mikke v Parliament, judgment of 31 May 2018, EU:T:2018:319, para. 46 (referring to ECtHR, Castells v. Spain, judgment of 23 April 1992, CE: ECHR:1992:0423JUD001179885, § 42). 40 Opinion of Advocate General Saugmandsgaard Øe delivered on 3 May 2018, Case C-207/16, Ministerio Fiscal, EU:C:2018:300, point 82. 41 Case C-207/16, Ministerio Fiscal, judgment of 2 October 2018, EU:C:2018:788, para. 55. 42 Para. 56. 43 Para. 57. 33

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As regards the case in the main proceedings, the question was whether access by the police to data for the purposes of identifying the owners of SIM cards activated by a stolen mobile telephone (such as their surnames, forenames and, if need be, addresses) constituted a serious interference with their rights to respect for private life and to protection of personal data. The Court of Justice considered that such interference was not serious, on the ground that such data enabled the police to identify the owners of those SIM cards, without the police having access to the communications data made with the stolen mobile telephone or to its location. In other words, there was no serious interference because ‘[the data in question] [did] not allow precise conclusions to be drawn concerning the private lives of the persons whose data is concerned’.44 Accordingly, EU law must be interpreted as not precluding the referring court from authorising police access to those data in order to combat criminal offences in general.45 However, a combined reading of the judgments in ZZ and Kadi II, and of the judgments in Digital Rights Ireland and Others and Tele2 Sverige, suggests that the intensity of the proportionality review does not depend on whether national law or EU law is at the origin of the limitation on the exercise of the fundamental right in question.46 In the EU legal order, there are no ‘double standards’ when ensuring a fair balance between fundamental rights and objectives of public interest that comply with the Charter. That said, a different question is whether the EU legislator has already struck such a fair balance (needless to say, in compliance with the Charter), so that the Member States are prevented from finding a different balance (needless to say, also in compliance with the Charter). That question is examined below.

3 Striking the Balance Between European Unity and National Diversity In accordance with Article 52(4) of the Charter, ‘[i]n so far as [the latter] recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions’. By referring to the constitutional traditions common to the Member States, the Charter does not seek to define the fundamental rights recognised thereby in accordance with the ‘lowest common denominator’ of the Member States’

44

Paras 59 and 60. Para. 62. 46 See Case C-300/11, ZZ, judgment of 4 June 2013, EU:C:2013:363, and Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, Commission and Others v Kadi (‘Kadi II’), judgment of 18 July 2013, EU:C:2013:518. See also Joined Cases C-293/12 and C-594/12, Digital Rights Ireland and Others, cit. in note 26, and Joined Cases C-203/15 and C-698/15, Tele2 Sverige and Watson and Others, judgment of 21 December 2016, EU:C:2016:970. 45

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constitutions, but rather to interpret the fundamental rights enshrined therein in a way that offers a high level of protection that is adapted to the nature of EU law and that is in harmony with those national constitutional traditions. Moreover, Article 53 of the Charter states that ‘[n]othing 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 the Member States’ constitutions’. The question is then whether Article 53 of the Charter must be interpreted to the effect that the primacy of EU law is made conditional upon that law offering a level of fundamental rights protection that is at least equivalent to that guaranteed by the various legal orders of the Member States.47 One should not read Article 53 of the Charter as a rule of conflict, but as a rule which seeks to uphold the democratic principles on which the EU is founded.48 Accordingly, the question whether a Member State may, when implementing EU law, apply higher standards of fundamental rights protection than those provided for by EU law is a policy choice to be made by the EU legislator. The role of the Court of Justice is limited to guaranteeing that this policy choice complies with primary EU law, and notably with the Charter. The EU legislator may impose a uniform level of fundamental rights protection, provided that it does not disregard the level of protection guaranteed by the Charter. Needless to say, the EU legislator is free to impose a uniform level of protection that is higher than that guaranteed by the Charter. Any such uniform level of protection rules out diversity as it precludes the application of higher levels of protection provided for by national law. By contrast, where the EU legislator has not provided for a uniform level of protection, there is room for national diversity. However, that diversity is not absolute as it must, first, comply with the level of protection guaranteed by the Charter and, second, respect ‘the primacy, unity and effectiveness of EU law’. It follows that, subject to compliance with the Charter and other provisions of primary EU law, the choice between European unity and national diversity is a political question that is made at EU level on the basis of the principle of representative democracy. This reading of Article 53 of the Charter may be illustrated by highlighting the contrast between, on the one hand, the ruling of the Court of Justice in Melloni and, on the other hand, that in M.A.S. and M.B. Whilst in the first case, it was held that EU law did indeed prescribe a uniform level of fundamental rights protection, in the circumstances of the latter case the opposite conclusion was reached, allowing room for national diversity.49

47

Bering Liisberg (2001), p. 1171. Lenaerts (2015), p. 135. 49 Lenaerts and Gutiérrez-Fons (2021). 48

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The Charter and Uniformity

In Melloni, the EU legislator amended in 2009 the European Arrest Warrant Framework Decision with a view to protecting the procedural rights of persons subject to criminal proceedings whilst improving mutual recognition of judicial decisions between Member States. To that effect, the EU legislator introduced a new provision that lists the circumstances in which the executing judicial authority may not refuse execution of a European Arrest Warrant issued against a person convicted in absentia. The Court of Justice noted that the new provision complied with Articles 47 and 48 of the Charter—two provisions that are in keeping with the scope that has been recognised to the rights guaranteed by Article 6(1) and (3) ECHR50—given that it only applied to situations where the person convicted in absentia was deemed to have voluntarily and unambiguously waived his or her right to be present at the trial in the issuing Member State. Since the EU legislator had itself struck, in compliance with the Charter, a balance between the protection of those fundamental rights and the requirements of mutual recognition of judicial decisions, the application of a higher national level of protection was ruled out, as it would have impeded the mutual recognition of such decisions. It is worth noting that the rationale put forward by the Court of Justice in Melloni was not a one-off. It was recently confirmed in Związek Gmin Zagłębia Miedziowego (Local Government Association of Polkowice).51 That case concerned the scope of the right to deduct input VAT incurred on supplies used indissociably for the purpose of both economic activities (liable to VAT) and non-economic activities (exempted from that tax). Since Polish legislation provided no method for calculating the deductible share of input VAT incurred on those supplies, the principle of fiscal legality (nullum tributum sine lege), as enshrined in Article 217 of the Polish Constitution, precluded the tax administration from applying any such method of calculation. This meant that a taxable person had the right to deduct the entire input VAT. After finding that the VAT Directive precluded such deduction, the Court of Justice, drawing on the constitutional traditions common to the Member States, recognised the principle of fiscal legality as a general principle of EU law,52 requiring that the essential elements of a tax be provided for by law. This, however, is not the case for all technical aspects of such a tax, provided that the rules provided for by law enable the taxpayer to foresee and to calculate the amount of tax due and to determine the moment when it becomes payable.53 That being so, the question arose whether it was for national law or for EU law to identify the essential elements of VAT. In the key passage of that judgment, the Court of Justice held that as regards an essential element of a tax that has been harmonised by the EU legislator, such as 50

Case C-399/11, Melloni, judgment of 26 February 2013, EU:C:2013:107, para. 50. Case C-566/17, Związek Gmin Zagłębia Miedziowego, judgment of 8 May 2019, EU: C:2019:390. 52 Para. 36. 53 Para. 39. 51

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VAT, the question of which elements of that tax are to be provided for by law must be examined in the light of the principle of fiscal legality as a general principle of EU law, and not on the basis of an interpretation of that principle in national law.54 For the Court, the right to deduct input VAT is an essential element of that tax that has been fully harmonised by the VAT Directive, leaving the Member States no discretion as regards its implementation.55 By contrast, the methods of calculation at issue in the main proceedings were not essential elements of VAT but technical aspects of that tax that were not required to be ‘provided for by law’. Those aspects simply had to be regulated in such a way as to allow for a pro rata deduction of input VAT only. The judgment of the Court of Justice in Związek Gmin Zagłębia Miedziowego (Local Government Association of Polkowice) constitutes an important development for two reasons. First, it shows convergence between the Charter and general principles of EU law. As regards both, the Court follows the same rationale when determining their scope of application and the existence or absence of a uniform level of protection. Second, that case also demonstrates that the presence of full EU harmonisation and the existence of a uniform level of protection often go hand-inhand.

3.2

The Charter and Diversity

Some commentators have compared the judgment of the Court of Justice in M.A.S. and M.B. (also known as Taricco II) with that in Melloni, asking themselves whether the latter judgment has in effect been overruled.56 However, that is clearly not what has happened. The reason is very simple. As AG Bobek noted in his Opinion in Dzivev,57 whilst in Melloni the EU legislator had prescribed a uniform level of protection, that was not the case in M.A.S. and M.B.58 In M.A.S. and M.B., another VAT case, the Court of Justice recalled that the Member States must ensure, in cases of serious VAT fraud, that effective and deterrent criminal penalties are adopted. Nevertheless, in the absence of EU harmonisation, it is for the Member States to adopt the limitation rules applicable to criminal proceedings relating to such cases. This means, in essence, that while a Member State must impose effective and deterrent criminal penalties in cases of serious VAT fraud, it is free to consider that limitation rules form part of substantive criminal law. Where that is the case, the Court of Justice pointed out that such a

54

Para. 41. Para. 42. 56 Vigano (2018). 57 Opinion of Advocate General Bobek delivered on 25 July 2018, Case C-310/16, Dzivev, EU: C:2018:623, points 81 et seq. 58 Rauchegger (2018) who observes that ‘[t]he lack of harmonization by the EU legislature distinguishes M.A.S. from Melloni’. 55

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Member State must comply with the principle that criminal offences and penalties must be defined by law, a fundamental right enshrined in Article 49 of the Charter which corresponds to Article 7(1) ECHR.59 Accordingly, even where the limitation rules at issue prevent the imposition of effective and deterrent criminal penalties in a significant number of cases of serious VAT fraud, the national court is under no obligation to disapply those rules in so far as that obligation is incompatible with Article 49 of the Charter. That does not mean, however, that those limitation rules are left untouched to the detriment of the financial interests of the EU. In the light of the primacy, unity and effectiveness of EU law, it is, first and foremost, for the national legislator to amend those limitation rules so as to avoid impunity in a significant number of cases of serious VAT fraud. The judgment of the Court of Justice in M.A.S. and M.B. is thus wholly consistent with those in cases such as Åkerberg Fransson,60 F.,61 Kolev and Others,62 and Dzivev,63 where the EU legislator did not lay down a uniform level of fundamental rights protection.

4 Concluding Remarks In the field of fundamental rights protection, the extent of the margin of appreciation depends on a number of factors. As the Court of Justice held in Digital Rights, those factors include, in particular, the area concerned, the nature of the right at issue guaranteed by the Charter, the nature and seriousness of the interference and the object pursued by the interference. This shows that the intensity of proportionality review is subject to ‘a variable geometry’. However, the origin of the limitation on the exercise of a fundamental right is not one of those factors. This is because the Court of Justice does not apply double standards. As the judgments in ZZ, Kadi II, Digital Rights and Tele2 Sverige demonstrate, the fact that a limitation on the exercise of a fundamental right is attributable to the EU or to a Member State has no bearing on determining the margin of appreciation that is allowed by the Charter. Moreover, the Charter must seek to accommodate the two perspectives from which fundamental rights may be examined, which often seem to pull in different directions. On the one hand, fundamental rights are a symbol of universality that unites individuals in their human condition. On the other hand, the way in which fundamental rights are weighed against objectives of general interest may differ as between the EU and some of its Member States and as between one Member State

59

Case C-42/17, M.A.S. and M.B., judgment of 5 December 2017, EU:C:2017:936, para. 55. Case C-617/10, Åkerberg Fransson, judgment of 26 February 2013, EU:C:2013:105, para. 29. 61 Case C-168/13 PPU, F., judgment of 30 May 2013, EU:C:2013:358, para. 55. 62 Case C-612/15, Kolev and Others, judgment of 5 June 2018, EU:C:2018:392. 63 Case C-310/16, Dzivev and Others, judgment of 17 January 2019, EU:C:2019:30. 60

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and another. Thus, the way in which fundamental rights are balanced may reflect national, regional and local identities. Such accommodation may take place in so far as neither European unity nor national diversity are absolute as both must comply with the Charter. Save to the extent that the Court of Justice needs to intervene in order to enforce that compliance, it is not for that court to choose the precise balance between European unity and national diversity. That is rather a matter for the EU legislature in accordance with the principle of representative democracy.

References Barnard C (2009) Deliberations, justifications and the four freedoms. In: Barnard C, Odudu O (eds) The outer limits of European Union law. Hart Publishing, Oxford, pp 273–305 Bering Liisberg J (2001) Does the EU Charter of Fundamental Rights threaten the supremacy of Community law? Common Mark Law Rev 38(5):1171 Brems E (ed) (2008) Conflicts between fundamental rights. Intersentia, Oxford Burgorgue-Larsen L (2005) L’article II-112. In: Burgorgue-Larsen L, Levade A, Picod F (eds) Traité établissant une Constitution pour l’Europe. L’architecture constitutionnelle, Partie II – La Charte des droits fondamentaux de l’Union, Commentaire article par article. Bruylant, Bruxelles, p 658 De Schutter O, Tulkens F (2008) Rights in conflict: the European Court of Human Rights as a pragmatic institution. In: Brems E (ed) Conflicts between fundamental rights. Intersentia, Oxford, pp 169–216 Lenaerts K (2015) EU values and constitutional pluralism: the EU system of fundamental rights protection. Polish Yearb Int Law 35:135 Lenaerts K, Gutiérrez-Fons JA (2018) A constitutional perspective. In: Schütze R, Tridimas T (eds) Oxford principles of European law. Volume I: the European Union legal order. Oxford University Press, Oxford, pp 103–141 Lenaerts K, Gutiérrez-Fons JA (2020) Les méthodes d’interprétation de la Cour de justice de l’Union européenne. Bruylant, Bruxelles Lenaerts K, Gutiérrez-Fons JA (2021) The Charter in the EU legal space. In: Peers S, Hervey T, Kenner J, Ward A (eds) The EU Charter of Fundamental Rights. A commentary, 2nd edn. Hart Publishing, Oxford Rauchegger C (2018) National constitutional rights and the primacy of EU law: M.A.S. Common Mark Law Rev 55(5):1521 Tridimas T (2018) The principle of proportionality. In: Schütze R, Tridimas T (eds) Oxford principles of European law. Volume I: the European Union legal order. Oxford University Press, Oxford, pp 243–264 Van Drooghenbroeck S, Rizcallah C (2018) Article 52(1) of the Charter. In: Picod F (ed) Charte des droits fondamentaux de l'Union européenne: Commentaire article par article. Bruylant, Bruxelles, pp 1083–1112 Vigano F (2018) Melloni overruled? Considerations on the ‘Taricco II’ judgment of the Court of Justice. New J Eur Crim Law 9:18 von Danwitz T (2012) Thoughts on proceedings and coherence in the jurisprudence of the Court of Justice. In: Cardonnel P, Rosas A, Wahl N (eds) Constitutionalisation of the EU judicial system: essays in Honour of Pernilla Lindh. Hart Publishing, Oxford, pp 367–382

International Deference, The Vague National Margin of Appreciation and Procedural Review Javier García-Roca

1 The National Margin of Appreciation Has Scholarly Origins; How Is It Applied by the Commission? How Has It Been Embraced by the Court?; Its Insertion into the Preamble The so-called national margin of appreciation doctrine stems both from the limited scope of an international protection system and from subsidiarity. The European Court of Human Rights (ECtHR) uses this instrument for self-restraint, as well as to force itself to be deferent towards national decisions regarding certain rights given political, religious or moral circumstances that might be sensitive for public opinion or social identity.1 Many studies on the European Convention on Human Rights

This study has been prepared within the framework of the Research Project entitled “Amenazas y debilidades en los sistemas europeo e interamericano de derechos humanos particularismos nacionales y protección de los derechos sociales (under reference no. DER2017-82304-C3-1P)” or, in English, “Threats and Weaknesses in the European and Inter-American Human Rights Systems; national particularism and protection of social rights.” Except for the new approach on procedural review and reasonable decision-making, I have departed from my book García-Roca (2010) further elaborating on my insights a decade after, seeking to clarify this vague notion. See also García-Roca (2019). 1

It is worth highlighting three classic works: Mahoney (1998), p. 1; Human Rights Law Journal (1998); Yourow (1996), p. XXIII, who addresses the issue of margin of appreciation as follows: “finding the tenuous passage between the undue interference with the sovereignty and autonomy of national authorities, in particular supreme and constitutional courts on the one hand, and the effective protection of the rights guaranteed under the Convention. . .”. See also, Arai-Takahashi (2002). There are other remarkable works published after my monograph. See, among others: De J. García-Roca (*) School of Law, Universidad Complutense de Madrid, Madrid, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Izquierdo-Sans et al. (eds.), Fundamental Rights Challenges, https://doi.org/10.1007/978-3-030-72798-7_13

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(ECHR) system have focused on this doctrine. However, there is still no well-settled scholarly and case law approach. The origins of the “national margin of appreciation” remain unclear. This notion cannot be found in the Convention or in the travaux préparatoires, and it is also fairly uncommon within international law. It will be inserted into the text of the Convention, at the end of the Preamble, under Protocol 15, which is not yet in force. Nevertheless, this doctrine was soon used by the Commission, and subsequently embraced by the ECtHR. In fact, the Court has been using this argumentative instrument often since 1978. This doctrine was neither common nor friendly for English-speaking scholars and practitioners.2 Apparently, the expression, i.e., the wording, comes from the judicial review performed by the French Conseil d’État (Council of State), which uses the expression marge d’appréciation.3 The margin of appreciation can thus be construed on the basis of (i) the French notion of “administrative discretion,”4 and (ii) German constructs such as “scope for free decision-making” or “discretionary assessment,”5 which somewhat resemble it. Nevertheless, the national margin of appreciation is a concept of its own within the Convention system, and it has its own distinct features. It has been advanced by the ECtHR by means of a topical (not systematic) interpretation. Therefore, it has undefined boundaries and it is sometimes implemented on a case-by-case basis. In any event, it allows for the Court to grant national authorities some room for maneuver in the fulfillment of their obligations. This notion was first used by the Commission in 1958, within the context of the application lodged by the United Kingdom against Greece regarding the implementation of emergency measures in Cyprus, as well as in other proceedings under Article 15 ECHR.6 This provision allows the governments of States Parties to set aside, in a temporary, limited and supervised manner, their obligation to secure certain rights and freedoms under the Convention in time of war or other public emergency to the extent strictly required.7 At first, in contrast with the stance taken by the Commission in its 1959 report, the ECtHR was reluctant to embrace this doctrine in the case of 1 July 1961, Lawless v. Ireland. Afterwards, when ruling on an alleged discrimination (Art. 14 ECHR), as

Shutter and Tulkens (2008); Spano (2014); Popelier and Van de Heyning (2017). These authors include the “procedural review of legislation” criterion. 2 Greer (2000), p. 5. This is the majority stance. A critical view can be found in Tulken and Donnay (2006), p. 4, who claim that nobody wants to take credit for the birth of the national margin of appreciation doctrine. 3 See Macdonald (1987), section entitled “Origin and history of the margin of appreciation.” See a comprehensive analysis in Yourow (1996), p. 15 et seq. 4 Arai-Takahashi (2002), p. 3. 5 Vasel (2009), p. 3; it elaborates on this notion of German procedural law although—according to Vasel—it does not comprise all aspects of the margin of appreciation. 6 Arai-Takahashi (2002), p. 188; Yourow (1996). 7 Fernández (2014). See a commentary on proportionality in time of emergency and a case-by-case review in Cannizzaro (2000).

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well as on the grounds for differentiation, the notion of subsidiarity was underlined as inherent to this human rights protection “international machinery,” and the Court then emphasized that it cannot “assume the role of the competent national authorities” (Case relating to certain Aspects of the Laws on the Use of Languages in Education in Belgium, of 23 July 1968, paragraph 10). However, after that, the Court did not mention this “power of appreciation” until a decade later, in De Wilde, Ooms and Versyp, of 18 June 1971, paragraph 93.8 The ECtHR failed to expressly mention the “margin of appreciation” up until the Ireland v. the United Kingdom judgment handed down on 18 January 1978, paragraph 207. The Court declared that national authorities are better suited to actually assess a public emergency threatening the life of the nation.9 This case can be considered the origin of the national margin of appreciation in the Court’s rulings. The margin of appreciation doctrine and its related instruments were consolidated within the Court’s case law slowly but surely over almost two decades. From then on, the application of this doctrine became increasingly more common. However, the Court has provided a narrower or more restrictive interpretation than that advocated by the Commission at the time, particularly when it comes to widening the margin of appreciation to certain rights.10 The roots of the margin of appreciation are tied to the Contracting Parties’ discretion when assessing the pressing needs of an emergency. These exceptional circumstances allowed to lessen the intensity of the Commission’s supervisory role whilst giving greater deference to the use of suspension powers by national authorities.11 Unsurprisingly, these dramatic origins gave rise to an unsophisticated legal instrument. Perhaps we should look for a more well-defined and precise alternative, but that is no easy task, since the margin of appreciation doctrine and the use thereof is not easily rationalized and it is largely case-based and overly dependent on context.

8

Macdonald (1987), p. 189. See a detailed analysis by Tulken and Donnay (2006), p. 4. 10 Yourow (1996), p. 186. 11 Gross and Ní Aoláin (2001), p. 626. The margin cannot be understood as some form of immunity in time of emergency. That is why these scholars advocate a more stringent construction. 9

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2 Fragile Case Law Construction and Weak Scholarly Contributions. The National Margin of Appreciation Is Rooted in the Principle of Subsidiarity The judicial construction of the national margin of appreciation performed by the ECtHR is fairly weak.12 In other words, it is ill-founded or, better said, inconsistent, and that is precisely why it leaves room for extremely diverse (if not contradictory) interpretations. There is no doubt that the national margin of appreciation is tied to the principle of subsidiarity, which is inherent to international rights protection. In 1971, the principle of subsidiarity was invoked in De Wilde, Ooms and Versyp, a case of 18 June.13 However, only when the Court ruled on the Case of Handyside v. the United Kingdom actually provided comprehensive foundations for this principle; it did so regarding certain measures taken against the publication of a book, intended for school children, entitled “The Little Red Schoolbook.” The Court pointed out that “the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights” (Cases Handyside, 7 December 1976, and Sunday Times, 26 April 1979, both against the United Kingdom). The legislature should have a wide scope to implement its own social and economic policies by means of lawmaking, and a supranational court should abide thereby, “unless that judgment is manifestly without reasonable foundation.” It is hard to find a more precise definition within the Court’s case law. The bottom line is that States Parties enjoy a certain margin of discretion regarding the application and enforcement of the relevant obligations, as well as regarding the balancing of complex competing interests. Nonetheless, if States exceed or overstep this margin of discretion,14 the European Court’s supervision becomes necessary to fulfill the principle of proportionality.15 In sum, the margin of appreciation entails certain scope of discretion for Governments as well as a certain degree of European deference16 to an internal decision reasonably made within the relevant Contracting State in a hard case. 12 See Macdonald (1987), p. 192 et seq. He claims that neither the Court nor the Commission have tried to provide a definition of the margin of appreciation and yet they take a stance in the case. 13 Vasel (2009), p. 16. 14 Klatt and Meister (2012), chapter entitled “Discretion and deference.” According to them—who also rely on the insights of Robert Alexy—there are various types of discretion. On the one hand, there is structural discretion, where the Constitution neither imposes nor prevents any given conduct. On the other, there is epistemic discretion, under which such obligations or impediments are uncertain or unacknowledged. They should both play a role in judicial deference construed as an element of the principle of proportionality in order not to overstep the legislature’s scope through court rulings whilst carefully reviewing its considerations and weighings of interests: the flourishing of judicialization in politics. In this connection, see Gruszcynski and Werner (2014). 15 As stated in the Case of Fedorenko v. Ukraine of 1 June 2006, paragraph 356. 16 Legg (2012) also applies the notion of judicial deference. In his view, the threefold foundation of the margin of appreciation stems from the following aspects: (i) democratic legitimacy lies in States;

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Certain scholars have put forward more accurate conceptual definitions, offering significant nuances. Yourow provided a classical definition of the national margin of appreciation: “[T]he freedom to act; maneuvering, breathing or ‘elbow’ room; or the latitude of deference or error which the Strasbourg organs will allow to national legislative, executive, administrative and judicial bodies before it is prepared to declare a national derogation from the Convention, or restriction or limitation upon a right secured by the Convention, to constitute a violation of one of the Convention’s substantive guarantees.”17 Supplementing this definition, Callewaert explained that the margin embodies a “mitigated form of immunity, allowing for a less intense judicial supervision or review than that performed by the Court in the exercise of its full jurisdiction.”18 Wildhaber has further qualified this explanation arguing that the point is not to grant the utmost discretion, but rather to “simply acknowledge that the Convention does not provide homogeneous solutions” and that, to a certain extent and within specific spheres, Contracting States are entitled (i) to enact different regulatory frameworks as well as (ii) to impose their own restrictions.19 It is virtually impossible to bring all these nuances and specificities together in a single magic formula, i.e., in a general decision-making standard. In fact, the national margin of appreciation can only be further defined or determined with regard to specific facts or events, since it is an expression of case-by-case justice within an international protection system. Ultimately, the ECtHR may decide to restrain itself if the relevant domestic measures have sufficient apparent merit, instead of taking the place of respondent States applying its own legal viewpoints. In other words, the Court would be reasonably deferent, as required by such caution and subsidiarity inherent to international protection. The underlying foundation for this deferent understanding of the national margin of appreciation is as follows: domestic courts are often in a better position to rule on a case than the ECtHR, since they are closer to the factual background. This is nothing more than a classic expression of subsidiarity. Mahoney advocated for an instrument that clearly divided (i) those matters to be settled by each national community under the principle of democracy, and (ii) those with sufficient substantive content so as to require a uniform European response.20

(ii) it is necessary to abide by standard practice, and (iii) the degree of experience, expertise and legal quality of decision-making. He examines these foundations chapter by chapter, taking an approach with which I do not always agree. He discusses the issue within the ECtHR, the InterAmerican Court and the UN Human Rights Committee. 17 Yourow (1996), p. 13. 18 Callewaert (2000), p. 149 (own translation). 19 Cited by Tulken and Donnay (2006), p. 6. It contains the transcript of a lecture (own translation). 20 See the work of Mahoney (1998). In the same journal, see Schoekkenbroek (1998). He also believes that the margin of appreciation provides for an allocation or distribution of powers between States Parties and ECHR bodies. This idea had been previously put out there by Mahoney (1990), p. 81, who aptly recalls that this separation is based on the principle of democracy: “decisionmaking by freely elected representatives of the people”.

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The margin of appreciation can also be construed as a principle of separation of jurisdictions into two spheres of responsibility. However, this remains a blurred demarcation. It amounts to a difference in degree rather in kind: what is material and what merely ancillary in a European legal framework of human rights? There lies the complexity of coming up with an actual legal assessment and the risk of laying down a political exception to set aside judicial review. The margin of appreciation doctrine gives broad discretion to the ECtHR. There is a boundary between the national and European jurisdictions, but it is a thin line, often fuzzy and disguised in different forms. Unsurprisingly, most scholars agree that the margin of appreciation is an instrument “of variable geometry” within the ECtHR jurisdiction.21 The margin of appreciation doctrine is so loose that it can be applied depending on the circumstances of the case, i.e., based on the advantages or disadvantages of having the Court adjudicate a case. It is a variable standard of judicial review.22 It amounts to an elusive instrument intended to either lessen the intensity of Convention-based review, or to bypass it altogether. Some scholars contend that the invocation of the margin of appreciation by the Court is mostly hollow rhetoric. Indeed, the ECtHR often refers to the margin of appreciation doctrine but then steadily raises the Convention standards on the rights at hand.23 I also get this feeling after examining a significant number of ECtHR rulings. Where the Court first and foremost relies on the margin of appreciation, it is usually mere semantics to conceal the actual standard or line of reasoning underpinning the final decision. There is also scholarly literature highlighting the differences and similarities between the margin of appreciation doctrine and the weighing or balancing of interests.24

3 The Various Scholarly Stances on the Need and Justification of This Doctrine. The European Area for Decision-Making The theoretical analyses disagree on whether this case law instrument is necessary. See below three scholarly stances:25

21

Galetta (1999), p. 750. Arai-Takahashi (2002), p. 189. 23 See Gerards (2018). 24 See Cohen-Eliya and Porat (2013). 25 Arai-Takahashi (2002), pp. 232–234, distinctly refers to up to four stances: a transitional doctrine, a rhetorical device, an undesirable doctrine, a desirable and necessary doctrine. 22

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(a) Some consider that “the concept of the margin of appreciation has become as slippery and elusive as an eel.”26 In other words, they define this doctrine as an “opportunistic approach” where the ECtHR abdicates its responsibility and refuses to rule on the merits or, better said, to make a substantive decision (among many others: Schokkenbroek, Lord Lester of Herne, Gross & Ní Aoláin).27 If this were the case, it could jeopardize the obligation that the rights enshrined in the Convention be subject to an effective legal protection, since such effective protection requires a full assessment of the disputed measures. (b) Conversely, some argue that it is an apt expression of judicial caution and selfrestraint (Mahoney, Sir Humprey Waldock, Greer); a realistic doctrine that respects the territorial and cultural pluralism of European countries.28 Some even assert that it should be a principle of universal application.29 Some scholars embrace a more radical version of this stance and claim that the ECtHR should put an end to this naïve universalism in human rights and be satisfied with the national arrangements in place. This is an excessive view, since it seeks to nip in the bud any attempt at a reconciling approach, dismissing it as judicial activism. This stance would prevent European integration, as well as the effectiveness of a “collective enforcement” system initially intended as universal. (c) We can definitely meet halfway, embracing more nuanced stances. The issue is not as simple and two-sided as it may be inferred from the fictitious distinction between (i) avoidance or abdication of responsibility and (ii) containment. Thus, outright rejection is not the answer for the margin of appreciation doctrine altogether; we should only reject those applications thereof allowing to hand down ill-founded decisions.30 I embrace this approach. Some degree of national appreciation is needed in certain situations for two reasons. First, because it is a reflection of the strong territorial pluralism of 26 The expression was coined by Herne Hill (1995), p. 227. This wording is also used by Gross and Ní Aoláin (2001), p. 627. Schoekkenbroek (1998), p. 30, argues that it is an “opportunistic approach.” 27 Judge De Meyer’s Dissenting Opinion in Z. v. Finland, dated 25 February 1997, was in favor of banishing the margin of appreciation doctrine from the Court’s line of reasoning. He claimed that “there is no room for a margin of appreciation which would enable the States to decide what is acceptable and what is not.” According to him, it is the Court who should clearly decide, and the Court’s standpoint should be imposed on States Parties. 28 Mahoney (1990). See also the approach of a former judge in the ECtHR and in the International Court of Justice (ICJ), Waldock (1980). In his view, this doctrine is the most important protection for sovereign powers and for the responsibility of governments in a democratic context. See also, among others, Greer (2000), p. 5. He thinks that national margin of appreciation is necessary, but he recalls that the doctrine requires more clarity and consistency regarding its application. 29 Another margin appreciation advocate is Mcgoldric (2016) who seeks to “universalize” this doctrine. He is surprised that the Human Rights Committee under the International Covenant on Civil and Political Rights does not apply the margin of appreciation. He mentions European Committee of Social Rights decisions where this doctrine is applied. 30 Schoekkenbroek (1998), p. 30.

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European nations; it mirrors the tremendous diversity within the Council of Europe, involving 47 member States and more than 800 million people, who can be a party to a case before the ECtHR living somewhere in between Lisbon and Vladivostok. A court exercising its jurisdiction within such a large and diverse scope must be cautious and self-restrained regarding the intensity of some of its judgments, particularly containing potential overreach. Secondly, a supranational protection system such as the machinery of complaint to the Court is always subsidiary to national rights protection systems. Effective protection of human rights should first be granted by each national judicial system. Territorial pluralism and subsidiarity provide the justification for the national margin of appreciation doctrine. Nevertheless, note that the ECHR Preamble urges member States to achieve “greater unity,” ensuring “collective enforcement” of human rights “as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law.” This is thus a treaty-based sphere (or Convention-based, rather) for human rights enforcement.31 It becomes an even more evident reality when projected outwards vis-à-vis third countries that have not ratified the Convention; for instance, regarding the expulsion of foreign nationals and extradited aliens in case of return to the country of origin. Ultimately, most scholars concede that, given its role, the margin of appreciation is, nowadays, inescapable.32 Creating such a large and pluralistic European sphere would be impossible in the absence of a reasonable margin of discretion integrating the highly diverse national political communities. The national margin of appreciation is the other side of an existing European sphere for decision-making. The aim is to achieve European unity departing from national diversity. This is aptly illustrated by the following example: in the absence of more precise rules on secularism and religious freedom in the ECHR, the Court must rely on national authority decisions regarding religion-related policies. Notwithstanding the foregoing, this margin should not be construed as some sort of jurisdictional immunity enabling member States to do as they please with human rights. This does not give the Contracting Parties leeway to violate human rights

31 Jürgen Habermas argues that Europe is a political project essentially inter-governmental in nature. In his view, there is no such thing as a European “people” nor cultural homogeneity, as contended by Grimm (2009), p. 81 et seq. However, he believes that it may be replaced by “a European public sphere” that renders visible the European decision-making processes. In this vein, Häberle (1998) includes the ECtHR case law as an excerpt of a Constitution and a Constitutional State (p. 114), and argues that there is a “European public opinion” with respect to fundamental right violations (p. 125, p. 129). On this sphere in the European Union, see the debate between Grimm (1997) and in the same book, Habermas (1997); and Weiler (1997). By the same author, see Weiler (1999). 32 See Alkema (2000), p. 57. A court exercising international judicial review within an intergovernmental system should keep its distance, and not only for geographical reasons. The Convention cannot be strictly applied. Also, judicial policy reasons related to the ECtHR’s excessive caseload should be weighed. The national margin of appreciation doctrine is essential. Along these lines, see Callewaert (2000); the margin of appreciation should remain in place based on realism, in spite of its lack of “popularity.” In order for it to be preserved, it would suffice to “structure and discipline its application.”

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enshrined in the Convention or to be arbitrary or unreasonable. It entails discretion to a certain extent, but that does not mean leaving human rights to the full discretion of States.33 Some scholars have aptly differentiated between two different uses of the margin of appreciation by the ECtHR that have given rise to two constructs based on usage: structural and substantive.34 The first appears where the Court refers to the margin of appreciation doctrine as a mere label to not hear the case, providing no further justification nor a substantive theory on the rights at stake. The latter category emerges when the Court exercises self-restraint when adjudicating a case and alleges that there is no European legal consensus; this can indeed qualify as a substantive line of reasoning. These are fairly weak concepts, but both uses are commonly found. It is important to be deferent given the absence of European consensus regarding moral or religious issues and, to the extent that such line of reasoning is founded on a comparative law review on the actual situation of the countries involved, it shows that the Court’s practice is well-founded on a specific methodology. The structural construct, however, is a mere pragmatic instrument to muddle through. Based on the moderate and realistic stance I advocate, in my view, applying this elusive case law technique35 requires further elaboration and refinement; both on the side of scholars and ECtHR judges. This chapter actually strives for such refinement. I will analytically break down some of this margin of appreciation doctrine’s ingredients in order to achieve my purpose.

33

Gouttes (1995), p. 603. See Letsas (2006). He inquires about whether rights should be construed as “blockades” for certain options or moral preferences, a “reason-blocking theory,” or rather if States, based on utilitarianism, should define their own public morals. I am afraid (and I do wish this happens) that establishing a treaty-based (or Convention-based for that matter) jurisdiction in Europe entails acknowledging rights in broader domains. 35 In this connection, Bjorge (2015) highlights that this is a purely international technique, whilst confirming that European countries’ courts do not often apply this technique vis-à-vis national authorities, but rather more sophisticated deference techniques. 34

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4 Application Criteria 4.1

The European Legal Consensus and Comparative Law Methodology. Evolutive Interpretation or Margin of Appreciation?

What criteria does the ECtHR use to apply the margin of appreciation36? The most outstanding criterion is the absence of regulatory common ground, i.e., the lack of legal foundations. This can be referred to as the “European consensus” argument.37 It involves finding some uniform legislation amongst the States concerning the disputed measure. If there is, in fact, this common ground, i.e., such legal consensus,38 the response may be extended to the remaining Contracting States, thereby forcing them to embrace the largely shared legislative approach.39 This line of reasoning requires a detailed comparative law inquiry by the Court. It is indeed complicated to review the regulatory frameworks of almost fifty countries, each with its own (and diverse) legal system. Nevertheless, the ECtHR (i) has extensive means and human resources, judges, clerks and legal assistants, and (ii) needs to perform this comprehensive inquiry; otherwise, the Court would be unable to make a sound decision. Unsurprisingly, the Court also relies on national constitutional courts. In any case, no Convention provision should be interpreted, and no violation should be assessed, without a good understanding of the relevant pieces of national legislation on the rights at stake. The ECtHR cannot build a house on sand. Conversely, upon verifying that there is no legal consensus, as is often the case, the prevailing heterogeneity makes it more likely that the ECtHR widen each State’s margin of appreciation. It has happened in election-related cases, where comparative law approaches are commonly used. Also, in these election-related cases, 36

I am based on the criteria listed by Mahoney (1990), p. 5, in an extremely short yet meaningful work. See also, with a number of variations: Schoekkenbroek (1998), p. 34; Greer (2000), p. 7; Galetta (1999), p. 748. 37 The European Court of Justice, when assessing the degree of protection of fundamental rights, also applies this method, yet less frequently. It inquires about common constitutional ground amongst Member States and the protection thereof. It has done so regarding the annulment of various EU provisions in breach of the right to property under Protocol 1 ECHR. Cfr Díaz Crego (2009). 38 Lambert (2017) claims that private and family life have porous boundaries, and that European consensus supplements the national margin of appreciation, since in default of the first, the latter can be applied. However, he notes that European consensus can undermine cultural diversity and impose the vision of a conservative majority on a progressive minority. Self-evidently, it can happen the other way around too. 39 The Court has raised this legal consensus claim in numerous major cases to assess the scope of national discretion to be granted: in the landmark Case of Tyrer v. the United Kingdom, of 25 April 1978, on corporal punishment; as well as in cases of due process, discrimination and property and in many others; for instance, in Handyside, regarding “public morals,” no legal consensus was achieved.

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Governments (being zealous defenders of their national sovereignty) tend to be highly sensitive regarding electoral systems conceived to balance many hardly reconcilable heterogeneous interests. At this point, many questions have already arisen. When should this criterion be used? What constitutes a sufficient majority of States? Could the Court impose its own response, for the sake of the European constitutional order, although it may not be mostly agreed upon? If so, in which cases? Arai-Takahashi has brilliantly argued that “[e]volutive interpretation and the margin of appreciation represent diametrically opposed directions of judicial policy, and the comparative method works, as it were, as a bridge between these two.”40 He goes on to say that, if there is no such thing as a European consensus, the ECtHR may be inclined to give States a broader margin. Nonetheless, the existence of uniform European standards in certain matters may serve to reinforce evolutive interpretation whilst narrowing the margin of appreciation. This is definitely a sound explanation accurately describing how the machinery actually works. A comparison between States’ legal frameworks, along with an evolutive interpretation, can also have an opposite effect, thereby leading to a substantive balancing and acknowledgment of shared European values and standards. Nothing forces the Court to dismiss the acknowledgment of common values making up an emerging European constitutional order. In fact, this has already been done; take, for instance, the firm rejection of capital punishment and torture. This integrating and harmonizing efforts are at the core of the Court’s role. In a nutshell, a case law review confirms that, based on its persuasive force, the European consensus claim remains highly significant. However, this comparative law method can have various purposes, but it is commonly applied to give a wide national margin of appreciation in the absence of European consensus.

4.2

The Nature of Rights: Free Areas, Fenced Areas and Areas of Uncertainty

Furthermore, the nature of rights must be thrown into the equation and appropriately weighed. From this perspective, there are: (i) natural environments for the margin of appreciation; (ii) fenced areas and (iii) areas of uncertainty. Not every right should be subject to an equally intense or stringent protection.41 There are absolute rights (also referred to as non-derogable rights), which cannot be suspended (not even in times of war or emergency) interfered with, or limited by national legislation. On the opposite side, the myriad of approaches to property rights and other freedoms, more distant to the free development of personality and human dignity, justifies greater

40

Arai-Takahashi (2002), pp. 203–204. See a brief overview on the application of the margin of appreciation to various provisions in many leading cases in Greer (2000). 41

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heterogeneity and diversity amongst national legislative frameworks and assessments of varying intensity. Tulken and Donnay refer to “terrains naturelles” or “natural environments” for the national margin of appreciation:42 • • • • • • •

derogation in time of emergency (Article 15 ECHR); private and family life (Article 8); freedom of thought, conscience and religion (Article 9); freedom of expression (Article 10); freedom of assembly and association (Article 11); the right to the peaceful enjoyment of one’s possessions (Article 1 of Protocol 1); the right to free elections (Article 3 of Protocol 1).

Additionally, these two scholars draw the boundaries of “unexplored regions” for the case law, such as the absolute rights enshrined in Articles 2 and 3 respectively, i.e., the right to life and the prohibition of torture or inhuman or degrading treatment or punishment. Alongside these two separate areas, both authors point to “new land” yet to be explored. The ECtHR has sometimes applied the margin of appreciation doctrine implicitly in connection with Article 5 ECHR, (liberty and security), as well as regarding the right to a fair trial (Art. 6), the right to an effective remedy (Art. 13) and non-discrimination (Art. 14). This strikes me as an argument on the right’s essential nature. It has to do with the degree of closeness or connection (more or less distant, more or less direct) of the right’s core to human dignity and the free development of personality. Nonetheless, that same argument preserves the feasibility of remedying a violation. The violation of certain human rights causes irreparable damage to human dignity, namely: the right to life (Art. 2 ECHR), the prohibition of torture and inhuman or degrading treatment or punishment (Art. 3 ECHR), and the prohibition of slavery and forced labor (Art. 4 ECHR). Within these three secured rights, there is no room for deference or discretion; they amount to the core of the European public order. Personal freedom and security (Art. 5 ECHR) call for the same line of reasoning, since wrongly depriving someone of his/her physical liberty is irreversible and irreparable. We can hardly admit that there is any margin. We could only accept that each State may provide for different nuances and specificities regarding some of the undetermined legal concepts found in the provision; for instance, those laid down in Art. 5(1)(e) ECHR on “the lawful detention of persons for the prevention of the spreading of infectious diseases.” Some scholars have broadened this criterion so as to comprise Article 6 (on the right to a fair trial).43 I have some serious concerns about this, given that many guarantees covered by this provision require to be further defined and implemented

42 43

Tulken and Donnay (2006). Greer (2000), p. 6.

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by means of legislation. In this vein, certain margin-of-appreciation-based restrictions could be deemed admissible, for example regarding the free assistance of an interpreter in court (subparagraph (e) of paragraph 3). However, it is a lot harder to squeeze in some margin of appreciation when dealing with the right to be tried by a tribunal “established by law” (paragraph 1), or with the presumption of innocence (paragraph 2). Certain legal frameworks might even interfere with absolute rights when addressing controversial or axiologically tainted contents that might be perceived differently (based on cultural differences) in the various States Parties to the Convention. We are now referring, for instance, to legal abortion within the first trimester, to making euthanasia legal, or to the new and complex bioethical issues we are now confronted with. It is worth noting that absolute rights call for a particularly strict scrutiny within the European human rights protection system. Thus, concerning absolute rights, there must be very little margin of appreciation. Freedom of expression and freedom of assembly (Arts. 10 and 11 ECHR respectively), particularly regarding their political dimension, tend to be intensely protected due to their close ties to democracy (arguably, the foundation of human rights). Any derogations and restrictions on these freedoms should be subject to stringent review. As the Court itself contends, tolerance and pluralism inherent to “open-minded societies” are worthy of respect. National authorities cannot enjoy a wide margin of appreciation to limit tolerance and pluralism, even if the expression thereof can be shocking or disturbing for most people. This is the usual line of reasoning. In a nutshell: a right’s essential core stems from its connection with the principle of democracy.

4.3

Types of Obligations on States

In parallel, we should examine the type of obligation or duty imposed on respondent States, i.e., the specific action (or lack thereof) that States are instructed to take. There is a difference between (i) the duty to refrain from action, i.e., not to interfere with the fundamental rights and freedoms, a negative obligation and (ii) positive obligations where public authorities are instructed to act; these are common regarding benefit-providing rights (such as healthcare), and they can also be found with regard to certain freedom rights in order to ensure that they are actively secured. A difference can be made between (i) the ECtHR urging national authorities to refrain from acting or to pay compensation to the injured party (Article 41 ECHR) and (ii) the Court requiring States to take action. It is usually easy to require respondent States to adopt certain active measures: to inquire about torture, police abuse, a disproportionate use of force by law enforcement agents or missing persons. However, it is harder for national authorities to fulfill a lawmaking obligation in order to remedy a violation by enacting new rules or regulations, particularly if it

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requires a constitutional amendment.44 The fact that ECHR bodies instruct Contracting Parties to carry out legislative amendments is probably inevitable in order to safeguard certain human rights. However, it should reasonably be regarded as an exceptional measure, and the Court should only resort to such an extraordinary response if, due to serious structural shortcomings, it does not suffice to rectify the actual implementation, application or enforcement of the challenged provisions. Besides, the Convention is often construed as a model laying down a set of “obligations of result” that afford national authorities great freedom to choose their means; this is a standard approach in international treaty law, closely connected with the principle of subsidiarity and the margin of appreciation doctrine.45 This argument could be referred to as the “degree of enforceability of State action.” As for the Court’s ruling, it entails weighing a range or scale of potential obligations: payment of compensation as “just satisfaction;” the implementation of administrative or judicial action (executive duties); rulemaking or lawmaking activity (regulatory duties), and constitutional amendments.

4.4

Legitimate Aims and the Principle of Proportionality

The national margin of appreciation must be connected with the principle of proportionality, the latter being an additional ingredient. A standard approach based on the proportionality principle requires to examine the aims pursued by the disputed measure, in spite that it was enacted by a democratically elected legislature (thus having a presumption of validity). Interference by national authorities with ECHR-protected rights can be justified by aims or ends that could be perceived differently by one country’s or another’s society. The lawfulness of the parliamentary rulemaking procedure; the fact that the disputed measure was included in an election program subsequently ratified by the voters, or the measure’s approval by referendum can very well be invoked to claim that the measure is ultimately legitimate. Nonetheless, not all the aims pursued by a democratic legislature or ratified by voters are covered by the Convention’s machinery. The ECHR is a constitutional 44

Will v. Liechtenstein is a well-known case, dated 28 October 1999 that led to a constitutional amendment. The Prince sent to the applicant, President of the Administrative Court, an open letter expressing the Prince’s disagreement with the applicant’s ideas about the interpretation of the Liechtenstein Constitution, threatening not to appoint him ever again to public office. The Court ruled that Mr. Wille’s rights to freedom of expression, to stand as a candidate and the right to an effective legal remedy had been violated. The Court took into account that there was evidence that no court had admitted a claim against the Prince ever since 1925. The ECtHR does not even question its own jurisdiction to review a constitutional provision; in fact, it took it for granted, as if it were reviewing a statutory (legislative, i.e., non-constitutional) provision. This is changing, however, and certain States, such as Russia, are reluctant to having their constitutional provisions reviewed on the grounds of national sovereignty. 45 Schoekkenbroek (1998), p. 32.

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instrument belonging to a European public order, and thus limits to a certain extent the scope of options available to national authorities. The lawfulness or, better said, the democratic legitimacy of a given decision or measure enacted by a Government or legislature (even if it duly balances the interests at stake) does not suffice to bypass the Court’s judicial review if such executive or legislative body undermines or dismisses a fundamental individual right. The most prominent Eurosceptics should clearly notice and acknowledge these serious limitations being imposed thereon by the slow ECHR-driven integration. However, except in blatantly unreasonable cases, regarding democratic decisionmaking processes within constitutional States, the Court should be deferent, thereby exercising a somewhat loose review when assessing proportionality. This argument could be designated as the “picking and choosing of aims compatible with the Convention.” Political direction or guidance through rulemaking is inextricably linked to each political community. In fact, such political direction shapes the community, but it must abide by the core values safeguarded by the Convention.

4.5

National Sensitivity

Moreover, constitutional identity or national sensitivity towards the issue must be taken into consideration and thrown into the equation. Fundamental rights fall within specific activities or pieces of legislation. Thus, in order to widen or narrow the margin of appreciation (based on each community’s national sensitivity) the said activity’s or piece of legislation’s nature must be weighed. A given society may be more vulnerable to the repeal of certain provisions.46 The ECtHR should take into account the importance of the matter, i.e., the “big picture,” that provides context to the challenged measure; namely, its importance for each country’s democratic procedures (or for the community’s makeup, for that matter) or for a slow historical construction of a form of government. The Court should also consider the extent to which this matter or “big picture” is in line with the country’s political, cultural or religious traditions, or with its legal specificities.47 46

Mahoney (1998), p. 5. See Şerife Yiğit v. Turkey, 20 March 2008. This case involves the violation of the right to private and family life. Turkish authorities denied a woman’s right to a survivor’s pension and an allowance to take care of her children after her spouse’s decease because she had entered into only a religious marriage (imam nikâhı). Turkish law recognised civil marriage as the sole basis for legal entitlement to social security benefits. The ECtHR carried out a comparative law review and pointed out that certain countries acknowledge, along with traditional ways of getting married, de facto marital unions. However, the Court concluded that “[t]he Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law” (paragraph 70), so the Court cannot impose an obligation “to enact legislation in this sphere” (paragraph 39). Three of the deciding judges were critical of the judgment; they argued that it entailed an indirect discrimination against women. Leyla Şahin v. Turkey, of 10 November 2005, is a more famous case. The ECtHR upheld the Turkish 47

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Please note, however, that a nation’s sensitivity to a specific issue can sometimes lead to a loosening or a partial derogation of ECHR guarantees, but it should never remove the existing barriers and restrictions, or let alone the core, of ECHRprotected rights. This amounts to a standard used to weigh or balance competing interests, but it should not enable any excesses. Additionally, scientific or cultural paradigm shifts can redefine what is considered to be reasonable and legitimate at any given time within each community.48 This argument could be called “national sensitivity in regulation.” It belongs to a realistic and sociological interpretation that advocates for balancing the context and social reality within which the ECHR provisions apply.

4.6

Large Dependence on Context or on the Specific Case

As a rule, the application of the national margin of appreciation doctrine is largely dependent on context or, in other words, on the events and circumstances surrounding a case. It is the most prominent aspect of all. Accordingly, when applying the margin of appreciation, it is necessary to follow a case-based line of reasoning, since a legal reasoning that is suitable for an exceptional case may be ill-suited for others. This feature, together with the abovementioned one, gives rise to a twofold realistic and sociological standard that is often used when applying the margin of appreciation doctrine. This twofold criterion takes us down to each country’s social reality and to the specific circumstances of the case in order to fully understand certain national measures. Mahoney asserted that the ECtHR will likely broaden the margin of state discretion in times of emergency, or in face of a threat to the nation, or if the decision was taken “on the horns of a dilemma.”49 The point here is to weigh the various national realities within which the Convention applies, as well as the social context surrounding the enactment of the relevant domestic measures. Each country’s historical background should also be considered by the Court when adjudicating a human rights case.50 Yet again, a serious threat for the survival of a national community faces a dangerous enemy of

Constitutional Court’s decision reasserting that no veils, headscarfs or other religious attire could be worn in universities. The ECtHR based its decision, with little legal reasoning, on the margin of appreciation doctrine. 48 Lord Mackay of Clashfern (2000), pp. 839–840, acknowledges that the evolution of thought has an impact on what may be considered reasonable at any given time, regardless of personal opinions. Put differently, what might have been considered inappropriate 40 years ago, can no longer be deemed that way. 49 Mahoney (1998), p. 5. Most individual rights protection in the UK apparently relies on tort law, which helps to understand Mahoney’s approach. 50 Callewaert’s stance was mentioned above (2000), p. 158. He relied on Judge Macdonald’s opinion to support his claim that the margin of appreciation cannot be defined in abstracto, due to its very nature, which is “largely dependent on context” (own translation).

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the ECHR system. Let us see a few examples that aptly illustrate the underlying rationale of this and the previous argument. First, see Refah Partisi (The Welfare Party) v. Turkey, where fundamentalist approaches to Islam could pose a threat to the principle of secularism in Turkey, of utmost importance both for Republicanism, and for the construction of the Turkish national identity following World War I (please recall that Turkey came from an Islamic theocratic regime under Ottoman law). In this case, the ECtHR ruled that dissolving this fundamentalist political association did not violate the Convention, given the seriousness of the threat at hand. This judgment contrasts with other decisions on the dissolution of political parties whose ideology and activity were not deemed as a real threat for the democratic ordre public safeguarded by the Convention (see the Case of Refah Partisi and Others v. Turkey, Judgments of 31 July 2001 and 12 February 2003).51 Second, see Murphy v. Ireland, dated 10 July 2003. This case illustrates how religious broadcasting was deemed inappropriate, in spite of the freedoms of expression and communication at stake, in sensitive societies regarding religious matters like that of Northern Ireland. The Court considered that there were “relevant reasons” justifying the Irish State’s prohibition of the broadcasting of religious advertisements at the risk of reopening conflicts between Catholics and Protestants. The prohibition of broadcasting religious advertisements might not have been upheld if it had been implemented elsewhere, on grounds of the collective dimension of religious freedom. Thirdly, it is worth examining another national reality within a case involving a set of political obstacles to a lawful democratic election in a formerly communist country like Georgia, which was leaving totalitarianism behind and transitioning towards democracy (Labor Party v. Georgia, 8 July 2008). Fourthly, the “threat to democracy” posed in a “politically sensitive region” such as the Basque Country was the argument used by the ECtHR after verifying that the Spanish national courts had drawn reasonable conclusions as regards the ties between the dissolved political parties and the terrorist organization ETA, as well as regarding the party’s support to terrorist actions and hate speech, for which there is no room in the Convention. The Court determined that dissolution was a “pressing social need” (Case of Herri Batasuna and Batasuna v. Spain, of 30 June 2009). Finally, keep in mind that the same rights and equal factual backgrounds can be considered ECHR violations or not, according to the social realities involved. See, in this regard, Py v. France and Melnychenko v. Ukraine on the requirement of being a permanent resident in a country to vote or to stand for election.52 51

García-Roca (2002). In Py v. France, of 15 December 2000, the Court reviews the right to vote in elections to Congress and the provincial assemblies in New Caledonia, a French territory requiring (in order to be eligible to vote) to be a permanent resident therein. The ECtHR acknowledges that Contracting Parties enjoy a wide margin of appreciation in election-related matters; the Court does not challenge this aspect of the New Caledonian regulatory framework. This contrasts with the ruling handed down by the Court in Melnychenko v. Ukraine on 19 October 2004. The Court examines the applicable 52

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The ECtHR usually summarizes this line of reasoning by saying: (i) that “the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective,” and (ii) that the Convention is a “living instrument to be interpreted in the light of present-day conditions,” incorporating changing circumstances subject to constant transformations.53 This argument, together with the previous one, make up the “realistic or sociological interpretation.” This construction advocates for a careful understanding of the facts of the case, as well as a substantial and non-formalistic interpretation of the relevant provisions.

4.7

Explicit or Implicit Limits of the Convention. Measures Necessary in a Democratic Society

The intensity of limitations or restrictions on rights is not the same for all of the ECHR-protected rights.54 Thus, the review thereof should neither be the same. In terms of their limits, there are three groups of rights: (i) absolute rights, with barely any limitations; (ii) rights for which the Convention provides explicit limitations, and a wide array of rights subject to broader implicit limitations.55 Articles 8 to 11 ECHR, Article 1(2) of Protocol 1, on property rights, and Article 2(3) and (4) of Protocol 4, on freedom of movement, have an identical formal structure, and they allow for States to interfere therewith on the grounds of collective interests. “Interference clauses” have a twofold effect: on the one hand, they enable potential limitations, thereby allowing for state regulation; on the other, they entitle the Court to reshape the boundaries of the individual right at stake by balancing freedoms and limits.56 Sometimes, the Convention requires a strict scrutiny when it expressly provides for potential limitations on rights. See how Article 5(1) ECHR comprehensively lists all instances where detained persons can be deprived of their freedom; such careful

legislation, which provided that it was necessary to be recognized as permanently resident in Ukraine in order to register to vote; thus, it did not suffice to be legally residing in the territory. The European Court delves into Ukraine’s social reality at the time, acknowledging that there was fear to political persecution under the Ukrainian dictatorship, serious risks to the candidates’ physical integrity, etc. Such circumstances forced the opposition politicians and political opponents to flee the country in order to exercise their political rights. 53 Wicks (2006), p. 136, Chapter 6, with a very revealing title: “1953. The European Convention on Human Rights: an external influence within the Constitution”. She notes that the ECHR has become increasingly important precisely because it has turned into something different than it originally was. 54 Mahoney (1998) , p. 5. 55 Mc Bride (1999), p. 24. 56 Cannizzaro (2000). The author goes over some ECtHR judgments from the perspective of the application of express limitation clauses.

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wording is due to the importance of personal freedom and security for human dignity, i.e., a precious legal commodity that cannot be restored and that must be treasured. There should be a strict review of these interferences, and the margin of appreciation is thus narrowed. A similar legal reasoning applies to the requirement that arrested persons be brought promptly before a judge or other officer authorized by law to exercise judicial power (Article 5(3) ECHR). Securing personal liberty and security lies at the heart of the European public order, and the protection thereof should be at the same level as that of the three absolute rights mentioned above (Arts. 2, 3 and 4). Remarkably, the ECHR boldly outlaws the death penalty (Article 1 of Protocol 6): “The death penalty shall be abolished. No one shall be condemned to such penalty or executed.” It is also worth recalling the carefully worded exception in time of war (Art. 2); as well as the clause stating that “such penalty shall be applied only in the instances laid down in the law,” and how the State is required to “communicate to the Secretary General of the Council of Europe the relevant provisions of that law;” also, note that no derogations shall be made pursuant to Article 3 of the said Protocol 6. A standard ECHR clause can be found in paragraph 2 of Articles 8 to 11, providing for explicit limitations on the right to respect for private and family life, freedom of thought, conscience and religion, freedom of expression, and freedom of assembly and association. The exercise of these freedoms shall not be subject to any further restrictions other than those expressly laid down in the law and as long as such limitations constitute “measures necessary in a democratic society.” Paragraph 2 of Articles 8 through 11 also lists certain legitimate aims that can justify a pressing social need: national security, territorial integrity or public safety, the prevention of disorder or crime, the protection of health or morals, the protection of the reputation or rights of others, preventing the disclosure of information received in confidence, or maintaining the authority and impartiality of the judiciary. This does not seem like a numerus clausus; rather, it strikes me as an open-ended, non-exhaustive list with several examples. Similarly, Article 1 of Protocol 1, governing the protection of property, expressly provides for the possibility of restricting these property rights “in the public interest and subject to the conditions provided for by law and by the general principles of international law” (the so-called third rule). This framework admits that (i) limitations, (ii) the social dimension of private property and (iii) the need for a legal implementation of these entitlements are inherent to property rights. The ECtHR should not carry out an overly intense scrutiny, and the national margin of appreciation must be somewhat wide. However, this is not always true as for the ECtHR case law. The Court sometimes claims to be giving States a wide margin of appreciation, but such margin is not reflected, in practice, in the Court’s judgments. A self-proclaimed deference at first, sometimes leads to a stringent review. It is commonly asserted that the right to free elections, and the rights to vote and to stand for election (Article 3 of Protocol 1), are not absolute rights, and that this provision leaves room for implicit limits, thereby affording Contracting Parties a broad margin of appreciation. States are entitled to justify a restriction on grounds

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not expressly listed, insofar as this justification is in line with the rule of law and the Convention’s general purposes “in the specific circumstances of the case.”57 This qualifies as a literal interpretation focusing on the wording of the ECHR provisions.

4.8

The Lack of a Fair Balance Between General and Individual Interests

In its judgments, the ECtHR seeks to strike a fair balance between general and individual interests. The measure adopted by national authorities often pursues legitimate public aims, but still leads to an excessive sacrifice of private interests, thereby triggering ECtHR supervision. This standard is commonly applied and, as the margin of appreciation as a whole, ends up being a part of proportionality assessments under the principle of proportionality. In the absence of a fair balance between competing interests, the Court may deem the disputed national measure contrary to the ECHR human rights protection system. This standard fits easily within the sub-principle of proportionality in the strict sense, since it shows a set of case-based justice or equity requirements that prevent unreasonable or unnecessary excesses. However, it can also fall within the prior assessment performed under the sub-principle of necessity, since it also shows that there is an equivalent measure less harmful for the parties. This conceptual distinction is not an issue, since the ECtHR tends to merge both assessments into the necessity test within a democratic society. In Kliafas and others v. Greece, dated 8 July 2004, the Court was urged to abide by the legislature’s approach to public interest requirements for expropriation purposes; the Court allegedly had to provide a broad margin of appreciation unless the assessment was “manifestly without reasonable foundation.” Nonetheless, the Court did find a violation of the applicants’ property rights (Article 1 of Protocol 1) since in the expropriation there was no fair balance between the general interest and the applicants’ interests. The case can be summarized as follows: after the liberalization and rearrangement of public accounting experts (public officials), they continued to perform their duties and they were subsequently required to repay to the Government the income they had received. The ECtHR deemed this measure unreasonable, i.e., disproportionate. The Case of Z.A.N.T.E.-Marathonisi A.E. v. Greece, of 6 December 2007, has some common features. A small island that had been declared a protected site on environmental grounds (where loggerhead turtles reproduced) was privately owned. Due to its tourist interest, it was purchased by investors to build a resort. The Government increasingly enacted measures restricting the owner’s property rights (namely, their right to build on their land) based on environmental purposes. 57

Yumak and Sadak v. Turkey, 8 July 2008, paragraph 241.

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However, Greek authorities never actually expropriated the land, as would have been fair. Although it gives States a wide margin of appreciation, when confronted with this creeping expropriation, the ECtHR ruled that there was no fair balance between the public interest in the use of such environmentally valuable property and the private interests at stake.

4.9

Which Argument Should We Pick?

The analysis carried out so far begs the question: which argument should we pick when applying or setting aside the margin of appreciation doctrine? The ECtHR often uses one of the aforesaid arguments, either expressly or as the underlying rationale of its legal reasoning. Although the Court has not yet systematized or ranked these arguments, it applies the principle of proportionality in a highly formalized and sophisticated manner, and (as mentioned before) the abovementioned arguments and standards can be considered covered by the proportionality test. Some scholars claim that ranking the argumentative criteria would be taking a step towards an authoritarian “interpretative monotheism.” I do believe, however, that the matter should be tackled by assuming that it would be advisable for the Court’s legal reasoning to be more predictable so as to ensure grater certainty in the ECtHR rulings. It is similar to the classic debate on legal interpretations stemming from Savigny and the Historical School of Law, or to the more recent controversy about the constitutional interpretation criteria. In any of these debates, the judicial authority interpreting the relevant provisions should be expected to pick an argumentative criterion. In European constitutional law, courts decide on the basis of the structure of the provision to be interpreted. In the United States, it is not hard to find legal analyses based on the deciding judge’s ideology or psychological profile,58 which (i) is clearly not a legal approach to the matter and (ii) can lead us down a blind alley. There is a major difference between a rule empowering a given authority to exercise its powers, which would require a strict interpretation, and a provision securing fundamental freedoms, which would call for an extensive, “pro-right holder” or rights-friendly interpretation. Nonetheless, traditional rules providing for rights have similar structures, although not always the same, since principles and more specific or close-ended provisions coexist. Then, how is it possible to balance more than six extremely different criteria in order to determine the existence of the national margin of appreciation? It all seems to depend on the Court’s expertise as the Convention’s supreme interpretative lord. After breaking down these interpretative criteria and

58 See Sunstein (2015). When it comes to expect or pick a given constitutional interpretation, he classifies Supreme Court Justices as “the hero, the soldier, the minimalist, [or] the mute.” It is a bright idea, but law (and any legal interpretation theory) are meant to identify the structure of legal provisions, not to examine judges’ psychological profile or ideology.

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standards we have not figured out too much, although we have been moving in the right direction. We piled up a bunch of criteria that make it easier to apply the margin of appreciation doctrine and that should all be traced back to the proportionality test. However, what intends to be a legal doctrine cannot be based on so many standards that can lead to conflicting or contradictory results.59 Even many decades after it was coined, the margin of appreciation remains an interpretative technique largely dependent on context. It is also elusive to abstract rules and generalizations. The Copenhagen Declaration of 2018 is worded as follows: “States Parties enjoy a margin of appreciation in how they apply and implement the Convention, depending on the circumstances of the case and the rights and freedoms engaged” (paragraph 28.b, emphasis added). This is most certainly a good summary. The national margin of appreciation doctrine might be overly reliant on the circumstances of the case. Therefore, as could not be otherwise, judicial review by the ECtHR is inherently uncertain in terms of scope and intensity. A decade ago I suggested that scholars tried to supplement the case law with more analytical contributions in this regard; these contributions would, at some point, allow the Court to embrace some minimum (reasonable) standards,60 but I am afraid that scholars have not made a decisive contribution.

4.10

Is Procedural Review the Answer?

Can these confusion about the application criteria for the margin of appreciation be solved through procedural review61? As from 2005, the ECtHR took a procedural shift in its quest for an appropriate solution to this deadlock, making certain decisions apparently more in line with the national margin of appreciation. This shift was prompted by Contracting States, who exerted pressure in favor of widening their margin of discretion. In certain cases, the Court has come up with a judicial review test that brings together the rulemaking procedure, the degree of involvement and deliberation within the decision-making process, and the substantive aspects of the relevant provision.

59 See also, Greer (2000), p. 32. He concludes that the margin of appreciation is not a true legal doctrine. Yourow (1996), p. 195, claims that margin of appreciation amounts to a “multipurpose” instrument. 60 Along these lines, see Mahoney (1998), p. 83, “the time has probably come to articulate clearer criteria as to the scope of the margin of appreciation, by drawing together the numerous strands which already exist in the Court’s case law,” “the Court has preferred to process by incremental steps on a case-by-case basis, without enunciating wide-sweeping principles,” “there has now accumulated a sufficient body of individual precedents from which general principles could be deduced.” 61 Among others, see Gerards and Brems (2017), including various studies.

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Some scholars were fascinated with this approach; I beg to differ. This technique might help to comfortably adjudicate certain cases, but I am afraid that it is ill-suited for more complex ones. In my view, it is not a true alternative to the somewhat misleading construction of the margin of appreciation discussed throughout this chapter. Procedural review does not suffice, and it is not meaningful enough, so as to exclude all other criteria. This approach has English law origins. It emerged within a context where subsidiarity and the margin of appreciation were being vindicated by States Parties to the Convention. It was mostly, but not only, advanced by the United Kingdom. This advancement had a few milestones: (i) the “Hirst saga,” since 2005; (ii) the Brighton Conference of 2012, and (iii) Protocol no. 15 of 2013, seeking to insert the margin of appreciation doctrine into the Convention’s preamble (which has not entered into force yet) and acknowledging that effective protection of human rights should first be granted by each national judicial system. The Copenhagen Declaration, dated 13 April 2018, has strongly encouraged the ratification of Protocol no. 15. This Declaration also highlighted subsidiarity and warned that States are responsible for actually implementing the ECHR, since they are “the first guarantors of the Convention.” The procedural (reasonable) review test within the ECtHR’s jurisdiction entails an assessment of the democratic procedure leading to the final decision at a national level, i.e., it entails a scrutiny of the decision-making process.62 The purpose of procedural review is to ensure that there are sufficient procedural guarantees within national decision-making, including both lawmaking procedures and any subsequent judicial proceedings. There should be an appropriate balance between general (public) and private competing interests throughout the decision-making process. The more supporting reasons arise from this reasonable procedure, the more solid the national margin of appreciation, and the narrower the ECtHR’s review. This procedural review test, based on democratic decision-making, has a twofold dimension: formal and substantive.63 The decision-making process is subject to scrutiny, assessing whether there was a sufficiently meaningful parliamentary debate as well as evaluating other participation and deliberation procedures connected with a piece of legislation’s quality, such as: public consultation with experts or grassroots organizations, and the involvement (during the drafting stage) of various

62 Brems (2017), p. 18, holds that an appropriate procedure can be assessed on its own merits or inherent value, or for “instrumental reasons” tied to the subsidiarity rationale in its positive and negative dimension further reinforced by Protocol 15. She also refers to a “process efficacy rationale” (p. 19) leading the Court to “proceduralize substantive rights.” However, she ends up admitting that replacing a substantive review for a merely procedural scrutiny is hardly acceptable. 63 Gerards (2017), p. 129, differentiates between imposing positive procedural obligations, as in Articles 2 and 3 ECHR, and relying on the quality of national decision-making, whether legislative, judicial or administrative/executive. Nonetheless, she concludes that procedural arguments are rarely decisive in the ECtHR’s reasoning; rather, they tend to supplement substantive grounds and arguments. The Court takes a “pick and choose” or a “bric-a brac approach” (p. 159); gathering small arguments mingled together, Gerards and Brems (2017).

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committees or agencies submitting their technical, environmental assessment, budgetary or gender-based reports. Taken together, all these elements allow to conclude that the legislature has not rushed through its political decision-making (as Hamilton aptly noted, “momentary passions and immediate interests” tend to dominate more long-term interests) and that it has abided by democratic pluralism appropriately weighing competing interests.64 Based on the quality of law and lawmaking, the presumption of constitutionality and conformity with the ECHR is thus reinforced. However, the test has a second dimension, the substantive one. This dimension requires to ensure that the outcome is not arbitrary or unreasonable. Having regard to this twofold nature, formal and substantive, some authors refer to a “semi procedural judicial review.” I believe that this whole procedural review approach is not as groundbreaking as some Convention scholars seem to think. Procedural review is neither innovative nor exclusive to the ECtHR. In fact, it has some English law origins dating back to decades ago. Also, the procedural review test has been applied by the US Supreme Court, by the German Supreme Court, by the European Court of Justice as well as by South African and Israeli courts.65 Academic experts in constitutional justice know all too well the work of John Hart Ely “Democracy and distrust. A theory of judicial review,” published in 1980, and the debate it stirred a few years ago.66 Hart Ely deemed untrue the dichotomy of original meaning (the US originalist approach to constitutional interpretation barely embraced in Europe) versus intentionalism. He took a third way in this debate, contrary to granting judges a second chance to review the legislature’s substantive decisions and focused on democratic participation and minority involvement and representativeness in decision-making. In his view, procedure could be more meaningful than substance. However, a long time has elapsed and Hart Ely’s impact on constitutional justice theory in Europe has not been decisive. Quite the opposite; constitutional courts inevitably infer moral assessments and add rationality in their balance-seeking assessments to the mere potestas and imperium of the law. As aptly illustrated by

64 It is argued that: “. . . deciding whether a fair balance has been struck between competing interests” (see ECtHR Judgment in Shindler paragraph 117). 65 Bar-Siman-Tov (2012), p. 162. Angelica Nusberger recalls Justice Frankfurter’s dissenting opinion in US Supreme Court case Shaughness v. Mezei in 1953. Frankfurter claimed that he would rather be tried subject to Soviet Union law within a fair procedure than under United States law following a Soviet procedure. Nusberger (2017) holds that procedural review is not necessarily less stringent than substantive review and that it allows for accepting the views of a democratic society. However, he does acknowledge that solely a procedural scrutiny can be dangerous, for instance, to protect minority rights; due process violations should be ancillary to substantive violations, Gerards and Brems (2017). 66 Ely (1980). This was a highly critical stance, more of a philosophical rather than a constitutional law approach, which had to do with the Warren Court experience. One of its commentators, Michael Boudin, soon made the following claim: “I do not expect substantive due process to wither away, as Professor Ely hopes. . .,” Boudin (1981), p. 1258. He was right.

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Gustavo Zagrebelsky,67 all constitutional courts have enlightening ambitions and fluctuate between rationality and politics without dismissing legal reasoning. The court’s role is to reconcile the majority stance with minority rights. This can give rise to a clash with the legislature, which can nonetheless be mitigated. This doctrine is neither new nor very convincing. Alejandro Saiz Arnaiz, ad hoc Judge in the ECtHR, has listed some of the cases where this criterion is applied.68 In my view, a careful examination of this case law, searching for the arguments, unveil the following patterns. First, one should inquire about whether the legislature has weighed the competing interests and held a true and meaningful debate on the voting restriction. In other words, we must verify if the relevant legislature has reviewed the old justification for the restriction on prisoners’ right to vote in light of modern-day penal policy, or if it has simply confirmed it tacitly (Hirst No. 2, paragraph 79). However, any measures of exclusion regarding the right to vote should be reasonable; it does not suffice for them to be founded on a wide margin of appreciation (Concurring Opinion of Judge Caflish in Hirst No. 2, paragraph 2 and 3). The lack of rational foundations by itself is enough grounds to find an ECHR violation. Shifting the debate towards proportionality has led the Court to evaluate the quality of parliamentary debate, which results in a deadlock where two sources of legitimacy meet or, better said, clash: “a difficult and slippery terrain” (Joint Concurring Opinion of Judges Tulkens and Zagrebelsky in Hirst No. 2). An “evolutive” or “dynamic” interpretation should be sufficiently based on changing conditions in Contracting States’ societies, “including an emerging consensus as to the [European] standards to be achieved,” which the Court failed to see in this case (Joint Dissenting Opinion of Judges Wildhaber, Costa, Lorenzen, Kovler and Jebens in Hirst No. 2). The Court admits that Parliament could have struck a different balance when regulating this matter. However, the central question regarding Article 8 ECtHR is not whether the legislature, which would arguably have struck a fairer balance, could have come up with a different solution, but whether, in striking the balance at the point at which it did, Parliament overstepped the margin of appreciation afforded to it under the aforesaid Article 8 (Evans v. the United Kingdom, paragraph 68). Therefore, there is room for a different regulation of competing interests, i.e., 67 Zagrebelsky (1977), p. 371: “Le funzioni della corte costituzionale hanno a base una matrice indubitabilmente di tipo iluministico,” “una funzione di giustizia costituzionale quale strumento di una benefica dialettica. . . fra razionalita e politica. . .”. See another Constitutional Court Justice, Zanon (1989), p. 189: “Les juges constitutionnelles, comme le disait Rudolf Smend. . . doivent chercher leur légitimité dans leur ouvre même, dans le consensus que leurs décisions sont capable de susciter, dans les enseignements que les motivations et les raisonnements suivis dans un arrêt sage e apprécié peuvent nous donner.” From the same perspective, see García-Roca (2007). 68 Saiz Arnaiz (2018). He mentions, to name a few and in chronological order: Hirst (no. 2) v. the United Kingdom, of 6 October 2005; Maurice v. France, of 6 October 2005; Evans v. the United Kingdom, of 10 April 2007; Alajos Kiss v. Hungary, of 20 May 2010; Lindheim and others v. Norway, of 12 June 2012. Animal Defenders International v. the United Kingdom, of 22 April 2013. National Union of Rail, Maritime and Transporters Workers v. the United Kingdom, of 8 April 2014. Remarkably, there are many cases against the United Kingdom.

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between two individuals entitled to the protection of their private life, the biological father and sperm donor who wants to revoke his consent, and the other person involved in this fertilization treatment. In the absence of a European consensus on the matter, a wide national margin of appreciation should be granted, given the complexity of the moral issues at stake. As for the right to vote, national legislatures should be afforded a wide margin of appreciation when determining which restrictions might be justified; in particular, to decide which procedure “should be tailored to assessing the fitness of mentally disabled persons.” Nevertheless, there can be no evidence whatsoever that the relevant legislature ever sought to weigh the competing interests. This is even more important where the restriction on fundamental rights affects a particularly vulnerable group in society, such as the mentally disabled, which has suffered considerable discrimination and social exclusion in the past; in such a case, the national margin of appreciation diminishes (Alajos Kiss, paragraph 41–42). States should enjoy a wide margin of appreciation regarding social or economic policies, such as housing. However, it must be narrower if the legislature has failed to carefully examine and weigh the competing interests or if it has failed to assess the proportionality of general provisions (Lindheim, paragraph 85). The 2013 case of Animal Defenders International v. the United Kingdom serves our explanatory purpose, since it reveals how uncertain the procedural review test can be, although it appears solid. Under the applicable electoral law, the prohibition on paid “political” advertising by an animal rights NGO is upheld. The Court recalls that, regarding freedom of expression, the margin of appreciation to be afforded is, on an a priori basis, narrow. It is defined by the type of expression at issue and, in this regard, the ECtHR notes that there is little scope for restrictions on debates about questions of public interest, which includes the protection of animals by an NGO exercising its vital role as a “public watchdog.” It is now time to determine, although without assuming the role of national authorities, if the supporting reasons to justify the ban were sufficient and allowed to qualify the restriction as a “necessary measure.” As the general justifications of the measure at stake become more convincing, their impact on the specific case should diminish. The British Government put forward the need to protect the electoral process as part of the democratic order. The respondent State also argued that electoral campaigns require “statutory control” in order to guarantee freedom and genuine pluralism, preventing that some groups could obtain competitive advantages in the area of paid advertising. The core of the case was whether British authorities had gone beyond this objective and overstepped their margin of appreciation. Nevertheless, in the absence of European consensus on paid political advertising, States should enjoy a wide margin of appreciation. Finally, the Court underlines that the High Court and the House of Lords gave numerous examples in the Court’s case law where proportionality had been examined not in light of the particular circumstances of the case, but in the context of the legislation itself. Judge Bratza issued a Concurring Opinion where he disagrees that the content of the political message itself can allow for greater or lesser restrictions or narrow the

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margin. He also claims that the British legislature exceeded its margin. This criticism evidences how the scope of the margin of appreciation is constantly uncertain. According to the Joint Dissenting Opinion of Judges Ziemele, Sajó, Kalaydjieva, Vučinić and De Gaetano, the general prohibition on political advertising in the media (so loosely construed) entails a violation of the Convention. As sharply argued by them: re-asserting the absolute sovereignty of Parliament in the best pre-Convention traditions of Bagehot and Dicey. The doctrine of the margin of appreciation, which was developed to facilitate the proportionality analysis, should not be used for such purpose (paragraph 10).

Similarly, the Dissenting Opinion of Judge Tulkens, joined by Judges Spielmann and Laffranque, provides that the quality of lawmaking and judicial review conducted at national level is important, as it should also be “the manner in which the general measure is applied to the facts of the case.” Such a broad prohibition and the loose construction of political advertising are excessive. This is obviously a sound Dissenting Opinion. In sum, I am afraid that procedural review does not live up to its apparent soundness, certainty and predictability in a hard case such as Animal Defenders. This is shown by the conflicting opinions of the Judges. There is severe criticism coming from the claim that procedural review springs from the outdated and exclusively English dogma of Parliament sovereignty, which has now been superseded by the sovereignty of the Constitution. It is one thing to produce arguments on procedural quality and guarantees when assessing conformity with the Convention and the application of the margin (which might be useful); it is entirely another to solely examine formal defects or faults without assessing whether the legislature’s choices substantively violate the ECHR. In this regard, it is worth recalling the theory of “unconstitutionality defects:” substantive, formal or procedural and competence-related. Procedural quality, i.e., the procedure’s dialogue-based and participatory nature, does not allow by itself to cover all the margin-related issues. Procedural review should be settled if the first scrutiny performed by the Court entails a substantive review and the subsequent scrutiny addresses the lawmaking process, or otherwise (as would seem more reasonable) by first reviewing procedure and then substance. Ultimately, I fail to see an accurate construction of this test by the ECtHR’s case law. Also, the answers to these questions and others seem unclear. I do support the case law requirement that the procedure be narrowly tailored to the final decision. In conclusion, it is essential to reflect on democracy and fundamental rights, at a theoretical level, in order to make sure that this criterion or standard is valid. I wish to bring up Gustavo Zagrebelsky’s well-known study on Christ’s crucifixion, who commented on Kelsen’s “The Essence and Value of Democracy” of 1920 and his procedural approach to democracy.69 The renowned Italian scholar brings up Christ’s martyrdom (just like Kelsen did) as an example of democratic relativism 69

See Zagrebelsky (1996), the original Italian version is from a year before. See also, Kelsen (1974), the original German version was published in 1920.

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and procedural understanding of democracy, deprived of substantial values and authoritative tenets or dogmas. In essence, Pontius Pilate asked Jesus who he was; Jesus replied that he was the Truth, and since Pilate is not sure that he knows the Truth, he asks the crowd: “Whom do you want me to release for you? Barabbas, or Jesus who is called Christ?” From this perspective, murdering God’s son was the absurd conclusion of a perfectly democratic procedure. The majority can be wrong and violate the core content of a fundamental right. That is precisely the raison d’être of the supervisory and protective role of the ECtHR, who must conduct an external review, distancing itself from the facts, and the greatness of fundamental rights (whether enshrined in a Constitution or in the Convention), which are binding on legislation. A formally democratic procedure can lead to an inappropriate outcome, as well as to a human rights violation by the legislature. There are many examples, given that constitutional and Convention-based reviews of the law are, by definition, technical, and thus against the majority stance. Procedural review might miss this aspect. The quality of lawmaking and an appropriate procedure does not suffice to escape Convention-based review, although it must be taken into account within the Court’s scrutiny. Let us think of any of those countries where public opinion has been tainted and the people have their heart set on allowing a minority’s right violation, i.e., lynching or “popular outcries.” There are numerous examples in history. Voltaire, in his 1763 “Treatise on Tolerance” tells the trial of Jean Calas in Toulouse, a tradesman accused of murdering his son, who had converted to Catholicism and probably committed suicide. The trial was held in a strongly tainted context by the Wars of Religion between Protestants and Roman Catholics that rendered almost impossible to have an impartial judge.70 In Paris, a trial simply caters to provinces fanaticism, as Voltaire would say. Providing a second level of review following that performed by national courts is precisely the ECtHR external scrutiny’s raison d’être.

5 Conclusions The European Court of Human Rights provides an international protection system to secure human rights which is subsidiary to national systems. Therefore, States Parties reasonably enjoy a certain margin of appreciation in order for them to implement their own policies and the principle of democracy. It is also both wise and cautious that an international court (carrying out its review based on an almost all-encompassing Convention) award some degree of deference to national decisions as long as they are not unreasonable or distant from European consensus and Convention standards. However, this national margin of appreciation should be,

70 Voltaire (1976). More recently, see Voltaire (2010), preface by Fernando Savater and a good introductory study by Martí Domínguez on how current this classic work remains.

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by definition, limited, and it should not be granted regarding certain rights. The problem is that the case law construction of this margin, i.e., its demarcation or definition, is somewhat fragile, it resorts to various criteria and it is often overly dependent on context: on the specific circumstances of the case or of the community involved. It is a mere variation of praetorian justice. This leads to legal uncertainty and to ECtHR’s decisions that are not always predictable. The procedural review approach relies on the quality of a given procedure, whether a lawmaking procedure or judicial proceedings, narrowly tailored to the decision to be made and striking a fair balance between the competing interests. This technique can be useful in certain cases. However, as was the case with constitutional review, procedural flaws are not the only defects subject to assessment in a Convention-based review. It is not an all-around alternative, nor a full package. There is no room for replacing the margin of appreciation doctrine with procedural review, since it would not adequately secure European citizens’ fundamental rights.

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Mahoney P (1998) Marvelous richness of diversity or individual cultural relativism. Hum Rights Law J 19(1):1–6 Mc Bride J (1999) Proportionality and the European Convention on Human Right. In: Ellis E (ed) The principle of proportionality in the Laws of Europe. Hart Publishing, Oxford– Oregon, pp 23–35 Mcgoldric D (2016) A defence of the margin of appreciation and an argument for its application by the Human Rights Committee. Int Comp Law Q 65:21–60 Nusberger A (2017) Procedural review by the ECtHR. In: Gerards J, Brems E (eds) Procedural review in European fundamental rights cases. Cambridge University Press, Cambridge, pp 161–176 Popelier P, Van de Heyning C (2017) Subsidiarity post Brighton: procedural rationality as answer? Leiden J Int Law 30(1):5–23 Saiz Arnaiz A (2018) TEDH y procesos políticos nacionales: democracia convencional y margen de apreciación. Teoría y Realidad Constitucional 42:221–245 Schoekkenbroek J (1998) The basis, nature and application of the margin of appreciation doctrine in the case law of the European Court of Human Rights. Hum Rights Law J 19(1):30–36 Spano R (2014) Universality as diversity of human rights. Strasbourg in the age of diversity. Hum Rights Rev 14(3):478–502 Sunstein R (2015) Constitutional personae. Oxford University Press, Oxford Tulken F, Donnay L (2006) L’usage de la marge d’appréciation par la Cour européenne des droits de l’homme. Paravent juridique superflu ou mécanisme indispensable par nature. Revue de Science Criminelle et de Droit Pénal Comparé 1:3–23 Vasel JJ (2009) El ‘margin of appreciation’ como elemento clave en el Derecho Constitucional Europeo. Revista de Derecho Constitucional Europeo 11. http://www.ugr.es/~redce/REDCE11/ articulos/07JVasel.htm Voltaire (1976) Tratado de la tolerancia. Crítica, Barcelona Voltaire (2010) Cartas filosóficas, tratado sobre la tolerancia, cuentos. Gredos, Madrid Waldock H (1980) The effectiveness of the system set up by the European Convention on Human Rights. Hum Rights Law J 1:1–9 Weiler JH (1997) Does Europe needs a constitution? Reflections on Demos, Telos and Ethos in the German Maastricht decision. In: Gowan P, Anderson P (eds) The question of Europe. Verso, London-New York, pp 265–204 Weiler JH (1999) The constitution of Europe. Cambridge University Press, Cambridge Wicks E (2006) The evolution of a constitution, eight key moments in British constitutional history. Hart Publishing, Oxford Yourow HC (1996) The margin of appreciation doctrine in the dynamics of European Human Rights jurisprudence. Kluwer Law International, The Hague/Boston/London Zagrebelsky G (1977) La giustizia costituzionale. Il Mulino, Bologna Zagrebelsky G (1996) La crucifixión y la democracia. Ariel, Barcelona Zanon N (1989) La polémique entre Hans Kelsen et Carl Schmitt sur la justice constitutionnelle. Annuaire International de Justice Constitutionnelle V:177–189

The National Margin of Appreciation in the Reform of the Strasbourg System Cristina Izquierdo-Sans

1 Introduction As I noted in a previous work, the various reforms of the access system to the ECtHR—aimed at preventing its suffocation—are bringing a new dynamic to Strasbourg. The ECtHR might lose its leading role in the protection of human rights in Europe to the benefit of national courts, which would establish themselves as the European human rights courts. The reforms are not separate elements but links in a chain that may come to an end with the entry into force of Protocol No. 15, and the ratification of Protocol No. 16 by the 47 States party to the ECHR. These two events, if they finally occur, may well bring a new era. This work draws attention to the important role that the margin of appreciation might play in the future in the Strasbourg system (Vives Antón, 2013; Roca, 2010; Yourow, 2016). In fact, it could reach the point of jeopardizing the cornerstone of the system, i.e., the right to individual application to the ECtHR which makes it particularly protective. While the national margin of appreciation has been key for the States to feel comfortable with the ECtHR and should be regarded positively, the abovementioned reforms—calling for shared responsibility with national judiciary—may leave little room for the European Court. Especially, if combined with the so-called procedural review (or reasonable decision-making) approach to the margin of appreciation. A balance must be struck between the remedial nature of the system and the reforms aimed at shared responsibility (Greer, 2020).

C. Izquierdo-Sans (*) Faculty of Law, Universidad Autónoma de Madrid, Madrid, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Izquierdo-Sans et al. (eds.), Fundamental Rights Challenges, https://doi.org/10.1007/978-3-030-72798-7_14

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2 Margin of Appreciation and Democracy As is well known, the margin of appreciation is a legal concept developed by the Court’s case law, expressly identified as such for the first time in the Handyside case, known as “The Little Red Schoolbook,”1 in 1976 (Nuñez Poblete, 2012). The ECtHR had to decide whether the United Kingdom had violated freedom of expression by confiscating a book and fining the publisher or whether it was covered by Article 10(2) of the Convention, according to which, “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.” The ECtHR stated that, by reason of their direct contact with 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, as well as on the need for a restriction. The Court notes at this juncture that the adjective “necessary” within the meaning of Article 10(2) is not synonymous with “indispensable.” Therefore, it is for the national authorities to make the initial assessment of the imperative social need implied by the notion of “necessity” in this context. Consequently, the Court finds that Article 10(2) leaves a margin of appreciation to the Contracting States which is given both to the national legislature and to the judiciary that must construe and apply the existing legislation.2 In this first approach to the principle, the Court focuses not so much on the idea that public morals differ widely across the States party to the ECHR, but rather on 1

Case of Handyside v. The United Kingdom, Judgment of 7 December 1976, ECHR. The case concerned a publication of Norwegian origin that was later published in the United Kingdom by the applicant, Richard Handyside, owner of a publishing house in London. The book criticized the education system and offered solutions for the students, including indications on how to complain about a teacher, how to organize a protest, etc. The book also informed teenagers about the risks of drug use, albeit presenting it as a purely personal choice. Topics such as youth sexuality were openly discussed. It was a very controversial book. The UK edition was confiscated by the courts and the publisher was fined. In his lawsuit, the publisher accused the UK of violating freedom of expression. 2 “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 as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them. The Court notes at this juncture that, whilst the adjective ‘necessary’, within the meaning of Article 10 para. 2 (. . .), is not synonymous with ‘indispensable’ (. . .), neither has it the flexibility of such expressions as ‘admissible’, ‘ordinary’ (. . .), ‘useful’ (. . .), ‘reasonable’ (. . .) or ‘desirable’. Nevertheless, it is for the national authorities to make the initial assessment of the reality of the pressing social need implied by the notion of ‘necessity’ in this context. Consequently, Article 10 para. 2 (. . .) leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator (‘prescribed by law’) and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force (. . .)”.

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giving certain leeway to the national judicial authorities when interpreting its rights (Naranjo de la Cruz, 2013). The rationale is that domestic courts have a direct knowledge of the facts and are closer in space and time, which allows them to make a more accurate and case-specific assessment (Sánchez Molina, 2014). The margin of appreciation will obviously be subject to review by the Court itself. In the Handyside case, the ECtHR sets out several elements of the margin of appreciation, since it concerned a potential violation of freedom of expression based on the respondent State’s moral and ethical standards. Hence, in these initial considerations, the Court calls upon the national courts to delimit the national margin of appreciation, but most importantly, it highlights the prior application of the domestic law as a general principle underpinning the entire Convention. In other words, the Convention mechanism is subsidiary to the system enacted by each country for the protection of human rights and fundamental freedoms. The Convention reserves to States the power to legislate in this area and confers on its authorities a reasonable “margin of appreciation” in the application and interpretation of laws.3 The Court stresses that this margin of appreciation is not fixed or constant (López Alfonsín, 2017). On the contrary, its relevance and consequences vary widely depending on the concept. In ascertaining the nature and scope of morals and the degree of the necessity required for the protection of ethical standards, the ECtHR recalls that the conception of morals changes over time and from place to place. In the absence of a uniform European conception of morals, State authorities are in a better position than the European judge to assess the prevailing ethical standards in their own country. Hence, the Court concludes that its task is not to take the place of the competent national courts but rather to review their decisions under the ECHR.4 The ECtHR further elaborated on this balance between the domestic level and the ECHR in its judgment in Klass and others v. Germany, of 6 September 1978,5 concerning the secrecy of communications. In that case, the Court considered that some compromise between the requirements for defending democratic society and individual rights is inherent in the system of the Convention. Along these lines, Sainz Arnaiz (2018) has recently stressed that the margin of appreciation must be understood together with the idea of democracy. The European system should therefore be approached both from a macro and a micro perspective. From the macro perspective, the Convention is a mechanism for the protection of democracy, and the protection of human rights is just a means to that end. The micro perspective is also linked to the idea of democracy: the European system of the Convention must respect the democratic systems of the Contracting States, in particular their specific design and their legislative and judicial branches—the former in the domestic legislative process and the latter as an interpreter of the laws. In this framework, the States are “entitled” to a certain margin of appreciation

3

Case of Handyside v. The United Kingdom, Judgment of 7 December 1976, ECHR, paragraph 48. Case of Handyside v. The United Kingdom, Judgment of 7 December 1976, ECHR, paragraph 48, 49 and 50. 5 Case of Klass and others v. Germany, Judgment of 6 September 1978, ECHR, paragraph 59. 4

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regarding their own legislative policy options and their domestic jurisdiction, while the Convention provides overarching guidelines. Democracy is thus both the front and the back of the ECHR: in addition to being its core foundation, it defines its scope and reach. Another issue from the macro perspective is the key role played by the specific right in question when it comes to the margin of appreciation. The Convention sets the game board: (i) the rights enshrined in Article 15(2) ECHR are absolute and non-derogable (the right to life, the prohibition of torture, the prohibition of slavery and the right to no punishment without law), and States have no margin of appreciation; (ii) aside from these, there are a number of rights whose boundaries are jointly defined by the States and the ECtHR through cooperation (where the macro and micro perspectives intertwine). It should be borne in mind that not all those non-absolute rights are equivalent, and their different configuration can affect the scope of the margin of appreciation. Freedom rights may be legally ranked and/or limited according to the necessity, proportionality and weighting test,6 but they will not always require implementing legislation. Let us consider, for instance, freedom of expression. It belongs to the group of individual rights immediately enjoyed which only require a passive behavior on the part of public authorities, i.e., that they do not actively undermine them.7 On the other hand, benefit-providing rights and participation rights are legally defined, and thus require implementing legislation to determine their content. The right to an effective remedy is a prime example. In this framework, the ECtHR seeks to lay out an evolving minimum standard in order to create a European public order. Actually, the legislature is often not involved in the so-called freedom rights. In such cases, the margin of appreciation is not the result of legislative policy choice but the action of national courts, becoming even more blurred. In any event, as aptly noted by Sainz Arnaiz (2018), State authorities have direct democratic legitimacy that the ECtHR lacks.

3 The Link Between the Margin of Appreciation and the Principle of Subsidiarity The Committee of Ministers adopted Protocol No. 15 on 16 May 2013. Article 1 adds a new recital to the preamble to the Convention: “Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention

6

Non-absolute rights can be limited if necessary, but only in proportion to the need and, in the event of conflict with another fundamental right, the conflicting rights must be weighed against one another. 7 Spanish Constitutional Court Judgment 77/1982, of 20 December, legal basis 1. The Court points out that freedom of expression and freedom of information stem directly from the Spanish Constitution, so rightsholders do not have to wait for administrative recognition to exercise them.

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and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention.”8 Until then, the principle of subsidiarity had gone unmentioned. Its explicit inclusion in the Convention 63 years after its adoption makes us wonder whether something called for such clarification (Barbosa Delgado 2013). First of all, we should overcome a formal reading of subsidiarity as a requirement to exhaust domestic remedies before bringing a complaint to the ECtHR. The Court itself explained the meaning of this principle in Demopoulos and others v. Turkey:9 the requirement of exhaustion of domestic remedies under Article 35 ECHR seeks to provide the Contracting States with an opportunity to prevent or remedy any alleged breaches before they are brought to the ECHR bodies. However, the rule is based on the assumption that effective domestic remedies actually exist pursuant to Article 13 ECHR. The subsidiary nature of the Convention mechanism means that States must only answer before an international body like the ECtHR if the internal remedy system has not worked (for whatever reason). In other words, the Strasbourg system is subsidiary to the fulfilment of the obligation under Article 13 ECHR. Subsidiarity means, in essence, that an effective range of remedies are put in place by national legislation. Article 35(1) would only require to make use of such effective remedies. This procedural construction explains that the exceptions to the requirement of exhaustion of domestic remedies refer precisely to cases where the existence of such remedies or their correct functioning is in doubt. The Court has repeatedly stated that this requirement must be applied with some degree of flexibility and without excessive formalism.10 Once subsidiarity is linked to the correct functioning of the effective domestic remedies, it becomes easier to understand the amendment to the preamble. It calls for the responsibility of the States to establish an optimal system of remedies so that no area of State activity is exempt from legal control and review. The principle of subsidiarity is thus linked to the margin of appreciation: the domestic courts are called to fulfil, through this system of effective remedies, the obligation to apply their national legislation in full respect of the ECHR, taking into account the margin of appreciation enjoyed by the legislature. For that purpose, the

8

The margin of appreciation in the European system for the protection of human rights and the need to incorporate it into the text of the CEDH (albeit not in its articles) recalls the principle of supremacy in EU law. This principle was also created through case law and nobody questions its key role in the construction of the EU. A draft reform sought to include it in the founding treaties, which seemed convenient but also rather uncomfortable for some Member States. Therefore, the proposal was eventually withdrawn. Something similar happened with the margin of appreciation in the ECHR, with the difference that in this latter case a compromise solution was reached by incorporating the principle into the preamble of the Convention. 9 Case Demopoulos and others v. Turkey GC Decision as to the admissibility of 1 March 2010, ECHR, paragraphs 69 to 97. 10 Case Cardot v. France, Judgment of 19 March 1991, ECHR, paragraph 34.

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Explanatory Report of Protocol No. 1511 recalls that the Contracting Parties must give full effect to their obligations under the Convention.12 Ensuring respect for the rights enshrined in the ECHR is thus a shared responsibility between the States and the ECtHR (López Guerra 2014), as stressed by the Court itself in its case law.13 The issue of surrogate motherhood illustrates well the interplay between the States’ margin of appreciation and the ECtHR’s subsidiary role, as can be seen in the Paradiso and Campanelli judgment,14 as well as in the advisory opinion of 10 April 2019 in reply to a request from the French Cour de Cassation (see below). The Paradiso and Campanelli (Farnós Amorós, 2017) case shows how the subsidiarity of the ECHR system is also based on the margin of appreciation— together with the right to an effective remedy—since the ECtHR’s jurisdiction is only triggered when a State exceeds its own margin of appreciation. On 24 January 2017, the Grand Chamber of the ECtHR delivered a judgment putting an end to this controversial case on a particularly sensitive issue. There is also a profound lack of consensus among States on this field, since they have a large margin of appreciation regarding its regulation. Surrogate pregnancy is prohibited in some States, which raises questions as to the scope of Article 8 ECHR (right to respect for private and family life), free development of personality, and a contentious right to procreate. The case concerned a gestational surrogacy agreement entered into by an Italian married couple (the applicants) and a Russian agency. There was no genetic link between the adoptive parents and the child. With the written consent of the surrogate mother, the Russian authorities registered the child as the applicants’ son. Nevertheless, the Italian authorities refused to give effect to the birth certificate, which the considered contrary to Italian law, and placed the minor into the care of social services. The child was declared to be in a state of abandonment and after eight months living in Italy with the adoptive parents, he was taken from them and temporary placed with a foster family with a view to adoption under Italian law. On 27 January 2015,15 a Chamber of the ECtHR declared that there had been a violation of the right to respect for private and family life, since the applicants had spent eight months with the minor during a crucial phase of his life. The judgment held that the national authorities had not struck a fair balance between the competing interests when they removed the child from the adoptive parents. Even if they were not genetically related, there was an emotional link, and public policy cannot be invoked as a carte blanche to justify any measure without considering the best interests of the child, which is the responsibility of the State irrespective of the parental relationship—genetic or otherwise. The case was referred to the Grand

11 The Explanatory report can be accessed at: https://search.coe.int/cm/Pages/result_details.aspx? ObjectId¼09000016805c8fd0. 12 Paragraph 7 of the Explanatory report, citing the Brighton Declaration along the same lines. 13 Case Scordino v. Italy, Judgment of 26 March 2006, ECHR, paragraph 140. 14 Case Paradiso and Campanelli v. Italy, Judgment of 24 January 2017, GC, ECHR. 15 Case Paradiso and Campanelli v. Italy, Judgment of 27 January 2015, ECHR.

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Chamber, which in its judgment of 24 January 201716 declared by eleven votes to six that Italy had not violated Article 8 by requiring compliance with its domestic law and by placing the child into the care of a different foster family. According to the ECtHR, letting the child stay with the applicants would have been tantamount to legalizing an unlawful situation contrary to Italian public policy. With this decision, the ECtHR took a step back in terms of the States’ margin of appreciation. Although restrictive policies on assisted reproduction may be incompatible with Article 8 ECHR, only exceptionally does the Court’s case law find a violation. As we shall see below, the advisory opinion of 10 April 2019 moves forward in that direction.

4 The Procedural Approach to the Margin of Appreciation In this section, I analyze a position taken by the ECtHR that might widen the States’ margin of appreciation while narrowing the Court’s own scope of review. It is the so-called procedural review (or reasonable decision-making) approach to the margin of appreciation (Roca 2019). This means that the ECtHR conducts an external analysis of the judicial decision under appeal and, if such test is passed—in terms of reasonableness and proportionality—the Court will refrain from assessing the merits of the case based on the national margin of appreciation. Let us consider it in detail. On 12 September 2011, the Grand Chamber of the ECtHR delivered a judgment in the case of Palomo Sánchez v. Spain, concerning the dismissal of a group of employees in retaliation for their union membership on the pretext of allegedly offensive content in the union’s newsletter. The applicants relied on their freedom of expression and the dismissal was a disciplinary sanction for serious misconduct upheld by the domestic courts. The ECtHR declared that the use of coarse and insulting language in the union’s newsletter are not covered by freedom of expression, since it oversteps the limits of admissible criticism in labor relations. The sanction imposed on the applicants— disciplinary dismissal—was deemed proportionate, considering the damage caused to the reputation of the persons concerned via a written medium (and therefore willfully) circulated in the workplace with serious and disturbing effects. What is striking about the judgment is that the Court disregarded that the facts had occurred in the context of a previous labor dispute. Instead of examining the merits of the case, the Court conducts an external assessment of the facts reported, arguing that national courts are in direct and continuous contact with the reality of the country and are often are in a better position than an international court to determine how, at a given time, the right balance can be struck.

16

Case Paradiso and Campanelli v. Italy, Judgment of 24 January 2017, GC, ECHR.

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Two other statements of the ECtHR deserve attention. First, that the Court’s task in exercising its supervisory function is not to take the place of the national authorities. Second, that employers have broad discretion to impose the sanction they consider best adapted to the accusations against the employee. In any case, a step back. This judgment conveys a deep respect for the work of national legislatures, judicial authorities and other domestic agents invested with certain power like employers. In particular, the Court shows great deference to (i) disciplinary dismissal; (ii) the balance struck by national courts; (iii) the protection of employers under national legislation; and (iv) the refusal to ascertain the context of a labor conflict. This judgment is part of a saga where the ECtHR merely carries out an external assessment of the procedure without addressing the merits of the case—thus leading to a great widening of the national margin of appreciation.

5 On the Relation Between the Margin of Appreciation and Protocol No. 16 Protocol No. 16 seems less groundbreaking (Alonso García, 2018). To begin with, it is not an amendment to the ECHR, but simply incorporates certain provisions on the Court’s advisory jurisdiction.17 The Protocol comprises six Articles and a preamble stating its purpose: to extend the Court’s competence to give advisory opinions in order to enhance the interaction between the Court and national authorities, thereby reinforcing implementation of the Convention in accordance with the principle of subsidiarity. The reference to the principle of subsidiarity is both striking and significant, as it reflects its connection to the amendments introduced by Protocol No. 15. In fact, Protocol No. 16 is part of this call for States’ cooperation in implementing the ECHR, as well as for their co-responsibility in ensuring its respect. This is now facilitated by a referral mechanism that will foster Conventionconforming interpretation while limiting the number of claims brought before the Court. If a national court requests an advisory opinion from the ECtHR and rules on its basis, what would be the point of appealing to the ECtHR after exhaustion of all domestic remedies? In this regard, López Guerra (2014) noted that Protocol No. 16 not only reflects a desire to strengthen dialogue with national courts, but also to deal more effectively with the increasing workload of the ECtHR. The procedure is generally inspired on the preliminary reference mechanism before the CJEU, but there are considerable differences. They both share the same

17

It is worth recalling that, until now, the advisory jurisdiction of the ECtHR allows the Committee of Ministers of the Council of Europe to request an advisory opinion on legal questions concerning the interpretation of the ECHR—but excluding any question relating to the content or scope of the rights and freedoms, as well as any question concerning an appeal to the Court (Articles 47 to 49 CEDH).

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purpose and are similarly initiated. The objective is to harmonize the interpretation of certain international provisions by domestic courts and the supranational court responsible for ensuring their compliance. In both cases, the procedure is set in motion by a decision of the national courts, seeking to assist them in their difficult task of interpreting and applying such international rules. Beyond these common features, the mechanism before the ECtHR has many differences. First, this reference mechanism is optional, so domestic courts are free to decide whether or not to request an advisory opinion. In this sense, it is not an essential element of the ECHR judicial system. Second, it will not affect all States Parties to the ECHR, as Article 8 of the Protocol provides that it will enter into force the month after ten Contracting States have ratified it, which occurred on 1 July 2018 (so it entered into force on 1 August of that year). Ratification is therefore optional, which creates uncertainty regarding its impact. Third, only the highest national courts are entitled to request an advisory opinion, which will have a direct impact on the scope of the Protocol’s potential effects. Moreover, the request for an opinion is subject to an admission phase, there is no express provision for the suspension of the national proceedings, and the Court must give reasons for any refusal to accept the request—which further differentiates this procedure from the preliminary references to the CJEU. Finally, unlike in EU law, there is no provision for the participation of the parties in the national proceedings or of the other Contracting States to the Convention.18 In spite of these differences, the advisory jurisdiction of the ECtHR is well conceived, especially if it is regarded as a closing mechanism to ensure the system’s subsidiarity. In my opinion, it is a highly relevant Protocol with only one Achilles’ heel: ratification is optional. In this regard, it is important to note that more than ten countries have already signed it, including Spain. The first request for an advisory opinion under Protocol No. 16 was submitted by the French Cour de Cassation on 16 October 2018 (Alonso García, 2018), only three months after its entry into force. It concerned gestational surrogacy and the margin of appreciation available to the States in refusing to enter in the birth certificate of a child the “intended mother” as the “legal mother” when the child was conceived using the eggs of a third-party donor. It was clear from ECtHR case law that the States must designate in the birth certificate the child’s biological father as the legal father, but the French court specifically asked whether the referral of the intended mother to an adoption procedure to obtain recognition of the maternal filiation was in accordance with Article 8 of the ECHR and within the States’ margin of appreciation. The ECtHR answered in the affirmative: the child’s right to respect for private life requires that domestic law provide a possibility of recognition of a legal parentchild relationship with the intended mother, but it does not require such recognition to take the form of entry in the birth certificate as the “legal mother.” Another means, such as adoption, are acceptable, provided that that they can be implemented

18 However, the State to which the requesting court or tribunal pertains, and the Council of Europe Commissioner for Human Rights are allowed to take part in the proceedings (Art. 3).

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promptly and efficiently in accordance with the child’s best interests. Once again, the ECtHR took a step back. This first advisory opinion of the ECtHR shows that any request will inevitably concern the national margin of appreciation in relation to a given legislation and its conformity with the ECHR (Durán Ayago, 2019). The domestic court will have the opportunity to explain and justify the legal and factual background in the requesting State, which may obviously influence the response of the ECtHR. Hence the importance of Protocol No. 16 with regard to the margin of appreciation.

6 Conclusions 1. The margin of appreciation is linked to the idea of democracy insofar as the ECHR reserves to States the power to legislate on fundamental rights and grants domestic courts a reasonable margin of appreciation in its application and interpretation, thus acknowledging that national legislatures and judiciaries are endowed with direct democratic legitimacy—which the ECtHR lacks. 2. The margin of appreciation is linked to the principle of subsidiarity and is substantively connected to Article 13 ECHR, namely the obligation of States to provide an effective remedy system. The relation is thus articulated in terms of subsidiarity: the ECtHR will only intervene if the national legislature and judiciary exceed their margin of appreciation and the domestic remedy system is not effective in ensuring compliance with the Convention. 3. The expansive effect of the national margin of appreciation stems from two elements: on the one hand, the procedural review approach to the margin of appreciation adopted by the ECtHR in the case of Palomo Sánchez v. Spain of 12 September 2011. The Court conducts an external assessment of the judicial decision under appeal and, if such test is passed—in terms of reasonableness and proportionality—the Court will refrain from examining the merits of the case based on the national margin of appreciation. On the other hand, Protocol No. 16 entails that any request for an advisory opinion will concern the national margin of appreciation in relation to a given legislation and its conformity with the ECHR. Insofar as the domestic court has the opportunity to explain and justify the legal and factual background in the requesting State, Protocol No. 16 will play a relevant role with regard to the margin of appreciation. 4. The above considerations highlight the central role of the margin of appreciation in the new dynamic within the ECHR system, as well as the importance of striking a balance between the remedial function of the ECtHR and the implementation of the Convention by national authorities.

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A Silent Revolution. Property and Free Enterprise Before the Spanish Constitutional Court José María Rodríguez de Santiago and Luis Arroyo Jiménez

1 Introduction The Spanish Constitutional Court’s long-established case law on economic rights and freedoms has been extremely deferential towards lawmakers and the government. In terms of comparative law, this is not uncommon. Indeed, courts tend to apply a less stringent review in certain fields, particularly those connected with public intervention in economic activities. One of the Spanish Constitutional Court’s defining features is that its judicial review mechanisms and standards in this field are highly vague and open-ended, which creates uncertainty when assessing lawmakers’ and the government’s scope of action. The Constitutional Court has recently made efforts to clarify the constitutional review standard applicable to any measures interfering with the right to private property provided in Article 33 of the Spanish Constitution (Constitución Española, CE) and with free enterprise or the freedom to conduct a business (Art. 38 CE). This chapter contextualises, summarises and critically assesses this new line of case law. Section 2 focuses on the case law regarding the right to property, and Sect. 3 examines judgments on the freedom to conduct a business. In conclusion, Sect 4 contains a set of proposals concerning each of these rights.

J. M. Rodríguez de Santiago (*) School of Law, Universidad Autónoma de Madrid, Madrid, Spain e-mail: [email protected] L. Arroyo Jiménez School of Law, Universidad de Castilla-La Mancha, Ciudad Real, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Izquierdo-Sans et al. (eds.), Fundamental Rights Challenges, https://doi.org/10.1007/978-3-030-72798-7_15

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2 Private Property 2.1

A Fundamental Right’s Quest to Normal Acknowledgment

The bourgeois revolutions relied on the “freedom-property” pair for the constitutional architecture that shaped the rule of law in its liberal and individual-oriented origins (fundamental rights, reserva de ley principle, separation of powers, checks and balances and judicial review). However, the 1978 Spanish Constitution openly downplayed the second term of the binomial: property. The right to property and the guarantees and safeguards against expropriation (the taking of property) were not subject to the appeal for constitutional protection or recurso de amparo before the Constitutional Court (see Art. 53(2) CE). Nevertheless, oblivion did not prevent this right from qualifying as a fundamental right; it deserved this category from the perspective of the history of constitutionalism (or the history of ideas, for that matter), comparative law and the international treaties ratified by Spain. The Constitutional Court’s case law assumes this categorization: it defines the right to property as one of the “fundamental rights of individuals” (see, for instance, Constitutional Court Judgment 204/2004, of 18 November, legal basis 5).

2.2

Principle of Proportionality and Essence

Undoubtedly, this categorization’s most significant implication is that public interference with private property is now subject to the common dogmatics-based standard of review of fundamental rights, i.e.: any limitation on the right to property must pass the proportionality test and must preserve the right’s essence or core content (Art. 53(1) CE). The Charter of Fundamental Rights of the European Union (CFREU) is a somewhat recent fundamental rights instrument, and yet it provides this twofold criterion (involving the right’s essence and the proportionality test) as the shared European standard of review in Article 52(1); it does so comfortably, as it should be when stating the obvious. At this point, it is not worth discussing what is best: either (i) a relative concept of essence, where the core content would be what is left of the right after accepting all the limitations or restrictions that have passed the proportionality test, or (ii) an absolute concept of essence, where core content is narrowly circumscribed to a few prerogatives that cannot be overstepped, enabling a separate review other than that based on the principle of proportionality. Up until recently, one could argue that, as any other fundamental right, the right to property was subject to the said twofold review that has given rise to a general European theory about the limitations on the exercise of rights and freedoms. The Spanish Constitutional Court had already claimed that the notion of the right’s essence or core content means a remainder of “merely individual utility” allowing property to qualify and be acknowledged as such (the Constitutional Court aptly

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refers to this in its Judgment 204/2004, of 18 November, para. 5 of legal basis 5). However, when assessing the limitations, burdens and obligations attached to property by lawmakers based on property’s social function or purpose (Art. 33 (2) CE), the landmark Constitutional Court rulings apply a loose standard that has never been expressly identified as a proportionality review. The three-tier proportionality test (adequacy or suitability, necessity and proportionality in the strict sense) is missing in the constitutionality assessment of, inter alia: (i) the prohibition to build residential buildings on protected coastal areas [Art. 25 of the Spanish Coastal Act; STC 149/1991, of 4 July, legal basis 8 a)]; (ii) the prohibition to terminate housing lease agreements on the agreed deadline (STC 89/1994, of 17 April, specifically, legal basis 5), or (iii) the specification by lawmakers (and thus by public authorities) of how landowners should use their own farming land for agricultural purposes (STC 37/1987, of 26 March). Up until recently, one could argue that the Constitutional Court did not expressly refer to the proportionality principle in the said cases because the Court embraced the specific three-tier proportionality test after it had established its primary or “foundational case law doctrine” on property (during the 1980s and early 1990s). Note that this three-tier standard had been previously elaborated within German public law and embraced thereafter by the European Court of Human Rights and the Court of Justice of the (back then) European Communities. The Constitutional Court first used this well-defined, tiered standard in Judgment 66/1995, of 8 May (legal basis 5), in a case involving freedom of assembly (Art. 21 CE). However, as soon as it had the chance, in STC 48/2005, of 3 March (in a case regarding a legislative expropriation to carry out extension works in the Canary Islands regional Parliament), the Court applied this (new) threefold test also to Article 33 CE. However, the said threetier test was not applied in a case where limitations or burdens were imposed on the landowner by means of legislation based on property’s social purpose (Art. 33 (2) CE). Rather, the test was applied to a legislative expropriation (Article 33 (3) CE), which was declared unconstitutional precisely on the basis of this threetier test.

2.3

The New Case Law

If the analysis provided in the previous paragraphs is correct, the Constitutional Court just carried out a “silent revolution” by means of (i) STC 16/2018, of 22 February (on the Navarre Regional Act on Housing), legal basis 17; and (ii) STC 32/2018, of 12 April (Andalusian Regional Act on the Social Purpose of Housing), legal basis 7. In sum, both statutory provisions subject to review impose on homeowners the obligation (which is far from meaningless) to allocate their property for residential uses. In its unconstitutionality appeal, the counsel for the regional Government (State Attorney or Abogado del Estado) raised the “three-tier proportionality test” vis-à-vis this measure. In response, Constitutional Court Judgment 16/2018, legal basis 7, provided the following:

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In contrast with the statement of claim’s legal reasoning, this Court finds that legislation on the right to property, aside from abiding by the essence of ‘the rights and freedoms acknowledged in Chapter II of Title I’ under Article 53(1) CE, has no limit other than striking a ‘fair balance’ or a ‘reasonable relationship between the means employed and the aim sought’ (see James and others v. the United Kingdom, 21 February, 1986, § 50), considering that lawmakers enjoy a wide margin of appreciation as to the needs, purposes and consequences of their provisions regarding any social or economic decisions (see, inter alia, James and others v. the United Kingdom, 21 February 1986, § 46; Former King of Greece and others v. Greece, 23 November 2000, § 87; Broniowski v. Poland, 22 June 2004, § 149). [The regional act provisions under appeal] do include major restrictions for the holder of the right to property. However, the regional lawmaker provides for these restrictions based on a constitutionally significant purpose, such as securing the right to adequate housing (Art. 47(1) CE). On top of this, after carefully assessing the provisions under appeal (without overstepping on the regional legislature’s margin of appreciation), the Court concludes that they do not violate the fair balance between the means used and the aim pursued.

Self-evidently, this statement entails that the Constitutional Court explicitly rejects the proportionality principle as a standard to assess the limitations (burdens or obligations) that lawmakers can impose on the right to property on grounds of general interest embodying this right’s social purpose (Art. 33(2) CE). This standard is replaced by a clearly less stringent and more deferential one (“fair balance” or “reasonable relationship”), which can be traced back to the rational basis review (the least stringent or weakest scrutiny) used as the default standard by the US Supreme Court. Ultimately, this standard is overlapping with the first tier of the principle of proportionality, i.e., adequacy or suitability, which requires that fundamental rights be limited on general interest grounds that can be traced back to a constitutionally significant legal interest. An alternative interpretation of this shift could be as follows: the Court is not actually dropping the principle of proportionality altogether, but solely its most sophisticated version (the threefold test), in order to redirect the notion of proportionality to an older and more intuitive standard, and thus subject to a lesser review. In any event, it is most certainly a step back.

2.4

A Wrong Solution

In our view, this solution is not quite right. It would have been better to keep the more sophisticated proportionality test although accepting that, in the second and third tiers, the Constitutional Court’s review of proprietary right provisions be less stringent and more deferential towards lawmakers than the review of any provisions affecting other fundamental rights. Amongst other reasons regarding constitutional neutrality towards economic policies, a looser review could be easily justified on the grounds that the Constitutional Court’s institutional position is not appropriate to perform comparative assessments on the foreseeable effects of political-economic measures calling for the necessity (there is a less burdensome yet equally effective

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measure) and the strict proportionality tests (the effects on the general interest overweigh the impact on the affected fundamental right). Nonetheless, expressly creating a separate review standard for legislative interference with the right to property (an independent and less stringent standard than the proportionality test) is definitely a wrong approach to a sometimes major issue: as noted by Eduardo García de Enterría in 1996, “Spain might be the Western country where the legislature and public authorities (the Administration) most blatantly disregard the right to property.” Furthermore, the Constitutional Court’s decision disrupts, without clear justification, the well-established and shared European standard to assess limitations on fundamental rights: proportionality and essence. Unity is not an absolute value, but it only makes sense to depart from it if, in return, something good happens, and this does not seem to be the case here.

3 Free Enterprise 3.1

The Previous Case Law

There has been a similar process regarding free enterprise or the freedom to conduct a business (Article 38 CE). In Spain, there was no such thing as a constitutional doctrine on this issue, but rather a series of clichés and topical arguments raised in a disorderly manner to bypass the constitutional review of economic regulation. One of these topical arguments is that Article 38 CE’s purpose as an institutional guarantee prevails over other dimensions of free enterprise, and thus over its consideration as an individual right (STC 83/1984, legal basis 3 and STC 225/1993, legal basis 3). This claim has always been hardly understandable, since under the doctrine on the objective dimension of fundamental rights (encompassing institutional guarantees), such objective dimension does not replace but rather supplement the categorization of fundamental rights as individual (subjective) rights. Another topical claim is that Art. 38 CE grants the freedom to start businesses and to lead and plan the activity thereof (STC 225/1993, legal basis 3), yet without providing for the right to carry out any economic activity (STC 83/1984, legal basis 3), only those allowed by the applicable legislation and as provided therein (STC 225/1993, legal basis 3). Therefore, the content of the freedom to conduct a business would be fully subject to legislative provisions, with no limitations other than the merely apparent prohibition of “unreasonable, disproportionate or arbitrary” restrictions “that can prevent or hinder the performance of business activities” (STC 225/1993, legal basis 3). As for the proportionality standard, the Court has argued that any interfering measures should be (i) suitable, meaning that they should help to “achieve the legitimate aim pursued,” and (ii) necessary or indispensable, meaning that there are no “other measures imposing a lesser loss or sacrifice on the sphere of protected freedom” (STC 66/1991, legal basis 2). Nevertheless, neither of these two elements of the proportionality principle had any impact in practice on the constitutional review of legislation restricting free

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enterprise. The reason being that the Constitutional Court managed not to apply them by simply denying that the restriction ever occurred: “it is hard to accept that flexible opening hours is a form of implementing Article 38 CE,” since that would entail that “the entrepreneur’s right to start and conduct a business necessarily means that he or she is free to decide when to operate it” (STC 225/1993, legal basis 3). What really is hard to accept is that there are decisions more closely connected with the structure of the business activity itself than opening hours.

3.2

The New Case Law

As stated above, the Spanish Constitutional Court continued to ignore the freedom to conduct a business up until 2014. Since then, the Court has come up with a case law approach leading to a twofold standard for constitutional review. This doctrine’s most recent expression can be found in STC 111/2017. First, Article 38 CE guarantees the right to “offer services or goods in the market.” Second, this “right is compatible with certain legislative limits or conditions, mostly those intended for (i) customer protection, (ii) environmental protection and (iii) appropriate urban and spatial planning and land uses.” Third, “Article 38 CE limits the scope of any national, regional and local provisions setting these conditions” [STC 111/2017, legal basis 4 a)]). Nevertheless, the limits on free enterprise will vary based on two groups of cases. On the one hand, the conditions imposed on the freedom to conduct a business must pass a test of reasonableness, i.e., they must pursue a constitutionally legitimate aim and they should be suitable to achieve such aim without hindering the free operation of business [STC 111/2017, legal basis 4 a)]).

Accordingly, any provisions restricting the freedom to carry out economic or business activities are subject to a threefold substantive standard. First, these provisions must fulfil a constitutionally acceptable aim which, according to constitutional law doctrine, need not be a constitutional principle (let alone does this mean that only certain principles justify restrictions on fundamental rights). Second, any provisions limiting fundamental rights must comply with the principle of proportionality, but only with its first tier (regarding suitability or objective consistency between the restriction and the aim pursued), and not with its second and third tiers (concerning necessity and proportionality in the strict sense). Third, the scope of the restriction cannot be as extensive as to hinder the free exercise of economic activity in practice. There is little to say about the meaning of this safeguard –any prohibition fully prevents carrying out the business activity it precludes–, and let alone about its position within the fundamental rights legal framework—does it fall within the proportionality test? is this safeguard somehow meant to protect the right’s essence? On the other hand, the conditions imposed on the set up of a business are subject to another constitutional review standard:

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The standard must be more stringent if the requirements or conditions imposed on the freedom to conduct a business not only affect its exercise but also access to the market (Constitutional Court Judgments 53/2014, of 10 April, legal basis 7; 30/2016, of 18 February, legal basis 6, 35/2016, of 3 March, legal basis 4 and 89/2017, of 4 July, legal basis 14) [STC 111/2017, legal basis 4 a)];

These limits are subject to “the proportionality test, [. . .] under which the following aspects must be reviewed: (i) the aim pursued by the restriction or prohibition, as well as that this aim is constitutionally legitimate; (ii) the causal link between the prohibition as the means employed and the aim pursued, and (iii) the necessity for the prohibition to fulfil the said aim” [STC 35/2016, legal basis 4, referring to STC 66/1991, legal basis 2, which nonetheless did not rely on the difference between access to the market and exercise of the business activity to draw a distinction between reasonableness and proportionality].

In a nutshell, the provisions limiting the freedom to start a business (and probably also to cease business activity, although this dimension of free enterprise goes unmentioned) are subject to a more stringent scrutiny. Because, in addition to the prior requirements, the second tier of the proportionality test, i.e., the principle of necessity, broadly applies. Under this principle, there should not be less burdensome yet equally effective measures available to fulfil the aim pursued. This requirement would only apply to measures limiting access to the market but not to measures hindering a business in operation. It is therefore understandable that the Constitutional Court claim that the Market Unity Act (Ley de Garantía de la Unidad de Mercado), by providing an assessment of alternative measures, “raises the standard of protection guaranteed by Article 38 CE” [STC 111/2017, legal basis 4 b)]. The Constitutional Court considers that the third proportionality tier, proportionality in the strict sense, does not apply to either group of cases. The Court neither clarifies the relationship between reasonableness—suitability—and proportionality—suitability and necessity–, on the one hand, and securing the essence of free enterprise, on the other. If anything, the Constitutional Court seems confused in certain rulings (STC 53/2014, legal basis 7), as if proportionality and the right’s essence or core content had not been, for decades, well-defined limits for the restrictions on free enterprise.

3.3

A Step Forward

Up to this point, we know what the ruling says and what it fails to say. We appreciate two elements of the new case law doctrine. First, we welcome that the Constitutional Court decided to clarify the constitutional review of legislation on economic activities by setting the applicable standard of review. Additionally, the aforesaid doctrine is very deferential towards lawmakers regarding economic intervention. This is particularly necessary, since legislation (statutory provisions) has a high degree of democratic legitimacy and its subject-matter in this case is made up of social aspects subject to a highly political regulation. This is why its constitutional framework is

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especially open-ended. Also, the recent constitutional doctrine aptly designs a standard of review of varying intensity according to the measure’s subject-matter and effects. The stringency of constitutional review or, from a different perspective, the degree of deference towards democratic lawmakers, cannot be defined in the abstract without having regard to the intervention’s specific features. The reason being that the aspects determining why a more or less strict review may be appropriate—the legitimacy of the subject-matter, the political dimension of the matter at hand, or the suitability of public bodies to make decisions– depend on the factual background in each case.

3.4

In the Wrong Direction

We do not value as highly, however, the legal path taken to achieve these objectives. Above all, the distinction between access and exercise may seem clear on paper, but it is problematic in practice, because it requires to define the relevant market in order to determine the applicable standard of review. Nonetheless, the most questionable aspect is that the Court embraced a highly unsophisticated approach such as the rational basis review, applied by the US Supreme Court to, inter alia, acts and provisions interfering with businesses [West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937)]. Some comparable legal systems provide other models that allow for further differentiation, thereby enabling more nuanced and accurate assessments of public intervention in the economy. It suffices to point out the three-tier theory (Dreistufentheorie) elaborated in Germany sixty years ago. In its ruling on pharmaceutical law (BVerfGE 7, 377—Apothekenurteil), the German Federal Constitutional Court came up with distinct applications for (i) the requirement regarding the aim pursued by the measure—based on its impact on social life— and (ii) the elements of the proportionality principle—adequacy or suitability, necessity and proportionality in the strict sense—based on the subject-matter of the restriction—limitations on exercise versus limitations on access; subjective restrictions versus objective restrictions–. Although it is clearly better than the American standard, this three-tier theory has been criticized in Germany due to its lack of refinement. Indeed, it remains an instrument lacking in nuance and sophistication.

4 Proposals for Improvement 4.1

Regarding Property

The above rulings allow to infer that the Constitutional Court applies the standard of review defined by the European Court of Human Rights (ECtHR) in a somewhat raw manner. Under this standard (Article 1 of Protocol No. 1 to the Convention for the

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Protection of Human Rights and Fundamental Freedoms), there must be a fair balance or a reasonable relationship between the content of the right that results from the restriction and the aim pursued. When delineating or delimiting the content of the right to property, the ECtHR has been doubly cautious: on the one hand, the Convention provides for a minimum protection standard that can be extended by national constitutions; on the other, the standard must be in touch with many domestic fundamental rights protection frameworks, which reflect heterogeneous constitutional traditions and general fundamental rights theories. In this case, the second perspective is particularly significant. It does not focus so much on the degree of protection but on the standard of review’s level of accuracy: the standard defined by the ECtHR must translate into an unrefined test because it should be understandable and operational in very heterogeneous national contexts. However, this actually requires national bodies to take it in, adapting it to their constitutional dogmatics and fundamental rights theories. In Spain, the Constitutional Court should certainly rely on the ECtHR’s standard of review, i.e., the requirement that any legal provisions strike a fair balance between their restrictive measures and the aim pursued. But, instead of projecting this standard directly on the provision subject to review, the Constitutional Court should channel the standard through the principle of proportionality in its broad sense. This is the typical review instrument for fundamental right restrictions of varying intensity applied by the constitutional doctrine (with more or less accuracy and consistency), and this instrument also allows for a very accurate constitutional law assessment. In sum, the ECtHR approach based on fair balance should be applied in Spain through a broadly construed principle of proportionality, by subsequently assessing if the measure meets the suitability, necessity and strict proportionality requirements.

4.2

Regarding Free Enterprise

As for the development of constitutional doctrine on free enterprise, it is worth taking into account the various proposals for a normal acknowledgment of this freedom to conduct a business drawn up in Spain over the last decade. Although these proposals took contrasting stances concerning the constitutionally permitted restrictions on free enterprise, they all sought that any restrictions on free enterprise were subject to the constitutionality requirements stemming from the general theory of fundamental rights: compliance with the rule of law and its various dimensions, the grounds of (constitutionally acceptable) public interest, fulfilment of a broadly construed principle of proportionality and non-interference with the right’s essence. This standard of review is the most evolved of all European frameworks. On top of that, EU law will ultimately expand this standard throughout the Union as a whole because it is the standard provided by Article 52(1) CFREU for any limitation on the exercise of the rights and freedoms enshrined therein. Since then, there have been remarkable attempts to further define the applicability of the proportionality principle from two complementary perspectives. The first one

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advocates to determine the content of the various elements of the principle— suitability, necessity and strict proportionality—by identifying various degrees of freedom restriction and the respective intensity levels pushed by other principles at stake. It is all about weighing: the greater the restriction on the outweighed constitutional principle, the greater the importance of fulfilling the prevailing principle should be. The application of the proportionality principle over time should give rise to an array of well-defined solutions adaptable to the bumpy road of public interference with free enterprise. The second perspective refers to the formal criteria rendering applicable each element of this review standard: narrowing in the abstract the public interests that may justify certain restrictions; the allocation of the burden of reasoning depending on the prima facie prevailing interests; the degree of care when justifying the restrictive measure and, above all, adjusting the stringency with which the elements of the standard of review are applied in each case or, in other words, modulating the asymmetry between the standard of conduct and the standard of constitutional review. In conclusion, a standard of review with well-defined stringency or intensity is not appropriately built by adding or removing elements from the proportionality principle, but by applying its three elements with varying deference based on the operation of these formal criteria in different groups of cases.